Text

Request for OMB Review & Supporting Statement Re 10CFR40, Domestic Licensing of Source Matl & NRC Form 484, Sample Format for Reporting Detection Monitoring Data. Estimated Respondent Burden Is 15,582 H
	ML20059F971
Person / Time
Issue date:	10/28/1993
From:	Cranford G; NRC OFFICE OF INFORMATION RESOURCES MANAGEMENT (IRM)
To:	;
References
	FRN-58FR58657 AE77-1-026, AE77-1-26, OMB-3150-0020, OMB-3150-20, NUDOCS 9311050198
	Download: ML20059F971 (49)
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imp rtant Read instructions before compieting form. Do not use the same SF 83 Send three copies of this form, the material to be reviewed, and for i

to request bc.h n Executive Order 12291 review and approval under paperwork-three copies of the supporting statement, to:

the Paperwork Reduction Act

Answer al! questions in Part 1. If this request is for review under E.O.

Office of Information and Regulatory Aff airs 12291, complete Part 11 and sign the regulatory certification if this Office of Management and Budget trauest is for approval under the Paperwork Reduction Act and 5 CFR Attention: Docket Library, Room 3201 1320, skip Part 11, cornpiete Part til and ssgn the paperwork certif tcation Washington, DC 20503 i-

' PART l.-Complete This Part for All Reque<ts.

1. Departmert! agency and BureaJfo*f:Ce ong,natmg request

2. Agency code U.S. Nuclear Regulatory Commission 3 1 5

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3. Name of person who can best answer questions regarding this request Telephone number Catherine Mattsen (301

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4. Titie of informatiori cohection or rulemaking

'10 CFR 40, Domestic Licensing of Source Material and NRC Form 484, Sample Format for

. Reporting Detection Menitoring Data

5. kegan aatnantj tar wtymat on conecten o ra,e (cite Umted States Coce. Pal c Las or Esecatwe Order)

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PART ll.-Complete This Part Only if the Request is for OMB Review Unde." Executive Order 12291

7. Regu!ation identAer N/nber (RIN)

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8. lype of suomessic" f cneck one m eacn catepry.

Type of review requested Cisssification Stage of development 1 O sta,carc 1 C Ma or 1 C Propcsed or d a+1 2 U Pending 3 C Emergency 2 C N3nmaice 2 U Fina'or intenm fina; witn p-o p oposar 3 C Finai or inteam f n&. weout poo' proposat e C statatory orjudica:deadiine i

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11. P e rney rse is twe a egatam imant a a:ys4 atMec' 1 C ves 2 C No.

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PART lli.-Complete This Ptrt Only if ths Rsqusst is for Approni of a Collection of Information Under ths Pap 2rwork Reduction Act and 5 CFR 1320.

13. abstract-Desebe n*Ms. uses and s*fected cuchc m 50 *crds or :ess " Radiation Safety, Radioactive Materials" The proposed amendment would conform NRC regulations to those proposed by EPA on June 8,1993, and requires additional information to be included in a currently required closure plan.

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4 Supporting Statement for Amendments to 10 CFR Part 40, Appendix A URANIUM MILL TAILINGS REGULATIONS; CONFORMING NRC REQUIREMENTS TO EPA STANDARDS, 40 CFR PART 192, SUBPART D (0MB Approval No. 3150-0020)

Description of the Information Collection The proposed rule would amend NRC regulations governing the disposal of uranium mill tailings. These changes would conform existing NRC regulations to the proposed regulatior: published by the Environmental Protection Agency (EPA) on June 8, 1993. Those proposed amendments to 40 CFR part 192, subpart D and these proposed conforming amendments are intended to clarify the existing rules by ensuring timely emplacement of the final radon barrier and by requiring appropriate verification of the radon flux through that barrier.

This action is related to another action by EPA to rescind its National Emission Standard for Hazardous Air PollMants (NESHAPs) for radon emissions from the licensed disposal of uranium mill tailings at non-operational sites which was promulgated on December 15, 1989 in subpart T of 40 CFR part 61.

Existing Criterion 6 of Appendix A to Part 40 requires that an earthen cover (or approved alternative cover) be placed over uranium mill tailings to control the release of radon-222 at the end of milling operations. This proposed rule would add to the existing design standard for final radon barriers, a one time verification that the final radon barrier over uranium mill tailings, as constructed, is effective in controlling radon emissions.

The proposed rule would also add a new Criterion 6A addressing the timeliness of satisfying Criterion 6 in the case of uranium mill tailings.

It would require that the emplacement of the earthen cover be carried out in accordance with a written, Commission-approved reclamation plan which includes enforceable dates for the completion of key reclamation milestone activities.

Planning for reclamation activities is already required in a closure plan.

The additional detailed planning for certain reclamation activities may be included in the closure plan or a separate reclamation plan.

A.

JUSTIFICATION 1.

Need for the Collection of Information.

NRC is required by the Atomic Energy Act, as amended by the Uranium Mill Tailings Control Act (UMTRCA), to conform its regulations pertaining to uranium mill tailings to the generally applicable standards of the Environmental Protection Agency (EPA) in 40 CFR Part 192, Subpart D.

On June 8, 1993, EPA proposed amendments to Subpart D, under UMTRCA, to add a one time demonstration that the final radon barrier, as constructed, is adequately controlling emissions of radon from licensed uranium mill tailings piles. Also, in order that the radon barrier is completed in a timely way, EPA's proposed rule would require certain key reclamation activities to be carried out in accordance 1

4

>.g with an approved plan which contains dates for completion of these i

activities which are enforceable conditions of license. NRC would i

be implementing these requirements thrcugh this proposed rule; the o

rule adds details for reporting and recordkeeping to the verification requirement of 40 CFR Part 192, Subpart D.

The intention of these actions is to remove dual regulation of this t

group of licensees as EPA intends to rescind 40 CFR Part 61, l

Subpart T (a Clean Air Act regulation) as it applies to this group of licensees, if it finds that NRC's program to implement these requirements provides an ample margin of safety to the public.

Subpart T, which is currently stayed for licensed uranium mill tailings facilities, requires testing of radon emissions to demonstrate compliance with the radon flux standard.

It also requires that a report be submitted to EPA presenting the results i

~

of that testing and that records pertaining to this testing be l

kept for five years. Those reporting and recordkeeping requirements have been approved by OMB under OMB control number 2060-0191. Assuming EPA completes its proposed action to rescind i

Subpart T for licensed uranium mill tailings sites, these reporting and recordkeeping requirements would replace those previously approved in Subpart T for this category of facility.

If the current stay of effectiveness of Subpart T expires without EPA final action on its rescission, licensees would also have to get EPA approval of reclamation plans and schedules. This action is necessary to support the rescission of Subpart T.

The overall result would be to simplify the regulation of radon emissions from licensed uranium mill tailings by removing dual regulation.

Crf terion 6-(4) requires that within ninety days of the completion of the required verification in paragraph (2)'of this criterion, uranium mill licensees shall report to the Commission the results of the testing and analysis, detailing the actions taken to verify that levels of release of radon-222 do not exceed 20 pCi/m's.

Licensees must maintain records until termination of the license documenting the source of input parameters including the results of all measurements on which they are based, the calculations and/or analytical methods used to derive values for input parameters, and the procedure used to determine compliance.

Licensees may use the procedures described in 40 CFR Part 61, Appendix B, Method 115 or another method of verification approved by the Commission as being at least as effective in demonstrating-the effectiveness of the final radon barrier. Method 115 requires that records of field activities and laboratory measurements be' maintained. Records shall include all applicable information associated with determining the sample measurements, calculations, observations, and comments. Custodial control of charcoal samples exposed in the field shall be maintained in accordance with appropriate chain-of-custody field procedures, with control records documenting all custody changes between field and laboratory personnel.

2

4 Crf terion 64-(l) requires licensees to submit a reclamation plan detailing activities to accomplish reclamation of the tailings or waste disposal area in accordance with the technical criteria of Appendix A.

A reclamation plan shall include a schedule for key reclamation milestone activities including as appropriate, but not limited to, wind blown tailings retrieval and placement on the pile, interim stabilization (including dewatering or the removal of freestanding liquids and recontouring), and final radon barrier construction.

Reclamat. ion of tailings must also be addressed in the closure plan and the detailed reclamation plan may be incorporated into the licensee's closure plan.

Criterfon 64-(2) specifies that licensees can request the Commission to extend the time for performance of milestones, which the Commission may approve after providing an opportunity for public participation, and finding that the licensee has adequately demonstrated that releases of radon-222 do not exceed an average of 20 pCi/m's, or, in the case of extension of the final milestone for reasons of cost, that the licensee is making good faith efforts to comply with the milestone schedule, the delay is consistent with the definition of available technoloav, and the radon releases caused by the delay will not result in a significant incremental risk to the public.

Crf terfon 64-(3) specifies that licensees can request the Commission to authorize a portion of an impoundment to accept uranium byproduct material or such materials that are similar in the physical, chemical, and radiological characteristics to uranium mill tailings and associated wastes, from other sources, during the closure process. Authorization to remain accessible will only be given after providing opportunity for public participation. The licensee may complete the requirement for verification levels with a portion of the impoundment being used for disposal if the Commission makes a final finding that the impoundment will continue to achieve a level of radon-222 releases no greater than 20 pCi/m's averaged over the entire impoundment.

2.

Acency Use of Information.

The NRC will use the information which would be required by this rule to assure that reclamation of uranium mill tailings is completed in a timely way in order to protect the public from radon emissions and to verify that the radon emissions have indeed been reduced to conform to the flux standard previously embodied in a design standard.

The reclamation plan must provide for the completion of the final radon barrier (and erosion protection features) as expeditiously as practicable considering technological feasibility after the pile or impoundment ceases operation.

In keeping with the Memorandum of Understanding (M00) with EPA, the implementation of this timeliness requirement will have a goal of completing the 3

.e.

-4 final radon barrier by December 31, 1997, for those non-operational uranium mill tailings impoundments listed in the MOU, or seven years after the date on which the impoundments cease operation for all other impoundments.

3.

Reduction of Burden Throuah Information Technoloav.

There is no legal obstacle to the use of information technology.

Moreover, 10 CFR 40.61(c)(3) provides that records maintained pursuant to 10 CFR Part 40 may be stored in electronic media with the capability for producing legible, accurate, and complete records during the required retention periods.

4.

Effort to Identify Duolication.

There is some overlap in the requirements of the information contained in the proposed reclamation plan and the existing closure plan, however, these may be combined to eliminate any actual duplication of reporting.

5.

Effort to Use Similar Information.

The information to be obtained by addition of required dates for completion of key reclamation milestone activities to planning for tailings reclamation, by verifying radon flux levels after completion of the final radon barrier, and by reporting this verification process and results is not available through other means.

6.

Effort to Reduce Small Business Burden.

This information collection requirement does not affect small businesses.

7.

Conseauences of less Freouent Collection.

This is a one time collection of information for each uranium mill tailings impoundment. Annual collection of the information could result under an option allowed to the licensee.

8.

Circumstances Which Justify Variations From OMB Guidelines.

Contrary to OMB guidelines in 5 CFR 1320.6(f), Criterion 6 requires records be kept until license termination. After the report is submitted to NRC, the staff must review the information on testing methodology and determine whether the information adequately demonstrates compliance with the regulations.

In addition, other closure activities on the site will be continuing after the testing, or other validation procedures, which could affect the validity of results and necessitate repetition of parts of the testing. Any questions concerning the adequacy of the demonstration of compliance must be resolved prior to NRC 4

l 4

termination of the license and transfer of responsibility for the site to DOE.

For that reason, the NRC is making the retention period until transfer to D0E. On average, this is not expected to to result in a significantly different retention period than the five years specified in 40 CFR Part 61, Subpart T and in any case would require approximately the same resources.

9.

Consultations Outside the Aaency.

NRC has discussed this rule with the staff at EPA responsible for the amendments to 40 CFR Part 192, Subpart D to which this rule conforms. NRC has also received comments on a draft of the proposed rule from affected Agreement States. The proposed rule will be published in the Federal Reaister for a 45-day public comment period.

10.

Confidentiality of Information.

Proprietary information is protected in accordance with the provisions specified in 10 CFR Part 2 of the NRC's regulations.

11.

Justification for Sensitive Ouestions.

This regulation would not require sensitive information.

12.

Estimated Annualized Cost to the Federal Government.

Estimated average effort for each test report: 12 staff hours for review and filing. Nineteen licensees; 228 hours0.00264 days 0.0633 hours 3.769841e-4 weeks 8.6754e-5 months at $132/ hour for a total of $30,096. Over the next few years, an average of two NRC licensees annually are estimated to complete closure activities and submit documentation pertaining to the verification of radon flux levels. This would result in approximately 24 staff hours annually to review these reports, at $132/ hour for an annual cost of $3168. This cost is fully recovered by fee assessments to NRC licensees pursuant to 10 CFR Part 171.

13.

Estimate of Burden.

The estimated burden of the amendment of Criterion 6 is based on the use of the measurement technique defined by EPA's rules in 40 CFR Part 61, Appendix B (also assumed in EPA's original estimate for comparable requirements in 40 CFR Part 61, Subpart T) which has been deemed acceptable; alternatives may be proposed by the licensee and approved by NRC which may possibly reduce the burden.

Estimates are made for the 19 NRC licensees and the 9 Agreement State licensees who will also be affected.

5

4 4

HOURS Testing:

100 measurements, at 28 mills, at I hour each; 2800 hours0.0324 days 0.778 hours 0.00463 weeks 0.00107 months .

Reporting:

1 person, 40 hours4.62963e-4 days 0.0111 hours 6.613757e-5 weeks 1.522e-5 months per report, 28 records; 1120 hours0.013 days 0.311 hours 0.00185 weeks 4.2616e-4 months .

Recordkeeping:

1 person, 16 hours1.851852e-4 days 0.00444 hours 2.645503e-5 weeks 6.088e-6 months per record, 28 records; 448 hours0.00519 days 0.124 hours 7.407407e-4 weeks 1.70464e-4 months .

Total for all affected licensees: 4368 hours0.0506 days 1.213 hours 0.00722 weeks 0.00166 months Over the next few years, approximately 3 licensees per year are estimated to complete this verification (2 reporting to NRC; I to an Agreement State). This would result in an annualized burden of:

Reporting & Testing:

140 X

3 respondents 420

=

Recordkeeping:

16 X

3 respondents 48 Total:

468 hrs./yr COST Collection Activity Ho_yn

$/ Hour

$ Cost Test:

Professional 100 132 13,200 Reports:

Professional 30 132 3,960 Clerical 10 45 450 Total for report ', reparation -

4,410 Total for test report -

$17,610 Recordkeeping:

Clerical 16 45

$720 2

Total for each respondent =

$18,330 2

The estimates of hours have been made consistent with EPA's previous submittals concerning 40 CFR part 61, subpart T; this rule is intended to transfer reporting for a limited portion of the facilities covered by that rule. This estimate uses the number of hours for this category of respondent from EPA's 1989 submittal (the 1992 renewal averaged the number of hours per respondent over all categories of respondent). The cost estimates are higher in this estimate than EPA's for subpart T because they are based on " fully loaded" $/ hour, i.e., including all overheads; this does not represent a real difference in cost resulting in the change of responsibilities for this particular requirement.

6 t

4 This would result in an annualized cost of:

Reporting:

$17,610/ respondent X

3 respondents -

$52,830 Recordkeeping:

$720/ respondent X

3 respondents -

$2.160 Total:

$54,990 The biggest portion of this estimate is for the testing. The only aspects of this requirement that are discretionary on the part of NRC are the details of reporting and recordkeeping. The NRC is proposing a retention period for records of until license termination, when the site is taken over by the Department of Energy (DOE) or the State. This is expected to re:: ult in approximately the same burden as the existing requirement in Subpart T of 40 CFR Part 61, since the time period elapsed is likely to be similar.

In addition, under an option available to the licensee, annual reporting of the same information (plus associated recordkeeping) could result. Over the first three years this would be expected to add no more than an annualized average of one additional report adding an additional 156 hours0.00181 days 0.0433 hours 2.579365e-4 weeks 5.9358e-5 months of voluntary reporting and recordkeeping.

The estimated burden for the addition of Criterion 6A, paragraph (1) is insignificant because the planning for reclamation.is already required and made a condition of license, the difference being amendment of the license specifically to contain enforceable dates for completion of certain activities.

In order to support EPA's planned rescission of Subpart T, all of the licensees currently involved with reclamation have voluntarily requested amendment of their license to include such milestone dates. All but six (four NRC; 2 Agreement State) of the licensees are in the closure process and have already submitted reclamation plans. No new licensees are expected in the foreseeable future. Even for these six affected licensees, the impact is the additional pressure to complete the key activities as scheduled rather than i

additional paperwork.

Because of the specific criteria in'the proposed rule i

(Criterion 6A - paragraph (2)) related to amendment of licenses to extend the time allowed for completion of certain milestone activities, this particular type of amendment may be more complicated. These, however, would involve about 1 per year of approximately 60 amendments per year in the uranium recovery area.

l It is not expected that this rule would affect the number of amendments or the average hours of staff time per amendment.

Criterfon 6A - paragraph (3) specifies that if a certain type of license amendment is to be obtained public comment will be allowed and that a certain finding on the part of NRC may be needed in 7

i

connection with the verification of radon levels. This will affect the amendment process for this particular type of authorization but this will also have an insignificant effect on the burden associated with license amendments.

14.

Eg_asons for Chanae in Burden.

This rule represents a small increase in reporting and recordkeeping during the closure process for uranium mill tailings facilities. However, this is intended as a transfer of specific reporting requirements from EPA to NRC and an overall reduction of administrative burden through elimination of dual regulation.

15.

Publication for Statistical Use.

This information is not collected for statistical use.

B.

COLLECTIONS OF INFORMATION EMPLOYING STATISTICAL METHODS The verification of radon flux levels will involve basic averaging calculations.

8

.c Summary of ComDliance Burden for Reportina and Recordkeepina Reouirements ANNUAL REPORTING

REQUIREMENTS No. of Lic.

Hours per Total annual Total Paraaraoh Resoonses Submittal Burden (Hrs.)

Cost ($)

Criterion 6 3

140 420 52,830 (2) and (4)

Crfterion 6A (1) -

Insignificant impact to burden under 140.44 Criterion 6A (2) 1 140 140 17,610 Criterion 6A (3) -

Insignificant impact to burden under 640.44 Total 560 70,440 ANNUAL RECORDKEEPING REQUIREMENTS No. of Lic.

Hours per Total annual Total Paracraqh Responses Submittal Burden (Hrs.)

Cost ($)

Criterion 6 3

16 48 2,160 (2) and (4)

Insignificant impact to burden under 640.44 Criterion 6A (1)

Criterion 64 (2) 1 16 16 720 Criterion 6A (3) -

Insignificant impact to burden under 640.44 Total 64 2,880 Total annual reporting and recordkeeping burden -

624 73,320

' Includes testing burden 9

4-

[7590-01]

NUCLEAR REGULATORY COMMISSION 10 CFR Part 40 RIN 3150-AE77 Uranium Mill Tailings Regulations: Conforming NRC Requirements to EPA 9

Standards AGENCY:

Nuclear Regulatory Commission.

ACTION:

Proposed rule.

SUMMARY

The Nuclear Regulatory Commission is proposing to amend its regulations governing the disposal of uranium mill tailings.

These changes I

would conform existing NRC regulations to proposed regulations published by'

^

the Environmental Protection Agency (EPA). The proposed conforming amendments-are intended to clarify the existing rules by ensuring timely emplacement of the final radon barrier and by requiring appropriate verification of the radon j

flux through that barrier. This action is related to another action by EPA to rescind its National Emission Standard for Hazardous Air Pollutants (NESHAPs) for radon emissions from the licensed disposal of uranium mill tailings at non-operational sites.

DATES:

Submit comments by [ Insert a date 45 days after publication].

Comments received after this date will be considered if it is practical to do so, but the Commission is able to assure consideration only for comments received on or before this date.

e N-ADDRESSES:

Send comments to:

Secretary. U.S. Nuclear Regulatory Commission.

t Washington, DC 20555.

ATTN:

Docketing and Service Branch.

Hand deliver comments to:

11555 Rockville Pike. Rockville. Maryland, between 7: 45 am and 4:15 pm Federal workdays.

Examine comments received the environmental assessment and finding of no significant impact, and the regulatory analysis at:

The NRC Public Document Room. 2120 L Street NW. (Lower Level). Washington DC.

FOR FURTHER INFORMATION CONTACT:

Catherine R. Mattsen. Office of Nuclear Regulatory Research. U.S. Nuclear Regulatory Commission. Washington, DC 20555.

telephone (301) 492-3638.

SUPPLEMENTARY INFORMATION:

Background

On April 29. 1983 (48 FR 19584). EPA proposed general environmental standards for uranium and thorium mill tailings sites licensed by NRC or one of its Agreement States.

Final standards were published on September 30. 1983 (48 FR 45926) and codified in 40 CFR part 192 subparts D and E.

On October 16. 1985 (50 FR 41852) NRC published amendments to 10 CFR part 40 to conform its rules to EPA's general standards in 40 CFR part 192. as it affected matters other than ground water protection.

Both NRC and EPA J

regulations included a design standard requiring that the tailings or wastes from mill operations be cw ered to provide reasonable assurance that radon released to the atmosphere f"om the tailings or wastes will not exceed an i

2 1

4 2

average of 20 picocuries per square meter per second _(pCi/m s) for 1000 years.

to the extent reasonably achievable, and in any case. for 200 years.

Neither the EPA standards of 1983 nor NRC's conforming standards of 1985 established compliance schedules to ensure that the tailings piles would be 2

expeditiously closed and the 20 pCi/m s standard would be met within a reasonable period of time.

Criterion 6 of appendix A to part 40 is a design standard.

Criterion 6 does not require verification that the radon releases meet this " flux standard."

In response to the separate requirements of the Clean Air Act (CAA). EPA promulgated additional standards in 40 CFR part 61 (subpart T for non-operational sites) to ensure that the piles would be closed in a timely manner (December 15. 1989: 54 FR 51654). This regulation applies only to uranium 2

mill tailings and requires. in addition to the flux standard of 20 pC1/m s, that once a uranium mill tailings pile or impoundment ceases to be operational. it must be closed and brought into compliance with the standard within two years of the effective date of the standard (by December 15, 1991) or within two years of the day it ceases to be operational, whichever is later.

If it were not physically possible for the mill owner or operator to complete disposal within that time. EPA contemplated a negotiated compliance agreement with the mill owner or operator pursuant to EPA's enforcement authority in order to assure that disposal would be completed as quickly as possible.

Subpart T of 40 CFR part 61 also requires testing for all piles within the facility to demonstrate compliance with the emission limit, as well-as specific reporting and recordkeeping associated with this demonstration.

Subpart T was challenged by a number of parties including the American Mining Congress (AMC), the Environmental Defense Fund (EDF), and the Natural 3

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I Resources Defense Council (NRDCL In addition. AMC. the NRC, and others filed an administrative petition for reconsideration of subpart T.

Among the concerns of these parties was the argument that the overlap between EPAs subpart D of 40 CFR part 192 (based on the Uranium Mill Tailings Radiation Control Act (UMTRCA)) and subpart T of 40 CFR part 61 -(based on the CAA) resulted in regulations that are unnecessarily burdensome and duplicative.

The industry also alleged that subpart T was unlawful because it was physically impossible to come into compliance with subpart T in the time I

required.

In November 1990. Congress amended the CAA by including a new provision, section 112(d)(9). This provision authorized EPA to decline to regulate radionuclide emissions from NRC licensees under the CAA if EPA found'.

by rule. after consultation with NRC. that the regulatory program implemented by NRC protects the public health with an ample margin of safety.

i In July 1991. EPA. NRC and the affected Agreement States began discussions concerning the dual regulatory programs established under UMTRCA f

and the CAA.

In October 1991, those discussions resulted in a Memorandum of Understanding (MOU) between EPA. NRC, and the affected Agreement States. The 4

MOU outlines the steps each party would take to both eliminate regulatory redundancy and to ensure uranium mill tailings piles are closed as expeditiously as practicable.

(The MOU was published by EPA as part of a proposal to stay subpart T on October 25, 1991 (56 FR 55434).) The primary purpose of the MOU is to ensure that the owners and operators of all disposal sites that have ceased operation and those owners and operators of sites that will cease operation in the future effect emplacement of a final earthen cover to limit radon emissions to a flux of no more than 20 pCi/m s as expeditiously as practicable considering technological feasibility. The MOU presents a goal 4

y,

5 that all current disposal sites be closed and in compliance with the radon emission standard by the end of 1997 or within seven years of the date on which existing operations cease and standby sites enter disposal status.

The attachment to the MOU lists specific target dates for completing emplacement.

of final earthen covers to limit radon emissions from non-operational ta.ilings.

impoundments which were based on consultations with the Ticensed-mill

~f operators.

In accordance with the MOU. the NRC and affected Agreement States agreed i

to amend the licenses of all sites whose milling operations have ceased.and j

whose tailings piles remain partially or totally uncovered.

The amended licenses would require each mill operator to establish a detailed reclamation plan that includes key closure milestones and a schedule for timely l

emplacement of a final radon barrier on all non-operational tailings impoundments to ensure that radon emissions after closure do not exceed a

20 pCi/m s.

The licenses were to be amended as soon as practicable.'but in no event later than September 1993.

]

On December 31, 1991, the EPA published three Federal Register notices:

.I

l a final rule to stay the effectiveness of 40 CFR part 61, subpart T, as it '

)

applies to owners and operators of uranium mill tailings disposal. sites' licensed by the NRC or an Agreement State (56 FR 67537); a proposed rule to rescind 40 CFR part 61, subpart T. as it applies to uranium mill tailings disposal sites licensed by the NRC or an Agreement State (56 FR 67561): and an.

l advance notice of proposed rulemaking to amend 40 CFR part 192, subpart D, to require that site closure occur as expeditiously as practicable considering technological feasibility and to add a demonstration of compliance with the design standard for radon releases (56 FR 67569). The stay of effectiveness 5

+

of subpart T is to remain in effect until EPA takes. final action to rescind subpart T and amend 40 CFR part 192. subpart D. to ensure that the remaining rules are as protective of'the public health with an ample margin of safety as implementation of subpart T. or until June 30, 1994.

If. EPA fails to complete these rulemakings by that date, the stay will expire and the requirements of subpart T will become effective.

The stay of effectiveness of subpart T was also challenged.

Discussions

ontinued between EPA the litigants, and the NRC.

In February 1993, final agreement was reached to settle the pending litigation and the administrative proceeding avoid potential futur

,itigation, and otherwise agree to a e

consensus approach to regulation of licensed non-operational uranium mill tailings di.sposal sites.

EPA announced the settlement agreement in a notice of April 1. 1993 (58 FR 17230).

NRC was not a signatory to this agreement but agreed in principle with the settlement agreement.

The settlement agreement further defined steps for implementing the MOU.

It called for the NRC to amend its regulations in appendix A of part 40 to be substantially consistent with a specific regulatory approach described in the settlement agreement.

It!

al.so described actions to be taken by the parties to the agreement which were intended to implement the MOU and eliminate further litigation with respect to 1

subpart T.

On June 8. 1993 (58 FR 32174) the EPA proposed minor amendments to 40 CFR part 192. subpart D to ensure timely emplacement of the final radon barrier and to require monitoring to verify radon flux levels (a one-time

)

veri fication).

In.that notice. the EPA stated its tentative conclusion that if those amendments to 40 CFR part 192. subpart D. were properly implemented by NRC and the Agreement States to ensure specific, enforceable closure 6

1 1

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M schedules and radon level monitoring. the NRC's regulatory program for_ non-operational uranium mill tailings piles would protect the public health with an ample margin of safety.

The EPA also noted its intent to publish a proposed finding for public comment on whether the NRC program protects public health with an ample margin of safety before taking final action on rescission of 40 CFR part 61. subpart T.

EPA's proposed rule is not intended to change EPA's original rationale or scheme set forth in its 1983 rule.

The EPA proposed rule " seeks to clarify and supplement that scheme in a manner that will better support its original intent." EPA's proposed rule and this conforming rule, would require that once a uranium mill becomes non-operational, the final barrier to control radon will be emplaced as expeditiously as practicable considering technological feasibility (including factors beyond the control of the licensee).

Setting interim dates for achieving milestones towa+ emplacement will support and better assure this progress, and post-emplacement determination of radon flux will serve as confirmation that the design of the cover is working as intended.

EPA *s June 8. 1993, notice of proposed

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rulemaking provides a detailed discussion of the rationale for the action andl the legislative and regulatory history leading to its proposal.

The Conmission notes that the nature of the proposed revisions to 1

40 CFR part 192, subpart D has been influenced by the settlement agreement.

The settlement agreement included considerable detail concerning the specifics of the regulations that were to be developed.

Apparently as a result of this.

40 CFR part 192, subpart D. as proposed, includes details of implementation such as when public participation in NRC decisions must be allowed, what specific planning aspects must be incorporated into a license, and a specific l

7

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'M measurement method as a standard of adequate verification of radon release q

levels. Although the NRC has no problem with conforming with these particular.

provisions, it is the Commission's 'riew that the inclusion of these implementation details is a special case because of the settlement agreement and does not establish any precedent with regard to what constitutes a generally applicable standard.

]

1 Coordination with Affected NRC Agreement States I

The affected Agreement States of Colorado. Texas, and Washington were provided a draft of the proposed rule at a meeting on July 29. 1993. A brief presentation,was made describing the proposed rule.

A copy was also sent to the State of Illinois, which is the State that most recently assumed responsibility for 11e(2) byproduct material (byproduct material as defined in f

section 11e(2) of the Atomic Energy Act), but which has no affected uranium byproduct material licensees. All four of these Agreement States submitted comments. The States were in general agreement with the proposed rule and indicated no major problems in implementing compatible requirements.

i Response to NRC Agreement State Comments Coment.

The licensee should be required to maintain its. records L

pertaining to radon flux verification until site transfer to DOE or the State.

The DOE or the State may elect to obtain such records.upon transfer of the site.

Also, all records relating to decommissioning and reclamation should be transferred at this time.

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.4 Respc =.~ The proposed rule is consistent with this comment.

r Previously this approach had been discussed as an alternative to be considered in addition to a five year retention period which would have mirrored the requirements of subpart T.

The rule does not specifically require transfer of all appropriate records to the custodial agency but assures their availability in this case.

Coament.

The 30-day limit for time elapsed between remediation activities should be removed because. in some cases there can be no real point where one activity ends and another-starts.

Response.

This additional timeliness criterion has been deleted in the proposed rule.

The NRC agrees that the timeliness requirements are adequate without this provision and that it could create some problems.

Although the draft provision contained an exception for factors such as weather. it is recognized that the weather during periods longer than 30 days-would routinely I

be expected to preclude certain reclamation activities.

Conment.

The term "as soon as reasonably achievable" in paragraph (2) of Criterion 6 should be changed or defined.

Response. The meaning of this term is discussed in the fifth paragraph of the existing text of the Introduction to appendix A.

It is'use'd consistently in this context.

I Cmment. The word " portion" should be deleted from paragraph (3) of -

Criterion 64. Also. the limitation of not delaying emplacement of the remainder of the final radon barrier should be deleted.

Resppnse. This provision allows limited disposal during closure as an exception tc the definition of operation.

If the whole impoundment is q

involved in waste disposal and no reclamation activities are proceedingc the j

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t impoundment would be considered operational and continue to be under appropriate requirements for operation.

Note. one site may have both an operational impoundment and a non-operational impoundment with the applicable regulations applying to each, Also, the suggested changes are likely to violate conformance with the proposed EPA provisions.

Comment. Why are the implementation time limits in the preamble omitted -

from the rule?

Response.

The time periods for completion of the final radon barrier discussed in the preamble of seven years after the end of operation, or December 31. 1997. for those uranium mill tailings impoundments which were non-operational at the time of the MOU. are general goals of the MOU and remain goals.

Because of this, specifying these dates in the rule is not i

necessary or appropriate.

The proposed rule would require that specific dates for each impoundment be established as a condition of each license considering site specific factors which could affect the feasibility of meeting this general goal.

Cannent.

The definition of operation is somewhat confusing in regards 1

to " standby status" What controls would prevent a licensee from keeping an impoundment on a standby status for an extended period of time without beginning closure?

Response.

The definition of coeration is in conformance with the i

definition of " operational" in the proposed EPA amendment to subpart D and in 40 CFR part 61 subpart W.

Nothing in this proposed rule would keep the licensee from maintaining its operational status.

The licensee would be

'l subject to all requirements of an operational license including

)

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40 CFR part 61, subpart W. which contains a 20 pCi/nfs flux standard.

Thus.

10 i

p radon releases would be controlled to the same level as the design standard-for closed impoundments.

Also, there are financial assurance requirements to assure adequate funds for closure.

Final action on a proposed NRC rule to require timeliness in decommissioning (January 13. 1993: 58 FR 4099) may affect this situation.

Coament.

One of the factors that could cause a delay in achieving reclamation completion at certain impoundment sites is groundwater t

remediation.

Because the time required for groundwater remediation cannot be.

forecast with certainty. it should be recognized that the reclamation schedule j

may need to be modified.

Hence, groundwater remediation may be added to the list of factors falling under this definition.

1 Response. The completion of groundwater remediation is not covered by I

the specific timeliness criteria of this proposed rule. The inclusion of j

these activities in the reclamation plan allows for consideration of possible interactions with radon control activities when setting the schedule for key milestone activities.

The definition of factors beYond the control of the licensee need not include a list of possible~ factors. A list of potential factors was included in the preamble.

Problems with carrying out. groundwater 1

remediation is recognized as a possible factor as well.

Conment. The proposed rule incorporates NRC's policy statement published earlier (May 13. 1992; 57 FR 20525) concerning the disposal into the 1

impoundment of materials similar to uranium byproduct material; however, this is not discussed.

Response.

Materials similar to uranium byproduct material are included in provisions for continued disposal during closure.

This provision does not-l

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. authorize disposal.

It simply does not exclude non-byproduct material.from-1 a

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possible disposal during closure. Requests for authorization to dispose _of -

j these materials in tailings impoundments would.have to address the factors

.j

. described in NRC's guidance document referred to by the' commenter and would be.

.i subject to any other applicable requirements.

Coment.

We recommend deletion of the parenthetical phrase ".(i.e..

j within the top three meters).

from the existing text. which appears.in paragraph (5) of Crfterion 6 of the proposed rule.

Less than 3 meters of cover material may be required by applicable closure standards.

i Response. This phrase limits the provision in this paragraph to ' apply j

to no more than the top 3 meters of cover materials.

It is not intended to require at least 3 meters of cover material.

Coment.

In the last sentence of paragraph (3) of Criterfon 6A. clarify -

i 2

that "the average of 20 pCi/m s" refers to the average over the impoundment as i

specified in footnote 2 to paragraph (1) of Criterion 6A.

{

Response.

The words " averaged over the entire. impoundment" now appear j

in the proposed rule.

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Coment.

Although the concept of milestones is good, experience has

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demonstrated some problems of implementation.

Certain steps are not needed at'

]

.some sites.

Please consider removing the milestones altogether.

i Response. The standard (in paragraph (1) of Criterion 6A) has been j

revised to include the words "if applicable" with a similar intent as the l

words " including as appropriate" in the definition of reclamation nlan.

1 Removing the milestones is not an option: it is a matter of conformance with t

the EPA standard.

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Cmment.

Although there must be public' participation, requiring public

.i input every time a milestone is not reached, or cannot be reached. is

' unnecessary and redundant.

Response.

All of the opportunities for public participation provided.

for in this proposed rule are in conformance with the EPA proposed standard.

I Even if EPA deleted this implementation detail from its final rule, these provisions would be necessary to satisfy the settlement agreement.

j 2

Cmment.

It is not essential during short delays to meet the 20 pCi/m s limit: however, NRC should include provisions for assessment'of the need for i

control of radon emissions during prolonged delays due to circumstances beyond licensee control.

Controls in this circumstance may be needed to adequately

]

protect public health and safety.

Response.

The NRC does not consider it necessary or appropriate for specific flux limits to apply during closure. This rule would add provisions j

to assure final radon controls are completed as expeditiously as practicable ti although some prolonged delays may be unavoidable because of physical constraints or other factors beyond the licensee's control.

In this case. NRC has sufficient regulatory authority to require controls such as interim covers through case-by-case licensing actions.

l Conment.

Although it may generally be unnecessary to monitor thorium byproduct materials for radon after installation of an appropriately designed cover, the necessity for monitoring should be based on the radiochemistry of l

the byproduct materials, not whether they are labelled uranium or' thorium

.j byproduct materials.

It would be imprudent to discount the enviror, mental:and radiation health and safety considerations related to radon-222 from the.

)

thorium byproduct materials or-the potential impacts from any' thorium i

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1 byproduct materials piles based only on their anticipated chemistry.

All 11e(2) byproduct materials should be characterized by the concentrations of radionuclides present.to ascertain the need for a _ radon barrier and before f

rescission of monitoring.

Response. This proposed rule is intended to conform to proposed revisions to 40 CFR part 192. subpart D which only applies to uranium mill f

tailings, and does not extend to thorium mill tailings.

Not extending the additional verification requirements of this proposed rule to' thorium '

byproduct materials does not discount the environmental and radiation and l

health and safety considerations related to radon releases from thorium byproduct material.

In the case of either uranium or thorium byprcduct j

material disposal, the NRC considers the design standard of existing Criterion 6 (paragraph (1) in proposed text) to be of primary -importance in the control of radon releases from closed tailings impoundments. The need for j

1 a radon cover meeting the design requirements is determined by concentrations of decay products of both uranium and thorium (existing provision appearing at

'l paragraph (6) of the proposed text of Criterion 6).

The NRC.does not consider i

i it necessary or appropriate to require radon measurement. generically for-

]q closed thorium mill tailings impoundments. The. facility of concern to this j

State is unique in that the waste is thorium tailings with significant concentrations of radium-226.

Under the provisions of section 274o of the Atomic Energy Act. the State may add further requirements in this case to address this unique situation.

A few minor clarifications were also made as a result of State comments.

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Issue of Compatibility with Agreement States The Commission proposes these changes as Division 2 matters of compatibility.

Under Division 2. States must adopt the provisions of an NRC rule, but can adopt more stringent provisions.

It cannot adopt less stringent ones.

This designation (Division 2) is compatible with section 2740 of the

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Atomic Energy Act (AEA).

Proposed Rule As required by section 84a(2) of the Atomic Energy Act of 1954 as-amended. the NRC is proposing to amend appendix A of 10 CFR part 40 to conform-to EPA proposed amendments to 40 CFR part 192 subpart D, concerning.non-operational. NRC or Agreement State licensed mill tailings sites.

Existing Criterion 6 of appendix A to part 40 requires that an earthen cover (or approved alternative cover) be placed over uranium mill tailings to control j

the release of radon-222 at the end of milling operations.

This cover is to be designed to provide reasonable assurance that releases of radon will not l

exceed an average of 20 pCi/m s and that the barrier will be effective in 2

controlling radon releases for 1.000 years. to the extent reasonably achievable, and. in any case, for at least 200 years. The design for satisfying the longevity requirement includes features for erosion control such as the placement of riprap over the earthen cover itself.

(Criterion 6 is also applicable to thorium mill tailings.

These amendments to. Criterion 6 I

apply to uranium mill tailings only.)

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This proposed rule wauld amend Criterion 6. add a new Criterion 6A. and add to the definitions contained'in the Introduction to appendix A to part 40.

Paragraphs (1). (5'. (6) and (7) of revised Criterion-6 would contain the existing requirements of Criterion 6.

These provisions are'not the subject of or affected by this rulemaking.

These existing portions of Criterion 6 appear in this notice only for the purpose of numbering the

. paragraphs for ease of reference to specific requirements contained within the criterion.

However, minor conforming revisions have been made to Paragraph (1) of Criterion 6 and its footnotes for clarity and consistency with the new requirements being proposed.

This proposed rule would add a requirement to Criterion 6 for a one-time verification that the barrier, as constructed, is effective in controlling L

releases of radon from uranium byproduct material to levels no greater than 2

20 pCi/m s.

This provision which appears at paragraph (2) would also.

specify a method of verification as a standard for adequate demonstration of compliance: EPA method 115. as described in 40 CFR part 61. appendix B.

As would be required by the proposed amendments to 40 CFR part 192. subpart D, the licensee must use this method or another approved by the NRC as being at least as effective in demonstrating the effectiveness of the final radon barrier.

A copy of 40 CFR part 61, appendix B has been made available for 6

inspection at the NRC Public Document Room. 2120 L Stre'et. NW. (Lower Level).

l Washington. DC and will be provided to affected licensees.

Because of practical reasons the verification of radon flux levels must take place after emplacement of the final radon barrier but before completion of erosion protection features.

In order for the results of the verification to remain valid. erosion protection features must be completed before 16

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significant degradation of the earthen barrier occurs.

The NRC will consider this in a final determination of compliance with Criterior 6..The NRC could require. among other things, repetition of part or all of the verification procedures on a case-by-case basis if significant delay occurs before completion of erosion protection features.

l Paragraph (3) of the proposed revision of Criterion 6 would add a requirement that, if the reclamation plan calls for phased emplacement of the-final radon barrier, the verification of radon flux be performed on each

. 1 i

portion of the pile or impoundment as the final radon barrier is completed.

Paragraph (4) would specify the reporting and recordkeeping to be.made -

i in connection with this demonstration of effectiveness of the final radon barrier.

A one-time report that details the method of verification is to be made within 90 days of completion of the final determination of radon flux levels.

Records would be required to be kept until license termination documenting the source of input parameters and the results of all measurements on'which they are based, the calculations and/or analytical methods used to derive values for input parameters, and the procedure used to determine.

compliance.

These reporting and recordkeeping requirements are comparable to

. j existing requirements in 40 CFR part 61. subpart T.

+

The Commission notes that the proper implementation of the design standard of paragraph (1) of Criterion 6 is of primary importance in the control of radon releases. The addition of the requirement for verification l

of radon flux levels does not replace, nor detract from the importance of, the radon attenuation tailings cover design standard.

[

The proposed Criterion 6A would address the timeliness' of sat'isfying Criterion 6 for uranium mill tailings. The new Crf terion 6A would require -

17 1

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Or that the emplacement of the earthen cover (or approved alternative cover) be carried out in accordance with a written Commission-approved, reclamation j

plan that includes enforceable dates for the completion of key reclamation milescone activities.

This plan will be incorporated as a condition of the' j

- individual license. This plan must provide for the completion of the final radon barrier (and erosion protection features) es expeditiously _as practicable considering technological feasibility after_ the pile or impoundment ceases operation.

In keeping with the MOU, the implementation'of this timeliness requirement will have a goal of completing the final radon barrier by December 31, 1997. for those ron-operational uranium mill tailings i

impoundments listed fn the MOU or seven years after the date on which the impoundments. cease operation for all other impoundments.

For the purposes of Cr7terion 6A. definitions are proposed to be added ^

to the Introduction of appendix A to part 40_(in alphabetical. order with existing definitions) for: as exceditiously as oracticable considerina j

technoloaical feasitility. available technoloav.-factors beyond the control-of q

the licensee, milestone, operation, and reclamation olan, These definitions 1

-i are substantively the same as contained in the EPA's proposed amendment to 40 CFR part 192, subpart DL However, reclamation olan covers a broader range-I of activities than required in EPA's (radon) tailinas closure olan.

Reclamation of the tailings in accordance with appendix A to part 40 includes' l

activities also occurring after the end of operation that are beyond those l

involved in the control of radon releases, such'as groundwater remediation.

j Thus, it is appropriate and efficient for planning;if these activities are addressed in a single document.

(The proposed rule would also allow this reclamation plan to be incorporated into the closure plan,_ which inclu' des' l

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other activities associated with decommissioning of the mill.)-~A definition of final radon barrier is added to facilitate the drafting of clear regulatory text and to eliminate any embiguity with respect to compliance with the 2

20 pCi/m s " flux standard" after completion of the final earthen barrier and.

not as a result of any temporary conditions or interim measures. This definition excludes the erosion protection features which were not a subject-l of EPA's proposed rule.

.l 1

Factors beyond the control of the licensee would be defined as factors

-I proximately causing delay in meeting the schedule in the applicable reclamation plan for the timely emplacement of the final radon' barrier notwithstanding the good faith efforts of the licensee to complete the barrier.

Consistent with the further description in the preamble to EPA's proposed rule, these factors may include. but are not limited to:

Physical conditions at the site:

Inclement weather or climatic conditions:

An act of God; An act of war; i

A judicial or administrative order or decision, or change to'the-statutory, regulatory. cr legal requirements applicable to the licensee's facility that would preciude or delay the performance of activities required for compliance:

Labor disturbanc Any. modifications, cessation or delay ordered by State. Federal..or i

l local agencies:

. Delays beyond the time reasonably required in obtaining necessary government permits, licenses. approvals = or consent for activitie's described in 1

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the reclamation plan proposed by the licensee that result from agency failure to take final action after the licensee has made a good faith, timely effort

+

to submit legally sufficient applications, respons'es to requests (including relevant data requested by the agencies). or other information, including.

approval of the reclamation plan: and An act or omission of any third party over whom the licensee has no-

control, r

In the definition of available technoloav, the phrase "and provided there is reasonable progress toward emplacement of a permanent radon barrier" f

is not included as it seems inappropriate within the definition and the concept is incorporated into the standard itself, i.e.. Criterion 6A.

i The definitions for aLexceditiousiv as oracticable considerina-technoloaical feasibility and reelemation olan have been specifically identified as applying to only Criterion 6A to. prevent any potential misapplication.

This has not been done in the case of the other definitions because either the terms are not used elsewhere in appendix A or are used consistently with the definitions proposed.

The proposed rule would go beyond' EPA's proposed rule by including the-

. erosion protection barriers in activities to be completed as expeditious'y-as practicable considering technological feasibility. 'However, the proposed rule-would not require that enforceable dates.be establ4hed as 'a condition of j

license for completion of erosion. protection.

(The key. reclamation activities i

for which enforceable dates are to be established are the same as in EPN s-proposed rule.) The reason for this difference is so that NRC can assureithat j

i erosion protection is completed before'the barrier could degrade significantly 1

while allowing.more flexibility in this regard than for thef" key reclamation 20

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' Tr milestone activities." Allowing significant degradation of the cover before f

completion of other aspects of the design could violate the design basis.

As a result of the MOU, most affected licensees (those facilities that a

were non-operational at the time of the MOU) have voluntarily submitted reclamation plans which include proposed dates for attainment of key reclamation milestones.

(Planning for reclamation activities with Commission approval is required by existing regulations.) The process of approving-those.

reclamation plans, at least those portions dealing with control of radon

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emissions. and amending the licenses to make the dates for completion of key reclamation milestone activities a condition of license is nearly complete.

This process is expected to be completed before it becomes mandatory through issuance of a final rule. These impoundments are in the process of being.

f reclaimed with varying degrees of completion.

Other affected NRC licensees are one whose impoundment has ceased operation since the MOU and.who:is in the process of preparing a reclamation plan and four with operational impoundments f

who will be affected at the time the impoundments cease to be operational.

6 Criterion 6A. paragraph (2) would specify the circumstances under which i

the NRC will extend the time allowed for completion of key milestone activities once enforceable dates have been established. _An opportunity for.

l public participation would be provided in a decision to extend the time'.

~

allowed.

The Commission may approve an extension of the schedule for meeting-I 2

milestones if it is demonstrated that radon emissions do not exceed 20, pC1/m s d

averaged over the entire impoundment.

The intent of this provision..is that.

j if the radonL release. rates are as low as required after closure, th'ere is no:

need for complex justifications for delaying completion _of reclamation:

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however, the Commission may not necessarily extend milestones 1 indefinitely on j

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this basis alone.

In addition. the Commission may approve an extension of. the final compliance date for completion of the final radon barrier based upon cost. if the Commission finds that the licensee is making good faith efforts to emplace the final radon barrier, that the delay is consistent with the definition of available technoloav, and that the radon releases caused by the delay will not result in a significant incremental risk to the public health.

If the basis for approving the delay is that the radon levels do not. exceed 2

20 pCi/m s. verification of radon levels will be required annually.

Paragraph (3) of Criterion 64 would allow for the continued acceptance

{

of uranium byproduct material or such materials that are similar-in physical.

chemical, and radiological characteristics to the uranium mill tailings and associated wastes in the pile or impoundment, from other sources. for disposal into a portion of the impoundment after the end of operation but dur_ing closure activities. This authorization will also be made_ only.after. providing.

an opportunity for public participation.. This paragraph is intended to conform with proposed 40'CFR 192.32(a)(3)(111).

"During closure activities"

'l could include the period after emplacement of the final radon barrier.

In this circumstance, the Commission may except completion of reclamation activities for a small portion of the impoundment from the deadlines established in the license. The proposed rule would specify that the verification requirements for radon releases may still be satisfied in this case, if the Commission finds that the impoundment will continue to achieve a

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2 level of radon releases not exceeding 20 pCi/m s averaged over the entire impoundment.

However, reclamation of the waste disposal area as appropriate',

would be required as expeditiously as practicable once the waste disposal operations cease.

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Also, the Commission understands that EPA's use of the term "in-situ" in this paragraph means on site. that is, the material that may be accepted from other sources would be compared to the tailings or waste already in the pile or impoundment to determine suitability for disposal.

Proposed paragraph (3) l of Criterion 6A does not include this term.

The Commission agrees that it i

must approve the disposal of materials from other sources on a number of bases, including the suitability and compatibility of the materials for disposal in the particular pile or impoundment and has incorporated the alternative wording "already in the pile or impoundment." The term "in-situ" j

has a particular meaning in the uranium industry and to the NRC. referring to a particular method of uranium mining.

The Commission believes that use of the term otherwise in this context could be confusing.

The opportunity for public participation in the decisions made under Criterion 6A would be in keeping with the MOU and the settlement agreement and would be made through a notice in the Federal Register providing an opportunity for public comment on the proposed license amendment. This notice would also provide the opportunity to request an informal hearing in

]

accordance with the Commission's regulations in 10 CFR part 2. subpart L.

Alternatives for Consideration I

The Commission believes that one paragraph in EPA's proposed' rule.

40 CFR 192.32(a)(3)(ii), raises issues of implementation. -. Corresponding requirements to this paragraph are contained in Criterion 6A paragraph (2).

)

The Commission understands EPA's proposal.to provide mutually exclusive bases for approving extensions of milestones. A licensee may request an extension 23 1

i

i of the date for performance of milestones. including an extension of the date '

for emplacement of the final radon barrier. based upon a demonstration that 2

radon levels do not exceed 20 pCi/m s.

In addition, the licensee may request-an extension of the date for completion of the final radon barrier based upon cost if three specified criteria are satisfied.

Paragraph 192.32(a)(3)(ii) i could also be interpreted to require that even in the case of slippage of interim milestones without slippage of the date for completion of the final-radon barrier. the licensee would have to demonstrate that radon emissions'are-2 controlled so as not to exceed 20 pCi/m s during the period of delay. The Commission would prefer more flexibility in this regard in order not to compromise measures needed to provide long term stability.

The point of.the-applicable paragraph in the settlement agreement may have been to allow extensi_on without further justification where radon levels are' already reduced to the level required of the final cover since no impact to the publ.ic would i

result.

Nonetheless, the final amendment to 10 CFR part 40, appendix A must conform substantively to the final amendment to 40 CFR part 192. subpart D.

This conforming rule has been drafted essentially consistent with the interpretation inherent in a suggested revision provided to EPA in NRC's comments on EPA's proposal.

(A copy of this letter dated August 11. 1993..is available for inspection in the NRC's Public Document Room.) The final.

l effective amendment to appendix A must conform to the final version of-EPA's revision to 10 CFR part 192. subpart D in any case.

Thus'. the final rule will consider both the comments received on this proposed rule and any changes to

.or clarifications made in EPA's final rule amending subpart D.

24 i

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Finding of No Significant Environmental Impact:

Availability The Commission has determined under the National Environmental Policy Act of 1969, as amended, and the Commission's regulations in subpart A of 10 CFR part 51. that this rule, if adopted, would not be a major Federal l

action significantly affecting the quality of the human environment and therefore an environmental impact statement is not required. This proposed l

i rule would require that enforceable dates be established for certain interim milestones and completion of the final radon barrier on non-operational mill-tailings piles through an approved reclamation plan and that a determination-a' of the radon flux levels be made to verify compliance with the existing design -

standard for the final radon barrier.

It is intended to better assure that j

the final radon barrier is completed in a timely manner and is adequately constructed to comply with the applicable design standard.

Thus, it provides

)

an additional assurance that public health and the environment are adequately i

-protected.

Because the proposed rule is not expected to change the basic procedures or construction of the radon barrier, there should be no adverse enyironmental impacts. The environmental assessment and finding cf no i

~

l significant impact on which this determination is based are available for inspectionattheNRCPublicDocumentRoom.2120LStreetNW.(LowerLevell

' I Washington, DC.

Single copies of the environmental assessment and finding of

, i no significant impact are available from Catherine R. Mattsen. U. S. Nuclear.

Regulatory Commission. Washington, DC 20555'. Phone: (301) 492-3638.

j 25 9

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Paperwork Reduction Act Statement This proposed rule amends information collection requirements that are subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501,et seq.). This rule has been submitted to the Office of Management and Budget for review and approval of the paperwork requirements.

Public reporting burden for this collection of information is estimated to average-156 hours per response, including the time for reviewing instructions. searching existing data sources. gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate or any other aspect of this collection of information including suggestions for reducing this burden, to the Information and Records Management Branch (MNBB-7714). U.S. Nuclear Regulatory Commission, Washington DC 20555; and to the Desk Officer. Office of Information and Regulatory Affairs. NE0B-3019 (3150-0020). Office of Management and Budget. Washington. DC 20503.

Regulatory Analysis The Commission has prepared a draft regulatory analysis on this proposed regulation.

The analysis examines the costs and benefits of the alternatives considered by the Commission. The draft analysis-is available for inspection in the NRC Public Document Room. 2120 L Street NW. (Lower Level) Washington; DC.

Single copies of the analysis may be obtained from Catherine R. Mattsen..

U.S. Nuclear Regulatory Commission. Washington DC 20555.' (301) 492-3638; 26

ia.;

R

^

The Commission requests public comment on'the draft analysis.

Comments on the draft analysis may be submitted to the NRC as' indicated under the:

ADDRESSES heading.

Regulatory Flexibility Certification In accordance with the' Regulatory Flexibility Act of 1980 (5 U.S.C.

605(b)). the Commission certifies that this rule will not, if promulgated.

have a significant economic impact on a substantial number of. small' entities.

There are only 19 NRC uranium mill licensees. Almost all of'these mills are owned by large corporations..

Although a few of the mills are partly-owned by companies that might qualify as small businesses under the Small Business ~

Administration size standards, the Regulatory Flexibility Act incorporates' the definition of small business presented in the Small Business Act.

Under this

. definition, a small business is one that is independent _ly owned and operated and is not dominant in its' field.

Because these. mills are not independently owned, they do not quali fy as small entities.

List.of Subjects in 10 CFR part 40 Criminal penalties. Government contracts. Hazardous materials-transportation. Nuclear materials.' Reporting and recordkeeping requirements..

Source material, and Uranium.-

27

9 For the reasons set out in the preamble and under the authority of--the i

Atomic Energy Act of 1954. as amended, the Energy Reorganization Act of 1974,

~

as amended, and 5 U.S.C. 553 the NRC is proposing to adopt the following.

amendments to 10 CFR part 40.

PART 40 - LICENSING OF SOURCE MATERIAL 1.

The authority citation for part 40 continues to read as follows:

AUTHORITY: Secs. 62. 63. 64. 65. 81, 161. 182. 183.~ 186. 68 Stat. 932.

933. 935. 948. 953. 954. 955, as amended, secs. 11e(2). 83. 84. Pub. L.95-604. 92 Stat. 3033. as amended. 3039. sec. 234, 83 Stat. 444, as amended-(42 U.S.C. 2014(e)(2). 2092. 2093. 2094. 2095. 2111, 2113. 2114. 2201. 2232. 2233.

2236, 2282); sec. 274. Pub. L.86-373. 73 Stat. 688 (42 U.S.C.-2021); secs. 201. as amended. 202, 206, 88 Stat. 1242. as amended. 1244. 1246 (42 U-S.C-.

5841. 5842, 5846): sec. 275. 92-Stat. 3021-as amended by Pub. L.97-415. 96 Stat. 2067 (42 U.S.C. 2022).

Section 40.7 also issued under Pub. L.95-601. sec.-10. 92 Stat. 2951 I

-(42 U.S.C. 5851). Section 40.31(g) also issued under sec. 122. 68 Stat. 939 q

(42 U.S.C. 2152) Section 40.46 also issued under sec.'184. 68 Stat. 954, as H

amended (42 U.S.C. 2234). Section 40.71 also issued under.sec..187. 68TStat.

955 (42 U.S.C. 2237).

1 2.

In appendix A, add the definitions of as exoeditiously as oracticable'

.2 considerina technolooical feasibility, available technoloav. - factors beyond -

'!:t the control of the licensee. final radon barrier, milestone, ooeration. -and 28

-l L-

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i.

reclamation cla.D to the Introduction in alphabetical order: revise Criterion 6: 'and add Criterion 6A to read as follows:

4 Appendix A to Part 40--Criteria Relating to the Operation of Uranium Mills and the Disposition of Tailings or Wastes Produced by the Extraction.or 1

Concentration of Source Material From Ores Processed Primarily for Their 1

Source Material Content

~

5 Introduction.

As eXDeditiousiv as oracticable considerina technoloaical feasibility.-

^

for the purposes of Criterion 64 means as quickly as possible considering:

the physical characteristics of the tailings and the site: the limits of available technology: the need for consistency with mandatory requirements of

')

other regulatory programs; and factors beyond the control of the licensee; The phrase permits consideration of the cost of compliance only to the extent

,q specifically provided for by use of the term available technoloav.

j 1

Available technoloov means technologies and methods for emplacing a final radon barrier on uranium mill tailings piles or impoundments..This term shall not be construed to include extraordinary measures or techniques that would impose costs that are grossly excessive as measured by practice within the industry (or one that is reasonably analogous).

To determine grossly excessive costs, the relevant baseline against which cost shall be compared.is the cost estimate for tailings impoundment closure contained in the licensee's' approved reclamation plan, but. costs;beyond these: estimates shall not' automatically be considered grossly' excessive.

~29

a.

Factors beyond the control of the licensee means factors proximately

-causing delay in meeting the schedule in the applicable reclamation plan for the timely emplacement of the final radon barrier notwithstanding the good faith efforts of the licensee to complete the barrier.

Final radon barrier means the earthen cover (or approved alternative-cover) over tailings or waste constructed to comply with Criterion 6 of this appendix (excluding erosion protection features).

Milestone means an action or event that is required to occur by an enforceable date.

Doeration means that a uranium or thorium mill tailings pile or impoundment is being used for the continued placement of byproduct material or is in standby status for such placement. A pile or impoundment is.in.

operation from the day that byproduct material is first placed in the pile or impoundment until the day final closure begins.

Reclamation olan, for the purposes of Criterion 6A..means the plan detailing activities to accomplish. reclamation of the tailings or waste

' disposal area in accordance with the technical criteria of this appendix.

The reclamation plan must include a schedule for key reclamation milestone

. activities including as appropriate, but not limited to, wind blown tailings retrieval and placement on the pile interim stabilization (including dewatering or the removal of freestanding. liquids and recontouring).;and final-Lradonibarrier construction. '(Reclamation of tailings must also'be addressed 30

3 3

i in the closure. plan: the detailed reclamation plan may be incorporated into

[

the closure plan.)

}

u i

Criterion 6(1)-In disposing of waste byproduct material. licensees shall i

place an earthen cover (or approved alternative) over tailings or wastes at-i the end of milling operations and shall close the waste disposal area in accordance with a design' which provides reasonable assurance of control of radiological hazards to (i) be effective for 1.000. years. to the extent i

reasonably achievable, and in any case, for at least 200 years, and (ii) i limit releases of radon-222 from uranium byproduct materials, and radon-220 j

i from thorium byproduct materials. to the atmosphere so as not to exceed an 2

2 average release rate of 20 picocuries per square meter per second (pC1/m 3) to the extent practicable throughout the effective design life determined pursuant to (1)(i) of this Criterion.

In computing required tailings cover thicknesses, moisture in soils in excess of amounts found normally in similar soils in similar circumstances may not be considered; Direct gamma exposure from the ta1!1ngs or wastes should be reduced to background levels.

The effects of any thin synthetic layer may not be taken into account in j

' determining the calculated radon exhalation level.

If non-soil materials are 2 In the case of thorium byproduct materials, the standard applies only to design. Monitoring for radon emissions from thorium byproduct m~aterials:

after-installation of an appropriately designed cover is not required.

y This average applies to the entire surface of each disposal. area over a 2

period of at least one year, but a period short.-compared to 100 years. Radon ~

will come' from both byproduct materials and from covering materials.

Radon 4

emissions from covering materials should be estimated as part of developing a closure plan.for each site. The standard, however, applies only_to emissions 1

from byproduct materials to the atmosphere.

31 s

i

=.

~ ~.

R proposed as cover materials it.must be demonstrated that these materials will not crack or degrade by differential settlement. weathering, or other mechanism. over long-term intervals.

(2)-As soon as reasonably achievable after emplacement of the final cover to limit releases of radon-222 from uranium byproduct material -and prior-to placement of erosion protection barriers or other features necessary for I

.long-term control of the tailings, the licensee shall verify through.

appropriate testing and analysis that the design and construction-of the final radon barrier is effective in limiting releases of racon-222 to a' level not

-1 2

exceeding 20 pCi/m s using the procedures described in 40 CFR part 61, appendix B. Method 115. or another method of verification approved by the ;

4 Commission as being as least as effective in demonstrating the effectiveness of the final radon barrier.

(3)-When phased emplacement of the final radon barrier is included in the applicable reclamation plan, the verification of radon-222 release rates-required in paragraph (2) of this criterion must be conducted for each portion l

of the pile or impoundment as the final radon barrier for that portion is emplaced.

(4)-Within ninety days of the completion of.the required verification _ in I

paragraphs (2) and (3) of this criterion. the uranium mill licensee shall report to the Commission the results of the testing and analysis detailing the actions taken to ve-ify-that levels of release of radon-222 do not exceed 2

20 pCi/m s.

The licensee shall maintain records until' termination of the license documenting the source of input parameters including.the results of

.all measurements on_which they are based, the calculations and/or analytical methods used to derive values for input parameters, and the procedure 'used to 32 P

s 4

I determine compliance.

These records shall be kept in a form suitable for i

transfer to the custodial' agency at the time of transfer of the site to DOE or a State for long-term care if requested.

(5)-Near surface cover materials (i.e.. within the top three meters) may 3

not include waste or rock that contains elevated levels of radium: soils used for near surface cover must be essentially the same, as far as radioactivity is concerned, as that of surrounding surface soils.

This is to ensure that surface radon exhalation is not significantly above background because of the cover material itself.

I (6)-The design requirements in this criterion for longevity and control of radon releases apply to any portion of a licensed and/or disposal site unless such portion contains a concentration of radium in land, averaged over 1

- areas of 100 square meters, which, as a result of byproduct material, does-not.

~ )

exceed the background level by more than: (i) 5 picocuries per gram-(pCi/g) of-l radium-226. or, in the case of thorium byproduct material, radium-228.

averaged over the first 15 centimeters (cm) below the surface and (ii) 15 pCi/g of radium-226 or. in the case of thorium byproduct material, radium-228. averaged over 15;cm thick layers more than 15 cm below the surface.

(7)-The licensee shall also address the nonradiological hazards

. associated with the wastes in planning and implementing closure. The licensee shall ensure that disposal areas are closed in a manner that minimizes the f

need for further maintenance.

To the extent necessary to prevent threats to.

1 human health and the environment, the licensee shall control. minimize,.or

]

eliminate post-closure escape of nonradiol.ogical hazardous constituents, leachate, contaminated rainwater. or waste decomposition products to-the ground or surface waters or'to the atmosphere.

e 1

33 4

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Criterion 6A '(1)-For impoundments containing uranium byproduct materials, actions required to achieve compliance with Criterion 6 must be

[

completed as expeditiously as practicable considering technological feasibility after the pile or impoundment ceases operation.

These controls must be carried out in accordance with a written. Commission-approved reclamation plan.

Deadlines for completion of the final radon' barrier and the following key interim reclamation milestone activities, if applicable, must be.

established as a condition of the individual license: windblown tailings retrieval and placement on the pile, interim stabilization dewatering, and recontcuring.

(2)-The Commission may approve a licensee's request to extend the time for performance of milestones if, after providing an opportunity for public-participation, the Commission finds that the licensee has adequately h

demonstrated in the manner required in paragraph (2) of Criterion 6 thdt 2

releases of radon-222 do not exceed an average of 20 pCi/m s.

If the delay is 2

approved on the basis that the radon releases do not exceed 20 pCi/m s. a verification of radon levels, as required by paragraph (2) of Criterion 6.

must be made annually during the period of delay.

In addition, once the Commission has established the date in the reclamation plan for the milestone for completion of the final radon barrier, the Commission may extend that date..

~

based on cost if, after providing an opportunity for public participation, the-Commission finds that the licensee is making good faith efforts to emplace the final radon barrier..the delay is consistent with the definition.of available-technoloav and the radon releases caused byf the delay will not result in a significant incremental risk to the public health, i

34 i

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e (3)-The Commission may authorize by license amendment, upon licensee request, a portion of the impoundment to accept uranium byproduct material or such materials that are similar in physical. chemical, and radiological characteristics to the uranium mill tailings and associated wastes already in the pile or impoundment, from other sources, during the closure process. This authorization may not be made if it results in a delay or impediment to emplacement of the final radon barrier over the remainder of the impoundment' in a manner that will achieve levels of radon-222 releases not exceeding 2

20 pCi/m s averaged over the entire impoundment.

Authorization to remain accessible will only be made after providing opportunity for public participation.

The verification required in paragraph (2) of Criterion 6 may be completed with a portion of the impoundment being used for further. disposal.

if the Commission makes a final finding that the impoundment will continue to 2

achieve a. level of radon-222 releases not exceeding 20 pCi/m s averaged over the entire impoundment.

Reclamation of the disposal area.as appropriate, t

must be completed as expeditiously as practicable after disposal operations l.

cease in accordance with paragraph (1).of this Criterion.

)

.l Dated at Rockville. Maryland, this day of 1993-For the Nuclear Regulatory Commission.

Samuel J. ChiIk.

Secretary of the Commission.

35 l

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[7590-01]

NUCLEAR REGULATORY COMMISSION Documents Containing Reporting or Recordkeeping Requirements; Office of Management and Budget (0MB) Review P

AGENCY:

Nuclear Regulatory Commission (NRC).

ACTION:

Notice of the OMB review of information collection.

SUMMARY

The Nuclear Regulatory Commission has recently submitted to OMB for review the following proposal for collection of information under the provisions of the Paperwork Reduction Act of 1980 (44 3

U.S.C. Chapter 35).

1.

Type of submission, new, revision, or extension:

Revision.

2.

The title of the information collection: Appendix A of 10 CFR Part 40, Uranium Hill Tailings Regulations; Conforming NRC Requirements to EPA Standards.

3.

The form number if applicable: Not applicable.

4.

Hoa often is the collection required: On occasion.

t

o 5.

Who will be required or asked to report:

Non-operational uranium mill licensees.

4 6.

An estimate of the number of responses annually:

Four (from 1

a universe of 19 NRC licensees and 9 Agreement State licensees).

7.

An estimate of the number of hours needed annually to j

complete the requirement or request:

624 hours0.00722 days 0.173 hours 0.00103 weeks 2.37432e-4 months (approximately 560 hours0.00648 days 0.156 hours 9.259259e-4 weeks 2.1308e-4 months of reporting burden and approximately 64 hours7.407407e-4 days 0.0178 hours 1.058201e-4 weeks 2.4352e-5 months of recordkeeping burden).

8.

An indication of whether Section 3504(h), Pub. L.96-511 i

applies: Applicable.

9.

Abstract: NRC is proposing to amend its regulations governing the disposal of uranium mill tailings. These changes would conform existing NRC regulations to the proposed regulations published by the Environmental Protection Agency (EPA) on June 8, 1993. The proposed conforming amendments are intended to clarify the existing j

rules by ensuring timely emplacement of the final radon barrier and by requiring appropriate verification of the radon flux through that barrier. The reporting and recordkeeping requirements contained in the proposed rule 2

1 n

I e

R would be mandatory for non-operational uranium mill licensees.

1 Copies of the submittal may be inspected or obtained for a fee from the NRC Public Document Room, 2120 L Street NW. (Lower Level), Washington, DC.

Comments and questions can be directed by mail to the OMB reviewer:

Tim Hunt Office of Information and Regulatory Affairs (3150-0020)

)

NE0B-3019 Office of Management and Budget Washington, DC 20503 Comments may also be communicated by telephone at (202) 395-3084.

The NRC Clearance Officer is Brenda Jo. Shelton, (301) 492-8132.

Dated at Bethesda, Maryland, this N day of

, 1993.

For the Nuclear Regulatory Commission.

7

.(

l' Gerald F. CPanford, Des)hnated %ior Official for InformaMon Resourca Management.

i 3

2

ML20059F971

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