ML20133G824

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Transmits State Agreements Program Info SP-97-001 Re Fr Notice Announcing That EPA Rescinds Radionuclide Air Emission Standards
ML20133G824
Person / Time
Issue date: 01/03/1997
From: Lohaus P
NRC OFFICE OF STATE PROGRAMS (OSP)
To:
GENERAL, MASSACHUSETTS, COMMONWEALTH OF, OHIO, STATE OF, OKLAHOMA, STATE OF, PENNSYLVANIA, COMMONWEALTH OF
References
SP-97-001, SP-97-1, NUDOCS 9701160177
Download: ML20133G824 (13)
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{{#Wiki_filter:_ _.-.- _ -_..- _ _,_ _ _. _ _. _. _ e n JAN-.3 tyg h ALL AGREEM' NT STATES' E i MASSACHUSETTS, OHIO, OKLAHOMA, PENNSYLVANIA TRANSMITTAL OF STATE AGREEMENTS PROGRAM INFORMATION (SP-97 -001 ) iI Your attention is invited to the attached correspondence which contains: t INCIDENT AND EVENT INFORMATION.............. PROGRAM MANAGEMENT INFORMATION.............. TRAINING COURSE INFORMATION................. TECHNICAL INFORMATION....................... OTH ER INFORM ATION...........................XX EPA RESCINDS RADIONUCLIDE AIR EMISSION STANDARDS Supplementary information: Enclosed for your information is the Federal Realater Notice announcing that the Environmental Protection Agency is rescinding 40 CFR Part 61,S ubpart I, as it applies to i Nuclear Regulatory Commission or Agreement State licensed facilities other than commercial nuclear power reactors. If you have'any questions regarding this correspondence, please contact me or the individual named below. POINT OF CONTACT: Lloyd A. Bolling TELEPHONE: (301) 415 2327 FAX: (301) 415-3502 INTERNET: LAB @NRC. GOV M D BY RfCHARD L BANGART, ( Paul H. Lohaus, Deputy Director Office of State Programs

Enclosure:

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January 3, 1997 ALL AGREEMENT STATES MASSACHUSETTS, OHIO, OKLAHOMA, PENNSYLVANIA TRANSMITTAL OF STATE AGREEMENTS PROGRAM INFORMATION (SP-97-001) Your attention is invited to the attached correspondence which contains: INCIDENT AND EVENT INFORMATION.............. 1 PROGRAM MANAGEMENT INFORMATION.............. l TRAINING COURSE INFORMATION................. TECHNICAL INFORMATION....................... OTHER I N FORMATI O N...........................XX EPA RESCINDS RADIONUCLIDE AIR EMISSION STANDARDS Supplementary Information: i Enclosed for your information is the Federal Reaister Notice announcing that the Environmental Protection Agency is rescinding 40 CFR Part 61, Subpart I, as it applies to Nuclear Regulatory Commission or Agreement State licensed facilities other than commercial nuclear power reactors. i If you have any questions regarding this correspondence, please contact me or the individual named below. POINT OF CONTACT: Lloyd A. Bolling 1 TELEPHONE: (301) 415 2327 FAX: (301) 415-3502 INTERNET: LAB @NRC. GOV 0 i lc M (Et At h i a Paul H. Lohaus, Deputy Direct Office of State Programs

Enclosure:

As stated ~ m

(...-_._-. i I i Monday December 30,1996 { 1 l l l l S i i Part VI i Environmental j Protection Agency 40 CFR Part 61 National Emissions Standards for { Radionuclide Emissions From Facilities i Licensed by the Nuclear Regulatory l Commission and Federal Facilities not i Covered by Subpart H; Final Rule 4 I i } i

68972 Fed:ral Regist:r / Vol. 61, No. 251/ Monday, Dec:mb:r 30, 1996 / Rults tnd Regulations ENVIRONMENTAL PROTECTION operated by the Department of Energy A. Regulatory History AGENCY are regulated under 40 CFR part 61 B. Clean Air Act Amendments of 1990 subpan H. The Agency notes that C. Reconsideration of Subpart I. 40 CFR Part 61 radionuclide NESHAPs subparts other

11. Rationale for Final Rule to Rescind 40 CFR
  • "61 S I fo RC and (FRL 567M than subpart I continue to apply as g,,.

,L g stated in each regulatfor to the owners A.1992 Proposal to Rescind Sub i fo RIN 2060-AE 39 and operators of uranium mill tailings Licensees Other Than Nuclear National Emissions Standards for piles, e g.,40 CFR part 61 subpart W. Reactors wer Radionuclide Emissions From This action does not affect regulation of

1. EPA Study of Emissions From NRC-Facilities Licensed by the Nuclear radionuclides under statutes other than Licensed Facilities Regulatory Commission and Federal the CAA, e.g. Comprehensive
2. Memorandum of Understanding (Motj Facilities not Covered by Subpart H Enviro'unental Response, Compensation Between EPA and NRC and Liability Act of 1980 (42 U.S.C.

$'n$e ' ' Pro a o R gul Progr, posal AGENCY: Environmental Protection 9601). Agency (EPA). Affected categories and entities After the 1992 Proposal ACTION: Final Rule. include:

2. EPA Concerns Regarding Basis for 1

Required Statutory Finding Under Section 112(d)(9)

SUMMARY

EPA is rescinding 40 CFR part Category Examples of facilities
3. NRC Actions Responsive to EPA

) 61, subpart I (subpan 1) as it applies to Concems i Nuclear Regulatory ommission (NRC) N W icensees Urahn bel cycle L EPA s Notice Reopening Comment C or NRC Agreement State licensed (those engaged in Penod facilities other than commercial nuclear the conversion of

5. NRCConstraint tevel for Air Emissions uranium ore to of Radionuclides and NRC Agreement

) power reactors. Subpart I is a National produce electnc State Policies and Procedures Emission Standard for Hazardous Air power, e.g., ura. III. Final Rule to Rescind 40 CFR Part 61. Pollutants (NESHAPs) which was nium traits, fuel fab. Subpart I for NRC and Agreement State published on December 15,1989%nd rication plants). Licensees which limits radionuclide emissions to Facilities licensed to A. EPA Determination Under CAA Section the ambient air from NRC-licensed u ' p ssess nw 1 facilities. As required by section daa ty su of Major Comments and 112(d)(9) cf the Claan Als Act as such as hosprtals Responses to Comments from 1992 medd research' NPRM and Notice Reopening Comment amended in 1990, EPA has determined facilit>es. Period that the NRC regulatory program for radiopharmaceutio-V. Judicial Review licensed facilities other than al manufacturers, VI. Miscellaneous commercial nuclear power reactors laboratories, etc. Pa o R u ion Act protects public health with an ample margin of safety, the same level of This table is not intended to be C. ubmission o ongress and the General protection that would be afforded by exhaustive, but rather provides a guide D. Regulatory Flexibility Analysis continued implementation of subpart I. for readers regarding entitles likely to be E. Unfunded Mandates Reform Act DATES: This rule is effective December affected by this action. This table lists 30,1996. Under section 307(b)(1) of the the types of entities that EPA is now

1. Background

Clean Air Act, judicial review of this aware could potentially be affected by A. Regulatory History final action is available only by filing a this action. Other types of facilities not petition for review in the United States listed in the table could also be On October 31,1989. EPA Court of Appeals for the District of regulated. To determine whether your promulgated National Emission Columbia Circuit no later than February facility is regulated by this action, you Standards for Hazardous Air Pollutants 28,10 7. should carefully examine the (NESHAPs) under Section 112 of the FOR FURTHER INFORMATION CONTACT: Gale applicability criteria in 51.100 of Clean Air Act to control radionuclide Bonanno. Center for Federal Guidance today s rule which amends part 61 of emissions to the ambient air from a and Air Standards and Title 40 of the Code of Federal number of different source categories. Communications, Radiation Protection Regulations. If you have questions 54 FR 51654 (December 15,1989). Division,6602J, Office of Radiation and regarding the applicability of this action Subpart I of 40 CFR part 61 covers two Indoor Air. Environrnental Protection to a particular facility, consult the groups of facilities: (1) Facilities Agency, Washington, DC 20460 (202) Persons listed in the preceding FOR ficensed and regulated by the Nuclear 233 9219, or Eleanor Thornton, at the FURTHER INFORMATION CONTACT section. Replatory Commission (NRC) and Individual Agreement States ("NRC same address (202) 233-9773. Docket licensed facilities"), and (2) federal SUPPLEMENTARY INFORMATION: Docket A 92 50 (cross-referenced with facilities which are not licensed by the R~iEulated Entiti" Dockets A 79-11 & A-92-31)contains the NRC and are not owned or operated by Entities affected by this action include rulemaking record. The docket is the Department of Energy ("non-DOE facilities, other than commercial nuclear available for public ins ction between federal facilities"). The first group is the hours of 8 A.M. an 5:30 P.M., diverse, and includes facilities which ' power generators. licensed by the Nuclear Regulatory Comm,ssion (NRC) Monday through Friday,in room M1500 have received a license to use or possess of Waterside Mall,401 M Street, SW,. nuclear materials such as hospitals, i or an NRC Agreement State. Subpart I continues to apply to federal facihties Washington, DC 20460. A reasonable feb medical research facilities, may be charged for copying. The fax radiopharmaceutical manufacturers, not owned or operated by the number is 202 200-4400. laboratories and industrial facilities, as Department of Energy (DOE) ("non-well as facilities involved in the DOE" federal facilities) and not licensed Table of Contents uranium fuel cycle (the conversion of by the NRC. Facilities owned or I. Background uranium are to electric power) such as

~~ U Federal Register / Vol. 61, No. 251 / M:nday, December 30, 1996 / Rul:s and Regulations 68973 uranium mills and fuel fabrication 1992)(NRDC).The stay for licensees 112(d)(9). Accordingly, EPA undertook plants. EPA estimates there are other than nuclear power reactors an extensive study in order to determine approximately 22,000 such NRC and expired before the NRDC decision could the doses resulting from radionuclide Agreement State licensed facilities in be implemented on November 15,1992, emissions at Iacilities other than nuclear - the United States (this figure includes and subpart I took effect for these power reactors. As discussed in detail in those facilities using only sealed licensees on November 16,1992. EPA section II.A.1, EPA surveyed a randomly sources). subsequently issued a notice confirming ' selected subset of all licensed facilities, The present rulemaking concerns all the effectiveness of subpart I for as well as a group of " targeted" facilities NRC licensed facilities other than limnsees other than nuclear power chosen because of an expectation that commercial nuclear power reactors, reactors. See 59 FR 4228 (January 28, they would have higher air emissions. which are the subject of a separate 1994). See Draft Background Information rulemaking (60 FR 46206, Sept. 5,1995). Non DOE federal facilities not licensed B. Clcon Ajr Act Amendments of M Document,"NESHAPs Rulemaking on Nuclear Regulatory Commission and by the NRC are not affected in any way in 1990. Congress enacted legislation Agreement State Licensees Other Than by the present rulemaking. Subpart I comprehensively amending the CAA, Nuclear Power Reactors" EPA-430-R limits radionuclide emissions from NRC which included a section addressing the 011 (November 1992), Docket Entry A-licensed facilities to the ambient air to issue of regulatory duplication between 92 50, D-B-1. that amount which would cause any EPA and NRC. CAA section 112(d)(9) After evaluating the results ofits member of the public to receive in any provides that,"INjo standard for study, reviewing the then current NRC year an effective dose equivalent (ede) radionuclide emissions from any regulatory program, and considering the no greater than to millirem (mrem), of category or subcategory of facilities likely effect of revisions of the NRC which no more than 3 mrem ede may licensed by the Nuclear Regulatory program which were pending at that be from radiciodine. These limits wem Commission (or an Agreement State) 4 time and of additional measures which established pursuant to an EPA policy required to be pmmulgated under NRC had agreed to adopt pursuant to a for section 112 pollutants first (section 112)if the Administrator announad in the benzene NESHAP (54 determines, by rule, and after Memorandum of 'Jnderstanding (MOU) with EPA (see section II.A.2), EPA FR 38044, September 14,1989), consultation with the Nuclear utilizing the two-step process outlined Regulatory Commission, that the p" Posed to rescind subpart 1 for NRC in the vinyl chloride decision. Natural regulatory program established by the . d Agreement State licensees other i Resources Defense Councilv. EPA,824 Nuclear Regulatory Commisalon than nuclear power reactors on December 1,1992. See 57 FR 56877 F.2d 1146, (D.C. Cir.1987)(Vinyl pursuant to the Atomic Energy Act for (December 1,1992). Chloride), such category or subcategory provides When subpart I was originally an ample margin of safety to protect the D. Rationale for Final Rule to Rescind ) promulgated in December 1989. EPA public health."' Itis provision enables 40 CFR Part 61, Subpart I for NRC and simultaneously granted reconsideration EPA to eliminate duplication of effort Agreement State Licensees of the subpart based on information between EPA and NRC in instances ^ received late in the rulemaking on the where EPA can determine that the NRC for een er n Nu 1 P er subject of duplicative regulation by NRC program provides protection of pubbc Reactors and EPA of NRC licensed facilities and health equivalent to that required by the on the potential negative effects of the CAA. The 1992 proposal to rescind subpart standard on nuclear medicine. EPA I for NRC licensees other than nuclear established a comment period to receive C Rec nsidemtion ofSubpartI power reactors was based on EPA's further information on these subjects. After the adoption of section extensive study of those licensees and and granted a 90-day stay of subpart I 112(d)(9), EPA reviewed the information on commitments made by NRC in an l as permitted by Clean Air Act (CAA) available to the Agency, including the MOU with EPA. See 57 FR 56877 section 307(d)(7)(B),42 U.S.C. 7607 (d) information provided during the (December 1,1992). (7)(B).That stay exphed on March 15 Agency's reconsideration of subpart I, t 1990, and was subsequently extended decide whether it muld determine for 1 EPA Study of Air Emissions From on several occasions. (See 55 FR 10455, particular categories of NRC bcensees NRC Licensed Facilities March 21,1990: 55 FR 29205, July 18, that the NRC regulatory program in order to determine whether NRC 1990; and 55 FR 38057, September 17, protects public health with an ample licensees other than nuclear power 1990). margin of safety. EPA's initial analysis reactors were in compliance with those l EPA later stayed subpart I for NRC focused on two generalissues:(1) emission limits deemed necessary by I and Agreement State licensees other whether the NRC regulatory program in EPA to protect public health, EPA than nuclear power reactors while EPA practice results in sufficiently low doses undertook a comprehensive study to was collecting the additional to protect the public health with an determine the doses that resulted from information necessary to make a ample margin of safety; and (2) whether emissions from these facilities. See Draft determination under section 112(d)(9) of the NRC program is sufficiently Background Information Document, the 1990 CAA Amendments. See 56 FR comprehensive and thorough and

    • NESHAPs Rulemaking on Nuclear 18735 (April 24,1991), and 40 CFR administered in a manner which will Regulatory Commission and Agreement 61.109(a), However, on September 25, continue to protect public health in the State Licensees Other Than Nuclear 1992, the U.S. Court of Appeals for the future.

Power Reactors" EPA-430-R-92-011 DC Circuit issued a decision that EPA After reviewing the available (November 1992), Docket Entry A 92 50, had exceeded its authority by staying information for licensees other than Il-B-1. A major component of this study i subpart I while the Agency was nuclear power reactors, EPA concluded was a survey and analysis of a randomly collecting information needed to make a that it lacked sufficient information selected subset of the approximately determination under section n2(d)(9). concerning actual air emissions from 6,000 NRCand Agreement State Natural Resources Defense Council v.these facilities to make the substantive limnsees using unsealed sources. These I Reilly,976 F.2d 36 (D.C. Cir. determination contemplated by section consist of hospitals, radiopharma-N )

68074 Fed:ral Regiar / Vol. 61, NO. 251/ Monday, Dec:mber 30, 1996 / Rules rnd Regulations mtnufacturers and distributors, and rare earth producers, waste incinerators, Reasonably Achievable"(ALARA) A 1:baratories for which the doses and low level waste facilities, and large requirements for NRC licensees other st other emissions data were not well university hospitals); (b) facilities with than nuclear power reactors. This MOU A characterized. In order to gather the potential for large emissions which were was published on December 22,1992* at necessary information EPA sent a letter more adequately characterized in 57 FR 60778. c under the authority of section 114 of the brevious assessments (these included Although the NRC regulatory p ogram el cycle facilities such as uranium included mandatory dose limits that d CAA to the selected facilities requiring th:m to submit specific information mills, fuel fabrication plants, UF6 were higher than those established by p concerning their emissions and conversion plants); (c) atypical activities subpart 1. EPA's study demonstrated c proximity to the exposed population. for which no formsl evaluations had that the actual operation of the existing k Doses were then determined by EPA been made (these included activities NRC program had resulted in lower e using the COMPLY computer program such as depleted uranium weapons doses to the public than those which c which was specified in subpart I for testing). would be allowed under subpart L The ditermining compliance with the For facihtles in sub-group (a), the data steps established by the MOU reflected st ndard. EPA also investigated a group needed to characterize the emissions an expectation by EPA that new of " targeted" facilities selected for their and doses were obtained from existing mandatory ALARA requirements would s potential to cause high doses. NRC docket information, supplemented operate to constrain future increases in i EPA obtained OfSce of Management as necessary with requests for missing radionuclide emissions by NRC t and Budget approval to send data under authority of CAA section licensees which might otherwise be qusstionnaires to as many as 670 of the 114. The results of the previous permissible under the NRC pNOU. am. approximately 6,000 facilities, assessments for facilities in sub-group Under the provisions of the requesting release rates and the other (b) were summarized and updated to NRC agreed to develop and issue a necessary paraueters. Since facilities include more recent information. For regulatory guide on the design and handling only sealed sources do not the third sub-group, EPA reviewed the implementation of a radiation present the potential for airborne activity in question to ascertain the protection program to ensure that doses emissions, they had been exempted potential for significant airborne resulting from effluents from licensed from the NESHAP and were also emissions, and evaluated the doses for facilities would remain ALARA. See excluded from analysis in the EPA thase activities found to involve section II.B.2 below. NRC agreed that study. Because EPA could not potentially significant emissions. the guide would describe the types of tccurately determine in advance After evaluating both the randomly administrative programs and objectives whether a given NRC or Agreement surveyed 367 facilities and the which would be considered acceptable State licensee handled only sealed specifically targeted facilities using the in satisfying the requirements of 10 CFR sources and would therefore be COMPLY computer program, EPA 20.1101(b), and establish a s ific excluded from the analysis, the Agency determined that the highest estimated design goal of to mrem /yr ebo the over sampled in order to obtain the dose received by any member of the maximally exposed individual for required number of responses. public from airborne emissions of radionuclide air emissions from affected A sample of at least 300 facilities was radionuclides from any facility was 8.0 NRC and Agreement State licensees. See needed in order to be 95 percent mrem /yr ede. Thus, none of the NRC Regulatery Guide 8.37, "ALARA confident that EPA could establish a facilities evaluated appeared to cause a Levels for EfDuents from Materials dose level below which the doses dose exceeding the levels established by Facilities." July 1993, Docket Entry caused by air emissions from 99 percent the Adtninistrator in the radionuclides A-92-50, II-F-4' of the facilities lie. Over 600 letters were NESHAPs. The median dose for the sent to a random subset of NRC or population is 0.00069 mrem /yr. See B. Events Subsequent to the 1992 Agreement State licensees. Responses Draft Background Information Proposal wsre submitted by all but three facilities Document. "NESHAPs Rulemaking on

1. Changes to NRC Regulatory Program and 367 of the responses were Nuclear Regulatory Licensees Other dr,termined to be from facilities using Than Nuclear Power Reactors" EPA After the 1992 Proposal unsealed sources.

430-R-92-011 (November 1992) Docket After EPA published its 1992 proposal The COMPLY computer program was Entry A-92-50,II-B-1 at 4-11. When to rescind subpart I, major revisions to used to estimate doses to the most the results of the survey were NRC's regulations at 10 CFR Part 20 exposed individuals located near the statistically extrapolated to the entire became effective. NRC's revised rule facilities. The National Oceanic and population of NRC or Agreement State (effective January 1994) implements Atmospheric Administration's data base licensees, EPA concluded that 1987 Presidential guidance on was used for meteorological data for the emissions from virtually all of the occupational radiation protection and sites. Many facilities were contacted to facilities were expected to be below the the recommendations of scientific obtain clarification or site-specific limits established by EPA. After organizations to establish risk-based information. The dose to the nearest evaluating the results of the study, EPA limits and a system of dose limitation in resident to each facility was calculated concluded that current emissions by accordance with the guidance published from the facility-specihc information NRC and Agreement State licensees ty the Intemational Commission on taken from the questionnaire and using other than nuclear power reactors result Radiation Protection (ICRP). In adopting meteorological data from the closest in doses less than the level found by the risk-based methodology, the NRC weather station. EPA to provide an ample margin of re duced the allowable dose limit for A second component of the study was safety to protect the pubIlc health. members of the public from 500 mrem / the targeted facilities, which fellinto yr ede to 100 mrem /yr ede from all three sub groups: (a) facilities

2. Memorandum of Understanding pathways, which is then subject to determined tc have potential for large (MOU) Between EPA and NRC further reduction under the ALARA emissions and which were not fully in an MOU executed on September 4, provisions. Of the 100 mrem /yr ede, characterized in previous evaluations 1992, NRC committed to take several NRC allows only 50 mrem /yr ede by the (txamples included research reactors, actions to implement "As Low As air pathway, according to their Derived

1 Federal Register / Vcl. 61, No. 251/ Monday, Dec:mber 30, 1996 / Rules and Regulations 68975 Air Concentration tables, which is then Agreement State program. Limnses for. letter from NRC Chairman Ivan Selin to subject to further reduction under the ALARA provisions. facilities other than nuclear power EPA Administrator Carol M. Browner, Another significant revision of Part 20 reactors are often administered by July 22,1994. Docket Entrv A-92-50, individual Agreement States rather than codified the ALARA principle, which by NRC in a report entitled " Nuclear IV-D.-74. That correspondence also previously was only general guidance Regulation: Better Criteria and Data noted that new procedures to assure the for NRC licensees other than nuclear Would Hel adequacy and compatibility of power reactors. Alllicensees must now Materials "p Ensure Safety of Nuclear Agreement States were under the GAO found that "NRC development, and indicated that NRC conduct operations in a manner that lacks criteria and data to evaluate the would also propose to require keeps doses to both workers and effectiveness of its two materials members of the public ALARA. This is programs [ agreement and non. Agreement States to adopt the proposed "nonstraint level" rule as a matter of l defined to mean. agreement state)," and that "Foi compatibility, making every reesonable effort to maintain agreement-state programs, NRC does not After reviewing the " constraint level" exposures to radiation as far below the dose have specific criteria or procedures to rule proposed by NRC on July 22,1994, limits in this part as is practica1 consistent determine when to suspend or revoke EPA concluded that the proposed with the purpose for which the licensed an inadequate or incompatible provision permitting licensees to activity is undertaken, taking into account program." GAO/RCED-93-90 Nuclear " justify" emissions in excess of 10 the state of technology, the economics of improvements in relation to state of Materials Regulation at 3 (April 1993). mrem /yr left uncertainty as te whether technology, the economics of improvements in subsequent Congressional testimony NRC or an individual Agreement State in relation te benefits to the public health concerning the GAO findin8s, the NRC might accept or countenance as ALARA Commissioners acknowledged that NRC emissions resulting in a dose exceeding and safaty, and other societa, and criteria and procedures should be 10 mrem / year. As a consequence, EPA za o oYo c$e r nergyand improved, and stated that NRC was was concemed that it would still not be re at to u hcensed matenals in the public interest. developing new criteria to assess the able to determine that future 10 CFR 20.1003. 56 FR 23360,23392 adequacy and compatibility of radionuclide emissions from affected (May 21,1991). individual Agreement State programs, licensees would be consistertly and and new procedures which would predictably at levels resulting in a dose

2. EPA Concerns Regarding Desis for govern suspension and termination of below 10 mrem /yr, or that NRC or an Required Statutory Finding Under Agreement State programs.

Individual Agreement State would be Section 112(d)(9) As contemplated by CAA section able to compel a licensee to reduce Based on the record compiled as part 112(d)(9), EPA and NRC entered into of its proposal to rescind subpart I for consultations intended to resolve these emissions if the to mrem /yr level were exceeded. EPA then advised NRC that NRC licensees other than nuclear power concems. The ALARA program, which EPA did not consider it prudent to reactors. EPA was abic to conclude that nquires NRC licensees to reduce proceed with rescission of subpart I for the vast majority of NRC and Agreement emissions to the extent feasible below NRC licensees other than nuclear power State licensees were in comphance with the mandatory ceiling in 10 CFR Part 20, reactors based on a record which migh the to mrem /yr standard established by was the principal focus of subsequent not adequately support the legal subpart 1. However, after reviewing the discussions between EPA and NRC. In determination required by section language of the final Regulatory Guide these discussions, EPA and NRC 112(d)(9). Docket Entry A-92-50. Issued by NRC pursuant to the discussed various NRC proposals for a IV-C-4. September 4,1992 MOU, EPA rule which would " constrain' concluded that there was no element in emissions from NRC licensees other 3. NRC Actions Responsive to EPA the NRC regulatory program which than nuclear power reactors, either by Concems expressly required or assured that establishing a rebuttable presumption On December 21,1994, after further licensees other than nuclear power that emissions causing a dose exceeding considering the concerns expressed by reactors would maintain air emissions 10 mrem /yr are not ALARA, or by EPA, NRC proposed to EPA a of radionuclides below EPA's 10 mrem / expressly finding that ALARA requires " constraint', rule construing ALARA as licensees to maintain emissions at or requiring each licensee to limit air yr standard. See NRC Regulatory Guide below the 10 mremlyr level. During the emissions to a level res 8.37,"ALARA Levels for Effluents from Materials Facilities," July 1993, Docket course of these discussions, a new no greater than 10 mrem /yr. See letter Entry A-92-50,11-F-4. Thus,it was not concern also emerged as to whether the from NRC Chairman Ivan Selin to EPA possible for the Agency to determine NRC policies on Agreement States Administrator Carol M. Browner, that radionuclide emissions to the which were under development would December 21,1994, Docket Entry A ambient air would consistently and enable NRC to require that a " constraint 50, IV-D-26. Under this proposal, Predictably mmain below the EPA level" be a mandatory element of exceeding the NRC constraint level standard in the future if EPA were to compatibility, See letter from Mary D. would not itself be a violation. but any Pmceed with rescission, or that NRC or Nichols, EPA Asaistant Administrator licensee exceeding the to mrem /yr the individual Agreement States would for Air and Radiation, to NRC Chairman constraint would be required to report be in a position to require a particular Ivan Selin, July 6,1994, Docket Entry the exceedance and to take corrective A-92-50. IV-C-4. measures to prevent a recunence. On bransee who did exceed 10 mrem /yr to On July 22.1994. NRC proposed a March 14,1995, NRC confirmed that it reduce radionuclide emissions. " constraint level" rule which would intended to make the proposed { i Another concern regarding the have required each licensee to develop constraint-rule a matter of Division adequacy of the NRC program to an ALARA program to maintain or Level 2 compatibility, which requires support rescission of subpart I for achieve emissions resulting in a dose at each Agreement State to incorporate in b,censees other than nuclear power or below to mrem /yr or,in the its program provisions at least as mattors arose as part of an investigation attemative, to " Justify" a conclusion stringent as those established by the by the General Accounting Offim (GAO) that emissions resulting in a dose NRC rule. See letter from Robert M. of NRC's administration ofits exceeding 10 mrem /yr are ALARA. See. Bernero, Director of the NRC Office Of i

L 1 68976 Federal Register / Vol. 61, NO. 251 / Monday, December 30, 1996 / Rules and Regulations ,1 Nuclear Material Safety and Safeguards,

5. NRC Constraint Level for Air level is exceeded. This Guide will also I

to Mary D. Nichols, EPA Assistant Emissions of Radionuclides and NRC express the Commission's belief that Administrator for Air and Radiation. Agreement State Policies and March 14,1995, Docket Entry A-92-50, Procedures based on EPA's study and NRC's ongoing licensing and inspection N27. On December 10,1996, Program, the constraint level for doses NRC has also taken steps which address concerns regarding the Commissioners adopted a final to members of the public from air adequacy of criteria and procedures for " constraint" rule modifying the NRC emissions of radionuclides as codified the Agreement State program. NRC radiation protection program codified at at section 20.1101(d)is easily published a draft policy statement 10 CER part 20. 61 FR 65120. The final achievable by all materials licensees. concernmg adequacy and compadbility regulations adopted by NRC establish a In addition, the Commission recently constraint of 10 mrem / total effective approved,in principle, final policy criteria,59 FR 37269 (July 21,1994)' orth dose equivalent (TEDEh for dose to statements entitled " Statement of cnd a draft policy statement setting f members of the public from air Principles and Policy.for the Agreement procedures which permit suspension or emissions of radionuclides from NRC State Program" and " Policy Statement trrmination ofindividual Agreement licensed facilities other than n Adequacy and Compatibility of State programs. 59 FR 40059 (August 5, commercial nuclear wer reactors.10 Agament State Programs",60 FR 1994). In the March 14,1995 letter, NRC CFR section 20.1101 ). A dose 39463 (Augast 2,1995). These assured EPA that the final policy constraint is defined as "a value above documents describe the principles of statement on compatibility criteria which s fled licensee actions are the Agreement State program including would be consistent with the NRC require." 10 CFR section 20.2003, as the roles and responsibilities of NRC proposal to make the NRC " constraint amended. Thus, the final rule codifies a and the States in administering the Livel rule a matter of Division level 2 c m atibility. numerical value,10 mrem /yr TEDE, for program, and outline a general A er reviewing the proposed rule NRC's application ofits ALARA framework for determining which NRC for rarinci les contained in 10 CFR part 20 Program elements and requirements described in the December 21,1994 oactive air emissions from NRC should be implemented by the letter and the additional assurances licensees other than commercial nuclear Agreement States. rovided in the March 14,1995 letter, NRC provided additional information kPA advised NRC that it had concluded [relyr g* * " g hg t EPA regarding the Commission's st i x de that adoption by NRC of the proposals end policies set forth in these letters exceedance must be reported to NRC by au6ority to suspend or terminate the licensee within 30 d s and the Agreement State programs. See letter should be sufficient to resolve the Agency s stated concerns regarding its licensee must also provi e a description fr m Martin Malsch, NRC Deputy Geeral Conse}s Office of Radiation to Ramona Trovato, of the circumstances of the exceedance ability to make the finding required t Director of EPA ort rescission m & CAA Section and describe the corrective steps that and Indoor Air, November 19,1996, supfdl(9). See letter hon EPA ha",xc,e" Docket Entry A-92-50. IV-G-8. As be 11 be 1 " g 112 g3, ,da will ot Administrator Carol M. Browner to NRC discussed above, the Commissioners I Chairman Ivan Selin. March 3L 1995, secdon 2a2203MM 618 at 65121. Docket Entry A-92-50,IV-C--5. In that NRC regulations provide for licensees t approved the final" constraint" rule as a matter of Division 2 compatibility, correspondence, EPA also stated its ,Pm{se e sl, e meaning that Agreement States "w'ill s o j g Intent to publish a notice requesting o%ilters, installation of a new pump, have to include an essentially identical supplementary comment concerning the proposed rule to rescind subpart I for etc.)if appro riate to effectuate a r m re restrictive legally bindin decrease in ose.10 CFR section generic requirement in their regu atory NRC licensees other than nuclear power 20.1101(d): 61 FR at 65123. See also Program. Id.The correspondence notes Afemomndum to Docket A-92-50 from dat in 6e evnt an Agreement State f reactors in conjunction with the publication by NRC ofits proposed adopts a standard which is less strin ent GjB rk Ch constraint rule. than the constraint rule,"NRC woul be ) n 1 n 92-a a o

4. EPA's Notice Reopening the 50, IV-B-1 (analyzing final " constraint" gi to St Comment Period rule).

cl di ba The final constraint rule has been [u l'o or te i lon o he EPA published a notice reopening the pat b$1 Pg Id 8 6 'R t 5 26. Thus, the co res i su p 1.60

0161, (Se tember 28,1995). The Notice Agreement States must address the Agreement State programs are re firmed EPA's proposal to rescind c nstraint rule in their regulations, but conducted by NRC to ensure that those subpart I, described the expected they may adopt more restrictive programs are compatible with NRC's proposed revisions to the NRC program requiremets than the constraint rule.

which would support EPA's rescission, "The Commission plans to revise and regulatory program and adequate to protect the public health. Id. The review and invited additional comment on the finalize draft NRC Regulatory Guide process and criteria for such reviews are sufficiency of the revisions to the NRC 8.37 as Regulatory Guide 4.20 at the contained in NRC's Integrated Materials rogram to support the finding required time ofimplementation of their rule. Performance Evaluation Program by section 112(d)(9).The Agency This Regulatory Guide will outline (IMPEP) issued on September 12,1995, extended the period for submitting me6ods for demonstrating compliance a copy of which is contained in the with the constraint level and the comments in response to the Notice docket for this rulemaking. As noted in until February 22,19%, to allow the elements of the report required to be the correspondence, procedures were submitted in the event the constraint public time to review NRC's proposed provided to the Commissioners on April constraint rule prior to submitting 25,1996, which will be applied by NRC comments to EPA. NRC published the. [,$1,d *d*,$'ji$ if circumstances warrant the future proposed constraint rule on December in eff.cuve h equivalent ten The s two terms suspension or termmation of Agreement 13,1995. 60 FR 63984. ,are equivalent. State programs. Id. The correspondence

Federal Register / Vol. 61, No. 251/ Monday, Decimber 30, 1996 / Rules and Regulations 68977 thus concludes that "the IMPEP, when it promulgated subpart I in 1989, subcategory of NRC or Agreement State tcpther with designation of the and EPA hereby incorporates that licensees presently regulated under constraint rule as category 2 for analysis by reference as part ofits subpart I, EPA construes section compatibility purposes, provide present finding. 112(d)(9) as requiring that EPA l objective criteria to be used in assessing As EPA interprets section 112(d)(9), determine: (1) that emissions from NRC Agreement State regulation of air the Agency may rescind the subpart I licensees (or Agreement State licensees l emissions and would provide a NESHAP as it applies to NRC licensed when authority to regulate the licensees satisfactory legal basis for any NRC facilities other than commercial nuclear has been assumed by the State)in that action required to address deficiencies Power reactors if the Agency (1) category or subcategory will be in Agreement State programs including, consults with NRC, (2) engages in public if necessary, suspension or revocation of notice and comment rulemaking, and (3) consistently and predictably at or below a level resulting in a dose of to mrem / the Agreement State program."Id. of 2 finds that the separate NRC regulatory yr, and (2) that NRC (or the Agreement III. Final Rule to Rescs,ad 40 CFR Part program provides an equivalent level of States) can and will require any 61, Subpart I for NRC and Agreement public health protection (Le., an ample ladividual licensee in that category or State Licensees margin of safety) as would be provided subcategory with emissions that cause a by implementation of subpart I. While a dose exceeding to mrem /yr to reduce A. EPA Determinotion Under CAA rulemaking to rescind a standard the emissions sufficiently that the dose Section 112(d)(9) applicable to NRC licensees may will not exceed 10 mrem /yr. Section 112(d)(9) authorizes EPA to commence rior to incorporation of all EPA has reviously concluded that necessary e ements in the NRC radionucli e emissions to the ambient missio I cen s nder the regulatory program, the elements of the air from NRC and Agreement State CAA provided that EPA determines, by NRC program must be deemed adequate licensees other than nuclear power rule, and after consultation with NRC, by EPA to fully satisfy the statutory reactors are generally well below the that the regulatory scheme established standard at the time EPA takes final level that would result in a dose action. by NRC protects the public health with an ample margin of safety. The Section n2(d){9) does not require exceeding to mrem /yr. EPA experience in administration of subpart I since it legislative history of section 112(d)(9) exact equivalence between the EPA and became effective confirms this provides clear guidance as to what is NRC programs applicable to a particular conclusion. Out of the thousands of category oflicensees before' EPA may meant by "an ample margin of safety to decline to regulate radionuclide air licenseas subject to the standard, only protect the public health" and what 16 facaities reported radionuclide air process the Administrator should follow emissions from that category.This emissions exceeding the EPA standard in making that determination in a construction of section 112(d)(9) was for calendar year 1993 and only one rulemaking proceeding under section expressly affirmed by the Court of facility reported emissions exceeding 112(d)(9). The Conference Report Appeals in its unpublished the EPA standard for calendar year accompanying S.1630 points out that Memorandum opinion denying the 1994. No facilities reported exceeding petition for review of EPA's rescission the subpart I 10 mrem /yr standard for the " ample margin of safety" findin8 of subpart I as applied to nuc!sar power calendar year 1995. See Merrotandum under section 112(d)(9)is the same " ample margin of safety" requirement reactors. Unpublished Opinion, Sierro to Docket A-92-50 from Byron Bunger, that governed the development of Club, et al., v. Environmentol Protection December 18,1996, Docket Entry A Agency, No.95-1562 (D.C. Cir. October 50, fV-B-2 (Appendix to final standards promulgated under section 112 of the CAA prior to its amendment 22,1996) at 4. Section 112(d)(9) requires rulemaking describing EPA's experience in 1990. The conferees also made clear that EPA conclude that implementation implementing Subpart I). Most of the of the NRC program as a whole will reported exceedances were resolved that the process the Administratoris achieve substantive protection of the through EPA approval of appropriate expected to follow in making any such public health equivalent to or better site-specific adjustments to the input determination under section 112(d)(9) is than that which would be achieved by parameters for COMPLY, the computer the process " required under the enforcement of the EPA standard. Thus, code used for calculating doses. The one decision of the U.S. Court of Appeals in if the NRC program as a whole will exceedance not resolved through NRDC v. EPA,824 F.2d 1146 (D.C. Cir. assure that air emissions from all adjustments to the input parameters for 1987)(Vinyl Chloride)." H. Rep. No. affected licensees remain below the EPA COMPLY was satisfactorily resolved by 101-952,101st Cong.,2d Sess. 339 (1990), reprinted in 1 A Legislative standard,the NRC program may be the facility. llistory of the Clean Air Act deemed to provide an ample margin of EPA concludes that the final adoption safety, regardless of whether this results by NRC of the NRC constraint rule and Amendments of1990, at 1789 (1993) imm enforcement by NRC of a single the satisfactory resolution by NRC of (hereinafter " Legislative History numerical standard. prior deficiencies in NRC Agreement CAAA90"). Based on its study of NRC and State policies and procedures resolve all From the language of section Agreement State licensees, EPA has remaining concerns regarding the 112td)(9),it is apparent that where EPA already determined that current air adequacy of the NRC program to has already specifically determined emissions from such licensees cause provide an " ample margin of safety" what level of emissions must be doses which are in compliance with the and support the requisite determination achieved to provide an " ample margin to miem/ of safety," that level is the benchmark However,yr standard in subpart L for rescission under CAA section ) as EPA construes section 112(d)(9). Promulgation of the NRC by which EPA must evaluate the 112(d)(9), EPA must also evaluate the constraint rule assures that radionuclide adequacy of the NRC program. EPA ability of the NRC and Agreement State emissions by the affected licensees will { specifically found when it promulgated progmm to assure that emissions remain be consistently and predictab 40 CFR part 61, subpart 1, that to mrem / below the level required to provide anlevel which would result in a dose yr would provide the requisite " ample " ample margin of safety." Thus,in, exceedmg to mrem /yr, and that NRC margm of safety." EPA conducted a two-deciding whether EPA may decline to can require an individual licensee who i step " ample margin of safety" analysis regulate a particular category or exceeds the to mrem /yr level to take

1 68978 Federal Registir / Vol. 61, NO 251 / Monday, Decimber 30, 1996 / Rules and Regulations corrective actions to reduce emissions. corrective steps taken or planned, and during the comment period for other l By maxing the NAC cc tstraint rule a the date when actions will be complete, rulemakings, e.g., the proposed stays matter of Division level 2 compatibility, A civil penalty is a monetary fine discussed above.The Agency stated at NRC has assured EPA that those considered for Severity levelIII the time of those rulemakings that such liccnsees regulated by individual violations and are normally assessed for comments would be addressed in the Agreement States also will be subject to Severity level I and 11 violations and context of this rulemaking on rescission. th: 10 mrem /yr constraint level and will knowing and conscious violations of the Comments received by the Agency be required to report and cornct any reporting requirements of Section 206 of during the pendency of this rulemaking, exceedances of that level. Finally, the the Energy Reorganization Act. In to8 ether with relevant comments adoption by NRC of policies addition to NOVs and civil penalties, received in other rulemakings, are establishing specific criteria for orders may be used to modify, suspend, addressed in the Response to Comments adequacy and compatibility, and or revoke licenses. Orders may require Docunent which has been placed in the procedures for suspension or additional corrective actions, such as docket for this rulemaking. tsrminatian of Agreement State removing specified individuals from A major concern expressed by j s programs resolves the Agency's licensed activities or requiring commenters relates to the lack of any concerns regarding the ability of NRC to additional controls or outside audits, provision in the Atomic Energy Act act if it determines that an Agreement Persons adversely affected by orders (AEA) equivalent to the broad authority State program is inadequate or that modify, suspend, or revoke a to file citizen suits provided by Clean incompatible. license, or that take other action may Air Act section 304.Commenters EPA is confident that NRC has the request a hearing. asserted that the absence of a citizen capability to enforce the provisions of in addition to the inspection and suit provision applicable to the NRC 1 the constraint rule through its enforcement programs, NRC conducts regulatory program would prevent a inspection and enforcement programs. periodic reviews of the Agreement State determination by EPA that the EPA and According to NRC, NRC's inspection radiation control programs. During NRC regulatory programs are equally i program is based on conducting on-site those reviews, the NRC staff evaluates stringent. While EPA believes that this inspections of each licensee's facility at whether (1) the Agreement State has a difference in the respective enabling frequencies determined partly by the compatible regulatory program, (2) the statutes of the two agencies could be l siza of the operation and the amount of Agreement State is periodically properly considered by EPA as one radioactive materials the licensee is conducting inspections oflicensed factor in deciding whether or not to authorized to possess. Inspection activities involving agreement material exercise its discretion to rescind. EPA frequencies appear to vary from a high to provide reasonable assurance of safe does not believe that this difference of once per year for large licensees to licensee operations and to determine precludes the substantive findin8 once every five years for very small compliance with its regulatory mquired by section 112(d)(9). When licensees. However, EPA understands requirements, and (3) the Agreement Congress adopted section 112(d)(9), l that the majority of licensees authorized State is taking timely enforcement Congress was aware that the CAA to possess any significant amounts of action against licensees, when includes citizen suit authority and that radioactive materials are inspected at necessary, through legal sanctions the AEA has no comparable provisions. frequencies ranging from one to three authorized by state statutes and Despite this difference, Congress clearly years. The Agency also notes that regulations, envisioned that circumstances might be inspection frequencies may be adjusted Based on the above analysis. EPA is such that EPA would make the finding by NRC as needed, and increased for today determining that the NRC required by section 112(d)(9) of the licensees who have been subjected to regulatory program for licensees other CAA. EPA notes that the same argument certain NRC enforcement actions.~ than commercial nuclear power reactors concerning the absence of citizen suit NRC's enforcement program is provides an ample margin of safety to authority was recently rejected by the addressed in the NRC's Enforcement protect the public health under CAA District of Columbia Court of Appeals in Policy, NUREG-1600, " General section 112(d)(9). an unpublished opinion upholding the Statement of Policy and Procedure for NRC Enforcement Actions (60 FR IV. Summary of Major Comments and Agency's rescission of subpart I for 34381, June 30,1995). All violations Responses to Comments From 1992 nuclear power reactors. Unpublished identified through inspections and NPRM and Notice Reopening Comment Opinion, Sierra Club, et of., v. P ulod EnvimnmentalProtection Agency, investigations are subject to civil No.95-1562 (D.C. Cir, October 22,1996). enforcement action and may also be This section briefly describes the "In making today's ample margin of subject to criminal prosecution. After an major comments EPA received in safety determination under section apparent violation is identified, the response to the Agency's rulemaking to 112(d)(9), the Agency considered severity is evaluated in order to rescind subpart I for NRC and whether future emissions from licensees determine the appropriate enforcement Agreement State licensed facilities other will be consistently and predictably at sanction. Severity levels range from than commercial nuclear power or below a level resulting in a dose of LevelI for the most significant reactors. EPA received numerous 10 mrem /yr and whether,in the event violations, to LevelIV for those of more written cornments in response to the a licensee exceeds that level, NRC or an than minor concern. Minor violations December 1,1992, proposal and the Agreement State can and will require ars not subject to formal enforcement September 28,1995, notice inviting the licensee to reduce emissions. In the action. The NRC uses three primary additional comments. The Agency also event that the NRC regulatory program enforcement sanctions: Notices of received comments during public does not assure that licensee emissions Violation, civil penalties, and orders. A hearings conducted on January 14,1993 result in doses at or below 10 mrem / Notice of Violation (NOV) sets forth one and February 29,1996. Additionally, year, any interested person may petition or more violations of a legally binding the Agency received comments on the EPA to initiate a rulemaking to reinstate requirement and normally requires a specific issue of whether to rescind subpart 1. Furthermore, EPA can act on response from the licensee describing subpart I for facilities othu than its own initiative to reconsider the the reasons for the violation, the commercial nuclear power reactors - rescission if new information indicates

i I Federal Reg. / Vcl. 61, NO. 2S1/ M:nday, December 30, 1996 / Rules and Regulations 68979 that the public health is not protected enforceable standard. As discussed adopted by NRC. The commenters are with an ample margin of safety. above, section 112(d)(9) does not require apparently concerned that there will be Some commenters were also exact equivalence between the EPA and concerned about the regulatory NRC regulatory programs before EPA up to a three year gap in regulatory authority of the states and how actions may decline to regulate radionuclide coverage in some individual Agreement such as this rescission, taken pursuant States before a state version of the to section 112(d)(9), might affect the emissions from a particular category or constraint rule can be adopted. EPA i states' authority under the CAA to subcategory of NRC licensees. Rather, understands this hypothetical concern, establish radionuclide air emission section 112(d)(9) requires EPA to but believes that it is misplaced for the standards. This issue was addressed in determine that the NRC regulatory following reason.The general ALARA a July 2,1993, letter from Robert M. program as a whole will protect public requirement is already legally Bernero, Director of the Office of health to the same or greater level as enforceable in every Agreement State. would implementation of subpart 1. The Nuclear Material Safety and Safeguards study conducted by EPA as described Whatever the opinion of any individual to Margo Oge, Director of EPA's Office of Radiation and Indoor Air. Docket above, the Agency's experience in Agreement State in the past as to what implementing subpart I since it became ALARA requires an individual licensee Entry A 92 50,IV-D 21. Mr. Bernero effective in 1992, and NRC's recent to do, the constraint rule constitutes an stated that the NRC Office of General adoption of the constraint rule and authoritative conclusion by NRC that Counsel has examined the CAA, and. Agreement State policies provide ample ALARA consistently requires that relevant portions of the legislative basis for EPA to conclude that public licensee at least achieve emissions no history,"and has concluded that the health will be protected to the same greater than 10 mrem /yr. In light of the passage of the 1990 CAA amendments level as would be achieved through expert determination by NRC that had no effect on the preexisting power continued implementation of subpart 1. licensees can readily achieve levels less i of the States under section 116 (sic) to l establish radionuclide air emission Although the NRC constraint levelis not than to mrem /yr,it would be difficult standards, regardless of any action EPA like the EPA standard in subpart 1,in if not impossible for individual j might take pursuant to section that exceeding the constraint is not itself Agreement States to properly construe 112(d)(9)." EPA concurs with NRC's an actionable violation, the constraint existing ALARA requirements less i levelis a value above which licensees stringently. While EPA does not expect construction. NRC has also stated in the must take actions to reduce emissions. any individaal Agreement State to preamble to the final constraint rule that Thus, EPA may conclude that future accept emissions exceeding to mrem / j "lT)he Commission believes that ICAA doses to members of the public caused year as ALARA, even before adoption of section 112(d)(9) clarifies that EPA's by emissions of radionuclides from this that State's own constraint level, were determination regarding NRC and Agreement State licensees has no effect category of facilities will be predictably this to occur EPA would initiate and consistently at or below to mrem / consultations with NRC concerning the on the existing authority of States to yr and that NRC can and will take action adequacy of that State's program and impose air emission standards that are in the event a facility exceeds the 10 consider takine action to reimpose an more stringent than those of EPA." mrem /yr level, EPA standard if the problem were not i Furthermore, as noted earlier, the Commenters also expressed concem promptly corrected. EPA also notes that Commission's designation of the that the constraint rule does not limit existing radionuclide standards adopted constraint rule as a Division Level 2 doses from radiolodine to the 3 mrem / under State authority are not affected by matter of compatibility allows the yr level of subpart I. Doses resulting today's rescission. Agreement States to set more stringent from emissions of radiolodines were The Agency also received several standards than the NRC ccnstraint rule. specificall considered as part of the comments on the differences in 61 FR 65120,65126 (December 10, EPA stud described in detail above. compliance calculation methodologies 1996). In addition, this issue was The stu demonstrated that no facility between NRC and EPA. The computer extensively discussed by the Senate surveyed emitted a level of radioiodines code used to calculate compliance with during floor debate for the 1990 CAA causing a dose above 1 mrem /yr, and Subpart I, COMPLY, consider,s amendments. Passage of the "Simpson extrapolation of the survey data inhalation, immersion, ingestion, and Amendment"(section 112(d)(9)) failed indicated that no licensed facility was exposure to contaminated ground. on the first vots due to concerns that the expected to have emissions exceeding Commenters question how the NRC amendment somehow affected states' the EPA standard. Based on all of the constfaint level, which only considers rights and the question of state authority information now available concerning inhalation and immersi had to be addressed before the the activities of NRC and Agreement Provide an ample margm,on, couldof ra amendment ultimately succeeded in State licensees, EPA believes that it is Protect the public health. As explained passage. As explained by Senator very unlikely that any licensee who is above, EPA does not believe that section Burdick "Section 112(d)(9) provides for in compliance with the constraint level 112(d)(9) reguires that every program State authority for radionuclide for all radionuclides of to mrem /yr will element in tne NRC prc. gram be exactly i emissions in the same manner and to have radiolodine emissions exceeding equivalent to the corresponding element the same extent as does existing section the pretent EPA standard. Accordingly, in the EPA program. Such 116" of the CAA. which contains the provision that "nothing in this Act shall EPA does not consider the absence of a construction would frustrate the evident separate limit for radioiodines in the Congressional intent to relieve licensees preclude or deny the right of any state NRC program to be a factor which will of duplicative regulation. Rather, or political subdivision thereof to adopt prevent the NRC program from section 112(d)(9) requires only that EPA or enforce any standard or limitation providing an ample margin of safety. conclude that the regulatory programs respecting emissions of air pollutants Some commenters expressed an as a whole will previde the same level

  • * *" April 3,1990 Coagressional additional concerb regarding the of protection of public health. While Record S3798.

adequacy of the constraint rule based on Some commenters object to the EPA the fact that Agreement States have there are differences in the calculation rescission based on the argument that three years in which to adopt the EPA does not expect the differences in methodologies used by EPA and NRC, the NRC constraint rule is not an constraint rule after it has been finally the manner in which doses are

68980 Fed:ral Regist:r / Vol. 61, No. 251/ Monday, December 30, 1996 / Rules and Regulations calculated to lead to significant may be raised as part of any petition for industries, governments or geographic differences in the resultant level of judicial review, regions; or significant adverse effects on protection of public health. While 16 f;cilities reported exceeding the subpart VI, Misce 11aneous competition, employment, investment' productivity, innovation and United I standard for calendar year 1993, that A. Paperwork R-duction Act number decreased significantly with no States firms" ability to compete with facilities reporting exceedances for . mere are no information collection f reign counterparts, calendar year 1995. See Memorandum requirements in this final rule. D. Regulatory flexibility Analysis to Docket A 92 50 from Byron Bunger, B. Executive Order 22866 EPA has determined that it is not December 18,1996. Docket Entry A 50,IV B-2 (Appendix for final Under Executive Order 12866,(58 FR necessary to prepare a regulatory rul: making describing EPA s experience 57735 October 4,1993) thb Agency flexibility analysis in connection with im lementing subpart I). must detennine whether this regulation, this final rule. EPA has also determined If promulgated is "significant" and that this rule will not have a significant that subpart ontro s emisIionYo therefore subject to OMB review and the impact on a substantial number of small NARM[N lly Oc d requirements of the Executive Order. entitles. Today s final action is Accelerator Produced Ra oactive The Order defines "significant dere latory; effectively reducing the story burden on NRC licensees Miterials] that are not sub}ect to NRC' regulatory action" as one that is likely t result in a rule that may: ger than commercial nuclear power licensing. EPA recognizes that emissions of NARM by NRC licensees (1) Have an annual effect on the reactors by rescinding the applicable are not formally subject to NRC economy nf $100 million or more or regulatory requirements. licensure. However, although subpart I adversely affect in a material way the E. Unfunded Mandates Reform Act obs the Section 202 of the Unfunded oh sed?nate$als d A u iy om et on did not adopt subpart I in the first place envimnment, pubfic health or safety, or Mandates Reform Act of1995 based on any concern that emissions of State, local or tribal governments or ( Unfunded Mandates Act ) requires unlicensed radionuclide materials by communities; that the Agency prepare a budgetary NRClicensees would resent any (2) Create a serious inconsistency or impact statement before promulgating a hazard to public healtb. However, the otherwise interfere with an action taken rule that includes a Federal mandate of P anned by another agency; that may result in expenditure by State, l d:finition of public dose in 10 CFR 20.1003 states:"Public dose means the (3) Materially alter the bud etary local, and tribal governments, in 8 dose received by a member of the public impact of entitlements, grants, user fees, aggregate,or by the private sector, of from exposure to radiation and/or or loan programs or the rig, hts and $100 milhon or more in any one year. radioactive material released by a obligations of recipients thereof; or Section 203 requires the Agency to lic:nsee, or to an other source of (4) Raise novel legal or policy issues establish a plan for obtaining input from radiation under tbe control of the arising out of legal mandates, the and informing, educating, and advising licenseee Public dose does not include President's priorities, or the principles any small govemments that may be occupational dose or doses received set forth in the Executive Order, significantly or uniquely affected by the from background radiation, from any This action is a significant regulatory le. mtdical administration the individual action as that term is defined in Under section 205 of the Unfunded has received, or from voluntary Executive Order 12866, since it raises Mandates Act, the Agency must identify i padicipation in medical research novel legal or policy issues. Thus, EPA and consider a reasonable number of programs." The section on "any other has determined that rescinding subpart regulatory alternatives before source of radiation under the control of I as it applies to facilities licensed by Promulgating a rule for which a the licensee" suggests that NRC the NRC or NRC Agreement States budgetary impact statement must be licensees are required to protect the which are not engaged in the generation Prepared. The Agency must select from i public from most NARM co-mingled of commercial nuclear power is a those alternatives the least costly, most with their licensed material, but not "significant regulatory action" under cost-effective, or least. burdensome b:ckground radiation." Moreover,in a the terms of Executive Order 12866 due alternative that achieves the objectives lett:r to EPA, NRC stated that such to the presence of novel policy issues of the rule, unless the Agency explains smissions already are controlled and and is therefore subject to OMB review, why this alternative is not selected or the selection of this alternative is will continue to be controlled to levels which protect the public with an ample C. Submission to Congress and the inconsistent with law. A"OU" "8 /IN' margin of safety. See Docket Entry A-92 The Agency has not prepared a 50 IV-D-21. NRC explained that "At Under 5 U.S.C. 801(a)(1)(A) as added budgetary impact statement or NRC licensed facilities, as a practical by the Small Business Regulatory specifically addressed the selection of matter, licensees will control NARM Enforcement Fairness Act of 1996 the least costly, most cost-effective, or emissions as if they were byproduct (SBREFA), EPA submitted a report least burdensome alternative because material emissions."Id. at p. 2 containing this rule and other required this final rule is estimated to result in information to the U.S. Senate, the U.S. expenditures by State, local, and tribal V. Judicial Review House of Representatives and the governments or the private sector of less Any petition for judicial review of the Comptroller General of the General than $100 million in any one year. final rule must be filed in the United Accounting Office prior to publication Because small governments will not be States Court of Appeals for the District of the rule in today's Federal Register. significantly or uniquely affected by this of Columbia on or before February 28, This rule is not " major" as defined by rule, the Agency is not required to 1997. Only an objection to this rule 5 U.S.C. 804(2) because it will not result develop a plan with regard to small which was raised with reasonable in an annual effect on the economy of governments. As discussed in the specificity during the period for public 3100 million or more; there is no major preamble, the finc.l rule has the effect of comment (including public hearings) increase in costs or prices to consumers, reducing overall regulatory burdens on

d Federal Regist:r / Vol. 61. NO. 251 / Monday, December30, 1996 / Rules and Regulations 68981 NRC licensed facilities other than Authority:42 U.S.C. 7401,7412,7414 commercial nuclear power reactors. 7416.7601. except that this subpart does not apply to disposal at facilities regulated under List ofSubjects in 40 CFR Part 61

2. Part 61is amended by revising the 40 CFR paJt 191, subpart B, or to any Environmental protection Air heading for subpart I and b pollution control, Benzene Hazardous 5 61.100 to read as follows:y revising uranium mill tailings pile after it has substances, Radionuclides. Radon, been disposed of under 40 CFR part 192, Vinyl Chloride.

Subpart l-National Emission or to low energy accelerators. Dated: December 20.1996. Standards for Radionuclide Emissions $ 61.101 [ Amended) From Federal Facilities Other Than Carol M. Browner, Nuclear Regulatory Commission

3. Section 61.101 is amended by Administrator.

Licensees and Not Covered by Subpart removing paragraphs (a) and (e) and redesignating paragraphs (b), (c). (d) and . Part 61 of chapter I of title 40 of the H Code of Federal Regulations is amended (f) as (a), (b), (c), and (d) respectively. as follows: $61.100 ApplicablHty. $ 61.107 [ Amended] The provisions of this subpart apply PART 61-{ AMENDED] to ac a ed by any

4. Section 61.107 is amended by s

e r y en o

2. The authority citation for part 61 Department o7 Energy and not licensed removing and reserving paragraph (c)(1).

i continues to read as follows: by the Nuclear Regulatory Commission, IFR Doc. 96-32977 Filed 12-27-96; 8:45 asuno ecos eseo-oo-e t i r I iI ll .l I ,}}

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