ML20238A265

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Recommends Commission Approval of Publication of Final Rulemaking Re U Mill Tailings Regulations Pertaining to Groundwater Protection & Other Issues.Supporting Documentation Encl
ML20238A265
Person / Time
Issue date: 08/11/1987
From: Stello V
NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
To:
References
TASK-RIA, TASK-SE SECY-87-176A, NUDOCS 8709090220
Download: ML20238A265 (118)


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RULEMAKING ISSUE (Affirmation)

August 11, 1987 SECY-87-176,A_

For: The Commissioners From: Victor Stello, Jr.

Executive Director for Operations

Subject:

FINAL RULEMAKING " URANIUM MILL TAILINGS REGULATIONS:

GROUND-WATERPROTECTIONANDOTHERISSUES"(SECY87-176)

Purpose:

To provide a revised Enclosure D, the final rule notice, based on input from staff discussions with EPA.

Background:

Staff provided a draft copy of the final rule notice provided as Enclosure D to SECY 87-176 to EPA's Office of Radiation Programs on July 16, 1987. EPA staff in the Office of Radiation Programs authored the standards in 40 CFR Part 192 that the Commission is conforming to by the rulemaking. NRC staff met with EPA staff on July 22, 1987 to discuss the Office of Radiation Programs' comments and concerns about the final rule notice.

Discussion:

The discussions with the EPA staff resulted in a better understanding of each agency's position on the issues raised by EPA.

Specific ~ editorial changes were developed in the meeting that would satisfy seme of EPA's minor concerns. EPA concerns on other points were discussed sufficiently for NRC staff to be able to make some clarifying changes that should alleviate some other minor points.

Enclosure A is a pen-and-ink version of the changes which the staff supports as clarifying and minor. The changes in Enclosure A do not include all of the informal changes suggested by EPA and do not change the staff's position on

Contact:

Kitty Dragonette, NMSS 42-74763

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j swforeazox4 -

The Commissioners 2 issues covered'in the notice. Some minor OGC edits are also indicated. Enclosure B contains the revised notice with the changes included. Enclosure C contains the minutes.

of the staff meeting with EPA on-this matter. Enclosure D provides an overview of the resolution of the EPA comments discussed in the July 22 meeting.

The Office of the General Counsel has reviewed the changes and has no legal objection.

j i

Recommendation: That the Commission approve publication of the final rule in Enclosure B.  !

g A To , J r.

Executive Director r Operations

Enclosures:

A. Pen-and-ink changes B. Revised FRN C. Minutes of 7/22/87 mtg D. Overview Commissioners' comments or consent should be provided directly  !

to the Office of the Secretary by c.o.b. Thursday, August 27, 1 1987.

I Commission Staff Office comments, if any,'should be submitted to the Commissioners NLT Thursday, August 20, 1987, with an information copy to the Office of the Secretary. If the paper  :

is of such a nature that it requires additional time for k analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments'may be expected.

This paper is tentatively scheduled for affirmation at an Open Meeting during the Week of August 31, 1987. Please refer to the appropriate Weekly Commission Schedule, when published, for a specific date and time.

I DISTRIBUTION:

Commissioners i OGC (H Streetl l OI '

OIA GPA REGIONAL OFFICES EDO

'j OGC (MNBBl ACRS ASLBP  !

ASLAP SECY l

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Pen and Ink Changes i

ENCLOSURE'A A

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~ - - _ - - _ _ _ _ - _ . . . - . . - _ _ _ - - - _ . - _ _ - - _ . _ _ _

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EPA suggested that NRC address the following specific sections i~n i

implementing the listed imposed sections. However, EPA did not make them .J

//b -legally binding requirements on NRC and Agreement States mill licensees and they were .not included in the proposed rule. M4C -

Wil/ ree'ev dese ,,d s m nyblew in n cati c.c m:c p.h s ts,, M o d 1 om, m ,'il l<ti:q s h *s</ in po yl if wth seekon y

Subpart F 0j -b bi< Sney Ae.t repaires es.Q),%:ep,,s,,,*n

)4Ge yg c,. f ,,,,,,. , N 40 CFR 264.91 Required programs.

40 CFR 264.95 Point of compliance.

1

.; 1 l 40 CFR 264.96 Compliance period.  !

40 CFR 264.97 General ground-water monitoring requirements.

40 CFR 264.98 Detection monitoring program.

40 CFR 264.99 Compliance monitoring program.

Subpart G .

40 CFR 264.117 P'ost-closure care and use of property.

Subpart K 40 CFR 264.226 Monitoring and inspection.

40 CFR 264.228 Closure and post-closure care.

The information set out in Table 1 shows the status of the specific l ground-water provisions imposed by EPA regulations and indicates the location of the provision in the changes to NRC's rules. (Note that the clarifying changes to the final rule do not affect the information provided in the table.)

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A staff _ analysis of all the comments received is available =in the

.NRC's Public Document Room. The.following discussion summari::es and respondsto'all comment's of. major or generic significance and. to all-comments that prompted ad'ditional rule changes.

IV. . General Issues.

\

Scope of Rulemaking 1

l Comments.

An environmental group urged NRC not to' defer development /MC of detailed prescriptive RCRA com arable equire'ments under Section 84a'(3) of the AEA. EPA urged NRCQco et x *o n res s.*t.% 6/'A cor, ca rten ce to promptly scnedule a thirA rulemakirig comply with Section.84a(3) if the proposed rule is not expanded. The Department of the Interior suggested that a five year delay in re-examining i

ine need for comparable rulemaking may be too long in view of the rapid changes occurring.in the field and suggested re-examination'in two years.

Industry commenters supported deferring discretionary rulemaking to add additional RCRA requirements.

Arguments in support of expanded scope included the existing and potential ground-water contamination at mill sites, the view that licensees will contest site specific decisions and guidance documents and de. lay implementation, and expectation that'the industry will recover from its depressed state based on Department of Energy (00E) actions. EPA commented that the proposed rule does not fulfill NRC's responsibilities under 1

Section 84a(3):of the AEA. EPA restated the view that NRC should incor- '!

porate those additional provisions of the SWDA rules listed as appropriate  ;

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for NRC to' address ~in EPA's October 7, 1983 final rule notice (see 48 FR 45942). EPA objected to NRC's reliance on policies or license conditions to fulfill SWDA comparability until. additional rulemaking is 4 i'

undertaken because of lack of opportunity for EPA concurrence as required by Section 84a(3). EPA also commented that none of EPA's regulatory decisions concerning other mining or milling wastes have.any relevance to' I NRC's decisions on scope and industry commented that these EPA decisions are relevant and support deferring discretionary rulemaking by NRC. '

Response. The Commission agrees that this conforming action does at fr6 0 fully satisfy Section 84a(3) and that a third round of rulemaking will be /4 .,OGG

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necessary to comply fully. The Commission also agrees that regulation of ground-water contamination from mill tailings impoundments is warranted . .

but considers the real issue to be best use of resources and the level of detail needed to accomplish effective regulation. The Commission considers that the most responsible use of limited resources is to: (1) complete conformance, (2) not duplicate major work EPA is doing, (3) focus on site-i specific implementation and enforcement of the basic standards at existing '

sites, and (4) use the collective NRC and Agreement State implementation experience to provide a more sound basis for future Section 84a(3) rulemaking.

Detailed regulations would not e'liminate the licensee's right to propose alternative implementation requirements under Section 84c and use this means to contest and delay implementation. The Commission agrees with commenters that detailed regulations could provide licensees with a better uriderstanding of what is expected and could reduce the burden on licensees r

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Other.

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-Comments. A State commented that NRC should view the requirement for compatible Agreement State regulation,.to the extent practicable, as giving Agreement States rulemaking latitude when warranted by the economic burden on State agencies. Another State commented that "it should be clear that where States standards are more stringent than Federal standards then the State standards should apply."

l Response.

The first State appears to be suggestirig that'the resource burden of issuing regulations that are compatible with the Commission's should be considered and might be sufficient grounds for the State not to adopt compatible regulations.  !

The Commission does not read Section 274o of the AEA as providing this consideration. Agreement States will need to amend their regulations.

However, as reflected in 10 CFR 150.31(d), States may adopt alternative. generic or site-specific standards with Commission approval and public notice.

The second. State seems to be addressing the  !

i circumstance when NRC and a non-Agreement State are regulating the same constituent under concurrent jurisdiction but have different numerical limits and. legal bases.

NRC would have no authority to implement and '

enforce the more stringent State limit.

NRC has not asserted Federal-preemptionthatwouldprecludetheStatefromimpleaenting/andenfo doe non nho/n,6- %C its ground-water protection requirements at mili sitesr State nanuoruscodn..ws y would be preempted only if in' direct conflict with the Federal standards.

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that the fundamental role of background levels of constituents (1.e. ,

i background is a baseline level that triggers action and background is one of the options for setting protective concentration limits for constituents) in the EPA standards contributes to a view that operationally created zones are not the aquifers of primary concern. This view is further supported by i

the prescriptive requirements EPA has adopted for its own-implementation of the standards. For example, the EPA rules address how to obtain upgradient i values and how to determine statistical increases over background.

For new facilities or impoundments, the situation is clear that the uppermost aquifer of concern is the naturally occurring one.

The Commission does not agree with the commenters that the saturated i zones can be dismissed generically. Decisions will be site specific and l the Commission notes that there may be circumstances where corrective -

) l l actions involving these zones may be required under the provisions of paragraph SD whether or not the zones are defined as aquifers. The Commission is adding a sentence to the EPA definition of aquifer to address when the saturated zones are of sufficient direct concern to be designated as aquifers. The clarification is based on present and poten-tial impacts from the zones and is consistent with EPA's consideration of the system of aquifers at the site in the definition of uppermost aquifer N C-and EPA's " Groundwater Protection Strategy," August 1984 provided by EPA in the agency's comments on the ANPRM. R is ado 00asdh wM Mc "*#k, Licensees would be expected to show that the zones are not'and will not be interconnected to natural aquifers, that the zones do not and will j s

not discharge to surface waters, and that the zone will remain confined to '

land under long-term government ownership and control. For example, ok c.om mebs on

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site specific basis and consider: the prescribed factors in making that.

finding. The suggested language is a simplified paraphrase of'the basic' EPA standard and unnecessary.

The suggested editorial, cross reference is being made.

Paragraph 5B il Paragraph 58 consist's of Paragraphs 5B(1)-(6) and comments were i

l received'on all paragraphs except 5B(4).

Comments. Industry commenters suggested editorial changes to Paragraph 5B(1) to clarify that the focus of protection-is ground water that was naturally present.before operations began. - -

Response.

The editorial comments are in the nature of reinforcement of earlier comments on the definitions of " ground water" and " aquifer."

The clarifying sentences being added to the definitions of these terms.

address the issue of when the seepage from an impoundment would be considered an aquifer for purposes of Appendix A of 10 CFR Part 40 and no I

additional changes are ne ded. @ lJs oWa vshd's a - N e'd# 6 3 don [e a bo cloe.'Cylng %e l*s f .sen

& o4 jus kg 'he p *d # co.plo'uce is 4 /,c.Je.,ce

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.s Paragraph 5B(2) outil'nes the three 'definitional tests from.

40 CFR Part 264 that a constituent must meet in order to qualify as a hazardous constituent for which protective concentration limits must be set.

One commenter emphasized that efficient implementation of- the definitional scheme.in 5B(2) requires serious consideration of the test to-determine n  % e' c<ekr- of $4e Sed o$ c4n hm.'u Ye$ yesnol We b

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The Commission recognizes.that for new impoundments, administrative controls coupled with analyses of the ore can provide an effective means of contr611ing and identifying which constituents are being added to the new impoundment.

NRC is conducting an impoundment liquids sampling program. Results to date confirm the general consensus that many of the listed constituents are not present in the sampled impoundments. NRC's experience may be useful to licensees in developing sampling programs and it will facilitate review of licensee programs and results. NRC's program suggests that-impoundment sampling is a feasible option for a licensee to pursue to help' address which constituents could be expected to be in or derived from existing impoundments.

i Comments.

Two commenters suggested deleting Paragraph 5B(3) which

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incorporates the provision to exclude detected constituents if they will not pose a sigt.ificant present or potential hazard to human health or the environment.  !

One objected to any unregulated pollution by a known hazard-  !

ous material and one read the incorporated language as giving NRC authority exceeding that EPA intended for itself.

The comenter stated that EPA use ofthisexemptionislimitedtoexclusionfrommonitoringonly,hA& (g//}'

knenvironmentalcommenterdisagreedwithNRC'slegalviewthatEPA exceeded its jurisdiction in 40 CFR P1rt 192 by requiring site specific concurrences before any exemption of- constituents is final. Industry commenters supported NRC's view. '

Both positions claimed support in the legislative history and statutory language. One commenter disagreed with the Commission's view that EPA concurrence is a procedural rather than l

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liaits may stem fron a. misconception of.what the Commission understands alternative site specific standards to be. The Commission would expect a licensee, first, to attempt to meet all regulations and standards as N issued.heff::tiv: :trdrd: :h:uld : M y; M .i...J o me goa .If-site-specific circumstances.would make compliance physically impossible ~, f o'n reld'o ,. 4e Q bene f:ht to b e y.'

concurrences detract from the Commission's statutory discretion under Section 84c of the AEA and that the matter is primarily a procedural one.

Nevertheless, the Commission continues to believe that rejection of EPA site specific concurrences is the correct legal position. Therefore, the Commission-is issuing the final rule without any provision for EPA concur-rence in.delisting constituents or alternate concentration limits.

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The EPA secondary standard in 5B(5') is a site-specific choice of three equal options: background, referenced. drinking water.lfmits (see SC), or alternate concentration limits. However, if the ' licensee chooses to pursue the alternate concentration. limit' option, then the' licensee.must expend the

. resources to collect the information and do the analyses to~ support an. y bs 'c alternate concentration.- The licensee may choose'the' N background 6N/

or drinking water options as the more economic or timely. The licensee would not have to address ' health and environmental risks with the<ueY choices because these are conceded to' involve acceptable risks. The

-Commission would be required to independently review the proposed.

alternate limit.and the supporting rationale and agree or set a _different limit based on the information available. -Alternate concentration limits l l

may"be requested without regard to the availability of background values.

The Commission is clarifying this point.

1 1'

l-Comments. Comments were divided on the language in paragraph 5B(6) referring to contaminate levels being as low as reasonably achievable-(ALARA). One commenter objected to ALARA based on a view that ALARA levels might still pose significant hazards. The. provision was considered unnecessary and inappropriately applying ALARA to nonradiological constituents. EPA expressed a contrary view that ALARA was not clearly applied.to the nonradiological constituents as EPA intended. EPA also.

viewed the proposed language as.giving the ALARA finding primacy over the listed factors to be considered.

Response. The issue of how and when ALARA was intended to apply is not completely clear from the preamble to EPA's final rules '(48 FR 45941-2; 31

[iS90-01]

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to the earlier draft which formed the basis for NRC's expectations. The major changes are flowing in part from additional legislation (e.g., 1984 amendments to RCRA and Section 121 of the Superfund Amendments and i 1

Reauthorization Act of 1986) and other Congressional direction (e.g., a. )

I letter to EPA Administrator Lee M. Thomas dated March 4, 1986 from 1 John Dingell and 10 other members of Congress). The changes may make the SWDA guidance impracticable for uranium recovery and inconsistent with the SWDA standards as they stood when EPA incorporated them into 40 CFR j Part192(EPAincorporatedtheSWDAstandardsascopffiedonJanuary1, For the reasons given above, NRC Myuti,wel it f.y need to develop a new 1983).

methodologyclearlyuniquefortailings.psdiscussedearlier,the h Commission is issuing the final rule wit lout any provision for EPA concur-rence in delisting constituents or alte nate concentration limits. . .

1 NoneNe/eu, Ne Com a n wllf cdn N c k c onSh wl Paragraph SC CN N '"l N #" f"b'N

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% OneM A"bn*cmen*lce')N/e c.ded b:n do \

Comment.

by adophon & a uk//g accepg, Senas The only comment on this paragraph, which incorporated the aeyb, p l drinkipg water valu'se imposed with supplemental radioactivity limits added, was a suggestion to develop numerical limits for the constituents of concern at tailings sites.

Response. As the commenter conceded, the proposed action fulfilled the confomance requirement. Development of limits is outside the scope 1

of this action.

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The Commission'does not believe that'the addition of the suggested parameters is technically appropriate. These parameters may only affect .

the potability of ground water and-not qualify as hazardous. Although the list imposed by EPA does not include nitrates, the EPA drinking. water regulations for community water supplies-include ~a limit for. nitrates. <

The Commission considers it prudent to add a' reference to NRC's authority j l

to add constituents on a site specific basis to allow for a more aggres- l

. . J sive approach for contaminants such as nitrates and is doing so. Also, the indicator parameters suggested for addition are likely candidates for NRC attention under the National Environmental Policy Act (NEPA) and many State ground-water programs address these parameters.

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VI. Cecedi :} tier ','ith CIA -

k The action covered in.this notice is undertaken pursuant to sections 84a(2) and 275f(3) of the AEA and reflects requirements already imposed by . .

EPA, and already subject to implementation and: enforcement by NRC under section 275d of the AEA. The Commission considers it inappropriate to j i

consider this rulemaking as requiring EPA concurrence under Section 84a(3) of the AEA. Section 84a(3).of the AEA requires NRC to assure.that by-product material is managed in a manner that conforms to general require-ments established by the Commission, with the concurrence of the Admini-strator, which are, to the maximum extent practicable, at least comparable to requirements applicable to the possession, transfer, and disposal of similar hazardous materid1 regulated by the Administrator under the Solid Waste Disposal Act, as amended." No discretionary general requirements pursuant to Section 84a(3) are being issued.

)

39 i l I$

EPA-520/1-83-008-l'and'2, SepteLber 1983,1'(2)'" Regulatory Impact Analysis of Final' Environmental ~ Standards for Uranium Mill Tailings at Active. Sites,"-

EPA 520/1-83-010', _ September 1983' . and _-(3) Supplementary Information', Interim Final Rulemaking for 40 CFR Parts 122, 260, 264 and 265, " Hazardous Wasta Management System; . Standards Applicable to-Owners and Operators of ' Hazardous Waste Treatment, Storage, and Disposal Facilities; and_ EPA Administered Permit Programs," published July 26, 1982 (47 FR 32274). NRC also prepared an overview of the potential actions that might be required of NRC and.

Agreement state licensees by the EPA' standards entitled, " Summary of the

~

Waste Management Programs at Uranium Recovery Facilities as They Relate to the 40 CFR Part 192 Standards," NUREG/CR-4403.2 l

8. Impacts Presented in Proposed Rule The Commission published an overview and update of the impacts on the environment and uranium and thorium milling industry associated with the ground-water protection standards when they were proposed for incorpora-tion (6'. FR 24703-24709; July 8, 1986). The. discussion also addressed in i

general terms the economic and other factors that would be addressed in a nta y kc puc$ne) ham he. Nahok kejsc4f fnkrm (6(' Scwde e9 y. $, Deph edof Comwce, S~2 g( f,& k,l&/

SP S 9lcid

$ , V A 2 % ( G l, 1 Single c pies of the Final Environmental Impact and the Regulatory Impact l

A lysi 'as a a11ac i e , inay b obtai ed fro tne rogramgManagement Offi Offi of Ra ation rogr , U.S. Env nment Wothetioit4aen ]

s noton DC 2 60: te hone. mber 03) 7-93 A copy of each ~

document is 'also available for inspection and/or copying in NRC's Public Document Room, 1717 H Street NW., Washington, DC 20555, 2 Copies of NUREG/CR-4403 and NUREG 0706 may be purchased through the U.S.

Government Printing Office' by calling' (202) 275-2060;or by writing to the U.S. Government Printing Office P.O. Box 37082, Washington, DC 20013-7082.

Copies may also be purchased from the. National Technical Information Service, U.S. Department of Commerce, 5285 Port Royal Road, Springfield, VA 22161. Copies are available for inspection and/or copying for a fee in the NRC Public Document Room, 1717 H Street NW., Washington,~ DC 20555.

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5B(1)--Uranium and thorium byproduct materials ~must'be. managed to' j conform to the following. secondary. ground-water. protection standardi  ;

Hazardous constituents entering the ground water from~a licensed site must i not exceed ~the specified concentration limits in the uppermost aquifer 'q beyond the point of compliance.during the compliance period. Hazardous  :;

m.  ;

constituents are those constituents identifled by the Commission pursuant.

] ,

-to paragraph SB(2) of this criter. ion. Specified concentration-limits are-  !

I th'ose' limits. established by~ the Commission as indicated in paragraph 5B(5). j i

of this criterion. 'The Commission will also establish'the point of com- l pliance and compliance period on a' site specific: basis:through license l conditions and orders. The objective in selecting the point of' compliance-l l

l is to provide the earliest practicable warning that the impoundment is -

releasing hazardous' constituents to the ground water. The point of com- . .

I pliance must be selected to provide prompt indication of ground-water j i contamination on the hydraulically downgradient edge of the disposal area.

, The Commi:sion shall identify hazardous constituents, establish concentra-

[

a s n a ..s s a ..a u tionlimits,'setthecomplianceperJio,anb:,justthepointofcomplia a

ifneedegwhenthedetedtionmonitoringestablisnedunderCriterion7 g a,.s, .a s n.a ,,_

indicates leakage of hazardous constituents from the disposal' area.. Cad = Iud '

5B(2)--A constituent becomes a hazardous constituent subject to para-graph 5B(5) only when the constituent meets all three of the following i

tests:

(a) The constituent is reasonably expected to be in or derived from the byproduct material in.the disposal area; (b) The constituent has been detected in the ground water in.the uppermost aquifer; and 49 b _ . . _ _ . . __ ._..___.____________.__m__._____.__._________ _

'J (a) The Commission approved b'ackground concentration of that~

constituent in the ground water;-

r 7 ,

(b) The respective value.given in the table in paragraph SC if the constituent is listed in the table land if the background level'of the l constituent is below the value listed;.or- d (c)'An alternate concentration limit' established by the Commission.

.5B(6)--Conceptually, background concentrations.' pose no incremental hazards and the drinking water limits:in paragraph SCLstate-acceptable-hazards but these two options may not.be practically. achievable at'a .j

, . l

~

specific site. . Alternate concentration limits that present no significant hazard may be proposed by licensees for Commission consideration. : Licensee's i must provide the basis for any proposed limits' including consideration.of practicable corrective actions, that limits are as low as reasonably j

. I achievable, and information on the factors the Commission must consider. i l

The Commission will establish a site specific alternate concentration limit I l for a hazardous constituent as provided in paragraph 5B(5) of this criterion if it finds that the constituent will not. pose a substantial present or -

potential hazard to human health or the environment as long as the alternate concentration limit is not exceede establishing alternate concentration limitsandmakingthMfinding# the Commission wi

,. consider whether all practicable corrective actions have been taken @ "=r the proposed limit $

aN as low as reasonably achievabl and the following factors:

l (a) Potential adverse effects on ground-water quality, considering--

(1) -The physical'and chemical characteristics of the waste in l the licensed site including its potential for migration; 4

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l Revised Final Rule Notice 1

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l ENCLOSURE B

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NUCLEAR REGULATORY COMMISSION 10 CFR PART 40 i

Uranium Mill Tailings Regulations: Ground-Water Protection and Other Issues  !

l AGENCY: Nuclear Regulatory Commission. l ACTION: Final rule.

SUMMARY

The Nuclear Regulatory Commission (NRC) is amending its regula-tions governing the disposal of uranium mill tailings. The changes incorporate into existing NRC regulations the ground-water protection regulations published by the Environmental Protection Agency (EPA) for these wastes. This action is being taken to comply with the mandate in the Uranium Mill Tailings Radiation Control Act and the NRC Authorization Act for FY 1983 to conform the NRC' regulations to the standards promul-gated by the EPA.

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EFFECTIVE DATE: (30 days after publication).

ADDRESSES:

Comments received on the advance notice of proposed rulemaking and proposed rule may be examined at the Commission's Public Docket Room, 1717 H Street NW., Washington, DC between 7:30 am and 4:15 pm weekdays.

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FOR FURTHER INFORMATION CONTACT: Robert Fonner, Office of the General Counsel, telephone (3.01) 492-8692, or Kitty S. Dragonette, Division of 1

[7590-013',- .

I Low-Level Waste Management and Decommissioning, IJ.S. Nuclear Regulatory Comtrission, Washington, DC 20555, telephone-(301) 427-4763.

SUPPLEMENTARY INFORMATION:

I. Background.

l II. Description of Proposed Amendments. 1 I

III. Overview of Comments in Response to the Proposed Rule.

IV. General Issues.

V. Comments on Specific Proposed Modifications to Appendix A of 10 CFR Part 40.

l VI. Coordination with EPA. -

VII'. Impact of the Amendments.

l A. Finding of No Significant Environmental Impact.

B. Impacts Presented in Proposed Rule.

VIII. Paperwork Reduction Act Statement. .

l IX. Regulatory Flexibility Certification..

X. List of Subjects in 10 CFR Part 40.

XI. Modifications.

I. Background The Nuclear. Regulatory Commission'(NRC:oriCommission) is issuing additional modifications to its regulations for the purpose of conforming them to generally applicable requirements promulgated by the Environmental Protection Agency (EPA). The' EPA requirements contained in Subparts 0 2

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and-E of 40'CFR Part'192 (48 FRL45926;L0ctober 7, 1983) apply.to the management of uranium and thorium byproduct material' and became effective for NRC and Agreement State. licensees.and license applicants.on December 6,-

f 1983. 1 This action modifies existing regulations;of the Commission to '

incorporate the EPA ground-water protection requirements found.in 40 CFR )

Part.192.. The'affected Commission regulations are contained in Appendix A to 10 CFR Part.40, which was promulgated in final _ form on October 3, 1980 (45 FR 65521) and amended.on Octobe'r 16,.1985 (50 FR-41852) to conform to ]

l .the provisions of.the EPA standards affecting matters ~other than ground-water protection.

EPA. developed and issued its regulations pursuant to Section 275b. of '

the Atomic Energy Act of 1954, as amended (AEA) (42 U.S.C. 2022); section 275b was added by section 206'of Pub. L.-95-604, the Uranium Mill. Tailings Radiation Control Act of 1978 (UMTRCA). These EPA regulations included,-

by cross-reference, certain' regulations issued by EPA under the Solid Waste i Disposal Ac't (SWDA). Under section 18(a) of Pub. L.97-415,'the Nuclear i l

Regulatory Commission Authorization Act for fiscal. years 1982 and 1983, the Commission was' directed to conform its regulations to EPA's with notice I l

and opportunity for public comment. '

The additional action that the Commission'might'take to amend its mill tailings regulations.for ground-water protection was the subject of an advance notice of proposed rulemaking (ANPRM) published for comment on November 26' 1984 (49 FR 46425).

The'NRC issued a notice of proposed. ~

q rulemaking on ground-water protection on July 8, 1986 (51 FR 24697).- I lt

={

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[7590-01]o. ..

. l II. Description of Proposed Amendments The EPA requirements in 40.CFR Part 192 (48 FR 45926) included,(by.

cross-reference, ground-water protection standards in 40.CFR Part 264.

Part 264 was promulgated by the EPA pursilant to authority provided by the Resource Conservation and Recovery Act (RCRA), which amended the SWDA.

Part 264 itself contains references to other EPA rules and a number of-i internal cross references. The proposed mod'ifications were intended to conform the NRC rules to the. provisions of 40 CFR Part 192 not addressed in the earlier conforming action (50 FR 41852; October 16,1985). The following specific sections of 40 CFR Part 264 were proposed for incor- ,

poration in modified text form into Appendix A. (Nota that 40 CFR Part 192 incorporated SWDA rules as codified on January 1, 1983.) EPA imposed these sections in its final standards published October 7, 1983 (48 FR 45942). J i

i Subpart F l

40 CFR 264.92 Ground-water protection standard. '

40 CFR 264.93 Hazardous constituents.

40 CFR 264.94 Concentration. limits.

40 CFR 264.100 Corrective action program.

Subpart G 40 CFR 264.111 Clo'sure performance standard.

Subpart K 40 CFR 264.221 Design and operating requirements for surface impoundments.

4

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-[7590-01').

+

EPA suggested that NRC address the following specific sections <in'

, implementing the listed' imposed' sections. However, EPA did.not make them legally binding-requirements on NRC and Agreement States mill licensees i

and they were not. included-in the proposed rule. ~NRC will review these and other SWDA regulations intensively for their potential application to l-mill tailings disposal in complying with Section 84a(3). This-provision of the Atomic Energy. Act requires the NRC to review the full. suite of SWDA requirements.for comparable hazardous' materials in or' der to ascertain which, if any, should be applied to mill tailings, in addition.to'the j specific SWDA rules' referenced'in 40 CFR Part 192.- These later are sub-ject to conformance pursuant to Sections 84a(2) and 275f(3) of the Atomic.

Energy Act.

Some of the additional matters to be reviewed are found in.

the following EPA rules:  !

Subpart F

]

40 CFR 264.91 Required programs.

40 CFR 264.95 Point of compliance, i

40 CFR 264.96 Compliance period.

40 CFR 264.97 General ground-water monitoring requirements. 'I 40 CFR 264.98 Detection monitoring program.

40 CFR 264.99 Compliance monitoring program.

Subpart G 40 CFR 264.117 Post-closure care and use of property Subpart K -

L 40 CFR 264.226 Monitoring.and inspection, i

40 CFR 2G4.228 Closure and post-closure care.

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[7590-01].

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-The information set out in' Table 1 shows the status of the specific ground-water provisions imposed by EPA regulations ~ and indicates the location of the provision in the changes to NRC's rules. (Note that the 4 clarifying changes to the final rule do not affect the.information i provided in the-table.)

i 1

TABLE 1 i

~ RELATIONSHIP.0F4[CFRAND10CFR PROVISIONS j i

NRC Designation in Appendix A to 10 CFR EPA Designation Subject Part.40

, l SUBPART D'(URANIUM) 40 CFR 192.30 Applicability Introduction 40 CFR 192.31 Definitions and cross- Introduction' references 40 CFR 192.32 Impoundment design SA(1)

(a)(1) (primary ground-water  !

standard)- i, 40 CFR 192.32 Secondary ground-water SB(1) standard (a)(2) 1 (i) Mo and U added Criterion 13 1

i (ii) Radioactivity limits SC (iii) Detection monitoring 7A j.

(iv) ACL conditions Deleted  !

(v) EPA concurrences Deleted.

40 CFR 192.32' (Non ground-water)~ Criterion-8' l (a)(3) and-(4)  !

40 CFRL19232' (b)(1)'and"(2)' Closure standard l Criterion 6

~40 CFR 192.33 Corrective actions 50 o l

40 CFR 192.34 < Effective date i

1 6

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TABLE 1 (Continued)

SUBPART E (THORIUM) 40 CFR 192.40 Applicability Introduction l l

40.CFR 192.41 (a) y Thorium same as uranium- Factored into text 1 (b) (Non ground-water) Criterion.6 (c) Radium 228 same as 226 Factored into text W:

(d) (Non ground-water) -Cr.iterion 8 s

NRC Designation >in.

!- Appendix A to 10 CFR EPA Designation Subject Part 40 s.

40 CFR 192.42 Procedure for alternate Deleted standards 40 CFR 192.43 Effective date REFERENCED REGULATIONS 40 CFR 264.92 Ground-water standard SB(1) 40 CFR 264.93 ,

(a) Hazardous constituents 5B(2)(a)-(c), . Criterion 13 i

and Appendix VIII of 40 CFR 261 (b) Excluding hazardous SB(3) constituents (1)(i)-(fx) Ground water. factors SB(3)(a)(i)-(1x)

(2)(i)-(x) Surface water factors 5B(3)(b)(i)-(x)

(c) Aquifer status 5B(4) 40 CFR 264.94 (a)(1)-(3) Concentration limits SB(5)(a)-(c),SC (b) Alternate concentration SB(6) limits (1)(i)-(ix) Ground-water factors SB(6)(a)(f)-(ix)

(2)(i)-(x) Surface water factors 5B(6)(b)(1)-(x)

(c) Aquifer status 5B(4) 40 CFR 264.100 (a) Corrective action 50 (1)-(4) Procedural Deleted  !

(b) Remove or treat 50 (c) Procedural Deleted (d) Monitoring program 7A i (e) Action to site boundary ~ 50 (1) Procedural Deleted (2) Terminating program SD (f) Terminating program 5D (g) Procedural Deleted (h) Procedural -Deleted 1 .

7 a

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  • gy v TABLE 1.(Continued) '

40 CFR.264.111 Closure standard Criterion 6 (a) & (b) i

' NRC Designation in Appendix A to 10 CFR EPA Designation Subject Part 40

4 REFERENCED REGULATIONS (cont'd) 40 CFR 264.221 i

~(a) Liner designs SA(1)

(1) Liner properties. SA(2)(a)

(2) Liner foundation 5A(2)(b)

" (3) Liner area 5A(2)(c)

, (b) Exemption from 264.221(a) 5A(3)

(1)-(4) Factors in exemption. 5A(3)(a)-(d)

(c) Impoundment overtopping -SA(4)

(d) Dike design 5A(5).

(e) Procedural Deleted J

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  1. 'i

! y9 III. Overview of coments in Response to.'the? Proposed Rule i

.. j 4

l The NRC issued a notice of preposed rulemaking on ground-water v .

' protection for uranium mills:on July 8,.1986 (51 FR'24697). The comment' 1

period on the proposed rule originally expired on September 8,'1986 but-i .

was extended until November 7, 1986c(51 FR 32217; September 10, 1986). , j

)

Twelve;commenters responded with thirteen' sets of? comments.' Respondents- 1 included three environmental or~public interest groups, four. industrial. ;l representatives, three states, the EPA, and the Department.of the Interior. ' )

Comments were offered on both general. issues and the specific i

l  !

changes in the proposed rule and reflected diverse. views. 'The generall a issues included the scope of the rulemaking,:the. EPA standards, implemen- l l tation and enforcement of the standards, and other miscellaneous topics.

Most of the_ general issue comments were restatements of' earlier views on the same issue. No major new issues were raised that had not been aired-in one or more of the previous rulemaking actions associated with NRC's conformance to the EPA standards.

The scope of the proposed rule was~ limited to incorporating require-ments legally imposed by 40 CFR Part 192 into NRC rules. General requirements to address Section'84a(3) of the AEA requirements for .

comparability with EPA requirements for similar materials under SWDA were not proposed. Some commenters urged'NRC to' expand the-scope of the rulemaking and others agreed with NRC's proposed ru.lo. Commenters offered both supportive and opposing comments on the overall strategy reflected by_ I J

the EPA regulations and on specific provisions of those. regulations.  !

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' a Implementation'and. enforcement issues included concern about the dual ~ j c.

regulation resulting'from recent EPA rulemEking in 40 CFR Part 61 on: mill "

operations.

ThepEoposediruleinclude'd changes..to-the' Introduction"and' Criteria' l

i

  • 5,'6, and,7fof Appendix'A and the addition of.new Criterion 13. ' Comments

+ l were offered on each. Comments-addressed-.four of the 14 proposed '

, y 1

l-definitions in the Introduction.:. Industry was concerned about~the- {

x

~

4 consequences of defining.the/ saturated zones'from leaking impoundments as I aquifers. Environmental:commenters urged a point of. compliance closer to. .

l the impoundments.,. Comments on the primary design standard were' extensive j I

and divergent. For example',' environmental groups objected to flexibility for alternatives to synthetic liners and industry opposed Lthe use of; synthetic liners. Comments on the secondary -standard were~also

]

extensive. Industry commented that the focus of the standard is ground

) '

water naturally present before operations began. The provisions dealing.

with how to establish which constituents to monitor were particularly- ..

confusing to commenters. The exclusion of EPA site-specific concurrences 1

on alternate concentration limits and delisting of hazardous constituents was opposed by EPA and environmental groups and supported by industry.

NRC's interpretation of the flexibility afforded by ~Section '84c of the AEA continues to be controversial. Environmental commenters opposed the-option for: alternate: concentrations -and expressed concern overLdelays in implementingscorrective action programs. _Thetonly-area'where consensus-appeared was-that the list of constituents in' proposed Criterion 13-i should be shortened to focupon constituents of concern at mill' tailings- I sites.

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A staff analysis of all the comments received.is available in'the-NRC's Public Document Room. The following discussion summarizes and responds to all comments of major or generic significance ~and to all comments that prompted additional rule changes.

'IV.

General Issues '

l Scope of.Rulemaking Comments. An environmental group urged NRC'not to defer development l of detailed prescriptive RCRA comparable requirements under Section 84a(3) f of the'AEA. EPA urged NRC to promptly schedule a third rulemaking or-other action requiring EPA concurrence to comply with Section 84a(3).if

~

the proposed rule is not expanded. The Department of the Interior-suggested that a five year delay in re-examining the~need for comparable rulemaking may be too long;in view of the rapid changes occurring in .the field and suggested re-examination in two years. Industry commenters supported deferring discretionary rulemaking to add additional' RCRA requirements. '

Arguments in support of expanded scope included the existing and potential ground-water contamination at mill sites, the view that licenseesz will contest site specific decisions and guidance documents and delay implementation, and expectation'that the industry will recover from it s- . .

depressed. state based on Department of Energy (DOE) actions. EPA commented that the proposed rule does not fulfill. NRC's responsibilities' under 1

l Section 84a(3) of the AEA. EPA. restated the view that NRC should incor-porate those additional provisions of the SWDA rules listed as appropriate

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[7590-01),. . .M j.

for NRCitof address in EPA's October 7,1983 final: rule n~otice (see.

48 FR;45942). _EPALobjected.to N'RC's reliancefon policies or. license-conditions'to' fulfill'SWDA comparability.until. additional.rulemaking.is -

3 q

undertaken because-of-lack of. opportunity for
EPA concurrence as'requiredL 1 by Section 84a(3). EPA also comented that fnone of. EPA's' regulatory l
)

1

decisions concerning'other mining or'mi111ng' wastes'have any helevance to 1

)

NRC's' decisions-on scope;'and industry commented that these EPA decisions: '

l a-are relevant and support deferring discretionary: rulemaking by NRC.

Response. .The Commission. agrees.that this conforming ~ action does not-1 fully satisfy Sectio'n 84a(3) and that.a' third roundLof rulemaking will-probably be necessary to comply fully.i .The Comission 'also agrees' that regulation of ground-water contamination.from mill tailings' impoundments:

is warranted but considers the real' issue to be best use of. resources' and the'1evel of detail needed to accomplish effective regulation. The i-Comission considers that the most responsible use of' limited resources. is to: (1) complete conformance, (2) not. duplicate major work' EPA is doing, (3) focus on_ site-specific implementation and enforcement of.the basic l-standards at existing sites, and (4) use the co11ective'NRC.and Agreement

~

-t State implementation experience to prov'ide a more sound basis'forl future ;I Section 84a(3) rulemaking.

Detailed regulations would not. eliminate the licensee's'right to- l H

q propose'alternativesimplementation requirements under Section184c and'uset 1

-this'means to contest-and delay implementation.

The Comission. agrees with comenters that detailed regulations' could provide licensees with a better  !

. understanding.of what is expected and could reduce the burden on licensees 1 l

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to develop alternatiw(. However,,the site specific and technical: problems describedbycommentedemphasizg'thedifficultyofIddressingthesematters in regulations. c'^ "

< t Theviewthatthenonviabilit{y'o the industry is a temporary matter is not reflected in the Secretary %f' Energy's latesDfinding on ef ability

~

or with the State of Wyoming's assessmeht;of the future of the indu~stry q-in that State.- In Se tsry !bhn S. Herrington's.lettersto the PresidentdatedDecember1$,1986,hestatedthat"I.havedeter, mined that for the calendar' year 1985, the domestic uranium mining and milling industry was not viable.A In a November 1986 report, Wyoming stated

...itseemsunlike1%thst;theuraniumminingandmillingindustrywill ever again play a signidcant role in Wyorning's mineral economy. ' The

+ i reserves are here,'buttnaaket and competition factors make the future ,

3 j; -

appearbleak,tosaypaleast." s The additional regulations that EPK;and others" suggested'NRC address are undergoing major re01sion by EPA. "40!CFR 264.98 and 264.99 are two sectionssuggestedforincorporation.idtFNR'"rulestoaddress -

c

% , 4 Section 84a(3) SW9A compaedbtij.ty,; However, a proposed CFA rule (July 24, 1986; 51 FR 2663U would si<jiific.antly change these pr6 visions. They currentlyrequireanalysesofsh40CFRPart261, Appendix.VIIIconstit- .

uents(i.e.,thblistinCriterian13ofthir^rnijnakingwithoutthe 40 CFR 192 additions). In the July 24th nctice, EPA acknowledged major 1

practical and technical problems with.these analyses. An advance notice of proposed rulemaking published by EPA August 20, ISL6 (51 FR 29812) addresses technical difficulties with the prescriptive statistical' test' included in 40 CFR Part 264. This test is included in the regulations U,

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[7590-01],- ,

EPA-indicated NRC should address. The Commission views the-acknowledged' technical difficulties.with these provisions of 40 CFR Part 264 to be sufficient-reason-to delay conformance to them. NRC'should not duplicate the EPA effort by trying to develop _the technical, environmental, and cost / benefit analyses to support similar rulemakings.

Prior to NRC's establishment of " general requirements," NRC can monitor EPA's rulemaking,and consult:on specific issues as necessary.

EPA has issued two notices on regulation of other mining and milling wastes: (1) 51 FR 24496; July 3, 1986 and (2) 51 FR 36233; October 9, 1986.

EPA is correct that these notices have no direct legal bearing on NRC and Agreement State licensees. EPA is addressing how it plans to regulate-mining and milling wastes other than uranium and thorium mill tailings.

Based on technical considerations, however, the' Commission continues to-anticipate that EPA's developments in this area may be relevant to imple-mentation of 40 CFR.192 and to additional requirements that the Commission may establish under Section 84a(3) of the AEA. Common technical aspects apparent from these 1986 notices concern volumes,' impound'ent m size, climate, remote location, deep ground water, and backfitting to existing sites.

When NRC should initiate a third rulemaking is difficult to specify.

For example, EPA hopes to propose regulations for other mining and milling wastes by mid-1988. The timing on EPA rulemakings,on monitoring and statistical tests is uncertain. EPA:may also initiaterother relevant?

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rulemakings. ' Recovery of the industry remains uncertain. .'The'recommen-dation to reassess in two years instead of five has merit. The. Commission will periodically reassess (e.g. ,-about every two years) the question of' when a third rulemaking should be initiated.'

Comments on 40 CFR Part'192 .

Comments. Comments on the basic value, validity, lawfulness, or appropriateness of EPA's regula'tions were explicitly ' not requested.

However, commenters offered comments'on the overall. strategy reflected by the EPA regulations and on specific parts of the regulations imposed. The latter are discussed later under the specific proposed modifications. A public interest group commented that a more clearly. defined and protective purpose is needed based on protection'of-all ground water regardless of-quality with no provisions for any flexibility.

Response. 1 Such a change in strategy would require EPA.to change I 40 CFR Part 192 and referenced regulations and is therefore outside the $

I scope of this action. l l

Implementation and Enforcement

]

Comments. An environmental group urged the NRC to reiterate that 40 CFR 192 is directly in force on NRC and Agreement State licensees'and j

to aggressively enforce those standards. Industry urged more respon-siveness to site specific alternatives proposed by licensees. Industry.

15

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' identified the overlap between recent EPA Clean Air Act work practice?

standards:for mills added to 40 CFR Part 61L(51 FR 34056; September-24, .

.1986) and.NRC's implementation and.enforcementRof~40~CFR Part 192 and-expressed . concern about!NRC's continued ability.to consider. site specific; alternatives.

.r.

I

Response. 'The-Commission is
implementing.and enforcing the EPA-standards"as required by law.;.The language in Section 84c.of-the'AEA was

' incorporated into the Introduction of Appendix A to'10 CFR Part 40. The

.NRC is,thus obligated to consider. site-specific alternatives proposed by.

licensees by law and agency rules. If a. licensee. disagrees with the site-specific decision on the proposed alternative,. agency. procedures provide..-

an avenue for review.

Industry is correct that EPA's Clean Air Act standards in 40:CFR Part 61 require site-specific EPA actions, e.g., EPA ~ approval to construct a new impoundment. The EPA 40 CFR Part 61 standards incorporate'the  :

ground-water protection standards.in 40 CFR 192.32(a); thus,lboth-EPA-and NRC will be implementing and enforcing these standards. .NRC has no. legal basis to challenge this dual regulation. NRCl jurisdictional. arguments rejecting, EPA site specific actions are based on EPA actions under the

(

Atomic. Energy Act and have no applicability'to EPA Clean Air Act actions.

16 .

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.R O590-01]l *j 1

..I Other.

i

l Comments. ~A State commented that-NRC should view the' requirement for:

compatible Agreement State regulation, to the extent practicable, as giving'

~

Agreement States rulemaking latitude when warra'nted by the economic burden on State. agencies.~Another State. commented that "it-should be clear'that' where States standarda are'more.~ stringent than Federal. standards then the-State standards should apply."

Response. The first State appears to be suggesting that the resource s burden of issuing regulations that are compatible with the Commission!s should be considered and might be sufficient grounds for.the State not to 1 adopt compatible regulations. ~

The Commission'does not read Section 274o-of the AEA as providing this consideration. Agreement-States will need to l

amend their regulations. However, as-reflected in'10 CFR 150.31(d), States may adopt alternative generic or site-specific standards with Commission- 'I approval and public notice. The second State seems'to be addressing.the circumstance when NRC and a nor Sgreemeiit State ~are regulating. the same constituent under concurrent jui:sdiction but have different numerical limits and legal bases.

NRC would have no authority to implement and l enforce the more stringent State limit. NRC has not asserted Federal pre-emption that would preclude the State from implementing and enforcing its ground-water protection requirements at mill sites for non-radiological contaminants. State standards would be preempted only .if in direct' con-i flict with the Federal standards.

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' Comment.- .Onlyonecommentehaddresseditheicost/ benefit 1information

~

in the notice and'that comment wasilimited.to a lega1Lview that thel .

analysis was not required. ' '

' Response. The Commission agrees that no analysis was required and so- '

stated in the proposed rule, L .

i V. Comments on Specific Proposed Modifications;to Appendix'Ax I of 10 CFR.Part 40 r.

Introduction .

q Definitions of 14 terms were proposed as ' additions.to the Introduction.

Comments were received on four of the definitions .aq'uifer, existing portion, . ground water, and point of compliance.

Comments. J Industry comments urged: changes to clarify that temporary 3 aquifers from impoundment seepage should not be considered " aquifers" and l that a beneficial use criterion be applied to " ground water."'

Response. The proposed. definitions of " aquifer"'and " ground _ water" were quoted verbatim.from 40.CFR 260.10. The comments.~on " aquifer" ands

" ground; water."'are addressing;the;sameeconcepts:becauseeaquifers contain*

ground water.

The Cornmission agrees that a reasonable reading of the EPA secondary I standard would allow flexibility in how the saturated zone from operations atLexisting5 sites +is.consideredu 'The. Commission agrees with commenters:

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'[7590-01].

that'the. fundamental: role of. background' levels of' constituents (i_.'e.,

' background is a baseline' level.that triggers action and-background is.one.

of the options for setting protective' concentration.lfmits.for' constituents)-

intheEPAstandardscontributestoa'viewthat'operatio$a'11ycreatedzones-1 are not the aquifers of primary concern. This view is'further_ supported by the~ prescriptive requirements EPA'has adopted for its own implementationiof-.

the standards. ~

For example,'the EPA rules. address how to~obtain~'upgra'dient  ;

values.and how to determine statistical increases over background.. For new:

i facilities or. impoundments, the situation is clear that_the uppermo'st;, j l

aquifer of concern -is the naturally occurring one.

~

The Commission does not agree with the commenters that the saturated-zones can be dismissed generically. Decisions will be site specific and the Commission notes that there may be circumstances where corrective actions involving these zones may be required under the provisions of-paragraph 50 whether_or not the zones are defined as aquifers. The i

Commission.is adding a sentence to the EPA definitio.n of aquifer to address when the saturated zones are of sufficient direct concern to be designated as aquifers. The clarification is based.on present and poten-1 tial impacts from the zones and.is consistent with EPA's consideration ~of the system of aquifers at the site in the definition of uppermost aquifer and EPA's " Groundwater Protection' Strategy," August 1984 provided by EPA in the agency's comments on:the ANPRM. It is'also consistent with the EPA discussion of comments.on the term " aquifer" in the July'26, 1982 rulemaking on 40 CFR Parts 123, 260, 264, and 265 (47 FR 32289) in that '

near-surface soils saturated only as a result of disposal activity may not be the' uppermost aquifer of concern.

1

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Licensees would be expected to show that the zones are not and will not be interconnected to natural aquifers, that the zones do not and will '

not discharge to surface waters, and that the zone will remain confined to land under long-term government ownership and control. For example, licen-sees may be able to demonstrate that once the hydraulic head from the impoundment is gone, the zone will remain potentially yielding for only a short period of time and that the additional movement after closure will be limited. Under the regulatory scheme already in place for tailings (e.g., see Criterion 11 of Appendix A to 10 CFR Part 40),'long term govern-ment ownership and control is authorized and expected. Institutional con-trol of access to the area directly beneath the impoundments and associated features necessary to comply with the long-term stability portions of the standard could be reasonably expected to prevent access and use of water from these zones.

The Commission notes that this view of the saturated zones is related '

to the secondary standard and has no bearing on decisions concerning the primary standard. The primary standard (use of impermeable liners) is intended to prevent the occurrence of such saturated zones.

Commenters also addressed the qualitative test of an aquifer yielding a "significant amount" of water, but the Commission has concluded, as did EPA (e.g., see 47 FR 32289; July 26, 1982), that a quantitative definition is a regional decision and sometimes.even a site specific decision. This aspect of the- definition remains: unchanged. The Commission is also adding i a cross reference to the definition of aquifer in the definition of

" ground water." ]

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[7590-01]

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Comment. }

An industry commenter objected to the September 30, 1983

{

date in the definition of " existing portion" based on the legal view that NRC could not include a retroactive date.

Response. The Commission has consistently held that the standards  !

in 40 CFR Part 192 were effective for NRC and Agreement State licensees on their effective date of December 6,1983. Thus licensees were bound 3

by the September date whether so stated in NRC's regulations or not; i therefore, the date is not retroactive.

3 l  !

Comment. One commenter suggested that NRC deve. lop more stringent i

requirements for " point of compliance" than those imposed by EPA's full suite of SWDA regulations. For example, designation of a horizontal plane in the unsaturated zone under the impoundment rather than EPA's uppermost I

aquifer and a location that provides at least two years of plume travel time before the plume would reach the site boundary were suggested. 4 Response.

No definition for " point of compliance" was imposed by I 40 CFR Part 192. The proposed definition was intended to be procedural and was included in order to fully reflect 40 CFR 264.92, which was imposed.

The objective of the point of compliance is described in para-i graph SB(1) being added to Appendix A of 10 CFR Part 40. The Commission considers any additional requirements to be outside the scope of this nondiscretionary rulemaking. The Commission notes that an existing provi-sion in NRC rules in 10 CFR Part 40 is related to the commenter's concern.

This existing provision that requires a leakage detection system under synthetic liners to detect major failures is being designated as SE(1) by this action.

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l Criterion 5 q

Paragraph-SA- ,

  • j I

i

-Comments. Comments were received onlyon paragraphs SA(1):and (3).

'One:commenter objected.to theLexemption from an impermeable liner because.

contaminated soils'would be' allowed and the contamination would eventually migrate. A general recommendation was made-that impoundments be designed l

with treatment' systems to deal with liner failure. Industry repeated' views that 'the EPA primary. design' standard does not reflect a' reasonable .balanc-'

i ing of costs and benefits or provide' sufficient site specific flexibility to meet Congressional intent and'it exceeds EPA'.s' authority.

Industry argued the. merits of clay liners over synthetic ones and urged the addition of realistic flexibility to approve. clay liners., One commenter suggested that the Commission'use:its~ authority to. establish i

levels below which regulation is' required-(i.e., de minimis levels)--to accommodate clay liners and provide relief from the absolute' language for I alternatives findings. Addition of a liner exemption if wastes.will'not enter an aquifer or reach surface. water because of' local site conditions and revisions of the primary standard to a goal. aimed at i preventing.only "significant" migration were suggested. One commenter suggested an editorial. reference;in;5A(1) to,the-exemption:in 5A(3).

Responte. The language in paragraphs 5A(1)-(5)' incorporate the' text imposed by 40 CFR Part 192 virtually without change. Thus most of the ll comments are actual.ly directed. at 40 CFR Part 192, not NRC's action. I l

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The Commission agrees that a'findingethat-residual contamination will not migrate to ground or' surface water:at'anyLfuture time will beivery

. difficult but'hasino-basisLto conclude'that~such a finding could.not be made and defended.- Addition of treatment system requirements for. leaks:

would be: discretionary and outside'the scope'of this action. As noted earlier, Appendix A'already requires a leakage detection system under~new synthetic liners. ~f Industry arguments on the merits of clay liners repeated' comments made

.. 1 on the proposed EPA standards and rejected-by EPA in its final--rule.- EPA' '

acknowledged and discussed the pros and. cons of synthetic liners and liners.

'i of natural materials (e.g., 48 FR 45931; October 7, 1983)'and concluded-z  !

that the disadvantages of synthetic. liners were not sufficient to deviate l from the.SWDA requirements. ..

i 1

Use of de minimis findings to modify:the text being incorporated would lead to substantive' changes. The Commission considers?that it has' legal l

. flexibility in implementation and enforcement of the standards to consider 3

de minimis quantities but cannot' substantively alter the st'ndards a them-selves. This view is supported by EPA's indication that synthetic' liners-meet the intent of the standard of no migration into the liner even.though migration into properly functioning liners made_ of these materials will occur at very slow rates during the operation and closure phases. l, A generic exemption from liners if wastes will not enter an aquifer or reach surface water is not completely' consistent with the EPA standards.

NRC mu'st' find that the basic standard.for granting exemptions is met'on a i

site specific basis and consider the: prescribed factors.in making that finding. The suggested language is a simplified paraphras~e-of the' basic

{. EPA standard and unneces.sary.

1 '.

23 L

.. .. . __ _ . _ _ _ - ]

r -- _.

[7590-01]. ..

I

(

The-suggested' editorial cross reference is being made.

i Paragraph 5B Paragraph 5B consists of Paragraphs 5B(1)-(6) and comments were- 1 1

received on all paragraphs except 58(4).  !

l i

Comments. Industry commenters suggested' editorial changes to-  !

Paragraph 5B(1) to clarify that the focus.of protection is ground-water  !

that was naturally present before operations began.

J Response.

The editorial comments are in the nature of reinforcement of earlier comments on the definitions of " ground water" and " aquifer." q The clarifying sentences being added to the definitions of these terms address the issue of when the. seepage from an impoundment would be con -

sidered an aquifer for purposes of Appendix A of 10 CFR Part 40 and no additional changes are needed. .On its own volition, the Commission is.

also clarifying the last sentence of SB(1) to indicate that the intended l

purpose of adjusting the point of compliance is to locate the point of compliance in the center of the flow of contaminated ground water based i upon developed data and site information as to the flow of ground water or contaminants.

i l

Comments. Paragraph"5B(2) outlines' the three definitional tests from' 40 CFR Part 264 that a constituent must meet in order to qualify as a l

hazardous constituent for which protective concentration limits must be set. )

One commenter emphasized that efficient implementation of the definitional scheme in.5B(2) requires serious consideration' of the test..to dete rrmine 4 i

n l

f 24 L = = = - ~. -- -- -

~

it

'[7590-01]

.what.is -reasonably' expected to be 'in or derived from'the' byproduct' material and that licensees should not have.to monitor.for 'all the. constituents:

listed.in proposed. Criterion 13. . ,

. Response. The Commission agrees that reasonable' implementation of 5B(2) requires serious-consideration of what'is reasonably' expected'to be-in~or derived from.the tailings. The proposed rule was not intended:to require.

that licensees monitor for the. full list. Monitoring for the full list-is contained in'40 CFR 264.97 .99,' sections not imposed by EPN. The-Commission-is clarifying 5B(2).to emphasize.thatLall'three. tests must be.

met before a concentration.. limit must be' set for a constituent.

Specifying which constituents-a licensee will monitor for will be a site-specific decision.. A reasonable approach to developing'a site-specific list for monitoring at an-existing site might involve the following steps:

(1) Use information on the constituents such as that contain,ed'in EPA's proposed rule (51 FR 26632; July 24, 1986) to eliminate constituents.that are unstable in water or not amenable to standard assay.

(2) Consider indicators for families or groups of compounds ~ on the list.

(3) Carefully review administrative records and data.to determine how defensible this information is in defining which constituents may and may j

not be present and where the uncertainties are and,  !

(4) Sample existing tailings to establish which constituents are present, i l-l l

25 u _ __.____U_E___._-_m____ ___.__.m_-__. _ _ . _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ . _ . . _ _ _ _ _ _ _ _ __u-____.____ _ _ _ _ _ . . _ _

[7590-01].. .;

?

The Concission recognizes that,for-new impoundments;; administrative-conth 4 coupled withfanalyses of the ore can provide an effective means j

of controlling and identifying which constituents are being.added'to the new impoundment.-

' NRC is conducting an impoundment liquids sampling program. Results to i date confirm the-general consensus that many of'the listed constituents.

L-are not present in the: sampled impoundments. .NRC's experience may:be i

useful to licensees 'in developing sampling-programs and it will . facilitate -

review of licensee programs and fresults. . NRC's. program suggests' that . ]

i impoundment sampling is a feasible option for a licensee'to pursue to help address which constituents could be expected to be in or derived from existing impoundments.

Comments. Two commenters suggested deleting Paragraph'5B(3) which-incorporates the provision to exclude detected constituents.if they will not pose a'significant present.or potential-hazard to human health'or the' environment. One objected to any unregulated pollution.by a known. hazard-ous material and one read the incorporated language as giving NRC author-ity exceeding that EPA intended for itself. The'commenter stated that EPA t c use of this exemption is limited to exclusion from monitoring only. An environmental commenter disagreed with NRC's-legal view that EPA exceeded

\

L its jurisdiction in 40 CFR Part 192.by requiring site-specific concur-rences;before any exemption of constituents is" final. Industry commenters supported NRC's view.

l Both positions claimed support in the legislative history and statutory language. One commenter disagreed with the 26 I' " *

. _ _ - .."**%****'3 swr n .

.[7590-01]- ,

f

.u m

' Commission's' view that EPA ~' concurrence is a~ procedural;rather than substan-tive matter. '

Industry commenters suggested consideration'of natural geo-l chemical processes in exempting constituents and establishing background  !

values for constituents.

N:

Response. The imposed standards include the provision to-exclude

' detected constituents and NRC must include it for completeness. The second

' commenter's reading of the provision.is flawed. Being~ absent from.the

~

a t'ilings leachate is sufficient basis to exclude the constituentLfrom any.

further consideration. Evaluation of factors.such as ground-water flow or health risks would not be needed if the constituent is'not>present. In the Commission's view, paragraph.5B(3)?is a' health and safety finding based on I l

a pathway analysis that a constituent known'to-be in the wastes will'not I pose a short or long term hazard eve'n though=it has been released to the

. uppermost aquifer and therefore no restrictions on its concentration'are-needed. The Commission is clarifying this point. "

Commenters offered no substantive new legal arguments or considera-tions that were not considered in the Commission's earlier decision on the-matter of EPA site-specific concurrences. See the. final rule notice for the first step conformance published October 16,.1985 (50 FR 41853 and 41861). As the Commission said in the prior rulemaking:

"The Commission historically has had the authority and responsibility to regulate the activities of persons' licensed under the Atomic Energy Act of 1954, as amended. Consistent with that authority and in accordance with Section 84c of that Act, the Commission has the~

discretion to review and approve site specific alternatives to a

standards promulgated by the Commission and by the Administrator'of 27

L , e -

-[759b-01]. .

.d

l g theJEnv'ironmetal; Protection Agency. 1 In thefexercise ofithis j authority, Secton.84c.does not require the Commission to obtain the concurrence of the Administrator in any site specific alternative t

which! satisfies Commission requirementsLfor the level of protection: y

.forpublichealthl safety,an'.the-environmentfromradiologicaland d

nonradiological' hazards at uranium mill tailings sites.

7 As an  !

l g

4 example, the, Commission need not seek concurrence:of the Adminis -

trator in case-by-case l determinations of alternative concentration- i limits and delisting of hazardous constituents for specific sites." , >

q In the October rulemaking,:the Commission.also noted that' site specific concurrences contradict the procedural prohibition on EPA's issuance of a permit in Section 275b(2) of the Atomic Energy Act.

For both delisting or excluding constituents under paragraph'5B(3) and approving alternate concentration limits under paragraph SB(6), the. l Commission is bound by the basic EPA standard that no' substantial present-  !

or potential hazard to the public health or the environment be posed. The. i Commission is.also required to consider a comprehensive' list'of' factors

~

l

.j relating to protection of ground and surface water as part of.the secondary  !

standard. 40 CFR Part'192 also added requirements for constituent levels to be as low as is reasonably achievable and for all practicable corrective 1

-i action to be taken. Delisting and approval of alternate concentration limits are a normal and integral part of the implementation'and enforcement' of the-substantive EPA secondary standard. EPA concurrences would taerely- 1

, be a review'of the adequacy of NRC's site specific implementation of the i overall secondary standard in licensing decisions.

Commenters' concerns over NRC's application of Section 84c ~of the AEA-~

and. independent. action;on delisting. constituents-and alternateiconcentration 26

. - [7590.01] ]

limits may stem from a misconception of what-the Commission understands alternative site specific standards to be. The Commission would expect a licensee, first, to attempt to meet all regulations and standards as-issued. If site-specific circumstances would make. compliance physically impossible, technically impracticable, .or excessively costly in relation to the benefits to be~ gained from the reduction of risks, then alt'erna-tives should be considered. The alternatives' proposed should meet'the objectives of the established standards so that NRC can find that the alternatives provide a level o'f health and environmental protection equiva-lent, to the extent practicable, to promulgated standards. The Commission does.not view the provision as an open-invitation to disregard the stand- )

ards and set new goals, and believes that the' language in Section 04c requiring an equivalency or more stringent finding precludes such a view.

To illustrate, assume the standard has a numerical value of X but meeting X instead of Y would require extraordinary .exper.se or might compromise the soundness of the impoundment structure or safety monitoring features. The alternative limit to be proposed may be Y for the specific circumstances.

NRC must find that Y provides equivalent protection, to the extent practic-able, to X.

The commenters rejected the Commission's position that site specific concurrences detract from the Commission's statutory discretion under Section 84c of the AEA and that the matter is primarily a procedural one.

Nevertheless, the Commission continues to believe that rejection of EPA site specific concurrences is the correct legal position. Therefore, the '

Commission 'is issuing the final rule without any provision for EPA concur-rence in delisting constituents or alternate concentration limits.

l 29

[7590-01]. .

The Commission-agrees that determining background is difficult at many existing s'ites. However, it is not completely clear what the diffi-culties have to'do with excluding constituents and how natural geochemical processes are,to be consiacred. In the Commission's view, background measurement problems. are not a sufficient-basis to exclude constituents when the levels present are clearly higher than background in the area and may pose a significant hazard.

Comments. Two commenters objected to the flexibility provided in paragraph 5B(5) for unspecified site-specific alternate concentration limits that may exceed background or drinking water levels. Views on the legality of' deleting the provision for EPA concurrences were repeated.

Industry expressed concern about the lack of definition of " background."

The Department of Interior commented that neither the preamble'nor the text make-it clear when alternate concentrations are to be applied (e.g.,

only when' background levels are not available).

Response. Suggestions to delete the provision for alternate concentration limits are comments on 40 CFR Part 192. The option for alternate concentration limits was legally imposed and NRC must include l this substantive provision. From a_ technical point of view, the alternate l concentration limit option is. crucial to practical implementation. As 1

stated: earlier, the Commission-agrees that* determining' background may-be-difficult but commenters offered no generic solutions to the difficulty.

Decisions on background values will have to be made on.a site specific basis.

33

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1

[7590-01]  !

\

The EPA secondary standard in 58(5) is a site-specific choice of three 1 equal options: background, referenced drinking water limits (see SC), or alternate concentration limits. However, if the_ licensee chooses to pursue the alternate concentration limit option, then the licensee must expend the resources to collect the information and do the analyses to support an alternate concentration. The licensee may choose.the basic background or drinking water options as the more economic or timely. The licensee would not have to address health and environmental risks with the basic l

l choices because these are conceded to involve acceptable risks. The l

i Commission would be required to independently review the proposed alternate limit and the supporting rationale and agree or set a different-limit based on the information available. Alternate concentration limits may be requested without regard to the availability of-background values.

l The Commission is clarifying this point.

i Comments. Comments were divided on the language in paragraph 5B(6) i referring to contaminate levels being as low as reasonably achievable l (ALARA). One commenter objected to ALARA based on a view that ALARA levels might still pose significant hazards. The provision was considered unnecessary and inappropriately applying ALARA to nonradiological const.ituents. EPA expressed a contrary view that'ALARA was not clearly applied to the nonradiological constituents as EPA intended. EPA also viewed the proposed language as giving the ALARA finding primacy over the listed factors to be considered.

l Response. The issue of how and when ALARA was intended to apply is not completely clear from the preamble to EPA's final rules (48 FR 45941-2; 31

(7590-01]c .

.0ctober 7, 1983F or from the.: text of the rule itself. However,- there is no apparent reason to conclude.that.any distinction was being made between radioactive and nonradioactive constituents and the Commission accepts-EPA's views. The Commission's proposed rule included ALARA for emphasis but there was no intent to have ALARA dominate.the factors to be considered or the fundamental standard that the " constituent will not pose a substan-tial present.or potential hazard to human health or the' environment as long as the alternate concentration is not' exceeded." The Commission is.

clarifying these points.

l Comments: Industry and EPA addressed the development of a generic methodology'for evaluating alternate concentration limits. Industry asked i for comment opportunity. EPA noted that the two agencies had agreed that the development and use of such guidance would provide a means of addressing the differing agency views on the legality of EPA site specific concurrences i and suggested that the final regulations recognize that the agencies are committed to such a course of action.

Response. Industry's request to review any guidance documents or joint methodologies before they are finalized has merit and NRC .usually issues guidance documents for public comment.

When the, proposed rule was published, both-agencies expected that publication: of: a comprehensive EPA SWDA' guidance: document' on alternate concentration limits was imminent and staffs were optimistic that the

! methodology approach would work. However, completion and publication of the SWDA document has been delayed and major changes are being considered l

32 1

[7590-01]

to the earlier draft which formed the basis for'NRC's expectations. The.

major changes are flowing in part from additional legislation (e.g., 1984 amendments to RCRA and Section 121 of.the-Superfund Amendment's and l

Reauthorization Act of 1986) and other Congressional direction (e.g., a .

letter to EPA Adininistrator Lee M. Thomas dated March 4,1986 from i

John Dingell and 10 other members of Congress). The changes may make l the SWDA guidance impracticable for uranium recovery and inconsistent with j the SWDA standards as they stood when EPA incorporated them into 40 CFR i

Part 192 (EPA incorporated the SWDA standards as codified on January 1, l

1983). For the reasons given above, NRC may well need to develop a new ]

4 methodology clearly unique for tailings. Nonetheless, the' Commission I will continue to consult with EPA on any methodology developed and still favors resolving the EPA concurrence role called for in 40 CFR Part 192 i

by adoption of a mutually acceptable generic methodology. As discussed- -

earlier, the Commission is issuing the final rule without any provision I i

for EPA concurrence in delisting constituents or alternate concentration limits.

l l

Paragraph SC Comment. The only. comment on this paragraph, which incorporated the drinking water values imposed with supplemental radioactivity limits added, was a suggestion to develop numerical limits for the constituents of concern at tailings sites.

Response. As the commenter conceded, the proposed action fulfilled the conformance requirement. Development of limits is outside-the scope of this action.

33 '

__y

-[7590-01]. . l l3

"! Paragraph.50 Comments. Two' commenters recommended that corrective action 'begin~

.l before hazardous constituents reach the point of compliance and objected l j

to the potential-for an 18 month delay before action begins. One' commenter suggested that licensees be required to submit corrective action plans in i advance for au'tomatic activation to reduce I delays. A two year time limit. -

for corrective actions was also suggested. ' Industry suggested clarifying that licensees do not have to cleanup naturally-occurring contamination or 3

contamination from someone else's' operations. Industry views the correc-tive action programs to be aimed at cleaning up the preoperational t aquifers, not the seepage zones from leaking impoundments.

i l

Response. The concerns for corrective action:before reaching the aquifer are similar to concerns discussed earlier on the definition of y

" point of compliance." The comments on allowing up'to 18 months to begin- '

corrective action' programs is:a rejection of EPA's change from a 12 month limit in the proposed 40 CFR 192 to 18 months-in the final rule. The Commission has no basis to overrule this EPA decision. Commenter concerns may stem from a misconception that no actions have been taken or will be

!- taken except in response to the EPA standards.. However, NRC licensees had i

extensive monitoring programs in place and many licensees were conducting mitigative actionsiprior to the EPA standards, i

The comment that corrective action plans be submitted in advance does I

have merit, particularly for new sites. However, advance plans would be l conceptual and may need modification to adequately address the actual circumstances of the failure-event. Decisions:on this; matter will>be.:made-l l

34

' ' " ' " ^ * * * + 4 # _ _ _ ._ _ . _ _ _ . _ . . . _ _ . _ _ _ _ _ _ _______m .___m_ _ _ _ _ _ _ . _ . _ _ _ _ _ _ . _ _ _ _ _ _ _

[7590-01[ ]

.on a site-specific basis. $

The. suggestion to impose-a two year time-limit j for corrective action programs before requiring removal to new impoundments presumes that short-term solutions would always be the best-choice. The Commission views the nature and~ duration of corrective action programs to be a very site specific matter and is' unable.to' defend'a discretion ny-  !

. requirement.for a two year limit.- 1 j i

'}

Concern that licensees 'not have to cleanup natural ~or third party l contamination is valid if this type of distinction can be made. 1 The 4

.i difficulty in establishing background would. appear to be partially respon-

]

sible for this comment. The Commission is concerned that arguments over j 1

mining seepage versus. tailings seepage or similar uncertainties not' prevent l an orderly implementation of the EPA standards. The concern that the i

corrective action program be directed at the natural-aquifers is addressed- j l

in part by the clarifying addition to the definition of." aquifer." Because l these decisions are so site specific, the Commission is concerned that s l

attempts to further clarify.the matter in the rule may create more problems i than they would solve.

l Paragraphs SE-H L

Comments. The only purpose in including these paragraphs in the proposed rule was to designate them as SE-H for consistency. Industry commenters suggested that SH be deleted based on the legal view that NRC does not have regulatory authority over ore storage at mills.

. Response. Since paragraph 5H was unaffected by the EPA standards being incorporated, substantive change to delete is outside the scope of this action. However, the Commission views the provision as valid.

L. 35 9.w . . . . m._ m a __ - -... ...-u - -

)

-[7590-01]i--

,1 0

'l

, ' Criterion 6 >

y l q

Comments. .The proposed additionito Criterion l6-incorporated the' 4 imposed'nonradiological. hazard closure requirement. .One commenter. 1 4

suggested: application of the closure requirement to radioactive- l constituents and properties. One noted thatLthe closure standard and the

{

design and operational. liner standards.may conflict and suggested that  ;

the closure requirements.have^ priority. Editorial suggestions addressed-- 'l 1

the lack of definition or quantification of the term " threat"; and the' lack'of clarity resulting from the use of the three parallel. terms

" control, minimize or eliminate."

l Response. The language in 40 CFR 192(b)(1) clearly identifies'40 CFR 1

264.111 as the closure standard for nonradiological hazards. The addition.

of the radiological constituents and properties to. Criteria SC and 13.

assures that these aspects must be addressed in corrective action plans a when they are of concern. No additional changes are needed. The comment on potential conflicts is more of an observation and reflects. concerns with j

.the primary design standard.

-J s

The editorial suggestions are not consistent with the language imposed.

The suggested changes appear to be less protective and do not provide quantification or use alternate terms.that:are defined-in EPA's standards.

Consequently: they/ arei nott beingi madet - I

)

1 i

36  !

e s e.4- .me _ e , m. _ . _

. c [7590-01]

i l

Criterion 7 l Comments. The proposed addition to Cr.iterion 7 incorporated the I requirements for a detection monitoring program and other information requirements needed to comply with the secondary ground-water standard.

One commenter viewed 40 CFR 264.98 as' legally imposed and suggested the j sddition of-detailed prescriptive monitoring requirements. An industry l

-commenter urged the Commission to direct staff to consider site specific q alternatives for monitoring proposed by licensees. i 1

I 1 i

Response. The sentence viewed as imposing 40 CFR 264.98 is: " Detection G

monitoring programs required under S 264.92 shall be completed within one (1) year of promulgation." While imposition of 6 264.98 is one way this I

language could be read, the Commission believes that a better reading is that detection monitoring should be established within one year. This view is supported by the fact that the imposed standards in S 264.92 are dependant on site specific data, except for the drinking water values, so  ;

that the reference to S 264.98 only serves to illustrate that a monitoring i program is necessary to implement S 264.92. This view is also supported 1

by EPA's listing in the preamble to the October 7, 1983 rule of 6 264.98 as a section NRC is to address, but not one EPA expressly incorporated in whole or in part. The issue of discretionary rules has already been discussed a number of times, i

The comment addressing staff consideration of alternatives does not require any change in the proposed rule. The provision to consider licensee alternatives in accordance with Section 84c of the AEA was incorporated in NRC's October 16, 1985 final rule.

37 o ___ _ _ _ _ _

-[7590-01]y ,;

A pervasive theme in the comments is the erroneous, view that. routine monitoring of all Criterion 13 constituents is required. The Commission is clarifying that monitoring for constituents will be determined on a site specific basis.

Criterion 13 Comments. Commenters agreed that the proposed. Criterion 13 contains-many constituents that will not be of concern at' tailings sites and urged.

NRC to tailor the list for application to tailings. One commenter suggested adding additional constituents such sulfates, chlorides, total dissolved solids, and pH because they degrade water quality.

Response. Although the Commission agrees that the list in d Criterion 13 includes many constituents-that will likely never be of concern, shortening the list is outside the scope of this action.. If the  !

list is shortened, it would have to be based on one of two findings. One' is that the constituent is not inherently hazardous which is not at issue here. The second is that the constituent would'never'be present in uranium and thorium byproduct material and wastes or the impoundments.

Making the second finding would include uncertainties that presently available information does not address (e.g., that ore bodies would not contain new constituents, that new> solvents will not'be introduced, and' that operational or decommissioning wastes will'not introduce new constit-uents). The clarifying language being added to emphasize that licensees i are not expected to routinely monitor for all the constituents should reduce concerns that prompted the comments.

38

. n

'j c y .

7  :. <,

_g 1

f[7590-01]>

The Commission does'not believe'that the addition.of thefsuggested parameters i is technically appropriate. Thest parameters:mayl.only;affectL

~

the potability'of ground water ~'andinot qualify-as; hazardous. 1Although-3 the list 7 imposed by EPA does not inclinde nitrstes,1-the EPA . drinking water q

. regulations for. community water supplies" include:a limit for nitrates.: i m)

The.Commissio'n considers it prudent to' add a. reference to1NRC's authority 4

.to add constituents'on a site specific basis to allow for a mo.re:aggres-G !l y

, s sive approach for contaminants such as nitrates.and.is doing so. ' Al so ,- . y h r

M the. indicator. parameters 1 suggested for. addition areLlikely candidates for , .

-NRC attention under the National Environmental ~ Policy- Act _(NEPA):and many '

State ground-water programs address ~thesel parameters. .

n VI. Agency Concurrences j Theactioncoveredinthisnotice.isundertakenpursuantito' sections.

1 84a(2) and 275f(3) of the AEA and reflects requirements already imposed by

[

EPA, and already subject to' implementation and: enforcement byLNRC under.'

section 275d of the AEA. The Commission considers it inappropriate to consider this rulemaking as requiring EPA concurrence under Section 84a(3) of the AEA. Section 84a(3) of the AEA requires NRC to assure that by--

product material'is managed in'a manner that " conforms to general require-taents established by the Commission, with the concurrence of.the Admini- t strator, which are, to the maximum extent practicable,'at 1 east comparable

~

to requirements applicable to'the' possession, transfer, and disposal of l

similar hazardous material-regulated by the Administrator under the_ Solid Waste Dispo' sal Act, as amended.'" - No ' discretionary general requirement's f

pursuant to Section 84a(3) are being-issued. '

. f- ,

39 '_

_ _ _ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ - - - ._ __ _ = -_ _

1

[7590-01]s .

L .

VII .' . Impact-of the' Amendments;

. A .- Finding of No Significant Environmental Impact The Commission has' determined under NEPA and the Commission'.s regula '

tions in 10 CFR Part 51 that NRC's incorporationfof. the EPA standards by this action is notjazmajor Federal action significantly affecting.the quality of the' environment'.and therefore'an environmental impact statement is not required.- Thelsignificant Federal action was<the promulgation by EPA of its regulations on September 30, 1983.

In. issuing these additional modifications to its regulations in Appendix A toL10 CFR Part 40, the Commission is. completing the-action'to conform them to the' EPA standards. The purpose of these change's is-to-clarify previously existing language in promulgated EPA standards and incorporate mandatory requirements into NRC's regulations. This action by-the. Commission is a consequence of previous-actions'taken by the Congress and the EPA, and is legally required by sections 84a(2) and.275f(3)'of the Atomic Energy Act of 1954, as amended.

Commission action in this case is essentially nondiscretionary in nature, and EPA is viewed as the 1ead agency. For purposes of environ-mental analysis, this action rests upon existing environmental and other impact. evaluations prepared by EPA in the following documents:- (1) " Final Environmental. Impact Statement for Standards.for the. Control of Byproduct Materials' from Uranium Ore Processing (40 CFR Part# 192)," Volumes I and:2, i

l I l

f 40

a cy n y,g y: ig g; g)p % 8 -p.9-

~- p. 4 f e

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3 3 .. a. o i

. EPA 520/1-33-008-l' arid 2,, Septe beh 58'3N(2[" Regulatory Impact Analysis !

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+, '

,.  ;. s w ~!

of Fin'al Envirormlental S9anddr{i'ifor. Uranium' Mill Tailin'gs at Active Sites 7' I

?  % y ?s EPA 520/1-83-010) SeptembeM,983, a

L and (3)jSupplementsry' Information,, Interimi y,< ,

j

~

Final!Rulem Wipg for 40 CFR Parts 122(260,264and260," Hazardous' Waste.

1 r_

33s x Management System; Standards]'f+ydlicabN to Owners.an$,Oheratdrs "of. Hazardous :

.s Waste-Treatment, . Storage, and Dispqal Facilities! arid EPA Administered -

. Permit Programs," published July 26,--1982 (47fFRi32274).<.NRC'also. prepared an overview of the potential actions:that might be 6eguired of NRCLand m ..

~

4 . .. @p T 3 Agreement state licensees by.the EPA standards.entitlec, " Summary of the-  !

y. ..x . 3;,

Waste Management Prograys' at Uranium Recovery Facilities 1;s Tllef Relate y

, l tt tothe40CFRPart192 Standards,"IbEG/CR-4403.2-

' 1 g- {

o B. Impacts Presented in. Proposed Rule. I J

TheCommissionpublishAd}noverv.iesandupdateoftheimpactsonthe U environment'anduraniuhiandlOnoriQnmi,1)ingindustryassociatedwiththe 4

1 .

l ground-water prot'ection; standards Mni they were proposed for incorpora- 1

\

l tion (51FR24703-24709hJuly8,"1986).-Thediscussionalsmaddressedin.

s generaltermstheeconomicandotherfactorsthatwould addressed in a 44

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i j

,- t ,15 h '

l1, 4 ,,

% c' p 4 .v 1Singlecopiasofthe-FinalEnhonmentAl'ImpactandtheRegulatoryImpact

~

Analysis msy'be purchased drom the National Technical Information. Service, U.S. Department of Conmeice,:5285 Port Royalditad, Springfield, VA-22161.

A copy of qach document is also available-for inspection.and/or copying-

.in NRC's Publig Document Room, 1717 H Street.NW., Washington, DC 20555..

i' 2 Copies of NUREWCR-4403 and NUREG 0706 may'be purchased through-the,U.S.

Government Printing Office by calling (202) 275-2060 or.by, writing to the L U.S. Gbvernment Printing Office P.O. Box 37082, Washington,LDC 20013-74h2 m ,

Copies.may also be purchased from the Nation d Technica1'Information> i I . g

Service,

.VA 22161. Copies U.S. Department are available for

~

ofinspection Commerce, and/or5285 copying  : Port for aRoyal fee Read,'.! '

the NRC Public Document Roor, 1717 H Street NW., Washington, DC 20555. v M

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comprehensive Regulatory Flexibility Analysis'if-one was required by this.

action to. meet the requirements of the Regulatory Flexibility Act.- The-l summary information was not intended to be'a strict cost / benefit analysis or a technical justification for the-standards. It generally related economic cost to the benefit expected from compliance with the standard. l The summary information was also intended to help the reader more fully understand the nature and potential impacts-of the proposed' action.

1 VIII. Paperwork Reduction Act Statement-l This final rule amends information collection requirements that are l subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501'e_t seq.).

-1 These requirements were approved by the Office.of Management and Budget under approval number 3150-0020.

IX. Regulatory Flexibility Certification As required by the Regulatory Flexibility Act of 1980, 5 U.S.C.

605(b), the Commission certifies that this rule will not have a signif-icant economic impact upon a substantial number of small entities.

Therefore, a Regulatory Flexibility Analysis has not been prepared. The basis for this finding; includes the nature of the licensees.as well as the nondiscretionary nature of this action: Of?the:27. licensed uranium mills' that have produced tailings, only two qualify as small entities. A third mill is partly-owned by a company that.could qualify as a small. business, acording to the Nuclear Regulatory Commission's generic small entity l

l 42

-__ __-__ _:r_. _ _ - _ . =_- -- .

. .  :[7590-01]; -

I

-definition-of'less than 3.5'million~ dollars in annual ~ receipts. However,- A under the~ Regulatory. Flexibility Act, a smal1~ business-is'one that is l independent 1yLowned and operated.. Because_this milltis not' independently.

owned,' it does not qualify as a small . entity. -

c1 X. . List of Subjects in 10 CFR Part 40.

dovernmentcontracts,Hazardousmaterials-transportation, Nuclear

~

materisis, Penalty,: Reporting.an~d recordkeeping requirements, SourceL material, and Uranium.

XI. Modifications i 1

Under the Atomic Energy Act of 1954, as amended, the Energy'Reorganiza-tion Act of 1974, as amended, 5 U.S.C.-553, and the Uranium Mill Tailings.

Radiation Control Act of 1978, as amended, the NRC is issuing the follow-ing amendments to 10 CFR Part 40.

PART 40 - DOMESTIC LICENSING OF SOURCE MATERIAL.

1. The authority citation for Part 40 continuesEto 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, 1 =

as amended (42 U.S.C. 2014(e)(2), 2092,'2093, 2094, 2095, 2111, 2113,

-2114, 2201, 2232, 2233, 2236, 2282); secs. 274, Pub. L.'86-373, 73. Stat.

43

[7590-01], . . ,

l 688 (42 U.S.C. 2021);. secs.:201, as~ amended,-202, 206, 88: Stat. 1242,.:as- 1 amended, 1244, 1246 (42 U;S.C.'5841, 5842,.5846). Sec. 275, 92 Stat.- 1 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 (42 U.S.C. 5851). Section 40.31(g) also. issued'under sec. 122,-  !

68' Stat. 939 (42 U.S.C. 2152). Section 40.46 also issued under sec. 184,

.68 Stat. 954, as~ amended (42 U.S.C. 2234). 'Section'40.71'also issued-

]

under~sec. 187, 68. Stat'. 955 (42 U.S.C. 2237).. I 1

For the purposes of sec. 223, 68 Stat. 958,-'as amended (42'U.S.C. l

. .- 1 2273);-SS 40.3, 40.25(d)(1)-(3),'40.35(a)-(d),.40.41(b) and (c),L40.46, 40.51(a) and (c), and 40.63 are issued under sec. 161b,-68 Stat. 948, as amended, (42 U.S.C. 2201(b)); and $$140.25(c) and (d)(3) and (4),

40.26(c)(2), 40.35(e), 40.42, 40.61, 40.62, 40.64 and 40.65 are i'ssued under sec. 1610, 68 Stat. 950, as amended (42 U.S.C,. 2201(o)).

Appendix A'to Part 40 is amended-to read as'follows:

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

or Concentration of Source Material From Ores Processed Primarily for-Their Source Material Content.  !

2.

Introduction to Appendix A is amended by adding the following text at the.end of the

Introduction:

Introduction.***

1 Thetfollowing definitions; apply toathe specified; terms. as' used!

in this Appendix:

" Aquifer" means a geologic formation, group of f' ormations, or part of. l 1

a formation capable of yielding a significant amount of ground water to- l l

44 l i

o

=o-

[7590-01]- ,

4 wells or springs.

1 Any saturated zone created by uranium or thbrium recovery operations would.not'be. considered an. aquifer'unless_the zone;is 1 or potentially.is (1) hydraulically interconnected tola. natural aquifer, . q

~ (2) capable of discharge to surface. water, or. (3)' reasonably accessible:

because'of. migration beyond the vertical projection'of the boundry of the i

land transferred for'long-term govern'entm ownership and care in accordance with Criterion 11 of- this appendix.

'" Closure" means the activities following operations'to decontaminate-and decommission the buildings and site used~to, produce byproduct mate-rials and reclaim the tailings and/or waste disposal area.

'" Closure plan" means the~ Commission approved plan to accomplish closure .

" Compliance period" begins when the Commission sets' secondary ground-

.' water protection standards and ends when the owner or operator's license is terminated and the site is transferred to the State _or. Federal a'ency..

g for long-term care, -

s

" Dike" means an embankment or ridge of either natural or man-made.

materials used to prevent the movement of liquids, sludges, solids.or-other materials.

" Disposal area" means the area containing byproduct materials to which the requirements of Criterion 6 apply. ,

" Existing portion" means that land surface area of an existing sur-face impoundment on which significant quantities of uranium or thorium byproduct materials had been placed prior to September'30, 1983.

" Ground water" means water below the' land surface in a zone of saturation. For purposes of this appendix, ground water is the' water contained within an aquifer as defined above.

45

..[7590-01]. .-

"Leachate"'means'any liquid,. including;any suspended or dissolved components in the liquid, that has percolated through or drained from.the byproduct material.

" Licensed-site" means the area contained within the boundary of a location under the control of persons- generating ~or storing byproduct.

materials under a Commission license.

" Liner" means a continuous 1ayer of natural or man-made materials, beneath or on'the sides of a surface impoundment which restricts the downward or lateral escape of byproduct material, hazardous constituents, or leachate.

" Point of compliance" is the . site specific ' location in the uppermost-aquifer where the ground-water protection standard must be met.

" Surface impoundment" means a natural topographic depression, man-made excavation, or diked area, which is designed to hold an accumulation of liquid wastes or' wastes containing free liquids, and which is not an in,iection well.

L

". Uppermost aquifer" means the geologic formation nearest th'e natural ground surface that is an aquifer, as well as lower aquifers,that are hydraulically interconnected with this aquifer within the facility's pro-perty boundary.

3. Criterion 5 is revised to read as follows:

Criterion 5 --Criteria 5A-50 and new Criterion:13 incorporate theebasic: ground-water protection: standards' imposed by the Environmental Protection Agency in 40 CFR Part 192, Subparts D and E (48 FR 45926; i

October 7,1983) which apply during operations and prior to the end of '

closure. Ground-water monitoring tc comply with these standards is required by.. Criterion,7A.-

46

c ,

[7590-01]

5A(1)--The primary ground-water protection standard is a design stand-ard for surface impoundments used to manage uranium and thorium byproduct material. Unless exempted under paragraph SA(3) of this criterion, surface impoundments (except for an existing portion) must have a liner that is designed, constructed, and installed to prevent any migration of wastes out of the impoundment to the adjacent subsurface soil, ground water, or surface water at any time during the active life (including the closure period) of the impoundment. The liner may be constructed of materials that I

1 may allow wastes to migrate into the liner (but not into the adjacent subsurface soil, ground water, or surface water) during the active life of the facility, provided that impoundment closure incluaes removal or decon-(

tamination of all waste residues, contaminated containment system components (liners, etc.), contaminated subsoils, and structures and equipment contam-inated with waste and leachate. For impoundments that will be closed with the liner material left in place, the liner must be constructed of materials that can prevent wastes from migrating into the liner during the active life 1 of the facility, t i

SA(2)--The liner required by paragraph SA(1) above must be--

(a) Constructed of materials that have appropriate chemical pro-perties and sufficient strength and thickness to prevent failure due to pressure gradients (including static head and external hydrogeologic forces), physical contact with the waste or leachate to which they are 1

exposed, climatic conditions, the stress of installation, and the stress of daily operation; (b) Placed upon a foundation or base capable of providing support to the liner and resistance to pressure gradients above and below the liner to prevent failure of the liner due to settlement, compression, or uplift; and 47 1

1 m._..

a '

[7590-01],: .

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(c) Installed to cover:ali surrounding earth.likely to be,in contact I

with the wastes or leachate.

SA(3)--The applicant or licensee will.be exempted from the require- l l

ments of paragraph SA(1) of this. criterion if the Commission finds,' based  !

on a demonstration.by the applicant or licensee, that alternate' design and- j operating practices, including the closure plan,. together with site char- .l acteristics will prevent the migration of any hazardous. constituents into l 4

- 1 ground water or surface water at any future time.'

. In deciding whether to' grant an exemption, the Commission will. consider- ,

(a) The nature and quantity of the wastes; (b) The proposed alternate design and operation; (c) The hydrogeologic setting of the facility, including the attenua-i tive capacity and thickness of the liners and soils present between the I impoundment and ground water or surface water; and (d) All other factors which would influence the quality and mobility of the leachate produced and the potential for it to migrate to ground water or surface water. ,

5A(4)--A surface impoundment must be designed, constructed, main-tained, and operated to prevent overtopping resulting from normal or abnormal operations, overfilling, wind and wave actions, rainfall', or-run-on;.from malfunctions of level controllers, alarms", and other equipment; and from human error.

5A(5)--Whendikes'areusedtoformthesurfaceimpoundment,tbetdikes*

must be designed, constructed, and maintained with sufficient structural'~

integrity.to prevent massive failure of the dikes. In ensuring structural integrity, it must not be presumed that the liner system will function i without. leakage during;the active life of the# impoundment..

48

-. ~ - - . _ . .

. . [7590-01]

5B(1)--Uranium and thorium byproduct materials must be managed to I

conform to the following secondary ground-water protection standard: 1 Hazardous constituents entering the ground water from a' licensed site must-not exceed the specified concentration limits in the uppermost aquifer beyond the point of compliance during.the compliance' period. Hazardous I

constituents are those constituents identified by the Commission pursuant to paragraph 5B(2) of this criterion. Specified concentration limit's' are-those limits established by the Commission as indicated in paragraph 5B(5) of this criterion. The Commission will also establish the point of com- ,

a pliance and compliance period on a site specific basis through license I conditions and orders. The objective in selecting the point of compliance is to provide the earliest' practicable warning that the impoundment is releasing hazardous constituents to the ground water. The_ point of com -

pliance must be selected to provide prompt indication of ground-water contamination on the. hydraulically downgradient edge of the disposa'l area. '

The Commission shall identify hazardous constituents, establish concentra- i tion limits, set the compliance period, and may adjust the point of com-pliance if needed to accord with developed data and site information as to the flow of ground water or contaminants, .when the detection monitoring e.stablished under Criterion 7A indicates leakage of hazardous constituents from the disposal area.

5B(2)--A constituent becomes a hazardous constituent subject to para-graph 5B(5) only when the constituent meets all three of the following tests:

(a) The constituent is reasonably expected to be.in or derived from the byproduct material in the disposal area; 49

L;

[7590-01F M4 (b) The. constituent.has;been detected in the ground: water in ther uppermost aquifer; and' (c) The constituent is, listed.in Criterion:13 of this appendix.

SB(3)-Even when constituents meet all three tests in paragraph SB(2)-

of.this criterion, the Commission'may exclude a detected constituent from; the set of hazardous, constituents on a site specific basis <ff it finds-that-the constituent is;not capable of posing _a. substantial-present or' potential' hazard to human health or'the environment. Inl deciding whether to exclude constituents, the Commission will consider the following:

L (a) Potential adverse effects on c.ound-water quality,'considering--

(i) The physical and chemical characteristics'of the waste in j the licensed site,. including its potential for migratio'n ;

(ii) The hydrogeological characteristics of the facility and sur-rounding. land; (iii) The quantity of ground water and the direction of ground-water flow; a

(iv) The proximity and withdrawal rates of ground-water' users; (v) The current and future uses of ground water in the area; j (vi) The existing quality of ground water,' i.ncluding other sources of contamination and their cumulative impact on the' ground-water quality; (vii) The potentia 12for health' risks caused by human exposure j

i to waste' constituents;:

.b (viii) The potential damage to wildlifs, crops, vegetation, and physical structures caused by exposure to waste constituents';

4 (ix) The persistence'and permanence of.the~ potential adverse i effects.~

l 50

[

. ;c [7590-01]

'(b) Potential adverse effects on hydraulically-connected surface water quality, considering --

(i) The volume and physical and chemical characteristics of the waste in.the licensed site; (ii) The hydrogeological characteristics of the facility and surrounding land; (iii) The quantity and quality of ground water, and the-direc- l tion of ground-water flow; (iv) The patterns of rainfall in the region; I

(v) The proximity of the licensed site to surface waters; y

(vi) The current and future uses of surface waters in the area and any water quality standards established for those surface waters; (vii) The existing quality of surface water,-including other sources of contamination and the cumulative impact on surface-water quality; (viii) The potential for health risks caused by human exposure l

to waste constituents; (ix) The potential damage to wildlife, crops, vegetation, and physical structures caused by exposure to waste constituents; and 1

(x) The persistence and permanence of the potential adverse l effects.

5B(4)--In making any determinations under paragraphs SB(3) and 5B(6) of this criterion about the use of ground water in the area around the facility, the Commission will consider any identification of underground l

sources of drinking water and exempted aquifers made by the Environmental Protection Agency.

l l

l 51 9

[7590-0136_ v

.(

5B(5)--At'the point'of ~ compliance, the concentration of a hazardous

~

constituent'must no't exceed --

(a) The Commission approved background concentration.of that.

constituent in the ground water;-

(b) The. respective value given in the table'in paragraph SC if the-constituent is listed in the table and if the background, level of the.

constituent;is below the- value listed; or (c)~An alternate concentration limit established by the Commi_ssion.

5B(6)--Conceptually, background c' concentrations pose no' incremental .

hazards and the drinking-water limits-in paragraph SC.' state acceptable- '

hazards but these two options may not be practically achievable at a 4 specific site.

Alternate concentration limits that present no significant q hazard may be proposed by licensees for Commission consideration. Licensees must provide the basis for any proposed limits including consideration of practicable corrective actions, that limits are as low as reasonably achievable, and information on the factors the Commission must consider.

The Commission.will establish'a site spe'cific alternate concentration limit for a hazardous constituent as provided in paragraph 5B(5) of this criterion if it finds that the constituent will not pose a substantial present or potential hazard to human health or the environment as long as the alternate '

concentration limit is not exceeded and the proposed limit..is.as low as reasonably achievable. In establishing alternate. concentration limits and making;theserfindings, the> Commission will consider whether all' practicable corrective actions have been taken and the following factors:

(a) Potential adverse effects on ground-water. quality, considering--

(i) The physical and chemical characteristics of the waste in the licensed site including itsspotential for migration;-

52 \

4 I

. _ . . _ ~

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..- .' -[7590-01]

l (ii) The hydrogeological characteristics of the facility and surrounding land; '

(iii) The quantity of ground water and the' direction of ground- l water flow;

-(iv) -The proximity and withdrawal rates of ground-water users; (v) The current and future uses of ground . water in the area; (vi) The existing quality'of ground water, including other.

sources of contamination and their' cumulative. impact on=the ground-water quality; (vii) The potential for health risks caused by human exposure I to waste constituents; l i (viii) The potential damage to wildlife, crops, vegetation, and physical structures caused by exposure to waste constituents; (ix) The persistence and permanence of the potential adverse l

effects.

(b) Potential adverse effects on hydraulically-connected surface water quality, considering --

(i) The volume and physical and chemical characteristics of the waste in the licensed site; -

(ii) The hydrogeological characteristics'of the facility and surrounding land; (iii) The quantity and quality of' ground water, and the direc-tion of ground-water flow; (iv) The patterns of rainfall in the region; (v) The proximity of the. licensed site to surface waters; (vi) The current and future uses of surface waters in the area and any water quality standards established for those surface waters; 53 1

[7590-01] ; .']

{

(vii)' The existing. quality of . surface water including other j u

sources of contamination and the. cumulative impact on surface water quality; I (viii) The potential for health risks caused by. human exposure to waste constituents; l (ix). The. potential damage to wildlife, crops,cvegetation, and

]

physical structures caused'by exposure to waste constituents;iand I (x) -The= persistence'and. permanence'of the potential adverse effects. ~

i

.j l

SC--MAXIMUM VALUES FOR GROUND-WATER PROTECTION:

Maximum 1 Constituent or Property Concentration Milligrams per 11ter Arsenic..................... 0.05-8 a r i um . . . . . . . . . . . . . . . . . . . . ..........................

. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.

. .0 -

Cadmium..................... ..

0.01 1 Chromium............................................... ........................ 0.05 Lead..................... 0.05 Mercury................................................

..... .........................- 0.002 Selenium..................... ......................... 0.01 I

Si1ver....................... ......................... 0.05 l

t Endrin (1,2,3,4,10,10-hexachloro-1,7.-expoxy-1,4,4a,5,6,7,8,9a-octahydro-1,.4-endo endo-5,8-dimethano naphthalene)............,................- j 0.0002 1 Lindane (1,2,3,4,5,6-hexachlorocyclohexane, gamma isomer)............................>...........

Methoxychlor (1,1,1-Trichloro-2,2-bis'(p-methox-0.004 '

ypheny1 ethane)........................................ 0.1 Toxaphene (C 1 oH 2 oC1 8 , Technical chlorinated cam-phene, 67-69 percent. chlorine)............... . ....... 0.005 2,4-0 (2,4-Trichlorophenoxyacetic = acid)~................. 0. 12 2,4,5-TP Silvex. (2 4,5-Trichloro picnic acid).......................phenoxypro- ..................... 0. 0L Picocuries per liter Combined radium - 226 and radium -228.................. 5 Gross alpha particle activity'(excluding radon and uranium when producing uranium. byproduct material or radon and thorium when producing. thorium byproduct material).................................. 15 g

L 54

l. n-- .- . -

e, '

.. x .. ,

'S [7590-01] I m q

p. "

'5D--If-the ground-water protection standards established'under-paragraph 5B(1) of this criterion are exceeded at a licensed ' site, a corrective action program must be.put into' operation as soon as is' practicable,.and in no event later than eighteen-(18) months'after the' Commission finds that' the standards have been exceeded.: Th'e111censee l

shall submit the proposed corrective ~ action program and~ supporting' j rationale for Commission approval prior to putting.the program into- -

E l

operation, unless otherwise directed by-the Commission. The objective of- 1 the program is to return hazardous constituent concentration' levels in' ground water to the concentration limits set as standards. The licensee's 1 l

proposed program must address removing the hazardous constituents that J

have entered the ground water at the point of compliance or treating them in place. .The program must also address removing or' treating in' place..any hazardous constituents that exceed. concentration limits in' ground water-between the point of ce Misnco and the downgradient facility property 1 boundary.

1 The licensee shall continue corrective action measures to the extent necessary to achieve and maintain compliance with the ground-water i protection standard.

The Commission will determine when the licensee may-terminate corrective action measures based on data from the ground-water monitoring program and other information that provide reasonable assurance that the ground-water protection standard will not be' exceeded.-

SE--In developing and conducting ground-water protection programs,.

applicants and licensees shall also consider the following:

(1) Installation of bottom liners (Where synthetic liners-areiused,

a. leakage detection system must be. installed immediately below the' liner'to ensure major fai. lures are detected if they' occur. This'is in addition to.

the ground-water monitoring program conducted as provided in Criterion 7.

55

, = - . - _ -

[7590-01).1 J.

Where: clay 1iners.are proposed or_relatively thin, in-situ: clay soils;are to be relied upon.for seepage control, tests must be' conducted with repre--

'sentative' tailings.' solutions-and clay materials to confirm that no signifi-cant. deterioration of. permeability or stability properties will' occur with continuous exposure of clay to tailings solutions. Tests must be run for. j a sufficient period of time to reveal any. effects i_f..they are going to l occur'(in some. cases! deterioration has been observed to occur rather rap-i' idly after about nine months'of exposure)).-

(2) Mill process ' designs which provide the maximum practicable re-cycle of solutions'and conservation of water tou redu'ce the net input of.

liquid to the' tailings impoundment.

1 (3) Dewatering of tailings'by process devices and/or in-situ drain-age systems (At new sites, tailings must be dewatered by a drainage' system installed at the bottom of the impoundment to lower the phreatic surface and reduce the. driving head of seepage, unless tests'show tailings are not i cuenable to such a. system. Where in-situ' dewatering is to be conducted, the impoundment bottom must be graded to assure that the drains.are at a

' low point. The drains must be protected by suitable filter materials to  ;

assure that drains remain free running. The drainage system must.also be  !

adequately sized to assure good drainage).

(4) Neutralization to-promote immobilization ~of hazardous constituents. L 5F--Where ground-water impacts are, occurring at.an: existing . site. due' to' seepage, action must be taken:to alleviate conditions'that leadLto excessive seepage impacts and restore ground-water quality. The specific seepage control-and ground-water protection method, or. combination of methods,.to be used must be worked out on a site-specific basis. Technical 56

-.s ..

'[7590-01]-

specifications must be prepared to control installation of. seepage control systems'. A quality assurance, testing, and inspection program, which in-cludes supervision by a qualified engineer or scientist, must be estab--

, lished to assure.the specifications are met.

SG--In' support of a tailings ~ disposal system proposal, the applicant / i operator shall supply-information concerning the following:.

l" (1) The chemical and radioactive characteristics of the waste solutions. I (2) The characteristics.of.the underlying soil and geologic' forma -

1 tions particularly as they will control transport of contaminant's and solutions. This includes detailed information concerning extent, thick- ]!

ness, uniformity, shape, and orientation of underlying strata. Hydraulic j gradients and conductivities of the various formations must be determined.  !

This information must be gathered from borings and field survey methods taken within the proposed impoundment area and in surrounding areas where contaminants might migrate to ground water. The information gathered on boreholes must include both geologic and geophysical logs in sufficient-number and degree of sophistication to allow determining significant dis-continuities, fractures, and channeled deposits of high hydraulic conductivity. If field survey methods are used, they should be in addition to and calibrated with borehole logging. Hydrologic parameters such as per-1 meability may not be determined on the basis of laboratory analysis of samples alone; a sufficient' amount of field testing (e.g., pump tests) must be conducted to assure actual field properties are adequately under-stood. Testing must be conducted to allow estimating chemi-sorption attenuation properties of underlying soil and rock, l

l 57

[7590-01].. ,

i C

c (3) Location,. extent, quality,, capacity and current uses of any ground water at and~near the site.  !

5H--Steps must be taken during. stockpiling of ore to minimize pene-tration of radionuclides into underlying soils; suitable methods include-lining and/or compaction'of ore storage: areas. ..

1

4. Crit 1rion 6 is amended by adding-the following new= paragraph.at I j

the end of Criterion 6: J l

Criterion 6 ***-

The licensee shall'also address the nonradiological hazards'asso-ciated with the wastes in planning:and implementing closure. HThe' licensee '

j u

shall ensure that disposal areas are closed in a manner that minimizes the  !

need for further maintenance. I To the extent necessary to prevent' threats I to human health and the environment, the licensee shall control, minimize,-

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

5. Criterion 7 is amended by adding the following new paragraph at i

the~end of Criterion 7: '

Criterion 7 ***

7A--The licensee.shall establish.a detection monitoring.-program needed for the Commission to set the site-specific ground-water projections standards in paragraph'SB(1)'of this appendix. For:all, monitoring:under this paragraph the licensee or applicant will propose for Commission approval'as license' conditions which constituents'are to be monitored on a site specific ~ basis. A detection monitoring program has two purposes.

58

~ - - -

[7590-01] I The initial purpose of the program is to detect leakage of hazardous I

constituents from the disposal area so-that the need to set ground-water I protection standards is monitored. If leakage is detected,'the second l 1

i purpose of the program is to generate data and information needed for the Commission to establish the standards under Criterion 58. The data and I information must provide a sufficient basis to. identify those hazardous l

constituents which require concentration limit standards and to enable the l l

Commission to set the limits for.those constituents and the compliance l

period. They may also need to provide the basis for adjustments to the i

point of compliance. For licenses in effect September 30, 1983, the detection monitoring programs must have been in place by October 1, 1')84.

For licenses issued after September 30, 1983, the detection monitoring i

prograas must be in place when specified by the Commission in orders or license conditions. Once ground water protection standards have been-established pursuant to paragraph 58(1), the licensee shall establish and implement a compliance monitoring program. The purpose of the compliance monitoring program is to determine that the hazardous constituent concen- '

trations in ground water continue to comply with the standards set by the Commission.

t In conjunction with a corrective action program, the licensee shall establish and implement a corrective action monitoring program. The purpose of the corrective action monitoring program is to demonstrate the effectiveness of the corrective actions. Any monitoring program required by this paragraph may be based on existing monitoring programs to the extent the existing programs can meet the stated objective for the program.

59

[7590-01],- .

'6. Add the following neweheading and a new Criterion 13 at the end of Appendix A to read as follows:

V. Hazardous Constituents i Criterion 13 -- Secondary ground-water protection standards required by Criterion 5 of this appendix are concentration limits for individual hazardous constituents., The.following. list of constituents' identifies.

the constituents for which standards must be set and' complied with if.the I W

I specific constituent.is reasonably expected to'be in or. derived from the byproduct material and has been detected in ground water. For purposes of this Appendix, the property of gross alpha activity'will be' treated' as if it is a hazardous constituent. Thus, when setting standards under >

paragraph SB(5) of Criterion 5, the Commission will also set a limit for gross alpha activity. ~ The Commission dt.sc not consider the following list imposed by 40 CFR Part 192 to be exhaustive and may determine other constituents to be hazardous on a case-by-case basis, independent of those specified by the U.S. Environmental Protection Agency in Part 192.

Hazardous Constituents Acetonitrile (Ethanenitrile)

Acetophenone (Ethanone,.1 phenyl) 3-(alpha-Acetonylbenzyl)-4-hydroxycoumarin and salts (Warfarin) 2-Acetylaminofluorene'. (Acetamide, N (9H-fluoren-2 yl)-)

Acetyl chloride (Ethanoyl chloride) 1-Acetyl-2-thiourea (Acetamide, N-(aminothioxomethyl)-)

Acrolein (2-Propenal)

Acrylamide (2-Propenamide) i 60 i

, 'l

[7590-01]

Acrylonitrile (2-Propenenitrile)

Aflatoxins Aldrin (1,2,3,4,10,10-Hexachloro-1,4,4a,5,8,8a,8b-hexahydro-endo, exo-1,4: 5,8-Dim::thanonaph tha l ene )

Allyl alcohol (2-Propen-1 ol)

Aluminum phosphide 4-Aminobiphenyl ([1,l'-Biphenyl]-4-amine) 6-Amino-1,la,2,8,8a,8b-hexahydro-8-(hydroxymethyl)-8a methoxy-5-methyl-carbamate azirino[2',3':3,4]pyrrolo[1,2-a] indole-4,7-dione, '

(ester) (Mitomycin C) (Azirino[2'3':3,4]pyrrolo(1,2-a) indole-4,7-dione,6-amino-8-[((amino-cabonyl) oxy) methyl]-1,la,2,8,8a,8b-hexa-hydro-8a methoxy-5-methy-)

]

5-(Aminomethyl)-3-isoxazolol (3(2H)-Isoxazolone, 5-(aminomethyl)-) 4-Aminopyridine (4-Pyridinamine)

(

Amitrole (1H-1,2,4-Triazol-3-amine) -

Aniline (Benzenamine)

Antimony and compounds, N.O.S.*

Aramite (Sulfurous acid, 2 chloroethyl , 2-[4-(1,1-dimethylethyl) phenoxy]-1 methylethyl ester)

Arsenic and compounds, N.O.S.*

Arsenic acid (Orthoarsenic acid)

Arsenic pentoxide (Arsenic (V) oxide)

Arsenic trioxide (Arsenic (III) oxide)

^The abbreviation N.0.S. (not otherwise specified) signifies those members of the general class not specifically listed by name in this list.

61

[7590-01). .

l Auramine (Benzenamine, 4,4'-carbo,timidoylbis[N,N-Dimethyl , monohydro-

'~ chloride)

'Azaserine (L-Serine, diazoacetate (ester))

i Barium and compounds, N.O.S.* I l

Barium cya'nide, i

Benz [c] acridine (3,4-Benzacridine)

{

Benz [a] anthracene (1,2-Benzanthracene) -

I i

Benzene-(Cyclohexatriene) I 1

q Benzenearsonic acid (Arsonic acid, phenyl-)

j i 1 a Benzene, d'ichloromethyl- (Benzal chloride) j l Benzenethiol (Thiophenol) j

'I Benzidine ([1,l'-Bipheny1]-4,4' diamine)  ?

Benzo [b]fluoranthene (2,3-Benzofluoranthene)

Benzo [j]fluoranthene (7,8-Benzofluoranthene)  !

Benzo [a] pyrene (3,4-Benzopyrene) g p-Benzoquinone (1,4-Cyclohexadienedione)1 .

f i'

Benzotrichloride (Benzene, trichloroethyl) l Benzyl chloride (Benzene, (chloromethyl)-) i 1

1 l Beryllium and compounds,N.0.S.*

Bis (2-chloroethoxy) methane (Ethane, 1,l'-[methylenebis(oxy)] bis [2-chloro-]) 4

)

l Bis (2-chloroethyl) ether (Ethane, 1,l'-oxybis[2-chloro-])

i 1 N,N-Bis (2-chloroethy.1)-2-naphthylamine-(Chlornaphazine) i Bis (2-chloroisopropyl) ether (Propane, 2,2'-oxybis[2 chloro-])

l Bis (chloromethyl) ether (Methane, oxybis[ chloro-]) )'

I Bis (2-ethylhexyl) phthalate (1,2-Benzenedicarboxylic acid, bis (2-ethyl-hexyl)3 ester)

-l 62 I l

1 i

s

[7590-01]'

') 4 .

Bromoacetone (2-Propanone, 1-bromom)

Bromomethane (Methyl bromide) 4-Bromophenyl phenyl ether.(Benzene, 1-bromo-4 phenoxy-)  !

_{ ,

Brucine (Strychnidin-10-one, 2,3-dimethoxy-)

2-Butanone peroxide (Methyl ethyl. ketone, peroxide)

Butyl benzyl phthalate-(l,2-Benzenedicarboxylic acid, butyl phenyl- I methyl ester)  ;;

2 sec-Butyl-4,6-dinitrophenol'(DNBP) (Phenol, 2,4-dinitro-6-(1-methyl- i i

propyl)-) l i

l Cadmium and-compounds, N.0.S.* '

i Calcium chromate (Chromic acid, calcium salt) ,

Calcium cyanide l

{

, Carbon disulfide (Carbon bisulfide)  !

Carbon oxyfluoride (Carbonyl fluoride)

Chloral (Acetaldehyde, trichloro-)

Chlorambucil (Butanoic acid, 4-[ bis (2-chloroethyl) amino] benzene-)

Chlordane (alpha and gamma isomers) (4,7-Methanoindan, 1,2,4,5,6,7,8,8-octachloro-3,4,7,7a-tetrahydro-) (alpha and gamma isomers)'

Chlorinated benzenes, N.0.S.*

1 Chlorinated ethane, N.0.S.*

Chlorinated fluorocarbons, N.O.S*

Chlorinated naphthalene, N.O.S.*

Chlorinated phenol, N.O.S.*

l Chloroacetaldehyde (Acetaldehyde, chloro-)

Chloroalkyl ethers, N.0.S.* ,

p-Chloroaniline (Benzenamine, 4-chloro-)

I-l

[ - _ -- _ -- - --

_ _ _ _ _ _ _ _ _ _ - - - - - _ - - - - - - - - - - - - - ~ ~ - - - -~

[7590-01]. .

Chlorobenzene (Benzene, chloro-)

Chlorobenzilate (Benzeneacetic acid, 4-chloro-alpha-(4-chlorophenyl)-

alpha-hydroxy , ethyl ester) p-Chloro-m-cresol (Phenol, 4 chloro-3 methyl) 1-Chloro-2,3 epoxypropane (0xirane, 2-(chloromethyl)-)

2-Chloroethyl vinyl ether (Ethene, (2-chloroethoxy)-)

Chloroform (Methane, trichloro-)

Chloromethane (Methyl chloride)

Chloromethyl methyl ether (Methane, chloromethoxy-)

2-Chloronaphthalene (Naphthalene, betachloro-)

2-Chlorophenol (Phenol, o-chloro-)

1-(o Chlorophenyl) thiourea (Thiourea, (2 chlorophenyl)-)

3-Chloropropionitrile (Propanenitrile, 3-chloro-)

Chromium and compounds, N.0.S.*

Chrysene (1,2-Benzphenanthrene)

Citrus red No. 2 (2-Naphthol, 1-[(2,5-dimethoxyphenyl) azo]-)

Coal tars Copper cyanide Creosote (Creosote, wood)

Cresols (Cresylic acid) (Phenol, methyl-)

Crotonaldehyde (2-Butenal)

Cyanides (soluble salts and complexes), N.0.S.*

Cyanogen (Ethanedinitrile)

Cyanogen bromide (Bromine cyanide)

Cyanogen chloride (Chlorine cyanide)

Cycasin (beta-D-Glucopyranoside, (methyl-0NN-azoxy) methyl-)

64

_ - = = = _ _ - - _ _ _ _--_ - - - - - - - - - - - - - - -

y- <

7

~~

~

[7590-01]>

f} .

2-Cyclohexyl-4,6-dinitrophenol-(Phenol,i2cyclofexyl-4,6-dinitro-)~

-Cyclophosphamide (2H-1,3 2,-0xazaphosphortne,.[ bis (2-chloronthyl).

amino]-tetrahydro ,2-oxide)

. Daunomycin (5,12-Naphthacenedione, (8S-cis)-8-acetyl-10-[(3-amino-2,3,- ,

' 6-trideoxy)-alpha-L-lyxo-hexopyranosyl) oxy]-7,8,9,10-tetrahydro- "

6,8,11-trihydroxy-1-methoxy-)

DDD (Dichlorodiphenyldichloroethane) (Ethane, 1,1-dichloro-2,2-bis (p-i chlorophenyl)-)- '

DDE'(Ethylene,1,1-dichloro-2,2-bis (4-chlorophenyl)-)

DDT (Dichlorodiphenyltrichloroethane)-(Ethane,,1,1',1-trichloro-2,2-bis

-(p-chlorophenyl)-)-

Dia11 ate ('S-(2,3'dichloroa11yl)'diisopropylthiocarbamate)

Dibenz[a,h] acridine (1,2,5,6-Dibenzacridine)

Dibenz[a,j] acridine (1,2,7,8-Dibenzacridine)-

Dibenz[a,h] anthracene (1,2,5,6-Dibenzanthracene) 7H-Dibenzo[c',g] carbazole (3,4,5,6-Dibenzcarbazole)

Dibenzo[a,e] pyrene (1,2,4,5-Dibenzpyrene)

Dibenzo[a,h] pyrene (1,2,5,6-Dibenzpyrene) l Dibenzo[a,i] pyrene (1,2,7,8-Dibenzpyrene) 1 1,2-Dibromo-3-chloropropane (Propane, 1,2-dibromo-3-chloro-)

1,2-Dibromoethane (Ethylene dibromide)

Dibromomethane (Methylene bromide)

Di n-butyl phthalate (1,2-Benzenedicarboxylic acid, dibutyl ester) o-Dichlorobenzene..(Benzene,1,2-dichloro-)'

m-Dichlorobenzene (Benzene,'1,3-dichloro-)

p-Dichlorobenzene (Benzene, 1,4-dichloro-)

Dichlorobenzene, N.O.S.* (Benzene, dichloro , N.0.S.*)

65

t DS90f01'], .- ]1 1 u 3,3!-Dichlorobenzidine ([1,1'-Bipheny1]-4,4'-diamine,,3,3'-dichloro-).  !

i 1,4-Dichloro-2-butene (2-Butene, 1,4-dichloro-)

.i Dichlorodifluoromethane (Methane, dichlorodifluoro-) H

\

1,1-Dichloroethane (Ethylidene dichloride) l l',2-Dichloroethane (Ethylena dichloride) trans-1,2-Dichloroethene (1,2-Dichloroethylene) 3 Dichloroethylene, N.0.S..*-(Ethene,-dichloro , N.0;S.*) .

I 1,1-Dichloroethylene (Ethene, 1,1-dichloro-)

I Dichloromethane (Methylene chloride) i 2,4-Dichlorophenol.-(Phenol, 2,4-dichloro-)

2,6-Dichlorophenol (Phenol, 2,6-dichloro-)

2,4-Trichlorophenoxyacetic acid (2,4-D), salts and esters (Acetic' acid, 2,4-dichlorophenoxy , salts and esters) l I

Dichlorophenylarsine (Phenyld'ichloroarsine)

Dichloropropane, N.O.S.* (Propane, dichloro-, N.O.S.*) '

1,2-Dichloropropane (Propylene dichloride)

Dichloropropanol, N.O.S.'* (Propanol, dichloro , N.O.S.*)-

Dichloropropene, N.0.S.* (Propene, dichloro , N.0.S.*)

1,3-Dichloropropene (1-Propene, 1,3-dichloro-)

l Dieldin (1,2,3,4,10.10-hexachloro-6,7 epoxy-1,4~,4a,5,6,7,8,8a-octa-hydro-endo, exo-1,4:5,8-Dimethanonaphthalene) 1,2:3,4-Diepoxybutane (2,2!-Bioxirane)

Diethylarsino (Arsine, diethyl-)

N,N-Diethy1hydrazine (Hydrazine, 1,2-diethyl) 0,0-Diethyl S-methyl ester of phosphorodithioic acid (Phosphorodithioic acid,.0,0-diethyl-S-methyl ester)-

66 l

_ _T ~_ r: _:_--_ _ - _ - - _ _ - _ _ - - _ - - _ - - - - _ _ _ .-__ - -

' : ;,1 '

, [7590-01]L q

,f,,f 9p. q 0,0-Diethylphosphoric acid, 0 p nitrophenol ester.(Phosphdric acid. 'E i

diethyl p-nitropheny1Dester) o

'h Diethyl phthalate (1,2-Benzenedicarboxylic. acid, diethyl. ester) 1 0,0-Diethyl 0 2 pyrazinyl phosphorothioate (Pho'sphorothioic acid, ,

0,0-diethyl 0 pyrazinyl ester)

Diethylstilbesterol(4,4'-Stilbenediol', alpha, alpha-diethyl[

bis (dihydrogen phosphate, (E)-)

Dihydrosafrole-(Benzene, 1,2-methylenedioxy-4 propyl-)

3,4-Dihydroxy-alpha-(methylamino) methyl benzyl alc'ohole(1,2-Benzenediol,; 1

'4-[1-hydroxy-2-(methylamino)ethy1]-)

Dilsopropylfluorophosphate (DFP);(Phosphorofluoridic acid,-

bis (1-methylethyl) ester) l Dimethoate (Phosphorodithioic acid, 0,0-dimethyl S-[2-(methylamino) oxoethy1] ester)-

3,3'-Dimethoxybenzidine ([1,1'-Bipheny1]- 4,4'-diamine, 3-3 i-dimethoxy-) )

p-Dimethylaminoazobenzene (Benzenamine, N,N-dimethyl-4-(phenylazo)-);  !

7,12-Dimethylbenz[a] anthracene (1,2-Benzanthracene, 7,12-dimethyl-) l 3,3'-Dimethylbenzidine ([1,1'-Bipheny1]-4,4'-diamine,'3,3'-dimethyl-)

Dimethylcarbamoyl chloride (Carbamoyl chloride, dimethyl-).

1,1-Dimethy1hydrazine (Hydrazine, 1,1-dimethyl-) #'

1,2-Dimethy1hydrazine (Hydrazine, 1,2-dimethyl-)

3,3-Dimethyl-1-(methylthio)-2-butanone, 0-[(methylamino) carbony1]  !

oxime (Thiofanox) alpha, alpha-Dimethylphenethylamine (Ethanamine, 1,1-dimethyl-2 phenyl-)~

2,4-Dimethylphenol (Phenol,.2,4-dimethyl-)

Dimethyl phthalate (1,2-Benzenedicarboxylic acid, dimethyl ester)

Dimethyl sulfate (Sulfuric acid, dimet:,y1 ester) 67

. - - - __ - _ _ - . ._. _ _ _ _ _ - _ - _ _ _ _ - _ _ _ _ _ _ _ _ _ - _ _ - _ _ _ _ _ - _ =

.'[7590-01]m 76 j

< , h-!j

. n

-Dinitrobenzenes,.N.0;S.*!(Berrene;odinitro-,,N.'O.S.*)-

.l E 2

'4,60ihitro-o-cresol?and: salts:(Phen'ol,2;4-dinitro-6-met.hyl,.andsalts)

-2,4-Dinitrophenol (Phenol, 2,4i dinitro-)- L 2,4-Dinitrotoluene1(Benzene,1-methyl-2,4-dinitro-)L 1 -; 1 .

t2,6-Dinitrotoluene (Benzene,.1-methyl-2,6-dinitro-)-

'[

Di n-octyl phthalate (1,2-Benzenedicarboxylic. acid, dioctyl ester) '

l 1,4-Dioxane (1,4-Diethyleneroxide):

DiphenylamineJ(Benzenamine, N phenyl-)'

1,2-Dipheny1hydrazine~(Hydrazine,31.,2-diphenyl-). ,

p g 01 n propylnitrosamine (N-Nitroso-di-n propylamine)-

Disulfot'on.(0,0-diethyl S-[2-(ethylthio)ethy1] phosphorodithioate)'.

2,4-Dithiobiuret (Thioimidodicarbonic diamide)- 4 Endosulfan-(5-Norbornene, 2,3-dimethanol, 1,4,';6,7,7-hexachloro 5 .

cyclic sulfite) "

Endrin and metabolites-(1,2,3,4,10,10-hexachloro-6,7-epoxy-1,4,4a,5',6, 7,8,8a-octahydro endo, endo-1,4:5,8-dimethanonaphthalene, and' metabolites)

Ethyl carbamate (Urethan) (Carbamic acid, ethyl ester)

Ethyl _ cyanide (propanenitrile)

Ethylenebisdithiocarbamic acid,. salts and e'sters (1,2-Ethanediyl-biscarbamodithioic acid, salts and esters)

Ethyleneimine (Aziridine)

Ethylene;oxidel(Oxirane)t Ethylenethiourea (2-Imidazolidi-nethione)

Ethyl methacrylate (2-Propenoic acid, 2-methyl , ethyl-ester)

Ethyl methanesulfonate (Methanesulfonic acid, ethyl ester) +

.j Fl uo ranthene . '(Benzo [j , k] fl uorene) '

y q

a 68

-l

7 t '

e O

_[7590-01]

\

Fluorine' N 2-Fluoroasi umide (Acetamide, 2-fluoro-) ,

S4 , ,

A Fluoroacetic aciif, sodivs '

ms; sbit (Acetic acid,' fluoro , sodium sdjt) - "

,n , ,o n Forraaldehyde -(Methylene ' oxide) l' N"

'g;

, i ,

s p.

Formic acid (MetlianoWacid) ~

Glycidylaldehyde-(1-Propatirl 2,3 epoxy [ '

Halomethane, N.0,S.*

Heptachlor(4,7-MethanotI!tindene, 1,4,5,6,7,8,8-heptachloro-3a,4,7,7a-

\*

tetrahydro-)

Heptachlor epoxice (alpha, beta, and gamma isomers) (4,7-Methano-1H-indene,- 1,4,5,6,7.,8,5-h9ptachloro-2,3 epoxy-3a,4,7,7-t trahydro ,

,x alpha, beta, ind gamme isom,Us) s Hexachlorobenzene (Ben)ane, hexadhloro-) , .

s ,

Hexachlorobutadiene (1,32Butadiene, 1,1,2,S',C,4chexach,loro-)

ce Hexachlorocyclothhoe (all isomers) (Lindane and isomers)~,T' Hexachlorocyc1opentadiene (1,3-Cyclopentadiene, 1,2,3,4,5,5-hexachloro-)

Hexachloroethane (Ethane, 1,1,1,2,2, ,c 2 hexachloro-)

1,2,3,4,10,10-Hexachl o ro-1,4,4a ,5,8,8a- hexahydro-1,4: 5,8-endo se ndo-dimethanonaphthalene (HeXschlorohexa-hydro-endo, endo-dimethanonaphthalene) ,

Hexachloropherie (U,2f-Methylenebis(3,4,6-trichloro,iitenol)

Hexachloropr0 pen,e (1-Prope,A,11,1,2,3,3,3-hexachinNr-)

o s.. ,

Hexaethyl tetraphosph6te s(7etraphosphoric s acid, hexaethyl ester) y t Hydrazine (Diamine)

Hydrocyanic acid (Hydrogen cyanide)

Hydrofluoric acid (Hydrogen fluoride) x s T

mg

  • 69

1

'[7590-01), .

J Hydrogen sulfide-(Sulfur hydride)

Hydroxydimethylarsine oxide (Cacodylic acid)

Indeno (l',2,3-cd) pyrene (1,10-(l',2 phenylene) pyrene)

Iodomethane..(Methyl iodide)

\

Iron dextran (Ferric dextran) ,

Isocyanic acid,. methyl ester.(Methyl.isocyanate)'

Isobutyl alcohol (1-Propanol, 2-methyl-)~

~

Isosafrole (Benzene, 1,2-methylenedioxy-4-allyl-)

Kepone (Decachlorooctahydro-1,3.,4-Methano-2H-cyclobuta[cd]pentalen-2-one)

Las'iocarpine (2-Butenoic acid, 2-methyl , 7-[(2,3-dihydroxy-2-- '

(1-methoxyethyl)-3-methyl-1-oxobutoxy) methyl]-2,3,5,7a-tetrahydro-1H pyrrolizin-1 yl ester)

Lead and compounds, N.0.S.*

Lead acetate (Acetic acid, lead salt) i Lead phosphate (Phosphoric acid, lead salt)

Lead subacetate (Lead, bis (acetato-0)tetrahydroxytri-)

Maleic anhydride (2,5-Furandione) '

Maleic hydrazide (1,2-Dihydro-3,6 pyridazinedione)

Malononitrile (Propanedinitrile)

Melphalan (Alanine, 3-[p-bis (2-chloroethyl) amino]phenyl ,L-)

Mercury fulminate-(Fulminic acid, mercury salt)

Mercury and compounds, N.O.S.*

Methacrylonitrile:(2-Propenenitrile,2-methyl--)

Methanethiol (Thiomethanol)

Methapyrilene (Pyridine, 2-[(2-dimethylamine)ethy1]-2-thenylamino-) (

Metholmyl (Acetimidic acid, N-[(methylcarbamoyl) oxy] thio , methyl ester)

Methoxychlor (Ethane, 1,1,1-trichloro-2,2.'-bis (p-methoxyphenol)-)r  !

70 5

.[7590-01]

'I

~

2-Methylaziridine-(1,2-Propylenimine) j 3-Methylcholanthrene (Benz [j]aceanthrylene,11,2 dihydro-3-methyl-)

f Methyl chlorocarbonate (Carbonochloridic acid, nethyl' ester) t 4,4'-Methylenebis(2-chloroaniline) (Benzenamine, 4,4'-methylenebis-a (2-chloro-) l Methyl ethyl ketone (MEK) (2-Butanone)

Methyl hydrazine (Hydrazine,' methyl-)

b 2-Methyllactonitrile (Propanenitrile, 2-hydroxy-2-methyl-) '

Methyl methacrylate (2-Propenoic acid, 2-methyl , methyl ester)

Methyl. methanesulfonate (Methanesulfonic acid, methyl ester)'-

2-Methyl-2-(methylthio)propionaldehyde-o-(methylcarbonyl) oxime (Propanal, 2-methyl-2-(methylthio) , 0-[(methylamino)carbonyl] oxime) i N-Methyl-N' nitro-N-nitrosoguanidine (Guanidine, N-nitroso-N-methyl-N'-

nitro-)

Methyl parathion (0,0-dimethyl 0-(4-nitrophenol) phosphorothioate) l 1

Methylthiouracil (4-1H-Pyrimidinone, 2,3-dihydro-6 methyl-2-thioxo-)

Molybdenum and compounds, N.0.S.*

i Mustard ga, (Sulfide, bis (2-chloroethyl)-)

Naphthalene 1,4-Naphthoquinone (1,4-Naphthalenedione) i 1-Naphthylamine (alpha-Naphthylamine) t 2-Naphthylamine (beta-Naphthylamine)  !

1-Naphthyl-2-thiourea (Thiourea, 1-naphthalenyl-) l Nickel and compounds, N.0.S.*

Nickel carbonyl (Nickel tetracarbonyl) i Nickel cyanide (Nickel (II) cyanide)

Nicotine and salts (Pyridine, (S)-3-(1 methyl-2 pyrrolidinyl) , and salts) i q

l 71

_-__ - _ A

., 1 o-

-[7590-013ol , :p]-

l Nitric'. oxide'(Nitrogen (II): oxide)~

Q a

q

-p-Nitroaniline:(Benzenamine,4-nitro-).

Nitrobenzine_(Benzene, nitro-)

~

Nitrogendioxide(NitrogenNIV) oxide) .'

R, Nitrogen mustard and hydrochloride salt,(Ethan'mine, a 2-chloro ,

~N-(2-chloroeth 1)- N-methyl , and;hydrochlorideLsalt) ,

,q NitrogenmustardN-dxide:and.hydrochloridesalt-(Ethanamine,_2-chloro, L N-(2-chloroethyl)-N-methyl , and'. hydrochloride! salt)

Nitroglycerine'(1,2,3-Propanetriol, trinitrate). '

4-Nitropheno13 (Phenol, 4-nitro-)=

4-Nitroquinoline-1-oxide'(Quinoline, 4 nitro-1-oxide-)

i .Nitrosamine, N.0.S.* -

l N-Nitrosodi n-butylamine.(1-Butanamine, N-butyl-N-nitroso.).

N-Nitrosodiethanolamine (Ethanol,'2,2'-(nitrosoimino) bis-)' '

N-Nitrosodimethylamine (Ethanamine, N-ethyl-N-nitroso-): i N-Nitrosodimethylamine (Dimethylnitrosamine):

N-Nitroso-N-ethylurea'(Carbamide,N-ethyl-N-nitroso-)~

N-Nitrosomethylethylamine-(Ethanamine', N-methyl-N-nitroso-)

N-Nitroso-N-methylurea (Carbamide, N-methyl-N-nitroso-) '

N-Nitroso-N-methylurethane (Carbamic acid, methy1nitroso ,-ethyl ester)-

N-Nitrosomethylvinylamine.(Ethenamine,.N-methyl-N-nitroso-) .

N-Nitrosomorpholine:(Morpholine,N-nitroso-)

N-Nitrosonornicotine-(Nornicotine,'N-nitroso-)- i' N-Nitrosopiperidine (Pyridine, hexahydro , N-nitroso ) <

Nitrosopyrrolidine (Pyrrole, tetrahydro , N-nitroso-)

N-Nitrososarcosine (Sarcosine, N-nitroso-) .;

1 i

72 ,

. , . e' ,

[7590-01]- ,:

5-Nitro-o-toluidine (Benzenamine,
2-methyl-5 nitro-)'

Octamethlpyrophosphoramide'(Diphosphoramide, octamethyl-)

Osmium tetroxide (Osmium-(VIII)'oxid'i) f 7-0xabicyclo[2.2.1] heptane-2,3-dicarboxylic' acid'(Endothal)-

Paraldehyde (1,3,5-Trioxane, 2,4,6-trimethyl-)

l Parathion'(Phosphorothioic acid,'0,0-diethyl 0-(p nitrophenol) ester).

Pentachlorobenzene (Benzene, pentechloro-)

Pentachloroethane (Ethane,:pentachloro-)

l Pentachloronitrobenzene (PCNB) (Benzene, pentachloronitro-)

Pentachlorophenol (Phenol, pentachloro-)-

Phenacetin (Acetamide, N-(4-ethoxyphenyl)-)

Phenol (Benzene,. hydroxy-)

Phenylenediamine (Benzenediamine)

Phenylmercury acetate (Mercury, aceta'ophenyl-)

t N-Phenylthiourea (Thiourea, phenyl-)-

Phosgene (Carbonyl. chloride)

Phosphine (Hydrogen phosphide)

Phosphorodithioic acid, 0,0-diethyl S-[(ethyltH o) methyl] ester (Phorate)

Phosphorothioic acid, 0,0-dimethyl 0-[p-((dimethylamine) sulfonyl)phenyl]

l ester (Famphur)

Phthalic acid esters, N.0.S.* (Benzene, 1,2-dicarboxylic acid,' esters, N.0.S.*)

Phthalic anhydride (1,2-Benzenedicarboxylic acid anhydride) 2-Picoline (Pyridine, 2 methyl-)

Polychlorinated biphenyl, N.O.S.*

Potassium cyanide L

73-l

'[7590-01). ;.

l Potassi.um silver-cyanide (Argentate(1-), dicyano , potassium).

Pronamide.(3,5-Dichloro-N-(l',1-dimethyl-2 propynyl) benzamide) i 1,3-Propane sultone (1,2-0xathiolane, 2,2-dioxide) 4

-n-Propylamine (1-Propanamine)

Propylthiouracil.(Undecamethylenediamine, N,N'-bis (2-chlorobenzyl-),

dihydrochloride) 2-Propyn-1-ol (Propargy1 alcohol)' '

i Pyridine Radium -226 and -228 d i

Reserpine (Yohimban-16-carboxylic acid, 11,17-dimethoxy-18-[3,4,5- l trimethoxybenzoyl) oxy] , methyl ester) '

Resorcinol (1,3-Benzenediol) >

Saccharin and salts- (1,2-Benzoisothiazolin-3-one,.1,1-dioxide, and salts) l Safrole (Benzene, 1.2 methylenedioxy-4-allyl-) i Selenious acid (Selenium dioxide)

Selenium and compounds, N.0.S;*

Selenium sulfide (Sulfur selenide)

Selenourea (Carbamimidoselenoic acid)

Silver and compounds, N.O.S.*

Silver cyanide .

Sodium cyanide.

1 3

i Streptozotocin-(D-Glucopyranose,.2-deoxy-2-(3-methyl-3-nitrosoureido)-)  !

l Strontium- sulfidea j Strychnine and salts (Strychnidin-10-one, and salts)

{

I 1,2,4,5-Tetrachlorobenzene (Benzene, 1,2,4,5-tetrachloro-)..

l 2,3,7,8-Tetrachlorodibenzo p-dioxin (TCDD) (Dibenzo p-dioxin, 2,3,7,8-tetrachloro-)'

74

[7590-01].

Tetrachloroethane' N.0.S.* (Ethane, tetrachloro , N.0.S.*)

1,1,1,2-Tetrachlorethane (Ethane,!1,1,1,2-tetrachloro-)~

1,1,2,2-Tetrachlorethane (Ethane, 1,1,2,2-tetrachloro-) 4 Tetrachlo'roethane (Ethene, 1,1,2,2-tetrachloro-)-

Tetrachloromethane (Carbon tetrachloride) 2,3,4,6,-Tetrachlorophenol (Phenol, 2,3,4,6-tetrachloro-)

Tetraethyldithiopyrophosphate'(Dithiopyrophosphoric acid, totraethyl-ester) j Tetraethyl lead (Plumbane, tetraethyl-)

Tetraethylpyrophosphate'e (Pyrophosphoric acide, tetraethyl ester) ]

Tetranitromethane (Methane, tetranitro-)

Thallium and comp.ounds, N.0.S.*

Thallic oxide (Thallium (III) oxide) j i

Thallium (I) acetate (Acetic acid, thallium (I) salt) i Thallium (I) carbonate (Carbonic acid, dithallium (I), salt).

Thallium (I) chloride .l' Thallium (I) nitrate'(Nitric acid, thallium (I) salt)

Thallium selenite .

i Thallium (I) sulfate (Sulfuric acid, thallium-(I) salt)

]

Thioacetamide (Ethanethioamide) j Thiosemicarbazide (Hydrazinecarbothioamide) l Thiourea (Carbamide thio-)

.Thiuram (Bis (dimethylthiocarbamoyl) disulfide)

Thorium and compounds, N.O.S.*, when producing thorium byproduct material Toluene (Benzene, methyl-)

.Toluenediamine (Diaminotoluene) o-Toluidine hydrochloride (Benzenamine, 2-methyl , hy'drochloride) 75

_ ______d

[7590-01].t 7.:

Tolylene. diisocyanate-(Benzene,1,3-diisocyanatomethyl-).

Toxaphene (Camphene, octachloro-) ~i Tribromomethane (Bromoform) -

q 1,2,4-Trichlorobenzene (Benzene,'1,2,4-trichloro-)

]

1,1,1-. Trichloromethane-(Methyl chloroform) )

1,1,2-Trichloromethane (Ethane, 1,1,2-trichloro.)

g Trichloroethene (Trichlorethylene) R i

,9 Trichloromethanethiol (Methanethiol, trichloro-)

1 Trichloromonofluoromethane (Methane, trichlorofluoro-) j 2,4,5-Trichlorophe'nol (Phenol, 2,4,5-trichloro-)

2,4,6-Trichlorophenol (Phenol, 2,4,6-trichloro-)'

i 2,4,5-Trichlorophen'oxyacetic acid (2,4,5-T)

(Acetic acid, 2,4,5-trichlorophenoxy-)

2,4,5-Trichlorophenoxypropionic acid (2,4,5-TP) (Silvex)'

(Propionoic acid, 2-(2,4,5-trichlorophenoxy)-).

Trichloropropane, N.O.S.* (Propane; trichloro , N.O.S.*)

1,2,3-Trichloropropane (Propane, 1,2,3-trichloro-)

0,0,0-Triathyl phosphorothioate (Phosphorothioic acid, 0,0,0-triethyl ,

ester)

.q sym-Trinitrobenzene (Benzene, 1,3,5-trinitro-) .

Tris (1-azridinyl) phosphine sulfide-(Phosphine sulfide,-

tris (1-aziridinyl-)

i Tris (2,3-dibromopropyl) phosphate-(1-Propanol, 2'3-dibromo-,. phosphate)

Trypan blue (2,7-Naphthalenedisulfonic acid, 3,3'-[(3,3'-dimethyl (1,l'-biphenyl)- 4,4'-diyl) bis (azo)] bis (5-amino-4-hydroxy ,

tetrasodium salt) 76

[7590-01]:

Uracil, mustard (Uracil 5-[ bis (2-chloroethyl) amino]-)

Uranium and compounds, N.O.S.*

Vanadic acid,Lammonium salt-(ammonium vanadate)

< Vanadium pentoxide (Vanadium (V) oxide)-

Vinyl chloride,(Ethene, chloro-)

~

3 Zinc cyanide Zinc phosphide Dated at Washington, DC this ~ day of ,'1987.

For The Nuclear Regulatory Commission.

i 1

l Samuel J. Chilk, Secretary of the Commission.

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Minutes of 7/22/87 Meeting with EPA l \

l ENCLOSURE C

..- e

-8 of ' UNITED STATES f

g p, - NUCLEAR REGULATORY COMMISSION 5, - WASHINGTON, D. C. 20566 ,

% *** ** # JUL 301987 l

Mr. Floyd'L. Galpin, Acting Director I Criteria'and Standards Division Office.of Radiation Programs U.S. Environmental Protection Agency Washington, DC 20460 -

i

Dear Mr. Galpin:

Enclosed for your information and records are'NRC's meeting minutes for our'-

meeting on July 22, 1987, held to discuss your coments and concerns about the final rule, " Uranium Mill Tailings: Ground-Water Protection and Other Issues."

If you' have 'any problems with the minutes', please. call me (427-4433) or Kitty Dragonette(427-4763). As we discussed,'this rule was forwarded to the .

Commission on July 20, 1987, and is currently under review by the Commission-and Comission staff.

I have also enclosed a copy of th.e brief filed by the. Environmental Defense Fund (EDF) in the Tenth Circuit, Denver for your information. In the meeting we indicated that our response to the EDF brief was due by July 29, 1987.. The due date is now August-12, 1987.

Sincerely, b

/alcolm M R

. Knapp, $Mf Director Division of Low-Level. Waste Management and Decommissioning

Enclosures:

1. Meeting Minutes
2. .EDF Brief I

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I Enclosure 1 l

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______A_____._._,m-_._____.___ . _ . . _ _ . _ _ . . _ _ ___ ._ m__.,_._.__

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. 0 ,

MEETING MINUTES '

Time and Place: 9:30 a.m.,' Wednesday,~ July 22, 1987 Room 219 NE Mall, Waterside Mall Attendees: U.S.. Environmental. Protection Agency. Office of Radiation Programs:

Sheldon Meyers (part time)

Floyd Galpin Jack Russell Allan Richardson Stan Lichtman 1 i

U.S. Nuclear Regulatory-Comission:

Malcolm Knapp, LLWM Robert Fonner, 0GC Kitty Dragonette, LLWM j

Purpose:

To discuss EPA coments and. concerns about the draft final' rule,  !

" Uranium Mill Tailings Regulations: Ground-Water Protection and Other Issues." i l

Background:

NRC is required by law to conform to final EPA standards for .l uranium and thorium mill tailings published October 7, 1983, (48 FR 45926) as Subparts D and E to 40 CFR Part 192. NRC is addressing this mandate in two 1 steps. The first step was completed with the publication of final' rule changes on October 16, 1985, (50 FR 41852). These final' amendments primarily incorporated the stability and radon release provisions of the. EPA standards.

' A proposed rule to address the second step was published for coment on' July 8, 1986, (51 FR 24697). The second step on ground-water protection will complete r NRC's conformance. The Director of the Office of Nuclear Materials Safety and Safeguards provided the EPA Office of Radiation Programs a draft copy.of the final rule, " Uranium Mill Tailings Regulations: Ground-Water Protection and Other Issues," on July 16, 1987. The final rule was forwarded.to the Commission by the Executive Director.for. Operations.on July 20, 1987. EPA's Office of Radiation Programs requested a meeting to present EPA coments and concerns about the draft final rule.  :

i Discussion: EPA provided coments as talking ~ notes for the meeting. -See Enclosure 1. Each of the coments were discussed. The discussions resulted in i

a better understanding of each Agency's position on the EPA coments. No  !

specific edits were discussed.to address comments.1 and 2 a) and the first bullet under b), but the potential for edits to more clearly state and support NRC's position was noted. In addition, EPA agreed that the existing

(

requirements for. closure plans in Criterion 9 of Appendix A to 10 CFR Part 40 satisfy the comment on closure plans listed under comment 2 c) and therefore i no changes are needed.

m . '

F ... .

2 The discussions.did lead to specific edits to the preamble and text of.the- '

final rule that would satisfy EPA's concerns in the second bullet under comment 2 b), the other two bullets under coment 2 c), and comments 3 and 4. The edits that would be acceptable to EPA staff are shown in pen and ink changes in Enclosure 2. The changes requested.by EPA address both new text added based on coments and text that was unchanged- from the proposed rule. The latter changes are informal additions to formal EPA comments provided on the proposed rule..

EPA noted that EPA no longer has copies of the EPA documents referenced-in footnote 1 on page 41 and that readers should be referred to NTIS instead.

NRC staff agreed to carefully consider the specific. edits in Enclosure 2 and l the concerns expressed about the remaining coments. NRC staff indicated that l some edits may be possible during the Commission review, but that the EPA edits in Enclosure 2, any additional edits staff might develop to address EPA concerns, and EPA's remaining concerns will have to be discussed with upper management, Commissioner staffs, and the Commissioners.

M. Knapp agreed to take EPA's comments under advisement, but.he stated that he could offer no assurance that any of the changes discussed in the meeting would be madE He also agreed to F. Galpin's request to keep EPA posted on any resolution of EPA's concerns and any changes to the notice.

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Attachments:  !

1. EPA coments dtd 7/22/87 l'
2. Pen and ink edited pages

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Attachment 1 9' - . fe ~

EPA, Office of'Ra'diEtion' Programs 7/22/87-Comments on'NRC's draft Final Rule

for Uranium. Mill Tailings Regulations: # 'Groundw' ate r Protection and Other Issues-Compliance with Section 84(a)(3) ofithe Atomic' Energy Act Section 84(a)(3) requires NRC, with EPA's concurrence to regulate tailings comparablyLto the manner in which EPA.

-regulates hazardous wastes under RCRA. NRC has been regulating tailings without such concurrence, and therefore is not in compliance with.Section 84(a)(3)'. The current rulemaking appears designed.to continue noncompliance and avoid obtaining concurrence,Lbecause it would establish no procedure or-schedule for complying with Section 84(a)(3).

Moreover, NRC would assert (pg. 12) that the current-rulemaking "does not fully satisfy Section 84a(3)...", which I implies that it may partially satisfy the comparability requirement. NRC'may not make such an assertion without EP3's concurrence.

Note also that in our view, and contrary to NRC's; draft

_ preamble,(pg. 12, J4), there may be_ alternatives to rulemaking as.a process for complying with Section 84(a)(3). For example,

' NRC's existing rules may already be comparable, or can be made so:byadoptingappropriatesupportingguidelinesand_ policies,j .

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2.- Conformance:to EPA's standards ~ '

A Section.84(a)(2) of.the AEA. requires.NBC to-conform to EPA's UMTRCA standards. 1

.a a) NRC's rulemaking would not conform to' EPA's~ concurrence requirements for ACLsLand delisting of hazardous constituents.

NRC had previously;agreedsto pursue as an alternative the development'.of a mutually' agreed-upon' methodology for NRC to.use.

in making such judgments. NRC has abandoned this process and proposed no substitute. (pgs. 32-33, 50, 52) b) The draft final rule would change the wording of. EPA's standards and thereby make unauthorized changes in some standards. .

A changed definition of " aquifer" would alter the applicability of the standard (pgs. 18-20, 45).

.The standard for gross: alpha contamination would

. . . . . _ . incorrectly not exclude uranium activity for thorium processing.

sites. (pg. 54) c) Other points should be clarified t a

1 J

NRC would allow " adjustment" of the point of.

...______._. compliance , but doesn ' t - say-for-what-reason-or- pu rpose ( pgs . 21, - -

49).

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3.

.i

. Section'192.31 of' EPA's standard 1 refers toith'e j i

closure plan required under 40.CFR-264.~112.-'NRC's' draft final rule-does not appear to require:as-complete a; plan, ,

i j

,. o EPA's ALARA requirement for ACL's (40-CFR

. ]

192.32(a)(2)(iv)) would not be' codified. effectively under NRC's-draft final rule (pg. 52).

1

3. Section 84c of the Atomic Energy Act W

l NRC's new preamble indicates.that.we now agree on the basic meaning of Section 84c (pgs. 28-29), except that the quotation (pgs.427-28) from a prior rulemaking-'is now inconsist'ent and misleading. The quotation should be-deleted. Furthermore, references (pg. 29) to cost as a basis for. action under Section 84c are incorrect, because Section 84C does not. list cost among l

the factors that may be taken into account. Those factors are local or regional conditions, including geology, topography, hydrology and meteorology.

4

4. Miscellaneous CommentsSection VI of the draft preamble (pg. 39), though entitled-" Coordination with EPA," fails.to discuss 4that subject

~

-and adds.nothing otherwise. The sectron should be~ deleted, a 4

s.

t 1

l EPA did not require site-specific concurrences (pg.

26) for exemptions or ACLs.

There are mechanisms for obtaining generic concurrences.

It is misleading to label the basic groundwater standard as a " default" option (pg. 31). The term.should be removed. '

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'l Attachment 2 '

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j (7590-01] ,

,, ,1 The; Commission recognizes that'for new' impoundments, Administrative.

]

controls coupled with' analyses of the~ ore can: provide an effective means

~

ea -l of controlling and: identifying _which: constituents are.being.added to the' I

.new impoundment.- '}'

i 1

NRC 'is conducting an-impoundment liquids sampiing program,- Results.to' i

date confirm the general consensus that'many of'the listed constituents are not present in the sampled-impoundments. NRC's experience'may_'be:

]

useful to ' licensees in developing sampling' programs and'it will facilitate review of licensee programs and results. NRC's program suggests that

)

impoundment sampling is a feasible option for a licensee to pursue to help' .

address which constituents could' be ' expected to be in 'or derived from existing impoundments.

Comments. J Two commenters suggested deleting Paragraph 5B(3) which; incorporates the provision to exclude detected constituents if they will not pose a significant present or potential hazard to h'uman health ~or the-environment. One objected-to any. unregulated pollution by a known hazard-ous material and one read the incorporated language as giving NRC authority exceeding that EPA intended for itself.

The commenter stated that EPA use of this exemption is limited to exclusion from monitoring only. A er kn. environmental comenter disagreed with NRC's legal view that EPA exceeded its jurisdiction in 40 CFR Part 192 by requiring site'-specific concurrences before any exemption of constituents is final._ Industry commenters supported NRC's view. Both positions claimed support in the legislative history and statutory language. One commenter disagreed with the Commission's view that EPA concurrence is a procedural rather.than 20

limits may stem from a misconception of what the Commission understands alternative site specific standards to be. The Commission would expect a licensee, first, to attempt to meet all regulations and standards as irsued. The effective standards should always be viewed as the goal. 'If site-specific circumstances would make compliance physically impossible, f k reld % 40 % beneQPt n be J%

technically irnpracticable, or excessively costly, then alternatives should %3 be considered. The alternatives proposed should meet the objectives of '

o

  • h Nsk the established standards so that NRC can find that the citernatives provide a level of health and environmental protection equivalent, to the extent practicable, to promulgated standards. The Commission does not view the provision as an open invitation to disregard the standards and set new goals, and believes that the language in Section 84c requiring an equiva-1ency or more stringent finding precludes such a. view. To illustrate, assume the standard has a numerical value of X but meeting X instead of Y would require extraordinary expense or might compromise the soundness of the impoundment structure or safety monitoring features. The alternative limit to be proposed may be Y for the specific circumstances. NRC must find that Y provides equivalent protection, to the extent practicable, to X.

The commenters rejected the Commission's position that site specific concurrences denract from the Commission's statutory discretion under Section 84c of the AEA and that the matter is primarily a procedural one.

Nevertheless, the Commission continues to believe that rejection of EPA site specific concurrences is the correct legal position. Therefore, the Commission is issbing the final rule without any provision for EPA concur-rence in delisting constituents or alternate concentration limits. )

29

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-. [7590-01] ;

s.

The EPA secondary standard in 5B(5);is.a1 site-specific choice of threet equal: options: background,; referenced drinking ~ water-ifmits (see SC),-or..

alternate concentration limits. 'However,-if the licensee (chooses to pursue 4 the alternate concentration limit option, then the licensee must expend.the resources to. collect the'information and do the. analyses to support an.

hsle . ,

alternate concentration'. The licensee may choose the' e background.

or drinking water options as the more economic or.' timely. The licenseo

'bss,'c ]'i would not have to address health 'and environmental risks with the d='- - "

choices because these are conceded to involve acceptable risks. The t

Commission would be required to independently. review the proposed 'l 1

alternate. limit and the supporting rationale and agree or set a different limit based on the information available. Alternate concentration; limits l '

may be requested without regard to'the availability of. background values. 1 The Commission'is clarifying this point. j Comments. Comments were divided on the language in paragraph 5B(6) l referring to contaminate levels being as low as reasonably achievable l 1

(ALARA). One commenter objected to ALARA based on a view that ALARA l i

levels might still pose significant hazards. The provision was considered l 1

unnecessary and inappropriately applying ALARA to nonradiological constituents. EPA expressed a contrary view that ALARA was not clearly I applied to the nonradiological constituents as EPA intended. EPA also viewed the proposed language.as giving the ALARA finding primacy over

.j the listed factors to be considered.

]I i

l Response. The issue of how and when ALARA was intended to apply is j 1

not completely clear'from the preamble to EPA's final rules (48 FR 45941-2; 1 l

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F, u a  :. (7590-01]

}

The-Commission does not believe~that the~ addition of the: suggested p rameters is technically appropriate. These parameters _may only_ affect  :

the potability of ground water and not qualify as hazardous. Although J

the list imposed by EPA does not include v.;trates, the EPA drinking water I regulations for community water supplies-include a limit for nitrates.

1 The Commission considers it prudent to add a reference ~to NRC's authority l I

to add constituents on a site: specific basis to allow for a more aggres-'

. i sive approach.for contaminants such as. nitrates and is doing so. Also~,

1 the indicator parameters suggested for addition are likely candidates for  ;

.i NRC attention under the National Environmental Policy Act (NEPA) and'many i'

State ground-water programs address these' parameters.

i kgertc W""CHCU VI. C rdi .}.f er t'ith CIA - 1

}

The action covered in this notice is undertaken pursuant to sections 84a(2) and 275f(3) of the AEA and reflects requirements alrecdy imposed by -)

i EPA, and already subject to implementation and enforcement by NRC under I section 275d of the AEA. The Commission considers-it inappropriate.to consider this rulemaking as requiring. EPA concurrence under Section.84a(3) of the AEA. Section 84a(3) of the AEA requires NRC to assure that by-product material is managed in a manner that " conforms to general require- j ments established by the Commission, with the concurrence of the Admini- 1 strator. which are, to the maximum extent practicable, at least comparable j to requirements applicable to the possession, transfer, and disposal of l i

similar hazardous material regulated by the Administrator under the Solid  ;

i Waste Disposal Act, as amended." No discretionary general requirements pursuant to Section 84a(3) are being issued.

39 i

1

[7590-011 l

)

. EPA 520/1-83-008-1 and 2,' September 1983,1 -(2) "Reguljitory Impact Analysis of Final Environmental-Standards for Uranium Mill Tailings.at Active' Sites," q EPA'520/1-83-010,- September 1983,5and (3) Supplementary Information, Interim. l Final Rulemaking'for.40 CFR Parts 122, 260,'264 and 265, " Hazardous Waste' O

~

y Management System; Standards Applicable.to Owners =and. Operators af Hazardous: 1 Waste Treatment,. Storage, and Disposal Facilities; and EPA. Administered a

Permit Programs," published' July 26,'1982:(47 FR 32274). NRC also prepare'd an overview of the potential act. ions that might be required'of NRC.and Agreement state licensees by the EPA standards entitled,." Summary of'the Waste Management Programs:at Uranium Recovery l Facilities:at They Relate.

to the 40 CFR Part 192 Star.dards," NUREG/CR-4403.2 B. Impacts Presented in Proposed Rule The' Commission published an overview'and update of the impacts on the environment and uranium and thorium milling industry associated with the ground-water protection standards.when they were proposed for incorpora-tion (51'FR 24703-24709; July 8,.1986). .The discussion also addressed in general terms the economic and other factors that would.be addressed in a ma < p tcbesec &ron Yhe. 6lah'onf T5ckdc.af Zbem<bn

%vo'se (4, $, Def *Wof ComYtcc:, 52 gf M kupl 0if

$pr4 5  % W 21 W, /

1 Single e pies of the Final Environmental Impact and the Regulatory Impact l A lysi as a allaoie, inay b obtai ed fro tne rograms Managemen Offi e (

R-458) Offi of Ra ation rogr , U.S. Env nment Wothetic en y naton, DC 20 60:'te hone umber 03) 7_93 A copy-of each~

document is liso available for. Inspection and/or copying in NRC's Public.

Document Room, 1717'H Street NW., Washington, DC 20555.

2 Copies of NUREG/CR-4403 and NUREG 0706 may be purchased through the U.S.

Government Printing Office by calling (202) 275.-2060 or by writing to the U.S.- Government Printing Office P.O. Box 37082, Washington, DC 20013-7082.

Copies may also be purchased from the National Technical Information Service, U.S. -Department of Commerce, 5285 Port Royal Road, Springfield',

VA 22161. . Copies are available for inspection and/or copying for a. fee in the NRC Public Document: Room, 1717 H Street NW., Washington, DC 20555.

i 41

,. : .[7590-011 i

.688 (42 U.S.C.f2021); secs.'201, as amended,'202,:.206, 88 Stat.L1'242'.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.

'E 2951 (42 U.S.C. 5851). Section 40.31(g) also issued under sec. 122, i 68. Stat. 939 (42 U.S;C. 2152). Section 40.46 also issued under sec. 184,.

68 Stat. 954, as amended (42 U.5.C. 2234).t Section 40.711also : issued  !

under sec. 187, 68 Stat. 955 (42-U.S.C. 2237). l j

For the purposes of sect 223, 68 Stat. 958,.as amended (42 U.S.C.-

l 2273); SS 40.3, 40.25(d)(1)-(3),-40.35(a)-(d); ~40.41(b) and,(c), 40.46, -

{

40.51(a) and (c), and 40.63 are issued under-sec.'161b,~68 Stat. 948, j i

as amended, (42 U.S.C. 2201(b)); and SS 40.25(c).and (d)(3) and (4),

l 40.26(c)(2), 40.35(e), 40.42, 40.61, 40.62, 40.64 and 40.65 are issued' under sec. 1610, 68 Stat. 950, as amended (42 U.S.C. 2201(o)). 3

, Appendix A to-Part 40 is amended to read as follows: . Appendix A to Part 40 - Criteria Relating to the Operation of Uranium Mills and the Disposition of Tailings or Wastes Producec by'the Extraction or Concentration of Source. Material From Ores Processed Primarily for Their-Source Material Content.

2. Introduction to Appendix A is amended by adding the following l text at the end of the

Introduction:

Introduction.***

The following. definitions apply to the specified terms as.used in this Appendix:

~

" Aquifer" means a geologic formation, group of formations, or part of a formation capable of yielding a significant amount of ground water to F..

e

  • (7590-01] -a wells or spring's. ny saturated zone create'd by uranium or thorium recovery operations would not be conside d'an aquifer unless the zone is.  ;

or tantially is (1) hydraulically.interc nected to a natural quifer, (2)~capa e of discharge to surface water, o (3) reasonably acce ible i because of mig tion beyond the vertical projec on of the boundry o the land transferred.fo ong-term government ownership and care in accordance

[ with Criterion 11 of this appendix. '

" Closure" means the activities following operations to decontaminate and decommission the buildings and site used ,to produce byproduct mate-rials an'd' reclaim the tailings'and/or waste disposal area.

" Closure plan" means the Commission approved plan to accomplish closure.

" Compliance period" begins when the Commission sets secondary ground-water protection standards and ends when the owner or operator's license l 1s terminated and the site is transferred to the State or Federal agency

! for long-territ care.

" Dike" means an embankment or ridge of either natural or man-made materials used to prevent the movement of liquids, sludges, solids or

. l l other materials. I

" Disposal area" means the area containing byproduct materials to which the requirements of Criterion 6 apply, l

" Existing portion" means that land surface area of an existing sur-face impoundment on which significant quantities of uranium or thorium byproduct materials had been placed prior to September 30, 1983.

" Ground water" means water below the land surface in a zone of saturation. For purposes of this appendix,. ground water is the water contained within an aquifer as defined above. -

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2 L58(1)--Uran'ium and thorium' byproduct. materials must be managed:to conform to the' following secondary: ground-water ' protection standard:

Hazardous ~ constituents entering'the groun'd' water.from'a licensed site must ' ,g not exceed the specified concentration limitsfin the uppermost aquifer beyond the point of compliance.during the. compliance period. Hazardous constituents are those constituents identified by-the-Commission pursuan.t 'y.

to paragraph SB(2) of this' criterion.- Specified concentration" limits are 'D those limits established by the Commission as. indicated.in' paragraph 5B(5) j of this criterion. The. Commission will also establish the~ point of com--

pliance and compliance period on a site. specific basis through license. 6 L conditions and orders. The objective in selecting the point of compliance is to provide the earliest practicable warning that the= impoundment'is releasing hazardous constituents to-the ground water. The-point of com-' .- .

pliance must be selected tt. provide prompt! indication.of. ground-water "

contamination on the hydraulically' downgradient edge of.the' disposal' area.

The Cocunission shall-identify hazardous constituents, establish concentra-tion limits de b & rcHecf- 4 4 o, ak etthebemplianceperiod,an)adjustthepointofcompliance,.h>

4, mL u L Nwf o l

1r neededT when the detection monitoring establis6ed under Criterion 7A 4

indicates leakage of hazardous constituents from the dispos'a1 area.-

58(2)--A constituent becomes a' hazardous constituent subject to: para--

graph 5B(5) only when the constituent meets all'three of the following, q tests:

(a) The constituent is reasonably expected to be-in or derived from the byproduct material in the disposal area; (b) The constituent has been detected in the ground water in~the uppermost aquifer; and l

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"NN"4W . r23 m%e-m--___ ___

6mEM'42 g

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.(a) Tha Commission: approved background concentration of that-

. constituent in the: ground water; '

(b)Therespective' val'uefgivenin'thetableinparagraph:SCifithe  ; b

,. ' constituent is. listed in the tablefand.if the background' level;of.the constituent is"below the value listed; or

~

(c) An alternate concentration limit' established by the Commission.

'(

'5B(6)--Conceptual _1y, background'concen'trations pose no. incremental l .

l- .

hazards and the drinking water. limits in paragraph:5C: state acceptable 1, hazards but these two options.mayLnot be' practically achievable at a.

specific site. Alternate concentration limitsithat.present no significant~t i hazard may be'propo' sed by licensees for Commission consideration. ' Licensees '

I must provide the basis .for any proposed limits including consideration 'of practicable corrective actions, that limits are as11ow as reasonably achievable, and information on the: factors the Commission must consider.

The Commission will establish a site specific alternate concent'ation r limit: "

for a hazardous constituent as provided in paragraph 5B(5) of this criterion -

if it finds that the constituent will not pose a substantial present or

.1 potential hazard to human health or the environment-astiong as.the alternate- '

concentration limit is not exceede

, establishing alternate concentration limitsandmakingthhfindin(,theCommissionwillconsiderwhetherall ud -

l practicable corrective actions have been taken @ M = the proposed limit $

aN as low as reasonably achievabl and the following factorsi (a) Potential adverse effects on ground water quality, considering--' '

(i) The physical and chemical characteristics of the waste in the licensed site including its potential for migration; 52 ,

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(vii) The Nxisting quslity of surface % deMYncluding other ne; 3. , s .

sources of contamination and' the cumuladve inpact on' surface-water :q'uality; (viii) The' potential for health risks caused by human exposure to waste constituents; (ix) The potential damage to wildlife, crops,. vegetation, and-

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physicalstructures>causedbyexposure'towasteconstituentS;and (x) The persistence and permanenti'of the potential adverse ,

a.

effects. #

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SC--MAXIMUM VALdES FOR GROUND-WATER PROTECTION:

' Maximum Constituent or' Property . Concentration Milligramsper'1(ter ],

Arsenic................... .......... .................- 0.05 8arium............................... ... .............. 1. 0 Cadmium................................. .............. '0.01 Chromium.......................'......... .............'.- 0.05 Lead.................. ............. '0.05 Mercury.................. ...... ...................... 0.002 Selenium............... .. ........... ...............,.

.0.01 j Silver.................... ............................ ................ -0.05  ;

Endrin (1,2,3,4,10,10-hexachloro-1,7. -expoxy-1,4,4a,5,6,7,8,9a-octahydro-1, 4-endo, endo- l 1

5,8-dimethano naphthalene)..".......................... 0.0002 Lindane-(1,2,3,4,5,6-hexachlorocyclohexane, gamma isomer)........................................ 0.004 Methoxychlor fa,1,1-Trichloro-2,2-bis (p 'methox-yphenylethane)....................................... 0.1 a Toxaphene (C 1 oH2 oCle, Technical chlorinated ccm-  ;

^

phene, 67-69 percent chlorine)....................... 0.005 2,4-D (2,4-Trichlorophenoxyacetic acid)................. 0.1 1

2,4,5-TP Silvex (2,4,5-Trichlorophenol pionic acid)......................'.....ypro- .............. 0.01-l

. Picocuries per liter Combined radium - 226 and radium -228.... ............. 5-

. Gross alpha particle activity (excluding radon and uranium when producing uranium byproduct material or radon and thorium when producing thorium I byproduct materia ..........................}...... 15

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,,# % n % '

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f Overview of EPA Comment Resolution 4

I ENCLOSURE D

E.

0VERVIEW 0F RESOLUTION OF EPA COMMENTS

Background:

Staff in the Environmental Protection Agency's (EPA) Office of  !

Radiation Programs provided informal comments on the final rule notice. " Uranium Mill Tailings Regulations: Ground-Water Protection and Other Issues" pending before the Comission in SECY 87-176 as Enclosure D. The coments were discussed in a. staff meeting on July 22,;1987. EPA drafted coments in the form.  !

3 of talking notes for the meeting. The following list sumarizes the disposition of .those coments in the final rule recommended for Commission consideration.

j Coment i Topic.

Resolution l

1. NRCCompliancewithSection84a(3)of None but summary the Atomic Energy Act for SWDA com- of EPA coment parable general requirements with EPA clarified on page 11 concurrence i and Section 84a(2)/(3) 4 division clarified on page 5 2.a) EPA perception that NRC has abandoned Clarified by pursuing a mutually acceptable generic edits on page 33 methodology in place of EPA concurrences in site-specific alternate concentration limits

= = _= =- = -_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _

., .g b) -Clarification to' definition of None, but

" aquifer" should be. deleted. citation to earlier -

EPA rulemaking added to page 19 t

-Modify the gross alpha entry published None; defer to in the paragraph SC table licensee proposed  !

alternatives l

c) -Purpose in adjusting the point of Clarified by edits i i

complianceinparagraph5B(1) on pages 24 and 49

-Requirement for closure plan No action needed;

, covered by Criterion 9

-Unclear rewrite of ALARA provision .)

' Clarified by edits I on page 52-

3. Comission policy on Section 84c and Policy quote the role of costs in decisions on retained; role of licensee proposed alternatives costs in decision {

making resolved by-edits on page 29

4. Three miscellaneous editorials Resolved by edits on pages 39, 26 and 31 a

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