ML23163A149

PR-040 - 53FR32396 - Custody and Long-Term Care of Uranium Mill Tailings Sites

ML23163A149
Person / Time
Issue date:	08/25/1988
From:	Chilk S NRC/SECY
To:
References
PR-040, 53FR32396
Download: ML23163A149 (1)

Text

ADAMS Template: SECY-067 DOCUMENT DATE: 08/25/1988 TITLE: PR-040 - 53FR32396 - CUSTODY AND LONG-TERM CARE OF URANIUM MILL TAILINGS SITES CASE

REFERENCE:

PR-040 53FR32396 KEYWORD: RULEMAKING COMMENTS Document Sensitivity: Non-sensitive - SUNSI Review Complete

STATUS OF RULEMAKING PROPOSED RULE: PR-040 RULE NAME: CUSTODY AND LONG-TERM CARE OF URANIUM MILL TAILING S SITES PROPOSED RULE FED REG CITE: 53FR32396 PROPOSED RULE PUBLICATION DATE: 08/25/88 NUMBER OF COMMENTS: 6 ORIGINAL DATE FOR COMMENTS: 10/24/88 EXTENSION DATE: I I FINAL RULE FED. REG. CITE: 55FR45591 FINAL RULE PUBLICATION DATE: 10/30/90 OTES ON THIS WAS AN ADVANCE NOTICE OF PROPOSED RULEMAKING. SUBSEQUENTLY, S TATUS ECY 89-233 (8/3/89) ADDRESSED THE PROPOSED RULE. PROPOSED ACTION OF RULE PUBLISHED 02/06/90 AT 55 FR 3970. FILE LOCATED ON Pl.

TO FIND THE STAFF CONTACT OR VIEW THE RULEMAKING HISTORY PRESS PAGE DOWN KEY HISTORY OF THE RULE PART AFFECTED: PR-040 RULE TITLE: CUSTODY AND LONG-TERM CARE OF URANIUM MILL TAILING S SITES PROPOSED RULE PROPOSED RULE DATE PROPOSED RULE SECY PAPER: 88-083 SRM DATE: 07/26/88 SIGNED BY SECRETARY: 08/19/88 FINAL RULE FINAL RULE DATE FINAL RULE SECY PAPER: 90-282 SRM DATE: I I SIGNED BY SECRETARY: 10/24/90 STAFF CONTACTS ON THE RULE CONTACTl: MARK HAISFIELD MAIL STOP: NLS-260 PHONE: 492-3877 CONTACT2: MAIL STOP: PHONE:

DOCKET NO. PR-040 (53FR32396)

In the Matter of CUSTODY AND LONG-TERM CARE OF URANIUM MILL TAILING S SITES DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT

- 08/22/88 08/19/88 ADVANCE NOTICE OF PROPOSED RULEMAKING 10/11/88 10/06/88 COMMENT OF ECOLOGY/ALERT (E. NEMETHY, SECRETARY) ( 1) 10/21/88 10/21/88 COMMENT OF QUIVIRA MINING COMPANY & KERR-MCGEE (RICHARD A. MESERVE) ( 2) 10/24/88 10/20/88 COMMENT OF TEXAS DEPARTMENT OF HEALTH (DAVID K. LACKER) ( 3) 10/27/88 10/24/88 COMMENT OF DEPARTMENT OF ENERGY (SALLY A. MANN, PH.D, DIRECTOR) ( 4) 10/27/88 10/25/88 COMMENT OF INDIANA STATE BOARD OF HEALTH (T. S. DANIELSON, JR., M.D., M.P.H.) ( 5)

- 10/31/88 10/21/88 COMMENT OF STATE OF COLORADO (ALBERT J. HAZLE, DIRECTOR) ( 6)

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COLORADO DEPARTMENT OF HEALTH 4210 East 11th Avenue Denver, Colorado 80220 Phone (303) 320-8333 OCT 31 Oc tober 21, 1988 Thomas M . Vernon, M .D .

Executive D irecto r Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attn: Docketing and Service Branch RE: ANPRM, CUSTODY AND LONG-TERM CARE OF URANIUM MILL' 'TAILINGS SITES.

Dear Sir:

The following comments are provided in response to the ANPRM for custody and long-term care of uranium mill tailings sites transmitted to this Department within Mr. Carlton Kammerer's letter of September 2, 1988.

1.) The proposed rule includes no provisions for state concurrence. We believe state concurrence to be necessary in the review and approval of the SMP. Additionally, 40.27 (and 28) C.2, 3 and 4, should include: the requirement for state concurrence in any change to the SMP; the right of states to perform periodic inspections; and the notification of states prior to any major construction.

Although the ANPRM is clear in noting that authority for granting a long-term care license is reserved to NRC, it would be inconsistent to exclude state input from the review process.

Just as state concurrence was necessary in approval of DOE produced reclamation plans for Title I sites, and the state is the licensing authority in the approval of reclamation designs for Title II sites, so should such concurrence and approval be necessary in the determination of long-term care provisions.

Should environmental consequences result from a faulty SMP the immediate effects will be felt at the l ocal level.

The proposed rule appears to avoid any mention of NRC cooperation with states in the form of obtaining concurrence or approval. A provision should be added providing for state review of all plans for the site, including both init al SMP's and any subsequent changes. The states authority to i nspect stabilized sites and to require, through NRC authority, corrective actions by DOE is also necessary. NOV - 2 1 Acknowledged by card .. * .,.......... 1 *

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U.S. Regulatory Commission Page 2 10/21/88 2.) Section 40.2a of the proposed rule appears to include a decision on the 1980 Sierra Club petition for rulemaking (PRM-40-23). The statement "prior to the completion of the remedial action, the Commission will not require a license ..... is, in effect, a denial of the petition.

The arguments provided in support of this apparent decision are not convincing. Contrary to the statement on page 32399 (Fed.

Reg.) of the ANPRM, the end result does not address the purpose of the Sierra Club petition which is control of byproduct material prior to UMTRCA remedial action. The Colorado experience indicate a need for such licensing and regulation.

Any statement, as made in the ANPRM, that DOE monitors or maintains Title I sites in the interim prior to the inception of the remedial action is fallacious. Section 40.2a should be removed.

The uncertainty regarding the completion of remedial action, noted in the first general question of this notice, is a further reason for eliminating this provision prohibiting future licensing of unremediated sites.

The procedural and legal basis for this inclusion is at least questionable.

Page 32399, paragraph 3, on custodial maintenence, should discuss the need for the monitoring and repair of erosion if existent.

Thank you for the opportunity to comment on this proposal rule.

Sincerely,

/£ /4 ~ (

AFbert J. Hazle, Director Radiation Control Division A.JH/EK/msm I cc: Howard Roitman, HMWMD

ROBERT D. ORR, GOVERNOR WOODROW A. MYERS, JR., M.D. , STATE HEALTH COMMISSIO~~r..:~ ii_-

INDIANA STATE BOARD OF HEALTH 1330 WEST MICHIGAN STREET P .O. BOX 1964

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AN EQUAL OPPORTUNITY EMPLOYER October 25 , 1988 Secretary At tention: Docket*ng and Service Branch Secretary

u. S . Nuclear Re gulatory commission Washington, DC 20 5 55 Gentl e men:

I appreciate the opportunity to comment on the long-term care of uranium mill tailings sites.

My staff and I have carefully reviewed the proposed regulation.

This is a complex difficult subject to resolve by the best available procedure . We wish to record positive comments. The proposed regulation adequately protects the pub l ic f rom r adiation damage. The general license appears to be flexible enough to handl e the diverse situations which exist in the environment.

- Thank you for the opportunity to comment.

T. S. Danielson, Jr, M.D., M.P.H.

Assistant Commissioner For Health Maintenance NOV - 1 1988

,w1eagea by card ..... .......... *---- -

"The health of the people is really the foundation upon which all their happiness and all their powers as a state depend. "

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• aa OCT 27 P2 :48 October 24, 1988 Secretary U.S. Nuclear Regulatory Commission DOCKET NUi l8ER 1

R Washington, D.C. 20555 PROPOSED RY'! __ 0 Attn: Docketing and Service Branch ~~'3.l'37i

Dear Sir:

The U.S. Department of Energy {DOE) Uranium Mill Tailings Remedial Action (UMTRA) Project Office and the Division of Uranium Mil1 Tai1ings Projects have reviewed the Advance Notice of Proposed Rulemaking (ANPR) regarding the "Custody and Long-Term Care of Uranium Mill Tailings Sites" and provide the following comments.

1. The concept of a general license appears sound and has no adverse impact on the UMTRA Project.

2. DOE's "Guidance for UMTRA Project Surveillance and Maintenance" document is consistent with this proposed rule and is applicable for long-term custodial care of Title II mi11 tailings sites.

3. DOE is concerned with the requirements of Paragraph 40.27(b)(2) which states, "If the site will have continuing aquifer restoration requirements, then the SMP must provide details on how restoration is to be completed and how contingencies will be resolved." DOE typically seeks NRC concurrence on remedial actions such as aquifer restoration through a Remedial Action Plan (RAP). The RAP includes information on how the restoration will be accomplished and how contingencies will be resolved in considerable detail. Requiring that this information be provided in a site SMP is redundant.

There are a number of UMTRA sites where tailings will be relocated from a processing site to an alternative disposal ce11. Some of these mill sites will require aquifer restoration. Once the tailings and associated contaminated soils have been removed and the ground water is restored at the processing sites, the need for long-tenn custodial care and thus an SMP for the mill sites in question is no longer appropriate.

DOE recommends this provision be deleted from the proposed rule as the infonnation specified will be submitted to the NRC for its concurrence prior to the initiation of any aquifer restoration activity.

DOE appreciates the opportunity to colllTient on this proposed rule.

Although DOE has found only one provision of the proposed rule to be objectionable, we take the view that surveillance And maintenance

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2 activities should be limited to mill tailings disposal sites and not to remediated processing sites where tailings and other contaminated materials have been relocated and if applicable, ground water cleanup achieved.

Sincerely,

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~ . Mann, Ph.D.

Director, Division of Uranium Mill Tailings Projects Office of Remedial Action and Waste Technology Office of Nuclear Energy

DOCKET NUMBER n PROPOSED RULE r1 .

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Texas Department of H~~i~h r3Fil:,;i.:3YI)

Robert Bernstein, M.D., F.A.C.P. 1100 West 49th Street "88 OCT 24 Pl2 t{o15ert

'l l A. Maclean, M.D.

Commissioner Austin, Texas 78756-3189 Deputy Commissioner (512) 458-7111 r ,.. Professional Services

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October 20, 1988 {512) 835-7000 Deputy Commissioner Management and A mrn1 tratio...----

Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 l-Attention: Docketing and Service Branch

Dear Sir:

We appreciate the opportunity to provide input on the Nuclear Regulatory Commission's ( NRC) Advance Notice of Proposed Rulemaking on Custody and Long-Term Care of Uranium Mill Tailings Sites. Staff of the Bureau of Radiation Control have reviewed the document and offer the following comments for consideration:

1) The proposed NRC rule fulfills a need and, by specifying the requirements and expectations of the long-term custodial agency, removes existing uncertainties concerning long-term care of reclaimed uranium mill tailings sites. The timing of the NRC rule is most expedient to our agency in initiating the discussion for resolution of unanswered issues, many of which may require legislative input and establishment of new inter-agency memoranda of understanding.

2) The document refers to the "remedial action plan" (pp . 8, 17, and 25) as distinct from the Surveillance and Maintenance Plan. This term may not be appropriate when referring to Title II (active) sites. The NRC regulations (10 CFR Part 40) refer to the plan as the "closure plan."

3) The NRC should list the potential uses of the disposal site that would be considered for licensure, such as agricultural activities, recreational (e.g., park) use during limited time periods, secondary recovery of uranium or associated minerals, or deep subsurface minerals recovery that excludes penetration of the impoundment surface.

If you have any questions concerning these comments, please contact us.

truly, DavidK.- ~ ~

Bureau of Radiation Control Acknowledged by c<<

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BY HAND 5 3 ;.=:/l, B.2.3 'J Samuel J. Chilk, Secretary U.S. Nuclear Regulatory Commission One White Flint North 11555 Rockville Pike Rockville, Maryland 20852 ATTENTION: Docketing and Service Branch Re: 10 CFR Part 40, Advance Notice of Proposed Rulemaking, Custody and Long-Term Care of Uranium Mill Sites, 53 Fed. Reg. 323&6--( 1988}

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Dear Sir :

I am writing to submit comments on behalf of Quivira Mining Company and Kerr-McGee Chemical Company concerning the above-captioned advance notice of proposed ru l emaking. Both Quivira Mining Company and Kerr-McGee Chemical Company have responsibilities associated wi th the stabilization of tai li ngs s i tes regulated under Title II of the Uranium Mill Ta i lings Radia ti on Control Act of 1978 ("UMTRCA"), and thus have an interest in the subject matter of the advance not i ce.

The regulat ory proposa l wou l d establ ish genera l licenses for mil l tailings sites after remedial actions have been completed. The proposa l prov i des that a genera l l icense would become effective upon the submission of a detailed surve il lance and ma i ntenance plan ("SMP") by the long-term custodian of a site. In the case of a t i tle II site, UMTRCA provides tha t the custod i an will be e i ther the Department of Energy, another agency designa t ed by the President , or the State in which the site is located, at the option of that State. The regulatory proposal sets out deta i led requirements for the SMP.

The advance not i ce states that "this rulemaking has no impact on the private sector," 53 Fed. Reg. a t 32387, OCT 2. 7 \988 lo-vi edged by card. . .. .. .. * . * - - _.

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.. COVINGTON & BURLING Samuel J. Chilk, Secretary October 21, 1988 Page 2 evidently because the SMP is to be submitted by the long-te rm custodian, rather than by the pre-stabilization licensee. But this view fails to acknowledge the practical realities of the relationships among the parties. UMTRCA does not allow the termination of the pre-stabilization license for a Title II site until ownership of the byproduct materia l and title to the land used for disposal are transferred to the long-term custodian. 42 u.s.c. S 2112. It is likely that the custodian will require the pre-stabilization licensee to develop the SMP as a condition for the acceptance of transfer. Thus, although in form the SMP might be submitted by the custodian, the pre-stabilization licensee will in fact bear the burden of its preparation. The claim that this rulemaking has no impact on the private sector is thus dubious.

We support NRC's proposal that a general license be made available to the long-term custodian. However, we have serious doubts whether an SMP serves any useful purpose for a Title II site. The NRC has established detailed criteria that govern the stabilization of tailings at Title II s i tes. 10 C.F.R. Part 40, Appendix A. In order to obtain a license amendment authorizing stabilization, the pre-stabilization licensee must submit a stabilization plan that is subject to detailed examination by the NRC. Indeed, the NRC's examina-tion of the stabilization plan would likely necessitate the preparation of an environmental statement pursuant to the requirements of the National Environmental Protection Act.

42 u.s.c. § 4332. The activities of the licensee in imple-menting the stabilization plan are then subject to careful scrutiny by the NRC staff. Because the stabilization program will itself encompass the elements of the proposed SMP (as well as many other matters), there is doubt whether the preparation of a separate SMP serves any useful purpose.

Other considerations serve to suggest that the proposal for a SMP is misguided for a Title II site. The long-term custod ian may understandably be reluctant to file the SMP because the plan concerns matters about wh i ch the long-term cus todian may have no first-hand knowledge. Moreover, there is no apparent requirement that the SMP be consistent with the stabilization plan that was approved by the staff and implemented by the pre-stabilization licensee. It appears that the safest, wisest, and eas iest course may be simply to estab lish a general license that would require the long-term custodian to fulfill the surveillance and monitoring requ i re-ments that were established in the course of the NRC's approval of the stabilization program.

The advance notice indicates that the NRC may choose to proceed directly from the advance notice to a final rule.

C OV I N G TO N & B U RLI NG Samuel J. Chilk, Secretary October 21, 1988 Page 3 53 Fed. Reg. at 32400. In light of the serious questions about the proposal and the NRC's failure t o provide notice of the likely impact of this rule on the private sect or, we urge the NRC t o prepare a proposed rule for comment.

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1 - VII - Issues for comment - bottom of col 1, p 32400 ,

says under the Navaho- DOE Coopera tive Agreement , the Kavaho nation agrees to assist DOE to secure property interests for depository and mill sites . on their lands .

Then , Sec 40.27(b)(l) says if a site is on India land ,

the tribe s hall execute a waiver, releasing the US from any liabi l ity or claim arising from reme ial action .

( According to the Uranium Mill mai ings adiation Con-trol ~ct of 1978 (UMTRCA)

Ques tion : Does the avaho-DOE Cooperative Agreement specify that the Navaho nation is bound by Uiv'.T A, (If we were in their mocassins , we ' d certainly refuse to si gn away our rights to dama es , should DOE blunder while engaged in remedial action !)

2 - ec 40 .28(d)(l) hat possible surface use can you eni'ision for one of these "remediated" sites?

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• aa AUG 22 P1 :54 Custody and Long-Term Care of Urani um Mi l l Tailings Si tes AGENCY: Nuc l ear Regulatory Commi ssion .

ACTION: Advance Notice of Proposed Rulemaking.

SUMMARY

The Nuclear Regulatory Commission (NRC) is considering general licenses that would permit NRC to license the custody and long-term care of decommissioned uranium or thorium mil l tailings sites after remedia l actions under the Uranium Mill Tail i ngs Radiation Contro l Act have been completed.

Commission action is needed to provide a procedure that ensures the ma i nte-nance of closed sites in a manner sufficient to protect the publ i c heal th and safety and the environment. This action is necessary to meet the requirements of Titles I and II of the Uranium Mill Tailings Radiation Contro l Act . Although this noti ce is being published as an advance notice of proposed rulemaking (ANPRM), the full text of a proposed rule is inc l uded and a proposed rule may not be necessary.

DATE: Comment period expires Oct ober 24 , 1988. Comments received after this date will be considered if it is practical to do so, but the Commis-sion is able to assure consideration on ly for comments received on or before this date.

ADDRESSES: Send comments to: Secretary, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555 Attention: Docketing and Service Branch.

Del i ver comments to: 11555 Rockville Pike, Rockville, Maryl and, between 7:30 a.m. and 4:15 p.m.

2 Comments received, the environmental assessment and finding of no significant impact, and the regulatory analysis can be examined at: The NRC Public Docu-ment Room, 1717 H Street, NW, Washington, DC.

FOR FURTHER INFORMATION CONTACT: Mark Haisfield, Office of Nuclear Regulatory Research, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Mail Stop NL/S-260. Telephone (301) 492-3877.

SUPPLEMENTARY INFORMATION:

I. Background.

II. Proposed Action.

III. The Stabilization and Long-Term Care Program (Title I and Title II).

IV. The Surveillance and Maintenance Plan.

V. Future Uses of the Disposal Site.

VI. Petition for Rulemaking.

VII. Issues for Comment.

VIII. ANPRM/Proposed Rule.

IX. Finding of No Significant Environmental Impact: Availability.

X. Paperwork Reduction Act Statement.

XI. Regulatory Analysis.

XII. Regulatory Flexibility Certification Statement.

XIII. List of Subjects.

I. Background In the Uranium Mill Tailings Radiation Control Act of 1978 (UMTRCA) the Congress recognized that uranium mill tailings may pose a potentially signi-ficant radiation health hazard to the public. One of the measures enacted by Congress to control this hazard is to place the long-term custodial care of the uranium or thorium mill tailings disposal site, after completion of all remedial actions, in the hands of government.

3 Title I of UMTRCA defines the statutory authority and roles of the Department of Energy (DOE) and the NRC with regard to the remedial action program for inactive uranium mill tailings sites. Title I requires that, upon completion of the remedial action program by DOE, these sites be maintained by the DOE, or other Federal agency designated by the President, under a license issued by the Commission. Title II of UMTRCA contains similar requirements for NRC licensing of presently active uranium or thorium mill tailings sites following their closure and operating license termination. These sites would be licensed by the Commission upon their transfer to the Federal Government or the State in which they are located, at the option of the State. These proposed regulations will complement other UMTRCA required regulations which have been completed and cover activities through closure.

II. Proposed Action The regulatory additions being considered to Part 40 would provide for two new general licenses. The general licenses in §40.27 and §40.28 would correspond to Title I and Title II of UMTRCA, respectively. The provisions in

§40.27 would apply to inactive sites and the provisions in §40.28 would apply to active sites. Although the requirements in §40.27 and §40.28 would differ somewhat due to the differences in Title I and Title II of the Act, the criteria for determining what constitutes adequate monitoring, maintenance, and emergency measures for long-term custodial care are the same.

The regulations being considered deal only with uranium or thorium mill tailings sites after remedial actions have been completed. Upon satisfactory reclamation (by DOE for Title I, or an NRC or Agreement State licensee for Title II) to applicable closure standards, the NRC would receive a detailed surveillance and maintenance plan (SMP) from DOE or an appropriate State. The SMP will discuss ownership (whether Federal or State) and custody (agency responsible) of the site, site conditions, the surveillance program, required follow-up inspections, and how and when custodial maintenance and emergency repairs will be accomplished. (See th, section entitled "The Surveillance and Maintenance Plan".) The general license would become effective for each.

individual Title I or Title II site upon NRC receipt of an SMP that meets the requirements of the general license.

4 For sites governed by the prov1s1ons of §40.27 (Title I sites), the general license would apply only to the DOE or another Federal agency designated by the President. For sites governed under the provisions of §40.28 (Title II sites), DOE, or another Federal agency, would submit the SMP, unless the State, at its option, decides to take custody of the site and be included in the general license. The authority to grant a long-term care license is reserved to the NRC. States may be the custodial agency, but are not authorized to grant this type of license. See Section 83 b(l)(A) of the Atomic Energy Act of 1954 as amended and 10 CFR 150.lSa.

There are some differences in requirements for sites located on Indian lands. For Title I sites, the Indian site will remain in the ownership of that tribe. The NRC and DOE have generally agreed that sites on Indian lands should be handled in the same manner as other Title I sites, including conduct of surveillance and maintenance under proposed §40.27. We also understand that DOE and the appropriate Indian tribes have agreed that DOE would provide for long-term care. Four of the 24 Title I sites are on Indian Lands. (Addi-tional discussion of this issue is provided in VII, Issues for Comment.)

For Title II sites on Indian lands it is not clear who will be responsible for monitoring, maintenance, and emergency measures at the site. Currently, only one site falls into this category. UMTRCA provides that long-term monitoring and maintenance will be done by the United States and that the licensee will be required to enter into arrangements with the Commission to ensure this monitoring and maintenance. However, UMTRCA was not explicit as to which Federal agency is responsible for the site, and should these sites ever require emergency measures, additional authorizations may be required. The basic obligations for these sites have already been codified in Part 40, Appendix A, Criterion llF, and are not part of this rulemaking.

Both §40.27 and §40.28 would allow for potential future uses of the sites.

As provided in UMTRCA, any future use would require a separate Commission license to assure that the site remains or is restored to a safe and environ-mentally sound condition. See the, "Future Uses of the Disposal Site" section.

5 The rulemaking being considered would issue a general license to govern-mental bodies for possession and maintenance of uranium or thorium mill tail-ings sites after closure, pursuant to statute. Therefore, this rulemaking has no impact upon the private sector. NRC could choose to license these sites with a general license or by issuing separate specific licenses for each site.

The licensing basis would be the same. The use of general licenses (one for Title I and one for Title II) is the most efficient use of resources and administratively more convenient. Each site to which the general license would eventually apply, will have undergone full environmental and technical review in conjunction with remedial action for Title I or license termination for Title II. The general license being considered by the Commission can accommodate site-specific matters through the site-specific surveillance and maintenance plans and future orders. It is also equally as enforceable as a specific license.

III. The Stabilization and Long-Term Care Program Although the end result for custodial care licensing for Title I or Title II sites would be similar, the processes leading up to closure of Title I or Title II sites are different. The following provides background on these processes, as well as some of the differences between Title I and Title II licensing.

Title I (24 sites)

UMTRCA charged the EPA with the responsibility for promulgating remedial action standards for inactive uranium mill sites. The purpose of these standards is to protect the public health and safety and the environment from radiological and non-radiological hazards associated with radioactive materials at the sites. The final standards were promulgated with an effective date of March 7, 1983 (48 FR 602; January 5, 1983). See 40 CFR Part 192-Health and Environmental Protection for Uranium Mill Tailings, Subparts A, B, and C.

The Department of Energy (DOE) will select and execute a plan of remedial action that will satisfy the EPA standards and other applicable laws and regulations. All remedial actions must be selected and performed with the

6 concurrence of the NRC. The required NRC concurrence with the selection and performance of proposed remedial actions and the licensing of long-term surveillance and maintenance of disposal sites would be for the purpose of ensuring compliance with UMTRCA.

The stabilization and long-term care program for each site has four distinct phases. In the first phase DOE selects a disposal site and design.

This phase includes preparation of an Environmental Assessment or an Environmental Impact Statement, and a Remedial Action Plan. The Remedial Action Plan is structured to provide a comprehensive understanding of the remedial actions proposed at that site and contains specific design and construction requirements. NRC and State/Indian tribe concur in the Remedial Action Plan to complete the first phase.

The second phase is the performance phase. In this phase the actual decontamination, decommissioning, and reclamation at the site is done in accordance with the Remedial Action Plan. The NRC and the State/Indian tribe, as applicable, must concur in any changes to this plan. At the completion of reclamation activities at the site, NRC concurs in OOE's determination that the activities at the site have been completed in accordance with the approved plan. Prior to licensing, the next phase, title to the disposed tailings and contaminated materials and the land upon which they are disposed must be in Federal custody (except for sites on Indian lands) to provide for long-term Federal control, at Federal expense.

NRC concurrence in the DOE determination that reclamation of the site has been accomplished in accordance with the approved plan may have a conditional clause regarding ground water. For example, ground-water restoration, through either active techniques or passive restoration through natural flushing, may take many years. If a conditional clause is required, the post-licensing phase may require monitoring the site to ensure that restoration is proceeding as planned or require other actions as necessary. Because EPA ground-water standards are currently being revised, this practice of conditional concurrence and planned activities during post-licensing may have to be re-examined.

7 The third phase is the licensing phase. The general license would not apply until (1) NRC concurrence in the DOE determination that the site has been properly reclaimed and (2) the surveillance and maintenance plan (SMP) has been received by NRC. The SMP should be submitted within 4 months of the NRC concurrence in completion. Certification indicates that the site has been stabilized in accordance with EPA standards. Current plans also include a Federal Register notice of NRC's receipt of the SMP and public meetings to inform the local public of the future plans for the site and to provide an opportunity for public comments. There is no termination date for the general license being considered.

The final phase of the program is surveillance, monitoring, and maintenance and begins after NRC receives the SMP. In this phase DOE and NRC periodically inspect the site to ensure its integrity. The surveillance and maintenance plan would require the DOE to make repairs, if needed.

One of the requirements in the EPA standards is that control of the tailings should be effective for up to 1000 years without active maintenance.

Thus, although the NRC license will require repairs as necessary, the design of the stabilized pile is such that this should be minimized. In the event that significant repairs are ever necessary, a determination will be made as to the need for additional National Environmental Policy Act (NEPA) actions.

9 According to recent schedules presented to the Commission, Title I sites should be eligible for NRC licensing this calendar year. DOE has already submitted certification reports for NRC review and concurrence for two sites.

Once NRC concurs in DOE's certification that remedial actions are completed, the sites are ready for site transfer and licensing. Four additional sites are scheduled for completion by the end of fiscal year (FY) 1989, two in FY 1990, four in FY 1991, seven in FY 1992, and the remaining five in early FY 1993.

NRC cannot license these sites under 10 CFR Part 40 as now written since 10 CFR 40.l(a) states that "The regulations in this part do not establish procedures and criteria for the issuance of licenses for materials covered under Title I ... 11 Consequently, prompt action by the Commission is needed for orderly licensing.

8 Tit1e II UMTRCA a1so charged EPA with the responsibi1ity for promulgating standards for active uranium or thorium sites. EPA comp1eted this in Subpart D and E of 40 CFR Part 192 issued October 7, 1983 (48 FR 45946).

Tit1e II sites have active NRC or Agreement State 1icenses. Each licensee is responsible for having a remedial action plan that is approved by the NRC or an Agreement State. This plan describes how the licensee will close the site to meet all applicable standards after completion of operations.

Before the NRC, or an Agreement State, terminates a license the site must e be closed in a manner sufficient to meet applicable standards. These inc1ude the requirements contained within 10 CFR Part 40 - Domestic Licensing of Source Material, or similar Agreement State requirements, and the EPA standards in 40 CFR Part 192. In addition, 10 CFR 150.15a requires that prior to the termination of any Agreement State license for byproduct material, the Commission shall have made a determination that all applicable standards and requirements have been met.

Following the operating license termination, invoking the general license for Title II sites would be similar to the process used for Title I sites. The most significant differences are:

1. A State, at its option, may take over custodia1 care of a Title II site instead of the DOE.

2. In some rare cases, such as may occur with deep burial where no ongoing site surveillance will be required, surface land ownership transfer requirements may be waived for a Title II site.

3. Potential future uses of a Title I site are limited to subsurface rights, whereas, a Title II site could also potentially allow the usage of surface rights. (See the section entitled "Future Uses of the Disposal Site 11 . )

9

4. All surface and subsurface rights for a Title I site must be in Federal custody (except when on Indian land). For a Title II site the Commission may take into account the status of ownership and rights to the land, and the ability of a licensee to transfer title and custody to the United States or a State.

5. There is an additional Title II requirement when an operating license in an Agreement State is terminated and the site transferred to the United States for long-term custodial care. All funds collected by the State for long-term monitoring and maintenance will be transferred to the United States. This requirement has already been codified in Part 150 and is not part of this rulemaking.

6. Title I covers designated inactive uranium mill tailings sites.

Title II covers sites licensed as of January 1, 1978 and new uranium and thorium mill tailings sites.

Licensees at the Title II sites also need the framework in place for the long-term care of sites. The long-term care programs to be conducted by the DOE or States need to be factored into remedial action plans and decommission-ing plans so that engineering, monitoring, data, and financial considerations can be included. As a measure of the urgency, 10 of the 20 conventional mills licensed by NRC have made corporate decisions to no longer use the sites or keep them in standby condition. They plan to decommission them and are seeking license termination. Activities at these 10 sites are in various stages of design, planning and decommissioning.

IV. The Surveillance and Maintenance Plan DOE, or the appropriate State, would submit a site-specific surveillance and maintenance plan to the NRC after site closure has been satisfactorily completed. The NRC would review the SMP and supporting documentation to ensure that the ownership of land and materials is adequately documented, and that the proposed surveillance and maintenance provides the necessary conditions for that site.

The DOE has developed a "Guidance for UMTRA Project Surveillance and Maintenance" document issued in January 1986. Copies of this document are available from the U.S. Department of Energy, UMTRA Project Office, Albuquerque Operations Office, P.O. Box 5400, Albuquerque, New Mexico, 87115. This docu-ment, which was developed with NRC staff coordination, provides detailed generic guidance for what information should be considered in designing a site-specific SMP for Title I sites. (This guidance has not been evaluated by NRC for application to Title II sites. While many provisions may be appro-priate, site closure and remediation by actively regulated licensees may result in somewhat different procedures. NRC is considering what additional guidance and what modifications to existing guidance may be appropriate for Title II sites.) The document addresses five primary activities. These activities, which are discussed in the following paragraphs, are:

1. Definition and characterization of final site conditions.

2. Site inspections.

3. Ground-water monitoring.

4. Aerial photography.

5. Custodial maintenance and contingency (or emergency) repair.

DOE indicated that final site conditions should be defined and character-ized prior to the completion of remedial actions at a site. As-built drawings should be compiled, a final topographic survey should be performed, a vicinity map should be prepared, and ground and aerial photographs should be taken.

Survey monuments, site markers, and signs should be established. If the site-specific SMP specifies that ground-water monitoring is required, then a network of monitoring wells should be identified and new wells established if needed.

DOE describes three types of inspections: Phase I, Phase II, and contin-gency inspections. Scheduled phase I inspections would be conducted by a small team to identify conditions that may affect design integrity. Phase II inspec-tions would be unscheduled and dependent upon potential problems identified during a Phase I inspection. Team members of a Phase II inspection should be specialists in the potential problem areas (e.g., geotechnical engineer for settlement). Contingency inspections would also be unscheduled and occur when information has been received that indicates that site integrity has been, or may be, threatened by natural events (e.g., severe earthquake) or other means.

11 The need to monitor ground-water conditions should be determined on a site-specific basis. If it is determined that ground-water monitoring is required, then it should be conducted in two phases, screening monitoring and evaluative monitoring. Screening monitoring would be designed to detect changes in ground-water quality attributable to the tailings. If a significant change is apparent, evaluative monitoring should be initiated. Evaluative monitoring would be more extensive and would quantify the rate and magnitude of the change of conditions.

Initial surveillances should include the acquisition and interpretation of aerial photography. The principal purposes of aerial photography are to aid inspectors in the field and to provide a permanent, visual record of site conditions. Color infrared stereo photos, high oblique prints, and low oblique, natural color photographs should be taken at the completion of remedial action.

Follow-up aerial photography would only be done if the Phase I or Phase II inspections identified a need for this.

Custodial maintenance such as grass mowing or fence repair may be required at some sites. Extreme natural events or purposeful intrusion may occur at a site which would require immediate emergency measures. When compared with con-tingency (or emergency) repair, custodial maintenance will be less costly, smaller in scale, and more frequent in occurrence. In contrast, contingency (or emergency) repairs are very unlikely to be needed; however, repair costs may be substantial.

V. Future Uses of the Disposal Site UMTRCA provides for potential future uses of the disposal site. For a Title I site, it provides that the Secretary of the Interior, with the concur-rence of both the Secretary of Energy and the NRC, may dispose of any subsur-face mineral rights. If this occurs, the NRC will issue a specific license to the Secretary of the Interior to assure that the tailings are not disturbed, or if disturbed are restored to a safe and environmentally sound condition.

12 For a Title II site the same provisions as above apply with the following additions. First, surface as well as subsurface estates may be available for use. Second, although the request to use these rights may be received from any person, if permission is granted, the person who transferred the land shall receive the right of first refusal with respect to this use of the land.

Environmental impacts would be evaluated prior to any action granting the use of surface or subsurface estates.

VI. Petition for Rulemaking On December 5, 1980, the NRC received a petition for rulemaking submitted by the Sierra Club (PRM-40-23). An amendment to this petition was received by the NRC on March 21, 1983. The original petition requested that the NRC amend its regulations to license the possession of uranium mill tailings at inactive storage sites. The petitioner proposed that the NRC take the following regu-latory action to ensure that public health and safety and the environment is adequately protected from the hazards associated with uranium mill tailings.

1. Repeal the licensing exemption for inactive mill tailings sites subject to the Department of Energy's remedial program.

2. Require a license for the possession of byproduct material on any other property in the vicinity of an inactive mill tailings site if the byproduct materials are derived from the inactive mill tailings site.

3. Or alternatively, conduct a rulemaking to determine whether a licensing exemption of these sites or the byproduct material derived from the sites constitutes an unreasonable risk to public health and safety.

In the 1983 amendment, the petitioner requests that, in the event that NRC denies the petitioner's earlier request that NRC repeal the licensing exemption for inactive sites or conduct the requested rulemaking, the NRC take further action. Specifically, the petitioner requests that the NRC ensure that the

13 management of byproduct material located on or derived from inactive uranium processing sites is conducted in a manner that protects the public health and safety and the environment from the radiological and nonradiological hazards associated with uranium mill tailings.

Whether the original petition is granted or not, the petitioner also requests that the NRC establish requirements to govern the management of byproduct material, not subject to licensing under section 81 of the Atomic Energy Act (42 U.S.C. 2111), comparable to the requirements applicable to similar materials under the Solid Waste Disposal Act, as amended (42 U.S.C.

6901 et seq.). In the alternative, the petitioner suggests that NRC extend the e coverage of the requirements in 10 CFR Part 40, Appendix A, which are now applicable only to licensed byproduct material, to byproduct material not subject to licensing. In addition, the petitioner requests that NRC issue regulations that would require a person exempt from licensing to conduct monitoring activities, perform remedial work, or take any other action neces-sary to protect health and safety and the environment.

One of the purposes of the rulemaking being considered is to provide a licensing procedure for custodial care of inactive sites. Although this is not what the petitioner requested, the end result would directly address their concerns. Inactive sites would be licensed and would be managed to ensure

- their long-term integrity.

Another concern of the petitioner is that until DOE completes remedial actions, the tailings will be unregulated. While it is true that the sites are unregulated in a legal sense, they have not been ignored by DOE. DOE has proceeded with its remedial action program. DOE's program is oriented toward completing high priority sites first. High priority sites are those generally closest to population centers. There are eight high priority sites. Reclama-tion activities at four are completed or underway and activities for the other four are in active planning or design phases. The activities for medium and low priority sites are in various phase~ - initial planning has been completed for -all, and activities for several have progressed into the constructio~

phase. In addition, DOE monitors the sites before and during remedial actions.

14 After the completion of this rulemaking, NRC will make a final determina-tion on the issues raised by the petitioner and publish its findings in the Federal Register.

VII. Issues For Comment There are several areas where the statutes, EPA 1 s regulations, and DOE 1 s programs introduce some uncertainties, particularly for the aspects of this rulemaking related to Title I for UMTRCA. Pending bills, the implications of the proposed EPA Title I ground-water protection standards, and institutional issues concerning Tribal lands are specific areas of current concern.

Two recent bills (S. 1991 and H.R. 4591) address extending DOE 1 s authority to perform remedial actions for Title I sites. Action on these bills could impact when and how remedial actions are completed. A two-step process may result at sites where long-term ground-water restoration is needed. Under the bills, DOE would be required to complete final surface restoration by 1994, but could continue activities associated with ground-water restoration indefinitely. The language in the two bills is not identical, particularly regarding extending DOE 1 s authority to address ground-water matters, and will have to be reconciled.

The potential statutory implications of EPA 1 s proposed amendments to 40 CFR Part 192 (52 FR 36000; September 24, 1987) were addressed in staff comments on the rule. The letter transmitting the comments dated January 29, 1988 stated:

Under present law, HRC concurrence that DOE has performed the remedial actions in accordance with EPA standards is necessary, before NRC can issue the license called for in UMTRCA. Under the proposed Title I standards, completion of the remedial actions may be delayed by ground-water restoration activities for periods of up to 100 years to achieve the established concentration limits. In addition, the provision for post-disposal monitoring, to confirm performance of disposal designs and corrective actions, also extends the time before remedial action is completed. EPA indicated that periods of at least 30 years may be

15 involved in this post-disposal period. Such prolonged time periods will require Congressional action to extend DOE 1 s authority and funding to conduct such activities. Accordingly, EPA should take into account that legislative changes may be needed to implement the long-term aspects of the proposed standards.

There is an uncertainty in the licensing of the Department of Energy as custodian of a reclaimed tailings millsite on Indian land (that is, reservation land where the title is held in trust by the United States for the benefit of the Indian tribe). Under Section 104(f) of UMTRCA, the NRC will license DOE as to any processing site or disposal site used for the disposal of Title I tail-ings. These sites are to be acquired by the State and transferred to the United States for permanent custody. On Indian lands the situation .is somewhat different. Under Section 105(b) the NRC will license DOE if the disposal site is a site to which the tailings have been removed from the processing site. If the tailings are stabilized in place, the statute is silent on the licensing of DOE, if DOE is the long-term custodian.

The Cooperative Agreement between the Navaho Nation and the DOE recognizes this quirk in the law. It distinguishes between two types of disposal sites, a depository site and a millsite. A depository site is a site to which material is removed for disposal, and the Tribe agrees to assist DOE in securing all property interests. Such a site is recognized as subject to licensing. A millsite equates to stabilization in place. The Tribe agrees to assist DOE, to the extent necessary, to acquire or extinguish individual Indian interests.

Issues of long-term custody are deferred to resolution on a site specific basis for millsites.

Only if DOE becomes the long-term custodian of a millsite on Indian land is licensing an issue. If any other Government agency, such as the Department of the Interior, or the Tribe, becomes the custodian it may be subject to licensing under the Atomic Energy Act as in possession of byproduct material.

Even if DOE becomes the custodian, but not a licensee, it is still subject to NRC oversite under Section 84b of the Atomic Energy Act, as amended, and Section 105(a)(3) of UMTRCA. Thus, NRC may impose the requirements of the general license on DOE, by order, if necessary to assure long-term monitoring and maintenance of tailings on an Indian land millsite.

16 The Commission concludes that its statutory responsibility to license long-term care of sites where remedial action is complete and all applicable standards have been met dictates that it proceed in spite of these uncertain-ties. The Commission would appreciate public comments on these uncertainties.

In particular, comments on the following points would be appreciated:

1. The Commission's understanding of DOE's current schedules and resources indicates that DOE cannot complete the program by the current 1990 limit.

Thus, the Commission considers it unlikely that OOE's authority to con-tinue remedial actions will not be extended in some fashion. However, extension is not assured and the exact terms of any extension are unknown.

2. EPA's proposed amendments of 40 CFR Part 192 concerning ground-water protection for Title I sites also include provisions that may lead to long-term ground-water restoration programs at some sites. The exact timing and content of EPA's final regulations are unknown. Further, based on the proposed regulations, additional legislation may be needed to implement the final standards.

3. The statutes are not completely clear with respect to institutional matters associated with reclaimed sites on Indian land. However, the matter is being addressed through agreements, and there are other options for NRC oversight of the sites. The Commission would particularly welcome comments from DOE and affected Indian Tribes on this matter.

VIII. ANPRM/Proposed Rule Although this notice is being published at this time as an Advance Notice of Proposed Rulemaking because of the remaining uncertainties in the Department of Energy Title I program, the full text of a proposed rule is being made available for comment. If the noted uncertainties and other aspects of the proposal are commented upon fully by interested persons in response to the advanced notice in a manner that allows the Commission to reach a final decision on the licensing issues, the Commission may exercise its option to proceed directly to a final rule. The Administrative Procedures Act, in 5 U. S. C. 553(b)(3)(B), permits an agency to omit general notice of proposed

17 rulemaking when for good cause it can find that such notice and public procedure are impracticable, unnecessary, or contrary to public interest. Full public comment by interested persons on the general licenses published in this advance notice may make a second round of co1T111ent unnecessary, unless the public corrment leads to substantial revision of the proposal.

IX. Finding of No Significant Environmental Impact: Availability The ColTlllission has determined under the National Environmental Policy Act of 1969, as amended, and the Co1T111ission s regulations in Subpart A of 10 CFR 1

Part 51, that this rule, if adopted, would not be a major Federal action signi-

- ficantly affecting the quality of the human environment and, therefore, an environmental impact statement is not required. The rulemaking being considered would establish general licenses for custodial care of uranium or thorium mill tailings sites by another Federal agency or State. The licensing action would be done after remedial actions are completed, and would ensure that sites remain in good condition. If unexpected repairs are ever required, the licensee would be responsible to make the necessary repairs. Therefore, the actions required under these regulations being considered would be preventative of adverse environmental impacts.

The environmental assessment and finding of no significant impact on which

- this determination is based are available for inspection at the NRC Public Document Room, 1717 H Street, NW, Washington, DC. Single copies of the envi-ronmental assessment and finding of no significant impact are available from Mark Haisfield, Office of Nuclear Regulatory Research, U.S. Nuclear Regulatory ColTlllission, Washington, DC 20555, Mail Stop NL/S-260. Telephone (301) 492-3877.

X. Paperwork Reduction Act Statement This rule being considered does not contain a new or amended information collection requirement subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.). Existing requirements were approved by the Office of Management and Budget approval number 3150-0020.

18 XI. Regulatory Analysis The Commission has prepared a draft regulatory analysis on the regulation being considered. The analysis examines the costs and benefits of the alter-natives considered by the Commission. The draft analysis is available for inspection in the NRC Public Document Room, 1717 H Street, NW, Washington, DC.

Single copies of the draft analysis may be obtained from Mark Haisfield, Office of Nuclear Regulatory Research, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555, Mail Stop NL/S-260.

The Corrmission requests public comment on the draft regulatory analysis.

- Comments on the draft analysis may be submitted to the NRC as indicated under the ADDRESSES heading.

XII. Regulatory Flexibility Certification Statement As required by the Regulatory Flexibility Act of 1980, 5 U.S.C. 605(b),

the Commission certifies that this rule, if adopted, will not have a signifi-cant economic impact upon a substantial number of small entities. This rule will apply only to a Federal agency or an appropriate State. Therefore, a Regulatory Flexibility Analysis is not required and has not been prepared.

XIII. List of Subjects in 10 CFR Part 40 Government contracts, Hazardous materials-transportation, Nuclear materials, Penalty, Reporting and recordkeeping requirements, Source material, and Uranium.

Under the Atomic Energy Act of 1954, as amended, the Energy Reorganization 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 proposing the following amendments to 10 CFR Part 40.

19 PART 40 - DOMESTIC LICENSING OF SOURCE MATERIAL

1. The table of contents for Part 40 is amended by adding entries for §§40.27 and 40.28 to read as follows:

GENERAL LICENCES 40.27 General license for long-term care of DOE remedial action sites.

40.28 General license for long-term care of uranium or thorium

- byproduct tailings sites.

2. The authority citation for Part 40 continues to read as follows:

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

932, 933, 935, 948, 953, 954, 955, as amended, secs. lle(2), 83, 84, Pub.

L.95-604, 92 Stat. 3033, as amended, 3039, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 2014(e)(2), 2092, 2093, 2094, 2095, 2111, 2113, 2114, 2201, 2232, 2233, 2236, 2282); secs. 274, Pub. L.86-373, 73 Stat. 688 (42 U.S.C. 2021); secs . 201, as amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846). Sec. 275, 92 Stat. 3021, as amended by Pub. L.97-415, 96 Stat. 2067 (42 U.S.C. 2022).

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

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

2273); §§40.3, 40.25(d)(l)-(3), 40.35(a)-(d), 40.4l(b) and (c), 40.46, 40.5l(a) and (c), and 40.63 are issued under sec. 161b, 68 Stat. 948, as amended, (42 U.S.C. 2201(b)); and §§40.5, 40.25(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 issued under sec. 1610, 68 Stat. 950, as amended (42 U.S.C. 2201(0)).

20

3. Section 40.1 is revised to read as follows:

§40.1 Purpose.

(a) The regulations in this part establish procedures and criteria for the issuance of licenses to receive title to, receive, possess, use, transfer, provide for long-term custodial care, or deliver source, by-product materials, and residual radioactive material, as defined in this part, and establish and provide for the terms and conditions upon which the Commission will issue these licenses. The regulations in this part also establish certain requirements for the physical protection of import, export, and transient shipments of natural uranium. (Additional require-ments applicable to the import and export of natural uranium are set forth in Part 110 of this chapter.)

(b) The regulations contained in this part are issued under the Atomic Energy Act of 1954, as amended (68 Stat. 919), Title II of the Energy Reorganization Act of 1974, as amended (88 Stat. 1242), and Titles I and II of the Uranium Mill Tailings Radiation Control Act of 1978, as amended (42 U.S.C. 7901).

4. In §40.2a, paragraph (a) is revised to read as follows:

§40.2a Coverage of inactive tailings sites.

(a) Prior to the completion of the remedial action, the Commission will not require a license pursuant to 10 CFR Chapter I for possession of residual radioactive materials as defined in this Part that are located at a site where milling operations are no longer active, if the site is designated a processing site covered by the remedial action program of Title I of the Uranium Mill Tailings Radiation Control Act of 1978. The Commission will exert its regulatory role in remedial actions primarily through concurrence and consultation in the execution of the remedial action pursuant to Title I of the Uranium Mill Tailings Radiation Control Act of 1978. After remedial actions are completed, the Commission will license the long-term custodial care under the requirements set out in

§40.27.

21

5. Section 40.3 is revised to read as follows:

§40.3 License requirements.

A person subject to the regulations in this part may not receive title to, own, receive, possess, use, transfer, provide for long-term custodial care, deliver byproduct material or residual radioactive mate-rial as defined in this part or any source material after removal from its place of deposit in nature, unless authorized in a specific or general license issued by the Commission under the regulations in this part.

6. In §40.4, paragraph (s) is added to read as follows:

§40.4 Definitions.

(s) 11 Residual radioactive material" means: (1) Waste (which the Secretary of Energy determines to be radioactive) in the form of tailings resulting from the processing of ores for the extraction of uranium and other valuable constituents of the ores; and (2) other waste (which the Secretary of Energy determines to be radioactive) at a processing site which relates to such processing, including any residual stock of unpro-cessed ores or low-grade materials. This term is used only with respect to materials at sites subject to remediation under Title I of the Uranium Mill Tailings Radiation Control Act of 1978.

7. In §40.7, paragraph (f) is revised to read as follows:

§40.7 Employee protection.

(f) The general licenses provided in §§40.21, 40.22, 40.25, 40.27, and 40.28 are exempt from paragraph (e) of this section.

22

8. Section 40.20 is revised to read as follows:

§40.20 Types of licenses.

(a) Licenses for source material are of two types: general and specific. The general licenses provided in this part are effective without the filing of applications with the Commission or the issuance of licensing documents to particular persons. Specific licenses are issued to named persons upon applications filed pursuant to the regulations in this part.

(b) Section 40.27 contains a general license applicable for custody and long-term care of residual radioactive material at uranium mill tailings disposal sites remediated under Title I of the Uranium Mill Tailings Radiation Control Act of 1978.

(c) Section 40.28 contains a general license applicable for custody and long-term care of byproduct material at uranium or thorium mill tailings disposal sites remediated under Title II of the Uranium Mill Tailings Radiation Control Act of 1978.

9. New §§40.27 and 40.28 are added to read as follows:

§40.27 General license for long-term care of DOE remedial action sites.

(a) A general license is issued for the custodial care, to include monitoring, maintenance, and emergency measures necessary to protect public health and safety and other actions necessary to comply with the standards of section 275(a) of the Atomic Energy Act of 1954, for reme-diated uranium mill tailings sites under Title I of the Uranium Mill Tailings Radiation Control Act of 1978, as amended. The license is available only to the Department of Energy, or another Federal agency designated by the President to provide custodial care. The purpose of this general license is to ensure that uranium mill tailings sites will be maintained in such a manner as to protect the public health, safety, and the environment after closure.

23 (b) The general license in paragraph (a) of this section becomes effective when the Commission receives a site-specific long-term sur-veillance and maintenance plan (SMP) that meets the requirements of this section. The Department of Energy, or other Federal agency designated by the President, shall submit the SMP within 120 days following Commission concurrence in the Secretary of Energy's determination of completion of remedial action at each site. The plan may incorporate by reference information contained in documents previously submitted to the Commission if the references to the individual incorporated documents are clear and specific. Each SMP must include--

(1) A legal description of the site to be licensed, including docu-mentation on whether land and interests are owned by the United States or an Indian tribe. If the site is on Indian land, then, as specified in the Uranium Mill Tailings Radiation Control Act of 1978, the Indian tribe and any person holding any interest in the land shall execute a waiver releasing the United States of any liability or claim by the Tribe or person concerning or arising from the remedial action and holding the United States harmless against any claim arising out of the performance of the remedial action; (2) A detailed description of the final site conditions, including existing ground-water characterization. This description must be detailed enough so that future inspectors will have a baseline to determine changes to the site and when these changes are serious enough to require main-tenance or repairs. If the site will have continuing aquifer restoration requirements, then the SMP must provide details on how restoration is to be completed and how contingencies will be resolved; (3) A description of the long-term surveillance program, including proposed inspection frequency and reporting to the Commission, frequency and extent of ground-water monitoring if required, inspection personnel qualifications, inspection procedures, recordkeeping and quality assurance procedures; (4) A description of the criteria for follow-up inspections based on routine inspections or extreme natural events; and

24 (5) A description of the criteria for performing custodial mainten-ance and emergency measures. This description must specify what constitutes custodial maintenance and what requires emergency measures.

(c) The custodial agency under the general license established by paragraph (a) of this section shall --

(1) Maintain the site in accordance with the provisions of the approved SMP; (2) Obtain concurrence from the Commission for all changes to the SMP; (3) Guarantee permanent right-of-entry to Commission representatives for the purpose of periodic site inspections; and (4) Notify the Commission prior to undertaking any major construction related to the site.

(d) As specified in the Uranium Mill Tailings Radiation Control Act of 1978, the Secretary of the Interior, with the concurrence of the Secretary of Energy and the Commission, may sell or lease any subsurface mineral rights associated with land on which residual radioactive materials are disposed. In such cases, the person acquiring the rights and the Secretary of Interior shall comply with section 104 (h) of the Uranium Mill Tailings Radiation Control Act of 1978. This section requires, among other things, that the Commission issue a license to the Secretary of the Interior to assure that the site remains in a safe and environmentally sound condition. The Commission shall respond to each licensing request on a site-by-site basis.

§40.28 General license for long-term care of uranium or thorium byproduct tailings sites.

(a) A general license is issued for the custodial care, to include monitoring, maintenance, and emergency measures necessary to protect the public health and safety and other actions necessary to comply with the

25 standards promulgated pursuant to section 84 of the Atomic Energy Act of 1954, for remediated uranium or thorium mill tailings sites under Title II of the Uranium Mill Tailings Radiation Control Act of 1978, as amended.

The license is available to the Department of Energy, to another Federal agency designated by the President, or to the State where the remediated site is located if the State exercises its option to acquire the site.

The purpose of this general license is to ensure that uranium or thorium mill tailings sites will be maintained in such a manner as to protect the public health, safety, and the environment after closure.

(b) The general license in paragraph (a) of this section becomes effective when the Commission receives a site-specific long-term surveil-lance and maintenance plan (SMP) that meets the requirements of this section. The intended general licensee shall submit the SMP after the operating licensee has completed remedial action meeting the requirements of Appendix A of this Part or applicable Agreement State requirements.

The plan may incorporate by reference information contained in documents previously submitted to the Commission if the reference to the individual incorporated documents are clear and specific. Each SMP must include--

(1) A legal description of the site to be licensed. The description must show that the operating licensee has made all reasonable efforts to transfer title and any other interests in the land to the United States or a State. See Appendix A, Criterion 11 of this Part for more detailed criteria regarding land transfer; (2) A detailed description of the final site conditions, including existing ground-water characterization. This description must be detailed enough so that future inspectors will have a baseline to determine changes to the site and when these changes are serious enough to require main-tenance or repairs;

26 (3) A description of the long-term surveillance program, including proposed inspection frequency and reporting to the Commission (see Appendix A, Criterion 12 of this Part for more details on inspections and reporting), frequency and extent of ground-water monitoring if required, inspection personnel qualifications, inspection procedures, recordkeeping and quality assurance procedures; (4) A description of the criteria for follow-up inspections based on routine inspections or extreme natural events; and (5) A description of the criteria for performing custodial main-tenance and emergency measures. This description must specify what con-stitutes custodial maintenance and what requires emergency measures.

(c) The custodial agency who has a general license established by paragraph (a) of this section shall --

(1) Maintain the site in accordance with the provisions of the approved SMP; (2) Obtain concurrence from the Commission for all changes to the SMP; (3) Guarantee permanent right-of-entry to Commission representatives for the purpose of periodic site inspections; and (4) Notify the Commission prior to undertaking any major construction related to the site.

(d) (1) Upon application, the Commission may issue a specific license, as specified in the Uranium Mill Tailings Radiation Control Act of 1978, permitting the use of surface and/or subsurface estates transferred to the United States or a State. Although an application may be received from any person, if permission is granted, the person who transferred the land to DOE or the State shall receive the right of first refusal with respect to this use of the land. The application must demonstrate that--

27 (i) The proposed action does not endanger the public health, safety, welfare, or the environment; (ii) Whether the proposed action is of a temporary or permanent nature, the site would be maintained and/or restored to meet requirements in Appendix A of this Part for reclaimed sites.

(2) A person rece1v1ng a specific license to use the surface or subsurface area of a site shall ensure that the site will be maintained or restored to conditions complying with Appendix A of this Part. On a case-by-case determination, the Commission may require financial arrangements to ensure that the licensed person is able to maintain the site undisturbed, or if disturbed is able to restore the site to a safe and environmentally sound condition.

Dated at Rockville, Maryland, this ~day of ~,--;-1988.

For the Nuclear Regulatory Commission L Samuel Secretary of the Commission