ML23163A148

PR-040 - 55FR03970 - Custody and Long-Term Care of Uranium Mill Tailings Sites

ML23163A148
Person / Time
Issue date:	02/06/1990
From:	Chilk S NRC/SECY
To:
References
PR-040, 55FR03970
Download: ML23163A148 (1)

Text

ADAMS Template: SECY-067 DOCUMENT DATE: 02/06/1990 TITLE: PR-040 - 55FR03970 - CUSTODY AND LONG-TERM CARE OF URANIUM MILL TAILINGS SITES CASE

REFERENCE:

PR-040 55FR03970 KEYWORD: RULEMAKING COMMENTS Document Sensitivity: Non-sensitive - SUNSI Review Complete

STATUS OF RULEMAXING PROPOSED RULE: PR-040 OPEN ITEM (Y/N) N RULB NAME: CUSTODY AND LONG-TERM CARE OF URANIUM MILL TAILING S SITES PROPOSED RULE FED REG CITE: SSFR03970 PROPOSED RULE PUBLICATION DATE: 02/06/90 NUMBER OF COMMENTS: 6 ORIGINAL DATE FOR COMMENTS: 04/23/90 EXTENSION DATE: I I FINAL RULE FED. REG. CITE: 55FR45591 FINAL RULE PUBLICATION DATE: 10/30/90 NOTES ON SEB ALSO ADVANCED NOTICE OF PROPOSED RULEMAXING PUBLISHED AT TAWUS 53 FR 32396. FILE LOCATED ON Pl.

F tml.B TO FIND THB STAFF CONTACT OR VIEW THE RULEMAXING 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: 89-233 SRM DATE: I I SIGNED BY SECRETARY: 01/30/90 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

{55FR03970)

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

~::~::----:~:~::----~~:::-:::::~::-::~:::-:-::::::::-::::-----------------------

04/23/90 04/20/90 COMMENT OF ARCO COAL COMPANY

{JEFFREY H. DESAUTELS, SR. ATTORNEY) { 1) 04/24/90 04/20/90 COMMENT OF COLORADO DEPARTMENT OF HEALTH

{ROBERT M. QUILLIN, DIRECTOR) { 2) 04/24/90 04/20/90 COMMENT OF DOE'S URANIUM MILL TAILINGS REMEDIAL *..

{MARK L. MATTHEWS, PROJECT MANAGER) { 3) 04/25/90 04/23/90 COMMENT OF US ENVIRONMENTAL PROTECTION AGENCY

{RICHARD E. SANDERSON, DIRECTOR) { 4) 04/30/90 04/26/90 COMMENT OF US DEPARTMENT OF THE INTERIOR

{JOHN E. SCHROTE) { 5) 05/07/90 05/04/90 COMMENT OF DEPARTMENT OF NUCLEAR SAFETY

{PAUL D. EASTVOLD, MANAGER) { 6) 10/25/90 10/24/90 FEDERAL REGISTER NOTICE - FINAL RULE

[7590-01]

DOCKET NUMBER PROPOSED RULE PR LjO

(_55 Ff< o 39'1~] DUC KL irn US NHC NUCLEAR REGULATORY COMMISSION 10 CFR Part 40 *90 OCT 25 P3 :52 RIN 3150-AC56 Custody and Long-Term Care of Uranium and Thorium Mill Tailings Disposal Sites AGENCY: Nuclear Regulatory Convnission.

ACTION: Final rule.

SUMMARY

The Nuclear Regulatory Commission (NRC) is amending its regulations by issuing general licenses that will permit NRC to license the custody and long-term care of reclaimed or closed uranium or thorium mill tailings sites after remedial action or closure under the Uranium Mill Tailings Radiation Control Act has been completed. The intended effect ~f this action is to provide a surveillance procedure to ensure continued protection of the public health and safety and the environment. This action is necessary to meet the requirements of Titles I and II of the Uranium Mill Tailings Radiation Control Act.

EFFECTIVE DATE: (30 days after publication in the Federal Register).

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

SUPPLEMENTARY INFORMATION:

I. Background.

I I. Su11111ary of Final Rule.

I I I. Uranium Mill Tailings Remedial Action Amendments Act of 1988. \'J;o\qo t\\)

./l~ , I*~ ,J(,'5 f ff:sr

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

v. The Long-Term Surveillance Plan (Title I and Title II).

VI. Future Uses of the Disposal Site.

VII. Cormients of the Proposed Rulemaking.

VIII EPA Clean Air Act Activities.

IX. Finding of No Significant Environmental Impact: Availability.

x. Paperwork Reduction Act Statement.

XI. Regulatory Analysis.

XII. Regulatory Flexibility Certification Statement.,

XII I. Backfit Analysis.

- XIV. List of Subjects in 10 CFR Part 40.

I. Background In the Uraniu~ ~ill Tailings Radiation Control Act of 1978 (U~TRCA), 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....*, 19 control this.hazard is to place the long-term care of the uranium or thorium mill tailings disposal site, after completion of all remedial actions or closure, in the hands of State or Federal government.

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 tail1ngs sites. Title I requires that, upon completion of the remedial action program by DOE, the permanent disposal sites be cared for by the DOE or other Federal agency designated by the President, under a license issued by the Comnission. Title II of UMTRCA conta1ns similar requirements for NRC licensing of presently active uranium or thorium miil tailings sites following their closure and license termination. These disposal sites would be licensed by the Comission upon their transfer to the Federal Government or the State in which they are located, at the option of the State.

These regulations will complement other UMTRCA required regulations which have been completed and cover activities through closure.

2

An Advance Notice of Proposed Rulemaking was issued on August 25, 1988 (53 FR 32396). The proposed rule was issued on February 6, 1990 (55 FR 3970).

II. Su11111ary of Final Rule The regulatory additio~s to 10 CFR Part 40 will provide for two new general licenses. The general licenses in §40.27 and §40.28 will correspond to Title I and Title II of UMTRCA, respectively. The provisions in §40.27 would apply tc inactive sites and the provisions in §40.28 would apply to active sites.

Although the requirements in §40.27 and §40.28 will differ somewhat due to the differences in Title I and Title II of the Act, the goals to be achieved by the long-term care licensee are the same.

These regulations deal only with uranium or thorium ffiill tailings sites after remedial actions (for Title I) or closure activities (for Title II) have been completed to meet applicable closure standards. UMTRCA stipulates the Federal government (normally DOE) as the long-term care licensee, and thereby the owner, except in the case of a Title II disposal site where the State may elect to be the long-term care licensee. In lieu of any such State election, the Federal government will become the long-term care licensee. The NRC will receive a detailed Long-Term Surveillance Plan (LTSP) from DOE or an appropriate State which will discuss ownership (whether Federal or State),

disposal site conditions, the surveillance program, required follow-up inspections, and how and when emergency repairs and, if necessary planned mintenance, will be accomplished. Unless the Commission is formally notified by the appropriate State, the DOE will submit the LTSP and will be the long-term care licensee. (See the section entitled *The Long-Term Surveillance Plan.*) The general license will become effective for each individual Title I or Title II disposal site upon NRC receipt of an LTSP that meets the requirements of the general license and either NRC concurrence in completion of remedial actions (Title I site) or termination of the Title II site license.

For disposal sites governed by the provisions of §40.27 (Title I sites),

the general license applies only to the DOE or another Federal agency designated by the President. For disposal sites governed under the provisions of §40.28 (Title II sites). DOE, or another Federal agency, will prepare and 3

submit the LTSP, unless the State, at its option, decides to take custody of the site and be included in the general license. In the latter case the State would prepare and submit the LTSP. The authority to grant a long-term care license is reserved to the NRC. States may be the long-term care 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 150.15a(b)(5)).

The general licensees for long-term care are exempted from 10 CFR Parts 19, 20, and 21. These parts cover notices, instructions, notifications to workers, and inspection in Part 19, standards for protection aQainst radiation in Part 20, and reporting of defects and noncompliance in Part 21. These parts

• deal with operational activities. A general license for long-term care covers activities after the operation and clean-up of the site has been completed.

Under normal circumstances the long-term care licensee will spend a day or two at each disposal site each year to confirm that the site's conditions are as expected. The disposal site will comply with 40 CFR Part 192, Subparts A, B, and C (for Title I sites) and 10 CFR Part 40 Apperdix A criteria (for Title II sites), which essentially eliminate direct radiation and air particulates and control radon releases within specified limits. Dispesal site closure will, therefore, eliminate the need for specific radiation controls as specified ir.

Parts 19, 20, and 21 under normal conditions.

If damage to the disposal site requires significant repairs, then the long-term care licensee must notify NRC and describe the necessary repairs.

Since worker radiation protection and occupational exposure reporting may be necessary during such repair efforts, the long-term care licensee will identify the appropriate requirements of 10 CFR Parts 19, 20, and 21 to be applied. NRC may then impose appropriate portions of the above parts or regulations by order on a site specific basis depending upon the damage and the type of repairs necessary.

A minor administrative change is being made to 10 CFR Part 40 Appendix A Criterion 12 to allow for a more efficient reporting program. Criterion 12 states that inspection results must be reported to the Co11111ission within 60 days following each inspection. Because each long-term care licensee, primarily the Department of Energy, will most likely have multiple disposal 4

sites, this rule will allow annual reports that cover all of these sites under their jurisdiction. Any disposal site where unusual damage or disruption is discovered during the inspection, however, will require a preliminary inspection report to be submitted within 60 days. The timing for submittal of the annual report will be based on when the long-term care licensee will be doing the inspections and will be submitted within 90 days of the date of the annual inspection of the last site inspected.

Criterion 12 currently deals with Title II licensees, It is being amended to include Title I licensees. Provisions in §40.27 (Title I disposal sites) will reference Criterion 12 so that the same reporting requirements for Title II licensees will apply for Title J licensees.

There are some differences in requirements for mill tailings located on Indian lands. Where the disposal site is on Indian tribal lands, the tribes retain ownership. An exception is provided in Section 105(b) of UMTRCA, which states that in those cases where the residual radioactive material from processing sites on Indian land is relocated to a permanent disposal area not on Indian land, the DOE shall acquire title to the re,idual radioactive material and the disposal site. The NRC and DOE have generally agreed that disposal sites on Indian lands should

, be handled in the same manner as other Title I disposal sites, including conduct of surveillance 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 processing sites are on Indian lands. Three of these sites will also serve as disposal sites (the residual radioactive material from two of these locations will be consolidated at one disposal site).

For Title II disposal sites on Indian lands it is not clear who will be responsible for monitoring, maintenance, and emergency measures at the site.

Currently, the Western Nuclear Sherwood Uran;um Mill located ;n the State of Wash;ngton is the only site that falls into this category. UMTRCA provides that long-term surveillance will be done by the Federal government and that the licensee will be required to enter into arrangements ~ith the Convnission to 5

ensure this surveillance. However, UMTRCA was not explicit as to which Federal agency is responsible for the disposal site, and should this site ever require emergency measures, additional authorizations may be required. The basic obligations for this site have already been codified in 10 CFR Part 40, Appendix A, Criterion llF, and are not part of this rulemaking. NRC is providing flexibility in this area and will work out long-term care arrangements for these disposal sites on a case-by-case basis.

Both §40.27 and §40.28 allow for potential future uses of the disposai sites. As provided in UMTRCA, any future use would require a separate ColTdllission license to assure that the site remains or is restored to a safe and

- environmentally sound condition. See the "Future Uses of the Disposal Site" section.

The rulemaking provides for a general license to governmental bodies for custody and long-term care of uranium or thorium mill tailings sites after closure, pursuant to statute. Therefore, this rulemaking has no significant impact upon the private sector. However, the staff recognizes that there may be cases where convnunication and sharing of informatian between the current licensee and the future long-term care licensee may be appropriate. This communication will allow the long-term care licensee to better prepare the Long-Term Surveillance Plan by having more knowledge of how site closure was accomplished.

III. Uranium Mill Tailings Remedial Action Amendments Act of 1988

{Amendments Act)

The Amendments Act was signed by the President on November 5, 1988, and provides among other things an extension of the UMTRCA Title I program. It allows the Department of Energy until September 30, 1994 (previously 1990) to perform remedial actions at designated uranium mill tailings sites and vicinity properties. There is one major exception to the 1994 deadline. The authority to perform ground water restoration activities is extended without limitation.

However, to meet the current proposed Environmental Protection Agency (EPA) ground water standard, compliance with the ground water protection provisiors at the disposal site would still need to be accomplished by the 1994 date.

6

The reason for the extension to 1994 is to allow DOE enough time to complete remedial actions at all designated processing sites. The ground water restoration extension was provided ~ue to the potential that it may take DOE decades to comply with EPA ground water standards for some processing sites.

EPA is currently issuing new ground water standards in response to a September 3, 1985 decision by the 10th Circuit Court of Appeals in which the ground water provisions of the EPA uranium mill tailings standards (40 CFR 192. 20(a)(2-3))

for Title I processing sites were set aside and remanded to EPA. Based on the proposed EPA standards (52 FR 36000; September 24, 1987), the DOE believes that ground water restoraticn activitits will take significant)y more time than originally planned. The new standards have not yet been made final. Until final ground water standards are promulgated, UMTRCA requires that implementing

• agencies use the available proposed standards.

As a result of the Amendments Act, the NRC is planning to allow licensing of Title I disposal sites, where the tailings are not being moved, to occur in two steps, if needed. The first step would allow DOE, if necessary, to do all remedial actions, which include complying with the ground water protection standards addressing the design and performance at the disposal site for closure and licensing. The Amendments Act requires this to be completed prior to September 1994. The second step, which can go on for many more years, would deal with existing ground water restoration. When ground water restoration is completed: the Long-Term' Surveillance Plan would be appropriately amended.

Until the EPA standards are finalized, and DOE and NRC evaluate the sites based on these standards, we will not know how many sites would likely be involved in this two step licensing process.

The Amendments Act itself did not address the potential delay of licensing Title I disposal sites due to the ground water provisions in EPA's proposed standards requiring monitoring after NRC has concurred in completion of remedial action. NRC's options ranged from a case-by-case use of EPA's supplemental standards provisions to exempt such disposal sites entirely from performance monitoring to the inflexible consequence of delaying all such licensing until completion of the ground water performance monitoring program.

Such a delay could extend for up to 30 years or more. Based on interaction with other Federal agencies and the Congressional legislative history, the NRC 7

has selected the two step a~proach discussed above to optimize flexibility.

NRC convnents to EPA on their proposed staridards suggested ways to remedy the situation. The final EPA standards may resolve this issue, but could also introduce new uncertainties. Because the proposed EPA standards are legally binding until final rules are issued, this rule is designed to have flexibility to addre~s various situations.

IV. The Stabilization and Long-Term Care Prograw.

(Title I and Title II)

Although the end result for long-term care licensing for Title I or Title II disposal sites is similar, the processes leading up to closure of Title I er Titl£ II sites are different. The following provides background on these processes, as well as some of the differences between Title I and Title II lict:nsing.

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 standan:ts-*is to protect the public health and safety and the ~nvironment 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 Departmerat of Energy 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 concurrence of the NRC. The required NRC concurrence with the selection and performance of proposed remedial actions and the licensing of long-term care of disposal sites will be for the purpose of ensuring compliance with UMTRCA.

8

The portion of the EPA standards dealing with ground water requirements has been remanded by court action, and is currently being finaiized by EPA (~ee the previous section for more details). DOE continues to perform remedial action at the inactive processing sites in accordance with NRC's concurrence with the remedial action approach. Delaying implementation of the remedial action program would be inconsistent with Congress' intent of timely completion of the program. Modifications of disposal sites after completion of the remedial action to comply with EPA's final ground water protection standards may be unnecessarily complicated and expensive and may not yield commensurate benefits in terms of human and environmental protection. Therefore, the Commissicn believes that sites where remedial action has been essentially completed prior to EPA's promulgation of final ground water standards will not be impacted by the final ground water standards. Although additional effort may be appropriate to assess and cleanup contaminated ground water at these sites, the existing designs of the disposal sites should be considered sufficient to provide long-term protection against future ground water contamination. NRC does not view UMTRCA as requiring the reopening of those sites that have been substantially completed when NRC concurred with the selection of remedial action in accordance with applicable EPA standards, proposed or otherwise in place at the time such NRC concurrence was given.

The ~tabilization 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 remedial action (which includes decontamination, decoDlllissioning, 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 DOE's determination that the activities at the site have been 9

completed in accordance with the approved plan. Prior tc licensing, the next phase, title to the disposed tailings and contaminated materials must be transferred to the United States and the land upon which they are disposed of must be in Federal custody to provide for long-term Federal control, at Federal expense. Disposal sites on Indian land will remain in the beneficial ownership of the Indian tribe.

NRC concurrence in the DOE determination that remedial action at the processing site has been accomplished in accordance with ;he approved plan may be accomplished in two steps where residual radioactive material is not being moved from the processir.g site to a different disposal site. The Uranium Mill

• Tailings Remedial Action Amendments Act of 1988 allows for a two step approach for Title I disposal sites. The Amendments Act will allow DOE to do all remedial actions, other than ground water restoratior., for the first step of closure and licensing. The second step, which can go on for many years, will deal with existing ground water restoration. When ground water restoration is completed, the LTSP will be appropriately amended. For sites that are being moved, licensing will occur in one step. There is no ground water restoration at the riisposal site and the processing site will no~b~ licensed after completion of remedial action. See the earlier discussion on this law for more details.

The third phase is the licensing phase. The general license is effective following (1) NRC concurrence in the DOE determination that the disposal site has been properly reclaimed and (2) the formal receipt by NRC of an acceptable Long-Term Surveillance Plan. NRC concurrence with DOE's performance of the remediation indicates that DOE has demonstrated that the remedial action complies with the provisions of the EPA standards in 40 CFR Part 192, Subparts A, 8, and C. This NRC concurrence may be completed in two steps as discussed above. There is no termination date for the general license.

Public involvement has been and will continue to be provided through DOE's overall remedial action program for Title I ~ites and NRC's licensing program for Title II sites. The local public will have an opportunity to comment on the remedial action or closure plans proposed and implemented by DOE or the Title II licensee and to raise concerns regarding final stabilization and the degree of protection achieved. NRC fully endorses State and public input in all stages of the program, especially in the planning stages of remedial action 10

when such input car. be most effective in identifying and resolving issues affecting long-term care. At the time the LTSP is submitted, the NRC will consider the need for a public meeting in response to requests and public cor.cerns. Therefore, NRC encourages State and public participation early in the remedial action and closure process and will provide additional opportunities, as needed, later in the process.

The final phase of the program is surveillance and monitoring and begins after NRC accepts the LTSP. In this phase DOE and NRC periodically inspect the disposal site to ensure its integrity. The Long-Term Surveillance Plan will require the DOE to make repairs, if needed

• One of the requirements in the EPA standards is that control of the tailings should be designed to be effective for up to 1000 years without active maintenance. Although the design of the stabilized pile is such that relianc~

on active maintenance should be minimized or eliminated, the NRC license will require emergency repairs as necessary. In the event that significant repairs are necessary, a determination will be made on a site specific basis regarding the need for additional National Environmental Policy.Act (NEPA) actions, and health and safety considerations from Parts 19, 20, and 21.

Title II UMTRCA also charged EPA with the responsibility for promulgating standards for active uraniu~ or thorium mill tailings sites. EPA completed this in Subparts D and E of 40 CFR Part 192 on October 7, 1983 (48 FR 45946).

Title II processing sites have active NRC or Agreement State licenses.

Each licensee is responsible for having a closure 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 be closed in a manner which meets applicable standards. These include the requirements contained within 10 CFR Part 40 - Domestic Licensing of Source Material, or similar Agreement State requirements. In addition, 10 CFR 150.lSa 11

requires that prior to the termi~ation of any Agreement State license for byproduct material, the Corrmission shall have made a determination that all applicable standards and requirements have been met. Once the future long-term care licensee has submitted a suitable LTSP, the general license takes effect when either NRC terminates the current specific license or when NRC concurs with an Agreement State's termination of the current specific license. This rulemaking pr~vides the Commission with two options to maintain control over disposal sites in the unexpected situation when: (1) an acceptable LTSP has not been submitted; (2) the current specific license is r~ady to be terminated; (3) NRC had determined that the disposal site has been closed in accordance with applicable standards; and (4) disposal site custody has been transferred e to the long-term care licensee. The Commission could delay termination of the specific license until an acceptable LTSP is submitted or issue an order requiring surveillance by the custodian of the disposal site, who will become the long-term care licensee under the general license. The Commission considers either of these actions to be sufficient to ensure that the disposal site will be under surveillance and control during the transition period from the specific tc the general license. The Conrnission will not unnecessarily delay the termination of the specific license solely en the basis that an acceptable LTSP has not been received. In such cases, the prime option would b~ to issue appropriate orders. The Convnission, however, does not want to precludi the option of not terminating the specific license if this were appropriate for a relatively short period.

The general license approach for Title II sites is similar to the process used for Title I sites. The most significant differences are:

1. A State, at its option, may take over long-term care of a Title II disposal 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 disposal site.

3. Potential future uses of a Title I disposal site are limited to subsurface rights, whereas, a Title II disposal site could also 12

potentially allow the usage of surface rights. (See the ~ection entitled "Future Uses of the Disposal Site").

4. TitlE II licensees are required to pay a minimum charge of $250,0CG (1978 dollars) to cover the costs of long-term surveillance. This charge must be paid to the general treasury of the United States ~r to an appropriate State agency prior to the termination of a uranium or thorium mill license. The minimum charge may be adjusted based on site specific requirements in excess of those specified in Criterion

/

12 of Appendix A. (See the sectio~ entitl~c "The Long-Tenn Surveillance Plan", Title II, for additional details) *

• 5. The determination that remedial action at Title I sites has been completed may be done in two steps, whereas the determination of acceptable closure for Title II sites will be done only once before license termination.

6. There is an additional Title II requirement when a license in an Agreement State is terminated and the disposal site transferred to the United States for long-term care. All funds collected by the State for lcng-term surveillance will be transferred to the United

-. -1tates. This requirement has already been codified in Part 150 and

• 7.

is not part of this rulemaking.

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.

Twenty-seven of the 29 conventional mills licensed by NRC or Agreement Sites are not currently operating. Most of these have no plans to restart operations, and closure activities have either been started or are in planning.

13

V. The Long-Term Surveillance Plan (Title I and Title II)

DOE, or the appropriate State, will submit a disposal site Long-Term Surveillance Plan to the NRC to coincide with completion of remedial actions (Tit1e I) or license termination (Title II). DOE, or the appropriate State, will be responsible for preparing the LTSP since this document will clearly define their responsibilities under the general license. As discussed previously, the LTSP for Title I disposal sites will allow a two step approach as provided in the Uranium Mil1 Tailings Remedial Action Amendments Act of 1988. The Amendments Act will allow DOE to do all remedial actions, other than ground water restoration, for the first step of closure and licensing. The first step includes any performance or design features necessary to satisfy ground water protection standards, except for ground water restoration. The second step which can go on for many years, will deal with existing ground water restoration. When ground water restoration is completed, the LTSP will be appropriately modified.

Title I Th.e. OOE has developed a "Guidance for UMTRA Project Surveillance and Maintenance" document issued in January 1986. Copie!I 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 an LTSP for Title I disposal sites.

The DOE guidance document addresses five primary activities. These activities, which are discussed in the following paragraphs, are:

1. Definition and characterization of final disposal site conditions.

2. Disposal site inspections.

3. Ground water monitoring, if necessary.

4. Aerial photography.

5. Contingency (or emergency) repair, and planned maintenance if necessary.

14

DOE indicated that final disposal site conditions should be defined and characterized prior to the completion of remedial actions at a site. As-built drawings should be compiied, 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 disposal site LTSP 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 disposal site inspections: Phase I, Phase II and contingency inspections. Anr,ually scheduled 1 to 2-day phase I inspections would be conducted by a small team to identify any changes in conditions that may affect design integrity. Phase II inspections would be unscheduled and dependent upon potential problems identified during a Phase I inspection. Team members of a Phase II insrection should be specialists in the potential problem areas {e.g., geotechnical engineer for settlement). Contingency inspections would also be unscheduled ar.d 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.

The need to monitor ground water conditions should be determined on a site

. _.....*, _,_, I specific basis. If it is determined that ground water monitoring is required for the long-term care at the disposal site, then it should be conducted in two phases, screening monitoring and evaluative monitoring. Screening monitoring will 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 w;11 be more extensive and will quantify the rate and magnitude of the change of condit;ons. When EPA finalizes the ground water protection standards, modificat;ons may be necessary. See the discussion on the Uranium Mill Tailings Remedial Action Amendments Act of 1988 for more details.

Aerial photographs of the Title I disposal sites should be taken immediately upon completion of the construct;on and after the permanent surve;11ance features have been installed. The photographs will be used to prepare the final topographic map and as-built draw;ngs anc will be kept in the 15

peru~nent site file for futurf reference, should a problem develop at the site.

!n the unlikely event that a problem (such as erosion) should occur, the p~otographs provide biseline information about site conditions. New aerial photographs would be taken if it becomes necessary to monitor a problem over a long period of time.

ThE LTSP should also describe the procedures the long-term licensee would follow if contingency or emergency repairs were needed at the disposal site due to extreme natural events or purposeful intrusion.

The conduct of custodial activities such as grass mowing or fence repair are not precluded. If the long-term care licensee desires to conduct this type of custodial activity (termed "planned maintenance" in the DOE guidance document}, the activities should be described in the LTSP. However, it should be noted that planned maintenance of this type cannot be relied upon to ensure compliance with the EPA standards.

Title II Much of the guidance described for Title I disposal sites can be applied to th~ Title II disposal sites. However, the DOE guidance document includes additionai* information and recommendations for which the applicability must be evaluated on a site specific basis for Title II disposal sites. Specific requirements for Title II sites are addressed in Appendix A of 10 CFR Part 40.

For Title II sites, criterion 10 of Appendix A requires the existing licensee to pay a minimum charge of $250,000 (1978 dollars) to cover the costs of long-term surveillance. The minimum charge was based on an annual inspection by the governmental agency retaining custody of the site to conf;rni the integrity of the stabilized tailings and to determine the need, if any, for 11aintenance and/or monitoring. The actual amount of this charge will be set based on a site specific evaluation, which should be included as part of the existing licensee's reclamation plan for the site. This charge is not intended to cover the cost of contingency (emergency) repairs. Because the tailings and wastes should be disposed of without the need for any active maintenance, the annual inspection should be completed in 1 to 2 days per site. Post-closure maintenance activities that are relied upon to comply with Appendix A 16

closure standards can only be authorized by considerations of alternatives under Section 84(c) of the Atomic Energy Act of 1954, as amended. In such cases, the minimum charge for long-term surveillance to the existing licensee will be increased accordingly to provide for this maintenance. The basis for the minimum charge and the annual inspection is discussed in detail in the Final Generic Environmental Imract Statement on uranium milling (NUREG-0706) 1.

The custodial agency will prepare an LTSP for each oisposal site using input from the existing licensee's reclamation plan, incl~ding the evaluation of long-term surveillance needs. Thus, important site information will be transferred fron, the existing licensee to the custodial agency. The existing licensee, however, will not be required to prepare the LTSP. In addition the LTSP will not aff~ct the long-term surveillance charge paid by the existing licensee (the LTSP may also reflect additional site-specific activities which art not to be reflected in the long-term care charge, but are voluntarily convnitted to by the custodial agency).

VI. Future Uses of the Disposal.Site UMTRCA provides for , potential future uses of the disposal site. For a Title Cdisposal site, it provides that the Secretary of the Interior, with the concurrence of both the Secretary of Energy and the NRC, may dispose of any subsurface mineral rights. If t~is occurs, the NRG will issue a specific license to the Secretary of the Interior to assure that the tailings are not 1copies of NUREG-0706 may be purchased from the Superintendent of Documents, U.S. Government Printing Office, P.O. Box 37082, Washington, DC 20013-7082. Copies are also available from the National Technical Informatior.

Service, 5285 Port Royal Road, Springfield, VA 22161. A copy is also available for public inspection and/or copying at the NRC Public Document Room, 2120 L Street NW. (Lower Level) of the Gelman Building, Washington, DC.

17

disturbed, or if disturbed are restored to a safe and environmentally sound condition. At a Title I processing site, when tailings are moved, once the surface remedial actions are completed, surface rights will be available as long as the use does not impede future ground water restoration activities.

For a Title II disposal site the same provisions as above apply with the following two differences. First, surface as well as subsurface estates may be available fer use. Second, although the request to use these ri~hts may be:

received from any person, if permission is granted, the person who transferred the land to the Federal or State Government shall receive the right of first refusal with respect to this use cf the land.

Environmentc. l impacts ~lill be evaluated prior to any action granting the use of surface or subsurface estates.

VII. Co1T1T1ents on the Proposed Rulemaking The Commission received six (6) letters commenting on the proposed rule.

Copies of these letters and an analysis of the comments are available for public inspection and copying for a fee at the NRC Public Document Room at 2120 L Street, NW. (Lower Level), Washington, DC. Comments were received from two States a.. a..company having, uranium interests, and three Federal Agencies ( the Department of Energy, the Environmental Protection Agency, and the Department of the Interior). The most significant comments are summarized below.

There was concern that a current licensee may be placed in a position of having to delay final closure and turnover of its disposal site to the Federal government if an acceptable Long-Term Surveillance Plan has not been submitted.

This could cause increased costs to the licensee and thereby have a significant impact on the private sector.

The proposed rule package discussed two options available to the Co11111ission to maintain regulatory control of the disposal site in the above situation. The NRC could delay termination of the license or could issue specific orders to the intended custodial agency. We agree with the co11111enter that an indefinitt delay 1n terminating the license could increase the impacts 18

to an existing licensee. Therefore, we have clarified the rule to acknowledge that if significant financial impacts are anticipated due to lack of action on the custodial agency's part, issuing an order would be our prime option.

However, the Commission wants to retain the option of not terminating the existing license, if this might be appropriate for a relatively short period.

A State commenter was concerned that the rule does not provide for explicit State concurrence in an LTSP prepared by the Federal 2overnment.

The proposed rule did not provide for specific State-concurrence in the NRC licensing actions, because the State has no regulatory authority under the Atomic Energy Act during the long-term care period. The State, as a member of the general public, may comment on any action to be taken by the NRC. We would like to note that, for the Title II sites, the State, at its option, can be the custodial governmental agent and, therefore, become the responsible party to prepare and implement the LTSP under the general license- issued by the NRC.

If significant environmental consequences occur at either Title I or Title II disposal sites in the future, the failure will not. likely be as a result of the LTSP, but will most likely be as a resl*lt of inadequate design or construction. The States have been and will continue to be integrally involved in the 9e.s.ign and construction phase of remedial action or closure. The-corrmenter appears to over estimate the purpose of the LTSP which is the surveillance of the reclaimed or closed site, not the performance of significant maintenance work. The performance of significant work at licensed disposal sites under this regulation requires specific authorization from the NRC.

The Department of Energy indicated that the proposed rule was not clear regarding how the two step licensing process (Title I only) works in relationship to processing sites that are stabilized in place versus those that are relocated.

There will be a difference in how the two-step licensing approach will be used depending upor. whether the residual radioactive material has been stabilized in place or moved. The two-step approach, as it will apply for this LTSP and licensing, will only be used for materials stabilized in place.

19

For materials that are moved to a separate disposal site there will be no grou~d water restoration at the new site under normal, expected conditions and the old site wil1 not have an LTSP or license associated with it. When DOE moves a site, the original processing site will be cleaned-up to meet EPA standards for unrestricted use. NRC will not license these processing sites.

For residual radioactive materials stabilized in place and requiring additional ground water restoration, the LTSP will cover all the elements identified in the rule, except for detailed ground water.restoration actions.

The LTSP may still require ground water monitoring to ensure that actions taken for ground water restoration are not affecting the integrity of the stabilized pile. For example, if ground water restoration activities are impacting leaching through the pile, monitoring under the LTSP should be able to identify this and trigger any necessary corrective actions.

In sulTITlary, regardless of whether residual radioactive material is relocated or not, the custodial agency will be an NRC general licensee at the disposal site only. If ground water restoration at the processing site is necessary when the material is relocated, this will have no impact on the general license for the disposal site. If ground water restoration is necessary for a site stapilized in place, then licensing will be done in two steps.

DOE requested that reporting requirements for Title I sites be comparable to those for Title II sites -- 10 CFR Part 40 Appendix A, Criterion 12. The wording in the proposed rule provided DOE with flexibility in developing reporting requirements for Title I sites. However, since DOE requested this change and it would provide for reports at least as frequently as under the proposed rule, it has been added to the final rule.

In the Advance Notice of Proposed Rulemaking, the Conmission indicated that before the general license could become effective at a disposal site the NRC must "receive" an LTSP. In the proposed rule, the wording was changed to show that the Comission must "accept" the LTSP. DOE did not support this change. NRC has made this change to provide a better level of control over the licensing process. If the NRC receives an acceptable LTSP, the long-term care licensee would not be impacted in any way. If an unacceptable LTSP is 20

received, this prov1s1on provides the NRC an opportunity to work \lil.h the long-term care licensee to correct the deficiencies prior to licensing.

rmc adopted a number of DOE recommendations that provide additional clarity in the notice and rule. These changes included, for example, clarifying when the word "site" specifica11y refers to a disposal or processing site, providing additional information for Title I sites on Indian lands, usin9 the term "remedial action" for Title I sites, noting in the rule that there is no termination date to the general licenses, clarifying the use of aerial photographs, and other wording changes that provided more specific information.

VIII. EPA Clean Air Act Activities EPA has published new air effluent regulations for radon and other radioactive effluents from uranium mill tailings as part of the voluntary remand of standards developed under Section 112 of the Clean Air Act (CAA) (54 FR 51654, December 15, 1989). The EPA regulations include a radon emission standard that would apply to both Title I and Title II disposal sites after closure that must be confirmed by measurement. Other NRC and EPA regulations are desi~Q standards. Once measurements confirm that the site meets CAA standards and long-term stabilization has been completed, the tailings are no longer subject to EPA regulations under the CAA. Prier to closure, it is entirely possible that the CAA standards could result in EPA ordered modifications to sites that already meet current design standards. The potertial for conflicting EPA and NRC/Agreement State regulatory programs prior to the long-term care period will require close coordination between the two agencies and with States, depending on CAA delegations.

IX. Finding of No Significant Environmental Impact: Availability The Co11111ission has determined under the National Environmental Policy Act of 1969, as amended, and the Commission's regulations in Subpart A of 10 CFR Part 51, that this rule is not a major Federal action significantly affecting the quality of the human environment and therefore an environmental impact statement is not required. The rule establishes general licenses for long-term 21

care of uranium or thorium mill tailings disposal sites by another Federal agency or State. The licensing action will be done after remedial actio~ or site closure is completed, and would ensure that disposal sites remain in good conditior1. If unexpected repairs are ever required, the long-term care licensee will be responsibl~ to make the necessary repairs. The Convnission will evaluate at the time such action is deemed necessary whether there is a need to prepare a separate environmental assessment.

The environmental assessment and findin~ of no significant impact on which tliis determination is based are available for inspection ~t the NRC Public Document Room, 2120 L Street NW. (Lower Level), ~ashington, DC. Single copies of the environmental assessment and finding of no significant impact are available from Mark Haisfield, Office of Nuclear Regulatory Research, V.S.

Nuclear Regulatory Commission, Washingt~n, DC 20555, Mail Stop NLS-260.

Telephone (301) 492-3877.

X. Paperwork Reductior. Act Statement This proposed rule 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

-~ _, and Budget approval number 3150-0020.

Management XI. Regulatory Analysis The Conunission has prepared a regulatory analysis for this regulation.

The analysis examines the costs and benefits of the alternatives considered by the Comrr:ission. The analysis is available for inspection in the NRC Public Document Room, 2120 L Street NW. (Lower Level), Washington, DC. Single copies of the analysis may be obtained from Mark Haisfield, Office of Nuclear Regulatory Research, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Mail Stop NLS-260.

22

XII. Regulatory Flexibility Certification Statement A5 reauired by the Regulatory Flexibility Act of 1980, 5 U.S.C. 605(b),

the Commission certifies that this rule does not have a significant economic impact upon a substantial number of small ~ntities. This rule will apply only to a Federal agency or an appropriate State. Although small entities may be requested to consult with government agencies in developing LTSPs, effort associated with such consultation is required under the criteria in Appendix A to 10 CFR Part 40, which were previously promulgated by the Co1T111ission.

Therefore, a Regulatory Flexibility Analysis is not required and has not been prepared.

XIII. Backfit Analysis The NRC has determined that the backfit rule, 10 CFR 50.109, does not apply to this final rule, and therefore, a backfit analysis is not required for this final rule because these amendments do not involve any provisions ~~ich would impose backfits as defined in 10 CFR 5C.109(a)(l).

. ...., XIV., List of Subjects in 10 CFR Part 40 Criminal penalty, government contracts, Hazardous materials-transportation, Nuclear materials, 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. 552 and 553, and the Uranium Mill Tailings Radiation Control Act of 1978, as amended, the NRC is adopting the following amendments to 10 CFR Part 40.

PART 40 - DOMESTIC LICENSING OF SOURCE MATERIAL

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

23

AUTHORITY: Secs. 62, 63, 64, 65, 81, 161, 182, 183, 18, 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, 22CI, 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 40.3l(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)(I)-(3), 40.35(a)-(d), 40.4l{b) and {c), 40.46, 40.51(a) and {c), and 40.63 are issued under sec. 161b, 68 Stat. 948, as amended, (42 U.S.C. 220l(b)); and §§40.5, 40.9, 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)) *

- 2. 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, or deliver source and byproduct materials, as defined in this part, and establish and provide for the terms and conditions upon which the Cormiission will issue these licenses. These regulations also provide for the disposal of byproduct material and for the long-term care and custody of byproduct material and residual radioactive material. The regulations in this part also establish certain requirements for the 24

physical protection of import, export, and transient shipments of natural uranium. (Additional requirements 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 th~

Atomic Energy Act of 1954, as ame~aed (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).

3. 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 Convnission 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 covered by the remedial action program of Title I of the Uranium Mill Tailings Radiation Control Act of 1978, as awended. The Co11111ission 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, as amended. After remedial actions are completed, the Commission will license the long-term care of sites, where residual radioactive materials are disposed, under the requirements set out in §40.27.

4. 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 care, deliver or dispose of byproduct material or residual radioactive 25

material 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.

5. In §40.4, the definition Residual radioactive material is added in to read as follows:

§40.4 Definitions.

Residual radioactive material means: {l) Waste (~hich the Secretary of Energy determines to be radioactive) in the form of tailings resulting from the processing of cres for the extraction of uranium and other valuable co~stituents of the ores; and (2) other waste (which the Secretary of Energy determin~s to be radioactive) at a processing site which relates to such processing, inclucing 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 Cantrel Act of 19i8, as amended.

6. 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.

7. Section 40.20 is revised to read as follows:

§40.20 Types of licenses.

{a) Licenses for source material and byproduct material are of two types: general and specific. Licenses for long-term care and custody of residual radioactive material at disposal sites are general licenses.

26

The general licenses provided in this part are effective without the filing of applicaticns with th~ Convnission 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 lorg-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, as aruended.

(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 under Title II of the Uranium Miii Tailings Radiation Control Act of 1978, as amended.

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

§40.27 General license for custody and lorg-term care of residual radioactive material disposal sites.

(a) A general license is issued for the custody of and long-term

• care; including monitoring, maintenance, and emergency measures necessary to protect public health and safety and other actions necessary to comply with the standards promulgated under section 275(a) of the Atomic Energy Act of 1954, as amended, for disposal sites under Title I of the Uranium Mill Tailings Radiation Control Act of 1978, a~ amended. The license is available only to the Department of Energy, or another Federal agency designated by the President to provide long-term care. The purpose of this general license is to ensure that uranium mill tailings disposal sites will be cared for in such a manner as to protect the public health, safety, and the environment after remedial action has been completed.

(b) The general license in paragraph (a) of this section becomes effective when the Conmission accepts a site Long-Term Surveillance Plan (LTSP) that meets the requirements of this section, and when the 27

Commission concurs with the Department of Energy's determination cf completion of remedial action at each disposal site. There is no termination of this general license. The LTSP may incorporate by reference information contained in documents previously submitted to the Convnission if the references to the individual incorporated documents are clear and specific. Each LTSP must include--

(1) A lesal description of the disposal site to be licensed, including documentation on whether land and interests are owned by the United States or an Indian trib~. If the site is on Indian land, then, as specified in the Uranium Mill Tailings Radiation Control Act of 1978, as amended, the India~ 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 er 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, which can be in the form of a reference, of the final disposal site conditions, including.existing ground water characterization and any necessary ground water protection activities or

~trategies. This description must be detailed enough so that future i~spectors will have a baseline to determine changes to the site and wher.

these changes are serious enough to require maintenance or repairs. If the disposal site has continuing aquifer restoration requirements, then the licensing process will be completed in two steps. The first step includes all items other than ground water restoration. Ground water

~onitoring, which would be addressed in the LTSP, may still be required in this first step to assess performance of the tailings disposal units.

When the ColTITlission concurs with the completion of ground water restoration, the licensee shall assess the need to n~dify the LTSP and report results to the Colllllission. If the proposed modifications ~~et the requirements of this section, the LTSP will be considered suitable to accomodate the second step.

(3) A description of the long-term surveillance program, including proposed inspection frequency and reporting to the Commission (as 28

specified in Appendix A, criterion 12 of this Part), frequency and extent of ground water monitoring if required, appropriate constituent concentration limits for ground water, inspection personnel qualifications, inspection procedures, recordkeeping and quality assurance procedures; (4) The criteria for follow-up inspections in response to observations from routine inspections or extreme natural events; and (5) The criteria for instituting maintenance or emergency measures.

(c, The long-term care agency under the general license established by paragraph (a) of this section shall --

(1) Implement the LTSP as described in paragraph (b) of this section; (2) Care for the disposal site in accordance with the provisions cf the LTSP; (3) Notify the Corm,ission of any changes to the LTSP; the changes may not conflict with the requirements of this section; (4) Guarantee permanent right-of-entry to Corm,ission representatives tor the purpose of periodic site inspections; and (5) Notify the Commission prior to undertaking any significant construction, actions, or repairs related to the disposal site, even if the action is required by a State or another Federal agency.

(d) As specified in the Uranium Mill Tailings Radiation Control Act of 1978, as amended, the Secretary of the Interior, with the concurrence of the Secretary of Energy and the Co,mdssion, may sell or lease any subsurface mineral rights associated with land on which residual radioactive materials are disposed. In such cases, the Corm,ission sha11 grant a license permitting use of the land if it finds that the use will 29

not disturb the residual radioactive materials or that the residual radioactive ~aterials ~ill be restored to a safe and environmentally sound condition if they are a*isturbed by the use.

(e) The general license in paragraph (a) of this section is exempt from Parts 19, 20, and 21 of this Chapter, unless significant construction, actions, or repairs are required. If these types of action~

are to be undertaken, the licensee shall explain to the CoRlllission which requirements from these Parts apply for the actions Jnd comply with the apprcpriate requirements.

§40.28 General licer.se for custody and long-term care of uranium or thorium byproduct materials disposal sites.

(a) A general license is issued for the custody of and long-term care, including monitoring, maintenance, and emergency measures necessary to protect the public health and safety and other ~ctions necessary to comply with the standards in this part for uranium or thorium mill tailinss sites closed under Title II of the Uranium Mill Tailings Radiation Control Act

, of 1978, as amended. The licensee will be the

• Department of Energy, another Federal agency designated by the President, or a State where the disposal site is located. The purpose of this general license is to ensure that uranium and thorium mill tailings disposal sites will be cared for 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 terminates, or concurs in an Agreement State's termination of, the current specific license arid a site Long-Term Surveillance Plan (LTSP) meeting the requirements of this section has been accepted by the Conwnission. Ther~ is no termination of this genera*,

license. If the LTSP has not been formally received by the NRC prior to termination of the current specific license, the Conwnission may issue a specific order to the intended custodial agency to ensure continued control and surveillance of the disposal site to protect the public 30

health, safety, and the environment. The CoD111ission will not unnecessarily delay the termination of the specific license solely on the basis that an acceptable LTSP has not been received. The LTSP may incorporate by reference information contained in documents previously

$Ubmitted to the Commis~ion if the references to the individual incorporated documents are clear and specific. Each LTSP must incluce--

(1) A legal description of the disposal site to be transferred (unless transfer is exempted under provisions of the Atomic Energy Act,

§83(b)(l)(A)) and licensed; (2) A detailed description, which can be in the form of a reference of the final disposal 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 maintenance or repairs; (3) A description of the long-term surveillance program, including proposed inspection frequency and reporting to tbe CoR111ission (as specified in Appendix A, Criterion 12 of this Part), frequency and extent of ground water monitoring if required, appropriate constituent conc£ntration limit$ for ground water, inspection personnel qualifications, inspection procedures, recordkeeping and quality assurance procedures; (4) The criteria for follow-up inspections in response to observations from routine inspections or extreme natural events; and (5) The criteria for instituting maintenance or emergency measures.

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

(1) Implement the LTSP as described in paragraph (b) of this section; 31

(2) Care for the disposal site in accordance with the provisions of the LTSP; (3) Notify the Colffllission of any changes to the LTSP; the changes may not conflict with the requirements of this section; (4) Guarantee permanent right-of-entry to Collllliission representatives for the purpose of periodic site inspections; and (5) Notify the Convnission prior to undertaking any significant construction, actio~s, or repairs related to the disposal site, even if the action is required by a State or another Federal agency.

(d) Upon application, the Colllilission may issue a specific license, as specified in the Uranium Mill Tailings Radiation Control Act cf 1978, as amended, 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 permis~ion 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--

(1) The proposed action does not endanger the public health, safety, welfare, or the environment; (2) 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 closed sites; and (3) Adequate financial arrangements are in place to ensure that the byproduct materials will not be disturbed, or if disturbed that the applicant is able to restore the site to a safe and environmentally scund condition.

(e) The general license in paragraph (a) of this section is exempt from Parts 19, 20, and 21 of this Chapter, unless significant 32

construction, actions, or repairs are required. If these types of actions are to be undertaken, the licensee shall explain to the CoRlllission which requirements from these Parts apply for the actions and comply with the appropriate requirements.

(f) In cases where the Commission determines that transfer of title of land used for disposal of any byproduct materials to the United States or any appropriate State is not necessary to protect the public health, safety or welfare or to minimize or eliminate dange~ to life or property (Atomic Energy Act, §83(b)(l)(A)), the Colmlission will consider specific modifications of the custodial agency's LTSP provisions on a case-by-case basis.

9. Appendix A, Criterion 12 is revised to read as follows:

Appendix A to Part 40 - Criteria Relating to the Operation of Uranium Mills and the Disposition of Tailings or Wastes Produced by the Extraction or Concentration of Source Material From Ores Processed Primarily for Their Source Material Content.

• Criterion 12--The final disposition of tailings, residual radioactive material, or wastes at miliing sites should be such that ongoing active maintenance is not necessary to preserve isolation. As a minimum, annual site inspections must be conducted by the government agency responsiLle for long-term care of the disposal site to confirm its integrity and to determine the need, if any, for maintenance and/or monitoring. Results of the inspections for all the sites under the licensee's jurisdiction will be reported to the Commission annually within 90 days of the last site inspection in that calendar year. A~' site where unusual damage or disruption is discovered during the inspection, however, will require a preliminary site inspection report to be submitted within 60 days. On the basis Qf a site specific evaluation, the Commission ffiay require more frequent site inspections if necessary due to the features of a particular 33

disposal site. In this case, a preliminary inspection report is required to be submitted within 60 days following each inspection.

Dated at Rockville, Maryland this~~ay o ~ , 1990.

For the Nuclear Regulatory Convnission *

~~

Samuel J, Chilk, Secretary of the Corm,ission

• 34

DOCKET NUMBER

( 55 PR POSED RULE-=-=.=--"--~

,C/2 0397tJ CD

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USNRC "90 MAY -7 P4 :Q6 STATE OF ILLIN0IS DEPARTMENT OF NUCLEAR SAFETY ~FFICJ)JF Sten 7 1ARY uOCKt ! !NG & Sf tlV ,er 1035 OUTER PARK DRIVE BRA NCH SPRINGFIELD, IL 62704 (217) 785-9900 THOMAS W. ORTCIGER May 4, 1990 DIRECTOR Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, O.C. 20555 Attention: Docketing and Service Branch Re: Proposed Rule, "Custody and Long-Term Care of Uranium Mill Tailings Sites;" 10 CFR Part 40; 55 Federal Register 3970-3980 (February 6, 1990).

The Illinois Department of Nuclear Safety (IONS) hereby submits its comments on the above-identified proposed rule concerning custody and long-term care of uranium mill tailing sites. Upon receiving the amended agreement, IONS will be the lead agency in Illinois for regulating mill tailings sites. We understand that the custody and long-term care of the uranium mill tailings sites will be either with the state or the federal government, currently the U.S. Department of Energy, at the option of the state. The Uranium Mill Tailings Radiation Control Act of 1978 (UMTRCA) requires that the custody and long-term care of uranium mill tailings sites be under a license issued by the Commission. We agree that the general license, as in this proposed rule, would be the most efficient means of meeting the statutory requirement. We suggest one modification, that is to change the description of the proposed rulemaking to more accurately reflect that uranium and thorium mill tailings are both included in the rule. The new description would be, "Custody and Long-Term Care of Uranium and Thorium Mill Tailings Sites."

Thank you for the opportunity to comment on these proposed rules. If you have any questions, please contact me.

Sincerely, Paul D. Eastvold, Manager Office of Radiation Safety POE:SCC:gs f E.B l 2, 1~\-

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United States Department of the Interiorcoc:KL1Lr USNRC OFFICE OF THE SECRETARY WASHINGTON, D.C. 20240 "90 APR 30 All :42 ER 90/109

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

Dear Sir:

The Department has reviewed and provides the following comments on the U.S. Nuclear Regulatory Commission's proposed regulation at 10 CPR Part 40, Custody and Long-Term Care of Uranium Mill Tailing Sites, 55 FR 3970, February 6, 1990.

Currently, the Department finds that the proposed regulation indicates that ground water monitoring may be required as part of the long-term surveillance plan. The Department also suggests that it may be appropriate to monitor wetlands located in relative proximity to uranium mill tailings sites as part of the long-term surveillance plan.

Wetlands can be critical to fish and wildlife in the area, and the maintenance of their integrity and beneficial uses should be considered in developing the long-term surveillance plan.

If you have any questions regarding the comments, please call Mary Josie Smith of the Office of Environmental Affairs at 343-8661.

Sincerely,

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY DOGKEiEO WASHINGTON, D.C. 20460 USNRC APR 2 3 1990 "90 APR 25 P4 :19 uFF!C!-: OF SECRtTA Y DOCK ti 1NG ,\, Sf HV l(T OFFl~ CH ENFORCEMENT AND COMPLIANCE MONITORING Mr. Samuel J. Chilk secretary of the Commission U.S. Nuclear Regulatory Commission Washington, DC 20555

- ATTN: Docketing and Service Branch

Dear Mr. Chilk:

In accordance with Section 309 of the Clean Air Act, the U.S. Environmental Protection Agency (EPA) has reviewed the U.S.

Nuclear Regulatory Commission's (NRC) proposed rule for the Custody and Long-Term Care of Uranium Mill Tailings Sites (55 CFR 3970; RIN 3150-AC56). This proposal would establish a procedure for the licensing and surveillance of uranium and thorium mill tailings sites after closure by the licensee. Specifically, the proposal would grant a general license to the Department of Energy (DOE) or a state for the ownership, custody, maintenance, and care of mill tailings sites after remedial action and / or closure at the facility. The proposal further specifies what conditions must be met by the owner (DOE or the state) and which of the NRC's current rules are applicable to this type of license.

EPA recommends the following clarifications to the NRC proposal:

0 40.27(b)(2) - - This section requires that a groundwater characterization be performed prior to licensing. It should also present guidance as to what is an acceptable character-ization.

0 40.28(d)(l) -- This section allows for future use of remediated or closed sites as long as there is no endan-germent of human health and the environment. The rule or preamble should specify exactly the types of studies a licensee must submit to prove that the use will never cause endangerment. Further, the rule should require the placement of a notice in the land title or deed which identifies the site as being used for uranium or thorium mill tailings disposal.

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0 40.28(d)(3) -- This section permits future use of the site if a license for such use is granted. The licensee must secure financial arrangements to assure that the site will be restored if the byproduct materials are disturbed. The rule should require the preparation of a closure plan in those cases where disturbance is anticipated as part of future use.

o Appendix A to Part 40 -- This section requires annual inspections of licensed sites. EPA recommends that the inspections be conducted semiannually for the first five years after closure or remediation, with annual inspections thereafter. The first five years is the time period when most problems occur.

If NRC has any questions concerning our comments and recommendations, Dr. W. Alexander Williams (382-5909) of my staff can provide additional assistance to the NRC staff.

Sin;wi ~

Richard E. Sanderson Director Office of Federal Activities

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Department of Energy Albuquerque Operations Office ~ m p2 :OS P.O. Box 5400 7U 11 t\f'f\ 24 Albuquerque, New Mexico 87115 APR 2 o 1990 Samual J. Chilk Office of Nuclear Regulatory Research U.S. Nuclear Regulatory Commission Mail Stop NLS-260 Washington, DC 20555

Dear Mr. Chilk:

Enclosed for your consideration are the U.S. Department of Energy's Uranium Mill Tailings Remedial Action Project Office's comments to the proposed rule for the Custody and Long-Term Care of Uranium Mill Tailings Site published in the Federal Register, Volume 55, Number 25, February 6, 1990.

Should you have any questions, please contact Milt Scoutaris of my staff at FTS 845-5630.

Sincerely, Mark L. Matthews Project Manager Uranium Mill Tailings Remedial Action Project Office Enclosure cc w/enclosure S. Mann, EM-451, HQ W. Maez, OCC, AL C. Cormier, UMTRA, AL M. Scoutaris, UMTRA, AL M. Tucker, GJPO, ID cc w/o enclosure:

S. Hill, JEG B. Glover, JEG

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U.S. DEPARTMENT OF ENERGY URANIUM MILL TAILINGS REMEDIAL ACTION PROJECT OFFICE COMMENTS ON 10 CFR PART 40 APRIL 17, 1990

A.

GENERAL COMMENT

S ON THE SUPPLEMENTARY INFORMATION The language in the Supplementary Information is often not consistent with the intent of the amendments. The most commonly occurring such inconsistency is the use of the word "site" when "disposal site" or in a few cases "processing site" should be used.

It is noted that the amended language in the Proposed Rule clarifies that surveillance and maintenance for the Title I sites will be required only

~t disposal sites; however, there are still several areas whare Commission policy is not clearly defined. The regulations clearly state that the general license will be issued for the "long-term care of the disposal site" and that issuance of the general license is contingent upon (1) receipt of a surveillance and maintenance plan for the disposal site and (2) the Commission's concurrence that "the remedial action is complete."

The Commission states in this Proposed Rule that full concurrence for any given "site" will not be forthcoming until the aquifer restoration phase of the UMTRA Project has been completed for that site. It is not clear from the Proposed Rule, even with the proposed two phases for licensing, if "full licensing" is conditional upon groundwater restoration at any processing site, or at just the sites where the materials were stabilized in place. It is assumed that "site" in this context applies to the processing site whether or not it is also a disposal site.

Comments on the Supplementary Information text are grouped by section, as provided in the Proposed Rule notice. Paragraphs are numbered by section. Text from the proposed rule is provided in sufficient detail to clarify the comment. Pertinent phrases for discussion are underlined.

Section I. Background

1. The word "site" appears throughout the text. Although "disposal site" generally is the implied definition, it is not always so; therefore, the term should be clearly stated as such, or as "processing site" when appropriate.

2. Paragraph 2, sentences 1 and 2: "Title I of UMTRCA ... remedial action program for inactive uranium mill tailings sites. Title I requires that, upon completion of the remedial action program by the DOE, these sites be cared for ... "

Comment:

i. Consistent with Section 104(f)(2) of the UMTRCA, which governs the custody of any property transferred to the DOE or other designated Federal agency, the license granted by the NRC will be for the long-term care of the disposal sites. The following revision is suggested:

"Title I requires ... , the permanent disposal sites be cared for ... "

Section I I. Proposed Action

1. Second paragraph, last sentence: " ... upon receipt of an LTSP that meets the requirements of the general license ... "

Comment:

It is noted that in this paragraph and in other sections of the text the word "receipt" is used; however, in the proposed regulation, 40.27, "acceptance" is the wording.

2. Paragraph 4, first sentence: "The general licensees for long-term care are exempted from 10 CFR Parts 19, 20, and 21 .... "

Comment:

i. There are no provisions in the regulations which state explicitly that the general licenses are exempt from 10 CFR Parts 19-21, as discussed in the proposed action. The Commission should evaluate the need to include this in the regulations, consistent with the exemption specified for Section 40.7, Employee protection.

2. Paragraph 7, first sentence: "Criterion 12 only deals with Title II licensees .... Title I should have comparable reporting requirements, ... "

Comment:

i. The regulations should specify that reporting requirements comparable to Appendix A, Criterion 12, are applicable to Title I disposal sites.

3. Paragraph 8, first sentence: "There are some differences in requirements for sites located on Indian lands .... "

Comment:

i. For those sites where the disposal facility is on Indian lands, the tribes will retain ownership of the material and the land.

An exception is provided in Section 105(b) of the UMTRCA, which states that in those cases where the residual radioactive material from processing sites on Indian land is relocated to a permanent disposal area not on Indian land, the DOE shall acquire title to the residual radioactive material in addition to the disposal site. This should be stated in the text.

ii. Suggested revisions to the last sentence:

"Four of the Title I processing sites, of which three will be used as disposal sites, are on Indian land

4. Paragraph 10, first sentence: "Both 40.27 and 40.28 allow for potential future uses of the sites .... "

Consistent with the UMTRCA, Section 104(h), at the Title I disposal sites, only subsurface mineral rights will be available for future use. However, at the processing sites, once the surface remedial actions are completed, surface rights will be available as long as the use does not impede future groundwater restoration activities. This should not be confused with the Title II disposal sites, where subsurface and surface rights will be available, considered on a case by case basis. This should be clarified in the text.

Section III. Uranium Mill Tailings Remedial Action Amendments Act of 1988

1. Paragraph 3, sentence 4: "When groundwater restoration is completed, the Long-Term Surveillance Plan would be appropriately amended."

Comment:

i. It is not clear here or in the regulations as to which sites this includes. The following revision is suggested:

"At sites where the remedial action was stabilization in place, when groundwater restoration is completed the Long-Term Surveillance Plan would be appropriately amended."

2. Paragraph 4, first sentence: "The Act itself did not address ... requiring mandatory post-closure performance monitoring."

Comment:

i. "Post-closure" is not the appropriate term for Title I sites where remedial action rather than closure activities are performed; also, 40 CFR 192 requires compliance monitoring rather than performance monitoring (or "screening" and "detection" monitoring). For consistency with the language and the purpose of these two UMTRCA Programs, the following revision is suggested:

... requiring mandatory compliance monitoring .... "

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

Title I (24 Sites):

1. Paragraph 5, second sentence: " ... decontamination, decommissioning, and reclamation .... "

Comment:

i. These are words that have a more appropriate meaning for sites that already have a license, which Title I sites specifically do not have. "Remedial action" should be used here instead, as it is more appropriate for Title I sites.

2. Paragraph 6, first sentence: "NRC concurrence ... that reclamation of the site .... 11 Comment:

i. Suggest changing "reclamation" to "remedial action," given the differences in the requirements for Title I and II sites.

3. Paragraph 6, sentence 5: "When ground water restoration is completed, the LTSP will be appropriately amended."

Comment:

i. As noted in the general comments in Section A, it is not clear if the two-phased licensing approach is restricted to the sites stabilized in place (SIP), or to all Title I sites, including the relocated disposal sites.

4. Paragraph 7, sentence 3: "NRC concurrence with completion indicates that the site has been stabilized in accordance with EPA standards .... 11 Comment:

i. As this sentence is written, it is not clear if "stabilization" refers to actual completion of Subpart A requirements or to "completion of remedial action," as is stated elsewhere throughout the text and in the regulations.

5. Paragraph 7, last sentence: "There is no termination date for the general license."

Comment:

i. Since expiration periods are specified in the regulations for other licensed facilities, that there is no termination to the general license for the Title I and II sites should be specified in the regulations.

Title II

1. Paragraph 4, item 5: " ... Title I sites have been reclaimed .... "

Comment:

i. "Remediated" rather than "reclaimed" should be used to reference the activities at Title I sites.

Section V. The Long-Term Surveillance Plan (Title I and II)

Title I:

1. Paragraph 5: "If it is determined that groundwater monitoring is required ... , then it should be conducted in two phases, screening ... and evaluative monitoring."

Comment:

i. The terms "screening" and "detection" are not consistent with proposed 40 CFR 192. "Compliance monitoring, compliance strategy, and corrective action program" are more accurate terms for Title I disposal sites.

2. Paragraph 6: "Initial surveillances should include the acquisition and interpretation of aerial photography."

Comment:

i. Aerial photographs of the Title I sites are taken immediately upon completion of the construction and after the permanent surveillance features have been installed. The photographs are used to prepare the final topographic map and as-built drawings and are kept in the permanent site file for future reference, should a problem develop at the site. In the unlikely event that a problem (such as erosion) should occur, the photographs provide baseline information about site conditions. New aerial photographs are taken if it becomes necessary to monitor a problem over a long period of time.

B. COMMENTS ON AMENDMENTS TO 10 CFR 40 This section provides comments which address the proposed changes to the Part 40 regulations as they are listed in the Proposed Rule. The proposed language for each part is provided for reference. However, the text is not reproduced in its entirety, but rather in portions of sufficient length to highlight the significance of the comment. Phrases which are subject to comment are underlined.

1. Part 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, or deliver source and byproduct materials, ... These regulations also provide for disposal and long-term care of byproduct and residual radioactive material.

Comments:

For the reasons stated below, we suggest that the sections above be amended to read:

"receive title to, ... transfer, deliver, or dispose of source and byproduct materials, as defined in this part, ... The regulations also provide for the long-term custodial care of byproduct and residual radioactive materials."

i. There are no procedures or regulations within Part 40 which affect or pertain to the disposal of the residual radioactive material at Title I sites. The disposal procedures for the Title I sites are defined in 40 CFR 192. As stated in the

Introduction to Appendix A," Appendix A of 10 CFR 40 outlines procedures for the disposal of byproduct material at active uranium and thorium sites exclusively. For these reasons, including the term "disposal" in concert with "long-term care of ... residual radioactive material" is misleading with regard to the Title I sites. However, under the provisions of 10 CFR 40, which provides regulations for the disposal of the Title II byproduct material, inclusion of "disposal" in this section of the regulations is required. The revisions suggested here are consistent with the language in the proposed revision to Part 40.3, License requirements (55 FR 3978).

2. Part 40.2a, Coverage of inactive tailings sites.

(a) Prior to the completion of remedial action, ... for the possession of residual radioactive materials ... if the site ... Title I of the Uranium Mill Tailings Radiation Control Act of 1978. The Commission ... in the execution of of the remedial action pursuant to title I of the Uranium Mill Tailings Radiation control Act of 1978, as amended. After remedial actions are completed, the Commission will license the long-term care of sites, where residual radioactive materials are disposed, under the requirements set out in 40.27.

Comments:

For the reason stated below, we suggest that the first sentence above be amended to read:

"Prior ... Uranium Mill Tailings Radiation Control Act of 1978, as amended."

i. The second reference to the UMTRCA, but not the first, includes "as amended."

3. Part 40.4, Definitions.

"Residual radioactive material means: ... (2) other waste ... at a processing site which relates to such processing .... 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."

Comments:

We suggest amending this definition to read:

"(2) ... This term is used only with respect to radioactive materials associated with processing ooerations at sites subject to remedial action ... of 1978, as amended."

i. Since the concept of a disposal site, specifically described, appears first in 40.2a, the use of "sites subject to remediation" could be misleading here.

ii. " ... as amended." should modify the UMTRCA to ensure consistency within the regulations.

4. Part 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.

Comments:

i. Paragraph (e) requires posting of Form NRC-3, "Notice to Employees." Since the UMTRA disposal sites are designed for passive maintenance with no permanent on-site personnel, it is prudent to include 40.27 and 40.28 in this exemption.

5. Part 40.20, Types of licenses.

(a) Licenses for source material, byproduct material, and residual radioactive material are of two types: general and specific ... (regulations define types of licenses here).

(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 the (UMTRCA) of 1978.

(c) Section 40.28 contains a general license ... of byproduct material at uranium or thorium mill tailings disposal sites under Title II of the (UMTRCA) of 1978.

Comments:

We suggest amending this section to read:

(a) "Licenses for source and byproduct material are of two types:

general and specific. Licenses for residual radioactive materials are general licenses."

i. As the regulation is stated in paragraph (a) of 40.20, there is the implication that Title I and II disposal sites are eligible for either a specific or general license, when in fact this is not the case as stated in paragraphs (b) and (c). The same is true for 40.3, License requirements.

ii. Use of the phrase "uranium mill tailings disposal sites" is beneficial as it eliminates any confusion or ambiguity regarding licensing requirements and long-term care activities.

iii. We note that the term "custody" appears in both paragraphs (b) and (c), not shown here, yet was deleted from 40.1.

6. Part 40.27, General license for long-term care of DOE remedial action sites.

(a) A general license is issued for the long-term care, including monitoring, maintenance, and emergency measures necessary ... , for remediated uranium mill tailings sites under Title I of the (UMTRCA),

as amended. The license is available only to the (DOE), or another Federal agency designated by the President to provide long-term care.

The purpose of this general license is to ensure that uranium mill tailings sites will be cared for in such a manner ... after remedial action is completed.

(b) The general license in paragraph (a) of this section becomes effective when the Commission accepts a site Long-Term Surveillance Plan (LTSP) that meets the requirements of this section and when the Commission concurs with the (DOE's) determination of completion of remedial action at each site. The LTSP may incorporate by reference information contained in documents previously submitted to the Commission .... Each LTSP must include-(1) A legal description ....

(2) A detailed description, which can be in the form of a reference, of the final site conditions .... lf the site has continuing aquifer restoration requirements, then the licensing process will be completed in two phases .... When the Commission concurs with the completion of ground water restoration, the license shall assess the need to modify the LTSP .... lf the proposed modifications meet the requirements of this section, the LTSP will be considered suitable to accommodate the second phase.

(3) A description of the long-term surveillance program ....

(4) .. criteria for follow-up inspections ....

(5) ... criteria for ... maintenance or emergency measures.

Paragraphs (c) through (e) are not listed here.

Comments:

i. Since the license is issued for the custody and long-term care of the disposal sites, it would be more appropriate to change "remediated uranium mill tailings sites" to "disposal sites." As the language stands, "uranium mill tailings sites" does not accurately describe the purpose and intent of the licensing requirements.

ii. We do not support the change from "receives" to "accepts" for a site LTSP.

iii. This section should include language that makes it clear that only conditional concurrence will be granted on all remedial action plans until all groundwater restoration issues at processing sites are resolved.

iv. We support the addition of the paragraph stating that the license becomes effective only upon completion of two matters: (1) receipt of the LTSP and (2) concurrence with the DOE's determination of completion of the remedial action.

v. We support the new two-phased approach to licensing as we recognize that postponement of licensing pending completion of 40 CFR 192 Subpart B issues would prohibit an effective implementation of long-term care at the disposal sites.

vi. We support the deletion of the requirement from paragraph (b)(2) that requires the LTSP to provide details on aquifer restoration at the disposal sites.

vii. Part 40.27 should specify that routine site inspections will be conducted and a report will be submitted to the NRC that summarizes all surveillance and maintenance actions and certifies that site licensing requirements continue to be met. Or, language should be added that specifies where these criteria can be found. As specified in the Introduction, Criteria 12, Appendix A is applicable here.

xi . (b)(2) ... existing groundwater characterization" should be changed to " ... existing groundwater characterization, and compliance strategy for groundwater protection in accordance with proposed regulations set forth in 40 CFR 192.

8. Part 40.28, General license for long-term care of uranium or thorium byproduct materials sites.

[text not shown here]

Comment:

i. For Title II sites on Indian lands, language should be added that states that these sites will be considered on a site-by-site basis.

" KET NUMBER PROPOSED RULE R LI{)

p55T - 'tt3 '17~ (j @2 STAT ,oO~ G LORA.DO COLORADO DEPARTMENT OF HEALTH 4210 East 11th Avenue Telefax:

Denver, Colorado 80220-3716 (303) 322-91,Mvlai"ftrjl&lgr Derfej) *n 1 Phone (303) 320-8333 (303) 320-l S ~ tar fM"g& 4ffe; C1er1'er)U (303) 248-7198 (Grand Junction Regional Office)

OFF ICE OF SECRETARY DOCKfTING & srnv,cr Roy Romer Governor BRANCti Thomas M. Vernon, M.D.

Executive Director April 20, 1990 Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555 Attention: Docketing and Service Branch RE: Proposed rule: Custody and Long-Term Care of Uranium Mill Sites The Department has the following comments in response to your February 6, 1990 proposed rule concerning custody and long-term care of uranium mill sites (FR 55(25): 3870 ff]:

1. The rule includes no direct, explicit provision for state concurrence in a Long-Term Surveillance Plan (LTSP) prepared by the federal government. This comment was provided in our letter of October 21, 1988 (copy enclosed) and was not addressed Section VIII, comments on the ANPRM, of your February 6, 1990 FR notice.

2. As before, please be advised that all of Colorado's Title I sites are either specifically licensed (6) or regulated under the general criteria of Part XI of Colorado's Rules and Regulations Pertaining to Radiation Control. Over twenty years of experience with inactive site maintenance and interim stabilization shows this to be essential.

3. A flaw in the proposed rule which requires correction is the apparent premise that a Long-Term Surveillance Plan (LTSP) will be prepared only after closure and license termination. Colorado requires and will continue to require the development and establishment of an adequate LTSP and Fund prior to termination of a commercial uranium mill site license. The language of the proposed rule should be modified to clarify this option.

r u . . NUCLEA J:lEGULATORY COM ISSION DOCKETING & SERVICE SECTION OFFICE OF THE SECRETARY OF THE COMMISSION Document Stati tics Postmar1< Date -+-+-1_- D_ _ _ __

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4. No active maintenance is the goal of 10 CFR 40, Appendix A.

Colorado's comments on NRC's uranium mill rules have strongly supported reclamation which keep long-term monitoring and maintenance to the minimum. However, at some sites in Colorado where milling and milling impacts have occurred for many years, the Radiation Control Division expects the amount of a site-specific long-term care fund to be substantially greater than $250,000 in 1978 dollars. The proposed rule fails to address the dedication of such funds to care of a specific site, if and when transfer of the site to the federal government should occur. The rule should provide mechanisms toward assuring that adequate funds will continue to be available.

5. No specific language in the Atomic Energy Act of 1954, as amended, or in 10 CFR, requires the particular general license approach to custody and long-term care presently chosen. NRC's approach takes cognizance of the reserved obligation in 10 CFR 150.15a(b)(4) and (5) concerning minimum standards for long-term monitoring, surveillance, and maintenance of land used as a disposal site for byproduct materials. As specifically authorized by the Act, however, LTSPs for Colorado Title II sites may be required to meet more stringent state requirements.

We look forward to seeing discussion of the issues in the rationale for any final rule promulgated by the Commission.

Robert M. Quillin, Director Radiation Control Division RMQ/KLKW/msm Enclosure

ARCO <

• Legal 555 Seventeenth Street DOCKET NUMBER PR ~

Denver, Colorado 80202 Telephone 303 293 4444 Jeffrey H. Desautels Senior Attorn ey PROPOSED RULE (55rfCB97t7;

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'90 APR 23 p 3 :1 3 April 20, 1990 Secretary, U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Docketing and Service Branch Re: Proposed Rule for Custody of Long-Term Care of Uranium Mill Tailings Sites, 10 CFR Part 40, 55 Fed. Reg. 3970 (February 6, 1990)

Dear Sir or Madam:

Arco Coal Company ("Arco") appreciates the opportunity to comment on the referenced proposed rule. Arco owns the Bluewater Uranium Mill near Grants, New Mexico which is an "active" site subject to the requirements of Title II of the Uranium Mill Tailings Radiation Control Act of 1978 ("UMTRCA") . The Bluewater Mill is being demolished at this time, and in addition Arco has submitted a plan to the NRC for approval of final reclamation and closure under appropriate NRC rules and guidance.

In general, Arco wholeheartedly supports these proposed rules. We believe the Commission has done a particularly good job of setting forth the transition to final DOE custody and control of Title II sites. We have a few specific comments and questions regarding certain aspects of the proposed rules.

Our first comment relates to the statement, repeated several places within the preamble to the proposal, that the DOE is responsible for preparing and submitting to the Commission a "Long-Term Surveillance Plan", or LTSP. Because this requirement is placed upon the DOE, rather than the specific licensee, the NRC has determined that the proposed rule will not significantly impact the private sector. Our concern in this regard is that if DOE delays preparation and submittal of the LTSP, the licensee may be placed in a position of having to delay final closure and turnover of its site to the federal government. This would cause further costs to be imposed, creating doubt in our minds as to whether this rule truly will have no significant impact on the private sector.

The preamble (at p. 3974) and the proposed rule itself are not specific enough in this regard. The preamble states that in the event the LTSP has not been submitted by DOE by the time the NRG is ready to terminate the specific license, the NRG has the choice of either delaying termination of the specific license, or of ordering the DOE to assume control over the site and conduct surveillance. Section 40.28(b) contains the same optional language. Licensees need to be assured that turnover will not be Atlantic R1chf1eld Company

U.S. NUCLEAR REGULATORY COMMISSIO DOCKETING & SERVICE SECTION OFFICE OF THE SECRETAi:. '

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Spe ial D

Secretary, U.S. Nuclear Regulatory Commission April 20, 1990 Page 2 delayed. Therefore, the NRC should change the second sentence of Section 40.28(b) to read that 11 * *

• the Commission shall issue a specific order to the intended custodial agency to ensure continued control and surveillance of the site to protect the public health, safety, and the environment." Otherwise, licensees could be placed in the untenable position of having final closure delayed, perhaps indefinitely, while DOE decides whether and when to submit an LTSP. That would create significant financial impacts on the private sector that can't be ignored by NRC in this rulemaking.

Our second point relates to the "minimum" $250,000 payment for long-term surveillance.

Again, there appears to be some confusion regarding how the specific amount of that payment is to be determined. On p. 3974 of the preamble, it is noted that 11 (T)he minimum charge may be adjusted based on site specific requirements in excess of those specified in Criterion 12 of Appendix A. 11 We assume that such an adjustment would be used only in cases where a closure plan requires active maintenance rather than the passive maintenance scheme assumed in Criterion 12. However, that is not made explicit in the proposal. For example, on p. 3975 the following statement appears:

Post-closure maintenance activities that are relied upon to comply with appendix A closure standards can only be authorized by considerations of alternatives under Section 84(c) of the Atomic Energy Act of 1954, as amended. In such cases, the minimum charge for long-term surveillance to the existing licensee will be increased accordingly to provide for this maintenance.

That section continues:

"In addition the LTSP will not affect the long-term surveillance charge paid by the existing licensee (the LTSP may reflect site-specific additional items, but will not affect the charge to the existing licensee)."

We assume that so long as standards in effect at the time the NRC approves the closure plan are followed by the licensee, and the closure plan itself provides for passive maintenance measures only, the charge will be $250,000. Additional requirements proposed after that point by the DOE will not increase the payment. The DOE should examine each site for a LTSP on a site-specific basis, consistent with NRC criteria.

Secretary, U.S. Nuclear Regulatory Commission April 20, 1990 Page 3 Again, Arco Coal Company appreciates the opportunity to comment on the proposed rules. If you have any questions, please don't hesitate to call me at (303) 293-4444.

Jeffr . Desautels

• Sr. Attorney c: R. Krablin R. S. Ziegler

[7590-01]

DOCKET NIIMBfR NOPOSED RULE PB ~

J) :o~s

• ( 66 F '70) OOCKEiEO US RC NUCLEAR REGULATORY COMMISSION "90 FEB -2 All :43 10 CFR Part 40 RIN: 3150-AC56 Custody and Long-Term Care of Uranium Mill Tailings Sites AGENCY: Nuclear Regulatory Conmissfon.

ACTION: Proposed rule.

SUMMARY

The Nuclear Regulatory Commission (NRC) is proposing to issue general licenses that would permit NRC to license the custody and long-term care of reclaimed or closed uranium or thorium mill tailings sites after remedial action or closure under the Uranium Mill Tailings Radiation Control Act have been completed. The intended effect of this action is to provide a surveillance procedure to ensure continued protection of the public health and safety and the environment. This action h necessary to meet the requirements of Titles I and II of the Uranium Mill Tailings Radiation Control Act. An Advance Notice of Proposed Rulemaking was issued on August 25, 1988.

DATE: tomment period expi *."es APR 2 3 1900 Comments received after this date will be considered if it is practical to do so, but the Commission is able to assure consideration only for comments received on or before this date.

ADDRESSES: Send co1t111ents to: Secretary, U.S. Nuclear Regulatory Co1m1ission, Washington, DC 20555, Attention: Docketing and Service Branch. Deliver comments to: One White Flint North, 11555 Rockville Pike, Rockville, Maryland, between 7:45 am and 4:15 pm Federal workdays.

Comments received, the environmental assessment and finding of no significant impact, and the regulatory analysis can be examined at: The NRC Public Document Room, 2120 L Street NW (Lower Level), Washington, DC.

~ f.t.ti, ~ .

/rp(qo

FOR FURTHER INFORMATION CONTACT: M*ark Haisfield, Office of Nuclear Regulatory Research, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Mai l Stop NLS-260. Telephone (301} 492-3877 .

SUPPLEMENTARY INFORMATION :

I. Background.

II. Proposed Action.

III. Uranium Mill Tailings Remed ial Action Amendments Act of 1988.

IV. The Stabilization and Long-Term Care Program (Ti tle I and Tit le II ).

v. T~e Long-Term Surveillance Plan (Title I and Title II ).

VI. Future Uses of the Disposal Site.

VII. Response to Issues for Corrment.

VIII. Corrments on the Advance Notice of Proposed Ru l emaking .

IX. Petition for Rulemaking.

X. EPA Clean Air Act Activities.

XI. Finding of No Significant Environmental Impact : Availab i lity.

XII. Paperwork Reduction Act Statement.

XI II. Regulatory Analysis.

XIV. Regulatory Flex ibility Certification Statement .

XV. Backfit Analysis.

- XVI. List of Subjects ;n 10 CFR Part 40.

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

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 s i tes. Title I requires t hat, upon 2

completion of the remedial action program by DOE, these sites be cared for by the DOE or other Federal agency designated by the President, under a license issued by the Commission. Title JI of UMTRCA contains similar requirements for N~C licensing of presently active uranium or thorium mill tailings sites following their closure and license terminafion. These sites would be licensea by the Commission upon their transfer to the Federal Government or the State in which they are located, at the optior of the State. These proposed regulations will complement other UMTRCA required regulations which have been completed and cover activities through closure.

An Advance Notice of Proposed Rulemak~ng was issued on August 25, 1988 (53 FR 32396) in which the NRC requested comments on this proposed rulemaking and three specific topics. No comments were received specifically addressinQ these topics.

JI. Proposed Action The proposed regulatory additions to Part 40 will provide for two new general licenses. The general licenses in §40.27 and.§40.28 will correspond to Title I and Title JI of UMTRCA, respectively. The provisinns 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 wi11 differ somewhat due to the differences in Title I and Title JI oft~ Act, the goals to be achieved by the long-term care licensee are the same.

These proposed regulations deal only with uranium or thorium will tailings sites after remedial actions (for Title I) or closure activities (for Title II) have been completed to meet applicable closure standards. UMTRCA stipulates the Federal government (normally DOE) as the long-term care licensee, and thereby the owner, except in the case of a Title II site where the State may elect to be the long-term care licensee. In lieu of any such State election, the Federal government will become the long-term care licensee. The NRC will receive a detailed Long-Term Surveillance Plan (LTSP) from DOE or an appropriate State which will discuss ownership (whether Federal or State), site conditions, the surveillance program, required follow-up inspections, and how and when emergency repairs and, if necessary planned maintenance, will be 3

accon,plished.

• Unless tht: Commission is formally nc,tified by the appropriate State, the DOE will submit the LTSP and will be the long-term care 1;censee.

(See the section trtitled "The Long-Term Surveillance Plan.") The general license will become effective for each individual Title J or Title 11 site upon NRC r&ceipt of an LTSP that meets the requirements of the general license and either NRC concurrence in completion of remedial actions (Title I site) or termination of the Title 11 site license.

For sites governed by the provisions of §40.27 (Title I sites), the general license applies only tc the .DOE or another Federal agency designated by e th~ President. For sites governed und~r the provisions of §40.28 (Title JI sites;, DOE, or another Federal agency, will prepare and submit the LTSP, unless the State, at its option, decides to take custody of the site and be included in the general license. In the latter case the State would prepare and submit the LTSP. The authority to grant a long-term care license is reserved to the NRC. States may be the long-term care agency, but are not authorized to grant this type of license. (Se~ Section 83 b(l)(A} of the Atomic Energy Act of 1954, as amended, and 10 CFR 150.lSa.)

The general licensees for long-term care are exempted from 10 CFR Parts 19, 20, and 21. These parts cover notices, instructions, notifications to workers, and inspection in Part 19, standards for protection against radiatior in Part 20, and reporting of defects and noncompliance in Part 21. These parts cecl with operational activities. A general license for long-term care covers I

activities after the operation and clean-up of the site has been completed.

Under normal circumstances the long-term cart licensee will spend a day or two at each site Pach year to confirm that the site's conditions are as expected.

The site will comply with 40 CFR Part 192, Subparts A, B, and C (for Title 1 sites) and 10 CFR Part 40 Appendix A criteria (for Title II sites), which essentially ~liminate direct radiation and air particulates and control radon releases within specified limits. Site closure will, therefore, eliminate the need for specific radiat;on controls as specified in Parts 19, 20, and 21 under nor~al conditions.

If damage to the site requires significant repairs, then the long-term car~ licens~e must notify NRC and describe the nec~ssary repairs. Since worker 4

radiation protection and occupational exposure reporting may be necessary during such repair efforts, the long-term care licensee will identify the appropriate requirements of 10 CFR Parts 19, 20, and 21 to be applied. NRC may then impose appropriate portions of the above parts or regulations by order or a site specific basis depending upon the damage and the type of repairs recessary.

A minor administrative change is being made to 10 CFR Part 40 Appendix A Criterion 12 tc, allow for a more efficient reporting program. Criterion 12 states that inspection results must be reported to the Cofflff'ission within 60 days following each inspection. Because each long-term care licensee, primarily the Department of Energy, wiii most likely have multiple sites, we are prcposing to allow annual reports which will cover ell sites under their jurisdiction. Any site where unusual damage or disruption is discovered during the inspection, however, would require a preliminary site inspection report to be submitted within 60 days. The timing for submittal of the annual report will be based on when the long-term care licensee will be doir.g the inspections and will be submitted within 90 days of the date of the annual inspection of the last site inspected.

Criterion 12 only deals with Title II licensees. The long-term care licensee for Title I should have comparable reporting requirements, which will e be specified in the Long-Term Surveillance Plan.

~

• There are some differences in requirements for sites located on Indian lands. For Title I sites, the ownership of that site will remain with the 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 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.

For Title II sites on Indian lands it is not clear who will be respons;ble for monitoring. maintenance, and emergency measures at the site. Currently, the Western Nuclear Sherwood Uranium Mill located in the State of Washington is th~ only site that falls into this category. UMTRCA provides that long-term 5

surveillance will be done by the Fed~ral government and that the licensee will be required to enter into arrangements with the Corrmission to ensure this surveillance. However, UMTRCA was not explicit as to which Federal agency i$

responsible for the site, and should this site ever require emergency measures, additional authorizations may be required. -The basic obligations for this site have already been codified in 10 CFR Part 40, Appendix A, Criterion l!F, and are not part of this rulemaking. NRC is providing flexibility in this area and will work out long-term care arrangements for these sites or a case-by-case basis.

Both §40.27 and §40.28 allow for potential future uses of the sites. As provided in UMTRCA, any future use would require a separate Comnission license to assure that t~e site remains or is restored to a safe and environmentally sound condition. See the, "Future Uses of the Disposal Site" section.

The proposed rulemaking would provide for a 9eneral license to governmental bodies for custody and long-term care of uranium or thorium mill tailings sites after closure, pursuant to statute. Therefore, this rulemaking has no significant impact upon the private sector. However, the staff recognizes that there may be cases where communication and sharing of information between the current licensee and the future long-term care licensee may be appropriate. Such comnunication will allow the long-term care licensee to better prepare the Long-Term Surveillance Plan by having more knowledge of how s.ite closure was accomplished.

III. Uranium Mill Tailings Remedial Action Amendments Act of 1988 This Act was signed by the President on November 5, 1988, and provides among other things an extension of the UMTRCA Title I program. It allows t~e Department of Ener~v until September 30, 1994 (previously 1990) to perform remedial actions at designated uranium mill tailings sites and v;c;r,ity properties. There is one ~cjor exception to the 1994 date. The authority to perform ground water restoration activities is extended without limitat;on.

However, to meet the current proposed EPA ground water standard, compliance with the ground water protection prov;sions at the disposal site would need to be accomplished by the 1994 date.

6

The reason for the extension to 1994 is to allow DOE enough tim~ to complete remedial actions at all designated sites. The ground water restoration extension was provided due to the potential that EPA ground water standards may take DOE decades to complete for some sites. EPA is currently issuing new ground water standards in response to a September 3, 1985 decision by the 10th Circuit Court of Appeals in which the ground water provisions of the EPA uranium mill tailings cleanup standards (40 CFR 192.20(a)(2-3)) for Title I sites were set aside and remanded to EPA. Based on the proposed EPA standards (52 FR 36000; September 24, 198i), the DOE believes that ground water restoration activities will take significantly more time than originally planned. The new standards have not yet been made final. Until final ground water standards are promulgated, UMTRCA reQuires that implementing agencies use the available proposed standards.

As a result of this Act, the NRC is planning to allow licensing of Title I sites to occur in two phases, if needed. The first phase would allow DOE, if necessary, to do all remedial actions, which include complying with the ground water protection standards addressing the design and performance at the disposal site for closure and licensing. The Act reqaires this to be completed prior to September 1994. The second phase, which can go on for many more years, would deal with existing ground water restoration. When ground water restoration is completed, the Long-Term Surveillance Plan would be appropriately amended. Until the EPA standards are finalized, and DOE and NRC evaluate the sites based on these standards, we will not know how many sites would likely be involved in this two step licensing process.

The Act itself did not address the potential delay of licensing Title I sites due to the ground water provisions in EPA's proposed standards requiring mandatory post-closure performance monitoring. NRC's options ranged from a case-by-case use of EPA's supplemental standards provisions to exempt such sites entirely from performance monitoring to the inflexible consequence of delaying all such licensing until completion of the ground water performance monitoring program. Such a delay could extend for up to 30 years or more.

Based on interaction with other Federal agencies and the Congressional legislative history, the NRC staff has selected the two phased approach discussed above to optimize flexibility.

7

I 1-NRC colffl'ents to EPA on their proposed standards sugge~ted ways to remedy the situation. The final EPA standards may resolve this issue, but could also introduce new uncertainties. Since the proposed EPA standards are legally binding until final rules are issued, this rule is designed to have flexibility to address various situations.

IV. The Stabilization and Long-Tenn Care Program

{Title I and Title II) e Although the end result for long-term care licensing for Title I or Titlf II sites is 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 so~e of the differences between Title I and Title II licensing.

Title I {24 sites)

UMTRCA c~arged 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 4lt March 7, 1983 (48 FR 602; January 5, 1983). See 40 CFR Part 192-~ealth and Environmental Protection for Uranium Mill Tailings, Subparts A, B, ano C.

The Department of Energy {DOE) wi11 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 concurrence of the NRC. The required NRC concurrence with the selection and performance of proposed remedial actions and the licensing of long-tenn care of disposal sites will be for the purpose of ensuring compliance with UMTRCA.

The portion of the EPA standards dealing with ground water requirements has be~n remanded by court action, and are currently being finalized by EPA (s~e the previous section for more details). DOE continues to perfonn remedial action at the inactive sites in accordance with NRC's concurrence with the remedial action approach. Delaying implementation of the remedial action 8

program would be inconsistent with Congress' intent to timely completion of the program. Modifications of disposal sites after completion of the remedia1 action to comply with EPA's final ground water protection standards may be unnecessarily complicated and expensive and may not yield commensurate benefits in terms of human and environmental protection. Therefore, the Convnission believes that sites where remedial action has been essentially completed prior to EPA's promulgation of final ground water standards will not be impacted by the final ground water standards. Although additional effort may be appropriate to assess and cleanup contaminated ground water at these sites, the existing designs of the disposal sites should be considered sufficient to provide

- long-term protection against future ground water contamination. NRC does not view UMTRCA as requiring the reopening of those sites that have been substantially completed when NRC concurred with the selection of remedial action in accordance with applicable EPA standards, proposed or otherwise in place at the time such NRC concurrence was given.

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 DOE'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.

9

NP.C concurrence in the DOE determination that reclamation of the site has been accomplished in accordance with the approved plan may be accomplished in two phases. The Uranium Mill Tailings Remedial Action Amendments Act of 1988 allows for a two phased approach for Title I sites. The Act will allow DOE to do all remedial actions, other than ground water restoration, for the first phase of closure and licensing. The second phase, which can go on for many years, will deal with existing ground water restoration. When ground water restoration is completed, the LTSP will be appropriately amended. See the earlier discussion on this law for more details.

The third phase is the licensing phase. The general license is effective following (1) NRC concurrence in the DOE determination that the site has been properly reclaimed and (2) the formal receipt by NRC of an acceptable Long-Term Surveillance Plan. NRC concurrence with completion indicates that the site has been stabilized in accordance with EPA standards. This NRC concurrence may be completed in two phases as discussed above and in the section on the Act.

There is no termination date.for the general license.

In the Advance Notice of Proposed Rulemaking issued on August 25, 1988, the NP.C indicated the intent to publish a Federal Register notice upon receipt of the LTSP and prqvide a public meeting to inform the local public of the future plans for the site and to prQvide an opportunity for public corrrnents.

The NRC has further evaluated this procedure and recognized that opportunity for public involvement will be more effective at an earlier stage. Public involvement has been and will continue to be provided through DOE~s overall remedia1 action program for Title I sites and NRC's licensi*ng program for Title II sites. The local public will have an opportunity to comment on the remedial action or closure plans proposed and implemented by DOE or the Title II licensee and to raise concerns regarding final stabilization and the degree of protection achieved. NRC fully endorses State and public input in all stages of the program, especially in the planning stages of remedial action when such input can be most effective in identifying and resolving issues affecting long-term care. At the time the LTSP is submitted, the NRC will consider the need for a public meeting in response to requests and public concerns.

Therefore, NRC encourages State and public participation early in the remedial action and closure process and will provide additional opportunities, as needed, later in the process.

10

The final phase of the program is surveillance and monitoring and begins after NRC receives the LTSP. In this phase DOE and NRC periodically inspect the site to ensure its integrity. The Long-Term Surveillance Plan will require the DOE to make repairs, if needed.

One of the requirements in the EPA standards is that control of the tailings should be designed to be effective for up to 1000 years without active maintenance. Although the design of the stabilized pile is such that reliance on active maintenance should be minimized or eliminated, the NRC license will require emergency repairs as necessary. Jn the event that significant repairs are necessary, a determination will be made ~n a site specific basis regarding the need for additional National Environmental Policy Act (NEPA) actions, and health and safety considerations from Parts 19, 20, and 21.

Title JI UMTRCA also charged EPA with the responsibility for promulgating standards for active uranium or thorium sites. EPA completed this in Subpart D and E of 40 CFR Part 192 on October 7, 1983 (48 FR 45946).

Title II sites have active NRC or Agreement State licenses. Each licensee is responsible for having a closure 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 be closed in a manner which meets applicable standards. These include the requirements contained within 10 CFR Part 40 - Domestic Licensing of Source Material, or similar Agreement State requirements. In addition, 10 CFR 150.lSa 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. Once the future long-term care licensee has submitted a suitable LTSP, the general license takes effect when either NRC terminates the current specific license or when NRC concurs with an Agreement State's termination of the current specific license. This rulemaking provides the Co111T1ission with two options to maintain control over 11

sites in the unexpected situation when: (1) an acceptable LTSP has not been submitted; (2) the current specific license is ready to be terminated; (3) NRC had determineo that the site has been closed in accordnace with applicable standaras; and (4) site custody has been transferred to the long-tenn care licen~ee. The Comr.iission could delay termination of the specific license until an acceptable LTSP is submitted or issue an order requiring surveillance by the custodian of the site, who will become the long-term care licensee under the general license. The Commission considers either of these actiC'lris to be sufficient to ensure that the site will be under surveillanc~ and control during the transition period from the specific to the general license.

e The general license approach for Title II sites is similar to the process used for Title J sites. The most significant differences are:

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

2. In some rare cases, such as may occur with deep burial where no ongoin9 site surveillance will be required,.surface land ownership transfer requirements may be waived for a Title JI site.

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

4. Title II licensees are required to pay a minimum charge of $250,000 (1978 dollars) to cover the costs of lorig-tenn surveillance. This charge must be paid to the general treasury of the United States or to an appropriate State agency prior to the ter~ination of a uranium or thorium mill license. The minimum charge may be adjusted based on site specif;c requireme~ts in excess of those specified in Criterion 12 of Appendix A.

12

5. The determinaticn that Title I sites have been reclaimed may be done in two phases, whereas the determination for Title II sites will be done only once before licerse termination.

6.

There is an additional Title II requirement when a license in an Agreement State is terminated and the site transferred to the United States for long-term care. All funds collected by the State for long-term surveillance will be transferred to the United States.

This requirem~nt has already been codified in Part 150 and is not part of this rulemaking.

7. Title l covers designated inactive uranium mill tailings sites.

Title II covers sites licensed as of January 1, 1978 and new uraniuw.

and thorium mill tailings sites.

Ten of the 19 conventional mills licensed by NRC have made corporate aecisions 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 ~f design, planning and decommissioning.

V. The Long-Term Surveillance Plan (Title I and Title II)

DOE, or the appropriate State, will submit a site Long-Tenn Surveillance I .

Plan to the NRC to coincide with completion of remedial actions (Title I) or license termination (Title II). DOE, or the appropriate State, will be responsible for preparing the LTSP since this document will clearly define their responsibilities under the general license. As discussed previously, the LTSP for Title I sites will allow a two-phased approach as provided in the Uraniu~ Mill Tailings Remedi~l Action Amendments Act of 1988. The Act will allow DOE to do all remedial actions, other than ground water restoration, for the first phase of closure and licensing. The first phase includes any performance or design features necessary to satisfy ground water protection standards, exrept for ground water restoration. The second phase, which can go on for many years, will deal with existing ground water restoratior.. When ground water restoration is completed, the LTSP will be appropriately modified.

13

Title I The DOE has developed a "Guidance for UMTRA Project Surveillance ana Maintenance" document issued in January 198~. 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 inforffiation should be considered in designing a sit~

LTSP for Title I sites.

e '

The DOE guidance 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, if necessary.

4. Aerial photography.

5. Contingency (or emergency) repair, and pl~nned maintenance if necessary.

DOE indicated that final site conditions should be defined and characterizea 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 LTSP 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 (not to be confused with the two phases of remedial action when ground water restoration is required), and contingency inspections. Annually scheduled 1 to 2-day phase I inspections would be conducted by a small team to identify any changes in conditions that may affect design integrity. Phase II inspections would be unscheduled and dependent upon potential pr~blems ;dentified during a Phase I inspection. Team members of a Phase II inspection should be specialists in the 14

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.

• 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 for the long-term care at the site, then it should be conducted in two phases, screening monitoring and evaluative monitoring. Screening monitoring would be designed to detect changes in ground w~ter quality attributable to the tailings. If a significant change is app1~ent, evaluative monitoring should be initiated. Evaluative monitoring will be more extensive and will quantify the rate and magnitude of the change of conditions. When EPA finalizes the ground water protection standards, modifications may be necessary. See the discussion on the Uranium Mill Tailings Remedial Action Amendments Act of 1988 for more details.

Initial surveillances should include the acquisition and interpretation cf 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 identify a need for this.

The LTSP should also describe the procedures the long-term licensee would follow if contingency or emergency repairs were needed at the site due to extreme natural events or purposeful intrusion.

The* conduct of custodial activities such as grass mowing or fence repair are not precluded. If the long-term care licensee desires to conduct such custodial activities (termed "planned maintenance" in the DOE guidance document), such activities should be described in the LTSP. However, it should be noted that such planned maintenance cannot be relied upon to ensure compliance with the EP~ standards.

15

_J

Title II Much of the above guidance can be applied to the Title II sites. However, the OOE guidance document includes additional information and recorrvnendations for which the applicability must be evaluated on a site specific basis for Title II sites. Specific requirements for Title II sites are addressed in Appendix A of 10 CFR Part 40. For Title II sites. criterion 10 of Appendix A requires the existing licensee to pay a minimum charge of $250.000 (1978 dollars) to cover the costs of long-term surveillance. The minimum charge was based on an annual inspection by the governmental agency retaining custody of the site to confirm the integrity of the stabilized tailinss and to determine the need. if any, for maintenance and/or monitoring. The actual amount of this charge will be set based on a site specific evaluation. which should be included as part of the existing licensee's reclamation plan for the site.

This charge is not intended to cover the cost of contingency (emergency) repairs. Because the tailings and wastes should be disposed of without the need for any active maintenance,

. the annual inspection should be completed in 1 to 2 days per site. Post-closure maintenance activities that are relied upon to comply with Appendix A closure standards can only be authorized by considerations of alternatives under Section 84(c) of the Atomic Energy Act of 1954, as amended. In such cases, the minimum charge for long-term surveillance to the existing licensee will be increased accordingly to provide for this e maintenance. The basis for the minimum charge and the annual inspection is discussed in detail in the Final Generic Environmental Impact Statement on

!

• ura~ium milling {NUREG-0706) 1*

1copies of NUREG-0706 may be purchased from the Superintendent of Documents. U.S. Government Printing Office, P.O. Box 37082, Washington, DC 20013-7082. Copies are also available from the National Technical Information Service, 5285 Port Royal Road, Springfield, VA 22161. A copy is also available for public inspection and/or copying at the NRC Public Document Room, 2120 L Street NW., .Lower Level of the Gelman Building, Washington, DC.

16

The custodial agency will prepare an LTSP for each site u~ing input from the existing licensee's reclamation plan, including the evaluation of long-term survei1;ance needs. Thus, important site information will be transferred from the existing licensee to the custodial agen~y. The existing l_icensee, however, will not be required to prepare the LTSP. In addition the LTSP will not affect the long-term surveillance charge paid by the existing licensee (the LTSP may reflect site-specific additional items, but will not affect the charge to the existing licensee).

VI. Future Uses of the Disposal Site U~ITRCA provides for potential future uses of the disposal site. For a Title I site, it provides that the Secretary of the Interior, with the concurrence of both the Secretary of Energy and the NRC, may dispose of any subsurface 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.

For a Title II site the same provisions as above apply with the following two differences. 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 to the Federal or State Government shall receive the right of first refusal with t .

respect to this use of the land.

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

VII. Response to Issues for Corrment The Advance ~otice of Proposed Rulemaking identified several areas of uncertainty and requested comments on the following topics:

1. DOE's ability to complete the Title I program considering the 17

1990 legal limit.

2. EPA's proposed amendments of 40 CFR Part 192 concerning ground water protection for Title I sites.

3. Institutional matters associated with reclaimed sites on Indian land.

The NRC did not receive any comments specifically addressing these topics.

However, the uncertainty associated with the first issue was resolved with the passage of the Uranium Mill Tailings Remedial Action Amendments Act of 1988.

See the earlier discussion on this law for more details.

VIII. CoRITlents on the Advance Notice of Proposed Rulemaking The Corrmission received six (6) letters colTl!lenting on the advance notice.

Copies of those letters and an analysis of the comments are available for public inspection and copying for a fee at the NRC Public Document Room at 2120 L St. NW, Washington, DC. Corrments were received from an environmental group, an industry representative, the Department of Energy, and from three States. From the six letters 15 individual coRITlents have been analyzed. The most significant are summarized below.

There seemed to be some misunderstanding by one commenter that the I .

long-term care licensee might, in essence, require the existing licensee to prepare the LTSP during site closure activities, thereby impacting the private sector. NRC agrees with the commenter that consultation between the existing licensee and the long-term care licensee is appropriate during site closure activities. However, the Commission does not intend for the existing licensee to prepare the LTSP. Instead, the LTSP should be prepared by the custodial agency which becomes the long-term care licensee once NRC accepts the LTSP, the specific license is terminated, and site custody has been transferred. The custodial agency should prepare the LTSP based on_ input from the existing licensee's reclamation plan for the site, including the evaluation of long-term surveillance needs. This approach provides a mechanism to integrate the reclamation program with long-term surveillance and transfers important site 18

information to the custodial agency. NRC encourages consultation between the existing licensee and the custodial agency about pest-closure surveillance.

Accordingly, NRC has changed the phrase "no impact" to "no significant impact" because such consultation is appropriate and desirable and requires some level of effort on the part of the existing licensee. NRC does not consider this effort to be significant, however, because it is a part of other licensee activities required to reclaim the site and terminate the existing license in accordance with existing NRC requirements in Appendix A to 10 CFR Part 40.

One commenter noted that the term "remedial action plan" may not be appropriate for Title II sites since 10 CFR Part 40 refers to a "closure plan."

We agree and have made appropriate changes. Remedial action plans refer to Title I sites only.

Two colrlllenters wanted to know about potential uses of a disposal site after reclamation or closure is completed. The NRC is not aware of any disposal sites where a future use is specifically planned. One of the cowmenters listed several potential uses, such as agricultural, recreational, or deep subsurface mining. Because of the site specif.ic nature of such uses and their potential impacts any proposed use will be reviewed on a case-by-case basis.

- The Department of Energy expressed concern that the proposed rule would require an LTSP at sites where contami~ated material has been removed and, if

~

• applicable, ground water cleanup achieved. We agree that an LTSP (or a license) for thesP $ites is not appropriate and never intended for this to be the case. We have added clarifying language. It should be noted, however, that the NRC would in no case concur with completion of remedial action unless the DOE had complied with the EPA cleanup standards at the processing site, even if the tailings were disposed elsewhere.

IX. 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 oriQinal petition requested that the NRC amend 19

its regulations to license the possession of byproduct material at inactive tailings sites (Title I). The petitioner proposed that the NRC take the following regulatory action to ensure that public health and safety and the environment is adequately protected from the hazards associated with byproduct material:

l. 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.

J. 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 arnendment, the petitioner requested that, in the event that NRC denied thf 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 reouested that the NRC ensure that the 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 reouested 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 $olid Waste Disposal Act, as amended (42 U.S.C.

6901 et seq.). In the alternative, the petitioner suggested that NRC extend the coverage of the requirements in 10 CFR Part 40, Appendix A, which are now applicable only to licensed byproduct material, to byproduct material not 20

subject to licensing. In addition, the petitioner requested that NRC issue regulations that would require a person exempt from licensing to conduct monitoring activities, perform remedial work, or take any other action necessary to protect health and safety and the environment.

One of the purposes of this proposed rulemaking is to provide a licensing procedure for long-term care of inactive sites. Although this is not what the petitioner requested, the end result directly addresses the petitioner's concerns. Inactive sites will be licensed and will be managed to ensure their long-term integrity to protect public health and the environment.

Another concern of the petitioner is that until DOE completes remedial action, the residual radioactive material will be unregulated. While it is true that the sites are not regulated by NRC prior to completion of remedial action, the sites are managed by DOE under a comprehensive environmental, health, and safety program similar to the types of programs required by NRC under 10 CFR Part 20. This program includes the types of activities requested by petitioner, including monitoring and other actions necessary to protect public health and safety and the environment. In add;tion, the remedial action program operates under a series of State laws and regulatory programs intended to protect human health and the environment. Although the Corrmission does not have the authority to approve DOE's environmental, health, and safety program for these sites, NRC has reviewed and commented on the adequacy of the program and DOE has considered these comments in the design and implementation of its program.

The Commission intends to respond more fully to the petitioner's request by the time the rulemaking described in today's notice is final.

X. EPA Clean Air Act Activities EPA has published new air effluent regulations for radon and other radioactive effluents from uranium mill tailings as part of the voluntary remand of standards developed under Section 112* of the Clean Air Act (CAA) (54 FR 51654, Oece~ber 15, 19E9). The EPA regulations include a radon emission standard that would apply to both Title I and Title II sites after closure that 21

must be .confirmed by measurement. Other NRC and EPA regulations are design standards. Once measurements confirm that the site meets CAA standards and long-term stabilization has been completed. the tailings are no longer subject to EPA regulations under the CAA standards. Prior to closure, it is entirely possible that the CAA standards could result in EPA ordered modifications to sites that already meet current design standards. The potential for conflicting EPA and NRC/Agreement State regulatory programs prior to the long-term care period. will require close coordination between the two agencies, and with States depending on CAA delegations.

Because of the potential uncertainties of implementation, com~liance agreements between EPA and States. DOE. or licensees. and potential regulatory changes, the NRC has added to the proposed rule a proposed requirement to report governmentally directed activities to NRC prior to taking any actions under the general license.

XI. Finding of No Sign*i,ficant Environmental Impact: Availability The Commission has determined under the National Environmental Policy Act of 1969, as amended, and the Convnission's regulations in Subpart A of 10 CFR Part 51, that this rule, if adopted, would not be a major Federal action

• significantly affecting the quality of the human environment and therefore an environmental impact statement is not required. The proposed rulemaking will establish general licenses for long-term care of uranium or thorium mill tailings sites by another Federal agency or State. The licensing action will be done after remedial action or site closure is completed, and would ensure that sites remain in good condition. If unexpected repairs are ever required, the long-term care licensee will be responsible to make the necessary repairs.

The Commission will evaluate at the time such action is deemed necessary*

whether there is a need to prepare a separate environmental assessment.

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, 2120 L Street N~/ (Lower Level), Washington, DC. Single copies 22

of the environmental assessment and finding of no significant impact are available from Mark Haisfield, Office of Nuclear Regulatory Research, U.S.

Nuclear Regulatory Commission, Washington, DC 20555, Mail Stop NLS-260.

Telephone (301) 492-3877.

XII. Paperwork Reduction Act Statement This proposed rule 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

• XIII. Regulatory Analysis The Convnission has prepared a draft regulatory analysis on this proposed regulation. The analysis examines the costs and benefits of the alternatives considered by the Convnission. The draft analysis is available for inspection in the NRC Public Document Room, 2120 L Street NW (Lower Level), Washington, DC. Single copies of the draft analysis may be obtai~ed from Mark Haisfield, Office of Nuclear Regulatory Research, U.S. Nuclear Regulatory Commission, Was~ington, DC 20555, Mail Stop NLS-260.

• The Commission 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.

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

the Co1m1ission 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. Although small entities may be requested to consult with government agencies in developir.g LTSPs effort associated with such consultation is required under the criteria in Appendix~ to 10 CFR Part 40, which were previously promulgated by the Coninission. Therefore, a Regulatory Flexibility Analysis is not required and has not been prepared.

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XV. Backfit Analysis The NRC has determined that the backfit rule, 10 CFR 50.109, does not apply to this proposed rule, and therefore, that a backfit analysis is not required for this proposed rule, because these amendments do not involve any provisions which would impose backfits as defined in 10 CFR 50.109(a)(l).

XVI. List of Subjects in 10 CFR Part 40 Government contracts, ~azardous materi~ls-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.

PART 40 - DOMESTIC LICENSING OF SOURCE MATERIAL

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

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

I 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, Pu~. 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(9) also issued under sec. 122, 68 Stat.

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

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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(i)-(d), 40.4l(b) and (c), 40.46, 4C.5l(a) and (c), and 40.63 are issued under sec. 161b, 68 Stat. 948, as amended, (42 U.S.C. 220l(b)); and §§40.5, 40.9, 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)).

2. 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, or deliver source and byproduct materials, as defined in this part, and establish _and provide for the terms and conditions upon which the Commission will issue these licenses. These ~egulations also provide for disposal and long-term care of byproduct and residual radioactive material. The regulations in t~is part also establish certain requirements for the physical protection of import, export, and transient shipments of natural uranium. (Additional requirements applicable to the import anc export of natural uranium are set forth in Part 110 of this I .

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 JI of the Uranium Mill Tailings Radiation Control Act of 1978, as amended (42 U.S.C. 7901).

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

§40.2a Coverage of inactive tailings sites.

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(a) Prior to the completion of the remedial action. the Corrmission will not reauire 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 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, as amended.

After remedial actions are completed, the Commission will license the long-term care of ~ites, where rei~dual radioactive materials are disposed. under the requirements set out in §40.27.

4. 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 care, deliver or dispose of byproduct material or residual radioactiv e material 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 Corrmission under the regulations i~ this part.

5. In §40.4, paragraph (t) is added to read as follows:

§40.4 Definitions.

(t) "Residual racfioactive 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 26

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 J of the Uranium Mill Tailings Radiation Control Act of 1978.

6. 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.

7. Section 40.20 is revised to read as follows:

§40.20 Types of licenses.

(a) Li_cen_ses for source material, byproduct !'laterial, and residual radioactive material are of two types: general and specific. The general licenses provided in this part are effective without the filing of applications with the ColTITlission 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 under Title JI of the Uranium Mill Tailings Radiation Control Act of 1978.

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8. 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 long-term care, including monitoring, maintenance, and emergency measures necessary to protect public health and safety and other actions necessary to comply with the standards promulgated under section 275{a) of the Atomic Energy Act of 1954, for remediated 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 long-term care. The purpose of this general license is to ensure that uranium mill tailings sites will be cared for in such a manner as to protect the public health, safety, and the environment after remedial action has been completed.

(b) The general license in paragraph (a) of this section becomes effective when the Commission accepts a site L~ng-Term Surveillance Plan (LTSP) that meets the requirements of this section, and when the Commission concurs with the Department of Energy's determination of completion of remedial action at each site. The LTSP may incorporate by reference information contained in documents previously submitted to the Co1m1ission if the references to the individual incorporated documents are clear and specific. Each LTSP must include--

(1) A legal description of the site to be licensed, including docu-mentation or. 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 Ura~ium 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; 28

(2) A detailed description, which can be in the form of a reference, of the final site conditions, including existing ground water characterization. This description must be detail~d enough so that future inspectors will have a baseline to determine changes to the site and when these changes are serious enough to require maintenance or repairs. If the site has continuing aquifer restoration requirements, then the licensing process will be completed in two phases. The first phase includes all items other than ground water restoration. Ground water monitoring may still be required in this first phase to assess performance of the tailings disposal units. When the ColllTlission concurs with the completion of ground water restoration, the licensee shall assess the need to modify the LTSP and report results to the ColllTlission. If the proposed modifications meet the requirements of this section, the LTSP will be considered suitable to accommodate the second phase.

(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, appropriate constituent concentration limits for ground water, inspection personnel qualifications, inspection procedures, recordkeeping and quality assurance procedures; (4) The criteria for follow-up inspections in response to observations from routine inspections or extreme natural events; and (5) The criteria for instituting maintenance or emergency measures.

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

(1) Implement the LTSP as described in paragraph (b) of this section; (2) Care for the site in accordance with the provisions of the LTSP; 29

(3) Notify the Commission of any changes to the LTSP; any such changes must not conflict with the requirements of this section; (4) Guarantee permanent right-of-entry to Commission representatives for the purpose of periodic site inspections; and (5) Notify the Commission prior to undertaking any significar.t construction, actions, or repairs related to the site, even if the action is required by another State or Federal agency.

(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 Ener9y and the Conmission, may sell or lease any subsurface mineral rights associated with land on which residual radioactive materials are disposed. In such case~, the Conmission shall grant a license permitting use of the land if it finds that such use will not disturb the residual radioactive materials or that such materials will be restored to a safe and environmentally sound condition if they are disturbed by such use.

(e) The general license in paragraph (a) of this section is exempt from Parts 19, 20, and 21 of this Chapter, unless significant construction, actions, or repairs are required. If such actions are to be undertaken, the licensee shall justify to the Corrmission which requirements from these Parts apply for such actions and comply with the appropriate requirements.

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

(a) A general license is issued for the long-term care, including monitoring, maintenance, and emergency measures necessary to protect the public health and safety and other actions necessary to comply with the 30

standards in this part for uranium or thorium mill tailings sites closed under Title II of the Uranium Mill Tailings Radiation Control Act of 1978, as amended. The licensee will be the Department of Energy, another Federal agency designated by the President, or a State where the site is located. The purpose of this general license is to ensure that uranium and thorium mill tailings sites will be cared for 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 terminates, or concurs in an Agreement State's termination of, the current specific license and a site Long-Term Surveillance Plan (LTSP) meeting the requirements of this section has been accepted by the Commission. If the LTSP has not been formally received by the NRC prior to termination of the current specific license, the Conmission may issue a specific order to the intended custodial agency to ensure continued control and surveillance of the site to protect the public health, safety, and the environment. The LTSP may incorporate by reference information contained in documents previously submitted to the Co11111ission if the references to the individual incorporated documents are clear and specific. Each LTSP must include--

(1) A legal description of the site to be transferred and licensed; (2) A detailed description, ~hich can be in the form of a reference, 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 maintenance or repairs; (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, 31

appropriate constituent concentration limits for ground water. inspection personnel qualifications. inspection procedures, recordkeeping and quality assurance procedures; (4) The criteria for follow-up iHspections in response to observations from routine inspections or extreme natural events; and (5) The criteria for instituting maintenance or emergency measures.

(c) *The long-term care agency who has a general license established by paragraph (a) of this section sha~l --

(1) Implement the LTSP as described in paragraph (b) of this section; (2) Care for the site in accordance with the provisions of the LTSP; (3) Notify the Corrmission of any changes to the LTSP; any such changes must not conflict with the requirements* Qf this section; (4) Guarantee permanent right-of-entry to Corrmission representatives for the purpose of periodic site inspections; and (5) ~:otify the Commission prior to undertaking any significant construction. actions. or repairs related to the site, even if the action r .

is required by another State or Federal agency.

(d) Upon application, the Commission may issue a specific license, as specified in the Uranium Mill Tailings Radiation Control Act of 1978, permitting the u~e 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--

32

(1) The proposed action does not endanger the public health, ~afety, welfare, or the environment; (2) 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 closed sites; and (3) Adequate financial arrangement are in place to ensure that the byproduct materials will not be disturbed, or if disturbed that the applicant is able to restore the site to a safe and environmentally sound condition.

(e) The general license in paragraph (a) of this section is exempt from Parts 19, 20, and 21 of this Chapter, unless significant construction, actions, or repairs are required. If such actions are to be undertaken, the licensee shall justify to the Commission which requirements from these Parts apply for such actions and comply with the appropriate requirements.

(f) In cases where the Co1m1ission determines that transfer of tfrle of land used for disposal of any byproduct materials to the United States or any appropriate State is not necessary to protect the public health, safety or welfare or to minimize or eliminate danger t~ life or property (Atomic Energy Act, §83(b)(2) and (4)), the Co1m1ission will execute its licensing responsibilities on a case-by-case basis.

9. Appendix A, Criterion 12 is revised to read as follows:

Appendix A to Part 40 - Criteria Relating to the Operation of Uranium Mills and the Disposition of Tailings or Wastes Produced by the Extraction or Concentration of Source Material From Ores Processed Primarily for Their Source Material Content.

33

Criter ion 12--The final di sposition of tailings or wastes at mil l ing si tes should be such that ongoing act i ve maintenance is not necessary to preserve isolation. As a minimum, annual site inspections must be conducted by the government agency retain i ng ultimate custody of t he site where tailings, or wastes, are stored .to confirm the integrity of the stab i l ized tailings or waste systems and to determine the need, if any, for maintenance and/or monitoring. Results of the inspections for all the si tes under the l icensee's juri sdiction will be reported to the ColllTlissi on annually wi thin 90 days of the last site inspected in that calendar year.

Any site where unusual damage or disruption is di scovered duri ng the i nspection, however, will require a pre li minary site inspection report to be subm i tted within 60 days. On the bas i s of a site specific evaluat ion_

the Comm i ss i on may requ i re more freque nt s ite inspect i ons if necessary due to the features of a particular tailings or waste disposal system. In t hi s case, a pre l iminary inspection report is requ ired to be submi tted within 60 days following each inspection.

- Dated at Rockv il le, Maryland this?O~ay ofJAtJ , 1990 .

Corrmfssion .

Secretary of 34