ML20137M864
| ML20137M864 | |
| Person / Time | |
|---|---|
| Issue date: | 04/19/1985 |
| From: | Browning R NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS) |
| To: | Cunningham R, Fonner R, Gagner S NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS), NRC OFFICE OF PUBLIC AFFAIRS (OPA), NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| Shared Package | |
| ML20136E683 | List: |
| References | |
| FRN-49FR46418, RULE-PR-40 AB50-2-20, NUDOCS 8512040022 | |
| Download: ML20137M864 (143) | |
Text
p. yo l' y 9 / A. y 4 y /F DISTRIBUTION:
y u ., x WMLU r/f wo/cncl. NMSS r/f wo/ encl.
N# WM r/f w / encl. RE Browning w / encl.
APR 191985 MJ Bell w/ encl. J0 Bunting wo/ encl.
h D/85/04/17 J. Lambert wo/ encl. B Martin, RIV wo/ enc' L Cobb, I&E, w/ encl. K Dragonette, w/ encl.
MEMORANDUM FOR: Richard E. Cunningham, FC O'
[ / & /Is f 3 Robert L. Fonner, ELD Sue F. Gagner, PA d" ~ a ,,, , /.
Michael Lesar, DRR '
Donald A. Nussbaumer, SP R. Dale Smith, URF0 Sheldon L. Trubatch, 0GC FROM: Robert E. Browning, Director Division of Waste Management
SUBJECT:
FINAL RULEMAKING ON URANIUM MILL TAILINGS Enclosed for your information and review is a Commission paper on a proposed final rulemaking for uranium mill tailings. The amendments to 10 CFR Part 40 are to conform to the Environmental Protection Agency's standards.
A copy of the proposed cover memorandum for Mr. Dircks is also enclosed. It shows either a concurrence or coordination role for your organization on th.is paper.
To concur, or if you have questions or comments, please call Kitty Dragonette (427-4300) directly. We would appreciate telephone response to expedite resolution of comments and to enable us to forward the package as soon as possible. Any substantive coments should be documented in a followup memorandum to complete the rulemaking history.
/S/ M Robert E. Browning, Director ision of Waste Management
Enclosures:
- 1. Comission paper
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s L /. $ n,a, - h nw ;/,~. ie re 9//9/Sr For: The Commissioners From: William J. Dircks '
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Executive Director for Operations
Subject:
FINAL RULEMAKING ON URANIUM MILL TAILINGS
Purpose:
To request Commission approval to publish final amendments f to 10 CFR Part 40 conforming to the Environmental Protection Agency's (EPA) final standards for uranium and thorium mill tailings.
Discussion: Final EPA standards for uranium and thorium mill' tailings were published October 7,1983 in new Subparts D and E to 40 CFR 192 (see Enclosure C). The NRC Authorization Act for FY 1983 (Public Law 97-415) requires that NRC conform its tailings regulations to these final EPA standards.
A two-step prccess was approved to modify the Consnission's rules to fully reflect the EPA standard: (1) amendments to Appendix A of 10 CFR Part 40 published in the Federal Retister for pt;olic conrent (49 FR 46418, November 26,
' 19E4) and (2) further amendments to 10 CFR Part 40 as described in the accompanying Advance Notice of Proposed Rulemaking (ANPRM) (49 FR 46425, November 26,1984).
Copies of the two notices are included as Enclosure A.
Contacts:
K. Dragonette, WM:NMSS, 427-4300 R. Fonner, ELD, 492-8692 l
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The proposed amendments to Appendix A reflecteo conforming 1 changes to existing provisions necessary to remove '
conflicts with the EPA standard and to incorporate the ;
stability and radon release provisions and other provisions of the EPA standard no. related to ground water. The ANPRM outlined plans for further amendments to 10 CFR Part 40 to incorporate the ground-water provisions imposed by the EPA standard and establish other requirements as necessary to satisfy the Uranium Mill Tailings Radiation Control Act of 1978, as amended, (UMTRCA) mandate for Resource Conservation and Recovery Act (RCRA)-comparable standards.
Coments on the ANPRM are still under review. Coments on the ANPRM addressed many of the same general issues and raised no significant new ones. The coments on the two rulemakings, the depressed state of the industry, and the need to concentrate staff resources on implementation guidance and licensing cases have prompted staff to reconsider the nature and scope of the second rulemaking.
As noted in the proposed notice in Enclosure B, a followup simple rule change to incorporate the specific ground-water protection provisions of 40 CFR 192 is one option being considered. Staff recomendations on the second step will be forwaMed to the Comission as soon as the coment analysis is complete and a decision reached. Publication of the final first step rulemaking need not and should not be delayed pending a decision on the second step.
Publication by the end of May would complete the first step in 6 months following publication of the proposed rule.
The coment period for the proposed rule originally expired on January 10, 1985 but was extended until February 10, 1985. Twenty-four comenters responded with 26 sets of comments. Six environmental groups, seven States, two Federal agencies, seven industry representatives, one individual, and one pro-nuclear group responded. Comments were offered on both general issues and the specific changes in the proposed rule notice. The coments and responses are sumarized in the final rule notice in Enclosure B. Enclosure 0 is a copy of the detailed staff analysis of the coments. Enclosure D also includes copies of the comments.
The enclosed final rule notice in Enclosure B reflects and incorporates the Office of the General Counsel's (0GC)
response to the American Mining Congress (AMC) jurisdictional arguments and EPA's coments on the Commission Authority and Responsibility Statement. The OGC response is contained in SECY-85-125. The Commissioe's policy statement is included in the notice without change.
After consideration of the comments, staff recommends the final rule proposed for Comission approval ir. Enclosure B.
Staff concluded that the basic two-step rulemaking approach is still feasible and advisable. The major differences between the proposed and final rules are:
(1) Addition of an insert to the Introduction requiring consideration of risks and costs in site specific licensing decisions; (2) Addition of an insert to Criterion 5 clarifying the applicability of 40 CFR 192; (3) Clarification of the general goal of pemanent isolation of tailings in Criterion 1; (4) Clarification in Criterion 6 that the radon flux limits are to be met for the effective design life of the reclaimed impoundment; (5) Clarification in Criterion 8 that doses from radon emissions are to be as low as is " reasonably achievable" rather than as is " practicable"; and (6) Addition of changes to 10 CFR 150 to clarify Agreement State options to adopt alternatives under section 274o of the AEA.
Other minor clarifying and editorial changes were also made.
Recommendations: That the Commission:
- 1. Approve publication of the final rule changes to 10 CFR Part 40 as set forth in the draft Federal Register Notice in Enclosure B. -
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- 2. In order to satisfy requirements of the Regulatory Flexibility Act (PL-96-354) certify that the final rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. The basis for this certification is summarized in the enclosed Federal Register Notice (Enclosure B) under the Regulatory Flexibility Certification heading.
- 3. Note:
- a. Licensee compliance with Subparts 0 and E of 40 CFR 192 is an existing requirement and the proposed regulations merely incorporate specific recuirements in 40 CFR 192 into NRC regulations.
EPA issued a detailed Regulatory Impact Analysis in support of its standard and there is no significant additional impact arising from the proposed changes to Appendix A. Accordingly, no additional regulatory analysis has been prepared for the changes to Appendix A.
- b. EPA prepared and issued comprehensive draft and final Environmental Impact Statements in support of its standard, respecting control of radon releases, and cover longevity and stability, and the staff does not believe any additional environmental review is needed for these s tanda rds.
- c. That the Chief Counsel for Advocacy e the Small Business Administration will be informed of the certification and the reasons for it as required by the Regulatory Flexibility Act.
- d. That the Subcommittee on Nuclear Regulation of the Senate Committee on Environment and Public Works, the Subcommittee on Energy and the Environment of the House Committee on Interior and Insular Affairs, the Subcommittee on Energy and Power of the House Committee on Interstate and Foreign Commerce, and the Subcommittee on Environment, Energy and Natural Resources of the
+
House Committee on Government Operations will be informed by a letter similar to Enclosure F.
- e. That Rep. Samuel Stratton, Chairman of the House Procurement and Military Nuclear Systems Subcommittee, will also be' informed by a letter similar to Enclosure F.
- f. That this final rule does not contain a new or amended information collection requirement subject to the requirements of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.),
and that existing requirements were 4pproved by the Office of Management and Budget approval number 3150-0020.
- g. That a Public Announcement such as Enclosure E will be issued on filing of the notices with the Office of the Federal Register.
- h. That copies of the notice will be distributed to all Commission uranium mill licensees and copies will be provided to Agreement States for distribution to their uranium mill licensees.
William J. Dircks Executive Director for Operations
Enclosures:
A. Federal Register Notices (2)
B. Proposed Notice of Final Rulemaking C. EPA Standard D. Staff Analysis of Public Comments E. Draft Public Announcement F. Draft Congressional Letter WMLU OELD SP FC WM NMSS EDO KDragonette REBrowning JG Davis WJDircks LHigginbotham MJBell DMausshardt 85/04/ 85/04/ 85/04/ 85/04/ 85/04/ 85/04/ 85/04/
ENCLOSURE A e
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46418 Federal Register / Vol. 49. No. 228 / Monday November 28,1984 / Proposed Rules gram is bemg sacked. or while the gram consideration may not be given except is at rest m a warehouse or holdmg opportunity for public comment. Today's facility m accordance with the for comments received on or before this proposal addresses that responsibihty.
da te.
mstructions- Previous Actions (3) "OUT" movements fother than Aoonesses: Mail comments to export /. Each checkweighmg of an Secretary U.S. Nuclear Regulatory In keepmg with section 18(a) of the "OUT" movement of nonexport sacked Commission. Washington. DC 20555. NRC Authonzation Act the Commission gram shall be based on an official Attention: Docketmg and Service suspended portions of its October 3.
weight sample obtamed from the grain Branch. Dehver comments to Room 1121, 1980 mill railings regulations after notice as the gram is bemg loaded m the 1717 H Street NW. Washington. DC and opportunity for pubhc comment (48 carner or contamer, or while the gram is between 8:15 a.m. and 5:00 p.m. FR 35350: August 4.1963). As required weekdays. by the Act. this suspension termmated at rest in the carner and contamer. or white the gram is at rest m a warehouse automatically April 1.1984. Those Fon rummaR INFoResATWN CONTACT or holding facility, or while the gram is portMOs of the Comrmssion's regulations Robert Fonner. Office of the Executive which were suspended were those that bemg sacked in accordance with Legal Director. telephone (3011492-8692.
procedures prescnoed m the or Kitty S. Dragonette. Division of were determined to be in conflict or mstructions. Waste Management. U.S. Nuclear mconsistent with EPA's proposed (4) " LOC.44" weighing. Each Regulatory Commission. Washmgton. reqtiirements. More specifically, the checkweighmg of a " LOCAL" DC 20555. telephone (301) 427-4300- suspended portions were those that movement of sacked gram shall be would require a maior commitment or suret.ansenTAny imponesaftoec The major acuan by licensees which would based on an official weight sample obtamed while the gram is at rest or Nuclear Regulatory Commission (NRC be unnecessary if:(1) The EPA proposed while the gram is bems transferred in or Commission)is proposmg standards were promulgated m final accordance with procedures presenbed modificat ons to its regulanons for the form without modification. and (2) the in the instructions. purpose of conformmg them to generally Commission's regulations were modified applicable requirements recently to conform to the EPA standards. The o soc.iopaco.io3 p.movee; promulgated by the Enytronmental objective of the suspension was to avoid
- 6. Sections 800.100,800.101, 800.102- Protection Agency (EPA). These new a situation where a licensae or applicant EPA requirements are contamed m might make a maior comWent or take and 800.103 would be removed.
Subparts D and E of 40 CFR Part 192 (48 a major action which would be dub L 94-h wu Nat 29 as emrnew i~ FR 45928; October 7,1983), are unnecessary or ill-advised after U.S C. 71 et see.ll applicable to the management of subsequent rulemaking to modify Da<t Lemte n.19*4 uranium and thonum byproduct F.eeneth A. Gmes. permanently the existtng regulations on matenal, and became effective for NRC the basis of EPA's final standards.
.4dimmstmior. and Agreement State licensees and irn on eumre ra.e n-a= e.a , license applicants on December 6.1983.
The final EPA standards are very a w .acaos m c similar to those that were proposed.
The action proposed herem would Nevertheless. the Commission has modify previously existmg regulations of reconsidered the appropnateness of the Commission to conform them to the changes to Appendix A to 10 CFR Part NUCLEAR REGULATORY new EPA requirements. and would 40 in light of the new EPA standards.
/ COMMISSION 10 CFR Part 40 incorporate certam of the new EPA requirements mto the Commission's regulacons. The effected Commission and the need for additional supportmg documentanon. The changes proposed today are more modest than the Uranium Mill Teeling Requiettone; a[i e are ntained m Appendix A previous suspension.
Conform 6ng NRC Requirements to EPA Sta m promulgated in final form on October 3. Scope f his Proposal 1980 (45 FR 65521).
Acasect Nuclear Regulatory In addition to conformmg its existmg Commission. The modifications to Commission regulations to new EPA standards.
regulatona proposed herem will under the provisions of the UMTRCA.
AcTioac Proposed rule. incorporate withm NRC regulations the Commission has a further legislated seme of the new EPA requirements.The responsibility:it must establish general suesasAny:The Nuclear Regulatory Commission (NRC)is propoemg to action that the Commission will take requirements for the manasement of with respect to the remamder of these byproduct matenal, with EPA amend its regulations governing the new EPA requirements is the eubject of concurrence, which are, to the maximum disposal of uramum mill tailings. ne proposed rule changes are intended to an Advanced Notice of Proposed extent practicable, at least comparable conform existmg NRC regulations to the Rulemaking (ANPRM). which requests to requirements applicable to the regulations published by the comment on that subiect. also issued management of similar hazardous this day. These new EPA requirements matenal regulated by the EPA under the Environmental Protection Agency for the protection of the environment from were developed and issued by EPA Solid Waste Disposal Act (SWDAl. as pursuant to secuan 275b. of the Atomic these wastes. This action is bemg taken amended. The Commission delibera ted to comply with the legislative mandate Energy Act (42 U.S C. 20221. as added by as to how best to deel with these related section 206 of Pub. L 95-604, the rulemakmg needs and decided on the set out m the Uranium Mill Tailings Radiation Control Act and the NRC Uramum Mill Tallings Radiation Control course of action resultmg in this Authonzanon Act for FY 1983. Act of 1978 IUMTRCA). Under section proposal and the accompanying 18(a) of Pub. L.97-415. the Nuclear ANPRM. This proposal addresses all the Dart:The comment penod expires on Regulatory Commission Authonzation January 10.1985. Comments received changes to the exisung Commission Act for fiscal years 1982 and 1983, the regulations m Appendix A to 10 CR a fter this date will be considerett if it is Commission was directed to conform its l practical to do so but assurance of Part 40 that can be legally promulgated regulations to EPA's with notice and without additional supportmg l
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l Federal Register / Vol. 49. No. 228 / Monday November 26, 1984 / Proposed Rules 46419 documentation. Other changes to the (2) Adhere to applicable requirements standards promulgated by the Commission's regulations for mill in 40 CFR Part 440. " Ore M nmg and ,
Environmental Protection Agency in 40 ;
tailings management resulting from the Dressma Point Source Category: Effluent CFR Part 192. Subparts D and E."
EPA standard are the subject of the 1. imitations Guidelines and New Source accompanying ANPRM. Reason:The flexibility to propose Perfonnance Standards. Subpart C. alternatives to the Commission's and 1
The content of these two rulemakings Uranium. Radium. and Vanadium Ores EPA standards was included in Pub. L also may be chara:tenzed in terms of Subcategory."97-415 changes to the AEA. The added the need for EPA concurrence. although (3) Mamtsin releases of radon to the paragraph paraphrases the language in that was not the decidine factor. This atmosphere demy operations as low as Section 64c.The added parsgraph proposal consists of modifications not is practicable:
explicitly acknowledges the legislative requinns EPA concurrence. including (4) Close disposal areas so as to intent and providee !icensees snd conformmg changes to existing NRC provide reasonable assurance of applicans the opportunity to 5..opose rules and incorporation of EPA effective control for 1.000 years, to the alternataes as e routins licensing requirements not derivmg from the extent reasonably achievable. and, m matter. l.icensees would have to provide SWDA.Those modifications that are the any case. for at least 200
- ears: a site specific rationale to enable the subject of the ANPRM accompanying (5) 1.imit average poet. closure releases this proposal derivmg from the SWDA of radioactive radon gas to no more than Commission to make the required fin' ding. This genene approach was require EPA concurrence pursuant to 20 picocunes per square meter per sec nd (pCi/m8 s); and taken instead of modifying indnndual
. section 84 of the Atomic Energy Act. entens to provide flexibility. A generic Modifications addressed in the ANPRM (6) Set limits for residual approach avoids the chance of not I
include:(1) Incorporation into NRC concentrations of radioactive radium I
left m soil, above background, in onsite identifymg all areas where flexibility i regulations of SWDA requirements may be needed and preserves the already imposed by the EPA. (21 any areas not subject to the closure t
{ further modifications to NRC regulations requirements for longevity and radon existing support for Appendix A. >
release control. Administratively, alternatives arc easie- [
necessary to establish SWDA.
to process under an explicit provision i comparable requirements as called for Proposed Modafications and Rationale than exceptions to rules.
by the UMTRCA. and (3) any further in accordance with the above, the 2. Criterion 1 modifications needed to addresa presenptive provisions that were Commission proposes the followmg modifications to Appendix A to la CFR I*I I" suspended pnor to Apnl1.1964 but not phrase h.fintfor Paragraph thousands ofdelete years the proposed for modification by this action. Part 40 * * * " and insert " * * * ."
This course of action was chosen to 1. Introduction Reasone ne thousands of years allow the Commission to both conform language conflicts with the 40 CFR its regulations to EPA's and incorporate (a)In the second sentence of the third paragraph. change "amendability" to 192.32(b) standara of design of control non.SWDA provisions in a prompt and " amenability.-
orderly manner and deal with the measures to be effective for 1.000 years.
Reason:This change corrects a (b)In the second listed item of the complex of SWDA requirements and typographical error. first paragraph, delete the word issues in a separate comprehensive and (b) Delete the fourth paragraph in its " usable."
untfied rulemaking, entirety. Reason: Both 40 CFR 264.221 and 40 Cootent of This Proposal Reasone nis change deletes an CFR 264.92. which are included by information submittal requirement reference in 40 CF; 192.32(a), require The new EPA requirements in 40 CFR which was established in connection isolation of contaminants from all Part 192. (48 FR 45926) included by with implementation of the original qualities of groundwater. not just usable reference several sections from 40 CFR Appendix A critena.The due date groundwater sources.
Part 264. promulgated by the EPA ongmally set for submittals is past. A pursuant to authonty provided by the # #
new due date for revised submittals is Resource Conservation and Recovery not considered necessary. f ai Deleie the modilmrs "high qualits "
Act (RCRA) which modified the SWDA. (c) Add the following paragraph at the for groundwater in the second sentence These SWDA (or RCRA) requirements end:"1.icensees or applicants may imposed under 40 CFR Part 192 are of the second paragraph.
addressed in the ANPRM accompanyms . propose alternatives to the specific Reasone ne EPA standards require requirements in this Appendix. The protection of all qualities of this proposal. The few conforming alternative proposals may take into changes to NRC's existmg Appendix A groundwater. not just high quality account local or regional conditions, sources.
regulations made necessary by these including geology. topography.
,' g,#### 4 newly imposed SWDA requirements are hydrology and meteorology.The addressed in this document. as are Comrmssion may find that the proposed (a) Revise paragraph (a) by deleting conforming changes and other changes alternatives meet the Commission's necessary to reflect and incorporate the " maximum possible flood" and inserting requirements if the alternatives will " Probable Maximum Flood."
, non SWDA elements of EPA's new achieve a level of stabilization and requtrements. These non.SWDA Reason: Probable Maximum Flood containment of the sites concerned. and reflects the appropnate hydrologic terms l provisions include requirements to-- a level of protection for public health, for a design basis and the onginalintent (1) Adhere to applicable requirements safety, and the environment from in 40 CFR Part 1906 "Enytronmental of the provision when Appendix A was radiological and nonradiological promulgated.
Radiation Protection Standards for hazards associated with the sites, which Nuclear Power Operations" for uranium is equivalent to. to the extent # #####
byproduct matenal. and essentially the practicable. or more stnngant than the (a)In the first paragraph. delete the
, same requirements for thenum level which would be achieved by the byproduct matenal: first two sentences begmning " Steps
- requirements of this Appendix and the shall be taken * * * " and ending 2 . A
48420 Federal Register / Vol 49. No. 228 / Monday l November 26, 1984 / Proposed Rules
" potential uses? and the phrase " * *
- an earthen cover shall be placed over (d) At the end of Cnterion 6. add a in order to accomplish this objective."in tailings or wastes at the end of milling new paragraph to read:"The design the third sentence. operations and the waste disposal area requirements in this Cntenon for Reason:The EPA groundwater shall be closed in accordance with a protection standards referenced in 40 longevity and control of redon releases design i whn.h shall provide reasonable shall apply to any portion of a licensed CFR 192.32(a) do not permit any seepage assurance of control of radiological and/or disposal site unless such portion to groundwater.
haearsh to: to Rr etfr. tiw for enn- contams a concentration of radium in (b)In the first listed item under the first paragraph tegmnmg with thousand years, to the extent reasonably land. aversged over areas of 100 square achievable. and. in any caserfor at least meters, which. as a result of b> product
" Installation of * * * " delete the words 200 years. and (ii) limit releases of
"!ow permeability" as a charetenstic of radon.222 from uramum byproduct matenal does not exceed the bottom liners. background level by more than:(i) 5 materials, and redon.220 from thonum picocuries per gram (pci/g) of radium-Reason:The EPA groundwater protection standard referenced in 40 oyproduct matenais. to the atmosphere 226. cr. in the case of thonum byproduct CM 192.27(a) requires a liner that so as to not exceed an average 8 release matenal radium.228. averaged over the prevents nugration of wastes out of the rate of 20 picocunes per square meter first 15 centimeters (cm) below the per second (pCi/m8s)." surface, and (ii) 15 pCl/g of radium-226.
impoundment into the a x acent soil and groundwatercLow permeability tmplies Reason:The change replaces previous br. in the case of thonum byproduct that some migration is allowed. Commission requirements for mmimum - matenal, radium-228. averaged over 15 cover thickness and post. closure radon cm thick layers mere than 15 cm below (c)In the second paragraph beginnin8 "Where grout.dwater impacts * * * " control with the EPA standards for the surface."
delete the t hrase "to its potential use longevity and radon control ne EPA Reason: Dis change incorporates the before millt.g operations began to the standard in 40 CFR 192.32(b) for EPA requirements for site cleanup maximum e environmental protection after closure outside the actual disposal ares, m g, ent pppjact2
,,, specifies that the control method must areas where the longevity and radon I 33 provide reasonable assurance that control closure standards are not Y]I',{ncmg 2 1 .
, releases of radon 222 do not exceed 20 applicable (see 40 CFR 192.32(b)(2) and restore groundwater to standard,, picocunes per square meter per second. 192.41).
estabhshed under 40 CFR 264.92-264.94. E ^## #
s rd the ckness f cover will e a degra io sta estoration of funti n fI naevity and radon release (a) At the end of the first full groundwater quality only to the extent and wdl be deiermmed based on paragreph. add a new sentence to read etcessary to restore its potential use is meeting the 20 value instead of 2. The Dunng operations and pnor to closure, inconsistent with EPA standard. three meter mmtmum precriptive radiation doses from redon emissions id) Delete in its entirety the third requirement was developed to achieve a fro:n surface impoundments shall be paragraph begmnm; "While the pnmary 2 picocune emanation rate based on the kept as low as is practicable.
niethod of protecting groundwater shall assumed typical soil concitions. Reason:His change incorporates the be isolation * * * " and ending - . . . (b) Add to Cntenon 6 the followmg EPA requirement imposed under 40 CR from current or potential uses." two footnotes which accompany the 192.32(a)(4).
Reason: The EF& standards for revised first sentence: footnote: (1) "The (b) Following the third full paragraph goundwater protretion in 40 CFR standard applies to design. Monitonng of Cntenon 8. Iust before Cntanon 8A.
192.32(a) protect gemdweter pnmanly for radon afterinstallation of an insert the followmg two new on the basis of bacxground-level appropnately designed cover is not paragraphs:
concentration limits for herzardous required." and footnote (2) "This " Milling operations producing or constitutents and not in terms of current average shall apply to the entire surface involvmg thonum byproduct matenal or potential uses. The deleted sentence of each dtsposal area over penoda of at shall be conducted in such a manner as allowed consideranon of tailinas in ~
least one year, but short compared to to provide reasonable assurance that the contact with groundwater. ne EPA 100 years. Radon wdl come frtnn botn annual dose equivalent does not exceed standard permits no seepage to uranmm byproduct materials and from 25 nullirems to the whole body. 75 groundwater. covenns matenals. Radon emissions millirems to the thymid, and 25 (e)In the first sentence of the fifth from coverms matenals should be millirems to any other organ of any paragraph begmnmg "This mformation . estimated as part of developmg a member of the public as a result of shall be gathered * * *" delete the word closure plan for each site. The standard. exposure to the planned discharge of
" usable" where it modifies however, applies only to emissions from radioective materials. redon 220 and its
" groundwater.- byproduct matenals to the atmosphere." daughters excepted. to the general Recson:The EPA standard in 10 CFR Reason:This change fully environment."
192.32(a) does not distmguish between incorporates the EPA radon control " Uranium and thorium byproduct
" usable" and nonusable acquifers. The standard. matenals shall be managed so as to groundwater protection standard (c)In the fifth sentence of the first conform to the applicable provisions of applies umversally to acquifers of any paragraph. replace "non. soiled" with Title 40 of the Code of Federal quality or potential use. "non-sod." and replacs the words "to Regulations. Part 440. Ore Mining and
- 6. Criterion 6 reduce tadings covers to less than three Dressmg Point Source Category Effluent meters" with the words "as cover Limitations Guidehnes and New Source (a) Delete the first sentence in matenata."
entirety. begmnmg with " Sufficient earth Performance Standards. Srbpart C.
Reason:The first change corrects a Uranium. Radium. and Vanadium Ores cover * * *" and endmg with " *
- typographical error. The second is an mater per second.". and m its place Subcategory. as codifid on January 1.
editonal change to be consistent with 1983?
inser* "In cases whers waste byproduct the deletion of the three meter mmrmum matenalis to be permanently disposed. Reason nese nea paragraphs l, requirement sa discussed in (a) above. incorporate EPA requirements imposed
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Federal Register / Vol. 49. No. 228 / Monday. November 28, 1984 / Proposed Ru!es 48421 ander 40 Cm 192.41(d) and 40 CFR regards uranium mill tailings sites and 192.32f a)(3), terpectively. rulemaking action. can be viewed as the have no broader connotation. lead agency.
- 8. Cntene 2.7.9.10.1L and 12 are not ne Commission believes that affected by the new EPA standards or licensee proposals for alternataves can Paperwork Reduction Act Statement editonal changes and no modification is be an unportant and effecuve way to )
proposed for any portion of those This proposed rule does not consam a -
help deal with the problems assoc 2ated enteria. with implementing the new EPA new or ausended information collection requirement subject to the requirements Commesson Authority and standards. The Commiseson expects that of the Paperwork Reduction Act of1980 ResponsMty it may require severel years to have its (44 U.S.C. 3301 et seq.). Existing '
conforming regulations fully in place. It requirements were approved by the Secuos Sec.of the Atonne Energy Act expects to use the flexibility provided Office of Management and Budget state that: A IJcansee may propose by section 84 in the interim to consider alternatives to specific requiriments approval nessber 3150-0020.
and approve alternative proposals from adopted and enforced by the Regula'8'I Flav &Hty CartfBcation licensees. Section 64c. provides NRC Commission under this act. Such sufficient authonty to independently alternative proposals may take into As required by the Regulatory account local or regional conditions. approve attematives so long as the Flexibility Act of 1980. 5 U.S.C. 805{b),
Commission can make the required including geology, topography, determination. .the Commission certifies that this rule hydrology and meteorology. The will not,if promulgated. have a Commission may treat such alternatives gPag g j sigmficant economic impact upon a as satisfytag Comruission requirements substantial number of small entitias.
The Commission's action in propoems Therefore.we if the thmssion determmes that such have not performed a these modifications to its regulations in attematrves wall acnieve a level of Appendix A to 10 CFR Part 40 is to Regulatory Flexibdity Analysis.ne stabdization and conta2nment of the basis for this findmg is that of the conform them to the new EPA sites concemed. and a level of standards. These changes are for the licensed uranium mille. only one i
protection for public health, safety, and purpose of avoiding conflicts and qualifies as a small entity. Almost all l the environment fmm radiological and the m211s are owned by large mconnstencies, and for clartfying nonrediological hazards associated with previously existtng langurge so as to be corporations.nree of the mills are such sites, which is equivalent to, to the partly. owned by companies that could compatible with the new requrrements. qualify as small h=
extent practicable, or more stnngent ne action proposed he e by the n accordaag to than the level which would be achieved Commission is a consequence of the SmallBussaaes Ad=-atration by standards and requirements adoped genenc amall entity dm6mosa of 500 previous actions thken by the Congress employees. However, seder the and enforced by the Commission for the and the EPA. and is legally mandated in same purpose and any final standards section 275b(3) of the Atomic Energy Act Regulatory Flexibility Act, a small promulgated by the Administrator of the of 1954. as amended. busmess is one that isindependently Enytronmental Protection Agency m owned and operated. Since these three Comoussion action in this case is accordance with section 275. esentia!!y nondiscretionary m nature. mills are not independantly owned they The Commission histoncally has had and for purposes of evivtreamental do not qualify as amall antifias.
the authonty and responsibihty to analysis. rests upon existing regulate the activmes of persons List of Seb)ects in to CFR Part es environmental and other rmpact licensed under the Atomic Energy Act of evaluations in the following documents- Covernment contracts. Hazardons 1954. as amended. Consistent with that (1)" Final EnvironmentalImpact matanale-tranapartatzon. Nacisar authonty and in accordance with matenais. Penalty Reporung and section 84c. of that Act, the Commission Statement for Standards for the Control recordkeepmg mquirements. Source of Byproduct Matenals from Uranuam has the discretion to review and material, and Umnmm.
approve site specific altemauves to Ore Processms (40 CFR Part 192)."
Volumes 1 and 2. EPA $20/1-83-008-1 Under the Atomic Energy Act of 1954.
standards promulgated by the as amended. the Energy Reorgamzation Commission and by the Admimstrator of and 2. September 1983. and (2)
Regulatory impact Analysis of Fmal Act of 1974. as amended. 5 U.S C. 553.
the Environmental Protection Agency. In Environmental Standards for Uramum and the Uramum Mill Tadings Radiation the exeinse of this authnnty. Secuon Mill Tailing at Acuve Sites. EPA 520/1- Control Act of 1973, as amended, the 84c. does not require the Commission to obtam the concurrence of the Admtmstratorin any s:te specific 83-010. September 1983. both prepared
. in support of Subparts D and E of 40 T0 y CFR Paret 192. and (31 " Final Genenc alternative which satisfies Commission EnvironmentalImpact Statement on PART 40-DOMESTIC LICENSING OF requirements for the les el of protection Uranium Millmg." NUREC-.0706. SOURCE MATERIAL i for public health, safe'y. and the ;
September 1980. prepared in suppo:t of 1. The authonty citation for Part 40 is
} environment from radio'ogical and Appendix A of 10 CFet Part 40. The nonradiological hazards at uramum mill revised to read as follows:
tailing sites. As an example. the Commission believes that these Authonty: Secs.82.63.64.65.81.131.182.
suppomng analyses for the new EPA 163.186, se Stat.932.933.935.948,953.954.
Commisson need not seek concurrence standards and the existing Commission of the Admtmstrator is case-by-case 955, as amanded secs.11e(21. 83. 84. Pub. I.
regulations provide a more than determmattons of attemative 95-604. 92 Stal 3GE as amended. 3039. sac.
adequate environmental review for the 234. 83 Stat. 444. as smended [42 U.S.C concentratten kmits and delistmg of standards addresed herem. and that no 2003 2094 hazardoes constitutents for specific aJditionalimpact analysis is warranted 4 $,
g 5 til 2 sites. It should be understood that the by the conformma actions proposed Pub.1. as-373. 73 Stat. saa (42 U.S.C. 2021h proposed confornung regulations deal herem. The EPA engaged in and sec. 201. as amended. 202. 20s, as Stat.1242.
with the exercise of the Commission's completed a NEPA process with full as amended.1244.1246 (42 U.S.C. 5e41. sas2.
respo.tsibtlity and authonty under the 584e). Section 275. 92 Stat. 3021. as amended consideration of environmental by Pub. L 97-415. 98 Stat. 2067 (42 U.SwC.
Atomic Energy Act of 1954. solely as concems, and for the purposes of this 202:1 ,
l l .a 1 .
l
48422 Federal Register / Vol. 49. No. 228 / Monday. November 26, 1984 / Proposed Rules Section eaf also issued under Pub. L 95 take into account local or regional conditions. (that is, where the need for any specially 801 sec.10.92 Stat. 2961 (42 UAC 5451). includms geology, topography. hydrology. constructed retention structure is ehminated).
Section 40.31(g) also issued under sec.122. 68 and meteorology. The Commission may find no evaluation of attemeuve sites and Stat. 939 (42 USC 2152). Section 40.46 also that the proposed altemauves meet the disposal methode performed by mdl issued under sec.184. es Stat. 954. as Commiscon's requirements if the alternauves operators m support of their proposed tathngs amended (42 USC 2234). Section 40.71 also wdl achseve a level of stabilization and disposal program (provided m applicants' inued under sec.187. 84 Stat. 965 (42 USC contamment of the sites concamed and a envtronmental reports) shall reflect senous 2237). level of protection for pubhc health. safety, consideranon of this disposal mode. In some
- For the purposes of sec. 22168 Stat. 958. as and the environ;nent from radiological and metances, below grade disposal may not be amended (42 USC 2273h 15 40.3. 40.25(d)(1)- nonradiological hazards aseccated with the the most environmentally sound approach.
j (3) 4 ass (aHd). 4a41 (b) and (c). 40.4a. 40.51 sites, which is equivalent to. to the extent such as might be the case if a groundwater l
(a) and (c). and 4a63 are issued under sec. practicable, or more etnngent than the level formauon is relatively close to the surface or telb. 08 Stat. 948, as amended. (42 USC. which would be achieved by the not very wellicolated by overlying sods and 2201(b)k and il 40.25 (c) and (d) (3) and (4). requirements of this Appendix and the rock. Also, geciogic and topographic 40.20(c)(2). 40.35(e). 40.42. 40.81. 40.82. 40.64 standards promulgated by the Environmental conditions nught make full below grade and 40.86 are leeued under sec.1810. 68 Stat. Protocuon Agency in 40 CFR Part 192. bunal impracticable: for example. bedrock 960 as amended (42 USC 2201(o)). Subparts D and E. may be sufficiently near the surface that l
pg q 1. TechmcolChtene blasting would be required to excavate a sposal pit at excesem c et and mom Cntenon 1-in selecting among alternative
- 2. Appendix A to Part 40 is revised to "
- vailable.
read as follows:
tadmgs dispoul stee or judging the adequacy of exisung tadmss atu, the d'd'beU" b $n practicable. the mze of retenuon structures.
3 ,gg g following site features, which wdl determme and size and steepness of slopes of RelatWo the Operation of Uranium [,$s'd ob ti e o iso e and auociated exposed embankments shau be Mille and the Disposition of Tailings or muumized by excavauon to the maximum suociated contammants from man and the Weetse Produced by this Extraction or enytronment for 1.000 yeare. themafter. extent reasonably achievable or appropnate rh-tration of Source Material Frean without ongoms active mamtenance shau be given the geolog c and hydrologic conditions Oves Proosseed Prisnarily for Their conndered: "g'*,',,'
Source Material Content
- Remotenese from populated areas:
, 'h'**
th b**' e* depoul ydm " '
program wdl provide reasonably equivalent temodungen isolation of the tailings from natural erosional y bu e o ved Every applicant for a license to ponen immobilization and isolation of coneaminants fweee.
and use source matenalin conjunction with from groundwater sources: and Cntenon 4-Re foHowmg site and design uranium or thenum mdhns. or byproduct
- Pottatial for mirumizmg erosion. cntena shau be adhered to whether tadings matenal at situ formerly associated with disturbance. and dispersion by natural forces a wastu an disposed of above w below such milling,is required by the provisions of over the long term. grade.
I 40.31[h] to include in a heense apphcation ne site selection process shall be an (a) Upstnam rainfaH catchment enas must proposed specifications relatmg to mdhng optimization to the maximum extent be mirumazed to decrosse eromon potential opersuono and the disposition of tadings or reasonably achievable in terms of these and the size of the Probable Maximum Flood wastes resulting from such milling actvines. features. which could erode or wash out sections of the nas appendix estabbshes techrucal. In the selection of disposal sites, prunary tadings disposal ama.
financial ownership. and long-term site emphasta shall be given to isolation of (b) Topographic features should provide survedlance entene relating to the sitmg. tathngs or wastes, a matter havmg long term good wind protection.
operanon. decontammanon. impacts. as opposed to consideration only of (el Embankment and cover slopes shaU be decommissionmg. and reclamation of mills short term convemence or benefits such se relauvely flat after final stabdization to and tadings or weste systems and sites at minimization of transportation or land mmtmize erosion potennal and to provide which such mdla and systems are located. As acquisition costa. Whde isolation of tadings conservanve factus of safety seaunns long, used in this appendix. the term "a low as is wdl be e funcnon of both site and -ngmeenna term stabdity, ne broad objective should be reasonably achievable" has the same design. overnding considerauon shall be to contour final slopes to grades which are as meanmg as in i 2C.1(c) of to CFR Part 20 of given to sitmg featuree given the long-term close as poemble to those which would be this chapter. nature of the tadings hazards. provided if tathngs were disposed of below In many cases, flexibdity is provided in the Tadings shall be disposed of in a manner grade: tais could, for example. lead to slopes entena to allow achievmg an optimum that no active mamtenance is required to about to honzontal to 1 <erucal(10h:1v) or l
tadmga disposal program on a site-specific preserve conditions of the site. less steep. In general slopes should not be I basts. However. in such cases the objectives. Cntenon 2-To avoid prohferation of smau steeper than about 5h:1v. Where steeper technical alternruves and concerns which waste disposal sites and thereby reduce slopes are proposed, reasons why a slope must be taken into account in developing a perpetual survedlance obhganons, byproduct less steep than Sh:1v would be inprecucable teihngs program are identified. As provided matenal from in estu extraction operauons. should be provided, and compensatmg by the provisions of I 4GL31(b) apphcations such as residues from soluuon evaporation or factors and conditions which make such for hcenses must clearly demonstrate how contammated control processes, and wastes slopes acceptacle should be identified.
the cntens have been addressed. from small remote above ground extraction (d) A full self-sustainmg vegetenve cover ne specificauons shall be developed operations shall be disposed of at existmg chall be established or rock cover empioyed considenne the expected full capacity c large mdl tadings disposal sites: unless. to reduce wmd and water erosion to tedings or waste systems and the hieume of considering the nature of the wastes. such as neghgable levels.
mdl operauona. Where later expansions of their volume and specific actmty, and the Where a full vegetative cover is not likely l systems or operations may be hkely (for :osts and environmental unpacts of to be self sustauung due to chmatic or other etample. waere Ime quantities of are now transportmg the westes to a large disposal conditions, such as m senu.and and and marsmally unece toraical may be stockpded). site, such offsite disposalis demonstrated to regions, rock cover shall be employed on the amendabdity of the disposal system to be impracticable or the advantages of onsite slopes of the impoundment system. The NRC accommodate increes, d capacities without bunal clearly outweigh the benefits of will consider relaxing this requirement for degradanon m long.tr em stabd.ty and other reducmg the perpetual surveillance extremely gentle slopes such as those which performance factors shall be evaluated. obhgations. they may exist on the top of the pde.
IJcensees or applicants may propose Cntenon 3-ne "pnme opuon" for ne followmg factore shall be considered alternatives to the specific requirements in disposal of tailings is placement below grade. in establishing tha final rock cover design to this Appendix.ne alternative proposals may either in mines or specially excavated pits avoid displacement of rock particles by
l l
l Fedwal Register / Vol. 49. No. 228 / Monday. November 26. 1984 / Proposed Rules 46423 human end ammal traffic or by natural smis are to be relied upon for seepaire parameters such as permeabihty shall not be process. and to prelude undercutting and control. tests shall be rimducted woh determmed on the basis of laboratory I pipmg: representatne Sisimes solutions and Llav analysis of samoles alone a sufCcient
- Shape. size, compossuon. and gradation maiensis to confirm inat no significant ,imount of field testmg le it.. pump testsi shmil of rock particles lescepons beddma m.tenal delenoration of premeabihty or sistmity be condui.ted to ensure muiu.i field pniverties everage particles size shall be at lease cobble properties will occur with cuntinous espnsure size or greatert-, .re edequatelv understood. Ibshng shait be of clay to taihngs solutions. Tests shall be run tunducted to .ilow eshmesma enemi..orphon
- Rock cover thickness and zonma of for a sufficiene penod of hme to reveal any attenuahon properties uf underlymg soi! and parucles by size: and effects if they are going to occur Dn so.ne n n k.
- Sleepness of undertymq slopes. cases detennnition has been obseru d to indmdual rock fragments shall be dense.
- Locahon. estent. quehty. capacity and uccur rather rapidly after about nine months current uses of any groundwater et and near souno, and resistant to ubrasion. and shall be of esposurel).
the site.
free trom cracks. seems. and other defects
- Mill process designs which provide the that would tend to unduly mcrease their manmum practicdble recycle Cf solutions Furthermore. sieps sh.Il be taken dunng destruction by water and Imst actions. Week, stockpiling of ore 10 mmimize penerretion of and conserwahon of water lo reduce the net radionuchdes mio underlying soils: suitable (nable. or laminated aggregate shall not be input of liquid to the taihngs impoundment.
used.
- Dewetenng of to Imas by process methods include lanmg and/or compachon of Rock covenng of slopes may not be devices and/or in-situ dramane systems (At o m pocy , ,,, ,
required where top covers are very thick (on Critenon tria cases where waste the order of tom or greaterk impoundment new sites, dramage tailmes system shall be mstalled dewatered at the bottom ofbythe a - byproduct malenalis to be permanently slopes are very gende ton the orderof to h:lv impoundment to lower the phreauc surface disposed an earthen cover shall be placed or lesst bulk cover malenals have mherently and reduce the dnveng head for seepage. over tanhngs oc westes as the end of malhng favorable erosion resastance charactenstics: unless teste show tailings are not amenable operanons and. the waste disp) sal ares shall and, there is neghgible dramage catchment to such a system. Where m-situ dewslenng is be closed in accordance with a desagn i area upstream of the pde and good wmd to be conducted. the impoundment bottom which shell provide reasonable assurance of protection as descnbed in pomts tal and Ibi shall be gruded to assure that the drains a e control of radiokigical hazards tot til Be of this Cntenon. at a low point. The drams shall be protected effective for 1.000 years, to the extent Furthermore. all unpoundment surf ces by suitable filer matenuls to assure that reasonably achievable. and. in any case. for shall be contoured to avoid areas of drams remain free runnma. The drunnene
,, y,,,, ,00 years, and (ii) haut releases of concentrated surface runoff or abrupt or syseem shall also be adequately sized i g,g g ,, g ,
sharp changes in slope gradient. In addition assure good dramagel. and radon.220 from thonum byproduct to rock cover on slopes, areas toward which
- Neutralizanon to promote immobdization , ,,
surface runoff might be directed shall be well ofionic substances. escud an amaged miease rate of 20 protected with substanual rock coverinp Where grour.dwater impacts are occurnng pgocunas penquam mter per second W rap). In addition to providmg for stabdity of at an existing site due to seepage, action shall rn % in cornputmg mquimd tailings com the impoundment s)siem itself. overall be taken to alleviate condshons that lead to thicknusn mmtum m soils in excm of stability, erosion potentsal and excessive seepage impacts and restore amounta found nonnelly m similar soils in geomorphology of surroundirig terram shall groundwater quality. The specific seepage simder circumstances shall not be be evaluated to assure that there are not control and groundwater protection method. conadered. Direct gemma exposure from the ongoms or potential processes. such as gully or combmation of methods. to be used must tadings or wasies should be reduced to erosion. which would lead to impoundment be worked out on a site-specific basis. background levels. He effects of any thon mstabdity. Techmcal specifications shall be prepared to synthetic layer shall not be taken mto le) The impoundment shall not be located control motellation of seepage control account in determmmg the calculated rudon neat a capable fault that could cause a systems. A quality assurance. testmg. and exhalation level. If non. nod matenals are mamamus credible earthquake larger than inspection propam, which mcludes proposed as cover matenais,it must be that which the isnpoundment could supervision by a qualified eneneer or demonstrated that such matenals will not reasonably be expected to withstand. As scientist shall be estabhshed to assure the crack or degrade by differential settlement.
ased in this cntenon. the term " capable fault" specifications are met. weathenng. or other mechanism. over long-has the same meanmg as defmed in section in support of a tailings disposal system tenn um mienals.
Illigt of Appendix A of to CHt 100.'!he term proposal the applicant / operator shall supply Near surface cover materials (i e.. within
" maximum cmdible earthquake' means the mformation concernmg the followmg. the top three meters) shall riot melude waste earthquake which cause the maxamum
- The chesiecal and radioactive or rock that contams elevated leve6s of vibiatory ground motion based upon an charactensucs of the waste s'lunons. radium: soils used for near surface cover evaluanon of urthquake potennal *The charactensucs of the underlymg soil must be essennally the same. as far as considerms the regional and local geology and geologic formatius particularly es they radioactivity is concerned, es that of and seismology and spec 3fiC CharactenshC3 will Control transport of contammarns and surroundmg surface sods. This,is to ensure i
oflocal subsurface matenaL ~ solutions. His shall include detailed that surface redon exhalanon is not l if) De rmpoundment. where feasible. mformation concerning extent. thickness. sigmficantly above background because of
)' should be designed to mcorporate features which will promote deposihon. For example, umformity shape. and onentation of the cover matenal itself.
The design requirements in this entenon underlying strata. Hydraulic gradients and i
design features which promote deposition of conductivities of the vanous formauons shall for longevity and control of redon releases sediment suspended in any runoff which be determined. shall apply to any portion of a licensed and/
flows mto the impoundment area might be This informanon shall be gathered from or disposal site unless such portion contums j unlized the oblect of such a design feature bonngs and field survey methods taken a concentration of radium in land. averaged would be to enhance the thickness of cover withm the proposed imooundment area and over nme, m surroundmg areas where contammiants ' The standard apows to design. Moniiorina for l Cntenon 5-The followmg shall be rmght migrate to groundwater. The redon after metauen of an appropnaieiy cesigned
~
considered: mformation gathered on boreholes shall cover is noi required
- Installation of bottom Imers lWhere mclude both geologic and geophysicallogs m 'This everste snell apply to the entire surface of synthecc hners are used. a leakane detection sufficient number and degree og each dispom aru over penods of ai fusi t year.
system shall be mstalled immediately below sophisticanon to allow determmmg but snon comoeied to 1%ms Raen wihme the Imer to ensure maior failures are detected significant discontmuines. fractures, and inne bour urmuni bwmouct maieneis and (nnn if they occur. he is in addition to the channeled deposits of high hydraulic d" groundwaier inonitonnq prettam conducted conductivity. If field survey methods are 7,"n['",[a ,u,,7,7nYo,7, 7,[,8,
,is provided m Cntenon 7. Where clay (mers , cyr, p sa for each site. The siendard. nowever.
used, they should be m addition to and appues ons, io amissions from uraneum hvoroduct are proposed or relatively thm. in situ clay califibrated with borehole loggmg. Hydrologic meienals m ihe eunosonere.
aw e
46424 Federal Register / Vcl. 49. No. 228 / M:nd2y. November 28. 1984 / Proposed Rules over areas of 100 square meters. which. as a needed corrective actions have been based on Commission.epproved cost result of byproduct matenal does not exceed identified and implemented. All such the background level by more than:(i) 5 eenmates in a Commission. approved plan cessations. corrective actions, and re-starts picocunes per gram (pCi/g) of radium-226. or. for-(1) Decontammanon and l shall be reported to the appropnate NRC in the case of thonum byproduct matenal decommisanomns of mdl buildmes and the radium-221 averaged over the first 15 regional office as mdicated m Cntenon 8A. in mdhng site to levels which would allow wntmg. withm to days of the subsequent unrestncted use of these areas upon cannmeters (cm) below the surface. and (h) restart.
15 pCi/g of radium-228. or, m the case of ~
decommissioning. and (2) the reclamation of To control dustmg from tailmgs, that tadings and/or waste disposal areas in thonum byproduct matenal radium-228. portion not covered by standmg liquids shall avereged over 15-cm thick layers more than be wetted or chemically stabitzad to prevent accordance with technical entena dehneated 15 cm below the surface. in Section I of this Appendix. The beensee or mmimize blowing and dustmg to the r.risenon 7-At least one tull mr prior in shall submit this plan m contunction with an maximum extent reasonably achievable.This any maior site construction. a preoperational environmental report that addresees the requirement may be relaxed tf tadings are momtonng prostam shall be conducted to expected environmentalimpacts of the effectively sheltered from wtad. such as may provide complete baseline data on a milling be the case where they are disposed of below mdhng operanon decommissionmg and s,te and its enwrona. Throughout the teihngs reclamation, and evaluates grade and the tadmga surface is not expose's construction and operating phases of the mill to wmd. Cons.dera tion shall be given in alternatives for mitigeung these imracts. The en operauonal monitonne program she;l be planning tathose disposal programs to surety shall also cove, the payment of the conducted to measure or evaluate compliance methods which would allow phased covering charge for long. term su.vedlance and control with applicable standarda and regulations: to and reclamanon of tedings impoundmenta murred by Cntenon 10. In establishing evaluate performance of control systems and spw:1fic surety arrangements, the licensee's procedures: to evaluate environmental since this will help in controlles pernculate and radon emissions durtng operation.To cost estimates shall take into account total impacts of operation: and to detect potential control dustmg from diffuse sources such as cosis that would be incurred if an tons. term effects. tadings and are pede where automatic inde wndent contractor were hired to perform Cntenon 8-Milling operations shall be controls do not apply, operators shall develop the c ecommissionmg and reclamanon work.
conducted so that all airborne effluent in order to avoid unnecessary duplicatfos wntten operstmg procedurea spectlytng the releases are reduced to levels as low as is end expense, the Commission may accept reasonably achievable. The pnmary means of methods of control which wdl be utdiaed.
Maling operanons producing or involwas financial surenes that have been accomplishms this shall be by means of thonuni byproduct matenal shall be coneohdated with financial or surety-emission comrols. Institutonal controls, such arrangements established to meet conductert en sue.h a m4nner as to proud*
as extendmg the site boundary and exclusion reasonable assurence that the ermuel dose tequirements of other Federal or state area, may be employed to ensure that offsite agencies and/orlocalgovernmg bodies foe equivalent does not exceed 25 mdlitems to exposure limits are met, but only after all sd decombnmg. h=*ation, practicable measures have been taken to the whole body. 75 mdhrome to the thynod.
and 15 millireme to any other orgen of any reclamanon, and long. term site surveillance controleaussons at the source. member of the pubhc as a result of exposume and control provided such arrangements are Notwithstandmg the existence of individual dose standards, stnet control of emissions is to the planned discharge of radioscuve considered adequate to seusfy these "*
matenals redon-2 0 and its daughters requirementti and that the poruon of the necessary to assure that population excepted. to the general environment.
exposures are reduced to the maxtmum surety which covers the dgcommissioning extent reasonably achievable and to avoid Uranium and thonum byproduct matenals and reclamation of the mdl. mdl tadings site shall be managed so as to conform to the and asecciated areas, and the long. term .
site contammation. ne greatest potennel funding charge is clearly identified and apphcable pronsions of Title 40 of the Code sources of offstte radiation exposure (aside from redon exposurel are du.tmg from dry of Federal Regulations. Part 4 0. " Ore Mimg committed for see in accomplishing these surfaces of the tading disposal area not and Dressms Pomt Source Category Efiluent stunnes.h heensa e sumty mechanism eg.cred by tadmss solution and emissions IJmitations Guidelines and New Source will be renewed annually by the Commission Performance Standards. Subpart C. Uratuum. to assure that sufficient funds would be from yellowcake drying and packagmg Radium. and Vanadium Ores Subcategory - svadab.e for completion of the reclamation operationa. Dunng operations and pnor to as coddied on January 1.1963. plan if the work had to be performed by an closure. radiation doses from radon emismons from surface unpoundments of Cntena gA-Dady inspecucas of tatlings independent contractor. The amount of surety uranium or thorium byproduct matenals aball or wasts retention systems shall be liabihty should be adjusted to recosmza any be kept as low as is practicable. conducted by a quahfied engineer or scientist increesee or decreases resulting from Checka shau be made andlagged hourly of and documented. De appropnate NRC inflanon, changes in engineering plana, regional office as tndicated in Appendix D of acuntics perfonned and any o$er til parameters (e.g. differential pressures and 10 CFR part n or the Direc:or. Office of condiuons effecting costs. Regardless of scrubber water flow rates) whch determine inspecuoc and Enforcement. U.S. Nuclear the efficiency of yellowcake stack emission whether reclamation is phased through the enetrol equipment operation. It shall be Resulatory Comnussion. Washington. DC hfe of the operauon or takes place at the end 205! 5. shall be munediately neufied of any of operanons. an appropnate portion of aete. mined whether or not condiuons are fadure in a tadings or weste retention system within a range prescribed to ensure that the surety habdity shall be retained untd final equipment is operstmg consistently near whn:h results m a release of tadings or weste compliance with the melemeuon plan se peak efficiency: correcove action shall be into unrestncted areas, and/or of any determmed. This wiu yield a surety that is at taken whea performance is outside of unusual conditions (condiuona not least sufficient at all umes to cover the costs prescnbed ranges. Effluent control devices contemplated in the design of the retention of decommissiorung and reclamauon of the system) which if not corrected could mdicate areas that are expected to be disturbed shall be operanve at a!! tunes dunne drymg (nd packagirig operaths and whenever att the potential orlead to failure of the system before the next licanas renewal ne term of is exhausting from the yellowcake strek. and result in a release of taQage or weste the sumty mechamse must be open ended, Drying and packagmg operations sitsll into unrutncted areas. unless it can be demonstrated that another t;rminste when controla are moperative. 14 TimaalCateno arrangement would provide en equivalent When checks mdicaf t the equipment is rot level of assurance. This assurance could be gerstmg withm the range presenbed for Catenon 9-financial surety arrangements provided with a surety instrument which is shall be estabhshed by each mdl operstor written for a specified penod of tune (e.g. 5 peak efficiency, acuor's shall be taken to petor to the commencement of operations to years) yet which must be autoanatically restore parameters to time presenbd range.
assure that sufficient funds will be avadable renewed unless the surety notiflee the When this cannot be done without shotdown to carry out the decontanunanon and beneficiary lthe Commismon or the State tad repairs. drymg and packagmg operations decommissioning of the md! and site and for shall cease se soon as practicable. regulatory agency) and the pnncipal(the the reclamation of any tadings or weste Operations may no be re-started after disposal arena. N amount of funds to be licensee) some reasonable tune (e.g.,90 dayal l
l pnor to the renewal date of their intenuon i cenation due to off. normal performance untd ensured by such sure'y arrangements shall be not to renew. !n such a situa 1
e
l i
Federd Register / Vol. 49. No. 228 / Monday. November 26. 1984 / Proposed Rules 4&t25 requirement still eusts and the licensee for the disposal of any such byproduct would be required to submit an acceptable retamme ultimate custody of the site where replacement surety withm a bnef penod of malen41. or is essential to ettsure the long term stabihty of such disposal site. shall be 14 lines. or wastes are stored to confirm the time to allow alleast 60 days for the mieartly of the stabihred tesiinits or waste regulatory agency to collect. transferred to the UnHed States or the State m which such land is located, at the option of systems and to determine the need. if any. for j Proof of forfeiture must not be necessary to such Sisie. In view of the fact that physmal mamtenance and/c,r monitonng. Results of ;
collect the surety so that in the event that the the mapection snad be reported to the hcensee could not provide an acceptable isolation must be the pnmary means of long- Commission within 60 days followir.g each replacement surety within the required time, term control. and Gosernment land ownership is a desirable supplementary inspection. The Commission may require the surety shali be automatically collected measure ownership of certain severabie more frequent site mspections if. on the basis pnor to its expiration. The conditions of a site-specific evaluation, such a need subsurface interests Ifor example. mmeral desenbed above would have to be clearly appears necessary due to the features of a stated on any surety mstrument which is not nghtsi may be determmed to be unnecessary to protect the pubhc health and safety and particular tailings or waste disposal system.
spen-ended. and must be agreed to by .11 the environment. in any case however, the parties. Fmancial surety arrangements apphcent operator must demonstrate a g Dated at ,Washmgton. DC, this ?cth day of j generally acceptable to the Commission are:
(al Surety bonds; sennus effort to obtem such subsarface For the Nuclest Regulatory Commission. 1 nghts. and must, m the everst th4t certain lbl Cash deposits; nghts cannot be obtemed. pnsvide Sannseil. M (c) Certificates of deposit; Secretary of the Commission.
idl Deposits of gosernment set; unties: notification
- m local public and records of the % -%m, face that the land is bems used for the (el irrevocable letters or lines of credit: and _
(f) Combmations of the above or such other daposal of radioactive matenal and is subiect to either an NRC general or specific types of arrangements as may be soproved license prohibiting the disruption and by the Commission However. selfinsurance, or any arrangement which essentially disturoance of the tathngs. In some rare NNM#
constitutes seifinsurance le.g., a contract cas% such as may occur with deep buttal where no oneomg site surveillance will be g g gD gMD with a state or Federal agency). will not satisfy the surety requirement smce this required. surface land ownership transfer requirements may be waived. For licenses Ground Watee Protection and Ottsee proudes no additional assurance other than issues that which already esists through hcense issued before November 8.198L the requirements. Commission may take mto account the status Aossocv: Nuclear Regulatory )
of the ownership of such land. and meerests Commission.
Cntenon to- A mmimute charge of therem. and the abihty of a heensee to
$'50.000 (1978 dolleral to cover the costs of transfer title and custody thereof to the ACnose: Advanced notice of proposed I
long-term surveillance shall be paid by each United States or a State, mill operator to the general treasury of the rulemakmg.
United States or to an appropnaie State D. If the Commission subsequent to title agency pnor to the termination of a uranium transfer determmes that use of the surface or suasesAfrY:The Nuclear Regulsfo~cy" or thonum mill hcense. subsurface estates. or both. of the land Commission (NRC)is considering If site surveillance or control requirements transferred to the United States or to a State further amendments to its uranium mill at a particular site are determmed. on the will not endanger the pubhc health, safety, tailings regulations. The future j basis of a site-specific evaluation, to be welfare. or environment. the Comruission rulemakmg proceeding for which this may pennst the use of the surface or significantly greater than those spectiied m notice is issued is primarily intended to Cntenon 12 (e g if fencing is determme<6 to subsurface estates. or both. of such land in a mannerconsistent with the provisions incorporate ground water protection be necessarvl. sanance m fundog requirements may be specified by the provided in these entena. If the Commission provisions and other requirements Commission. In any case, the total charge to permits such use of such land. it will provide established by the Environmental the person who transferred such land with Protection Agency for similar hazardous cover be suchthe that.costs oflong-term w.th an surveillance shall the nght of first refusal with respect towastes assumed 1 percent such into NRC regulations. This se of such land. action is necessary to make NRC j annue. real mterest rate. the collected funda will yield mterest m an amount sufficient to E. Maienal and land transferred to the requirements similar to EPA standards United States or a State m accordanc.e with as required oy provisions of the cover the annual costs of site surveillance.
The total charge will be adiusted annually this Cntenon shall be transferred without pnor to actual payment.to recogmze mflation. cost to the United States or a Act. State other than Uramum Mill Tailings Radiatio <
admmistratn e and legal costs mcurred in The mflation rate to be used is 'that mdicatedcarryme out such transfer.
by the change in the Consumer Pnce Index DATE:The comment period expires pubbshed by the U.S. Department of Labor. F.The provisions of this Part respecting January 25.1965. Comments received Bureau of Labor Statistics.
transfer of title and custody to land and
. taihngs and wasies shall not apply in the after this date will be considered ifit is M Sne and Byproduct AfoterialOwnership case oflands held m trust by the Umied practical to do so but assurance of Cntenon it- States for any Indian tnbe or landa owned by consideration may not be given except A. These entena relatmg to ownetship of such Indian tnbe subie:t to a reatnction as to comments received on or before taihngs and their disposal sites become agamst abenstion imposed by the United th date.
effective on No6 ember 8.1981, and apply to States. In the case of such lands which are AnnamnesS: Mail Comments to used for the disposal of 1*yproduct matenal all heenses termmated. tatued. or renewed as defined in this Part, the licensee shall Secretary. U.S. Noclear Regulatory after that date.
B. Any urantum o enter mto arrangements with the Commission Cammission. Washington. DC 20555, or taihngs hcense an,r thonum mdhng hcense as may be appropnate to assure the ions. Attention: Docketmg and Servtce ali contam such terms and condmons as the Commission term surveillance of such lands by the United Branch
- or deliver commenta to Room States. 1121.1717 H Street NW. Washington.
determmes necessary to assure that pnor to l termination of the bcense. the hcensee will IV. LontTerm Site Surved/once DC between 815 a.m. and 5 00 p.m. l comply with ownership requirements of this weekdays.
cntenon for sites used for tailings disposal. Cntenon 12-The final disposition of C. Title to the byproduct matenal hcensed taihngs or wastes at milling sites should be Pon Pusinean sospossesAnoss cosnAC'r:
such that ongoms active mamtenance is not Robert Fonaer. Office of Executive Legal under this Part and land. mcludmg any necessary to creserve isolation. As a Director, telephone (301) 492-8602, or ;
mierests therem tother than land owned by the Umted States or by a Statel which is used mmimum. annual site mspections shall be Kitty S. Dragonetie. Division of Waste i
conducted by the govemment agency Mansgement. U.S. Nuclear Regulatory 4
F l
. I
46428 Federal Register / Vol. 49. No. 228 / Monday. November 26. 1984 / Proposed Rules Commissron. Weshington. DC 20555. would then incorporate within NRC alternative proposals as rootme telephone (301) 427-4J00. regulations elements of EPA's SWDA licensmg actions.
supptassaNTARY WaPOatsAT1ose The requirements al*eady imposed by EPA.
Nuclear Regulatory Commission has and establish any further requirements I. Background o1 the Ground Water g
today proposed modifications to its necessary for the NRC r :. ave SWDA-existmg null tailines reaulations in comparable stonM, as called for by The SWDA requirements imposed by Appendtx A to 10 CR Part 40 for the Section 84 of the Atomic Energy Act of the EPA in its rule published October 7.
purpose of conforming them to generally 1954. as amended. 1983 (48 FR 45926) were desenbed 3y applicable stendards promulgated by The Commission considered further the EPA in that Notice as follows:
the Environmental Protection Agency revisions to Appendix A to conform it to " Consistent with the standards EPA IEPA) on September 30.1983 (see 48 FR the physical stabihty aspects of the EPA issued under the SWDA for hazardous 45928: October 7,1983). This advance standard. but did not propose them. The wastes (47 FR 32274-32388. July 28.19A2) notice of proposed rulemaking (ANPRM) EPA standard requires that the final the standard for taihngs pdes has two announces that the Commission is cover design provide reasonable parts:(1) A'pnmary' standard tnat considenng proposmg further assurance of e rfective contro! "for one requires use of a liner designed to modifications to its regulations in to thousand years. to the extent reasonably prevent migration of hazardous CFR Part 40. to satisfy cartam provisions achievable and in any case, for at least substances out of the impoundment. and of the Uranium MillTradman Radiation 200 years." The EPA's numencal (2) a 'recondary' ground water Control Act of 1978 (UMTRCA). and longevity standard takes a different protection standard requiring. in effect, requests public comments on pertment approach to stability than do the NRC that any hazardous constituents that issues and questions. requirements. In Appendix A. the NRC leak from the wasta not be ellowed to On October 7.1983, the EPA published established numerous presenptive degrade ground water. The pnmey generally applicable standards for the requirements for specific design features standard apphes to new portions of new mansgement of uranium and thorium in order to assure stability without or existing waste depositones. The byproduct matenal. The standards were active mamtenance for en indefinite . secondary standard applies to new and developed by the EPA in a manner to pened of time following closure.The existing portions the point of satisfy the provisions of section 275 of EPA rule sets a performance standard compliance being at the edge of the the Atomic Energy Act. as amended, for a limited tane penod. In addition. the waste impoundment. The specific that for nenradiological hazards, the preamble to the EPA standard and the hazardous substances and standards "* *
- shall provide for the supporting environmental evaluation concentranons (i.e backgrdund levels) protecnon of human health and the indicate that the EPA consciously that define noncomplignce with the enviroament consistent with *e considered the acceptability of relying secondary standard ht each site will be standards required under Subtttle C of on active mamtenance ta provide established for uranium mill tailings by the Solid Wasta Disposal Act. as stability following closure, and did not NRC and Agreement States. ne SWDA amended, which are applicable to such prohibit it. Rather, the E.PA standard rules, however. permit alternate hazards." To achieve t!us goal the EPA requires that. for nonradiological concentration limits to be established included within its requirements hazards the need for active maintenance when they will not pose "* * *a published October 7.1983 selected only be memnad.NRC's Appendix A subatantial present or potential hazard provisions from its regulations issued flatly pit,hibata any planned reisance on to human health or the environment" as under the Solid Waste Disposal Act active memteaance. long as the alternate cencentration limit (SWDA) *uy cross referencmg the SWDA De Commission requests comments is not exceeded. 'lhe rG also allow provisions. These specific provtsions are on whetherit should delete or modify (sic) ' hazardous constiW>nts' to be now in effect and the NRC is additional provisions of Appendix A exempted from coveregrey the permit consid.ering undertaking a rulersaking including prescnpuve requirements for based on the same entenun. EPA which would clanfy its regulations by specific design features which may not determines the alternate concentration including within them those SWDA be necessary to meet the EPA standard. standard or exemption under the requirements selected by the EPA for The presenpave requirements ut SWDA: EPA's concurrence would be application to uranium and thonum mill question melude those for mmimizing required under tne proposed standards tailings. upstream drainage area. siting where for tailings."
The rulemaking under consideration there is good wind protection relatively The EPA went on to further desenbe would also be intended to satisfy a flat slopes. mandatory vegetative or the pnmary statdard, pnmanly requirement placed upon the NRC mder rock cover cobble size rock. high q.iality consisting of the hner riesign section 84 of the Atomic Energy Act of rock cover, and rock armonng. The requirements and clanfy the secondary 1954. as amended. to "* *
- insure that Comnussion also considered deleung standstd. by stymg-the management of any byproduct the prohibmon on reliance on active "
"TS* May standard. 40 CFR matenal * *
- is carned out in such mamtenance. rnodifymg Cntenon 3 26411. can usally be satisfied only by manner as conforms to general manda:ing below grad.t disposal as the usmg liner matenals (such as plastics) requirements established by the pnme option. and deleting the that can retam all wastes. Exemptions Commission, with the concurrence of the requirement for ba:kground rsdium permitting use of other liner materials (EPA) Admimstrator, which are. to the concentrations in cover matenals. Relief (such as clay) that may release water or maximum extent practicable. at least from these retamed provisions is small quanuties of other substances or, comparable to requirements applicable available throuah case-by-case m some cases. permittmg no liner may to the possession. transfer, and disposal propcsals by licensees as noted m be granted only if nusretton of of similar hazardous matenal regulated proposed additions to the introduction hazardaus consutuents into the ground by the Administrator under the Solid of Appendix A of to CFR 40.The Waste Disposal Act as amended."ne water or surface water weeld be Commissten seeks comment on whether prevented mdefinitely * * * "
- rulemaking under consideranon. which this is sufficient flexibility in vtew of the is the primary subject of this ANPRM. "Under these standards. a!! new ~
Commission's intent to consider waste storage areas (whether new e
Federal Register / Vcl. 49. No. 22.') / M:nd:y. N:vember 26. 1984 / Proposid Rulis 46427 waste facilities or expansions of existmg and the following sections of the SWDA 1954, as amended. Consistent with that piles) are subject to the pnmary regulations:
stendard--.the liner requirement. If new authonty and in accordance with
. Subpart F:
wastes are added to an existing pile. section 64c. of that Act. the Commission 40 CFR 264 91 Required programs has the discretion to review and however the pile must comply with the 40 CFR 264.95 Pomt of compliance secondary standard-the hazardous approve site specific alternatives to 40 CFR 264.96 Compliance pertud constituent concentration standards for standards promulgated by the 40 CFR 264.97 General ground water health and environmental protection. momtonng requirements Commission and by the Administrator of Whether for a new or existmg pile. if the 40 CFR 264.98 Detection monitoring the Environmental Protection Agency. In secondary standards are found not to be program the exercise of this authonty, section satisfied and subsequent corrective 40 CFR 264.99 Compliance momtonng 64c. does not require the Commission to actions fail to achieve compliance in a program obtain the concurrence of the reasonable time the operator must ii. Subpart G: Administrator in any site specific cease depositing waste on that pile." altemative which satisfies Commission Also in its October 7,1983 Notice. the 40 CFR 264.117 Post-closure care and use of property requirements for the level of protection EPA stated that " EPA's responsibilities for public health, safety, and the iii. Subpart K:
to establish standards under section 206
- environment from radiological and 40 CFR 264.226 Monitonna and nonradiological hazards at uranium mill i d afi r part of o$o ng inspection (ohmpoundmmt hen. as taihngs sites. As an example, th sections of the SWDA regulations: applicable
- i. Subpart F: 40 CFR 264.228 Closure and postclosure Commission need not seek concurrence care. as applicable." of the Administratorin case-by-case ,
40 CFR 264.92 Ground water protection The above quotations from the EPA's determinations of alternative l standard concentration limits and delisting of 40 CFR 264.93 Hazardous constituents October 7.1983 Notice serve to clanfy the substance of EPA's standards, the hazardous constituents for specific sites.
40 CFR 264.94 Concentration limits It should be understood that the (These three sections are modified and respective agency responsibilities under the UMTRCA. and the nature and scope proposed conforming regulations deal adopted as i 192.32(a)(2))
of the rulemaking the NRC is herein with the exercise of the Commission's 40 CFR 264.100 Corrective action resp naibility and authonty under the program considenng undertaking. The NRC has (This section is modified and adopted as reviewed the language quoted and, with At rnic Energy Act of 1954, soMy as i 192.33) the exception of the junsdictional regards uranium mill tailings sites and ii. Subpart C: concerns discussed in the following have no broader connotation.
section believes it to be factually A ' The Commission believes that 40 CFR 264.111 Closure performance correct and a fair representation of the licensee proposals for alternatives can standard issues addressed.
(This section is adopted as part of be an important and effective way to IL Commission Authority and help deal with the problems associated i 192.32(b)(1))
R"P bili'Y with implementing the new EPA iii. Sub9 art K: standards.The Commission expects that 40 CFR 264.221 Design and operating Section 64c. of the Atomic Energy Act states that: A Licensee may propose it may require several years to have its requirements for surface alternatives to specific requtremer.ts conforming regulations fully in place. It
' expects to use the flexibility provided (This e ti i modified and adopted as Co i s on e s act Such D "" " " "" "
1192.32(aK1))" and approve alternative proposals from "NRC's responsibilities under alternative proposals may take into acrAunt local or regional conditions, licensees. Section 84c. provides NRC UMTRCA are to implement EPA's incliding geology, topography. sufficient authority to independently standard and to *
- insure that the hydrology and meteorology. The approve alternatives so long as the management of any byproduct Com. tission may treat such attematives Commission can make the required matenal * *
- is carrmd out in sui h 4 as satirfying Commission requirements determination.
manner as * *
- conforms to general requirements established by the if the Commission determines that such alternatives will achieve a level of III. Issues for Public Comments Commission.
Admmistrator, which withare, thetoconcurrence the of the~ stabilization and contamment ofThe theNRC requests public comment on sites concerned, and a level of the general question of how best to maximum extent practicable, at least protection for public health, safety. and proceed to fulfill its responsibilities comparable to requirements applicable the environment from radiological and to the possession transfer, and disposal under the Atomic Energy Act, with of similar hazardous material regulated nonradiological hazards associated with respect to establishing SWDA.
such sites, which is equivalent to to the comparable requirements for the by the Administrator under the SWDA.
as amended.' EPA will insure that NRC's extent practicable, or more stnngent management of mill tailings, to the regulations satisfy these admomtions than the level which would be achieved maximum extent practicable. In this by standards and requirements adopted through its concurrenca role. Relevant and enforced by the Commission for the context. comments are requested on SWDA reeulations are those embedded same purpose and any final standards choices and decisions the NRC must in Subparts A (except Section 264.31. B. promulgated by the Admimstrator of the make concerning issues and actions that C. D. E. F. C. H. and K. Examples of are within its discretion. Comments on Environmental Protection Agency in areas which NRC must address in accordance with section 275.
the basic value. validity, lawfulness. or dischargmg these responsibilities appropnateness of the EPA's SWDA The Commission histoncally has had involve functions under the six sections the authonty and responsibility to regulations the SWDA. or the UMTRCA listed immedia'ely above which are "" " ' "9 " d ~
regulate the activities of persons incorporated into these EPA standards, licensed under the Atomic Energy Act of Js
43433 Fedoesl Respster / #ct 49. N2. 228 / Mind:y. N vember 28, 1984 / Proposed Rules l
A. Tentative NilC Approach for Ground B. Issues and Questions (8) How detailed should NRC's WaterProtection The NRC seeks public input with mgulations be, and what should and '
The NRC has developed a tentative respect to all aspects of the question of should not be required in areas such as approach to place SWDA-comparable how best to fulfillits responsibilities well constructfon. sampling and sample requirements m its regulations, based on under section 275 and M of the Atomic analysis,determmations of annual planning and development efforts Energy Act of 1954. as amended. for average and seasonal background conducted to date. His approach is protection of ground water. The NRC concentrations minimum detection tentative, and is made a part of this also seeks public comment with respect Ievels. statistical treatment of data and public announcement so efforts spent in to the following issues and questions (In detemiinations of statistically vidi bli t ht b providing public comment. commenters significant differences, mcordkeeping better gu ded. It iny are requested to provide the basis in and reporting, quality assurance. etc.?
development of additions to NRC fact for any opinions offered or (9) To what extent must the NRC regulations (either a block insert at the assertions made): provide supporting environmental end of to CFR Part 40 or perhaps by (1) Should the SWDA-comparable impact analyses considering the nature creation of a new Part 41) which would requirements to be placed in NRC of the requirements under consideration, contain the entire set of SWDA- regulations be explicitly restated to some of which have already been coinparable requirements. prec sely duplicate EPA's language, or imposed by EPA and are effective?If should substantive requirements be supporting envtromenial evaluations are The additions would be organized in paraphrased? needed for SWDA-comparable rule terms of design. operating, closure. and (2) Should-all of Subpart F be changes except for the requirements post-closure requirements, and would to included? What should not be included? already imposed by the EPA. should the the fullest extent feasible, be a complete NRC continue to proceed with only a (3) What should be included in a statement of the requirements without listmg of hazardous constituents for mill s nale rulemaking to establish a complete reference to EPA requirements in Title tailings to replace the 375-item long list set of SWDA-comparable requirements?
ao of the Code of Federal Regulations. In in Appendix VIII to 40 CFR Part 261 (10)Is the flexibility cited in the this way, the requirements could be referenced in 40 CFR :84.937 Should proposed addition to the Introduction of stated in a self. contained, unifled constituents not usually present or not Appendix A 10 CFR Part 40 sufficient or mannerin one place. Coverage would present above trace levels be included? should the NRC develop and support include at least the SWDA requirements What cntena should be applied to additional modifications to conform to already imposed by EPA (40 CFR decide what constituents abould be the physical stability aspects of the EPA 264.92-94. 264.100. 264.111. and 264 221). included? standard?
and appropnate portions of the SWDA (4) The NRC must establistrSWDA*
requirements mentioned by the EPA comparable requirements to the IJst of Subjects in 10 CFR Part 48 explwitly as " examples of areas which maximum extent practicable. In this Covernment contracts. Hazardous NRC must address"(these include 40 context. what is practicable given matenal--transportation. Nuclear CFR 264.95-99. 264.117. 264228. and current practice and the current state of materials. Penalty. Reporting and 264.228). technology? recordkeeping requirements. Source The rulemaking betas considered for (5) Should NRC retain the basic matenal. and Uramum.
proposal by the NRC may include most sequence embodied in Subpart F where Dated at Washmaton. DC, this :mh day of of Subpart F (40 CFR 264.90-100), due to licensees who detect ground weter November 19se.
the close relationship and contammation progress through a For the Nuclear Regulatory Commasanon, interdependency of the separate graduated scale of action from Samuel l. Chilk.
provtsioris, and because all but 40 CFR detection monitonng. through seentaryof the comaumon.
l 264.90L "Applicabdity," is either imposed compliance momtonng. and on to % m.
l or mentioned as an example by the EPA. corrective action. with sigmficant time - caos roso.m The remamder of the EPA's SWDA delays all wed between steps while ee te ew ndi plemented? 10 CFR Parts 50 and 55
- . D. d K would Would it be advisable, practicable or be reviewed in developing a proposal to determine which of those requirements appropriate to require. for example, that Operator's Ucenses and Conforming would need to be incorporated in NRC all NRC licensees have approved Amendment regulauons to establish NRC compliance momtonng programs that requirements which are to the maximum are automatically activated and soawcw Nuclear Regulatory implemented when needed? Commission.
extent practrable, at least comparable to the EPA s SWDA requirements for (8) Should the basic SWDA schene acDow: Proposed rule.
for the timing and duration of a similar hazardous matenal.
" compliance" period. a " closure" period. sussssant'Ilie Nuclear Regulatory In developmg this proposal the NRC and a " post closure care" period be Commission is proposing to amend its would distinguish between substantive mamtained? What modifications, regulations to (1) clanfy the regulations requirements and EPA's procedural deletions, additions should be made? for the issuance oflicenses to operators permittirg requirements because it does (7) To what extent. how, and under and senior operators:(2) revise the not believe the UMIRCA mandate what conditions shotdd leak detection requirements and scope of wntten requires the NRC to adopt anf portion of systems under single-liner examinations and operating tests for the procedural permittmg aspects of impoundments be allowed to fulfill the operators and senior operators.
EPA's regulations. The NRC's requirements for a detection monitonng incluaing a requirement for a simulation established procedures forlicensing. program that otherwise requires a facility: (3) codify procedures for the inspection. and enforcement would be momtonna wellin the uppermost administration of requalification used with respect to implementation. aquiferf examinations: and (4) descnbe the form
,,e ENCLOSURE B
[7590-01]
1 NUCLEAR REGULATORY COMMISSION 10 CFR PARTS 40 and 150 Uranium Mill Tailing Regulations: Conforming NRC Requirements to EPA Standards AGENCY: Nuclear Regulatory Commission.
. ACTION: Final rule.
SUMMARY
- The Nuclear Regulatory Commission (NRC) is issuing amendments te its regulations governing the disposal of uranium mill tailings. The rule changes conform existing NRC regulations to the regulations pub-lished by the Environmental Protection Agency fcr the protection of the environment from these wastes. This action is being taken to comply with the legislative mandate set out in the Uranium Mill Tailings Radiction Control Act (UMTRCA) and the NRC Authorization Act for FY 1983.
DATE: These changes become effective (30 days aftte publication).
i ADDRESSES: Ccmments received on the proposed rule may be axamined at the Commission's Public Docket Room, 1717 H Street NW, Washington, DC between 8:15 a.m. and 5:00 p.m. weekdays.
FOR FURTHER INFORMATION CONTACT: Robert Fonner, Office of the Executive Legal Director, telephone (301) 492-8692, or Kitty S. Dragonette, Division ,
of Waste Management, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone (301)427-4300.
I 1
[7590-01]
SUPPLEMENTARY INFORMATION:
Introduction and Background The Nuclear Regulatory Commission (NRC) is issuing modifications to its regulations for the purpose of conforming them to generally applicable requirements promulgated by the Environmental Protection Agency (EPA).
These EPA requirements are contained in Subparts 0 and E of 40 CFR Part 192 (48 FR 45926; October 7.1983), are applicable to the management of uranium and thorium byproduct material, and became effective for NRC and Agreement State licensees and license applicants on December 6, 1983.
This action modifies previously existing regulations of the Commission to conform them to the EPA requirements, and incorporates certain of the EPA requirements into the Commission's regulations. The affected Commission
- i. .
regulations are contained in Appendix A to 10 CFR Part 40, which wa!.
promulgated in final form on October 3, 1980.(45 FR 65521). Proposed changes were published on November 26, 1984 (49 FR 46418). The comment period originally expired on January 10, 1985 but was extended ur.til February 10, 1985 (50 FR 2293, January 16,1985).
The modifications to Commission regulations issued herein incorporate
~
within NRC regulations some of the new EPA requirements. The action that the Commission will take with respect to the remainder of these new EPA requirements was the subject of an Advanced Notice of Proposed Rulemaking (ANPRM) which requested comment on that subject (49 FR 46425, November 26, 1984). Under Section 18(a) of Pub. L.97-415, the Nuclear Regulatory Commission Auchorization Act for fiscal years 1982 and 1983, the Commis-sion was directed to conform its regulations to EPA's with notice and opportunity for public comment.
2 1
[7590-01]
Overview of Comments on proposed Rule Changes Twenty-four commenters responded with 26 sets of comments. Six environmental groups, seven states, two Federal agencies, seven industry representatives, one pro-energy (pro-nuclear) group and one individual responded.
1 Comments were offered on both general issues and the specific changes in the proposed rule notice and reflected diverse views. A staff analysis of all the comments received is available.in the NRC's Public Document Room (PDR). The following discussion summarizes and responds to all comments of major or generic significance and to all comments that prompted additional rule changes.
a.-
Commission Authority and Responsibility Statement The notice included a statement on " Commission Authority and Responsibility." The statement summarized the Commission's policy on the exercise of its responsibility and' authority for mill tailings, including the authority to approve site specific alternatives proposed by licensees under section 84c of the Atcmic Energy Act (AEA).
Commenters were divided on this issue. The environmental groups and EPA disagreed with the statement. Industry advocated an alternate approach. In industry's view, reliance on the basic requirements of UMTRCA with respect to the jurisdiction of the agencies would be a
- tronger legal position and eliminate the need to rely on Section 84c.
One State supported the statement and the need for NRC and Agreement States to review and approve site specific alternatives to standards without EPA concurrence.
)
l 3 -
l
-e-
[7590-01] I 1
l I
EPA disagreed with NRC's interpretation of section 84c. EPA stated "Section 84c does not confer on NRC authority to approve or employ alter-native standards or to substitute its judgment for EPA's regarding the level of protection necessary to protect public health and the environment.
Rather it authorizes NRC to approve lor employ licensee proposed alter-natives to NRC's own general implementing requirements . . ." Further, EPA argued that its standard that requires EPA approval of site specific alternative concentration limits is within its authority, not NRC's under section 84c. In EPA's view, NRQ must also establish specific require-ments before it can consider alternatives to them. The environmental groups were in basic agreement with EPA.
Response: The Commission conducted an independent review of UMTRCA 1
and the legislative history surrounding this issue.
The Commission reaffirmed that it is authorized under section 84c of the AEA to grant exemptions from EPA's standards without obtaining EPA's concurrence. The basis for this conclusion covers four points. First is the belief that " specific Commission requirements" can be deemed adopted without a rulemaking proceeding. Section 84a(2) requires the Commission to ensure that tailings are managed in conformance with EPA's standards.
Section 84a(2) creates a statutory obligation by the Commission to enforce EPA's standards independent of whether the Commission adopts regulations which would clarify how the Commission would enforce those standards.
I Second, section 84c explicitly states that the NRC may approve alter-natives which, to the extent oracticable, would achieve safety levels equivalent to those which would be achieved by compliance with NRC's requirements and EPA's standards. Thus, the NRC is authorized to approve an alternative which does not provide the same level of protection of 4
[7590-01]
public health, safety and the environment which would be achieved if EPA's standards were complied with fully. Third, UMTRCA does not use the phrase
" implementing requirements." Section 84c refers to only " specific require-ments adopted and enforced by the Commission." This phrase is clearly intended to include all requirements adopted by the Commission to regulate mill tailings. The source of the adopted requirements is immaterial to the statutory scheme and may include EPA's detailed standards. Finally, EPA's comment does not effectively respond to the Commission's argument that EPA site specific concurrence in exemptions contradicts the prohibi-tion on EPA's issuance of a permit in section 275b.(2) of the AEA.
Comments questioning NRC's motives or intent are offset by the find-ings required of the Commission in section 84c in order to exercise the flexibility to approve alternatives. Assertion of legal right does not equate to an intent to abuse a right. The AMC jurisdiction issue is addressed in.the following section.
The Statement is repeated in this notice without change to reaffirm the Commission's position.
Procedural and Jurisdictional Issues The American Mining Congress ( AMC) presented extensive legal argu-ments on the EPA /NRC jurisdictional issue. The AMC comments focused on the following legal points: (1) Since its ratification of Reorganization Plan No. 3 of 1970, consistent Congressional policy has been to limit EPA standard setting authority for NRC licensed facilities to " generally appli-cable standards," meaning standards that are applicable outside site bound-aries and that impose no site specific design, engineering or management 5
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requirements; (2) Congress, in UMTRCA, adopted the division of jurisdic-i tion between EPA and NRC first established in the 1970 Reorganization '
Plan;.and (3) E/A's standards are not " generally applicable standards" and are therefore beyond the jurisdiction of EPA. Consequently, the EPA standards are a " mere nullity" of no legal force or effect and NRC is not legally bound to conform to the standards.
Response: As noted earlier, the Commission conducted an independent review of UMTRCA and its legislative history. The Commission concluded that EPA generally acted within its jurisdiction and found the AMC argu-ments flawed. The following points summarize the Commission's findings:
- 1. Before UMTRCA, , 'A, not NRC, had primary authority over both the radiological and non-radiological impacts from uranium mill tailings;
- 2. During Congressional deliberations over UMTRCA, NRC attempted to reduce substantially EPA's authority over radiological hazards of mill tailings by limiting it to EPA's " traditional" authority under Reorganiza-tion Plan No. 3, i.e., authority to promulgate only generally applicable, non-site specific radiological standards, applicable only outside the boundaries of the tailings sites;
- 3. EPA opposed the NRC's attempt to transfer to itself EPA's author-ity to regulate mill tailings. EPA's efforts were partially successful and resulted in a Congressional compromise which precluded EPA from prom- I ulgating site specific standards but which did not restrict EPA to standards applicable only outside site boundaries. EPA was also given concurrence I authority over NRC regulations for controlling non-radiological hazards.
- 4. Except for one instance, EPA acted within its jurisdiction under UMTRCA in setting environmental standards for managing radioactive emissions and hazardous chemical wastes from uranium mill tailings; and 6
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- 5. EPA exceeded its jurisdiction by stating that its concurrence would be required before the NRC could grant site specific case-by-case l exemptions from NRC regulations for implementing EPA's standards. The Commission believes that such a concurrence role by EPA also contradicts the 1983 amendment to UMTRCA which.added section 84c to the AEA.
Environmental groups and EPA commented on the legality of not meet-ing the six-month Congressional mandate to conform by April 1, 1984 and conforming in two steps. Commenters asserted that NRC's action is illegal, that it does not meet the explicit intent of UMTRCA, and that NRC should conform to the ground' water standards in 40 CFR 192 immediately. Concern that a four year rulemaking on ground water delays compliance with EPA's l
ground-water requirements was expressed. Commenters objected to NRC's !
position that conforming to EPA's ground water standards should be combined with developing a rule tha.t fully meets the mandate in Section 84a(3) to have general requirements that are comparable to EPA's requirements for similar materials regulated under the Solid Waste Disposal Act. EPA argued that the EPA standards in 40 CFR 192 already meet this requirement l to be comparable.
Response: The decisions regarding whether and how NRC should conform l
to the EPA standards involved complex legal, jurisdictional, and policy issues. The Commission carefully considered the implications of several alternatives and its authority and responsibilities before deciding on the course of action evidenced by the notices of proposed rulemaking and ANPRM. Further, Congress did not impose any penalty if NRC failed to meet the 6 months as it did with the loss of authority if EPA failed to meet its October 1, 1983 date.
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No health and safety or environmental impacts have resulted or will result from delay since the Commission believes that N'RC and the States are required to implement and enforce the EPA standards under section 275d of the AEA. in the interim until final conforming regulations are in place.
NRC has so informed its. licensees and Agreement States and is implementing the standard.
The scope and timing of the second-step rulemaking is still under consideration. Comments on the ANPRM are being analyzed. 'A simple rule change to incorporate the specific ground-water protection provisions of 40 CFR 192 is one option being considered.
One environmental grouo and industry urged that NRC delay conform-ing action until the legal challenges to the EPA standard in the Tenth Circuit are settled.
Response: .Since timetables for court action are highly uncertain
.and because the EPA standards are being implemented and enforced, the Commission sees no reason to delay conformance by rule. Obviously, if court action sets aside all or part of NRC's or EPA's rules, additional rule changes will be required.
Scope of Rulemaking Commenters offered a wide range of views on the scope of the rule-making. NRC was urged to undertake independent new rulemaking. An environmental group advocated complete revision of 10 CFR Part 40, Appen-dix A, as issued in October, 1980 to provide more protection from radon.
Industry argued that NRC must undertake a completely new independent rule-making to replace both the EPA and NRC rules. Industry asserted that EPA's standards are not adequately supported by analysis relating costs 8
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and risks and are outside4FA's jurisdiction and that NRC has provided no .
analysisestablishingtilatAppendixAofPart4brequirementsarereasonably .
related in. terms of ecst, risks, and benefits. A key point in industry arguments was the 1983 Pub.L.97-415 addition to section 84a(1),of the AEArequiringtheCommissiontoinsurethatthepah.gementofbyproduct material takes " . . . Anto account the risk to the public health, safety, and the environment, with due consideration of the economic costs and such other factors as the Commission determines to be appropriate." The industry arguments imply that th'is addition mandates a total reconsidera-tion and revision of NRC rules. Industry also noted the depressed eco-nomic state of the industry and early stabilization plans that have resulted since the 1980 rule. ~
Response: EPA developed and issued the standards in 40 CFR 192'under
,s the mandate in 275b(1) of the AEA. EPA's mandate included, "In establish-ing such standards, the Administrator shall consider the risk to the public health, safety, and the environment, the environmental and economic .
costs of applying such standards, and such other factors'as the Adminis-trator determines to be appropriate." NRC is conducting the present action under the mandate in section 275f(3) of the AEA. EPA ~was explic-itly charged to consider risk and economic costs. No mention of an inde-pendent risk / economic cost finding is explicitly required of NRC in con-forming. EPA has the lead responsibility and the Commission believes it' must assume that EPA met the mandate.
The Commission-views the mandate in 84a(1) as applying to all~ aspects of its uranium recovery program. The Commission believes that it can fulfill this mandate withoat further rulemaking. However, section 84a(1) should be emphasized in Appendix A to make it clear that the NRC will in 9
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fact consider risks and economic costs and site specific needs in general.
The insert to the Introduction paraphrasing section 84a(1) will explicitly i emphasize this point.
The Commission also believes that implementation of " practicable" should be consistent with the intent of section 84a(1) and current as low as reasonably achievable (ALARA) Commission policy in 10 CFR 20. This U point is clarified by paraphrasing 10 CFR 20.1(c) in an addition to the Introduction.
Industry comments on the depressed state of the industry are valid and licensees are faced with early reclamation. However, the Commission believes that this situation only emphasizes the site specific decisions needed and does not support the need for generic rulemaking.
All categories of commenters advocated specific suggestions to expand the scope of the proposed rulemaking. Commenters generally fell into three categories - those advocating: (1) additional changes needed to conform to the EPA standards, (2) additional changes that would make 10 CFR Part 40 more explicit or more protective of public health, safety, and environment but that are not directly related to conforming to the EPA standards, and (3) additional changes that would make Part 40 less restrictive or conform to the collective intent of Congress expressed in various legislation and hearing records rather than the EPA standards.
Comments in the first category were considered within the scope of this rulemaking. Comments in the latter two categories will be considered along with comments received on the accompanying ANPRM.
One commenter suggested that the Commission require that design calculations for covers incorporate a design margin to explicitly account for changes in moisture content and porosity, external erosional forces, 10
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and internal chemical reactions in order to meet the reasonable assurance provision of the EPA radon and longevity standard over the long term.
Response: The factors identified are important to consider in evaluating expected cover performance. However, such factors are very site specific and. represent a level of detail that NRC normally relegates to guidance or procedural documents. The design margin recommended is essentially applied in the staff's use of conservative material param-eters in the site specific' evaluation of the design of soil and rock covers.
NRC was urged to add an active monitoring program for tailings stability to the Commission's rules.
Response: Criterion 12 of the Commission's rules has a minimum ,
l requirement for annual inspections by the custodial government agency to confirm the integrity of stabilization and the need for any maintenance.
Industry recommended a number of changes based on the Commission's.
earlier suspension action. The recommended changes and rationale for action were essentially the same as presented in the suspension notices.
Examples include deletion of below grade or equivalent as the prime option in Criterion 3 and deletion of radium content restrictions on cover materials in Criterion 6.
Response: The intent of this action is nondiscretionary conforming changes to eliminate conflicts and inconsistencies, add imposed standards or Congressional direction, or make minor editorial or clarifying changes.
Industry comments were mainly statements or claims based on "may not be !
required" and would require extensive new rulemaking and are thus considered l
1 outside the scope of the present action.
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Comments on 40 CFR 192 Virtually all categories of commenters offered comments on the validity and merits of the EPA standard. The majority reflected dissatisfaction.
Response: As noted in the accompanying ANPRM (49 FR 46427), the Commission must focus on choices and decisions it must make on actions within its discretion. Until or unless court action sets aside the EPA standards, they'are binding on NRC and Agreement State licensees. NRC
' licensees are faced with two sets of effective regulations that contain conflicting or inconsistent requirements. Under law, NRC must implement and enforce both.
As implied by the Commission Authority and Responsibility statement, the only provision of the EPA standard the Commission does not plan to implement and enforce is the provision in 40 CFR 192.32(a)(2)(iv) requir-ing EPA concurrence on site specific decisions. The-Commission believes that removing conflicts and inconsistencies in the two sets of regulations and using site specific alternative authority to deal with occasional site specific problems represent the best regulatory approach.
Thus, comments on the lawfulness, merits, and value of the EPA standards were considered outside the scope of this action and were not a factor in developing this final rule.
Other One State questioned how the process of dealing with alternatives ;
using the type of flexibility afforded by Section 84c of the AEA would l J
l work in Agreement States.
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Response: Section 19 of Pub.L 97-415, the NRC Authorization Act for fiscal years 1982 and 1983, added the following option to Section 274o of the AEA for Agreement States: "
. . the State may adopt alternatives (including, where appropriate, site-specific alternatives) to the require-ments adopted and enforced by the Commission for the same purpose if, after notice and opportunity for public hearing, the Commission deter-mines that such alternatives will achieve a level of stabilization and containment of the sites concerned.-and a level of protection for public health, safety and the environment from radiological and non-radiological hazards associated with such sites, which is equivalent to, to the extent practicable, or more stringent than the level which would be achieved by standards and requirements adopted and enforced by the Commission for the same purpose and any final standards promulgated by the Administrator of the Environmental Protection Agency in accordance with section 275. Such alternative State requirements may take into account 1.ocal or regional .
conditions, including geology, topography, hydrology and meteorology."
The Commission must determine that alternative standards adopted by the State achieve the required levels of protection. Further'the Commis-sian must notice the alternatives and provide an opportunity to request public hearing. This additional flexibility to adopt generic or site specific standards is available to the State regardless of the status of the State's regulations.
The comment does point out that 10 CFR 150.31 should be amended to add the option quoted above. Including the language in Part 150 is not legally required for the State to exercise the option, but addition would clarify the situation.
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No comments were received on the Regulatory Flexibility Certifica-tion or Paperwork Reduction Act Statement in the notice. No specific comments were received on the NEPA discussion under Impact of the Amendments.
COMMENTS ON SPECIFIC PROPOSED MODIFICATIONS TO APPENDIX A 10 CFR 40 The proposed rule notice listed the specific modifications and rationale for each change. The list chronologically followed 10 CFR 40, Appendix A. In the following analysis, each of the modificatiens are summarized and addressed. The numbering system from the proposed notice is provided.
Introduction Modification 1.(a): Typographical error and no comments were received. .
Modification 1.(b): This proposed change deleted an outdated infor-mation submittal requirement associated with the 1980 publication of Appendix A.
One commenter expressed concern that the deletion would mean that detailed information on licensecs' programs showing how they meet the criteria in Appendix A would not be required.
Response: Licensee compliance with Appendix A and the EPA standards is being handled and documented in the routine course of licensing and enforcement activities. A specific or separate submittal is not needed and would represent an unwarranted burden on licensees.
Modification 1.(c): This change would add a paraphrase of the pro-visions of section 84c of the AEA. The language provides applicants and 14
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licensees the opportunity to propose alternatives to the specific require-ments of Appendix A.
< Comments on the addition of the flexibility provisions of section 84c to the Introduction generally did not take issue with the addition itself since it paraphrased the law. States and environmental groups expressed concerns about implementation. Some of the industry commenters favored extensive supplemental rulemaking to reduce the burden on licensees to develop alternatives.
Response: The Commission agrees that additional guidance on how to implement the section 84c flexibility may be needed. Generic guidance is difficult to prepare absent experience with specific proposals. NRC has used this flexibility only once. In addition, detailed implementation guidance is normally not included in the Commission's rules. It is developed in more flexible guidance decuments.
Criterion 1 Modification 2.(a): This change would delete the " thousands of years" and add the 1,000 year time frame in the EPA design standard.
Editorial errors confused the specifics of this modification. The first paragraph of proposed modified Criterion 1 should have read: "In select-ing among alternative tailings disposal sites or judging the adequacy of existing tailings sites, the following site features which will determine the extent to which a program meets the broad objective of isolating the tailings and associated contaminants from man and the environment during operations and for 1,000 years thereafter, without ongoing active mainte-nance, shall be consid.ered."
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Comments on proposed changes to Criterion 1 on the time frame for protection reflected confusion on goals or objectives versus requirements and disagreement on what the times and reliance on active maintenance should be. State and environmental comments urged times greater than the 1,000 year EPA design standard on cover longevity and no reliance on maintenance. Industry favored a 200 year goal and reliance on maintenance.
Response: Comments highlighted an important reason for the reac-tions to the existing language and the proposed change. The first para-graph of Criterion 1 is a statement of a very general goal or objective,
- not a specific standard or requirement. The proposed change and asso-ciated editorial errors compounded the problem. It was intended to prevent misunderstandings due to the reference to thousands of years, not to repeat the specific design standard being added to Criterion 6.
Comments advocating a 200-year goal are directed at the EPA design standard and.how it will be implemented in site specific actions. The Commission disagrees with any position that would put the goal for protect-ing man and the environment from tailings at 200 years. The EPA primary design stand is 1,000 years. Further, as a general goal, permanent iso-lation with no planned reliance on active maintenance is consistent with the findings in the GEIS, the EPA standard and the Congressional intent in section 161x(2) of the AEA that states: ". . . the need for long term maintenance and monitoring . . . will be minimized and, to the maximum extent practicable, eliminated." Since Congress did not flatly prohibit maintenance, NRC may consider it, but the preference for no maintenance is clear.
The first paragraph of Criterion 1 is being clarified to emphasize the goal versus standard concept and to delete any specific time frame.
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"Shall" is being changed to "should" in the fourth paragraph of Cri-terion 1 to further emphasize the goal concept.
Modification 2.(b): This change would delete the ground-water modifier " usable" to be consistent with the primary thrust of the EPA standard to protect all ground water.
State and environmental commenters supported this change and industry opposed it for reasons discussed under Criterion 5 modifications.
Response: The general thrust of the EPA standard is to protect all ground water. The proposed change was not intended to set aside the site specific option to pursue alternate concentration limits which may be based in part on the existing and potential use of the ground water. The
- existing language in Criterion 1 referring to " . . . isolation of con-taminants from usable groundwater sources" conflicts with the EPA standard.
Criterion 3 .
Modification 3.(a): This change would delete the ground-water modi-fiers "high quality" to be consistent with the primary thrust of the EPA standard.
No new issues were raised on this change.
Criterion 4 Modification 4.(a): This change would delete " maximum possible flood" and insert " Probable Maximum Flood" (PMF).
Comments on the proposed change in Criterion 4 to replace " maximum possible flood" with " Probable Maximum Flood" reflected divergent views on the appropriate design flood to be used in analysis. Environmental 17 8
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commenters favored maximum conservatism and industry advocated less con-1 servative assumptions than either the existing or proposed language.
Response: The intent of paragraph (a) in Criterion 4 is to require that siting of tailings disposal areas minimize the upstream catchment area to reduce the potential for erosion regardless of the magnitude of the design flood. The modifiers " maximum possible" and " probable maximum" are both inappropriate since this criterion is not intended to discuss design flood requirements. In order to emphasize the primary purpose of the requirement, the Commission is replacing " probable maximum flood" with " floods."
Criterion 5 Proposed changes to Criteria 1, 3, and 5 were all intended to reflect that the EPA standard starts from a premise that no seepage from new or expanded impoundments or degradation of ground water are allowed and that all ground water is to be protected regardless of quality or use catego ry. Industry strongly opposed protecting non-usable ground water, recommended deferring all ground-water changes, and argued that the EPA ground-water standards are invalid because they fail the Congressional test of comparability to standards for wastes of similar hazard (e.g. ,
mining wastes). EPA made a general comment that more distinction between existing and new sites is needed.
Response: The comments clearly reflect confusion about the scatus of the EPA ground water protection standards, the status of 10 CFR 40 Appendix A requirements, and the basis for proposing the few changes 18
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related to ground-water protection in advance of more comprehensive rule-making on ground water. As discussed under the general issues, the EPA standards have been applicable in regulation since December 6, 1983. NRC rulemaking is not required to impose the EPA standards. The proposed changes to Appendix A, and Criterion 5 in particular, were not intended to fully conform to or to modify the EPA standard in any way.
The EPA comment that the distinction betweea new and existing sites was not reflectea was based on the brief rationale for the proposed change rather than the changes themselves. The rationale did not 4.ddress the complex site specific options provided under the EPA standard (i.e.,
the use of site specific alternate concentration limits as the secondary standard). Criterion 5, as mcdified in this rulemaking does not impact the existing /new site provisions and site specific provisions of 40 CFR 192 and no additional changes are warranted on this basis.
Specific clarification of the dual regulatory situation on ground water is needed and an insert at the beginning of Criterion 5 is being added. A minor change to provide a subject for,the list of considera-tions in Criterion 5 is also being made for clarity.
Modification 5.(a): This change would delete language implying that seepage to ground water is acceptable if it does not change the use category. -
No new issues were raised on this change.
Modification 5.(b): This change would delete language referring to bottom liners of " low permeability."
Commenters generally raised issues similar to those raised elsewhere on ground' water. One commenter opposed this modification on technical grounds and pointed out that no materia.) is totally impermeable and that 19
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state-or-the-art liners have permeability ratings on the order of 10 12m/sec.
Response: The observation that in an absolute and theoretical sense even synthetic liners.are impermeable, is correct. Commission concern is that most people reading the reference to " low permeability" will not consider the absolute or theoretical concept and that most readers would consider clay as low permeability and synthetic materials as impermeable.
Deletion of " low permeability" leaves the issue of what type of liners are acceptable to the more specific EPA standards.
Modification 5.(c): This change would delete a reference to poten-
, tial use category as a standard.
Commenters questioned implementation aspects. One commenter stated that deletion would leave the issue of degree of ground-water restoration open and another that deletion allows NRC to be more restrictive in degree of restoration than the EPA standard.
Response: Deletion of the requirement to restore to ground water "to its potential use before milling. operations began to the maximum extent practicable," does leave the degree of restoration open. The degree of restoration will be determined on a site specific basis in accordance with the EPA ground-water protection standards.
Modification 5.(d): This change would delete references to use cats-gory and tailings in contact with ground water.
No significant new issues were raised in comments on this proposed change.
Modification 5.(e): The ground-water modifier " usable" would be deleted.
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No significant new issues were raised in comments on this proposed change.
Criterion 6 Modification 6.(a): This change would delete the two picocuries per square meter per second radon flux and minimum 3-meter cover thickness provisions and insert EPA's radon flux and longevity and stabilization standard.
Commenters objected to incorporation of the EPA longevity and radon design standards into Criterion 6. Many of the arguments were directed
-against the EPA standard as being too lax to adequately protect health and the environment or more stringent than warranted by the risks.
Response: Comments directed at the validity and merits of the EPA standard were considered outside the scope of this action as noted earlier.
, Several commenters urged NRC to keep its more restrictive radon limit and 3-meter minimum cover. commenters urging NRC to keep its more restrictive radon limit argued that the 2 picocurie flux is ALARA, is easily met based on the Department of Energy's (00E) Title I research experience and is cost effective. Comments urging that the 3-meter requirement be retained based their position primarily on the protection 3 meters of earth affords against erosion and intrusion. ,
Response: The new issue raised on the radan limit is the reference to Title I research. The DOE Title I research experience compared costs for different types of cover strategies; however these studies didn't perform analyses which would result in conclusions on the warranted levels of radon releases from covered tailings. To truly investigate whether the meeting of the 2 pCi/m*s flux criterion is ALARA would 21*
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require a cost-benefit analysis, which EPA did in promulgating its standard.
Although laboratory and field experience by both 00E and NRC confirm 2
that the 2 pCi/m s criterion can be met, it is difficult to prove that it can be significantly maintained over the long-term due to weathering, settlement and other defect generating mechanisms. Moreover, the proxim-ity of the 2 pCf/m*s flux to the natural radon flux from background sources introduces much uncertainty. The uncertainty is addressed in the design standard by the " reasonable assurance" implementation criterion, wheraby NRC utilites reasonably conservattve parameter values in predict-ing the long-term radon flux. The resulting flux levels are usually much less than a factor of 10 above the 2 pCi/m 2 s flux criterion. Thus no rulechange is needed to assure conservatism.
As noted in the rationale for the proposed change, the specific thickness of 3 meters was derived from radon flux considerations. These-considerations were based on meeting the 2 picocurie or twice-background performance criteria and are clearly inconsistent with the 20 picocurie value. Effective alternatives to total re'iance on soil thickness are feasible and may make more environmental and economic sense. Well designed rock covers on the tops and side slopes of reclaimed tailings can provide sufficient erosion and intruder protection so that a soil cover of less than 3 meters has been found acceptable.
One State ob.iected to including the 200 year minimum longevity requirement based on the small incremental costs and practicality of meeting the longer (1,000 year) time and the longevity of the hazards from tailings.
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Response: The 200 year minimum longevity requirement provides relief in those unique reclamation situations where the 1,000 year cri-terion can be shown to be too much of a cost hardship to satisfy. The Commission views the EPA longevity standard to be 1,000 years unless site specific circumstances preclude meeting 1,000 years.
One State objected to NRC's proposed use of design standards and suggested that NRC rules explicitly require proof that the design has been met by the reclamation actions.
Response: The EPA longevity and radon standard is written as a design standard. Requirements to confirm adequacy of design during and after construction have merit but will be very site and design specific.
Normal inspection and envorcement activities would include quality control and compliance with designs approvsd and specified in license conditions.
If unique site circumstances warrant, a requirement to confirm design parameters after the fact is not precluded.
Three commenters offered clarifying suggestions. They included clarifying the reference to " permanent disposal," defining the term
" dis osal area," and addressing how the longevity design standard will be implemented. One commenter also suggested that the standard be clarified to make it clear, that to the extent practicable, the cover would still meet the 20 picocurie flux limit at the end of the 1,000 year design
. period.
Response: TheCommissionisimilementingthesuggestiontoclarify
" permanent disposal" but believes that " disposal area" is adequately addressed in the context of the proposed changes. The suggestion to address implementation would result in a level of detail in the rule normally relegated to NRC guidance documents.
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The Commission agrees that the EPA standard is not completely clear that the flux limit is to be met throughout the effective design life to the extent practicable and is clarifying this point.
Industry opposed-including any EPA standards for thorium byproduct material or that at least explicit flexibility for site specific decisions should be included. Industry also suggested a 50 year stabilization time period for thorium byproduct materials.
Response: The comments opposing incorporation of the EPA standards for thorium byproduct material are generally expressing dissatisfaction with the EPA standard itself. The thorium standards proposed for inser-tion are already in effect on NRC and State licensees and are nondiscre-tionary. The EPA standard in 40 CFR 192.42 provides for substitute generic provisions to those in Subpart E, but with EPA concurrence. NRC has the authority to consider and approve site specific. alternatives if the finding in section 84c can be made.
Modification 6.(b): This change would add the two radon flux modify-ing footnotes from the EPA standard that specify that no monitoring is required, averaging is allowed, and cover materials do not have to be considered in meeting the flux limit.
Several State and environmental commenters objected to the incorpora-tion of the EPA footnote qualtfying the longevity and radon standard as a des;gn standard not requiring confirmatory monitoring. Averaging pro-visions and disregard of the radon from cover materials in the footnotes were also of concern.
Response: The footnotes quoted from the EPA standards in 40 CFR 192 are necessary to define how EPA intended the longevity and radon standards to be used. The footnotes set the conditions which EPA supported as a
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reasonable balance of cost and benefit that would be achievable with present state of the art. The practical problems which led EPA to issue a design standard and NRC experience in radon attenuation measurements 1
and calculations convince the Commission that flux monitoring should not be mandated. Measurement of flux levels in the field is difficult and I
subject to wide variations due to factors such as sensitivity to measure-ment methods, meteorological variations, nonhomogeneity of the tailings piles, and disturbance of the radon releases by the monitoring process.
NRC's current method for providing reasonable assurance that the EPA flux standard will be met focuses on the selection and application of param-eters and calculational methodology for radon barrier design. NRC expects to review quality assurance records during construction to assure that the approved design is implemented in the field. The Commission notes that Agreement States can adopt more restrictive standards than EPA or NRC and may mandate monitoring if desired. i NRC experience also supports the need for averaging over the impound-ment. The tailings are not homogeneous. As a practical matter, radon transport offsite results in mixing before the public is exposed so that doses are reflected by average values. Details on calculation methods are more appropriate in guidance documents that can be tailored to site specific conditions,and track state-of-the-art experience.
Concern about high radium content of cover materials is addressed in the second paragraph of the proposed modified Criterion 6. The second paragraph contains the requirements on low radium content that were already in Appendix A. The footnote only clarifies that the EPA standard applies to the tailings flux through the cover and that radon from cover materials 4
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l are not to be included in demonstrating compliance with the 20 picacurie flux.
Modification 6.(c): This change would correct a typographical error and delete the 3-meter requirement.
No new issues were raised on this change.
Modification 6.(d): - This change would add the threshold radium levels for applicability of the inserted EPA standard on longevity and control 'of radon releases.
One State expressed the view that the provision allowing averaging of radium content over 100 square meters allows highly contaminated small areas to be ignored and is therefore insufficiently protective. Other comments were based on the validity and merits of the EPA standards, particularly the thorium standards.
Response: The language proposed for insertion is needed to reflect the conditions under which EPA intended the longevity and radon standard to apply. The modification as proposed would allow NRC to be more restrictive if warranted by site specific conditions. NRC may require some degree of control for areas contaminated above background but below the threshold levels. No rule change is needed to maintain this option on a site specific basis.
Criterion 8 Modification 7.(a): The change would add the EPA standard language on the as low as practicable goals for radon releases during operations.
Commenters questioned implementation aspects of the Criterion 8 change. One commenter argued for the current terminology reflected in 26
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10 CFR Part 20 for keeping releases as low as reasonably achievable (ALARA) as the true EPA intent.
Response: The Commission agrees that EPA's intent was to impose the ALARA principal and that ALARA is more consistent with Commission radia-tion protection policies as reflected in 10 CFR Part 20. The actual language in a standard has higher legal force than the preamble stating intent, but in this case since numerical values or other specific pro-visions are not involved, the Commission has more flexibility in conforming.
Modification 7.(b): These changes would add language from the EPA standard imposing 40 CFR 190 equivalent limits for thorium byproduct materials and compliance with 40 CFR Part 440, Subpart C.
One environmental commenter objected to the " reasonable assurance" language. Industry repeated objections to all the thorium standards, f
Industry recommended that waiver provisions from a recent EPA rulemaking under the Clean Air Act (50 FR 5190, February 6,1985) be incorporated into the thorium dose limits. Industry also opposed adding the language requiring compliance with 40 CFR Part 440, Subpart C stating that these regulations are invalid since EPA lacks authority to regulate byproduct material under the Clean Water Act.
, Response: The proposed text was quoted verbatim from the EPA stand-ard in 40 CFR 192. No deletions or modifications of existing NRC rules are involved.
4 The proposed change incorporates for clarity standards that are already binding on NRC licensees and eliminates the need to refer to 40 CFR 192 i
for any requirements other than ground-water protection. The waiver i 27 l
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provisions suggested may have merit 'n considering site specific situa-
{
tions but are outside the scope of this rulemaking. The Commission sees !
l no merit in arguments that 40 CFR 4.40, Subpart C, is invalid.
Modification 8: - Cri teri a. 2, 7, 9, 10, 11, and 12 are not affected by proposed changes.
Changes to these criteria recommended by commenters are outside the scope of this rulemaking.
Modifications In accordance with the above, the Commission is issuing the follow-ing modifications to Appendix A to 10 CFR Part 40:
- 1. Introduction.
(a) In the second ser,tance of the third paragraph, change " amend-ability" to " amenability."
(b) Deletetthe fourth paragraph in its entirety.
(c) Add the following two paragraphs at the end: " Licensees or applicants may propose alternatives to the specific requirements in this Appendix. The alternative proposals may take into account local or regional conditions, including geology, topography, hydrology, and metecr-ology. The Commission may find that the proposed alternatives meet the Commission's requirements if the alternatives will achieve a level of stabilization and containment of the sites concerned, and a level of protection for public health, safety, and the environment from radio-logical and nonradiological hazards associated with the sites, which is equivalent to, to the extent practicable, or more stringent than the level which would be achieved by the requirements of this Appendix and the standards promulgated by the Environmental Protection Agency in 40 CFR 192, Subparts 0 and E."
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All site specific licensing decisions based on the criteria in this Appendix'or alternatives proposed by licensees or applicants will take into account the risk to the public health and safety and the environment with due consideration to the economic costs involved and any other factors the Ccamission determines to be appropriate. In implementing this Appendix, the Commission will consider " practicable" and " reasonably achievable" as equivalent terms. Decisions involving these terms will take into account the state of technology, and the economics of improve-ments in relation to benefits to the public health and safety, and other societal and socioeconomic considerations, and in relation to the utiliza-tion of atomic energy in the public interest.
- 2. Criterion 1.
(a) Revise the first paragraph to read:
"The general goal or broad objective in siting and design decisions is permanent isolation of tailings and associated contaminants by minimizing disturbance and dispersion by natural forces, and to do so without ongoing maintenance. For practical reasons, specific siting decisions and design standards shall involve finite times (e.g., the lon-gevity design standard in Criterion 6). The following site features which will contribute to such a goal or objective shall be considered in selec-ting among alternative tailings disposal sites or judging the adequacy of existing tailings sites:"
(b) In the fourth paragraph delete the word "shall" and insert "should".
(c) In tne second listed item of the first paragraph, delete the word " usable".
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[7590-01]
- 3. Crftarion 3.
l (a) Delete the modifers "high quality" for groundwater in the '
1 second sentence of the second paragraph. '
- 4. Criterion 4, (a) Revise paragraph (a) by deleting " maximum possible flood" and i
inserting " floods". '
- 5. Criterion 5.
(a) Add the following paragraph at the beginning:
" Licensees and applicants are cautioned thrt the ground-water provisions of 40 CFR 192, Subparts 3 and E, are binding. The thrust of the EPA standards in 40 CFR 192 is nondeg.adation of all groundwater.
The primary ground-water standard in 40 CFR 192.32(a)(1), which applies to new or expanded impoundments, does not include consideration of exist-ing or future groundwater quality. The secondary standard in 40 CFR i
192.32(a)(2) applies to management of all byproduct material including ,
1 existing and new or expanded impoundments. In the secondary standard, several groundwater quality criteria are considered, especially in site specific decisions on applications for alternate concentration limits.
Criterion 5 supplements and does not conflict with or modify provisions of 40 CFR 192. Ur.til or unless the Commission undertakes additional rulemaking as described in the advance notice of proposed rulemaiing published in the Federal Register on November 26, 1984 (49 FR 4642E),
licensees and applicants must refer to both 10 CFR Part 40 and 4G CFR Part 192 for the complete set of applicable ground-water protection requirements."
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(b) Delete in its entirely the first paragraph beginning " Steps shall be taken..." and ending "...this objective." and insert the follow-ing: "In developing and conducting groundwater protection programs, applicants and licensees shall consider the following: "
(c) In the first listed item under the first pragraph beginning with " Installation of..." delete the words " low permaability" as a char-
, acteristic i f bottom liners.
(d) In the second paragraph beginning "Where groundwater impacts..."
delete the phrase "to its potential use before milling operations began to the maximum extent practicable."
(e) Delete in its entir:ty the third paragraph beginning "While the-primary ;aethod af protecting ground water shall be isolation..." and ending ". . .from current or potential uses."
(f) In the first sentence of the fifth paragraph beginning "This
, information shall be gathered..." delete the word " usable" where it
! modi fies " groundwater."
- 6. Criterion 6.
(a) Delete the first sentence in entirety, beginning with "Suffi-cient earth cover..." and ending with "... meter per second.", and in its i
place Irisert "In disposing of waste byproduct material, licensees shall place an earthen cover over taiiings or wastes at the end of milling operations and the waste disposal area shall be closed in accorJance with a design which shall provide reasonable assurance of control of radio-1 logical hazards to (1) be effective for one thousand years, to the extent reasonably achievable, and, in any case, for at least 200 years, and (ii) limit releases of radon-222 from uranium byproduct materials, and radon-220 from thorium byoroduct materia 4, to the atmosphere so as to 31 l_
[7590-01]
2 not exceed an average release rate of 20 picocuries per square meter per 2
second (pCi/m 's) to the extent practicable throughout the effective design life determined pursuant to (i) above."
(b) Add to Criterion 6 the following two footnotes which accompany the revised first sentence: footnote (1) "The standard applies to design.
Monitoring for radon after installation of an appropriately designed cover is not required," and footnote (2) "This average shall apply to the entire surface of each disposal area over periods of at least one year, but short compared to 100 years. Radon will come from both uranium byproduct i materials and from covering materials. Radon emissions from covering materials should be estimated as part of developing a closure plan for each site. The standard, however, applies only to emissions from byproduct materials to the atmosphere."
(c) In the fifth sentence of the first paragraph, replace "non-soiled" with "non-soil," and replace the words "to reduce tailings covers to less than three meters" with the words "as cover materials."
(d) At the end of Criterion 6, add a new paragraph to read:
"The design requirements in this Criterion for longevity and control of radon releases shall apply to any portion of a licensed and/or disposal site unless such portion contains a concentration of radium in land, averaged over areas of 100 square meters, which, as a result of byproduct material does not exceed the background level by more than: (i) 5 pico-curies per gram (pCi/g) of radium-226, or, in the case of thorium bypro-duct material, radium-228, averaged over the first 15 centimeters (cm) below the surface, and (ii) 15 pCi/g of radium-226, or, in the case of thorium byproduct material, radium-228, averaged over 15-cm thick layers more than 15 cm below the surface."
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[7590-01]
- 7. Criterion 8.
1 (a) At the end of the first full paragraph, add a new sentence to l read "During operations and prior to closure, radiation doses from radon emissions from surface impoundments shall be kept as low as is reasonably 1 achievable."
l (b) Following the third full paragraph of Criterion 8, just before '
Criterion 8A, insert the following two new paragraphs:
" Milling operations producing or involving thorium byproduct mate-rial shall be conducted in such a manner as to provide reasonable assur-ance that the annual dose equivalent does not exceed 25 millirems to the whole body, 75 millirems to the thyroid, and 25 millirems to any other organ of any member of the public as a result of exposures to the planned discharge of radioactive materials, radon-220 and its daughters excepted, to the general environment."
" Uranium and thorium byproduct materials shall be managed so as to conform to the applicable provisions of Title 40 of the Code of Federal Regulations, Part 440, Ore Mining and Dressing Point Source Category:
Effluent Limitations Guidelines and New Source Performance Standards, Subpart C, Uranium, Radium, and Vanadium Ores Subcategory, as codified on January 1, 1983."
- 8. Criteria 2, 7, 9, 10, 11, and 12 are not affected by this action.
The Commission is also issuing the following change to 10 CFR Part 150:
- 9. At the end of S 150.31, a new paragraph (d) is added to read:
"In adopting requirements pursuant to paragraph (b)(2) of this section, the State may adopt alternatives (including, where appropriate, site-specific 33
i
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alternatives) to the requirements adopted and enforced by the Commission l
for the same purpose if, af ter notice and opportunity for public hearing, j the Commission determines that such alternatives will achieve a level of stabilization and containment of the sites concerned, and a level of pro-tection for public health, safety and the environment from radiological and nonradiological hazards associated with such sites, which is equiva-lent to, to the extent practicable, or more stringent than the level which would be achieved by standards and requirements adopted and enforced by the Commission for the same purpose and any final standards promulgated by the Administrator of the Environmental Protection Agency in accordance with section 275. Such alternative State requirements may take into account local or regional conditions, including geology, topography, hydrology and meteorology."
Commission Authority and Resoonsibility Section 84c. of the Atomic Energy Act states that:
A Licensee may propose alternatives to specific requirements adopted and enforced by the Commission under this act. Such alternative proposals may take into account local or regional conditions, includ-ing geology, topography, hydrology and meteorology. The Commission may treat such alternatives as satisfying Commission requirements if the Commission determines that such alternatives will achieve a level of stabilization and containment of the sites concerned, and a level of protection for public health, safaty, and the environment 34 l
l
[7590-01] 1 from radiological and nonradiological hazards asscciated with such sites, which is eouivalent to, to the extent practicable, or more l
stringent than the level which would be achieved by standards and requirements adopted and enforced by the Commission for the same '
purpose and any final standards promulgated by the Administrator of the Environmental Protection Agency in accordance with Section 275.
The Commission historically has had the authority and responsibility to regulate the activities of persons licensed under the Atomic Energy Act of 1954, as amended. Consistent with that authority and in accord-ance with Section 84c. of that Act, the Commission has the discretion to review and approve site specific alternatives to standards promulgated by .
the Commission and by the Administrator of the Environmental Protection Agency. In the exercise of this authority, Section 84c. does not require the Commission to obtain the concurrence of the Administrator in'any site specific alternative which satisfies Commission requirements for the level of protection for public health, safety, and the environment from radiological and nonradiological hazards at uranium mill tailings sites.
As an example, the Commission need not seek concurrence of the Admini-strator'in case-by case determinations of alternative concentration limits and delisting of hazardous constituents for specific sites. It should be Onderstood that the proposed conforming regulations deal with the exercise of the Commission's responsibility and authority under the Atomic Energy Act of 1954, solely as regards uranium mill tailings sites and have no broader connotation.
The Commission believes that licensee proposals for alternatives 35 t
[7590-01]
can be an important and effective way to help deal with the problems asso-ciated with implementing the new EPA standards. The Commission expects that it may require several years to have its conforming r6gulations fully in place. It expects to use the flexibility provided by Sectior 84 in the interim to consider and approve alternative proposals from licensees.
Section 84c. provides NRC sufficient authority to independently approve alternatives so long as the Commission can make the required determination.
Imoact of the Amendments The Commission's action in issuing these modifications to its regu-lations in Appencix A to 10 CFR Part 40 is to conform them to the new EPA standards. These changes are for the purpose of avoiding conflicts and inconsistencies, and for clarifying previously existing language so as to be compatible with the new requirements. The action taken here by the Commission is a consequence of previous actions taken by the Congress and the EPA, and is legally mandated in Section 275b(3) of the Atomic Energy Act of 1954, as amended.
Commission action in this case is essentially nondiscretionary in nature, and for purposes of environmental analysis, rests upon existing environmental and other impact evaluations in the followi documents:
(1) " Final Environmental Impact Statement for Standards for the Control of Byproduct Materials from Uranium Ore Processing (40 CFR Part 192),"
)
Volumes 1 and 2, EPA 520/1-83-008-1 and 2, September 1983, and (2) "Regula-tory Impact Analysis of Final Environmental Standards for Uranium Mill Tailings at Active Sites," EPA 520/1-83-010, September 1983, both prepared in support of Suboarts D and E of 40 CFR Part 192, and (3) " Final Generic 36
[7590-01]
Environmental Impact Statement on Uranium Milling," NUREG-0706, September 1980, prepared in support of Appendix A of 10 CFR Part 40. The Commission believes that these supportirg analyses for the EPA stancards and the existing Commission regulations provide a more than adequate environmental review for the standards addressed herein, and that no additional impact analysis is warranted by the conforming actions issued herein. The EPA engaged in and completed a N3DA process with full consideration of environ-mental concerns, and for the purposes of this rulemaking action, can be viewed as the leui agency.
PAPERWORK REDUCTION ACT STATEMENT This rule does not antain a new or amended information collection requirement subject to the requirements of 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.
REGULATORY FLEXIBILITY CERTIFICATION i
As required by the Regulatory Flexibility Act of 1980, 5 U.S.C.
605(b), the Commission certifies that this rule will not have a signifi-cant economic impact upon a substantial number of small entities. There-fore, we have not performed a Regulatory Flexibility Analysis. The basis for this finding is that of the licensed uranium mills, only one qualifies as a small entity. Almost all the mills are owned by large corporations.
Three of the mills are partly-owned by companies that could qualify as small businesses, according to the Small Business Administration generic 37 i
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[7590-01]
small entity definition of 500 employees. However, under the Regulatory Flexibility Act, a small business is one tnat is independently owned and operated. Since these three mills are not independently owned they do not qualify as small entities.
LIST OF SUBJECTS IN 10 CFR PART 40 Government contracts, Hazardous materials-transportation, Nuclear materials, Penalty, Reporting and recordkeeping requirements, Source mr erial, and Uranium.
LIST OF SUBJECTS IN 10 CFR PART 150 Hazardous materials-transportation, Intergrovernmental relations, Nuclear materials, Penalty, Reporting and recordkeeping requirements, Security measures, Source material, and Special nuclear material.
Under the Atomic Energy Act of 1954, as amended, the Energy Reorgani-ation Act of 1974, as amended, 5 U.S.C. 553, and the Uranium Mill Tail-ings Radiation Control Act of.1978, as amended, the NRC is issuing the following amendments to 10 CFR Parts 40 and 150.
PART 40 DOMESTIC LICENSING OF SOURCE MATERIAL
- 1. The authority citation for Part 40 is revised to read as follows:
AUTHORITY: Secs. 62, 63, 64, 65, 81, 161, 182, 183, 186, 68 Stat.
932, 933, 935, 948, 953, 954, 955, as amended, secs. 11e(2), 83, 84, 38 i
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Pub. L.95-604, 92 Stat. 3033, as amended, 3039, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 2014(e)(2), 2092, 2093, 2094, 2095, 2111, 2113, 2114, 2201, 2232, 2233, 2236, 2282); secs. 274, Pub. L.86-373, 73 Stat.
1.
688 (42 U.S.C. 2021); secs. 201, as amended. 202, 206, 88 Stat. 1242, as j amenced, 1244, 1246 (42 U.S.C. 5841, 5842, 5846). Section 275, 92 Stat.
3021, as amended by Pub. L.97-415, 96 Stat. 2067 (42 U.S.C. 2022).
- Section 40.7 also issued under Pub. L.95-601, sec.10, 92 Stat.
2951 (42 U.S.C. 5851). Section 40.31(g) also issued under sec.122, 4
68 Stat. 939 (42 U.S.C. 2152). Section 40.46 also issued under sec. 184, t
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); SS 40.3, 40.25(d)(1)-(3), 40.35(a)-(d), 40.41(b) and (c), 40.46, 4
40.51(a) and (c), and 40.63 are . issued under sec.161b, 68 Stat. 948, j as amended, (42 U.S.C'. 2201(b)); and SS 40.25(c) and (c)(3) and (4),
- 40.26(c)(2), 40.35(e), 40.42, 40.61, 40.62, 40.64 and 40.65 are issued i
under sec. 161o, 68 Stat. 950, as amended (42 U.S.C. 2201(o)).
- 2. Appendix A to Part 40 is revised to read as follows:
Appendix A to Part 40 - Criteria Relating to the Operation of Uranium l
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.
Introduction. Every applicant for a license to possess and use source material in conjunction with uranium or thorium milling, or bypro-duct material at sites formerly associated with such milling, is reouired by the provisions of 5 40.31(h) to include in a license application pro-
, posed specifications relating to milling operations and the disposition i
- 39
[7590-01]
of tailings or wastes resulting from such milling activities. This appen-dix establishes technical, financial, ownership, and long-term site surveillance criteria relating to the siting, operation, decontamination, decommissioning, and reclamation of mills and tailings or waste systems and sites at which such mills and systems are located. As used in this appendix, the term "as low as is reasonably achievable" has the same mean-ing as in S 20.1(c) of 10 CFR Part 20 of this chapter, In many cases, flexibility is provided in the criteria to allow I
acnieving an optimum tailings disposal program on a site-specific basis.
1 However, in such cases the objectives, technical alternatives and con-cerns which must be taken into account in developing a tailings program i
are identified. As provided by the provisions of 5 40.31(h) applica-tions for licenses must clearly demonstrate how the criteria have been addressed.
The specifications shall be developed considering the expected full capacity of tailings or waste systems and the lifetime of mill operations, Where later expansions of systems or operations may be likely (for example,
! where large quantities of are now marginally uneconomical may be stock-piled), the amenability of the disposal system to accommodate increased capacit'ies without degradation in long-term stability and other perform-ance factors shall be evaluated.
Licensees or applicants may propose alternatives to the specific requirements in this Appendix. The alternative proposals may take into account local or regional conditions, including geology, topography, hydrology, anc meterology. The Commission may find that the proposed alternatives meet the Commission's requirements if the alternatives will achieve a level of stabilization and containment of the sites concerned, i
40
[7590-01]
2 and a level of protection for public health, safety, and the environment from radiological and nonradiological hazards associated with the sites, which is equivalent to, to the extent practicable, or more stringent than the level which would be acnieved by the requirements of this Appendix and the standards promulgated by the Environmental Protection Agency in 40 CFR 192, Subparts 0 and E.
All site specific licensing decisions based on the criteria in this Appendix or alternatives proposed by licensees or applicants will take into account the risk to the public health and safety and the environment with due consideration to the aconomic costs involved and any other factors the Commission determines to be appropriate. In implementing
- this Appendix, the Commission will consider " practicable" and " reasonably i achievable" as equivalent terms. Decisions involving these terms will take into account the state of technology, and the economics of improve-ments in relation to benefits to the public health and safety, and other societal and socioeconomic considerations, and in relation to the utiliza-tion of atomic energy in the public interest, i
I. Technical Criteria Criterion 1--The general goal or broad objective in siting and design decisions is permanent isolation of tailings and associated contaminants by minimizing disturoance and dispersion by natural forces, and to do so a
without ongoing maintenance. For practical reasons, specific siting decisions and design standards shall involve finite times (e.g., the longevity design standard in Criterion 6). The following site features which will contribute to such a goal or objective shall be considered in selecting among alternative tailings disposal sites or judging the ade-quacy of existing tailings sites:
41
[7590-01]
Remoteness from popalated areas;
{
Hydrologic and other natural conditions as they contribute to continued immobilization and isolation of contaminants from groundwater sources; and Potential for minimizing erosion, distur3ance, and dispersion by natural forces over the long term.
The site selection process shall be an optimization to the maximum extent reasonably achievable in terms of these features.
In the selection of disposal sites, primary emphasis shall be given to isolation of tailings or wastes, a matter having long-term impacts, as opposed to consideration only of short-term convenience or benefits, such as minimization of transportation or land acquisition costs. While isola-tion of tailings will be a function of both site and engineering design, overriding consideration shall be given to siting features given the
- long-term nature of the tailings hazards.
Tailings should be disposed of in a manner that no active maintenance is reouired to preserve conditions of the site.
Criterion 2--To avoid proliferation of small waste disposal sites and thereby reduce perpetual surveillance obligations, byproduct material from in situ extraction operations, such as residues from solution evapo-ration or contaminated control processes, and wastes from small remote above ground extraction operations shall be disposed of at existing large mill tailings disposal sites; unless, considering the nature of the wastes, such as their volume and specific activity, and the costs and environmental impacts of transporting the wastes to a large disposal site, such offsite disposal is demonstrated to be impracticable or the advantages of onsite burial clearly outweigh the benefits of reducing the perpetual surveillance obligations.
42 4
_ _ - _ _ - - - _ _ _ - _ - _ _ - . _ _ - _ _ _ _ - - - . - - - - _ - _ - _ _ _ _ _ - _ - _ - _ ~ _ - - _ _ . - - _ - _ _ _ _ _ . _ _ _ - . _ - . _ _ _ _ . _ . _ . _ . _ - . . _ - - - - _ _ - - - _ _ _ _ _ _ _ . _ - _ _ _ _ _ - _ _ _ - - _ - - _ - - . _ . _ . . . _ _ _ _ _ . . . _ _ . _ - - - _ _ _ _ _ _ - - _ _ . . _ - _ _ _ - _ - - _ _ _ _ . _ - _ - _ _ _ _ _ _ _ _ . _ - _ _ - -
[7590-01]
Criterion 3--The "orime option" for disposal cf tailings is place-ment below grade, either in mines or specially excavated pits (that is, where the need for any specially constructed retention structure is eliminated).
The evaluation of alternative sites and disposal methods performed by m'ill operators in support of their proposed tailings disposal program (provided in applicants' environmental reports) shall reflect serious consideration of this disposal mode. In some instances, below grade dis-
) posal may not be the most environmentally sound approach, such as might ce the case if a groundwater formation is relatively close to the surface or not very well isolated by overlying soils and rock. Also, geologic and topographic conditions might make full below grade burial impractic-J able: for example, bedrock may be sufficiently near the surface that blasting would be required to excavate a disposal pit at excessive cost, and more suitable alternative sites are not available. Where full below grade burial is not practicable, the size of retention structures, and size and steepness of slopes of associated exposed emeankments shall be minimized by excavation to the maximum extent reasonably achievable or appropriate given the geologic and hydrologic conditions at a site. In these cases, it must be demonstrated that an above grade disposal program
- will provide reasonably equivalent isolation of the tailings from natural '
}
erosional forces.
1 Criterion 4--The following site and design criteria shall be adhered to whether tallings or wastes are disposed of above or below grade, i
i (a) Upstream rainfall catchment areas must be minimized to decrease erosion potential and the size of the flood which could erode or wash out sections of the tailings disposal area.
'i j 43
l
[7590-01] l (b) Topographic features should provide good wind protection.
(c) Embankment and ccver slopes shall be relatively flat after final stabilization to minimize erosion potential and to provide conser-vative factors of safety assuring long-term stability. The broad objec-tive snould be to contour final slopes to grades which are as close as possible to those which would be provided if tailings were disposed of below grade; this could, for example, lead to slopes of about 10 hori-zental to I vertical (10h:1v) or less steep. In general, slopes should i not be steeper than about Sh:1v. Where steeper slopes are proposed, '
, reasons why a slope less steep than Sh:1v would be inpracticable should i be provided, and compensating factors and conditions which make. such slopes acceptable should be identified.
(d) A full self-sustaining vegetative cover shall be established or rock cover employed to reduce wind and water erosion to negligible levels.
Where a full vegetative cover is not likely to be self-sustaining due to climatic or other conditions, such as in semi-arid and arid regions, rock cover shall be employed on slopes of the impoundment sys-tem. The NRC will consider relaxing this requirement for extremely gentle slopes such as those which may exist on the top of the pile.
The following factors shall be considered in establishing the final rock cover design to avoid displactment of rock particles by human and animal traffic or by natural process, and to preclude undercutting and piping:
shape, size, composition, and gradation of rock particles (excepting bedding material average particles size shall be at least cobble size or greater);
- a 44
[7590-01]
ock cover thickness and zwiing of particles by size; and steepness u' underlying slopes.
Individual reck ',,1 3 ments shall be dense, sound, and resistant to
.orasion, and d. ail be free from cracks, seams, and other defects that would tend to unduly increase their destruction by water and frost actions. Weak, friable, or laminated aggregate shall not be used.
Rock coveri,q of slepes may not be required where top covers are very thick (on tie order of 10m or greater); impoundment slopes are very gentle (on the orcer ci 10 h:1v or less); bulk cover materials have inherently favorable erosion resistance characteristics; and, there is negligible drainage catenment area upstream of the pile and good wind protection as described in points (a) and (b) of this Criterion.
Furthermore, all impouncment surfaces shall be contoured to avoid j
areas of concentrated surface runoff or abrupt or sharp changes in slope gradient. In addition to rock cover on slopes, areas toward which sur-j face runoff might be directed snall be well protected with substantial rock cover (rip rap). In addition to providing for stability of the impoundment system itself, overall stability, erosion potential, and geomorphology of surrounding terrain shall be evaluated to assure that j there are not ongoing or potential processes, such as gully erosion, wnich would lead to impouncment instability.
(e) The impoundment shall not be located near a capable fault that could cause a maximum credible earthquake larger than that which the impoundment could reasonably be expected to withstand. As used in this criterion, the term " capable fault" has the same meaning as defined in 5 III(g) of Appendix A of 10 CFR 100. The term " maximum credible earth-quake" means that earthauake whicn would cause the maximum vibratory I
i 45 l
[7590-01]
ground motion based upon an evaluation of earthquake potential consider-ing the regional and local geology and seismology and specific character-istics of local subsurface material.
(f) The-impoundment, where feasible, should be designed to incor-1 parate features which will promote deposition. For example, design features which promote deposition of sediment suspended in any runoff which flows into the impoundment area might be utilized; the object of such a design feature would be to enhance the thickness of cover over time.
Criterion 5--Licensees and applicants are cautioned that the groundwater provisions of 40 CFR 192, Subparts 0 and E, cre binding.
The thrust of the EPA standards in 40 CFR 192 is nondegradation of all groundwater. The primary groundwater standard in 40 CFR 192.32(a)(1),
which applies to new or expanded impoundments, does not include considera-tion of existing or future groundwater quality. The secondary standard in 40 CFR 192.32(a)(2) appl **s to management of all byproduct material including existing and new or expanded impoundments. In the secondary standard, several grounawater quality criteria are considered, especially in site specific decisions on applications for alternate concentration linits. Criterion 5 supplements and does not conflict with or modify provisions of 40 CFR 192. Until or unless the Commission undertakes addi-tional rulemaking as described in the advance notice of proposed rule-making published in the Federal Register on November 26, 1984 (49 FR 46425), licensees and applicants must refer to both 10 CFR Part 40 and 40 CFR Part 192 for the complete set of applicable ground water protec-tion requirements.
1 46
[7590-01]
In developing and conducting groundwater protectivn programs, appit-cations and licensees shall consider the following:
Installation of bottom liners (Where synthetic liners are used, a leakage detection system snall be installed immediately below the liner to ensure major failures are detected if they occur. This is in addition to the groundwater monitoring program conducted as provided in Criterion 7.
- j Where clay liners are proposed or relatively thin, in-situ clay soils are i to be relied upon for seepage control, tests shall be conducted with i
representative tailings solutions and clay materials to confirm that no i t significant deterioration of permeability or stability properties will
- occur with continuous exposure of clay to tailings solutions. Tests shall be run for a sufficient period of time to reveal any effects if they are going to occur (in some cases deterioration has been observed I
to occur rather rapidly after about nine months of exposure)).
j
- Mill process designs which provide the maximum practicable recycle of solutions and conservation of water to reduce the net input of liquid
- to the tailings impoundment. I Dewatering of tailings by process devices and/or in-situ drainage j systems (At new sites, tailings shall be dewatered by a drainage system j installed at the bottom of the impoundment to lower the phreatic surface
{ and reduce the driving head for seMag2, unless tests show tailings are i
not amenable to such a system, are in-situ dewatering is to be con-
! ducted, tne impoundment bottom shall be graded to assure that the drains are at a low point. The drains shall be protected by suitable filter 4
I mater ials tc assure that drains remain free running. The drainage system I
shall also be adequate?y sized to assure good drainage).
Neutralitation to oromote immobilization of toxic substances.
l 47 1
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Where groundwater impacts are occurring at an existing site due to seepage, action shall be taken to alleviate conditions that lead to 1
excessive seepage impacts and restore groundwater quality. The specific '
seepage control and groundwater protection method, or combination of l methods, to be used must be worked out on a site-specific basis. Tech-i nical specifications shall be prepared to control installation of seepage l
control systems. A quality assurance, testing, and inspection program, which includes supervision by a qualified engineer or scientist, shall be established to assure the specifications are met.
In support of a tailings disposal system proposal, the applicant /
operator shall supply information concerning the following:
The chemical and radloactive characteristics of the waste solutions.
The characteristics of the underlying soil and geologic forma-tions particularly as they will control transport of contaminants and solutions. This shall include detailed information concerning extent, thickness, uniformity, shape, and orientation of underlying strata.
Hydraulic gracients and conductivities of the various formations shall be determined.
This information shall be gathered from borings and field survey rethods taken within the proposed impoundment area and in surrounding areas where contaminants might migrate to groundwater. The information
{ gathered on boreholes shall include both geologic and geophysical logs in sufficient number and degree of sophistication to allow determining significant discontinuities, fractures, and channeled deposits of high
- hydraulic conductivity. If field survey methods are used, they should
, be in addition t3 and calibrated with borehole. logging. Hydrologic d
l 48
[7590-01]
parameters such as permeability shall not be determined on the basis of laboratory analysis of samples alone; a sufficient amount of field test-ing (e.g., pump tests) shall be conducted to assure actual field pro-i perties are adequately understood. Testing shall be conducted to allow 4
estimating chemi-sorption attenuation properties of underlying soil and rock.
- Location, extent, quality, capacity and current uses of any grouncwater at and near the site.
1 Furthermore, steps shall be taken during stockpiling of ore to mini-i i mize penetration of radionuclides into underlying soils; suitable methods include lining and/or compaction of ore storage areas.
{ Criterion 6--In disposing of waste byproduct material, licensees shall place an eartnen cover over tailings or wastes at the end of mill-ing operations.and, the waste disposal area shall be closed in accordance j with a design
- which shall provide reasonable assurance of control of radiological hazards to (1) be effective for 1,000 years, to the extent reasonably achievable, and, in any case, for at least 200 years, and
- (ii) limit releases of raden-222 from uranium byproduct materials, and radon-220 from thorium byproduct materials, to the atmosphere so as to not exceed an average 8 release rate of 20 picocuries per square meter per second (pC1/m 8
- 5) to the extent practicable throughout the effective i
'Tne stancard applies to design. Monitoring for radon af ter installation 4
of an appropriately designed cover is not required.
- This average shall apply to the entire surface of each disposal area over periods of at least 1 year, but short compared to 100 years. Radon will come from both uranium byproduct materials and from covering materials.
Radon emissions from covering materials should be estimated as part of developing a closure plan for each site. The standard, however, applies only to emissions from uranium byproduct materials to the atmosphere.
j 49
[7590-01]
design life determined pursuant to (1) above. In computing required tailings cover thicknesses, moisture in soils in excess of amounts found normally in similar soils in similar circumstances shall not be considered.
4 Direct gamma exposure from the tailings or wastes should be reduced to
- background levels. The effects of any thin synthetic layer shall not be taken into account in determining the calculated radon exhalation level.
If non-soil materials are proposed as cover materials, it must be demon-strated that such materials will not crack or degrade by differential settlement, weathering, or other mechanism, over long-term time intervals.
Near surface cover materials (i.e., within the top three meters) shall not include waste or rock that contains elevated levels of radium; soils used for near surface cover must be essentially the same, as far as radioactivity is concerned, as that of surrounding surface soils.
This is to ensure that surface radon exhalation is not significantly above background because of the cover material itself.
The design requirements in this criterion for longevity and control of radon releases shall apply to any portion of a licensed and/or dis-cosal site unless such portion contains a concentration of radium in land, averaged over areas of 100 square meters, which, as a result of byproduct material does not exceed the background level by more than: (1) 5 pico-curies per gram (pct /g) of radium-226, or, in the case of thorium bypro-duct material, radium-228, averaged over the first 15 centimeters (cm) below the surface, and (ii) 15 pC1/g of radium-226, or, in the case of thorium byproduct material, radium-228, averaged over 15-cm thick layers l more than 15 cm below the surface.
Criterion 7--At least one full year prior to any major site construc-i tion, a preoperational monitoring program shall be conducted to provide i
l l 50 1
I l
! [7590-01]
l complete baseline data on a milling site and its environs. Throughout l the construction and operating phases of the mill, an operational monitor-( ing program shall be conducted to measure or evaluate compliance with applicable standards and regulations; to evaluate performance of control systems and procedures; to evaluate environmental impacts of operation; and to detect potential long-term effects.
Criterion 8--Milling operations shall be conducted so that all air-borne effluent releases are reduced to levels as low as is reasonably achievable. The primary means of accomplishing this shall be by means of.
emission controls. Institutional controls, such as extending the site boundary and exclusion area, may be employed to ensure that offsite expo-sure limits are met, but only after all practicable measures have been taken to control emissions at the source. Notwithstanding the existence of individual dose standards, strict control of emissions is necessary to assure that population exposures are reduced to the maximum extent reasonably acnievable and to avoid site contamination. The greatest potential sources of off site radiation exposure (aside from radon expo-sure) are dusting from dry surfaces of the tailings disposal area not covered by tailings solution and emissions from yellowcake drying and packaging operations. During operations and prior to closure, radiation doses from radon emissions from surface impoundments of uranium or thorium byproduct materials shall be kept as low as is reasonably achievable.
Checks shall be made and logged hourly of all parameters (e.g.,
differential pressures and scrubcer water flow rates) which determine -
the efficiency of yellowcake stack emission control equipment operation.
51
[7590-01]
It shall be determined whether or not conditions are within a range pre-scribed to ensure that the equipment is operating consistently near peak efficiency; corrective action shall be taken when performance is outside of prescribed ranges. Effluent control devices shall be operative at all times during drying and packaging operations and whenever air is exhausting from the yellowcake stack. Drying and packaging operations shall terminate when controls are inoperative. When checks indicate the equipment is not operating within the range prescribed for peak effi-ciency, actions shall be taken to restore parameters to the prescribed range. When this cannot be done without shutdown and repairs, drying and packaging operations shall cease as soon as practicable. Operations may not be re-started af ter cessation due to off-normal performance until needed corrective actions have been identified and implemented. All such
- i. -
cessations, corrective actions, and re-starts shall be reported to the appropriate NRC regional office as indicated in Criterion 8A, in writing, within 10 days of the subsequent restart.
To control dusting from tailings, that portiori not covered by stand-ing liquids shall be wetted or chemically stabilized to prevent or mini-mize blowing and dusting to the maximum extent reasonably achievable.
This requirement may be relaxed if tailings are effectively sheltered from wind, such as may be the case where they are disposed of below grade ;
and the tailings surface is not exposed to wind. Consideration shall be given in planning tailings disposal programs to methods which would allow l t
, phased covering and reclamation of tailings impoundments since this will !
help in controlling particulate and radon emissions during operation. To control dusting from diffuse sources, such as tailings and ore pads where 52
[7590-01]
automatic controls do not apply, operators shall develop written operat-ing procedures specifying the methods of control wnich will be utilized.
Milling operations producing or involving thorium byproduct material shall be conducted in such a manner as to provide reasonable assurance that the annual dose equivalent does not exceed 25 millirems to the whole body, 75 millirems to the thyroid, and 25 millirems to any other organ of any member of the public as a result of exposures to the planned discharge of radioactive materials, radon-220 and its daughters excepted, to the general environment.
Uranium and thorium byproduct materials shall be managed so as to conform to the applicable provisions of Title 40 of the Code of Federal Regulations, Part 440, " Ore Mining and Dressing Point Source Category:
~
Effluent Limitations Guidelines and New Source Performance Standards,
- i. .
Subpart C, Uranium, Radium, and Vanadium Ores Subcategory," as codified on January 1, 1983. '
Criterien 8A--Daily inspections of tailings or waste retention systems
, shall be conducted by a qualified engineer or scientist and documented.
The appropriate NRC regional office as indicated in Appendix 0 of 10 CFR Part 20, or the Director, Office of Inspection and Enforcement, U.S.
Nuclear Regulatory Commission, Washington, DC 20555, shall be immediately notified of any failure in a tailings or waste retention system which results in a release of tailings or waste into unrestricted areas, and/or of any unusual conditions (conditions not contemplated in the design of the retention system) which if not corrected could indicate the poten-tial or lead to failure of the system and result in a release of tail-ings or waste into unrestricted areas.
53
[7590-01]
II. Financial Criteria Criterion 9--Financial surety arrangements shall be established by each mill operator prior to the commencement of operations to assure that sufficient funds will be available to carry out the decontamination and decommissioning of the mill and site and for the reclamation of any tail-ings or waste disposal areas. The amount of funds to be ensured by such surety arrangements shall be based on Commission-approved cost estimates in a Commission-approved plan for (1) decontamination and decommissioning of mill buildings and the milling site t'o levels which would allow unre-stricted use of these areas upon decommissioning, and (2) the reclamation i
of tailings and/or waste disposal areas in accordance with technical 2
criteria delineated in Section I of this Appendix. The licensee shall submit this plan in conjunction with an environmental report that addresses
- i. .
the expected environmental impacts of the milling operation, decommission-ing and tailings reclamation, and evaluates alternatives for mitigating these impacts. The surety shall also cover the payment of the charge for long-term surveillance and control required by Criterion 10. In estab-lishing specific surety arrangements, the licensee's cost estimates shall take into account total costs that would be incurred if an independent contractor were hired to perform the decommissioning and reclamation work.
In order to avoid unnecessary duplication and expense, the Commission may accept financial sureties that have been consolidated with financial or surety arrangements established to meet requirements of other Federal or state agencies and/or local governing bodies for such decommissioning, decontamination, reclamation, and long-term site surveillance and control, provided such arrangements are considered adequate to satisfy these i
54
[7590-01]
requirements and that the portion of the surety which covers the decom-missioning and reclamation of the mill, mill tailings site and associated areas, and the long-term funding charge is clearly identified and committed for use in accomplishing these activities. The licensee's surety mech-anism will be reviewed annually by the Commission to assure that suffi-cient funds would be available for completion of the reclamation plan if the work had to be performed by an independent contractor. The amount of surety liability should be adjusted to recognize any increases or decreases resulting from inflation, changes in engineering plans, activities per-
~
l formed, and any other conditions affecting costs. Regardless of whether reclamation is phased through the life of the operation or takes place at the end of operations, an appropriate portion of surety liability shall be retained until final compliance with the reclamation plan is determined.
- i. -
This will yield a surety that is at least sufficient at all times to cover the costs of decommissioning and reclamation of the areas that are expected to be disturbed before the next license renewal. The term of the surety mechanism must be open ended, unless it can be demonstrated that another arrangement would provide an equivalent level of assurance. This assur-ance could be provided with a surety instrument which is written for a specified period of time (e.g., 5 years) yet which must be automatically renewed unless the surety notifies the beneficiary (the Commission or the
, State regulatory agency) and the principal (the licensee) some reasonable time (e.g., 90 days) prior to the renewal date of their intention not to renew. In such a situation the surety requirement still exists and.the licensee would be required to submit an acceptable replacement surety
)
I within a brief period of time to allow at least 60 days for the regulatory agency to collect.
55
[7590-01]
Proof of forfeiture must not be necessary to collect the surety so that in the event that the licensee could not provide an acceptable replacement surety within the required time, the surety shall be auto-matically collected prior to its expiration. The conditions described above would have to be clearly stated on any surety instrument which is not open-ended, and must be agreed to by all parties. Financial surety arrangements generally acceptable to the Commission are:
(a) Surety bonds; (b) Cash deposits; (c) Certificates of deposit; e (d) Deposits of government securities; (e) Irrevocable letters or lines of credit; and I
(f) Comeinations of the above or such other types of arrangements as may be approved by the Commission. However, self insurance, or any arrangement which essentially constitutes self insurance (e.g., a contract with a state or Federal agency), will not satisfy the surety requirement since this provides no additional assurance other than that which already exists through license requirements.
Criterion 10--A minimum charge of $250,000 (1978 dollars) to cover the costs of long-term surveillance shall be paid by each mill operator to the general-treasury of the United States or to an appropriate State agency prior to the termination of a uranium or thorium mill license.
If site surveillance or control requirements at a particular site are determined, on tne basis of a site-specific evaluation, to be signifi-cantly greater than those specified in Criterion 12 (e.g., if fencing is determined to.be necessary), variance in funding requirements may be spect-fied by the Commission. In any case, the total charge to cover the costs 56
, [7590-01]
of long-term surveillance shall be such that, with an assumed 1 percent annual real interest rate, the collected funds will yield interest in an amount sufficient to cover the annual costs of site surveillance. The total charge will be adjusted annually prior to actual payment to recognize inflation. The inflation rate to be used is that indicated by the change in the Consumer Frice Index published by the U.S. Department of Labor, Bureau of Labor Statistics.
III. Site and Byproduct Material Ownership Criterion 11--
A. These criteria relating to ownership of tailings and their disposal sites become effective on November 8,1981, and apply to all licenses terminated, issued, or renewed after that date.
B. Any uranium,or thorium milling license or tailings license shall contain such terms and conditions as the Commission determines necessary to assure that prior to termination of'the license, the licensee will comply with ownership requirements of this criterion for sites used for tailings disposal.
C. Title to the byproduct material licensed under this Part and land, including any interests therein (other than land owned by the United States or by a State) which is used for the disposal of any such byproduct material, or is essential to ensure the long term stability of such disposal site, shall be transferred to the United States or the State in which such land is located, at the option of such State. In view of the fac,t that physical isolation must be the primary means of long-tern control, and Government land ownership is a desirable supple- 1 mentary measure, ownership of certain severable subsurface interests I 57
[7590-01]
(for example, mineral rights) may be determined to be unnecessary to protect the public health and safety and the environment. In any case, however, the applicant / operator must demonstrate a serious effort to obtain such subsurface rights, and must, in the event that certain rights cannot be obtained, provide notification in local public land records of the fact that the land is being used for the disposal of radioactive material and is subject to either an NRC general or specific license prohibiting the disruption and disturbance of the tailings. In some rare cases, such as may occur with deep burial where no ongoing site surveillance will be required, surface land ownership transfer require-ments may be waived. For licenses issued before November 8,1981, the Commission may take into account the status of the ownership of such land, and interests therein, and the ability of a licensee to transfer title and custody thereof to the United States or a State.
O. If the Commission subsequent to title transfer determines that use of the surface or subsurface estates, or both, of the land transferred to the United States or to a State will not endanger the public health, safety, welfare, or environment, the Commission may permit the use of the surface or subsurface estates, or both, of such land in a manner consist-ent with the provisions provided in these criteria. If the Commission permits such use of such land, it will provide the person who transferred such land with the right of first refusal with respect to such use of such land.
E. Material and land transferred to the United States or a State in accordance with this Criterion shall be transferred without cost to the United States or a State other than administrative and legal costs incurred in carrying out such transfer.
58
[7590-01]
F. The provisions of this Part respecting transfer of title and custody to land and tailings and wastes shall not apply in the case of lands held in trust by the United States for any Indian tribe or lands owned by such Indian tribe subject to a restriction against alienation imposed by the United States. In the case of such lands which are used for the disposal of byproduct material, as defined in this Part, the licensee shall enter into arrangements with the Commission as may be appropriate to assure the long-term surveillance of such lands by the United States.
IV. Long-Term Site Surveillance Criterion 12--The final disposition of tailings or wastes at milling sites should be such that ongoing active maintenance is not necessary to preserve isolation. As a minimum, annual site inspections shall be con-ducted by the government agency retaining ultimate custody of the site where tailings, or wastes are stored to confirm the integrity of the stabilized tailings or waste systems and to determine the need, if any, for maintenance and/or monitoring. Results of the inspection shall be reported to the Commission within 60 days following each inspection. The Commission may require more frequent site inspections if, on the basis of i
a site-specific evaluation, such a need appears necessary due to the features of a particular tailings or waste disposal system.
l l
i I
59
[7590-01]
PART 150 - EXEMPTIONS AND CONTINUED REGULATORY AUTHORITY IN AGREEMENT STATES AND IN OFFSHORE WATERS UNDER SECTION 274 S 150.31 Requirements for Agreement State regulation ~ of byproduct material.
- 3. A new paragraph (d) is added to read as follows: "In adopting requirements pursuant to paragraph (b)(2) of this section, the State may adopt alternatives (including, where appropriate, site-specific alter-natives) to the requirements adopted and enforced by the Commission for the same purpose if, af ter notice and opportunity for public hearing, the Commission determines that such alternatives will achieve a level of stabilization and containment of the sites concerned, and a level of pro-
- d. -
tection for public health, safety and the environment from radiological and nonradiological hazards associated with such sites, which is equiva-lent to, to the extent practicable, or more stringent than the level which would be achievec by standards and requirements adopted and enforced by the Commission for the same purpose and any final standards promul-gated by the Administrator of the Environmental Protection Agency in accorda'nce with section 275. Such alternative State requirements may take into account local or regional conditions, tacluding geology, topography, hydrology and meteorology."
Dated at Washington, DC, this day of , 1985.
For The Nuclear Regulatory Commission.
Samuel J. Chilk, Secretary of the Commission.
60 l
t
D E!! CLOSURE C
Ursnrum Mt!!Tailinge Radiation Controi Act purpose of tlus Subpart.
of 1975. pub. I. 9lNio4. as amended. (c) Control means any action to stabdize. Inhibit future misuse of. or reduce emissions or effluents from uranium byproduct materials.
Suespart 0-Standerde for (d) Licensedside means the area Menegement of Uramum Syyroduct contained within the boundary of a Motortale Pursuant to Seceon 54 of the location under the control of persons Atomic Enory Act of 1964, as generating or stonne uranium byproduct Asnended matenale under a license issued gg , pursuant to Section se of the Act. For purposes of this subpart. "liansed site
- This subpart applies to the is equivalent to " regulated unit'* In managemet.t of uranium byproduct Subpart F of Part 264 of this chapter.
materials uader Section 84 of the Atomic (el Dirposalsete means a site selected Fangy Act of1964 (henceforth pursuant to Section 83 of the Act.
designated "the Act"), as amended. (f) Disposalarvo means the region dunns and following processing of within the penmeter of an trcpoundraent PART 193-HEALTH AND uranium ores and to restoration of or pde containing uranium by product ENVIRONetENTAL PROTECTION disposal sites following any use of such matertals to which the posta-losure STANDAROS FOR URANIUM ANO sites under Section 83(b)(1)(B) of the requirements of i 192.32(b)(1) of this THORIUtd RAILI. TAILINGS Act. subpart apply.
q ,gg,g, m ,,4 (g) Regulatory ogersey mescs the U.S.
Nucicar Regulatory Commission.
Suesport N for References in this subpart to other (h) Closurepenod means the period of Manageant W h syproduct parts of the Code of Federal Regulations ume beguuung with b ceanadon. with Metenete Pursuant to Secton 84 of the are to those parts as codified on January respect to a waste impoundment, of Atoenic Energy Act of 1954, as I* I883* uranium ore processing operations and A,,,,,g e,9 (a) Unic-3 otherwtse indicated in this endirug mth completion of requirements subpart, all terms shall have the same specified under a closure plan.
ser. meaning as in Title 11 of the Uranium (i) Closureplan means b plan 192.30 Appiscability. Mill Tadings Rediation Control Act of required under i 264112 of this chapter.
19r.31 Definiuans and Croes aferences. 1978. Subparts A and 8 of this part. o' 192.32 Standards. ( ) Existirgportion means that land Parts 190. 260. 281, and "64 of this 197.33 Conocen Accoo programe. surface area of an emisting surface chapter. For the purposes of this impoundment on which supulicant 192.34 Effecun Dete. subpart, the tertas "weste."" hazardous quantities of uransum byproduct g waste." and related terms, as used in 9,, matenals have been placed pr oc to * .
Meterteis Pursuant to Section 84 of the at aP I obUroduct m e al.
Atomic Energy Act of 1964, as (b) Urunium brProduct matenal i Mt.32 saanearea.
Am,,g,g means the taslings or wastes produced (s) Standants for opplicattore duttng ,
by the estraction or concentsanon of p. ocesstr:g opetutions and pnor to the }
192.4o Applicabelity. urariut's from any ore processed endof the closurepenod (1l Surface 192.41 provisions. pnmartly for its source matenal content. Impoundments (except for an existing 192.42 Subsutute proviasons. Ore bodies denleted by uranium portaon) subject to this subpart must be 197.43 Effecun D*'t solution exttscuort operations and designed. constructed. and installed in Aushonry: Sec.275 of the Atossic Energy which remain underground do not such manner as to conform to the Act of 1954. 42 USC. :ot2. se added by the constitute " byproduct matertal" for the requirements of 8 264.221 of this chapter.
l 1
l
Federal Register / Vol. 48. No.196 / Friday. October 7.1983 / Rules and Regulations 45947 except that at sites where the aftnual (4) The regulatory acentry. in i 192.3a Eftective date, prec:pitation falling en the impo mdmen* conformt:y with Feder il Rad?. :en and any dramage are.s centnbunng wbr..tr D shall ne effective December Protecticn Guidanco (FR. May 11 1960. 4tm surface runoff to the impound e:it is pgs. 4402-3), shall make ever, effort to less than the annual evaporation from maintain radiation doses from radon the impoundtnent, the requirements of hets A emissions from surface impoundments 1264.228(s)(2)(iii}(El referenced m of uranium byproduct matens's as far _ . _ _ .
"C * "
{ 264.221 do not apply, below the Federal Radiation Protection (2) Uranium byproduct matenals shall Cuades as is practicable at each licensed s.n. .e. .n. w,,,n..ws ,.aon .n ;
be managed so as to conform to the sita. i
---1 's ground water protection standard in (b} Standards for application after the 1264.92 of this chapter, except that for closure;criod. At the end of the closure the purposes of this subpart: penod: Subpart E-Stancards for (t) To the list of hazardous Management of Thortum Byproduct (1) Disposal areas shst! each comply constituents referenced in i 264.93 of with the closure performance standard this chapter are added the chemical Maternata Pursuant to Section 84 of the elements molybdenum and uranium, in i 264.111 of this c.hapter with respect Atormc Energy Act of 1954, as to nonradiological haz.irds and shall be Amended (ii) To the concentration limits designed i to provide reasonat:le provided in Table 1 of I 2S4.94 of this .'
chapter are added the radioactivity assurance of control of radiological hazards to This subpart applies to the limits in Table A of this subpart.
(iii) Detection momtonng programs (!) De effective for one thousand years, mansgement f thonum byproduct required under i 264.98 to establish the t e n s nab matenals under Section 84 of the Atomic standards required under i 164.92 shall ,,t at y\;' Irs. Energy Act of 1954, as amended, dunng u d. and f llowteg pr cessing of thonum be completed within one (1) year of promulgation. (ii)1.imit releases of radon-222 from a rah n isposal sun uranium byproduct matenals to the following any use of such sites under (iv) The regulatory agency may establish alternate concentration limits atmosphere so as to not exceed an Section 8J(b)(1)(B) of the Act.
(to be satisfied at the pomt of aversge ' release rate of 20 picocunes t 192.at Provtsions.
compliance epecified under i 264.95) per square meter per second (pCl/m 81- a The provisions of Subpart D of this undar the entena of I 264.94(b). (2) The requirements of Section part. including i1192.31.192.32, and provided that. after considering 192.32(b)(1) shall not apply to any 192.33, shall apply to thonum byproduct practicable corrective actions. these portion of a licensed and/cr disposal matenal and:
hmits are as low as reasonably site which contams a concentration of (a) Provtsions applicable to the achievable, and that. in any case. the radium-226 in land. averaged over areas element uranium sitall also app'y to the standards of I 264.94(a) are satisfied at of 100 square meters, which. as a result element thortum:
all pomts at a greater distance than 500 of uranium byproduct matenal does not (b) Provivons acplicable to radon.22 meters from the edge of the disposal exceed the background level by rnore shall also apply ta radon 200; and area and/or outside the site boundary. than:
(c) Provmons applicable to radium-and (i) 5 picocuries per gram (pCilg). 226 shall also apply to radium-228.
(v) The functbns and responsibilities averaged over the first 15 centimeters Id) Operations covered under designated in Part 264 of this chapter as (cm) below the surface. and those of the " Regional Admimstrator" 1192.32. a) shall be conducted in such a (ii)15 pCl/g. averaged over 15 cm : anner as to provide reasonab!e with respect to " facility permits" shall thick layers more than 15 cm below the assurance that ths annual dose be carned otat by the regu'atory agency, surface. equnalent does not exceed 25 mdlirems except that exemptions of hazardous to the whole body. 75 mil!irems to the constituents under i 264 93 (b) and (c) of i 192.33 cormewe Accon Proyama, this chapter and altemate concentration thyroid. and 25 millirems to any other If the ground water standards organ of any member of the puolic as a hmits established under i 264.94 (b) and established under provisions cf Section result of exposures to the planned (c) of this chapter (except as otherwise 102.JZ(al(2) are exceeded at any discaarge of radioactive matettals, provided in i 192.32(a)(2)(iv)) shall not licensed site, a corrective action radon-220 and its daughters excepted, to be eflective until EPA has concurred program as specified in 264.100 of this the general environme'nt.
therein. chapter shall be put into operation as (3) Uranium byproduct materials shall soon as is practicable, and in no event I 192.42 subemute provmone, be managed so as to conform to the later than eighteen (18) months after a provisions of: The regulatory agency may, with the finding of exceedance, concurrence of EPA. substitute for any (a) Part 190 of this chapter.
provisions of i 192.41 of t tis subpart i
Environmental Radiation Protection 'ne standard applie to desieri. Moaaonna tw altemative provisions it deems more Standards for Nuclear Power redone aperinmilanon of an apprepnetcy practical that wtil provide at least an Operations" and d"'sned coeer te nos required equivalent level of protection for human (b) Part 440 of this chapter. " Ore 'This everese shan epply i the ent:re sort.ce of i,, d ** '**'*"*d'''' ****' health and the environment.
q
,dinmg and Dressing Point Source ***",3,,,'*,,,',,'mdto to'o yene p'adon ina""come '
Category: Effluent Limitations from tia,n mnum t,yp, ode meenaie and from I 112.43 Effective date.
Guidelmes and New Source
- Subpart E shall be effective December Performance Standarda. Subpart C. **n*'* eno.14emnais.
covenne medon be estimated se ani pari et deveiopm mn. trom e.eenns.
6,1983.
Uramum. Radium, and Vanadium Ores Subcategory, $,,m*n*,."i. ,, ,
,e ebe atmoepne,Pl,** ' , ' " - ire o eunn'"ru.e %4a a.:
- Z,',*6"*,',*,d' enune caosesemaws
ENCLOSURE D (Staff Analyses of Public Notice)
(Appendices A & B not included) l I
URANIUM MILL TAILINGS REGULATIONS; CCNFORMING NRC REQUIREMENTS TO E?A STANDARDS
~
STAFF ANALYSIS OF PUBLIC COMMENTS ON PROPOSED RULE CHANGES TO 10 CFR PART 40 Division of Waste Management NMSS April 1985 t
TABLE OF CONTENTS Page
- 1. INTRODUCTION AND
SUMMARY
................................. ....... 1 f
COMMENTERS.......................................
2.
LIST OF ....... 5 s
I
- 3. G EN ERA L I S S U E S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
- a. Commission Authority and Responsibility Statement ........... 7
- b. Procedural and Jurisdictional Issues ....... ................ 9
- c. Scope of Rulemaking ......................................... 14
- d. Comments on 40 CFR 192 ........... .......................... 23
- e. Otner ................................ ...................... 24 4
COMMENTS ON SPECIFIC PROPOSED CHANGES TO APPENDIX A 0F 10 CFR 40............. ................. ....................... 28
- a. Introduction ..................... .... .... ............... 28
- b. Criterion 1....... ................ ......................... 30 a c. Criterion 3 ................................................. 34
- d. Criterion 4 ................................................. 35 e.
f.
Criterion Criterion 5 ................................................. 36 6............................................. 44 j g.
h.
Criterion 8...............................................
Criteria 2, 7, 9, 10, 11 and 12 ..................... .......
.. 53 55 APPENDIX A - PROPOSED RULE FR NOTICE APPENDIX B - CCMMENTS 4
j f
04/19/85 11 STAFF ANAL PUBLIC COMMENTS
- 1. INTRODUCTION AND
SUMMARY
On Monday, November 26, 1984, proposed changes to 10 CFR Part 40 were published in the Federal Register for public comment (49 FR 46418). See Appendix A. The comment period originally expired on January 10, 1985 but was extended until February 10, 1985 (50 FR 2293, January 16,1985).
Twenty-four commenters responded with 26 sets of comments (see Section 2).
Copies of the responses are included in Appendix B. Six environmental groups, seven states, two Federal agencies, seven industry representatives, one pro-energy (i .e. , pro-nuclear) group and one individual responded. One environ-mental comment provided references only and two industry comments were endorse-ments of other industry comments only.
The proposed rule changes were intended to conform existing NRC regula-tions for uranium and thorium mill tailings to regulations published by the Environmental Protection Agency (EPA). The action was taken to comply with the legislative mandate set out in the Uranium Mill Tailings Radiation Control Act (UMTRCA) and NRC authorization Acts. The EPA standards are contained in Subparts 0 and E of 40 CFR Part 192 (49 FR 45926; October 7, 1983).
Comments were offered on both general issues and the specific changes in the proposed rule notice and reflected diverse views.
The general issues addressed the Commission Authority and Responsibility Statement, procedural and jurisdictional issues, the scope of the rulemaking, the validity and merits of the EPA standard, and other miscellaneous topics.
Commenters on the Commission Authority and Responsibility Statement were divided. The environmental groups (ECNP, Sierra Club, EPI, and EDF) and EPA disagreed with all or part of the statement. Industry advocated an alternate approach relying on general agency roles. One state (WA) supported the flexibility in the Statement.
l 04/18/85 1 10 CFR 40 CHANGES i
Procedural and jurisdictional issues raised included industry challenging any conforming action to an EPA standard that is improper on jurisdictional grounds and delaying conforming action until the Tenth Circuit cases are settled (ECNP and AMC). The Sierra Club, EPI, and EPA challenged the legality of not meeting the six month date to conform and conforming in two steps.
Comments on the scope of the first step rulemaking included general views that NRC should undertake completely new rulemaking and a number of specific addi-tional changes. One environmental group (ENCP) and industry (AMC and Kerr-McGee) urged NRC to undertake new rulemaking to replace both EPA and NRC rules.
Additional conforming changes suggested included tailings cover specifications, reliance on active maintenance, and changes based on the earlier suspension of portions of Appendix A and initial staff recommendations to the Commission.
All categories of commenters suggested additional changes to 10 CFR 40, Appendix A not related to conforming to the EPA standard.
Virtually all categories of commenters expressed dissatisfaction with the EPA standards in 40 CFR 192 as either too lax or too stringent.
A number of other miscellaneous topics were raised including Agreement State implementation of the alternatives provision which tracks the language in Section 84c of the AEA.
Comments on the addition of the flexibility provisions of Section 84c of the Atomic Energy Act (AEA) to the Introduction generally did not take issue with the addition itself since it paraphrased the law. States and environmental groups expressed concerns about implementation. Some of the industry commenters favored extensive supplemental rulemaking to reduce the burden on licensees to davelop alternatives.
Comments on proposed changes to Criterion 1 on the time frame for protection reflected confusion on goals or objectives versus requirements and disagreement on what the times and reliance on active maintenance should be. State and environmental comments urged times greater than the 1,000 year EPA design standard on cover longevity and no reliance on maintenance. Industry favored a 200 year goal and reliance on maintenance.
04/18/85 2 10 CFR 40 CHANGES
Comments on the proposed change in Criterion 4 to replace " maximum possible flood" with " Probable Maximum Flood" reflected divergent views on the appro-priate design flood to be used in analyses. Environmental commenters favored maximum conservatism and industry advocated less conservative assumptions than either the existing or proposed language.
Proposed changes to Criteria 1, 3, and 5 were all intended to reflect that the EPA standard starts from a premise that no seepage from new or expanded impound-ments or degradation of groundwater are allowed and that all groundwater is to be protected regardless of quality or use category. Industry strongly opposed protecting non-usable groundwater, recommended deferring all ground-water changes, and argued that the EPA ground water standards are invalid because they fail the Congressional test of comparability to standards for wastes of similar hazard (for example, mining wastes). EPA commented that more distinc-tion between existing and new sites is needed.
Commenters objected to incorporation of the EPA longevity and radon design standards into Criterion 6 in general and opposed specific aspects of the proposed changes. .Many of the arguments were directed against the EPA standard as being too lax to adequately orotect health and the environment or more
- stringent than warranted by the risks. Several commenters urged NRC to keep its more restrictive radon limit and 3-meter minimum cover. Industry opposed including any EPA standards for thorium byproduct material.
Several state and environmental commenters objected to the incorporation of the EPA footnote qualifyirg the longevity and radon standard as a design standard not requiring confirmatory monitoring. Averaging provisions and disregard of the radon from cover materials were also of concern on Criterion 6 changes.
Commenters questioned implementation aspects of the Criterion 8 change to add l
the as low as practicable goals for radon releases during operations. One commenter argued for the-current terminology reflected in 10 CFR Part 20 for i
keeping releases as low as reasonably achievable (ALARA) as the true EPA intent.
l I
l 04/18/85 3 10 CFR 40 CHANGES !
After consideration of the comments, staff concluded that the basic two-steo rulemaking approach is still feasible and advisable. The major differences between the proposed rule and the final rule recommended by staff are:
(1) Addition of an insert to the Introduction requiring consideration of risks and costs in site specific licensing decisions; (2) Addition of an insert to Criterion 5 clarifying the applicability of 40 CFR 192; (3) Clarification of the general goal of permanent isolation of tailings in Criterion 1; (4) Clarification in Criterion 6 that the radon flux limits are to be met for the effective design life of the reclaimed impoundment; (5) Clarification in Criterion ~8 that doses from radon emissions are to.
be as low as is " reasonably achievable" rather than as is
" practicable"; and (6) Addition of changes to 10 CFR 150 to clarify Agreement State options to adopt alternatives under Section 274o of the AEA. .
Other minor clarifying and editorial changes are also recommended.
l 04/18/85 4 .10 CFR 40tCHANGES
- 1
_ _ _ _ _ _ _ _ _ _ _ _ _______..___________.__________.____s____________ _ _ _ _ _ . _ _ _ _ _ _ _ . _ _ _ _ _ . _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
- 2. LIST OF COMMENTERS Docket No. Commenter Abbreviation
- 1. Ecology / Alert None
- 3. Sierra Club None
- 4. Environmental Policy Institute EPI
- 5. Environmental Defense Fund EDF
- 6. Attorney General State of Illinois IL
- 8. Marvin Lewis None
- 9. U.S. Department of the Interior DOI
- 10. U.S. Environmental Protection Agency EPA
- 11. Texas Department of Health TX
- 13. Washington Department of Social and Health. Services WA
, 14 New Mexico Environmental Improvement Division NM
- 15. Environmental Defense Fund (see 5 also) EDF
- 16. Piedmont Environmental Council PEC
- 17. Western Nuclear, Inc. WNI
- 18. Kerr-McGee Corporation; Kerr-McGee Kerr-McGee Chemical Corporation and Quivira Mining Company
- 19. American Mining Congress AMC
- 20. Environmental Policy Institute (see 4 also) EPI
- 21. Homestake Mining Company HMC
- 22. Umetco Minerals Corporation UMC
- 23. Wyoming Department of Environmental Quality WY
- 24. Access to Energy AE
- 25. Dawn Mining Company Dawn
- 26. Parsons, Behle & Latimer for Rio Algom Corporation Rio Algom Copies of the comments received are reproduced in docket number order in l Appendix B. The commenters fall into the following categories:
04/18/85 5 10 CFR 40 CHANGES I
i l
l
Environmental Proenergy Ecology / Alert Access to Energy ECNP Sierra Club EPI Individuals EDF Marvin Lewis PEC -
+
Total 6 Industrial WNI Kerr-McGee AMC HMC UMC Federal Agencies Dawn DOI Rio Algem EPA Total 7 Toial 2 State i IL '
CO TX UT WA NM WY Total 7 l
04/15/85 6 10 CFR 40 CHANGES
- 3. GENERAL ISSUES
- a. Commission Authority and Responsibility Statement The notice included a statement on " Commission Authority and Responsibility." The statement summarized the Commission's policy on the exercise of its responsibility and authority for mill tailings, including the authority to approve. site specific alternatives proposed by licensees under Section 84c of the Atomic Energy Act.
Commenters were divided on this issue. The environmental groups (ECNP, Sierra Club, EPI, and EDF) and EPA disagreed with all or part of the statement.
Incustry (AMC and supporters) advocated an alternate approach. One State (WA) supported the statement.
ECNP strongly opposed the statement asserting that NRC is proposing to essentially deregulate mill tailings disposal on a site specific basis. The Sierra Club disagreed with the view that Section 84c gives NRC authority to approve alternatives to "any or all environmental standards" and expressed the view that Section 84c only provides for ap' proval of alternatives to NRC rules.
The Sierra Club also objected to NRC's intent to ignore the explicit concurrence provisions contained in EPA's standard. EPI disagreed with the statement and argued that Section 84c "is not a new grant of authority for the Commission 'to alter its health and safety or environmental protection requirements ng to alter its enforcement of the EPA standards." EPI also suggested that the ;
policy statement inferred that EPA concurrence under Sections 84(a)(3) or 275 l is precluded. In summary, EPI's view is that 84c flexibility applies only to alternate engineering and technical specifications to those in NRC rules. EPI argued that Agreement States can adopt alternate standards, not NRC, and that NRC's site specific approach is an attempt to circumvent the required finding on equivalency or more stringency in Section 84c. EDF also disagreed that Section 84c grants NRC authority to consider alternatives to the EPA standards. ,
EDF argued that the language of the statute and the legislative nistory support its position. The legislative history cited included EPA's role to issue general environmental standards and NRC's role to implement them as described in Section 84(a) of the AEA.
04/18/85 7 10 CFR 40 CHANGES
_. . - . . --.p w- _ , ,y g.<g
EPA also disagreed with NRC's intarpretation of Section 84c. EPA stated "Section 84c does not confer on NRC authority to approve or employ alternative stancards or to substitute its judgment for EPA's regarding the level of protection necessary to protect public health and the environment. Rather it authorizes NRC to approve or employ licensee proposed alternatives to NRC's own general imolementing requirements . . ." Further, EPA argued that its standard that requires EPA approval of site specific alternative concentration limits is within its authority, not NRC's under Section 84c. In EPA's view, NRC must also establish specific requirements before it can consider alternatives to them.
WA supported the need for NRC and Agreement States to review and approve site specific alternatives to standards without EPA concurrence.
) AMC and its supporters asserted that NRC is trying to avoid the jurisdic-tional issue by relying on Section 84c. The AMC advocated an entirely different approach as discussed in the following sections on Procedural and Jurisdictional Issues and Scope of Rulemaking. In AMC's view, reliance on the basic require-ments of UMTRCA with respect to the jurisdiction of the agencies would be a stronger legal position and eli51nate the need to rely on Section 84c.
Response
A detailed legal analysis of the merits of the EPA objections to the Statement and of AMC's jurisdictional arguments is contained in SECY-85-125 dated April 10, 1985. The Commission asked the Office of the General Counsel (OGC) to prepare this information paper. The paper includes an independent review of the legislative history surrounding this issue. The response to this issue and the AMC jurisdictiona? arguments in the following section (b. Procedural and jurisdictional issues) are sucmarized from SECY-85-125.
OGC concluded that the Commissic" is authorized under section 84c of the AEA to grant exemptions from EPA's standards without cotaining EPA's concurrence. The basis for this conclusion covers four points. First is the belief that " specific Commission recuirements" can be deemed adopted without a rulemaking proceeding. Section 84a(2) requires tne Commission to ensure that 04/18/85 8 10 CFR 40 CHANGES
tailings are managed in confornance with EPA"s standards. Section 84a(2) creates a statutory obligation by the Commission tc enforce EPA's standards incependent of whether the Commission adopts regulations which would clarify how the Commission would enforce these standards.
Second, section 84c explicitly sta es that the NRC may approve alter-natives which, to the extent practicable, would achieve safety levels equiva-lent to those which would be achieved by compliance with NRC's requirements and EPA's standards. Thus, the NRC is authorized to approve an alternative which does not provide the same level of protection of public health, safety and the environment which would be achieved if EPA's standards were complied with fully. Third, UMTRCA does not use tne phrase " implementing requirements." Section 84c refers to only " specific requirements adopted and enforced by the Commission." This phrase is clearly intended to include all recuirements adopted by the Commission to regulate mill tailings. The source of tne adopted requirements is irraterial to the statutory scheme and may include EPA's detailed standards. Finally, EPA's comment does not effectively respond to the Commission's argument that EPA site specific concurrence in exemptions contradicts the prohibition on EPA's issuance of a permit in section 275b.(2) of the AEA.
Comments questioning NRC's motives or intent are offset by the findings recuired of the Commission in section 84c in order to exercise the flexibility to aoprove alternatives. Assertion cf legal right does not equate to an intent to acuse a right.
As indicated in the next section,-OGC believes that EPA generally has acted within its j visdiction to set generally applicable environmental standards which include generic onsite implementation provisions. Thus the AMC view is rejected.
- b. Prtcedural and jurisdictional issues.
Procedural and jurisdictional issues raised included challenging any conforming action to the EPA standard on jurisdictienal grounds, delaying 04/18/85 9 10 ,CFR 40 CHANGES
action until court suits are settled, other references to pending proceedings, objecting to NRC failure to meet the six-month congressional timeframe for conforming, and questioning t.Ne two step process.
The AMC presented extensive legal arguments on the EPA /NRC juris41ctional I issue. HMC, UMC, and Rio Algom supported the AMC comments in all respects.
The AMC commeits focused on the following legal points:
i l
Since its ratification of Reorganization Plan No. 3 of 1970, consis-tent Congressional policy has been to limit EPA standard setting authority for NRC licensed facilities to " generally applicable standards," meaning standards that are applicable outside site boundaries and that impose no site specific design, engineering or management requirements.
Congress, in the Uranium Mill Tailings Radiation Control Act of 1978 (UMTRCA), adopted the division of jurisdiction beween EPA and NRC first established in the 1970 Reorganization Plan.
i
" EPA's stancards are not " generally applicable standards" and are therefore beyond the jurisdiction of EPA. Consequently, the EPA stancards are a " mere nullity" of no legal force or effect and NRC l 1s not legally bound to conform to'the standards.
Response
i l The staff considered the AMC arguments and concluded the arguments are
~
fundamentally AMC's brief in the Tentn Circuit suit challenging the legality of the EPA standard. NRC is not a party or participant in the Tenth Circuit proceeding. If EPA is sustained, the arguments are immaterial. If AMC is sustained, then NRC will be required to conduct additional rulemaking. Staff does not agree that the arguments are sufficient grounds for NRC not to conform
, absent resolution in court and has proceeded with this analysis, i
0 l 04/18/85 10 10 CFR 40 CHANGES j
As noted earlier, OGC concluded that EPA generally acted within its jurisdiction and found the AMC arguments flawed. 0GC examined UMTRCA and its legislative history and summarized its findings as follows:
- 1. Eefore UMTRCA, EPA, not NRC, had primary authority over both the radiological and non-radiological impacts from uranium mil! tailings;
- 2. During Congressional deliberations over UMTRCA, NRC attempted to reduce substantially EPA's authority over radiological hazards of mill tailings by limiting it to EPA's " traditional" authority under Reorganization Plan l No. 3, i.e., authority to promulgate only generally applicable, non-site specific radiological standards, applicable only outside the boundaries of the
! tailings sites;
- 3. EPA opposed the NRC's attempt to transfer to itself EPA's authority to regulate mill tailings. EPA's efforts were partially successful and resulted in a Congressional compromise which precluded EPA from promulgating site specific standards but which did not restrict EPA to standards applicable only outside site boundaries. EPA was also given concurrence authority over
- NRC regulations for controlling non-radiolog' cal hazards.
4 Except for one instance, EPA acted within its jurisdiction under UMTRCA in setting environmental s'tandards for managing radioactive emissions and hazardous chemical wastes from uranium mill tailings; and
- 5. EPA exceeded its jurisdiction by stating that its concurrence would be required before the NRC could grant site specific case-by-case exemptions from NRC regulations for implementing EPA's standards. We believe that such a concurrence role by EPA also contradicts the 1983 amendment to UMTRCA which added Section 84c to the Atomic Energy Act.
The Sierra Club, EPI, and EPA commented on the legality of not meeting the 6 month Congressional mandate to conform by April 1, 1984 and conforming in two steps. The Sierra Club, EPI and EPA asserted that NRC's action is illegal and does not meet the explicit intent of UMTRCA. The Sierra Club also inferred that a four year rulemaking on ground-water delays compliance with EPA's ground water l
04/18/85 11 , 10 CFR 40 CHANGES
-- _ .= __. . - -
requirements. EPI argued that NRC had ample warning, time, and regulatory base to fully comply in 6 months for both groundwater and non groundwater aspects.
As a minimum, EPI argued that interim rules to conform should have been pub-lished. EPI objected to NRC's position that conforming to EPA's ground-water standards should be combined with developing a rule that fully meets the mandate in Section 84(a)(3) to have general requirements that are comparable to EPA's requirements for similar materials regulated under the Solid Waste Disposal
- Act. EPA argued that the EPA standards in 40 CFR 192 already meet this require-ment to be comparable and even if they did not, NRC should conform tu the ground-water standards in 40 CFR 192 immediately. EPA stated that NRC should conform quickly to all of the 40 CFR 192 standards, including groundwater, in
< the first rulemaking. EPA argued that the same nondiscretionary approach should be used and that the second rulemaking can fulfill the requirements of Section 84(a)(3).
Response
The decisions regarding whether and how NRC should conform to the EPA
] standards involved complex legal, jurisdictional, and policy issues. The
. Commission carefully considered the implications of several alternatives and '
its authority and responsibilities before deciding on the course of action evidenced by the notices of proposed rulemaking and advance notice of proposed rulemaking.
The commenters are correct that Congress intended conformance to be suffi-ciently straightforward to be completed in 6 months and so stated in the legis-lation. However, the legislation did not anticipate the complex nature of the EPA standard or the direct effectiveness on licensees beginning December 6, 1983.
Congress also did not impose any penalty if NRC failed to meet the 6 months as it did with the loss of authority if EPA failed to meet its October 1, 1983 date.
No health and safety or environmental impacts have resulted or will result i
from delay or lack of interim rules since staff believes that NRC and the States are requirec to implement and enforce the EPA standards urder Section 275d of the Atomic Energy Act in the interim until final conforming regulations are in 1
04/18/85 . 12 10 CFR 40 CHANGES l
i l
place. NRC has so informed its licensees and Agreement States and is imple-menting the standard.
The scope and timing of the second step rulemaking is still under consi-deration. Comments on the ANPRM are being analyzed. A simple rule change to incorporate the specific ground-water protection provisions of 40 CFR 192 is one option being considered. However, such a change in scope to the present
, action would probably require a reproposal to allow public comment and would delay removing conflicts and inconsistencies. Thus staff rejects EPA's comment.
j The insert developed for Criterion 5 dealing with 40 CFR 192 ground water protection will clarify the situation in the interim.
i I
The ECNP incorporated by reference the full records of the NRC's Consolidated Reactor Proceeding and Three Mile Island, Unit 2, Operating License Proceeding.
ine ECNP's focus is on radon risk issues in the proceedings. They also incorpo-rated a number of documents related to their suit against the EPA standard. C0 noted that the State is a party to litigation on the EPA standards in the U.S.
Court of Appeals for the Tenth Circuit. Kerr McGee acknowledged the pending Tenth Circuit litigation against the NRC rules in one case and against the' EPA standards in a second. AMC also provided documents related to the Tenth Circtfit suit against the EPA standard and mace frequent reference to issues in that proceeding.
l Response:
t i
Other than showing the active legal climate surrounding both NRC and EPA l rules and the general dissatisfaction in many sectors, these references have
! no bearing on the conforming action at hand. In the absence of specific citations to matter in these voluminous referenced documents, the NRC has no obligation to omb through them for material arguably germane to this rule-making proceeding.
I The ECNP and AMC and its supporters urged that NRC delay action until the '
legal challenges to the EPA standard in the Tenth Circuit are settled. AE urged NRC not to conform to the EPA standard until it is revised to address "the genuine hazards posed by radon."
04/18/85 ,
13 10 CFR 40 CHANGES
Response
Since timetables for court action are highly uncertain and because the EPA standards are being implemented and enforced, staff sees no reason to delay conformance by rule. Obviously, if court action sets aside all or part of NRC's or EPA's rules, additional rule changes will be required. The Commission believes the EPA rules would have to present a clear and real threat to public health and safety for NRC to unilaterally set them aside. Environmental argu-ments are based on hypothetical effects and industry arguments on jurisdiction, costs, and practicality. None of the comments suggested a threat to health and safety in iLplementing the EPA rules or going forward with the conforming
, rule changes.
- c. Scoce of Rulemaking
- Commenters offered a wide range of views on the scope of the rulemaking.
Several commenters (e.g., EPA) objected to the two step approach. Reasons I
cited included legal ones surrounding the Congressional mandate as discussed in the preceeding section (EPA, EPI, and the Sierra Club) and licenfee/ applicant confusion in the interim (NM).
. ECNP, Kerr-McGee, anc AMC urged NRC to undertake independent new rule-
! making. ECNP advocated more restrictive rules using the EPA standard as a minimum baseline on radon control and issLe regulations that " fully protect the puslic for the duration of these wastes". ECNP advocated complete revision of 10 CFR Part 40, Appendix A, as issued in October, 1980 to provide more prctection from radon and referenced the Consolidated Radon proceedings for details on deficiencies. The AMC argued that NRC must undertake a completely new independent rulemaking to replace both the EPA and NRC rules because EPA's standards are not adequately supported by analysis relating costs and risks and are outside EPA's jurisdiction and therefore null and void and because NRC has provided no analysis establishing that Appendix A of Part 40 requirements are reasonably related in terms of cost, risks, and benefits. AMC advocated a scope and approach for the new rulemaking in which NRC would (1) focus on stabilization of tailings for a reasonaole period of time instead of focusing
- 04/18/85 14 10 CFR 40 CHANGES
on radon emissions, (2) assure, after public comment, that the costs of require-ments are reasonably related to risks, and (3) provide for explicit distinctions between existing and new sites and allow maximum site specific flexibility.
i Kerr-McGee expressed similar views on the need and casis for NRC action. A key point in the AMC and Kerr-McGee arguments against Appendix A was the 1983 Pub.L.97-415 addition to Section 84a(1) of the AEA on risk and costs. The addition began with the word "taking" in revised Section 84 a(1):
"a. The Commission shall insure that the management of any byproduct material, as defined in section 11e.(2), is carried out in such manner
, as -
(1) The Commission deems appropriate to protect the public health and safety and the environment from radiological and nonradiological hazards associated with the processing and with the possession and transfer of such material taking into account the risk to the oublic health, safety. and the environment, with due consideration of the economic costs and such other factors as the Commission determines to be a c c roa ri a te . " (Emphasis supplied).
t The industry arguments imply that this addition mandates a total reconsi-deration and revision of NRC rules. Industry also noted the depressed economic state of the industry and early stabilization plans that have resulted since the 1980 rule.
The industry arguments on site specific flexibility and existing site distinctions were based on Section 84c and legislative history.
Response
EPA developed and issued the standards in 40 CFR 192 under the following authority and mandate in Section 275b(1) of the AEA:
"b. (1) As soon as practicable, but not later than October 31, 1982, the Administrator shall, by rule, propose and within 11 months thereafter ,
1 04/18/85 15 10 CFR 40 CHANGES l
prceulgate in final form, standards, general application for the protec-tion of the public health, safety, and the environment from radiological and non-radiological hazards associated with the processing and with the possession, transfer, and disposal of byproduct material, as defined in section 11e.(2) of this Act, at sites at which ores are processed primarily for their source material content or which are used for the disposal of such byproduct material.
In establishing such standards, the Administrator shall consider the risk to the public health, safety, and the environment, the environmental and economic costs of applying such standards, and such other factors as the Administrator determines to be appropriate."
NRC is conducting the present action under the mandate in Section 275f(3) of the AEA:
"(3) Not later than 6 months after the date on which the Administrator promulgates final standards pursuant to subsection b. of this section, the Commission shall, after notice and opportunity for public comment, amend the October 3 regulations, and adopt such' modifications, as the Commission deems necessary to conform to such final standards of the Administrator."
Two points are clear in Section 275. One is EPA was explicitly charged to consider risk and economic costs. The second is that no mention of an indepen-dent risk / economic cost finding is explicitly required of NRC in conforming.
EPA has the lead responsibility and staff believes it must assume that EPA met the mandate. Staff notes that AMC's arguments on risk are directed primarily at the EPA standa'rd and seem to reflect its legal brief for the Tenth Circuit.
NRC's obligation to consider risk and economic costs was added to Sec-tion 84a(1) as noted earlier. Section 84a(1) requires NRC to insure that the management of the radiological and nonradiological hazards from tailings protects the public and environment. Staff views the mandate in 84a(1) to cover all aspects of implementing the EPA standard and Appendix A. The mandate should impact all site specific licensing decisions including routine actions, 84c alternative requests, and alternate concentration limit decisions. Staff
. 04/18/85 16 10 CFR 40 CHANGES
believes that it can fulfill this mandate without further rulemaking to make Appendix A either more or less restrictive. Staff also believes that the Congressional intent for site specific flexibility and distinction between existing and new sites can be met in site specific licensing decisions cased on 84a(1) and Section 84c. Consequently, Section 84a(1) should also be emphasi:ed in Appendix A to make it clear that the NRC will in fact consider risks and economic costs and site specific needs in general. An insert to the Introduc-tion following the proposed insert on Section 84c would explicitly emphasize this point.
Other factors relating to the staff position include the general ALARA mandate applicable to all exposures and relaases and industry failure to demonstrate that generic relief is appropriate or needed. Flexibility to consider site specific practical problems is the whole thrust of Section 84c.
Rulemaking tailored to the problems at one or two sites is a counterproductive use of time and resources. Industry comments on the depressed state of the industry are valid and licensees are faced with early reclamation. However, staff believes that this situation only emohasizes the site specific decisions needed and does not support the need for generic rulemaking. Early reclamation will impact practicable aspects and' cost considerations but on a site specific basis.
The insert recommended below paraphrases Section 84a(1) and clarifies that implementation of " practicable" will be consistent with the intent of Section 84a(1) and current Commission policy in 10 CFR 20.1(c). The second sentence paraphrases the meaning of ALARA in 10 CFR 20.1(c).
Nh indicated that decisions on licensee's reclamation plans are impacted by the two-step approach since it postpones having " definitive Federal standards."
Licensees don't knou "to what standards the plan is required to conform."
Response
Staff is sympathetic with the appearance of regulatory uncertainty caused by the two-step rulemaking. However, when the first step is completed, all conflicts will have been removed (e.g., 2 versus 20 picocurie flux limits) and 04/18/85 17 10 CFR 40 CHANGES
i decisions on groundwater can be made based on the basic nondiscretionary provisions of 40 CFR 192 since it applies directly to New Mexico licensees whether or not the State has conformed to NRC's rules or the EPA standard.
TX noted that " point of compliance" was not included in the proposed changes ano asked if this was intentional.
Response
Yes. " Point of compliance' is a concept in the EPA ground water protec-tion standards and is therefore beyond the intended scope of this rulemaking.
The insert to Criterion 5 should help clarify this point.
Commenters advocating specific suggestions to expand the scope of the proposed rulemaking generally fell into three categories-those advocating:
(1) additional changes needed to conform to the EPA standards, (2) additional changes that would make 10 CFR Part 40 more explicit or more protective of public health, safety, and environment but that are not directly related to conforming to the EPA standards, and (3) additional changes that would make Part 40 less restrictive'or conform to the collective intent of Congress expressed in various legislation and hearing records rather than the EPA standa rds. Comments in the first category will be responded to. Comments in the latter two categories will be considered along with comments received on the accompanying ANPRM. However, they will be summarized in this section.
The overall flavor of the comments expressed a general dissatisfaction with both NRC's and EPA's regulations for a wide range of reasons.
EDF, EPA, and industry suggested additional changes that should be made to conform to the non groundwater provisions of the EPA standard. EDF commented that the Commission should require that design calculations for covers incor-porate a design margin to explicitly account for changes in moisture content and porosity, external erosional forces, and internal chemical reactions. Such requirements are neeced to meet the reasonable assurance provision of the EPA radon and longevity standard over the long term. EDF presented technical arguments on the critical role played by cover moisture, the merits of multi-layered covers, and concern for salt migration from tailings to the cover. EPA 04/18/85 18 10 CFR 40 CHANGES
also suggested considering additional cover specifications but did not identify any specific topics.
Response
Staff generally agrees that the type of factors that EDF identified are important to consider in evaluating expected cover performance. In fact, the staff uses the computer code for multi-layers referenced by EDF in its calcula-tions. However, such factors are very site specific and represent a level of detail that NRC normally relegates to guidance or procedural documents. It is also difficult to speculate on the number and importance of all factors which might impact design at a specific site. The design margin recommended by EDF is essentially applied in the staff's use of conservative material parameters in the site specific evaluation of the design of soil and rock covers.
EDF also urged that an active monitoring program for tailings cover stabil-ity be added to the Commission's rules. The EDF recommended program would last for decades until the cover has demonstrated its stability or remedial action has been taken and the remedial action's effectiveness affirmed.
t i
Response
Criterion 12 of the Commission's rules has a minimum reautrement for annual inspections by the custodial government agency to confirm the integrity of stacilization and the need for any maintenance. Criterion 12 also has an option for more frequent inspections. Any monitoring needed prior to transfer to the government agency can be included on a site specific basis in the reclamation plans.
Industry comments (WNI, AMC, UMC) that reliance on active maintenance should be allowed are addressed under Modification 2(a) changes to Criterion 1.
WNI and AMC recommended a number of changes based on the Commission's earlier suspension action and changes originally proposed by staff in SECY-83-523. The recommended changes and rationale for action were essentially the same as presented in the suspension notices and SECY-83-523. Little or 04/18/85 19 10 CFR 40 CHANGES
no new information was provided. Examples include deletion of below grade or equivalent as the prime option in Criterion 3, deletion of prescriptive require-ments in Criterion 4, and deletion of radium content restrictions on cover materials in Criterion 6. Kerr-McGee also recommended deletion of the radium content requirement.
Response: -
Since the additional conforming changes suggested by WNI, AMC, and Kerr-McGee suggested offered no new bases not already considered and rejected and no substantive supporting information on why they are needed on a genreic basis versus rite specific treatment, they are rejected for the first step rulemaking.
A wider scope of changes was considered by the Commission ara rejected before publication of the proposed rule, on the ground that, requirements established through extensive rulemaking cannot be set aside merely because they may not be required. The intent of this action is nondiscretionary conforming changes to eliminate conflicts and inconsistencies, add imposed standards or Congressional direction, or make minor editorial or clarifying changes. Industry comments were mainly statements or claims based on "may not be required" and would require extensive new rulemaking and are thus considered outside the scope of the present action.
1 A number of comments proposed specific or general changes that are not directly related to conforming to the EPA standard but would make Appendix A more explicit or protective. The following discussion summarizes these comments.
Ecology / Alert suggested using 5 ton rock slabs as cover material. EDF urged the Commission to adopt specific requirements on when final stabiliza-tion must take place, on interim stabilization for closed mills, on addition of fluids during closure, on use of dust suppressants during closure, and on phased closure during operations. EDF also advocated mandatory state-of-the-art waste treatment and operations as reflected in conceptual proposals prepared for potential development of mining and milling in Virginia. Lewis stated that numerical criteria in Criterion 5 would make the stronger ground-water protection requirement more enforceable. DOI suggested amplification of 04/19/85 20 10 CFR 40 CHANGES
- -.- - - - - - . - - - - . - - , - - , - - - - , . - - . - - . , e
the requirements in Criterion 12 for the custodial government agency's monitor-ing programs. DOI suggested adding provisions on maintaining ground water sampling wells and on how long inspection and monitoring would continue.
WY suggested that cleanup standards for adjacent lands be developea to define when they can be released for unrestricted use. WY questioned whether the one year baseline in Criterion 7 is adequate, suggested clarifying
" unrestricted areas" in Criterion 8A, questioned the compatibility of Crite-rien 9 with self bonding in Wyoming, and expressed misgivings on the Criterion 11C provision on not aquiring all subsurface rights.
Industry commenters viewed the proposed conforming rulemaking as an opportunity to reiterate objections to any or all parts of Appendix A and advocate less restrictive provisions. Many issues identified in lawsuits and petitions for rulemaking were repeated. WNI and AMC proposed changes to Criterion 8 on checking parameters to control yellowcake emission to allow 1
reliance on alarms. WNI and AMC objected to the Criterion 8A 10-day reporting requirement and " qualified engineer or scientist" inspector requirement. AMC
, advocated checks only when tailings are being added. Changes to Criterion 9 l to reduce the licensee's liability and amount of financial assurances were also proposed by WNI. Self-insurance was advocated for Criterion 9 by AMC and WNI.
WNI urged flexibility in the minimum long term care charge, no inflation
! acjustments, anc reliance on state funds for comparable purposes in Crite-rien 10. AMC expressed similar views on relying on state funds. Kerr-McGee comments reflected a similar position on Criteria 8, 9, and 10. AMC argued against the 1*.' real interest rate in Criterion 10. AMC supporters (HMC, UMC, and Rio Algom) by reference support AMC's position in all respects.
Kerr-McGee and AMC proposed specific additional changes not related to conforming but mandated in their view by legislatten inacted and other events subsequent to promulgation of Appendix A. The basis is essentially the same
- as noted above in the discussion under Scope of Rulemaking on their generic recommendation to und.rtake an independent new rulemaking. Kerr-McGee argued that Criterion 3 should be modified or deleted so that existing sites do not have to consider below grade discosal. Kerr-McGee argued that rock covering to meet the specifications in Criterion 4 is impractical
- n parts of the 04/18/85 21 10 CFR 40 CHANGES 4
I .,
Southwest because the rock would have to be imported and the alternative 1
vegetative cover is also impractical. Similarly the gentle slope requirements in Criterion 4 are not practicable at all existing sites because of soil supply and land ownership and should be deleted in Kerr-McGee's view. Application of the siting criteria to existing sites must involve both short and long-term risk and cost balancing and Appendix A does not make this application clear, in fact Criterion 1 contradicts it, according to Kerr-McGee. In effect, Kerr-McGee advocates developing separate rules for mills where operations have ceased and no plans to restart are involved. These separate rules would address all aspects of Appendix A including siting. Kerr-McGee also suggested eliminating the first listed item in Criterion 5 dealing with liners since'it might be read to require liners at existing sites. Kerr-McGee and AMC urged deleting the restriction on credit for thin synthetic layers to reduce radon emissions in Criterion 6.
AMC provided extensive additional suggested revisions to Appendix A. The suggested changes would revise Appendix A to follow the approach outlined for NRC to take in a new independent rulemaking as discussed above. Suggested changes incluced adding site specific optimization for stabilization in the Introduction, distinction between existing and new sites in Criterion 1, t
provision for cost / benefit judgments in Criterion 1 and planned reliance on maintenance in Criteria 1 and 12. AMC provided rewrites of Criterion 3 to reflect 200 year stabilization and Criterion 5 to reflect its views on risk, costs, site specificity, and existing vs new site distinctions. AMC suggested changes to Criterion 8 to include reliance on institutional controls and deletion of references to controlling radon during operations without regard to risk.
Dawn proposed changes to Criterion 4 dealing with the slope of embankments and covers. Dawn suggested more flexibility, a Sh:1V instead of 10h:1V design basis, and more site specific flexibility.
04/18/85 22 10 CFR 40 CHANGES
Recommended Rule Change:
Add the following paragraph at the end of the
Introduction:
All site specific licensing decisions based on the criteria in this Appen-dix or alternatives proposed by licensees or applicants will take into account the risk to the public health and safety and the environment with due considera-tion to the economic costs involved and any other factors the Commission deter-mines to be appropriate. In implementing this Appendix, the Commission will consider " practicable" and " reasonably achievable" as equivalent terms.
Decisions involving these terms will take into account the state of technology, and the economics of improvements in relation to benefits to the public health and safety, and other societal and socioeconomic considerations, and in re,lation
, to the utilization of atomic energy in the public interest.
l l d. Comments on 40 CFR 192 Commenters offered a number of comments on the validity and merits of the EPA stancard. The majority reflected dissatisfaction. The dissatis-faction was reflected in general comments, references to proceedings, and in arguments on many of the general issues and specific proposed changes.
Commenters represented virtually all categories of commenters.
)
Ecology / Alert apolauded the EPA approach of protecting all qualities of grounewater from contamination. UT challenged the technical base for the radon limits for thorium byproduct material and urged NRC not to adopt them [see modification 6(d)] and EPA to change them. ECNP expressed the view that EPA failed to meet "its statutory responsibilities" in issuing 40 CFR 192. Il challenged the legality of EPA issuing a 1000 year engineering design standard.
Kerr-McGee made repeated references to its position that the EPA standards are invalid and fail to meet the risk / economic cost test. AMC's similar position was addressed in the two previous sections. AE challenged the radon hazard basis for the EPA standard as inadequate when balanced against indoor radon levels from energy conservation.
1 1
04/18/85 23 10 CFR 40 CHANGES
Response
As noted in the accompanying ANPRM (49 FR 46427), the Commission must focus on choices and decisions it must make on actions within its discretion.
Until or unless court action sets aside the EPA standards, they are binding on NRC and Agreement State licensees. NRC licensees are faced with two sets of effective regulations that contain conflicting or inconsistent requirements.
Under law, NRC must implement and enforce both.
4 As implied by the Commission Authority and Responsibility statement, the only provision of the EPA standard the Commission does not plan to implement and enforce is the provision in 40 CFR 192.32(a)(2)(iv) requiring EPA concur-rence on site specific decisions. The staff believes that removing conflicts and inconsistencies in the two sets of regulations and using site specific alternative authority to deal with occasional site specific problems represent the best way to deal with these conflicts and inconsistencies and meet the mini =um requirements of the Congressional mandates.
In view of the above, comments on tne lawfulness, merits, and value of the EPA standards were considered outside the scope of this action and were not a factor in recommending a final rule.
- e. Other 4
Other general issues raised by the commenters included views that NRC should be more stringent than the EPA radon emission and longevity standards, Agreement State implementation, and editorial suggestions.
The ECNP urged conservative independent action by NRC to keep and expand its more stringent requirements on radon emissions and longevity. In ECNP's 4 view, more stringent requirements would provide absolute assurance that the EPA standards would be met and provide greater public protection over longer periods of time.
04/18/85 24 10 CFR 40 CHANGES
Response
The staff agrees that it must have reasonable assurance that the EPA standards will be met but does not agree that highly conservative regulations are needed to provide such assurance. Case specific reviews are the proper mechanism for such findings. For the non groundwater provisions of the EPA standards under consideration in this action, EPA carefully and thoroughly re-examined the NRC record and considered NRC and other comments and later technical and risks information. The staff therefore has no basis to set aside the EPA conclusions on these aspects of the standard. Licensees should benefit from this re-examination.
The State Of New Mexico, an Agreement State, raised questions about Agreement State implementation. NM questioned how the process of dealing with alternatives using the type of flexibility afforded by Section 84c of the AEA would work in Agreement States. Specifically, NM asked whether NRC must concur in Agreement State decisions on proposed alternatives and whether the status of the State's adoption of regulaticns equivalent to or more stringent than 10 CFR Part 40 Appendix A affects the process. NM'also suggested that a cross-reference to 10 CFR 150.31(b) in Appendix A might clarify Appendix A's applicability to Agreement States.
Response
Section 19 o' Pub.L.97-415, the NRC Authorization Act for fiscal years 1982 and 1983, added the following option to Section 274o of the AEA for Agreement States:
"In adopting requirements pursuant to paragraph (2) of this subsection with respect to sites at which ores are processed primarily for their source material content or which are used for the disposal of byproduct material as defined in section 11e.(2), the State may adopt alternatives (including, where appropriate, site-specific alternatives) to the require-ments adopted and enforced by the Commission for the same purpose if, after notice and opportunity for public hearing, the Commission determines that such alternatives will achieve a level of stabilization and containment 04/18/85 25 10 CFR 40 CHANGES 1
l of the sites concerned, and a level of protection for public health, safety and the environment from radiological and nonradiological hazards asso-ciated with such sites, which is equivalent to, to the extent practicable, or more stringent than the level which would be achieved by standards and j requirements adopted and enforced by the Commission for the same purpose h and any final standards promulgated by the Administrator of the Environ-mental Protection Agency in accordance with section 275. Such alternative State requirements may take into account local or regional conditions,
~
including geology, topography, hydrology and meteorology."
The text clearly states that the Commission must determine that alter-native standards adopted by the State achieve the required levels of protection.
Further the Commission must notice the alternatives and provide an opportunity to request public hearing. This option is available to the State if it is regulating byproduct material without regard to the status of the State's adoption of Appendix A. It gives the state additional flexibility in adopting generic or site specific standards.
The suggestion to add a cross-reference in Appendix A is negated by the exolicit provisions of 10 CFR 150.31(b) where requirements are spelled out in context. However, the comment does point out that 10 CFR 150.31 should be amended to add the option quoted above. Including the language in Part 150 is not legally required for the State to exercise the option, but addition would clarify the situation and be consistent with existing Part 150 and the proposed addition to the Introduction of Appendix A on alternatives.
Recommended Rule Change:
Add a new 10 CFR 150.31(d) to read: "In adopting requirements pursuant to paragraph (b)(2) of this section, the State may adopt alternatives (including, where appropriate, site-specific alternatives) to the requirements adopted and enforced by the Commission for the same purpose if, after notice'and opportunity for public hearing, the Commission determines that such alternatives will l achieve a level of stabili:ation and containment of the sites concerned, and a 04/18/85 26 10 CFR 40 CHANGES
1 level of protection for public health, safety and the environment from radio-logical and nonradiological hazards associated with such sites, which is equiva-
-lent to, to the extent practicable, or more stringent than the level which would be achieved by standards and requirements. adopted and enforced by the Commission for'the same purpose and any final standards promulgated by the Administrator of the Environmental Protection Agency in accordance with section 275. Such alter-native State requirements may take into account local or regional conditions, including geology, topography, hydrology and meteorology."
Ecology / Alert urged NRC to use plain concise language in all its regulatory writing and provided a sample rewrite of part of Appendix A.
Response
The Commission agrees with the thrust of this point but preferred and continues to prefer minimum word changes in the conforming process. This minimum change approach helps focus on the changes due to the EPA standard and is the simplest and most efficient, i
Several commenters (EPA, WA, NM, TX) offered editorial suggestions and icentified typographical and transcription errors.
Response
Most of the State comments were straightforward and should be adopted.
EPA's general editorial comment that the term " site" is not used consistently in Appendix A can be factored into subsequent rulemaking. Staff believes that no problems are presented by the use of " site" in Appenidx A that are signifi-cant enough to be addressed in this limited rulemaking.
No comments were received on the Regulatory Flexibility Certification or i
Paperwork Reduction Act Statement in the notice. No specific comments were received on the NEPA discussion under Impact of the Amendments. However, comments acdressed under topics b., c., and d. above address the adequacy of the EPA and NRC basis for action.
04/18/85 27 10 CFR 40 CHANGES
- 4. CCMMENTS ON SPECIFIC PROPOSED MODIFICATIONS TO APPENDIX A 10 CFR 40 The proposed rule notice listed the specific modificatiens and rationale for each change. The list chronologically followed 10 CFR 40, Appendix A. In the following analysis, each of the modifications are addressed and the number-ing system from the proposed notice is provided. See the notice in Appendix A of this document for the full text of the proposed changes.
- a. Introduction -
Modification 1.(a): Typographical error and no comments.
l Recommended Rule Change:
Change should be adopted as proposed.
Modification 1.(b): This proposed change deleted an outdated informa-tion submittal requirement associated with the 1980 publication of Appendix A.
1 4
ECNP objected to this change based on a misunderstanding. ECNP expressed
! concern that the deletion would mean that detailed information on licensees' programs showing how they meet the criteria in Appendix A would not be required, u- Response:
l Licensee compliance with Appendix A and the EPA standards is being handled and documented in the routine course of licensing and enforcement activities. A specific or separate submittal is not needed and would represent an unwarranted burden on licensees.
Recommended Rule Change:
Staff sees no reason not to delete the paragraph.
4 Modification 1.(c): This change would add a paraphrase of the i
provisions of Section 84c of the Atomic Energy Act. The language provides j
04/18/85 28 10 CFR 40 CHANGES f
applicants and licensees the opportunity to propose alternatives to the specific requirements of Appendix A.
Comments on this proposed change expressed support, opposition, and the need for clarification. ECNP expressed a generic concern over site specific licensing decisions such alternative proposals would involve. The EDF and EPI did not object to the modification itself, but took issue with the interpreta-tion of Section 84c of the AEA that was expressed in the rationale and the Commission Authority and Responsibility statement. (See discussion under general issues.)
CO generally supported the flexibility but expressed hypothetical concern about licensee or applicant abuse. C0 suggested that NRC elaborate on the issue by developing rule changes or policy on how NRC ceterminations on "equiv-alent to, to the extent practicable" will be made. CO referenced its review and position on an alternative proposal for dried tailings and liquid disposal at Spring Creek Mesa submitted by UMETCO for its Uravan facility. C0 determined that the alternative design and proposed operation was not equivalent and that better design was practicable. A copy of the State's detailed licensing review for Uravan was submitted with the State's comments on the accompanying ANPRM.
WA suoported the flexibility. NM did not object to the flexibility but noted or questioned certain aspects. NM noted that the insert i luded no time frame for compliance with Appendix A requirements. NM correctly- noted that only Commission approval is called for, not EPA. NM suggested adding language to clarify that it is the licensee's or applicant's responsibility to provide the basis for demonstrating the adequacy of the proposed altpiative. WY objected totheflexibilityaffordedbythelanguage"totheexteMpracticable"and recommended deleting it but supported the change otherwise.
Kerr-McGee supported this modification but indicated that it was not ,
sufficient and more specific changes are needed. HMC supported all Kerr-McGee's comments. The AMC and its supporters supported this change but only as a first step. The AMC indicated that primary reliance on this insert would result in regulation by exception. Dawn strongly supported the modification as proposed to provide needed site specific flexibility.
04/18/85 29 10 CFR 40 CHANGES
-. ._ = - -- - __.
Response
l Staff agrees with C0 that additional guidance on how to make decisions on alternatives proposed by licensees or applicants is needed. Staff is working j on guidance but efforts to date indicate that abstract generic guidance is
- difficult to prepare absent experience with specific proposals. NRC has used the 84c flexibility only once. The C0 experience may hopefully serve as a second case. Staff is certainly in no position to propose rule changes at the I
present time.
While the staff agrees with NM that it is the licensee's or applicant's responsibility to provide needed information, rule change is not needed and might confuse the issue by explicit instructions here and not in other parts
( of Appendix A. Staff notes that Appendix A is an effective rule that is being implemented and enforced in the routine course of business. WY's recommendation to delete "to the extent practicable" would be contrary to the legislation being paraphrased which explicitly includes this provision.
Recommended Rule Change:
1 1
l Add the insert as proposed.
1 l b. Criterion 1 l
l l
Modification 2.(a): This change would delete the stability design timeframe of "tnousands of years" and add the 1,000 year timeframe in the EPA standard. Editorial errors confused the specifics of this modification. The I
first paragraph of proposed modified Criterion 1 should have read:
I "In selecting among alternative tailings disposal sites or judging the adequacy of existing tailings sites, the following site features which will determine the extent *o which a program meets the broad objective of isolating the tailings and associated contaminants from man and the environment during operations and for 1,000 years thereafter, without j ongoing active maintenance, shall be considered:"
4 i ,
04/18/85 30 10 CFR 40 CHANGES i
e
-m- , -, , . - _ - - - --_, .__ ..-_..____-..-..,,-e.-..--m-,-,_. - - - , - - , . , ,-- _ . - - .. . - _ , _
The ECNP strongly opposed this modification and suggested that design periods "of at least 20,000 to 100,000 years" are needed to guarantee that the EPA standard will be met and to address the long term radon hazard. Il also strongly opposed this change based on arguments that (1) the change imoacts the i design goal for nonradiological hazards when the EPA standard does not apply the -1,000 year period to nonradiological hazards, (2) the EPA 1,000 year time is invalid, and (3) the hazards are so long-lived. NM objected to the deletion i of "... during operations and for ..." resultir.g from the editorial errors.
EPI opposed the change based on the longevity of hazards from tailings and on the contention that the existing language is entirely consistent with EPA intent reflected in the preamble to 40 CFR 192 and the intent of the " reasonable
)
assurance" provision of the longevity standard. WY offered revised language to j reconcile the EPA 1,000 year practical design standard with the general goal of I permanent isolation and opposed any change that would reduce the cc :1gn objec-tive to less than 1,000 years.
Kerr-McGee noted the editorial problems and claimed that the change must j reflect the 200 year minimum in the EPA design standard in order to fully conform. Kerr-McGee cited EPA acknowledgement that designs cannot always be proven effective for a thousand years, hence the 200 year minimum, and Kerr-McGee's assertions, that costs of designing for longer than 200 years results in unjustified " tremendous cost." HMC supported all Kerr-McGee comments. The AMC i
also advocated inserting 200 years instead of a thousand as the maximum reason-able period that assurances can be given by engineers. AMC stated that many
, factors in assessing stability such as gully erosion or land use cannot be
- predicted with certainty beyond 200 years. If NRC adopts the 1,000 year period, AMC urged that the phrase "1,000 years, where practicable, and in any case, at least 200 years" from the EPA standard be used. UMC questioned whether cover l
) designs with no maintenance are realistic and suggested that NRC has provided funds for some maintenance. WNI, AMC, and Kerr-McGee recommended deleting the phase " wit! Tut ongoing active maintenance" based on the EPA standard not flatly prohibiting some reliance on active maintenance.
i l 04/18/85 31 10 CFR 40 CHANGES f
I
Response
WY's comments highlighted an important reason #or the reactions to the existing language and the proposed change. The first paragraph of Criterion 1 is a statement of a very general goal or objective, not a specific standard or requirement. The proposed change and associated editorial errors compounded the problem. The proposed change was not intended to set aside the EPA standard for nonradiological components in 40 CFR 264.111 referenced in 40 CFR 192. It was not intended to repeat the specific design standard being added to Criter-ion 6.
Staff agrees, that on a general goal basis, the existing language was not totally inconsistent with EPA's intent. However, the reference to thousands of years can and did lead to misunderstandings. Staff still believes that the language needs modification.
Comments attacking the 1,000 years and advocating 200 years are really directed more at the EPA design standard and how it will be implemented in site specific actions than at siting implications. Staff disagrees with any position that would put the goal for protecting man and the environment from tailings at 200 years. Even site specific design decisions must assure that 200 will be met but only when 1,000 years is not practicable. The primary design standard is 1,000 years. Further, as i general goal, no planned reliance on active maintenance is consistent with the findings in the GEIS, the EPA standard and the Congressional intent in Section 161x(2) of the AEA that
...the need for long term maintenance and monitoring. ..will be minimized and, to the maximum extent practicable, eliminated." Since Congress did not flatly prohibit maintenance, NRC may consider it, but the preference for no maintenance is clear. When clearly stated as a goal and not a requirement, the goal would not preclude relying on active maintenance if no other practicable solution exists. Keeping the goal for use in future siting and design decisions where compliance can be planned for is entirely consistent with the ALARA principle and minimizing the burden to future generations.
Staff recommends clarifying Criterion 1 using a combination of existing I language and WY's suggested rewrite to show the goal versus standard point and 04/18/85 32 10 CFR 40 CHANGES .
i l
i
l F
I 1
to delete any specific time frame. Changing "shall" to "should" in the fourth paragraph of Criterion 1 will emphasize the status as a goal and be consistent with the reference to maintenance in the first sentence of Criterion 12.
Recommended rule changes:
- 1. Revise the first paragraph of Criterion 1 to read:
"The general goal or broad objective in siting and design decisions is permanent isolation of tailings and associated contaminants by minimizing disturbance and dispersion by natural forces, and to do so without ongoing 3 maintenance. For practical reasons, specific siting decisions and design standards shall involve finite times (e.g., the longevity design standard in i Criterion 6). The following site features which will contribute to such a goal or objective shall be considered in selecting among alternative tailings
) disposal sites or judging the adequacy of existing tailings sites:"
I
- 2. Change "shall" to "should" in the fourth paragraph so that it reads:
" Tailings should be disposed of a in a manner that no active maintenance is j required to preserve conditions of the site."
Modification 2.(b): This change would delete the groundwater i
modifier " usable" to be consistent with the primary thrust of the EPA standard
, o< to protect all groundwater.
The ECNR, IL, and WY supported this change. WNI urged that " usable" be left in Appendix A and that all decisions on ground water protection be deferred to the second rulemaking. Kerr-McGee also opposed this change. Kerr-McGee argued that it is arbitrary and capricious to protect unusable groundwater since j the costs would result in no benefit. Kerr-McGee urged that as a minimum, the option for site specific decisions on ground-water protection be acknowledged.
HMC supported all Kerr-McGee comments. The AMC and its supporters opposed the change for reasons discussed under Criterion 5 modifications.
1 4
04/18/85 33 10 CFR 40 CHANGES
a
Response
i The general thrust of the EPA standard is to protect all groundwater.
The proposed change was intenced to emphasize this thrust, not set aside the -
site specific option to pursue alternate concentration limits which may be based in part on the existing and potential use of the groundwater. The existing language in Criterion 1 (i.e., "... isolation of contaminants from usable groundwater sources...") sets use category as the primary goal which does conflict with the EPA standard. The proposed insert for Criterion 5 discussed under Criterion 5 should clarify this point and alleviate concerns that use category cannot be considered in decisions.
Recommended Rule Change:
Remove " usable" as proposed but add a clarifying insert to Criterion 5.
- c. Criterion 3 Modification 3.(a): This change would delete the groundwater modifiers "high quality" to be consistent with the primary thrust of the EPA standard to protect all grounawater.
The ECNP, IL, and WY supported this change. Kerr McGee opposed this change to require protection of nonusable groundwater for the same arguments stated earlier. HMC supported all Kerr McGee comments. AMC and supporters opposed the change consistent with arguments elsewhere.
Response
As noted in response to modification 2(b), the thrust of the EPA standard is to protect all groundwater and consider quality as one of many factors in site specific alternate concentration limit determinations.
Recommended Rule Change:
04/18/85 34 10 CFR 40 CHANGES
1 1 Remove "high quality" as proposed but add a clarifying insert to Criterion 5'.
i d. Criterion 4 !
Modification 4.(a): This change would delete " maximum possible flood" and insert " Probable Maximum Flood" (PMF).
The ECNP opposed this change and questioned the rationale given that the change represented the original intent of the provision. WNI recommended deletion of " maximum possible" with no replacement of modifiers. Kerr-McGee opposed this change and argued that neither the existing language nor the proposed change are appropriate. Kerr-McGee claimed that both are excessive and therefore, inconsistent with the 1,000 year longevity period in the EPA standard. Kerr-McGee claimed that stabilization can compensate for severe flooding. HMC supported all Kerr-McGee comments. AMC and supporters also objected to the existing modifiers and the proposed change and advocated a 200 year flood as cost effective and adequate to protect health and safety and the environment. WY supported the change as proposed.
1
. Response:
, The intent of paragraph (a) in Criterion 4 is to require that siting of tailings disposal areas minimize the upstream catchment area to reduce the potential for erosion regardless of the magnitude of the design flood. The modifiers " maximum possible" and " probable maximum" are both inappropriate since this criterion is not intended to discuss design flood requirements. In order to emphasize the primary purpose of the requirement, staff recommends replacing
" probable maximum flood" with " floods." The resulting language would closely track a similar Commission siting criteria for low level waste sites in 10 CFR !
Part 61. (See 10 CFR 61.50(a)(6).) Comments regarding the size of the design flood are therefore moot. However staff notes that decisions on what specific ;
design flood should be used in analysis are site specific and must be made in the context of other site and design decisions, t
04/18/85 35 10 CFR 40 CHANGES
i j Recommended Rule Change:
- Delete the modifiers " maximum possible" and replace " flood" with " floods."
i l
j e. Criterion 5 1
4 Several commenters offered general comments on conforming Criterion 5.
{ NM suggested that the ncndegradation language stated in the rationale be included in Criterion 5. EPA expressed the view that, as a general matter, the proposed changes do not adequately reflect the EPA standard's distinction l between new and existing sites. EPA specifically mentioned that the changes
},
do not reflect the " existing portion" concept as defined in 40 CFR 192.3(j) and used in the primary standard in 40 CFR 192.32(a)(1).
j 1
i WNI expressed the view that none of the change:, to Criterion 5 should be made based on Commission plans described under Scope of This Proposal in the FR notice. WNI apparently read the scope to mean that no conforming changes I
related to groundwater should be made. Kerr-McGee argued that all changes to
- Criterion 5 should be deferred to the second rulemaking and that all existing j ground-water requirements in Criterion 5 should be suspended or deleted in the l interim. Kerr-McGee argued that such deferral would avoid a fragmented approach and allow more benefit / risk analysis. HMC supported all Kerr-McGee comments.
The AMC expressed strong objection to incorporation of any of EPA's
{; ground-water protection standards. The AMC basis repeated and expanded argu-1 j ments that the EPA standard is invalid on jurisdictional grounds. AMC asserted that the Solid Waste Disposal Act standards incorporated by EPA into 40 CFR 192 l
failed the Congressional mandate to be comparable to requirements for similar
]
hazardous materials, and provided legislative history to support the assertion.
! The AMC view is based on the lack of EPA standards for similar high-volume waste ,
! such as mining wastes. The AMC concludes that the EPA standards are thus incon-l 1
sistent with law and NRC conformance violates Section 84(a)(3) of the AEA. AMC also offered objections to the standards based on practicality (e.g., all liners j leak, so a no-seepage standard is impractical) and on no adequate cost / benefit j analysis by EPA or NRC, AMC also noted that EPA comments on Appendix A when initial 1/ proposed did not challenge NRC's ground-water protection strategy.
- 04/18/85 36 10 CFR 40 CHANGES i
i I
, , - - , --.-,.,..n_- , ,.,w.- .,---,,.,--+,.n an..----,, , - ..,.n.,-. -.,,, ,. . , n.,,.,.-.,n-,,.----- r,,,.-,,---,w,.a,
1 AMC offered a ccmplete rewrite of Criterion 5 to ref' H.s recommended j approach to groundwater involving: (1) protection from unreasonable risks and
] considerion of groundwater use category, (2) distinction between existing and new sites, (3) costs commensurate with risk, and 4) site specific implomentatien.
)
WY generally supported all proposed changes to Criter'on 5. WY also urged flexibility in requiring liners at all new or expanded facilities, and NRC investigation and inclusion of processes to dry tailings.
Response
! The comments clearly reflect confusion about the status of the EPA grounewater protection standards, the status of 10 CFR 40 Appendix A require-ments, and the basis for proposing the few changes related to ground-water i
protection in advance of more comprehensive rulemaking on groundwater. As discussed order the general issues, the EPA standards have.been in effect and j applicable in regulation since December 6, 1983. NRC rulemaking is not required I to i= pose the EPA standards. NRC staff believes it has no option but to conform f and implement and enforce the EPA standards. Staff thus believes that both the EPA standards and Appendix A are effective on licensees.
! The proposed changes to Appendix A, and Criterion 5 in particular, were all intended to reflect that the EPA standard reflects the RCRA ground-water protection strategy and starts from a premise that no seepage from the impouncments or degradation of groundwater is allowed and that all groundwater is to be protected regardless of quality or use category. The changes were intenced to remove language that explicitly conflicted with this basic strategy.
l They were not intended to fully conform to or to modify the EPA standard in any way.
l i
f The EPA general comment that the distinction between new and existing ;
4 sites was not reflected was bcsed primarily on the brief rationale for the .
l proposed change rather than the changes themselves. The rationale did not 4
address the complex site specific options provided under the EPA standard j (i.e., the use of site specific alternate concentration limits as the secondary l standard). Staff carefully reviewed Criterior. 5 as an adjunct to the EPA 04/18/85 37 10 CFR 40 CHANGES
._- . . . _- - __ =. . _ __
- standards. Staff concluded that Criterion 5, with the proposed changes, does not impact the existing /new site provisions and site specific provisions of 40 CFR 192 and that no additional changes are warranted on this basis.
The AMC proposed rewrite will be considered as part of the ANpRM
{i analysis and scoping. The AMC approach would require intensive analysis and i
i support and would delay conformance.
i
.he EPA standard itself and the proposed insert to Appendix A's i i Introduction provide for' site specific decisions on any issue. Processes to !
i '
j dewater tailings are already listed as a consideration in Criterion 5, so no j further action is needed to address this comment of WY.
! l Staff concludes that specific clarification of the regulatory situa-tion on groundwater is needed. A minor change to provide a subject for the list of considerations in Criterion 5 is also recommended for clarity. i i
Recommended Rule Changes: !
l
- 1. Insert the following paragraph as the first paragraph of I Criterion 5
I ;
i
" Licensees and applicants are cautioned that the ground water pro- l visions of 40 CFR 192, Subparts 0 and E, are binding. The thrust of the EPA standards in 40 CFR 192 is nondegradation of all groundwater. The primary l j ground water standard in 40 CFR 192.32(a)(1), which applies to new or expanded j impouccments, does not include consideration of existing or future ground water quality. The secondary standard in 40 CFR 192.32(a)(2) applies to management j of all byproduct material including existing and new or expanded impoundments.
In the secondary standard, several groundwater quality criteria are considered, especially in site specific decisions on applications for alternate concentra-i tion limits. Criterion 5 supplements and does not conflict with or modify provisions of 40 CFR 192. Until or unless the Commission undertakes additional
{ rulemaking as described in the advance notice of proposed rulemaking published j in the Federal Register on November 26, 1984 (49 FR 46425), licensees and
! 04/18/85 38 10 CFR 40 CHANGES 1
l applicants must refer to both 10 CFR Part 40 and 40 CFR Part 192 for the ecmolete set of applicable ground-water protection requirements." :
I
- 2. Make the proposed first sentence the second paragraph of Criterion 5 and revise it to read:
"In developing and conducting groundwater protection programs, appli-cants and licensees shall consider'the following:" ,
i Modification 5.(a): This change would delete language implying that ,
t i seepage to groundwater is acceptable if it does not change the use category.
1 i .
l The ECNP generally supported the change but expressed concern that l
) this modification might preclude deep burial. ECNP also questioned how the EPA l standard for perfect containment will be implemented and enforced. EPA noted i that the rationale did not acknowledge that only new disposal areas must meet the no seepage requirements. EPA also suggested that a footnote referring to l
I the potential for additional changes from the.second rulemaking be added. WN!
j recemmended that the change not be made and that all changes related to ground-I water be deferred to the second rulemaking noticed in the accompanying ANPRM.
d WNI cited.the severe impact on existing sites if no seepage and no consideration j of acuifer use category are allowed. Kerr-McGee supported deletion of the first 1
sentence based on the commenter's position that nonusaDie groundwater does not i need protection and the sentence requires mitigation of all seepage, not just seecage that would contact usable groundwater. Consistent with this position, Kerr-McGee opposed deletion of the second sentence. Kerr-McGee outlined the
- benefits from disposal of tailings as backfill in the underground mines from
, which the ore came and expressed concern that deleting the reference to pre-l serving ground water use category would eliminate such a proposal. Kerr-McGee l correctly notes that the primary grouncwater water standard in 40 CFR !
192.32(a)(1) applies to surface impoundments only and the mine backfill opera- ;
tion would not be subject to the primary standard. HMC supported all Kerr-McGee f
comments.
- [
1 !
1 !
) AMC opposed all proposed Criterion 5 modifications. Dawn opposed the !
change because, in its view, the change set aside the flexibility built into the
! 04/18/85 39 10 CFR 40 CHANGES i I
)
A ___ - - - ____-__- - _-______ - _ _
1 EPA groundwater standards. Dawn referenced the secondary ground water standards !
l referenced in 40 CFR 192 that provide for degradation of groundwater when public health and safety and the environment are not at risk. Dawn supportec :ne need
(
for flexibility based on practicali_ty, remoteness of sites, and aquifer use i potential. I l
Response
l The ECNP and industry reservations and concerns about Criterion 5 L and its implementation seem to stem in part from a lack of understanding that f groundwater protection requirements are defined by both Appendix A of 10 CFR 40 and the EPA standards. The proposed changes were intended only to make Appen- (
dix A stand alone only on non groundwater matters and remove conflicts with the i EPA ground-water standards. The insert outlining the dual requirements described I in the general discussion on Criterion 5 should alleviate much of the concerns.
It will not alleviate dissatisfaction with the EPA standard itself, however, f
I The insert also addresses EPA's point on referencing the second step rulemaking.
l The option for underground mine backfill disposal advocated by Kerr-McGee is a unique and site specific circumstance not precluded by NRC or EPA rules. Since it is not precluced, staff does not believe that specific require- '
ments or changes are needed to be able to address this option in a site specific licensing decision.
Recommended Rule Change:
Delete the language as proposed and rely on the Criterion 5 insert. '
Modification 5.(b): This change would delete language referring to i bottom liners of " low permeability."
l f
The ECNP also generally supported this change with similar reserva- I tions expressed for modification 5(a). Kerr-McGee oejected to this change on l the grounds that the remaining 1;nguage could imply that synthetic liners must be installed under existing tallings piles. Kerr-McGee stated that such installation is not required by tne EPA standard since existing portions are 04/18/85 40 10 CFR 40 CHANGES
l l
l 1
i
- exempted under 40 CFR 192.32(a)(1) and furthermore is neither cost effective '
nor justified. HMC supported all Kerr-McGee comments. AMC opposed all proposed j Criterion 5 modifications. Dawn opposed this modification on technical grounds. j Dawn pointed out that no material is totally impermeable and that state of the i
- art liners have permeability ratings on the order of 10 " m/sec.
1 l
l Response:
i The Kerr-McGee and Dawn comments are the only ones involving issues I not addressed elsewhere. Kerr-McGee's concern that synthetic liners would be f required under existing tailings impoundments does not stem from the proposed
} deletion of modifiers. The proposed deletion results in having to consider
! installation of bottom liners instead of low permeability bottom liners. Staff j does not see how this modest change impacts the resolution of what type of l remedial ground water protection action may be required at existing sites.
! Dawn's observation that in an absolute and theoretical sense even 4
1 synthetic liners are not impermeable, is technically correct. The only way i synthetic liners can meet the EPA standards in 40 CFR 192 is in consideration i
- f. that the synthetic liner requirements applies only to the operation and closure phases (20-30 years), not to the long term post closure phase. Staff concern j is that most people reading the reference to " low permeability" will not I consider the absolute or theoretical concept. Staff believes that most readers l l would consider clay as low permeability and synthetic materials as impermeable. l Deletion of " low permeability" leaves the issue of what type of liners are acceptable to the more specific EPA standards.
l )
l Recommended Rule Change:
i I
(
Delete " low permeability" as proposed. .
I 1
] Modification 5.(c): This change would delete a reference to I
potential use category as a standard.
I 2
The ECNP supported the change but questioned implementation aspects.
I Kerr-McGee opposed NRC's nondegradation rationale for this change but supported l
1
- 04/18/85 41 10 CFR 40 CHANGES I
i 1
the change. Kerr-McGee claimed that restoration to use category may be unjusti-fied and stated that the deletion would leave the issue of degree of restoration open. HMC supported all Kerr-McGee comments. AMC opposed all proposed changes to Criterion 5. Dawn opposed the change arguing tnat the existing language is l inconsistent with considerations allowed in determining alternate concentration limits under the EPA standard and that deletion allows NRC to be more restric- I j tive in degree of restoration than the existing rule. Dawn indicated that situations at existing facilities will require flexibility to consider ground-water quality in restoration decisions.
i j Response:
l Staff agrees that deletion of the requirement to restore to ground-water "to its potential use before milling operations began to the maximum ,
j extent practicable" leaves the degree of restoration.open. This was the intent
! of the proposed change. Staff also agrees that the degree may be more or less I
1 restrictive than use category preservation. The degree of restoration will be
~
determined in a site specific basis in accordance with the EPA groundwater protection standards. The insert at the beginning of Criterion 5 should help emphasize the dual requirements.
l Recommended Rule Change:
f I
l Delete the phrase as proposed.
Modification 5.(d): This change would delete references to use j category and tailings in contact with groundwater. l
\
l j The ECNP supported this change. EPA suggested that this language f referring to protecting groundwater by isolation of tailings and tailings solutions be retained. Kerr-McGee opposed the deletion for the same reasons 1
noted for modification 5(a). HMC supported all Kerr-McGee comments. AMC +
j opposed all proposed changes to Criterion 5.
1 1
04/18/85 42 10 CFR 40 CHANGES I i
. _ _ - , , , . . . _ . - . . _ _ _ . , ~ .___..,_.....,_..,._.____...,_-._.._,.__.._....,..._,_.,__.._-.____,m,__,,._,._,
Response
The only new issue in comments on this proposed change is EPA's suggestion to keep the isolation goal. The general goal of isolation is included and emphasized in the revised first paragraph of Criterion 1. (Seg Modification 2(a) discussion.)
Recommended Rule Change:
L Delete the paragraph as proposed.
Modification 5.(e): The groundwater modifier " usable" woula be deleted.
The ECNP supported this change. Kerr-McGee opposed the change and indicated that the change would impose costly monitoring or other requirements for nonusaole groundwater. HMC supoorted all Kerr-McGee comments. AMC opposed
~
all proposed changes to Criterion 5.
Response
No new issues or information were identified in comments on this change. The change would result in having to characterize the whole ground-water regime at the site but does not impose any monitoring. Such characteri-zation would be necessary to support any requests for alternatives to synthetic liners or proposals for alternate concentration limits under 40 CFR 192 ground-water requirements and is thus consistent with the EPA standard.
Recommended Rule Change:
Delete " usable" as proposed.
04/18/85 43 10 CFR 40 CHANGES
- f. Criterion 6 Modification 6.(a): This change would delete the two picocuries per square meter per second radon flux and minimum 3 meter cover thickness provisions and insert EPA's radon flex and longevity and stabili:ation standard.
ECNP and AMC opposed these changes in their entirety. The ECNP stromgly apposed these changes based on views that the EPA standard inadequately protecti he environment. ECNP further expressed the view that even the more restrictive NRC requirements proposed for deletion may not be adequate protec-
- tion. AMC opposed incorporation of the EPA standards based on jurisdictional arguments, i.e. the standards apply inside the site boundary and are therefore invalid. AMC also argued that no limit on radon emissions is warranted based on risk and therefore that any limit does not adequately balance cost and risks. The AMC repeated arguments that active maintenance should be included to allow higher radon flux values by relying on limited access to sites and that the stabilization period for uranium tailings should be 200 years, not 1 1,000, if included. /~
Response
The basic arguments expressed by ECNP and AMC were addressed generi-cally under general issues dealing with comments on the EPA standard itself.
Commenters also specifically opposed includng the EPA 20 picacurie i
flux standard. EDF, IL, and Lewis objected to deleting the Appendix A 2 pico-curie flux value and adoption of the 20 value in the EPA standard as being too lax. The EDF argued that the 2 picocurie flux is ALARA, is easily met based on the Department of Energy's Title I research experience and is cost effective.
WNI objected to incorporation of the 20 picocurie flux claiming that costs to comply far outweigh any benefits.
Response
Comments objecting to the 20 picocurie flux generally used the same arguments as used against the EPA standard addressed under general issues.
i 04/18/85 44 10 CFR 40 CHANGES
The one exception is the EDF reference to Title I research. The 00E Title I research experience compared costs for different types of cover strategies; nowever these studies didn't perform analyses which would result in conclusions on the warranted levels of radon releases from covered tailings. To truly investigate whether the meeting of the 2 pCi/m2 -sec flux criterion is ALARA would require a cost-benefit analysis, which EPA did in its Final Environmental Impact Statement for Standards for the Control of Byproduct Materials from Unranium Ore Processing (40 CFR Part 192), Volumes 1 and 2, EPA 520/1-83-008-1 and 2, September,1983 and Regulatory Impact Analysis of Final Environmental Standards for Uranium Mill Tailing at Active Sites, EPA 520/1-83-010, September, 1983. As a result of the EPA analysis., the additional deaths avoided didn't warrant the reduction of the criterion below 20 pct /m2-sec from a cost benefit standpoint.
It should also be noted that although laboratory and field experience by both 00E and NRC confirm that the 2 pCi/m2-sec criterion can be met, it is difficult to prove that it can be significantly maintained over the long-term i..
due to weathering, settlement and other defect generating mechanisms. Moreover, the proximity of the 2 pCf/m2-sec flux to the natural radon flux from background i
sources allows for too much uncertainty in the predictive methodologies and ranges for parameter input values. Little relief can be obtained by actual monitoring, since, monitoring data results at these low radiation levels can be of marginal value, due to the levels of uncertainty involved. The uncertainty j
is addressed in the design standard by the " reasonable assurance" implementa-l tion criterion, whereby NRC utilizes reasonably conservative parameter values
) in predicting the long-term radon flux. The resulting flux levels are usually much less than a factor of 10 above the 2 pCi/m 2 -sec flux criterion used in I the past.
Three commentors argued against deleting the minimum 3 meter cover requirement. Lewis objected to deletion of " requirements for specific ground cover", i.e., the 3 meter minimum, and expressed the view that Criterion 6 "is destroyed." EPA recommended that the 3 meter minimum cover requirement be i kept "to provide reasonable assurance of adequate long-term performance of the l cover under erosional and other stresses." The EPI similarly objected to '
deletion of the 3 meter minimum cover requirement based on the protection depth 04/18/85 45 I' 10 CFR 40 CHANGES
affords against erosion and intrusion. EPI also argued that " reasonable assur-ance" of meeting the 20 picocurie flux requires a thicker cover than one that merely meets the 20 limit.
Response
Comments objecting to deleting the 3 meter minimum cover focused on the need for erosion and intrusion protection as adequate reason for 3 meters independent of any radon flux consideration. As noted in the rationale for the proposed change, the specific thickness of 3 meters was derived from radon flux considerations. These considerations were based on meeting the 2 pico-curie or twice-background performance criteria and are clearly inconsistent with the 20 picocurie value. Staff agreed in the GEIS and agrees now that effective covers are needed for long term protection. Site specific experience and further research and analysis on long term stability (e.g., NUREG-3397, " Design Considerations for Long-Term Stabilization of Uranium Mill Tatlings Impound-ments") have indicated that effective a,1,ternatives to total reliance on soil thickness are feasible and may make more environmental and economic sense.
Well designed rock covers on the tops and side slopes of reclaimed tailings can provide sufficient erosion protection so that a soil cover of less than 3 meters may be acceptable. Deletion of the minimum cover thickness does not relieve licensees from the requirement to provide effective covers. It provides for site specific alternative designs to accomplish the same erosion and intrudcr protection. While staff agrees that " reasonable assurance" requires some degree of conservatism, staff does not agree that " reasonable assurance" dictates a factor of ten conservatism, as EPI's arguments indicate.
CO objected to including the 200 year minimum longevity requirement based on the small incremental costs and practicality of meeting the longer (1,000 year) time and the longevity of the hazards from tailings. Ecology / Alert questioned the 200 year " loophole." As noted earlier, AMC advocated a 200 year standard.
04/19/85 46 10 CFR 40 CHANGES
Response
The 200 year minimum longevity requirement provides relief in those unique reclamation situations where the 1,000 year criterion can be shown to be too much of a cost hardship to satisfy. Staff views the EPA longevity standard to be 1,000 years unless site specific circumstances preclude meeting 1,000 years. Staff rejects the AMC assertion that the standard is or should be 200 years with no attempt to meet 1,000 years. The language and intent of the EPA standard proposed for insertion in Criterion 6 is clear in this regard.
IL objected to NRC's proposed use of design standards and suagested that NRC rules explicitly require proof that the design has been met by the
- reclamation actions. In support of its position, Il cited EPA /NRC jurisdiction,
- disposal.and engineering experience, and the long-term hazards.
J q Response:
~
The EPA longevity"and radon standard is written as a design standard. i Requirements to confirm adequacy of design during and after construction have l
1 merit but will be very site and design specific. Normally, key design features and quality control would be specified in site specific license conditions.
Normal inspection and enforcement activities would include quality control and compliance with designs approved and specified in license conditions. The site 1
specific conditions and levels of uncertainty in the design might result in some need to confirm design parameters after the fact but such a need should be the exceptiert. Expressing the standard as a design standard does not preclude such site specific findings. The related issue of radon flux monitoring is discussed under the next modification (6.(b)).
Three commenters offered clarifying suggestions. EPA recommended clarifying the reference to " permanent disposal". NM recommended defining the !
I term " disposal area". WY suggested that NRC address how it will implement and apply the longevity design standard and make findings. WY also suggested that the standard be clarified to make it clear, that to the extent practicable, the ;
cover would still meet the 20 picoeurie flux limit at the end of the 1,000 year i design period.
04/18/85 47 10 CFR 40 CHANGES l
l
(
Response
Staff agrees with the EPA suggestion to clarify " permanent disposal" and recommends the change listed below. The " disposal area" definition is addressed indirectly in the third paragraph of the proposed Criterion 6. The third paragraph picks up the threshold activity limits that define when the longevity and radon requirements on post-closure apply. EPA defined disposal area" only in terms of the applicability of 40 CFR 192.32(b)(1). Staff sees no need for additional definition. The WY suggestion to address implementa-tion would result in a level of detail in the rule normally relegated to NRC guidance documents. Existing guidance documents on reclamation planning and design may need some followup modification. The NRC is planning to review or has reviewed existing documents and is exploring the need for additional implementing guidance, l
Staff agrees with WY that the EPA standard is not completely clear that the flux limit is to be met throughout the effective design life to the extent practicablNa~nd proposes the change listed below.
Kerr-McGee supported tne change for uranium byproduct material but opposed including thorium byproduct material standards. Kerr-McGee correctly observed that its West Chicago facility is the only current thorium facility subject to the thorium standards and urged that the generic standards should not be applied or that at least explicit flexibility for site specific decisions should be included in Criterion 6. Kerr-McGee did not identify specific prob- i lems and based its arguments on inadequate analysis by EPA in issuing the stand-ards. HMC supported all Kerr-McGee comments. The AMC objected to including thorium byproduct material provisions and suggested a 50 year stabilization time period for thorium if included. The short time period was supported by argumentsonshorterlivedradionuclides(inthethorium232 chain)andreli-ance on institutional controls. UT's comments on the technical basis for the EPA thorium values are discussed under Modification 6(d).
Response: '
The comments opposing incorporation of the EPA standards for thorium byproduct material are generally expressing dissatisfaction with the EPA stand-ard itself. The EPA standard in 40 CFR 192.42 provides for substitute generic 04/18/85 48 10 CFR 40 CilANGES l
l l
i orovisions to those in Subpart E, but with EPA concurrence. Thus a rulemaking ;
on different thorium standards would be totally discretionary on NRC's part and f require extensive supporting analysis. The thorium standards proposed for l insertion are already in effect on NRC and state licensees and are nondiscre- -
I tionary. NRC repetition in 10 CFR 40 has no bearing on their status. Staff ;
does not consider rulemaking for the one site subject to the standard for the !
foreseeable future to be warranted. NRC has the authority to consider and approve site specific alternatives if the finding in Section 84c can be made. ;
Staff believes that the objective of having 10 CFR 40 be complete on all non-ground,ater protection requirements justifies repetition of already binding
, standards. As a technical observation, staff notes that AMC arguments on shorter periods of control required do not take into account the real world mix of natt. rally occurring isotopes of natural thorium and the presence of uranium and its daughters in most thorium ores. The complexity of the mixtures high-1 light! the site specific aspects and the difficulty of developing alternative generic standards.
Recommended Rule Changes:
i
- 1. In the first sentence of proposed new Criterion 6, delete the ;
l words "In cases where waste byproduct material is to be permanently disposed. '
an earthen cover shall be placed" and insert "In disposing of waste byproduct material, licensees snall place an earthen cover". !
q =~
- 2. Insert at the end of the first sentence of proposed new !
Criterion 6 after (pC1/m s) the phrase "to the extent practicable throughout the effective design life determined pursuant to (i) above".
Modification 6.(b): This change would add the two radon flux modify-ing footnotes from the EPA standard that specify that no monitoring is required, averaging is allowed, and cover materials do not have to be coqsidered in meet- ,
ing the flux ilmit.
The ECNP opposed adding the EPA footnotes because the footnotes state !
that no monitoring of the radon flux is required and that, averaging is allowed.
{
The EDF aso argued that radon releases should be monitored for 40 50 years after 1
04/18/85 49 10 CFR 40 CHANGES :
l reclamation. IL, CO, NM and EPI also objected to no monitoring of flux levels.
C0 objected that the averaging provision is too vague. Il expressed concern that the language clarifying that cover materials not be considered in tne 20 picocurie flux calculations would result in the use of high radium content soils for covers.
Kerr-McGee noted that the changes are consistent with the EPA standard but repeated the view that the EPA standard is invalid. HMC supported all Kerr-McGee comments. The AMC agreed with including footnote 1 as proposed since it clarifies that the standard is a design standard, but because of AMC's position that no limits on radon flux are warranted, footnote 2 should not be incorporated.
l
Response
l l The footnotes quoted from the EPA standards in 40 CFR 192 are necessary
! to define how EPA intended the longevity and radon standards to be used. The
! footnotes set the conditions which EPA supported as a reasonable balance of cost and benefit that would be achievable with present state of the art.
While NRC does have the authority to require monitoring of flux levels as the comments note, the practical problems which led EPA to issue a design
! standard and NRC experience in radon attenuation measurements and calculations convince staff that flux monitoring should not be mandated. Measurement of flux l levels in the field is difficult and subject to wide variations due to factors such as sensitivity to measurement methods, meteorological variations, non-l homogeneity of the tailings piles, and disturoance of the radon releases by the monitoring process. Monitoring flux lavels in controlled experimental situa-tions can provide useful data with sufficient precision to evaluate the relative importance of design considerations such as moisture content or vegetative pene-tration. However, tne difficulties and variations in measurements and measure-ment techniques convince staff that the EPA design standard should not be imple-mented as a performance standard. NRC's current method for providing reasonable j assurance that the EPA flux standard will be met focuses on the selection and l
application of parameters and calculational methodology for radon barrier design. Experience and research to date have included development and valida-tion of standardized calculation methods and determining the relative importance 04/18/85 50 10 CFR 40 CHANGES
i l
of individual parameters. Some parameters affect calculated cover recuirements very little from site to site. Others are very site specific and may require i field and laboratory data. Parameter values must be chosen to represent the expected long-term conditions of the cover. NRC's approach is the approach EPA intended, involves conservative site specific resolution, and commits NRC and 00E or licensae resources up front to properly design the cover before the
! reclamation work begins. Further, NRC expects to review quality assurance l records during construction to assure that the approved design is implemented in the field. In summary, staff believes that current design and review methods provide ample assurances. Staff notes that Agreement States such as CO ;
- can adopt more restrictive standards than EPA or NRC and may mandate monitoring if desired.
Staff experience also supports the need for averaging over the impoundment. The tailings are not homogeneous. Airborne transport of radon offsite results in mixing before members of the public are exposed so that doses are reflected by average values, Also, the averaging minimizes the effects of variability in the values of parameters and reduces the need to specify error ranges. Details on calculation methods are more appropriate in guidance documents that can be tailored to site specific conditions and track state of the art and experience.
i !
I
- IL's concern about hign radium content of cover materials is addressed i in the second paragraph of the proposed modified Criterion 6. The second para-grapn contains the requirements on low radium content that were already in Appendix A. The footnote only clarifies that the EPA standard applies to the !
tailings flux through the cover and that radon from cover materials are not to I l be included in demonstrating compliar.ce with the 20 picoeurie flux.
Proposed Rule Change: !
1 Add the footnotes as proposed, j
Modification 6.(c): This change would correct a typographical error
! and delete the 3 meter requirement.
- 04/18/85 51 10 CFR 40 CHANGES 1
I i
_. -. . . _ _ _ __ -. _. . . - - . _ __ _ - . _ _ _ = _ _ _ _ _ - _ _
l l
l ECNP, IL, and EPI opposed deletion of the 3 meter minimum earth cover requirement as noted under Modification 6(a). Kerr-McGee and AMC and '
their supporters generally supported the change.
Response
See Modification 6(a).
1 Proposed Rule Change:
Correct typographical error and delete 3 meter requirements as proposed.
Modification 6.(d): This change would add the threshold radium ,
levels for applicability of the inserted EPA standard on longevity and control of radon releases. l ECNP opposed this change and advocated an absolute nondegradation standard for radon releases. C0 expressed the view that since averaging over 100 square meters allows highly contaminated small areas to be ignored, it is ;
insufficiently protective. UT offered a numoer of technical arguments relating to racon production on why the threshold radium 228 values for thorium byproduct material should be different from uranium values. UT suggested that the o thorium limits from the EPA standard not be added to NRC rules since they are unjustifiaoly high.
Kerr-McGee did not specifically comment on this change but its post-tion on Modification 6(a) and (b) would imply that no thorium provisions should I be included. AMC opposed the modification based on jurisdictional arguments and .
I the lack of technical consistency between the threshold values and the 20 pico-
{
curie flux limit. AMC stressed that the allowable radon releases from the tail- ,
ings is higner than the radon releases that result from contamination at the ,
threshold limits. AMC also argued that institutional controls had not been ;
adequately considered by EPA in setting the limits and that the limits were l
l not based on realistic risk assessment.
04/18/85 52 10 CFR 40 CHANGES
1 i
l s
Response
The language proposed for insertion is needed to reflect the condi-tions under which EPA intended the longevity and radon standard to apply. The modification as proposed would allow NRC to be more restrictive if warranted ,
by site specific conditions. NRC may require some degree of control for areas contaminated above background but below the threshold levels. EPA acknowledged this option in its rulemaking. Such site specific decisions would be a part of the NEPA review of licensee's reclamation plans. Explicit mention of this option in Appendix A is not required to maintain the option for controls and the proposed change does not preclude additional controls. All other comments were directed at the EPA standard, not NRC options.
Recommended Rule Change:
Add the paragraph as proposed.
- g. Criterion 8 r
~.2 ,
Modification 7.(a): The change would add the EPA standard language ontheaslo'waspra[ticablegoalsforradonreleasesduringoperations.
~
,, . The ECNP expressed reservations about implementation and enforcement
- of the as low as practicable goal and the lack of specific time limits for completion of stabilization'and radon control after operations cease. EDF expressed more pointed concerns on time limits and proposed additional changes J
f to address their concerns. "WNI,had no objection. Kerr-McGee had no objection other than general' objection to the EPA standards. AMC and supporters recem-f mended that the won) " practicable" be deleted and the phrase " reasonably j - achievable" be in'serted to morir accurately reflect EPA intent. AMC cited EPA's intent as described in the preimble to final 40 CFR 192 (48 FR 45933) to implement the Federal Radiation Protection Guidance of May 13, 1960. As EPA ,
recognized in the preamble, "this guidance is currently known as the 'as low as reasonably achievable' (ALARA) principle". AMC also noted that the language change from practicable to ALARA is reflected in Commission rules in 10 CFR 20.
A 04/18/85 *- 53 10 CFR 40 CHANGES
~
4 e O
f
Response
As noted earlier, discretionary additional changes such as time limits, interim stabilization, and phased disposal recommended by EDF and others were considered outside the scope of this action.
Staff agrees that EPA's intent was to impose the ALARA principle and that ALARA is more consistent with Commission radiation protection policies as reflected in 10 CFR Part 20. The actual language in a standard has higher legal force than the preamble stating intent, but in this case since numerical values or other specific provisions are not involved.,the. Commission has more flexibility in conforming. Staff agrees that the intended general guidance is more accurately ALARA.
Recommended Rule Change:
Add the proposed modification but delete " practicable" and insert
" reasonably achievable" Modification 7.(b): These changes would add language from tne EPA standard imposing 40 CFR 190 equivalent limits for thorium byproduct materials and compliance with 40 CFR Part 440, Subpart C.
The ECNP objected to the " reasonable assurance" language in the text added from the EPA standard and suggested that NRC was replacing actual stan-dards with-this insert. WNI noted no comment on this change. Kerr McGee opposed including the thorium byproduct standards for the same reasons noted and responded to under Modification 6(a). HMC supported all Kerr McGee comments.
The AMC recommended that waiver provisions from a recent EPA rulemaking under the Clean Air Act (50 FR 5190, February 6,1985) be incorporated into the thorium dose limits. The AMC also opposed adding the language requiring compliance with 40 CFR Part 440, Subpart C stating that these regulations are ,
invalid since EPA lacks authority to regulate byproduct material under the Clean Water Act.
04/18/85 54 10 CFR 40 CHANGES
Response
The proposed text was ouoted verbatim from the EPA standard in 40 CFR 192. No deletions or modifications of ex.isting NRC rules are involved. The proposed change incorporates for clarity standards that are already binding on NRC licensees for clarity and eliminates the need to refer to 40 CFR 192 for any requirements other than groundwater protection. While the waiver provision suggested by AMC may have merit in considering site specific situations, the staff does not believe that such a generic discretionary rulemaking is warranted.
Staff has no basis to act on AMC arguments that 40 CFR 440, Subpart C, is invalid.
Recommended Rule Change:
Add the modification as proposed.
- h. Modification 8: Criteria 2, 7, 9, 10, 11, and 12 not affected by proposed changes.
EPA noted that the second step rulemaking on groundwater and other provisions to be comparable to SWOA requirements may affect these criteria.
No response to this correct observation is needed. Changes to these criteria recommended by commenters are addressed under Scope of Rulemaking as a general issue.
04/18/85 55 10 CFR 40 CHANGES
ENCLOSURE E DRAFT PUBLIC ANN 0UNCEMENT (To be supplied by the Office of Public Affairs) l l
ENCLOSURE F 4
I
Dear Mr. Chairman:
The U.S. Nuclear Regulatory Commission (NRC) is amending the Commission's rules in 10 CFR Part 40 for licensing uranium mills and disposal of mill tailings and waste.
The NRC Authorization Act for FY 1983 (Public Law 97-415) contained a requirement that the Commission modify its mill tailings regulatiors to conform to final Environmental Protection Agency (EPA) standards for these materials.
Final standards were signed by the Administrator September 30, 1983 and published on Octcber 7, 1983 (48 FR 95928).
The NRC is following a two-step rulemaking process to modify its rules to make them consistent with the EPA standards and satisfy provisions of Section 205 of the Uranium Mill Tailings Radiation Control Act of 1978, as amended. Proposed changes to 10 CFR Part 40 were published in the Federal Register for public comment (49 FR 46418, November 26,1984). The enclosed Federal Register notice reflects consideration of comments received on the prcposed rule changes. The enclosed amendments to Appendix A consist of changes to the existing Commission regulations necessary to conform to the new EPA standards and to incorporate within Commission regulations those provisions of the EPA standards not related
4 Minor conforming amendments to Appendix A, as siecessary to to ground water. i ovisions of EPA's new remove inconsistencies with the ground-water protect on pr An accompanying advance notice (49 FR 46425 standards, are also included. l king to .
26,1984) outlined the NRC's plans for a further ru ema '
November d ater consider the incorporation within NRC regulations of the groun -w EPA ground-water protection standards in the October 7,1983i ions rules and of the other Solid protection requirements issued by the EPA pursuant to prov s Waste Disposal Act, as amended.
i t r for The enclosed notice is being sent to the Office of the Federal i Reg s e A copy of a public announcement to be released by the NR publication.
matter is also enclosed.
Sincerely, 4
John G. Davis, Director Office of Nuclear Material Safety and Safeguards
Enclosures:
- 1. FR Notice on Final Amendments
- 2. Public Announcement 1
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