[Federal Register Volume 59, Number 25 (Monday, February 7, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-2693]
[[Page Unknown]]
[Federal Register: February 7, 1994]
_______________________________________________________________________
Part II
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 61
National Emissions Standards for Hazardous Air Pollutants; Proposed
Rule
=======================================================================
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 61
[FRL 48-357]
RIN 2060-AE23
National Emissions Standards for Hazardous Air Pollutants
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is supplementing its December 31, 1991 proposal to rescind
40 CFR part 61, subpart T (subpart T) as it applies to owners and
operators of uranium mill tailings disposal sites licensed by the
Nuclear Regulatory Commission (NRC) or an affected Agreement State
(Agreement States). This document supplements, and does not withdraw
EPA's prior proposal to rescind. This document describes and invites
comment on provisions for reconsideration of rescission and
reinstatement of subpart T, and describes relevant events that have
occurred since the December 1991 proposal. Additionally, EPA invites
comment on the Agency's proposed determination that the NRC regulatory
program protects public health with an ample margin of safety,
including specific aspects of that determination.
Neither proposal applies to uranium mill tailings disposal sites
regulated under subpart T that are also under the control of the
Department of Energy (DOE). As a National Emission Standard for
Hazardous Air Pollutants (NESHAPs) promulgated on December 15, 1989,
subpart T regulates emissions of radon-222 into the ambient air from
uranium mill tailings disposal sites. EPA is requesting comments only
on the contents of this notice and has included a specific request for
comments as to certain aspects of this proposal. EPA is establishing a
45 day comment period for receipt of all comments.
DATES: Comments concerning this proposal must be received by EPA on or
before March 24, 1994. A public hearing will be held on March 9, 1994,
in Washington, DC if a request for such a hearing is received by
February 22, 1994.
ADDRESSES: Comments should be submitted (in duplicate if possible) to:
Central Docket Section LE-131, Environmental Protection Agency, Attn:
Air Docket No. A-91-67, Washington, DC 20460. Requests to participate
in the public hearing should be made in writing to the Director,
Criteria and Standards Division, 6602J, Office of Radiation and Indoor
Air, Environmental Protection Agency, 401 M Street, SW., Washington, DC
20460. Comments and requests to participate in the hearing may also be
faxed to EPA at (202) 233-9629.
FOR FURTHER INFORMATION CONTACT: Gale C. Bonanno, Air Standards and
Economics Branch, Criteria and Standards Division, 6602J, Office of
Radiation and Indoor Air, Environmental Protection Agency, Washington,
DC 20460 (202) 233-9219.
SUPPLEMENTARY INFORMATION:
Docket
Docket A-91-67 contains the rulemaking record. The docket is
available for public inspection between the hours of 8 a.m. and 4 p.m.,
Monday through Friday, in room M1500 of Waterside Mall, 401 M Street,
SW., Washington, DC 20460. A reasonable fee may be charged for copying.
Table of Contents
I. Background
A. Description of Uranium Mill Tailings
B. Regulatory History
C. Clean Air Act Amendments of 1990
D. Memorandum of Understanding (MOU) between EPA, NRC and affected
Agreement States
E. The Settlement Agreement
II. Rationale for Proposed Rule to Rescind 40 CFR Part 61 Subpart T for
NRC and Agreement State Licensees
A. The Regulatory Scheme Under UMTRCA
B. Clean Air Act Amendments of 1990: Section 112(d)(9) (``Simpson
Amendment'')
C. Memorandum of Understanding (MOU)
D. Settlement Agreement
E. Actions by NRC and EPA Pursuant to the MOU and Settlement
Agreement
1. EPA Regulatory Actions
2. NRC Regulatory Action
3. Amendment of NRC and Agreement State Licenses
III. Proposed Rule to Rescind 40 CFR Part 61, Subpart T for NRC and
Agreement State Licensees
A. Proposed EPA Determination under CAA Section 112(d)(9)
1. Background
2. EPA's UMTRCA Standards
3. NRC's Proposed Conforming Regulations
4. License Amendments to Date
B. Reconsideration Provisions
1. December 31, 1991 Proposed Rule to Rescind subpart T
2. Reconsideration Options
IV. Request for Comments
V. Miscellaneous
A. Paperwork Reduction Act
B. Executive Order 12866
C. Regulatory Flexibility Analysis
I. Background
A. Description of Uranium Mill Tailings
Uranium mill tailings are sand-like wastes that result from the
processing of uranium ore. Tailings are stored in large surface
impoundments, called piles, in amounts from less than one million tons
to over thirty million tons, over areas that may cover hundreds of
acres. Most piles are located in the Western United States, and all
piles emit radon gas, a decay product of radium in the waste material
resulting from the processing of ore to recover uranium at the uranium
mills.
B. Regulatory History
To deal specifically with the risks associated with these tailings,
Congress passed the Uranium Mill Tailings Radiation Control Act
(UMTRCA) in 1978 (42 U.S.C. 2022, 7901-7942). In enacting UMTRCA,
Congress found that uranium mill tailings may pose a potential and
significant radiation health hazard to the public, and that every
reasonable effort should be made to provide for the stabilization,
disposal, and control in a safe and environmentally sound manner of
such tailings in order to prevent or minimize radon diffusion into the
environment and to prevent or minimize other environmental hazards from
such tailings. See 42 U.S.C. 7901(a). Under UMTRCA, two programs were
established to protect public health and the environment from the
hazards associated with uranium mill tailings. One program (Title I)
required the Department of Energy (DOE) to conduct the necessary
remedial actions at designated inactive uranium mill tailing sites to
achieve compliance with the general environmental standards to be
promulgated by EPA. These sites were generally abandoned uranium
processing sites for which a license issued by the NRC or its
predecessor, the Atomic Energy Commission (AEC), was not in effect on
January 1, 1978. The other program (Title II) pertained to active
sites, which are those that are licensed by the NRC or an affected
Agreement State. Requirements for licensed sites include the final
disposal of tailings, including the control of radon after milling
operations cease. UMTRCA also required that EPA promulgate standards
for these licensed sites, including standards that protect human health
and the environment in a manner consistent with standards established
under Subtitle C of the Solid Waste Disposal Act, as amended. The NRC,
or an Agreement State, is responsible for implementing the EPA
standards at licensed uranium milling sites.
As part of NRC's 1982 authorization and appropriations, Congress
amended UMTRCA on January 4, 1983. Public Law 97-415, sections 18(a)
and 22(b), reprinted in 2 1982 U.S. Code Cong. & Admin. News at 96
Stat. 2077 and 2080. As partially amended thereby, EPA was required to
promulgate standards of general applicability for the protection of the
public health, safety, and the environment from radiological and
nonradiological hazards associated with the processing and with the
possession, transfer, and disposal of byproduct material as defined
under section 11e(2) of the AEA, e.g., uranium mill tailings.
Requirements established by the NRC with respect to byproduct material
must conform to the EPA standards. Any requirements of such standards
adopted by the NRC shall be amended as the NRC deems necessary to
conform to EPA's standards. In establishing such standards, the
Administrator was to 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. See 42 U.S.C. 2022(b)(1).
As promulgated by EPA under subpart D of 40 CFR part 192 in 1983
and implemented by NRC pursuant to its regulations at 10 CFR part 40,
appendix A, a Title II site licensed by NRC or an Agreement State,
could indefinitely continue to emit radon at levels that could result
in risks higher than allowed under the CAA. It was this possibility
which compelled EPA to promulgate subpart T of 40 CFR part 61 under CAA
section 112. In addition, the UMTRCA regulations prior to the recent
EPA amendments called for an impoundment design that would achieve
compliance with the 20
pCi/m2-s flux standard for 1,000 years, or at least 200 years, but
they did not include any requirement that monitoring occur to verify
the efficacy of the design.
On October 16, 1985, NRC promulgated rules at 10 CFR part 40,
appendix A to conform NRC's regulations issued five years earlier to
the provisions of EPA's general UMTRCA standards other than those
affecting ground water protection at 40 CFR part 192. (50 FR 41852).
NRC completed conforming amendments for groundwater protection in
appendix A of part 40 in 1987.
Neither the UMTRCA standards promulgated by EPA in 1983 nor the NRC
standards promulgated in 1985, established compliance schedules to
ensure that non-operational tailings piles would be closed, and that
the 20 pCi/m\2\-s standard would be met, within a reasonable period of
time. Moreover, the EPA standards and NRC criteria also did not require
monitoring to ensure compliance with the flux standard. 50 FR 41852
(October 16, 1985). To rectify these shortcomings of the current EPA
and NRC programs regulating uranium mill tailings, EPA promulgated
standards under Section 112 of the CAA on October 31, 1989, to ensure
that the piles would be closed in a timely manner with monitoring.
On December 15, 1989, EPA promulgated national standards regulating
radionuclide emissions to the ambient air from several source
categories, including non-operational sites used for the disposal of
uranium mill tailings. (54 FR 51654). These sites are either under the
control of the DOE pursuant to Title I of the Uranium Mill Tailings
Radiation Control Act (UMTRCA) of 1978, 42 U.S.C. 7901 et. seq., or are
under the control of NRC or Agreement State-licensees pursuant to Title
II of UMTRCA. These standards--subpart T of 40 CFR part 61 (subpart
T)--were promulgated pursuant to the authority of Clean Air Act (CAA or
Act) section 112 as it existed in 1989.
Subpart T of 40 CFR part 61, limits radon-222 emissions to the
ambient air from non-operational uranium mill tailings disposal sites
licensed by the NRC or an affected Agreement State. Subpart T requires
that these sites, which consist of large (i.e., numerous acre)
impoundments or piles, comply with a radon flux standard of 20 pCi/
m\2\-s. 40 CFR 61.222(a). Moreover, compliance must be achieved within
two years of when the site becomes non-operational, 40 CFR 61.222(b),
which for piles which had ceased operation prior to the time of
promulgation was no later than December 15, 1991. While at the time of
promulgation EPA recognized that many sources might not be able to
achieve this date, EPA was constrained by then existing CAA section
112(c)(1)(B)(ii) which allows a maximum of two years for facilities to
come into compliance. EPA stated that for those sites which could not
meet the two-year date, the Agency would negotiate expeditious
compliance schedules pursuant to its enforcement authority under CAA
section 113. See 54 FR 51683. Subpart T also calls for monitoring and
recordkeeping to establish and demonstrate compliance. See 40 CFR
61.223 and 61.224.
Subpart T was part of a larger promulgation of radionuclide NESHAPs
that represent the Agency's application of the policy for regulating
CAA section 112 pollutants which was first announced in the benzene
NESHAP. 54 FR 38044 (September 14, 1989). The NESHAP policy utilized a
two-step approach. In the first step, EPA considered the lifetime risk
to the maximally exposed individual, and found that it is presumptively
acceptable if it is no higher than approximately one in ten thousand.
This presumptive level provides a benchmark for judging the
acceptability of a category of emissions. This first step also
considers other health and risk factors such as projected incidence of
cancer, the estimated number of persons exposed within each individual
lifetime risk range, the weight of evidence presented in the risk
assessment, and the estimated incidence of non-fatal cancer and other
health effects. After considering all of this information, a final
decision on a safe level of acceptable risk is made. This becomes the
starting point for the second step, determining the ample margin of
safety.
In the second step, EPA strives to provide protection for the
greatest number of persons possible to an individual lifetime risk
level no higher than approximately one in one million. In this step,
the Agency sets a standard which provides an ample margin of safety,
again considering all of the health risk and other health information
considered in the first step, as well as additional factors such as
costs and economic impacts of controls, technological feasibility,
uncertainties, and any other relevant factors.
EPA noted that standards it had already promulgated pursuant to the
Uranium Mill Tailings Radiation Control Act (UMTRCA) of 1978 (42 U.S.C.
2022, 7901-7942) would eventually limit radon emissions from those
sites to a flux of 20 pCi/m\2\-s (see 40 CFR part 192, subpart D), and
thus EPA referred to that level as ``baseline.'' EPA's risk assessment
revealed that compliance with the 20 pCi/m\2\-s baseline would result
in an estimated lifetime risk to the maximally exposed individual of
approximately 1 x 10-\4\, a level EPA determined to be safe under
the first step of the analysis. EPA further concluded in the second
step, which considers additional factors such as cost and technological
feasibility, that the baseline level also provided an ample margin of
safety.
Even though EPA determined that the baseline was protective of
public health with an ample margin of safety, EPA still found it was
necessary to promulgate subpart T. This was because the baseline
assumed compliance with the UMTRCA regulations even though those
regulations did not require that compliance occur in the foreseeable
future and, in fact, many sites were not proceeding towards the
baseline level at the time subpart T was promulgated. In other words,
EPA promulgated subpart T to address the timing issue, which was not
addressed in the UMTRCA regulations.
The primary subpart T standard is the requirement that radon-222
emissions not exceed a flux of 20 pCi/m\2\-s. 40 CFR 61.222(a).
Additionally, it requires that, once a uranium mill tailings pile or
impoundment ceases to be operational, it must be disposed of and
brought into compliance with the emission limit within two years of the
effective date of the standard (by December 15, 1991) or within two
years of the day it ceases to be operational, whichever is later.
Lastly, it requires monitoring of the disposed pile to demonstrate
compliance with the radon emission limit. See 40 CFR 61.223 and 61.224.
In its 1989 action, EPA recognized that even though NRC implements
general EPA standards (promulgated under UMTRCA) which also regulate
these sites and call for compliance with a 20 pCi/m\2\-s flux standard
(see 40 CFR part 192, subpart D), the UMTRCA regulatory program did not
answer the critical timing concern addressed by subpart T.
The existing UMTRCA regulations set no time limits for disposal
of the piles. Some piles have remained uncovered for decades
emitting radon. Although recent action has been taken to move toward
disposal of these piles, some of them may still remain uncovered for
years.
54 FR at 51683. However, due to then-existing CAA section
112(c)(1)(B)(ii), EPA was constrained to requiring compliance with the
20 pCi/m\2\-s baseline within two years, a date the Agency recognized
many sites might find impossible to meet. EPA announced that those
situations could be dealt with through site-specific enforcement
agreements under CAA section 113.
Subpart T requires compliance by owners and operators of uranium
mill tailings disposal sites within two years of becoming non-
operational. 40 CFR 61.22(b). Pursuant to its authority under then-
existing CAA section 112(c)(1)(B)(ii) EPA waived compliance for two
years for sites that were non-operational at the time of promulgation.
Id. Thus, the earliest date by which sites were required to comply with
the subpart T standards was December 15, 1991. Even so, EPA recognized
at the time of promulgation that many sources subject to subpart T
might not be able to achieve compliance by December 15, 1991. Because
EPA felt constrained by the CAA as it existed at that time, EPA stated
that for those sites the Agency would negotiate expeditious compliance
schedules pursuant to its enforcement authority under CAA section 113.
See 54 FR 51683. By so doing, subpart T in effect mandates that the
cover to meet that emissions level be installed as expeditiously as
practicable considering technological feasibility.
The numerical radon emission limit of subpart T, is the same as the
UMTRCA standard at 40 CFR part 192, subpart D (subpart D) (although
under UMTRCA, the limit is to be met through proper design of the
disposal impoundment, and is to be implemented by DOE and NRC for the
individual sites, while under the CAA, the standard is an emissions
limit with compliance established by EPA through monitoring). However,
the two year disposal requirement and the radon monitoring requirement
were not separately required by the existing UMTRCA regulations.
EPA amended 40 CFR part 192, subpart D on November 15, 1993, 58 FR
60340 to fill a specific regulatory gap with respect to timing and
monitoring that existed in that subpart. Under subpart D, sites are now
required to construct a permanent radon barrier pursuant to a design to
achieve compliance with the 20 pCi/m\2\-s flux standard as
expeditiously as practicable considering technological feasibility
(including factors beyond the control of the licensee) with a goal that
this occur by December 31, 1997, for those non-operational uranium mill
tailings piles listed in the MOU between EPA, NRC and the affected
Agreement States (at 56 FR 67568), or seven years after the date on
which the impoundments cease operation for all other piles. The new
requirement for verifying the flux with monitoring is meant to assure
the efficacy of the design of the permanent radon barrier following
construction.
Section 84a(2) of the Atomic Energy Act requires NRC to conform its
regulations to EPA's regulations promulgated under UMTRCA. As noted
above, the existing NRC criteria while providing a comprehensive
response to EPA's general UMTRCA standards did not compel sites to
proceed to final closure by a date certain nor did they require
monitoring. NRC proposed uranium mill tailings regulations to conform
the NRC requirements to EPA's proposed amended standards at 40 CFR part
192 subpart D. 58 FR 58657 (November 3, 1993). The proposed regulations
amend Criterion 6 and add a new Criterion 6A together with new
definitions in the Introduction to appendix A to part 40 of title 10 of
the CFR.
These CAA and UMTRCA programs duplicate each other by creating dual
regulatory oversight, including independent procedural requirements,
while seeking to ensure compliance with the same numerical 20 pCi/m\2\-
s flux standard. Concern over this duplication inspired several
petitions for reconsideration, most notably from NRC, the American
Mining Congress (AMC) and Homestake Mining Co. It was also alleged that
subpart T was unlawful because it was physically impossible for some
sites to come into compliance with subpart T in the time required.
While these petitions remain pending before EPA (at least in part), EPA
has taken several actions to address the issues they raise, including
publishing the proposal to rescind subpart T, as well as the Final Rule
to amend 40 CFR part 192, subpart D (UMTRCA regulations) and a Final
Rule staying subpart T pending the conclusion of this proposed rule.
C. Clean Air Act Amendments of 1990
After promulgation of subpart T (and receipt of reconsideration
petitions), the Clean Air Act was substantially amended in November
1990. Included in the amended Act was an amendment that speaks directly
to the duplication issue. Newly enacted section 112(d)(9) provides that
no standard for radionuclide emissions from any category or subcategory
of facilities licensed by the Nuclear Regulatory Commission (or an
Agreement State) is required to be promulgated under section 112 if the
Administrator determines, by rule, and after consultation with the
Nuclear Regulatory Commission, that the regulatory program established
by the Nuclear Regulatory Commission pursuant to the Atomic Energy Act
for such category or subcategory provides an ample margin of safety to
protect the public health. This provision strives to eliminate
duplication of effort between EPA and NRC, so long as public health is
protected with an ample margin of safety.
Moreover, Congress expressed sensitivity to the special compliance
problems of uranium mill tailings sites through new section 112(i)(3).
This provision provides an additional 3-year extension to mining waste
operations (e.g., uranium mill tailings) if the 4 years allowed
(including a one year extension) for compliance with standards
promulgated under the amended section 112 is insufficient to dry and
cover the mining waste (thereby controlling emissions).
D. Memorandum of Understanding (MOU) Between EPA, NRC and Affected
Agreement States
In July of 1991, EPA, NRC and the affected Agreement States entered
into discussions over the dual regulatory programs established under
UMTRCA and the CAA. In October 1991, those discussions resulted in a
Memorandum of Understanding (MOU) between EPA, NRC and the Agreement
States which outlines the steps each party will take to both eliminate
regulatory redundancy and to ensure uranium mill tailings piles are
closed as expeditiously as practicable. See 56 FR 55434 (MOU reproduced
as part of proposal to stay subpart T); see also 56 FR 67537 (final
rule to stay subpart T). The primary purpose of the MOU is to ensure
that owners of uranium mill tailings disposal sites that have ceased
operation, and owners of sites that will cease operation in the future,
bring those piles into compliance with the 20 pCi/m\2\-s flux standard
as expeditiously as practicable considering technological feasibility
(including factors beyond the control of the licensee) with the goal
that all current disposal sites be closed and in compliance with the
radon emission standard by the end of 1997, or within seven years of
the date on which existing operations and standby sites enter disposal
status. This goal comports with Congress's concern over timing as
reflected in CAA section 112(i)(3), as amended.
E. The Settlement Agreement
As contemplated by the MOU, on December 31, 1991, EPA took final
action to stay and propose rescission of subpart T under section
112(d)(9), and to issue an advance notice of proposed rulemaking under
UMTRCA. See 55 FR 67537, 67561 and 67569. In order to preserve its
rights, EDF filed a lawsuit challenging the legality of the stay. EDF
v. Reilly, No. 92-1082 (D.C. Cir.). Litigation had previously been
filed by EDF, NRDC, AMC, Homestake and others, challenging subpart T.
AMC, et al. v. EPA, Nos. 90-1058, 90-1063, 90-1068, and 90-1074 (D.C.
Cir.). NRC, AMC and Homestake had also filed an administrative petition
for reconsideration of subpart T.
Discussions continued with the litigants and NRC, and in February
1993, an agreement was reached to settle the pending litigation and the
administrative proceeding, avoid potential future litigation, and
otherwise agree to a potential approach to regulations of NRC-licensed
non-operational uranium mill tailings disposal sites. See 58 FR 17230
(April 1, 1993) (notice announcing settlement agreement under CAA
section 113(g)).
The settlement agreement adds comprehensive detail to, and thereby
continues, the approach set forth in the MOU. If implemented, the
settlement agreement will result in the expeditious control of radon-
222 emissions at non-operational uranium mill tailings disposal sites
without the delays and resource expenditures engendered by litigation
and contentious administrative process. It will enable EPA to fulfill
the requirement of section 112(d)(9) that EPA find, by rule, that the
NRC regulatory program protects public health with an ample margin of
safety. It does this, in part, by changing EPA's UMTRCA regulations
such that public health will be as well protected under UMTRCA as would
implementation of subpart T under the CAA.
Under the agreement, the pending litigation will not be dismissed
until after certain terms in the agreement are fulfilled. Moreover, the
agreement does not legally bind or otherwise restrict EPA's rights or
obligations under law; rather, by its terms (paragraph 12), there is no
recourse for a court order to implement the agreement. Indeed, the only
remedy for failure to meet the terms of the final agreement is
activation by the litigants of the underlying litigation.
II. Rationale for Proposed Rule to Rescind 40 CFR Part 61 Subpart T for
NRC and Agreement State Licensees
In light of the new statutory authority provided EPA by section
112(d)(9) of the Clean Air Act Amendments of 1990, EPA met with NRC and
the affected Agreement States to determine whether, with certain
modifications to its regulatory program under UMTRCA, the NRC
regulatory program might provide an ample margin of safety. If so,
subpart T would be rendered superfluous and, therefore, needlessly
duplicative and burdensome such that rescission pursuant to CAA section
112(d)(9) would be appropriate.
In applying the risk methodology for CAA section 112 to the risk
assessment for subpart T, EPA has already determined that the baseline
that would result once the 20 pCi/m\2\-s UMTRCA standard is met
protects public health with an ample margin of safety. Thus, if the
regulatory program implemented by NRC assures that sites will achieve
the baseline (20 pCi/m\2\-s) as soon as practicable considering
technological feasibility and factors beyond the control of the
licensee, then the NRC program would protect the public to the same
extent as subpart T, and subpart T would not be necessary for these
facilities. More specifically, appropriate modifications to the UMTRCA
regulatory scheme as implemented by NRC and the affected Agreement
States to ensure specific, enforceable closure deadlines and monitoring
requirements such that compliance with the baseline will occur as
expeditiously as practicable considering technological feasibility and
factors beyond the control of the licensee, would protect public health
with an ample margin of safety. In so concluding, EPA relies wholly
upon the risk analysis it conducted in promulgating subpart T. EPA is
neither revisiting that analysis here, nor does the Agency seek comment
on that analysis.
A. The Regulatory Scheme Under UMTRCA
As a supplement to the Atomic Energy Act of 1954, as amended,
UMTRCA (42 U.S.C. 2022, 7901-7942) was enacted to comprehensively
address the dangers presented by uranium mill tailings, including their
disposal:
uranium mill tailings located at active and inactive mill operations
may pose a potential and significant radiation health hazard to the
public, and * * * the protection of the public health, safety, and
welfare * * * require[s] that every reasonable effort be made to
provide for the stabilization, disposal, and control in a safe and
environmentally sound manner of such tailings in order to prevent or
minimize radon diffusion into the environment * * *.
42 U.S.C. 7901(a); see American Mining Congress v. Thomas, 772 F.2d 617
(10th Cir. 1985), cert. denied, 426 U.S. 1158 (1986). As to uranium
mill tailings disposal sites in particular, UMTRCA gives the Department
of Energy (DOE) the responsibility to clean up and dispose of certain
(i.e., Title I) sites, and gives NRC the responsibility for those
(i.e., Title II) sites that are owned and operated by its licensees.
EPA is responsible for promulgating the generally applicable
environmental standards to be implemented by both NRC and DOE. 42
U.S.C. 2022(a), 7911-7924; AMC, 724 F.2d at 621. EPA promulgated its
final UMTRCA regulations on December 15, 1982 for Title I sites and on
September 30, 1983 for title II sites. 48 FR 590 and 48 FR 45926
(codified at 40 CFR part 192).
Parts of EPA's final UMTRCA regulations are directed to the
permanent disposal of uranium mill tailings. See 40 CFR part 192,
subpart D (subpart D). Among the requirements of subpart D is the
mandate that radon releases from the disposal sites not exceed a flux
of 20 pCi/m\2\-s. 40 CFR 192.32(a) and (b). Other aspects of subpart D
pertain to ground water, monitoring, design, and duration of closure.
See 40 CFR 192.32 and 192.33. With the exception of the ground water
provisions at 40 CFR 192.20(a)(2)-(3), all of subpart D was upheld by
the Tenth Circuit in AMC v. Thomas. 772 F.2d at 640. EPA is currently
engaged in rulemaking to address the ground water remand.
Because NRC implements EPA's general UMTRCA standards for its
licensees (as do its Agreement States), it has promulgated its own
implementing regulations in the form of ``criteria.'' See generally 10
CFR part 40, appendix A. While these criteria set forth a variety of
specific requirements--financial, technical, and administrative--to
govern the final reclamation (i.e., closure) design for each disposal
site, they also provide for ``site-specific'' flexibility by
authorizing alternatives that are at least as stringent as EPA's
general standards and NRC's criteria, ``to the extent practicable'' as
provided in section 84c of the Atomic Energy Act of 1954, as amended.
Id. at Introduction.
Overall, NRC's implementation criteria set forth a rigorous program
governing the reclamation of the disposal sites so that closure will
(1) last for 1,000 years to the extent reasonable, but in any event at
least 200 years, and (2) limit radon release to 20 pCi/m\2\-s
throughout that period. The design must be able to withstand extreme
weather and other natural forces. Upon review, EPA believes the NRC
criteria comprise a comprehensive response to EPA's general standards
at 40 CFR part 192, subpart D. However, as noted above, nothing in
either EPA's general standards or NRC's implementing criteria
previously compelled sites to proceed towards final closure by a
certain date. This was the reason for EPA's decision in 1989 to
promulgate the subpart T NESHAP under the CAA. Moreover, neither EPA's
general UMTRCA regulations, nor NRC's implementing criteria previously
required appropriate monitoring to ensure compliance with the 20 pCi/
m\2\-s standard. Nevertheless, as discussed below, the CAA was
subsequently amended to allow the EPA not to regulate NRC licensees if
it concludes that the NRC regulatory scheme provides an ample margin of
safety to protect the public health.
B. Clean Air Act Amendments of 1990: Section 112(d)(9) (``Simpson
Amendment'')
The purpose of this provision is to preserve governmental resources
and avoid needless, burdensome, and potentially contradictory CAA
regulations. Specifically, section 112(d)(9) makes explicit that EPA
need not regulate radionuclides under the CAA for radionuclide sources
that are sufficiently regulated by NRC or its Agreement States (under
the Atomic Energy Act or its component acts, such as UMTRCA). More
particularly, section 112(d)(9) allows EPA to decline to regulate under
section 112 if the Administrator determines ``by rule, and after
consultation with the [NRC],'' that NRC's regulatory program for a
particular source ``category or subcategory provides an ample margin of
safety to protect the public health.''
As EPA interprets section 112(d)(9), the Agency may rescind the
subpart T NESHAP as it applies to non-operational uranium mill tailings
disposal facilities licensed by NRC or an affected Agreement State if
the Agency (1) consults with NRC, (2) engages in public notice and
comment rulemaking, and (3) finds that the separate NRC regulatory
program provides an equivalent level of public health protection (i.e.,
an ample margin of safety) as would implementation of subpart T. While
this rulemaking may commence prior to final development of NRC's
regulatory program, that program must fully satisfy the statute at the
time EPA takes final action. In so doing, EPA must find that the NRC
regulatory program satisfies the CAA standard, not that full and final
implementation of that program has already successfully occurred.
C. Memorandum of Understanding (MOU)
EPA, NRC and the affected Agreement States entered intensive
discussions about these matters. This inter-agency consultation and
review resulted in the execution of a Memorandum of Understanding
(MOU), a copy of which was printed at the end of the proposed rule to
rescind subpart T published December 31, 1991 (56 FR 67568). The
primary purpose of the MOU is to ensure that non-operational uranium
mill tailings piles and impoundments licensed by NRC or an affected
Agreement State achieve compliance through emplacement of a permanent
radon barrier with the 20 pCi/m\2\-s flux standard specified in EPA's
UMTRCA standards (40 CFR 192.32(b)(1)) as expeditiously as practicable
considering technological feasibility (including factors beyond the
control of the licensee). The goal is that this occur as to all current
disposal sites by the end of 1997, or within seven years of when the
existing operating and standby sites enter disposal status.
The MOU called for EPA to modify its UMTRCA regulations (at 40 CFR
part 192, subpart D) to address the timing concern that resulted in
EPA's 1989 decision to promulgate subpart T. In addition, the MOU
called for NRC to modify its implementing regulations at 10 CFR part
40, appendix A, as appropriate, and to immediately commence efforts to
amend the licenses of the non-operational mill tailings disposal site
owners and operators to include reclamation plans that require
compliance with the 20 pCi/m\2\-s standard as expeditiously as
practicable considering technological feasibility (including factors
beyond the control of the licensee). This was to be accomplished either
through voluntary cooperation with the licensees, or through
administratively enforceable orders. In accordance with the MOU, the
NRC and affected Agreement States have agreed to amend the licenses of
all sites whose milling operations have ceased and whose tailings piles
remain partially or totally uncovered. The amended licenses would
require each mill operator to establish a detailed tailings closure
plan for radon to include key closure milestones and a schedule for
timely emplacement of a permanent radon barrier on all non-operational
tailings impoundments to ensure that radon emissions do not exceed a
flux of 20 pCi/m\2\-s. These actions, coupled with NRC's commitment to
enforce the amended licenses, are intended to provide the basis for EPA
to make the requisite findings under CAA section 112(d)(9) for
rescission of subpart T.
D. Settlement Agreement
In light of CAA section 112(d)(9), and in order to foster a
consensus approach to regulation in this area, EPA then commenced
discussions with NRC, the American Mining Congress (AMC), and the
Environmental Defense Fund (EDF). As a result of discussions after
execution of the MOU, a final settlement agreement was executed between
EPA, AMC, EDF, NRDC and individual site owners, to which NRC agreed in
principle by letter. The settlement agreement continues the regulatory
approach set forth in the MOU adding extensive detail to that
agreement.
E. Actions by NRC and EPA Pursuant to the MOU and Settlement Agreement
1. EPA Regulatory Actions
On December 31, 1991, EPA took several steps towards fulfilling its
responsibilities under the MOU and in implementing CAA section
112(d)(9) by publishing three Federal Register (FR) notices. In the
first notice (56 FR 67537), EPA published a final rule to stay the
effectiveness of 40 CFR part 61, subpart T, as it applies to owners and
operators of non-operational uranium mill tailings disposal sites
licensed by the NRC or an Agreement State. The stay will remain in
effect until the Agency rescinds the uranium mill tailings NESHAP at 40
CFR part 61, subpart T. However, if EPA fails to complete that
rulemaking by June 30, 1994, the stay will expire and the requirements
of subpart T will become effective.
In a second notice published on December 31, 1991, the Agency
proposed to rescind the NESHAP for radionuclides that appears at 40 CFR
part 61, subpart T, as it applies to non-operational uranium mill
tailings disposal sites licensed by the NRC or an Agreement State (56
FR 67561).
In the third notice, EPA published an advanced notice of proposed
rulemaking to amend 40 CFR part 192, subpart D (56 FR 67569) to provide
for site closure to occur as expeditiously as practicable considering
technological feasibility (including factors beyond the control of the
licensee), and appropriate monitoring requirements for non-operational
uranium mill tailings piles. These amendments would ensure timely
compliance and add monitoring requirements currently lacking in the
UMTRCA regulations.
EPA published a notice on June 8, 1993, proposing to amend 40 CFR
part 192 subpart D. (58 FR 32174). On November 15, 1993, EPA published
the final rule amending 40 CFR part 192, subpart D. (58 FR 60340). This
final rule requires: (1) Emplacement of a permanent radon barrier
constructed to achieve compliance with, including attainment of, the 20
pCi/m\2\-s flux standard by all NRC or Agreement State licensed sites
that, absent rescission, would be subject to subpart T; (2) interim
milestones to assure appropriate progress in emplacing the permanent
radon barrier; and (3) that site closure occur as expeditiously as
practicable considering technological feasibility (including factors
beyond the control of the licensee) after the impoundments cease
operation. EPA announced a goal that this occur by December 31, 1997,
for those non-operational uranium mill tailings piles listed in the MOU
between EPA, NRC and affected Agreement States (at 56 FR 67568), or
seven years after the date on which the impoundments cease operation
for all other piles.
As intended by EPA, the phrase ``as expeditiously as practicable
considering technological feasibility,'' means as quickly as possible
considering: (1) The physical characteristics of the tailings and
sites; (2) the limits of available technology; (3) the need for
consistency with mandatory requirements of other regulatory programs;
and (4) factors beyond the control of the licensee. While this phrase
does not preclude economic considerations to the extent provided by the
phrase ``available technology,'' it also does not contemplate
utilization of a cost-benefit analysis in setting compliance schedules.
The radon control compliance schedules are to be developed consistent
with the targets set forth in the MOU as reasonably applied to the
specific circumstances of each site.
EPA recognized that the UMTRCA regulatory scheme encompasses a
design standard. EPA made minor amendments to this scheme to better
facilitate implementation of the regulation without fundamentally
altering the current method of compliance. Subpart D, as amended,
requires site control to be carried out in accordance with a written
tailings closure plan (radon), and in a manner which ensures that
closure activities are initiated as expeditiously as practicable
considering technological feasibility (including factors beyond the
control of licensees). The tailings closure plan (radon), either as
originally written or subsequently amended, will be incorporated into
the individual site licenses, including provisions for and amendments
to the milestones for control, after NRC or an affected Agreement State
finds that the schedule reflects compliance as expeditiously as
practicable considering technological feasibility (including factors
beyond the control of the licensee). The compliance schedules are to be
developed consistent with the targets set forth in the MOU as
reasonably applied to the specific circumstances of each site with a
goal that final closure occur by December 31, 1997, for those non-
operational uranium mill tailings piles listed in the MOU between EPA,
NRC and affected Agreement States (at 56 FR 67568), or seven years
after the date on which the impoundments cease operation for all other
piles. These schedules must include key closure milestones and other
milestones which are reasonably calculated to promote timely compliance
with the 20 pCi/m2-s flux standard. Milestones which are not
reasonably calculated to advance timely compliance with the radon air
emissions standard, e.g. installation of erosion protection and
groundwater corrective actions, are not relevant to the tailings
closure plans (radon). In addition, subpart D requires that licensees
ensure that radon closure milestone activities, such as wind blown
tailings retrieval and placement on the pile, interim stabilization
(including dewatering or the removal of freestanding liquids and
recontouring), and radon barrier construction, are undertaken to
achieve compliance with, including attainment of, the 20 pCi/m2-s
flux standard as expeditiously as practicable considering technological
feasibility.
The goal of the amendments to subpart D is for existing sites, or
those that become non-operational in the future, to achieve compliance
as expeditiously as practicable considering technological feasibility
(including factors beyond the control of licensees) within the time
periods set forth in the MOU, including Attachment A thereto, and for
new sites to achieve compliance no later than seven years after
becoming non-operational.
However, if the NRC or an Agreement State makes a finding that
compliance with the 20 pCi/m2-s flux standard has been
demonstrated through appropriate monitoring, after providing an
opportunity for public participation, then the performance of the
milestone(s) may be extended. If an extension is granted, then during
the period of the extension, compliance with the 20 pCi/m2-s flux
standard must be demonstrated each year. Additionally, licensees may
request, based upon cost, that the final compliance date for
emplacement of the permanent radon barrier, or relevant milestone set
forth in the applicable license or incorporated in the (radon) tailings
closure plan, be extended. The NRC or an affected Agreement State may
approve such a request if it finds, after providing the opportunity for
public participation, that: (1) The licensee is making good faith
efforts to emplace a permanent radon barrier constructed to achieve the
20 pCi/m2-s flux standard; (2) such delay is consistent with the
definition of ``available technology;'' and (3) such delay will not
result in radon emissions that are determined to result in significant
incremental risk to the public health. Such a finding should be
accompanied by new deadlines which reasonably correspond to the target
dates identified in Attachment A of the MOU. (56 FR 67569).
EPA expects the NRC and Agreement States to act consistently with
their commitment in the MOU and provide for public notice and comment
on proposals or requests to (1) incorporate radon tailings closure
plans or other schedules for effecting emplacement of a permanent radon
barrier into licenses, and (2) amend the radon tailings closure
schedules as necessary or appropriate for reasons of technological
feasibility (including factors beyond the control of the licensees).
Under the terms of the MOU, NRC should do so with notice timely
published in the Federal Register. In addition, consistent with the
MOU, members of the public may request NRC for action on these matters
pursuant to 10 CFR 2.206. EPA also expects the Agreement States to
provide comparable opportunities for public participation pursuant to
their existing authorities and procedures.
The UMTRCA regulations, as promulgated by EPA and implemented by
NRC prior to the 1993 amendments, while ultimately limiting emissions
to the same numerical level as subpart T, were supported by a variety
of design-based substantive and procedural requirements that speak to
UMTRCA's unique concern that final site closure occur in a manner that
will last 1,000 years or at least 200 years, but did not require
monitoring of emissions to confirm the performance of the earthen
cover. See generally 10 CFR part 40, appendix A and 40 CFR part 192.
Subpart D, as amended, requires all appropriate monitoring be conducted
pursuant to the procedures described in 40 CFR part 61, appendix B,
Method 115, or any other measurement method proposed by a licensee and
approved by NRC or the affected Agreement State as being at least as
effective as EPA Method 115 in demonstrating the effectiveness of the
permanent radon barrier in achieving compliance with the 20 pCi/
m2-s flux standard. After emplacement of a permanent radon barrier
designed and constructed to achieve compliance with, including
attainment of, the 20 pCi/m2-s flux standard, the licensee shall
conduct appropriate monitoring and analysis of the radon flux through
the barrier. This monitoring will verify that the design of the
permanent radon barrier is effective in ensuring that emissions of
radon-222 will not exceed compliance with the 20 pCi/m2-s, as
contemplated by 40 CFR 192.32(b)(1)(ii). EPA intends that the permanent
radon barrier be designed to ensure sustained compliance with the 20
pCi/m2-s flux standard by all sites, but does not require
continuous emissions monitoring. Rather, a single monitoring event may
suffice to verify the design of the permanent radon barrier to ensure
continued compliance. Note, however, that if the NRC or an Agreement
State extends the time for performance of milestones after making a
finding that compliance with the 20 pCi/m2-s flux standard has
been demonstrated by appropriate monitoring, compliance with the 20
pCi/m2-s flux standard must be demonstrated each year during the
period of the extension.
2. NRC Regulatory Action
On November 3, 1993, NRC proposed uranium mill tailings regulations
to conform the NRC requirements to EPA's proposed amended standards at
40 CFR part 192 subpart D. (58 FR 58657). Section 84a(2) of the Atomic
Energy Act requires NRC to conform its regulations to EPA's regulations
promulgated under UMTRCA. As noted above, the existing NRC criteria
while providing a comprehensive response to EPA's general UMTRCA
standards did not compel sites to proceed to final closure by a date
certain nor did they require monitoring. The proposed regulations amend
Criterion 6 and add a new Criterion 6A and definitions to the
Introduction to appendix A to part 40 of title 10 of the CFR.
Consistent with the MOU, NRC's proposal provides for timely emplacement
of the ``final'' radon barrier and requires appropriate verification of
the radon flux through that barrier.
Proposed Criterion 6 paragraph 2 provides for appropriate testing
and analysis to verify that the construction of the barrier effectively
controls radon from uranium byproduct material to a level not exceeding
20 pCi/m2-s. Paragraph 3 requires verification of the radon flux
to be conducted over the covered portion of the pile or impoundment if
phased emplacement of the barrier is authorized. Paragraph 4 would
require reporting and recordkeeping.
As proposed, Criterion 6A addresses the timeliness of complying
with the requirements of Criterion 6 as applied to uranium mill
tailings. Paragraph 1 would require compliance with Criterion 6 as
expeditiously as practicable considering technological feasibility
after a pile or impoundment containing uranium byproduct materials
ceases operation. In addition, this paragraph would require inclusion
of specified interim milestones in the individual site license.
Proposed Criterion 6A also sets forth the conditions for Commission
approval of extensions for performance of milestones and continued
acceptance of uranium byproduct and other materials in the pile or
impoundment. See Proposed 10 CFR part 40 appendix A Criterion 6A
paragraphs 2 and 3 at 58 FR 58664.
3. Amendment of NRC and Agreement State Licenses
Consistent with their commitments under the MOU, as well as EPA's
previous proposal to rescind subpart T (56 FR 67561 December 31, 1991),
NRC and the affected Agreement States agreed to amend the licenses of
all non-operational uranium mill tailings sites to ensure inclusion of
schedules for emplacing a permanent radon barrier on the tailings
impoundments, as well as interim milestones (e.g., wind blown tailings
retrieval and placement on the pile, interim stabilization and radon
barrier construction). To this end, NRC and the Agreement States
requested the licensees to voluntarily seek amended licenses and have
completed processing those requests. NRC has continued the spirit of
cooperation between EPA and NRC by keeping the Agency apprised of the
status of the approval of reclamation plans and amendment of licenses.
As of September 30, 1993, NRC and the Agreement States had
completed all license amendments for closure of licensed non-
operational impoundments, with the exception of the license amendment
for the Atlas site located in Moab, Utah.
NRC informed EPA by letter that the Commission received extensive
comments on NRC's July 20, 1993 proposal to approve the Atlas
reclamation plan, including the closure schedule and interim milestones
required by the MOU, and the Environmental Assessment and the Finding
of No Significant Impact for the Atlas mill. NRC rescinded its Finding
of No Significant Impact for the Atlas mill in October 1993. 58 FR
52516 (October 8, 1993). One issue appears to be the potential for
flooding of the Atlas impoundment if it is reclaimed on-site, due to
the proximity of the site to the Colorado River. This concern and
others appear to have caused delays in the license amendment for this
site. NRC informed EPA it intends to reassess the reclamation plan for
that site and prepare a report. Based on the results of that
reassessment, the NRC will determine what the next steps should be. In
its reassessment of the reclamation plan, NRC will obtain input from
Federal, State, and local representatives. NRC is actively pursuing a
timely final decision on the Atlas site location and its reclamation
plan. To this end, NRC informed EPA by letter dated December 28, 1993,
that NRC has conducted several meetings with the various
representatives enumerated above and has requested additional technical
information from the licensee.
The near edge of town is located about 2 km to the east of the
Atlas tailings impoundment. However, it appears the area within a 1.5
km radius of the Atlas mill tailings impoundment site is sparsely
populated. An interim cover is being placed over the impoundment for
radon emission control as the Atlas tailings impoundment dries
sufficiently to allow access of the necessary equipment. As discussed
in the Background Information Document (BID) for the amendments to 40
CFR 192 subpart D, interim covers significantly reduce radon emissions.
Technical Support for Amending Standards for Management of Uranium
Byproduct Materials: 40 CFR Part 192 Background Information Document,
EPA 402-R-93-085, October 1993.
If the 1996 MOU target date for emplacement of the permanent radon
barrier is extended by NRC, EPA will review such an extension at that
time. Under the present circumstances, it appears an extension of the
MOU target date would be consistent with the factors to be considered
under the ``as expeditiously as practicable'' standard at 40 CFR
section 192.32(a)(3)(i), since there may be a need for consistency with
mandatory requirements of other regulatory programs (i.e., NEPA) and
there may be factors beyond the control of the licensee. 40 CFR section
192.31(k). Based on representations from NRC, EPA believes that the
extra time NRC is taking to further review the proposed Atlas mill site
reclamation plan is necessary to address the large amount of public
comments received and that it will result in a final solution that is
more responsive to public comment.
NRC and the affected Agreement States have also agreed to enforce
the provisions of the amended licenses to ensure compliance with the
new schedules for emplacing the permanent radon barriers, including
interim milestones, and to ensure (and verify) the efficacy of the
design and construction of the barrier to achieve compliance with the
20 pCi/m2-s flux standard contained in the amendments to subpart D.
III. Proposed Rule To Rescind 40 CFR Part 61, Subpart T for NRC and
Agreement State Licensees
EPA is proposing to rescind subpart T as it applies to non-
operational uranium mill tailings disposal sites licensed by NRC or an
affected Agreement State. The Agency sets forth this proposal pursuant
to its authority under CAA section 112(d)(9), as amended in 1990. The
support for this proposal includes (1) The MOU, which reflects
consultation with NRC and the affected Agreement States and sets forth
a course of conduct that will bolster NRC's regulatory program under
UMTRCA so that it is protective of public health with an ample margin
of safety, (2) the settlement agreement which adds comprehensive detail
to the MOU, (3) EPA's amendments to 40 CFR part 192 subpart D, (4) the
relevant license amendments, to date, and (5) expected amendments by
NRC to its implementation regulations at Appendix A, 10 CFR part 40.
A. Proposed EPA Determination Under CAA Section 112(d)(9)
1. Background
Section 112(d)(9) authorizes EPA to decline to regulate
radionuclide emissions from NRC-licensees under the CAA provided that
EPA determines, by rule, and after consultation with NRC, that the
regulatory scheme established by NRC protects the public health with an
ample margin of safety. The legislative history of section 112(d)(9)
provides additional guidance as to what is meant by ``an ample margin
of safety to protect the public health'' and what process the
Administrator should follow in making that determination in a
rulemaking proceeding under section 112(d)(9). The Conference Report
points out that the ``ample margin of safety'' finding under section
112(d)(9) is the same ``ample margin of safety'' requirement that was
contained in section 112 of the CAA prior to its amendment in 1990. The
conferees also made clear that the process the Administrator was
expected to follow in making any such determination under section
112(d)(9) was that ``required under the decision of the U.S. Court of
Appeals in NRDC v. EPA, 824 F.2d 1146 (D.C. Cir 1987) (Vinyl
Chloride).'' H.R. Rep. 952, 101st Cong., 2d Sess. 339 (1990).
EPA has already made a determination in promulgating subpart T that
compliance with the 20
pCi/m\2\-s standard protects public health with an ample margin of
safety. EPA conducted a risk analysis in promulgating subpart T in
1989. At that time, EPA determined that the 20
pCi/m\2\-s flux standard was a ``baseline'' that was provided by EPA's
general UMTRCA standards at 40 CFR part 192 subpart D. EPA further
determined that compliance with that baseline would be protective of
public health with an ample margin of safety. EPA promulgated subpart T
to ensure achievement of the flux standard at non-operational sites in
a timely manner. In conducting this rescission rulemaking, EPA is not
revisiting the risk analysis nor decision methodology that supported
the promulgation of subpart T; rather, EPA is only visiting whether
NRC's regulatory program under UMTRCA will meet the 20 pCi/m\2\-s flux
standard established in subpart T as being a safe level in a timely
manner thereby rendering subpart T unnecessarily duplicative.
EPA's proposed determination that the NRC regulatory program
protects public health with an ample margin of safety includes a
finding that NRC and the affected Agreement States are implementing and
enforcing, in significant part on a programmatic and site-specific
basis: (1) The regulations governing the disposal of uranium mill
tailings promulgated by EPA and NRC consistent with the settlement
agreement described above; and (2) the operating license (i.e.,
tailings closure plan) requirements that establish milestones for the
purpose of emplacing a permanent radon barrier that will achieve
compliance with the 20
pCi/m\2\-s flux standard. In addition, in determining whether EPA's and
NRC's regulatory changes have been effectively promulgated, EPA will
assess whether any judicial challenge to these regulations is pending
and, if so, whether such challenge presents a significant risk of
interference with the purposes and objectives of the MOU, as reflected
in the regulatory changes.
2. EPA's UMTRCA Standards
As discussed above, EPA has modified its UMTRCA regulations (40 CFR
part 192 subpart D) to require compliance with the 20 pCi/m\2\-s flux
standard as expeditiously as practicable considering technological
feasibility (and factors beyond the control of the licensee), and to
require appropriate monitoring to verify the efficacy of the design of
the permanent radon barrier. By definition, no more rapid compliance
can, as a practical matter occur, because this schedule represents the
earliest that the sites could be closed. EPA expects that these
compliance schedules will be developed consistent with the targets set
forth in the MOU as reasonably applied to the specific circumstances of
each site.
When EPA promulgated subpart T it recognized that many sources
might not be able to comply with the two year compliance date then
required pursuant to section 112. Based on this, subpart T includes a
provision that in such a case EPA would ``establish a compliance
agreement which will assure that disposal will be completed as quickly
as possible.'' 40 CFR 61.222(b). The time period required for closure
under subpart D embodies the same approach. In practice, therefore,
both subpart T and subpart D establish the same basic timeframes for
achievement of the flux standard. Assuming NRC and the Agreement States
faithfully implement subpart D and the license amendments required
under subpart D, EPA would not expect there to be any significant
difference between these two programs in the amount of time required
for sites to comply with the flux standard.
As discussed above, subpart D as amended, provides that NRC may
grant an extension of time to comply with either of the following
deadlines: (1) Performance of milestones based upon a finding that
compliance with the 20 pCi/m\2\-s flux standard has been met, or (2)
final compliance beyond the date or relevant milestone based upon cost.
EPA considers these two bases upon which NRC may grant an extension to
be mutually exclusive, i.e., a request for a specific extension may be
based on one or the other but not both grounds. If a milestone is being
extended for a basis other than cost, such an extension may be granted
if NRC finds that compliance with the 20 pCi/m\2\-s flux standard has
been demonstrated using EPA Method 115 or an NRC approved alternative.
In addition the site must continue to demonstrate compliance with this
flux standard on an annual basis. However, if a licensee requests
extension of the final compliance date (or relevant milestone) based
upon cost, such an extension may only be granted if NRC finds that the
three criteria specified in 40 CFR section 192.32(a)(3)(iii) are met.
Any extensions of the final compliance date based upon cost will be
granted on a site-specific basis.
If a licensee requests an extension of the final compliance date
based upon cost, technology may not be used as a basis for granting the
extension unless the costs are grossly excessive, as measured by normal
practice within the industry. EPA recognizes that the emissions from
the pile may exceed the 20 pCi/m\2\-s flux standard pending final
compliance, but believes these increases will be minimal and of limited
duration. Further, a lifetime individual risk of approximately 1 in
10,000 is considered safe under the benzene policy based on 70 years of
exposure. 54 FR 38044 (September 14, 1989). EPA does not anticipate the
short extensions in the time to complete the radon barrier contemplated
in subpart D and the proposed NRC conforming amendments to increase the
maximum lifetime individual risk beyond 1 in 10,000, the level which
EPA found to protect the public health with an ample margin of safety
in promulgating subpart T. 54 FR 51656 (December 15, 1989). EPA
believes this is consistent with the reality of short-term risks from
radon emissions during the period of delay, and consistent with the
risks associated with negotiated compliance agreements when non-
operational sites fail to close within the two year period required by
subpart T. EPA believes these emissions should not exceed those
emissions which could occur under subpart T if compliance agreements
had been negotiated. Extensions based upon cost will only be granted if
NRC or an Agreement State finds, after providing an opportunity for
public participation, that the emissions caused by the delay will not
cause significant incremental risk to the public health. Additionally,
a site requesting an extension based upon cost must demonstrate that it
is making a good faith effort to emplace the permanent radon barrier.
In many situations, where an interim cover is in place, radon emissions
are significantly reduced and tailings which are wet or ponded emit no
significant levels of radon. EPA would also evaluate extensions under
the proposed section 61.226(c) provisions to determine whether the
Agency should reconsider the rescission and seek reinstatement of
subpart T, on either a programmatic or site-specific basis. Thus, under
the circumstances, EPA believes affording authority for extensions of
the final compliance date based upon cost is not inconsistent with
protecting the public health and today's proposal.
Additionally, NRC or an Agreement State may extend the date for
emplacement of the radon barrier based on ``factors beyond the control
of the licensee,'' as that term is implicit in the definition of ``as
expeditiously as practicable.'' EPA understands that under subpart D's
provisions there is no bar to NRC or an Agreement State reconsidering a
prior decision establishing a date for emplacement of the radon barrier
that meets the standard of ``as expeditiously as possible.'' Such
reconsideration could, for example, be based on the existence of
factors beyond the control of the licensee, or on a change in any of
the various factors that must be considered in establishing a date that
meets the ``as expeditious as practicable'' standard of
Sec. 192.32(a)(3)(i). However EPA stresses that such a change in
circumstances would not automatically lead to an extension. It would be
incumbent on NRC or an Agreement State to evaluate all the factors
relevant under Sec. 192.32(a)(3)(i) before it could change a previously
established milestone or date for emplacement of the final barrier, and
any new date would have to meet the standard set out in
Sec. 192.32(a)(3)(i). Finally, NRC's and Agreement States' authority to
reconsider previously established milestones or dates would include
authority to shorten or speed up such dates, as well as extend them.
EPA also expects that public participation consistent with that level
of participation provided in the MOU and the settlement agreement will
be afforded the public by NRC and the Agreement States in amending the
licenses due to ``factors beyond the control of the licensee,'' or for
any other basis.
3. NRC's Proposed Conforming Regulations
As discussed previously, NRC has proposed regulations to conform
appendix A of 10 CFR part 40 to EPA's general standards promulgated
under UMTRCA; the proposed rule is currently in the public comment
stage 58 FR 58657 (November 3, 1993). Because the public process may
alter the final rule, especially since an alternative for Criterion 6A
paragraph 2 was proposed, EPA believes that the adequacy of the NRC
conforming regulations can only be determined after the NRC conforming
regulations are finalized. In making this determination, EPA's decision
will be based upon the Commission's final rule which must implement 40
CFR part 192, subpart D. EPA will determine whether NRC's regulations
support rescission in its final rule to rescind subpart T. EPA is
inviting comments as to whether NRC's proposed conforming regulations
support EPA's proposal(s) to rescind subpart T by either adequately and
appropriately implementing EPA's amendments to 40 CFR part 192, subpart
D, or may reasonably be expected to do so prior to rescission of
subpart T.
4. License Amendments to Date
Table 1 illustrates that all NRC and affected Agreement State
licenses, except one, have been modified pursuant to the MOU.
Attachment A to the MOU, developed in conjunction with each site and
considering the particular circumstances of that site, lists target
dates for emplacement of the permanent radon barrier with ``a guiding
objective that this occur to all current disposal sites by the end of
1997, and within seven years of when the existing operating and standby
sites cease operation.'' 56 FR 67568 (December 31, 1991). The MOU
requires NRC and the Agreement States to ``ensure . . . that cover
emplacement on the tailings impoundments occurs as expeditiously as
practicable considering both short-term reductions in radon releases
and long-term stability of the uranium mill tailings.'' Id. The
compliance schedules are to be developed consistent with the MOU
targets as reasonably applied to the specific circumstances of each
site with a goal that final closure occur by December 31, 1997, for
those non-operational uranium mill tailings piles listed in the MOU.
Table 1.--Status of Reclamation Plans for Non-Operational Uranium Mill Tailings Impoundments\1\
----------------------------------------------------------------------------------------------------------------
Approval date
Approval date for for MOU date for License date for
Facility reclamation plan reclamation final radon final radon
milestones cover cover
----------------------------------------------------------------------------------------------------------------
ANC, Gas Hills, WY...................... 4/10/83............. 11/5/92 1995 12/31/94
\2\6/30/96
ARCO Coal, Bluewater, New Mexico........ 1/30/92............. 11/9/92 1995 12/28/94
Atlas, Moab, Utah....................... (\3\)............... 11/4/92 1996 12/31/96
Conoco, Conquista, Texas................ 9/8/93.............. 9/8/93 1996 12/31/93
Ford-Dawn Mining, Ford, WA.............. 9/30/93............. 9/30/93 2010 \4\12/31/18
Hecla Mining, Duria, CO................. 9/30/93............. 9/30/93 1997 12/31/95
Homestake Milan, NM..................... 7/23/93............. 11/9/92 \5\1996/2001 \5\12/31/01
Pathfinder-Lucky Mc, Gas Hills, Wyoming. 9/17/93............. 12/29/92 1998 9/30/98
Petrotomics, Shirley Basin, WY.......... 10/23/89............ 1/21/93 1995 12/31/95
Quivira, Ambrosia Lake, NM.............. 10/5/90............. 1/22/93 1997 12/31/97
Rio Algom, Lisbon, UT................... 9/29/93............. 12/31/96 1996 12/31/96
Sohio L-Bar, Cebolleta, New Mexico...... 5/1/89.............. 11/4/92 1992 12/31/92
UMETCO, Gas Hills, Wyoming.............. Various-early 80s... 12/2/92 1995 12/31/95
UMETCO, Maybell, CO..................... 7/30/93............. 7/30/93 1997 12/31/97
UMETCO, Uravan, CO...................... 12/31/87............ 12/31/87 \6\2002 12/31/96
UNC, Church Rock, NM.................... 3/11/92............. 10/29/92 1997 12/31/97
Union Pacific, Bear Creek, Wyoming...... 4/3/92.............. 11/5/92 1996 12/31/96
WNI, Sherwood, WA....................... 9/30/93............. 9/30/93 1996 \4\1/31/98
WNI, Split Rock, WY..................... 6/17/93............. 11/5/92 1995 12/31/94
----------------------------------------------------------------------------------------------------------------
\1\NRC and the affected Agreement States committed to complete review and approval of reclamation plants,
including schedules for emplacement of earthern covers on non-operational tailings impoundments by September
30, 1993.
\2\Two impoundments; 1996 date is for impoundment which was accepting waste from off-site for disposal. Licensee
has requested an amendment for a one year extension of dates for placement of radon barrier on the two piles.
\3\Delayed pending resolution of issues raised in response to Federal Register notice dated July 20, 1993.
\4\Closure date change is because of groundwater remediation schedule.
\5\Two impoundments: large impoundment to be completed by 1996, small impoundment by 2001. Final radon barrier
placement over the entire pile shall be completed within two years of completion of groundwater corrective
actions.
\6\Date in the MOU is for final reclamation.
EPA believes the NRC and the Agreement States are acting in good
faith to implement their commitments under the MOU by amending the site
licenses. The license amendments by NRC and the affected Agreement
States appear to reflect closure as expeditiously as practicable, thus
supporting rescission of subpart T and a determination that the NRC
program protects public health with an ample margin of safety. In
addition, consistent with their commitments under the MOU, NRC and the
affected Agreement States are providing opportunities for public
participation in the license amendment process.
The license amendments noted in Table 1 reflect consistent
application of the dates contained in the MOU. Three exceptions are
worth noting. First, although the license amendment for the Atlas site
is not complete, EPA is confident that NRC is actively pursuing final
resolution of the pending reclamation plan. Pending final approval of a
reclamation plan, the Atlas site is continuing to emplace an interim
cover on the pile to control radon emissions.
Second, the license amendments for the ANC Gas Hills site address
two separate impoundments. Consistent with the MOU, the license
amendment for the non-operational impoundment contains a December 31,
1994, date for emplacement of the permanent radon barrier.
Additionally, an impoundment previously designated as operational for
in-situ waste disposal is now non-operational. Emplacement of the
permanent radon barrier on this second impoundment is scheduled to be
completed by June 30, 1996, well within the seven year goal of the MOU
for impoundments which cease operations after December 31, 1991.
Lastly, the license amendment dates for two additional sites, the
Ford-Dawn Mining site and the WNI site both located in the Agreement
State of Washington, are also beyond the dates contained in the MOU.
However, Washington State notes that for these sites the closure date
was changed because of the groundwater remediation schedule, and the
difficulty experienced in drying the piles due to the evaporation and
precipitation rates. In sum, EPA believes that the license amendments
adopted by NRC and the Agreement States to date reflect a good faith
attempt to implement the MOU and require closure of the sites as
expeditiously as practical considering technological feasibility.
While NRC and the Agreement States have obtained license amendments
for all but one of the relevant sites, they have not as of yet
established a record for enforcement of these milestones, including
action on requests for extensions. Based on NRC representations, no
milestones occurring after the date of the MOU, October 1991, have been
missed and as included in footnote 2 of Table 1, an application for an
extension is pending but no action has been taken. However, given their
response to the requirements of the MOU, and the rulemaking being
conducted by NRC to implement the requirements of subpart D, EPA
believes it may well be able to conclude that the milestones
established in the licenses for emplacement of the permanent radon
barrier (i.e., the tailings closure plan (radon)) will be implemented
and enforced in significant part on a programmatic and site-specific
basis. The relevant portions of the amended licenses have been placed
in the docket for this action, as well as letters from NRC to EPA
apprising the Agency of the status of the license amendments.
EPA and NRC have completed many actions required by the MOU,
including: revising the NRC and affected Agreement State licenses to
reflect the MOU requirements, promulgating amendments to EPA's UMTRCA
regulations at 40 CFR part 192, subpart D, and proposing to conform the
NRC regulations at 40 CFR part 10 to EPA's revised UMTRCA regulations.
Based on EPA's review, to date, of the regulatory program established
by NRC under UMTRCA (as contained at 10 CFR part 40, appendix A), EPA
has determined that, once the timing and monitoring concerns are fully
and finally addressed consistent with EPA's UMTRCA standards, as well
as consistent with and including the other actions (e.g., license
amendments) contemplated by the MOU, the NRC criteria will result in
reclamation designs and schedules fully adequate to ensure compliance
with the 20 pCi/m\2\-s flux standard as expeditiously as practicable
considering technological feasibility (including factors beyond the
control of the licensee). Additionally, EPA expects that when the NRC
regulations are finally amended, the Agency should be able to find that
NRC and the affected Agreement States are or will be implementing and
enforcing, in significant part, the regulations governing disposal of
tailings and the operating license requirements (tailings closure plan
(radon)) that establish milestones for emplacement of a permanent radon
barrier that will achieve compliance with the 20 pCi/m\2\-s flux
standard on a programmatic and a site-specific basis. The Agency
intends ``in significant part'' to mean that NRC or an affected
Agreement State is implementing and enforcing the regulatory and
operating license requirements in a manner that EPA reasonably expected
to not materially (i.e., more than de minimis)\1\ interfere with
compliance with the 20 pCi/m\2\-s standard as expeditiously as
practicable considering technological feasibility (including factors
beyond the control of the licensee). As part of its determination, EPA
requests comments on whether any judicial challenge to EPA's and NRC's
regulations are to be expected and whether such challenge presents a
significant risk of interference with the purposes and objectives of
the MOU, as reflected in the regulatory changes as part of its
determination of whether EPA's and NRC's regulatory changes have been
effectively promulgated.
---------------------------------------------------------------------------
\1\The phrase ``de minimis'' as used in this notice is not
intended to be restricted to the meaning of section 112(g)(1)(A) of
the Clean Air Act, as amended.
---------------------------------------------------------------------------
EPA does not intend to take final action on its proposals until
NRC's regulations at 10 CFR part 40, appendix A, are effectively
revised, as necessary and appropriate to implement the revisions to
EPA's regulations at 40 CFR part 192, subpart D. EPA does intend,
however, to take final action on the proposed rescission prior to the
time compliance with the 20 pCi/m\2\-s flux standard is achieved at all
sites.
B. Reconsideration Provisions
Under the Atomic Energy Act, NRC has the authority to waive, for
reasons of practicability, the dual requirement of the MOU that
compliance with the 20 pCi/m\2\-s flux standard occur as expeditiously
as practicable considering technological feasibility. 42 U.S.C.
2114(c). NRC considers the term ``practicability'' to include certain
economic considerations not contemplated by the requirement of the MOU
that compliance occur as expeditiously as practicable considering
technological feasibility. In promulgating subpart T, the CAA did not
permit, and EPA did not consider, site-specific waivers from ultimate
compliance with that standard. Thus, as a theoretical matter, EPA
recognized in its December 1991 proposal that this waiver authority
might be exercised in a manner not addressed in the MOU even after the
UMTRCA regulations have been promulgated and each license amended,
although EPA has no reason to believe such relaxation of restriction
will actually occur. Nevertheless, EPA recognized that this authority
would not exist under the CAA and subpart T and, thus, there is some
concern over the potential for deviation from the agreements contained
in the MOU.
1. December 31, 1991 Proposed Rule To Rescind subpart T
In response to the concern over the waiver authority in the Atomic
Energy Act, and in order to ensure its exercise does not alter EPA's
finding that the NRC regulatory program protects public health with an
ample margin of safety, EPA announced in its December 31, 1991,
proposal that certain conditions and grounds for reconsideration would
be included in any final decision to rescind subpart T. In this way,
EPA might base its rescission finding upon its view of the NRC
regulatory program contemplated by the MOU at the time of taking final
action, while also providing some assurance that EPA would revisit that
finding should NRC or the affected Agreement States substantially
deviate from that program. Thus, in December 1991, EPA proposed certain
conditions and grounds for reconsideration, to provide assurance that
any finding by the Agency that the NRC program is sufficient to justify
rescission of subpart T under CAA section 112(d)(9) would be revisited
if the NRC program is actually implemented in a manner inconsistent
with that finding. The specific reconsideration options proposed by EPA
were published at 56 FR 67565 (December 31, 1991).
2. Reconsideration Options
EPA has reviewed the various options for reconsideration proposed
in December 1991 in light of the comprehensive details added to the
terms of the MOU by the settlement agreement finalized in April 1993.
EPA is now proposing an additional reconsideration option that is a
combination of the options proposed in December 1991. It is in effect a
hybrid of that December 1991 proposal. While EPA is not withdrawing its
prior reconsideration proposal and the reconsideration options
contained therein, the additional reconsideration option proposed today
is currently preferred by EPA.
EPA believes the following reconsideration provisions, which
include both programmatic and site-specific bases for reinstatement,
represent a comprehensive approach under both the MOU and settlement
agreement. EPA requests comment on these proposed reconsideration
provisions. The Agency notes that the 20 pCi/m\2\-s flux standard must
be met by all sites as provided by 40 CFR part 192, subpart D. EPA does
not intend to reconsider the decision to rescind subpart T for any site
that is in fact meeting the 20 pCi/m\2\-s flux standard, absent other
factors that would indicate the need for reinstatement.
Today's proposal establishes an obligation for the Administrator to
reinstate subpart T as applied to owners and operators of non-
operational uranium mill tailings disposal sites licensed by NRC or an
affected Agreement State provided certain conditions are met.
Additionally, today's proposal sets forth the procedures for EPA to act
on a petition to reconsider rescission of subpart T which seeks such
reinstatement. However, the proposed provisions are not intended to be
exclusive. EPA reserves the right to initiate reinstatement of subpart
T if appropriate. Pursuant to section 553(e) of the Administrative
Procedure Act (5 U.S.C. 553(e) interested persons may petition the EPA
to initiate reinstatement of subpart T, in addition to petitions for
reinstatement under the procedures proposed today.
The proposed reconsideration provisions establish procedures for
persons to petition EPA for reconsideration of the rescission and seek
reinstatement of subpart T and EPA's response to such petitions.
Provisions for the substantive conditions for reconsideration of the
rescission of this subpart and subsequent reinstatement for NRC-
licensees are also included. Under the provisions proposed today, a
person may petition the Administrator for reconsideration of the
rescission and seek reinstatement of subpart T under Sec. 61.226(a)
which provides for programmatic and site-specific reinstatement. If
reconsideration is initiated it must be conducted pursuant to notice
and comment rulemaking. It is important that any alleged failures by
NRC or an affected Agreement State to implement and enforce the
regulations governing uranium mill tailings or the applicable license
requirements be addressed in a timely manner. These provisions are
intended to ensure that persons may seek recourse from the
Administrator if they are adversely affected by the failure of NRC or
an affected Agreement State to implement and enforce, in significant
part, on a programmatic and a site-specific basis the regulations
governing the disposal of uranium mill tailings promulgated by EPA and
NRC, requirements of the tailings closure plan or operating license
requirements establishing milestones for the purpose of emplacing a
permanent radon barrier that will achieve compliance with the 20 pCi/
m\2\-s flux standard. Thus, EPA is proposing to establish a non-
discretionary duty to take final action granting or denying an
authorized petition for reconsideration of the rescission of subpart T
within 300 days of receipt of the petition. If EPA grants such petition
it would then proceed to initiate rulemaking to reinstate subpart T.
This rulemaking, however, is not subject to the 300 day time period.
This schedule is intended to provide EPA and NRC adequate time to
resolve any potential problems identified by a petition. Failure to
meet this deadline may be subject to an action in District Court under
CAA section 304 to order that EPA take final action on the petition.
Review of that final response would be in the Circuit Court of Appeals
under CAA section 307(b). If EPA grants such a petition and initiates
rulemaking to reinstate subpart T, then final agency action would not
occur until EPA had concluded such rulemaking. Consistent with the
settlement agreement, EPA may propose to grant or deny the petition
within 120 days of receipt, allow a comment period of at least 60 days,
and take final action granting or denying the petition within 120 days
of the close of the comment period.
Under the proposed procedures, EPA shall summarily dismiss without
prejudice a Sec. 61.226(a) petition to reconsider the rescission and
seek reinstatement of subpart T on a programmatic basis, unless the
petitioner demonstrates that it provided written notice of the alleged
failure to NRC or an affected Agreement State at least 60 days before
filing its petition with EPA. This notice to NRC must include a
statement of the grounds for such a petition. This notice requirement
may be satisfied, among other ways, by submissions or pleadings
submitted to NRC during a proceeding conducted by NRC. The purpose of
this advance notice requirement is to provide NRC or an affected
Agreement State with an opportunity to address the concerns raised by
the potential petitioner. Additionally, EPA shall summarily dismiss
without prejudice a section 61.226(a) petition to reconsider the
rescission and seek reinstatement of subpart T on a site-specific
basis, unless the petitioner demonstrates that it provided, at least 60
days before filing its petition with EPA, a written request to NRC or
an affected Agreement State for enforcement or other relief, and unless
the petitioner alleges that NRC or the affected Agreement State failed
to respond to such request by taking action, as necessary, to assure
timely implementation and enforcement of the 20 pC1/m2-s flux
standard. This provision is intended to provide NRC or an Agreement
State with an opportunity to address the concerns raised by the
potential petitioner through its standard enforcement mechanisms.
The Administrator may also initiate reconsideration of the
rescission and reinstatement of subpart T as applied to owners and
operators of non-operational uranium mill tailings disposal sites if
EPA believes it is appropriate to do so. For example, EPA may initiate
such reconsideration if it has reason to believe that NRC or an
affected Agreement State has failed to implement and enforce, in
significant part, the regulations governing the disposal of uranium
mill tailings promulgated by EPA and NRC or the tailings closure plan
(radon) requirements establishing milestones for the purpose of
emplacing a permanent radon barrier that will achieve compliance with
the 20 pCi/m2-s flux standard. Before the Administrator initiates
reconsideration of the rescission and reinstatement of subpart T, EPA
shall consult with NRC prior to initiating a rulemaking to address
EPA's concerns. If the consultation does not resolve the concerns, EPA
shall provide NRC with 60 days notice of the Agency's intent to
initiate rulemaking to reinstate this subpart.
Upon completion of a reconsideration rulemaking, EPA may: (1)
Reinstate subpart T on a programmatic basis if EPA determines, based on
the record, that NRC has significantly failed to implement and enforce,
in significant part, on a programmatic basis, (a) the regulations
governing the disposal of uranium mill tailings promulgated by EPA and
NRC or (b) the operating license requirements establishing milestones
for the purpose of emplacing a permanent radon barrier that will
achieve compliance with the 20 pCi/m\2\-s flux standard; (2)
reinstatement subpart T on a site-specific basis if EPA determines,
based on the record, the NRC or an affected Agreement State has
significantly failed to implement and enforce, in significant part, on
a site-specific basis, (a) the regulation governing the disposal of
uranium mill tailings promulgated by EPA and NRC or (b) the operating
license requirements establishing milestones for the purpose of
replacing a permanent radon barrier will not achieve compliance with
the 20 pCi/m\2\-s flux standard; or (3) issue a finding that NRC is
implementing and enforcing on either a site-specific or programmatic
basis the regulations operating license requirements described above
and that reimbursement of subpart T is not appropriate.
The proposed regulations establish an obligation for the
Administrator to reinstate subpart T as applied to owners and operators
of non-operational uranium mill tailings disposal sites if the
Administrator determines by rulemaking, based on the record, that NRC
or an affected Agreement State has failed on a programmatic basis to
implement and enforce, in significant part, the regulations governing
the disposal of uranium mill tailings promulgated by EPA and NRC or the
tailings closure plan (radon) requirements establishing milestones for
the purpose of emplacing a permanent radon barrier that will achieve
compliance with the 20 pCi/m\2\-s flux standard. The Administrator also
shall reinstate subpart T on a site-specific basis as applied to owner
and operators of non-operational uranium mill tailings disposal sites
if the Administrator determines by rulemaking, based on the record,
that NRC or an affected Agreement State has failed on a site-specific
basis to achieve compliance by the operator of the site or sites with
applicable license requirements, regulations, or standards implemented
by NRC and the affected Agreement States. Under today's proposal, EPA
shall reinstate subpart T only for the failures enumerated in the
preceding sentence that may reasonably be anticipated to significantly
interfere (i.e., more than de minimis) with the timely emplacement of a
permanent radon barrier constructed to achieve compliance with the 20
pCi/m\2\-s flux standard at uranium mill tailings disposal sites. EPA
intends ``in significant part'' to mean that in rescinding subpart T,
EPA must find that NRC or an affected Agreement State is implementing
and enforcing, on a programmatic and a site-specific basis: (1) The
regulations governing the disposal of uranium mill tailings promulgated
by EPA and NRC consistent with the MOU and settlement agreement and (2)
the tailings closure plan (radon) requirements establishing milestones
for the purpose of emplacing a permanent radon barrier that will
achieve compliance with the 20 pCi/m\2\-s flux standard in a manner
that is not reasonably expected to materially (i.e., more than de
minimis) interfere with compliance with the 20 pCi/m\2\-s flux standard
as expeditiously as practicable considering technological feasibility
(including factors beyond the control of the licensee). Reinstatement
would require an EPA finding that NRC or an affected Agreement State
has failed to implement and enforce in this manner.
IV. Request for Comments
EPA requests comments on its proposed determination that the NRC
regulatory program protects public health with an ample margin of
safety, including comments on whether: (1) EPA has effectively
promulgated appropriate revisions to 40 CFR part 192, subpart D; (2)
NRC's regulations at 10 CFR part 40, appendix A either already
adequately and appropriately implement the revisions to EPA's
regulations, or may reasonably be expected to do so prior to rescission
of subpart T; (3) the revision of NRC and affected Agreement State
licenses reflect the new requirements of subpart D; and (4) any
judicial or administrative challenge to EPA or NRC regulations is
expected to present a significant risk of interference with full
compliance with the MOU and the settlement agreement. Additionally, EPA
requests comments on the proposed reconsideration provisions described
above and included in a new section 61.226 added to subpart T. In
particular EPA requests comments as to whether these provisions
effectively implement the regulatory approach of the MOU and settlement
agreement, especially the terms providing specific time periods for a
reconsideration rulemaking.
v. Miscellaneous
A. Paperwork Reduction Act
There are no information collection requirements in this proposed
rule.
B. Executive Order 12866
Under Executive Order 12866, (58 FR 57735, October 4, 1993) the
Agency must determine whether this regulation, if promulgated, is
``significant'' and therefore subject to OMB review and the
requirements of the Executive Order. The Order defines ``significant
regulatory action'' as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
This action is not a significant regulatory action as that term is
defined in Executive Order 12866, since it will not result in an annual
effect on the economy of $100 million or another adverse economic
impact; it does not create a serious inconsistency or interfere with
another agency's action; it does not materially alter the budgetary
impacts of entitlements, grants, user fees, etc.; and it does not raise
novel legal or policy issues. Thus, EPA has determined that rescinding
subpart T as it applies to owners and operators of uranium mill
tailings disposal sites that are licensed by the NRC or an affected
Agreement State is not a ``significant regulatory action'' under the
terms of Executive Order 12866 and is therefore not subject to OMB
review.
C. Regulatory Flexibility Analysis
Section 603 of the Regulatory Flexibility Act, 5 U.S.C. 603,
requires EPA to prepare and make available for comment an ``initial
regulatory flexibility analysis'' which describes the effect of the
proposed rule on small business entities. However, section 604(b) of
the Act provides that an analysis not be required when the head of an
Agency certifies that the rule will not, if promulgated, have a
significant economic impact on a substantial number of small entities.
Most firms that own uranium mill tailings piles are divisions or
subsidiaries of major U.S. and international corporations. Many are
parts of larger diversified mining firms which are engaged in a number
of raw materials industries; the disposal of uranium mill tailings
piles represents only a small portion of their overall operations.
Others are owned by major oil companies and electric utilities which
were engaged in horizontal and vertical integration, respectively,
during the industry's growth phase in the 1960s and 1970s.
It was found in 1989 rulemaking that there was no significant
impact on small business entities. There has been no change in this,
and no new tailings piles have been constructed since 1989. I certify
that this proposed rule to rescind 40 CFR part 61, subpart T as applied
to owners and operators of NRC licensed non-operational uranium mill
tailings disposal sites, if promulgated as a final rule, will not have
significant economic impact on a substantial number of small entities.
List of Subjects in 40 CFR Part 61
Environmental protection, Air pollution control, Arsenic, Asbestos,
Benzene, Beryllium, Hazardous substances, Mercury, Radionuclides,
Radon, Reporting and recordkeeping requirements, Uranium, Vinyl
chloride.
Dated: January 31, 1994.
Carol M. Browner,
Administrator.
Part 61 of chapter I of title 40 of the Code of Federal Regulations
is proposed to be amended as follows:
PART 61--[AMENDED]
1. The authority citation for part 61 continues to read as follows:
Authority: 42 U.S.C. 7401, 7412, 7414, 7416, 7601.
2. Section 61.220 is revised to read as follows:
Sec. 61.220 Designation of facilities.
(a) The provisions of this subpart apply to owners and operators of
all sites that are used for the disposal of tailings, and that managed
residual radioactive material during and following the processing of
uranium ores, commonly referred to as uranium mills and their
associated tailings, that are listed in, or designated by the Secretary
of Energy under Title I of the Uranium Mill Tailings Radiation Control
Act of 1978.
(b) [Reserved]
3. Section 61.221 is amended by revising the introductory text,
paragraphs (a) and (c) and by adding paragraphs (d) and (e) to read as
follows:
Sec. 61.221 Definitions.
As used in this subpart, all terms not defined here have the
meanings given them in the Clean Air Act or subpart A of Part 61. The
following terms shall have the following specific meanings:
(a) Long term stabilization means the addition of material on a
uranium mill tailings pile for purpose of ensuring compliance with the
requirements of 40 CFR 192.02(a). These actions shall be considered
complete when the Nuclear Regulatory Commission determines that the
requirements of 40 CFR 192.02(a) have been met.
* * * * *
(c) Residual radioactive materials means: (1) Waste (which the
Secretary determines to be radioactive) in the form of tailings
resulting from the processing of ores for the extraction of uranium and
other valuable constituents of the ores; and (2) Other waste (which the
Secretary determines to be radioactive) at a processing site which
relate to such processing, including any residual stock of unprocessed
ores or low grade materials.
(d) Tailings means the remaining portion of a metal-bearing ore
after some or all of such metal, such as uranium, has been extracted.
(e) In significant part means in a manner that is not reasonably
expected to materially (i.e., more than de minimis) interfere with
compliance with the 20 pCi/m\2\-s flux standard as expeditiously as
practicable considering technological feasibility (including factors
beyond the control of the licensee).
4. Section 61.222 is amended by revising paragraph (b) to read as
follows:
Sec. 61.222 Standard.
* * * * *
(b) Once a uranium mill tailings pile or impoundment ceases to be
operational it must be disposed of and brought into compliance with
this standard within two years of the effective date of the standard.
If it is not physically possible for an owner or operator to complete
disposal within that time, EPA shall, after consultation with the mill
owner or operator, establish a compliance agreement which will assure
that disposal will be completed as quickly as possible.
5. Section 61.223 is amended by revising paragraph (b)(5) to read
as follows:
Sec. 61.223 Compliance procedures.
* * * * *
(b) * * *
(5) Each report shall be signed and dated by a public official in
charge of the facility and contain the following declaration
immediately above the signature line:
I certify under penalty of law that I have personally examined
and am familiar with the information submitted herein and based on
my inquiry of those individuals immediately responsible for
obtaining the information, I believe that the submitted information
is true, accurate and complete. I am aware that there are
significant penalties for submitting false information including the
possibility of fine and imprisonment. See, 18 U.S.C. 1001.
6. Section 61.226 is added to subpart T to read as follows:
Sec. 61.226 Reconsideration of rescission and reinstatement of this
subpart.
(a) Reinstatement of this subpart.
(1) The Administrator shall reinstate 40 CFR part 61, subpart T as
applied to owners and operators of non-operational uranium mill
tailings disposal sites that are licensed by the NRC or an affected
Agreement State if the Administrator determines by rulemaking, based on
the record, that NRC or an affected Agreement State has:
(i) Failed on a programmatic basis to implement and enforce, in
significant part, the regulations governing the disposal of uranium
mill tailings promulgated by EPA and NRC or the tailings closure plan
(radon) (i.e., contained in the operating license) requirements
establishing milestones for the purpose of emplacing a permanent radon
barrier that will achieve compliance with the 20 pCi/m\2\-s flux
standard; and
(ii) Those failures may reasonably be anticipated to significantly
interfere (i.e., more than de minimis) with the timely emplacement of a
permanent radon barrier constructed to achieve compliance with the 20
pCi/m\2\-s flux standard at uranium mill tailings disposal sites.
(2) The Administrator shall reinstate 40 CFR part 61, subpart T on
a site-specific basis as applied to owners and operators of non-
operational uranium mill tailings disposal sites that are licensed by
the NRC or an affected Agreement State if the Administrator determines
by rulemaking, based on the record:
(i) That NRC or an affected Agreement State has failed on a site-
specific basis to achieve compliance by the operator of the site or
sites with applicable license requirements, regulations, or standards
implemented by NRC and the affected Agreement States; and
(ii) Those failures may reasonably be anticipated to significantly
interfere (i.e., more than de minimis) with the timely emplacement of a
permanent radon barrier constructed to achieve compliance with the 20
pCi/m\2\-s flux standard at uranium mill tailings disposal sites.
(b) Procedures to Petition for Reconsideration of Rescission of
this subpart.
(1) A person may petition the Administrator to reconsider the
rescission and seek reinstatement of this subpart under Sec. 61.226(a).
(2) EPA shall summarily dismiss a petition to reconsider rescission
and seek reinstatement of this subpart under Sec. 61.226(a)(1)
(programmatic basis), without prejudice, unless the petitioner
demonstrates that written notice of the alleged failure(s) was provided
to NRC at least 60 days before filing the petition with EPA. This
notification shall include a statement of the grounds for such a
petition and this notice requirement may be satisfied by, but is not
limited to, submissions or pleadings submitted to NRC during a
proceeding conducted by NRC.
(3) EPA shall summarily dismiss a petition to reconsider rescission
and seek reinstatement of this subpart under Sec. 61.226(a)(2) (site-
specific basis), without prejudice, unless the petitioner demonstrates
that a written request was made to NRC or an affected Agreement State
for enforcement or other relief at least 60 days before filing its
petition with EPA, and unless the petitioner alleges that NRC or the
affected Agreement State failed to respond to such request by taking
action, as necessary, to assure timely implementation and enforcement
of the 20 pCi/m\2\-s flux standard.
(4) Upon receipt of a petition under Sec. 61.226(b)(1) that is not
dismissed under Sec. 61.226 (b)(2) or (b)(3), EPA will propose to grant
or deny an authorized petition to reconsider, take comments on the
Agency's proposed action, and take final action granting or denying
such petition to reconsider within 300 days of receipt.
(c) Reconsideration of Rescission of this subpart Initiated by the
Administrator.
(1) The Administrator may initiate reconsideration of the
rescission and reinstatement of this subpart as applied to owners and
operators of non-operational uranium mill tailings disposal sites if
EPA has reason to believe that NRC or an affected Agreement State has
failed to implement and enforce, in significant part, the regulations
governing the disposal of uranium mill tailings promulgated by EPA and
NRC or the tailings closure plan (radon) requirements establishing
milestones for the purpose of emplacing a permanent radon barrier that
will achieve compliance with the 20 pCi/m\2\-s flux standard.
(2) Before the Administrator initiates reconsideration of the
rescission and reinstatement of this subpart under Sec. 61.226(c)(1),
EPA shall consult with NRC to address EPA's concerns and if the
consultation does not resolve the concerns, EPA shall provide NRC with
60 days notice of the Agency's intent to initiate rulemaking to
reinstate this subpart.
[FR Doc. 94-2693 Filed 2-3-94; 10:05 am]
BILLING CODE 6506-50-P
