[Federal Register Volume 59, Number 135 (Friday, July 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-17089]
[[Page Unknown]]
[Federal Register: July 15, 1994]
_______________________________________________________________________
Part III
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 61
National Emissions Standards for Hazardous Air Pollutants; Final Rule
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 61
[FRL-5011-1]
RIN 2060-AE23
National Emissions Standards for Hazardous Air Pollutants
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is rescinding 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). As required by section 112(d)(9) of
the Clean Air Act as amended, EPA has determined that the NRC
regulatory program protects public health with an ample margin of
safety to the same level as would implementation of subpart T. Subpart
T is a National Emission Standard for Hazardous Air Pollutants
(NESHAPs) which was published on December 15, 1989 and which regulates
emissions of radon-222 into the ambient air from uranium mill tailings
disposal sites. Subpart T continues to apply to unlicensed uranium mill
tailings disposal sites currently regulated under subpart T that are
under the control of the Department of Energy (DOE).
DATES: This rule is effective June 29, 1994. The provisions in this
rule will be applied immediately to all affected facilities including
existing sources. Under section 307(b)(1) of the Clean Air Act,
judicial review of this final action is available only by filing a
petition for review in the United States Court of Appeals for the
District of Columbia Circuit within 60 days of publication of this
rule. Under section 307(b)(2) of the Act, the provisions which are the
subject of today's rule will not be subject to judicial review in any
civil or criminal proceedings brought by EPA to enforce these
requirements.
FOR FURTHER INFORMATION CONTACT: Gale C. Bonanno, Risk Assessment and
Air Standards Branch, Criteria and Standards Division, 6602J, Office of
Radiation and Indoor Air, Environmental Protection Agency, Washington,
D.C. 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 Final 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. Final Rule to Rescind 40 CFR Part 61, Subpart T for NRC and
Agreement State Licensees
A. EPA Determination under CAA Section 112(d)(9)
1. Background
2. EPA's UMTRCA Standards
3. NRC's Conforming Regulations
4. License Amendments
5. Judicial or Administrative Challenges
B. Reconsideration Provisions
1. December 31, 1991 Proposed Rule to Rescind subpart T
2. Reconsideration Options
3. Reconsideration Provisions Adopted Today
IV. Discussion of Comments and Response to Comments From NPR
V. Miscellaneous
A. Disposition of Pending Judicial Challenges and Petitions for
Reconsideration
B. Paperwork Reduction Act
C. Executive Order 12866
D. Regulatory Flexibility Analysis
1. 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 (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 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
prior to the recent EPA amendments 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 groundwater protection at 40 CFR part 192 (50 FR 41852). NRC
completed conforming amendments for groundwater protection in appendix
A of 10 CFR part 40 in 1987.
Neither the UMTRCA standards promulgated by EPA in 1983 nor the NRC
standards promulgated in 1980 and amended in 1985, established
compliance schedules to ensure that non-operational tailings piles
would be closed, and that the 20 pCi/m2-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 then 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 published 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 USC 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.
Prior to today's action, subpart T of 40 CFR part 61, limited
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 required that these sites, which consist of
large (i.e., numerous acre) impoundments or piles, comply with a radon
flux standard of 20 pCi/m2-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 called
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
pollutants under then existing CAA section 112, which was first
announced in the benzene NESHAPs. 54 FR 38044 (September 14, 1989). The
NESHAPs 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
UMTRCA (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. 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 mandated 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 then 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. 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). EPA announced its 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 then 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 certain date nor did they require
monitoring to confirm the efficacy of the design of the cover. 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 final NRC 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. (59 FR 28220, June 1, 1994).
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 those petitions remained pending before EPA (at least in part),
EPA has taken several actions to address the issues they raised,
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
rulemaking.
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 proposed rescission of subpart T under section
112(d)(9), and issued 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 regulation 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)). NRC agreed in principle with the agreement by letter.
The settlement agreement adds comprehensive detail to, and thereby
continues, the approach set forth in the MOU. Actions implemented under
the settlement agreement should 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. This enables EPA to
satisfy the criteria 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 providing for changing EPA's
UMTRCA regulations such that public health would be as well protected
under UMTRCA as would implementation of subpart T under the CAA.
II. Rationale for Final 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 as amended, 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, since 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, the NRC program protects the public to the same extent as
subpart T, and subpart T is not 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 occurs as expeditiously as
practicable considering technological feasibility and factors beyond
the control of the licensee, 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 not revisiting that
analysis here.
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
sites (i.e., Title I), and gives NRC the responsibility for regulating
those sites that are owned and operated by its licensees (i.e., Title
II). 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 published 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. 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 groundwater, monitoring, design, and duration of closure. See 40 CFR
192.32 and 192.33. With the exception of the groundwater provisions at
40 CFR 192.20(a)(2)-(3), applicable to Title I sites, all aspects of
EPA's regulations were upheld by the Tenth Circuit in AMC v. Thomas.
772 F.2d at 640. EPA is currently engaged in rulemaking to address the
court's remand of the Title I groundwater provisions.
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.
10 CFR part 40, appendix A, 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/m2-s
throughout that period. The design must be able to withstand extreme
weather and other natural forces. Upon review, EPA believed 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 1983 general standards or NRC's 1985 amended implementing
criteria 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 NESHAPs 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/m2-s
standard.
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 section 112 of the CAA for those
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 resulting 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/m2-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 at 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/m2-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 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/m2-
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.
Under the agreement between EDF, AMC, individual sites and EPA, the
pending litigation would not be dismissed until after certain terms in
the agreement were fulfilled. The parties agreed that upon rescission
of subpart T, they would jointly move the court to dismiss the
challenges pertaining solely to subpart T. (Paragraph III.1.) By the
terms of the agreement (paragraph III.15.), AMC's pending
administrative petition for reconsideration of subpart T becomes moot
with the final rescission of subpart T. Moreover, the agreement does
not legally bind or otherwise restrict EPA's rights or obligations
under law; rather, by its terms (paragraph III.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.
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 NESHAPs 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 NESHAPs 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/m2-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) closure of the site closure 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 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 determined to promote timely compliance
with the 20 pCi/m2-s flux standard. Milestones which are not
reasonably determined 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 tailings closure
plan (radon), 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 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 flux
standard, 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 based on
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 May 20, 1994, the Commissioners approved final amendments
conforming 10 CFR part 40, appendix A to 40 CFR part 192, subpart D.
The final regulations adopted by NRC amend Criterion 6, add a new
Criterion 6A and new definitions contained in the Introduction to
appendix A. Criterion 6 was revised to provide for appropriate
verification that the ``final'' (or ``permanent'' as defined by EPA)
radon barrier, as designed and constructed, is effective in controlling
releases of radon-222 to a level no greater than 20 pCi/m2-s when
averaged over the entire pile or impoundment. Criterion 6(2) (59 FR
28220, June 1, 1994). The licensee must use EPA Method 115, or another
method approved by the NRC as being at least as effective in
demonstrating the effectiveness of the ``final'' radon barrier. Id. If
the reclamation plan specifies phased emplacement of the ``final''
radon barrier, the verification must be performed on the portion of the
pile or impoundment as the ``final'' radon barrier for that portion is
emplaced. Additionally, certain reporting and recordkeeping is required
in connection with the verification of the effectiveness of the
``final'' radon barrier. Criterion 6(4) (59 FR 28220, June 1, 1994).
The Introduction section of appendix A to part 40 was amended by
adding the following definitions: as expeditiously as practicable
considering technological feasibility, available technology, factors
beyond the control of the licensee, final radon barrier, milestone,
operation and reclamation plan. While supbart D requires emplacement of
the ``permanent'' radon barrier, NRC requires emplacement of the
``final'' radon barrier. According to NRC, the definition of final
radon barrier, is intended to ``facilitate the drafting of clear
regulatory text and to eliminate any ambiguity with respect to
compliance with the 20 pCi/m2-s `flux standard' after completion
of the final earthen barrier and not as a result of any temporary
conditions or interim measures.'' (59 FR 28222, June 1, 1994). The
final definitions of factors beyond the control of the licensee and
available technology have been revised to include a list of possible
factors and examples of grossly excessive costs respectively,
consistent with subpart D.
Criterion 6A paragraph 1 requires completion of the ``final'' radon
barrier as expeditiously as practicable considering technological
feasibility after a pile or impoundment containing uranium byproduct
materials ceases operation, and requires it to be done in accordance
with a written Commission-approved reclamation plan. In addition, this
paragraph requires inclusion of specified interim milestones as a
condition of the individual site license. Criterion 6A also specifies
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. 10 CFR part 40, appendix A
Criterion 6A (2) and (3) (59 FR 28220, June 1, 1994). These provisions
vary somewhat from NRC's proposal, to reflect changes made in EPA's
final amendments to subpart D at Secs. 192.32(a)(3) (iv) and (v). The
changes are ``(1) that only byproduct material, not `similar' material,
will be approved for continued disposal after the final radon barrier
is essentially complete and the verification of radon flux levels has
been made, and (2) that public participation is specifically to be
provided for only in the case of continued disposal after radon flux
verification, in addition to general clarification of the paragraph.''
(59 FR 28224, June 1, 1994).
Additionally, NRC's final regulations in Criterion 6A provide for
public participation consistent with the MOU and the settlement
agreement. Such public participation will be provided through a notice
published in the Federal Register including the opportunity for public
comment on the proposed license amendment and the opportunity to
request an informal hearing in accordance with the Commission's
regulations at 10 CFR part 2, subpart L. The final regulations contain
various revisions to NRC's proposal, both substantive and editorial in
nature, primarily for consistency with EPA's final amendments to
subpart D.
EPA believes the final revisions clarify NRC's proposal. EPA
further believes that although NRC's conforming regulations are not
identical to subpart D, the differences are minor in nature, and
properly reflect application of the subpart D requirements to NRC's
separate regulatory program. NRC's final rule appropriately conforms
its regulations to 40 CFR part 192 subpart D. EPA notes that NRC's
conforming amendments are an important consideration in EPA's
determination that the NRC regulatory program protects the public
health with an ample margin of safety.
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, and interim stabilization). 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
incorporating the reclamation plan 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 is actively pursuing a timely final decision on the
acceptability of the existing Atlas site 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. On March 30, 1994, NRC published a Notice of Intent
to Prepare an Environmental Impact Statement and to Conduct a Scoping
Process. (59 FR 14912). In that notice, NRC states its determination
``that approval of the revised reclamation plan constitutes a major
Federal action and that based on the level of controversy related to
the proposed action [on-site reclamation] and uncertainties associated
with the unique features of the Moab site, preparation of an EIS in
accordance with the National Environmental Policy Act (NEPA) and the
NRC's implementing requirements in 10 CFR part 51 is warranted.'' (59
FR 14913, March 30, 1994). The notice describes the proposed action,
possible alternative approaches and the scoping process. The
alternative approaches include moving the pile to one of two
alternative sites. Id.
The near edge of the town of Moab 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 part 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.
NRC announced on May 11, 1994 (59 FR 24490) that Atlas Corporation
applied to amend condition 55 of its source material license. Atlas
proposed to amend the milestone dates by extending the dates for
windblown tailings retrieval and placement on the pile, placement of
the interim cover and placement of the final radon barrier by one year.
NRC has informed EPA that the Commission approved the extension of the
date for placement of the interim cover to February 15, 1995 and that
the milestone for emplacement of the ``final'' radon barrier was not
extended. See Docket Entry A91-67 IV-D-50 (Letter from NRC to Atlas).
Since NRC will notice any proposed change in the milestone date for
emplacement of the permanent radon barrier, EPA and others will have
the opportunity to monitor such an extension at that time. Under the
present circumstances, it appears an extension of the MOU target date
of 1996 would be consistent with the factors to be considered under the
``as expeditiously as practicable'' standard at 40 CFR 192.32(a)(3)(i),
since NRC has determined there is a need for consistency with mandatory
requirements of the National Environmental Policy Act (NEPA) and there
may be factors beyond the control of the licensee. 40 CFR 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. (56 FR 67568, December 31, 1991) (MOU, a copy of which was printed
at the end of the proposed rule to rescind subpart T).
III. Final Rule to Rescind 40 CFR Part 61, Subpart T for NRC and
Agreement State Licensees
EPA is rescinding 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 Final Rule pursuant to its
authority under section 112(d)(9) of the CAA, as amended in 1990. The
support for this action includes (1) the MOU, which reflects
consultation with NRC and the affected Agreement States and sets forth
a course of conduct to 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 NRC and Agreement State actions concerning license amendments,
to date, and (5) NRC's amendments to its implementation regulations at
appendix A, 10 CFR part 40.
A. 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
accompanying S. 1630 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. Rep. No. 101-952, 101st Cong., 2d Sess. 339
(1990), reprinted in 1 A Legislative History of the Clean Air Act
Amendments of 1990, at 1789 (1993) (hereinafter ``Legislative History
CAAA90'').
EPA has already made a determination in promulgating subpart T that
compliance with the 20 pCi/m2-s flux 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/m2-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 either the risk analysis or decision
methodology that supported the promulgation of subpart T; rather, EPA
is only visiting whether NRC's regulatory program under UMTRCA will
result in meeting the 20 pCi/m2-s flux standard established in
subpart T as being the level that provides an ample margin of safety,
with compliance achieved in a timely manner thereby rendering subpart T
unnecessarily duplicative.
EPA's 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 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/m2-s flux
standard.
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/m2-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 occur, as a practical matter, because this schedule represents the
earliest that the sites could be closed when all factors are
considered. EPA expects that these compliance schedules were developed
and will be modified 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/m2-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/m2-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 by the nature of the criteria 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/m2-s flux standard pending final
compliance, but believes these increases will be minimal and of limited
duration. EPA does not anticipate the short extensions in the time to
complete the radon barrier contemplated in subpart D and the NRC
conforming amendments to increase the maximum lifetime individual risk
beyond 1 in 10,000, the level which EPA found presumptively safe under
the benzene policy, and for this category, protective of the public
health with an ample margin of safety in promulgating subpart T. 54 FR
51656 (December 15, 1989). EPA believes that during the short
extensions, 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. If NRC or an Agreement State uses this
flexibility, public notice is required, and as appropriate, EPA would
be aware of its use and could also monitor extensions under the
provisions of Sec. 61.226(c) 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.
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 practicable
considering technological feasibility.'' 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 expeditiously 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
changed 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 or an Agreement State in
amending a license due to ``factors beyond the control of the
licensee,'' or for any other basis.
3. NRC's Conforming Regulations
As discussed previously, the Commission has approved final
regulations to conform appendix A of 10 CFR part 40 to EPA's general
standards promulgated under UMTRCA. (59 FR 28220, June 1, 1994.) EPA is
today making a determination that NRC's final regulations support
rescission. EPA believes NRC's final regulations adequately and
appropriately implement EPA's amendments to 40 CFR part 192, subpart D.
This determination is supported by the comments received in response to
EPA's supplemental proposal to rescind subpart T. (59 FR 5674, February
7, 1994.) All commenters agreed that NRC's proposed conforming
regulations support EPA's proposal to rescind subpart T by either
adequately and appropriately implementing subpart D, or may reasonably
be expected to do so when finalized.
4. License Amendments
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. Under the
MOU, the compliance schedules (i.e., tailings closure plans (radon)
under subpart D, as amended) were 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.
EPA believes the NRC and the Agreement States have acted in good faith
to implement their commitments under the MOU by amending the site
licenses. EPA also believes that uranium mill tailings disposal site
owners and operators have acted in good faith by voluntarily requesting
the license amendments. The license amendments by NRC and the affected
Agreement States appear to reflect closure as expeditiously as
practicable under the terms of the MOU and the requirements of subpart
D as amended, thus supporting rescission of subpart T and a
determination that the NRC program protects public health with an ample
margin of safety. See Docket Entry A91-67 IV-D-46 (NRC Comments in
Response to EPA's February 7, 1994 Proposal); Docket Entry A91-67 II-D-
23 (February 7, 1994, Note to Docket from Gale Bonanno, Office of
Radiation and Indoor Air, Criteria and Standards Division detailing
approval of NRC licenses and milestone schedules); Docket Entry A91-67
II-D-45 (June 1, 1994, Note to Docket from Gale Bonanno, Office of
Radiation and Indoor Air, Criteria and Standards Division detailing
approval of Agreement State licenses and milestone schedules); Docket
Entry A91-67 IV-D-52 (June 13, 1994, Letter to Gail Bonanno from State
of Washington); Docket Entry A91-67 IV-D-49 (Letter to Gail Bonnano
[sic] providing information for Washington State licensees, Dawn Mining
Company and Western Nuclear, Inc.). 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.
Table 1.--Status of Reclamation Plans for Non-Operational Uranium Mill Tailings Impoundments\1\
----------------------------------------------------------------------------------------------------------------
Approval Approval
date for date for MOU date for License date
Facility reclamation reclamation final radon for final
plan milestones cover radon 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 \7\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.............................. \8\ 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 earthen 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 except for areas
covered by evaporation ponds. Final radon barrier placement over the remainder of the small impoundment shall
be completed within two years of completion of groundwater corrective actions.
\6\Date in the MOU is for final reclamation.
\7\Two impoundments: final radon barrier placement on both by December 31, 1997. One active cell.
\8\Various early 1980s.
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 to incorporate the
reclamation plan for the Atlas site is not complete, EPA is confident
that NRC is actively pursuing final resolution of the pending
reclamation plan. In the notice announcing its intent to prepare an
environmental impact statement, NRC published a tentative schedule to:
prepare a draft EIS and issue for public comment in October 1994;
provide a 45 day comment period; and publish the final EIS in April
1995. (59 FR 14914, March 30, 1994). Pending final approval of a
reclamation plan, the Atlas site is continuing to emplace an interim
cover on the pile to control radon emissions, and recently received
approval to extend the date for placement of the interim cover to
February 15, 1995. The date for placement of the ``final'' radon
barrier was not extended by NRC and remains December 31, 1996. See
Docket Entry A91-67 IV-E-5 (Note to Docket from Gale Bonanno, Office of
Radiation and Indoor Air, Criteria and Standards Division, summary of
telephone conversation with legal counsel to AMC); Docket Entry A91-67
IV-D-50 (Letter from NRC to Atlas).
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. On February
11, 1994, NRC published a notice of receipt of a request to amend the
reclamation schedule at the ANC Gas Hills site. (59 FR 6658). ANC has
requested a one-year extension of the current date for emplacement of
the permanent radon barrier. ANC ``believes [it] cannot begin
authorized restoration activities in the time necessary to meet current
reclamation milestone dates,'' due to an NRC communication ``that a
previous amendment request for a reclamation redesign proposal dated
April 16, 1992, would not be reviewed by late 1992 or early 1993.'' Id.
NRC notes that ANC is continuing to monitor and maintain the interim
cover. Further, NRC states--
Approval of the request will be based on determination there be no
harm to human health or the environment, that reclamation will be
completed as expeditiously as practical[sic], verification that
rescheduling reclamation will not impact the final closure date for
the entire facility.
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.
On May 9, 1994, ANC informed NRC by letter that it would be ceasing
operations and going out of business by the end of May 1994. On May 13,
1994, NRC issued an Order and Demand for Information to ANC. See Docket
Entry A91-67 IV-D-47. This Order requires ANC to continue complying
with all applicable license conditions, including monitoring and
reclamation activities. The Order further states ``[D]iscontinuance of
those programs and functions in the manner described by the Licensee in
its letter of May 9, 1994, would constitute a willful violation of
ANC's license.'' According to the Order, abandonment would constitute a
``deliberate violation'' of section 184 of the AEA of 1954, as amended,
10 CFR 40.41.(b), and 10 CFR 40.42. The Order further states that
``such a deliberate act of abandonment would be a serious violation of
the AEA * * * NRC regulations, and ANC's license,'' and could subject
ANC and the individuals causing the violations to further enforcement
actions and potential criminal sanctions. NRC also ordered that ANC
submit additional information in order for NRC to determine ``whether
enforcement action should be taken to ensure compliance with NRC
statutory and regulatory requirements.''
EPA notes that the actions taken to date by NRC regarding this site
indicate a good faith intention to implement the MOU and the
requirements of subpart D and to respond quickly as the situation at
the ANC Gas Hills site develops. EPA fully expects that NRC will take
actions consistent with the Commission's enforcement policy and
authority. See 10 CFR part 2, subpart B and appendix C. While difficult
enforcement questions are raised about this site, EPA notes that the
same questions would be raised if subpart T were not rescinded. Under
the provisions of the rule adopted today, if future developments meet
the criteria and conditions for reconsideration of rescission, the
Agency expects it would receive a petition pursuant to Sec. 61.226(b).
EPA would then take action consistent with those provisions at that
time. In any case, EPA reserves the right to initiate reconsideration
if appropriate.
Lastly, the license amendment dates for two additional sites, the
Ford-Dawn Mining site and the Western Nuclear, Inc. (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 the State of Washington
for these two sites reflect a good faith attempt to implement the MOU
and reflect closure of the sites as expeditiously as practical
considering technological feasibility under subpart D.
While NRC and the Agreement States have obtained license amendments
for all but one of the relevant sites, they have not as yet established
a record for enforcement of the milestones, including action on
requests for extensions. To date, only one extension for placement of
the interim cover at the Atlas site has been approved by NRC. Based on
NRC representations, no milestones occurring after the date of the MOU,
October 1991, have been missed and, as noted in footnote 2 of Table 1,
an application for another extension is pending but no action has been
taken. However, given their response to the requirements of the MOU,
and the rulemaking conducted by NRC to implement the requirements of
subpart D, EPA expects 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 almost all of the actions required by
the MOU, including: revising the NRC and affected Agreement State
licenses to reflect the MOU and regulatory requirements, promulgating
amendments to EPA's UMTRCA regulations at 40 CFR part 192, subpart D,
and revising the NRC regulations at 10 CFR part 40 to conform to EPA's
revised UMTRCA regulations. Based on EPA's review, to date, of the
regulatory program established by NRC under UMTRCA (including amended
10 CFR part 40, appendix A), EPA has determined that the timing and
monitoring concerns are fully addressed consistent with EPA's UMTRCA
standards, and the NRC criteria result in reclamation designs and
schedules fully adequate to ensure compliance with the 20 pCi/m2-s
flux standard as expeditiously as practicable considering technological
feasibility (including factors beyond the control of the licensee). EPA
today finds 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 license requirements (tailings
closure plan (radon)) that establish milestones for emplacement of a
permanent radon barrier that will achieve compliance with the 20 pCi/
m2-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 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/m2-s standard as expeditiously as
practicable considering technological feasibility (including factors
beyond the control of the licensee).
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
As announced in the February 7, 1994, proposal, EPA is taking
today's action since NRC's regulations at 10 CFR part 40, appendix A,
were effectively revised, as necessary and appropriate to implement the
revisions to EPA's regulations at 40 CFR part 192, subpart D. As stated
in the February 1994 proposal, EPA intended to take final action on the
proposed rescission prior to the time compliance with the 20 pCi/
m2-s flux standard is achieved at all sites.
5. Judicial or Administrative Challenges
Neither EPA nor any commenter is aware of any judicial or
administrative challenge to these regulations that is pending. Thus,
EPA is aware of no challenge which would present a significant risk of
interference with the purposes and objectives of the MOU, as reflected
in the regulatory changes.
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/m2-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
was 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.
On February 7, 1994, EPA proposed 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 did not
withdraw its prior reconsideration proposal and the reconsideration
options contained therein, the additional reconsideration option
proposed in February 1994 was preferred by EPA.
3. Reconsideration Provisions Adopted Today
EPA believes the following reconsideration provisions adopted
today, which include both programmatic and site-specific bases for
reinstatement, represent a comprehensive approach under both the MOU
and settlement agreement. The Agency notes that the 20 pCi/m2-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/m2-s
flux standard, absent other factors that would indicate the need for
reinstatement. For example, EPA may initiate reconsideration under
Sec. 61.226 even if a site is meeting the 20 pCi/ m2-s flux
standard if there are factors which show that NRC or an Agreement State
failed to implement and enforce in significant part, the applicable
regulations, e.g., failure of that site to emplace a permanent radon
barrier designed to meet the requirements of subpart D.
This action amends subpart T and 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, this action sets forth the procedures for EPA to act on a
petition to reconsider rescission of subpart T which seeks such
reinstatement. However, these 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 today's procedures.
The reconsideration provisions set forth in Sec. 61.226 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 these
provisions, 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 procedures. 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 license requirements
establishing milestones for the purpose of emplacing a permanent radon
barrier that will achieve compliance with the 20 pCi/m2-s flux
standard. Thus, EPA is establishing 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. The rulemaking
to reinstate subpart T, 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 300-day deadline for a decision on whether to initiate
rulemaking or not could lead to a citizen suit action in a federal
District Court under CAA section 304 for an order that EPA take final
action on the petition. Review of that final response would be in a
federal 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 today's procedures, EPA shall summarily dismiss without
prejudice a Sec. 61.226(b) 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 Sec. 61.226(b) 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 pCi/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 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 license requirements establishing milestones for the
purpose of emplacing a permanent radon barrier that will achieve
compliance with the 20 pCi/m2-s flux standard; (2) reinstate
subpart T on a site-specific basis if EPA determines, based on the
record, that NRC or an affected Agreement State has significantly
failed to implement and enforce, in significant part, on a site-
specific basis, (a) the regulations governing the disposal of uranium
mill tailings promulgated by EPA and NRC or (b) the license
requirements establishing milestones for the purpose of emplacing a
permanent radon barrier that will achieve compliance with the 20 pCi/
m2-s flux standard; or (3) issue a finding that NRC is
implementing and enforcing on either a site-specific or programmatic
basis the regulations and license requirements described above and that
reinstatement of subpart T is not appropriate.
The 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/m2-s flux standard. The Administrator
also shall reinstate subpart T on a site-specific basis 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 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
action, EPA shall be required to 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/m2-s flux standard at uranium
mill tailings disposal sites. In rescinding subpart T, EPA intends ``in
significant part'' to mean that 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/
m2-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/m2-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. Discussion of Comments and Response to Comments From NPR
Public hearings on EPA's December 31, 1991, proposal to rescind
subpart T (56 FR 67561) were held on January 15, 1992 in Washington,
D.C. and on January 21-22, 1992 in Santa Fe, New Mexico.
Representatives of the Nuclear Regulatory Commission (NRC), the
American Mining Congress (AMC), the owners and operators of individual
sites and the Southwest Research and Information Center (SWRIC)
testified at these hearings. Written comments were also received from
the Environmental Defense Fund (EDF), NRC, AMC, owners and operators of
individual sites, the Department of Energy and the SWRIC.
In February 1993, an agreement was reached between EPA, EDF, NRDC,
AMC, and individual uranium mill tailings disposal sites to settle
pending litigation and administrative proceedings, avoid potential
future litigation, and otherwise agree to a potential approach to
regulation of NRC and Agreement State licensed non-operational uranium
mill tailings disposal sites. See 58 FR 17230 (April 1, 1993) (notice
announcing settlement agreement under CAA section 113(g)). NRC agreed
in principle with the settlement agreement. The settlement agreement
added comprehensive detail to, and thereby continued, the approach set
forth in the MOU published with the 1991 proposal. (56 FR 67568,
December 31, 1991).
Written comments in response to EPA's February 7, 1994 supplemental
proposal were received from NRC, EDF, AMC, Homestake Mining Company,
Rio Algom Mining Corp., ARCO and Envirocare of Utah, Inc.
Many of the parties who commented on the December 1991 proposal
also signed the settlement agreement and commented on the February 1994
proposal. In certain cases, a party's comments to the December 1991
proposal are inconsistent with and conflict with comments later
submitted in response to the 1994 proposal. Given the intervening
settlement agreement and the revisions to EPA's and NRC's UMTRCA
regulations, EPA believes that the more recent comments submitted by a
party, in response to the 1994 proposal, should be accorded more weight
than comments previously submitted by that same party in 1991, where
there is inconsistency between the comments.
In addition, EPA's review of the comments has been limited to the
question of whether EPA should rescind subpart T. This rulemaking was
not intended to reconsider and did not address whether EPA should have
promulgated subpart T in 1989. EPA therefore rejected as irrelevant to
this rulemaking, comments addressed to the validity or appropriateness
of the promulgation of subpart T.
1. General
In response to the 1991 and 1994 Notices of Proposed Rulemaking
(NPR), NRC, environmental and industry groups generally support EPA's
proposal to rescind 40 CFR part 61, subpart T as applied to owners and
operators of NRC and Agreement State licensed non-operational uranium
mill tailings disposal sites. Various commenters to the 1994 proposal
suggested specific revisions to the proposed regulatory text and
preamble. The Agency has reviewed all comments and suggested revisions
carefully. Revisions to the regulatory text and preamble have been made
where deemed appropriate.
2. Request for Comments Contained in the 1994 NPR
In the February 1994 proposal, EPA requested 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.
Several commenters responded to the Agency's request for comments.
Commenters believed EPA's amendments to 40 CFR part 192, subpart D
fulfill the intent of the settlement agreement with respect to actions
required by EPA. However, certain commenters noted that the settlement
agreement called for action by both EPA and NRC. The commenters
universally agreed that based upon NRC's November 3, 1993 proposal, NRC
may reasonably be expected to adequately and appropriately implement
the Agency's amendments to 40 CFR part 192, subpart D. These commenters
believe that when finalized, NRC's regulations at 10 CFR part 40,
appendix A should adequately comply with the settlement agreement and
conform to EPA's subpart D UMTRCA regulations.
Many commenters noted that NRC and the Agreement States have
faithfully implemented their MOU commitment to complete review and
approval by no later than September 1993 of detailed reclamation plans
including schedules for emplacing an earthen cover on non-operational
tailings impoundments to control emissions of radon-222 to 20 pCi/m\2\-
s. See 56 FR 67568, December 31, 1991. Several commenters noted that
although the license amendment for the Atlas site in Moab, Utah is not
yet complete, that site represents a unique situation and should not
affect EPA's decision to rescind subpart T.
No commenter was aware of any pending judicial or administrative
challenge that would present a significant risk of interference with
the MOU and the settlement agreement.
Additionally, EPA requested comments on the proposed
reconsideration provisions included in a new Sec. 61.226 added to
subpart T. In particular EPA requested comments as to whether these
provisions effectively implement the regulatory approach of the
settlement agreement, especially the terms providing specific time
periods for a reconsideration rulemaking. One commenter believed the
criteria and procedures for reconsidering the decision to rescind
subpart T were consistent with the terms of the settlement agreement.
Several other commenters commented as to specific aspects of those
provisions and suggested revisions to the regulatory language for
consistency with the settlement agreement. Specific comments pertaining
to the proposed provisions for reconsideration of the rescission and
reinstatement of subpart T are addressed in Section 4 below.
There was widespread agreement among the commenters that the EPA
and NRC regulatory and licensing framework that either has been, or is
in the process of being, implemented will ensure that non-operational
uranium mill tailings disposal sites will achieve the 20 pCi/m\2\-s
flux standard as expeditiously as practicable considering technological
feasibility.
3. Rescission of Subpart T
3.1 Timing of Rescission
Comment: In response to the 1991 proposal, one commenter noted EPA
should not rescind subpart T until the Agency is assured that the MOU
between EPA, NRC and the affected Agreement States is implemented and
EPA's amendments to its UMTRCA regulations at 40 CFR part 192, subpart
D are complete.
Response: As stated in the preamble to the 1994 proposal and the
final rule amending 40 CFR part 192, subpart D, EPA is now rescinding
subpart T for NRC-licensed uranium mill tailings disposal sites due to
the completion of the Agency's amendments to subpart D, completion of
NRC conforming regulations, and completion by NRC and affected
Agreement States of various license amendments containing schedules for
emplacement of the permanent radon barrier. EPA believes it is
appropriate to rescind subpart T pursuant to the authority of section
112(d)(9) of the CAA, as amended, since NRC has established a
regulatory program to ensure that non-operational uranium mill tailings
piles will be closed as expeditiously as practicable considering
technological feasibility.
3.2 Section 112(d)(9) of the Clean Air Act, As Amended (``Simpson
Amendment'')
Comment: In response to the 1991 proposal, one commenter argued
section 112(d)(9) of the CAA, as amended, applies prospectively and
does not authorize EPA to rescind a previously promulgated standard.
Response: The Agency disagrees and believes that section 112(d)(9)
of the CAA authorizes EPA to rescind previously promulgated regulations
if certain determinations are made by EPA. Congress clearly intended to
give the Agency the discretion to rescind certain previously
promulgated regulations and thereby relieve affected facilities from
the burdens associated with parallel regulation when the NRC regulatory
program would protect public health with an ample margin of safety.
See, e.g., 136 Cong. Rec. S 3797-99 (daily ed. April 3, 1990),
reprinted in 4 A Legislative History of the Clean Air Act Amendments of
1990, at 7156-7162 (1993). (``Legislative History, CAAA 1990''). This
Senate floor debate on Amendment No. 1457 to S. 1630 evidences a clear
intention that section 112(d)(9) authorizes rescission of previously
promulgated radionuclide NESHAPs. Senator Simpson, the sponsor of the
amendment, stated that ``[p]assage of this amendment will allow EPA to
replace the emission standards issued by EPA in November 1989, for NRC-
licensed facilities, including power plants, uranium fuel cycle
facilities, and by-product facilities, if that agency concludes that
the existing NRC regulatory program adequately protects public
health.'' 4 Legislative History, CAAA 1990 at 7158. Also see 1
Legislative History, CAAA 1990 at 778 (1993) (statement by Senator
Burdick during debate on the Conference Committee Report) (``It is
clear that the existing regulatory program under the Atomic Energy Act
protects the public health with an ample margin of safety. Under these
circumstances, additional or dual regulation under the Clean Air Act
does not make any sense.'')
Additionally, in commenting on the 1994 proposal, this commenter
expressed the belief that the 1994 proposal is consistent with the
terms of the settlement agreement between EPA, EDF, NRDC, AMC and
individual site owners and operators. The settlement agreement, as
described in detail above, promotes the objectives of section 112(d)(9)
of the CAA by establishing an agreed upon framework for reconsideration
of rescinding subpart T and making minor modifications to the AEA
regulatory program for closure of the uranium mill tailings disposal
sites. Clearly, rescission of the previously promulgated subpart T was
contemplated by the parties to the settlement agreement. This
particular commenter and EPA were parties to that agreement. EPA
continues to implement the terms of the settlement agreement, including
today's action rescinding subpart T. Thus, EPA is rejecting the prior
comment to the 1991 proposal.
Comment: In response to the 1991 proposal, a commenter suggested
EPA publish its finding that the NRC regulatory program protects the
public health with an ample margin of safety.
Response: Pursuant to the settlement agreement, EPA published and
invited comment on its proposed determination that the NRC regulatory
program protects public health with an ample margin of safety on
February 7, 1994 (59 FR 5674). That determination is also contained in
this action, which will be published in the Federal Register.
Comment: Commenters suggested in response to the 1991 proposal that
EPA could not determine that the NRC regulatory program protects public
health with an ample margin of safety so long as NRC retains the
authority to waive standards and time schedules for compliance, and
there are no provisions under the AEA for citizens' suits.
Response: The commenters suggest that the NRC regulatory program
does not ensure that EPA's revised UMTRCA regulations (40 CFR part 192,
subpart D) would apply, since NRC has the authority to grant waivers
under the AEA due to cost or technological feasibility. EPA recognizes
that the NRC has authority under the AEA to waive for economic reasons
strict compliance with the requirement that sites meet the 20 pCi/m\2\-
s standard as expeditiously as practicable considering technological
feasibility (including factors beyond the control of the licensee). AEA
section 84c., 42 USC 2114c. However, the full exercise of this
authority is not contemplated by either the MOU or the settlement
agreement, described above. If this waiver authority is used in a
manner inconsistent with the purposes and objectives of the MOU and
settlement agreement, today's action includes procedural and
substantive provisions designed to facilitate reconsideration of the
rescission and possible reinstatement of subpart T.
The amendments to subpart T provide clear authority and procedures
for EPA to revisit today's finding should NRC or the affected Agreement
States deviate from the regulatory program in place in a manner which
materially (i.e., more than de minimis) interferes 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). Additionally, EPA believes the actions taken
to date by NRC, including the license amendments and the final
amendments to the NRC conforming regulations, as described above,
reflect the good faith effort on the part of NRC to implement the MOU.
Thus, EPA believes under these circumstances NRC's authority to waive
strict compliance with the flux standard and the time for compliance
does not preclude EPA from finding NRC's regulatory program protects
the public health with an ample margin of safety.
Further, the Agency believes that Congress was aware that the
legislative authority under the CAA provided for citizen suits while
the AEA did not contain such provisions. Congress clearly envisioned
that circumstances might be such that EPA would make the finding
required by the Simpson Amendment. In making today's ample margin of
safety determination, EPA considered whether NRC is implementing and
enforcing, in significant part, the regulations governing disposal of
tailings and the license requirements which 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 site-specific basis.
UMTRCA gives NRC and the Agreement States the responsibility to
implement and enforce regulations promulgated under UMTRCA. If, in the
future, NRC or the Agreement States do not implement and enforce, in
significant part, the regulations governing disposal of tailings and
the license requirements which 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 or site-specific basis,
reconsideration and reinstatement provisions adopted today allow EPA to
reconsider its rescission of subpart T, and thus, possibly reinstate
the CAA standards. The settlement agreement executed between EPA, EDF,
NRDC and AMC which provided the regulatory approach for today's action
had as an objective the rescission of subpart T. Moreover, NRC's final
amendments to the conforming regulations also provide enhanced
opportunities for public participation under certain circumstances.
3.3 Section 112(q)(3) of the Clean Air Act, As Amended
Comment: The comments to the 1991 proposal included a comment that
the ``Savings Provision'' (section 112(q)(3)) of the CAA requires that
subpart T remain in effect.
Response: Section 112(q)(3) provides
. . . this section, as in effect prior to the date of enactment of the
Clean Air Act Amendments of 1990, shall remain in effect for
radionuclide emissions from . . . disposal of uranium mill tailings
piles, unless the Administrator, in the Administrator's discretion,
applies the requirements of this section as modified by the Clean Air
Act Amendments of 1990 to such sources of radionuclides.
EPA believes the plain language of section 112(q)(3) gives the
Administrator the discretion to rescind subpart T pursuant to section
112(d)(9) or allow subpart T to remain in effect pursuant to section
112 as in effect prior to the CAAA of 1990. In this rulemaking, EPA
acted to apply section 112 as modified by the 1990 amendments, and
pursuant to section 112(d)(9) to decline to regulate ``radionuclide
emissions from any category or subcategory of facilities licensed by
the Nuclear Regulatory Commission (or an Agreement State)'' 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. Although the
commenter suggests that section 112(q)(3) should cause the
Administrator to not rescind subpart T, such an interpretation is not
harmonious and is inconsistent with the intent of Congress in enacting
the CAAA of 1990.
Additionally, EPA received comments from this commenter supporting
the 1994 proposal, expressing the belief that the 1994 proposal is
consistent with the terms of the settlement agreement. The settlement
agreement promotes the objectives of section 112(d)(9) of the CAA as
amended by establishing an agreed upon framework for consideration of
the rescission of subpart T and minor modifications to the AEA
regulatory program for closure of uranium mill tailings disposal sites.
This commenter, together with EPA and others, was a party to that
agreement, which clearly envisions rescission of subpart T.
Thus, EPA is rejecting this comment, since a plain reading of
section 112(q)(3) authorizes EPA to exercise its discretion under
section 112(d)(9) and as a party to the settlement agreement the
commenter clearly supports the goal of the agreement that subpart T be
rescinded.
3.3 Section 122(a) of the Clean Air Act, as Amended in 1977
Comment: The commenter asserts in response to the 1991 proposal
that EPA should not rescind subpart T because such rescission is
inconsistent with section 122(a) of the CAA of 1977. The commenter
contends section 122(a) was not repealed by the 1990 amendments to the
CAA and that it required the Agency to list radionuclides as a
hazardous air pollutant if the Administrator found that public health
was threatened due to air emissions of radionuclides.
Response: EPA disagrees with the commenter's interpretation that
rescission of subpart T pursuant to section 112(d)(9) of the CAA is
inconsistent with section 122(a) of the CAA. On December 27, 1979, EPA
listed radionuclides, including those defined by the AEA as byproduct
material, as a Hazardous Air Pollutant pursuant to section 112(b)(1)(A)
of the CAA as amended in 1977. (44 FR 76738). In that notice EPA stated
that
[I]n accordance with the requirements of sections 122 and 112,
the Agency finds that studies of the biological effects of ionizing
radiation indicate that exposure to radionuclides increases the risk
of human cancer and genetic damage. . . . Based on this information,
the Administrator has concluded that emission of radionuclides may
reasonably be anticipated to endanger public health, and that
radionuclides constitute hazardous air pollutants within the meaning
of the Clean Air Act.
Id. On April 6, 1983 (48 FR 15076) EPA announced proposed standards for
four sources of emissions of radionuclides, and its decision to not
regulate uranium mill tailings together with other sources. Under court
order, EPA finalized the regulations proposed in 1983 on February 6,
1985. 50 FR 5190. See also Sierra Club v. Ruckelshaus, No. 84-0656
(U.S. District Court for the Northern District of California). On
September 24, 1986, EPA promulgated a final rule regulating radon-222
emissions from licensed uranium mill processing sites by establishing
work practices for new tailings. (51 FR 34056). On April 1, 1988, EPA
requested a remand for this standard. On EPA's motion, the Court placed
the uranium mill tailings NESHAPs on the same schedule as the other
radionuclide NESHAPs to reconsider the standards in light of Natural
Resources Defense Council v. EPA, 824 F.2d 1146 (D.C. Cir 1987) (Vinyl
Chloride). EPA subsequently promulgated 40 CFR part 61, subpart T, the
subject of today's action.
EPA believes section 122 of the CAA must be read consistent with
and in harmony with the 1990 amendments to the CAA. EPA took action
under section 122 when it listed radionuclides. EPA subsequently
regulated radionuclides emissions under section 112. Section 112(d)(9)
of the CAA authorizes EPA to now decline to regulate radionuclide
emissions from any category or subcategory of facilities licensed by
the NRC (or an Agreement State) if the Administrator determines, by
rule, and after consultation with the NRC, that the regulatory program
established by the NRC pursuant to the AEA 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. While section 122 addresses whether
radionuclides should be listed, section 112(d)(9) addresses a separate
issue--whether EPA should continue to regulate or initiate regulation
of radionuclide air emissions under section 112 based on the NRC
regulatory program.
Although the commenter suggests EPA should not rescind subpart T
based on section 122(a), EPA believes such a reading of sections
112(d)(9) and 122(a) is not harmonious and is inconsistent with the
intent of Congress in enacting section 112(d)(9).
Additionally, EPA received comments from this particular commenter
in response to the 1994 proposal expressing the belief that the 1994
proposal to rescind subpart T is consistent with the terms of the
settlement agreement. The settlement agreement promotes the objectives
of section 112(d)(9) of the CAA as amended through the rescission of
subpart T and minor modifications to the AEA regulatory program for
closure of the uranium mill tailings disposal sites. This commenter,
together with EPA and others, was a party to that agreement. Through
today's action rescinding subpart T, EPA is furthering the goal of the
settlement agreement.
Thus, EPA is rejecting this comment, since a reading of section
122(a) apparently preventing such rescission is inconsistent with the
intent of Congress in enacting section 112(d)(9), and as a party to the
settlement agreement the commenter was aware of and supported the goal
of the agreement that subpart T be rescinded.
4. Proposed Amendments to 40 CFR Part 61, Subpart T
4.1 General
Comment: The rationale for adding the definitions residual
radioactive material and tailings, while deleting the definition of
uranium byproduct material or tailings is not clear. The proposed
definitions appear to apply to Title I sites, and significant problems
might arise if these definitions were to be applied to Title II sites
in the event of reinstatement of subpart T.
Response: Sec. 61.220(a) as adopted today states that subpart T
applies only to Title I sites except for the reconsideration and
reinstatement procedures in Sec. 61.226. The phrase ``or uranium
byproduct materials'' was deleted to further clarify that subpart T
applies to Title I sites. The phrases ``residual radioactive
materials'' and ``tailings'' currently appear in Sec. 61.220(a). EPA
noted in describing DOE sites in the 1989 BID that the tailings located
at these sites contain residual radioactive materials, including traces
of unrecovered uranium, various heavy metals and other elements.
Background Information Document: Risk Assessments; Environmental Impact
Statement; NESHAPs for Radionuclides, Volume 2 at 8-2 (EPA/520/1-89-
006-1, September 1989).
EPA believes it appropriate to define residual radioactive material
and tailings for purposes of this subpart. The Agency proposed these
definitions on December 31, 1991 and February 4, 1994. (56 FR 67561; 59
FR 5687). The proposed definitions for these terms were consistent with
definitions contained in UMTRCA. 42 U.S.C. 7911, sections 101(7) and
101(8). The terms are defined in the Final Rule by expressly
referencing UMTRCA, to ensure consistency with that Act. The Agency
does not believe these definitions would be problematic if the Agency
decided to reinstate subpart T, since EPA would amend subpart T at that
time to apply to the Title II sites and to include appropriate
definitions.
Comment: The provisions of subpart T, with the exception of
Sec. 61.226, should only apply to Title I sites and some apparent
references to Title II sites remain.
Response: EPA is rescinding subpart T as applied to NRC or
Agreement State licensed non-operational uranium mill tailings disposal
sites, and thus, does not intend any provision of subpart T, excepting
Sec. 61.226 and applicable definitions, to apply to these sites. EPA
has revised Sec. 61.220(a) to reflect this intent.
Comment: Section 61.226(c)(2) as proposed suggests that no future
action can be taken to resolve EPA's concerns after EPA notifies NRC of
its intent to initiate a rulemaking to reinstate subpart T.
Response: EPA disagrees with the commenter's suggestion that no
further action may be taken to resolve the Agency's then existing
concerns after EPA notifies NRC of its intent to proceed with a
rulemaking to reinstate subpart T. The purpose of consulting with NRC
about the Agency's concerns prior to notifying NRC and the subsequent
60-day period is to provide EPA and NRC with an opportunity to address
EPA's concerns prior to EPA actually initiating such a rulemaking.
Additionally, EPA expects that the two agencies would continue
consultations during the rulemaking process to attempt to resolve any
remaining concerns. Section 61.226(c)(2) would not limit such continued
consultations.
4.2. Provisions for Reconsideration of the Rescission and Reinstatement
of Subpart T
Comment: Many commenters, although generally opposed to the idea of
reinstatement of subpart T, favored including provisions for
reconsideration and reinstatement of subpart T on either a site-
specific or programmatic basis, as set forth in the Agency's 1991
proposal to rescind subpart T.
Response: EPA reviewed the various reconsideration options proposed
in December 1991, taking into consideration the comprehensive details
added to the terms of the MOU by the settlement agreement finalized in
April 1993. In its 1994 supplemental proposal, EPA proposed an
additional reconsideration option that was a combination of the options
originally proposed. EPA did not withdraw the original options, but
instead announced the Agency's preference for provisions on
reconsideration and reinstatement of subpart T on both programmatic and
site-specific bases. The Agency has reviewed carefully all comments
submitted on the proposed reconsideration provisions and has revised
the regulatory text and preamble where deemed appropriate. The Agency
believes the provisions for reconsideration and reinstatement of
subpart T adopted today represent a comprehensive approach based on
EPA's current evaluation of the NRC regulatory program, and a
regulatory structure designed to address future evaluations of the
program.
Comment: EPA received a variety of comments dealing with the
consistency of the proposed regulations with the settlement agreement
between EPA, EDF, NRDC, AMC, and individual site owners described
above; to which NRC agreed in principle. These commenters suggested
various minor revisions to the regulations.
Response: EPA has adopted certain comments and suggested minor
language changes while rejecting others, depending on whether they
effectively implement the goal of rescission of subpart T.
Comment: Several commenters contend the site-specific
reconsideration and reinstatement options contained in the December
1991 proposal would unduly restrict NRC's waiver authority, since EPA
proposed a non-discretionary duty to reinstate subpart T on a site-
specific basis if NRC exercises its waiver authority.
Response: As described in the proposals, EPA was concerned over the
potential for deviation from the agreements contained in the MOU and
the requirements of revised subpart D. In response, EPA proposed and is
now adopting procedural and substantive provisions for site-specific
and programmatic reconsideration and reinstatement if certain criteria
are met. In promulgating subpart T, the CAA did not permit, and EPA did
not consider, site-specific waivers from ultimate compliance with that
standard. Thus, in evaluating NRC's regulatory program, EPA recognized
in its December 1991 proposal that NRC's waiver authority under the AEA
might be exercised in a manner not addressed in the MOU even after the
revisions to 40 CFR part 192, subpart D and 10 CFR part 40, appendix A
have been promulgated and the licenses amended. However, EPA has no
reason to believe such relaxation of the standards will actually occur.
EPA believes the provisions adopted today represent a comprehensive
approach based on EPA's current evaluation of the NRC regulatory
program, and a regulatory structure designed to address future
evaluations of the program.
Additionally, in response to the 1994 proposal, EPA received
subsequent comments from these commenters supporting the rescission of
subpart T. Furthermore, these commenters supported the proposed
reconsideration and reinstatement provisions with certain
modifications. These commenters believe the 1994 proposal to rescind
subpart T is consistent with the terms of the settlement agreement
between EPA, EDF, NRDC, AMC and individual sites. Thus, based on the
above reasons for adopting reconsideration and reinstatement
provisions, and due to the inconsistency between the earlier comments
received and the subsequent expressions of support for the rescission
of subpart T, EPA is rejecting the earlier comments.
Comment: Many commenters to the 1991 proposal believe that
reconsideration of the rescission of subpart T and subsequent
reinstatement on a programmatic basis is inappropriate if one site
fails to comply.
Response: Today's action sets forth provisions for the
reconsideration of the rescission of subpart T and reinstatement of
that subpart. The regulations adopted today include provisions for
programmatic and site-specific reinstatement with separate but somewhat
parallel criteria. At this time, EPA is not aware of a situation which
would cause it to reinstate subpart T on a programmatic basis if one
site fails to comply, and would not expect to reinstate subpart T on
that basis. However, the Agency cannot predict all future
circumstances, and cannot at this time preclude the possibility of such
reinstatement. EPA does, however, believe the criteria adopted today
appropriately address both programmatic and site-specific
reinstatement.
EPA rejects this comment for the above reasons, and because of the
inconsistent responses to the 1991 and 1994 proposals received from the
same commenters.
Comment: Some commenters assert, in response to the 1991 proposal
that EPA lacks the authority to reinstate subpart T on a site-specific
basis, since section 112(d)(9) is concerned only with NRC's regulatory
program.
Response: EPA believes that section 112(d)(9) does not preclude
site-specific reinstatement. Section 112(d)(9) of the CAA as amended
authorizes EPA to decline to regulate radionuclide emissions from any
category or subcategory of facilities licensed by the Nuclear
Regulatory Commission (or an Agreement State) 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. The text of this section does not appear to preclude
reinstatement on a site-specific basis. Section 112(d)(9) allows EPA to
categorize and subcategorize, and for any such category or subcategory
determine whether the public health is protected with an ample margin
of safety by the NRC regulatory program from a particular source of
radionuclide emissions. EPA believes that under the appropriate
circumstances, the Agency may want to specifically categorize sites.
The CAA as amended does not appear to preclude such specific categories
on its face.
EPA rejects this comment for the above reasons, and because of the
contradictory and inconsistent nature of the comments received from the
same commenters in response to the 1991 and 1994 proposals, and the
commenters' support of EPA's 1994 proposal which contains provisions
for site-specific reinstatement.
Comment: One commenter appears to recognize EPA's authority for
site-specific reinstatement of subpart T but is opposed to EPA's
exercise of such authority, and questions its appropriateness, since it
appears to the commenter that NRC's existing inspection and enforcement
programs address site-specific failures.
Response: This commenter does not oppose the proposed reinstatement
provisions and expresses the clear opinion that EPA committed in the
settlement agreement to include provisions for site-specific
reconsideration and reinstatement of subpart T. EPA anticipates that
before initiating a rulemaking to reinstate subpart T on a site-
specific basis, there would be extensive consultation with NRC. Based
on the actions of NRC to date in implementing the terms of the MOU, EPA
hopes that all concerns could be resolved. EPA is adopting the
provisions for site-specific reconsideration and reinstatement as part
of a comprehensive approach based on EPA's current evaluation of the
NRC regulatory program, and a regulatory structure designed to address
future evaluations of the program.
Comment: Some commenters contend that in reconsidering the
rescission and reinstatement of subpart T on a programmatic basis,
section 112(d)(9) requires EPA to determine whether public health is
threatened by the failure of a particular site to meet the 20 pCi/
m2-s flux standard.
Response: The Agency disagrees with the commenters' interpretation
of section 112(d)(9) as applying to provisions for reinstatement.
Section 112(d)(9) does not establish the criteria for reinstatement,
rather it authorizes EPA to decline to regulate radionuclide emissions
from NRC or Agreement State licensees if the Administrator determines,
by rule, and after consultation with the NRC, that the NRC regulatory
program protects the public health with an ample margin of safety.
Under section 112(d)(9) EPA may rescind subpart T if EPA determines
that the NRC regulatory program provides an equivalent level of public
health protection (i.e., an ample margin of safety) as would
implementation of subpart T in order to rescind subpart T. Section
112(d)(9) does not limit EPA's authority to reinstate subpart T. EPA
believes the criteria adopted today appropriately address both
programmatic and site-specific reinstatement.
Additionally, this comment was received in response to the 1991
proposal. EPA rejects this comment for the above reasons, and because
of the inconsistent responses to the 1991 and 1994 proposals received
from the same commenters.
Comment: Some commenters contend in response to the 1994 proposal
that EPA should not treat reinstatement at the Administrator's
initiative on the same terms as reinstatement based on a third party
petition. These comments suggest revising the proposed regulations to
reflect the differences between the two, including adding a provision
for a third possible result (i.e., a finding that NRC is in
compliance).
Response: EPA disagrees with the commenters' suggestion that
reinstatement at the Administrator's initiative should be treated
differently from reinstatement based on a third party petition.
The commenters are basing their contentions on the terms of the
settlement agreement which the Agency entered into with EDF, NRDC, AMC
and individual sites in February 1993. That agreement adds
comprehensive details to the regulatory approach of the MOU between
EPA, NRC and the affected Agreement States. EPA has reviewed the terms
of the settlement agreement pertaining to the reconsideration of
rescission and reinstatement of subpart T. The settlement agreement
specifies at paragraph III.e. that upon completion of a rulemaking
reconsidering the rescission of subpart T, EPA may (1) reinstate
subpart T on a programmatic basis if certain criteria are met; (2)
reinstate subpart T on a site-specific basis if certain criteria are
met; or (3) issue a finding that NRC is in compliance with certain
criteria and that reinstatement of subpart T is not appropriate.
The Agency believes the criteria in Sec. 61.226(a) for requiring
reinstatement upon completion of a reconsideration rulemaking should
apply whether the rulemaking is at the Administrator's initiative or
based on a third party petition. These criteria are: (1) Failure by the
NRC or an Agreement State 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 (i.e., contained in the license)
establishing milestones for the purpose of emplacing a permanent radon
barrier that will achieve compliance with the 20 pCi/m2-s flux
standard; or (2) failure by NRC or an affected Agreement State 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.
Additionally, EPA would not be required to reinstate subpart T under
Sec. 61.226(a) unless 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/m2-s flux standard at uranium mill
tailings disposal sites.
The commenters contend that the nature of the party initiating the
reconsideration rulemaking should determine whether reinstatement is
discretionary (for initiation by the Administrator) or mandatory (for a
third party petition), apparently based on a desire to provide EPA with
greater flexibility to address concerns over failures of NRC or an
Agreement State to implement or enforce applicable requirements. The
Agency believes that the nature of the initiating party properly may
trigger different procedural requirements. For example, when a private
party initiates the process by filing a petition, EPA has established a
requirement that it take final action on such a petition within a set
time period. However, EPA believes that the nature of the party
initiating the process leading to a rulemaking is not relevant to
deciding whether to reinstate, assuming the relevant criteria for
reinstatement are met under either circumstance. EPA believes that if
the Administrator determines, based on the record, that (1) NRC or an
Agreement State 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 license) requirements
establishing milestones for the purpose of emplacing a permanent radon
barrier that will achieve compliance with the 20 pCi/m2-s flux
standard or (2) NRC or an affected Agreement State failed in
significant part, 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, then there would be the same reason for the Agency to reinstate
subpart T whether the process was initiated by a private petition or at
EPA's own initiation. If the Agency makes the determination required to
reinstate subpart T based on reconsideration of rescission at the
Administrator's initiative and such reinstatement is considered
discretionary, the Agency is not aware of circumstances which would
lead the Agency not to reinstate subpart T. In any case, if the
Administrator should make the determination in Sec. 61.226(a) (1) or
(2) but decide in her discretion not to reinstate subpart T in a
proceeding initiated by the Administrator, then the Agency believes it
would promptly receive third party petitions based on the finding made
at the Administrator's initiative, and the Agency would then be
obligated to reinstate subpart T. Additionally, upon completion of the
reconsideration of rescission pursuant to Sec. 61.226(c) the
Administrator may in her discretion issue a finding that reinstatement
of this subpart is not appropriate if the Administrator makes certain
findings. However, the discretion to issue such a finding is not
relevant to the situation where the Administrator has found that the
criteria for reinstatement have already been met, since the two
findings are mutually exclusive. Finally, the commenters apparently
believe that reinstatement at the Administrator's initiative should be
discretionary so that EPA and NRC can continue attempts to resolve
concerns and thereby avoid the need to reinstate. EPA believes that
such ongoing consultation is not precluded by the regulations adopted
today, and EPA expects the agencies would continue consultations and
make all possible efforts to resolve the concerns during the rulemaking
process. The regulation does not establish a time limit for final
agency action in this case, and the agency would have discretion to
extend the rulemaking if appropriate to continue such inter-agency
consultations.
EPA agrees with the commenters that the settlement agreement
provides an additional possible result upon completion of a
reconsideration rulemaking initiated by the Administrator, namely that
the Agency may issue a finding that reinstatement is not appropriate if
the Agency finds: (1) NRC and the affected Agreement States are on a
programmatic basis implementing and enforcing, 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 license) requirements establishing milestones for the purpose of
emplacing a permanent radon barrier that will achieve compliance with
the 20 pCi/m2-s flux standard; or (2) NRC or an affected Agreement
State are, in significant part, on a site-specific basis achieving
compliance by the operator of the site or sites with applicable license
requirements, regulations, or standards implemented by NRC and the
affected Agreement States. EPA believes addition of this provision to
the regulations will clarify the existence of this option and has
revised Sec. 61.226(a) of the reinstatement provisions to provide for
this additional result.
Comment: One commenter asserts that EPA's characterization of its
authority to reconsider rescission of subpart T in the preamble to the
1994 proposal appears overly broad and reinstatement should be clearly
limited to those conditions proposed in Sec. 61.226(a).
Response: EPA believes that the provisions for reconsideration of
rescission adopted in Sec. 61.226 represent a comprehensive approach
under both the MOU and the settlement agreement. The provisions include
substantive and procedural provisions for reconsideration of rescission
and the reinstatement of this subpart on a programmatic or site-
specific basis. The provisions include the obligation to reinstate
subpart T if certain conditions are met, procedures for reconsideration
and provisions authorizing the Administrator to initiate
reconsideration. Although the Agency does not intend to reconsider its
decision to rescind subpart T for a site which is in fact meeting the
20 pCi/m2-s flux standard absent other factors that would indicate
the need for reinstatement, the Agency recognizes that a situation may
arise where reconsideration of rescission is nevertheless appropriate.
For example, EPA might consider initiating reconsideration under
Sec. 61.226 where a site is meeting the 20 pCi/m2-s flux standard
if there are factors which show that NRC or an Agreement State failed
to implement and enforce in significant part, the applicable
regulations, e.g., clear failure of that site to emplace the permanent
radon barrier within the time periods established in implementing
subpart D. EPA is not aware of circumstances under which EPA might
reconsider rescission for a site that is meeting the 20 pCi/m2-s
flux standard, other than those indicating that the milestone for
emplacement of the permanent radon barrier has passed, the delay was
not approved by NRC or an Agreement State and the licensee failed to
emplace the permanent radon barrier, and there are indications that the
licensee does not plan to emplace the barrier and NRC or an Agreement
State does not plan to enforce this requirement. EPA does not envision
such an unusual situation arising. EPA believes the actions taken to
date by NRC, including the license amendments and the final amendments
to the NRC conforming regulations, as described above, reflect the good
faith effort on the part of NRC and the Agreement States to implement
the MOU and EPA's subpart D regulations. However, the Agency is not now
in the position to determine that there could be no circumstances which
might indicate the need to reconsider the rescission of subpart T for a
site that is in fact meeting the 20 pCi/m2-s flux standard.
Additionally, EPA reserves the right to initiate reinstatement of
subpart T if appropriate, since although the Sec. 61.226 provisions
adopted today establish an obligation for the Administrator to
reinstate if certain conditions are met, they are not intended to be
the exclusive basis for reinstatement. Under the regulations adopted
today, EPA has the authority to reconsider the rescission of subpart T
at the Administrator's initiative and upon the petition of a third
party. The Agency is obligated to reinstate subpart T on a programmatic
basis 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/m2-s flux
standard. Additionally, EPA is obligated to reinstate subpart T on a
site-specific basis 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 in significant part 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. The obligation to reinstate
subpart T is limited to those failures which may reasonably be
anticipated to significantly interfere with timely emplacement of the
permanent radon barrier constructed to achieve compliance with the 20
pCi/m2-s flux standard. At this time, EPA is not aware of
circumstances where it would consider reinstating subpart T if the
failure does not significantly interfere with emplacement of the
required permanent radon barrier. However, EPA reserves the right to
reconsider the rescission where the criteria of Sec. 61.226(a) have not
been met, under the Agency's authority to issue NESHAPs contained in
section 112 of the CAA. For example, even if the NRC or an Agreement
State is implementing and enforcing, in significant part, the
applicable regulations and license amendments, the Agency may decide to
reconsider the rescission if new information indicated that the public
health is not protected with an ample margin of safety. The Agency
cannot predict all future circumstances and cannot at this time
preclude the possibility of such reconsideration and possible
reinstatement. Despite reserving this authority, the Agency believes
this is a theoretical situation and has no current intention to act on
this authority.
5. Miscellaneous
5.1. Monitoring
Comment: EPA must ensure that the single monitoring event currently
required by subpart T would remain in effect if subpart T is
reinstated, particularly in light of the recently proposed ``enhanced
monitoring'' regulations.
Response: Subpart T currently requires monitoring to occur only
once to demonstrate compliance with the 20 pCi/m2-s flux standard
of Sec. 61.222. However, EPA published a proposed Enhanced Monitoring
Program on October 22, 1993, which would require owners and operators
of sources subject to existing NESHAPs to perform enhanced monitoring
at emissions units. (58 FR 54648). It appears that the proposal applies
the enhanced monitoring requirements for hazardous air pollutants to
all emissions units which would be required to obtain an operating
permit. (58 FR 54651, October 22, 1993). Additionally, although
asbestos demolition and renovation projects (subpart M) were exempted
from the enhanced monitoring provisions, it does not appear subpart T
would be exempted. The rationale for the proposed asbestos demolition
exemption, that EPA was not requiring states to permit those sources
and the permit program is the established method for implementing the
enhanced monitoring program, does not appear to apply to uranium mill
tailings disposal sites. It would be premature for EPA to determine
today that in the event subpart T is reinstated for Title II sites, the
proposed enhanced monitoring provisions would not apply.
5.2 Discussion of 40 CFR part 192, Subpart D Extension Provisions
Comment: EPA's discussion of the extension provisions contained in
40 CFR 192.32(a)(3)(ii), (iii) is confusing and should be revised to
equally consider the possibility of extensions for factors beyond the
control of the licensee.
Response: EPA believes its discussion of the extension provisions
contained in the Agency's amendments to its UMTRCA regulations at 40
CFR 192.32(a)(3)(ii) and (iii) does not need further clarification. EPA
disagrees with the commenter's claim that an extension based upon
``factors beyond the control of the licensee'' should be considered
equally with the delay provisions encompassed in EPA's UMTRCA
regulations. 40 CFR 192.32(a)(3)(ii) and (iii) specifically provide
that NRC may grant an extension on either one of two bases. However, an
extension due to ``factors beyond the control of the licensee'' is
implicit in the definition of ``as expeditiously as practicable.'' The
term ``factors beyond the control of the licensee'' would be one
element for NRC to evaluate in reconsidering a prior decision
establishing a date for emplacement of the permanent radon barrier that
meets the definition of ``as expeditiously as practicable.'' A change
in any one of the factors considered in establishing a date that meets
the ``as expeditiously as practicable'' standard would not
automatically lead to an extension, rather NRC would need to evaluate
all the relevant factors under Sec. 192.32(a)(3)(i) before it could
change a previously established milestone or date for emplacement of
the permanent radon barrier.
5.3 Discussion of Amendment of NRC and Agreement State Licenses
Comment: There is some concern that EPA may be over scrutinizing
the NRC license amendment process, particularly with respect to the
Atlas site located in Moab, Utah.
Response: In order to determine that the NRC regulatory program
protects the public health with an ample margin of safety and rescind
subpart T, EPA must conclude, inter alia that NRC and the affected
Agreement States are or will be implementing and enforcing the license
requirements (tailings closure plan (radon)) that establish the
milestones for emplacement of a permanent radon barrier that will
achieve compliance with the 20 pCi/m2-s flux standard as
expeditiously as practicable considering technological feasibility. The
Agency is applying the same basic approach in reviewing all of the
license amendments. Presently, Atlas is the only site where the site
license has not yet been amended, but the tailings closure plan (radon)
milestones are in jeopardy. There is a wealth of information for EPA to
review due to the unique circumstances of this site.
EPA is interested in the Atlas site because the license amendment
incorporating the reclamation plan has not yet been completed, and this
may jeopardize the dates contained in the tailings closure plan
(radon). The MOU established a target closure date of 1996. EPA
recognizes that this is the only site for which a license amendment
incorporating the reclamation plan has not been established, thereby
possibly impacting the dates currently contained in the approved
tailings closure plan (radon) adopted pursuant to the MOU and EPA's
revised subpart D regulations, and that the circumstances surrounding
the delay are unique. EPA believes NRC, the affected Agreement States
and the licensees have acted in good faith to amend the site licenses.
The Agency does not believe it is overly scrutinizing the license
amendment process. The Agency believes its interest in the Atlas site
reflects EPA's commitment to and review of the applicable criteria in
finally determining that NRC and the affected Agreement States are or
will be implementing and enforcing the license requirements (tailings
closure plan (radon)) to achieve compliance with the 20 pCi/m\2\-s flux
standard. EPA is merely reviewing current information and monitoring
the progress of NRC in implementing the requirements of subpart D. The
Agency has not suggested any course of action to NRC.
5.4 Public Participation
Comment: An industrial site, other than a uranium mill tailings
disposal site, commented that publishing a notice in the Federal
Register does not provide sufficient notice for citizens of communities
where uranium mill tailings disposal sites are located.
Response: The EPA made every effort to notify the affected public
of the proposed rulemaking action. EPA published a NPR on December 31,
1991, and a supplement to that proposal on February 7, 1994, in the
Federal Register. There was a public comment period after each
proposal; public hearings were held in Washington, DC and Santa Fe, NM
after the 1991 proposal and no request for a hearing was received after
the 1994 proposal. EPA believes it has afforded the public with full
opportunity to participate in this proceeding, as well as satisfied all
such requirements under Clean Air Act section 307.
V. Miscellaneous
A. Disposition of Pending Judicial Challenges and Petitions for
Reconsideration
By taking today's action rescinding subpart T as applied to owners
and operators of uranium mill tailings disposal sites regulated under
Title II of UMTRCA, the stay of subpart T is no longer effective. Thus,
the challenge to the stay of subpart T filed by EDF is moot, and EPA
expects that the pending litigation will be promptly resolved by
dismissal. Based on the terms of the settlement agreement between EDF,
NRDC, AMC, individual sites and EPA as described above, and based on
today's rescission of subpart T, AMC's pending administrative petition
for reconsideration of subpart T is denied as moot. Additionally, all
other pending petitions for reconsideration of subpart T as applied to
Title II sites are denied as moot under today's action.
B. Paperwork Reduction Act
There are no information collection requirements in this rule.
C. 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.
D. 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 this
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 the 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 final 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, 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: June 29, 1994.
Carol M. Browner,
Administrator.
Part 61 of chapter 1 of title 40 of the Code of Federal Regulations
is amended as follows:
PART 61--[AMENDED]
1. The authority citation for part 61 is revised to read as
follows:
Authority: 42 U.S.C. 7401, 7412, 7414, 7416, 7601.
2. Section 61.220 is amended by revising paragraph (a) and removing
and reserving paragraph (b) 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, except Sec. 61.226 of this subpart which applies to owners
and operators of all sites that are regulated under Title II of the
Uranium Mill Tailings Radiation Control Act of 1978.
(b) [Reserved]
3. Section 61.221 is amended by revising the introductory text,
revising 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 the 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 shall have the same meaning as
in section 101(7) of the Uranium Mill Tailings Radiation Control Act of
1978, 42 U.S.C. 7911(7).
(d) Tailings shall have the same meaning as in section 101(8) of
the Uranium Mill Tailings Radiation Control Act of 1978, 42 U.S.C.
7911(8).
(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 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 upon completion of
reconsideration of rescission.
(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 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 the uranium mill tailings disposal site.
(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 in
significant part 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 the uranium mill tailings disposal site.
(3) Upon completion of the reconsideration of rescission pursuant
to Sec. 61.226(c) the Administrator may issue a finding that
reinstatement of this subpart is not appropriate if the Administrator
finds:
(i) NRC and the affected Agreement States are on a programmatic
basis implementing and enforcing, 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
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; or
(ii) NRC or an affected Agreement State are on a site-specific
basis, in significant part, achieving compliance by the operator of the
site or sites with applicable license requirements, regulations, or
standards implemented by NRC and the affected Agreement States.
(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. 94-17089 Filed 7-14-94; 8:45 am]
BILLING CODE 6560-50-P
