Uranium Mill Tailings Regulations; Conforming NRC Requirements to EPA Standards

NUCLEAR REGULATORY COMMISSION

10 CFR Part 40

RIN 3150-AE77

Uranium Mill Tailings Regulations; Conforming NRC Requirements to

EPA Standards

AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is amending its

regulations governing the disposal of uranium mill tailings. These

changes conform existing NRC regulations to regulations published by

the Environmental Protection Agency (EPA). The conforming amendments

are intended to clarify the existing rules by ensuring timely

emplacement of the final radon barrier and by requiring appropriate

verification of the radon flux through that barrier. This action is

related to another action by EPA to rescind its National Emissions

Standard for Hazardous Air Pollutants (NESHAPs) for radon emissions

from the licensed disposal of uranium mill tailings at non-operational

sites.

EFFECTIVE DATE: This regulation becomes effective on July 1, 1994.

FOR FURTHER INFORMATION CONTACT: Catherine R. Mattsen, Office of

Nuclear Regulatory Research, U.S. Nuclear Regulatory Commission,

Washington, DC 20555, telephone (301) 415-6264.

SUPPLEMENTARY INFORMATION:

Background

On April 29, 1983 (48 FR 19584), EPA proposed general environmental

standards for uranium and thorium mill tailings sites licensed by NRC

or one of its Agreement States. Final standards were published on

September 30, 1983 (48 FR 45926), and codified in 40 CFR part 192,

subparts D and E. On October 16, 1985 (50 FR 41852), NRC published

amendments to 10 CFR part 40 to conform its rules to EPA's general

standards in 40 CFR part 192, as it affected matters other than ground

water protection. Both NRC and EPA regulations included a design

standard requiring that the tailings or wastes from mill operations be

covered to provide reasonable assurance that radon released to the

atmosphere from the tailings or wastes will not exceed an average of 20

picocuries per square meter per second (pCi/m\2\s) for 1000 years, to

the extent reasonably achievable, and in any case, for 200 years.

Neither the EPA standards of 1983 nor NRC's conforming standards of

1985 established compliance schedules to ensure that the tailings piles

would be expeditiously closed and the 20 pCi/m\2\s standard would be

met within a reasonable period of time. Criterion 6 of appendix A to

part 40 was initially only a design standard and did not require

verification that the radon releases meet this ``flux standard.''

In response to the separate requirements of the Clean Air Act

(CAA), EPA promulgated additional standards in 40 CFR part 61 (subpart

T for non-operational sites) to ensure that the piles would be closed

in a timely manner (December 15, 1989; 54 FR 51654). This regulation

applies only to uranium mill tailings and requires, in addition to the

flux standard of 20 pCi/m\2\s, that once a uranium mill tailings pile

or impoundment ceases to be operational, it must be closed and brought

into compliance with the standard 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. If it were not

physically possible for the mill owner or operator to complete disposal

within that time, EPA contemplated a negotiated compliance agreement

with the mill owner or operator pursuant to EPA's enforcement authority

in order to assure that disposal would be completed as quickly as

possible. Subpart T of 40 CFR part 61 also requires testing for all

piles within the facility to demonstrate compliance with the emission

limit and specifies reporting and recordkeeping associated with this

demonstration.

Subpart T was challenged by a number of parties including the

American Mining Congress (AMC), the Environmental Defense Fund (EDF),

and the Natural Resources Defense Council (NRDC). In addition, AMC, the

NRC, and others filed an administrative petition for reconsideration of

subpart T. Among the concerns of these parties was the argument that

the overlap between EPA's subpart D of 40 CFR part 192 (based on the

Uranium Mill Tailings Radiation Control Act (UMTRCA)) and subpart T of

40 CFR part 61 (based on the CAA) resulted in regulations that are

unnecessarily burdensome and duplicative. Among other things, the

industry also alleged that subpart T was unlawful because it was

physically impossible to come into compliance with subpart T in the

time required. In November 1990, Congress amended the CAA by including

a new provision, section 112(d)(9). This provision authorized EPA to

decline to regulate radionuclide emissions from NRC licensees under the

CAA if EPA found, by rule, after consultation with NRC, that the

regulatory program implemented by NRC protects the public health with

an ample margin of safety.

In July 1991, EPA, NRC, and the affected Agreement States began

discussions concerning 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 affected

Agreement States. The MOU outlines the steps each party would take to

both eliminate regulatory redundancy and to ensure uranium mill

tailings piles are closed as expeditiously as practicable. (The MOU was

published by EPA on October 25, 1991 (56 FR 55434) as part of a

proposal to stay subpart T.) The primary purpose of the MOU is to

ensure that the owners and operators of all disposal sites that have

ceased operation and those owners and operators of sites that will

cease operation in the future effect emplacement of a final earthen

cover to limit radon emissions to a flux of no more than 20 pCi/m\2\s

as expeditiously as practicable considering technological feasibility.

The MOU presents a 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 cease and

standby sites enter disposal status. The attachment to the MOU lists

specific target dates for completing emplacement of final earthen

covers to limit radon emissions from non-operational tailings

impoundments. These target dates were based on consultations with the

licensed mill operators.

On December 31, 1991, the EPA published three Federal Register

notices: a final rule to stay the effectiveness of 40 CFR part 61,

subpart T, as it applies to owners and operators of uranium mill

tailings disposal sites licensed by the NRC or an Agreement State (56

FR 67537); a proposed rule to rescind 40 CFR part 61, subpart T, as it

applies to uranium mill tailings disposal sites licensed by the NRC or

an Agreement State (56 FR 67561); and an advance notice of proposed

rulemaking to amend 40 CFR part 192, subpart D, to require that site

closure occur as expeditiously as practicable considering technological

feasibility and to add a demonstration of compliance with the design

standard for radon releases (56 FR 67569). The stay of effectiveness of

subpart T is to remain in effect until EPA takes final action to

rescind subpart T and amend 40 CFR part 192, subpart D, to ensure that

the remaining rules are as protective of the public health with an

ample margin of safety as implementation of subpart T, or until June

30, 1994. If EPA fails to complete these rulemakings by that date, the

stay will expire and the requirements of subpart T will become

effective.

The stay of effectiveness of subpart T was also challenged.

Discussions continued between EPA, the litigants, and the NRC. In

February 1993, final agreement was reached to settle the pending

litigation and the administrative proceeding, avoid potential future

litigation, and otherwise agree to a consensus approach to regulation

of licensed non-operational uranium mill tailings disposal sites. EPA

announced the settlement agreement in a notice of April 1, 1993 (58 FR

17230). The NRC was not a signatory to this agreement but agreed in

principle with the settlement agreement. The settlement agreement

further defined steps for implementing the MOU. It called for the NRC

to amend its regulations in appendix A of part 40 to be substantially

consistent with a specific regulatory approach described in the

settlement agreement. It also described actions to be taken by the

parties to the agreement which were intended to implement the MOU and

eliminate further litigation with respect to subpart T.

On June 8, 1993 (58 FR 32174), the EPA proposed minor amendments to

40 CFR part 192, subpart D, to ensure timely emplacement of the final

radon barrier and to require monitoring to verify radon flux levels (a

one-time verification). In that notice, the EPA stated its tentative

conclusion that if those amendments to 40 CFR part 192, subpart D, were

properly implemented by NRC and the Agreement States to ensure

specific, enforceable closure schedules and radon level monitoring, the

NRC's regulatory program for non-operational uranium mill tailings

piles would protect the public health with an ample margin of safety.

The EPA also noted its intent to publish a proposed finding for public

comment on whether the NRC program protects public health with an ample

margin of safety before taking final action on rescission of 40 CFR

part 61, subpart T.

On November 3, 1993 (58 FR 58657), the NRC published a proposed

revision to appendix A of part 40 intended to conform to EPA's proposed

revisions to 40 CFR part 192, subpart D. On November 15, 1993 (58 FR

60340), the EPA published a final effective rule amending 40 CFR part

192, subpart D. This final amendment to appendix A of 10 CFR part 40

must conform to 40 CFR part 192, subpart D, as amended on November 15,

1993. Changes in this final rule that relate to changes made in EPA's

final rule are noted in the detailed discussion.

On February 7, 1994 (59 FR 5674), the EPA published a supplement to

its proposed rescission of subpart T as it applies to owners and

operators of uranium mill tailings disposal sites licensed by the NRC

or an Agreement State. That action was also taken in accordance with

the settlement agreement. That notice did not present a change from

EPA's plans, strategies, or findings as discussed in the actions

pertaining to the revision of 40 CFR part 192, subpart D. EPA invited

comments on the proposed rescission of subpart T and on its

determination that the NRC regulatory program protects public health

and safety with an ample margin. It does not specifically address NRC

actions except that EPA has again stated that this conforming rule is

necessary to support the rescission of 40 CFR part 61, subpart T.

EPA's revision to 40 CFR part 192 is not intended to change EPA's

original rationale or scheme set forth in its 1983 rule. The EPA rule

``seeks to clarify and supplement that scheme in a manner that will

better support its original intent.'' EPA's final rule and this NRC

conforming rule require that when a uranium mill becomes non-

operational, the final barrier to control radon will be emplaced as

expeditiously as practicable considering technological feasibility

(including factors beyond the control of the licensee). Setting interim

dates for achieving milestones towards emplacement will support and

better assure this progress. Also, post-emplacement determination of

radon flux will serve as confirmation that the design of the cover is

working as intended. EPA's June 8, 1993 (58 FR 32174), notice of

proposed rulemaking and its November 15, 1993 (58 FR 60340), notice of

final rulemaking provide detailed discussion of the rationale for the

action and the legislative and regulatory history leading to its

proposal.

Coordination With Affected NRC Agreement States

The affected Agreement States of Colorado, Texas, and Washington,

as well as the State of Illinois, were provided a draft of the proposed

rule before its promulgation. These States' comments and the

Commission's responses were discussed in the notice of proposed

rulemaking of November 3, 1993 (58 FR 58657). Copies of that notice

were sent to the affected States. One State submitted comments, which

are addressed below along with the other comments received.

Issue of Compatibility With Agreement States

The Commission has determined that these changes are a Division 2

matter of compatibility. Under Division 2, States must adopt the

provisions of an NRC rule but can adopt more stringent provisions. A

State may not adopt less stringent ones. This designation (Division 2)

is compatible with section 274o of the Atomic Energy Act of 1954, as

amended (AEA).

Description of the Rule

Section 84a(2) of the AEA requires the Commission to conform its

regulations governing uranium mill tailings to applicable EPA

requirements and standards. Based on this requirement and the plans and

schedules related to the rescission discussed in this document, the NRC

proposed to amend appendix A of 10 CFR part 40 to conform to EPA

proposed amendments to 40 CFR part 192, subpart D, concerning non-

operational, NRC or Agreement State licensed mill tailings sites.

Criterion 6 of appendix A to part 40 requires that an earthen cover (or

approved alternative cover) be placed over uranium mill tailings to

control the release of radon-222 at the end of milling operations. This

cover is to be designed to provide reasonable assurance that releases

of radon will not exceed an average of 20 pCi/m2s and that the

barrier will be effective in controlling radon releases to this level

for 1,000 years, to the extent reasonably achievable, and, in any case,

for at least 200 years. The design for satisfying the longevity

requirement includes features for erosion control such as the placement

of riprap over the earthen cover itself. (Criterion 6 is also

applicable to thorium mill tailings. These amendments to Criterion 6

apply to uranium mill tailings only.)

This rule, both as proposed and as now being adopted, amends

Criterion 6, adds a new Criterion 6A, and adds to the definitions

contained in the Introduction to appendix A to part 40.

Paragraphs (1), (5), (6), and (7) of revised Criterion 6 contain

the previously existing requirements of Criterion 6. These provisions

were not the subject of or affected by this rulemaking. These

preexisting portions of Criterion 6 appear in this notice only for the

purpose of numbering the paragraphs for ease of reference to specific

requirements contained within the criterion. However, minor conforming

revisions, as proposed, have been made to paragraph (1) of Criterion 6

and its footnotes for clarity and consistency with the new

requirements.

This rule adds a requirement to Criterion 6 for a one-time

verification that the barrier, as constructed, is effective in

controlling releases of radon from uranium byproduct material to levels

no greater than 20 pCi/m\2\s when averaged over the pile or

impoundment. This provision, which appears at paragraph (2), also

specifies EPA method 115, as described in 40 CFR part 61, appendix B,

as a standard for adequate demonstration of compliance. As is required

by the recent amendments to 40 CFR part 192, subpart D, the licensee

must use this method or another approved by the NRC as being at least

as effective in demonstrating the effectiveness of the final radon

barrier. A copy of 40 CFR part 61, appendix B, has been made available

for inspection at the NRC Public Document Room, 2120 L Street, NW.

(Lower Level), Washington, DC.

Because of practical reasons, the verification of radon flux levels

must take place after emplacement of the final radon barrier but before

completion of erosion protection features. In order for the results of

the verification to remain valid, erosion protection features must be

completed before significant degradation of the earthen barrier occurs.

The NRC will consider this in a final determination of compliance with

Criterion 6. The NRC could require, among other things, repetition of

part or all of the verification procedures on a case-by-case basis if

significant delay occurs before completion of erosion protection

features.

Paragraph (3) of revised Criterion 6 adds a requirement that, if

the reclamation plan calls for phased emplacement of the final radon

barrier, the verification of radon flux be performed on each portion of

the pile or impoundment as the final radon barrier is completed.

Paragraph (4) specifies the reporting and recordkeeping to be made

in connection with this demonstration of effectiveness of the final

radon barrier. A one-time report that details the method of

verification is to be made within 90 days of completion of the final

determination of radon flux levels. Records will be required to be kept

until license termination documenting the source of input parameters

and the results of all measurements on which they are based, the

calculations and/or analytical methods used to derive values for input

parameters, and the procedure used to determine compliance. These

reporting and recordkeeping requirements are comparable to the EPA

requirements in 40 CFR part 61, subpart T.

The Commission notes that the proper implementation of the design

standard of paragraph (1) of Criterion 6 is of primary importance in

the control of radon releases. The addition of the requirement for

verification of radon flux levels does not replace or detract from the

importance of the radon attenuation tailings cover design standard.

The new Criterion 6A addresses the timeliness of achieving radon

emission control in the case of uranium mill tailings. Criterion 6A

requires that the emplacement of the earthen cover (or approved

alternative cover) be carried out in accordance with a written,

Commission-approved, reclamation plan that includes enforceable dates

for the completion of key reclamation milestones. This plan will be

incorporated as a condition of the individual license. This plan must

provide for the completion of the final radon barrier as expeditiously

as practicable considering technological feasibility after the pile or

impoundment ceases operation. This timeliness requirement has the same

goals for completing the final radon barrier as were in the MOU

discussed above. In addition, erosion protection features must also be

completed in a timely manner in accordance with the Commission-approved

reclamation plan.

For the purposes of Criterion 6A, definitions are being added to

the Introduction of appendix A to part 40 (in alphabetical order with

the preexisting definitions) for: as expeditiously as practicable

considering technological feasibility, available technology, factors

beyond the control of the licensee, final radon barrier, milestone,

operation, and reclamation plan. These definitions are substantively

the same as contained in the EPA's recent amendment to 40 CFR part 192,

subpart D. However, reclamation plan covers a broader range of

activities than required in EPA's tailings closure plan (radon).

Reclamation of the tailings in accordance with appendix A to part 40

includes activities also occurring after the end of operation that are

beyond those involved in the control of radon releases, such as

groundwater remediation. Thus, it is appropriate and efficient for

planning if these activities are addressed in a single document. (This

rule would also allow the reclamation plan to be incorporated into the

pre-existing closure plan, also required by appendix A, which includes

other activities associated with decommissioning of the mill.)

A definition of final radon barrier was also included in the

Commission's proposed rule to facilitate the drafting of clear

regulatory text and to eliminate any ambiguity with respect to

compliance with the 20 pCi/m2s ``flux standard'' after completion

of the final earthen barrier and not as a result of any temporary

conditions or interim measures. This definition excludes the erosion

protection features which were not a subject of EPA's amendment to 40

CFR part 192. The EPA's proposed rule had not provided a definition of

this term or comparable term. However, in its final rule, the EPA added

a definition of the term permanent radon barrier, also to reduce

ambiguity. The EPA's definition is substantively the same as the NRC

definition of final radon barrier. The EPA used the word ``permanent''

in keeping with the terminology of the settlement agreement but defined

``permanent radon barrier'' as ``the final radon barrier constructed to

achieve compliance with, including attainment of, the limit on releases

of radon-222 in Sec. 192.32(b)(1)(ii).'' Both definitions refer to

comparable standards requiring control of radon releases to levels not

exceeding 20 pCi/m2s after closure. This final NRC rule continues

to use the word ``final'' as proposed, because it is more appropriate.

The word ``final'' more accurately describes the last earthen cover

over the tailings pile without the erosion protection features. The

barrier would not provide permanent protection without the erosion

protection features. Even after these features are completed, the

applicable long-term design standard in paragraph (1) of Criterion 6 is

``effective for 1,000 years, to the extent reasonably achievable, and,

in any case, for at least 200 years.'' Although not intended by EPA,

the term ``permanent'' could be interpreted to imply ``forever.''

Factors beyond the control of the licensee are defined as factors

proximately causing delay in meeting the schedule in the applicable

reclamation plan for the timely emplacement of the final radon barrier

notwithstanding the good faith efforts of the licensee to complete the

barrier. Consistent with the final version of EPA's rule, the following

description of possible factors beyond the control of the licensee has

been added to the definition in this final rule: these factors may

include, but are not limited to:

Physical conditions at the site;

Inclement weather or climatic conditions;

An act of God;

An act of war;

A judicial or administrative order or decision, or change to the

statutory, regulatory, or other legal requirements applicable to the

licensee's facility that would preclude or delay the performance of

activities required for compliance;

Labor disturbances;

Any modifications, cessation, or delay ordered by State, Federal,

or local agencies;

Delays beyond the time reasonably required in obtaining necessary

government permits, licenses, approvals, or consent for activities

described in the reclamation plan proposed by the licensee that result

from agency failure to take final action after the licensee has made a

good faith, timely effort to submit legally sufficient applications,

responses to requests (including relevant data requested by the

agencies), or other information, including approval of the reclamation

plan; and

An act or omission of any third party over whom the licensee has no

control.

In the definition of available technology, the phrase ``and

provided there is reasonable progress toward emplacement of a permanent

radon barrier'' was not included in the Commission's proposed rule as

it seemed inappropriate within the definition and the concept is

incorporated into the standard itself, i.e., Criterion 6A. This phrase

has been included in the final definition with the word ``final'' in

place of ``permanent'' in keeping with the terminology used in this

rule. A parenthetical with illustrative examples of grossly excessive

costs has also been added consistent with EPA's final amendments.

The definitions for as expeditiously as practicable considering

technological feasibility and reclamation plan have been specifically

identified as applying to only Criterion 6A to prevent any potential

misapplication. This has not been done in the case of the other

definitions because either the terms are not used elsewhere in appendix

A or are used consistently with the definitions being added.

This rule goes beyond EPA's rule by requiring that the erosion

protection barriers (or other features for longevity) be completed in a

timely manner. However, the rule does not require that enforceable

dates be established for completion of erosion protection as a

condition of license. (The key reclamation activities or ``milestones''

for which enforceable dates are to be established are the same as in

EPA's rule.) The reason for this difference is so that the NRC can

assure that erosion protection is completed before the barrier could

degrade significantly while allowing more flexibility in this regard

than for the ``key reclamation milestones.'' Allowing significant

degradation of the cover before completion of other aspects of the

design could violate the design basis.

As a result of the MOU, most affected licensees (those facilities

that were non-operational at the time of the MOU) have voluntarily

submitted reclamation plans which include proposed dates for attainment

of key reclamation milestones. (Planning for reclamation activities

with Commission approval was required by previously existing

regulations.) The process of approving those reclamation plans, at

least those portions dealing with control of radon emissions, and

amending the licenses to make the dates for completion of key

reclamation milestones a condition of license is complete with the

exception of the Atlas site in Moab, Utah. (In this case, license

amendment has been delayed pending resolution of issues raised when the

action was noticed in the Federal Register.) These impoundments are in

the process of being reclaimed with varying degrees of completion.

Other affected NRC licensees include one whose impoundment has ceased

operation since the MOU and who is in the process of preparing a

reclamation plan, and four with operational impoundments who will be

affected at the time the impoundments cease to be operational.

The considerations made in these recent licensing actions have been

consistent with those reflected in this rule, i.e., paragraph (1) of

Criterion 6A has essentially been implemented prior to promulgation as

a result of the MOU and the settlement agreement and in anticipation of

the amendments to 40 CFR part 192 and this rulemaking. Thus, the

deadlines for completion of milestones established in licenses will not

need to be reconsidered as a result of this rule. Also, the actions

taken since the MOU in the case of the Atlas site in Moab, Utah are

consistent with this rulemaking. The licensee has submitted proposed

revisions to its reclamation plans. The licensee has also supplied

further information and proposed modifications to address concerns that

have been raised. Notices of proposed amendments to the license to

provide for public participation have been published. The most recent

of these was published on April 7, 1994 (58 FR 16665). Delays in the

schedule for radon barrier emplacement are as a result of difficulties

in resolving technical issues related to the adequacy of plans for

erosion protection and groundwater protection and the consideration of

alternatives under the National Environmental Policy Act. Thus, delays

result from a combination of ``the need for consistency with mandatory

requirements of other regulatory programs'' and ``factors beyond the

control of the licensee.'' This case is primarily an example of factor

number (8) in the definition of factors beyond the control of the

licensee concerning delays in obtaining necessary approvals. The issues

of concern in the approval of this revised reclamation plan are yet to

be resolved and further delays are possible. However, no new issues

with regard to the scheduling of final radon barrier emplacement are

added as a result of this rule. The license amendment process and the

approval of the reclamation plans will not be adversely affected. The

NRC staff is continuing to provide timely attention to the resolution

of this case.

Paragraph (2) of Criterion 6A adds specific criteria for certain

circumstances under which the NRC may extend the time allowed for

completion of key milestones once enforceable dates have been

established. An opportunity for public participation will be provided

in a decision to extend the time allowed in these cases. The Commission

may approve an extension of the schedule for meeting milestones if it

is demonstrated that radon emissions do not exceed 20 pCi/m2s

averaged over the entire impoundment. The intent of this provision is

that, if the radon release rates are as low as will be required after

closure, there is no need for complex justifications for delaying

completion of reclamation. However, the Commission may not necessarily

extend deadlines for completion of milestones indefinitely on this

basis alone. In addition, the Commission may approve an extension of

the final compliance date for completion of the final radon barrier

based upon cost if the Commission finds that the licensee is making

good faith efforts to emplace the final radon barrier, that the delay

is consistent with the definition of available technology, and that the

radon releases caused by the delay will not result in a significant

incremental risk to the public health. If the basis for approving a

delay is that the radon levels do not exceed 20 pCi/m2s,

verification of radon levels will be required annually. Any other

reconsideration of deadlines once established as a result of changing

circumstances would be evaluated under paragraph (1) of Criterion 6A

giving consideration to all factors relevant to the ``as expeditiously

as practicable considering technological feasibility'' standard.

Paragraph (3) of Criterion 6A, as proposed, was to allow for the

continued acceptance of uranium byproduct material or such materials

that are similar in physical, chemical, and radiological

characteristics to the uranium mill tailings and associated wastes in

the pile or impoundment, from other sources, for disposal into a

portion of the impoundment after the end of operation but during

closure activities. This authorization was to be made only after

providing an opportunity for public participation. This paragraph was

intended to conform with proposed 40 CFR 192.32(a)(3)(iii). In the

context of appendix A, ``during closure activities'' could include the

period after emplacement of the final radon barrier. In this

circumstance, the Commission may except completion of reclamation

activities for a small portion of the impoundment from the deadlines

established in the license. The proposed rule specified that the

verification requirements for radon releases may still be satisfied in

this case if the Commission finds that the impoundment will continue to

achieve a level of radon releases not exceeding 20 pCi/m2s

averaged over the entire impoundment. However, reclamation of the

remaining disposal area, as appropriate, would be required in a timely

manner once the waste disposal operations cease.

This paragraph has been somewhat revised in the final rule

consistent with revisions made in EPA's final rule; these provisions

now appear at 40 CFR 192.32(a)(3) (iv) and (v). Both final rules are

more consistent with the settlement agreement in this regard. The

revisions are (1) that only byproduct material, not ``similar''

material, will be approved for disposal after the final radon barrier

is complete except for the continuing disposal area 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.

The final rule has also been modified by changing the words ``as

expeditiously as practicable'' in the last sentence of this paragraph

to ``in a timely manner'' to avoid the unintended application of the

definition of the term ``as expeditiously as practicable considering

technological feasibility'' to activities beyond the emplacement of the

final radon barrier. Additional clarifying language has also been added

to this paragraph.

Note, as discussed in EPA's statements of consideration for its

amendment of 40 CFR part 192 (at 58 FR 32183; June 8, 1993 and

reiterated at 58 FR 60354; November 15, 1993), the reclamation of

evaporation ponds may be dealt with separately from meeting the

expeditious radon cover requirements if deemed appropriate by the

Commission or the regulating Agreement State. This may be the case

whether or not the evaporation pond area is being used for continued

disposal of byproduct material.

The opportunities for public participation specified in Criterion

6A are in keeping with the MOU and the settlement agreement, and will

be made through a notice in the Federal Register providing an

opportunity for public comment on the proposed license amendment. This

notice will also provide the opportunity to request an informal hearing

in accordance with the Commission's regulations in 10 CFR part 2,

subpart L.

Analysis of Comments

In response to the proposed rule, the Commission received comments

from seven organizations including one State regulatory agency, the

Environmental Protection Agency, and five industry organizations.

Copies of the comments may be examined and copied for a fee at the

Commission's Public Document Room at 2120 L Street, NW. (Lower Level),

Washington, DC. The following discussion summarizes and responds to the

comments.

General: Need and Basis for Rule

Comment. The commenters were generally in favor of the proposed

rule. However, most had some suggestions for modifications. Many of

these proposed modifications reflected a desire for stricter adherence

to the words of the settlement agreement or to EPA's final rule. One

commenter said that it understood the proposal to be consistent with

the terms that industry litigants accepted in the related EPA

proceedings. The American Mining Congress (AMC) and the Atlantic

Richfield Company (ARCO), which incorporated all of the AMC comments by

reference in its comments, specifically supported the rule for the

purpose of implementing the settlement agreement and in order that the

``duplicative'' Clean Air Act requirements in 40 CFR part 61, subpart

T, would be rescinded. AMC and ARCO contended that the rule was not

needed to protect public health with the ample margin of safety

required as a basis for rescinding subpart T, but that it would

strengthen existing protection. Specifically, it was suggested that

Sec. 40.63 gives NRC the ability to provide post-closure testing; that

Sec. 40.42(c)(2)(i), (iii), and (iv) can provide for timely reclamation

of the tailings; that proper milestones have been added to licenses

under the existing regulatory program; and that EPA has never issued a

finding of unacceptable risk. In addition, AMC provided extensive

background and support for rescission of subpart T and elimination of

dual regulation.

Response. The Commission has stated and continues to believe that

its program provides an adequate degree of protection of the public

health and safety but that this rule provides greater assurance that

the final radon barrier will be completed in a timely manner and in

accordance with the design standard. The Commission disagrees with

certain statements made by commenters to support their contention that

this rule was not necessary to support the rescission of subpart T.

With regard to Sec. 40.63 and post-closure testing, because footnote 1

to Criterion 6 specifically indicated that no radon monitoring was

required, the Commission would not have considered it appropriate to

use Sec. 40.63 to require post-closure testing to verify that radon

flux levels do not exceed 20 pCi/m\2\s. It was also suggested that

Sec. 40.42 adequately addresses the timeliness of tailings reclamation.

Although decommissioning normally includes cleanup of a site, appendix

A provides the detailed closure requirements for mills in which the

reclamation of tailings is covered as a separate activity and, thus, is

an exception to the general requirements for decommissioning. This is a

result of the unique treatment of tailings under UMTRCA, which provides

for the ultimate custodial care of tailings by the Federal government

rather than a return to unrestricted use. The timeliness statement in

Sec. 40.42(c)(2)(iv) is interpreted as applying to the decommissioning

of the mill not to reclamation of the tailings. The background

materials submitted by AMC have been reviewed to assure that there are

no gaps in the information previously available to the Commission in

its deliberations.

As a general response concerning the use of the exact words of the

settlement agreement and the EPA regulations, the Commission notes that

it is required to ``conform'' to 40 CFR part 192 by section 84a(2) of

the AEA and has agreed in principle to, but was not a party to, the

settlement agreement. In past conforming changes, conformance has not

been viewed as requiring identical wording and flexibility has been

used for clarity and to account for different formats and contents of

rules. Thus, the Commission is not bound to the exact words in either

case. Some differences are necessary to avoid ambiguity or confusion.

For example, with regard to this rulemaking, the scope of both the

settlement agreement and the EPA amendments were limited to the

completion of the final radon barrier and did not extend to the

longevity aspect of radon control nor to other aspects of reclamation.

The terms ``reclamation'' and ``closure'' have a broader meaning in

appendix A than as used in the settlement agreement or in EPA's

amendments to 40 CFR part 192. It would not be practical to limit the

use of these terms for the purpose of these specific amendments to

appendix A. There are other terms that must also be used carefully

because of their use in NRC regulations or by the regulated industry.

Beyond what was considered necessary to avoid ambiguity and to provide

appropriate expansion beyond the scope of EPA's amendments, the

Commission has attempted to be consistent with the words of the

settlement agreement and 40 CFR part 192.

Definitions

Comment. The four industry commenters who suggested that changes

were needed all believed it was important that the definitions of

factors beyond the control of the licensee and available technology be

completely consistent with the settlement agreement and the final

amendments to 40 CFR part 192, subpart D, and specifically, to include

all the illustrative examples within the definition, not just in the

statement of considerations. Some also suggested that the words

``complete the barrier'' in the definition of factors beyond the

control of the licensee be changed to ``achieve compliance.'' They were

concerned that the intent of the parties to the settlement agreement

would not be carried out in the interpretation of these terms in the

future. Some specifically noted the loss of personnel familiar with the

issues that will accompany the close of the NRC uranium recovery field

office (URFO). The EPA did not suggest that including all of the

illustrative text was necessary for conformance but suggested it would

be best to include the phrase ``provided there is reasonable progress

toward emplacement of the final radon barrier'' (from 40 CFR 192.31(m))

in NRC's definition of available technology. The EPA also suggested

adding ``in compliance with Criterion 6A-(1)'' after ``complete the

barrier'' in the definition of factors beyond the control of the

licensee for clarity and to assure proper implementation of subpart D

of 40 CFR part 192.

Response. Explanations concerning the Commission's intent regarding

its interpretation of its regulations that appear in statements of

consideration stand as a record of the Commission's intent. However,

inclusion within the regulatory text makes the illustrative examples

more readily available so that questions of interpretation are less

likely to arise. Consistent with EPA's final amendments to 40 CFR part

192, all of the illustrative examples have been added in the final

definitions. The additional text suggested by EPA has also been

included in these definitions.

Comment. Most of the industry commenters also wanted the definition

of milestone to be worded exactly as in 40 CFR part 192. The concern

was primarily that milestones not be required to be established for

actions beyond meeting the radon ``flux standard.'' Some of the

commenters also suggested that the use in the preamble of varying

modifiers, ``key,'' ``interim,'' and ``reclamation,'' to ``milestones''

and ``milestone activities,'' which are used interchangeably, was

confusing.

Response. The definition of milestone has not been changed because

the Commission believes it is less confusing in that it is in better

agreement with normal usage. There is no substantive difference in the

standard as a result of this difference and it gives the Commission the

flexibility to use the term generically. The concerns expressed are

addressed alternatively through minor revisions to the definition of

reclamation plan and paragraph (2) of Criterion 6A to further clarify

that no deadlines are required to be established in the licenses beyond

completing the final radon barrier as a result of this rulemaking and

that any other schedules established in a license do not come under the

specific provisions of paragraph (2) of Criterion 6A. The term

``milestone activities'' has been avoided in this final rule as it is

redundant given this definition. The terms ``key,'' ``interim,'' and

``reclamation'' are used in accordance with their dictionary

definitions and require no further definition. As is clear from the

definition of reclamation plan, the term ``reclamation'' is not limited

to radon control measures.

No comments were received concerning the definitions of: as

expeditiously as practicable considering technological feasibility,

final radon barrier, and operation.

Criterion 6--Verification of Radon Release Levels

Comment. Some commenters suggested that paragraph (4) of Criterion

6 could be interpreted to require submission of the results of radon

measurements after measurements are made on a portion of an impoundment

in the case of phased emplacement of the radon barrier. Two commenters

suggested that interim reports might be required in a particular case

subject to the agreement of the licensee, but objected to the possible

interpretation that separate reports be required routinely on each

portion. One suggested that it should be clarified that the testing

need not be done on each portion as the cover is completed.

Response. Paragraph (3) specifically requires testing to be done on

each portion of the impoundment as the cover is completed in the case

of phased emplacement. This was made a requirement rather than simply

being allowed as in 40 CFR 192.32(b)(4)(ii) because of the requirement

in paragraph (2) of this Criterion to conduct testing and analysis

prior to placement of erosion protection features and the importance of

timeliness in completing erosion protection features. There is,

however, no specific time limit established in the regulation for these

measurements on the individual portions of the impoundment.

Paragraph (4) requires submittal of a report 90 days after

completion of the testing and analysis. Because this verification is of

radon flux levels averaged over the impoundment, it is not complete

until all testing and analysis is complete for the whole impoundment.

Thus, only one report is required, although further testing and

analysis with associated reporting could be required in a particular

case if the initial report is not acceptable. Minor editorial changes

have been made to further clarify this point. Note, although it is

impractical to do so routinely, riprap or other erosion protection

barriers can be disturbed in order to take a radon emission measurement

if necessary.

Comment. One commenter suggested that paragraph (2) of Criterion 6

should contain details such as are contained in 40 CFR part 61 on the

one-time measurement which are intended to assure that conditions under

which the flux is measured lead to a reasonable average flux. It was

suggested that this would eliminate confusion with footnote 2 that

applies to the design criterion. Related to this, some commenters

argued for deletion of part of existing footnote 2 regarding average

radon emissions being ``over a period of at least one year, but a

period short compared to 100 years.'' These commenters were concerned

that long-term monitoring could be implied. Also, two commenters said

the footnote was contrary to the settlement agreement and the EPA rule.

One said specifically that it was inconsistent with language of 40 CFR

192.12(b)(2).

Response. Footnote 2 applies only to the design criterion. Although

the new testing and analysis is intended to verify the effectiveness of

the radon barrier, it does not need to take place over the period of

time specified in footnote 2. However, it should be reasonably

representative of long-term radon releases. The details concerning

conditions for flux measurements in 40 CFR part 61 are contained in the

description of Method 115 in appendix B and address such matters as the

weather conditions at the time measurements are performed. Method 115

is specifically identified in this standard as acceptable and, if used,

the conditions embodied in the description in appendix B of 40 CFR part

61 would apply. Because Method 115 is also a standard for the adequacy

of other verification methods in Criterion 6, alternative methods must

be approved by the Commission as being at least as effective as Method

115. Similar considerations to those embodied in Method 115 concerning

the representiveness of the measurement results of the long term radon

releases will be made in judging alternative methods. Details of

conditions for measurement need not be specified in this rule.

Modifying footnote 2 substantively, as was suggested by the

commenters, would be outside the scope of this rulemaking. Footnote 2

is consistent with 40 CFR part 192, subpart D, which contains the same

footnote (in the comparable design standard, 40 CFR 192.32(b)(1)(ii)).

The footnote was not intended to and does not require long-term

monitoring. The Commission agrees that long-term monitoring would be

contrary to the settlement agreement.

Comment. One commenter argued that the existing requirement to

reduce gamma exposure to background levels should be eliminated or

applied only at the site boundary. This commenter stated that this

requirement appears to be a misinterpretation of the intent of 40 CFR

part 192, subpart A. This commenter also said that the radon cover will

attenuate gamma radiation to near background levels in most cases; and

that in an unusual case, adding to the cover to control gamma exposure

levels could be unnecessarily expensive, as access is restricted. The

commenter believed that, as a minimum, the Commission should specify a

limit based on acceptable risk to the maximum-exposed individual that

can be supported by a cost-benefit analysis.

Response. The criterion on gamma exposure levels is not based on 40

CFR part 192 nor any other EPA regulation. It has been in appendix A to

part 40 since it was originally added to part 40 on October 3, 1980 (45

FR 65521). This aspect of Criterion 6 is outside the scope of this

rulemaking. However, if the cost of meeting any criterion in appendix A

is excessive in a specific case due to unique conditions, the licensee

may request an alternative approach in accordance with the Introduction

to appendix A.

Criterion 6A, Paragraph (1)--Requirement for Timeliness

Comment. Two commenters were concerned that the parenthetical

``(including factors beyond the control of the licensee)'' was not

included in the standard following, ``as expeditiously as practicable

considering technological feasibility'' as in 40 CFR 192.32(a)(3)(i)

even though it is contained in the definition of as expeditiously as

practicable considering technological feasibility. They claimed that

this could lead to misinterpretation that the standard deletes this

essential concept.

Response. A parenthetical statement noting that the term as

expeditiously as practicable considering technological feasibility is

specifically defined in the Introduction and includes ``factors beyond

the control of the licensee'' has been added.

Comment. Some of the commenters opposed the establishment of

separate milestone deadlines for dewatering and recontouring, saying

that the settlement agreement and 40 CFR part 192 specify only three

required milestones including just one for interim stabilization.

Dewatering and recontouring are part of interim stabilization. These

commenters said that this was also inconsistent with the practice with

existing licenses. The EPA noted that it agreed with NRC's statement in

the preamble of its proposed rule that the concept of milestones could

not be omitted.

Response. The final rule has been changed to specifically require

the establishment of deadlines for only three milestones: Wind blown

tailings retrieval and placement on the pile, interim stabilization

(including dewatering or the removal of freestanding liquids and

recontouring), and final radon barrier construction. The Commission,

however, retains the authority to require the establishment of

additional milestones determined to be ``key'' to the completion of the

final radon barrier in an individual case (note the words ``but not

limited to'' in the definition of reclamation plan). This is consistent

with 40 CFR part 192, subpart D, and with the settlement agreement. The

Commission has no intent at this time to change the milestones for

which deadlines have already been approved in individual licensing

actions.

Comment. The EPA noted that it understands that emplacement of the

final radon barrier is a requisite milestone but was concerned that it

could be interpreted otherwise, and suggested clarification. The EPA

also noted that it understands ``deadlines'' to mean dates by which

actions must be completed and ``established as a condition of an

individual license'' to mean incorporation of a condition into a

license by the Commission. However, the EPA was concerned that

paragraph (1) of Criterion 6A may be ambiguous and provided specific

suggested edits.

Response. Paragraph (1) of Criterion 6A has been modified slightly

to address EPA's concerns, although not exactly as suggested. The

Commission believes it is clear that completion of the final radon

barrier is a requisite milestone, that ``deadlines'' means dates by

which actions must be completed, and that deadlines are to be

established on the basis that the barrier is to be completed as

expeditiously as practicable considering technological feasibility. The

Commission also believes that its regulations are less subject to

misinterpretation if there is consistency of style and terminology.

Comment. Two commenters were concerned about the NRC extending the

scope of the timeliness requirement from that of 40 CFR part 192,

subpart D, stating that the ``as expeditiously as practicable

considering technological feasibility'' requirement should not be

extended to erosion protection. They contended that this is a term of

art limited to radon emissions, that EPA used this term to eliminate

the cost-balancing standards of the AEA from radon control measures,

and that applying it to erosion protection would constrain the use of

AEA cost considerations. They also noted that NRC has adequate

authority under other aspects of its UMTRCA program to deal with

concern for degradation of the barrier and stated that NRC should

handle this on a site-specific basis through license amendment.

Response. The final rule has been modified so that the terminology

``as expeditiously as practicable considering technological

feasibility'' is used only for emplacement of the final radon barrier.

A general timeliness standard for completing erosion protection

features is retained. Thus, it is clear that the licensee must complete

these actions in a timely way and that the NRC has the authority to

take action if necessary in this regard. However, the restrictive cost

considerations specified for the completion of the final radon barrier

do not apply to decisions concerning the timeliness of completion of

erosion protection features. Instead, the more flexible, general cost

considerations of the AEA (Section 84a(1)) apply.

Comment. The same commenters sought clarification of NRC's intent

in extending reclamation plans to cover groundwater protection. They

asked whether the NRC could prevent licensees from continuing surface

reclamation until groundwater issues are resolved, stating that this

was not past practice. However, they also wanted the Commission to

confirm that groundwater concerns could constitute a legitimate cause

for delay.

Response. It is important for all aspects of reclamation to be

addressed in one plan so that potential interactions of various

activities can be accounted for and that reclamation can be planned for

overall efficiency. Nonetheless, all aspects of a reclamation plan

would not necessarily be approved at the same time. Past licensing

practice has not necessarily required all details of reclamation

planning to be in one document; however, approvals of activities have

included consideration of impacts to other aspects of reclamation. The

NRC would not necessarily prevent licensees from continuing surface

reclamation until groundwater issues are resolved. However, the words

``the need for consistency with mandatory requirements of other

regulatory programs'' in the definition of ``as expeditiously as

practicable considering technological feasibility'' make it clear that

groundwater concerns could constitute a legitimate cause for delay.

Whether or not a groundwater issue would be considered a legitimate

cause for delay of radon control measures under paragraph (1) of

Criterion 6A would depend on the nature of the interaction of the

various reclamation activities in a particular case.

Criterion 6A, Paragraph (2)--Special Criteria for Approval of Delays

Comment. Two commenters stated that paragraph (2) of Criterion 6A

does not fully implement the settlement agreement. They stated that the

settlement agreement and 40 CFR 192.32(a)(3)(iii) include delay of

interim milestones for reason of cost not just the dates for completion

of the final radon barrier. These same commenters were concerned that

it was not clear from paragraph (2) of Criterion 6A that deadlines for

milestones could also be extended because of factors beyond the control

of the licensee and also expressed strong agreement with the statement

that there is ``no need for complex justifications for delaying

completion of reclamation'' if the licensee demonstrates that the site

meets 20 pCi/m2s prior to final closure. These two commenters also

stated that the intent of the settlement agreement is that interim

milestones may be changed without meeting 20 pCi/m2s, if there is

no delay in final closure date. On this subject, the EPA specifically

supported paragraph (2) of Criterion 6A as drafted. The EPA also

specifically confirmed our interpretation of its amendments to 40 CFR

part 192 in this regard and clarified that there may be other instances

under which NRC may reconsider a date established for completion of a

milestone. The EPA also stated in its comments that the alternative

interpretation of its proposed amendments suggested in the Commission's

preamble to its proposed rule (that meeting the 20 pCi/m2s ``flux

standard'' might be required in all cases) was incorrect.

Response. The Commission does not agree that the words ``or

relevant milestone'' in section III.2.j of the settlement agreement and

40 CFR 192.32(a)(3)(iii) should be interpreted to mean that these

paragraphs address delay of interim milestones for reason of cost.

Also, approvals of extensions of interim milestones without meeting 20

pCi/m2s are not necessarily limited to cases where there is no

delay in final closure date.

Paragraph (2) of Criterion 6A and 40 CFR 192.32(a)(3)(ii) and (iii)

set forth specific criteria for extensions of deadlines under certain

circumstances. These provisions do not cover all circumstances under

which extensions may be approved. This interpretation was confirmed by

EPA in the preamble of its final rule and in its comments submitted on

NRC's proposed rule. All other approvals of extensions must be made

under paragraph (1) of Criterion 6A through applying all of the

concepts involved in the requirement for completion of the final radon

barrier ``as expeditiously as practicable considering technological

feasibility'' (including within its definition ``factors beyond the

control of the licensee''). This was stressed in EPA's final rule

notice of November 15, 1993, at 58 FR 60351. In response to a commenter

that noted that 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 possible,'' EPA stated in part that ``there is no bar

to NRC or an Agreement State reconsidering a prior decision

establishing a date for emplacement of the radon barrier that meets the

standard of `as expeditiously as possible.' Such reconsideration could,

for example, be based on the existence of factors beyond the control of

the licensee, or on a change in any of the various factors that must be

considered in establishing a date that meets the `as 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 of the factors relevant under Sec. 192.32(a)(3)(i) before

it could change a previously established milestone or date for the

emplacement of the final barrier, and any new date would have to meet

the standard set out in Sec. 192.32(a)(3)(i).'' The comparable standard

in this NRC rule is set out in paragraph (1) of Criterion 6A.

Criterion 6A, Paragraph (3)--Continuing Disposal During Closure

Comment. Some commenters noted that Criterion 6A, paragraph 3, as

proposed, was inconsistent with the final EPA rule. Some also suggested

that it was inconsistent with the settlement agreement, could lead to

premature closure, and would require radon monitoring during closure.

One commenter said that ``during closure activities'' does not include

the period after emplacement of the final radon barrier according to

the EPA rule and the settlement agreement, and that the intent should

be that ``once the final radon barrier has been placed over the

impoundment, excluding the area receiving byproduct material, the

`closure process' ceases.'' Two of the commenters specifically agreed

with the interpretation that ``during closure activities'' could

include the period after emplacement of the final radon barrier and

wanted the NRC to confirm this so that similar materials would still be

allowed at that time. These two commenters did not want paragraph (3)

of Criterion 6A to require an opportunity for public participation in

approving acceptance of byproduct material ``during closure.'' The EPA

submitted suggested revisions to make final paragraph (3) of Criterion

6A consistent with the final amendments in 40 CFR 192.32(a)(3)(iv) and

(v).

Response. EPA, in its proposed revision of 40 CFR part 192,

subpart D, combined the provisions of sections III.2.c (i) and (ii) of

the settlement agreement in one paragraph. In so doing, EPA, apparently

inadvertently, differed somewhat from the settlement agreement but

modified the final rule so that it is now consistent with the

settlement agreement. The Commission must conform appendix A to 40 CFR

part 192, as adopted, and has thus revised its final rule accordingly.

The differences from the proposed rule are that (1) materials similar

to byproduct material will not be approved for continued disposal after

the verification of radon flux levels and (2) an opportunity for public

participation will not specifically be provided in the case of

continued disposal during closure prior to this point in time. Note,

however, opportunity for public participation exists in any case under

10 CFR part 2, subpart L. The exact words suggested in EPA's comments

have not been used but the revisions are substantively the same. The

reasons for differing are the same as when the proposed rule was

drafted: (1) the term ``closure'' in appendix A has a broader meaning

than the scope of EPA's rule, and (2) the final radon barrier is not

absolutely complete while disposal is continuing even though it may be

adequate to demonstrate that average radon release levels meet the 20

pCi/m2s ``flux standard.''

Miscellaneous comments

Comment. One State commenter strongly recommended that NRC offer

guidance (not necessarily in the rule) on paragraph (3) of Criterion 6A

on what materials are appropriately similar. The commenter suggested

specification of limits to the range of variation of a critical

property or concentration or activity.

Response. Guidance on considerations for the approval of disposal

of non-11e(2) materials in tailings impoundments was published May 13,

1992 (57 FR 20525). This notice also presented a staff analysis on

which the guidance is based and requested public comment to be

considered in a decision on whether the guidance should be revised.

Comment. Two commenters stated, for the record, that they agreed

with NRC that the implementation details of EPA's 40 CFR part 192,

subpart D, are a special case and go beyond ``generally applicable

standards,'' and that these provisions should not set a precedent with

regard to what constitutes a generally applicable standard. They

contended that certain aspects of subpart D exceed EPA's statutory

authority.

Response. The Commission noted in the preamble of the proposed rule

that the nature of the revisions to 40 CFR part 192, subpart D, were

influenced by the settlement agreement, that the settlement agreement

included considerable detail concerning the specifics of the

regulations that were to be developed, and that apparently as a result

of this, 40 CFR part 192, subpart D, includes numerous details of

implementation. The Commission also stated its view, which it still

holds, that the inclusion of these implementation details is a special

case because of the settlement agreement and does not establish any

precedent with regard to what constitutes a generally applicable

standard. With regard to the question of the limits of EPA's statutory

authority, any challenge to EPA's authority to issue the November 15,

1993, final amendments to 40 CFR part 192 is outside the scope of this

conforming action.

Comment. The AMC stated that even if the Commission makes this rule

a Division 2 matter of compatibility, AMC will return to litigation if

an Agreement State adopts more stringent provisions.

Response. UMTRCA provides the States an option for alternative,

more stringent standards. The settlement agreement cannot eliminate

this option. However, notice for comment and approval by NRC is

required and AMC can raise appropriate issues at that time should a

State propose more stringent standards. The Division 2 matter of

compatibility is maintained.

Comment. The AMC contended that some statements in the preamble to

the proposed rule were in error or in need of clarification. Among

these contentions were that the summary of bases for AMC's challenge to

subpart T implied that the limited bases mentioned were all inclusive.

Response. The primary bases for the various litigants' challenges

were mentioned in a brief historical summary that was not presented as

a complete background. The EPA's various notices are referenced in the

background section of this notice for more details concerning subpart T

and the related litigation.

Comment. AMC also stated that NRC had implied that EPA could not

rescind subpart T if the planned rulemakings were not completed,

arguing that EPA has adequate bases to rescind absent these

rulemakings.

Response. NRC did not mean to imply that EPA could not rescind

subpart T absent the planned rulemakings. However, EPA had made

statements that it would not rescind subpart T unless comparable

provisions were added to 40 CFR part 192 and 10 CFR part 40.

Comment. The AMC also stated that the timeliness of decommissioning

rule should not have been suggested as in any way relevant and

requested that NRC note that Chairman Selin is on record suggesting

that a blanket exemption of uranium recovery facilities may make sense.

Response. Final action on the proposed NRC rule to require

timeliness in decommissioning (January 13, 1993; 58 FR 4099) would be

expected to impact the timing of decommissioning of the mill, not

necessarily the timing of the impoundment going from operational status

to closure. (``Closure'' in appendix A does include both

decommissioning of the mill and reclamation of the tailings and/or

waste disposal areas.) If subpart T is rescinded, there will be no

regulatory requirement for the tailings impoundment to change from

operational to non-operational status within any specified time after

the mill ceases operation. The definition of ``operational'' in subpart

T would have restricted the continued use of the impoundment for

extended periods after the associated mill was decommissioned.

No comments were received on the regulatory analysis or the

environmental assessment and finding of no significant impact.

Conclusion

As indicated in the responses to the comments, the Commission has

decided to adopt the rule as proposed with minor modifications, which

consist of revisions to conform to the final effective amendments to 40

CFR part 192 and clarifications.

Finding of No Significant Environmental Impact: Availability

The Commission has determined under the National Environmental

Policy Act of 1969, as amended, and the Commission's regulations in

subpart A of 10 CFR part 51, that this rule is not a major Federal

action significantly affecting the quality of the human environment and

therefore an environmental impact statement is not required. This final

rule requires that enforceable dates be established for certain interim

milestones and completion of the final radon barrier on non-operational

mill tailings piles through an approved reclamation plan and that a

determination of the radon flux levels be made to verify compliance

with the existing design standard for the final radon barrier. It is

intended to better assure that the final radon barrier is completed in

a timely manner and is adequately constructed to comply with the

applicable design standard. Thus, it provides an additional assurance

that public health and the environment are adequately protected.

Because the final rule is not expected to change the basic procedures

or construction of the radon barrier, there should be no adverse

environmental impacts. The environmental assessment and finding of no

significant impact on which this determination is based are available

for inspection at the NRC Public Document Room, 2120 L Street NW.

(Lower Level), Washington, DC. Single copies of the environmental

assessment and finding of no significant impact are available from

Catherine R. Mattsen, U. S. Nuclear Regulatory Commission, Washington,

DC 20555, Phone: (301) 415-6264.

Paperwork Reduction Act Statement

This final rule amends information collection requirements that are

subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et

seq.). These requirements were approved by the Office of Management and

Budget approval number 3150-0020.

Public reporting burden for this collection of information is

estimated to average 156 hours per response, including the time for

reviewing instructions, searching existing data sources, gathering and

maintaining the data needed, and completing and reviewing the

collection of information. Send comments regarding this burden estimate

or any other aspect of this collection of information, including

suggestions for reducing this burden, to the Information and Records

Management Branch (T-6 F33), U.S. Nuclear Regulatory Commission,

Washington, DC 20555; and to the Desk Officer, Office of Information

and Regulatory Affairs, NEOB-3019 (3150-0020), Office of Management and

Budget, Washington, DC 20503.

Regulatory Analysis

The Commission has prepared a regulatory analysis on this final

regulation. The analysis examines the costs and benefits of the

alternatives considered by the Commission. The analysis is available

for inspection in the NRC Public Document Room, 2120 L Street NW.

(Lower Level), Washington, DC. Single copies of the analysis may be

obtained from Catherine R. Mattsen, U.S. Nuclear Regulatory Commission,

Washington, DC 20555, (301) 415-6264.

Regulatory Flexibility Certification

In accordance with the Regulatory Flexibility Act of 1980, (5

U.S.C. 605(b)), the Commission certifies that this rule will not have a

significant economic impact on a substantial number of small entities.

There are only 19 NRC uranium mill licensees. Almost all of these mills

are owned by large corporations. Although a few of the mills are

partly-owned by companies that might qualify as small businesses under

the Small Business Administration size standards, the Regulatory

Flexibility Act incorporates the definition of small business presented

in the Small Business Act. Under this definition, a small business is

one that is independently owned and operated and is not dominant in its

field. Because these mills are not independently owned, they do not

qualify as small entities.

List of Subjects in 10 CFR part 40

Criminal penalties, Government contracts, Hazardous materials

transportation, Nuclear materials, Reporting and recordkeeping

requirements, Source material, Uranium.

For the reasons set out in the preamble and under the authority of

the Atomic Energy Act of 1954, as amended; the Energy Reorganization

Act of 1974, as amended; and 5 U.S.C. 552 and 553; the NRC is adopting

the following amendments to 10 CFR part 40.

PART 40--LICENSING OF SOURCE MATERIAL

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

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

Stat. 932, 933, 935, 948, 953, 954, 955, as amended, secs. 11e(2),

83, 84, Pub. L. 95-604, 92 Stat. 3033, as amended, 3039, sec. 234,

83 Stat. 444, as amended (42 U.S.C. 2014(e)(2), 2092, 2093, 2094,

2095, 2111, 2113, 2114, 2201, 2232, 2233, 2236, 2282); sec. 274,

Pub. L. 86-373, 73 Stat. 688 (42 U.S.C. 2021); secs. 201, as

amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C.

5841, 5842, 5846); sec. 275, 92 Stat. 3021, as amended by Pub. L.

97-415, 96 Stat. 2067 (42 U.S.C. 2022).

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

2951 (42 U.S.C. 5851). Section 40.31(g) also issued under sec. 122,

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

184, 68 Stat. 954, as amended (42 U.S.C. 2234). Section 40.71 also

issued under sec. 187, 68 Stat. 955 (42 U.S.C. 2237).

2. In appendix A, add the definitions of as expeditiously as

practicable considering technological feasibility, available

technology, factors beyond the control of the licensee, final radon

barrier, milestone, operation, and reclamation plan to the Introduction

in alphabetical order; revise Criterion 6; and add Criterion 6A to read

as follows:

Appendix A to Part 40--Criteria Relating to the Operation of

Uranium Mills and the Disposition of Tailings or Wastes Produced by

the Extraction or Concentration of Source Material From Ores

Processed Primarily for Their Source Material Content

Introduction

* * * * *

As expeditiously as practicable considering technological

feasibility, for the purposes of Criterion 6A, means as quickly as

possible considering: the physical characteristics of the tailings

and the site; the limits of available technology; the need for

consistency with mandatory requirements of other regulatory

programs; and factors beyond the control of the licensee. The phrase

permits consideration of the cost of compliance only to the extent

specifically provided for by use of the term available technology.

Available technology means technologies and methods for

emplacing a final radon barrier on uranium mill tailings piles or

impoundments. This term shall not be construed to include

extraordinary measures or techniques that would impose costs that

are grossly excessive as measured by practice within the industry

(or one that is reasonably analogous), (such as, by way of

illustration only, unreasonable overtime, staffing, or

transportation requirements, etc., considering normal practice in

the industry; laser fusion of soils, etc.), provided there is

reasonable progress toward emplacement of the final radon barrier.

To determine grossly excessive costs, the relevant baseline against

which cost shall be compared is the cost estimate for tailings

impoundment closure contained in the licensee's approved reclamation

plan, but costs beyond these estimates shall not automatically be

considered grossly excessive.

* * * * *

Factors beyond the control of the licensee means factors

proximately causing delay in meeting the schedule in the applicable

reclamation plan for the timely emplacement of the final radon

barrier notwithstanding the good faith efforts of the licensee to

complete the barrier in compliance with paragraph (1) of Criterion

6A. These factors may include, but are not limited to--

(1) Physical conditions at the site;

(2) Inclement weather or climatic conditions;

(3) An act of God;

(4) An act of war;

(5) A judicial or administrative order or decision, or change to

the statutory, regulatory, or other legal requirements applicable to

the licensee's facility that would preclude or delay the performance

of activities required for compliance;

(6) Labor disturbances;

(7) Any modifications, cessation or delay ordered by State,

Federal, or local agencies;

(8) Delays beyond the time reasonably required in obtaining

necessary government permits, licenses, approvals, or consent for

activities described in the reclamation plan proposed by the

licensee that result from agency failure to take final action after

the licensee has made a good faith, timely effort to submit legally

sufficient applications, responses to requests (including relevant

data requested by the agencies), or other information, including

approval of the reclamation plan; and

(9) An act or omission of any third party over whom the licensee

has no control.

Final radon barrier means the earthen cover (or approved

alternative cover) over tailings or waste constructed to comply with

Criterion 6 of this appendix (excluding erosion protection

features).

* * * * *

Milestone means an action or event that is required to occur by

an enforceable date.

* * * * *

Operation means that a uranium or thorium mill tailings pile or

impoundment is being used for the continued placement of byproduct

material or is in standby status for such placement. A pile or

impoundment is in operation from the day that byproduct material is

first placed in the pile or impoundment until the day final closure

begins.

* * * * *

Reclamation plan, for the purposes of Criterion 6A, means the

plan detailing activities to accomplish reclamation of the tailings

or waste disposal area in accordance with the technical criteria of

this appendix. The reclamation plan must include a schedule for

reclamation milestones that are key to the completion of the final

radon barrier including as appropriate, but not limited to, wind

blown tailings retrieval and placement on the pile, interim

stabilization (including dewatering or the removal of freestanding

liquids and recontouring), and final radon barrier construction.

(Reclamation of tailings must also be addressed in the closure plan;

the detailed reclamation plan may be incorporated into the closure

plan.)

* * * * *

Criterion 6 (1) In disposing of waste byproduct material,

licensees shall place an earthen cover (or approved alternative)

over tailings or wastes at the end of milling operations and shall

close the waste disposal area in accordance with a design1

which provides reasonable assurance of control of radiological

hazards to (i) be effective for 1,000 years, to the extent

reasonably achievable, and, in any case, for at least 200 years, and

(ii) limit releases of radon-222 from uranium byproduct materials,

and radon-220 from thorium byproduct materials, to the atmosphere so

as not to exceed an average2 release rate of 20 picocuries per

square meter per second (pCi/m2s) to the extent practicable

throughout the effective design life determined pursuant to (1)(i)

of this Criterion. In computing required tailings cover thicknesses,

moisture in soils in excess of amounts found normally in similar

soils in similar circumstances may not be considered. Direct gamma

exposure from the tailings or wastes should be reduced to background

levels. The effects of any thin synthetic layer may not be taken

into account in determining the calculated radon exhalation level.

If non-soil materials are proposed as cover materials, it must be

demonstrated that these materials will not crack or degrade by

differential settlement, weathering, or other mechanism, over long-

term intervals.

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\1\In the case of thorium byproduct materials, the standard

applies only to design. Monitoring for radon emissions from thorium

byproduct materials after installation of an appropriately designed

cover is not required.

\2\This average applies to the entire surface of each disposal

area over a period of a least one year, but a period short compared

to 100 years. Radon will come from both byproduct materials and from

covering materials. Radon emissions from covering materials should

be estimated as part of developing a closure plan for each site. The

standard, however, applies only to emissions from byproduct

materials to the atmosphere.

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(2) As soon as reasonably achievable after emplacement of the

final cover to limit releases of radon-222 from uranium byproduct

material and prior to placement of erosion protection barriers or

other features necessary for long-term control of the tailings, the

licensee shall verify through appropriate testing and analysis that

the design and construction of the final radon barrier is effective

in limiting releases of radon-222 to a level not exceeding 20 pCi/

m\2\s averaged over the entire pile or impoundment using the

procedures described in 40 CFR part 61, appendix B, Method 115, or

another method of verification approved by the Commission as being

at least as effective in demonstrating the effectiveness of the

final radon barrier.

(3) When phased emplacement of the final radon barrier is

included in the applicable reclamation plan, the verification of

radon-222 release rates required in paragraph (2) of this criterion

must be conducted for each portion of the pile or impoundment as the

final radon barrier for that portion is emplaced.

(4) Within ninety days of the completion of all testing and

analysis relevant to the required verification in paragraphs (2) and

(3) of this criterion, the uranium mill licensee shall report to the

Commission the results detailing the actions taken to verify that

levels of release of radon-222 do not exceed 20 pCi/m\2\s when

averaged over the entire pile or impoundment. The licensee shall

maintain records until termination of the license documenting the

source of input parameters including the results of all measurements

on which they are based, the calculations and/or analytical methods

used to derive values for input parameters, and the procedure used

to determine compliance. These records shall be kept in a form

suitable for transfer to the custodial agency at the time of

transfer of the site to DOE or a State for long-term care if

requested.

(5) Near surface cover materials (i.e., within the top three

meters) may not include waste or rock that contains elevated levels

of radium; soils used for near surface cover must be essentially the

same, as far as radioactivity is concerned, as that of surrounding

surface soils. This is to ensure that surface radon exhalation is

not significantly above background because of the cover material

itself.

(6) The design requirements in this criterion for longevity and

control of radon releases apply to any portion of a licensed and/or

disposal site unless such portion contains a concentration of radium

in land, averaged over areas of 100 square meters, which, as a

result of byproduct material, does not exceed the background level

by more than: (i) 5 picocuries per gram (pCi/g) of radium-226, or,

in the case of thorium byproduct material, radium-228, averaged over

the first 15 centimeters (cm) below the surface, and (ii) 15 pCi/g

of radium-226, or, in the case of thorium byproduct material,

radium-228, averaged over 15-cm thick layers more than 15 cm below

the surface.

(7) The licensee shall also address the nonradiological hazards

associated with the wastes in planning and implementing closure. The

licensee shall ensure that disposal areas are closed in a manner

that minimizes the need for further maintenance. To the extent

necessary to prevent threats to human health and the environment,

the licensee shall control, minimize, or eliminate post-closure

escape of nonradiological hazardous constituents, leachate,

contaminated rainwater, or waste decomposition products to the

ground or surface waters or to the atmosphere.

Criterion 6A (1) For impoundments containing uranium byproduct

materials, the final radon barrier must be completed as

expeditiously as practicable considering technological feasibility

after the pile or impoundment ceases operation in accordance with a

written, Commission-approved reclamation plan. (The term as

expeditiously as practicable considering technological feasibility

as specifically defined in the Introduction of this appendix

includes factors beyond the control of the licensee.) Deadlines for

completion of the final radon barrier and, if applicable, the

following interim milestones must be established as a condition of

the individual license: windblown tailings retrieval and placement

on the pile and interim stabilization (including dewatering or the

removal of freestanding liquids and recontouring). The placement of

erosion protection barriers or other features necessary for long-

term control of the tailings must also be completed in a timely

manner in accordance with a written, Commission-approved reclamation

plan.

(2) The Commission may approve a licensee's request to extend

the time for performance of milestones related to emplacement of the

final radon barrier if, after providing an opportunity for public

participation, the Commission finds that the licensee has adequately

demonstrated in the manner required in paragraph (2) of Criterion 6

that releases of radon-222 do not exceed an average of 20 pCi/m\2\s.

If the delay is approved on the basis that the radon releases do not

exceed 20 pCi/m\2\s, a verification of radon levels, as required by

paragraph (2) of Criterion 6, must be made annually during the

period of delay. In addition, once the Commission has established

the date in the reclamation plan for the milestone for completion of

the final radon barrier, the Commission may extend that date based

on cost if, after providing an opportunity for public participation,

the Commission finds that the licensee is making good faith efforts

to emplace the final radon barrier, the delay is consistent with the

definition of available technology, and the radon releases caused by

the delay will not result in a significant incremental risk to the

public health.

(3) The Commission may authorize by license amendment, upon

licensee request, a portion of the impoundment to accept uranium

byproduct material or such materials that are similar in physical,

chemical, and radiological characteristics to the uranium mill

tailings and associated wastes already in the pile or impoundment,

from other sources, during the closure process. No such

authorization will be made if it results in a delay or impediment to

emplacement of the final radon barrier over the remainder of the

impoundment in a manner that will achieve levels of radon-222

releases not exceeding 20 pCi/m\2\s averaged over the entire

impoundment. The verification required in paragraph (2) of Criterion

6 may be completed with a portion of the impoundment being used for

further disposal if the Commission makes a final finding that the

impoundment will continue to achieve a level of radon-222 releases

not exceeding 20 pCi/m2s averaged over the entire impoundment.

In this case, after the final radon barrier is complete except for

the continuing disposal area, (a) only byproduct material will be

authorized for disposal, (b) the disposal will be limited to the

specified existing disposal area, and (c) this authorization will

only be made after providing opportunity for public participation.

Reclamation of the disposal area, as appropriate, must be completed

in a timely manner after disposal operations cease in accordance

with paragraph (1) of Criterion 6; however, these actions are not

required to be complete as part of meeting the deadline for final

radon barrier construction.

Dated at Rockville, Maryland, this 24th day of May, 1994.

For the Nuclear Regulatory Commission.

John C. Hoyle,

Acting Secretary of the Commission.

[FR Doc. 94-13248 Filed 5-31-94; 8:45 am]

BILLING CODE 7590-01-P