National Emissions Standards for Hazardous Air Pollutants; Proposed Rule

SUMMARY: EPA is supplementing its December 31, 1991 proposal to rescind

40 CFR part 61, subpart T (subpart T) as it applies to owners and

operators of uranium mill tailings disposal sites licensed by the

Nuclear Regulatory Commission (NRC) or an affected Agreement State

(Agreement States). This document supplements, and does not withdraw

EPA's prior proposal to rescind. This document describes and invites

comment on provisions for reconsideration of rescission and

reinstatement of subpart T, and describes relevant events that have

occurred since the December 1991 proposal. Additionally, EPA invites

comment on the Agency's proposed determination that the NRC regulatory

program protects public health with an ample margin of safety,

including specific aspects of that determination.

Neither proposal applies to uranium mill tailings disposal sites

regulated under subpart T that are also under the control of the

Department of Energy (DOE). As a National Emission Standard for

Hazardous Air Pollutants (NESHAPs) promulgated on December 15, 1989,

subpart T regulates emissions of radon-222 into the ambient air from

uranium mill tailings disposal sites. EPA is requesting comments only

on the contents of this notice and has included a specific request for

comments as to certain aspects of this proposal. EPA is establishing a

45 day comment period for receipt of all comments.

DATES: Comments concerning this proposal must be received by EPA on or

before March 24, 1994. A public hearing will be held on March 9, 1994,

in Washington, DC if a request for such a hearing is received by

February 22, 1994.

ADDRESSES: Comments should be submitted (in duplicate if possible) to:

Central Docket Section LE-131, Environmental Protection Agency, Attn:

Air Docket No. A-91-67, Washington, DC 20460. Requests to participate

in the public hearing should be made in writing to the Director,

Criteria and Standards Division, 6602J, Office of Radiation and Indoor

Air, Environmental Protection Agency, 401 M Street, SW., Washington, DC

20460. Comments and requests to participate in the hearing may also be

faxed to EPA at (202) 233-9629.

FOR FURTHER INFORMATION CONTACT: Gale C. Bonanno, Air Standards and

Economics Branch, Criteria and Standards Division, 6602J, Office of

Radiation and Indoor Air, Environmental Protection Agency, Washington,

DC 20460 (202) 233-9219.

SUPPLEMENTARY INFORMATION:

Docket

Docket A-91-67 contains the rulemaking record. The docket is

available for public inspection between the hours of 8 a.m. and 4 p.m.,

Monday through Friday, in room M1500 of Waterside Mall, 401 M Street,

SW., Washington, DC 20460. A reasonable fee may be charged for copying.

Table of Contents

I. Background

A. Description of Uranium Mill Tailings

B. Regulatory History

C. Clean Air Act Amendments of 1990

D. Memorandum of Understanding (MOU) between EPA, NRC and affected

Agreement States

E. The Settlement Agreement

II. Rationale for Proposed Rule to Rescind 40 CFR Part 61 Subpart T for

NRC and Agreement State Licensees

A. The Regulatory Scheme Under UMTRCA

B. Clean Air Act Amendments of 1990: Section 112(d)(9) (``Simpson

Amendment'')

C. Memorandum of Understanding (MOU)

D. Settlement Agreement

E. Actions by NRC and EPA Pursuant to the MOU and Settlement

Agreement

1. EPA Regulatory Actions

2. NRC Regulatory Action

3. Amendment of NRC and Agreement State Licenses

III. Proposed Rule to Rescind 40 CFR Part 61, Subpart T for NRC and

Agreement State Licensees

A. Proposed EPA Determination under CAA Section 112(d)(9)

1. Background

2. EPA's UMTRCA Standards

3. NRC's Proposed Conforming Regulations

4. License Amendments to Date

B. Reconsideration Provisions

1. December 31, 1991 Proposed Rule to Rescind subpart T

2. Reconsideration Options

IV. Request for Comments

V. Miscellaneous

A. Paperwork Reduction Act

B. Executive Order 12866

C. Regulatory Flexibility Analysis

I. Background

A. Description of Uranium Mill Tailings

Uranium mill tailings are sand-like wastes that result from the

processing of uranium ore. Tailings are stored in large surface

impoundments, called piles, in amounts from less than one million tons

to over thirty million tons, over areas that may cover hundreds of

acres. Most piles are located in the Western United States, and all

piles emit radon gas, a decay product of radium in the waste material

resulting from the processing of ore to recover uranium at the uranium

mills.

B. Regulatory History

To deal specifically with the risks associated with these tailings,

Congress passed the Uranium Mill Tailings Radiation Control Act

(UMTRCA) in 1978 (42 U.S.C. 2022, 7901-7942). In enacting UMTRCA,

Congress found that uranium mill tailings may pose a potential and

significant radiation health hazard to the public, and that every

reasonable effort should be made to provide for the stabilization,

disposal, and control in a safe and environmentally sound manner of

such tailings in order to prevent or minimize radon diffusion into the

environment and to prevent or minimize other environmental hazards from

such tailings. See 42 U.S.C. 7901(a). Under UMTRCA, two programs were

established to protect public health and the environment from the

hazards associated with uranium mill tailings. One program (Title I)

required the Department of Energy (DOE) to conduct the necessary

remedial actions at designated inactive uranium mill tailing sites to

achieve compliance with the general environmental standards to be

promulgated by EPA. These sites were generally abandoned uranium

processing sites for which a license issued by the NRC or its

predecessor, the Atomic Energy Commission (AEC), was not in effect on

January 1, 1978. The other program (Title II) pertained to active

sites, which are those that are licensed by the NRC or an affected

Agreement State. Requirements for licensed sites include the final

disposal of tailings, including the control of radon after milling

operations cease. UMTRCA also required that EPA promulgate standards

for these licensed sites, including standards that protect human health

and the environment in a manner consistent with standards established

under Subtitle C of the Solid Waste Disposal Act, as amended. The NRC,

or an Agreement State, is responsible for implementing the EPA

standards at licensed uranium milling sites.

As part of NRC's 1982 authorization and appropriations, Congress

amended UMTRCA on January 4, 1983. Public Law 97-415, sections 18(a)

and 22(b), reprinted in 2 1982 U.S. Code Cong. & Admin. News at 96

Stat. 2077 and 2080. As partially amended thereby, EPA was required to

promulgate standards of general applicability for the protection of the

public health, safety, and the environment from radiological and

nonradiological hazards associated with the processing and with the

possession, transfer, and disposal of byproduct material as defined

under section 11e(2) of the AEA, e.g., uranium mill tailings.

Requirements established by the NRC with respect to byproduct material

must conform to the EPA standards. Any requirements of such standards

adopted by the NRC shall be amended as the NRC deems necessary to

conform to EPA's standards. In establishing such standards, the

Administrator was to consider the risk to the public health, safety,

and the environment, the environmental and economic costs of applying

such standards, and such other factors as the Administrator determines

to be appropriate. See 42 U.S.C. 2022(b)(1).

As promulgated by EPA under subpart D of 40 CFR part 192 in 1983

and implemented by NRC pursuant to its regulations at 10 CFR part 40,

appendix A, a Title II site licensed by NRC or an Agreement State,

could indefinitely continue to emit radon at levels that could result

in risks higher than allowed under the CAA. It was this possibility

which compelled EPA to promulgate subpart T of 40 CFR part 61 under CAA

section 112. In addition, the UMTRCA regulations prior to the recent

EPA amendments called for an impoundment design that would achieve

compliance with the 20

pCi/m2-s flux standard for 1,000 years, or at least 200 years, but

they did not include any requirement that monitoring occur to verify

the efficacy of the design.

On October 16, 1985, NRC promulgated rules at 10 CFR part 40,

appendix A to conform NRC's regulations issued five years earlier to

the provisions of EPA's general UMTRCA standards other than those

affecting ground water protection at 40 CFR part 192. (50 FR 41852).

NRC completed conforming amendments for groundwater protection in

appendix A of part 40 in 1987.

Neither the UMTRCA standards promulgated by EPA in 1983 nor the NRC

standards promulgated in 1985, established compliance schedules to

ensure that non-operational tailings piles would be closed, and that

the 20 pCi/m\2\-s standard would be met, within a reasonable period of

time. Moreover, the EPA standards and NRC criteria also did not require

monitoring to ensure compliance with the flux standard. 50 FR 41852

(October 16, 1985). To rectify these shortcomings of the current EPA

and NRC programs regulating uranium mill tailings, EPA promulgated

standards under Section 112 of the CAA on October 31, 1989, to ensure

that the piles would be closed in a timely manner with monitoring.

On December 15, 1989, EPA promulgated national standards regulating

radionuclide emissions to the ambient air from several source

categories, including non-operational sites used for the disposal of

uranium mill tailings. (54 FR 51654). These sites are either under the

control of the DOE pursuant to Title I of the Uranium Mill Tailings

Radiation Control Act (UMTRCA) of 1978, 42 U.S.C. 7901 et. seq., or are

under the control of NRC or Agreement State-licensees pursuant to Title

II of UMTRCA. These standards--subpart T of 40 CFR part 61 (subpart

T)--were promulgated pursuant to the authority of Clean Air Act (CAA or

Act) section 112 as it existed in 1989.

Subpart T of 40 CFR part 61, limits radon-222 emissions to the

ambient air from non-operational uranium mill tailings disposal sites

licensed by the NRC or an affected Agreement State. Subpart T requires

that these sites, which consist of large (i.e., numerous acre)

impoundments or piles, comply with a radon flux standard of 20 pCi/

m\2\-s. 40 CFR 61.222(a). Moreover, compliance must be achieved within

two years of when the site becomes non-operational, 40 CFR 61.222(b),

which for piles which had ceased operation prior to the time of

promulgation was no later than December 15, 1991. While at the time of

promulgation EPA recognized that many sources might not be able to

achieve this date, EPA was constrained by then existing CAA section

112(c)(1)(B)(ii) which allows a maximum of two years for facilities to

come into compliance. EPA stated that for those sites which could not

meet the two-year date, the Agency would negotiate expeditious

compliance schedules pursuant to its enforcement authority under CAA

section 113. See 54 FR 51683. Subpart T also calls for monitoring and

recordkeeping to establish and demonstrate compliance. See 40 CFR

61.223 and 61.224.

Subpart T was part of a larger promulgation of radionuclide NESHAPs

that represent the Agency's application of the policy for regulating

CAA section 112 pollutants which was first announced in the benzene

NESHAP. 54 FR 38044 (September 14, 1989). The NESHAP policy utilized a

two-step approach. In the first step, EPA considered the lifetime risk

to the maximally exposed individual, and found that it is presumptively

acceptable if it is no higher than approximately one in ten thousand.

This presumptive level provides a benchmark for judging the

acceptability of a category of emissions. This first step also

considers other health and risk factors such as projected incidence of

cancer, the estimated number of persons exposed within each individual

lifetime risk range, the weight of evidence presented in the risk

assessment, and the estimated incidence of non-fatal cancer and other

health effects. After considering all of this information, a final

decision on a safe level of acceptable risk is made. This becomes the

starting point for the second step, determining the ample margin of

safety.

In the second step, EPA strives to provide protection for the

greatest number of persons possible to an individual lifetime risk

level no higher than approximately one in one million. In this step,

the Agency sets a standard which provides an ample margin of safety,

again considering all of the health risk and other health information

considered in the first step, as well as additional factors such as

costs and economic impacts of controls, technological feasibility,

uncertainties, and any other relevant factors.

EPA noted that standards it had already promulgated pursuant to the

Uranium Mill Tailings Radiation Control Act (UMTRCA) of 1978 (42 U.S.C.

2022, 7901-7942) would eventually limit radon emissions from those

sites to a flux of 20 pCi/m\2\-s (see 40 CFR part 192, subpart D), and

thus EPA referred to that level as ``baseline.'' EPA's risk assessment

revealed that compliance with the 20 pCi/m\2\-s baseline would result

in an estimated lifetime risk to the maximally exposed individual of

approximately 1 x 10-\4\, a level EPA determined to be safe under

the first step of the analysis. EPA further concluded in the second

step, which considers additional factors such as cost and technological

feasibility, that the baseline level also provided an ample margin of

safety.

Even though EPA determined that the baseline was protective of

public health with an ample margin of safety, EPA still found it was

necessary to promulgate subpart T. This was because the baseline

assumed compliance with the UMTRCA regulations even though those

regulations did not require that compliance occur in the foreseeable

future and, in fact, many sites were not proceeding towards the

baseline level at the time subpart T was promulgated. In other words,

EPA promulgated subpart T to address the timing issue, which was not

addressed in the UMTRCA regulations.

The primary subpart T standard is the requirement that radon-222

emissions not exceed a flux of 20 pCi/m\2\-s. 40 CFR 61.222(a).

Additionally, it requires that, once a uranium mill tailings pile or

impoundment ceases to be operational, it must be disposed of and

brought into compliance with the emission limit within two years of the

effective date of the standard (by December 15, 1991) or within two

years of the day it ceases to be operational, whichever is later.

Lastly, it requires monitoring of the disposed pile to demonstrate

compliance with the radon emission limit. See 40 CFR 61.223 and 61.224.

In its 1989 action, EPA recognized that even though NRC implements

general EPA standards (promulgated under UMTRCA) which also regulate

these sites and call for compliance with a 20 pCi/m\2\-s flux standard

(see 40 CFR part 192, subpart D), the UMTRCA regulatory program did not

answer the critical timing concern addressed by subpart T.

The existing UMTRCA regulations set no time limits for disposal

of the piles. Some piles have remained uncovered for decades

emitting radon. Although recent action has been taken to move toward

disposal of these piles, some of them may still remain uncovered for

years.

54 FR at 51683. However, due to then-existing CAA section

112(c)(1)(B)(ii), EPA was constrained to requiring compliance with the

20 pCi/m\2\-s baseline within two years, a date the Agency recognized

many sites might find impossible to meet. EPA announced that those

situations could be dealt with through site-specific enforcement

agreements under CAA section 113.

Subpart T requires compliance by owners and operators of uranium

mill tailings disposal sites within two years of becoming non-

operational. 40 CFR 61.22(b). Pursuant to its authority under then-

existing CAA section 112(c)(1)(B)(ii) EPA waived compliance for two

years for sites that were non-operational at the time of promulgation.

Id. Thus, the earliest date by which sites were required to comply with

the subpart T standards was December 15, 1991. Even so, EPA recognized

at the time of promulgation that many sources subject to subpart T

might not be able to achieve compliance by December 15, 1991. Because

EPA felt constrained by the CAA as it existed at that time, EPA stated

that for those sites the Agency would negotiate expeditious compliance

schedules pursuant to its enforcement authority under CAA section 113.

See 54 FR 51683. By so doing, subpart T in effect mandates that the

cover to meet that emissions level be installed as expeditiously as

practicable considering technological feasibility.

The numerical radon emission limit of subpart T, is the same as the

UMTRCA standard at 40 CFR part 192, subpart D (subpart D) (although

under UMTRCA, the limit is to be met through proper design of the

disposal impoundment, and is to be implemented by DOE and NRC for the

individual sites, while under the CAA, the standard is an emissions

limit with compliance established by EPA through monitoring). However,

the two year disposal requirement and the radon monitoring requirement

were not separately required by the existing UMTRCA regulations.

EPA amended 40 CFR part 192, subpart D on November 15, 1993, 58 FR

60340 to fill a specific regulatory gap with respect to timing and

monitoring that existed in that subpart. Under subpart D, sites are now

required to construct a permanent radon barrier pursuant to a design to

achieve compliance with the 20 pCi/m\2\-s flux standard as

expeditiously as practicable considering technological feasibility

(including factors beyond the control of the licensee) with a goal that

this occur by December 31, 1997, for those non-operational uranium mill

tailings piles listed in the MOU between EPA, NRC and the affected

Agreement States (at 56 FR 67568), or seven years after the date on

which the impoundments cease operation for all other piles. The new

requirement for verifying the flux with monitoring is meant to assure

the efficacy of the design of the permanent radon barrier following

construction.

Section 84a(2) of the Atomic Energy Act requires NRC to conform its

regulations to EPA's regulations promulgated under UMTRCA. As noted

above, the existing NRC criteria while providing a comprehensive

response to EPA's general UMTRCA standards did not compel sites to

proceed to final closure by a date certain nor did they require

monitoring. NRC proposed uranium mill tailings regulations to conform

the NRC requirements to EPA's proposed amended standards at 40 CFR part

192 subpart D. 58 FR 58657 (November 3, 1993). The proposed regulations

amend Criterion 6 and add a new Criterion 6A together with new

definitions in the Introduction to appendix A to part 40 of title 10 of

the CFR.

These CAA and UMTRCA programs duplicate each other by creating dual

regulatory oversight, including independent procedural requirements,

while seeking to ensure compliance with the same numerical 20 pCi/m\2\-

s flux standard. Concern over this duplication inspired several

petitions for reconsideration, most notably from NRC, the American

Mining Congress (AMC) and Homestake Mining Co. It was also alleged that

subpart T was unlawful because it was physically impossible for some

sites to come into compliance with subpart T in the time required.

While these petitions remain pending before EPA (at least in part), EPA

has taken several actions to address the issues they raise, including

publishing the proposal to rescind subpart T, as well as the Final Rule

to amend 40 CFR part 192, subpart D (UMTRCA regulations) and a Final

Rule staying subpart T pending the conclusion of this proposed rule.

C. Clean Air Act Amendments of 1990

After promulgation of subpart T (and receipt of reconsideration

petitions), the Clean Air Act was substantially amended in November

1990. Included in the amended Act was an amendment that speaks directly

to the duplication issue. Newly enacted section 112(d)(9) provides that

no standard for radionuclide emissions from any category or subcategory

of facilities licensed by the Nuclear Regulatory Commission (or an

Agreement State) is required to be promulgated under section 112 if the

Administrator determines, by rule, and after consultation with the

Nuclear Regulatory Commission, that the regulatory program established

by the Nuclear Regulatory Commission pursuant to the Atomic Energy Act

for such category or subcategory provides an ample margin of safety to

protect the public health. This provision strives to eliminate

duplication of effort between EPA and NRC, so long as public health is

protected with an ample margin of safety.

Moreover, Congress expressed sensitivity to the special compliance

problems of uranium mill tailings sites through new section 112(i)(3).

This provision provides an additional 3-year extension to mining waste

operations (e.g., uranium mill tailings) if the 4 years allowed

(including a one year extension) for compliance with standards

promulgated under the amended section 112 is insufficient to dry and

cover the mining waste (thereby controlling emissions).

D. Memorandum of Understanding (MOU) Between EPA, NRC and Affected

Agreement States

In July of 1991, EPA, NRC and the affected Agreement States entered

into discussions over the dual regulatory programs established under

UMTRCA and the CAA. In October 1991, those discussions resulted in a

Memorandum of Understanding (MOU) between EPA, NRC and the Agreement

States which outlines the steps each party will take to both eliminate

regulatory redundancy and to ensure uranium mill tailings piles are

closed as expeditiously as practicable. See 56 FR 55434 (MOU reproduced

as part of proposal to stay subpart T); see also 56 FR 67537 (final

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

that owners of uranium mill tailings disposal sites that have ceased

operation, and owners of sites that will cease operation in the future,

bring those piles into compliance with the 20 pCi/m\2\-s flux standard

as expeditiously as practicable considering technological feasibility

(including factors beyond the control of the licensee) with the goal

that all current disposal sites be closed and in compliance with the

radon emission standard by the end of 1997, or within seven years of

the date on which existing operations and standby sites enter disposal

status. This goal comports with Congress's concern over timing as

reflected in CAA section 112(i)(3), as amended.

E. The Settlement Agreement

As contemplated by the MOU, on December 31, 1991, EPA took final

action to stay and propose rescission of subpart T under section

112(d)(9), and to issue an advance notice of proposed rulemaking under

UMTRCA. See 55 FR 67537, 67561 and 67569. In order to preserve its

rights, EDF filed a lawsuit challenging the legality of the stay. EDF

v. Reilly, No. 92-1082 (D.C. Cir.). Litigation had previously been

filed by EDF, NRDC, AMC, Homestake and others, challenging subpart T.

AMC, et al. v. EPA, Nos. 90-1058, 90-1063, 90-1068, and 90-1074 (D.C.

Cir.). NRC, AMC and Homestake had also filed an administrative petition

for reconsideration of subpart T.

Discussions continued with the litigants and NRC, and in February

1993, an agreement was reached to settle the pending litigation and the

administrative proceeding, avoid potential future litigation, and

otherwise agree to a potential approach to regulations of NRC-licensed

non-operational uranium mill tailings disposal sites. See 58 FR 17230

(April 1, 1993) (notice announcing settlement agreement under CAA

section 113(g)).

The settlement agreement adds comprehensive detail to, and thereby

continues, the approach set forth in the MOU. If implemented, the

settlement agreement will result in the expeditious control of radon-

222 emissions at non-operational uranium mill tailings disposal sites

without the delays and resource expenditures engendered by litigation

and contentious administrative process. It will enable EPA to fulfill

the requirement of section 112(d)(9) that EPA find, by rule, that the

NRC regulatory program protects public health with an ample margin of

safety. It does this, in part, by changing EPA's UMTRCA regulations

such that public health will be as well protected under UMTRCA as would

implementation of subpart T under the CAA.

Under the agreement, the pending litigation will not be dismissed

until after certain terms in the agreement are fulfilled. Moreover, the

agreement does not legally bind or otherwise restrict EPA's rights or

obligations under law; rather, by its terms (paragraph 12), there is no

recourse for a court order to implement the agreement. Indeed, the only

remedy for failure to meet the terms of the final agreement is

activation by the litigants of the underlying litigation.

II. Rationale for Proposed Rule to Rescind 40 CFR Part 61 Subpart T for

NRC and Agreement State Licensees

In light of the new statutory authority provided EPA by section

112(d)(9) of the Clean Air Act Amendments of 1990, EPA met with NRC and

the affected Agreement States to determine whether, with certain

modifications to its regulatory program under UMTRCA, the NRC

regulatory program might provide an ample margin of safety. If so,

subpart T would be rendered superfluous and, therefore, needlessly

duplicative and burdensome such that rescission pursuant to CAA section

112(d)(9) would be appropriate.

In applying the risk methodology for CAA section 112 to the risk

assessment for subpart T, EPA has already determined that the baseline

that would result once the 20 pCi/m\2\-s UMTRCA standard is met

protects public health with an ample margin of safety. Thus, if the

regulatory program implemented by NRC assures that sites will achieve

the baseline (20 pCi/m\2\-s) as soon as practicable considering

technological feasibility and factors beyond the control of the

licensee, then the NRC program would protect the public to the same

extent as subpart T, and subpart T would not be necessary for these

facilities. More specifically, appropriate modifications to the UMTRCA

regulatory scheme as implemented by NRC and the affected Agreement

States to ensure specific, enforceable closure deadlines and monitoring

requirements such that compliance with the baseline will occur as

expeditiously as practicable considering technological feasibility and

factors beyond the control of the licensee, would protect public health

with an ample margin of safety. In so concluding, EPA relies wholly

upon the risk analysis it conducted in promulgating subpart T. EPA is

neither revisiting that analysis here, nor does the Agency seek comment

on that analysis.

A. The Regulatory Scheme Under UMTRCA

As a supplement to the Atomic Energy Act of 1954, as amended,

UMTRCA (42 U.S.C. 2022, 7901-7942) was enacted to comprehensively

address the dangers presented by uranium mill tailings, including their

disposal:

uranium mill tailings located at active and inactive mill operations

may pose a potential and significant radiation health hazard to the

public, and * * * the protection of the public health, safety, and

welfare * * * require[s] that every reasonable effort be made to

provide for the stabilization, disposal, and control in a safe and

environmentally sound manner of such tailings in order to prevent or

minimize radon diffusion into the environment * * *.

42 U.S.C. 7901(a); see American Mining Congress v. Thomas, 772 F.2d 617

(10th Cir. 1985), cert. denied, 426 U.S. 1158 (1986). As to uranium

mill tailings disposal sites in particular, UMTRCA gives the Department

of Energy (DOE) the responsibility to clean up and dispose of certain

(i.e., Title I) sites, and gives NRC the responsibility for those

(i.e., Title II) sites that are owned and operated by its licensees.

EPA is responsible for promulgating the generally applicable

environmental standards to be implemented by both NRC and DOE. 42

U.S.C. 2022(a), 7911-7924; AMC, 724 F.2d at 621. EPA promulgated its

final UMTRCA regulations on December 15, 1982 for Title I sites and on

September 30, 1983 for title II sites. 48 FR 590 and 48 FR 45926

(codified at 40 CFR part 192).

Parts of EPA's final UMTRCA regulations are directed to the

permanent disposal of uranium mill tailings. See 40 CFR part 192,

subpart D (subpart D). Among the requirements of subpart D is the

mandate that radon releases from the disposal sites not exceed a flux

of 20 pCi/m\2\-s. 40 CFR 192.32(a) and (b). Other aspects of subpart D

pertain to ground water, monitoring, design, and duration of closure.

See 40 CFR 192.32 and 192.33. With the exception of the ground water

provisions at 40 CFR 192.20(a)(2)-(3), all of subpart D was upheld by

the Tenth Circuit in AMC v. Thomas. 772 F.2d at 640. EPA is currently

engaged in rulemaking to address the ground water remand.

Because NRC implements EPA's general UMTRCA standards for its

licensees (as do its Agreement States), it has promulgated its own

implementing regulations in the form of ``criteria.'' See generally 10

CFR part 40, appendix A. While these criteria set forth a variety of

specific requirements--financial, technical, and administrative--to

govern the final reclamation (i.e., closure) design for each disposal

site, they also provide for ``site-specific'' flexibility by

authorizing alternatives that are at least as stringent as EPA's

general standards and NRC's criteria, ``to the extent practicable'' as

provided in section 84c of the Atomic Energy Act of 1954, as amended.

Id. at Introduction.

Overall, NRC's implementation criteria set forth a rigorous program

governing the reclamation of the disposal sites so that closure will

(1) last for 1,000 years to the extent reasonable, but in any event at

least 200 years, and (2) limit radon release to 20 pCi/m\2\-s

throughout that period. The design must be able to withstand extreme

weather and other natural forces. Upon review, EPA believes the NRC

criteria comprise a comprehensive response to EPA's general standards

at 40 CFR part 192, subpart D. However, as noted above, nothing in

either EPA's general standards or NRC's implementing criteria

previously compelled sites to proceed towards final closure by a

certain date. This was the reason for EPA's decision in 1989 to

promulgate the subpart T NESHAP under the CAA. Moreover, neither EPA's

general UMTRCA regulations, nor NRC's implementing criteria previously

required appropriate monitoring to ensure compliance with the 20 pCi/

m\2\-s standard. Nevertheless, as discussed below, the CAA was

subsequently amended to allow the EPA not to regulate NRC licensees if

it concludes that the NRC regulatory scheme provides an ample margin of

safety to protect the public health.

B. Clean Air Act Amendments of 1990: Section 112(d)(9) (``Simpson

Amendment'')

The purpose of this provision is to preserve governmental resources

and avoid needless, burdensome, and potentially contradictory CAA

regulations. Specifically, section 112(d)(9) makes explicit that EPA

need not regulate radionuclides under the CAA for radionuclide sources

that are sufficiently regulated by NRC or its Agreement States (under

the Atomic Energy Act or its component acts, such as UMTRCA). More

particularly, section 112(d)(9) allows EPA to decline to regulate under

section 112 if the Administrator determines ``by rule, and after

consultation with the [NRC],'' that NRC's regulatory program for a

particular source ``category or subcategory provides an ample margin of

safety to protect the public health.''

As EPA interprets section 112(d)(9), the Agency may rescind the

subpart T NESHAP as it applies to non-operational uranium mill tailings

disposal facilities licensed by NRC or an affected Agreement State if

the Agency (1) consults with NRC, (2) engages in public notice and

comment rulemaking, and (3) finds that the separate NRC regulatory

program provides an equivalent level of public health protection (i.e.,

an ample margin of safety) as would implementation of subpart T. While

this rulemaking may commence prior to final development of NRC's

regulatory program, that program must fully satisfy the statute at the

time EPA takes final action. In so doing, EPA must find that the NRC

regulatory program satisfies the CAA standard, not that full and final

implementation of that program has already successfully occurred.

C. Memorandum of Understanding (MOU)

EPA, NRC and the affected Agreement States entered intensive

discussions about these matters. This inter-agency consultation and

review resulted in the execution of a Memorandum of Understanding

(MOU), a copy of which was printed at the end of the proposed rule to

rescind subpart T published December 31, 1991 (56 FR 67568). The

primary purpose of the MOU is to ensure that non-operational uranium

mill tailings piles and impoundments licensed by NRC or an affected

Agreement State achieve compliance through emplacement of a permanent

radon barrier with the 20 pCi/m\2\-s flux standard specified in EPA's

UMTRCA standards (40 CFR 192.32(b)(1)) as expeditiously as practicable

considering technological feasibility (including factors beyond the

control of the licensee). The goal is that this occur as to all current

disposal sites by the end of 1997, or within seven years of when the

existing operating and standby sites enter disposal status.

The MOU called for EPA to modify its UMTRCA regulations (at 40 CFR

part 192, subpart D) to address the timing concern that resulted in

EPA's 1989 decision to promulgate subpart T. In addition, the MOU

called for NRC to modify its implementing regulations at 10 CFR part

40, appendix A, as appropriate, and to immediately commence efforts to

amend the licenses of the non-operational mill tailings disposal site

owners and operators to include reclamation plans that require

compliance with the 20 pCi/m\2\-s standard as expeditiously as

practicable considering technological feasibility (including factors

beyond the control of the licensee). This was to be accomplished either

through voluntary cooperation with the licensees, or through

administratively enforceable orders. In accordance with the MOU, the

NRC and affected Agreement States have agreed to amend the licenses of

all sites whose milling operations have ceased and whose tailings piles

remain partially or totally uncovered. The amended licenses would

require each mill operator to establish a detailed tailings closure

plan for radon to include key closure milestones and a schedule for

timely emplacement of a permanent radon barrier on all non-operational

tailings impoundments to ensure that radon emissions do not exceed a

flux of 20 pCi/m\2\-s. These actions, coupled with NRC's commitment to

enforce the amended licenses, are intended to provide the basis for EPA

to make the requisite findings under CAA section 112(d)(9) for

rescission of subpart T.

D. Settlement Agreement

In light of CAA section 112(d)(9), and in order to foster a

consensus approach to regulation in this area, EPA then commenced

discussions with NRC, the American Mining Congress (AMC), and the

Environmental Defense Fund (EDF). As a result of discussions after

execution of the MOU, a final settlement agreement was executed between

EPA, AMC, EDF, NRDC and individual site owners, to which NRC agreed in

principle by letter. The settlement agreement continues the regulatory

approach set forth in the MOU adding extensive detail to that

agreement.

E. Actions by NRC and EPA Pursuant to the MOU and Settlement Agreement

1. EPA Regulatory Actions

On December 31, 1991, EPA took several steps towards fulfilling its

responsibilities under the MOU and in implementing CAA section

112(d)(9) by publishing three Federal Register (FR) notices. In the

first notice (56 FR 67537), EPA published a final rule to stay the

effectiveness of 40 CFR part 61, subpart T, as it applies to owners and

operators of non-operational uranium mill tailings disposal sites

licensed by the NRC or an Agreement State. The stay will remain in

effect until the Agency rescinds the uranium mill tailings NESHAP at 40

CFR part 61, subpart T. However, if EPA fails to complete that

rulemaking by June 30, 1994, the stay will expire and the requirements

of subpart T will become effective.

In a second notice published on December 31, 1991, the Agency

proposed to rescind the NESHAP for radionuclides that appears at 40 CFR

part 61, subpart T, as it applies to non-operational uranium mill

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

FR 67561).

In the third notice, EPA published an advanced notice of proposed

rulemaking to amend 40 CFR part 192, subpart D (56 FR 67569) to provide

for site closure to occur as expeditiously as practicable considering

technological feasibility (including factors beyond the control of the

licensee), and appropriate monitoring requirements for non-operational

uranium mill tailings piles. These amendments would ensure timely

compliance and add monitoring requirements currently lacking in the

UMTRCA regulations.

EPA published a notice on June 8, 1993, proposing to amend 40 CFR

part 192 subpart D. (58 FR 32174). On November 15, 1993, EPA published

the final rule amending 40 CFR part 192, subpart D. (58 FR 60340). This

final rule requires: (1) Emplacement of a permanent radon barrier

constructed to achieve compliance with, including attainment of, the 20

pCi/m\2\-s flux standard by all NRC or Agreement State licensed sites

that, absent rescission, would be subject to subpart T; (2) interim

milestones to assure appropriate progress in emplacing the permanent

radon barrier; and (3) that site closure occur as expeditiously as

practicable considering technological feasibility (including factors

beyond the control of the licensee) after the impoundments cease

operation. EPA announced a goal that this occur by December 31, 1997,

for those non-operational uranium mill tailings piles listed in the MOU

between EPA, NRC and affected Agreement States (at 56 FR 67568), or

seven years after the date on which the impoundments cease operation

for all other piles.

As intended by EPA, the phrase ``as expeditiously as practicable

considering technological feasibility,'' means as quickly as possible

considering: (1) The physical characteristics of the tailings and

sites; (2) the limits of available technology; (3) the need for

consistency with mandatory requirements of other regulatory programs;

and (4) factors beyond the control of the licensee. While this phrase

does not preclude economic considerations to the extent provided by the

phrase ``available technology,'' it also does not contemplate

utilization of a cost-benefit analysis in setting compliance schedules.

The radon control compliance schedules are to be developed consistent

with the targets set forth in the MOU as reasonably applied to the

specific circumstances of each site.

EPA recognized that the UMTRCA regulatory scheme encompasses a

design standard. EPA made minor amendments to this scheme to better

facilitate implementation of the regulation without fundamentally

altering the current method of compliance. Subpart D, as amended,

requires site control to be carried out in accordance with a written

tailings closure plan (radon), and in a manner which ensures that

closure activities are initiated as expeditiously as practicable

considering technological feasibility (including factors beyond the

control of licensees). The tailings closure plan (radon), either as

originally written or subsequently amended, will be incorporated into

the individual site licenses, including provisions for and amendments

to the milestones for control, after NRC or an affected Agreement State

finds that the schedule reflects compliance as expeditiously as

practicable considering technological feasibility (including factors

beyond the control of the licensee). The compliance schedules are to be

developed consistent with the targets set forth in the MOU as

reasonably applied to the specific circumstances of each site with a

goal that final closure occur by December 31, 1997, for those non-

operational uranium mill tailings piles listed in the MOU between EPA,

NRC and affected Agreement States (at 56 FR 67568), or seven years

after the date on which the impoundments cease operation for all other

piles. These schedules must include key closure milestones and other

milestones which are reasonably calculated to promote timely compliance

with the 20 pCi/m2-s flux standard. Milestones which are not

reasonably calculated to advance timely compliance with the radon air

emissions standard, e.g. installation of erosion protection and

groundwater corrective actions, are not relevant to the tailings

closure plans (radon). In addition, subpart D requires that licensees

ensure that radon closure milestone activities, such as wind blown

tailings retrieval and placement on the pile, interim stabilization

(including dewatering or the removal of freestanding liquids and

recontouring), and radon barrier construction, are undertaken to

achieve compliance with, including attainment of, the 20 pCi/m2-s

flux standard as expeditiously as practicable considering technological

feasibility.

The goal of the amendments to subpart D is for existing sites, or

those that become non-operational in the future, to achieve compliance

as expeditiously as practicable considering technological feasibility

(including factors beyond the control of licensees) within the time

periods set forth in the MOU, including Attachment A thereto, and for

new sites to achieve compliance no later than seven years after

becoming non-operational.

However, if the NRC or an Agreement State makes a finding that

compliance with the 20 pCi/m2-s flux standard has been

demonstrated through appropriate monitoring, after providing an

opportunity for public participation, then the performance of the

milestone(s) may be extended. If an extension is granted, then during

the period of the extension, compliance with the 20 pCi/m2-s flux

standard must be demonstrated each year. Additionally, licensees may

request, based upon cost, that the final compliance date for

emplacement of the permanent radon barrier, or relevant milestone set

forth in the applicable license or incorporated in the (radon) tailings

closure plan, be extended. The NRC or an affected Agreement State may

approve such a request if it finds, after providing the opportunity for

public participation, that: (1) The licensee is making good faith

efforts to emplace a permanent radon barrier constructed to achieve the

20 pCi/m2-s flux standard; (2) such delay is consistent with the

definition of ``available technology;'' and (3) such delay will not

result in radon emissions that are determined to result in significant

incremental risk to the public health. Such a finding should be

accompanied by new deadlines which reasonably correspond to the target

dates identified in Attachment A of the MOU. (56 FR 67569).

EPA expects the NRC and Agreement States to act consistently with

their commitment in the MOU and provide for public notice and comment

on proposals or requests to (1) incorporate radon tailings closure

plans or other schedules for effecting emplacement of a permanent radon

barrier into licenses, and (2) amend the radon tailings closure

schedules as necessary or appropriate for reasons of technological

feasibility (including factors beyond the control of the licensees).

Under the terms of the MOU, NRC should do so with notice timely

published in the Federal Register. In addition, consistent with the

MOU, members of the public may request NRC for action on these matters

pursuant to 10 CFR 2.206. EPA also expects the Agreement States to

provide comparable opportunities for public participation pursuant to

their existing authorities and procedures.

The UMTRCA regulations, as promulgated by EPA and implemented by

NRC prior to the 1993 amendments, while ultimately limiting emissions

to the same numerical level as subpart T, were supported by a variety

of design-based substantive and procedural requirements that speak to

UMTRCA's unique concern that final site closure occur in a manner that

will last 1,000 years or at least 200 years, but did not require

monitoring of emissions to confirm the performance of the earthen

cover. See generally 10 CFR part 40, appendix A and 40 CFR part 192.

Subpart D, as amended, requires all appropriate monitoring be conducted

pursuant to the procedures described in 40 CFR part 61, appendix B,

Method 115, or any other measurement method proposed by a licensee and

approved by NRC or the affected Agreement State as being at least as

effective as EPA Method 115 in demonstrating the effectiveness of the

permanent radon barrier in achieving compliance with the 20 pCi/

m2-s flux standard. After emplacement of a permanent radon barrier

designed and constructed to achieve compliance with, including

attainment of, the 20 pCi/m2-s flux standard, the licensee shall

conduct appropriate monitoring and analysis of the radon flux through

the barrier. This monitoring will verify that the design of the

permanent radon barrier is effective in ensuring that emissions of

radon-222 will not exceed compliance with the 20 pCi/m2-s, as

contemplated by 40 CFR 192.32(b)(1)(ii). EPA intends that the permanent

radon barrier be designed to ensure sustained compliance with the 20

pCi/m2-s flux standard by all sites, but does not require

continuous emissions monitoring. Rather, a single monitoring event may

suffice to verify the design of the permanent radon barrier to ensure

continued compliance. Note, however, that if the NRC or an Agreement

State extends the time for performance of milestones after making a

finding that compliance with the 20 pCi/m2-s flux standard has

been demonstrated by appropriate monitoring, compliance with the 20

pCi/m2-s flux standard must be demonstrated each year during the

period of the extension.

2. NRC Regulatory Action

On November 3, 1993, NRC proposed uranium mill tailings regulations

to conform the NRC requirements to EPA's proposed amended standards at

40 CFR part 192 subpart D. (58 FR 58657). Section 84a(2) of the Atomic

Energy Act requires NRC to conform its regulations to EPA's regulations

promulgated under UMTRCA. As noted above, the existing NRC criteria

while providing a comprehensive response to EPA's general UMTRCA

standards did not compel sites to proceed to final closure by a date

certain nor did they require monitoring. The proposed regulations amend

Criterion 6 and add a new Criterion 6A and definitions to the

Introduction to appendix A to part 40 of title 10 of the CFR.

Consistent with the MOU, NRC's proposal provides for timely emplacement

of the ``final'' radon barrier and requires appropriate verification of

the radon flux through that barrier.

Proposed Criterion 6 paragraph 2 provides for appropriate testing

and analysis to verify that the construction of the barrier effectively

controls radon from uranium byproduct material to a level not exceeding

20 pCi/m2-s. Paragraph 3 requires verification of the radon flux

to be conducted over the covered portion of the pile or impoundment if

phased emplacement of the barrier is authorized. Paragraph 4 would

require reporting and recordkeeping.

As proposed, Criterion 6A addresses the timeliness of complying

with the requirements of Criterion 6 as applied to uranium mill

tailings. Paragraph 1 would require compliance with Criterion 6 as

expeditiously as practicable considering technological feasibility

after a pile or impoundment containing uranium byproduct materials

ceases operation. In addition, this paragraph would require inclusion

of specified interim milestones in the individual site license.

Proposed Criterion 6A also sets forth the conditions for Commission

approval of extensions for performance of milestones and continued

acceptance of uranium byproduct and other materials in the pile or

impoundment. See Proposed 10 CFR part 40 appendix A Criterion 6A

paragraphs 2 and 3 at 58 FR 58664.

3. Amendment of NRC and Agreement State Licenses

Consistent with their commitments under the MOU, as well as EPA's

previous proposal to rescind subpart T (56 FR 67561 December 31, 1991),

NRC and the affected Agreement States agreed to amend the licenses of

all non-operational uranium mill tailings sites to ensure inclusion of

schedules for emplacing a permanent radon barrier on the tailings

impoundments, as well as interim milestones (e.g., wind blown tailings

retrieval and placement on the pile, interim stabilization and radon

barrier construction). To this end, NRC and the Agreement States

requested the licensees to voluntarily seek amended licenses and have

completed processing those requests. NRC has continued the spirit of

cooperation between EPA and NRC by keeping the Agency apprised of the

status of the approval of reclamation plans and amendment of licenses.

As of September 30, 1993, NRC and the Agreement States had

completed all license amendments for closure of licensed non-

operational impoundments, with the exception of the license amendment

for the Atlas site located in Moab, Utah.

NRC informed EPA by letter that the Commission received extensive

comments on NRC's July 20, 1993 proposal to approve the Atlas

reclamation plan, including the closure schedule and interim milestones

required by the MOU, and the Environmental Assessment and the Finding

of No Significant Impact for the Atlas mill. NRC rescinded its Finding

of No Significant Impact for the Atlas mill in October 1993. 58 FR

52516 (October 8, 1993). One issue appears to be the potential for

flooding of the Atlas impoundment if it is reclaimed on-site, due to

the proximity of the site to the Colorado River. This concern and

others appear to have caused delays in the license amendment for this

site. NRC informed EPA it intends to reassess the reclamation plan for

that site and prepare a report. Based on the results of that

reassessment, the NRC will determine what the next steps should be. In

its reassessment of the reclamation plan, NRC will obtain input from

Federal, State, and local representatives. NRC is actively pursuing a

timely final decision on the Atlas site location and its reclamation

plan. To this end, NRC informed EPA by letter dated December 28, 1993,

that NRC has conducted several meetings with the various

representatives enumerated above and has requested additional technical

information from the licensee.

The near edge of town is located about 2 km to the east of the

Atlas tailings impoundment. However, it appears the area within a 1.5

km radius of the Atlas mill tailings impoundment site is sparsely

populated. An interim cover is being placed over the impoundment for

radon emission control as the Atlas tailings impoundment dries

sufficiently to allow access of the necessary equipment. As discussed

in the Background Information Document (BID) for the amendments to 40

CFR 192 subpart D, interim covers significantly reduce radon emissions.

Technical Support for Amending Standards for Management of Uranium

Byproduct Materials: 40 CFR Part 192 Background Information Document,

EPA 402-R-93-085, October 1993.

If the 1996 MOU target date for emplacement of the permanent radon

barrier is extended by NRC, EPA will review such an extension at that

time. Under the present circumstances, it appears an extension of the

MOU target date would be consistent with the factors to be considered

under the ``as expeditiously as practicable'' standard at 40 CFR

section 192.32(a)(3)(i), since there may be a need for consistency with

mandatory requirements of other regulatory programs (i.e., NEPA) and

there may be factors beyond the control of the licensee. 40 CFR section

192.31(k). Based on representations from NRC, EPA believes that the

extra time NRC is taking to further review the proposed Atlas mill site

reclamation plan is necessary to address the large amount of public

comments received and that it will result in a final solution that is

more responsive to public comment.

NRC and the affected Agreement States have also agreed to enforce

the provisions of the amended licenses to ensure compliance with the

new schedules for emplacing the permanent radon barriers, including

interim milestones, and to ensure (and verify) the efficacy of the

design and construction of the barrier to achieve compliance with the

20 pCi/m2-s flux standard contained in the amendments to subpart D.

III. Proposed Rule To Rescind 40 CFR Part 61, Subpart T for NRC and

Agreement State Licensees

EPA is proposing to rescind subpart T as it applies to non-

operational uranium mill tailings disposal sites licensed by NRC or an

affected Agreement State. The Agency sets forth this proposal pursuant

to its authority under CAA section 112(d)(9), as amended in 1990. The

support for this proposal includes (1) The MOU, which reflects

consultation with NRC and the affected Agreement States and sets forth

a course of conduct that will bolster NRC's regulatory program under

UMTRCA so that it is protective of public health with an ample margin

of safety, (2) the settlement agreement which adds comprehensive detail

to the MOU, (3) EPA's amendments to 40 CFR part 192 subpart D, (4) the

relevant license amendments, to date, and (5) expected amendments by

NRC to its implementation regulations at Appendix A, 10 CFR part 40.

A. Proposed EPA Determination Under CAA Section 112(d)(9)

1. Background

Section 112(d)(9) authorizes EPA to decline to regulate

radionuclide emissions from NRC-licensees under the CAA provided that

EPA determines, by rule, and after consultation with NRC, that the

regulatory scheme established by NRC protects the public health with an

ample margin of safety. The legislative history of section 112(d)(9)

provides additional guidance as to what is meant by ``an ample margin

of safety to protect the public health'' and what process the

Administrator should follow in making that determination in a

rulemaking proceeding under section 112(d)(9). The Conference Report

points out that the ``ample margin of safety'' finding under section

112(d)(9) is the same ``ample margin of safety'' requirement that was

contained in section 112 of the CAA prior to its amendment in 1990. The

conferees also made clear that the process the Administrator was

expected to follow in making any such determination under section

112(d)(9) was that ``required under the decision of the U.S. Court of

Appeals in NRDC v. EPA, 824 F.2d 1146 (D.C. Cir 1987) (Vinyl

Chloride).'' H.R. Rep. 952, 101st Cong., 2d Sess. 339 (1990).

EPA has already made a determination in promulgating subpart T that

compliance with the 20

pCi/m\2\-s standard protects public health with an ample margin of

safety. EPA conducted a risk analysis in promulgating subpart T in

1989. At that time, EPA determined that the 20

pCi/m\2\-s flux standard was a ``baseline'' that was provided by EPA's

general UMTRCA standards at 40 CFR part 192 subpart D. EPA further

determined that compliance with that baseline would be protective of

public health with an ample margin of safety. EPA promulgated subpart T

to ensure achievement of the flux standard at non-operational sites in

a timely manner. In conducting this rescission rulemaking, EPA is not

revisiting the risk analysis nor decision methodology that supported

the promulgation of subpart T; rather, EPA is only visiting whether

NRC's regulatory program under UMTRCA will meet the 20 pCi/m\2\-s flux

standard established in subpart T as being a safe level in a timely

manner thereby rendering subpart T unnecessarily duplicative.

EPA's proposed determination that the NRC regulatory program

protects public health with an ample margin of safety includes a

finding that NRC and the affected Agreement States are implementing and

enforcing, in significant part on a programmatic and site-specific

basis: (1) The regulations governing the disposal of uranium mill

tailings promulgated by EPA and NRC consistent with the settlement

agreement described above; and (2) the operating license (i.e.,

tailings closure plan) requirements that establish milestones for the

purpose of emplacing a permanent radon barrier that will achieve

compliance with the 20

pCi/m\2\-s flux standard. In addition, in determining whether EPA's and

NRC's regulatory changes have been effectively promulgated, EPA will

assess whether any judicial challenge to these regulations is pending

and, if so, whether such challenge presents a significant risk of

interference with the purposes and objectives of the MOU, as reflected

in the regulatory changes.

2. EPA's UMTRCA Standards

As discussed above, EPA has modified its UMTRCA regulations (40 CFR

part 192 subpart D) to require compliance with the 20 pCi/m\2\-s flux

standard as expeditiously as practicable considering technological

feasibility (and factors beyond the control of the licensee), and to

require appropriate monitoring to verify the efficacy of the design of

the permanent radon barrier. By definition, no more rapid compliance

can, as a practical matter occur, because this schedule represents the

earliest that the sites could be closed. EPA expects that these

compliance schedules will be developed consistent with the targets set

forth in the MOU as reasonably applied to the specific circumstances of

each site.

When EPA promulgated subpart T it recognized that many sources

might not be able to comply with the two year compliance date then

required pursuant to section 112. Based on this, subpart T includes a

provision that in such a case EPA would ``establish a compliance

agreement which will assure that disposal will be completed as quickly

as possible.'' 40 CFR 61.222(b). The time period required for closure

under subpart D embodies the same approach. In practice, therefore,

both subpart T and subpart D establish the same basic timeframes for

achievement of the flux standard. Assuming NRC and the Agreement States

faithfully implement subpart D and the license amendments required

under subpart D, EPA would not expect there to be any significant

difference between these two programs in the amount of time required

for sites to comply with the flux standard.

As discussed above, subpart D as amended, provides that NRC may

grant an extension of time to comply with either of the following

deadlines: (1) Performance of milestones based upon a finding that

compliance with the 20 pCi/m\2\-s flux standard has been met, or (2)

final compliance beyond the date or relevant milestone based upon cost.

EPA considers these two bases upon which NRC may grant an extension to

be mutually exclusive, i.e., a request for a specific extension may be

based on one or the other but not both grounds. If a milestone is being

extended for a basis other than cost, such an extension may be granted

if NRC finds that compliance with the 20 pCi/m\2\-s flux standard has

been demonstrated using EPA Method 115 or an NRC approved alternative.

In addition the site must continue to demonstrate compliance with this

flux standard on an annual basis. However, if a licensee requests

extension of the final compliance date (or relevant milestone) based

upon cost, such an extension may only be granted if NRC finds that the

three criteria specified in 40 CFR section 192.32(a)(3)(iii) are met.

Any extensions of the final compliance date based upon cost will be

granted on a site-specific basis.

If a licensee requests an extension of the final compliance date

based upon cost, technology may not be used as a basis for granting the

extension unless the costs are grossly excessive, as measured by normal

practice within the industry. EPA recognizes that the emissions from

the pile may exceed the 20 pCi/m\2\-s flux standard pending final

compliance, but believes these increases will be minimal and of limited

duration. Further, a lifetime individual risk of approximately 1 in

10,000 is considered safe under the benzene policy based on 70 years of

exposure. 54 FR 38044 (September 14, 1989). EPA does not anticipate the

short extensions in the time to complete the radon barrier contemplated

in subpart D and the proposed NRC conforming amendments to increase the

maximum lifetime individual risk beyond 1 in 10,000, the level which

EPA found to protect the public health with an ample margin of safety

in promulgating subpart T. 54 FR 51656 (December 15, 1989). EPA

believes this is consistent with the reality of short-term risks from

radon emissions during the period of delay, and consistent with the

risks associated with negotiated compliance agreements when non-

operational sites fail to close within the two year period required by

subpart T. EPA believes these emissions should not exceed those

emissions which could occur under subpart T if compliance agreements

had been negotiated. Extensions based upon cost will only be granted if

NRC or an Agreement State finds, after providing an opportunity for

public participation, that the emissions caused by the delay will not

cause significant incremental risk to the public health. Additionally,

a site requesting an extension based upon cost must demonstrate that it

is making a good faith effort to emplace the permanent radon barrier.

In many situations, where an interim cover is in place, radon emissions

are significantly reduced and tailings which are wet or ponded emit no

significant levels of radon. EPA would also evaluate extensions under

the proposed section 61.226(c) provisions to determine whether the

Agency should reconsider the rescission and seek reinstatement of

subpart T, on either a programmatic or site-specific basis. Thus, under

the circumstances, EPA believes affording authority for extensions of

the final compliance date based upon cost is not inconsistent with

protecting the public health and today's proposal.

Additionally, NRC or an Agreement State may extend the date for

emplacement of the radon barrier based on ``factors beyond the control

of the licensee,'' as that term is implicit in the definition of ``as

expeditiously as practicable.'' EPA understands that under subpart D's

provisions there is no bar to NRC or an Agreement State reconsidering a

prior decision establishing a date for emplacement of the radon barrier

that meets the standard of ``as expeditiously as possible.'' Such

reconsideration could, for example, be based on the existence of

factors beyond the control of the licensee, or on a change in any of

the various factors that must be considered in establishing a date that

meets the ``as expeditious as practicable'' standard of

Sec. 192.32(a)(3)(i). However EPA stresses that such a change in

circumstances would not automatically lead to an extension. It would be

incumbent on NRC or an Agreement State to evaluate all the factors

relevant under Sec. 192.32(a)(3)(i) before it could change a previously

established milestone or date for emplacement of the final barrier, and

any new date would have to meet the standard set out in

Sec. 192.32(a)(3)(i). Finally, NRC's and Agreement States' authority to

reconsider previously established milestones or dates would include

authority to shorten or speed up such dates, as well as extend them.

EPA also expects that public participation consistent with that level

of participation provided in the MOU and the settlement agreement will

be afforded the public by NRC and the Agreement States in amending the

licenses due to ``factors beyond the control of the licensee,'' or for

any other basis.

3. NRC's Proposed Conforming Regulations

As discussed previously, NRC has proposed regulations to conform

appendix A of 10 CFR part 40 to EPA's general standards promulgated

under UMTRCA; the proposed rule is currently in the public comment

stage 58 FR 58657 (November 3, 1993). Because the public process may

alter the final rule, especially since an alternative for Criterion 6A

paragraph 2 was proposed, EPA believes that the adequacy of the NRC

conforming regulations can only be determined after the NRC conforming

regulations are finalized. In making this determination, EPA's decision

will be based upon the Commission's final rule which must implement 40

CFR part 192, subpart D. EPA will determine whether NRC's regulations

support rescission in its final rule to rescind subpart T. EPA is

inviting comments as to whether NRC's proposed conforming regulations

support EPA's proposal(s) to rescind subpart T by either adequately and

appropriately implementing EPA's amendments to 40 CFR part 192, subpart

D, or may reasonably be expected to do so prior to rescission of

subpart T.

4. License Amendments to Date

Table 1 illustrates that all NRC and affected Agreement State

licenses, except one, have been modified pursuant to the MOU.

Attachment A to the MOU, developed in conjunction with each site and

considering the particular circumstances of that site, lists target

dates for emplacement of the permanent radon barrier with ``a guiding

objective that this occur to all current disposal sites by the end of

1997, and within seven years of when the existing operating and standby

sites cease operation.'' 56 FR 67568 (December 31, 1991). The MOU

requires NRC and the Agreement States to ``ensure . . . that cover

emplacement on the tailings impoundments occurs as expeditiously as

practicable considering both short-term reductions in radon releases

and long-term stability of the uranium mill tailings.'' Id. The

compliance schedules are to be developed consistent with the MOU

targets as reasonably applied to the specific circumstances of each

site with a goal that final closure occur by December 31, 1997, for

those non-operational uranium mill tailings piles listed in the MOU.

Table 1.--Status of Reclamation Plans for Non-Operational Uranium Mill Tailings Impoundments\1\

----------------------------------------------------------------------------------------------------------------

Approval date

Approval date for for MOU date for License date for

Facility reclamation plan reclamation final radon final radon

milestones cover cover

----------------------------------------------------------------------------------------------------------------

ANC, Gas Hills, WY...................... 4/10/83............. 11/5/92 1995 12/31/94

\2\6/30/96

ARCO Coal, Bluewater, New Mexico........ 1/30/92............. 11/9/92 1995 12/28/94

Atlas, Moab, Utah....................... (\3\)............... 11/4/92 1996 12/31/96

Conoco, Conquista, Texas................ 9/8/93.............. 9/8/93 1996 12/31/93

Ford-Dawn Mining, Ford, WA.............. 9/30/93............. 9/30/93 2010 \4\12/31/18

Hecla Mining, Duria, CO................. 9/30/93............. 9/30/93 1997 12/31/95

Homestake Milan, NM..................... 7/23/93............. 11/9/92 \5\1996/2001 \5\12/31/01

Pathfinder-Lucky Mc, Gas Hills, Wyoming. 9/17/93............. 12/29/92 1998 9/30/98

Petrotomics, Shirley Basin, WY.......... 10/23/89............ 1/21/93 1995 12/31/95

Quivira, Ambrosia Lake, NM.............. 10/5/90............. 1/22/93 1997 12/31/97

Rio Algom, Lisbon, UT................... 9/29/93............. 12/31/96 1996 12/31/96

Sohio L-Bar, Cebolleta, New Mexico...... 5/1/89.............. 11/4/92 1992 12/31/92

UMETCO, Gas Hills, Wyoming.............. Various-early 80s... 12/2/92 1995 12/31/95

UMETCO, Maybell, CO..................... 7/30/93............. 7/30/93 1997 12/31/97

UMETCO, Uravan, CO...................... 12/31/87............ 12/31/87 \6\2002 12/31/96

UNC, Church Rock, NM.................... 3/11/92............. 10/29/92 1997 12/31/97

Union Pacific, Bear Creek, Wyoming...... 4/3/92.............. 11/5/92 1996 12/31/96

WNI, Sherwood, WA....................... 9/30/93............. 9/30/93 1996 \4\1/31/98

WNI, Split Rock, WY..................... 6/17/93............. 11/5/92 1995 12/31/94

----------------------------------------------------------------------------------------------------------------

\1\NRC and the affected Agreement States committed to complete review and approval of reclamation plants,

including schedules for emplacement of earthern covers on non-operational tailings impoundments by September

30, 1993.

\2\Two impoundments; 1996 date is for impoundment which was accepting waste from off-site for disposal. Licensee

has requested an amendment for a one year extension of dates for placement of radon barrier on the two piles.

\3\Delayed pending resolution of issues raised in response to Federal Register notice dated July 20, 1993.

\4\Closure date change is because of groundwater remediation schedule.

\5\Two impoundments: large impoundment to be completed by 1996, small impoundment by 2001. Final radon barrier

placement over the entire pile shall be completed within two years of completion of groundwater corrective

actions.

\6\Date in the MOU is for final reclamation.

EPA believes the NRC and the Agreement States are acting in good

faith to implement their commitments under the MOU by amending the site

licenses. The license amendments by NRC and the affected Agreement

States appear to reflect closure as expeditiously as practicable, thus

supporting rescission of subpart T and a determination that the NRC

program protects public health with an ample margin of safety. In

addition, consistent with their commitments under the MOU, NRC and the

affected Agreement States are providing opportunities for public

participation in the license amendment process.

The license amendments noted in Table 1 reflect consistent

application of the dates contained in the MOU. Three exceptions are

worth noting. First, although the license amendment for the Atlas site

is not complete, EPA is confident that NRC is actively pursuing final

resolution of the pending reclamation plan. Pending final approval of a

reclamation plan, the Atlas site is continuing to emplace an interim

cover on the pile to control radon emissions.

Second, the license amendments for the ANC Gas Hills site address

two separate impoundments. Consistent with the MOU, the license

amendment for the non-operational impoundment contains a December 31,

1994, date for emplacement of the permanent radon barrier.

Additionally, an impoundment previously designated as operational for

in-situ waste disposal is now non-operational. Emplacement of the

permanent radon barrier on this second impoundment is scheduled to be

completed by June 30, 1996, well within the seven year goal of the MOU

for impoundments which cease operations after December 31, 1991.

Lastly, the license amendment dates for two additional sites, the

Ford-Dawn Mining site and the WNI site both located in the Agreement

State of Washington, are also beyond the dates contained in the MOU.

However, Washington State notes that for these sites the closure date

was changed because of the groundwater remediation schedule, and the

difficulty experienced in drying the piles due to the evaporation and

precipitation rates. In sum, EPA believes that the license amendments

adopted by NRC and the Agreement States to date reflect a good faith

attempt to implement the MOU and require closure of the sites as

expeditiously as practical considering technological feasibility.

While NRC and the Agreement States have obtained license amendments

for all but one of the relevant sites, they have not as of yet

established a record for enforcement of these milestones, including

action on requests for extensions. Based on NRC representations, no

milestones occurring after the date of the MOU, October 1991, have been

missed and as included in footnote 2 of Table 1, an application for an

extension is pending but no action has been taken. However, given their

response to the requirements of the MOU, and the rulemaking being

conducted by NRC to implement the requirements of subpart D, EPA

believes it may well be able to conclude that the milestones

established in the licenses for emplacement of the permanent radon

barrier (i.e., the tailings closure plan (radon)) will be implemented

and enforced in significant part on a programmatic and site-specific

basis. The relevant portions of the amended licenses have been placed

in the docket for this action, as well as letters from NRC to EPA

apprising the Agency of the status of the license amendments.

EPA and NRC have completed many actions required by the MOU,

including: revising the NRC and affected Agreement State licenses to

reflect the MOU requirements, promulgating amendments to EPA's UMTRCA

regulations at 40 CFR part 192, subpart D, and proposing to conform the

NRC regulations at 40 CFR part 10 to EPA's revised UMTRCA regulations.

Based on EPA's review, to date, of the regulatory program established

by NRC under UMTRCA (as contained at 10 CFR part 40, appendix A), EPA

has determined that, once the timing and monitoring concerns are fully

and finally addressed consistent with EPA's UMTRCA standards, as well

as consistent with and including the other actions (e.g., license

amendments) contemplated by the MOU, the NRC criteria will result in

reclamation designs and schedules fully adequate to ensure compliance

with the 20 pCi/m\2\-s flux standard as expeditiously as practicable

considering technological feasibility (including factors beyond the

control of the licensee). Additionally, EPA expects that when the NRC

regulations are finally amended, the Agency should be able to find that

NRC and the affected Agreement States are or will be implementing and

enforcing, in significant part, the regulations governing disposal of

tailings and the operating license requirements (tailings closure plan

(radon)) that establish milestones for emplacement of a permanent radon

barrier that will achieve compliance with the 20 pCi/m\2\-s flux

standard on a programmatic and a site-specific basis. The Agency

intends ``in significant part'' to mean that NRC or an affected

Agreement State is implementing and enforcing the regulatory and

operating license requirements in a manner that EPA reasonably expected

to not materially (i.e., more than de minimis)\1\ interfere with

compliance with the 20 pCi/m\2\-s standard as expeditiously as

practicable considering technological feasibility (including factors

beyond the control of the licensee). As part of its determination, EPA

requests comments on whether any judicial challenge to EPA's and NRC's

regulations are to be expected and whether such challenge presents a

significant risk of interference with the purposes and objectives of

the MOU, as reflected in the regulatory changes as part of its

determination of whether EPA's and NRC's regulatory changes have been

effectively promulgated.

---------------------------------------------------------------------------

\1\The phrase ``de minimis'' as used in this notice is not

intended to be restricted to the meaning of section 112(g)(1)(A) of

the Clean Air Act, as amended.

---------------------------------------------------------------------------

EPA does not intend to take final action on its proposals until

NRC's regulations at 10 CFR part 40, appendix A, are effectively

revised, as necessary and appropriate to implement the revisions to

EPA's regulations at 40 CFR part 192, subpart D. EPA does intend,

however, to take final action on the proposed rescission prior to the

time compliance with the 20 pCi/m\2\-s flux standard is achieved at all

sites.

B. Reconsideration Provisions

Under the Atomic Energy Act, NRC has the authority to waive, for

reasons of practicability, the dual requirement of the MOU that

compliance with the 20 pCi/m\2\-s flux standard occur as expeditiously

as practicable considering technological feasibility. 42 U.S.C.

2114(c). NRC considers the term ``practicability'' to include certain

economic considerations not contemplated by the requirement of the MOU

that compliance occur as expeditiously as practicable considering

technological feasibility. In promulgating subpart T, the CAA did not

permit, and EPA did not consider, site-specific waivers from ultimate

compliance with that standard. Thus, as a theoretical matter, EPA

recognized in its December 1991 proposal that this waiver authority

might be exercised in a manner not addressed in the MOU even after the

UMTRCA regulations have been promulgated and each license amended,

although EPA has no reason to believe such relaxation of restriction

will actually occur. Nevertheless, EPA recognized that this authority

would not exist under the CAA and subpart T and, thus, there is some

concern over the potential for deviation from the agreements contained

in the MOU.

1. December 31, 1991 Proposed Rule To Rescind subpart T

In response to the concern over the waiver authority in the Atomic

Energy Act, and in order to ensure its exercise does not alter EPA's

finding that the NRC regulatory program protects public health with an

ample margin of safety, EPA announced in its December 31, 1991,

proposal that certain conditions and grounds for reconsideration would

be included in any final decision to rescind subpart T. In this way,

EPA might base its rescission finding upon its view of the NRC

regulatory program contemplated by the MOU at the time of taking final

action, while also providing some assurance that EPA would revisit that

finding should NRC or the affected Agreement States substantially

deviate from that program. Thus, in December 1991, EPA proposed certain

conditions and grounds for reconsideration, to provide assurance that

any finding by the Agency that the NRC program is sufficient to justify

rescission of subpart T under CAA section 112(d)(9) would be revisited

if the NRC program is actually implemented in a manner inconsistent

with that finding. The specific reconsideration options proposed by EPA

were published at 56 FR 67565 (December 31, 1991).

2. Reconsideration Options

EPA has reviewed the various options for reconsideration proposed

in December 1991 in light of the comprehensive details added to the

terms of the MOU by the settlement agreement finalized in April 1993.

EPA is now proposing an additional reconsideration option that is a

combination of the options proposed in December 1991. It is in effect a

hybrid of that December 1991 proposal. While EPA is not withdrawing its

prior reconsideration proposal and the reconsideration options

contained therein, the additional reconsideration option proposed today

is currently preferred by EPA.

EPA believes the following reconsideration provisions, which

include both programmatic and site-specific bases for reinstatement,

represent a comprehensive approach under both the MOU and settlement

agreement. EPA requests comment on these proposed reconsideration

provisions. The Agency notes that the 20 pCi/m\2\-s flux standard must

be met by all sites as provided by 40 CFR part 192, subpart D. EPA does

not intend to reconsider the decision to rescind subpart T for any site

that is in fact meeting the 20 pCi/m\2\-s flux standard, absent other

factors that would indicate the need for reinstatement.

Today's proposal establishes an obligation for the Administrator to

reinstate subpart T as applied to owners and operators of non-

operational uranium mill tailings disposal sites licensed by NRC or an

affected Agreement State provided certain conditions are met.

Additionally, today's proposal sets forth the procedures for EPA to act

on a petition to reconsider rescission of subpart T which seeks such

reinstatement. However, the proposed provisions are not intended to be

exclusive. EPA reserves the right to initiate reinstatement of subpart

T if appropriate. Pursuant to section 553(e) of the Administrative

Procedure Act (5 U.S.C. 553(e) interested persons may petition the EPA

to initiate reinstatement of subpart T, in addition to petitions for

reinstatement under the procedures proposed today.

The proposed reconsideration provisions establish procedures for

persons to petition EPA for reconsideration of the rescission and seek

reinstatement of subpart T and EPA's response to such petitions.

Provisions for the substantive conditions for reconsideration of the

rescission of this subpart and subsequent reinstatement for NRC-

licensees are also included. Under the provisions proposed today, a

person may petition the Administrator for reconsideration of the

rescission and seek reinstatement of subpart T under Sec. 61.226(a)

which provides for programmatic and site-specific reinstatement. If

reconsideration is initiated it must be conducted pursuant to notice

and comment rulemaking. It is important that any alleged failures by

NRC or an affected Agreement State to implement and enforce the

regulations governing uranium mill tailings or the applicable license

requirements be addressed in a timely manner. These provisions are

intended to ensure that persons may seek recourse from the

Administrator if they are adversely affected by the failure of NRC or

an affected Agreement State to implement and enforce, in significant

part, on a programmatic and a site-specific basis the regulations

governing the disposal of uranium mill tailings promulgated by EPA and

NRC, requirements of the tailings closure plan or operating license

requirements establishing milestones for the purpose of emplacing a

permanent radon barrier that will achieve compliance with the 20 pCi/

m\2\-s flux standard. Thus, EPA is proposing to establish a non-

discretionary duty to take final action granting or denying an

authorized petition for reconsideration of the rescission of subpart T

within 300 days of receipt of the petition. If EPA grants such petition

it would then proceed to initiate rulemaking to reinstate subpart T.

This rulemaking, however, is not subject to the 300 day time period.

This schedule is intended to provide EPA and NRC adequate time to

resolve any potential problems identified by a petition. Failure to

meet this deadline may be subject to an action in District Court under

CAA section 304 to order that EPA take final action on the petition.

Review of that final response would be in the Circuit Court of Appeals

under CAA section 307(b). If EPA grants such a petition and initiates

rulemaking to reinstate subpart T, then final agency action would not

occur until EPA had concluded such rulemaking. Consistent with the

settlement agreement, EPA may propose to grant or deny the petition

within 120 days of receipt, allow a comment period of at least 60 days,

and take final action granting or denying the petition within 120 days

of the close of the comment period.

Under the proposed procedures, EPA shall summarily dismiss without

prejudice a Sec. 61.226(a) petition to reconsider the rescission and

seek reinstatement of subpart T on a programmatic basis, unless the

petitioner demonstrates that it provided written notice of the alleged

failure to NRC or an affected Agreement State at least 60 days before

filing its petition with EPA. This notice to NRC must include a

statement of the grounds for such a petition. This notice requirement

may be satisfied, among other ways, by submissions or pleadings

submitted to NRC during a proceeding conducted by NRC. The purpose of

this advance notice requirement is to provide NRC or an affected

Agreement State with an opportunity to address the concerns raised by

the potential petitioner. Additionally, EPA shall summarily dismiss

without prejudice a section 61.226(a) petition to reconsider the

rescission and seek reinstatement of subpart T on a site-specific

basis, unless the petitioner demonstrates that it provided, at least 60

days before filing its petition with EPA, a written request to NRC or

an affected Agreement State for enforcement or other relief, and unless

the petitioner alleges that NRC or the affected Agreement State failed

to respond to such request by taking action, as necessary, to assure

timely implementation and enforcement of the 20 pC1/m2-s flux

standard. This provision is intended to provide NRC or an Agreement

State with an opportunity to address the concerns raised by the

potential petitioner through its standard enforcement mechanisms.

The Administrator may also initiate reconsideration of the

rescission and reinstatement of subpart T as applied to owners and

operators of non-operational uranium mill tailings disposal sites if

EPA believes it is appropriate to do so. For example, EPA may initiate

such reconsideration if it has reason to believe that NRC or an

affected Agreement State has failed to implement and enforce, in

significant part, the regulations governing the disposal of uranium

mill tailings promulgated by EPA and NRC or the tailings closure plan

(radon) requirements establishing milestones for the purpose of

emplacing a permanent radon barrier that will achieve compliance with

the 20 pCi/m2-s flux standard. Before the Administrator initiates

reconsideration of the rescission and reinstatement of subpart T, EPA

shall consult with NRC prior to initiating a rulemaking to address

EPA's concerns. If the consultation does not resolve the concerns, EPA

shall provide NRC with 60 days notice of the Agency's intent to

initiate rulemaking to reinstate this subpart.

Upon completion of a reconsideration rulemaking, EPA may: (1)

Reinstate subpart T on a programmatic basis if EPA determines, based on

the record, that NRC has significantly failed to implement and enforce,

in significant part, on a programmatic basis, (a) the regulations

governing the disposal of uranium mill tailings promulgated by EPA and

NRC or (b) the operating license requirements establishing milestones

for the purpose of emplacing a permanent radon barrier that will

achieve compliance with the 20 pCi/m\2\-s flux standard; (2)

reinstatement subpart T on a site-specific basis if EPA determines,

based on the record, the NRC or an affected Agreement State has

significantly failed to implement and enforce, in significant part, on

a site-specific basis, (a) the regulation governing the disposal of

uranium mill tailings promulgated by EPA and NRC or (b) the operating

license requirements establishing milestones for the purpose of

replacing a permanent radon barrier will not achieve compliance with

the 20 pCi/m\2\-s flux standard; or (3) issue a finding that NRC is

implementing and enforcing on either a site-specific or programmatic

basis the regulations operating license requirements described above

and that reimbursement of subpart T is not appropriate.

The proposed regulations establish an obligation for the

Administrator to reinstate subpart T as applied to owners and operators

of non-operational uranium mill tailings disposal sites if the

Administrator determines by rulemaking, based on the record, that NRC

or an affected Agreement State has failed on a programmatic basis to

implement and enforce, in significant part, the regulations governing

the disposal of uranium mill tailings promulgated by EPA and NRC or the

tailings closure plan (radon) requirements establishing milestones for

the purpose of emplacing a permanent radon barrier that will achieve

compliance with the 20 pCi/m\2\-s flux standard. The Administrator also

shall reinstate subpart T on a site-specific basis as applied to owner

and operators of non-operational uranium mill tailings disposal sites

if the Administrator determines by rulemaking, based on the record,

that NRC or an affected Agreement State has failed on a site-specific

basis to achieve compliance by the operator of the site or sites with

applicable license requirements, regulations, or standards implemented

by NRC and the affected Agreement States. Under today's proposal, EPA

shall reinstate subpart T only for the failures enumerated in the

preceding sentence that may reasonably be anticipated to significantly

interfere (i.e., more than de minimis) with the timely emplacement of a

permanent radon barrier constructed to achieve compliance with the 20

pCi/m\2\-s flux standard at uranium mill tailings disposal sites. EPA

intends ``in significant part'' to mean that in rescinding subpart T,

EPA must find that NRC or an affected Agreement State is implementing

and enforcing, on a programmatic and a site-specific basis: (1) The

regulations governing the disposal of uranium mill tailings promulgated

by EPA and NRC consistent with the MOU and settlement agreement and (2)

the tailings closure plan (radon) requirements establishing milestones

for the purpose of emplacing a permanent radon barrier that will

achieve compliance with the 20 pCi/m\2\-s flux standard in a manner

that is not reasonably expected to materially (i.e., more than de

minimis) interfere with compliance with the 20 pCi/m\2\-s flux standard

as expeditiously as practicable considering technological feasibility

(including factors beyond the control of the licensee). Reinstatement

would require an EPA finding that NRC or an affected Agreement State

has failed to implement and enforce in this manner.

IV. Request for Comments

EPA requests comments on its proposed determination that the NRC

regulatory program protects public health with an ample margin of

safety, including comments on whether: (1) EPA has effectively

promulgated appropriate revisions to 40 CFR part 192, subpart D; (2)

NRC's regulations at 10 CFR part 40, appendix A either already

adequately and appropriately implement the revisions to EPA's

regulations, or may reasonably be expected to do so prior to rescission

of subpart T; (3) the revision of NRC and affected Agreement State

licenses reflect the new requirements of subpart D; and (4) any

judicial or administrative challenge to EPA or NRC regulations is

expected to present a significant risk of interference with full

compliance with the MOU and the settlement agreement. Additionally, EPA

requests comments on the proposed reconsideration provisions described

above and included in a new section 61.226 added to subpart T. In

particular EPA requests comments as to whether these provisions

effectively implement the regulatory approach of the MOU and settlement

agreement, especially the terms providing specific time periods for a

reconsideration rulemaking.

v. Miscellaneous

A. Paperwork Reduction Act

There are no information collection requirements in this proposed

rule.

B. Executive Order 12866

Under Executive Order 12866, (58 FR 57735, October 4, 1993) the

Agency must determine whether this regulation, if promulgated, is

``significant'' and therefore subject to OMB review and the

requirements of the Executive Order. The Order defines ``significant

regulatory action'' as one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or

adversely affect in a material way the economy, a sector of the

economy, productivity, competition, jobs, the environment, public

health or safety, or State, local or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an

action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants,

user fees, or loan programs or the rights and obligations of recipients

thereof; or

(4) Raise novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles set forth in

the Executive Order.

This action is not a significant regulatory action as that term is

defined in Executive Order 12866, since it will not result in an annual

effect on the economy of $100 million or another adverse economic

impact; it does not create a serious inconsistency or interfere with

another agency's action; it does not materially alter the budgetary

impacts of entitlements, grants, user fees, etc.; and it does not raise

novel legal or policy issues. Thus, EPA has determined that rescinding

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

tailings disposal sites that are licensed by the NRC or an affected

Agreement State is not a ``significant regulatory action'' under the

terms of Executive Order 12866 and is therefore not subject to OMB

review.

C. Regulatory Flexibility Analysis

Section 603 of the Regulatory Flexibility Act, 5 U.S.C. 603,

requires EPA to prepare and make available for comment an ``initial

regulatory flexibility analysis'' which describes the effect of the

proposed rule on small business entities. However, section 604(b) of

the Act provides that an analysis not be required when the head of an

Agency certifies that the rule will not, if promulgated, have a

significant economic impact on a substantial number of small entities.

Most firms that own uranium mill tailings piles are divisions or

subsidiaries of major U.S. and international corporations. Many are

parts of larger diversified mining firms which are engaged in a number

of raw materials industries; the disposal of uranium mill tailings

piles represents only a small portion of their overall operations.

Others are owned by major oil companies and electric utilities which

were engaged in horizontal and vertical integration, respectively,

during the industry's growth phase in the 1960s and 1970s.

It was found in 1989 rulemaking that there was no significant

impact on small business entities. There has been no change in this,

and no new tailings piles have been constructed since 1989. I certify

that this proposed rule to rescind 40 CFR part 61, subpart T as applied

to owners and operators of NRC licensed non-operational uranium mill

tailings disposal sites, if promulgated as a final rule, will not have

significant economic impact on a substantial number of small entities.

List of Subjects in 40 CFR Part 61

Environmental protection, Air pollution control, Arsenic, Asbestos,

Benzene, Beryllium, Hazardous substances, Mercury, Radionuclides,

Radon, Reporting and recordkeeping requirements, Uranium, Vinyl

chloride.

Dated: January 31, 1994.

Carol M. Browner,

Administrator.

Part 61 of chapter I of title 40 of the Code of Federal Regulations

is proposed to be amended as follows:

PART 61--[AMENDED]

1. The authority citation for part 61 continues to read as follows:

Authority: 42 U.S.C. 7401, 7412, 7414, 7416, 7601.

2. Section 61.220 is revised to read as follows:

Sec. 61.220 Designation of facilities.

(a) The provisions of this subpart apply to owners and operators of

all sites that are used for the disposal of tailings, and that managed

residual radioactive material during and following the processing of

uranium ores, commonly referred to as uranium mills and their

associated tailings, that are listed in, or designated by the Secretary

of Energy under Title I of the Uranium Mill Tailings Radiation Control

Act of 1978.

(b) [Reserved]

3. Section 61.221 is amended by revising the introductory text,

paragraphs (a) and (c) and by adding paragraphs (d) and (e) to read as

follows:

Sec. 61.221 Definitions.

As used in this subpart, all terms not defined here have the

meanings given them in the Clean Air Act or subpart A of Part 61. The

following terms shall have the following specific meanings:

(a) Long term stabilization means the addition of material on a

uranium mill tailings pile for purpose of ensuring compliance with the

requirements of 40 CFR 192.02(a). These actions shall be considered

complete when the Nuclear Regulatory Commission determines that the

requirements of 40 CFR 192.02(a) have been met.

* * * * *

(c) Residual radioactive materials means: (1) Waste (which the

Secretary determines to be radioactive) in the form of tailings

resulting from the processing of ores for the extraction of uranium and

other valuable constituents of the ores; and (2) Other waste (which the

Secretary determines to be radioactive) at a processing site which

relate to such processing, including any residual stock of unprocessed

ores or low grade materials.

(d) Tailings means the remaining portion of a metal-bearing ore

after some or all of such metal, such as uranium, has been extracted.

(e) In significant part means in a manner that is not reasonably

expected to materially (i.e., more than de minimis) interfere with

compliance with the 20 pCi/m\2\-s flux standard as expeditiously as

practicable considering technological feasibility (including factors

beyond the control of the licensee).

4. Section 61.222 is amended by revising paragraph (b) to read as

follows:

Sec. 61.222 Standard.

* * * * *

(b) Once a uranium mill tailings pile or impoundment ceases to be

operational it must be disposed of and brought into compliance with

this standard within two years of the effective date of the standard.

If it is not physically possible for an owner or operator to complete

disposal within that time, EPA shall, after consultation with the mill

owner or operator, establish a compliance agreement which will assure

that disposal will be completed as quickly as possible.

5. Section 61.223 is amended by revising paragraph (b)(5) to read

as follows:

Sec. 61.223 Compliance procedures.

* * * * *

(b) * * *

(5) Each report shall be signed and dated by a public official in

charge of the facility and contain the following declaration

immediately above the signature line:

I certify under penalty of law that I have personally examined

and am familiar with the information submitted herein and based on

my inquiry of those individuals immediately responsible for

obtaining the information, I believe that the submitted information

is true, accurate and complete. I am aware that there are

significant penalties for submitting false information including the

possibility of fine and imprisonment. See, 18 U.S.C. 1001.

6. Section 61.226 is added to subpart T to read as follows:

Sec. 61.226 Reconsideration of rescission and reinstatement of this

subpart.

(a) Reinstatement of this subpart.

(1) The Administrator shall reinstate 40 CFR part 61, subpart T as

applied to owners and operators of non-operational uranium mill

tailings disposal sites that are licensed by the NRC or an affected

Agreement State if the Administrator determines by rulemaking, based on

the record, that NRC or an affected Agreement State has:

(i) Failed on a programmatic basis to implement and enforce, in

significant part, the regulations governing the disposal of uranium

mill tailings promulgated by EPA and NRC or the tailings closure plan

(radon) (i.e., contained in the operating license) requirements

establishing milestones for the purpose of emplacing a permanent radon

barrier that will achieve compliance with the 20 pCi/m\2\-s flux

standard; and

(ii) Those failures may reasonably be anticipated to significantly

interfere (i.e., more than de minimis) with the timely emplacement of a

permanent radon barrier constructed to achieve compliance with the 20

pCi/m\2\-s flux standard at uranium mill tailings disposal sites.

(2) The Administrator shall reinstate 40 CFR part 61, subpart T on

a site-specific basis as applied to owners and operators of non-

operational uranium mill tailings disposal sites that are licensed by

the NRC or an affected Agreement State if the Administrator determines

by rulemaking, based on the record:

(i) That NRC or an affected Agreement State has failed on a site-

specific basis to achieve compliance by the operator of the site or

sites with applicable license requirements, regulations, or standards

implemented by NRC and the affected Agreement States; and

(ii) Those failures may reasonably be anticipated to significantly

interfere (i.e., more than de minimis) with the timely emplacement of a

permanent radon barrier constructed to achieve compliance with the 20

pCi/m\2\-s flux standard at uranium mill tailings disposal sites.

(b) Procedures to Petition for Reconsideration of Rescission of

this subpart.

(1) A person may petition the Administrator to reconsider the

rescission and seek reinstatement of this subpart under Sec. 61.226(a).

(2) EPA shall summarily dismiss a petition to reconsider rescission

and seek reinstatement of this subpart under Sec. 61.226(a)(1)

(programmatic basis), without prejudice, unless the petitioner

demonstrates that written notice of the alleged failure(s) was provided

to NRC at least 60 days before filing the petition with EPA. This

notification shall include a statement of the grounds for such a

petition and this notice requirement may be satisfied by, but is not

limited to, submissions or pleadings submitted to NRC during a

proceeding conducted by NRC.

(3) EPA shall summarily dismiss a petition to reconsider rescission

and seek reinstatement of this subpart under Sec. 61.226(a)(2) (site-

specific basis), without prejudice, unless the petitioner demonstrates

that a written request was made to NRC or an affected Agreement State

for enforcement or other relief at least 60 days before filing its

petition with EPA, and unless the petitioner alleges that NRC or the

affected Agreement State failed to respond to such request by taking

action, as necessary, to assure timely implementation and enforcement

of the 20 pCi/m\2\-s flux standard.

(4) Upon receipt of a petition under Sec. 61.226(b)(1) that is not

dismissed under Sec. 61.226 (b)(2) or (b)(3), EPA will propose to grant

or deny an authorized petition to reconsider, take comments on the

Agency's proposed action, and take final action granting or denying

such petition to reconsider within 300 days of receipt.

(c) Reconsideration of Rescission of this subpart Initiated by the

Administrator.

(1) The Administrator may initiate reconsideration of the

rescission and reinstatement of this subpart as applied to owners and

operators of non-operational uranium mill tailings disposal sites if

EPA has reason to believe that NRC or an affected Agreement State has

failed to implement and enforce, in significant part, the regulations

governing the disposal of uranium mill tailings promulgated by EPA and

NRC or the tailings closure plan (radon) requirements establishing

milestones for the purpose of emplacing a permanent radon barrier that

will achieve compliance with the 20 pCi/m\2\-s flux standard.

(2) Before the Administrator initiates reconsideration of the

rescission and reinstatement of this subpart under Sec. 61.226(c)(1),

EPA shall consult with NRC to address EPA's concerns and if the

consultation does not resolve the concerns, EPA shall provide NRC with

60 days notice of the Agency's intent to initiate rulemaking to

reinstate this subpart.

[FR Doc. 94-2693 Filed 2-3-94; 10:05 am]

BILLING CODE 6506-50-P