Administrative Reporting Exemptions for Certain Radionuclide Releases

SUMMARY: This notice of proposed rulemaking requests comments on

broader administrative exemptions from the release reporting

requirements under the Comprehensive Environmental Response,

Compensation, and Liability Act of 1980, as amended, and the Emergency

Planning and Community Right-to-Know Act. In particular, the

Environmental Protection Agency (EPA) is proposing to grant reporting

exemptions for releases of naturally occurring radionuclides associated

with land disturbance incidental to extraction activities at certain

kinds of mines, and coal and coal ash piles at all kinds of sites. EPA

also is requesting comments on two alternatives to these exemptions.

These reporting exemptions are being proposed in response to

comments on a November 30, 1992 proposed rule on administrative

reporting exemptions (57 FR 56726).

EPA thoroughly evaluated the radionuclide concentrations in various

mining materials, coal, and coal ash relative to background levels to

determine the scope of the proposed reporting exemptions; thus, this

document reflects a sound, scientific approach. The exemptions would be

consistent with the Agency's common sense goals in that they would

eliminate unnecessary reporting burdens and allow EPA to focus its

resources on the most serious releases. The reporting exemptions would

result in an estimated net cost savings to industry of approximately

$455,000 annually.

DATES: Comments must be submitted on or before October 3, 1995.

ADDRESSES: Submittal of Comments: Comments should be submitted in

triplicate (no facsimiles or tapes) to: Docket Coordinator,

Headquarters; U.S. EPA; CERCLA Docket Office; (Mail Code 5201G); 401 M

Street, SW; Washington, DC 20460; 703/603-8917. Please note that this

is the mailing address only. Documents are available for viewing, by

appointment only, at the address provided below in the ``Document

Viewing'' section.

Document Viewing: Copies of materials relevant to this rulemaking

are contained in Docket Number 102RQ-RN-2 at EPA Headquarters at the

following address: U.S. EPA CERCLA Docket Office (Mail Code 5201G),

Crystal Gateway #1, 12th Floor, 1235 Jefferson Davis Highway,

Arlington, VA 22202. The docket is available for viewing, by

appointment only, after the appearance of this rule. An appointment to

view the docket can be made by calling the Docket Coordinator at 703/

603-8917. The hours of operation for the Headquarters docket are from 9

a.m. to 4 p.m., Monday through Friday, excluding Federal holidays.

Please note that this is the visiting address only. Mail comments to

the address listed above in the ``Submittal of Comments'' section.

The public may copy a maximum of 266 pages from any regulatory

docket at no cost. If the number of pages copied exceeds 266, however,

an administrative fee of $25 and a charge of $0.15 per page for each

page after page 266 will be incurred. The docket will mail copies of

materials to requestors who are outside the Washington, DC metropolitan

area.

Release Notification: The toll-free telephone number of the

National Response Center is 800/424-8802; in the Washington, DC

metropolitan area, the number is 202/267-2675. The facsimile number for

the National Response Center is 202/267-2165 and the telex number is

892427.

FOR FURTHER INFORMATION CONTACT: The RCRA/UST, Superfund, and EPCRA

Hotline at 800/424-9346 (in the Washington, DC metropolitan area,

contact 703/412-9810); the Telecommunications Device for the Deaf (TDD)

Hotline at 800/553-7672 (in the Washington, DC metropolitan area,

contact 703/486-3323); or Ms. Gerain H. Perry, Response Standards and

Criteria Branch, Emergency Response Division (5202G), U.S.

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

20460, or at 703/603-8760.

SUPPLEMENTARY INFORMATION: The contents of today's preamble are listed

in the following outline:

I. Introduction

A. Statutory Authority

B. Background of this Rulemaking

C. Consultation and Outreach Activities

II. Regulatory Reporting Exemptions

A. Proposed Exemptions

B. Alternative Exemptions

III. Regulatory Analyses

A. Executive Order 12866

B. Regulatory Flexibility Act

C. Paperwork Reduction Act

D. Unfunded Mandates

I. Introduction

A. Statutory Authority

The Comprehensive Environmental Response, Compensation, and

Liability Act of 1980 (CERCLA) (Pub. L. 96-510), 42 U.S.C. 9601 et

seq., as amended, established broad Federal authority to respond to

releases or threats of releases of hazardous substances from vessels

and facilities. Section 101(14) of CERCLA defines the term ``hazardous

substance'' primarily by reference to various Federal environmental

statutes.

Under section 103(a) of CERCLA, the person in charge of a vessel or

facility from which a CERCLA hazardous substance has been released in

an amount equal to or greater than its reportable quantity (RQ) must

immediately notify the National Response Center (see 40 CFR 302.6). In

addition, the person in charge of a facility from which a CERCLA

hazardous substance has been released in an amount equal to or greater

than its RQ must immediately notify State and local response

authorities, as required by section 304 of the Emergency Planning and

Community Right-to-Know Act of 1986 (EPCRA) (Pub. L. 99-499), 42 U.S.C.

11001 et seq. (see 40 CFR 355.40). As established by EPA in an earlier

RQ rulemaking (50 FR 13463, April 4, 1985), a 24-hour period is used

for measuring whether an RQ or more of a hazardous substance has been

released (i.e., only releases of an RQ or more within 24 hours need to

be reported) (see 40 CFR 302.6(a)).

Section 102(b) of CERCLA establishes RQs at one pound for releases

of hazardous substances, except for those substances for which RQs were

established pursuant to section 311(b)(4) of the Clean Water Act (CWA).

Section 102(a) of CERCLA authorizes EPA to adjust the RQs for all

hazardous substances by regulation.

A major purpose of the section 103(a) notification requirements is

to alert the appropriate government officials to releases of hazardous

substances that may require a response to protect public health or

welfare or the environment. EPA emphasizes that an RQ is merely a

trigger for informing the government of a release so that the

appropriate government personnel can evaluate the need for a response

action and can undertake any necessary response action in a timely

fashion. Federal personnel evaluate all reported releases, but in some

cases will not initiate a response because the release of an RQ does

not pose a hazard in all circumstances. Government personnel assess

each reported release on a case-

[[Page 40043]]

by-case basis to determine the appropriate response action, if any.

CERCLA sections 102(a), 103, and 115 (the general rulemaking

authority under CERCLA) together provide EPA with authority to grant

administrative reporting exemptions. Such exemptions may be granted for

releases of hazardous substances that pose little or no risk or to

which a Federal response is infeasible or inappropriate. Requiring

reports of such releases serves little or no useful purpose and could,

instead, impose a significant burden on the Federal response system and

on the persons responsible for notifying the Federal government of the

release. Through such reporting exemptions, therefore, the Federal

response system is able to more efficiently implement CERCLA and EPCRA

and more effectively focus on reports of releases that are more likely

to pose a significant hazard to human health and the environment.

B. Background of This Rulemaking

Radionuclides are CERCLA hazardous substances because they are

listed as hazardous air pollutants under section 112 of the Clean Air

Act. Radionuclides initially had a one-pound RQ as established by

CERCLA section 102(b). EPA recognized that an RQ of one pound for

radionuclides was not appropriate because radionuclides are not

generally measured in units of pounds, and releases of much less than

one pound of radionuclides may present a substantial threat to public

health or welfare or the environment. On March 16, 1987, EPA published

a Notice of Proposed Rulemaking (NPRM) to adjust the RQ for

radionuclide releases (52 FR 8172), with the comment period ending on

May 15, 1987. A total of 28 comment letters, totaling about 150 pages,

were received. The comments received, together with the Agency's

responses, are contained in ``Responses to Comments on the Notice of

Proposed Rulemaking on the Adjustment of Reportable Quantities for

Radionuclides'' (Responses to Comments), which is available for

inspection in Docket Number 102RQ-RN located at the U.S. EPA CERCLA

Docket Office (Mail Code 5201G), Crystal Gateway #1, 12th Floor, 1235

Jefferson Davis Highway, Arlington, VA 22202.

The Agency promulgated a final rule (54 FR 22524; May 24, 1989) to

adjust the RQs for all (approximately 1,500) radionuclides. In

preparing the final rule, EPA considered carefully all of the public

comments submitted on the proposals made in the March 16, 1987 NPRM.

The final rule granted four administrative exemptions from CERCLA

section 103 and EPCRA section 304 reporting requirements based on those

comments. In particular, the Agency exempted: (1) Releases of naturally

occurring radionuclides from large generally undisturbed land holdings,

such as golf courses and parks; (2) releases of radionuclides naturally

occurring from the disturbance of large areas of land for purposes

other than mining, such as farming or building construction; (3)

releases of radionuclides from the dumping of coal and coal ash at

utility and industrial facilities with coal-fired boilers; and (4)

radionuclide releases to all media from coal and coal ash piles at

utility and industrial facilities with coal-fired boilers.

Following the final rulemaking, the American Mining Congress (AMC),

The Fertilizer Institute (TFI), and others challenged the rule in the

United States Court of Appeals for the District of Columbia in TFI v.

EPA (935 F2d 1303). In the litigation, AMC and TFI argued that EPA

violated the Administrative Procedure Act (APA) by failing to provide

notice and opportunity to comment on the proposed exemptions. The

petitioners also argued that it was arbitrary and capricious for EPA to

discriminate against mining by excluding it from the land disturbance

exemption.

The Court found that the administrative reporting exemptions were

improperly promulgated because EPA failed to provide adequate notice

of, and opportunity for public comment on, those exemptions. The Court,

however, left the four exemptions in place while the Agency undertakes

a new round of notice and comment rulemaking.

In a proposed rule published on November 30, 1992 (57 FR 56726),

the Agency complied with the Court's decision by providing notice of,

and requesting comment on, the same four exemptions from CERCLA section

103 and EPCRA section 304 notification requirements that were

promulgated in the 1989 final radionuclide RQ adjustment regulation.

EPA requested that public comments on the November 30, 1992 proposal be

submitted by January 29, 1993. In response to several requests for an

extension to the comment period, and in the interest of allowing the

public greater opportunity to evaluate the issues raised in the

November 30, 1992 NPRM, EPA re-opened the public comment period for an

additional 60 days beginning on March 5, 1993 (58 FR 12876). All

background materials and public comments related to the November 30,

1992 proposal are available for inspection in Docket Number 102RQ-RN-1

located at the U.S. EPA CERCLA Docket Office (Mail Code 5201G), Crystal

Gateway #1, 12th Floor, 1235 Jefferson Davis Highway, Arlington, VA

22202.

A total of 27 comment letters, totalling more than 750 pages, were

received on the November 30, 1992 NPRM, including two after the initial

deadline and one after the close of the second comment period. These

comments raised a number of issues that the Agency cannot resolve

without additional information and analysis. Chief among these issues

are:

--Do radionuclide releases from land disturbance incidental to

extraction activities at mines pose a greater risk than such releases

from farming and construction?

--Do coal and coal ash piles at sites without coal-fired boilers (e.g.,

coal piles at mines, railroad stockyards, and steel mills, and coal ash

disposed of in off-site landfills) pose a greater radiological threat

than such piles at boiler sites?

--Is the government likely to respond to radionuclide releases from

land disturbance incidental to extraction activities or coal and coal

ash piles at non-boiler sites, and if so, what response realistically

can be taken?

After reviewing the public comment letters and evaluating these

issues, the Agency has decided to issue this supplemental proposal

requesting information and comment on expanded reporting exemptions for

certain radionuclide releases.

C. Consultation and Outreach Activities

EPA has undertaken a number of activities to involve interested

stakeholders in considering and developing this supplemental proposal.

The November 30, 1992 NPRM served as a basis for informing and

soliciting comments from all parties on the original reporting

exemptions for four categories of radionuclide releases. Comment

letters from mining trade organizations, individual mining companies,

electric power generators and trade organizations, railroads, steel

manufacturers, private citizens, States, and others were received and

served as the prime impetus for considering broader exemptions. At

their request, EPA met with representatives of AMC and TFI on January

22, 1993 to hear their issues and concerns regarding the November 30,

1992 NPRM. Following this meeting and the receipt of requests submitted

by commenters, EPA re-opened the public comment period for an

additional 60 days to give

[[Page 40044]]

stakeholders ample opportunity to fully address their concerns. EPA

then met again with representatives of AMC and TFI, at their request,

on February 25, 1994 to receive further information and hear their

views on the matter.

This supplemental proposal was developed based on careful

consideration of all information and comments received since the

reporting exemptions for certain radionuclide releases were originally

promulgated. EPA will develop a final rule on this matter based on

combined information and comments received on both the November 30,

1992, NPRM and this supplemental proposal.

II. Regulatory Reporting Exemptions

A. Proposed Exemptions

EPA is proposing to broaden the present reporting exemption for

land disturbance activities to include land disturbance incidental to

extraction activities at all mines except certain categories of mines

that are likely to handle raw materials with ``elevated'' radionuclide

concentrations. The particular types of mines that would not be within

the scope of the reporting exemption would be uranium, phosphate, tin,

titanium, zirconium, hafnium, vanadium, and rare earth mines. For the

purpose of this preamble and proposed rule, mines that extract monazite

(a particular kind of rare earth mineral) for its thorium content are

considered rare earth mines. Releases of naturally occurring

radionuclides from land disturbance at all other types of mines would

be exempted from CERCLA section 103 and EPCRA section 304 reporting

requirements. For the purpose of this proposal, land disturbance

incidental to extraction activities would include land clearing,

overburden removal and stockpiling, and excavating, handling,

transporting, and storing ores and other raw materials. Beneficiation

and mineral processing activities, including the associated handling,

transporting, and storing of bulk materials, would not be included

within the scope of the exemption because such operations may tend to

(1) concentrate radionuclides in waste streams or other materials well

above natural background levels, and/or (2) result in substantially

greater releases than associated with land disturbance incidental to

extraction (e.g., smokestack emissions from smelters may far exceed

fugitive releases from mining). Additionally, this broader exemption

would exempt radionuclide releases from the subject land disturbance

activities only from CERCLA section 103 and EPCRA section 304 reporting

requirements, not from CERCLA response or liability provisions.

EPA also is proposing to broaden the existing exemptions for coal

and coal ash piles to include radionuclide releases to and from coal

and coal ash piles at all kinds of sites, not just sites where there is

a coal-fired boiler. As with the broader land disturbance exemption,

this exemption for coal and coal ash piles would apply only to CERCLA

section 103 and EPCRA section 304 reporting requirements, not to the

related response or liability provisions. In the 1989 final

radionuclide RQ adjustment rulemaking, the reporting exemptions for

radionuclide releases to and from coal and coal ash piles at boiler

sites were granted based both upon the risks posed and the

appropriateness of a federal response to such releases under CERCLA (54

FR 22529, May 24, 1989). The exemptions were limited to only boiler

sites because there was sufficient information available to quantify

the radiological risks of coal and coal ash piles at boiler sites, but

not other kinds of sites. As discussed in more detail below, EPA is

proposing today that a quantitative risk assessment is not necessary to

support a CERCLA and EPCRA reporting exemption, if threshold questions

about the appropriateness and feasibility of a federal response can be

answered by a simple determination that radionuclide releases are at or

near natural background levels. While this approach would be a

departure from the detailed risk analysis performed for coal and coal

ash piles at boiler sites, it would in fact be consistent with the

original exemptions granted for undisturbed land holdings and land

disturbance activities such as farming and construction, which were

based on a qualitative review of radionuclide releases relative to

background rather than a quantitative risk assessment.

EPA is proposing these broader exemptions for three primary

reasons, which apply equally to both land disturbance at certain mines

and to coal and coal ash piles at non-boiler sites. First, the

concentrations of naturally occurring radionuclides in the different

materials that would be subject to the exemption (e.g., overburden and

ores in the subject mining sectors, coal, and coal ash) are generally

within the range of ``typical'' background concentrations in surficial

rocks and soils in the U.S. Second, EPA believes that a CERCLA

response, to the release otherwise reportable, would be very unlikely

and possibly infeasible or inappropriate, because (1) the

concentrations of materials being handled are at or near background,

and (2) the resulting radionuclide releases are expected to be

continuously low, spread over large areas, and widely dispersed in the

environment. Third, the submission of individual notifications of these

releases does not appear necessary for the government to assess whether

a response action is needed, since the releases should be similarly low

across all sites subject to the broader exemptions. As a result, the

broader reporting exemptions are intended to allow EPA to focus its

resources on the most serious releases and to protect public health and

welfare and the environment more effectively and efficiently. At the

same time, the exemptions would eliminate unnecessary reporting burdens

on persons responsible for land disturbance at certain mine sites and

any sites where coal or coal ash is stored or disposed.

With respect to radionuclide concentrations, EPA reviewed available

data on the concentrations of naturally occurring radionuclides in

surficial rocks and soils, as well as in various ores, coal, and coal

ash. These data are presented in a Technical Background Document

(``Technical Background Document Supporting Proposed Administrative

Reporting Exemptions for Certain Releases of Radionuclides'') available

for inspection in the U.S. EPA CERCLA Docket Office (Mail Code 5201G),

Crystal Gateway #1, 12th Floor, 1235 Jefferson Davis Highway,

Arlington, VA 22202. As discussed in more detail in this document,

typical concentrations of uranium-238, thorium-232, and their

respective decay products in surficial rocks and soils in the U.S.

hover around 1 picocurie per gram (pCi/g), although data developed by

Myrick et al.1 and other researchers show that uranium-238

concentrations may range from 0.12 to 3.8 pCi/g and thorium-232

concentrations may range from 0.10 to 3.4 pCi/g. Concentrations well

above these typical values, however, are known to occur in certain hot

spot areas of the country. For example, elevated radioactivity has been

observed in association with certain faults and shear zones in the

Reading Prong region of Pennsylvania, New York, and New Jersey, with

uranium-238 concentrations as high as 27 pCi/g being reported in one

``profound case.'' 2 Similarly, uranium-238 concentrations

[[Page 40045]]

of 20 pCi/g or more have been observed in isolated spots in central

Florida where phosphate deposits are exposed or near the land surface.

\1\ Myrick, T.E., B.A. Berven, and F.F. Haywood, ``Determination

of Concentrations of Selected Radionuclides in Surface Soil in the

U.S.,'' Health Physics, Vol. 45, No. 3 (September), pp. 631-642,

1983.

\2\ Smith et al., ``Radon: A Profound Case,'' Pennsylvania

Geology, Volume 18, No. 2, p. 1-7, 1987.

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Available data indicate that the radionuclide concentrations in

many mining materials, coal, and coal ash are generally within the

range reported for typical background. For example, as shown in the

Technical Background Document supporting this proposed rule, all

available data on the uranium-238 and thorium-232 concentrations in

iron ore, zinc ore, limestone, clay, and fluorspar are within the range

reported by Myrick et al. for background surface soils. Ninety-eight

percent of all coal samples analyzed in support of EPA's 1989 final

airborne emission standards for radionuclides were also within the

typical background range; concentrations significantly above this range

(between 20 and 43 pCi/g of uranium-238) were observed in only two out

of more than 3,700 coal samples analyzed. The radioactivity of coal ash

is usually higher than that of coal (estimated to be about ten times

higher). However, typical coal ashes are expected to contain 4.3 pCi/g

of uranium-238 and 3.5 pCi/g of thorium-232, which are only slightly

higher than the background range reported by Myrick et al. Bauxite

(aluminum) ore also can contain radionuclide concentrations that are

slightly elevated compared to normal background (around 6 pCi/g of

thorium-232 and 7 pCi/g of uranium-238), but still relatively low

compared to the levels that naturally exist in surface rocks and soils

in some areas of the country.

Most data indicate that radionuclide concentrations in copper ores

are at or near typical background levels. For example, a 1982 EPA study

3 reports that the uranium-238 concentration in copper ore ranges

from 0.79 pCi/g at an underground mine to 2.2 pCi/g at a surface mine.

The concentration of thorium-232 is reported to range from 0.62 pCi/g

at an underground mine to 3.1 pCi/g at a surface mine. These levels

fall within the background ranges for surficial soils as reported by

Myrick et al. Elevated levels, however, have been observed in certain

copper ores from Arizona, Utah, and New Mexico (see the Technical

Background Document for more information). Based on current information

and understanding, EPA believes that many of these elevated readings

are probably reflective of a biased sampling program, and that large

site averages are likely to be lower and approaching typical background

levels. EPA requests more reliable and current data on the radionuclide

concentrations in copper ores along with comments on how these ores

should be treated for the purpose of the final reporting exemption

rule. If found to be necessary based on data and other information

submitted during the comment period, land disturbance incidental to

copper mining could be grouped with those mining sectors that would not

be granted a reporting exemption in the final rule.

\3\ U.S. EPA, ``Emissions of Naturally Occurring Radioactivity

from Aluminum and Copper Facilities,'' Office of Radiation Programs,

Las Vegas Facility, NV, EPA-520/6-82-018, 1982.

The relatively low radionuclide concentrations reported for these

different materials do not necessarily mean that the risks associated

with radionuclide releases from many types of extraction sites and coal

and coal ash piles are low or representative of undisturbed background.

Indeed, many factors associated with the nature of the materials,

management practices, and environmental and population characteristics

at these sites would need to be studied in substantially more detail

before it could be demonstrated that such risks are low in all or most

cases. However, based on the relatively low radionuclide concentrations

and the generally low-level, diffuse releases associated with the

activities involved (land disturbance incidental to mining extraction;

transporting, dumping, and storing coal; and transporting, dumping,

storing, and disposing of coal ash), EPA believes that a CERCLA removal

or remedial response to such radionuclide releases would very rarely,

if ever, be necessary. Moreover, it is not clear that it would be

feasible or practical to mount a CERCLA response at these types of

sites, since the materials in question already have radionuclide

concentrations that are likely to be at or near background and CERCLA

responses would not normally clean up to below background levels. Any

effort to remove the subject extraction materials, coal, or coal ash or

cover these materials with soil, for example, would leave exposed soils

that would have comparable concentrations of naturally occurring

radionuclides. Therefore, EPA believes that reporting exemptions are

warranted because continued evaluation and reporting of such

radionuclide releases serves no useful purpose and, in fact, places an

unnecessary burden on society. CERCLA response and liability

provisions, however, would remain intact, enabling a response if a

serious radiation threat is ever discovered by other means (e.g.,

Regional and State inspections) at an exempted mine or coal or coal ash

pile.

This same logic does not necessarily hold for other types of

extraction sites that handle ores and other raw materials that

routinely have radionuclide concentrations well above background

levels. As discussed in more detail in the Technical Background

Document supporting this proposed rule (``Technical Background Document

Supporting Proposed Administrative Reporting Exemptions for Certain

Releases of Radionuclides,'' available for inspection in the Superfund

Docket), the materials extracted at uranium, phosphate, tin, titanium,

zirconium, hafnium, vanadium, and rare earth mines can have elevated

concentrations of uranium-238 and/or thorium-232, along with their

respective decay products. For example:

-- Uranium ore has a uranium-238 concentration on the order of 280-560

pCi/g, although concentrations as high as 760 pCi/g are reported in the

literature.

-- Uranium-238 concentrations in phosphate rock range from 3-4 pCi/g in

Tennessee to 20-60 pCi/g in other States (Florida, North Carolina,

Idaho, Montana, Wyoming, and Utah). Concentrations as high as 270 pCi/g

of uranium-238 have been reported.

--No data are available on the radionuclide concentrations in

domestically mined tin ores. However, available data show that tin slag

(produced from tin ore processing) contains 17-34 pCi/g of uranium-238.

In addition, concentrated processed ores from Malaysia have been shown

to contain 1,160 to 8,830 pCi/g of thorium-238.

-- Some titanium ores (rutile and leucoxene) are reported to contain

12-14 pCi/g of uranium-238 and 1-10 pCi/g of thorium-232.

-- Zircon (zirconium and hafnium ore) has been measured to contain 13

pCi/g of radium-226, a decay product of uranium-238 (which would be

expected to be present at about the same concentration as radium-226).

Measurements of radium-226 concentrations in processed ore concentrates

from South Africa are as high as 200 pCi/g.

-- Vanadium-bearing ores are commonly the same as uranium ores, because

vanadium is often recovered as a coproduct from uranium ore. Ores

recovered primarily for their vanadium content contain lower

radionuclide concentrations than uranium ore, but still appear to

contain uranium at levels higher than typical background (in the 30 to

58 pCi/g range).

--Monazite, an ore mined for its rare earth and thorium content,

typically

[[Page 40046]]

contains 3,900 pCi/g of thorium and 1,800 pCi/g of uranium. Another

rare earth ore, bastnasite, typically contains less than 97 pCi/g of

thorium.

These concentrations generally are far above typical background

concentrations expected in surface soils across most of the U.S. (i.e.,

uranium-238 ranging from 0.12 to 3.8 pCi/g, with an average of 1 pCi/g,

and thorium-232 ranging from 0.10 to 3.4 pCi/g, with an average of 1

pCi/g). The concentrations in uranium ore, phosphate rock, and rare

earth ores (including monazite mined for its thorium content) also are

above the elevated background concentrations known to exist at or near

the land surface in certain hot spot regions of the country, such as

the Reading Prong region.

Just as the relatively low concentrations in iron, zinc, limestone,

copper, and other mining sectors proposed to be exempted do not

necessarily mean that the radiation risks are low, the relatively high

concentrations encountered during uranium, phosphate, tin, titanium,

zirconium, hafnium, vanadium, and rare earth mining do not necessarily

mean that the radiation risks at these sites are high. To the contrary,

EPA's risk analysis 4 supporting the National Emission Standards

for Hazardous Air Pollutants (NESHAPs) shows that airborne emissions of

radionuclides from surface uranium mines result in a maximally exposed

individual risk of fatal cancer of 5 x 10-5. Furthermore, U.S.

Nuclear Regulatory Commission licenses control radionuclide releases to

all media from in-situ uranium mines and an EPA NESHAP limits radon

emissions to the air from underground uranium mines (40 CFR part 61,

subpart B); as a consequence, releases in compliance with these limits

may be federally permitted under CERCLA and thus excluded from CERCLA

reporting and liability requirements.

\4\ U.S. EPA, ``Risk Assessments, Environmental Impact

Statement, NESHAPS for Radionuclides, Background Information

Document--Volume 2,'' Office of Radiation Programs, EPA/520/1-89-

006-1, Chapter 12, 1989.

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EPA believes, however, that the elevated radionuclide

concentrations in raw materials handled at uranium, phosphate, tin,

titanium, zirconium, hafnium, vanadium, and rare earth mines

distinguish such materials from the soil and rock disturbed at the vast

majority of farming and construction sites across the U.S. When these

elevated radionuclide concentrations are coupled with other factors

that tend to distinguish mining from farming and construction--

generally much larger sites, larger quantities of earthen materials

moved and stockpiled, longer-term and more frequent land disturbances

at a given site, and frequently substantially greater depths uncovered

(see the Technical Background Document for more detail)--EPA believes

there is a reasonable basis for not including uranium, phosphate, tin,

titanium, zirconium, hafnium, vanadium, and rare earth mining in the

reporting exemption for land disturbance activities. Again, this does

not mean that the radiation risks at such mines are necessarily high,

but only that, in EPA's judgment, further evaluation would be required

before it can be concluded with a sufficient degree of confidence that

such risks are indeed low and that a government response would be

unwarranted or infeasible.

Commenters wishing to support exemptions for uranium, phosphate,

tin, titanium, zirconium, hafnium, vanadium, and rare earth mining and

wishing to obtain a reporting exemption are requested to submit

particular kinds of information along with their comments on this

proposal. Data and analyses regarding the radionuclide concentrations

in ores and other raw materials handled in these mining sectors

relative to the undisturbed, naturally occurring levels at or near the

land surface around the mine sites would be especially helpful. If such

data and analyses can demonstrate that the radionuclide concentrations

in the ores and raw materials being handled are generally within the

normal background range for surficial rocks and soils in the same area,

a basis for broadening the reporting exemptions further to include

these mining sectors may exist. If such a demonstration cannot be made,

EPA requests information on special circumstances that would make a

CERCLA response to radionuclide releases at these mine sites very

unlikely, infeasible, and/or inappropriate.

These special circumstances could include a demonstration that the

radiation exposures and risks, for all radionuclides and all possible

exposure pathways (not just radon and not just the air pathway), are

low (e.g., 10-4 or lower lifetime cancer risk) for reasonably

maximally exposed individuals, including closest offsite residents and

onsite workers. Any analysis of risks should focus either on all sites

within a given mining sector or on a model site that is demonstrated to

conservatively represent other sites. Anecdotal information or basic

assertions regarding independent factors that might influence risk,

such as generalized statements that mines are commonly located in

remote areas or that radon released from mines disperses rapidly and

causes no incremental exposure above natural background radiation, are

not convincing unless supported by data and an integrated risk

analysis. Moreover, EPA believes that broad comparisons of the

cumulative amount of soil moved or the cumulative amount of radon

released at all mines versus all farming and construction sites are

immaterial, since the need for a CERCLA response hinges on the

particular conditions at any individual site, not all like sites in

aggregate.

Other special circumstances that might argue for additional

reporting exemptions include a demonstration that a CERCLA response is

infeasible or inappropriate at a particular type of mine. With respect

to this issue, the Agency wishes to point out that appropriate CERCLA

responses at mines can fall well short of covering the entire site with

soil or water, which would defeat the very purpose of extraction. For

example, it may be feasible or appropriate to cover certain waste piles

or inactive mine areas with soil or water. Many other types of response

actions have actually been taken at mine sites on the National

Priorities List, although not in response to releases of radionuclides.

These actions have included measures to control and treat mine water,

diverting and controlling stormwater runoff, dumping materials in areas

engineered for waste disposal, isolating contaminated areas with fences

and signs, providing nearby communities with alternate sources of

drinking water, excavating and removing contaminated soil, and

injecting concrete into inactive underground mine workings. If these or

other responses to radionuclide releases at mines would be infeasible

or inappropriate, EPA requests information explaining why.

B. Alternative Exemptions

As outlined below, EPA is considering two alternative approaches

for broadening the existing reporting exemptions for certain

radionuclide releases. EPA solicits comments and data to assist in

consideration of these alternatives with regard to differences in

protection of public health and welfare and the environment. All

comments on these alternatives, together with comments on the proposed

approach described above, will be considered in developing the final

rule.

[[Page 40047]]

1. Alternative 1: Exempt All Extraction and Coal and Coal Ash Piles

Under one alternative, EPA would exempt from CERCLA section 103 and

EPCRA section 304 reporting requirements radionuclide releases from

land disturbance incidental to extraction activities at all mines, as

well as coal and coal ash piles at all kinds of sites. As in the

proposed exemptions, this alternative would not exempt radionuclide

releases associated with beneficiation or processing operations that

may be located at mine sites, nor would it exempt the disposal of high

concentration materials, for example, in inactive mines.

This alternative recognizes that reporting may not serve a useful

purpose if a CERCLA response would be infeasible or inappropriate and

if a response would rarely be undertaken. A broad exemption would allow

the Agency to focus its resources on the most serious releases, and

this alternative could result in a greater reduction in reporting

burden for both industry and government and a greater cost savings

compared to the proposed exemptions.

Another factor possibly in favor of this approach is that

individual release reports and responses under CERCLA may not be the

most appropriate Federal regulatory response to radionuclide releases

from mines. EPA and other government agencies are already aware that

all mines in the U.S. are continuously releasing radionuclides to the

environment, usually in relatively low concentrations. Rather than

requiring release reports and evaluating the need for response on a

facility-by-facility basis, it may be more effective for the Agency to

study radiation threats at mines categorically and, if found to be

necessary, develop more stringent regulations under other statutes.

Such investigations focusing primarily on mining and mineral processing

wastes are already underway within EPA, including the Office of

Radiation and Indoor Air's study of diffuse naturally occurring

radioactive material (NORM) wastes and the Office of Solid Waste's

evaluation of extraction and beneficiation wastes under the Resource

Conservation and Recovery Act. Under this alternative, CERCLA response

and liability provisions would remain intact to respond to any serious

radiation threats at mine sites that are not being adequately

controlled under the existing network of regulations, but release

reporting requirements would be eliminated in deference to these or

other studies designed to address radiation threats at mines more

categorically.

Compared to the proposed exemptions, this alternative may be less

successful in contributing to CERCLA's overall goal of protecting

public health and welfare and the environment. This could be

particularly true at the few categories of mines discussed above that

are believed to handle materials with elevated concentrations of

radionuclides.

To assist in the evaluation of this alternative, EPA specifically

requests information and comment on the need to obtain reports of

radionuclide releases from uranium, phosphate, tin, titanium,

zirconium, hafnium, vanadium, and rare earth mines (including monazite

mined for its thorium content), which would have to be submitted under

the proposed exemptions but would not be required under this

alternative. Data and analyses regarding the magnitude and extent of

radiation threats (if any) at these types of mines, as well as the

feasibility and appropriateness of a CERCLA response, would be

particularly helpful in this regard. Information and comment on the

degree to which other existing regulations and programs adequately

control any radiation threats at these types of mines also would assist

in evaluating the need for CERCLA section 103 and EPCRA section 304

reporting.

2. Alternative 2: Exempt All Land Disturbance Incidental to Extraction

During Mining Activities and All Piles of Diffuse Naturally Occurring

Radioactive Material Below a Concentration Cutoff

Under another alternative, EPA would eliminate the requirement to

report releases of radionuclides from land disturbance incidental to

extraction and releases of radionuclides to and from all piles of

diffuse naturally occurring radioactive material (including extraction,

beneficiation, and mineral processing materials and wastes as well as

coal and coal ash piles at any kind of site), as long as the

concentration of naturally occurring radionuclides was below a certain

concentration threshold. Persons in charge of sites where such

materials are disturbed and/or stockpiled would have to determine the

radionuclide concentration of the material that they move or handle. If

the concentration fell below the pre-established threshold, it would

not be necessary to determine total quantities of radionuclides

released for comparison with the RQs (i.e., no release report would be

required, regardless of the total quantity released). However, if the

concentration exceeded the threshold, it then would be necessary to

determine quantities released and to submit a report if the RQs were

met or exceeded.

EPA is considering a concentration cutoff because there may be very

little benefit in requiring reports when more than an RQ of naturally

occurring radionuclides is released from diffuse sources (such as land

clearing, overburden removal and stockpiling, and excavating, handling,

transporting, dumping, and storing ores, beneficiation or mineral

processing materials and wastes, coal, and coal ash) that continuously

emit radionuclides in low concentrations spread over large areas. In

developing the adjusted radionuclide RQs, the Agency determined

quantities that may result in unacceptable human exposures under a

conservative hypothetical scenario in which radionuclides are released

from a ground-level, point source (54 FR 22524, May 24, 1989). In

essence, this assumes that radionuclides are released in a concentrated

form and unable to undergo substantial dilution as they migrate to a

point where a person might be exposed. This conservative approach was

taken to develop adjusted RQs that would ensure timely reporting in

most circumstances. EPA recognizes, however, that the RQs based on this

scenario may be unnecessarily low when radionuclides are actually

released in more dilute form from a large area source.

In the radionuclide RQ adjustment NPRM (52 FR 8182, March 16,

1987), EPA requested comments on such a concentration cutoff concept in

general and, in particular, on the use of 0.002 microcuries per gram

(or 2,000 pCi/g) established by the Department of Transportation (DOT)

for the purpose of defining radioactive material in hazardous material

transport regulations (49 CFR parts 171-177). All commenters who

addressed this issue (slightly over half of all commenters) favored a

concentration cutoff. However, EPA decided not to pursue the issue

further through the radionuclide RQ adjustment rulemaking primarily

because: (1) There was not a pre-existing concentration threshold that

was widely believed to be acceptable for all possible radionuclide

release scenarios (the DOT level of 2,000 pCi/g was generally regarded

as too high for many release and exposure situations); (2) EPA did not

have a sufficient technical basis at that time for determining an

appropriate concentration cutoff; and (3) an RQ adjustment regulation

was not viewed as the appropriate forum for conducting the complex

analysis needed to determine such a level (54 FR 22528, May 24, 1989).

[[Page 40048]]

Nevertheless, after reviewing public comments on the November 30,

1992, NPRM on administrative reporting exemptions, EPA would like to

revisit the idea of a concentration cutoff to be applied specifically

to land disturbance and piles of diffuse naturally occurring

radioactive material (rather than all possible radionuclide releases,

as originally envisioned in the radionuclide RQ adjustment NPRM). In

particular, EPA requests information and comment on two major issues

associated with such an approach. First, what would be an appropriate

concentration cutoff level (or levels)? EPA believes that such a level

would best be expressed as some increment to natural background.

Second, what would be the best way to determine natural background

levels?

With regard to the question of an appropriate level, 5 pCi/g of

radium-226 above background is one possibility. This is EPA's standard

in 40 CFR part 192 for the cleanup of surface soil contaminated with

residual radioactive material from inactive uranium processing sites

(i.e., uranium mill tailings). As stated in 40 CFR 192.12, remedial

actions at such sites shall be conducted to provide reasonable

assurance that the concentration of radium-226 in land averaged over

any area of 100 square meters shall not exceed the background level by

more than 5 pCi/g, averaged over the first 15 centimeters of soil below

the surface. In promulgating this cleanup standard, the Agency stated:

The purpose of this standard is to limit the risk from

inhalation of radon decay products in houses built on land

contaminated with tailings, and to limit gamma radiation exposure of

people using contaminated land. * * * Because the risks from soils

contaminated with radium-226 are potentially so great, the proposed

standard was set at a level as close to background as we believed

reasonable, taking into consideration the difficulties in measuring

this level and distinguishing it from natural background. (48 FR

600, January 5, 1983)

EPA believes this underlying purpose and rationale make the 5 pCi/g

standard a candidate for possible use as a lower-bound concentration

cutoff for the purpose of reporting exemptions for land disturbance and

piles of diffuse naturally occurring radioactive material, such as

extraction, beneficiation, and mineral processing materials and wastes,

as well as coal and coal ash.

EPA recognizes, however, that this number would have some

limitations if applied in this context. Most notably, the standard was

developed based on conditions that represent an inactive uranium mill

tailings site, which would not necessarily represent the conditions at

other kinds of sites where naturally occurring radioactive materials

are disturbed and handled (e.g., there may be differences in the

physical properties and radionuclide concentrations of the materials

being handled, as well as in potential human exposure scenarios). In

addition, the 40 CFR part 192 standard was developed using risk

assessment techniques and standards in place during the early 1980s.

More recently, EPA has established guidelines for determining

remediation goals for radioactively contaminated soils at Superfund

sites.5 Depending on the particular conditions at a site, use of

these more recent guidelines may result in a cleanup target that

differs from 5 pCi/g of radium-226 above background.

\5\ U.S. EPA, ``Risk Assessment Guidance for Superfund: Volume

I--Human Health Evaluation Manual (Part B, Development of Risk-based

Preliminary Remediation Goals),'' Interim, Office of Emergency and

Remedial Response, Publication 9285.7-01B, December 1991.

Nevertheless, these potential limitations may not seriously

undermine the utility of 5 pCi/g above background as an administrative

cutoff level for the purpose of establishing CERCLA section 103 and

EPCRA section 304 reporting exemptions. If this approach is adopted,

EPA could establish this level as an interim cutoff pending the

development of a better value or set of values. As part of a separate

rulemaking, the Agency is presently developing new cleanup levels for

radioactively contaminated soil and ground water. Once these or other

levels are finalized, and if they are considered appropriate for the

purpose of CERCLA and EPCRA reporting exemptions, they could be adopted

as updated concentration cutoffs.

The Agency specifically requests information and comment on the

appropriateness of using 5 pCi/g of radium-226 above background as a

concentration cutoff for the purpose of establishing CERCLA section 103

and EPCRA section 304 reporting exemptions for land disturbance and

piles of diffuse naturally occurring radioactive material. EPA also

requests proposals and supporting rationale for any alternative values.

Major issues of interest that have a bearing on the appropriateness of

any candidate value include its level of protectiveness, the ability to

detect the value and distinguish it from natural background, and

consistency with other existing regulations and controls.

With regard to the question of determining background, EPA believes

that it would be appropriate to use a concentration that represents

undisturbed background radioactivity in surface rocks and soils (to

which the public is already exposed). EPA presently is considering

three alternatives, but invites information and comment on the

practicality and appropriateness of any other possibilities. The three

alternatives presently being considered are: (1) Using site-specific

values; (2) establishing a single value for the nation as a whole to be

used when site-specific data are not available, or (3) establishing

regional or State-specific values to be used when site-specific data

are not available.

The first alternative, using site-specific values, recognizes the

variability in background radioactivity that exists across different

sites and the difficulties in determining representative, undisturbed

background values. Under this alternative, reporting would depend on

site-specific background levels of radionuclides in surface soils.

Existing and emerging EPA guidance for determining background

concentrations of radionuclides could be used to establish these

levels. For example, EPA's Guidance for Data Useability in Risk

Assessment 6 provides general guidance on how to discriminate

radioactive site contamination from background. Chapter 10 of the

Agency's Risk Assessment Guidance for Superfund 7 also discusses

general issues concerning the determination of background

concentrations of radionuclides. In cooperation with the Department of

Energy, Department of Defense, and Nuclear Regulatory Commission, EPA

is in the process of developing more specific guidelines for surveying

radioactively contaminated sites and determining radiological

background levels (as part of the Multi-Agency Manual for Environmental

Radiological Surveys). Once completed, these guidelines could be

adopted for use in determining background levels under the RQ program.

\6\ U.S. EPA, ``Guidance for Data Useability in Risk

Assessment,'' Part A (Publication 9285.7-09A, April 1992) and Part B

(Publication 9285.7-09B, May 1992), Office of Emergency and Remedial

Response. For example, see Section 6.2 of Part B.

\7\ U.S. EPA, ``Risk Assessment Guidance for Superfund, Volume

I--Human Health Evaluation Manual (Part A), Interim Final,'' Office

of Emergency and Remedial Response, EPA/540/1-89/002, December 1989.

For example, see Sections 10.3.4 and 10.3.7.

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

Under the second and third alternatives, EPA would establish

default values that site owners or operators would use in the absence

of reliable site-specific data. If either of these alternatives were

adopted, the Agency could use the background

[[Page 40049]]

concentrations of radium-226 developed by Myrick et al. (1983), shown

in Table 1. If a single default value were adopted for the nation as a

whole, EPA could adopt either a central value (the arithmetic or

geometric mean of approximately 1 pCi/g of radium-226) or the maximum

value reported for all samples analyzed (4.2 pCi/g). Adding a 5 pCi/g

concentration cutoff to these background values would result in an

overall threshold for reporting purposes of either 6 pCi/g or 9.2 pCi/g

of radium-226. Alternatively, site owners or operators could use the

background values for their specific State (again, central or upper end

values are candidates). If a site were located in a State not covered

by the Myrick et al. data, background values could be estimated by

averaging values reported for adjacent States.

Compared to the proposal and the first alternative discussed above,

this alternative would result in more uniform treatment of diffuse

naturally occurring radioactive material. The distinction created above

between land disturbance incidental to extraction and other activities

that may occur at extraction, beneficiation, and/or mineral processing

sites would be lost. Instead, the excavation, movement, dumping,

stockpiling, and disposal of any kind of diffuse naturally occurring

radioactive material handled at any kind of site would qualify for a

reporting exemption if it was below the concentration cutoff.

Table 1.--State Background Concentrations of Radium-226 in Surface Soil

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

# of Samples Range of values Arithmetic Geometric mean

State analyzed (pCi/g) mean (pCi/g) (pCi/g)

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

Alabama.................................... 8 0.47-1.4 0.82 0.77

Alaska..................................... 6 0.43-0.92 0.65 0.64

Arizona.................................... 6 0.23-2.0 0.95 0.70

California................................. 3 0.24-1.3 0.77 0.62

Colorado................................... 32 0.48-3.4 1.4 1.3

Delaware................................... 2 1.1-1.2 1.2 1.2

Florida.................................... 11 0.25-2.3 0.84 0.67

Georgia.................................... 9 0.46-1.6 0.88 0.81

Idaho...................................... 12 0.64-1.6 1.1 1.1

Illinois................................... 7 0.65-1.2 0.97 0.95

Indiana.................................... 2 1.0-1.1 1.1 1.1

Kansas..................................... 6 0.34-1.4 0.97 0.86

Kentucky................................... 13 0.81-4.2 1.5 1.4

Louisiana.................................. 2 0.58-0.84 0.71 0.70

Maryland................................... 6 0.49-1.2 0.72 0.69

Michigan................................... 10 0.46-2.0 1.1 0.95

Mississippi................................ 3 0.77-1.6 1.2 1.2

Missouri................................... 10 0.31-1.4 1.1 1.0

Nevada..................................... 6 0.89-2.0 1.5 1.5

New Jersey................................. 24 0.24-1.4 0.87 0.78

New Mexico................................. 13 0.72-2.7 1.5 1.5

New York................................... 6 0.48-1.2 0.85 0.81

North Carolina............................. 8 0.48-1.2 0.78 0.74

Ohio....................................... 12 0.81-2.5 1.5 1.4

Oregon..................................... 8 0.24-2.1 0.82 0.68

Pennsylvania............................... 33 0.46-2.4 1.2 1.1

Tennessee.................................. 10 0.65-1.4 1.1 1.0

Texas...................................... 10 0.54-1.4 0.89 0.85

Utah....................................... 32 0.53-1.9 1.3 1.2

Virginia................................... 13 0.60-1.1 0.85 0.83

West Virginia.............................. 11 0.78-1.6 1.3 1.2

Wyoming.................................... 13 0.65-1.7 1.0 1.0

U.S. Average............................... 327 0.23-4.2 1.1 1.0

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

Source: Myrick, T.E., B.A. Berven, and F.F. Haywood, ``Determination of Concentrations of Selected Radionuclides

in Surface Soil in the U.S.,'' Health Physics, Vol. 45, No. 3 (September), pp. 631-642, 1983.

EPA also believes that the use of such a concentration cutoff would

be more protective than the proposed exemptions. Under this approach,

all sites excavating and/or handling diffuse naturally occurring

radioactive materials (e.g., all mining, beneficiation, and mineral

processing sites and all sites that handle coal and coal ash) would be

required to evaluate the radionuclide concentration of those materials.

Release reports then could be required not only from those sites in

mining sectors that commonly extract and handle materials with elevated

radionuclide concentrations, as in the proposed exemptions, but also

other types of mining sites that happen to be extracting and handling

raw materials with unusually high concentrations of radionuclides. At

the same time, EPA recognizes that there may be instances when

continued releases below some concentration cutoff (and thus exempt

from CERCLA section 103 and EPCRA section 304 reporting requirements)

could pose a threat, by resulting in the long-term build up of elevated

levels of radioactivity in the environment.

Finally, the Agency recognizes that this approach would impose a

greater burden on individual site owners or operators than the proposed

approach, since facilities would have to determine concentrations

relative to background, as well as releases relative to the RQs if the

concentration cutoff is exceeded. However, determining radionuclide

concentrations of the materials being extracted and/or handled at a

site should be much simpler than estimating total releases into the

environment (concentrations likely would be determined anyway when

estimating releases relative to the RQs), and burdens associated with

determining background levels can be reduced

[[Page 40050]]

substantially through the use of national or regional default values.

III. Regulatory Analyses

A. Executive Order 12866

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the

Agency must determine whether a regulatory action is ``significant''

and, therefore, subject to review by the Office of Management and

Budget (OMB) 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.

The Agency has determined that this proposed rule is not a

``significant regulatory action'' under the terms of Executive Order

12866 and is, therefore, not subject to OMB review.

These proposed exemptions will result in an estimated net cost

savings to the regulated community of $455,000 annually, as

demonstrated by an economic analysis (Estimated Economic Effects of

Administrative Reporting Exemptions for Certain Releases of

Radionuclides) performed by the Agency, available for inspection in the

U.S. EPA CERCLA Docket Office (Mail Code 5201G), Crystal Gateway #1,

12th Floor, 1235 Jefferson Davis Highway, Arlington, VA 22202.

B. Regulatory Flexibility Act

The Regulatory Flexibility Act of 1980 requires that a Regulatory

Flexibility Analysis be performed for all rules that are likely to have

a ``significant impact on a substantial number of small entities.''

Because this proposed rule would grant reporting relief to certain

sources of radionuclide releases, the rule would not result in a

significant impact on a substantial number of small entities. EPA

certifies that this proposed rule is not likely to have a significant

impact on a substantial number of small entities and, therefore, that a

Regulatory Flexibility Analysis is not necessary.

C. Paperwork Reduction Act

Because this rule provides an exemption from CERCLA section 103 and

EPCRA section 304 reporting requirements for certain radionuclide

releases, there are no unique reporting or recordkeeping provisions

that require approval from OMB under the Paperwork Reduction Act of

1980, 44 U.S.C. 3501 et. seq.

Approval has previously been granted by OMB for other release

reporting requirements referenced in this rule: collection of

information pursuant to CERCLA section 103 for releases of hazardous

substances equal to or greater than their RQs (OMB control # 2050-

0046).

D. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995,

signed into law on March 22, 1995, EPA must prepare a statement to

accompany any rule in which the estimated costs to State, local, or

tribal governments in the aggregate, or to the private sector, will be

$100 million or more in any one year. Under section 205 of this Act,

EPA must select the most cost-effective and least-burdensome

alternative that achieves the objective of the rule and that is

consistent with statutory requirements. Section 203 of the Act requires

EPA to establish a plan for informing and advising any small

governments that may be significantly impacted by the rule.

EPA has determined that this rule does not include a Federal

mandate that may result in estimated costs of $100 million or more to

either State, local, or tribal governments in the aggregate, or to the

private sector.

List of Subjects

40 CFR Part 302

Environmental protection, Air pollution control, Chemicals,

Emergency Planning and Community Right-to-Know Act, Extremely hazardous

substances, Hazardous chemicals, Hazardous materials, Hazardous

materials transportation, Hazardous substances, Hazardous wastes,

Intergovernmental relations, Natural resources, Pesticides and pests,

Reporting and recordkeeping requirements, Superfund, Waste treatment

and disposal, Water pollution control, Water supply.

40 CFR Part 355

Air pollution control, Chemical accident prevention, Chemical

emergency preparedness, Chemicals, Community emergency response plan,

Community right-to-know, Contingency planning, Disaster assistance,

Emergency Planning and Community Right-to-Know Act, Extremely hazardous

substances, Hazardous substances, Intergovernmental relations, Natural

resources, Penalties, Reportable quantity, Reporting and recordkeeping

requirements, Threshold planning quantity, Water pollution control,

Water supply.

Dated: July 25, 1995.

Carol M. Browner,

Administrator.

For the reasons set out in the preamble, it is proposed to amend

title 40, chapter I of the Code of Federal Regulations as follows:

PART 302--DESIGNATION, REPORTABLE QUANTITIES, AND NOTIFICATION

1. The authority citation for part 302 continues to read as

follows:

Authority: 42 U.S.C. 9602, 9603, and 9604; 33 U.S.C. 1321 and

1361.

2. Section 302.6 is amended by revising paragraph (c) to read as

follows:

Sec. 302.6 Notification requirements.

* * * * *

(c) The following categories of releases are exempt from the

notification requirements of this section:

(1) Releases of those radionuclides that occur naturally in the

soil from land holdings such as parks, golf courses, or other large

tracts of land;

(2) Releases of naturally occurring radionuclides from land

disturbance activities, including farming, construction, and land

disturbance incidental to extraction activities, except that which

occurs at uranium, phosphate, tin, titanium, zirconium, hafnium,

vanadium, and rare earth mines (including monazite mined for its

thorium content);

(3) Releases of radionuclides from the dumping of coal and coal

ash; and

(4) Releases of radionuclides from coal and coal ash piles.

* * * * *

PART 355--EMERGENCY PLANNING AND NOTIFICATION

3. The authority citation for part 355 continues to read as

follows:

Authority: 42 U.S.C. 11002, 11004, and 11048.

4. Section 355.40 is amended by revising paragraph (a)(2)(vi) to

read as follows:

Sec. 355.40 Emergency release notification.

(a) * * *

(2) * * *

[[Page 40051]]

(vi) Any radionuclide release which occurs:

(A) Naturally in soil from land holdings such as parks, golf

courses, or other large tracts of land;

(B) Naturally from land disturbance activities, including farming,

construction, and land disturbance incidental to extraction activities,

except that which occurs at uranium, phosphate, tin, titanium,

zirconium, hafnium, vanadium, and rare earth mines (including monazite

mined for its thorium content);

(C) From the dumping of coal and coal ash; and

(D) From coal and coal ash piles.

* * * * *

[FR Doc. 95-19194 Filed 8-3-95; 8:45 am]

BILLING CODE 6560-50-P