Administrative Reporting Exemptions for Certain Radionuclide Releases

SUMMARY: The Environmental Protection Agency today is issuing a final

rule that will reduce reporting burdens under the Comprehensive

Environmental Response, Compensation, and Liability Act and the

Emergency Planning and Community Right-to-Know Act. Reducing reporting

burdens is one of the goals of the President's government-wide

regulatory reform initiatives.

Through this rule, EPA will broaden existing reporting exemptions

for releases of naturally occurring radionuclides to include releases

that result from: land disturbance incidental to extraction activities,

except that which occurs at uranium, phosphate, tin, zircon, hafnium,

vanadium, and rare earth mines; and coal and coal ash piles at all

sites.

Eliminating needless reporting burdens on persons responsible for

certain mine sites and coal and coal ash piles will also allow EPA to

better focus its resources on the most serious releases, resulting in

more effective protection of public health and welfare and the

environment.

EFFECTIVE DATE: April 20, 1998.

ADDRESSES: 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.

Docket: Copies of materials relevant to this rulemaking are

contained in the U.S. EPA CERCLA Docket Office, Crystal Gateway #1, 1st

Floor, 1235 Jefferson Davis Highway, Arlington, VA 22202 [Docket Number

102RQ-RN-2]. The docket is available for inspection, by appointment

only, between the hours of 9 a.m. and 4 p.m., Monday through Friday,

excluding Federal holidays. Appointments to review the docket can be

made by calling 703/603-9232. 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 Office will mail copies of materials to requestors who are

outside the Washington, DC metropolitan area. The docket for this

rulemaking will be kept in paper form.

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 number is 800/553-7672 (in the Washington, DC metropolitan

area, contact 703/486-3323); or the Office of Emergency and Remedial

Response (5202G), U.S. Environmental Protection Agency, 401 M Street,

SW., Washington, DC 20460 (contact Elizabeth Zeller 703/603-8744).

SUPPLEMENTARY INFORMATION: Potentially Affected Entities: Entities that

may be affected by this final rule include: (1) Persons in charge of

vessels or facilities that may have naturally occurring radionuclide

releases into the environment that are among those granted an

administrative reporting exemption; and (2) entities that plan for or

respond to such releases.

The table below lists potentially affected entities. This table is

not intended to be exhaustive, but rather provides a guide for readers

regarding entities likely to be affected by this action. Other entities

not listed in the table could also be affected. To determine whether

your organization is affected by this action, carefully examine the

changes to 40 CFR parts 302 and 355. If you have questions regarding

the applicability of this action to a particular entity, consult the

contact names and phone numbers listed in the preceding FOR FURTHER

INFORMATION CONTACT section of this preamble.

Potentially Affected Entities

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Type of entity Examples of affected entities

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Industry..................... Mines, coal ash landfills, coal

preparation plants, coke plants, other

industrial sites with coal piles, and

coal transportation storage yards.

State, Local, or Tribal State Emergency Response Commissions,

Governments. Local Emergency Planning Committees.

Federal Government........... National Response Center, and any Federal

agency that may have radionuclide

releases granted a reporting exemption.

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Outline of Today's Preamble: The contents of today's preamble are

listed in the following outline:

I. Introduction

A. Statutory Authority

B. Background of This Rulemaking

C. Final Reporting Exemptions

D. Summary of Changes From the Proposed Rule

II. Response to Comments

A. Support for and Opposition to Reporting Exemptions

1. Proposed Exemptions

2. Alternative 1 Proposed on August 4, 1995

3. Alternative 2 Proposed on August 4, 1995

B. Requests for Broader Exemptions for Extraction,

Beneficiation, and Mineral Processing

1. Similarities to Other Exemptions

a. Extraction versus Farming and Construction

b. Extraction versus Beneficiation and Processing

2. Properties of Certain Ores and Materials

3. Radiation Risk

4. Radon Releases

5. Feasibility of Response

6. Controls Under Other Programs

7. Site-Specific Exemptions

C. Scope of Reporting Exemptions for Coal and Coal Ash

1. Types of Ash

2. Beneficial Uses of Ash

3. Coal Preparation and Transportation

D. Requests for Other Exemptions

E. Interpretation of CERCLA Provisions

1. Release Into the Environment

2. Substantial Danger

III. Regulatory Analyses

A. Executive Order 12866

B. Regulatory Flexibility Act

C. Paperwork Reduction Act

D. Unfunded Mandates

E. Small Business Regulatory Enforcement Fairness Act

I. Introduction

A. Statutory Authority

The Comprehensive Environmental Response, Compensation, and

Liability Act (CERCLA), 42 U.S.C. 9601 et seq., establishes broad

Federal authority to respond to releases or substantial threats of

releases of hazardous substances from vessels and facilities. Section

101(14) of CERCLA defines the term ``hazardous

[[Page 13461]]

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 (EPCRA), 42 U.S.C. 11001 et seq. (see 40

CFR 355.40). As established by EPA in an earlier 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 (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 merely

establishes 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 or require a response in all circumstances.

Government personnel assess each reported release on a case-by-case

basis to determine the appropriate response action, if any.

CERCLA sections 102(a), 103, and 115 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 would serve 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 RQs for radionuclides

(52 FR 8172), with the comment period ending on May 15, 1987. Twenty-

eight comment letters, totaling about 150 pages, were received. The

comments, together with the Agency's responses, are presented 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 5202G), Crystal

Gateway #1, 1st 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 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 Circuit in

TFI v. EPA 935 F.2d 1303 (1991). In the litigation, AMC and TFI argued,

in part, that EPA violated the Administrative Procedure Act by failing

to provide adequate 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

extension of 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).

Twenty-seven comment letters, totaling 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 could not

resolve without additional information and analysis. Chief among these

issues were:

--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

[[Page 13462]]

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 from coal and

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

realistically can be taken?

After evaluating these issues, the Agency decided to issue a

supplemental proposal requesting information and comment on expanded

reporting exemptions for certain radionuclide releases. The

supplemental proposal, published on August 4, 1995 (60 FR 40042),

proposed to (1) broaden the land disturbance reporting exemption to

include land disturbance incidental to extraction activities at all

mines, with the exception of certain types of mines that are likely to

handle materials with elevated levels of radionuclides, and (2) broaden

the coal and coal ash pile exemptions to include radionuclide releases

to and from such piles at all kinds of sites, not just sites with coal-

fired boilers. EPA also requested comments on two alternatives to these

proposed broader reporting exemptions in the August 4, 1995,

supplemental proposal. The first alternative would grant reporting

exemptions for land disturbance activities incidental to extraction at

all mines, as well as coal and coal ash piles at all sites. The second

alternative would grant exemptions to all land disturbance activities

incidental to extraction as well as to all releases of radionuclides to

and from all piles of diffuse naturally occurring radioactive material

(NORM) below a concentration cutoff. EPA originally requested that

public comments on the supplemental proposal be submitted on or before

October 3, 1995, but in response to requests submitted by a number of

commenters, extended the close of the public comment period until

December 4, 1995 (60 FR 51765).

Twenty-nine comment letters were received on the August 4, 1995,

supplemental proposal. Seven of these commenters had also submitted

comment letters on the November 30, 1992, NPRM. This final rule was

developed following careful consideration of all issues and concerns

raised in public comments on both the November 30, 1992, NPRM and the

August 4, 1995, supplemental proposal.

C. Final Reporting Exemptions

In today's final rule, the reporting exemption for releases of

naturally occurring radionuclides from large generally undisturbed land

holdings, such as golf courses and parks, is being retained as

promulgated in the 1989 final radionuclide RQ adjustment regulation and

as re-proposed in the November 30, 1992, NPRM (57 FR 56726). EPA wishes

to clarify that this reporting exemption applies to releases of

naturally occurring radionuclides from generally undisturbed land

containing ore reserves, including ores containing elevated

concentrations of radionuclides, because those ore reserves would be

generally undisturbed. Reporting of naturally occurring radionuclide

releases from undisturbed land holdings is unnecessary because CERCLA

section 104(a)(3) generally precludes removal or remedial actions in

response to a release ``of a naturally occurring substance in its

unaltered form or altered solely through naturally occurring processes

or phenomena, from a location where it is naturally found.''

EPA is broadening 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 (greater than 7.6 picocuries per gram or pCi/g of U-238,

6.8 pCi/g of Th-232, or 8.4

pCi/g of Ra-226, which equal two times the upper end of the

concentration range reported in the literature for typical surface

soil). The types of mines that are not within the scope of the

reporting exemption are uranium, phosphate, tin, zircon, hafnium,

vanadium, monazite, and rare earth mines. For the purpose of this

preamble, monazite is evaluated along with bastnasite as a rare earth

ore, but it is listed separately in the rule as a non-exempt category

of mines because monazite also may be extracted to recover other

elements, such as thorium and titanium. Releases of naturally occurring

radionuclides from land disturbance at all other types of mines are

exempted from CERCLA section 103 and EPCRA section 304 reporting

requirements. For the purpose of this rule, land disturbance incidental

to extraction activities includes land clearing, overburden removal and

stockpiling, and excavating, handling, transporting, and storing ores

and other raw materials. Land disturbance incidental to extraction also

includes replacing materials in mined-out areas as long as such

materials have not been beneficiated or processed and do not contain

elevated radionuclide concentrations, as defined above. Beneficiation

and mineral processing activities, including the associated handling,

transporting, and storing of bulk materials, are not included within

the scope of the exemption.

EPA also is broadening the existing exemptions for coal and coal

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

ash piles at all sites, not just sites where there is a coal-fired

boiler.

Each of the above exemptions apply only to CERCLA section 103 and

EPCRA section 304 reporting requirements. The exemptions do not apply

to the related response and liability provisions.

EPA is promulgating these broader exemptions for three principal

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 materials

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 surface 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.

D. Summary of Changes From the Proposed Rule

EPA has made one change from the August 4, 1995, supplemental

proposal. Land disturbance incidental to extraction of the titanium-

bearing ores ilmenite and rutile, but not monazite, has been included

within the scope of the reporting exemptions for land disturbance

activities. As discussed in more detail in Section II.B.2 of today's

preamble, additional data submitted by public commenters and assembled

by

[[Page 13463]]

the Agency in response to comments are sufficient to support a finding

that most unprocessed ilmenite and rutile from the U.S. contain

radionuclides in concentrations that are generally within the range of

typical background concentrations, like the raw materials handled at

the other kinds of mines granted a reporting exemption. Monazite, which

also may be extracted at mines recovering titanium, tends to have

radionuclide concentrations well above typical background levels.

II. Response to Comments

EPA's full responses to public comments related to this rule are

contained in ``Responses to Comments on the November 30, 1992, and

August 4, 1995, Notices of Proposed Rulemaking on Administrative

Reporting Exemptions for Certain Radionuclide Releases'' (Responses to

Comments), which is available for inspection in Docket Number 102RQ-RN-

2 located at the U.S. EPA CERCLA Docket Office (Mail Code 5202G),

Crystal Gateway #1, 1st Floor, 1235 Jefferson Davis Highway, Arlington,

VA 22202. Additional background information supporting the Agency's

position and response to many of these comments is provided in

``Technical Background Document Supporting Final Administrative

Reporting Exemptions for Certain Releases of Radionuclides,'' also

available for inspection in Docket Number 102RQ-RN-2. The following

sections provide a summary of the major public comments and EPA's

responses.

A. Support for and Opposition to Reporting Exemptions

1. Proposed Exemptions

Of the 56 public comment letters submitted on the November 30,

1992, NPRM and August 4, 1995, supplemental proposal, 32 expressed

support for the proposed exemptions. As discussed in more detail in

Section II.B below, these commenters' only objections were that the

proposed reporting exemptions were not broad enough.

Only three of the 56 public comment letters opposed the proposed

exemptions. The main arguments made by these commenters were that the

exemptions (1) will limit the government's ability to control naturally

occurring radionuclide exposures and risks, including the risk

associated with natural background radiation, indoor radon, and coal

ash disposal, and (2) will limit the availability of public information

regarding the sources and doses of radiation exposure in local

communities.

EPA does not believe either of these concerns is valid. With

respect to the government's ability to control naturally occurring

radionuclides, the Agency reiterates that CERCLA section 104(a)(3)

already precludes actions in response to natural background radiation,

unless certain conditions are met as specified in section 104(a)(4).

This response limitation does not apply to the releases of naturally

occurring radionuclides exempted by this rule, which are not natural

background releases but rather releases from anthropogenic activities.

The rule, however, only exempts the radionuclide releases from CERCLA

section 103 and EPCRA section 304 reporting requirements, not from

CERCLA response or liability provisions. Therefore, the government can

still respond under CERCLA to the exempted releases, if a response is

ever determined to be necessary.

Eliminating the requirement to report the selected releases of

naturally occurring radionuclides will not jeopardize the government's

ability to respond to these releases, but rather will improve its

ability to respond promptly to other releases that may be more serious.

Moreover, these reporting exemptions under CERCLA in no way interfere

with other government initiatives to address naturally occurring

radionuclide releases, including EPA's ongoing programs to address

indoor radon under the Indoor Radon Abatement Act, airborne emissions

of naturally occurring radionuclides under the Clean Air Act (CAA),

naturally occurring radionuclides in ``special wastes'' from mining and

mineral processing under the Resource Conservation and Recovery Act

(RCRA), and radiation exposures under the Federal Radiation Protection

Guidance.

With respect to the availability of public information regarding

the sources and doses of radiation exposure in local communities, the

purpose of the CERCLA section 103 and EPCRA section 304 reporting

requirements is to notify government personnel of releases of hazardous

substances so that a timely decision can be made regarding the need for

a response action to protect public health or welfare or the

environment. These reporting programs are not intended to serve as a

source of public information on radiation sources and exposures. The

community right-to-know reporting requirements, toxic release inventory

requirements, and related provisions under EPCRA sections 311, 312, and

313 remain in effect. Therefore, the reporting exemptions will not

significantly impact a community's ability and right to know about

hazardous substances.

2. Alternative 1 Proposed on August 4, 1995

Eight commenters supported Alternative 1 proposed on August 4,

1995, which would exempt land disturbance incidental to extraction at

all mines. Of these eight commenters, three expressed support for

Alternative 1 as a means to ensure that radionuclide releases to and

from coal and coal ash piles at all sites were granted a reporting

exemption. EPA would like to clarify that the final reporting

exemptions include exemptions for coal and coal ash identical to the

ones proposed in Alternative 1 (the proposed exemptions and Alternative

1 differ only with respect to mining).

Six of the eight commenters expressed support for an exemption for

all kinds of mines but, in EPA's judgment, did not provide enough

information to support such a broad exemption. Five of these six

commenters either simply stated their preference for this regulatory

approach without any technical justification or provided information in

support of broadening the proposed exemptions to include certain mining

sectors (zircon, bastnasite, and phosphorus), rather than all mining

sectors as envisioned in Alternative 1. The sixth commenter made a

number of arguments in favor of a broad reporting exemption for all

kinds of mines, including: mining cannot be distinguished from the

other exempted land disturbance activities (farming and construction);

the radiation risks posed by mining are low; a CERCLA response is

infeasible; and any potential problems associated with radionuclide

releases from mines have already been addressed under other programs.

The specific points raised by these commenters are addressed below in

Section II.B of today's preamble.

Only one commenter directly opposed Alternative 1. This commenter

expressed concern about the radiation risk posed by phosphate mining

and reclaimed phosphate land. Based on the elevated levels of

radionuclides in phosphate mining materials, and considering the lack

of information demonstrating that the radiation risks are low or that a

CERCLA response is infeasible, EPA continues to believe that

radionuclide releases from phosphate mining should not be exempted from

the release reporting requirements of CERCLA section 103 and EPCRA

section 304. Several of the commenters who supported exempting all

mines objected that the scope of Alternative 1 was too narrow. These

comments, which are addressed in Section II.B.1.b below, support the

view that Alternative 1

[[Page 13464]]

should be broadened to include radionuclide releases from beneficiation

and mineral processing in addition to releases from extraction.

3. Alternative 2 Proposed on August 4, 1995

Only one commenter expressed support for Alternative 2, which would

base the reporting threshold on concentration of radionuclides in

materials. This commenter, however, was in favor of a dose-based rather

than a concentration-based limit as proposed. The commenter suggested

that EPA utilize a broader version of Alternative 2, which would exempt

all releases of diffuse NORM if the release resulted in a dose lower

than 500 millirem (mrem), or 5 millisieverts (mSv), above background,

excluding radon. While the Agency recognizes some of the basic

advantages of a dose-based cutoff, EPA decided against such an approach

because among other reasons: (1) Many individuals and organizations

that handle naturally occurring radionuclides do not have the

capability to accurately estimate radiation doses; (2) the time and

analysis required to estimate doses may delay reporting and, hence,

impede timely response if necessary; and (3) without standardization,

different releasers would be likely to estimate doses in different

ways, resulting in inconsistent reporting.

Five commenters opposed Alternative 2 altogether and seven others,

though not entirely opposed to a concentration cut-off, provided

information supporting their objections to the approach taken in the

August 4, 1995, supplemental proposal. Many of these commenters

highlighted the following potential difficulties with Alternative 2:

(1) It would place a burden on the regulated community and government

of planning and implementing such an approach; (2) the complex

multiple-step task of determining radionuclide concentrations in a

given material relative to background might jeopardize timely

reporting; (3) uncertainties might lead to misinterpretations and abuse

of the system; and (4) it would be difficult to establish a reasonable

and scientifically sound cutoff level. For these reasons, EPA decided

against Alternative 2 for the final rule.

B. Requests for Broader Exemptions for Extraction, Beneficiation, and

Mineral Processing

Eighteen of the 56 public comment letters received requested

broader exemptions for radionuclide releases from extraction,

beneficiation, and mineral processing. This includes nine comment

letters (out of 27) in response to the November 30, 1992, proposal to

continue to exclude all mining from the reporting exemptions, and nine

comment letters (out of 29) in response to the August 4, 1995,

supplemental proposal to broaden the exemptions to include land

disturbance incidental to extraction at most kinds of mines. These

commenters offered the following points in support of their requests:

(1) The exempted activities cannot be distinguished from the non-

exempted activities; (2) the properties of certain ores and materials

warrant a broader reporting exemption; (3) the radiation risk at non-

exempted sites is low; (4) radon releases from non-exempted sites pose

little threat; (5) CERCLA responses at non-exempted sites are

infeasible; and (6) releases of potential concern are already

controlled under other programs. A few commenters also requested that

EPA establish a process for granting site-specific reporting exemptions

if broader categorical exemptions are not granted in the final rule.

Each of these points is addressed in turn below.

1. Similarities to Other Exemptions

a. Extraction versus Farming and Construction. Eight commenters,

including seven addressing the November 30, 1992, proposal and one

commenting on the August 4, 1995, supplemental proposal, asserted that

EPA has not adequately distinguished land disturbance incidental to

extraction during mining from that which occurs during farming and

construction. Among other grounds for broadening the reporting

exemptions to include extraction, these commenters pointed to

similarities in the concentrations of radionuclides in the earthen

materials being disturbed, and similarities in the level of radiation

risk posed by the different activities.

In response to such comments on the November 30, 1992, proposal,

EPA issued the supplemental proposal on August 4, 1995, to expand the

exemptions for land disturbance activities to include radionuclide

releases from all mines except certain categories of mines that are

likely to handle raw materials with elevated radionuclide

concentrations. These broader exemptions were based on a recognition

that, if radionuclide levels in the earthen materials handled within a

given mining (mineral commodity) sector are at or near background, as

at most farms and construction sites, it would be reasonable to treat

such mining the same as other land disturbances for the purpose of the

CERCLA and EPCRA reporting exemption. If, however, the materials

handled in a given mining sector are likely to have elevated levels of

radionuclides, then there might be a reasonable basis for treating the

disturbance of those materials differently from land disturbance at the

vast majority of farms and construction sites. In EPA's judgment,

elevated levels would indicate that further evaluation would be

required before it could be concluded with a sufficient degree of

confidence that risks were low and that a government response would be

unwarranted or infeasible.

EPA followed a three-step approach to identify ``elevated''

radionuclide concentrations for the purpose of the supplemental

proposal. First, based on a review of background concentrations

reported in various publications for surface rocks and soils in

different geographical areas, the Agency selected the ranges reported

by Myrick et al.1 as representative of ``typical''

background levels (0.12-3.8 pCi/g of U-238, 0.1-3.4 pCi/g of Th-232,

and 0.23-4.2 pCi/g of Ra-226). EPA also considered reported

concentrations in recognized hot spot regions of the country, such as

the Reading Prong area, as an additional benchmark for the purpose of

defining background. Second, EPA compiled available secondary data on

the radionuclide concentrations in ores and raw materials handled in

different mining sectors. EPA reviewed these data for the purpose of

defining ``typical'' radionuclide concentrations in the various mining

materials, rather than overall ranges that would encompass high-end

values. Third, EPA compared the typical background range with the

typical values assumed for the different mining materials. If based on

this comparison a mining material was found to have concentrations

greater than two times the upper end of the range defined by Myrick et

al. (greater than 7.6 pCi/g of U-238, 6.8 pCi/g of Th-232, and/or 8.4

pCi/g of Ra-226), EPA concluded that concentrations in the material

were elevated.2 If

[[Page 13465]]

concentrations in a mining material also exceeded the values reported

in hot spot regions, EPA considered this comparison as further evidence

that the concentrations were elevated.

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

\1\ Myrick, T.E., B.A. Berven, and F.F. Haywood, 1983,

``Determination of Concentrations of Selected Radionuclides in

Surface Soil in the U.S.,'' Health Physics, Vol. 45, No. 3

(September), pp. 631-642.

\2\ In choosing background radionuclide values to define the

concentration threshold for granting some categories of mines

exemption from reporting requirements, the Agency recognizes that

the primary purpose of notification is to ensure that releasers

notify the government so that the government can assess the need to

respond to the release. The exemption threshold levels, like RQ

levels, do not reflect a determination that a release of a substance

will be hazardous at the level chosen and not hazardous below that

level. As in the case of RQ values, EPA is not attempting to make

such a determination. (For information about levels that are

considered protective of human health and the environment for

response actions under CERCLA at radioactively contaminated sites

see 40 CFR 300.430(e)2(i) and ``Establishment of Cleanup Levels for

CERCLA Sites with Radioactive Contamination'' [OSWER No. 9200.4-18,

August 22, 1997]).

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

The Agency used the cutoff of two times the upper end of the range

defined by Myrick et al., rather than some other multiple such as one

or three times, in an effort to balance the need to be protective with

the need to account for site-specific variability. On the one hand, a

case could be made for using the upper end of the Myrick et al. range,

because those values are themselves higher than the background

concentrations reported for soils and rocks in most places in the U.S.

On the other hand, background concentrations of radionuclides are

highly site-specific and there are ample data showing that

concentrations above the Myrick et al. range do exist in relatively

isolated circumstances. In the Agency's judgment, two times the upper

end of the Myrick et al. range prudently accounts for the possibility

of ``higher-than-normal'' concentrations but is not so high as to be an

extreme value likely to occur only in very rare instances. To account

for those instances where higher background concentrations may occur,

EPA also compared the concentrations in mining materials to

representative concentrations reported for known hot spot regions of

the country, which amount to roughly three to five times the upper end

of the Myrick et al. range.

The data and conclusions from this comparison are presented in

detail in the Technical Background Document supporting this final rule

(available in the docket). The following table summarizes these results

for the non-exempt categories of mines. The table shows, for each type

of material, the full range of reported concentrations and the Agency's

best estimate of a typical concentration (either a geometric mean when

many data points are available, or a commonly cited or other central

value that best reflects available data in EPA's judgment). For the

purpose of comparison, the table also shows the ratio of the typical

concentration to (1) the upper end of the background range reported by

Myrick et al. for surface soils (3.8 pCi/g of U-238, 3.4 pCi/g of Th-

232, and 4.2 pCi/g of Ra-226), and (2) selected background values

reported for recognized hot spot regions (20

pCi/g of U-238 reported for the Reading Prong region and 9 pCi/g of Th-

232 reported for the Colorado Front Range).

Summary of Radionuclide Concentrations in Materials in Non-Exempt Mining Sectors

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

Ratio of typical Ratio of typical

Th-232 a (pCi/ Ra-226 a (pCi/ value to upper value to

Material U-238 a (pCi/ g) g) end of Myrick et selected hot

g) al. range spot value

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

Uranium Ore................. 280-640 10-11 b NA U: 121 U: 23

(460) (10.5) .............. Th: 3.1 Th: 1.2

Phosphate Rock.............. 2.7-267 0.07-4 3-62 U: 11.8 U: 2.3

(45) (1.05) (45) Th: 0.3 Th: 0.1

Ra: 10.7

Vanadium Ore................ 0.18-340 0.18-58 NA U: 7.9 U: 1.5

(30)

Tin-Bearing Materials....... 17-43 2.9-8,830 1-480 U: 8 U: 1.5

(30) (12) (20) Th: 3.5 Th: 1.3

Ra: 4.8

Zircon...................... 5-c.................. 600-3,000 2,900-80,000 620 U: 474 U: 90

(1,800) (3,900) .............. Th: 1,147 Th: 433

Ra: 148

Bastnasite c................ 7 25-2,330 NA U: 1.8 U: 0.4

Th: 7.4-685 Th: 2.8-259

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

a Where applicable, ranges are presented along with an estimated ``typical'' value, shown in parentheses.

b NA = not available.

c Ores extracted principally for their rare-earth or thorium content.

As these data show, the materials handled and stockpiled at non-

exempt categories of mines are not ``essentially the same as the soil

at farming or construction sites,'' as asserted by some public

commenters. In every material, one radionuclide is likely to be present

at a level that is at least 7.9 times the upper end of the background

range reported by Myrick et al. for typical surface soils. Typical

radionuclide concentrations in each material also exceed elevated

levels commonly reported in hot spot regions. Therefore, although there

are hot spots across the country where farming and construction will

disturb natural soils and rocks with concentrations more than two times

the upper end of the typical range reported by Myrick et al., EPA

believes that the non-exempt materials are distinguished from the soils

and rocks expected to be disturbed at the vast majority of farming and

construction sites.

Finally, commenters asserted that the distinction between

extraction at non-exempt mines and farming and construction sites is

unfounded because EPA has not demonstrated that extraction activities

at non-exempt mines pose a greater risk than the exempt activities. EPA

does not believe that risk analysis provides the only reasonable basis

for distinguishing between the two sets of activities. As outlined in

the supplemental proposal, EPA is distinguishing between the different

activities on the basis of the likely radionuclide concentrations in

the materials being disturbed relative to background. In the case of

the exempt activities, EPA concluded that a CERCLA removal or remedial

response would very rarely, if ever, be necessary because the

activities result in low-level, diffuse releases of radionuclides at

concentrations that are at or near background. EPA also questioned

[[Page 13466]]

whether it would be feasible or practical to mount a CERCLA response to

such releases, since the materials in question already have

radionuclide concentrations likely to be at or near background and

CERCLA responses would not normally clean up to below background

levels. In contrast, when the radionuclide concentrations are likely to

be elevated as at non-exempt mines, EPA believes that further analysis

is needed before concluding that a reporting exemption is warranted.

As discussed in more detail in response to comments asserting that

the radiation risk is low at the non-exempt categories of mines (see

section II.B.3 below), EPA believes that currently available risk

information and assessments do not provide enough of a basis for

broadening the exemptions to include those mines. Therefore, the

supplemental proposal requested that commenters wishing to support

exemptions for the non-exempt mines provide data demonstrating that

radionuclide concentrations in the mining materials are in fact at or

near background concentrations, or, in the absence of such data,

information showing that radiation exposures and risks are low despite

the elevated concentrations in the materials handled. In EPA's

judgment, only those commenters addressing titanium mining provided

sufficient information to support broadening the exemptions beyond

those proposed in the supplemental notice.

b. Extraction versus Beneficiation and Processing. Five commenters

on the August 4, 1995, supplemental proposal requested that the

proposed broader reporting exemptions be broadened even further to

include radionuclide releases from beneficiation and mineral

processing. The primary argument made by these commenters was that EPA

has not provided a valid basis for excluding beneficiation and

processing from the scope of the exemptions.

The scope of the administrative reporting exemption that pertains

to mining activities is limited to releases from land disturbance. As

proposed in the August 4, 1995, supplemental proposal, and as

promulgated in today's final rule, the exempted land disturbance

activities include farming, construction, and extraction activities at

all mines except certain categories of mines where raw materials are

likely to have elevated radionuclide concentrations. Land disturbance

activities incidental to extraction include land clearing, overburden

removal and stockpiling, and excavating, handling, replacing,

transporting, and storing ores and other raw materials. These are earth

moving activities involving natural materials and using technologically

unsophisticated operations and equipment generally consistent across

sites. The ``enhanced'' radionuclide releases that may occur as a

result of these activities are low-level, diffuse, and difficult to

control.

Beneficiation and mineral processing activities are outside the

scope of such land disturbance activities. As stated in the preamble to

the supplemental proposal, the factors that distinguish beneficiation

and processing from land disturbance incidental to extraction include

the potential for beneficiation and processing to: (1) Concentrate

radionuclides in waste streams or other materials well above natural

background levels; and (2) cause substantially greater releases. These

factors are discussed below.

Radionuclides may become concentrated through beneficiation and

processing activities relative to levels found in raw materials. Some

ores and processing operations may yield a waste product, such as slag

or tailings, with radionuclide concentrations higher than those in the

ore. EPA's 1993 draft Diffuse NORM Waste report 3 summarizes

the results of studies showing that some processes associated with the

beneficiation and processing of certain minerals or metals appear to

concentrate certain radionuclides and enhance their environmental

mobility. Additional information showing how radionuclides can become

concentrated in processing wastes was provided by comments on the

supplemental proposal. For example, data referenced by one commenter

show how the concentration of radium-226 can be increased in processing

wastes relative to zircon sand.

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

\3\ U.S. EPA, 1993, ``Diffuse NORM Wastes,'' DRAFT, RAE-9232/1-

2, Volume I, Office of Radiation and Indoor Air.

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

The Agency acknowledges that other data show no increase in

radionuclide concentration in certain products and wastes from the

beneficiation and processing of certain minerals. However, there are

numerous other wastes and by-products from these processing sectors

that would have to be characterized before the Agency could conclude

that concentrations are not being increased. For example, although

available data from copper beneficiation and processing activities

indicate no increase in radionuclide concentration in the tailings,

copper concentrate, and leach materials, there are no data available on

radionuclide concentrations for other wastes and by-products, including

solvent extraction crude, spent bleed electrolyte, tankhouse slimes,

acid plant blowdown, surface impoundment waste liquids, acid plant

thickener sludge, and various process wastewaters, among others.

A separate issue is the potential for beneficiation and mineral

processing activities to result in releases greater than those from

land disturbance incidental to extraction. Larger releases could be the

result of an increase in radionuclide concentration, an operation that

results in point source releases, or an increase in environmental

mobility due to physical and chemical changes. Many beneficiation and

processing activities use heat and chemicals, such as acids, to change

the physical or chemical structure of raw ore and intermediate

products. For example, the use of solvents in the beneficiation process

known as solvent extraction, or acids in leaching processes, tend to

increase the mobility of certain constituents. Wastes such as sludges,

muds, and slurries have a very different physical structure from that

of the original ore, and more detailed study would be needed to

determine the effect of the change in radionuclide releasibility and

mobility. In any case, the resulting material no longer resembles the

natural earthen material envisioned within the scope of the land

disturbance exemption.

Additional evidence of the differences between land disturbance and

beneficiation/processing is provided by 16 sites on the National

Priorities List where radioactive contamination is an important health

hazard, and where the primary source of contamination was a

beneficiation or processing activity or waste.4 Though many

of these sites are old and environmental protection practices have

changed, others were in operation more recently. Among the more recent

sites are the United Nuclear Corporation uranium mill in Churchrock,

NM, where ground water, surface water, and soils are all contaminated

with radionuclides, and the Teledyne Wah Chang Albany zirconium and

hafnium processing site in Oregon, where residual on-site sludges are

contaminated with high levels of thorium, uranium, and radium. In

contrast, there are no documented cases of CERCLA removal or remedial

actions being taken in response to radionuclide releases at mine sites

[[Page 13467]]

within those categories proposed to receive a reporting exemption.

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

\4\ These sites are identified in a report included in the

public docket for the November 30, 1992 rulemaking entitled

``Radionuclide Releases from Mining Activities: Background

Information Related to CERCLA Reporting Requirements,'' Office of

Emergency and Remedial Response, U.S. EPA, October 15, 1992.

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

Another issue raised by commenters is the practical difficulty of

drawing the line between extraction and beneficiation/processing. As

guidance, for the purpose of implementing the reporting exemptions, EPA

reiterates that land disturbance incidental to extraction includes land

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

replacing, transporting, and storing ores and raw materials. All of

these are earth moving operations, and the materials handled are

natural and unprocessed. Beneficiation starts at the onset of the first

occurrence of any of the following activities that are typically

characterized as beneficiation: Crushing, grinding, washing,

dissolution, crystallization, filtration, sorting, sizing, drying,

sintering, pelletizing, briquetting, calcining to remove water or

carbon dioxide, roasting in preparation for leaching, gravity

concentration, magnetic separation, flotation, ion exchange, solvent

extraction, electrowinning, precipitation, amalgamation, and heap,

dump, vat, tank, and in situ leaching. Each of these beneficiation

activities is briefly described in the Technical Background Document

supporting this final rule.

EPA believes that it would be impossible to draw and effectively

implement a line between (1) land disturbance that occurs during

beneficiation and processing, and (2) other beneficiation and

processing activities. For example, there is no precise demarkation

between ``handling, transporting, and storing of materials,'' which is

land disturbance, and certain operations characteristic of

beneficiation, such as crushing, grinding, and leaching, which include

more than just land disturbance. All extraction activities can be

considered land disturbance as defined for this reporting exemption

rule; however, because of the difficulty in segregating land

disturbance from other activities at beneficiation/processing sites,

the Agency has decided that it is not possible to broaden the exemption

further to clearly include only land disturbance that occurs during

beneficiation and processing.

2. Properties of Certain Ores and Materials

Four commenters on the August 4, 1995, supplemental proposal agreed

with the proposed broader exemptions, but asserted that the exemptions

should be broadened further to include additional mining sectors based

on the properties of ores and raw materials handled in those sectors.

Two commenters said zircon extraction should be exempted because

zircon contains low concentrations of radionuclides and has physical

properties that inhibit radon emanation and radionuclide leaching. As

shown in the above table of radionuclide concentrations, however,

available data indicate that radionuclide levels in zircon sand can be

quite elevated, including, on average, U-238 concentrations that are

approximately 25 times the upper end of the range reported by Myrick et

al. for surface soils and five times a higher background value (20 pCi/

g) cited for the Reading Prong. It is true that, despite these elevated

concentrations, zircon sands have a low radon emanation rate and may

also leach radionuclides to only a limited degree. While these

properties may mitigate the radiological consequences of zircon sand

extraction, other possible exposure pathways must be considered before

concluding that the radiation risk is low. Potential direct radiation

exposures are a particular concern. A study by Boothe et al. (1980)

5 measured 170 R/hr at the surface of zircon and 15

R/hr at a distance of 3 feet above the ore. For reference,

background measurements cited in the same study were generally 8-10

R/hr. These measurements indicate that zircon sands could pose

an incremental direct radiation hazard if people are in close proximity

for an extended period of time. Without further characterization of

this hazard, EPA believes that it cannot include zircon extraction

within the scope of the reporting exemptions.

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

\5\ Boothe, G.F., Stewart-Smith, D., Wagstaff, D., and M.

Diblee, 1980, ``The Radiological Aspects of Zircon Sand Use,''

Health Physics, Vol. 38, P. 393-398.

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

One commenter objected to EPA's characterization of radionuclide

concentrations in rare earth ores in the supplemental proposal,

pointing out that the Agency did not adequately distinguish between

bastnasite and monazite ores. This commenter also submitted data

indicating that radionuclides are present at much lower levels in

bastnasite than in monazite. EPA has attempted to characterize these

ores more precisely in the Technical Background Document supporting

this final rule. Data specific to bastnasite, however, indicate that

these ores also contain elevated concentrations (see the above table).

Accordingly, a reporting exemption for bastnasite extraction cannot be

granted, as there is no basis for a determination that radionuclide

concentrations in the ore are at or near background.

One commenter submitted data indicating that the concentrations of

radionuclides in titanium-bearing ores are lower than characterized by

EPA for the supplemental proposal. In order to resolve this

discrepancy, EPA obtained additional data on the radionuclide

concentrations in titanium ores (principally rutile and ilmenite). All

of the data collected are presented in the Technical Background

Document supporting this final reporting exemption rule. In brief,

these data indicate that radionuclide concentrations in foreign

titanium ores can be slightly elevated over typical background

concentrations; however, on average, concentrations are only 1.1 times

the upper end of the background range reported by Myrick et al. for

surface soils. Domestic rutile and ilmenite contain lower

concentrations than foreign ores, with typical concentrations within

the background range reported by Myrick et al. Based on these

additional data, which show overall lower levels than available

previously, EPA now concludes that most unprocessed rutile and ilmenite

from the U.S. are likely to contain radionuclides at concentrations

that are at or near background. Therefore, contrary to the position

taken in the supplemental proposal, radionuclide releases from land

disturbance incidental to rutile and ilmenite extraction are granted a

reporting exemption in today's final rule. However, monazite

extraction, including that which may occur at some mines recovering

titanium, is not granted a reporting exemption because of the elevated

concentrations of radionuclides found in monazite.

One commenter said phosphate ore mining should be exempted because

most radionuclide concentration data cited in the Technical Background

Document for phosphate ore are at or under approximately five times

background levels. As discussed above, EPA selected two times the upper

end of the Myrick et al. range as a cutoff for this rule because, in

the Agency's judgment, this value prudently accounts for the

possibility of ``higher-than-normal'' concentrations but is not so high

as to be an extreme value likely to occur only in very rare instances.

EPA believes that five times background cannot reasonably be labeled

``at or near background'' or ``generally within the range of typical

background concentrations in surface rocks and soils in the U.S.,'' as

EPA judges to be the case for the categories of mines included within

the proposed reporting

[[Page 13468]]

exemptions. Five times the upper-end values determined by Myrick et al.

equates to 19 pCi/g of U-238, 17 pCi/g of Th-232, and 21 pCi/g of Ra-

226. These values are approximately 20 times the mean background level

of 1 pCi/g expected in most places in the U.S., and even above most of

the elevated background levels reported for hot-spot regions of the

country. Even if five times background were accepted as a threshold for

defining elevated, 19 (76 percent) of the 25 U-238 concentrations in

phosphate rock reported in the Technical Background Document exceed

five times the upper limit reported by Myrick et al. These data

adequately demonstrate that phosphate ore contains elevated levels of

naturally occurring radionuclides and prevent the Agency from

broadening the reporting exemptions to include phosphate ore mining.

3. Radiation Risk

Ten commenters stated that the reporting exemptions should be

broadened to include additional categories of mines as well as

beneficiation and processing because available information and analyses

show that the radiation risk associated with these activities is low.

As noted above, beneficiation and processing are beyond the scope of

the final exemptions; nevertheless, the Agency examined public comments

regarding the radiation risks posed by these activities as they pertain

to extraction.

Several commenters asserted that previous EPA assessments under the

CAA show that radionuclide releases from mining pose a low risk and do

not warrant control under the National Emission Standard for Hazardous

Air Pollutants (NESHAPs) program. These previous assessments include a

1984 study 6 of various mining and smelting operations as

well as a 1989 assessment 7 of surface uranium mines, which

are theoretically worst-case mining activities according to commenters.

EPA believes it is inappropriate to rely on the risk assessments

conducted for the 1983 and 1984 NESHAP rulemakings, in which the Agency

determined not to regulate ``other extraction facilities,'' as the

basis for an administrative reporting exemption under CERCLA. The risk

assessments supporting EPA's determination not to promulgate

radionuclide NESHAPs for this source category are based on outdated

information, exposure assessment methods, and risk characterization

techniques. The Agency has not re-examined this source category under

the NESHAPs program. The present lack of NESHAPs for certain mining

sectors, therefore, does not necessarily indicate that EPA considers

the current risk from radionuclide emissions from these sites to be

insignificant.

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

\6\ U.S. EPA, 1984, ``Radionuclides--Background Information

Document for Final Rules, Volume II,'' Office of Radiation Programs,

EPA 520/1-84-022-2, October.

\7\ U.S. EPA, 1989, ``Risk Assessments, Environmental Impact

Statement, NESHAP for Radionuclides, Background Information

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

006-1, September.

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

EPA believes the scope of the 1989 NESHAP assessment is too narrow

to support a CERCLA reporting exemption. In addition to covering only

uranium mines, the assessment considers only the risks posed by

airborne releases, not risks associated with other exposure pathways

such as direct radiation, drinking water (both ground and surface

water), and food consumption, all of which are of interest under

CERCLA. Also, the 1989 assessment considers the risks to nearby

residents but not workers, which are a concern under CERCLA.

Other commenters stated that mining waste proceedings under RCRA

confirm that radiation risks at mines are low. EPA disagrees. EPA's

decision not to regulate some mining wastes as hazardous under Subtitle

C of RCRA was not based on a finding that the risks (including the

radiation risks) are low, but rather on a finding that Subtitle C may

not provide sufficient flexibility to address mining-related risks in

light of the unique conditions at mining sites (51 FR 24496, July 3,

1986). Since issuing the mining waste regulatory determination,

radioactivity has continued to be an important issue in EPA's

development of the mining waste program under Subtitle D of RCRA.

Several commenters stated that, like exempted land disturbance

activities, radon releases from non-exempt mines disperse rapidly and

quickly dissipate into background levels. The Agency agrees that radon

disperses rapidly in the ambient air; but this by itself does not mean

that radon risks to nearby receptors are necessarily low. Even the low

radon risk estimates developed by the Agency in support of the 1989

radionuclide NESHAP ruling for surface uranium mines (54 FR 51654,

December 15, 1989), which are worst-case mine sites according to

commenters, do not provide adequate basis for a CERCLA reporting

exemption, because the 1989 assessment did not evaluate radon risks to

workers or those associated with homes built on or around uranium-

mining materials with elevated radionuclide concentrations. Such

scenarios could warrant response under CERCLA if an abandoned site in

the non-exempt mining categories is not fully reclaimed and is then

used for other purposes, or if materials from non-exempt mines are

taken off-site and used as fill around homes.

Commenters also stated that risks are low because mining occurs in

remote locations. While the Agency acknowledges that many mines are

located farther away from population centers than many construction and

farming activities, this by itself does not provide sufficient basis

for concluding that human exposures and risks around non-exempt mining

sites are low. The distance to and exposures of maximally exposed

individuals, including on-site workers and closest residents, are

unrelated to population density around mining sites. Even if mining

sites are located in less populated areas, it is still possible that

such individuals may spend considerable time in close proximity to

materials with substantially elevated concentrations of radionuclides,

and thus experience significant risks.

A few commenters referenced other reports as evidence that

radiation risks associated with mining are low. After reviewing each of

these references, EPA believes they do not support a reporting

exemption for the non-exempt categories of mines. For example, some

commenters pointed to a National Research Council report 8

that states that ``the health risks posed by exposures to radon from

uranium mill tailings piles are trivial for the average U.S. citizen,''

and that by ``virtually any measure, the risk for people living at

distances beyond several kilometers from a pile is trivial.'' Without

disputing these statements in the report, EPA notes that overall

population risks or the potential to pose significant risks at great

distances are not the most important factors in deciding whether a

CERCLA response action may be needed at any individual site. An

important determination of the need for response is the risk to

reasonably maximally exposed individuals. Nothing in the Council's

report enables EPA to conclude that risks to workers or nearby

individuals from radon emissions are insignificant.

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

\8\ ``Scientific Basis for Risk Assessment and Management of

Uranium Mill Tailings,'' 1986.

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

Commenters also pointed out that the total amount of radon released

due to mining is but a small fraction of that released due to the

exempted activities of farming and construction. The total amount of

radon released across all sites in the country, however, is not

relevant

[[Page 13469]]

for the purpose of determining whether a reporting exemption is

appropriate for a given site or category of sites. Reports of releases

are intended to alert government authorities to releases at individual

sites so they may determine whether they pose risks warranting a

response. A more meaningful measure, with a greater bearing on the

potential for radon emissions to pose risks that may warrant a

response, is the expected radon emission per site. When commenters'

estimates of total annual radon releases from different categories of

sources are divided by the number of sites in those categories, it

appears that more radon is released from an average uranium or

phosphate mine than from an average farm. The Agency recognizes that

certain large farms emit more radon than certain mining sites, but this

is due more to the relative sizes of the sites than to the rate of

radon emission from the earthen materials being disturbed. Large farms

emit radon at a low rate but over a large area, whereas certain uranium

and phosphate mines emit radon at a higher rate but over a smaller

area. The radon flux from uranium and phosphate mining materials is

higher than that from most natural soils. This supports the Agency's

decision to treat these materials differently from exempted materials

in today's final rule.

Some commenters contended that the recent scientific information

casts doubt on EPA's underlying Linear Non-Threshold Hypothesis that

all ionizing radiation is harmful, and that epidemiological studies of

populations exposed to even high ambient radiation levels, such as 50

to 100 times background, do not indicate significant adverse health

effects. As EPA stated in the proposed Federal Radiation Protection

Guidance for Exposure of the General Public (59 FR 66417, December 23,

1994), the risks to health from exposure to low levels of ionizing

radiation have been reviewed by the National Academy of Sciences in a

series of reports over the past two decades, as well as by the

International Commission on Radiological Protection, the United Nations

Scientific Committee on the Effects of Atomic Radiation, and the

National Radiological Protection Board of the United Kingdom. Based on

these studies as well as extensive reevaluations completed over the

last decade of atom bomb survivors, the Agency continues to believe

that it is appropriate, for radiation protection purposes, to assume

that at and just above the level of natural background the risk of

cancer and most serious hereditary effects increases linearly with

increasing radiation dose, without a threshold (59 FR 66417, December

23, 1994). The Agency published its risk estimates for doses at or near

background levels of exposure in a 1994 report,9 which was

reviewed by EPA's Science Advisory Board. These risk estimates are

based on the linear non-threshold model.

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

\9\ U.S. EPA, 1994, ``Estimating Radiogenic Cancer Risks,'' EPA

402-R-93-076, Office of Radiation and Indoor Air, Washington, D.C.

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

Finally, one commenter stated that analyses of site-specific

exposures at a facility in California shows that there is no

significant radiation risk associated with bastnasite extraction and

beneficiation, and that the State of California has accordingly

declined to license the site for the purpose of radiation control. EPA

discussed the matter with the California Department of Health Services

(Radiologic Health Branch), which does not concur with the commenter's

conclusions. The State is continuing to examine activities at the

facility and is still evaluating the need to issue a nuclear materials

license. A final decision will be based, in part, on a comprehensive

Environmental Impact Report being prepared by San Bernardino County.

Consequently, EPA cannot conclude that radiation risks at the subject

facility are low and that a government response to radionuclide

releases from the facility would be unwarranted. Also, the fact that

one facility were well controlled would not support an exemption for an

entire category of facilities.

4. Radon Releases

Three commenters argued that radon exposure is responsible for most

of the public health risk associated with naturally occurring

radionuclides. These commenters also concluded that the risk of radon

from mines is low, based on past risk assessments of uranium mill

tailings sites and surface uranium mines, which would tend to have

higher risks than other kinds of mines. The commenters reasoned that

these points taken together show that risks from the worst-case

exposure pathway from worst-case mining activities are not significant,

and that therefore a broad reporting exemption for all radionuclide

releases from all mines is justified.

EPA does not agree with this reasoning. EPA recognizes that its

Environmental Impact Statement (EIS) for Remedial Action Standards for

Inactive Uranium Processing Sites, cited by commenters, shows that the

risk at such sites from radon emissions dwarfs the risks associated

with releases of other radionuclides and other pathways. Similarly, EPA

acknowledges that the Nuclear Regulatory Commission's Generic EIS on

Uranium Milling, also cited by commenters, concludes that ``* * * radon

is the greatest single contributor to risk.'' However, EPA does not

believe either of these references provides a basis for concluding that

only radon is of concern. Both reports show other radionuclides and

other exposure pathways also can pose considerable risk. Both reports

show that direct gamma radiation is a big contributor to risk at

uranium mill tailings piles, especially to on-site workers and

residents who may live or spend considerable time close to the piles.

This conclusion is supported by other documents placed in the

public docket for this rule. For example, EPA's original risk

assessment for coal and coal ash piles at boiler sites, which resemble

piles of diffuse NORM at mine sites, found that the critical exposure

pathway for workers was direct radiation.10 The estimated

risk to nearby residents from exposure to direct radiation was of the

same order of magnitude as that from exposure to radon emissions.

Similarly, a report submitted in public comments on this rule estimates

that direct radiation is the critical exposure pathway for workers

exposed to either uranium overburden or metal mine wastes.11

The report also estimates that direct radiation is the critical

exposure pathway for nearby residents exposed to metal mining waste.

Finally, EPA analyses at the Bluewater Uranium Mine Sites in Prewitt,

New Mexico, estimates that exposure to external gamma radiation and

radionuclides by the soil ingestion pathway results in a greater than

10-4 lifetime cancer risk, which is a substantial

risk.12

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

\10\ U.S. EPA, 1989, ``Technical Background Supplement in

Support of Rulemaking Adjustment Activities for Reportable

Quantities (RQ) of Radionuclides,'' Office of Radiation Programs,

March.

\11\ SENES Consultants Limited, 1993, ``Review of Selected

Issues Concerning EPA's Regulations: Reportable Quantities

Adjustment--Radionuclides,'' Prepared for American Mining Congress

and The Fertilizer Institute, January.

\12\ U.S. EPA, 1992, ``Removal Fact Sheet 1, Bluewater Uranium

Mine Sites,'' Prewitt, New Mexico, Navajo Nation, November.

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

EPA does not believe, as commenters suggest, that previous risk

assessment results for uranium mill tailings piles and surface uranium

mines provide a basis for concluding that radon risks at all mines are

low. Indeed, in enacting the Uranium Mill Tailings Radiation Control

Act (UMTRCA), Congress found that uranium mill tailings may pose

significant radiation health hazards to

[[Page 13470]]

the public, and that every reasonable effort should be made to provide

for their stabilization, disposal, and control in a safe and

environmentally sound manner to prevent or minimize radon diffusion

into the environment. Regulatory initiatives to control radon releases

from uranium mill tailings piles have since included UMTRCA standards

under 40 CFR part 192 as well as CAA NESHAPs under 40 CFR part 61. For

example, in the radon risk assessment supporting the NESHAP for

operating uranium mill tailings piles, EPA estimated that the lifetime

fatal cancer risk to the most exposed individual is

3 x 10-5, so long as the piles are mostly wet or covered

with clay. However, the risks from mill tailings piles can increase

dramatically, to as high as 3 x 10-3, if the piles are

allowed to be dry and uncovered. Based on this conclusion, EPA

promulgated a standard limiting radon emissions to an average of 20

pCi/m\2\-sec (54 FR 51680, December 15, 1989). The risk assessments

supporting other regulations on radon emissions from uranium mill

tailings piles yield similar conclusions. These conclusions do not

support a determination that radon releases from the non-exempt

categories of mines are insignificant and warrant a reporting

exemption.

EPA recognizes that its risk assessment for the 1989 NESHAP on

surface uranium mines concluded that the maximum individual risk due to

radon exposure is 5 x 10-5, which was below the benchmark of

1 x 10-4 used to trigger the imposition of an emission

limit. However, a risk of 5 x 10-5 is significant and might

warrant response under CERCLA. Moreover, there is no technical basis

for concluding that this risk estimate bounds the radon risk at other

mine sites. Finally, as mentioned previously, the 1989 assessment did

not consider radon risks to workers or radon risks associated with

homes built on or around uranium-mining materials with elevated

radionuclide concentrations. Therefore, even if the Agency were to

accept the proposition that radon risks at other mines are lower than

estimated for surface uranium mines, available risk results for surface

uranium mines do not address all the potential exposure pathways and

receptors that would have to be considered for a broader reporting

exemption.

5. Feasibility of Response

Two commenters stated that it is highly unlikely the government

could or would respond to reported radionuclide releases from the non-

exempt mines. According to these commenters, there is little that could

be done beyond covering radon-emitting ores and other materials with

soil or water, which would defeat the purpose of mining.

The Agency believes that CERCLA responses are possible and feasible

for non-exempt mines where materials have elevated concentrations of

radionuclides. For example, responses could include covering overburden

or waste piles, fencing to prevent access, monitoring nearby areas for

potential radiation exposure, and establishing administrative controls

governing the disposal and use of materials and future land uses of the

site after closure.

In addition, it may be feasible or appropriate to take response

action after mining operations cease. These could include actions to

reclaim the land and prevent elevated radiation exposures in

surrounding and encroaching communities. Examples of CERCLA responses

targeted specifically to radiation exposures at abandoned mine sites

include removal actions taken at the Bluewater Uranium Mine Sites in

Prewitt, New Mexico.

6. Controls Under Other Programs

Nine commenters asserted that EPA has previously evaluated

radiation risks at non-exempt extraction, beneficiation, and processing

sites under other regulatory initiatives and has chosen to regulate

those risks identified as potentially significant. Therefore, according

to the commenters, CERCLA and EPCRA reporting should not be required

for releases at these sites either because they are federally permitted

or because they have been shown to pose low risk that does not warrant

regulation.

As discussed in Section II.B.3 above, the two regulatory

initiatives cited by the commenters as controlling radiation risks at

mines--the radionuclide NESHAP under the CAA and the mining waste

proceedings under RCRA--do not support a conclusion that the risks are

necessarily low. Radiation risk at mines is still being evaluated as

part of EPA's current study of diffuse NORM wastes, as well as under

various state initiatives. In addition, at the request of Congress, the

National Academy of Sciences is currently conducting a study for EPA on

the scientific and technical basis of its radiation protection guidance

for NORM; when that study is completed, EPA is to report to Congress

its views on the need to revise guidelines for NORM in light of the

Academy's report. Until these or other comparable studies are

completed, and a regulatory change is warranted based on the results of

such studies, the Agency will maintain the existing reporting

requirements for non-exempt mines. Also, decisions whether to regulate

releases under other programs do not always take adequate account of

factors that are important in the CERCLA and EPCRA programs. For

example, in making its decision not to regulate radionuclide emissions

from mines under the CAA NESHAPs program in 1984, EPA considered a

variety of factors, including cost and technological feasibility. These

factors would be evaluated differently by government personnel deciding

whether to take a response action under CERCLA.

One commenter believed applicable operations and materials produced

at a rare earth separations facility in California are adequately

considered and controlled within existing regulations, and that the

facility should therefore be exempted. Existing controls include a

license issued by the California Radiologic Health Branch that requires

a radiological monitoring and safety plan to include the treatment,

storage and transport of a lead/iron filter cake generated from site

operations.

The fact that a facility is regulated by a State does not show that

it or other facilities might not cause a release warranting a response.

Also, EPA discussed this comment with the California Department of

Health Services (Radiologic Health Branch), which clarified that the

scope of the current nuclear materials license for this facility is

limited to treatment and disposal of radioactively contaminated filter

cake. The license currently does not address the separations process in

general. The State is continuing to examine activities at the facility

and is evaluating the need to issue a broad license to control other

radioactive materials and wastes at the site. Therefore, EPA does not

believe that this facility shows that the reporting exemptions should

be broadened.

More broadly, beneficiation and processing are beyond the scope of

the reporting exemptions, as mentioned in section II.B.1.b above.

Therefore, controls under other programs for beneficiation and

processing activities are irrelevant for the purpose of this rule.

7. Site-Specific Exemptions

Two commenters requested that EPA provide a means for facilities to

seek a site-specific exemption based on radionuclide releases at the

site, if land disturbance activities incidental to extraction

activities at mines with elevated concentrations and beneficiation and

processing operations are not included within the final reporting

exemptions. In the interest of limiting burdens to both the regulated

[[Page 13471]]

community and the government, EPA decided to grant exemptions to

categories of mines rather than site-specific exemptions. All of the

facilities that would most likely seek a site-specific exemption would

be eligible for the reduced reporting requirements under CERCLA for

continuous releases. EPA believes that it would be much more burdensome

for these facilities to prepare and submit information for a site-

specific exemption than to comply with existing reporting requirements

for continuous releases. The economic analysis supporting today's final

rule (``Estimated Economic Effects of Final Administrative Reporting

Exemptions for Certain Releases of Radionuclides,'' available for

inspection in the docket) estimates that each facility spends eight

hours per year complying with the continuous release reporting

requirements. It would take many more hours for each facility to

prepare a scientifically sound, site-specific risk assessment to

support a reporting exemption.

C. Scope of Reporting Exemptions for Coal and Coal Ash

Four public commenters raised questions regarding the scope of the

proposed reporting exemptions for coal and coal ash piles.

1. Types of Ash

One commenter asked if the exemption for coal ash applies to coal

fly ash. EPA interprets the term ``coal ash'' in the final reporting

exemptions to apply to fly ash, bottom ash, and boiler slags, as

clarified in the final regulatory language. The radionuclide

concentration data presented and examined in the Technical Background

Document supporting the exemptions are for all three of these

materials. Based on these data, EPA concluded that these materials

typically contain radionuclide levels very close to the upper end of

the range reported by Myrick et al. for surface soils (3.8 pCi/g of

uranium-238 and 3.4 pCi/g of thorium-232). Accordingly, these materials

were judged to have radionuclide concentrations that are at or near

background and they are included within the scope of the reporting

exemptions.

2. Beneficial Uses of Ash

Two commenters asked if the coal ash exemption applies to

beneficial uses of the ash. Releases of radionuclides ``from the

dumping of coal ash'' and ``from piles of coal ash'' at all sites--

including sites that beneficially use the ash--are included within the

scope of the reporting exemptions. The rationale and regulatory

language for the coal ash dumping exemption logically extends to such

coal ash uses that involve the land application of coal ash that has

not been otherwise processed or altered, typically as a substitute for

natural materials.

Other coal ash uses, however, are beyond the scope of the

exemptions as proposed. They involve coal ash that has been placed into

manufacturing operations and discrete product uses that are unlike the

releases from diffuse sources contemplated for the exemptions. These

include uses of coal ash as an ingredient in cement, concrete, asphalt,

wallboard, blasting grits, roof granules, grouts, fire extinguishing

slurries, and fillers in paints, undercoatings, and plastics. Because

such uses were not originally part of the exemptions as proposed, but

arose through commenters' suggestions, the Agency would need further

study to determine whether the exemptions could properly be applied to

manufactured product uses.

3. Coal Preparation and Transportation

One commenter asked if the reporting exemption for coal piles

applies to coal preparation activities and the transportation of coal

in open top railcars and other vehicles. The Agency has determined that

the exemptions do not apply to coal preparation activities but do apply

to coal transportation.

Today's rule exempts radionuclide releases to and from coal piles

at all sites, including piles of raw and prepared coal at coal

preparation plants. However, releases from coal preparation activities

are outside the scope of the reporting exemptions for the same reasons

advanced for beneficiation activities in the mining industry.

Specifically, coal preparation involves processing operations and

releases that are unlike diffuse releases to and from coal piles, as

contemplated in the proposal. Coal preparation activities include, but

are not limited to, size reduction, screening, cleaning, and

dewatering.13

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

\13\ The Technical Background Document supporting the final

reporting exemption rule provides background information on the

nature of coal preparation activities.

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

In addition, EPA notes that the concentration of radionuclides in

materials handled during coal preparation would have to be generally

within the range of typical background, in order to meet the first

criterion for exemption outlined in the proposed rule. The Agency,

however, has no data on the concentration of radionuclides in wastes

and by-products generated during the coal preparation process (e.g.,

slimes, sludges, air emissions, and discarded piping and processing

equipment). The commenter asserts that it is unlikely that radionuclide

concentrations would be increased as a result of preparation

activities, but provides no data showing that the levels in various

wastes and by-products are indeed at or near background, as they are in

coal.

The amount of waste generated during coal preparation has been

estimated as roughly 30 tons for every 100 tons of raw

coal.14 Although limited information is available on the

composition of this waste, washability studies do provide some

information regarding the fate of radionuclides in the preparation

process. These studies identify the phase (i.e., mineral matter or

coal) in which an element remains after cleaning, indicating whether an

element can be ``washed out'' of a given sample of coal. Thorium

appears to be associated with the mineral material, and uranium with

the coal, although ``significant amounts of uranium may occur in

accessory minerals and as secondary mineralization'' in some

coals.15 Consequently, coal preparation waste might be lower

in uranium, but higher in thorium than the raw coal. No quantitative

data, however, are available to demonstrate the frequency and extent of

these or any other differences, if they actually exist.

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

\14\ U.S. Department of Energy, 1991, ``Coal Data: A

Reference,'' Energy Information Administration, DOE/EIA-0064(90).

\15\ U.S. EPA, 1995, ``Estimates of Health Risks Associated with

Radionuclide Emissions from Fossil-Fueled Steam-Electric Generating

Plants,'' Office of Radiation and Indoor Air, EPA 402/R-95-16.

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

Preparation techniques and, therefore, the wastes generated during

preparation may undergo significant changes in the near future. More

stringent air pollution regulations are inducing industry to develop

improved coal cleaning technologies which reduce impurities emitted

when coal is burned. Based on the extremely limited data for the

wastes, and the likelihood that their nature may change, EPA cannot

prudently assume that they have, or will in the future have,

radionuclide concentrations similar to typical background.

Further, to satisfy the Agency's second criterion for exemption, a

CERCLA response to releases of radionuclides from coal preparation

activities would have to be highly unlikely, and possibly infeasible,

because the materials being handled have radionuclide concentrations

similar to background and the releases are expected to be continuously

low,

[[Page 13472]]

spread over large areas, and widely dispersed in the environment. Coal

preparation activities generally will not result in releases from a

diffuse source like those exempted by today's final rule. On the

contrary, a coal preparation plant is similar to an industrial facility

which may have point source releases, as from an air vent. Responses to

such releases would appear to be quite feasible. These responses could

include the placement of emission controls, such as fabric filters, to

capture particulates before they are released to the atmosphere.

Finally, releases from coal preparation and treatment activities

would have to satisfy the last exemption criterion identified in the

Agency's supplemental proposal, that is, individual release

notifications would not be necessary for the government to assess

whether a response action is needed, since the releases should be

similarly low across all sites. However, preparation plants appear to

differ in design according to the properties and composition of the

coal used and other factors. Therefore, processes and releases cannot

be generally characterized, and individual release reports may be

required for the government to assess the necessity of a response

action for a particular facility.

In summary, radionuclide releases from coal preparation and

treatment are not analogous to those from coal piles. Like

beneficiation in the mining industry, coal preparation activities are

outside the scope of the reporting exemptions.

EPA interprets releases from coal transportation as falling within

the scope of today's broader exemptions, which apply to releases of

radionuclides ``from the dumping of coal'' and ``from piles of coal''

at all sites. This includes releases to and from coal piles at

transportation storage yards as well as coal held in transportation

vehicles. Therefore, fugitive emissions of radionuclides from coal in a

moving open top railcar would be exempt. This interpretation is

consistent with the scope of the exemption for land disturbance

incidental to extraction, which includes transporting ores and other

raw materials from certain kinds of mines. Such radionuclide releases

during coal transport meet all of the exemption criteria in that the

concentrations of radionuclides in the coal are at or near background,

the releases are diffuse, and the releases should be similarly low in

every case.

D. Requests for Other Exemptions

Two commenters requested that EPA consider other kinds of reporting

exemptions. One asked EPA to consider an exemption for non-episodic

releases of hazardous substances from waste sites already identified

for remedial/corrective actions. The other asked EPA to consider an

exemption for liquid or gaseous radionuclide releases from a nuclear

power plant exceeding federally permitted release limits specified in

the Nuclear Regulatory Commission's regulations in 10 CFR Part 50.

EPA is not, as part of this final rule, including either of these

reporting exemptions because they are beyond the scope of the proposed

exemptions. The scope of the exemptions is limited to naturally

occurring radionuclide releases from undisturbed land holdings, from

certain land disturbance activities (construction, farming, and most

types of mining), and to or from coal and coal ash piles.

E. Interpretation of CERCLA Provisions

Nine commenters raised issues regarding the interpretation of two

provisions of CERCLA as they pertain to the reporting exemptions: (1)

The definition of ``release into the environment,'' and (2) the focus

on ``substantial danger.''

1. Release Into the Environment

All nine of these commenters addressed the ruling of the U.S. Court

of Appeals for the District of Columbia in TFI v. EPA, 935 F.2d 1303

(D.C. Cir. 1991) that the placement of hazardous substances into an

``unenclosed containment structure'' does not necessarily constitute a

release into the environment for the purpose of CERCLA reporting

requirements. According to the commenters, placing radionuclides in

stockpiles at mine sites, coal piles, or coal ash storage or disposal

units qualifies as placement into an unenclosed containment structure

under the court's ruling. As a consequence, they contend, such

placement does not qualify as release into the environment and the

reporting exemptions are not required.

In making its decision, the court in the TFI case considered

CERCLA's reporting requirement in the context of an ``unenclosed

containment structure,'' defined by EPA as ``any surface impoundment,

lagoon, tank, or other holding device that has an open side with the

contained materials directly exposed to the ambient environment.'' TFI

at p. 1309. With such a structure in mind, the court reasoned that ``a

company could place a non-volatile substance into an open-air storage

container and the consequences of the open-air storage would be no

different from those that would occur if the company had placed the

substance to a closed container.'' TFI at p. 1310. Therefore, according

to the court, the company should not have to report the transfer of the

substance to the container because the substance would merely be

exposed to the environment, not released into the environment. Id.

There may be significant differences, however, between an

``unenclosed containment structure'' considered by the court in TFI,

and the open-air stockpiles envisioned by the commenters. The court

considered a container with an open side which nonetheless holds a

substance. This may be different from a typical bulk-material storage

or disposal pile. Placing a substance (e.g., radionuclides in coal) in

a pile directly on the land surface clearly constitutes a release to

the environment, as those terms are defined under CERCLA. EPA

understands, however, that some units for storing or disposing of bulk

materials, such as coal and coal ash, may qualify as unenclosed

containment structures within the meaning of the court's ruling in the

TFI case. Such a determination would have to be made on a case-by-case

basis considering the actual level of containment provided by the

storage or disposal unit.

2. Substantial Danger

Two commenters asserted that CERCLA section 102(a) limits reporting

requirements to releases that ``may present substantial danger to the

public health or welfare or the environment. * * *'' The commenters

added that the ``substantial danger'' standard is consistently applied

across the remainder of the CERCLA response scheme triggered by a

release exceeding an RQ (including CERCLA sections 103, 104, and

105(a)). Considered as a whole, according to the commenters, these

CERCLA provisions indicate that no relevant purpose is served by

requiring reporting of releases not likely to pose the substantial

danger at which CERCLA response action is aimed. This applies not only

to the radionuclide releases EPA proposed to exempt but also to other

radionuclide releases from mining and processing facilities.

RQs are reporting triggers intended to give government officials an

opportunity to mount a timely response, if necessary, based on a

determination of possible or potential harm. They do not signal a

determination that a release presents substantial danger; nor are they

a determination that releases of a particular amount of a hazardous

substance necessarily will harm the public health or welfare or the

environment. The quantity released is just one factor considered by the

[[Page 13473]]

government when assessing the need to respond to such a release. Other

factors include, but are not limited to, the location of the release,

its proximity to drinking water supplies or other valuable resources,

and the likelihood of exposure or injury to nearby populations.

Contrary to the commenters' assertion, CERCLA section 102(a) does

not limit reporting requirements to releases that ``may present

substantial danger.'' Instead, section 102(a) authorizes EPA to

designate as hazardous substances, in addition to those referred to in

section 101(14), other substances that ``may present substantial

danger'' when released.

Today's administrative reporting exemption rulemaking is related to

the release notification provisions of CERCLA section 103, not to the

designation provisions of section 102, the response provisions of

section 104, or the National Contingency Plan (NCP) provisions of

section 105. EPA notes, however, that the commenters have incorrectly

stated the role of ``substantial danger'' in the requirements of

sections 104 and 105. Section 104(a)(1) authorizes a federal response

to any release of a hazardous substance. In addition, the CERCLA

section 105(a)(8)(A) requirement that the NCP consider risk at

Superfund sites does not bear on the adjustment of RQs under section

102 or on release notification under section 103.

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.

It has been determined that this rule is not a ``significant

regulatory action'' under the terms of Executive Order 12866 and is

therefore not subject to OMB review. It does not have an annual effect

on the economy of $100 million or more; nor does it fall within the

other definitional criteria for a significant regulatory action

described above.

This rule is deregulatory and the exemptions to reporting

requirements will result in an estimated net cost savings to the

regulated community of $489,000 annually, as demonstrated by an

economic analysis (``Estimated Economic Effects of Final Administrative

Reporting Exemptions for Certain Releases of Radionuclides'') performed

by the Agency, available for inspection in the U.S. EPA CERCLA Docket

Office, Crystal Gateway #1, 1st Floor, 1235 Jefferson Davis Highway,

Arlington, VA 22202 [Docket Number 102RQ-RN-2].

B. Regulatory Flexibility Act

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as amended

by the Small Business Regulatory Enforcement Fairness Act of 1996

(SBREFA), generally requires an agency to prepare, and make available

for public comment, a regulatory flexibility analysis that describes

the impact of a proposed or final rule on small entities (i.e., small

businesses, small organizations, and small governmental jurisdictions).

However, no regulatory flexibility analysis is required if the head of

an agency certifies the rule will not have a significant adverse impact

on a substantial number of small entities.

SBREFA amended the Regulatory Flexibility Act to require Federal

agencies to provide a statement of the factual basis for certifying

that a rule will not have a significant economic impact on a

substantial number of small entities. The following discussion explains

EPA's determination.

This rule does not impose any new burdens on small entities. Since

it provides relief from reporting requirements to certain sources of

radionuclide releases, the impact is solely a cost savings. Therefore,

the Agency certifies that the rule will not have a significant economic

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 reporting or recordkeeping provisions that

require approval from OMB. The Office of Management and Budget (OMB)

has previously approved the information collection requirements

contained in 40 CFR 302 and 40 CFR 355 under the provisions of the

Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB

control number 2050-0046.

This rule reduces the existing regulatory burden. The exemptions to

reporting requirements will result in an estimated net cost savings to

the regulated community of $489,000 annually. The Agency estimates that

1,785 facilities will benefit from the reporting exemptions included in

this rule. This number includes mining sites engaged solely in

extraction activities, as well as coal and coal ash sites and landfills

that do not include industrial or utility coal-fired boilers, that

might continuously release an RQ of nuclide. The Agency excluded those

mining sites with reportable releases from adjoining beneficiation or

processing facilities which must still meet CERCLA section 103

reporting requirements, and those still subject to reporting due to

adjoining activities releasing an RQ or more of radionuclides. Applying

Department of Labor hourly compensation rates for the appropriate labor

categories, the cost saving per facility is $274. This results in total

savings of $489,000. This economic analysis is explained more fully in

EPA's ``Estimated Economic Effects of Final Administrative Reporting

Exemptions for Certain Releases of Radionuclides.''

Burden means the total time, effort, or financial resources

expended by persons to generate, maintain, retain, or disclose or

provide information to or for a Federal agency. This includes the time

needed to review instructions; develop, acquire, install, and utilize

technology and systems for the purposes of collecting, validating, and

verifying information, processing and maintaining information, and

disclosing and providing information; adjust the existing ways to

comply with any previously applicable instructions and requirements;

train personnel to be able to respond to a collection of information;

search data sources; complete and review the collection of information;

and transmit or otherwise disclose the information.

An Agency may not conduct or sponsor, and a person is not required

to respond to, a collection of information unless it displays a

currently valid OMB control number. The OMB control numbers for EPA's

regulations are listed

[[Page 13474]]

in 40 CFR Part 9 and 48 CFR Chapter 15.

D. Unfunded Mandates

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub

.L. 104-4, establishes requirements for Federal agencies to assess the

effects of their regulatory actions on State, local, and tribal

governments and the private sector. Under section 202 of the UMRA, EPA

generally must prepare a written statement, including a cost-benefit

analysis, for proposed and final rules with ``Federal mandates'' that

may result in expenditures to State, local, and tribal governments, in

the aggregate, or to the private sector, of $100 million or more in any

one year. Before promulgating an EPA rule for which a written statement

is needed, section 205 of the UMRA generally requires EPA to identify

and consider a reasonable number of regulatory alternatives and adopt

the least costly, most cost-effective or least burdensome alternative

that achieves the objectives of the rule. The provisions of section 205

do not apply when they are inconsistent with applicable law. Moreover,

section 205 allows EPA to adopt an alternative other than the least

costly, most cost-effective or least burdensome alternative if the

Administrator publishes with the final rule an explanation why that

alternative was not adopted. Before EPA establishes any regulatory

requirements that may significantly or uniquely affect small

governments, including tribal governments, it must have developed under

section 203 of the UMRA a small government agency plan. The plan must

provide for notifying potentially affected small governments, enabling

officials of affected small governments to have meaningful and timely

input in the development of EPA regulatory proposals with significant

Federal intergovernmental mandates, and informing, educating, and

advising small governments on compliance with the regulatory

requirements.

EPA has determined that this rule does not include a Federal

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

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

private sector because the rule imposes no enforceable duty on any

State, local or tribal governments or the private sector.

E. Small Business Regulatory Enforcement Fairness Act

Under 5 U.S.C. 801(a)(1)(A), as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, EPA submitted a report

containing this rule and other required information to the U.S. Senate,

the U.S. House of Representatives and the Comptroller General of the

General Accounting Office prior to publication of the rule in today's

Federal Register. This rule is not a ``major rule'' as defined by 5

U.S.C. 804(2).

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, Reporting and recordkeeping requirements,

Superfund, Water pollution control, Water supply.

40 CFR Part 355

Air pollution control, Chemicals, Disaster assistance, Hazardous

substances, Hazardous waste, Intergovernmental relations, Natural

resources, Penalties, Reporting and recordkeeping requirements,

Superfund, Water pollution control, Water supply.

Dated: February 19, 1998.

Carol M. Browner,

Administrator.

[[Page 13475]]

For the reasons set out in the preamble, title 40, chapter I of the

Code of Federal Regulations is amended 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 during mining activities, except

that which occurs at uranium, phosphate, tin, zircon, hafnium,

vanadium, monazite, and rare earth mines. Land disturbance incidental

to extraction includes: land clearing; overburden removal and

stockpiling; excavating, handling, transporting, and storing ores and

other raw materials; and replacing materials in mined-out areas as long

as such materials have not been beneficiated or processed and do not

contain elevated radionuclide concentrations (greater than 7.6

picocuries per gram or pCi/g of Uranium-238, 6.8 pCi/g of Thorium-232,

or 8.4 pCi/g of Radium-226).

(3) Releases of radionuclides from the dumping and transportation

of coal and coal ash (including fly ash, bottom ash, and boiler slags),

including the dumping and land spreading operations that occur during

coal ash uses.

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

including fly ash, bottom ash, and boiler slags.

* * * * *

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) * * *

(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 during

mining activities, except that which occurs at uranium, phosphate, tin,

zircon, hafnium, vanadium, monazite, and rare earth mines. Land

disturbance incidental to extraction includes: land clearing;

overburden removal and stockpiling; excavating, handling, transporting,

and storing ores and other raw materials; and replacing materials in

mined-out areas as long as such materials have not been beneficiated or

processed and do not contain elevated radionuclide concentrations

(greater than 7.6 picocuries per gram or pCi/g of Uranium-238, 6.8 pCi/

g of Thorium-232, or 8.4 pCi/g of Radium-226).

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

(including fly ash, bottom ash, and boiler slags), including the

dumping and land spreading operations that occur during coal ash uses.

(D) From piles of coal and coal ash, including fly ash, bottom ash,

and boiler slags.

* * * * *

[FR Doc. 98-4822 Filed 3-18-98; 8:45 am]

BILLING CODE 6560-50-P