Friday
July 15, 1994
Part 111
Environmental
Protection Agency
40 CFR Part 61
National Emissions Standards for
Hazardous Air Pollutants; Final Rule
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Federal Register / Vol. 59, No. 135 / Friday, July 15, 1994 / Rules and Regulations
36281
of the AEA, e.g., uranium mill tailings.
Requirements established by the NRG
with respect to byproduct material must
conform to die EPA standards. Any
requirements of such standards adopted
by the NRG shall be amended as the
NRC deems necessary to conform to
EPA's standards. In establishing such
standards, the Administrator was to
consider the risk to the public health,
safety, and the environment, the
environmental and economic costs of
applying such standards, and such other
factors as the Administrator determines
to be appropriate. See 42 U.S.C.
2022(b)(l).
As promulgated by EPA under
subpart D of 40 CFR part 192 in 1983
and implemented by NRC pursuant to
its regulations at 10 CFR part 40,
appendix A, a Title H site licensed by
NRC or an Agreement State, could
indefinitely continue to emit radon at
levels that could result in risks higher
than allowed under the CAA. It was this
possibility which compelled EPA to
promulgate subpart T of 40 CFR part 61
under CAA section 112. In addition, the
UMTRCA regulations called for an
impoundment design that would
achieve compliance with the 20 pCi/m2-
s flux standard for 1,000 years, or at
least 200 years, but prior to the recent
EPA amendments did not include any
requirement that monitoring occur to
verify the efficacy of the design.
On October 16,1985, NRC
promulgated rules at 10 CFR part 40,
appendix A to conform NRC's
regulations issued five years earlier to
the provisions of EPA's general
UMTRCA standards other than those
affecting groundwater protection at 40
CFR part 192 (50 FR 41852). NRC
completed conforming amendments for
groundwater protection in appendix A
of 10 CFR part 40 in 1987.
Neither the UMTRCA standards
promulgated by EPA in 1983 nor the
NRC standards promulgated in 1980 and
amended in 1985, established
compliance schedules to ensure that
non-operational tailings piles would be
closed, and that the 20 pCi/m2-s
standard would be met, within a
reasonable period of time. Moreover, the
EPA standards and NRC criteria also did
not require monitoring to ensure
compliance with the flux standard. 50
FR 41852 (October 16,1985). To rectify
these shortcomings of the then current
EPA and NRC programs regulating
uranium mill tailings, EPA promulgated
standards under Section 112 of the CAA
on October 31,1989, to ensure that the
piles would be closed in a timely
manner with monitoring.
On December 15,1989, EPA
published national standards regulating
radionuclide emissions to the ambient
air from several source categories,
including non-operational sites used for
the disposal of uranium mill tailings.
(54 FR 51654). These sites are either
under the control of the DOE pursuant
to Title I of the Uranium Mill Tailings
Radiation Control Act (UMTRCA) of
1978,42 USC 7901 et. seq., or are under
the control of NRC or Agreement State-
licensees pursuant to Title II of
UMTRCA. These standards—subpart T
of 40 CFR part 61 (subpart T)—-were
promulgated pursuant to the authority
of Clean Air Act (CAA or Act) section
112 as it existed in 1989.
Prior to today's action, subpart T of 40
CFR part 61, limited radon-222
emissions to the ambient air from non-
operational uranium mill tailings
disposal sites licensed by the NRC or an
affected Agreement State. Subpart T
required that these sites, which consist
of large (i.e., numerous acre)
impoundments or piles, comply with a
radon flux standard of 20 pCi/m2-s. 40
CFR 61.222(a). Moreover, compliance
must be achieved within two years of
when the site becomes non-operational,
40 CFR 61.222(b), which for piles which
had ceased operation prior to the time
of promulgation was no later than
December 15,1991. While at the time of
promulgation EPA recognized that many
sources might not be able to achieve this
date, EPA was constrained by then
existing CAA section 112(c)(l)(B)(ii)
which allows a maximum of two years
for facilities to come into compliance.
EPA stated that for those sites which
could not meet the two-year date, the
Agency would negotiate expeditious
compliance schedules pursuant to its
enforcement authority under CAA
section 113. See 54 FR 51683. Subpart
T also called for monitoring and
recordkeeping to establish and
demonstrate compliance. See 40 CFR
61.223 and 61.224.
Subpart T was part of a larger
promulgation of radionuclide NESHAPs
that represent the Agency's application
of the policy for regulating pollutants
under then existing CAA section 112,
which was first announced in the
benzene NESHAPs. 54 FR 38044
(September 14,1989). The NESHAPs
policy utilized a two-step approach. In
the first step, EPA considered the
lifetime risk to the maximally exposed
individual, and found that it is
presumptively acceptable if it is no
higher than approximately one in ten
thousand. This presumptive level
provides a benchmark for judging the
acceptability of a category of emissions.
This first step also considers other
health and risk factors such as projected
incidence of cancer, the estimated
number of persons exposed within each
individual lifetime risk range, the
weight of evidence presented in the risk
assessment, and the estimated incidence
of non-fatal cancer and other health
effects. After considering all of this
information, a final decision on a safe
level of acceptable risk is made. This
becomes the starting point for the
second step, determining the ample
margin of safety.
In the second step, EPA strives to
provide protection for the greatest
number of persons possible to an
individual lifetime risk level no higher
than approximately one in one million.
In this step, the Agency sets a standard
which provides an ample margin of
safety, again considering all of the
health risk and other health information
considered in the first step, as well as
additional factors such as costs and
economic impacts of controls,
technological feasibility, uncertainties,
and any other relevant factors.
EPA noted that standards it had
already promulgated pursuant to
UMTRCA (42 U.S.C. 2022, 7901-7942)
would eventually limit radon emissions
from those sites to a flux of 20 pCi/m2-
s (see 40 CFR part 192, subpart D), and
thus EPA referred to that level as
"baseline." EPA's risk assessment
revealed that compliance with the 20
pCi/m2-s baseline would result in an
estimated lifetime risk to the maximally
exposed individual of approximately
IxlO-4, a level EPA determined to be
safe under the first step of the analysis.
EPA further concluded in the second
step, which considers additional factors
such as cost and technological
feasibility, that the baseline level also
provided an ample margin of safety.
Even though EPA determined that the
baseline was protective of public health
with an ample margin of safety, EPA
still found it was necessary to
promulgate subpart T. This was because
the baseline assumed compliance with
the UMTRCA regulations even though
those regulations did not require that
compliance occur in the foreseeable
future and, in fact, many sites were not
proceeding towards the baseline level at
the time subpart T was promulgated. In
other words, EPA promulgated subpart
T to address the timing issue, which
was not addressed in the UMTRCA
regulations.
The primary subpart T standard is the
requirement that radon-222 emissions
not exceed a flux of 20 pCi/m2-s. 40 CFR
61.222(a). Additionally, it requires that,
once a uranium mill tailings pile or
impoundment ceases to be operational,
it must be disposed of and brought into
compliance with the emission limit
within two years of the effective date of
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Federal Register / Vol. 59, No. 135 / Friday, July 15. 1994 / Rules arid Regulations
the standard (by December 15,1991) or
within two years of the day it ceases to
be operational, whichever is later.
Lastly, it requires monitoring of the
disposed pile to demonstrate
compliance with the radon emission
limit. See 40 CFR 61.223 and 61.224. In
its 1989 action, EPA recognized that
even though NRG implements general
EPA standards (promulgated under
UMTRCA) which also regulate these
sites and call for compliance with a 20
pCi/m2-s flux standard (see 40 CFR part
192, subpart D), the UMTRCA
regulatory program did not answer the
critical timing concern addressed by
subpart T.
The existing UMTRCA regulations set no
time limits for disposal of the piles. Some
piles have remained uncovered for decades
emitting radon. Although recent action has
been taken to move toward disposal of these
piles, some of them may still remain
uncovered for years.
54 FR at 51683. However, due to then-
existing CAA section 112(c)(l)(B)(ii),
EPA was constrained to requiring
compliance with the 20 pCi/m2-s
baseline within two years, a date the
Agency recognized many sites might
find impossible to meet. EPA
announced that those situations could
be dealt with through site-specific
enforcement agreements under CAA
section 113. Because EPA felt
constrained by the CAA as it existed at
that time, EPA stated that for those sites
the Agency would negotiate expeditious
compliance schedules pursuant to its
enforcement authority under CAA
section 113. See 54 FR 51683. By so
doing, subpart T in effect mandated that
the cover to meet that emissions level he
installed as expeditiously as practicable
considering technological feasibility.
The numerical radon emission limit
of subpart T is the same'as the UMTRCA
standard at 40 CFR part 192, subpart D
(subpart D) (although under UMTRCA,
the limit is to be met through proper
design of the disposal impoundment,
and is to be implemented by DOE and
NRG for the individual sites, while
under the CAA, the standard is an
emissions limit with compliance
established by EPA through
monitoring). However, the two year
disposal requirement and the radon
monitoring requirement were not
separately required by the then existing
UMTRCA regulations.
EPA amended 40 CFR part 192,
subpart D on November 15,1993, (58 FR
60340) to fill a specific regulatory gap
with respect to timing and monitoring.
Under subpart D, sites are now required
to construct a permanent radon barrier
pursuant to a design to achieve
compliance with the 20 pCi/m2-s flux
standard as expeditiously as practicable
considering technological feasibility
(including factors beyond the control of
the licensee). EPA announced its goal
that this occur by December 31,1997,
for those non-operational uranium mill
tailings piles listed in the MOU between
EPA, NRG and the affected Agreement
States (at 56 FR 67568), or seven years
after the date on which the
impoundments cease operation for all
other piles. The new requirement for
verifying the flux with monitoring is
meant to assure the efficacy of the
design of the permanent radon barrier
following construction.
Section 84a(2) of the Atomic Energy
Act requires NRG to conform its
regulations to EPA's regulations
promulgated under UMTRCA. As noted
above, the then existing NRG criteria
while providing a comprehensive
response to EPA's general UMTRCA
standards did not compel sites to
proceed to final closure by a certain date
nor did they require monitoring to
confirm the efficacy of the design of the
cover. NRC proposed uranium mill •
tailings regulations to conform the NRC
requirements to EPA's proposed
amended standards at 40 CFR part 192
subpart D. 58 FR 58657 (November 3,
1993). The final NRC regulations amend
Criterion 6 and add a new Criterion 6A
together with new definitions in the
Introduction to appendix A to part 40 of
title 10 of the CFR. (59 FR 28220, June
1,1994).
These CAA and UMTRCA programs
duplicate each other by creating dual
regulatory oversight, including
* independent procedural requirements,
while seeking to ensure compliance
with the same numerical 20 pCi/m2-s
flux standard. Concern over this
duplication inspired several petitions
for reconsideration, most notably from
NRC, the American Mining Congress
(AMC) and Homestake Mining Co. It
was also alleged that subpart T was
unlawful because it was physically
impossible for some sites to come into
compliance with subpart T in the time
required. While those petitions
remained pending before EPA (at least
in part), EPA has taken several actions
to address the issues they raised,
including publishing the proposal to
rescind subpart T, as well as the Final
Rule to amend 40 CFR part 192, subpart
D (UMTRCA regulations) and a Final
Rule staying subpart T pending the
conclusion of this rulemaking.
C. Clean Air Act Amendments of 1990
After promulgation of subpart T (and
receipt of reconsideration petitions), the
Clean Air Act was substantially
amended in November 1990. Included
in the amended Act was an amendment
that speaks directly to the duplication
issue. Newly enacted section 112(d)(9)
provides that no standard for
radioauclide emissions from any
category or subcategory of facilities
licensed by the Nuclear Regulatory
Commission (or an Agreement State) is
required to be promulgated under
section 112 if the Administrator
determines, by rule, and after
consultation with the Nuclear
Regulatory Commission, that the
regulatory program established by the
Nuclear Regulatory Commission
pursuant to the Atomic Energy Act for
such category or subcategory provides
an ample margin of safety to protect the
public health. This provision strives to
eliminate duplication of effort between
EPA and NRC, so long as public health
is protected with an ample margin of
safety.
Moreover, Congress expressed
sensitivity to the special compliance
problems of uranium mill tailings sites
through new section 112(i)(3). This
provision provides an additional 3-year
extension to mining waste operations
(e.g., uranium mill tailings) if the 4
years allowed (including a one year
extension) for compliance with
standards promulgated under the
amended section 112 is insufficient to
dry and cover the mining waste (thereby
controlling emissions).
D. Memorandum of Understanding
(MOU) Between EPA, NRC and Affected
Agreement States
In July of 1991, EPA, NRC and the
affected Agreement States entered into
discussions over the dual regulatory
programs established under UMTRCA
and the CAA. In October 1991, those
discussions resulted in a Memorandum
of Understanding (MOU) between EPA,
NRC and the Agreement States which
outlines the steps each party will take
to both eliminate regulatory redundancy
and to ensure uranium mill tailings
piles are closed as expeditiously as
practicable. See 56 FR 55434 (MOU
reproduced as part of proposal to stay
subpart T); see also 56 FR 67537 (final
rule to stay subpart T). The primary
purpose of the MOU is to ensure that
owners of uranium mill tailings disposal
sites that have ceased operation, and
owners of sites that will cease operation
in the f uture, bring those piles into
compliance with the 20 pCi/mz-s flux
standard as expeditiously as practicable
considering technological feasibility
(including factors beyond the control of
the licensee) with the goal that all
current disposal sites be closed and in
compliance with the radon emission
standard by the end of 1997, or within
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Federal Register /Vol. 59, Ncv 135 / Friday, July 15, 199£ /; [- Rules .'
seven years of the date on which ~
existing operations and standby sites
enter disposal status; This goal
comports with Congress's concern over
timing as reflected in CAA section
112(i)(3), as amended. " ,-." '-"'^
E. The Settlement Agreement
As contemplated by the MOU, on
December 31,1991, EPA took final
action to stay and proposed rescission of
subpart T under section 112(d)(9), and
issued an advance notice of proposed
rulemaking under UMTRCA. See 55 FR
67537,67561 and 67569. In order to
preserve its rights, EDF filed a lawsuit
challenging the legality of the stay. EDF
v. Reilly, No. 92-1082 (D.C. Cir.).
Litigation had previously been filed by
EDF, NRDC, AMC, Homestake and
others, challenging subpart T. AMC, et
al v. EPA, Nos. 90-1058, 90-1063, 90-
1068, and 90-1074 (D.C. Cir.). NRC,
AMC and Homestake had also filed an
administrative petition for
reconsideration of subpart T.
Discussions continued with the
litigants and NRC, and in February
1993, an agreement was reached to
settle the pending litigation and the
administrative proceeding, avoid
potential future litigation, and otherwise
agree to a potential approach to
regulation of NRC-licensed non-
operational uranium mill tailings
disposal sites. See 58 FR 17230 (April
1,1993) (notice announcing settlement
agreement under CAA section 113(g)).
NRC agreed in principle with the
agreement by letter.
The settlement agreement adds
comprehensive detail to, and thereby
continues, the approach set forth in the
MOtJ. Actions implemented under the
settlement agreement should result in
the expeditious control of radon-222
emissions at non-operational uranium
mill tailings disposal sites without the
delays and resource expenditures
engendered by litigation and
contentious administrative process. This
enables EPA to satisfy the criteria of
section 112(d)(9) that EPA find, by rule,
that the NRC regulatory program
protects public health with an ample
margin of safety. It does this, in part, by
providing for changing EPA's UMTRCA
regulations such that public health
would be as well protected under
UMTRCA as would implementation of
subpart T under the CAA.
H. Rationale for Final Rule To Rescind
40 CFR Part 61 Subpart T for NRC and
Agreement State Licensees ,-..;; :; ,
In light of the new statutory authority
provided EPA by section 112(d)(9) of
the Clean Air Act as amended, EPA met
with NRC and the affected Agreement
States to determine whether, with- '•"-"
certain mbdificationsTo its regulatory ;"
program under UMTRCA,;the NRC •'•'- ~-"- \
regulatory program rhight provide an :-;
ample margin of safety. If so, subpart T _
would be rendered superfluous arid, ;
therefore, needlessly duplicative anoV '^
bturdehsoine such that rescission ••"•-
pursuant to CAA section ii2(d)(9j '^
would be appropriate. r ;-:-. ••"T: * rV
In applying the risk methodology for
CAA" section 112 to the risk assessment
for subpart T; EPA has already
determined that the baseline that would
result once the 20 pCi/m2-s UMTRCA :
standard is met protects public health
with an ample margin of safety. Thus,
since the regulatory "program *: ^ • ;
implemented by NRC assures that sites
will achieve the baseline (20 pCi/m^-s)
as soon as practicable considering
technological feasibility and factors
beyond the control of the licensee, the
NRC program protects the public to the
same extent as subpart T, and subpart T
is not necessary for these facilities. More
specifically, appropriate modifications
to the UMTRCA regulatory scheme as;;"
implemented by NRC and the affected
Agreement States to ensure specific, :
enforceable closure deadlines and .
monitoring requirements such that .
compliance with the baseline occurs as
expeditiously as practicable considering
technological feasibility and factors
beyond the control of the licensee, _~; ,
protect public health with an ample ,
margin of safety. In so concluding, EPA
relies wholly upon the risk analysis it ,
conducted in promulgating subpart T.,
EPA is not revisiting that analysis here.
A. The Regulatory Scheme Under
UMTRCA ; - ' -:'"'-; •••/•^'y
As a supplement to the Atomic ; ;
Energy Act of 1954, as amended, ; ;;
UMTRCA (42 U.S.C. 2022, 7901-7942)
was enacted to comprehensively
address the dangers presented by ;
uranium mill tailings, including their,',
disposal: ,: _ "-." /. '•;., '..,7Z"'
Uranium mill tailings located at active and
inactive mill operations may pose apotential
and significant radiation health hazard to the
public, and * * * the protection of the ;
public health, safety, and welfare * * *
require[s] that every reasonable effort he •
made to provide for the stabilization,
disposal, and control in a safe and • , • -
environmentally sound manner of such
tailings in order to prevent or minimize
radon diffusion into the environment * * *.
42 U.S.C. 7901(a); see AmericaniMining
Congress v. Thomas, 772 F.2d 617 (10th
Cir. 1985), cert, denied, 426 U.S. 1158
(1986). As to uranium mill tailings
disposal sites in particular, UMTRCA v™
gives the Department of Energy (DOE)
the responsibility to clean up and ".-'-
dispose'of certain sites (i.e., Title 1)1 and
gives NRG the responsibiUty for «"!«*¥
regulating those sites that are owned- -'•
and operated by its licensees (i.e., TitiS
II). EPA is responsible for prorhul|ating;
J/L _ «A«*ni.«11*v 'n«nl-innl-ilf% "j-»riT71-I'/-\MTYiaYlta"l •!'
..
, 724 F.2d atv621.
published its:final UMTRCA regulation's
on December;i5;^1982 for Title I sites-*7-1
arid on September 30,1983 for title II"'*
sites. 48 FR 590 and 48 FR-45926 "' r' '"
(codified at 40"CFR^part 192).-idn> Mf
Parts of EPA's final UMTRCA^? ?! ;J^
regulations are directed to the;; •5^^t;:a
permanent disposal of uranium mlll_; '-i'~
tailings. See 40,CFRpait"192,IsubpartiD.
Among the: requirements of subpart D is
the mandate-that radon releases: fr6m:!;f;
the disposal sites not exceed a flux of«"-
20 pCi/m^s. 40 CFR 192.32 (a) and (b)f:
Other aspiects of subpart D pertalnvtq - -;;
groundwater, monitoring, design, and
duration of closure. See 40 GFR 192.32
and 192133. With the exception of ther^
groundwater pro visions at 40 CFR
192.20(a)(2)-(3), applicableto Title;!"^:
sites, all aspects of EPA's regulations
were upheldlby the Tenth Circuit in ? '
AMCv. Thomas. 772 F;2d at 640. EPAF
is currently engaged in rulemaking to :-"
address the court's remand of the Title 1
I groundwaterjprovisions. • :• v :*• :;^s
Because NRC implements EPA^s ::,,.?
general UMTRCA standards Tor its aoc*
licensees (as do its Agreement States), it
has promulgated its own: implementing:
regulations in the form of "criteria." See
generally 10 CFR part 40, appendix A;; r
While these criteria set forth a variety of
specific requirements—financial, ,•:/::/ :
technical, and administrative^—to .: .-•.-•..'
govern the finalreclamation (i.e., sc
closure) design for each disposal site, ;;,
they also provide for "site-specific"
flexibility by authorizing alternatives
that are at least a's stringent as EPA's : vs
general"standards and NRC's Criteria,;:
"to the extent practicable" as provided
in section 84c of the Atomic Energy Act
of 1954,"as amended; 10 CFR part;40, en
appendix A, Introduction.^" !„".:.• J..-»•'
Overall; NRC's imprementation ,•-: an;
criteria set forth a rigorous program: L ::
governing the reclamation of _the '•: .,21 '•
disposal sites so that closure will (1) last
for 1,000 years" to the extent reasonable,
but in any event at least 200 years,!and
(2) Umit radon release to 20 pGi/m?-s^; :
throughout that period. The.design inust
be able to withstaifd extreme weather
and other natural forces. Uportreview, H
EPA believed the NRC criteria comprise
a comprehensive response to EPA's. J:'
general standards at 40 CFR part 192,:; i
subpart D. However, as noted above,:
nothing in either EPA's 1983 general::.::;
standards or NRC's 1985 amended ; •
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Federal Register / Vol. 59, No. 135 / Friday, July 15, 1994 / Rules and Regulations 36285
monitoring requirements for non-
operational uranium mill tailings piles.
These amendments would ensure timely
compliance and add monitoring
requirements currently lacking in the
UMTRCA regulations.
EPA published a notice on June 8,
1993, proposing to amend 40 CFR part
192, subpart D. (58 FR 32174). On
November 15,1993, EPA published the
Final Rule amending 40 CFR part 192,
subpart D. (58 FR 60340). This Final
Rule requires: (1) Emplacement of a
permanent radon barrier constructed to
achieve compliance with, including
attainment of, the 20 pCi/m^s flux
standard by all NRC or Agreement State
licensed sites that, absent rescission,
would be subject to subpart T; (2)
interim milestones to assure appropriate
progress in emplacing the permanent
radon barrier; and (3) closure of the site
closure as expeditiously as practicable
considering technological feasibility
(including factors beyond the control of
the licensee) after the impoundments
cease operation. EPA announced a goal
that this occur by December 31,1997,
for those non-operational uranium mill
tailings piles listed in the MOU between
EPA, NRC and affected Agreement
States (at 56 FR 67568), or seven years
after the date on which the
impoundments cease operation for all
other piles.
As intended by EPA, the phrase "as
expeditiously as practicable considering
technological feasibility," means as
quickly as possible considering: (1) The
physical characteristics of the tailings
and sites; (2) the limits of available
technology; (3) the need for consistency
with mandatory requirements of other
regulatory programs; and (4) factors
beyond the control of the licensee.
While this phrase does not preclude
economic considerations to the extent
provided by the phrase "available
technology," it also does not
contemplate utilization of a cost-benefit
analysis in setting compliance
schedules. The radon control
compliance schedules are to be
developed consistent with the targets set
forth in the MOU as reasonably applied
to the specific circumstances of each
site.
EPA recognized that the UMTRCA
regulatory scheme encompasses a
design standard. EPA made minor
amendments to this scheme to better
facilitate implementation of the
regulation without fundamentally
altering the current method of
compliance. Subpart D, as amended,
requires site control be carried out in
accordance with a written tailings
closure plan (radon), and in a manner
which ensures that closure activities are
initiated as expeditiously as practicable
considering technological feasibility
(including factors beyond the control of
licensees). The tailings closure plan
(radon), either as originally written or
subsequently amended, will be
incorporated into the individual site
licenses, including provisions for and
amendments to the milestones for
control, after NRC or an affected
Agreement State finds that the schedule
reflects compliance as expeditiously as
practicable considering technological
feasibility (including factors beyond the
control of tiie licensee). The compliance
schedules are to be developed
consistent with the targets set forth in
the MOU as reasonably applied to the
specific circumstances of each site with
a goal that final closure occur by
December 31,1997, for those non-
operational uranium mill tailings piles
listed in the MOU between EPA, NRC
and affected Agreement States (at 56 FR
67568), or seven years after the date on
which the impoundments cease
operation for all other piles. These
schedules must include key closure
milestones and other milestones which
are reasonably determined to promote
timely compliance with the 20 pCi/m2-
s flux standard. Milestones which are
not reasonably determined to advance
timely compliance with the radon air
emissions standard, e.g. installation of
erosion protection and groundwater
corrective actions, are not relevant to
the tailings closure plans (radon). In
addition, subpart D requires that
licensees ensure that radon closure
milestone activities, such as wind
blown tailings retrieval and placement
on the pile, interim stabilization
(including dewatering or the removal of
freestanding liquids and recontouring),
and radon barrier construction, are
undertaken to achieve compliance with,
including attainment of, the 20 pCi/m2-
s flux standard as expeditiously as
practicable considering technological
feasibility.
The goal of the amendments to
subpart D is for existing sites, or those
that become non-operational in the
future, to achieve compliance as
expeditiously as practicable considering
technological feasibility (including
factors beyond the control of licensees)
within the time periods set forth in the
MOU, including Attachment A thereto,
and for new sites to achieve compliance
no later than seven years after becoming
non-operational.
However, if the NRC or an Agreement
State makes a finding that compliance
with the 20 pCi/m2-s flux standard has
been demonstrated through appropriate
monitoring, after providing an
opportunity for public participation,
then the performance of the milestone(s)
may be extended. If an extension is
granted, then during the period of the
extension, compliance with the 20 pCi/
m2-s flux standard must be
demonstrated each year. Additionally,
licensees may request, based upon cost,
that the final compliance date for
emplacement of the permanent radon
barrier, or relevant milestone set forth in
the applicable license or incorporated hi
the tailings closure plan (radon), be
extended. The NRC or an affected
Agreement State may approve such a
request if it finds, after providing the
opportunity for public participation,
that: (1) The licensee is making good
faith efforts to emplace a permanent
radon barrier constructed to achieve the
20 pCi/m2-s flux standard; (2) such
delay is consistent with the definition of
"available technology;" and (3) such
delay will not result in radon emissions
that are determined to result in
significant incremental risk to the
public health. Such a finding should be
accompanied by new deadlines which
reasonably correspond to the target
dates identified in Attachment A of the
MOU. (56 FR 67569).
EPA expects the NRC and Agreement
States to act consistently with their
commitment in the MOU and provide
for public notice and comment on
proposals or requests to (1) incorporate
radon tailings closure plans or other
schedules for effecting emplacement of
a permanent radon barrier into licenses
and (2) amend the radon tailings closure
schedules as necessary or appropriate
for reasons of technological feasibility
(including factors beyond the control of
the licensees). Under the terms of the
MOU, NRC should do so with notice
timely published in the Federal
Register. In addition, consistent with
the MOU, members of the public may
request NRC action on these matters
pursuant to 10 CFR 2.206. EPA also
expects the Agreement States to provide
comparable opportunities for public
participation pursuant to their existing
authorities and procedures.
The UMTRCA regulations, as
promulgated by EPA and implemented
by NRC prior to the 1993 amendments,
while ultimately limiting emissions to
the same numerical level as subpart T,
were supported by a variety of design-
based substantive and procedural
requirements that speak to UMTRCA's
unique concern that final site closure
occur in a manner that will last 1,000
years or at least 200 years, but did not
require monitoring of emissions to
confirm the performance of the earthen
cover. See generally 10 CFR part 40,
appendix A and 40 CFR part 192.
Subpart D, as amended, requires all
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36286 Federal Register / Vol. 59, No. 135 / Friday, July 15, 1994 / Rules and Regulations
appropriate monitoring be conducted
pursuant to the procedures described in
40 CFR part 61, appendix B, Method
115, or any other measurement method
proposed by a licensee and approved by
NRG or the affected Agreement State as
being at least as effective as EPA
Method 115 in demonstrating the
effectiveness of the permanent radon
barrier in achieving compliance with
the 20 pCi/m2-s flux standard. After
emplacement of a permanent radon
barrier designed and constructed to
achieve compliance with, including
attainment of, the 20 pCi/m2-s flux
standard, the licensee shall conduct
appropriate monitoring and analysis of
the radon flux through the barrier. This
monitoring will verify that the design of
the permanent radon barrier is effective
in ensuring that emissions of radon-222
will not exceed compliance with the 20
pCi/m2-s flux standard, as contemplated
by 40 CFR 192.32(b)(lXii). EPA intends
that the permanent radon barrier be
designed to ensure sustained
compliance with the 20 pCi/m2-s flux
standard by all sites, but does not
require continuous emissions
monitoring. Rather, a single monitoring
event may suffice to verify the design of
the permanent radon barrier to ensure
continued compliance. Note, however,
that if the NRC or an Agreement State
extends the time for performance of
milestones based on a finding that
compliance with the 20 pCi/m2-s flux
standard has been demonstrated by
appropriate monitoring, compliance
with the 20 pCi/m2-s flux standard must
be demonstrated each year during the
period of the extension.
2. NRC Regulatory Action
On May 20,1994, the Commissioners
approved final amendments conforming
10 CFR part 40, appendix A to 40 CFR
part 192, subpart D. The final
regulations adopted by NRC amend
Criterion 6, add a new Criterion 6A and
new definitions contained in the
Introduction to appendix A. Criterion 6
was revised to provide for appropriate
verification that the "final" (or
"permanent" as defined by EPA) radon
barrier, as designed and constructed, is
effective in controlling releases of
radon-222 to a level no greater than 20
pCi/m2-s when averaged over the entire
pile or impoundment. Criterion 6(2) (59
FR 28220, June 1,1994). The licensee
must use EPA Method 115, or another
method approved by the NRC as being
at least as effective in demonstrating the
effectiveness of the "final" radon
barrier. Id. If the reclamation plan
specifies phased emplacement of the
"final" radon barrier, the verification
must be performed on the portion of the
pile or impoundment as the "final"
radon barrier for that portion is
emplaced. Additionally, certain
reporting and recordkeeping is required
in connection with the verification of
the effectiveness of the "final" radon
barrier. Criterion 6(4) (59 FR 28220,
June 1,1994).
The Introduction section of appendix
A to part 40 was amended by adding the
following definitions: as expeditiously
as practicable considering technological
feasibility, available technology, factors
beyond the control of the licensee, final
radon barrier, milestone, operation and
reclamation plan. While supbart D
requires emplacement of the
"permanent" radon barrier, NRC
requires emplacement of the "final"
radon barrier. According to NRC, the
definition of final radon barrier, is
intended to "facilitate the drafting of
clear regulatory text and to eliminate
any ambiguity with respect to
compliance with the 20 pCi/m2-s 'flux
standard' after completion of the final
earthen barrier and not as a result of any
temporary conditions or interim
measures." (59 FR 28222, June 1,1994).
The final definitions of factors beyond
the control of the licensee and available
technology have been revised to include
a list of possible factors and examples
of grossly excessive costs respectively,
consistent with subpart D.
Criterion 6A paragraph 1 requires
completion of the "final" radon barrier
as expeditiously as practicable
considering technological feasibility
after a pile or impoundment containing
uranium byproduct materials ceases
operation, and requires it to be done in
accordance with a written Commission-
approved reclamation plan. In addition,
this paragraph requires inclusion of
specified interim milestones as a
condition of the individual site license.
Criterion 6A also specifies the
conditions for Commission approval of
extensions for performance of
milestones and continued acceptance of
uranium byproduct and other materials
in the pile or impoundment. 10 CFR
part 40, appendix A Criterion 6A (2) and
(3) (59 FR 28220, June 1,1994). These
provisions vary somewhat from NRC's
proposal, to reflect changes made in
EPA's final amendments to subpart D at
§§ 192.32(a)(3) (iv) and (v). The changes
are "(1) that only byproduct material,
not 'similar' material, will be approved
for continued disposal after the final
radon barrier is essentially complete
and the verification of radon flux levels
has been made, and (2) that public
participation is specifically to be
provided for only in the case of
continued disposal after radon flux
verification, in addition to general
clarification of the paragraph." (59 FR
28224, June 1,1994).
Additionally, NRC's final regulations
in Criterion 6A provide for public
participation consistent with the MOU
and the settlement agreement. Such
public participation will be provided
through a notice published in the
Federal! Register including the
opportunity for public comment on the
proposed license amendment and the
opportunity to request an informal
hearing in accordance with the
Commission's regulations at 10 CFR part
2, subpart L. The final regulations
contain various revisions to NRC's
proposal, both substantive and editorial
in nature, primarily for consistency with
EPA's final amendments to subpart D.
EPA believes the final revisions
clarify NRC's proposal. EPA further
believes that although NRC's
conforming regulations are not identical
to subpart D, the differences are minor
in nature, and properly reflect
application of the subpart D
requirements to NRC's separate
regulatory program. NRC's final rule
appropriately conforms its regulations
to 40 CFR part 192 subpart D. EPA notes
that NFC's conforming amendments are
an important consideration in EPA's
determination that the NRC regulatory
program protects the public health with
an ample margin of safety.
3. Amendment of NRC and Agreement
State Licenses
Consistent with their commitments
under the MOU, as well as EPA's
previous proposal to rescind subpart T
(56 FR 67561 December 31,1991), NRC
and the affected Agreement States
agreed to amend the licenses of all non-
operational uranium mill tailings sites
to ensure inclusion of schedules for
emplacing a permanent radon barrier on
the tailings impoundments, as well as
interim milestones (e.g., wind blown
tailings retrieval and placement on the
pile, and interim stabilization). To this
end, NRC and the Agreement States
requested the licensees to voluntarily
seek amended licenses and have
completed processing those requests.
NRC has continued the spirit of
cooperation between EPA and NRC by
kee ping; the Agency apprised of the
status of the approval of reclamation
plans and amendment of licenses.
As of September 30,1993, NRC and
the Agreement States had completed all
license amendments for closure of
licensed non-operational
impoundments, with the exception of
the license amendment incorporating
the reclamation plan for the Atlas site
located in Moab, Utah.
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Federal Register / Vol. 59, No. 135 / Friday, July 15, 1994 / Rules and Regulations 36287
NRC informed EPA by letter that the
Commission received extensive
comments on NRC's July 20,1993
proposal to approve the Atlas
reclamation plan, including the closure
schedule and interim milestones
required by the MOU, and the
Environmental Assessment and the
Finding of No Significant Impact for the
Atlas mill. NRC rescinded its Finding of
No Significant Impact for the Atlas mill
in October 1993. (58 FR 52516, October
8,1993). One issue appears to be the
potential for flooding of the Atlas
impoundment if it is reclaimed on-site,
due to the proximity of the site to the
Colorado River. This concern and others
appear to have caused delays in the
license amendment for this site. NRG is
actively pursuing a timely final decision
on the acceptability of the existing Atlas
site and its reclamation plan. To this
end, NRG informed EPA by letter dated
December 28,1993, that NRG has
conducted several meetings with the
various representatives enumerated
above and has requested additional
technical information from the licensee.
On March 30,1994, NRG published a
Notice of Intent to Prepare an
Environmental Impact Statement and to
Conduct a Scoping Process. (59 FR
14912). In that notice, NRG states its
determination "that approval of the
revised reclamation plan constitutes a
major Federal action and that based on
the level of controversy related to the
proposed action [on-site reclamation]
and uncertainties associated with the
unique features of the Moab site,
preparation of an EIS in accordance
with the National Environmental Policy
Act (NEPA) and the NRC's
implementing requirements in 10 CFR
part 51 is warranted." (59 FR 14913,
March 30,1994). The notice describes
the proposed action, possible alternative
approaches and the scoping process.
The alternative approaches include
moving the pile to one of two alternative
sites. Id.
The near edge of the town of Moab is
located about 2 km to the east of the
Atlas tailings impoundment. However,
it appears the area within a 1.5 km
radius of the Atlas mill tailings
impoundment site is sparsely
populated. An interim cover is being
placed over the impoundment for radon
emission control as the Atlas tailings
impoundment dries sufficiently to allow
access of the necessary equipment. As
discussed in the Background
Information Document (BID) for the
amendments to 40 CFR part 192 subpart
D, interim covers significantly reduce
radon emissions. Technical Support for
Amending Standards for Management of
Uranium Byproduct Materials: 40 CFR
Part 192 Background Information
Document, EPA 402-R-93-085, October
1993.
NRG announced on May 11,1994 (59
FR 24490) that Atlas Corporation
applied to amend condition 55 of its
source material license. Atlas proposed
to amend the milestone dates by
extending the dates for windblown
tailings retrieval and placement on the
pile, placement of the interim cover and
placement of the final radon barrier by
one year. NRC has informed EPA that
the Commission approved the extension
of the date for placement of the interim
cover to February 15,1995 and that the
milestone for emplacement of the
"final" radon barrier was not extended.
See Docket Entry A91-67IV-D-50
(Letter from NRC to Atlas).
Since NRC will notice any proposed
change in the milestone date for
emplacement of the permanent radon
barrier, EPA and others will have the
opportunity to monitor such an
extension at that time. Under the
present circumstances, it appears an
extension of the MOU target date of
1996 would be consistent with the
factors to be considered under the "as
expeditiously as practicable" standard
at 40 CFR 192.32(a)(3)(i), since NRC has
determined there is a need for
consistency with mandatory
requirements of the National
Environmental Policy Act (NEPA) and
there may be factors beyond the control
of the licensee. 40 CFR 192.31(k). Based
on representations from NRC, EPA
believes that the extra time NRC is
talcing to further review the proposed
Atlas mill site reclamation plan is
necessary to address the large amount of
public comments received and that it
will result in a final solution that is
more responsive to public comment.
NRC and the affected Agreement
States have also agreed to enforce the
provisions of the amended licenses to
ensure compliance with the new
schedules for emplacing the permanent
radon barriers, including interim
milestones, and to ensure (and verify)
the efficacy of the design and
construction of the barrier to achieve
compliance with the 20 pCi/m2-s flux
standard contained in the amendments
to subpart D. (56 FR 67568, December
31,1991) (MOU, a copy of which was
printed at the end of the proposed rule
to rescind subpart T).
m. Final Rule to Rescind 40 CFR Part
61, Subpart T for NRC and Agreement
State Licensees
EPA is rescinding subpart T as it
applies to non-operational uranium mill
tailings disposal sites licensed by NRC
or an affected Agreement State. The
Agency sets forth this Final Rule
pursuant to its authority under section
112(d)(9) of the CAA, as amended in
1990. The support for this action
includes (1) the MOU, which reflects
consultation with NRC and the affected
Agreement States and sets forth a course
of conduct to bolster NRC's regulatory
program under UMTRCA so that it is
protective of public health with an
ample margin of safety, (2) the
settlement agreement which adds
comprehensive detail to the MOU, (3)
EPA's amendments to 40 CFR part 192,
subpart D, (4) the relevant NRC and
Agreement State actions concerning
license amendments, to date, and (5)
NRC's amendments to its
implementation regulations at appendix
A, 10 CFR part 40.
A. EPA Determination Under CAA
Section 112(d)(9)
1. Background
Section 112(d)(9) authorizes EPA to
decline to regulate radionuclide
emissions from NRC-licensees under the
CAA provided that EPA determines, by
rule, and after consultation with NRC,
that the regulatory scheme established
by NRC protects the public health with
an ample margin of safety. The
legislative history of section 112(d)(9)
provides additional guidance as to what
is meant by "an ample margin of safety
to protect the public health" and what
process the Administrator should follow
in making that determination in a
rulemaking proceeding under section
112(d)(9). The Conference Report
accompanying S. 1630 points out that
the "ample margin of safety" finding
under section 112(d)(9) is the same
"ample margin of safety" requirement
that was contained in section 112 of the
CAA prior to its amendment in 1990.
The conferees also made clear that the
process the Administrator was expected
to follow in making any such
determination under section 112(d)(9)
was that "required under the decision of
the U.S. Court of Appeals in NRDC v.
EPA, 824 F.2d 1146 (D.C. Cir 1987)
(Vinyl Chloride)." H. Rep. No. 101-952,
101st Cong., 2d Sess. 339 (1990),
reprinted in 1A Legislative History of
the Clean Air Act Amendments of 1990,
at 1789 (1993) (hereinafter "Legislative
History CAAA90").
EPA has already made a
determination in promulgating subpart
T that compliance with the 20 pCi/m2-
s flux standard protects public health
with an ample margin of safety. EPA
conducted a risk analysis in
promulgating subpart T in 1989. At that
time, EPA determined that the 20 pCi/
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36288 Federal Register / Vol. 59, No. 135 / Friday, July 15, 1994 / Rules and Regulations
m2-s flux standard was a "baseline" that
was provided by EPA's general
UMTRCA standards at 40 CFR part 192,
subpart D. EPA further determined that
compliance with that baseline would be
protective of public health with an
ample margin of safety. EPA
promulgated subpart T to ensure
achievement of the flux standard at non-
operational sites in a timely manner, hi
conducting this rescission rulemaking,
EPA is not revisiting either the risk
analysis or decision methodology that
supported the promulgation of subpart
T; rather, EPA is only visiting whether
NRC's regulatory program under
UMTRCA will result in meeting the 20
pCi/m2-s flux standard established in
subpart T as being the level that
provides an ample margin of safety,
with compliance achieved in a timely
manner thereby rendering subpart T
unnecessarily duplicative.
EPA's determination that the NRG
regulatory program protects public
health with an ample margin of safety
includes a finding that NRG and the
affected Agreement States are
implementing and enforcing, in
significant part on a programmatic and
site-specific basis: (1) The regulations
governing the disposal of uranium mill
tailings promulgated by EPA and NRG
consistent with the settlement
agreement described above and (2) the
license (i.e., tailings closure plan)
requirements that establish milestones
for the purpose of emplacing a
permanent radon barrier that will
achieve compliance with the 20 pCi/m2-
s flux standard.
2. EPA's UMTRCA Standards
As discussed above, EPA has
modified its UMTRCA regulations (40
CFR part 192 subpart D) to require
compliance with the 20 pCi/m2-s flux
standard as expeditiously as practicable
considering technological feasibility
(and factors beyond the control of the
licensee), and to require appropriate
monitoring to verify the efficacy of the
design of the permanent radon barrier.
By definition, no more rapid
compliance can occur, as a practical
matter, because this schedule represents
the earliest that the sites could be closed
when all factors are considered. EPA
expects that these compliance schedules
were developed and will be modified
consistent with the targets set forth in
the MOU as reasonably applied to the
specific circumstances of each site.
When EPA promulgated subpart T it
recognized that many sources might not
be able to comply with the two year
compliance date then, required pursuant
to section 112. Based on this, subpart T
includes a provision that in such a case
EPA would "establish a compliance
agreement which will assure that
disposal will be completed as quickly as
possible." 40 CFR 61.222(b). The time
period required for closure under
subpart D embodies the same approach.
hi practice, therefore, both subpart T
and subpart D establish the same basic
timeframes for achievement of the flux
standard. Assuming NRC and the
Agreement States faithfully implement
subpart D and the license amendments
required under subpart D, EPA would
not expect there to be any significant
difference between these two programs
in the amount of time required for sites
to comply with the flux standard.
As discussed above, subpart D as
amended, provides that NRC may grant
an extension of time to comply with
either of the following deadlines: (1)
Performance of milestones based upon a
finding that compliance with the 20
pCi/m2-s flux standard has been met or
(2) final compliance beyond the date or
relevant milestone based upon cost.
EPA considers these two bases upon
which NRC may grant an extension to
be mutually exclusive, i.e., a request for
a specific extension may be based on
one or the other but not both grounds.
If a milestone is being extended for a
basis other than cost, such an extension
may be granted if NRC finds that
compliance with the 20 pCi/m2-s flux
standard has been demonstrated using
EPA Method 115 or an NRC approved
alternative, hi addition the site must
continue to demonstrate compliance
with this flux standard on an annual
basis. However, if a licensee requests
extension of the final compliance date
(or relevant milestone) based upon cost,
such an extension may only be granted
if NRC finds that the three criteria
specified in 40 CFR section
192.32(a)(3)(iii) are met. Any extensions
of the final compliance date based upon
cost will by the nature of the criteria be
granted on a site-specific basis.
If a licensee requests an extension of
the final compliance date based upon
cost, technology may not be used as a
basis for granting the extension unless
the costs are grossly excessive, as
measured by normal practice within the
industry. EPA recognizes that the
emissions from the pile may exceed the
20 pCi/m2-s flux standard pending final
compliance, but believes these increases
will be minimal and of limited duration.
EPA does not anticipate the short
extensions in the time to complete the
radon barrier contemplated in subpart D
and the NRC conforming amendments
to increase the maximum lifetime
individual risk beyond 1 in 10,000, the
level which EPA found presumptively
safe under the benzene policy, and for
this category, protective of the public
health with an ample margin of safety
in promulgating subpart T. 54 FR 51656
(December 15,1989). EPA believes that
during the short extensions, this is
consistent with the reality of short-term
risks from radon emissions during the
period of delay, and consistent with the
risks associated with negotiated
compliance agreements when non-
operational sites fail to close within the
two-year period required by subpart T.
EPA believes these emissions should
not exceed those emissions which could
occrar under subpart T if compliance
agreements had been negotiated.
Extensions based upon cost will only be
granted if NRC or an Agreement State
findi;, after providing an opportunity for
public participation, that the emissions
caused by the delay will not cause
significant incremental risk to the
public health. Additionally, a site
requesting an extension based upon cost
must demonstrate that it is making a
good! faith effort to emplace the
permanent radon barrier. In many
situations, where an interim cover is in
place, radon emissions are significantly
reduced iand tailings which are wet or
ponded emit no significant levels of
radon. If NRC or an Agreement State
uses this flexibility, public notice is
required, and as appropriate, EPA
would be aware of its use and could also
monitor extensions under the provisions
of § e>1.2J!6(c) to determine whether the
Agency should reconsider the rescission
and seek reinstatement of subpart T, on
either a programmatic or site-specific
basis.. Thus, under the circumstances,
EPA believes affording authority for
extensions of the final compliance date
based upon cost is not inconsistent with
protecting the public health.
Additionally, NRC or an Agreement
State may extend the date for
emplacement of the radon barrier based
on "factors beyond the control of the
licensee," as that term is implicit in the
definition of "as expeditiously as
practicable." EPA understands that
under subpart D's provisions there is no
bar to NRC or an Agreement State
reconsidering a prior decision
establishing a date for emplacement of
the radon barrier that meets the '
standard of "as expeditiously as
practicable considering technological
feasibility." Such reconsideration could,
for example, be based on the existence
of factors beyond the control of the
licensee, or on a change in any of the
various factors that must be considered
in establishing a date that meets the "as
expeditiously as practicable" standard
of § 192.32(a)(3)(i). However, EPA
stresses that such a change in
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Federal Register / Vol. 59, No. 135 / Friday, July 15, 1994 / Rules and Regulations
circumstances would not automatically
lead to an extension. It would be
incumbent on NRC or an Agreement
State to evaluate all the factors relevant
under § 192.32(a)(3)(i) before it changed
a previously established milestone or
date for emplacement of the final
barrier, and any new date would have
to meet the standard set out in
§ 192.32(a)(3)(i). Finally, NEC's and
Agreement States' authority to
reconsider previously established
milestones or dates would include
authority to shorten or speed up such
dates, as well as extend them. EPA also
expects that public participation
consistent with that level of
participation provided in the MOU and
the settlement agreement will be
afforded the public by NRC or an
Agreement State in amending a license
due to "factors beyond the control of the
licensee," or for any other basis.
3. NRC's Conforming Regulations
As discussed previously, the
Commission has approved final
regulations to conform appendix A of 10
CFR part 40 to EPA's general standards
promulgated under UMTRCA. (59 FR
28220, June 1,1994.) EPA is today
making a determination that NRC's final
regulations support rescission. EPA
believes NRC's final regulations
adequately and appropriately
implement EPA's amendments to 40
CFR part 192, subpart D. This
determination is supported by the
comments received in response to EPA's
supplemental proposal to rescind
subpart T. (59 FR 5674, February 7,
1994.) All commenters agreed that
NRC's proposed conforming regulations
support EPA's proposal to rescind
subpart T by either adequately and
appropriately implementing subpart D,
or may reasonably be expected to do so
when finalized.
4. License Amendments
Table 1 illustrates that all NRG and
affected Agreement State licenses,
except one, have been modified
pursuant to the MOU. Attachment A to
the MOU, developed in conjunction
with each site and considering the
particular circumstances of that site,
lists target dates for emplacement of the
permanent radon barrier with "a
guiding objective that this occur to all
current disposal sites by the end of
1997, and within seven years of when
the existing operating and standby sites
cease operation." 56 FR 67568
(December 31,1991). The MOU requires
NRG and the Agreement States to
"ensure * * * that cover emplacement
on the tailings impoundments occurs as
expeditiously as practicable considering
both short-term reductions in radon
releases and long-term stability of the
uranium mill tailings." Id. Under the
MOU, the compliance schedules (i.e.,
tailings closure plans (radon) under
subpart D, as amended) were to be
developed consistent with the MOU
targets as reasonably applied to the
specific circumstances of each site, with
a goal that final closure occur by
December 31,1997, for those non-
operational uranium mill tailings piles
listed in the MOU. EPA believes the
NRG and the Agreement States have
acted in good faith to implement their
commitments under the MOU by
amending the site licenses. EPA also
believes that uranium mill tailings
disposal site owners and operators have
acted in good faith by voluntarily
requesting the license amendments. The
license amendments by NRG and the
affected Agreement States appear to
reflect closure as expeditiously as
practicable under the terms of the MOU
and the requirements of subpart D as
amended, thus supporting rescission of
subpart T and a determination that the
NRG program protects pubh'c health
with an ample margin of safety. See
Docket Entry A91-67 IV-D-46 (NRC
Comments in Response to EPA's
February 7,1994 Proposal); Docket
Entry A91-67II-D-23 (February 7,
1994, Note to Docket from Gale
Bonanno, Office of Radiation and Indoor
Air, Criteria and Standards Division
detailing approval of NRC licenses and
milestone schedules); Docket Entry
A91-67 n-D-45 (June 1,1994, Note to
Docket from Gale Bonanno, Office of
Radiation and Indoor Air, Criteria and
Standards Division detailing approval of
Agreement State licenses and milestone
schedules); Docket Entry A91-67 IV-D-
52 (June 13,1994, Letter to Gail
Bonanno from State of Washington);
Docket Entry A91-67IV-D-49 (Letter to
Gail Bonnano [sic] providing
information for Washington State
licensees, Dawn Mining Company and
Western Nuclear, Inc.). In addition,
consistent with their commitments
under the MOU, NRC and the affected
Agreement States are providing
opportunities for pubh'c participation in
the license amendment process.
TABLE 1.—STATUS OF RECLAMATION PLANS FOR NON-OPERATIONAL URANIUM MILL TAILINGS IMPOUNDMENTS 1
Facility
AMI"* f3n«i Mllte WY
Atlno Mnnh 1 Itnh
Fftrrtnnwn MIntnn Fnrrf WA
1 tMPTPA Mm/hatl HO
IIMf* f*hnrrh Rnnk MM
WNI. Sherwood. WA
Approval
date for rec-
lamation plan
4/10/83
1/30/92
3
9/8/93
9/30/93
9/30/93
7/23/93
9/17/93
10/23/89
10/5/90
9/29/93
5/1/89
8
7/30/93
12/31/87
3/11/92
4/3/92
9/30/93
Approval
date for rec-
lamation
milestones
11/5/92
11/9/92
11/4/92
9/8/93
9/30/93
9/30/93
11/9/92
12/29/92
1/21/93
1/22/93
12/31/96
11/4/92
12/2/92
7/30/93
12/31/87
10/29/92
11/5/92
9/30/93
MOU date for
final radon
cover
1995
1995
1996
1996
2010
1997
s 1996/2001
1998
1995
1997
1996
1992
1995
1997
62002
1997
1996
1996
License date
for final
radon cover
12/31/94
2 6/30/96
12/28/94
12/31/96
12/31/93
•M2/31/18
12/31/95
612/31/01
9/30/98
12/31/95
7 12/31/97
12/31/96
12/31/92
12/31/95
12/31/97
12/31/96
12/31/97
12/31/96
« 1/31/98
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36290 Federal Register / Vol. 59, No. 135 / Friday, July 15, 1994 / Rules and Regulations
TABLE 1.—STATUS OF RECLAMATION PLANS FOR NON-OPERATIONAL URANIUM MILL TAILINGS IMPOUNDMENTS 1—
Continued
Facility
WNI, Split Rock, WY
Approval
date for rec-
lamation plan
6/17/93
Approval
date for rec-
lamation
milestones
11/5/92
MOU date for
final radon
cover
1995
License date
for final
radon cover
12/31/94
? and.the affected Agreement States committed to complete review and approval of reclamation plants, including schedules for emplace-
ment of earthen covers on non-operational tailings impoundments by September 30,1993.
2 Two impoundments: 1996 date is for impoundment which was accepting waste from off-site for disposal. Licensee has requested an amend-
ment for a one year extension of dates for placement of radon barrier on the two piles.
3 Delayed pending resolution of issues raised in response to Federal Register notice dated July 20 1993
4 Closure date change is because of groundwater remediation schedule.
s Two impoundments: large impoundment to be completed by 1996, small impoundment by 2001 except for areas covered by evaporation
ponds. Final radon barrier placement over the remainder of the small impoundment shall be completed within two years of completion of ground-
W3t©r corrective dcttons.
6 Date in the MOU is for final reclamation.
7 Two impoundments: final radon barrier placement on both by December 31,1997. One active cell.
8 Various early 1980s.
The license amendments noted in
Table 1 reflect consistent application of
the dates contained in the MOU. Three
exceptions are worth noting. First,
although the license amendment to
incorporate the reclamation plan for the
Atlas site is not complete, EPA is
confident that NRG is actively pursuing
final resolution of the pending
reclamation plan. In the notice
announcing its intent to prepare an
environmental impact statement, NRG
published a tentative schedule to:
prepare a draft EIS and issue for public
comment in October 1994; provide a 45
day comment period; and publish the
final EIS in April 1995. (59 FR 14914,
March 30,1994). Pending final approval
of a reclamation plan, the Atlas site is
continuing to emplace an interim cover
on the pile to control radon emissions,
and recently received approval to
extend the date for placement of the
interim cover to February 15,1995. The
date for placement of the "final" radon
barrier was not extended by NRG and
remains December 31,1996. See Docket
Entry A91-67 IV-E-5 (Note to Docket
from Gale Bonanno, Office of Radiation
and Indoor Air, Criteria and Standards
Division, summary of telephone
conversation with legal counsel to
AMC); Docket Entry A91-67 IV-D-50
(Letter from NRG to Atlas).
Second, the license amendments for
the ANC Gas Hills site address two
separate impoundments. Consistent
with the MOU, the license amendment
for the non-operational impoundment
contains a December 31,1994, date for
emplacement of the permanent radon
barrier. On February 11,1994, NRG
published a notice of receipt of a request
to amend the reclamation schedule at
the ANC Gas Hills site. (59 FR 6658).
ANC has requested a one-year extension
of the current date for emplacement of
the permanent radon barrier. ANC
"believes [it] cannot begin authorized
restoration activities in the time
necessary to meet current reclamation
milestone dates," due to an NRG
communication "that a previous
amendment request for a reclamation
redesign proposal dated April 16,1992,
would not be reviewed by late 1992 or
early 1993." Id. NRG notes that ANC is
continuing to monitor and maintain the
interim cover. Further, NRG states—
Approval of the request will be based on
determination there be no harm to human
health or the environment, that reclamation
will be completed as expeditiously as
practical [sic], verification that rescheduling
reclamation will not impact the final closure
date for the entire facility.
Additionally, an impoundment
previously designated as operational for
in-situ waste disposal is now non-
operational. Emplacement of the
permanent radon barrier on this second
impoundment is scheduled to be
completed by June 30,1996, well within
the seven year goal of the MOU for
impoundments which cease operations
after December 31,1991.
On May 9,1994, ANC informed NRG
by letter that it would be ceasing
operations and going out of business by
the end of May 1994. On May 13,1994,
NRG issued an Order and Demand for
Information to ANC. See Docket Entry
A91-67IV-D-47. This Order requires
ANC to continue complying with all
applicable license conditions, including
monitoring and reclamation activities.
The Order further states
"[Discontinuance of those programs
and functions in the manner described
by the Licensee in its letter of May 9,
1994, would constitute a willful
violation of ANC's license." According
to the Order, abandonment would
constitute a "deliberate violation" of
section 184 of the AEA of 1954, as
amended, 10 CFR 40.41.(b), and 10 CFR
40,42. The Order further states that
"such a deliberate act of abandonment
would be a serious violation of the AEA
* * * NRG regulations, and ANC's
license," and could subject ANC and the
individuals causing the violations to
fuither enforcement actions and
potential criminal sanctions. NRG also
ordered that ANC submit additional
information in order for NRG to
determine "whether enforcement action
should be taken to ensure compliance
wiith NRG statutory and regulatory
requirements."
KPA notes that the actions taken to
date by NRG regarding this site indicate
a good faith intention to implement the
MOU and the requirements of subpart D
and to respond quickly as the situation
at the ANC Gas Hills site develops. EPA
fully expects that NRG will take actions
consistent with the Commission's
enforcement policy and authority. See
10 CFR part 2, subpart B and appendix
C. 'While difficult enforcement questions
are raised about this site, EPA notes that
the same questions would be raised if
subpart T were not rescinded. Under the
provisions of the rule adopted today, if
future developments meet the criteria
and conditions for reconsideration of
rescission, the Agency expects it would
receive a petition pursuant to
§ 6 l.22(3(b). EPA would then take action
consistent with those provisions at that
time, m any case, EPA reserves the right
to initiate reconsideration if
appropriate.
Lastly, the license amendment dates
for two additional sites, the Ford-Dawn
Mining site and the Western Nuclear,
Inc, (WNI) site both located in the
Agreement State of Washington, are also
beyond the dates contained in the MOU.
However, Washington State notes that
for these sites the closure date was
changed because of the groundwater
remediation schedule, and the difficulty
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Federal Register / Vol. 59, No. 135 / Friday, July 15, 1994 / Rules and Regulations 36291
experienced in drying the piles due to
the evaporation and precipitation rates.
In sum, EPA believes that the license
amendments adopted by the State of
Washington for these two sites reflect a
good faith attempt to implement the
MOU and reflect closure of the sites as
expeditiously as practical considering
technological feasibility under subpart
D.
While NRC and the Agreement States
have obtained license amendments for
all but one of the relevant sites, they
have not as yet established a record for
enforcement of the milestones,
including action on requests for
extensions. To date, only one extension
for placement of the interim cover at the
Atlas site has been approved by NRC.
Based on NRC representations, no
milestones occurring after the date of
the MOU, October 1991, have been
missed and, as noted in footnote 2 of
Table 1, an application for another
extension is pending but no action has
been taken. However, given their
response to the requirements of the
MOU, and the rulemaking conducted by
NRC to implement the requirements of
subpart D, EPA expects that the
milestones established in the licenses
for emplacement of the permanent
radon barrier (i.e., the tailings closure
plan (radon)) will be implemented and
enforced in significant part on a
programmatic and site-specific basis.
The relevant portions of the amended
licenses have been placed in the docket
for this action, as well as letters from
NRC to EPA apprising the Agency of the
status of the license amendments.
EPA and NRC have completed almost
all of the actions required by the MOU,
including: revising the NRC and affected
Agreement State licenses to reflect the
MOU and regulatory requirements,
promulgating amendments to EPA's
UMTRCA regulations at 40 CFR part
192, subpart D, and revising the NRC
regulations at 10 CFR part 40 to conform
to EPA's revised UMTRCA regulations.
Based on EPA's review, to date, of the
regulatory program established by NRC
under UMTRCA (including amended 10
CFR part 40, appendix A), EPA has
determined that the timing and
monitoring concerns are fully addressed
consistent with EPA's UMTRCA
standards, and the NRC criteria result in
reclamation designs and schedules fully
adequate to ensure compliance with the
20 pCi/m2-s flux standard as
expeditiously as practicable considering
technological feasibility (including
factors beyond the control of the
licensee). EPA today finds that NRC and
the affected Agreement States are or will
be implementing and enforcing, in
significant part, the regulations
governing disposal of tailings and the
license requirements (tailings closure
plan (radon)) that establish milestones
for emplacement of a permanent radon
barrier that will achieve compliance
with the 20 pCi/m^s flux standard on
a programmatic and a site-specific basis.
The Agency intends "in significant
part" to mean that NRC or an affected
Agreement State is implementing and
enforcing the regulatory and h'cense
requirements in a manner that EPA
reasonably expected to not materially
(i.e., more than de minimis)' interfere
with compliance with the 20 pCi/m2-s
standard as expeditiously as practicable
considering technological feasibility
(including factors beyond the control of
the licensee).
As announced in the February 7,
1994, proposal, EPA is taking today's
action since NRC's regulations at 10
CFR part 40, appendix A, were
effectively revised, as necessary and
appropriate to implement the revisions
to EPA's regulations at 40 CFR part 192,
subpart D. As stated in the February
1994 proposal, EPA intended to take
final action on the proposed rescission
prior to the time compliance with the 20
pCi/m2-s flux standard is achieved at all
sites.
5. Judicial or Administrative Challenges
Neither EPA nor any commenter is
aware of any judicial or administrative
challenge to these regulations that is
pending. Thus, EPA is aware of no
challenge which would present a
significant risk of interference with the
purposes and objectives of the MOU, as
reflected in the regulatory changes.
B. Reconsideration Provisions
Under the Atomic Energy Act, NRC
has the authority to waive, for reasons
of practicability, the dual requirement of
the MOU that compliance with the 20
pCi/m2-s flux standard occur as
expeditiously as practicable considering
technological feasibility. 42 U.S.C.
2114(c). NRC considers the term
"practicability" to include certain
economic considerations not
contemplated by the requirement of the
MOU that compliance occur as
expeditiously as practicable considering
technological feasibility, hi
promulgating subpart T, the CAA did
not permit, and EPA did not consider,
site-specific waivers from ultimate
compliance with that standard. Thus, as
a theoretical matter, EPA recognized in
its December 1991 proposal that this
waiver authority might be exercised in
1 The phrase "de minimis" as used in this notice
is not intended to be restricted to the meaning of
section 112(g)(l)(A) of the Clean Air Act, as
amended.
a manner not addressed in the MOU
even after the UMTRCA regulations
have been promulgated and each license
amended, although EPA has no reason
to believe such relaxation of restriction
will actually occur. Nevertheless, EPA
recognized that this authority would not
exist under the CAA and subpart T and,
thus, there was some concern over the
potential for deviation from the
agreements contained in the MOU.
1. December 31,1991 Proposed Rule to
Rescind subpart T •
In response to the concern over the
waiver authority in the Atomic Energy
Act, and in order to ensure its exercise
does not alter EPA's finding that the
NRC regulatory program protects public
health with an ample margin of safety,
EPA announced in its December 31,
1991, proposal that certain conditions
and grounds for reconsideration would
be included in any final decision to
rescind subpart T. In this way, EPA
might base its rescission finding upon
its view of the NRC regulatory program
contemplated by the MOU at the time of
taking final action, while also providing
some assurance that EPA would revisit
that finding should NRC or the affected
Agreement States substantially deviate
from that program. Thus, in December
1991, EPA proposed certain conditions
and grounds for reconsideration, to
provide assurance that any finding by
the Agency that the NRC program is
sufficient to justify rescission of subpart
T under CAA section 112(d)(9) would
be revisited if the NRC program is
actually implemented in a manner
inconsistent with that finding. The
specific reconsideration options
proposed by EPA were published at 56
FR 67565 (December 31,1991).
2. Reconsideration Options
EPA has reviewed the various options
for reconsideration proposed in
December 1991 in light of the
comprehensive details added to the
terms of the MOU by the settlement
agreement finalized in April 1993. On
February 7,1994, EPA proposed an
additional reconsideration option that is
a combination of the options proposed
in December 1991. It is in effect a hybrid
of that December 1991 proposal. While
EPA did not withdraw its prior
reconsideration proposal and the
reconsideration options contained
therein, the additional reconsideration
option proposed in February 1994 was
preferred by EPA.
3. Reconsideration Provisions Adopted
Today
EPA believes the following
reconsideration provisions adopted
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36292 Federal Register / Vol. 59, No. 135 / Friday, July 15, 1994 / Rules and Regulations
today, which include both
programmatic and site-specific bases for
reinstatement, represent a
comprehensive approach under both the
MOU and settlement agreement. The
Agency notes that the 20 pCi/m2-s flux
standard must be met by all sites as
provided by 40 CFR part 192, subpart D.
EPA does not intend to reconsider the
decision to rescind subpart T for any
site that is in fact meeting the 20 pCi/
m2-s flux standard, absent other factors
that would indicate the need for
reinstatement. For example, EPA may
initiate reconsideration under § 61.226
even if a site is meeting the 20 pCi/ m2-
s flux standard if there are factors which
show that NRG or an Agreement State
failed to implement and enforce in
significant part, the applicable
regulations, e.g., failure of that site to
emplace a permanent radon barrier
designed to meet the requirements of
subpart D.
This action amends subpart T and
establishes an obligation for the
Administrator to reinstate subpart T as
applied to owners and operators of non-
operational uranium mill tailings
disposal sites licensed by NRG or an
affected Agreement State provided
certain conditions are met.
Additionally, this action sets forth the
procedures for EPA to act on a petition
to reconsider rescission of subpart T
which seeks such reinstatement.
However, these provisions are not
intended to be exclusive. EPA reserves
the right to initiate reinstatement of
subpart T if appropriate. Pursuant to
section 553(e) of the Administrative
Procedure Act (5 U.S.C. 553(e)
interested persons may petition the EPA
to initiate reinstatement of subpart T, in
addition to petitions for reinstatement
under today's procedures.
The reconsideration provisions set
forth in § 61.226 establish procedures
for persons to petition EPA for
reconsideration of the rescission and
seek reinstatement of subpart T and
EPA's response to such petitions.
Provisions for the substantive
conditions for reconsideration of the
rescission of this subpart and
subsequent reinstatement for NRC-
licensees are also included. Under these
provisions, a person may petition the
Administrator for reconsideration of the
rescission and seek reinstatement of
subpart T under § 61.226(a) which
provides for programmatic and site-
specific reinstatement. If
reconsideration is initiated it must be
conducted pursuant to notice and
comment procedures. It is important
that any alleged failures by NRG or an
affected Agreement State to implement
and enforce the regulations governing
uranium mill tailings or the applicable
license requirements be addressed in a
timely manner. These provisions are
intended to ensure that persons may
seek recourse from the Administrator if
they are adversely affected by the failure
of NRG or an affected Agreement State
to implement and enforce, in significant
part, on a programmatic and a site-
specific basis the regulations governing
the disposal of uranium mill tailings
promulgated by EPA and NRG,
requirements of the tailings closure
plan, or license requirements
establishing milestones for the purpose
of emplacing a permanent radon barrier
that will achieve compliance with the
20 pCi/m2-s flux standard. Thus, EPA is
establishing a non-discretionary duty to
take final action granting or denying an
authorized petition for reconsideration
of the rescission of subpart T within 300
days of receipt of the petition. If EPA
grants such petition it would then
proceed to initiate rulemaking to
reinstate subpart T. The rulemaking to
reinstate subpart T, however, is not
subject to the 300-day time period. This
schedule is intended to provide EPA
and NRG adequate time to resolve any
potential problems identified by a
petition. Failure to meet this 300-day
deadline for a decision on whether to
initiate rulemaking or not could lead to
a citizen suit action in a federal District
Court under CAA section 304 for an
order that EPA take final action on the
petition. Review of that final response
would be in a federal Circuit Court of
Appeals under CAA section 307(b). If
EPA grants such a petition and initiates
rulemaking to reinstate subpart T, then
final agency action would not occur
until EPA had concluded such
rulemaking. Consistent with the
settlement agreement, EPA may propose
to grant or deny the petition within 120
days of receipt, allow a comment period
of at least 60 days, and take final action
granting or denying the petition within
120 days of the close of the comment
period.
Under today's procedures, EPA shall
summarily dismiss without prejudice a
§ 61.226(b) petition to reconsider the
rescission and seek reinstatement of
subpart T on a programmatic basis,
unless the petitioner demonstrates that
it provided written notice of the alleged
failure to NRG or an affected Agreement
State at least 60 days before filing its
petition with EPA. This notice to NRC
must include a statement of the grounds
for such a petition. This notice
requirement may be satisfied, among
other ways, by submissions or pleadings
submitted to NRC during a proceeding
conducted by NRC. The purpose of this
advance notice requirement is to
provide NRC or an affected Agreement
State with an opportunity to address the
concerns raised by the potential
petitioner. Additionally, EPA shall
summarily dismiss without prejudice a
§ 61.226(b) petition to reconsider the
rescission and seek reinstatement of
subpart T on a site-specific basis, unless
the petitioner demonstrates that it
provided, at least 60 days before filing
its petition with EPA, a written request
to NRC or an affected Agreement State
for enforcement or other relief, and
unless the petitioner alleges that NRC or
the aiffected Agreement State failed to
respond to such request by taking
action, as necessary, to assure timely
implementation and enforcement of the
20 pCi/m2-s flux standard. This
provision is intended to provide NRC or
an Agreement State with an opportunity
to address the concerns raised by the
potential petitioner through its standard
enforcement mechanisms.
The Administrator may also initiate
reconsideration of the rescission and
reinstatement of subpart T as applied to
owners and operators of non-operational
uranium mill tailings disposal sites if
EPA believes it is appropriate to do so.
For example, EPA may initiate such
reconsideration if it has reason to
behove that NRC or an affected
Agreement State has failed to
implement and enforce, in significant
part, the regulations governing the
disposal of uranium mill tailings
promulgated by EPA and NRC or the
tailings closure plan (radon)
requirements establishing milestones for
the purpose of emplacing a permanent
radon hairier that will achieve
compliance with the 20 pCi/m2-s flux
standard. Before the Administrator
initiates reconsideration of the
rescission and reinstatement of subpart
T, EPA shall consult with NRC to
address EPA's concerns. If the
consultation does not resolve the
concerns, EPA shall provide NRC with
60 days notice of the Agency's intent to
initiate rulemaking to reinstate this
subpart.
Upon completion of a reconsideration
rulemaking, EPA may: (1) Reinstate
subpart T on a programmatic basis if
EPA determines, based on the record,
that NRC has significantly failed to
implement and enforce, in significant
part, on a programmatic basis, (a) die
regulations governing the disposal of
uranium mill tailings promulgated by
EPA and NRC or (b) the license
requirements establishing milestones for
the purpose of emplacing a permanent
radon barrier that will achieve
compliance with the 20 pCi/m2-s flux
standard; (2) reinstate subpart T on a
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Federal Register / Vol. 59, No. 135 / Friday, July 15, 1994 /Rules and Regulations 36293
site-specific basis if EPA determines,
based on the record, that NRC or an
affected Agreement State has
significantly failed to implement and
enforce, in significant part, on a site-
specific basis, (a) the regulations
governing the disposal of uranium mill
tailings promulgated by EPA and NRC
or (b) the license requirements
establishing milestones for the purpose
of emplacing a permanent radon barrier
that will achieve compliance with the
20 pCi/m^s flux standard; or (3) issue
a finding that NRC is implementing and
enforcing on either a site-specific or
programmatic basis the regulations and
license requirements described above
and that reinstatement of subpart T is
not appropriate.
The regulations establish an
obligation for the Administrator to
reinstate subpart T as applied to owners
and operators of non-operational
uranium mill tailings disposal sites if
the Administrator determines by
rulemaking, based on the record, that
NRC or an affected Agreement State has
failed on a programmatic basis to
implement and enforce, in significant
part, the regulations governing the
disposal of uranium mill tailings
promulgated by EPA and NRC or the
tailings closure plan (radon)
requirements establishing milestones for
the purpose of emplacing a permanent
radon barrier that will achieve
compliance with the 20 pCi/m^s flux
standard. The Administrator also shall
reinstate subpart T on a site-specific
basis as applied to owners and operators
of non-operational uranium mill tailings
disposal sites if the Administrator
determines by rulemaking, based on the
record, that NRC or an affected
Agreement State has failed on a site-
specific basis to achieve compliance by
the operator of the site or sites with
applicable license requirements,
regulations, or standards implemented
by NRC and the affected Agreement
States. Under today's action, EPA shall
be required to reinstate subpart T only
for the failures enumerated in the
preceding sentence that may reasonably
be anticipated to significantly interfere
(i.e., more than de minimis) with the
timely emplacement of a permanent
radon barrier constructed to achieve
compliance with the 20 pCi/m^s flux
standard at uranium mill tailings
disposal sites. In rescinding subpart T,
EPA intends "hi significant part" to
mean that EPA must find that NRC or
an affected Agreement State is
implementing and enforcing, on a
programmatic and a site-specific basis:
(1) The regulations governing the
disposal of uranium mill tailings
promulgated by EPA and NRC
consistent with the MOU and settlement
agreement and (2) the tailings closure
plan (radon) requirements establishing
milestones for the purpose of emplacing
a permanent radon barrier that will
achieve compliance with the 20 pCi/m2-
s flux standard in a manner that is not
reasonably expected to materially (i.e.,
more than de minimis) interfere with
compliance with the 20 pCi/m^s flux
standard as expeditiously as practicable
considering technological feasibility
(including factors beyond the control of
the licensee). Reinstatement would
require an EPA finding that NRC or an
affected Agreement State has failed to
implement and enforce in this manner.
IV. Discussion of Comments and
Response to Comments From NPR
Public hearings on EPA's December
31,1991, proposal to rescind subpart T
(56 FR 67561) were held on January 15,
1992 in Washington, D.C. and on
January 21—22,1992 in Santa Fe, New
Mexico. Representatives of the Nuclear
Regulatory Commission (NRC), the
American Mining Congress (AMC), the
owners and operators of individual sites
and the Southwest Research and
Information Center (SWRIC) testified at
these hearings. Written comments were
also received from the Environmental
Defense Fund (EOF), NRC, AMC,
owners and operators of individual
sites, the Department of Energy and the
SWRIC.
In February 1993, an agreement was
reached between EPA, EOF, NRDC,
AMC, and individual uranium mill
tailings disposal sites.to settle pending
litigation and administrative
proceedings, avoid potential future
litigation, and otherwise agree to a
potential approach to regulation of NRC
and Agreement State licensed non-
operational uranium mill tailings
disposal sites. See 58 FR 17230 (April
1,1993) (notice announcing settlement
agreement under CAA section 113(g)).
NRC agreed in principle with the
settlement agreement. The settlement
agreement added comprehensive detail
to, and thereby continued, die approach
set forth in the MOU published with the
1991 proposal. (56 FR 67568, December
31,1991).
Written comments hi response to
EPA's February 7,1994 supplemental
proposal were received from NRC, EDF,
AMC, Homestake Mining Company, Rio
Algom Mining Corp., ARCO and
Envirocare of Utah, Inc.
Many of the parties who commented
on the December 1991 proposal also
signed the settlement agreement and
commented on the February 1994
proposal. In certain cases, a party's
comments to the December 1991
proposal are inconsistent with and
conflict with comments later submitted
in response to the 1994 proposal. Given
the intervening settlement agreement
and the revisions to EPA's and NRC's
UMTRCA regulations, EPA believes that
the more recent comments submitted by
a party, in response to the 1994
proposal, should be accorded more
weight than comments previously
submitted by that same party in 1991,
where there is inconsistency between
the comments.
In addition, EPA's review of the
comments has been limited to the
question of whether EPA should rescind
subpart T. This rulemaking was not
intended to reconsider and did not
address whether EPA should have
promulgated subpart T in 1989. EPA
therefore rejected as irrelevant to this
rulemaking, comments addressed to the
validity or appropriateness of the
promulgation of subpart T.
1. General
In response to the 1991 and 1994
Notices of Proposed Rulemaking (NPR),
NRC, environmental and industry
groups generally support EPA's
proposal to rescind 40 CFR part 61,
subpart T as applied to owners and
operators of NRC and Agreement State
licensed non-operational uranium mill
tailings disposal sites. Various
commenters to the 1994 proposal
suggested specific revisions to the
proposed regulatory text and preamble.
The Agency has reviewed all comments
and suggested revisions carefully.
Revisions to the regulatory text and
preamble have been made where
deemed appropriate.
2. Request for Comments Contained in
the 1994 NPR
hi the February 1994 proposal, EPA
requested comments on its proposed
determination that the NRC regulatory
program protects public health with an
ample margin of safety, including
comments on whether: (1) EPA has
effectively promulgated appropriate
revisions to 40 CFR part 192, subpart D;
(2) NRC's regulations at 10 CFR part 40,
appendix A either already adequately
and appropriately implement the
revisions to EPA's regulations, or may
reasonably be expected to do so prior to
rescission of subpart T; (3) the revision
of NRC and affected Agreement State
licenses reflect the new requirements of
subpart D; and (4) any judicial or
administrative challenge to EPA or NRC
regulations is expected to present a
significant risk of interference with full
compliance with the MOU and the
settlement agreement.
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36294 Federal Register / Vol. 59, No. 135 / Friday, July 15, 1994 / Rules and Regulations
Several commenters responded to the
Agency's request for comments.
Commenters believed EPA's
amendments to 40 CFR part 192,
subpart D fulfill the intent of the
settlement agreement with respect to
actions required by EPA. However,
certain commenters noted that the
settlement agreement called for action
by both EPA and NRG. The commenters
universally agreed that based upon
NRC's November 3,1993 proposal, NRG
may reasonably be expected to
adequately and appropriately
implement the Agency's amendments to
40 CFR part 192, subpart D. These
commenters believe that when finalized,
NRC's regulations at 10 CFR part 40,
appendix A should adequately comply
with the settlement agreement and
conform to EPA's subpart D UMTRCA
regulations.
Many commenters noted that NRC
and the Agreement States have
faithfully implemented their MOU
commitment to complete review and
approval by no later than September
1993 of detailed reclamation plans
including schedules for emplacing an
earthen cover on non-operational
tailings impoundments to control
emissions of radon-222 to 20 pCi/m2-s.
See 56 FR 67568, December 31,1991.
Several commenters noted that although
the license amendment for the Atlas site
in Moab, Utah is not yet complete, that
site represents a unique situation and
should not affect EPA's decision to
rescind subpart T.
No commenter was aware of any
pending judicial or administrative
challenge that would present a
significant risk of interference with the
MOU and the settlement agreement.
Additionally, EPA requested
comments on the proposed
reconsideration provisions included in a
new § 61.226 added to subpart T. In
particular EPA requested comments as
to whether these provisions effectively
implement the regulatory approach of
the settlement agreement, especially the
terms providing specific time periods
for a reconsideration rulemaking. One
commenter believed the criteria and
procedures for reconsidering the
decision to rescind subpart T were
consistent with the terms of the
settlement agreement. Several other
commenters commented as to specific
aspects of those provisions and
suggested revisions to the regulatory
language for consistency with the
settlement agreement. Specific
comments pertaining to the proposed
provisions for reconsideration of the
rescission and reinstatement of subpart
T are addressed in Section 4 below.
There was widespread agreement
among the commenters that the EPA
and NRC regulatory and licensing
framework that either has been, or is in
the process of being, implemented will
ensure that non-operational uranium
mill tailings disposal sites will achieve
the 20 pCi/m2-s flux standard as
expeditiously as practicable considering
technological feasibility.
3. Rescission of Subpart T
3.1 Timing of Rescission
Comment: In response to the 1991
proposal, one commenter noted EPA
should not rescind subpart T until the
Agency is assured that the MOU
between EPA, NRC and the affected
Agreement States is implemented and
EPA's amendments to its UMTRCA
regulations at 40 CFR part 192, subpart
D are complete.
Response: As stated in the preamble
to the 1994 proposal and the final rule
amending 40 CFR part 192, subpart D,
EPA is now rescinding subpart T for
NRC-licensed uranium mill tailings
disposal sites due to the completion of
the Agency's amendments to subpart D,
completion of NRC conforming
regulations, and completion by NRC and
affected Agreement States of various
license amendments containing
schedules for emplacement of the
permanent radon barrier. EPA believes
it is appropriate to rescind subpart T
pursuant to the authority of section
112(d)(9) of the CAA, as amended, since
NRC has established a regulatory
program to ensure that non-operational
uranium mill tailings piles will be
closed as expeditiously as practicable
considering technological feasibility.
3.2 Section 112(d)(9) of the Clean Air
Act, As Amended ("Simpson
Amendment")
Comment: In response to the 1991
proposal, one commenter argued section
112(d)(9) of the CAA, as amended,
applies prospectively and does not
authorize EPA to rescind a previously
promulgated standard.
Response: The Agency disagrees and
believes that section 112(d)(9) of the
CAA authorizes EPA to rescind
previously promulgated regulations if
certain determinations are made by
EPA. Congress clearly intended to give
the Agency the discretion to rescind
certain previously promulgated
regulations and thereby relieve affected
facilities from the burdens associated
with parallel regulation when the NRC
regulatory program would protect
public health with an ample margin of
safety. See, e.g., 136 Cong. Rec. S 3797-
99 (dally ed. April 3,1990), reprinted in
4 A Legislative History of the Clean Air
Act Amendments of 1990, at 7156-7162
(19EI3). ("Legislative History, CAAA
1990"). This Senate floor debate on
Amendment No. 1457 to S. 1630
evidences a clear intention that section
112|[d)(9) authorizes rescission of
previously promulgated radionuclide
NESHAPs. Senator Simpson, the
sponsor of the amendment, stated that
"[p]assage of this amendment will allow
EPA to replace the emission standards
issued by EPA in November 1989, for
NRC-licensed facilities, including power
plants, uranium fuel cycle facilities, and
by-product facilities, if that agency
concludes that the existing NRC
regulatory program adequately protects
public health." 4 Legislative History,
CAAA 1990 at 7158. Also see 1
Legislative History, CAAA 1990 at 778
(1993) (statement by Senator Burdick
during debate on the Conference
Committee Report) ("It is clear that the
existing regulatory program under the
Atomic Energy Act protects the public
health with an ample margin of safety.
Under these circumstances, additional
or dual regulation under the Clean Air
Act does not make any sense.")
Additionally, in commenting on the
1994 proposal, this commenter
expressed the belief that the 1994
proposal is consistent with the terms of
the settlement agreement between EPA,
EDF, NRDC, AMC and individual site
owners and operators. The settlement
agreement, as described in detail above,
promotes the objectives of section
112(d)(9) of the CAA by establishing an
agreed upon framework for
reconsideration of rescinding subpart T
and maling minor modifications to the
AEA regulatory program for closure of
the uranium mill tailings disposal sites.
Clearly, rescission of the previously
promulgated subpart T was
contemplated by the parties to the
settlement agreement. This particular
comoneriter and EPA were parties to that
agreement. EPA continues to implement
the terms of the settlement agreement,
including today's action rescinding
subpart T. Thus, EPA is rejecting the
prior comment to the 1991 proposal.
Comment: In response to the 1991
proposal, a commenter suggested EPA
publish its finding that the NRC
regulatory program protects the public
health with an ample margin of safety.
Response: Pursuant to the settlement
agreement, EPA published and invited
comment on its proposed determination
that the NRC regulatory program
protects public health with an ample
margin of safety on February 7,1994 (59
FR 15674). That determination is also
contained in this action, which will be
published in the Federal Register.
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Comment: Commenters suggested in
response to the 1991 proposal that EPA
could not determine that the NRC
regulatory program protects public
health with an ample margin of safety
so long as NRC retains the authority to
waive standards and time schedules for
compliance, and there are no provisions
under the AEA for citizens' suits.
Hesponse:The commenters suggest
that the NRG regulatory program does
not ensure that EPA's revised UMTRCA
regulations (40 CFR part 192, suhpart D)
would apply, since NRC has the
authority to grant waivers under the
AEA due to cost or technological
feasibility. EPA recognizes that the NRC
has authority under the AEA to waive
for economic reasons strict compliance
with the requirement that sites meet the
20 pCi/m2-s standard as expeditiously
as practicable considering technological
feasibility (including factors beyond the
control of the licensee). AEA section
84c., 42 USC 2114c. However, the full
exercise of this authority is not
contemplated by either the MOU or the
settlement agreement, described above.
If this waiver authority is used in a
manner inconsistent with the purposes
and objectives of the MOU and
settlement agreement, today's action
includes procedural and substantive
provisions designed to facilitate
reconsideration of the rescission and
possible reinstatement of subpart T.
The amendments to subpart T provide
clear authority and procedures for EPA
to revisit today's finding should NRC or
the affected Agreement States deviate
from the regulatory program in place in
a manner which materially (i.e., more
than de minimis) interferes with
compliance with the 20 pCi/m2-s flux
standard as expeditiously as practicable
considering technological feasibility
(including factors beyond the control of
the licensee). Additionally, EPA
believes the actions taken to date by
NRC, including the license amendments
and the final amendments to the NRC
conforming regulations, as described
above, reflect the good faith effort on the
part of NRC to implement the MOU.
Thus, EPA believes under these
circumstances NRC's authority to waive
strict compliance with the flux standard
and the time for compliance does not
preclude EPA from finding NRC's
regulatory program protects the public
health with an ample margin of safety.
Further, the Agency believes that
Congress was aware that the legislative
authority under the CAA provided for
citizen suits while the AEA did not
contain such provisions. Congress
clearly envisioned that circumstances
might be such that EPA would make the
finding required by the Simpson
Amendment. In making today's ample
margin of safety determination, EPA
considered whether NRC is
implementing and enforcing, in
significant part, the regulations
governing disposal of tailings and the
license requirements which establish
milestones for emplacement of a
permanent radon barrier that will
achieve compliance with the 20
pCi/m2-s flux standard on a
programmatic and site-specific basis.
UMTRCA gives NRC and the Agreement
States the responsibility to implement
and enforce regulations promulgated
under UMTRCA. If, in the future, NRC
or the Agreement States do not
implement and enforce, in significant
part, the regulations governing disposal
of tailings and the license requirements
which establish milestones for
emplacement of a permanent radon
barrier that will achieve compliance
with the 20 pCi/mz-s flux standard on
a programmatic or site-specific basis,
reconsideration and reinstatement
provisions adopted today allow EPA to
reconsider its rescission of subpart T,
and thus, possibly reinstate the CAA
standards. The settlement agreement
executed between EPA, EOF, NRDC and
AMC which provided the regulatory
approach for today's action had as an
objective the rescission of subpart T.
Moreover, NRC's final amendments to
the conforming regulations also provide
enhanced opportunities for public
participation under certain
circumstances.
3.3 Section 112(q)(3) of the Clean Air
Act, As Amended
Comment: The comments to the 1991
proposal included a comment that the
"Savings Provision" (section 112(q)(3))
of the CAA requires that subpart T
remain in effect.
Response: Section 112(q)(3) provides
. . . this section, as in effect prior to the
date of enactment of the Clean Air Act
Amendments of 1990, shall remain in
effect for radionuclide emissions from
. . . disposal of uranium mill tailings
piles, unless the Administrator, in the
Administrator's discretion, applies the
requirements of this section as modified
by the Clean Air Act Amendments of
1990 to such sources of radionuclides.
EPA believes the plain language of
section 112(q)(3) gives the
Administrator the discretion to rescind
subpart T pursuant to section 112(d)(9)
or allow subpart T to remain in effect
pursuant to section 112 as in effect prior
to the CAAA of 1990. In this
rulemaking, EPA acted to apply section
112 as modified by the 1990
amendments, and pursuant to section
112(d)(9) to decline to regulate
"radionuclide emissions from any
category or subcategory of facilities
licensed by the Nuclear Regulatory
Commission (or an Agreement State)" if
the Administrator determines, by rule,
and after consultation with the Nuclear
Regulatory Commission) "that the
regulatory program established by the
Nuclear Regulatory Commission
pursuant to the Atomic Energy Act for
such category or subcategory provides
an ample margin of safety to protect the
public health." This provision strives to
eliminate duplication of effort between
EPA and NRC, so long as public health
is protected with an ample margin of
safety. Although the commenter
suggests that section 112(q)(3) should
cause the Administrator to not rescind
subpart T, such an interpretation is not
harmonious and is inconsistent with the
intent of Congress in enacting the CAAA
of 1990.
Additionally, EPA received comments
from this commenter supporting the
1994 proposal, expressing the belief that
the 1994 proposal is consistent with the
terms of the settlement agreement. The
settlement agreement promotes the
objectives of section 112(d)(9) of the
CAA as amended by establishing an
agreed upon framework for
consideration of the rescission of
subpart T and minor modifications to
the AEA regulatory program for closure
of uranium mill tailings disposal sites.
This commenter, together with EPA and
others, was a party to that agreement,
which clearly envisions rescission of
subpart T.
Thus, EPA is rejecting this comment,
since a plain reading of section 112(q)(3)
authorizes EPA to exercise its discretion
under section 112(d)(9) and as a party
to the settlement agreement the
commenter clearly supports the goal of
the agreement that subpart T be
rescinded.
3.3 Section 122(a) of the Clean Air Act,
as Amended in 1977
Comment: The commenter asserts in
response to the 1991 proposal that EPA
should not rescind subpart T because
such rescission is inconsistent with
section 122(a) of the CAA of 1977. The
commenter contends section 122(a) was
not repealed by the 1990 amendments to
the CAA and mat it required the Agency
to list radionuclides as a hazardous air
pollutant if the Administrator found
that public health was threatened due to
air emissions of radionuclides.
Response: EPA disagrees with the
commenter's interpretation that
rescission of subpart T pursuant to
section 112(d)(9) of the CAA is
inconsistent with section 122(a) of the
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36296 Federal Register / Vol. 59, No. 135 / Friday, July 15, 1994 / Rules and Regulations
CAA. On December 27,1979, EPA listed
radionuclides, including those defined
by the AEA as byproduct material, as a
Hazardous Air Pollutant pursuant to
section 112(b)(l)(A) of the CAA as
amended in 1977. (44 FR 76738). In that
notice EPA stated that
[I]n accordance with the requirements of
sections 122 and 112, the Agency finds that
studies of the biological effects of ionizing
radiation indicate that exposure to
radionuclides increases the risk of human
cancer and genetic damage.. . . Based on
this information, the Administrator has
concluded that emission of radionuclides
may reasonably be anticipated to endanger
public health, and that radionuclides
constitute hazardous air pollutants within
the meaning of the Clean Air Act.
Id. On April 6,1983 (48 FR 15076) EPA
announced proposed standards for four
sources of emissions of radionuclides,
and its decision to not regulate uranium
mill tailings together with other sources.
Under court order, EPA finalized the
regulations proposed in 1983 on
February 6,1985. 50 FR 5190. See also
Sierra Club v. Ruckelshaus, No. 84-
0656 (U.S. District Court for the
Northern District of California). On
September 24,1986, EPA promulgated a
final rule regulating radon-222
emissions from licensed uranium mill
processing sites by establishing work
practices for new tailings. (51 FR
34056). On April 1,1988, EPA requested
a remand for this standard. On EPA's
motion, the Court placed the uranium
mill tailings NESHAPs on the same
schedule as the other radionuclide
NESHAPs to reconsider the standards in
light of Natural Resources Defense
Council v. EPA, 824 F.2d 1146 (D.C. Cir
1987) (Vinyl Chloride). EPA
subsequently promulgated 40 CFR part
61, subpart T, the subject of today's
action.
EPA believes section 122 of the CAA
must be read consistent with and in
harmony with the 1990 amendments to
the CAA. EPA took action under section
122 when it listed radionuclides. EPA
subsequently regulated radionuclides
emissions under section 112. Section
112(d)(9) of the CAA authorizes EPA to
now decline to regulate radionuclide
emissions from any category or
subcategory of facilities licensed by the
NRC (or an Agreement State) if the
Administrator determines, by rule, and
after consultation with the NRC, that the
regulatory program established by the
NRC pursuant to the AEA for such
category or subcategory provides an
ample margin of safety to protect the
public health. This provision strives to
eliminate duplication of effort between
EPA and NRC, so long as public health
is protected with an ample margin of
safety. While section 122 addresses
whether radionuclides should be listed,
section 112(d)(9) addresses a separate
issue—whether EPA should continue to
regulate or initiate regulation of
radionuclide air emissions under
section 112 based on the NRC regulatory
program.
Although the commenter suggests
EPA should not rescind subpart T based
on section 122(a), EPA believes such a
reading of sections 112(d)(9) and 122(a)
is not harmonious and is inconsistent
with the intent of Congress hi enacting
section 112(d)(9).
Additionally, EPA received comments
from this particular commenter in
response to the 1994 proposal
expressing the belief that the 1994
proposal to rescind subpart T is
consistent with the terms of the
settlement agreement. The settlement
agreement promotes the objectives of
section 112(d)(9) of the CAA as
amended through the rescission of
subpart T and minor modifications to
the AEA regulatory program for closure
of the uranium mill tailings disposal
sites. This commenter, together with
EPA and others, was a party to that
agreement. Through today's action
rescinding subpart T, EPA is furthering
the goal of the settlement agreement.
Thus, EPA is rejecting this comment,
since a reading of section 122(a)
apparently preventing such rescission is
inconsistent with the intent of Congress
in enacting section 112(d)(9), and as a
party to the settlement agreement the
commenter was aware of and supported
the goal of the agreement that subpart T
be rescinded.
4. Proposed Amendments to 40 CFR
Part 61, Subpart T
4.1 General
Comment: The rationale for adding
the definitions residual radioactive
material and tailings, while deleting the
definition of uranium byproduct
material or tailings is not clear. The
proposed definitions appear to apply to
Title I sites, and significant problems
might arise if these definitions were to
be applied to Title II sites in the event
of reinstatement of subpart T.
Response: § 61.220(a) as adopted
today states that subpart T applies only
to Title I sites except for the
reconsideration and reinstatement
procedures in § 61.226. The phrase "or
uranium byproduct materials" was
deleted to further clarify that subpart T
applies to Title I sites. The phrases
"residual radioactive materials" and
"tailings" currently appear in
§ 61.220(a). EPA noted in describing
DOE sites in the 1989 BID that the
tailings located at these sites contain
residual radioactive materials, including
traces of unrecovered uranium, various
heavy metals and other elements.
Background Information Document:
Risk Assessments; Environmental
Impact Statement; NESHAPs for
Radionuclides, Volume 2 at 8-2 (EPA/
520/1-89-006-1, September 1989).
EPA believes it appropriate to define
residual radioactive material and
tailings for purposes of this subpart. The
Agency proposed these definitions on
December 31,1991 and February 4,
1994. (56 FR 67561; 59 FR 5687). The
proposed definitions for these terms
were consistent with definitions
contained in UMTRCA. 42 U.S.C. 7911,
sections 101(7) and 101(8). The terms
are defined in the Final Rule by
expressly referencing UMTRCA, to
ensure consistency with that Act. The
Agency does not believe these
definitions would be problematic if the
Agency decided to reinstate subpart T,
since EPA would amend subpart T at
that tiime to apply to the Title H sites
and to include appropriate definitions.
Comment: The provisions of subpart
T, wilt the exception of § 61.226,
should only apply to Title I sites and
some appiirent references to Title II sites
remain.
Response: EPA is rescinding subpart
T as applied to NRC or Agreement State
licensed non-operational uranium mill
tailings disposal sites, and thus, does
not intend any provision of subpart T,
excepting § 61.226 and applicable
definitions, to apply to these sites. EPA
has revised § 61.220(a) to reflect this
intent.
Comment: Section 61.226(c)(2) as
proposed suggests that no future action
can be taken to resolve EPA's concerns
after EPA notifies NRC of its intent to
initiate a rulemaking to reinstate subpart
T.
Response: EPA disagrees with the
commenter's suggestion that no further
action, may be taken to resolve the
Agency's then existing concerns after
EPA notifies NRC of its intent to
proceed with a rulemaking to reinstate
subpart T. The purpose of consulting
with NRC about the Agency's concerns
prior t:o notifying NRC and the
subsequent 60-day period is to provide
EPA and NRC with an opportunity to
address EPA's concerns prior to EPA
actually initiating such a rulemaking.
Additionally, EPA expects that the two
agencies would continue consultations
during the rulemaking process to
attempt to resolve any remaining
concerns. Section 61.226(c)(2) would
not limit such continued consultations.
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4.2. Provisions for Reconsideration of
the Rescission and Reinstatement of
SubpartT
Comment: Many commenters,
although generally opposed to the idea
of reinstatement of subpart T, favored
including provisions for reconsideration
and reinstatement of subpart T on either
a site-specific or programmatic basis, as
set forth in the Agency's 1991 proposal
to rescind subpart T.
Response: EPA reviewed the various
reconsideration options proposed in
December 1991, taking into
consideration the comprehensive details
added to the terms of the MOU by the
settlement agreement finalized in April
1993. In its 1994 supplemental
proposal, EPA proposed an additional
reconsideration option that was a
combination of the options originally
proposed. EPA did not withdraw the
original options, but instead announced
the Agency's preference for provisions
oa reconsideration and reinstatement of
subpart T on both programmatic and
site-specific bases. The Agency has
reviewed carefully all comments
submitted on the proposed
reconsideration provisions and has
revised the regulatory text and preamble
where deemed appropriate. The Agency
believes the provisions for
reconsideration and reinstatement of
subpart T adopted today represent a
comprehensive approach based on
EPA's current evaluation of the NRG
regulatory program, and a regulatory
structure designed to address future
evaluations of the program.
Comment: EPA received a variety of
comments dealing with the consistency
of the proposed regulations with the
settlement agreement between EPA,
EOF, NRDC, AMC, and individual site
owners described above; to which NRC
agreed in principle. These commenters
suggested various minor revisions to the
regulations.
Response: EPA. has adopted certain
comments and suggested minor
language changes while rejecting others,
depending on whether they effectively
implement the goal of rescission of
subpart T.
Comment: Several commenters
contend the site-specific reconsideration
and reinstatement options contained in
the December 1991 proposal would
unduly restrict NRC's waiver authority,
since EPA proposed a non-discretionary
duty to reinstate subpart T on a site-
specific basis if NRC exercises its waiver
authority.
Response: As described in the
proposals, EPA was concerned over the
potential for deviation from the
agreements contained in the MOU and
the requirements of revised subpart D.
In response, EPA proposed and is now
adopting procedural and substantive
provisions for site-specific and
programmatic reconsideration and
reinstatement if certain criteria are met.
hi promulgating subpart T, the CAA did
not permit, and EPA did not consider,
site-specific waivers from ultimate
compliance with that standard. Thus, hi
evaluating NRC's regulatory program,
EPA recognized in its December 1991
proposal that NRC's waiver authority
under the AEA might be exercised in a
manner not addressed in the MOU even
after the revisions to 40 CFR part 192,
subpart D and 10 CFR part 40, appendix
A have been promulgated and the
licenses amended. However, EPA has no
reason to believe such relaxation of the
standards will actually occur. EPA
believes the provisions adopted today
represent a comprehensive approach
based on EPA's current evaluation of the
NRC regulatory program, and a
regulatory structure designed to address
future evaluations of the program.
Additionally, in response to the 1994
proposal, EPA received subsequent
comments from these commenters
supporting the rescission of subpart T.
Furthermore, these commenters
supported the proposed reconsideration
and reinstatement provisions with
certain modifications. These
commenters believe the 1994 proposal
to rescind subpart T is consistent with
the terms of the settlement agreement
between EPA, EOF, NRDC, AMC and
individual sites. Thus, based on the
above reasons for adopting
reconsideration and reinstatement
provisions, and due to the inconsistency
between the earlier comments received
and the subsequent expressions of
support for the rescission of subpart T,
EPA is rejecting the earlier comments.
Comment: Many commenters to the
1991 proposal believe that
reconsideration of the rescission of
subpart T and subsequent reinstatement
on a programmatic basis is
inappropriate if one site fails to comply.
Response: Today's action sets forth
provisions for the reconsideration of the
rescission of subpart T and
reinstatement of that subpart. The
regulations adopted today include
provisions for programmatic and site-
specific reinstatement with separate but
somewhat parallel criteria. At this time,
EPA is not aware of a situation which
would cause it to reinstate subpart T on
a programmatic basis if one site fails to
comply, and would not expect to
reinstate subpart T on that basis.
However, the Agency cannot predict all
future circumstances, and cannot at this
time preclude the possibility of such
reinstatement. EPA does, however,
believe the criteria adopted today
appropriately address both
programmatic and site-specific
reinstatement.
EPA rejects this comment for .the
above reasons, and because of the
inconsistent responses to the 1991 and
1994 proposals received from the same
commenters.
Comment: Some commenters assert,
in response to the 1991 proposal that
EPA lacks the authority to reinstate
subpart T on a site-specific basis, since
section 112(d)(9) is concerned only with
NRC's regulatory program.
Response: EPA believes that section
112(d)(9) does not preclude site-specific
reinstatement. Section 112(d)(9) of the
CAA as amended authorizes EPA to
decline to regulate radionuclide
emissions from any category or
subcategory of facilities licensed by the
Nuclear Regulatory Commission (or an
Agreement State) if the Administrator
determines, by rule, and after
consultation with the Nuclear
Regulatory Commission, that the
regulatory program established by the
Nuclear Regulatory Commission
pursuant to the Atomic Energy Act for
such category or subcategory provides
an ample margin of safety to protect the
public health. The text of this section
does not appear to preclude
reinstatement on a site-specific basis.
Section 112(d)(9) allows EPA to
categorize and subcategorize, and for
any such category or subcategory
determine whether the public health is
protected with an ample margin of
safety by the NRC regulatory program
from a particular source of radionuclide
emissions. EPA believes that under the
appropriate circumstances, the Agency
may want to specifically categorize
sites. The CAA as amended does not
appear to preclude such specific
categories on its face.
EPA rejects this comment for the
above reasons, and because of the
contradictory and inconsistent nature of
the comments received from the same
commenters in response to the 1991 and
1994 proposals, and the commenters'
support of EPA's 1994 proposal which
contains provisions for site-specific
reinstatement.
Comment: One commenter appears to
recognize EPA's authority for site-
specific reinstatement of subpart T but
is opposed to EPA's exercise of such
authority, and questions its
appropriateness, since it appears to the
commenter that NRC's existing
inspection and enforcement programs
address site-specific failures.
Response: This commenter does not
oppose the proposed reinstatement
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36298 Federal Register / Vol. 59, No. 135 / Friday, July 15, 1994 / Rules and Regulations
provisions and expresses the clear
opinion that EPA committed in the
settlement agreement to include
provisions for site-specific
reconsideration and reinstatement of
subpart T. EPA anticipates that before
initiating a rulemaking to reinstate
subpart T on a site-specific basis, there
would be extensive consultation with
NRC. Based on the actions of NRG to
date in implementing the terms of the
MOU, EPA hopes that all concerns
could be resolved. EPA is adopting the
provisions for site-specific
reconsideration and reinstatement as
part of a comprehensive approach based
on EPA's current evaluation of the NRG
regulatory program, and a regulatory
structure designed to address future
evaluations of the program.
Comment: Some commenters contend
that in reconsidering the rescission and
reinstatement of subpart T on a
programmatic basis, section 112(d)(9)
requires EPA to determine whether
public health is threatened by the
failure of a particular site to meet the 20
pCi/m2-s flux standard.
Response: The Agency disagrees with
the commenters' interpretation of
section 112(d)(9) as applying to
provisions for reinstatement. Section
112(d)(9) does not establish the criteria
for reinstatement, rather it authorizes
EPA to decline to regulate radionuclide
emissions from NRC or Agreement State
licensees if the Administrator
determines, by rule, and after
consultation with the NRC, that the NRC
regulatory program protects the public
health with an ample margin of safety.
Under section 112(d)(9) EPA may
rescind subpart T if EPA determines
that the NRC regulatory program
provides an equivalent level of public
health protection (i.e., an ample margin
of safety) as would implementation of
subpart T in order to rescind subpart T.
Section 112(d)(9) does not limit EPA's
authority to reinstate subpart T. EPA
believes the criteria adopted today
appropriately address both
programmatic and site-specific
reinstatement.
Additionally, this comment was
received in response to the 1991
proposal. EPA rejects this comment for
the above reasons, and because of the
inconsistent responses to the 1991 and
1994 proposals received from the same
commenters.
Comment: Some commenters contend
in response to the 1994 proposal that
EPA should not treat reinstatement at
the Administrator's initiative on the
same terms as reinstatement based on a
third party petition. These comments
suggest revising the proposed
regulations to reflect the differences
between the two, including adding a
provision for a third possible result (i.e.,
a finding that NRC is in compliance).
Response: EPA disagrees with the
commenters' suggestion that
reinstatement at the Administrator's
initiative should be treated differently
from reinstatement based on a third
party petition.
The commenters are basing their
contentions on the terms of the
settlement agreement which the Agency
entered into with EOF, NRDC, AMC and
individual sites in February 1993. That
agreement adds comprehensive details
to the regulatory approach of the MOU
between EPA, NRC and the affected
Agreement States. EPA has reviewed the
terms of the settlement agreement
pertaining to the reconsideration of
rescission and reinstatement of subpart
T. The settlement agreement specifies at
paragraph m.e. that upon completion of
a rulemaking reconsidering the
rescission of subpart T, EPA may (1)
reinstate subpart T on a programmatic
basis if certain criteria are met; (2)
reinstate subpart T on a site-specific
basis if certain criteria are met; or (3)
issue a finding that NRC is in
compliance with certain criteria and
that reinstatement of subpart T is not
appropriate.
The Agency believes the criteria in
§ 61.226(a) for requiring reinstatement
upon completion of a reconsideration
rulemaking should apply whether the
rulemaking is at the Administrator's
initiative or based on a third party
petition. These criteria are: (1) Failure
by the NRC or an Agreement State on a
programmatic basis to implement and
enforce, in significant part, the
regulations governing the disposal of
uranium mill tailings promulgated by
EPA and NRC or the tailings closure
plan (radon) requirements (i.e.,
contained in the license) establishing
milestones for the purpose of emplacing
a permanent radon barrier that will
achieve compliance with the 20 pCi/m2-
s flux standard; or (2) failure by NRC or
an affected Agreement State on a site-
specific basis to achieve compliance by
the operator of the site or sites with
applicable license requirements,
regulations, or standards implemented
by NRC and the affected Agreement
States. Additionally, EPA would not be
required to reinstate subpart T under
§ 61.226(a) unless those failures may
reasonably be anticipated to
significantly interfere (i.e., more than de
minimis) with the timely emplacement
of a permanent radon barrier
constructed to achieve compliance with
the 20 pCi/m2-s flux standard at
uranium mill tailings disposal sites.
The commenters contend that the
nature of the party initiating the
reconsideration rulemaking should
determine whether reinstatement is
discretionary (for initiation by the
Administrator) or mandatory (for a third
party petition), apparently based on a
desire to provide EPA with greater
flexibility to address concerns over
failures of NRC or an Agreement State
to implement or enforce applicable
requirements. The Agency believes that
the nature of the initiating party
properly may trigger different
procedural requirements. For example,
when a private party initiates the
process by filing a petition, EPA has
established a requirement that it take
final action on such a petition within a
set time period. However, EPA believes
that the nature of the party initiating the
process leading to a rulemaking is not
relevant to deciding whether to
reinstate, assuming the relevant criteria
for reinstatement are met under either
circumstance. EPA believes that if the
Administrator determines, based on the
record, that (1) NRC or an Agreement
State failed on a programmatic basis to
implement and enforce, in significant
part, the regulations governing the
disposal of uranium mill tailings
promulgated by EPA and NRC or the
tailings closure plan (radon) (i.e.,
contained in the license) requirements
establishing milestones for the purpose
of emplacing a permanent radon barrier
that will achieve compliance with the
20 pCi/m2-s flux standard or (2) NRC or
an affected Agreement State failed in
significant part, on a site-specific basis,
to achieve compliance by die operator of
the site or sites with applicable license
requirements, regulations, or standards
implemented by NRC and the affected
Agreement States, then there would be
the same reason for the Agency to
reinstate subpart T whether the process
was initiated by a private petition or at
EPA!'s own initiation. If the Agency
makes the determination required to
reinstate subpart T based on
reconsideration of rescission at the
Administrator's initiative and such
reinstatement is considered
discretionary, the Agency is not aware
of circumstances which would lead the
Agency not to reinstate subpart T. hi
any case, if the Administrator should
make the determination in § 61.226(a)
(1) oir (2) but decide in her discretion
not to reinstate subpart T in a
proceeding initiated by the
Administrator, then the Agency believes
it wc.uld promptly receive third party
petitions based on the finding made at
the Administrator's initiative, and the
Agency would then be obligated to
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Federal Register / Vol. 59, No. ^135 ; / FricteyT July^
/ Rles
36299
reinstate subpart T. Additionally, upon
completion of the reconsideration of :
rescission pursuant to §61.226(c) the
Administrator may in her discretion' :
issue a finding that reinstatement of this
subpart is not appropriate if the
Administrator makes certain findings. v
However, the discretion to issue such a'
finding is not relevant to the situation - >
where the Administrator has found that
the criteria for reinstatement have .:
already been met, since the two findings
are mutually exclusive. Finally, the
commenters apparently believe that.
reinstatement at the Administrator's
initiative should be discretionary spjthat
EPA and NRC can continue attempts to
resolve concerns and thereby avoid the
need to reinstate. EPA believes that such
ongoing consultation is not precluded
by the regulations adopted today, and
EPA expects the agencies would
continue consultations and make all
possible efforts to resolve the concerns
during the rulemaking process. The
regulation does not establish a time
limit for final agency action in this case,
and the agency would have discretion to
extend the rulemaking if appropriate to
continue such inter-agency
consultations.
EPA agrees with the commenters that
the settlement agreement provides an 7
additional possible result upon
completion of a reconsideration ..-
rulemaking initiated by the
Administrator, namely that the Agency
may issue a finding that reinstatement is
not appropriate if the Agency finds: (1)
NRC and the affected Agreement States
are on a programmatic basis ,, , ..'•'.'.
implementing and enforcing, in
significant part, the regulations
governing the disposal of uranium mill
tailings promulgated by EPA and NRC
or the tailings closure plan (radon) (i.e.,
contained in the license) requirements
establishing milestones for the purpose
of emplacing a permanent radon barrier
that will achieve compliance with the
20 pCi/m^s flux standard; or (2) NRC or
an affected Agreement State are, in
significant part, on a site-specific basis
achieving compliance by the operator of
the site or sites with applicable license
requirements, regulations, or standards
implemented by NRC and the affected
Agreement States. EPA believes
addition of this provision to the
regulations will clarify the existence of
this option and has revised § 61.226(a)
of the reinstatement provisions to
provide for this additional result.
Comment: One commenterasserts ~j
that EPA's characterization of its
authority to reconsider rescission of
sufapart T in the preamble to the 1994
proposal appears overly broad and ."-
reinstatement should be clearly limited
to those cohditioris'pjoppsed in:'*-~
§61,226(a). '•'•••: -r v!"'''-'"' f -1 aow
Response: EPA believes that the "
provisions for reconsiderStion:of '.,;.-. :
rescission adopted in §61.226 represent
a comprehensive approach under both••:•:
the MOU arid'the settlement agreement.
The provisions include substantive and
procedural provisions for .itoLsiitiq y.--scq
reconsideration of rescissipniandithe'
remstatement of tiiis subpart oft a: ,;,,;;,:«
prpgrammatiCipr•site-specific pasisvThe
provisions include the obligation ta,.-.;^. 3
reinstate subpart T; if certain,cpnditipns;
are met* procedures for recpnsideratipn >
and proyis,ipns authpri2ing the ; ,: \\
Administratorjp;jnittete;; ,-v-:,:--s- \.^.fft!ji.
reconsideratipn. Althpugh therAgency:
obUgatiori^orthfAdmiriistfiatOT tcps* Wsa
__ _ • «._*._ :e iiiti: ii^:ii.-iiii;w«'->; ftSwCiftS**^'**"
they-afe'iiot? interidedto biB;the'exclu'sive
basisfor reirwtater^nt?Uno^ ttie--qo"8
z«irc
subpart Tat the ^.dmiriisMtpr's
''
,
- >s>;
rulemaking, bise'p^oTlTHeare^)farihaP^
NR6 lrireJfieStat ffl?
recpnsideratipn. Although the^Agency: parti ^tf regulations goferriing'tije^ "8^
does hot intend to reconsider its, , .^fi^ disposal of ura^im'feiil;tili|§gs"!}D"
decisiontorescinoVs^p^rt^fflra^te;, prpmulgatedblEM^^arMf °
would indicate the need for >
reinstatement, the Agency recognizes
that a situation may arise where ,,....
reconsideration of rescission is _ . ...
nevertheless appropriate. .For' examiplp,
EPA might consider initiating [,,
reconsideration under § 6^226 where a;
site is meeting the 20 pCi/ni^-s flux
standard if tiiere are factors which show
that NRC or an Agreement SMg failed
to implement arid enforce m'sigriificarit
part, the applicable regulations, e.g.,\-'"
clear failure of that site to emplace thg
permanent iradori'barrier^withiri thia time
periods established in implemeHting. ;
subpart !D. EPA'ls not aware of ,„: f;,..
circumstances under v^Mch EPA^ might
reconsider rescission for a site thatis:_"_'
meeting the 20 pCi?m2-s flux standard, i
other than thpse indicating that tHe;
milestone for emplacement; of the '•'-_.: _
permanent radon barrier has passe'd.tEe
delay was not apprpvedby NRG;pr anJ
Agreement State and ^e uCensee failed
to emplace the perntaiierit radon'bairier,
and there are indicatioris;tiiat theT ~ ;
licensee does not plan-to emplace the -^
barrier arid NRG orail'Agreeinerit Sf^aie!
does not plan to eriforce this * ;: r • - B
requiremeriti EPA does" riot envision :; •
such an unusual situatiori arising. EPA-
believes the actions-talcerito dateby r l
NRC, including the license amendments
and the final amendments tp'the NRC :
confonnirig regulatidris,"as"described" •
above, reflecf the gb'od faith effort'on,the
part of NRC andthe AgreemeM States ;r
to implement theMOU arid EPA's"^ ?
subpart D regulatiorisr However, the;-'^'
Agency is'not now in titte pbsitipri to"" ;;
determine that there could be;hb ]•*=^'^
ckciimstarices"Whidli.might'iridicate:the
need to reconsider the rescission of "I/
subpart T for a site that is in fact :a s ;o
meeting the 20 pCi/rii^-s flux standard.
Additionally; EPATesefves the right;,
to initiate reinstatement of subpart T if
;:• -, : „. ^ L ~J : Y ^ ._- .J >-y H f.^7iii V i S3 * til ( * f^
the purpose of emplacing a permanent
radon barrier that will achieve
to reinstate subparflian^a sfterSpe^Se
basis as .applied, tp
determinesbyrrAUemaking,
aor;,^
i
cant
Agreement ^atejias, ^^fdled In si
part on a dte-specificbasi^tp^
cpmplianceb'y tiie bperator ,p"f Jhe jdte^pj
sites with applicable, license sf jjsswiieail
requirements, regulations, or ,standar;dso
implemented by, NRiSand.tiie/gffecJed^;
Agreement! States, the i ipbligation:tolfg.ri
..
failures rwhicfcmay reaspnably. be:, - -TJ
anticip¥te,d ta'significantly ^interfejieyg.jj
with timely empjacementpljhe yjj }ai- j
pejmanentradpribamerjCpnstmcJted^p^
achieve compliance with She^O pCi/jn?;-
s fl^ standardv At this| tknefiBPA;is:noi
aware oflcircumsianc^ where it
consider Reinstating subpart ;T if .&e;s eg
failurcdoes;notsignJlBcaritiyin1terfere:xtt
with ^mplaeernenttof Jherequjtfed ^V;D ;
permanent radon barri0r,3Hp\Kevgr, rEPjA
reserves the ! right to -recon§ider:l)jg-;;-,£^
rescission where the criteria- ot^^^si.
§ 61.226(a) have nptbeen riietrunder Jhe
Agency!s;authprity to issue NESHAPs ~t
coritained in sectipn^1i;l2fpf theiGAA.c"^
For «xample>jeyeniif.1;he,,NJ.G pr ari£ i,i
AgreementState is jmplementing.andi , j.
enfprcing.Msignificaiit part,- the :. fe?.:> j
applicable regulations and h'censftjisios
'amendments; ;the Agency inay;decide to
reconsider the rescissipri if :new/i :p o-? ok
informatiori'indicatedithat the public'iS
health is not protected with=anample-l
margin:o£safetyi The (Agency cannotijs;
predict allffuture!circumstances=ana isii
cannot at this, time .pre'cludeithe re;:;ggi.a
possibilityi'df.suchrecjjnsiderationiand'
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Federal Register / Vol. 59, No. 135 / Friday, July 15, 1994 / Rules and Regulations 36301
as described above, and based on
today's rescission of subpart T, AMC's
pending administrative petition for
reconsideration of subpart T is denied
as moot. Additionally, all other pending
petitions for reconsideration of subpart
T as applied to Title n sites are denied
as moot under today's action.
B. Paperwork Reduction Act
There are no information collection
requirements in this rule.
C. Executive Order 12866
Under Executive Order 12866, (58 FR
57735, October 4,1993) the Agency
must determine whether this regulation,
if promulgated, is "significant" and
therefore subject to OMB review and the
requirements of the Executive Order.
The Order defines "significant
regulatory action" as one that is likely
to result in a rule that may:
(1) Have an annual effect on the
economy of $100 million or more or
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local or tribal governments or
communities;
(2) Create a serious inconsistency or
otherwise interfere with an action taken
or planned by another agency;
(3) Materially alter the budgetary
impact of entitlements, grants, user fees,
or loan programs or the rights and
obligations of recipients thereof; or
(4) Raise novel legal or policy issues
arising out of legal mandates, the
President's priorities, or the principles
set forth in the Executive Order.
This action is not a significant
regulatory action as that term is defined
in Executive Order 12866, since it will
not result in an annual effect on the
economy of $100 million or another
adverse economic impact; it does not
create a serious inconsistency or
interfere with another agency's action; it
does not materially alter the budgetary
impacts of entitlements, grants, user
fees, etc.; and it does not raise novel
legal or policy issues. Thus, EPA has
determined that rescinding subpart T as
it applies to owners and operators of
uranium mill tailings disposal sites that
are licensed by the NRG or an affected
Agreement State is not a "significant
regulatory action" under the terms of
Executive Order 12866 and is therefore
not subject to OMB review.
D. Regulatory Flexibility Analysis
Section 603 of the Regulatory
Flexibility Act, 5 U.S.C. 603, requires
EPA to prepare and make available for
comment an "initial regulatory
flexibility analysis" which describes the
effect of this rule on small business
entities. However, section 604(b) of the
Act provides that an analysis not be
required when the head of an Agency
certifies that the rule will not, if
promulgated, have a significant
economic impact on a substantial
number of small entities.
Most firms that own uranium mill
tailings piles are divisions or
subsidiaries of major U.S. and
international corporations. Many are
parts of larger diversified mining firms
which are engaged in a number of raw
materials industries; the disposal of
uranium mill tailings piles represents
only a small portion of their overall
operations. Others are owned by major
oil companies and electric utilities
which were engaged in horizontal and
vertical integration, respectively, during
the industry's growth phase in the 1960s
and 1970s.
It was found in the 1989 rulemaking
that there was no significant impact on
small business entities. There has been
no change in this, and no new tailings
piles have been constructed since 1989.
I certify that this final rule to rescind 40
CFR part 61, subpart T as applied to
owners and operators of NRG licensed
non-operational uranium mill tailings
disposal sites, will not have significant
economic impact on a substantial
number of small entities.
List of Subjects in 40 CFR Part 61
Environmental protection, Air
pollution control, Arsenic, Asbestos,
Benzene, Beryllium, Hazardous
substances, Mercury, Radionuclides,
Radon, Reporting and recordkeeping
requirements, Uranium, Vinyl chloride.
Dated: June 29,1994.
Carol M. Browner,
Administrator.
Part 61 of chapter 1 of title 40 of the
Code of Federal Regulations is amended
as follows:
PART 61—[AMENDED]
1. The authority citation for part 61 is
revised to read as follows:
Authority: 42 U.S.C. 7401, 7412, 7414,
7416, 7601.
2. Section 61.220 is amended by
revising paragraph (a) and removing and
reserving paragraph (b) to read as
follows:
§ 61.220 Designation of facilities.
(a) The provisions of this subpart
apply to owners and operators of all
sites that are used for the disposal of
tailings, and that managed residual
radioactive material during and
following the processing of uranium
ores, commonly referred to as uranium
mills and then- associated tailings, that
are listed in, or designated by the
Secretary of Energy under Title I of the
Uranium Mill Tailings Radiation
Control Act of 1978, except § 61.226 of
this subpart which applies to owners
and operators of all sites that are
regulated under Title II of the Uranium
Mill Tailings Radiation Control Act of
1978.
(b) [Reserved]
3. Section 61.221 is amended by
revising the introductory text, revising
paragraphs (a) and (c), and by adding
paragraphs (d) and (e) to read as follows:
§61.221 Definitions.
As used in this subpart, all terms not
defined here have the meanings given
them in the Clean Air Act or subpart A
of Part 61. The following terms shall
have the following specific meanings:
(a) Long term stabilization means the
addition of material on a uranium mill
tailings pile for the purpose of ensuring
compliance with the requirements of 40
CFR 192.02(a). These actions shall be
considered complete when the Nuclear
Regulatory Commission determines that
the requirements of 40 CFR 192.02(a)
have been met.
*****
(c) Residual radioactive materials
shall have the same meaning as in
section 101(7) of the Uranium Mill
Tailings Radiation Control Act of 1978,
42 U.S.C. 7911(7).
(d) Tailings shall have the same
meaning as in section 101(8) of the
Uranium Mill Tailings Radiation
Control Act of 1978, 42 U.S.C. 7911(8).
(e) In significant part means in a
manner that is not reasonably expected
to materially (i.e., more than de
minimis) interfere with compliance
with the 20 pCi/m2-s flux standard as
expeditiously as practicable considering
technological feasibility (including
factors beyond the control of the
licensee).
4. Section 61.222 is amended by
revising paragraph (b) to read as follows:
§61.222 Standard.
*****
(b) Once a uranium mill tailings pile
or impoundment ceases to be
operational it must be disposed of and
brought into compliance with this
standard within two years of the
effective date of the standard. If it is not
physically possible for an owner or
operator to complete disposal within
that time, EPA shall, after consultation
with the owner or operator, establish a
compliance agreement which will
assure that disposal will be completed
as quickly as possible.
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36302 Federal Register / Vol. 59, No. 135 / Friday, July 15, 1994 / Rules and Regulations
5. Section 61.223 is amended by
revising paragraph (b)(5) to read as
follows:
§ 61.223 Compliance procedures.
*****
(b)* * *
(5) Each report shall be signed and
dated by a public official in charge of
the facility and contain the following
declaration immediately above the
signature line:
I certify under penalty of law that I have
personally examined and am familiar with
the information submitted herein and based
on my inquiry of those individuals
immediately responsible for obtaining the
information. I believe that the submitted
information is true, accurate and complete. I
am aware that there are significant penalties
for submitting false information including
the possibility of fine and imprisonment. See
18 U.S.C. 1001.
*****
6. Section 61.226 is added to subpart
T to read as follows:
§ 61.226 Reconsideration of rescission
and reinstatement of this subpart
(a) Reinstatement of this subpart upon
completion of reconsideration of
rescission.
(1) The Administrator shall reinstate
40 CFR part 61, subpart T as applied to
owners and operators of non-operational
uranium mill tailings disposal sites that
are licensed by the NRG or an affected
Agreement State if the Administrator
determines by rulemaking, based on the
record, that NRG or an affected
Agreement State has:
(i) Failed on a programmatic basis to
implement and enforce, in significant
part, the regulations governing the
disposal of uranium mill tailings
promulgated by EPA and NRG or the
tailings closure plan (radon) (i.e.,
contained in the license) requirements
establishing milestones for the purpose
of emplacing a permanent radon barrier
that will achieve compliance with the
20 pCi/m 2-s flux standard; and
(ii) Those failures may reasonably be
anticipated to significantly interfere
(i.e., more than de minimis) with the
timely emplacement of a permanent
radon barrier constructed to achieve
compliance with the 20 pCi/m 2-s flux
standard at the uranium mill tailings
disposal site.
(2) The Administrator shall reinstate
40 CFR part 61 subpart T on a site-
specific basis as applied to owners and
operators of non-operational uranium
mill tailings disposal sites that are
licensed by the NRG or an affected
Agreement State if the Administrator
determines by rulemaking, based on the
record:
(i) That NRG or an affected Agreement
State has failed in significant part on a
site-specific basis to achieve compliance
by the operator of the site or sites with
applicable license requirements,
regulations, or standards implemented
by NRG and the affected Agreement
States; and
(ii) Those failures may reasonably be
anticipated to significantly interfere
(i.e., more than de minimis) with the
timely emplacement of a permanent
radon barrier constructed to achieve
compliance with the 20 pCi/m 2-s flux
standard at the uranium mill tailings
disposal site.
(3) Upon completion of the
reconsideration of rescission pursuant
to § 61.226(c) the Administrator may
issue a finding that reinstatement of this
subpart is not appropriate if the
Administrator finds:
(i) NRG and the affected Agreement
States are on a programmatic basis
implementing and enforcing, in
significant part, the regulations
governing the disposal of uranium mill
tailings promulgated by EPA and NRG
or the tailings closure plan (radon) (i.e.,
contained in the license) requirements
establishing milestones for the purpose
of emplacing a permanent radon barrier
that will achieve compliance with the
20 pCi/m 2-s flux standard; or
(ii) NRG or an affected Agreement
State are on a site-specific basis, in
significant part, achieving compliance
by the operator of the site or sites with
applicable license requirements,
regulations, or standards implemented
by NRG and the affected Agreement
States.
(b) Procedures to Petition for
Reconsideration of Rescission of this
subpart.
(1) A person may petition the
Administrator to reconsider the
rescission and seek reinstatement of this
subpart under § 61.226(a).
(2) EPA shall summarily dismiss a
petition to reconsider rescission and
seek reinstatement of this subpart under
§61.226(a)(l) (programmatic basis),
without prejudice, unless the petitioner
demonstrates that written notice of the
alleged failure(s) was provided to NRG
at least 60 days before filing the petition
with EPA. This notification shall
include a statement of the grounds for
such a petition and this notice
requirement may be satisfied by, but is
not limited to, submissions or pleadings
submitted to NRG during a proceeding
conducted by NRG.
(3) EPA shall summarily dismiss a
petition to reconsider rescission and
seek reinstatement of this subpart under
§ 61.226(a)(2) (site-specific basis),
without prejudice, unless the petitioner
demonstrates that a written request was
made to NRG or an affected Agreement
State for enforcement or other relief at
least 60 days before filing its petition
with EPA, and unless the petitioner
alleges that NRG or the affected
Agreement State failed to respond to
such request by taking action, as
necessary, to assure timely
implementation and enforcement of the
20 pCi/m 2-s flux standard.
(4J Upon receipt of a petition under
§61.226(b)(l) that is not dismissed
under § 61.226(b)(2) or (b)(3), EPA will
propose to grant or deny an authorized
petition to reconsider, take comments
on the Agency's proposed action, and
take final action granting or denying
such petition to reconsider within 300
days; of receipt.
(c) Reconsideration of Rescission of
this Subpart Initiated by the
Administrator.
(1) The Administrator may initiate
reconsideration of the rescission and
reinstatement of this subpart as applied
to owners and operators of non-
operational uranium mill tailings
disposal sites if EPA has reason to
believe that NRG or an affected
Agreement State has failed to
implement and enforce, in significant
part, the regulations governing the
disposal of uranium mill tailings
promulgated by EPA and NRG or the
tailings closure plan (radon)
requirements establishing milestones for
the purpose of emplacing a permanent
radon barrier that will achieve
compliance with the 20 pCi/m 2-s flux
standard.
(2) Before the Administrator initiates
reconsideration of the rescission and
reinstatement of this subpart under
§ 61,,226(c)(l), EPA shall consult with
NRC to address EPA's concerns and if
the consultation does not resolve the
concerns, EPA shall provide NRC with
60 days notice of the Agency's intent to
initiate rulemaking to reinstate this
subpart.
[FR Doc. 94-17089 Filed 7-14-94; 8:45 am]
BILLING CODE 6560-50-P
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