40 CFR Part 192
Standards for Remedial Actions at
Inactive Uranium Processing Sites
RESPONSE TO COMMENTS
GROUND-WATER PROTECTION STANDARDS
SAR 1166
February 28, 1989
.Document #0029g
Office of Radiation Programs
U.S. Environmental Protection Agency
Washington, D.C. 20460
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1: INTRODUCTION
In this document EPA responds to comments received on the
proposed rulemaking "Standards for Remedial Actions at Inactive
Uranium Processing Sites," published in the Federal Register on
September 24, 1987 (52 PR 36000-36008). :'
Subsequent to the announcement of the proposed rule, a public
hearing was held on October 29, 1987 in Durango, Colorado. The record
was held open until January '29, 1988.
In addition to requesting comments on the proposed ground-water
protection standards, the Agency specifically asked for comments on 15
items. The responses received are summarized in Appendix A. The
Agency has carefully considered the views expressed by commenters in
formulating this final rule. Responses to selected comments on' these
items are also found in Appendix A.
Copies of written comments and transcripts of the hearing are
available for inspection and copying at EPA's Central Docket Section,
Waterside Mall, 401 M Street, S.W., Washington, D.C. 20460. The
docket number is R-87-^01. (A fee may be charged for copying.)
Major concerns and issues arising from written and oral comments
on the proposed rulemaking are summarized below. Each commenter is
identified by a letter and number after the comment. EPA's response
then follows. In the interest of clarity and economy, most comments
are paraphrased, and closely related comments are combined. A list of
the commenters with their identification numbers is given in Appendix
B. A few comments referred to issues that were not the subject of
this rulemaking or concerned wording of the existing standards that
were repeated in the proposed rule for clarity. Such comments are not
included in this document. . •
2: LEGAL, PROCEDURAL AND POLICY ISSUES
2.1 General ' .
Comment 2.1.1 The summary statement concerning the proposed
ground-water standards contains language that is unnecessarily
absolute, e.g., the preamble summary states that the regulations will
"correct and prevent contamination of ground water...". (1-5)
Response The EPA has reviewed the language referred to and has
concluded that it is not unnecessarily absolute. When there is a
question as to whether the language of the rule itself or the
characterization in the preamble prevails, the clear meaning of the
rule should govern.
Comment 2.1.2 Language in the proposed standards contains provisions
that will help to provide additional flexibility in dealing with
ground-water contamination problems at inactive mill sites. We urge
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that any changes to the standards not make these provisions more
restrictive. (1-3,G-2)
Response EPA has not found it necessary to make these provisions more
restrictive.
Comment 2.1.3 Additional flexibility is needed in the proposed
ground-water standards in order for DOE to be able to demonstrate
compliance within the 1994 timeframe that the agency is seeking from
Congress. (G-2,G-8,1-4,1-5 )
Response Ground-water restoration is often' a long-term undertaking.
EPA agrees that DOE is unlikely to be able to completely restore
ground water within the timeframe that was allowed by Congress for
disposal of the tailings. Congress has also recognized this and has
amended UMTRCA to extend the authority of DOE with respect to
ground-water restoration indefinitely (P.L. 100-616).
\
Comment 2.1.4 . The differing philosophical approaches at RCRA and
Title I disposal sites has led to conflicting requirements in
implementing longevity requirements and proposed ground-water
protection standards. (G-8) -----
Response The commenter believes that there are conflicting
requirements with respect to implementing longevity requirements under
40 CFR 192 and meeting the proposed ground water protection standards
based on application of current RCRA regulations. This view
apparently stems from the technical prediction that rock and gravel
placed on top of an earth-covered pile to assure long-term stability
will enhance infiltration of water through the cover and could lead to
ground-water contamination. We have reviewed this matter and have
concluded that covers can be designed to avoid this problem by using
appropriate combinations of drainage and low permeability layers.
Comment 2.1.5 EPA should reconsider these standards based on new data:
- The National Research Council's report, Scientific Basis for
Risk Assessment and Management of Uranium Mill Tailings(1986),
revealed numerous failings in EPA's approach.
- The. National Research Council's report, Health Risks of Radon
and Other Internally Deposited.Alpha Emitters (1988), indicates that
the EPA risk- estimate is substantially overstated.
- DOE has developed extensive experience in the remediation of
Title I sites; EPA's program should reflect this practical
experience. (1-1,1-4)
Response This comment primarily addresses the risk due to radon from
uranium mill tailings piles and long-term stability issues for
disposal. To this extent, it is only indirectly relevant to this
rulemaking. However, the Agency considered the NAS/NRC report
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"Scientific Basis for Risk Assessment and Management of Uranium Mill
Tailings," referenced on page 1-2 of the Background Information
Document (BID). Further, the Agency considered DOE experience in
developing the proposed standards, as evidenced by the numerous
references cited in the BID (see Chapter 3 and 4 in particular).
Finally, the NAS/NRC BEIR IV report, which was considered in various
draft versions during the Agency's development of the proposed
standards, does not indicate that the EPA risk estimate is overstated;
to the contrary, it is. in substantial agreement.
Comment 2. l.,6 Implementation should be postponed pending reevaluation
of the regulatory goals and framework applicable to the uranium
industry. (1-2)
Response The regulatory goals and framework applicable to the
industry are established by statute, not regulations. Postponing the
implementation of these ground water standards for inactive uranium
mill tailings sites will not affect the active uranium industry, which
is already regulated by standards issued in 1983. Any reconsideration
of those regulations can be carried out independently of this
rulemaking, which is in response to the remand of specific _
ground-water provisions, for Title I sites only,,that were considered
inadequate by the courts.
Comment 2.1.7 These standards should be developed by negotiated
rulemaking between EPA, the affected industry and other interested
parties. (1-1)
Response The feasibility of successfully completing .a negotiated
rulemaking, which has been requested by the industry, is being
investigated. We note that, since the industry is not directly
affected, the present rulemaking can proceed without prejudicing the
regulations for Title II.
Comment 2.1.8 The regulatory analysis does not reflect impacts of the
regulation on Indian Tribes or related small entities. (G-6)
Response EPA considered the general impact of these regulations on
the Indian Tribes and other small entities. We believe it will be .
minor. In the example provided by the commenter, if there are farmers
who are now using or planning the use of surface or ground waters that
could potentially be contaminated by mill tailings, then these uses
should be made known to DOE now, so that the cleanup method chosen can
accommodate any future needs in a timely manner.
Comment 2.1.9 EPA should include a concepts section describing the
major assumptions behind the standards and their applicability.
(G-2,G-8)
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Response The major assumptions underlying the standards and their
applicability were described in the preamble to the proposed standards
and have been repeated in the preamble to the final rule.
Comment 2.1.10 The interrelationship between Subparts A, B and C is
not clear.TG-2,G-7)
Response The function of each of the subparts is described by its
title. Subpart A applies to the permanent disposal of tailings and
the prevention of future contamination from the disposed of tailings.
Subpart B applies to the cleanup of contamination from the tailings
piles that has already occurred. Subpart C contains guidance on
implementation of the standards in Subparts A and. B and includes
specifications for supplemental standards that can be implemented
under specified circumstances.
Comment 2.1.11 Parts of the proposed standards and supplementary
information are vague, confusing, or ambiguous; both the BID and
supplementary information contain errors. (G-l,G-2,G-6,G-7,G-8,P-2,
1-4,1-5)
Response EPA has reviewed each specific comment regarding vague,
confusing, or ambiguous information and clarified or corrected each
point raised where needed. For example, a comment noted the EPA
should define ground-water "use." EPA does not categorize water on
the basis of use, therefore, use does not need to be defined in these
regulations.
Another comment pointed out that organic contaminants have been
found at the Grand Junction site. The discussion of organic
contaminants in the BID has been expanded to reflect the
identification of organic carbon in some ground-water samples at the
inactive sites.
Other specific comments on particular si.tes we're' reviewed and
changes made as needed in the BID to clarify and correct information.
Some items, termed "errors" by commenters, simply reflect different
sources of data. For example, a comment notes that EPA lists a 1.69
mg/1 value for molybdenum in the Environmental Assessment for
Riverton, whereas the highest value they could find was 0.9 mg/1. In
fact, there are 2 molybdenum concentration values greater than 0.9
mg/1 in this Environmental Assessment (1.1 and 3.7 mg/1).
Comment 2.1.12 The proposed standards may be applicable or relevant
and appropriate requirements (ARARs) for other DOE programs and,
possibly, non-DOE sites containing large volumes of
naturally-occurring and accelerator-produced radioactive wastes. .The
secondary implementation costs associated with this standard due to
such ARARs could be very significant and should be at least considered
and recognized by the EPA. While other DOE projects have begun to
evaluate the technical and budget implications of the proposed
standard, no budget impact is available at this time. However, it is
estimated that the costs of implementing these standards as ARARs
could be in the hundreds of millions of dollars.
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In this regard, DOE manages a number of sites that contain
low-level radioactive waste as :part of its Formerly Utilized Sites
Remedial Action Program (FUSRAP) and Surplus Facilities Management '
Program (SFMP). Since there may be some broad interpretations
regarding applicability of the proposed rule for ground-water
standards at UMTRA Project sites, DOE requests the inclusion of the
ARAR waiver conditions identified in SARA Section 121(d)(4) in the
regulations:
The selected remedial action need not attain the levels or ~
standards of control herein required should one of the following
three conditions apply:
o • The action is only part of a total remedial, action that
will attain such levels or standards of control when
completed.
o Compliance with such requirement will result in greater
risk to human health and the environment than
alternative options.
o The action will attain an equivalent standard of^
performance through use of another method or approach.
(G-8)
Response EPA considered the above conditions in developing this
proposed rule. We concluded that only the second is applicable to
these sites. That condition has been incorporated. However, in any
case, any DOE sites that are subject to CERCLA/SARA requirements will
be eligible for all waiver conditions under SARA, unless otherwise
specified in SARA. Regarding the cost implications of use of these
standards as ARARs, it is difficult to confirm or refute the estimate
given. However, it should be noted that, in general, these standards
simply apply general requirements imposed on contamination of ground
water from all wastes regulated under RCRA, and that ARARs for ground
water would, therefore, be essentially identical independently of
these standards.
Section 2.2 Application of Standards
Comment 2.2.1 Differences between Title I and Title II ground-water
protection standards should be systematically identified, assessed,
and justified. (G-2,1-2)
Response There are several kinds of differences between Title I and
Title II ground-water protection standards. In some cases the
differences are the result of different conditions present at the
Title.I sites and are not appropriate to Title II sites, e.g., the
conditions under which a liner is required. Other differences include
specification of additional MCLs and more explicit guidance on cleanup
of existing contamination. The reasons for these differences are
discussed in the preamble to the final standard.. (See also comment
2.2.3.)
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Comment 2.2.2 It should be clearly stated that Title II standards are
applicable if Title I and Title II.tailings are commingled. (G-l)
Response The standards under Title I apply only to those processing
sites listed under Title I or designated by DOE within one year of the
promulgation of UMTRCA as Title I sites. Therefore, if tailings from
a site listed under Title I are moved to and commingled with tailings
at a site licensed under Title. II or are reprocessed through a mill at
a Title II site, then the standards promulgated under Title II apply
to the commingled tailings. EPA is aware of only one site (Riverton,
WY) where this is occurring. However, cleanup of any residual
ground-water contamination at the Title I site from which the tailings
had been removed will still be regulated under the standards
promulgated under Title I.
Comment 2.2.3 It is believed that the numerical standards for MCLs
will serve as precedents at Title II sites. (1-2)
Response EPA is considering the need to revise the numerical
standards under Title II in view of the final standards under Title
I. If EPA should propose changes in the Title.II regulations, they
would be subject to normal rulemaking proceedings. (But see also
comment 2.1.7.) —*
Comment 2.2.4 Completed or substantially completed sites that perform
as designed should be "grandfathered". (G-2,G-8)
Response We have not provided any "grandfather" clause for the six
disposal actions 'that are already complete, or almost so (Canonsburg,
PA; Salt Lake City, UT; Shiprock, NM; Durango, CO; Tuba City, AZ; and
Lakeview, OR). Such a clause would, in any case, be appropriate only
for disposal, not restoration. Current indications are that, although
the covers on these piles are not quite as sophisticated as.later
designs, performance is exceeding design expectations at all sites.
It appears likely that all of these covers will meet the standards.
If not, a variety of remedies are available, including minor
upgrading, and ACLs or supplemental standards, if appropriate. In the
event that the piles do not perform as seems likely, and none of these
remedies is appropriate, modification of the standards can be
considered at a future date.
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Comment 2.2.5 Applicability of the proposed standards at the more
than 6000 vicinity properties should be clarified. (G-2,G-8)
Response In the final standards, we have clarified that vicinity
properties are covered by the standards. When, in the view of the
NRC, a substantial probability exists that ground-water contamination
has occurred, or may occur in the future, the necessary assessments
and corrective measures should be applied. It is not intended,
however, that the extensive assessment and monitoring provisions
appropriate for large quantities of tailings, as at disposal sites,
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should be applied when such a substantial probability does not exist.
EPA expects the implementing agencies, to make these judgements.
Sectibn 2.3 Consistency with other Requirements
Comment 2.3.1 Standards for the reclamation and closure of inactive
uranium mill tailings facilities must be consistent -with those
established for hazardous waste facilities under the Solid Waste
Disposal Act (SWDA). (P-l,G-2,1-5)
Response We concur, and believe that these standards are consistent
with those established under SWDA, as is required by UMTRCA.
Comment 2.3.2 The proposed standard is inconsistent with SWDA; EPA
has determined that regulation of mining wastes under Subtitle C of
RCRA is not warranted.. (1-4)
Response. EPA's decision not to regulate mining wastes under
Subtitle C of RCRA does not apply .to uranium mill tailings. In making
this decision, EPA specifically noted that some mine wastes mig.ht
qualify for Subtitle C treatment.
This matter was addressed further by Congress in the'1980
amendment's to SWDA, which mandated the temporary suspension of
regulation under Subtitle C of certain mining wastes. The Conference
Report (No. 96-1444) for the SWDA amendments of 1980 specifies that
suspension of regulation of uranium mining wastes under Subtitle C is
limited to overburden, i.e. regulation of uranium mill tailings under
Subtitle C was not suspended. In its decision published on July 3,
1986 (51FR24496), EPA reserved the option of regulating certain
hazardous mine wastes under Subtitle C. Since uranium mill tailings
wastes are about an order-of-magnitude more hazardous than other
radium-bearing wastes, e.g., phosphate mining tailings, EPA decided
that they shall be regulated under Subtitle C.
Comment 2.3.3 Remedial actions for ground, water must be consistent
with state laws and regulations. (G-7)
Response Remedial actions needed to implement the proposed standards
are performed by DOE with the full participation of any State that
shares the cost (UMTRCA, Sec. 108(a)(D). This wording indicates an
intent to cooperate with States. Decisions regarding consistency with
State laws and regulations with respect to the requirements of UMTRCA
are the "responsibility of DOE.
Comment 2.3.4 DOE must demonstrate compliance with EPA standards at
every inactive site by the end of the statutory seven year period; if
compliance cannot be demonstrated NRC cannot license the site.
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Response The clean-up of contaminated ground water will take longer
than the time period Congress originally specified for disposal of the
tailings. In recognition of this fact, Congress extended the time
period for disposal of the tailings to September 30, 1994 and
eliminated the time limit for the cleanup of contaminated ground water
(P.L. 100-616, November 5, 1988).
Section 2.4 Roles and Responsibilities
Comment 2.4.1 It is unnecessary and inappropriate under UMTRCA,
inconsistent with the Solid Waste Disposal Act and other legislation,
contradictory of the Tenth Circuit Court of Appeals decision remanding
the Part 192 ground-water regulations, and inconsistent with EPA's
UMTRCA Title II standards (which provide for EPA concurrence) for EPA
to let DOE, in consultation with NRC, establish site-specific
alternate concentration limits (ACLs). Moreover, in Title I unlike
Title II, NRC license jurisdiction is not implicated until the
post-remedial period, 42 U.S.C. 7914(f)(2). This is a standard-
setting function that properly belongs in some form with EPA and
should not'be delegated. (P-3,G-6,G-7)
Response We considered a number of approaches to the question how to
establish an ACL mechanism. These included establishing no ACL-
mechanism, establishing generic criteria for ACLs, providing for some
form of site-specific EPA review or oversight of ACL implementation,
and (as in the proposed regulation) providing for no EPA role in
setting ACLs at individual sites.
The ACL mechanism in RCRA was added after Congress enacted
UMTRCA, requiring that EPA's general UMTRCA standards be consistent,
to the maximum extent practicable, with the requirements of the Solid
Waste Disposal Act. See Section 206(a) (amending the Atomic Energy
Act by adding Section 275). It is speculative for commenters to state
what Congress would have intended for EPA's standard-setting role in a
context it did not foresee.
Depending on the circumstances presented, EPA's role has taken
different forms. EPA (or RCRA-delegated States) administers the RCRA
ACL program. The UMTRCA Title II regulations provided for the ACL
mechanism to be administered by NRC but reserved a concurrence
function for EPA. In the proposed Title I regulations, EPA reserved
no concurrence function.
Without reflecting on. the merits of other approaches, the
proposed approach was'neither plainly inappropriate nor unnecessary
under UMTRCA or inconsistent with SWDA. Nor did it represent
disregard of the Tenth Circuit Court's decision. As to the first
point, this Federally-administered remediation program at relatively
few sites is an open process to which a different approach than that
taken in the Title II regulations could be appropriate. Second, the
UMTRCA mandate to be consistent with the SWDA where practicable would
not be violated. Since NRC is the concurring agency, it is plainly
impracticable and undesirable for EPA to administer the UMTRCA-ACL
program as if it were the RCRA-ACL program. Third, the proposed ACL
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mechanism was consistent with the Tenth Circuit Court's mandate:
these proposed standards would establish the numerical standards
required by the court, and the ACL mechanism mirrored to a substantial
degree an existing Title II mechanism in order to provide for a
reasonable degree of flexibility. There was, finally, no question
here of "delegation" of an EPA function to another agency but rather a
question of how EPA may best carry out its functions. .
It is true that Title I differs from Title II in.that in Title I
NRC licensing functions are not implicated until the post-remedial
phase. (NRC's consultative function under Section 108, however,
tracks DOE's remediation.) But the existence or not of NRC licensing
jurisdiction does not answer the question how EPA may best carry out
its UMTRCA functions regarding ACLs or, for that matter, anything else
EPA has considered that question--how best to carry out its
function here—in light of the comments received urging that, if ACLs
are used, EPA retain-some form of concurrence role. It has considered
this matter in the context of NRC's present role in administering,
with EPA concurrence, ACLs at Title II sites. We have, on
reconsideration, decided that, in view of the Tenth Circuit Court's
remand "...to treat these toxic chemicals that pose a ground wa.feer
risk as it did in the active mill site regulations", to adopt the same
mechanism for concurrence on ACLs as was used in Title II. In
practice, EPA will use the same procedures for its concurrence with
ACLs as it does for the Title II sites.
Comment 2.4.2 NRC staff lacks an adequate reservoir of technical
expertise in areas critical to evaluating proposed ACLs. (G-6)
Response Regulatory agencies such as NRC are responsible for
protecting the public health and environment from a variety of
hazards. NRC already deals with many aspects of ground-water
analysis. However, such agencies are often faced with technical
questions they cannot resolve without outside assistance and that
require them to exercise one of several options to fulfill their
responsibilities. They can hire experts, contract with expert
consultants, or obtain the assistance of other Federal agencies with
expertise in the field. The Agency is confident that NRC has ample
experience in such matters and will use any and all of these options
as needed to fulfill their responsibilities. In particular, EPA will
provide necessary general guidance on ACL matters to NRC, and will,
when the ACL involves ground water beyond the site boundary, exercise
'its concurrence role.
Comment 2.4.3 It is not clear if an NRC license to DOE can include
conditions pertaining to off-site ground-water contamination. (G-6)
Response Regardless of the.mechanism NRC choses to use to concur with
DOE1s.actions, DOE is required under UMTRCA (Section 101(6)(B)) to
conduct remedial actions at Title I sites including cleanup of the
environmental consequences of the tailings that have been dispersed
prior to disposal (Section 108(a)(D). This includes cleanup of
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ground water off site that is contaminated as a consequence of the
tailings pile.
Comment 2.4.4 A general license, which we understand NRC staff is
considering at this time, is not compatible with site-specific
analyses in support of ACLs. (G-6)
Response NRC is considering issuing a general license for the 24
sites to DOE when the disposal of tailings is complete. The general
license will detail the requirements that DOE must apply to each
site. If the general license does not accommodate all site-specific
situations, then NRC may have to issue short addenda to the general
license. These administrative procedures are the responsibility of
NRC. In addition,' however, they are responsible for concurring in
several site specific determinations as required in sections 103, 104,
105 and 108 of UMTRCA. The Agency, believes that these requirements
and the requirements of the ground-water regulation assures that each
site will receive individual consideration.
Comment 2.4.5 Does NRC provide an opportunity for public comme.nt or
input in its concurrence process? (G-2,G-6)
Response NRC is planning to hold informational meetings near the
sites before they concur with DOE's surveillance and maintenance
plans. These meetings will provide an opportunity for the public, to
express their concerns. NRC indicates that, even without these
meetings, if the public has concerns and expresses them to NRC, NRC
will respond.
Comment 2.4.6 .What are the respective roles and responsibilities of
NRC and DOE in the licensing process? (P-3,G-2,G-6)
Response DOE is responsible for remediating the mill site, cleaning
up excess contamination, and submitting plans and reports to NRC for
concurrence (sections 102, 108 of UMTRCA). NRC is responsible for
assuring that EPA's regulations are satisfied through concurrence with
DOE remediation and issuance of a license for the site when completed
(sections 104, 105 of UMTRCA). • '
Comment 2.4.7 None of the substantive or procedural provisions of the
proposed standards acknowledge the state's participation at-crucial
stages in the decision-making process. (G-7)
Response The extent of State participation is outlined in UMTRCA, and
DOE and NRC have included the States in their procedures. It is,
therefore, unnecessary to restate the extent of State participation in
these regulations establishing standards and criteria.
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Comment 2.4.8 When Indian lands are involved, there must be
consultation with the affected Indian Tribes and the Secretary of the
Interior. (G-6)
Response The commenter is correct. UMTRCA requires the DOE to
consult with affected Indian Tribes and the Secretary of the
Interior. However, it is not necessary to repeat these requirements
in these ground-water regulations.
Comment 2.4.9 The clarification of the respective authorities and
responsibilities under UMTRCA regarding issuance of ACLs as presented
in these standards is appropriate and consistent with Congressional
intent.. (1-5)
Response No response required.
Section 2.5 Institutional Controls
Comment 2.5.1 Few, if any, state or tribal jurisdictions have the
authority or the capability to enforce institutional controls over
land use such as EPA suggests. Also, in most western states exTsting
water law does not allow restriction of use based on water quality.
(G-6,G-7,G-8)
Response The Agency recognizes that use of some institutional
controls may be difficult, given limited enforcement capabilities.
Institutional controls other than State and tribal restrictions on use
of ground water are available. A variety of institutional controls is
considered in the BID.-, A subjective ranking of these controls is made
and discussed.
>-
The most reliable institutional control is temporary or permanent
ownership of land at the tailings disposal sites by the State or
Federal government. In most cases, the contaminated ground-water
plumes will be closely adjacent to disposal sites. States and tribes
may wish to consider amending their water laws to provide for such
controls, especially if the costs and benefits make use of "such
controls a sensible and practical course of action.
Comment 2.5.2 EPA should not consider use of institutional controls
or land-use restrictions for ground-water protection at inactive
sites; such controls are unreliable and inconsistent with UMTRCA.
(P-3,P-4,G-6,G-8)
Response The institutional controls contemplated would be carried out
under the jurisdiction of DOE and NRC under the legislative mandate of
UMTRCA.
UMTRCA requires that the tailings be remediated "...in a safe and
environmentally sound manner and to minimize or eliminate radiation
health hazards to the public." (UMTRCA, Sec. 2(b)(l)). We believe
that this requirement can by satisfied under the provisions of these
rules. UMTRCA clearly supports use of institutional control in a
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number of situations: e.g., permanent retention of processing sites
by the United States government (Sec. 104(e)(l)(B) and Sec. 106) or by
State government (Sec. 104(b)(D) and by permanent notice in local
land records (Sec. 104(d)).
Comment 2.5.3 Institutional controls such as deed restrictions are
notices, not prohibitions, unless there is a mechanism for
enforcement. (G-7)
Response The final rule states that institutional controls must be
effective over the entire time they would be in use and that deed
requirements would have to be enforced by permanent government
entities. If the institutional control cannot be enforced, then that
control could not be used.
Section 3 TECHNICAL ASPECTS
Section 3.1 Ground-water Standards
. -*,*._
Comment 3.1.1 The standards must provide for nondegradation of
beneficial uses to protect the environment as well as public health
arid must regulate nonhazardous as well as hazardous substances.
(P-3,G-6,G-7,G-8)
Response We believe that these final regulations provide for
nondegradation of beneficial use, as well as protective of the
environment and public- health. The Act does not require standards to
regulate nonhazardous substances.
Comment 3.1.2 Additional flexibility is needed in the classification
of ground waters. (G-2,G-8,1-4)
Response It is the policy of EPA to maintain a single classification
of ground water in its regulations to the maximum extent possible.
Low quality Class II ground water may still be needed in the future,
regardless of whether other'sources are available or not. In the
Western States, where ground water is scarce in many areas, waters
with total dissolved solids between 3,000 and 10,000 mg/1 will be
useful as drinking water or for other purposes. In any case, we
believe that the supplementary standards incorporated in this rule
provide enough flexibility to accommodate any problem site that the
DOE remediates.
Comment 3.1.3 The regulations should allow alternate methods for
estimating background water quality. (1-5)
Response EPA agrees that water upgradient of a site may not always be
representative of a site, therefore we have modified the standard to
require a monitoring program adequate to determine the background
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levels at a disposal site and have left it up to DOE with NRG
concurrence to determine the details of the monitoring program.
Comment 3.1.4 The ground-water data in the BID is based on site
summaries, not detailed reports, and'contains unsupported
conclusions. (G-7)
Response While it is true that the BID contains summaries of the
detailed reports, the original reports, which included site
characterization studies, remedial action plans, environmental impact
statements, and environmental assessment reports, were considered in
developing the BID. The purpose of this document is to provide a
summary of the information that the Agency considered in developing
the standards. The document is not intended, to be used for making
decisions .regarding ground-water .protection at specific sites.
Comment 3.1.5 Pre-existing ground water at Tuba City was probably
"Class 1". (G-6)
Response The statement referred to by this comment was based O£ the
best information available to EPA at the time of proposal, which'was
that this water was Class II. The final evaluation of ground water at
each of these sites will be made by DOE and must be concurred in by
the NRC. In either case, the standards require restoration to satisfy
the provisions of § 192.02(a)(3) .
Comment 3.1.6 At the present -rate of growth the Navajo Nation
anticipates a need for the contaminated ground waters at the inactive
mill sites within 25 to 50 years. (P-4,G-4,G-9)
Response This information should be communicated to DOE and, under
these regulations, will have to be considered when cleanup of the
ground water at each of the sites on Navajo Nation lands is carried
out.
Comment 3.1.7 Natural concentrations of nitrates are elevated in
parts of. the Western United States; therefore, it cannot be assumed
that all elevated nitrate levels in the vicinity of uranium tailings
sites result from tailings seepage. (.1-5)
Response EPA is aware that the levels of many of the contaminants may
be naturally elevated in the Western United States. This is why the
regulations require a monitoring program adequate to determine the
background concentrations of listed, contaminants.
Comment 3.1.8 It. is difficult to measure gross-alpha activity in
water with TDS concentrations over 500 mg/1; most uranium mill
tailings facilities are located in areas with TDS concentrations over
500 mg/1. (1-5) ...
13
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Response EPA recognizes that it is difficult to measure gross-alpha
activity in high TDS waters; however, it is not technically
impracticable. Methods do exist for the measurement of gross-alpha
activity in high TDS waters, the simplest of which is diluting the
water with distilled water and measuring an aliquot of the sample for
the gross-alpha activity.
Comment 3.1.9 Generic criteria and guidance for establishing ACLs at
UMTRA project sites should recognize that the remediation at these
sites envisions low maintenance . and. assured integrity for 1000 years.
(G-8)
Response The commenter is correct. The proposed rules provide that
ACLs may be used instead of MCLs at the point of compliance where data
provided by DOE support a finding that the presence of a constituent
at the proposed ACL would not pose a present or potential hazard to
human health or the environment. This determination must be made for
the period over which the disposal is designed to last, i.e., approval
of ACLs at Title I sites depends on reasonable assurance of
conformance (with no planned reliance on maintenance) to the criteria
for ACLs for at least 200 and, to the extent practicable, 1000
Comment 3.1.10 The proposed standards are so strict that ACLs will be
needed for every site, and it may not be possible to achieve consensus
between concerned or affected parties on ACLs, thus delaying remedial
actions. (G-8)
Response , As much as EPA would like remedial actions to be carried cut
expeditiously, its main concern is to protect human health and the
environment. However, the requirements for ACLs in these standards
may be easily satisfied under circumstances where the opportunity for
hazard to human health or the environment is minor. (See comment
3.2.1)
Comment 3.1.11 Some states with RCRA permitting authority may have a
nondegradation standard that would preclude use of ACLs. CG-8)
Response RCRA permitting authority does not apply to these
regulations under UMTRCA. The decision to conform to such a State
standard is at-DOE's discretion; DOE may apply ACLs, if NRC concurs.
Comment 3.1.12 The definition of ground water should not include the
seepage "bulb" or "mound" beneath the tailings pile. EPA should adopt
the NRC definition of "aquifer". (G-2 , 1-4, 1-5)
Response If the seepage bulb or mound is not hydraulically connected
to an aquifer, then it 'will normally be classified as Class III (TDS
greater 'than 10,000 mg/1 or insufficient volume to support a family)
or an ACL may be applied for at the point of compliance. If the
seepage bulb is connected to an aquifer, then it should normally be
cleaned up.
14
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Ground water is defined in the standards, therefore EPA did not
find it necessary to define an aquifer.
Section 3.2 Point of Compliance (POC)
Comment 3.2.1 Clarification is needed concerning application of the
RCRA regulation on POCs to UMTRA Project sites to reconcile RCRA
intent with UMTRA Project longevity objectives. Location of the.POC
should recognize the specific design differences between RCRA and
UMTRA Project facilities. (G-8)
Response We concur. These designs, unlike those required for RCRA,
must accommodate the need for radon control and function over
extremely long periods of time. Small amounts of seepage that do not
affect any POE more than a few hundred feet from a pile, as.long as
this is part of the property over which governmental control is
exercised in perpetuity, should provide adequate protection of health
and the environment in all but exceptional cases. Application of an
alternate concentration level in such cases would be appropriate.
Comment 3.2.2 The POC provision in Part B will require a complete
description of the contaminant plumes, this will assist in the cleanup
of chemical pollutants. (G-3)
Response No response required.
Comment 3.2.3 It may be unrealistic to meet ground-water quality
standards at the downgradient uppermost aquifer beneath the toe of the
pile. Some distance from pile edge is required before mixing,
dispersion, and attenuation reduce concentrations to below proposed
limits. (G-7,G-8,1-4,1-5) .
Response See the response to comment 3.2.1.
Comment 3.2.4 The POC should he defined at some distance downgradient
from the edge of the pile and should -include the intervening geology
.as part of the waste management area. A rational alternative is to
allow NRC and DOE to make the POC the boundary of the property that
will be transferred to government ownership and licensed by NRC in
perpetuity. (G-2,G-7,G-8,1-2,1-4,1-5)
Response To maintain consistency with RCRA, these regulations require
that the POC be at the edge of the disposed of tailings. However, NRC
may allow DOE to place additional wells for monitoring contamination
of the ground water from tailings at any point as long as they are
satisfied that DOE can demonstrate that they are complying with the
standards at the point of compliance. See the response to comment
3.2.1.
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Comment 3.2.5 The POC should be concurred in by the State. (G-7)
Response Under UMTRCA, States do not have a concurrence role.
However, a State that pays part of the cost of remediation may
"participate fully" in the selection and performance of the remedial
action (UMTRCA Section 108(a)(l)). The precise interpretation of 'this
language is not a subject of this regulation.
Section 3.3 Remediation Period
Comment 3.3.1 The proposed
restoration is inconsistent
requirements of SWDA and is
(P-l/G-2,G-6,G-7,I-4)
period of 100 years for natural
with the intent of UMTRCA and the
not supported by analysis.
Response We believe an extended period for natural restoration of 100
years is consistent with the intent of both UMTRCA and SWDA. UMTRCA1s
intent is that the cleanup be permanent, not that it necessarily be
concluded as fast as possible. The period selected is the shortest
period that is of significant use for natural restoration of ground
water and the longest period that EPA feels that institutional ^_
provisions should be relied upon to protect human health and the
environment.
Comment 3.3.2 Suggestions that a few years or decades may be adequate
to demonstrate natural restoration of water quality is not supported
by technical analysis. (G-2,G-6)
Response A number of technical analyses have supported the usefulness
of natural flushing processes. At several sites removal of
contamination by natural flushing, of an aquifer has been estimated to
require a number of decades. The DOE estimates that, at
Colorado, sites, natural processes at the Old Rifle site
contaminant levels in the alluvial aquifer to background
minimum of two years following disposal of the tailings.
estimates that natural flushing would restore the aquifers at 3 or
additional sites to compliance with the standards in less than 100
years.
the Rifle,
could restore
levels in a
DOE also
Comment 3.3.3 Any extended remedial period and concurrent
institutional controls should be limited .to a 20 to 30 year period
with possible extensions. (G-7)
Response Limiting the extended remedial period to such short times
would serve only a limited purpose. Although the choice between 30
and 100 years is ad-mittedly somewhat arbitrary, the commenter does not
present a basis for the shorter period. With the possibility of
extensions, the difference becomes even less and would be open-ended.
EPA believes that institutional controls cannot 'be applied reliably
for indefinite periods.
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Comment 3.3.4 EPA should be ca.utious in the regulatory use of models
and provide procedures and safeguards to ensure proper use of modeling
in decision-making. The development of ground-water modeling as a
predictive tool is still in its infancy. Also, modeling can be abused,
either deliberately or inadvertently. A minimum set of criteria that
all models must comply with should be specified. (G-7)
Response The comment is well taken. However, under UMTRCA the
standards that must be met by DOE are set by EPA; the implementation
and application of those standards, including the validity of any
models proposed for use, must be concurred in by NRC. We do not
believe that it is appropriate to specify criteria for models in the
standards, in part because of the factors, raised by the commenter. In
any case, the regulations require some monitoring to verify the
accuracy of model predictions.
Comment 3.3.5 If modeling is used, participating states and tribes
should be given full access to the model and its documentation and
their concurrence should be required before recommendations based on
modeling are implemented at a site. (G-7)
Response This matter should be addressed to the NRC, since they must
concur in the models used by DOE.- ,
Section 3.4 Monitoring
Comment 3.4.1 Long-term, continual ground-water monitoring is needed
and should be required at all sites until it is demonstrated that safe
levels of contaminants have been achieved. (G-2,G-3,G-7)
Response Long-term ground-water monitoring is required by these
regulations for a period sufficient to demonstrate compliance and the
adequacy of assumptions. The actual time will be decided by DOE and
NRC after considering site-specific data.
Comment 3.4.2 The regulations should specify a minimum acceptable
monitoring period as well as parameters for setting this period. (G-7)
Response We disagree. The minimum acceptable monitoring period
should be determined by assessing site-specific parameters. This
period will be proposed by DOE and must be concurred in by NRC. EPA
feels that these government agencies are capable of determining the
proper monitoring period (see previous comment).
Comment 3.4.3 Upgradient monitoring may not always be capable of
providing the desired background water quality information. (G-2,I-5)
Response The standards have been modified to simply require a
monitoring program adequate to establish background water quality,
since upgradient monitoring cannot always provide the required
background water quality information. This will allow DOE to use
17
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crossgradient or other monitoring locations when necessary. (See
comment 3.1.3)
Comment 3.4.4 What provisions are there in the event that
unanticipated events occur or new information develops after '
licensing? (G-2)
Response Should such an event occur at a remediated site in the
future, whatever agency controls the site would have to resolve the
problem with the concurrence of the licensing agency, under provisions
of Section 104(f)(2) of UMTRCA. '
Comment 3.4.5 Mechanisms for monitoring, assessment, and corrective
action must be a continuing program responsibility shared by DOE and
States. (G-7)
Response These regulations require DOE" to establish a monitoring
program during the disposal period, any extended remedial period, and,
for a specified site-specific period of time (comparable in purpose to
the 30-year period required under Title II) in the post-disposaj...
period. It is therefore conceivable that some of these sites could be
monitored for well over 100 years. If, during this-'time period,
additional maintenance or remediation is required, it would be the
responsibility of DOE to see that such remediation or maintenance is
performed. Following the post-disposal period, if the State has opted
to retain ownership of the site, it would be responsible for its
continued maintenance. Should the site remain under Federal
ownership, the Federal agency involved would retain responsibility for
its continued maintenance.
Section 3.5 Pile and Liner Design
Comment 3.5.1 The different philosophical approaches to design and
containment of wastes under RCRA and UMTRCA have led to conflicting
and mutually inconsistent.requirements with respect to both ensuring
longevity and meeting ground-water protection requirements. It is-
questionable that the current disposal cell design, based on longevity
and radon reduction requirements, can be engineered to meet proposed
ground-water protection standards. (G-8)
Response The regulations provide mechanisms, such as ACLs and
supplemental standards, to accommodate those cases where design for
radon reduction and design for protection of ground water conflict.
Comment 3.5.2 Modification of cover design and construction methods
is necessary; given the present cover design, it appears certain that
water will infiltrate and drain from the tailings on a continual
basis. (G-6,G-7,G-8)
Response DOE expects, and preliminary studies seem1to confirm, that
the covers are exceeding their design specifications and will operate
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in an unsaturated condition. In this situation, minor amounts of
water will seep through the tailings in the 1000-year life of the
remediation. The regulations provide a mechanism to allow for the
ground water standards to be exceeded to a limited degree, when it is
not reasonably avoidable, very close to the disposal area by allowing
NRC to grant alternate concentration limits (ACL), if it can be shown
that human health and the environment will remain adequately
protected. This process will allow, when necessary, for minor design
drainage of Jeachate following stabilization of a pile.
Comment 3.5.3 The final disposal design should possess the most
impermeable cover reasonably achievable coupled'with an engineered
geochemical attenuation system beneath or downgradient of the
tailings. (G-6>G-7,G-8)
Response We anticipate that these standards constituted such a
requirement, with respect to cover design. However, actual disposal
designs are not the direct subject of this rulemaking; the condition
of ground water is. The DOE is responsible for developing final
disposal designs that will satisfy the requirements of the existing
standards under 40 CFR 192, as well as those promulgated here. ^
Comment 3.5.4 The rock cover on the stabilized tailings will act as a
one-way valve, allowing infiltration but not evaporation. Since the
pile covers will be unvegetated there will be no water loss through
transpiration. These factors will lead to sustained generation of
leachate from the disposal cells. (G-6,G-7)
Response Designs for radon protection and minimizing leachate
formation are possible. Because these designs must be developed on a
site-specific basis, EPA believes that incorporating cover design
standards into the regulations would only restrict DOE's flexibility .
and is not in the best interests of the program.
Comment 3.5.5 Rodents could burrow through the top liners at disposal
sites, bringing some of the radioactive tailings to the surface and
allowing "surface water contamination. (G-3)
Response This problem has been studied in the past (_1,_2) and has been
found to be avoidable. Where rodents are a problem, DOE can take this
into consideration when they design the cover of the pile.
Section 4 RISK ASSESSMENT
Section 4.1 Molybdenum Concentration Limit
Comment 4.1.1 The molybdenum concentration limit should be based on
background uses and class of the ground water, not on drinking water
standards. The proposed standards will result in use of ACLs at the
majority of the disposal sites; this is unreasonable. (G-l)
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Response The standards provide for a supplementary standard when the
ground water is not potable and otherwise not of use. Any other water
must be considered as potentially useful as drinking water and would
have to meet the drinking water standards. EPA does not consider it
unreasonable to assure, as required by the conditions for ACLs, that
public health and the environment will be protected wherever the basic
standards are not met.
Comment 4.1.2 The human toxicology base- was considered inadequate by
EPA for setting a general drinking water standard for molybdenum.
(P-2,I-4,I-5)
Response The human toxicology base is adequate enough, however, to
establish that .cattle are more sensitive to molybdenum toxicity than
are humans. The standard was chosen at a level that will protect
cattle from .developing molybdenosis and will not prove toxic to
humans. Except for a few localized types of situations (of which
uranium mill tailings piles is one), molybdenum is not a problem in
drinking water. Therefore, EPA is not contemplating establishing an
MCL for molybdenum under the Safe Drinking Water Act.
Comment 4.1.3 The proposed standard of 0.1 mg/1 for molybdenum is
unnecessarily conservative; a standard under 0.2 mg/1 is not
justified. (G-6,1-2,1-4,1-5)
Response The above comment is based on data from human studies. As
noted above, the EPA standard also the prevents molybdenosis in cattle
Comment 4.1.4 If standards for molybdenum levels are to be provided,
there should be an analysis made of the forms of molybdenum involved
at the sites and the possible effects reductions in molybdenum levels
at the site may have on metabolically related nutrients. (P-2)
Response The information considered by the Agency in establishing the
standard for molybdenum took into account the forms of molybdenum and
its relationship with related nutrients to the extent such ,
considerations were pertinent and data were available.
Comment 4.1.5 No risk assessment was made on the need for a
molybdenum standard for the protection of livestock. (1-5,P-2)
Response As indicated in the BID, the molybdenum standard is based on
the level in water that will protect cattle and humans from toxic
effects and corresponds to provisional adjusted acceptable daily
intake (AADI) for drinking water developed by EPA under the Safe
Drinking Water Act (50 FR 46958). Since the AADI is set at a level
that is protective of human health, no further risk assessment is
appropriate.
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Section 4.2 Uranium Concentration Limits
Comment 4.2.1 The limit for combined uranium-234 and uranium-238 is
not scientifically supportable; the uranium standard is based on
faulty weighting factors, risk estimates, and dose equivalents and is
extremely conservative. (G-6,I-5)
Response The EPA has revisited the uranium standard and has concluded
that it should also consider chemical toxicity of uranium as well as
the cost implications of achieving (for uranium) the risk level of the
current radium standard.
EPA is in the process of examining these factors, but will not
reach a decision on the MCL before this standard is promulgated.
However, the standard-setting process has proceeded far enough to
assure that the MCL for uranium in drinking water will be close to the
limit that was proposed and is promulgated in this regulation. Should
the MCL as finally promulgated be different from the limit in this
regulation, EPA will reconsider the limit at that time. .
Comment 4.2.2 A uranium standard on the order of 0.1 mg/1 would be
adequately protective of public health and the environment. .^
(G-6,G-7,I-2)
Response EPA has revisited the uranium standard, and concluded that,
based on available information, a standard of 30 pCi/liter is required
to adequately protect human health and the environment. The basis for
this decision is provided in the Notice of Final Rulemaking.
Comment 4.2.3 Although the general- method used by EPA in assessing
the health effects of uranium is that of the ICRP, the assessment
differs from that followed by ICRP in several details. (P-2)
Response This comment refers to an advanced notice of proposed
rulemaking on drinking water standards (51 FR 34836). It has no
direct relevance to the standard being discussed here.
Comment 4.2.4 EPA uses the ICRP nonstochastic annual limit on intake
(ALI), not the stochastic ALI which is more protective, yet the limit
is for a stochastic risk. (1-5)
Response EPA used the ICRP nonstochastic ALI in error; substitution
of the correct ALI results in a value of 23 pCi/1. This value, •
however, does not include consideration of cost. The final standard
is within the range being considered by EPA for an MCL for drinking
water.
Comment 4.2.5 Use of the term "urinary tract" to describe what is
presumably dose only to the kidney is confusing; if EPA's weighting
factor includes both kidney and bladder, then the risk assessment may
be too conservative. (P-2)
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Response This comment must have been addressed to risk assessments
performed for another rulemaking because we did not use the term
"urinary tract" in this rule.
Comment 4.2.6 The uranium risk assessment methods used were simple
screening methods with high built-in conservatism; this is not
appropriate where the • results can lead to high economic costs
unjustified by the health risks. More comprehensive analyses should
be made using better data to obtain a more realistic picture of the
risk. (P-2)
Response This comment addresses risks published in a rulemaking on
drinking water standards and has no relationship or relevance to this
rulemaking.
Section 4.3 Risk Analysis
Comment 4.3.1 EPA should prepare a health and environmental benefits
analysis to support the proposed standards. (G-8,I-1)
Response The legislative charge under Title I does not envisageT
balancing of costs and benefits. Rather, EPA is charged to issue
standards that conform, to the maximum extent practicable, to the kind
of protection and clean up of ground water required under RCRA
regulations.
Comment 4.3.2 Lack of a satisfactory risk assessment poses
interpretation problems in judging the reasonableness of certain
actions. (G-8)
Response See the previous comment.
Comment 4.3.3 Non human health issues at the Title I sites,
particularly potential impacts on agriculture, are not adequately
addressed. (G-6)
Response Cleanup of contaminated ground water to these standards
should protect agricultural uses. Other beneficial uses of the ground
water must be addressed before ACLs or supplemental standards can be
granted by the NRC. This should also assure adequate protection of
agricultural uses of ground water.
Comment 4.3.4 Most of the contaminants found in uranium mill tailings
piles occur naturally in undisturbed water and soils near the tailing
sites and do not include many of the organics and contaminants
regulated under RCRA. (G-6,G-7,1-5)
Response EPA realizes that many of the contaminants listed in RCRA
regulations are not found at most inactive uranium mill tailings
sites. However, some of these compounds have, unexpectedly, been
22
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found at some sites. If DOE can
site, then they will not have to
show that they are not
be considered further.'
present at a
Comment 4.3.5 The regulatory assessment in support of the
ground-water standards should include an estimate of the probability
of exposure and an assessment of the risk associated with various
levels of exposure. (P-2,G-1,1-4,1-5)
Response The background information does not contain a probabilistic
assessment of exposure, because to attempt to estimate how many people
over the indefinite future will use the water from a contaminated
aquifer is virtually impossible. See also comment 4.3.6.
Comment 4.3.6 Only 5 of the 12 UMTRA sites discussed in the BID have
any current or potential use of the aquifer; the level of ground-water
protection should be based on current and potential uses of the local
aquifers. (P-2)
Response It is national policy to protect ground water independent of
current use.
Section 5 ECONOMIC ANALYSIS
Section 5.1 Cost Analysis
Comment 5.1.1 The statement that costs are not to be considered in
the decision to restore contaminated ground water (i.e., practical vs
practicable) appears to be contradicted where the supplemental
standards reference the concept of technically impracticable. (G-8)
Response The distinction between "practical" and "practicable" was
introduced precisely to clarify the meaning of technically
impracticable. To repeat: practical implies specifically
costs and benefits, i.e., not spending more than the value
benefit obtained. By contrast, practicable means "able to
practice." Costs^ if a consideration, would enter only on
of availability of funds.
balancing
of the
be put into
the basis
Comment 5.1.2 Design and construction cost impacts for Subpart A have
not been e-stimated as the proposed standards will require a unique
technical approach for each disposal site. (G-8)
Response The comment is correct.'
Comment 5.1.3 The proposed standards may serve as precedent for other
radioactive waste cleanup projects; this cost should be considered.
(G-8)
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Response See comment 2.1.12. EPA recognizes that there may be
additional costs if these standards are used as precedent for other'
radioactive waste cleanup projects. However, these costs can be
assessed at the time these standards are considered for use in other
projects.
Section 5.2 Benefit-Cost Analysis
Comment 5.2.1 EPA should assess whether costs of the proposed
regulations bear a reasonable relationship to the benefits as UMTRCA
requires. Limited waste cleanup funds should be expended at sites
having relatively high impacts on human health and the environment.
(P-2,G-7,G-8,I-4)
Response See the responses to comments 4.3.1 and 4.3.6.
Comment 5.2.2 There is no experience in estimating environmental' harm
that is long-term, manifest, and grossly disproportionate to
anticipated health benefits. The record should indicate that
cost/benefit analysis can be used as a tool to determine if the_,
possible environmental harm is grossly disproportionate to the health
benefits. (G-8)
Response Cost/benefit analysis is a tool for balancing comparable
costs and benefits. The reference to "grossly disproportionate" is
intended to preclude such finely drawn balances.
Comment 5.2.3 By the definition of "technically impracticable from an
engineering perspective," EPA has precluded the use of benefit-cost
analyses in assessing potential health effects from these sites.
However, the discussion on implementation stresses providing "the
maximum reasonable protection"; use of the word "reasonable" seems to-
imply some kind of benefit-cost analysis. (G-8,P-2,I-4)
Response The definition of "technically impracticable from an
engineering perspective" does preclude the use of cost-benefit
analyses of potential health effects from contaminated ground water
for establishing the level of cleanup .at these sites.
The concepts of "reasonable" (implying a cost-benefit balancing)
and "technically impracticable from an engineering perspective" are
incorrectly linked and compared in this comment. The goal of the
standards is to provide protection for public health and the
environment. By describing, this goal as "maximum reasonable
protection" in the discussion of the proposed standards, the Agency
adopted a broad view of "reasonable," not a limited technical view of
balancing costs and benefits.
Comment 5.2.4' Cost and benefit considerations should be included in
the final standards. • The concept of unreasonably high costs in
relation to benefits should be explicitly identified as relevant to
24
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the decision that supplemental standards are warranted because of
technical impracticability. (G-8,I-4)
Response There are several reasons for not performing a cost-benefit
analysis to determine the degree of cleanup appropriate for
contaminated ground water. First, the benefit is difficult to
quantify. The use of ground water from any particular aquifer is
unpredictable, especially over long periods of time.
Second, the intent of Congress in providing the similar provision
in CERCLA (§ 121(d)(4)(C)) was not to permit balancing 'of costs and
benefits. The same section only provides for consideration of cost
when Superfund would be unreasonably depleted, resulting in greater
threat to public health and the environment elsewhere.
Finally, technical impracticability means that something is not
capable of being performed, as discussed in supplementary information
to the proposed rule (52 FR 36000). Thus, cost is not an explicit
factor in considering impracticability.
Comment 5.2.5 Until both public health benefits and actual costs of'
remedial actions can be estimated with greater confidence, cleanup
costs should not be discounted. (P-2) _^
Response Cleanup costs are discounted to take into account the time
value of money, reflecting the likelihood that today's dollar is worth
more than a dollar will be worth 10 or 20 years from now. Public
health benefits are not discounted, because health benefits do not
behave like monetary costs, as a function of time.
References
(_!) Cline, J.F., F.G. Burton, D.A. Cataldo, W.E. Skiens, and K.A.
. Gano. Long-term Biobarriers to Plant and Animal Intrusions of
Uranium Tailings, PNL-4340. U.S. Department of Energy, Pacific
Northwest Laboratory, Richland, Washington 99352 (September 1982)
(2) Gano, K.A., J.B. States. Habitat Requirements and Burrowing
Depths of Rodents in Relation to Shallow Waste Burial Sites,
PNL-4140. U.S. Department of Energy, Pacific Northwest
Laboratory, Richland, Washington 99352 (May 1982).
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APPENDIX B - LIST OF COMMENTERS
Comment No. Commenter - Date Docketed
Organizations and Individuals
P-l Environmental Defense Fund 01-29-88
P-2 Dr. L. D. Hamilton; Brookhaven 01-29-88
National Laboratory
P-3 Southwest Research and Information 01-29-88
Center
P-4 Tuba City Citizens Committee for 02-11-88
Uranium Radiation Control
Government Agencies
G-l Wyoming Department of Environmental 10-26-87
Quality
G-2 Nuclear Regulatory Commission 01-29~88
G-3 Department of the Interior 12-18-87
"G-4 DOI - Bureau of Indian Affairs 01-13-88
G-5 v Texas Department of Health 01-21-88
G-6 The Hopi Tribe 01-27-88
G-7 Colorado Department of Health - 01-29-88
G-8 Department of Energy 01-29-88
G-9 Navajo Nation Department of Justice 02-01-88
Industry
.1-1 Foote Mineral Company 10-26-87
1-2 • Cotter Corporation 10-26-87
1-3 , Pathfinder Mines Corporation 11-04-87
1-4 Kerr-McGee Chemical Corporation 01-25-88
1-5 . American Mining Congress ' 01-29-88
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APPENDIX A - QUESTIONS
Question 1. Should a liner requirement always be imposed on tailings
piles that are moved to a new location? Should a liner be required
only if the DOE or the NRC conclude that it is needed to satisfy the
ground-water standards for disposal?
Responses to this ranged from "A liner requirement should be imposed
on all tailings piles moved to a new location. This is the least that
can be done to partially assure that future generations (in the next
1000 years) will not be faced with the same uranium tailings problems
which we are now attempting to resolve." to "A liner in the ,true sense
of the word requires leachate collection and treatment... This is not
consistent with the specific congressional intent of a zero to minimal
maintenance requirement for the inactive uranium sites." (G-4HG-7)
Other views included:
-A mandatory liner requirement at all new locations, consistent
with requirements for Title II sites. ^(P-3)
-The liner requirement should be a rebuttable presumption; the
concern is that DOE or NRC should have an affirmative obligation
to perform a rigorous geohydrologic analysis to demonstrate that
leachate from the tailings would not have a detrimental impact on
potential beneficial uses of a ground water during a period of
200 to 1000 years. A waiver on the liner requirement from EPA
should be required. (G-9)
-Liners should be required at new locations unless DOE could
present evidence that a liner is not required. (G-6)
-EPA has given no rationale for treating DOE less stringently than
it treats private_hazardous materials facilities' owners and
operators or the operators -of active uranium mill tailings piles
and, therefore, EPA's standards must impose a liner requirement
for consistency. An alternative would be to waive the liner
requirement at those sites where the tailings are completely dry
and DOE could demonstrate that during both wet cycles and maximum
flood events the tailings would remain dry without a liner. (P-l)
-The need for a liner should be evaluated on a site-by-site
basis. (G-l)(G-2)(G-5)(G-7)(G-8)(I-4)(I-5)
Liners are relied upon (under S.WDA) to prevent significant
releases of hazardous constituents only during operations rather
than the long-term for which the proposed standards are intended
to apply. DOE and NRC should be allowed to exercise
site-specific judgement in designing and approving ground-water
protective measures at disposal sites. (G-2)(l-5)
The long-term performance of a disposal cell will usually be
governed entirely by the cap, not the liner. '(1-4.)
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If a bottom liner is installed without an underdrain .the disposal
cell would become saturated, leading to the "bathtub" effect.
EPA should require that the final disposal design possess the
most impermeable cover possible (a maximum of 1 x 10~7 cm/s),
coupled with a geochemical attenuation system beneath the
tailings or immediately downgradient of the disposal cell as an
alternative to the liner requirement. (G-7)
.The low permeability covers placed on UMTRA Project tailings
piles inhibit infiltration and are the primary seepage control
mechanism. Where necessary, DOE, with NRC concurrence, will
consider the use of a liner or a geochemical barrier at the base
of the pile in addition to a low-permeability cover as a possible
way to satisfy ground-water standards. The need for natural
liners must be evaluated on a site-specific basis considering the
depth to the water table, permeability of the foundation
materials, quality of the water below the tailings pile, and the
rate and amount of infiltration through the cover system. Since
the UMTRA Project must design for 1000 years, and the longevity
of synthetic liners has not been sufficiently demonstrated, liner
selection is limited to natural materials. The layered,
multi-material cover system is designed for radon attenuation and
low permeability.
It was also suggested that if a tailings pile is to be relocated,
the following could also be done: construct a low-permeability,
geochemical layer at the base of the pile; promote flushing of
the tailings; or utilize above-ground disposal. None of these
concepts provide an assurance of long-term effectiveness but
these, and others that may be identified, will continue to be
evaluated on a case-by-case basis. (G-8)
Response:
As noted by some commenters, the absence or presence of a liner
does not by itself assure the longevity of disposal and ground-water
protection. We believe that EPA's proposal, that a liner not be
required when water retained in tailings piles is not a problem, is
consistent with the Title II requirement, because tailings at active
sites may contain large amounts of water and therefore require a
liner, while tailings at most inactive sites no longer contain excess
water. Requiring a liner at all tailings pi.les moved to a new
location is not the best solution. A liner that is less permeable
than the cover may cause water to pool in the tailings, eventually
spilling over the edge of the liner or leaking through the liner with
higher levels of contamination (from longer contact with the tailings)
than if no liner were present.
The proposed standards require that DOE, with NRC approval,
decide under what conditions a liner may be necessary. EPA agrees
with the majority of commenters that this should be a site-specific
determination. A liner would be required at those sites where DOE
could demonstrate that during wet cycles and maximum flood events,
ground water would be threatened in the absence of a liner.
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It would not be appropriate for EPA to review liner decisions and
cover designs. Under UMTRCA, the specific analysis of the need for a
liner and the design of the cover for tailings piles that do or do not
require a liner is the responsibility of'DOE, with NRC approval.
EPA has decided to retain its original position. That is, the
regulations require liners at those tailings piles which contain water
above the level of specific retention. Tailings piles which are not
relocated, or are relocated and contain little or no free water, and
are stabilized with an adequate cover are not likely to require a
liner to protect ground water.
Question 2. For designated processing sites from which tailings have
been removed, is a specific requirement that DOE clean up the ground
water before releasing the land to State or private owners needed to
assure that such cleanup will occur?
Such a requirement is needed. (P-l)(P-3)(G-3)(G-4)(G-6)(G-7)(G-9)
-Some sites could revert back to Department of Interior (DOI)
' management and any ground-water contamination should be cl.ft.aned
up before DOE releases a site back to DOI. A related concern
expressed is that this rulemaking should require DOE to acquire
full title to any BLM-managed lands to be used as disposal
sites. (G-3)
-Without such a provision, it is doubtful that cleanup would ever
occur by any method other than natural flushing, which the.
reviewer deems unacceptable. (G-4)
—The ground water should be restored to levels consistent with
potential beneficial uses available prior to tailings
emplacement. Also, to release lands prior to ground-water
cleanup is inconsistent with potential human health and
environmental hazards posed by contaminated ground water.
(G-6HG-9)
-There was implicit recognition that the standards would allow
flexibility in the amount of cleanup required, based on
site-specific current and projected use of. the ground water.
;G-7)
-DOE must demonstrate compliance with EPA standards at the time of
NRC licensing, which must be within seven years of the standards1'
promulgation. There would be no way to enforce a cleanup program
after the remedial action and licensing events have been
completed. Unless EPA's standards require that DOE clean up the
>ground water before releasing land to other owners, within the
statutory time frame, DOE might either release the property to
other owners before cleanup is complete or choose not to perform
any clean up and simply retain possession of the land,
circumventing the intent of the law and allow creation of
environmental sacrifice zones. (P-l)
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-DOE had requested provision in the standards for release of land
prior to ground-water cleanup. This request should be rejected
and release of sites prior to cleanup of ground water should be
prohibited. Such release would not be legal since NRG cannot
license a site prior to cleanup; such release would not protect
the public health, safety and the environment as mandated by
UMTRCA; and there would be no guarantee that DOE would complete
ground-water cleanup. (P-3)
Such a provision is unnecessary. (G-l)(G-2)(G-5)(G-8)(1-4)(1-5)
-DOE is required by Section 108 of UMTRCA to comply with standards
promulgated by EPA. Also, DOE has cooperative agreements with
affected States/tribes and the NRC requiring their concurrence in
the remedial action plan. The issue of land acquisition and
release is fully addressed in Section 104 of UMTRCA. In some
cases, beneficial surface use may be possible during aquifer
restoration and that release for surface use, with NRC
concurrence, should be permitted if the DOE demonstrates that a
significant adverse relationship does not exist between surface
uses and ground-water restoration. (G-8)
-Release of processing sites for surface use, if such use would
not adversely impact the ground-water cleanup program, is
reasonable but may not be consistent with the law. (G-2)
-Annotation of the deed would be sufficient. (G-l)
-While it might be appropriate to release reclaimed tailings sites
to a State for limited purpose use, release to private persons
should not be permitted. Need for cleanup prior to such release
would depend on site-specific factors such as contaminant types
and levels, existing-water quality, potential, uses and
availability of alternate water supplies and surface uses to
which the land may be put. (1-5)
-Natural flushing may often be the most cost-effective means for
achieving compliance. This might require many years and there is
no need to require that it be accomplished prior to release of
the land if institutional or other controls can assure that
contaminated ground water is unlikely to be put to inappropriate
use during the remedial period. (1-4)
Response:
EPA's position remains the'same as originally stated in the
proposed rules. Cleanup must .take place in accordance with a remedial
action plan proposed and carried out by DOE with NRC's approval. The
cleanup must be carried out in such a manner as to be protective of
human health and the environment. EPA believes that there are
adequate provisions in UMTRCA and the regulations to prevent abuse of
contaminated ground water before cleanup is complete that a specific
requirement to assure cleanup is not necessary.
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If some sites should be released for restricted use before ground
water contamination is cleaned up, DOE must maintain control of the
cleanup operation. The DOE does not intend to return the single site
on DOI land to DOI until it has been completely cleaned up. Although
DOE must demonstrate compliance with EPA standards before remediation
is complete, the land may be used before this time for specific
purposes with DOE and NRG approval. Use of the land must be
restricted so that human health and the environment are protected from
the potential hazards of ground water contamination. The land may not
be released for unconditional use until the ground water is cleaned
up. Land use restrictions, such as deed annotations, may not,
however, be enough unless such restrictions can be legally enforced.
Question 3. Should institutional controls be relied upon, for a
limited time, to prevent access of the public to ground water in order
to permit use of natural flushing of contaminants, as proposed? If
so, what types of institutional controls should be allowed? Should
these be specified in the rule? Is the proposed time period
appropriate?
Reliance on institutional controls during ground-water remediation is .
opposed. (P-l)(P-3)(G-4)(G-6)(G-7)(G-9)
-There is no assurance of future enforcement. (G-4)
-The proposed period of 100 years is without technical foundation
and is inconsistent with UMTRCA. (G-6)
-Institutional controls during active remediation are not objected
to .but reliance on natural flushing for remediation is opposed as
contrary to the intent of UMTRCA. If such controls are used, the
regulations should require very limited and site-specific
controls. Noting that it is inconceivable that Congress would
have anticipated that the hazards posed by uranium tailings and
the accompanying contaminated ground water would continue
unabated for 100 years or half the minimum time period for
effective control, the commenter stated that, if such controls
are used, they must provide protection to both human health and
the environment for 1000 years. (G-9)
-Reliance on institutional controls provides nothing in the nature
of cleanup; the contaminants will remain dispersed in the ground
water, possibly diluted by uncontaminated ground water or
attached to soil particles, thus permanently contaminating the
soils.- The- only effective institutional control is believed to
be complete fencing, with a security system and government
ownership of the site. Such controls are seen as contrary to
Section 112(a) of UMTRCA that remedial action be completed within
seven years. To the extent that EPA can promulgate
RCRA-consistent controls to accomplish remedial actions within
seven years, those controls should be specified.
A maximum time of 20 years is suggested for compliance. EPA
gives no rationale for choosing 100 years, which is half the
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lower time limit and appears to bear no relation to the seven
year deadline for completion of remedial action. (P-l)
-EPA is urged to reject any and all uses of institutional
controls during the post-closure cleanup period; these should be
used only during tailings stabilization and ground-water
restoration activities at a site. Institutional controls are
inconsistent with federal law and a federal appeal court's
ruling, practically impossible to enforce, undemocratic and
immoral. The commenter reviews .arguments made in response to the
January 1983 ANPRM and adds that, given the court's order to
treat the ground-water standards for Title I sites consistently
with those of the Title II sites, it is surprising that EPA would
even consider allo.wing use of natural flushing as a substitute
for active engineered ground-water restoration methods. UMTRCA
does not give EPA the authority to require States, tribes or
local 'governments to impose land-use or deed restrictions at
reclaimed tailings sites. Since consistency with SWDA is
required, the existence of an alternate ground-water source or
public water supply should have no bearing on the decision. The
suggestion of a remediation period of up to 100 years is opposed,
citing that it is'the-current generation's moral obligation, and
responsibility to manage and control the toxic wastes it creates
so that those wastes do not harm generations of the future. (P-3)
-If there were a fully enforceable mechanism for implementing
institutional controls, such controls could be considered.
Unfortunately such controls do not exist in Colorado. Also,
institutional controls rely on active intervention whereas
Congress intended passive control measures. Purchase of the land,
in question and dedication to an appropriate land use is viewed
as the only implementable institutional control. Guidance
specified in the rules in the area of institutional controls is
needed. The proposed time period of 100 years is too long; it is
inconsistent with_normal land-use projections. Instead use of
renewable periods of 20 to 30 years is suggested, with
participation and concurrence of the State and affected Indian
tribes. (G-7)
Reliance on institutional controls during ground-water remediation is
supported. (G-l)(G-2)(G-3)(G-5)(G-8)(1-4)(1-5)
Acceptable controls should not be specified by EPA, rather, DOE should
be allowed maximum flexibility to develop appropriate controls on a
site-specific basis, subject to NRC concurrence. Suggestions of
possible institutional controls include legal restrictions enforceable
by government agencies, government ownership of the site,
appropriation of water resources during period of natural flushing,
deed restrictions and provision for alternate water supplies.
(G-2HG-8) (1-4) (1-5)
-The time period of 100 years is viewed as reasonable though in
some cases this might not be adequate. (1-4)(1-5)
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-Consideration of an appropriate time period has been ongoing
since 1978 and there seems to be a consensus on the 100 year
period. (G-8)
-The .law requires DOE to maintain active site control indefinitely
and to conduct monitoring, maintenance and emergency actions as
needed. This long-term care is under NRC license and a 100-year
period has no meaning fo.r this care. EPA should recognize this
and take care not to provide a basis for arbitrarily attenuating
the DOE obligations. (G-2)
-Sites could be monitored by State agencies through federal
contracts. (G-5)
Response:
EPA has decided to permit the use of institutional controls as
proposed. The regulation requires that institutional controls must
effectively protect human health and the environment and must receive
NRC concurrence. NRC can require that a Federal presence is
maintained during th.e extended remedial period. This assures the
maintenance of institutional controls. .
The proposed period of 100 years for.the natural flushing of
contaminants is somewhat arbitrary. Periods shorter than 100 years
are considered too short to be useful for natural cleanup for some
sites on technical grounds. Periods of longer than 100 years,
however, are considered too long for institutional controls to be
reliable. See section 3.3 of the response to comments.
UMTRCA provides that cleanup of ground water is the
responsibility of DOE; as long as institutional controls are under the
jurisdiction of DOE, they are therefore consistent with the law (see
section 2.5 of Response to Comments).
The UMTRCA requirement that remedial action be complete in seven
years has been modified. As part of this modification, the cleanup of
ground water has been exempted from the remedial action completion
date. Therefore, DOE does not have to complete the cleanup of ground
water within a specified period of time.
Authority to require States, tribes, or local governments to
impose land-use or deed restrictions is not required by these
regulations. If such restrictions are available, then they may be
used, where appropriate.
Question 4. Should the option to make use of natural flushing for
cleansing of contaminants be limited to cases where some restoration
of the ground water has already been carried out? Should the use of
an alternate concentration limit (ACL) be permitted, as proposed, in
the case of cleanup to be achieved (in whole or part) by natural
flushing?
The use of natural flushing and ACLs in ground-water restoration is
opposed. (P-l) (P-3) (G-6.)
-Natural flushing is based on theoretical projections, with
possible delays in recognizing any inadequacy and no regulatory
or legal basis for corrective action. (G-6)
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-These options would result in cleanup at certain sites being
waived entirely through a combination of waiving regulatory safe
levels of contaminants by a grant of ACL and then waiving active
cleanup in favor of a passive program which entails the masking
(through absorption, dilution or decreases in ground-water
quantity) rather than the actual removal of human-introduced
contaminants. (P-l)
•Consideration of natural flushing or use of ACLs only after all other
active aquifer restoration methods have been employed is favored.
(G-4)(G-9)
-If natural- flushing is allowed, the flushing period should be
reduced from 100 years to a shorter period to allow use of other
remediation measures if the flushing is not successful. ACLs
should be used only where active restoration efforts demonstrate
that complete cleanup is not achievable with available
technology; in no event should ACLs be considered as the initial
goal for aquifer cleanup. (G-9)
-While there may appear to be some merit in requiring an initial
active cleanup phase followed by passive measures, very li.t,tle
cleanup is achieved if active measures are implemented for only a
year or two. - This requires large amounts of funds with little
accomplishment. A suggestion instead of an engineered, enhanced
natural flush (EENF) system representing innovative
implementation of fundamental concepts such as high permeability
trenches, nonconsumptive irrigation ditches for altering the
hydraulic gradient on a local scale, and perhaps some chemical
agents to enhance contaminant flushing from soils is made. In
perhaps two or three decades cleanup by this approach would
easily exceed any short term improvements obtained by a temporary
pump-and-treat program. Such a system would be less expensive
than pump-and-treat, permanent, and require minimal or 'no
maintenance. The commenter feels that ACLs could be used as part
of larger cleanup strategy such as the EENF concept but does not
believe that they should be applied at any site relying solely on
natural flushing with no attempt or plan to clean up the existing
contamination. (G-7)
This option should.not be limited and use of ACLs should be
permitted. (G-l)(G-2)(G-5)(G-8)(1-2)(1-4)(1-5)
-Natural.flushing should be allowed in conjunction with active
restoration or as a sole mechanism for cleanup if the
concentrations of contaminants will decline to appropriate levels
within the period of institutional controls. If some active
restoration is required prior to natural flushing and.
institutional controls, the extent and objectives of partial
restoration will be extremely difficult to establish. Specific
guidance regarding the objectives of such limited restoration
should be developed and provided to DOE for review prior to
promulgation. ACLs should be permitted where ground-water
restoration would involve natural flushing. The guidance for
issuance of ACLs requires demonstration that the hazardous
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constituents detected in the ground water will not pose a
substantial present or potential hazard to human health or the
environment at ACL levels. Given that ACLs will protect human
health and the environment in the specific hydrogeologic
circumstances, it is reasonable that ACLs should be permitted for
all cases of cleanup. (G-8)
-Decisions on active and natural restoration will likely be
site-specific and the flexibility to use natural restoration
alone should be retained. Approval of the ACL means that the
contaminant concentrations do not pose significant present or
potential hazards to humans or the environment. Natural flushing
to reach backgrou-nd or drinking water levels would provide an
additional margin of safety. (G-2)
-To limit the use of natural flushing to those cases where some
restoration has been performed would place unnecessary
res'trictions on the ability of DOE to achieve cost-effective
protection of public health. For the same reasons ACLs should be
permissible in cases where natural flushing is permitted in whole
or part. The establishment of ACLs is predicated on a finding
that public health and the environment will be protected. _.(I-5) .
-The natural flushing option should be allowed in all cases where
the physical characteristics .of the ground-water system are
favorable. If ACLs cannot be established for sites using natural
flushing, accelerated flushing will be required. The end
results, effectiveness of the remedial action, will be identical,
but the costs will be much higher. (1-2)
Response:
In this question, natural flushing was assumed to be a viable
alternative. In order to use this option, the regulations require DOE
to establish a program to monitor the progress of natural flushing.
At any time they determined that the flushing was not proceeding as
projected, they could modify the remediation. Periods shorter than
100 years are considered too short for natural cleanup of some sites
on technical grounds.
Alternate concentration levels (ACLs) may be applied to a site
only if'DOE can show that human health and the environment are
protected. In order to apply an ACL during natural flushing, DOE
would have to show that the requirements for an ACL will apply
throughout the area affected, by the ground water.
Therefore, EPA's position remains as in the proposed regulation.
If passive restoration is projected to occur naturally in 100 year's or
less, the ground water will not be -used as a public drinking water
supply, and institutional controls and a monitoring program are
implemented, the remedial.plan may rely in part or full on natural
flushing. ACLs may be used where justified.
Question 5. Are the proposed bases for supplemental standards for
cleanup reasonable and adequate for the protection of public health?
Should other bases be provided and, if so, what are they? Should the
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provisions for natural flushing and supplemental standards for
cleanup -apply only to existing contamination or should they also
apply/ as is proposed, to "new" contamination due to failure of the
disposal design to perform as intended?
t
Reliance on the draft Class III ground-water classification criteria
at the UMTRA Projects is opposed. The second criteria, restoration
causing more environmental harm than' it would prevent is acceptable if
it is made clear in the final rule that Congress and EPA's
determination that there are real public health and safety and »
environmental hazards associated with nonradiologic contaminants from
UMTRAP sites requires that DOE and NRC admit to the environmental
benefit of clean up. The third criteria, technical impracticability,
is acceptable only if EPA dan fashion a sufficiently specific
definition of the term "technically practical" to make implementation
.possible. (P-l)(P-3)
-There appears to be a fourth criterion, where passive restoration
of an aquifer can be projected to occur naturally within a period
of less than 100 years and the ground water is not now used or
projected to be used for a community water supply. Because of
the inability to accurately predict the potential for future use
of an aquifer as a community water supply, this circumstance
should not allow a facility to meet higher contaminant levels
than those set by the regulations. The commenter would not
support any further bases. The provisions for natural flushing
should apply, if at all, only to existing contamination. (P-l)
-Only listed contaminants are addressed; this may not be
reasonable for protection of public health. (G-9) ,
-The proposed bases are sufficiently broad to be easily
implemented or nearly impossible to implement, depending on
approaches taken by DOE and NRC. In any case, the requirements
are not met for the Tuba City site. (G-6)
Any standards set for clean up of ground water must apply to new
contamination resulting from failure of the disposal design to perform
as intended. (G-4HG-7)
-Additional modifications to the current disposal design will
improve its hydrological and contaminant release performance and
supplemental standards should not be allowed at new disposal
sites until Colorado and independent experts agree that the best
available technology has been applied to the impoundment design.
The proposed bases for application of supplemental standards were
not entirely adequate, and EPA and the implementing agencies
should develop specific guidance in such areas as determination
of the potential for future changes in land use at processing
sites and cost/benefit analysis. (G-7)
-EPA should consider adding consideration of costs when such costs
would be unreasonably excessive in relation to the benefits .to be
gained from reduction of risks. Maximum flexibility should be
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retained, including the flexibility to consider natural flushing
and supplemental standards. (G-2)
-Explicit consideration of costs should be included in the
regulations, and a more expansive interpretation of Class III
ground water should be allowed. The provisions authorizing
natural flushing and supplemental standards should always apply.
(1-4)
The proposed bases for supplemental standards are reasonable for the
protection of human health and the environment but the bases should be
extended by specifically including consideration of costs and benefits
and clarifying that ground-water restoration is not necessarily
required when supplemental standards are invoked. Supplemental
standards and natural flushing should also apply to new contamination
due to failure of the disposal design to perform as intended; the
commenter notes that supplemental standards can be applied only when
.the ground water has an extremely low potential for extraction and use
and when sufficient remedial action is undertaken to protect human
health and the environment. (G-8)
The restrictive definitions of the first and last criteria are of
particular concern. A suggestion was made that the basis for
determining applicability of supplemental standards should be based on
a site-specific analysis of the risks presented to public health and
the environment and a similar analysis of the full range of
alternatives for achieving public health protection including the
environmental and economic costs of each. This decision should be
made based on expert judgment along the same 'lines and with same
considerations as for establishing ACLs. .The provisions for natural
flushing and supplemental standards should apply to new contamination
as proposed; the controlling consideration should be protection of
public health. (1-5)
Response:
The commenters felt, for the most part, that the proposed bases
for natural flushing and the supplemental standards were adequate for
the protection of human health and the environment. The suggestions
that cost be considered as a basis for natural flushing or a
supplemental standard were not incorporated.
The commenters did not provide any substantial reasons for not
applying natural flushing or the supplemental standards to new
contamination from tailings piles due .to failure of the disposal
design to perform as intended. Therefore, EPA will continue to allow
application of natural flushing or supplemental standards to new
contamination.
Question 6. Under these proposed standards, alternate concentration
limits would be concurred in by the NRC. Should EPA establish generic
criteria and/or guidance governing the application of the provisions
of 264.94(b) of this Part to these judgments for these standards?
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Generic criteria and/or guidance is not needed; Section 264.94(b)
provides a clear health, safety and environmental finding and a list
of factors to be considered in establishing ACLs. (G-2)(1-4)(1-5)
-A methodology-for establishing ACLs at Title II sites is
currently being developed. (G-2)
-NRG, like EPA, is constrained by UMTRCA to assure that actions
taken by it under that Act adhere to the paramount purpose of
protecting public health and the environment from unreasonable
risks. Also, as a practical matter, EPA will have an opportunity
to provide input to setting the ACLs through comments on site
EISs and consultations between agencies. (1-5)
-NRC and DOE should be allowed to exercise their judgment without
additional guidance from EPA. (1-4)
Generic criteria and guidance are supported for differing reasons.
(P-l)("G-6)(G-7) (G-8)
-EPA should provide additional flexibility to the RCRA ACL
guidance, specifically regarding the point of exposure, th.e_, .
period of applicability of ACLs, release of contaminants to
surface waters, and other provisions. (G-8)
-Given ACL delegation to NRC, EPA guidance and concurrence in NRC
procedures is absolutely critical. (G-6)
-Guidance is necessary to ensure consistent interpretation. (G-7)
-Guidance might be an acceptable way to ensure that NRC does not
accept ACLs which are inconsistent with EPA's standards. (P-l)
The delegation of ACL concurrence to NRC is specifically objected to.
(P-3HG-9)
-NRC has regulatory' authority over the radioactive contaminants
only and nonradioactive contaminants are regulated under this
rule and subject to- ACLs.. (G-9)
-DOE's consideration of ACLs might be facilitated if generic
criteria are provided. (P-3)
State and tribal concurrence should also be required, • since these
entities are directly affected and are in a better position than NRC
to evaluate ACLs. (G-4HG-9)
Response:
Establishment of regulations for generic criteria for granting
ACLs would present extreme difficulties for rulemaking, since it often
involves complex judgments that are not amenable to being reduced to
regulatory requirements. In this regard we note that such regulations
do not exist for sites directly regulated under RCRA, for similar
reasons. We have reconsidered the issue of EPA approval of ACLs and
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decided to retain the approach implemented in the Title II
regulations. That is, EPA has reserved a concurrence role for any ACL
that would result in the otherwise applicable ground-water standard
not being met at.the site boundary or 500 meters from the disposal
area, whichever is closer to the point of compliance. This approach,
in addition to responding to the concerns voiced by commenters, also
adheres more closely to the Court's admonition to treat these
pollutants "...as it did in the active mill site regulations." It is
EPA's intent, in carrying out this concurrence role, to adhere to the
same generic procedures for ACLs that it applies to the Title II sites,
EPA is required by UMTRCA (Section 206) to be consistent, to the
maximum extent practicable, with RCRA. For this reason, we have
incorporated relevant portions of the RCRA regulations.' These
regulations provide for use of ACLs when 'it can be shown, that the
criteria specified in § 192.02(a)(3) (iii)(B) are satisfied. It
remains the view of the Agency that, as at the Title II sites,- it is
not necessary for EPA to retain a concurrence role if the NRC has
determined that these criteria are satisfied when the otherwise
applicable standard will be met within the site boundary (or at a
distance of 500 meters, if this is closer to the point of
compliance). It is clear for controlled minor seepage within site
boundaries and when public use is not possible, that ACLs will ..usually.
be appropriate in such situations.
The participation of States in the application of these standards
has been discussed previously (see comments 2.3.4, 3.1.11, 3.2.5).
Question 7. Should EPA publish, as part of this standard, a
restricted list of, just those radioactive and toxic constituents that
are present at1these sites, or continue to rely on the entire list
(supplemented as proposed) of constituents encompassed by RCRA
regulations? Should the proposed list of additional listed
constituents be changed?
A restricted list is either inappropriate or not needed for this
standard. (P-l)(P-3)(G-2)(G-4)(G-7)(G-8)(G-9)(1-5)
-DOE's general approach to characterizing ground-water
contamination is to apply a screening level, multiphased program
for all suspected contaminants. This is followed by detailed
determination of those contaminants detected by the screening
program. The proposed list of additional listed constituents
should not be changed. (G-8)
-While a limited constituent list might be a good idea, the sites
have not been fully characterized and new constituents could be
identified. The existing provisions for DOE identification and
NRC concurrence provides sufficient flexibility to accommodate.
any new constituents found at the sites. The site specific
nature of the issue almost precludes defensible standards until
all sites are evaluated and the need no longer exists. (G-2)
-Ground water needs to meet requirements for irrigation and
livestock watering in addition to human health concerns, thus any
listing should be broad enough to allow for cleanup based on
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agricultural requirements and should mandate cleanup for any
reasonable purpose for which the water might be used for 1000
years. Unanticipated levels of arsenic were discovered during
remediation at the Lakeview site and, under the proposed rule,
the unanticipated contamination would not have been remediated.
(G-9)
-Experience with some of the actual mill sites has shown a variety
of unexpected chemicals can be encountered in drums and as
residual contamination from operation of the mill. (G-7)
-EPA should not publish a restricted list but should leave it to
DOE and NRC to develop such a list based on what they find at the
various Title I and Title II sites. NRC',s Uranium Recovery Field
Office has provided data from 17 sets of samples at nine tailings
ponds; each sample was tested for 150 potential ground-water
contaminants and none of the samples indicated the presence of
any of the 12 volatile or the 81 semi-volatile organic compounds
tested for. The limits set for the additional listed
constituents should be changed. (1-5)
-EPA recognized in the proposed rule that some organics were., used
at the UMTRAP sites, even though present monitoring has yet to
show presence of any organics. It may, however, be appropriate
to allow use of a restricted list after initial ground-water
screening at a site established that no organics were present.
(P-l) .
-Analysis of one set of ground-water samples for all Appendix VIII
constituents and for any other pollutant or contaminant present
at each site either in the tailings themselves or in the ground
water is recommended. DOE could eliminate constituents not
detected; such a list would be site-specific'.- Water samples
should be analyzed for certain indicator contaminants such as
sulfates, chlorides, total dissolved solids, and major cations
and anions at each site. Nontoxic contaminants must be addressed
to protect agricultural uses of ground water. Monitoring for
these indicator contaminants is necessary to guide decisions on
ground-water remediation techniques - a variety of aquifer
restoration methods are now available but no one method
adequately addresses all pollutants. Finally, the commenter.
disagrees with EPA's assumption that any minor contaminants would
be taken care of in cleanup of the principal contaminants. (P-3)
Publication of a restricted list is supported. (G-5)(1-2)(1-4)
-Supported only if it would not delay the rule. (G-5)
-The list should include only those radioactive and toxic
constituents that are present at the inactive sites. Most of the
synthetic chemicals that EPA has identified as being of
particular concern under RCRA simply are not found at tailings
sites. EPA should change the proposed list of additional
constituents because the limits are not scientifically
justified. (1-4)
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-The regulatory approach should be changed to include
contamination of ground water with nonhazardous constituents that
compromise beneficial uses of the water. (G-6)
Response:
EPA agrees with the majority of commenters that the entire list
of hazardous constituents should continue to be relied on for these
regulations. The finding of organic compounds at some of the sites
and the unexpected levels of arsenic at the Lakeview site reinforce
the need for the complete list. Where relevant new MCLs have been
approved, they have been added to table 1. Adding nonhazardous
constituents to the list because they- inhibit beneficial uses of .the
water is not viable. The purpose of these regulations is to protect
human health and the environment from the radiation health hazards of
the mill tailings and to minimize other environmental hazards from
such tailings. Nowhere are nonhazardous constituents mentioned;
therefore, these constituents are not addressed by these regulations.
Question 8. EPA could consider publishing a restricted list of just
those radioactive and toxic constituents that are principal _ .
contaminants at these sites and specifying a limit for each of these,
under the assumption that any minor contaminants would be taken care
of in the cleanup of these principal contaminants. With such a
restricted set of constituents and corresponding complete set of
limits, EPA could then consider dropping the provisions for ACLs and
rely solely on the remaining provisions for exceptional cases. Should
EPA adopt this approach?
The restricted list is opposed or is not warranted, and .the ACL
provisions should be retained. (G-2)(G-4)(G-7)(G-8)(G-9)
A restricted list is supported or accepted but the ACL provisions
should be retained. (P-l)(1-2)(1-4)
-The ACLs provided needed flexibility. (G-2)(G-8)
-Developing ACLs with concurrence of the affected States and
tribes is favored for exceptional cases. (G-4)
-The commenter disagrees with the assumption that minor
contaminants would be taken care of in the cleanup of the
principal contaminants and, also noted that it would seem more
appropriate for the standards to reflect the philosophy, if not
the specific wording, of the CERCLA aquifer restoration
requirements. (G-9)
-The loss of flexibility would impede selection of cost-effective
remedial actions. (1-2)
-This approach is feasible only if EPA's assumption regarding
removal of minor contaminants is true; EPA must be able to
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demonstrate that the cleanup methods chosen for the principal
contaminants will also remove any organics that may be present.
(P-l)
-It is appropriate to focus the regulations on the principal
contaminants but the ACLs are necessary to enable DOE to consider
site-specific conditions and select appropriate remedial
actions. (1-4)
-The concept of a restricted list and the assumption that cleanup
of the principal contaminants would also clean up minor
contaminants is supported. It is felt that ACLs will still be
necessary for flexibility in addressing site-specific conditions
on a cost-effective basis. (1-5)
-EPA needs to provide generally applicable standards sufficiently
well guided technically to ensure that potential beneficial uses
of ground water will be protected following remedial action. It
' is unclear even conceptually how this could be done by narrowing
matters of regulation and hoping that everything else will take
care of itself. (G-6)
Response:
As in the previous question, EPA has determined that the entire
list of hazardous constituents should be retained. The unexpected
discovery of some organic compounds at some sites underscores the need
for the complete list. In addition, since those compounds that do not
have an MCL listed would have to be cleaned up to background (which in
the case of organics would be zero) or be granted an ACL, EPA has
added MCLs to Table 1 of the standard for those relevant compounds for
which MCLs have been established. EPA believes that ACLs provide
needed flexibility and have decided to retain them in the regulation.
Question 9. Should EPA specify a minimum or the entire period for
post-disposal ground-water monitoring in Subpart A, or leave it to the
DOE and NRC to determine this on a site-specific basis, as proposed?
If EPA should specify a period, what- length would be appropriate to
demonstrate conformance to the disposal design standard, and on what
basis should this value be chosen?
Selection of the monitoring period should be left to DOE and NRC to
determine on a site-specific basis. (G-l)(G-2)(G-8)(1-4)(1-5)
-DOE would use factors in 40 CF'R Part 264.117 in establishing
the site-specific monitoring period, subject to NRC review and
concurrence. A memorandum of understanding addresses the basic
requirements applicable to Title I sites and the site
surveillance and maintenance plans address specific site
requirements. (G-8)
Monitoring may not be required at certain disposal' sites; e.g.
• sites where the uppermost aquifer is insulated by thick sequences
of low permeability and/or highly attenuating materials, sites
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above Class III waters, or sites where the water table is deep.
Because of this, monitoring should not be mandatory. Should the
proposed standards be ARARs at other DOE sites (e.g.
FUSRAP/SFMP), the definitions of "remedial period" and
"post-disposal period" would need to be revised to reflect the
unique concerns of those sites; EPA should clarify that these
definitions apply only to the UMTRA Project. (G-8)
-Performance objectives should be provided for site-specific
flexibility instead of specifying a post-disposal monitoring
period. (G-2)
-The monitoring period will depend on the nature and severity of
the hazard posed by any contamination, stability of the site, and
rate of movement of such contamination; at some sites three years
may be sufficient, at others five years or more may be necessary
to demonstrate conformance with disposal design standards. (1-5)
Specification of a minimum monitoring period, usually in the range
from 30 to 100 years, is supported to assure that the design criteria
perform as anticipated. (P-l)(P-3)(G-4)(G-6)(G-7)(G-9)
-If natural flushing is permitted, EPA should require monitoring
of the ground water for the entire flushing period to verify
underlying assumptions. (G-9)
-Lack of a specific minimum monitoring period could lead to
controversy among the implementing agencies. A monitoring period
of several decades will be necessary to confirm the operation of
new disposal cells since construction will be based on a design
rather than performance standards. Also, post-disposal
monitoring should always be co-extensive with any extended
remedial period to confirm projections of computer simulations
and prevalent expert judgment. Confirmation monitoring will be
nece.ssary at both disposal and processing sites; this should be
consistent with RCRA, 30 years.
Use of site-specific conditions to determine length of
post-disposal ground-water monitoring is similar to what the 10th
Circuit Court struck down. (G-7)
/
. -The need for post-disposal ground-water monitoring will' depend on
the site management strategy. Where completely dry tailings are
moved to a lined and capped facility and all contaminated ground
water is removed and treated, a short period (e.g. 15 years)
might be appropriate. Because of the record of liner and
containment breaches at RCRA and other disposal facilities,
monitoring is believed imperative. If the clean-up strategy is
natural flushing, monitoring should be for at least the 100 years
at the end of which the natural flushing is supposed to achieve
compliance. This is necessary because the inexact nature of
current state-of-the-art modeling, which 'forms the basis for the
natural flushing assumptions. (P-l)
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-The notion that monitoring can last up to 100 years is rejected,
and any post-closure monitoring should be conducted prior to
NRC's site licensing. It is noted that legislation may be
required to permit approval of monitoring plans of 10 to 15
years; the present statute would not permit monitoring past
1990. The use of active, engineered'ground-water restoration
techniques should alleviate the need for extensive post-closure
monitoring. (P-3)
Response:
The regulations currently require that DOE maintain monitoring of
the closed site for a period of time comparable to the time period
required under § 264.117 for waste sites regulated under RCRA (i.e.,
30 years). The exact period of time post-closure monitoring is
required has been left to the DOE to determine, with NRC concurrence.
EPA believes that this is the most reasonable solution and is in
keeping with the requirement that these regulations be consistent with
RCRA regulations.
In instances where DOE has chosen to extend the remedial period
to allow natural flushing, the regulations require that the progress
of the flushing be monitored throughout the extended remedial p.e.riod.
In this case, post-closure monitoring would not begin until the
extended remedial period expires. In this example, monitoring would
be required for as long as 130 years if EPA required a specific
30-year post-closure monitoring period. EPA believes that this would
be unreasonable.
The Tenth Circuit Court of Appeals remanded the ground-water
provisions of the original regulation because the regulation did not
contain specific numerical standards for the protection of ground
water. Neither the remanded provisions nor the Court mentioned any
requirements for specific time periods. EPA believes that these
regulations meet the requirement for consistency with RCRA.
Question 10. For tailings regulated by NRC under Title II of the
Act/ section 84(a)(3) requires NRC to develop regulations to conform
to general requirements applicable to the possession, transfer, and
disposal of hazardous materials regulated by the Administrator.
Should the standards proposed here incorporate such requirements for
tailings regulated under Title I?
Several reviewers found this question ambiguous or challenged EPA's
position.
-Since the subject EPA provisions are still being refined and
the requirements that will apply to the Title II sites have not
been fully evaluated, incorporating these for Title I sites may
be premature. The requirements as to financial assurances and
cradle-to-grave manifests and transportation are examples of EPA
requirements that are not needed. The proposed rule includes a
reasonable level of detail for implementation. (G-2)
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-NRC's authority has not been characterized with precision; NRC's
obligation is to develop regulations which are, to the maximum
extent practicable, at least comparable to requirements
applicable to the possession, transfer, and disposal of similar
hazardous material regulated under SWDA. When EPA adopts
standards for mining wastes, and when NRC issues comparable
regulations for tailings, then such requirements may be
incorporated for Title I sites without objection. (1-5)
-The question is poorly drafted. If EPA is asking should the
standards for UMTRA sites be RCRA-consistent in the same manner
as standards for active uranium mill sites, the answer is
affirmative. EPA should adopt standards containing provisions
that parallel all relevant RCRA rules; these should be consistent
for active and inactive sites. However, the question appears to
ask whether EPA should require NRC to conform its regulations to
EPA's UMTRAP standards; there is no statutory requirement for
this so long as EPA's standards are directly implemented at all
UMTRAP sites. (P-l)
-The question is ambiguous. These standards should conform with
EPA's SWDA standards for materials posing similar hazards ,b,ut NRC.
should not be required to undertake further rulemaking. There
are a small number of inactive sites, the remedial program is
underway, and cleanup is the responsibility of the government.
Another layer of regulatory requirements is unnecessary. (1-4)
Such additional requirements are unnecessary. (G-7)(G-8)
-DOE, with NRC oversight, has accepted environmental protection
responsibilities for Title I sites and developed procedures for
possession,' transfer, and disposal of tailings and other
contaminated materials. DOE and its contractors are bound by
applicable Federal and State regulations in the handling of any
wastes not contaminated by the milling process. At the Title I
Canonsburg and Ambrosia Lake sites, for example, DOE and its
contractors worked successfully with applicable State agencies to
ensure "full compliance with regulations. (G-8)
-The purpose "of remediation or decommissioning is to make the land
suitable for uncontrolled release. If the site is not suitable
for uncontrolled release, then adequate remediation has not been
accomplished and the existing standards for possession, transfer
and disposal of hazardous materials are sufficient. (G-7)
Requirements 'for Title I tailings are supported. (P-3)(G-4)(G-6)(G-9)
-There is. no difference in health threats between Title I and
Title II tailings and there should be the same responsibility to
assure a safe and clean environment regardless of the entities
providing the cleanup. (G-4)(G-9)
-The standards for ground-water protection at Title I sites must
be consistent with those for Title II sites. (P-3)
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Response:
EPA agrees that requiring NRC to develop additional regulations
for Title I sites governing the possession, transfer', and disposal of
hazardous materials regulated by the Administrator is premature and
not necessary under these regulations. There are only 24 Title I
sites and there are no active operations at any of them. Also the
sites are being remediated under government control and will remain in
government control upon completion of the remediation. DOE has
demonstrated that they can responsibly implement EPA regulations
without additional regulation.
Question 11. Is it appropriate to base the uranium contaminant limit
on radioactivity alone or should the chemical toxicity of uranium
result in a more restrictive value?
The proposed radioactivity concentration limit of 30 pCi/1 will
protect against possible kidney damage associated with drinking water
that contains uranium and this limit is supported. (G-7)
All other reviewers supported consideration of the chemical toxicity
as a basis for the uranium contaminant limit but several expressed
differing views as to what the limit should be.
Both chemical and radiometric toxicity should be considered and the
more conservative limit selected. (G-2)(G-4)(G-5)(G-9)
-A limit based on chemical toxicity would not result in a lower
limit than the one proposed. (G-2)
The National Academy of Science's "Suggested No Adverse Response
Level" of 0.035 mg/1 should be used as the limit, corresponding
roughly to 23 pCi/1. (G-6)(P-l)(P-3)
However, a limit of 0.1 mg/1 as suggested by Cotter Corporation at the
Public Hearing would not be objected to. (G-6)
-The recommended uranium limit would not only address the greater
chemical hazard but would reduce analytical costs since typical
laboratory costs for total uranium analysis are one-fourth to
one-sixth those for individual uranium isotopes. (P-3)
The uranium limit for ground water should be based on chemical
toxicity alone. (1-2) (1-4) (1-5.)
-EPA has established its uranium limit to protect against
stochastic effects (cancer) using the limits recommended for
nonstochastic effects (threshold effects). Based on the
recommendations of the National Workshop on Radioactivity in
Drinking Water, convened by EPA in May 1983, for a limit of
100 ug/1 (based on safety factor of 50-150), the proposed limit
should be stated in mass rather than radiological units and a
limit of 1-2 mg/1 would be well below the likely threshold level
at which any concern for chemical toxicity would exist. (1-5)
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-Also referencing the NAS study, a limit of 0.1 mg/1 is
recommended. (1-2)
-It is arguable that no limit is even warranted but, in any event,
any limit should be far less stringent than that proposed. (1-4)
EPA may wish to consider the chemotoxicity of uranium in the final
standards. The proposed standard of 30 pCi/1 based on radiotoxicity •
is 10 pCi/1 lower than the EPA upper value of the 'adjusted acceptable
daily intake corresponding to 40 pCi/1 based on limited chemotoxicity
data. (G-8)
Response:
The Agency has revisited the uranium standard and .has concluded
that it should consider chemical toxicity of uranium as well as the
radiotoxicity. In developing the proposed standard, the Agency used
nonstochastic dose conversion values for uranium instead of the more
appropriate stochastic values and did not consider the cost
implications of achieving a risk level equivalent to that of the
standard for radium.
EPA is in the process of examining these factors, but will_npt
reach a decision on the MCL for drinking water before this standard is
promulgated. However, the standard-setting process has proceeded far
enough to determine that the MCL for uranium in drinking water will be
close to the limit that was proposed and is promulgated in this
regulation. Should the MCL as finally promulgated be different from
the limit in this regulation, EPA will reconsider the limit at that
time. On the basis of these considerations, the standard for uranium
has been established at 30 pCi/liber for this regulation.
EPA will consider the National Academy of Science's "suggested no
adverse response level" of 35 ug/1 when deriving the maximum
concentration limit for drinking water.
Question 12. Should the Agency consider revising the Title II
regulations to incorporate those portions of Title I regulations that
are different from the Title II regulations, e.g. the additional
contaminant limits in Table A?
The Title II regulations should not be revised for consistency with
the proposed Title I rules. (P-3)(G-l)(G-8)(1-3)
-There is concern that any such revisions in Title II regulations
not affect current agreements regarding commingling of Title I
and Title II tailings in Wyoming and South Dakota. (G-8)
-Any change which would make the standards more restrictive, for
Title I or Title II sites, is entirely unjustified. (1-3)
-If EPA adopts a liner requirement at Title I sites consistent
with Title II requirements and abandons proposed institutional
controls, the only differences will be the concentration limits
for uranium, molybdenum and nitrate. NRC could consider adding
these limits to its regulations if pending litigation over NRC's
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active-site ground-water requirements necessitates new
rulemaking. (P-3)
Revision of the Title II regulations to incorporate various features
of the the proposed Title I rules is supported. (P-l)(G-2)(G-4)(G-7)
(G-9HI-2MI-4MI-5)
Revising Title II rules to include the flexibility provided by
proposed Title I standards is favored. (G-2)(1-2)(1-4)(1-5)
-Many of the current Title II decommissioning efforts at existing
sites are similar to Title I remediation in that the tailings
were generated before standards were established and there may
not have been any significant milling operations for years.
Values and rationale for the additional constituents could be
factored into Title II ACL decisions without a rule change. (G-2)
-The differences in operational status between Title I (inactive)
and Title II (active) sites will warrant some differences in the
operating standards. The Title II sites are licensed; the
presence of a responsible party subject to continuing regulatory
oversight assures interim steps can be taken prior to final...
reclamation and decommissioning to contain or reduce potential
ground-water impacts. The standards adopted for the active sites
are not appropriate for the type of waste involved, high volume
and low toxicity, or the nature and extent of hazards posed.
(1-5)
-Several comparisons have been made between the Title I and Title
II regulations, and the proposed regulations should be amended to
apply to active as well ,as inactive sites. (1-2)
-It is recognized that natural flushing can be adequate to restore
contaminated ground water and will allow the exercise of judgment
on a site-specific basis as Title I features that should be
included in Title II. The time is ripe for a total
re-examination of EPA's mill tailings 'regulatory program. (1-4)
Inclusion of the additional contaminant limits in'Title II regulations
is favored. (P-l)(G-7)(G-9)
-Licensed Title II sites are subject to NRC and Agreement State
regulation and it .is anticipated that the current federal NIPDW
regulations and State standards would be utilized for making
Title II decisions until the National Interim and Final Primary •
Drinking Water Regulations are established for all constituents
of concern. (G-7)
-Consistent with the mandate of UMTRCA, those deficiencies
representing an endangerment to human health and the environment
should be incorporated into Title II regulations. The prompt
identification and regulation of toxic constituents now will
minimize or potentially eliminate a need for costly aquifer
remediation at some future date. (G-9)
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Response:
The Agency was considering revising Title II regulations to
incorporate some of additions in the Title I regulations. However,
the American Mining Congress has requested that the Title II
regulations be submitted to a negotiated rulemaking. Therefore, until
the request for the negotiated rulemaking is resolved, the Agency will
not proceed further regarding the Title II regulations.
Question 13. Are the estimated costs of implementing these proposed
standards accurate and based on reasonable assumptions?
The EPA estimated costs are considered to be reasonable, based on
knowledge and experience at Tuba City and on the Navajo lands.
(P-l)(G-4)(G-6)(G-9)
Although the bases for the EPA estimates of costs were not reviewed, a
comparison between these projected costs at the 24 sites and DOE's
estimate of total UMTRA Program costs was made. Based on EPA's
estimate of $12 million per site, the cost of implementing the
ground-water standards would be $288 million based on use of .„..
institutional controls, possibly $400 million without the proposed
institutional controls. Thus, ground-water restoration at Title I
sites would account for 30 to 50 percent of the $1 billion estimated
by DOE as total UMTRA Program costs. These costs were felt to be
reasonable and proportional to the health and environmental benefits
derived from aquifer restoration. (P-3)
EPA's cost estimates are probably too low. (G-7MG-8)
-The estimates were based on overly simple assumptions and on
limited data and many items were omitted from the cost
estimates. Also, the BID considered information from only 12 of
the 24 sites; one of the omitted sites, Falls City, has an
inordinately high restoration cost because of plume size and
contaminant concentration. DOE estimated aquifer restoration
costs at five sites - Gunnison, Riverton, Lakeview, Tuba City and
Falls City - using the Random Walk Algorithm (Illinois State
Water Survey, 1981) based on various ground-water treatment
options. Costs from these 5 site-specific evaluations were then
extrapolated to the'remaining 19 UMTRA Project sites based on
similarities of cost-controlling factors. For the 12 sites for
which EPA estimated total costs of $154 million under most
probable scenario, DOE estimated aquifer restoration costs of
$628 million. Post-disposal monitoring for a projected 30 years
would cost an additional $45.82 million (reference attached
material). (G-8)
-Based on the commenter's review and interviews with several
ground-water experts, the estimates could be low by a factor of
10 to 100%. (G-7)
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Because of the large discrepancy between cost estimates made by EPA
and those by DOE, it is recommended that a more comprehensive analysis
of remedial action costs be made. (1-2)(1-4)
-The commenter was unable to evaluate the EPA estimates because of
the lack of documentation or references, and some apparent errors
or inconsistencies in the calculations. (1-2)
\
No comment is made on the specific cost estimates presented but
long-term monitoring costs, incremental costs of ground-water
protection at new disposal sites, and costs of coverage at vicinity
properties (if coverage of these is intended by EPA) should be
addressed. (G-2)
Response:
EPA has received new cost information from DOE and finds that the
new information is reasonably close to the EPA cost information. EPA
has incorporated this new information into Chapter 6 of the BID and
summarized it for the regulations. The new information indicates that
EPA's original estimates were close to the final estimated costs.
Question 14. What criteria should be used to judge "technically
impracticable from an engineering perspective"? Can and should these
criteria be specified in the rule or should they be left to the
judgment of the DOE and NRC?
Criteria either could not or should not be identified. (P-3HG-2)
(G-4)(G-6)(G-9)(I-4)(I-5)
This determination should be left to DOE and NRC. (G-2)(G-4)(G-6)(1-4)
The determination should be with State and tribal concurrence.
(G-2HG-4HG-6)
-The apparent EPA interpretation of impracticable doesn't leave
any room for interpretive criteria. Also, there will be
opportunities for public input to the decision through the NEPA
review and cooperative agreements with States and tribes. (G-2)
-Specific criteria are not possible because of the variability of
sites and EPA should not delegate its mandated responsibility in
this regard. (G-9)
-The determination as to the applicability of supplemental
standards should be based on comparison of the risks to public
health and the environment and the cost of various remediation
alternatives. These would be site-specific determinations, best
left to DOE with NRC concurrence. (1-5)
-Elevating unenforcable guidelines to the status of legally
binding regulations and supported substitution of "technically
possible" for "technically impracticable from an engineering
perspective" is opposed (see comment by P-l). (P-3)
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EPA should develop criteria, rather than leaving this responsibility
to the discretion of DOE and NRG. However, no suggestions as to
specific criteria were provided. (P-l)(G-7)
-EPA should develop both specific criteria and guidance documents
and/or procedures for use in the decision as to what is
technically impracticable from an engineering perspective. Also,
such decisions should be subject to State and tribal
concurrence. (G-7)
-Use of the term "technically possible" instead of "technically
impracticable from an engineering perspective" is suggested; this
would be clear enough that a list of complex criteria would not
be needed to elucidate its meaning. Criteria should be
articulated in the rule to fulfill EPA's responsibility to
promulgate specific regulations for the cleanup and prevention of
ground-water contamination as directed by the Appeals Court.
(P-l)
The concept of technical impracticability is a recent development and
has not yet been applied in remediation; application of this concept
should be left to the judgment of DOE and NRC. If EPA decides _ko .
specify criteria in the final standards, DOE would like to review the
criteria prior to promulgation. If the supplemental standard of
technical impracticability is applied on a case-by-case basis, the DOE
would develop extensive documentation, including an evaluation of the
degree to which remediation is possible, and then consider the costs
and benefits. The onus would be on DOE to identify cases of technical
impracticability and to argue for the application of this concept at
specific UMTRA Project sites. DOE recommends that' the following
criteria be included at a minimum:
- absence of technology to achieve the desired goals (i.e. MCLs)
- no methods available to achieve these goals within the bounds
of financial resources or the schedules over which such work
can be controlled,
- two or more mutually exclusive technical criteria, rules, or
laws.
The DOE believes that, if technical impracticability is found to
exist, an evaluation should be undertaken to apply controls or conduct
a partial cleanup in an attempt to meet the standards with
consideration of the costs incurred for the benefits achieved. (G-8)
Response:
EPA discussed the general meaning of "impracticability"' in the
preamble to the proposed rule and this has not changed. In the
preamble to the proposed Subpart S of RCRA, EPA has addressed
"technically impracticable" as it applies to RCRA facilities. When
"technical impracticability" is implemented in that rule, the Regional
Administrator reserves the right to require remediation to levels
which are technically practicable and which significantly reduce
threats to human health and the environment. EPA provides this
information as guidance to the implementing agencies, but will not
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impose any specific criteria for judging "technically impracticable
from an engineering perspective" on the implementing agencies.
Question 15. The criteria proposed here to specify ground water as
Class III; and therefore qualified for supplemental standards, are
based on draft proposals still under consideration by the Agency. Are
these criteria appropriate for this application, or would others be
more appropriate for use at these sites?
The proposed Class III criteria are appropriate. (G-4HG-6)
Provided the ground water will not have the potential to contaminate
other classes of water for the next 1000 years. (G-4)
The inclusion of draft classification criteria in the final standards
is rejected. (P-l)(G-2)(1-4)
-NRC has^identified several significant limitations in the
ground-water classification system and its implementation as
proposed by EPA in December 1986 and these concerns also applied
to implementation as part of the proposed standards for
ground-water protection at the UMTRAP sites. (G-2)
-The Agency should take a broad historic perspective in regard to
the threshold criteria, that the ground water not be a current or
potential source of drinking water, noting that it is extremely
difficult to predict future population migrations and
concentrations in this country. EPA should, instead, assume that
all ground water in the West is a potential water supply source.
No technical support for the 10,000 mg/1 limit is known, and this
criteria should also be dropped. Limiting the treatability
criteria.by tying it to public water supply system technology is
questioned. Instead, the DOE should be required to select from
the current universe of cost-effective technologies such as
supercritical fluid oxidation, reduction, extraction (heating
and/or freezing), separation, chemical detoxification (thermal),
biological detoxification, binding, ozonization, and any in situ
decontamination technologies. The 150 gpd yield criteria is
considered irrelevant and should be deleted. (?-l)
It is entirely improper to introduce the concept of Class III ground
water into these standards since there-is an insufficient technical
basis given for their inclusion and any standards to be applied for
ground water should be consistent with applicable State standards. By
using a ground-water classification standard in these regulations, EPA
is ignoring the State's role and allowing the DOE to determine land
use through ground-water classification which has not been previously
adopted by federal rulemaking procedures. (G-7)
A special class of ground water should be defined specifically for the
UMTRA Project. Criteria for including ground water in this class
would be: widespread ambient contamination that cannot be cleaned up
using treatment- methods reasonably employed in public water supply
systems, or well yields of less that 150 gallons per day, or a total
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dissolved solids threshold concentration limit that is lower than the
present 10,000 mg/1. (G-8)
As an alternative EPA could specify a process by which human 'health .
and the environment would be protected and aquifer restoration may be
minimized. Class III ground waters are not a potential source of
drinking water and are of limited use. It is clear that the intent in
including Class III ground water is to avoid or minimize restoration
while protecting human health and the environment through avoidance of
use. Such an evaluative process could be performed for UMTRA Project
sites that overlie Class II waters. Should analysis at a specific
site demonstrate to NRC's satisfaction that complete restoration is
unnecessary to protect long-term human health and the environment,
then partial or no restoration would occur. (G-8)
Supplemental standards are appropriate where the affected ground water
is Class III but should also be available for Class II gro.und water •
under the Guidelines on a site-specific basis where protection of
human health and the environment can be reasonably assured. Factors
to be considered in allowing supplemental standards where the affected
ground water is Class II should include: quality of the water, source
of the water, quantity of the water, availability of alternate .sources
of water, actual and reasonably probable use of the water, nature and
extent of contamination, costs of remedial action, potential for human
exposure and detrimental environmental effects. (1-5)
Response:
The regulation has been modified to protect all beneficial uses.
The term "Class III" has been changed to "limited use" to better
reflect the intention of EPA in identifying this supplemental standard
EPA recognizes that identifying certain ground waters as elegible
for supplemental standards does not provide explicitly for recognition
of State ground-water classification schemes. -However, the
regulations do recognize special situations in which normally unuseful
waters may require protection, and in any case, the supplemental
standards require selection and performance of remedial actions that
"...come as close to meeting the otherwise applicable standard as is
reasonable under the circumstances." EPA decided that the. only
equitable method was to distinguish limited use ground water in the
standard. The relationship of the States to the implementing agencies
'is described in UMTRCA, and States should refer to the Act in
determining how they may interact with the implementing agencies.
Class II ground waters do not qualify for this supplemental
standard because of their potential for use in the future.
Supplemental standards other than the "limited use" standard are
available for waters that meet the criteria for Class II if the
"relevant conditions apply.
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