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Part III

EnvironmentalProtection Agency40 CFR Part 61National Emissions Standards forHazardous Air Pollutants; Final Rule

HeinOnline -- 59 Fed. Reg. 36279 1994

36280 Federal Register / Vol. 59, No. 135 / Friday July 15, 1994 / Rules and Regulations

ENVIRONMENTAL PROTECTIONAGENCY

40 CFR Part 61

[FRL-6011-1]

RIN 2060-AE23

National Emissions Standards forHazardous Air Pollutants

AGENCY- Environmental ProtectionAgency (EPA).ACTION: Final rule.

SUMMARY, EPA is rescinding 40 CFR part61, subpart T (subpart T) as it applies toowners and operators of uranum milltailings disposal sites licensed by theNuclear Regulatory Commission (NRC)or an affected Agreement State(Agreement States). As required bysection 112(d)(9) of the Clean Air Act asamended, EPA has determined that theNRC regulatory program protects publichealth with an ample margin of safetyto the same level as wouldimplementation of subpart T Subpart Tis a National Emission Standard forHazardous Air Pollutants (NESHAPs)which was published on December 15,1989 and which regulates emissions ofradon-222 into the ambient air fromuranium mill tailings disposal sites.Subpart T continues to apply tounlicensed uranium mill tailingsdisposal sites currently regulated undersubpart T that are under the control ofthe Department of Energy (DOE).DATES: This rule is effective June 29,1994. The provisions in this rule will beapplied immediately to all affectedfacilitiesincluding existing sources.Under section 307(b)(1) of the Clean AirAct, judicial review of this final actionis available only by filing a petition forreview in the United States Court ofAppeals for the District of ColumbiaCircuit within 60 days of publication ofthis rule. Under section 307(b)(2) of theAct, the provisions which are thesubject of today's rule will not besubject to.judicial review In any civil orcriminal proceedings brought by EPA toenforce these requirements.FOR FURTHER INFORMATION CONTACT, GaleC. Bonanno, Risk Assessment and AirStandards Branch, Criteria andStandards Division, 6602J, Office ofRadiation and Indoor Air,Environmental Protection AgencyWashington, D.C. 20460 (202) 233-9219.

SUPPLEMENTARY INFORMATION:

Docket

Docket A-91-67 contains therulemaking record. The docket isavailable for public inspection between

the hours of 8 a.m. and 4 p.m., Mondaythrough Friday, in room M1500 ofWaterside Mall, 401 M Street, SWWashington, DC 20460. A reasonable feemay be charged for copying.

Table of ContentsI. BackgroundA. Description of Uranium Mill TailingsB. Regulatory HistoryC. Clean Air Act Amendments of 1990D. Memorandum of Understanding (MOU)

between EPA, NRC and affectedAgreement States

E. The Settlement AgreementII. Rationale for Final Rule to Rescind 40 CFRPart 61 Subpart T for NRC and AgreementState LicenseesA. The Regulatory Scheme Under UMTRCAB. Clean Air Act Amendments of 1990:

Section 112(d)(9) ("SimpsonAmendment")

C. Memorandum of Understanding (MOU)D. Settlement AgreementE. Actions by NRC and EPA Pursuant to the

MOU and Settlement Agreement1. EPA Regulatory Actions2. NRC Regulatory Action3. Amendment of NRC and Agreement

State Licenses1II. Final Rule to Rescind 40 CFR Part 61,Subpart T for NRC and Agreement StateLicenseesA. EPA Determination under CAA Section

112(d)(9)1. Background2. EPA's UMTRCA Standards3. NRC's Conforming Regulations4. License Amendments5. Judicial or Administrative Challenges

B. Reconsideration Provisions1. December 31, 1991 Proposed Rule to

Rescind subpart T2. Reconsideration Options3. Reconsideration Provisions Adopted

TodayIV Discussion of Comments and Response toComments From NPRV MiscellaneousA. Disposition of Pending Judicial Challenges

and Petitions for ReconsiderationB. Paperwork Reduction ActC. Executive Order 12866D. Regulatory Flexibility Analysis

1. Background

A. Description of Uranium Mill Tailings

Uranium mill tailings are sand-likewastes that result from the processing ofuranium ore. Tailings are stored in largesurface impoundments, called piles, inamounts from less than one million tonsto over thirty million tons, over areasthat may cover hundreds of acres. Mostpiles are located in the Western UnitedStates, and all piles emit radon gas, adecay product of radium in the wastematerial resulting from the processing ofore to recover uranium at the uraniummills.

B. Regulatory HistoryTo deal specifically with the risks

associated with these tailings, Congresspassed the Uranium Mill TailingsRadiation Control Act (UMTRCA) in1978 (42 U.S.C. 2022, 7901-7942). Inenacting UMTRCA, Congress found thaturanium mill tailings may pose apotential and significant radiationhealth hazard to the public, and thatevery reasonable effort should be madeto provide for the stabilization, disposal,and control in a safe andenvironmentally sound manner of suchtailings in order to prevent or minimizeradon diffusion into the environmentand to prevent or minimize otherenvironmental hazards from suchtailings. See 42 U.S.C. 7901(a). UnderUMTRCA, two programs wereestablished to protect public health andthe environment from the hazardsassociated with uranium mill tailings.One program (Title I) required theDepartment of Energy (DOE) to conductthe necessary remedial actions atdesignated inactive uranium mill tailingsites to achieve compliance with thegeneral environmental standards to bepromulgated by EPA. These sites weregenerally abandoned uraniumprocessing sites for which a licenseissued by the NRC or its predecessor,the Atomic Energy Commission (AEC),was not in effect on January 1, 1978.The other program (Title II) pertained toactive sites, which are those that arelicensed by the NRC or an affectedAgreement State. Requirements forlicensed sites include the final disposalof tailings, including the control ofradon after milling operations cease.UJMTRCA also required that EPApromulgate standards for these licensedsites, including standards that protecthuman health and the environment in amanner consistent with standardsestablished under Subtitle C of the SolidWaste Disposal Act, as amended. TheNRC, or an Agreement State, isresponsible for implementing the EPqstandards at licensed uranium millingsites.

As part of NRC's 1982 authorizationand appropriations, Congress amendedUMTRCA on January 4, 1983. PublicLaw 97-415, sections 18(a) and 22(b),reprinted in 2 1982 U.S. Code Cong. &Admin. News (96 Stat.) 2077 and 2080.As partially amended thereby EPA wasrequired to promulgate standards ofgeneral applicability for the protectionof the public health, safety and theenvironment from radiological andnonradiological hazards associated withthe processing and with the possession.transfer, and disposal of byproductmaterial as defined under section 1 e(2)


Federal Register / Vol. 59, No. 135 / Friday July 15, 1994 / Rules and Regulations

of the AEA, e.g., uranium mill tailings.Requirements established by the NRCwith respect to byproduct material mustconform to the EPA standards. Anyrequirements of such standards adoptedby the NRC shall be amended as theNRC deems necessary to conform toEPA's standards. In establishing suchstandards, the Administrator was toconsider the risk to the public health,safety and the environment, theenvironmental and economic costs ofapplying such standards, and such otherfactors as the Administrator determinesto be appropriate. See 42 U.S.C.2022(b)(1).

As promulgated by EPA undersubpart D of 40 CFR part 192 in 1983and implemented by NRC pursuant toits'regulations at 10 CFR part 40,appendix A, a Title II site licensed byNRC or an Agreement State, couldindefinitely continue to emit radon atlevels that could result in risks higherthan allowed under the CAA. It was thispossibility which compelled EPA topromulgate subpart T of 40 CFR part 61under CAA section 112. In addition, theUMTRCA regulations called for animpoundment design that would.achieve compliance with the 20 pCi/m 2-s flux standard for 1,000 years, or atleast 200 years, but prior to the recentEPA amendments did not include anyrequirement that monitoring occur toverify the efficacy of the design.

On October 16, 1985, NRCpromulgated rules at 10 CFR part 40,appendix A to conform NRC'sregulations issued five years earlier tothe provisions of EPA's generalUMTRCA standards other than thoseaffecting groundwater protection at 40CFR part 192 (50 FR 41852). NRCcompleted conforming amendments forgroundwater protection in appendix Aof 10 CFR part 40 in 1987

Neither the UMTRCA standardspromulgated by EPA in 1983 nor theNRC standards promulgated in 1980 andamended in 1985, establishedcompliance schedules to ensure thatnon-operational tailings piles would beclosed, and that the 20 pCi/m--sstandard would be met, within areasonable period of time. Moreover, theEPA standards and NRC criteria also didnot require monitoring to ensurecompliance with the flux standard. 50FR 41852 (October 16, 1985). To rectifythese shortcomings of the then currentEPA and NRC programs regulatinguranium mill tailings, EPA promulgatedstandards under Section 112 of the CAAon October 31, 1989, to ensure that thepiles would be closed in a timelymanner with monitoring.

On December 15, 1989, EPApublished national standards regulating

radionuclide emissions to the ambientair from several source categories,including non-operational sites used forthe disposal of uranium mill tailings.(54 FR 51654). These sites are eitherunder the control of the DOE pursuantto Title I of the Uranium Mill TailingsRadiation Control Act (UMTRCA) of1978, 42 USC 7901 et. seq., or are underthe control of NRC or Agreement State-licensees pursuant to Title II ofUMTRCA. These standards-subpart Tof 40 CFR part 61 (subpart T)-werepromulgated pursuant to the authorityof Clean Air Act (CAA or Act) section112 as it existed in 1989.

Prior to today's action, subpart T of 40CFR part 61, limited radon-222emissions to the ambient air from non-operational uranium mill tailingsdisposal sites licensed by the NRC or anaffected Agreement State. Subpart Trequired that these sites, which consistof large (i.e., numerous acre)impoundments or piles, comply with aradon flux standard of 20 pCi/m 2-s. 40CFR 61.222(a). Moreover, compliancemust be achieved within two years ofwhen the site becomes non-operational,40 CFR 61.222(b), which for piles whichhad ceased operation prior to the timeof promulgation was no later thanDecember 15, 1991. While at the time ofpromulgation EPA recognized that manysources might not be able to achieve thisdate, EPA was constrained by thenexisting CAA section 112(c)(1)(B)ii)which allows a maximum of two yearsfor facilities to come into compliance.EPA stated that for those sites whichcould not meet the two-year date, theAgency would negotiate expeditiouscompliance schedules pursuant to itsenforcement authority under CAAsection 113. See 54 FR 51683. SubpartT also called for monitoring andrecordkeeping to establish anddemonstrate compliance. See 40 CFR61.223 and 61.224.

Subpart T was part of a largerpromulgation of radionuclide NESHAPsthat represent the Agency's applicationof the policy for regulating pollutantsunder then existing CAA section 112,which was first announced in thebenzene NESHAPs. 54 FR 38044(September 14, 1989). The-NESHAPspolicy utilized a two-step approach. Inthe first step, EPA considered thelifetime risk to the maximally exposedindividual, and found that it ispresumptively acceptable if it is nohigher than approximately one in tenthousand. This -presumptive levelprovides a benchmark for judging theacceptability of a category of emissions.This first step also considers otherhealth and risk factors such as projectedincidence of cancer, the estimated

number of persons exposed within eachindividual lifetime risk range, theweight of evidence presented in the riskassessment, and the estimated incidenceof non-fatal cancer and other healtheffects. After considering all of thisinformation, a final decision on a safelevel of acceptable risk is made. Thisbecomes the starting point for thesecond step, determining the amplemargin of safety.

In the second step, EPA strives toprovide protection for the greatestnumber of persons possible to anindividual lifetime risk level no higherthan approximately one in one million.In this step, the Agency sets a standardwhich provides an ample margin ofsafety again considering all of thehealth risk and other health informationconsidered in the first step, as well asadditional factors such as costs andeconomic impacts of controls,technological feasibility uncertdiuties,and any other relevant factors.

EPA noted that standards it hadalready promulgated pursuant toUMTRCA (42 U.S.C. 2022, 7901-7942)would eventually limit radon emissionsfrom those sites to a flux-of 20 pCi/m2-s (see 40 CFR part 192, subpart D), andthus EPA referred to that level as"baseline." EPA's risk assessmentrevealed that compliance with the 20pCi/m 2-s baseline would result in anestimated lifetime risk to the maximallyexposed individual of approximatelylx10-4 a level EPA determined to besafe under the first step of the analysis.EPA further concluded in the secondstep, which considers additional factorssuch as cost and technologicalfeasibility that the baseline level alsoprovided an ample margin of safety.

Even though EPA determined that thebaseline was protective of public healthwith an ample margin of safety. EPAstill found it was necessary topromulgate subpart T. This was becausethe baseline assumed compliance withthe UMTRCA regulations even though Ithose regulations did not require thatcompliance occur in the foreseeablefuture and, in fact, many sites were notproceeding towards the baseline level atthe time subpart T was promulgated. Inother words, EPA promulgated subpartT to address the timing issue, whichwas not addressed in the UMTRCAregulations.

The primary subpart T standard is therequirement that radon-222 emissionsnot exceed a flux of 20 pCi/m2 -s. 40 CFR61.222(a). Additionally it requires that,once a uranium mill tailings pile orimpoundment ceases to be operational,it must be disposed of and brought intocompliance with the emission limitwithin two years of the effective date of

36281



the standard (by December 15, 1991) orwithin two years of the day it ceases tobe operational, whichever is later.Lastly, it requires monitoring of thedisposed pile to demonstratecompliance with the radon emissionlimit. See 40 CFR 61.223 and 61.224. Inits 1989 action, EPA recognized thateven though NRC implements generalEPA standards (promulgated underUMTRCA) which also regulate thesesites and call for compliance with a 20pCi/m 2-s flux standard (see 40 CFR part192, subpart D), the UMTRCAregulatory program did not answer thecritical timing concern addressed bysubpart T

The existing UMTRCA regulations set notime limits for disposal of the piles. Somepiles have remained uncovered for decadesemitting radon. Although recent action hasbeen taken to move toward disposal of thesepiles, some of them may still remainuncovered for years.54 FR at 51683: However, due to then-existing CAA section 112(c)(1)(B)(ii),EPA was constrained to requiringcompliance with the 20 pCi/m 2-sbaseline within two years, a date theAgency recognized many sites mightfind impossible to meet. EPAannounced that those situations couldbe dealt with through site-specificenforcement- agreements under CAAsection 113. Because EPA feltconstrained by the CAA as it existed atthat time, EPA stated that for those sitesthe Agency would-negotiate expeditiouscompliance schedules pursuant to itsenforcement authority under CAAsection 113. See 54 FR 51683. By sodoing, subpart T in effect mandated thatthe cover to meet that emissions level beinstalled as expeditiously as practicableconsidering technological feasibility.

The numerical radon emission limitof subpart T is the same as the UMTRCAstandard at 40 CFR part 192, subpart D(subpart D) (although under UMTRCA,the limit is to be met through properdesign of.the disposal impoundment,and is to be implemented by DOE andNRC for the individual sites, whileunder the CAA, the standard is anemissions limit with complianceestablished by EPA throughmonitoring). However, the two year

-disposal requirement and the radonmonitoring requirement were notseparately required by the then existingUMTRCA regulations.

EPA amended 40 CFR part 192,subpart D on November 15, 1993; (58 FR60340) to fill a specific regulatory gapwith respect to timing and monitoring.Under subpart D, sites are now requiredto construct a permanent radQn barrierpursuant to a design to achievecompliance with the 20 pCi/m 2 -s flux

standard as expeditiously as practicableconsidenng technological feasibility(including factors beyond the control ofthe licensee). EPA announced fts goalthat this occur by December 31, 1997for.those non-operational uranium milltailings piles listed in the MOU betweenEPA, NRC and the affected AgreementStates (at 56 FR 67568), or seven yearsafter the date on which theimpoundments cease operation for allother piles. The new requirement forverifying the flux with monitoring ismeant to assure the efficacy of thedesign of the permanent radon barrierfollowing construction.

Section 84a(2) of the Atomic EnergyAct requires NRC to conform itsregulations to EPA's regulationspromulgated under UMTRCA. As notedabove, the then existing NRC criteriawhile providing a comprehensiveresponse to EPA's general UMTRCAstandards did not compel sites toproceed to final closure by a certain datenor did they require monitonng toconfirm the efficacy of the design of thecover. NRC proposed uranium mill-tailings regulations to conform the NRCrequirements to EPA's proposedamended standards at 40 CFR part 192subpart D. 58 FR 58657 (November 3,1993). The final NRC regulations amendCriterion 6 and add a new Criterion 6Atogether with new definitions in theIntroduction to appendix A to part 40 oftitle 10 of the CFR..(59 FR 28220, June1, 1994).

These CAA and UMTRCA programsduplicate each other by creating dualregulatory oversight, includingindependent procedural requirements,while seeking to ensure compliancewith the same numerical 20 pCi/m 2-sflux standard. Concern over thisduplication inspired several petitionsfor reconsideration, most notably fromNRC, the American Mining Congress(AMC) and Homestake Mining Co. Itwas also alleged that subpart T wasunlawful because it was physicallyimpossible for some sites to come intocompliance with subpart T in the timerequired. While those petitionsremained pending before EPA (at leastin part), EPA has taken several actionsto address the issues they raised,including publishing the proposal torescind subpart T, as well as the FinalRule to amend 40 CFR part 192, subpartD (UMTRCA regulations) and a FinalRule staying subpart T pending the

.conclusion of this rulemaking.

C. Clean Air Act Amendments of 1990After promulgation of subpart T (and

receipt of reconsideration petitions), theClean Air Act was substantiallyamended in November 1990. Included

in the amended Act was an amendmentthat speaks directly to the duplicationissue. Newlyenacted section 112(d)(9)provides that no standard forradionuclide emissions from anycategory or subcategory of facilitieslicensed by the Nuclear RegulatoryCommission (or an Agreement State) isrequired to be promulgated undersection 112 if the Administratordetermines, by rule, and afterconsultation with the NuclearRegulatory Commission, that theregulatory program established by theNuclear Regulatory Commissionpursuant to the Atomic Energy Act forsuch category or subcategory providesan ample margin of safety to protect thepublic health. This provision strives toeliminate duplication of effort betweenEPA and NRC, so long as public healthis protected with an ample margin ofsafety.

Moreover, Congress expressedsensitivity to the special complianceproblems of uranium mill tailings sitesthrough new section 112(i)(3). Thisprovision provides an additional 3-yearextension to mining waste operations(e.g., uranium mill tailings) if the 4years allowed (including a one yearextension) for compliance withstandards promulgated under theamended section 112 is insufficient todry and cover the mining waste (therebycontrolling emissions).

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

In July of 1991, EPA, NRC and theaffected Agreement States entered intodiscussions over the dual regulatoryprograms established under UMTRCAand the CAA. In October 1991, thosediscussions resulted in a Memorandumof Understanding (MOU) between EPA,NRC and the Agreement States whichoutlines the steps each party will taketo both eliminate regulatory redundancyand to ensure uranium mill tailingspiles are closed as expeditiously aspracticable. See 56 FR 55434 (MOUreproduced as part of proposal to staysubpart T); see also 56 FR 67537 (finalrule to stay subpart T). The pnmarypurpose of the MOU is to ensure thatowners of uranium mill tailings disposalsites that have ceased operation, andowners of sites that will cease operationin the future, bring those piles intocompliance with the 20 pCi/m2-s fluxstandard as expeditiously as practicableconsidenng technological feasibility(including factors beyond the control ofthe licensee) with the goal that allcurrent disposal sites be closed and. incompliance with the radon emission-standard by the end of 1997 or within



seven years of the date on whichexisting operations and standby sitesenter disposal status. This goalcomports with Congress's concern overtiming as reflected in CAA section112(i)(3), as amended.

E. The Settlement AgreementAs contemplated by the MOU, on

December 31, 1991, EPA took finalaction to stay and proposed rescission ofsubpart T under section 112(d)(9), andissued an advance notice of proposedrulemaking under UMTRCA. See 55 FR67537 67561 and 67569. In order topreserve its rights, EDF filed a lawsuitchallenging the legality of the stay. EDFv Reilly, No. 92-1082 (D.C. Cir.).Litigation had previously been filed byEDF NRDC, AMC, Homestake andothers, challenging subpart T AMC, etal. v EPA, Nos. 90-1058, 90-1063, 90-1068, and 90-1074 (D.C. Cir.). NRC,AMC and Homestake had also filed anadministrative petition forreconsideration of subpart T

Discussions continued with thelitigants and NRC, and in February1993, an agreement was reached tosettle the pending litigation and theadministrative proceeding, avoidpotential future litigation, and otherwiseagree to a potential approach toregulation of NRC-licensed non-operational uranium mill tailingsdisposal sites. See 58 FR 17230 (April1, 1993) (notice announcing settlementagreement under CAA section 113(g)).NRC agreed in principle with theagreement by letter.

The settlement agreement addscomprehensive detail to, and therebycontinues, the approach set forth in theMOU. Actions implemented under thesettlement agreement should result inthe expeditious control of radon-222emissions at non-operational uraniummill tailings disposal sites without thedelays and resource expendituresengendered by litigation andcontentious administrative process. Thisenables EPA to satisfy the criteria ofsection 112(d)(9) that EPA find, by rule,that the NRC regulatory programprotects public health with an amplemargin of safety. It does this, in part, byproviding for changing EPA's UMTRCAregulations such that public healthwould be as well protected underUMTRCA as would implementation ofsubpart T under the CAA.II. Rationale for Final Rule To Rescind40 CFR Part 61 Subpart T for NRC andAgreement State Licensees

In light of the new statutory authorityprovided EPA by section 112(d)(9) ofthe Clean Air Act as amended, EPA metwith NRC and the affected Agreement

'States to determine whether, withcertain modifications to its regulatoryprogram under UMTRCA, the NRCregulatory program might provide anample margin of safety. If so, subpart Twould be rendered superfluous and,therefore, needlessly duplicative andburdensome such that rescissionpursuant to CAA section 112(d)(9)would be appropriate.

In applying the risk methodology forCAA section 112 to the risk assessmentfor subpart T EPA has alreadydetermined that the baseline that wouldresult once the 20 pCi/m2 -s UMTRCAstandard is met protects public healthwith an ample margin of safety. Thus,since the regulatory programimplemented by NRC assures that siteswill achieve the baseline (20 pCi/m 2-s)as soon as practicable consideringtechnological feasibility and factorsbeyond the control of the licensee, theNRC program protects the public to thesame extent as subpart T and subpart Tis not necessary for these facilities. Morespecifically appropriate modificationsto the UMTRCA regulatory scheme asimplemented by NRC and the affectedAgreement States to ensure specific,enforceable closure deadlines andmonitoring requirements such thatcompliance with the baseline occurs asexpeditiously as practicable consideringtechnological feasibility and factorsbeyond the control of the licensee,protect public health with an amplemargin of safety. In so concluding, EPArelies wholly upon the risk analysis itconducted in promulgating subpart T.EPA is not revisiting that analysis here.A. The Regulatory Scheme UnderUMTRCA

As a supplement to the AtomicEnergy Act of 1954, as amended,UMTRCA (42 U.S.C. 2022, 7901-7942)was enacted to comprehensivelyaddress the dangers presented byuranium mill tailings, including theirdisposal:

Uranium mill tailings located at active andinactive mill operations may pose a potentialand significant radiation health hazard to.thepublic, and the protection of thepublic health, safety, and welfarerequire[s] that every reasonable effort bemade to provide for the stabilization,disposal, and control in a safe andenvironmentally sound manner of suchtailings in order to prevent or minimizeradon diffusion into the environment42 U.S.C. 7901(a); see American MiningCongress v. Thomas, 772 F.2d 617 (10thCir. 1985), cert. denied, 426 U.S. 1158(1986). As to uranium mill tailingsdisposal sites in particular, UMTRCAgives the Department of Energy (DOE)the responsibility to clean up and

dispose of certain sites (i.e., Title I), andgives NRC the responsibility forregulating those sites that are ownedand operated by its licensees (i.e., TitleII). EPA is responsible for promulgatingthe generally applicable environmentalstandards to be implemented by bothNRC and DOE. 42 U.S.C. 2022(a), 7911-7924; AMC, 724 F.2d at 621. EPApublished its final UMTRCA regulationson December 15, 1982 for Title I sitesand on September 30, 1983 for Title IIsites. 48 FR 590 and 48 FR 45926(codified at 40 CFR part 192).

Parts of EPA's final UMTRCAregulations are directed to thepermanent disposal of uranium milltailings. See 40 CFR part 192, subpart D.Among the requirements of subpart D isthe mandate that radon releases fromthe disposal sites not exceed a flux of-20 pCi/m 2-s. 40 CFR 192.32 (a) and (1).Other aspects of subpart D pertain to

.groundwater, monitoring, design, andduration of closure. See 40 CFR 192.32and 192.33. With the exception of thegroundwater provisions at 40 CFR192.20(a)(2)-(3), applicable to Title Isites, all aspects of EPA's regulationswere upheld by the Tenth Circuit inAMC v Thomas. 772 F.2d at 640. EPAis currently engaged in rulemaking toaddress the court's remand of the Title,I groundwater provisions.

Because NRC implements EPA'sgeneral UMTRCA standards for itslicensees (as do its Agreement States), ithas promulgated its own implementingregulations in the form of "criteria. Seegenerally 10 CFR part 40, appendix A.While these criteria set forth a variety ofspecific requirements-financial,technical, and administrative-togovern the final reclamation (i.e.,closure) design for each disposal site,they also provide for "site-specific"flexibility by authorizing alternativesthat are at least as stringent as EPA'sgeneral standards and NRC's criteria,"to the extent practicable" as providedin section 84c of the Atomic Energy Actof 1954, as amended. 10 CFR part 40,appendix A, Introduction.

Overall, NRC's implementationcriteria set forth a rigorous programgoverning the reclamation of thedisposal sites so that closure will (1) lastfor 1,000 years to the extent reasonable,but in any event at least 200 years, and(2) limit radon release to 20 pCi/m 2-sthroughout that period. The design mustbe able to withstand extreme weatherand other natural forces. Upon review,EPA belidved the NRC criteria comprisea comprehensive response to EPA'sgeneral standards at 40 CFR part 192,subpart D. However, as noted above,nothing in either EPA's 1983 generalstandards or NRC's 1985 amended

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36284 Federal Regiter / Vol. 59, No. 135 / Friday July 15, 1994 / Rules and Regulations

implementing criteria compelled sites toproceed towards final closure by acertain date. This was the reason forEPA's decision in 1989 to promulgatethe subpart T NESHAPs under the CAA.Moreover, neither EPA s generalUMTRCA regulations, nor NRC'simplomenting criteria previouslyrequired appropriate monitoring toensure compliance with the 20 pCi/m 2-s standard.

B. Clean Air Act Amendments of 1990:Section 112(d)(9) ("SimpsonAmendment")

The purpose of this provision is topreserve governmental resources andavoid needless, burdensome, andpotentially contradictory CAAregulations. Specifically, section112(d)(9) makes explicit that EPA neednot regulate radionuclides under section112 of the CAA for those radionuclidesources that are sufficiently regulated byNRC or its Agreement States (under theAtomic Energy Act or its componentActs, such as UMTRCA). Moreparticularly, section 112(d)(9) allowsEPA to decline to regulate under section112 if the Administrator determines "byrule, and after consultation with the[NRC1'," that NRC's regulatory programfor a particular source "category orsubcategory provides an ample marginof safety to protect the public health."

As EPA interprets section 112(d)(9),the Agency may rescind the subpart TNESHAP as it applies to non-operational uranium mill tailingsdisposal facilities licensed by NRC or anaffected Agreement State if the Agency(1) consults with NRC, (2) engages inpublic notice and comment rulemaking,and (3) finds that the separate NRCregulatory program provides anequivalent level of public healthprotection (i.e., an ample margin ofsafety) as would implementation ofsubpart T. While this rulemaking maycommence prior to final development ofNRC's regulatory program, that programmust fully satisfy the statute at the timeEPA takes final action. In so doing, EPAmust find that the NRC regulatoryprogram satisfies the CAA standard, notthat full and final implementation ofthat program has already successfullyoccurred.

C. Memorandum of Understanding(MOU)

EPA, NRC and the affected AgreementStates entered intensive discussionsresulting in the execution of aMemorandum of Understanding (MOU),a copy of which was printed at the endof the proposed rule to rescind subpartT published December 31, 1991 (56 FR67568). The pnmary purpose of the

MOU is to ensure that non-operationaluranium mill tailings piles andimpoundments licensed by NRC or anaffected Agreement State achievecompliance through emplacement of a.permanent radon barrier with the 20pCi/m 2-s flux standard specified inEPA's UMTRCA standards (40 CFR192.32(b)(1)) as expeditiously aspracticable considenng technologicalfeasibility (including factors beyond thecontrol of the licensee). The goal is thatthis occur at all current disposal sites bythe end of 1997 or within seven yearsof when the existing operating andstandby sites enter disposal status. TheMOU called for EPA to modify itsUMTRCA regulations (at 40 CFR part192, subpart D) to address the timingconcern that resulted in EPA's 1989decision to promulgate subpart T. Inaddition, the MOU called for NRC tomodify its implementing regulations at10 CFR part 40, appendix A, asappropriate, and to immediatelycommence efforts to amend the licensesof the non-operational mill tailingsdisposal site owners and operators toinclude reclamation plans that requirecompliance with the 20 pCi/m 2 sstandard as expeditiously as practicableconsidering technological feasibility(including factors beyond the control ofthe licensee). This was to beaccomplished either through voluntarycooperation with the licensees, orthrough administratively enforceableorders. In accordance with the MOU,the NRC and affected Agreement Statesagreed to amend the licenses of all siteswhose milling operations have ceasedand whose tailings piles remainpartially or totally uncovered. Theamended licenses would require eachmill operator to establish a detailedtailings closure plan for radon toinclude key closure milestones and aschedule for timely emplacement of apermanent radon barrier on all non-operational tailings impoundments toensure that radon emissions do notexceed a flux of 20 pCi/m 2-s. Theseactions, coupled with NRC'scommitment to enforce the amendedlicenses, are intended to provide thebasis for EPA to make the requisitefindings under CAA section 112(d)(9)for rescission of subpart T.

D. Settlement AgreementIn light of CAA section 112(d)(9), and

in order to foster a consensus approachto regulation in this area, EPA thencommenced discussions with NRC, theAmerican Mining Congress (AMC), andthe Environmental Defense Fund (EDF).As a result of discussions afterexecution of the MOU, a final settlementagreement was executed between EPA,

AMC, EDF NRDC and individual siteowners, to which NRC agreed inprinciple by letter. The settlementagreement continues the regulatoryapproach set forth in the MOU addingextensive detail to that agreement.

Under the agreement between EDFAMC, individual sites and EPA, thepending litigation would not bedismissed until after certain terms in theagreement were fulfilled. The partiesagreed that upon rescission of subpart Tthey would jointly move the court todismiss the challenges pertaimng solelyto subpart T. (Paragraph 111.1.) By theterms of the agreement (paragraph111.15.), AMC's pending administrativepetition for reconsideration of subpart Tbecomes moot with the final rescissionof subpart T. Moreover, the agreementdoes not legally bind or otherwiserestrict EPA's rights or obligations underlaw- rather, by its terms (paragraph111.12.), there is no recourse for a courtorder to implement the agreement.Indeed, the only remedy for failure tomeet the terms of the final agreement isactivation by the litigants of theunderlying litigation.

E. Actions by NRC and EPA Pursuant tothe MOU and Settlement Agreement

1. EPA Regulatory Actions

On December 31, 1991, EPA tookseveral steps towards fulfilling itsresponsibilities under the MOU and inimplementing CAA section 112(d)(9) bypublishing three Federal Register (FR)notices. In the first notice (56 FR 67537),EPA published a Final Rule to stay theeffectiveness of 40 CFR part 61, subpartT as it applies to owners and operatorsof non-operational uranium mill tailingsdisposal sites licensed by the NRC or anAgreement State. The stay will remainin effect until the Agency rescinds theuranium mill tailings NESHAPs at 40CFR part 61, subpart T. However, if EPAfails to complete that rulemaking byJune 30, 1994, the stay will expire andthe requirements of subpart T willbecome effective.

In a second notice published onDecember 31, 1991, the Agencyproposed to rescind the NESHAPs forradionuclides that appears at 40 CFRpart 61, subpart T, as it applies to non-operational uranium mill tailingsdisposal sites licensed by the NRC or anAgreement State (56 FR 67561).

In the third notice, EPA published anadvanced notice of proposedrulemaking to amend 40 CFR part 192,subpart D (56 FR 67569) to provide forsite closure to occur as expeditiously aspracticable considering technologicalfeasibility (including factors beyond thecontrol of the licensee), and appropriate



monitoring requirements for non-operational uranium mill tailings piles.These amendments would ensure timelycompliance and add monitoringrequirements currently lacking in theUMTRCA regulations.

EPA published a notice on June 8,1993, proposing to amend 40 CFR part192, subpart D. (58 FR 32174). OnNovember 15, 1993, EPA published theFinal Rule amending 40 CFR part 192,subpart D. (58 FR 60340). This FinalRule requires: (1) Emplacement of apermanent radon barrier constructed toachieve compliance with, includingattainment of, the 20 pCi/m 2-s fluxstandard by all NRC or Agreement Statelicensed sites that, absent rescission,would be subject to subpart T (2)interim milestones to assure appropriateprogress in emplacing the permanentradon barrier; and (3) closure of the siteclosure as expeditiously as practicableconsidering technological feasibility(including factors beyond the control ofthe licensee) after the impoundmentscease operation. EPA announced a goalthat this occur by December 31, 1997for those non-operational uranium milltailings piles listed in the MOU betweenEPA, NRC and affected AgreementStates (at 56 FR 67568), or seven yearsafter the date on which theimpoundments cease operation for allother piles.

As-intended by EPA, the phrase "asexpeditiously as practicable consideringtechnological feasibility "means asquickly as possible considering: (1) Thephysical characteristics of the tailingsand sites; (2) the limits of availabletechnology; (3) the need for consistencywith mandatory requirements of otherregulatory programs; and (4) factorsbeyond the control of the licensee.While this phrase does not precludeeconomic considerations to the extentprovided by the phrase "availabletechnology," it also does notcontemplate utilization of a cost-benefitanalysis in setting complianceschedules. The radon controlcompliance schedules are to bedeveloped consistent with the targets setforth in the MOU as reasonably appliedto the specific circumstances of eachsite.

EPA recognized that the UMTRCAregulatory scheme encompasses adesign standard. EPA made minoramendments to this scheme to betterfacilitate implementation of theregulation -without fundamentallyaltering the current method ofcompliance. Subpart D, as amended,requires site control 'be carried out inaccordance with a written tailingsclosure plan (radon), and in a mannerwhich ensures that closure activities are

initiated as expeditiously as practicableconsidering technological feasibility(including factors beyond the control oflicensees). The tailings closure plan(radon), either as originally written orsubsequently amended, will beincorporated into the individual sitelicenses, including provisions for andamendments to the milestones forcontrol, after NRC or an affectedAgreement State finds that the schedulereflects compliance as expeditiously aspracticable considering technological-feasibility (including factors beyond thecontrol of the licensee). The complianceschedules are to be developedconsistent with the targets set forth inthe MOU as reasonably applied to thespecific circumstances of each site witha goal that final closure occur byDecember 31, 1997 for those non-operational uranium mill tailings pileslisted in the MOU between EPA, NRCand affected Agreement States (at 56 FR67568), or seven years after the date onwhich the impoundments ceaseoperation for all other piles. Theseschedules must include key closuremilestones and other milestones whichare reasonably determined to promotetimely compliance with the 20 pCi/m 2-s flux standard. Milestones which arenot reasonably determined to advancetimely compliance with the radon airemissions standard, e.g. installation oferosion protection and groundwatercorrective actions, are not relevant tothe tailings closure plans (radon). Inaddition, subpart D requires thatlicensees ensure that radon closuremilestone activities, such as windblown tailings retrieval and placementon the pile, interim stabilization(including dewatering or the removal offreestanding liquids and recontouring),and radon barrier construction, areundertaken to achieve compliance with,including attainment of, the 20 pCi/m 2-s flux standard as expeditiously aspracticable considering technologicalfeasibility

The goal of the amendments tosubpart D is for existing sites, or thosethat become non-operational in thefuture, to achieve compliance asexpeditiously as practicable consideringtechnological feasibility (includingfactors beyond the control of licensees)within the time periods set forth in theMOU, including Attachment A thereto,and for new sites to achieve complianceno later than seven years after becomingnon-operational.

However, if the NRC or an AgreementState makes a finding that compliancewith the 20 pCi/m 2-s flux standard hasbeen demonstrated through appropriatemonitoring, after providing anopportunity for public participation,

then the performance of the milestone(s)may be extended. If an extension isgranted, then during the period of theextension, compliance with the 20 pCi/m 2-s flux standard must bedemonstrated each year. Additionally,licensees may request, based upon cost,that the final compliance date foremplacement of the permanent radonbarrier, or relevant milestone set forth inthe applicable license or incorporated inthe tailings closure plan (radon), be.extended. The NRC or an affectedAgreement State may approve such arequest if it finds, after providing theopportunity for public participation,that: (1) The licensee is making goodfaith efforts to emplace a permanentradon barrier constructed to achieve the20 pCi/m 2-s flux standard; (2) suchdelay is consistent with the definition of"available technology'" and (3) suchdelay will not result in radon emissionsthat are determined to result insignificant incremental risk to thepublic health. Such a finding should beaccompanied by new deadlines whichreasonably correspond to the targetdates identified in Attachment A of theMOU. (56 FR 67569).

EPA expects the NRC and AgreementStates to act consistently with theircommitment in the MOU and providefor public notice and comment onproposals or requests to (1) incorporateradon tailings closure plans or otherschedules for effecting emplacement ofa permanent radon barrier into licensesand (2) amend the radon tailings closureschedules as necessary or appropriatefor reasons of technological feasibility(including factors beyond the control ofthe licensees). Under the terms of theMOU, NRC should do so with noticetimely published in the FederalRegister. In addition, consistent withthe MOU, members of the public mayrequest NRC action on these matterspursuant to 10 CFR 2.206. EPA alsoexpects the Agreement States to providecomparable opportunities for publicparticipation pursuant to their existingauthorities and procedures.

The UMTRCA regulations, aspromulgated by EPA and implementedby NRC prior to the 1993 amendments,while ultimately limiting emissions tothe same numerical level as subpart T,were supported by a variety of design-based substantive and proceduralrequirements that speak to UMTRCA'sunique concern that final site closureoccur in a manner that will last 1,000years or at least 200 years, but did notrequire monitoring of emissions toconfirm the performance of the earthencover. See generally 10 CFR part 40,appendix A and 40 CFR part 192.Subpart D, as amended, requires all

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appropnate monitoring be conductedpursuant to the procedures described in40 CFR part 61, appendix B, Method115, or any other measurement methodproposed by a licensee and approved byNRC or the affected Agreement State asbeing at least as effective as EPAMethod 115 in demonstrating theeffectiveness of the permanent radonbarriar in achieving compliance withthe 20 pCi/m 2-s flux standard. Afteremplacement of a permanent radonbarrier designed and constructed toachieve compliance wit:h, includingattainment of, the 20 pCi/m 2-s fluxstandard, the licensee shall conductappropriate mcnitoring and analysis ofthe radon flux through the barer. Thismonitoring will verify that the design ofthe permanent radon barrier is effectivein ensuring that emissions of radon-222will not exceed compliance with the 20pCi/m--s flux.standard, as contemplatedby 40 CFR 192.32(b)(1)(ii). EPA intendsthat the permanent radon barrier bedesigned to ensure sustainedcompliance with the 20 pCi/m 2-s fluxstandard by all sites, but does notrequire continuous emissionsmonitoring. Rather, a single monitoringevent may suffice to verify the design ofthe permanent radon barrier to ensurecontinued compliance. Note, howeverthat if the NRC or an Agreement Stateextends the time for performance ofmilestones based on a finding thatcompliance with the 20 pCi/m 2-.s fluxstandard has been demonstrated byappropriate monitoring, compliancewith the 20 pCi/m 2-s flux standard mustbe demonstrated each year during theperiod of the extension.

2. NRC Regulatory Action

On May 20, 1994, the Commissionersapproved final amendments conforming10 CFR part 40, appendix A to 40 CFRpart 192, subpart D. The finalregulations adopted by NRC amendCriterion 6, add a new Criterion 6A andnew definitions contained in theIntroduction to appendix A. Criterion 6was revised to provide for appropnateverification that the "final" (or"permanent" as defined by EPA) radonbarrier, as designed and constructed, iseffective in controlling releases ofradon-222 to a level no greater than 20pCi/m 2-s when averaged over the entirepile or impoundment. Criterion 6(2) (59FR 28220, June 1, 1994). The licenseemust use EPA Method 115, or anothermethod approved by the NRC as beingat least as effective in demonstrating theeffectiveness of the "final" radonbarrer. Id. If the reclamation planspecifies phased emplacement of the"final" radon barrier, the verificationmust be performed on the portion of the

pile or impoundment as the "final"radon barrier for that portion isemplaced. Additionally, certainreporting and recordkeeping is requiredin connection with the verification ofthe effectiveness of the "final" radonbarrier. Criterion 6(4) (59 FR 28220,June 1, 1994).

The Introduction section of appendixA to part 40 was amended by adding thefollowing definitions: as expeditiouslyas practicable considering technological.feasibil'ty available technology factorsbeyond the control of the licensee, finalradon barrier, milestone, operation andreclamation plan. While supbart Drequires emplacement of the"permanent" radon barrer NRCrequires emplacement of the "final"radon barrier. According to NRC, thedefinition of final radon bamrer, isintended to "facilitate the drafting ofclear regulatory text and to eliminateany ambiguity with respect tocompliance with the 20 pCi/m 2-s 'fluxstandard' after completion of the finalearthen barrier and not as a result of anytemporary conditions or interimmeasures. (59 FR 28222, June 1, 1994).The final definitions of factors beyondthe control of the licensee and availabletechnology have been revised to includea list of possible factors and examplesof grossly excessive costs respectively,consistent with subpart D.

Criterion 6A paragraph 1 requirescompletion of the "final" radon barrieras expeditiously as practicableconsidering technological feasibilityafter a pile or impoundment containinguranium byproduct materials ceasesoperation, and requires it to be done inaccordance with a written Commission-approved reclamation plan. In addition,this paragraph requires inclusion ofspecified interim milestones as acondition of the individual site license.Criterion 6A also specifies theconditions for Commission approval ofextensions for performance ofmilestones and continued acceptance ofuranium byproduct and other materialsin the pile or impoundment. 10 CFRpart 40, appendix A Criterion 6A (2) and(3) (59 FR 28220, June 1, 1994). Theseprovisions vary somewhat from NRC'sproposal, to reflect changes made inEPA's final amendments to subpart D at§§ 192.32(a)(3) (iv) and (v). The changesare "(1) that only byproduct material,not 'similar' material, will be approvedfor continued disposal after the finalradon bamer is essentially completeand the verification of radon flux levelshas been made, and (2) that publicparticipation is specifically to beprovided for only. in the case ofcontinued disposal after radon fluxverification, in addition to general

clarification of the paragraph." (59 FR28224, June 1, 1994):

Additionally NRC's final regulationsin Criterion 6A provide for publicparticipation consistent with the MOUand the settlement agreement. Suchpublic participation will be providedthrough a notice published in theFederal Register including theopportunity for public comment on theproposed license amendment and theopportunity to request an informalhearing in accordance with theCommission's regulations at 10 CFR part2, subpart L. The final regulationscontain various revisions to NRC'sproposal, both substantive and editorialin nature, primarily for consistency withEPA's final amendments to subpart D.

EPA believes the final revisionsclarify NRC's proposal. EPA furtherbelieves that although NRC'sconforming regulations are not identicalto subpart D, the differences are minorin nature, and properly reflectapplication of the subpart Drequirements to NRC's separateregulatory program. NRC's final ruleappropriately conforms its regulationsto 40 CFR part 192 subpart D. EPA notesthat NRC's conforming amendments arean important consideration in EPA'sdetermination that the NRC regulatoryprogram protects the public health withan ample margin of safety.

3. Amendment of NRC and AgreementState Licenses

Consistent with their commitmentstinder the MOU, as well as EPA sprevious proposal to rescind subpart T(56 FR 67561 December 31, 1991), NRCand'the affected Agreement Statesagreed to amend the licenses of all non-operational uranium mill tailings sitesto ensure inclusion of schedules foremplacing a permanent radon bamer onthe tailings impoundments, as well as.interim milestones (e.g., wind blowntailings retrieval and placement on thepile, and interim stabilization). To thisend, NRC and the Agreement Statesrequested the licensees to voluntarilyseek amended licenses and havecompleted, processing those requests.NRC has continued the spirit ofcooperation between EPA and NRC bykeeping the Agency apprised of thestatus of the approval of reclamationplans and amendment of licenses.

As of September 30, 1993, NRC andthe Agreement States had completed alllicense amendments for closure oflicensed non-operationalimpoundments, with the exception of

.the license amendment incorporatingthe reclamation plan for the Atlas sitelocated in Moab, Utah.



NRC informed EPA by letter that theCommission received extensivecomments on NRC's July 20, 1993.proposal to approve the Atlasreclamation plan, including the closureschedule and interim milestonesrequired by the MOU, and theEnvironmental Assessment and theFinding of No Signifi~ant Impact for theAtlas mill. NRC rescinded its Finding ofNo Significant Impact for the Atlas millin October 1993. (58 FR 52516, October8, 1993). One issue appears to be thepotential for flooding of the Atlasimpoundment if it is reclaimed on-site,due to the proximity of the site to theColorado River. This concern and othersappear to have caused delays in thelicense amendment for this site. NRC isactively pursuing a timely final decisionon the acceptability of the existing Atlassite and its reclamation plan. To thisend, NRC informed EPA by letter datedDecember 28, 1993, that NRC hasconducted several meetings with thevarious representatives enumeratedabove and has requested additionaltechnical information from the licensee.On March 30, 1994, NRC published aNotice of Intent to Prepare anEnvironmental Impact Statement and toConduct a Scoping Process. (59 FR14912). In that notice, NRC states itsdetermination "that approval of therevised reclamation plan constitutes amajor Federal action and that based onthe level of controversy related to theproposed action [on-site reclamation]and uncertainties associated with theunique features of the Moab site,preparation of an EIS in accordancewith the National Environmental PolicyAct (NEPA) and the NRC'simplementing requirements in 10 CFRpart 51 is warranted. (59 FR 14913,March 30, 1994). The notice describesthe proposed action, possible alternativeapproaches and the scoping process.The alternative approaches includemoving the pile to one of two alternativesites. Id.

The near edge of the town of Moab islocated about 2 km to the east of theAtlas tailings impoundment. However,it appears the area within a 1.5 kmradius of the Atlas mill tailingsimpoundment site is sparselypopulated. An interim cover is beingplaced over the impoundment for radonemission control as the Atlas tailingsimpoundment dries sufficiently to allowaccess of the necessary equipment. Asdiscussed m the BackgroundInformation Document (BID) for theamendments to 40 CFR part 192 subpartD, interim covers significantly reduceradon emissions. Technical Support forAmending Standards for Management of

Uranium Byproduct Materials: 40 CFRPart 192 Background InformationDocument, EPA 402-R-93-085, October1993.

NRC announced on May 11, 1994 (59FR 24490) that Atlas Corporationapplied to amend condition 55 of itssource material license. Atlas proposedto amend the milestone dates byextending the dates for windblowntailings retrieval and placement on thepile, placement of the interim cover andplacement of the final radon barrier byone year, NRC has informed EPA thatthe Commission approved the extensionof the date for placement of the interimcover to February 15, 1995 and that themilestone for emplacement of the"final" radon barrier was not extended.See Docket Entry A91-67 IV-D-50(Letter from NRC to Atlas).

Since NRC will notice any proposedchange in the milestone date foremplacement of the permanent radonbarrier, EPA and others will have theopportunity to monitor such anextension at that time. Under thepresent circumstances, it appears anextension of the MOU target date of1996 would be consistent with thefactors to be considered under the "asexpeditiously as practicable" standardat 40 CFR 192.32(a)(3)(i), since NRC hasdetermined there is a need forconsistency with mandatoryrequirements of the NationalEnvironmental Policy Act (NEPA) andthere may be factors beyond the controlof the licensee. 40 CFR 192.31(k). Basedon representations from NRC, EPAbelieves that the extra time NRC istaking to further review the proposedAtlas mill site reclamation plan isnecessary to address the large amount ofpublic comments received and that itwill result in a final solution that ismore responsive to public comment.

NRC and the affected AgreementStates have also agreed to enforce theprovisions of the amended licenses toensure compliance with the newschedules for emplacing the permanentradon barriers, including interimmilestones, and to ensure (and verify)the efficacy of the design andconstruction of the barrier to achievecompliance with the 20 pCi/m 2-s fluxstandard contained in the amendmentsto subpart D. (56 FR 67568, December31, 1991) (MOU, a copy of which wasprinted at the end of the proposed ruleto rescind subpart T).

III. Final Rule to Rescind 40 CFR Part61, Subpart T for NRC and AgreementState Licensees

EPA is rescinding subpart T as itapplies to non-operational uramum milltailings disposal sites licensed by NRC

or an affected Agreement State. TheAgency sets forth this Final Rulepursuant to its authority under section112(d)(9) of the CAA, as amended in1990. The support for this actionincludes (1) the MOU, which reflectsconsultation with NRC and the affectedAgreement States and sets forth a courseof conduct to bolster NRC's regulatoryprogram under UMTRCA so that it isprotective of public health with anample margin of safety (2) thesettlement a~reement which addscomprehensive detail to the MOU, (3)EPA's amendments to 40 CFR part 192,subpart D, (4) the relevant NRC andAgreement State actions concerning,license amendments, to date, and (5)NRC's amendments to itsimplementation regulations at appendixA, 10 CFR part 40.A. EPA Determination Under CAASection 112(d)(9)

1. Background

Section 112(d)(9) authorizes EPA todecline to regulate radionuclideemissions from NRC-licensees under theCAA provided that EPA determines, byrule, and after consultation with NRC,that the regulatory scheme establishedby NRC protects the public health withan ample margin of safety. Thelegislative history of section 112(d)(9)provides additional guidance as to whatis meant by "an ample margin of safetyto protect the public health" and whatprocess the Administrator should followin making that determination in arulemaking proceeding under section112(d)(9). The Conference Reportaccompanying S. 1630 points out thatthe "ample margin of safety" findingunder section 112(d)(9) is the same"ample margin of safety" requirementthat was contained in section 112 of theCAA prior to its amendment in 1990.The conferees also made clear that theprocess the Administrator was expectedto follow in making any suchdetermination under section 112(d)(9)was that "required under the decision ofthe U.S. Court of Appeals in NRDC vEPA, 824 F.2d 1146 (D.C. Cir 1987)(Vinyl Chloride). H. Rep. No. 101-952,101st Cong., 2d Sess. 339 (1990),reprinted in 1 A Legislative History ofthe Clean Air Act Amendments of 1990,at 1789 (1993) (hereinafter "LegislativeHistory CAAA90"J.

EPA has already made adetermination in promulgating subpartT that compliance with the 20 pCi/m 2 -

s flux stwndard protects public healthwith an ample margin of safety. EPAconducted a risk analysis inpromulgating subpart T in 1989. At thattime, EPA determined that the 20 pCi/

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m 2-s flux standard was a "baseline" thatwas provided by EPA's generalUMTRCA standards at 40 CFR part 192,subpart D. EPA further determined thatcompliance with that baseline would beprotective of public health with anample margin of safety. EPApromulgated subpart T to ensureachievement of the flux standard at non-operational sites in a timely manner. Inconducting this rescission rulemaking,,EPA is not revisiting either the riskanalysis or decision methodology thatsupported the promulgation of subpartT rather, EPA is only visiting whetherNRC's regulatory program underUMTRCA will result in meeting the 20pCi/m 2-s flux standard established insubpart T as being the level thatprovides an ample margin of safetywith compliance achieved in a timelymanner thereby rendering subpart Tunnecessarily duplicative.

EPA's determination that the NRCregulatory program protects publichealth with an ample margin of safetyincludes a finding that NRC and theaffected Agreement States areimplementing and enforcing, insignificant part on a programmatic andsite-specific basis: (1) The regulationsgoverning the disposal of uranium milltailings promulgated by EPA and NRCconsistent with the settlementagreement described above and (2) thelicense (i.e., tailings closure plan)requirements that establish milestonesfor the purpose of emplacing apermanent radon barrier that willachieve compliance with the 20 pCi/m 2-s flux standard.

2. EPA's UMTRCA StandardsAs discussed above, EPA has

modified its UMTRCA regulations (40CFR part 192 subpart D) to requirecompliance with the 20 pCi/m--s fluxstandard as expeditiously as practicableconsidering technological feasibility(and factors beyond the control of thelicensee), and to require appropriatemonitoring to verify the efficacy of thedesign of the permanent radon barrier.By definition, no more rapidcompliance can occur, as a practicalmatter, because this schedule representsthe earliest that the sites could be closedwhen all factors are considered. EPAexpects that these compliance scheduleswere developed and will be modifiedconsistent with the targets set forth inthe MOU as reasonably applied to thespecific circumstances of each site.When EPA promulgated subpart T itrecognized that many sources might notbe able to comply with the two yearcompliance date then required pursuantto section 112. Based on this, subpart Tincludes a provision that in such a case

EPA would "establish a complianceagreement which will assure thatdisposal will be completed as quickly aspossible." 40 CFR 61.222(b). The timeperiod required for closure undersubpart D embodies the same approach.In practice, therefore, both subpart Tand subpart D establish the same basictimeframes for achievement of the fluxstandard. Assuming NRC and theAgreement States faithfully implementsubpart D and the license amendmentsrequired under subpart D, EPA wouldnot expect there to be any significantdifference between these two programsin the amount of time required for sitesto comply with the flux standard.

As discussed above, subpart D asamended, provides that NRC may grantan extension of time to comply witheither of the following deadlines: (1)Performance of milestones based upon afinding that compliance with the 20pCi/m 2-s flux standard has been met or(2) final compliance beyond the date orrelevant milestone based upon cost.EPA considers these two bases uponwhich NRC may grant an extension tobe mutually exclusive, i.e., a request fora specific extension may be based onone or the other but not both grounds.If a milestone is being extended for abasis other than cost, such an extensionmay be granted if NRC finds thatcompliance with the 20 pCi/m 2-s fluxstandard has been demonstrated usingEPA Method 115 or an NRC approvedalternative. In addition the site mustcontinue to demonstrate compliancewith this flux standard on an annualbasis. However, if a licensee requestsextension of the final compliance date(or relevant milestone) based upon cost,such an extension may only be grantedif NRC finds that the three criteriaspecified in 40 CFR section192.32(a)(3)(iii) are met. Any extensionsof the final compliance date based uponcost will by the nature of the criteria begranted on a site-specific basis.

If a licensee requests an extension ofthe final compliance date based uponcost, technology may not be used as abasis for granting the extension unlessthe costs are grossly excessive, asmeasured by normal practice within theindustry. EPA recognizes that theemissions from the pile may exceed the20 pCi/m 2-s flux standard pending finalcompliance, but believes these increaseswill be minimal and of limited duration.EPA does not anticipate the shortextensions in the time to complete theradon barrier contemplated in subpart Dand the NRC conforming amendmentsto increase the maximum lifetimeindividual risk beyond 1 in 10,000, thelevel which EPA found presumptivelysafe under the benzene policy and for

this category protective of the publichealth with an ample margin of safetyin promulgating subpart T 54 FR 51656(December 15; 1989). EPA believes thatduring the short extensions, this isconsistent with the reality of short-termrisks from radon emissions during theperiod of delay and consistent with therisks associated with negotiatedcompliance agreements when non-operational sites fail to close within thetwo-year period required by subpart TEPA believes these emissions shouldnot exceed those emissions which couldoccur under subpart T if complianceagreements had been negotiated.Extensions based upon cost will only begranted if NRC or an Agreement Statefinds, after providing an opportunity forpublic participation, that the emissionscaused by the delay will not causesignificant incremental risk to thepublic health. Additionally, a siterequesting an extension based upon costmust demonstrate that it is making agood faith effort to emplace thepermanent radon barrier. In manysituations, where an interim cover is inplace, radon emissions are significantlvreduced and tailings which are wet orponded emit no significant levels ofradon. If NRC or an Agreement Stateuses this flexibility, public notice isrequired, and as appropriate, EPAwould be aware of its use and could alsomonitor extensions under the provisionsof § 61.226(c) to determine whether theAgency should reconsider the rescissionand seek reinstatement of subpart T oneither a programmatic or site-specificbasis. Thus, under the circumstances.EPA believes affording authority forextensions of the final compliance datebased upon cost is not inconsistent withprotecting the public health.

Additionally NRC or an AgreementState may extend the date foremplacement of the radon barrier basedon "factors beyond the control of thelicensee," as that term is implicit in thedefinition of "as expeditiously aspracticable." EPA understands thatunder subpart'D's provisions there is nobar to NRC or an Agreement Statereconsidering a prior decisionestablishing a date for emplacement ofthe radon barrier that meets thestandard of "as expeditiously aspracticable considering technologicalfeasibility Such reconsideration could.for example, be based on the existenceof factors beyond the control of thelicensee, or on a change in any of thevarious factors that must be consideredin establishing a date that meets the "asexpeditiously as practicable" standardof § 192.32(a)(3)(i). However, EPAstresses that such a change in


Federal Register / Vol. 59, No. 135 / Friday, July 15, 1994 / Rules and Regulations 3

circumstances would not automaticallylead to an extension. It would beincumbent on NRC or an AgreementState to evaluate all the factors relevantunder § 192.32(a)(3)(i) before it changeda previously establshed milestone ordate for emplacement of the finalbarrier, and any new date would haveto meet the standard set out in§ 192.32(a)(3)(i). Finally, NRC's andAgreement States' authority toreconsider previously establishedmilestones or dates would includeauthority to shorten or speed up suchdates, as well as extend them. EPA alsoexpects that public participationconsistent with that level ofparticipation provided in the MOU andthe settlement agreement will beafforded the public by NRC or anAgreement State in amending a licensedue to "factors beyond the control of thelicensee," or for any other basis.

3. NRC's Conforming Regulations

As discussed previously, theCommission has approved finalregulations to conform appendix A of 10CFR part 40 to EPA's general standardspromulgated uider UMTRCA.,(59 FR28220, June 1, 1994.) EPAiistodaymaking a determination that NRCs finalregulations support rescission. EPAbelieves NRC's final regulationsadequately and appropriatelyimplement EPA's amendments to 40CFR part 192, subpart D. Thisdetermination is supported by thecomments received in response to EPA'ssupplemental proposal to rescindsubpart T. (59 FR 5174, February 7,1994.) All commenters agreed that

NRC's proposed conforming regulationssupport EPA's proposal to rescindsubpart T by either adequately andappropriately implementing subpart D,or may reasonably be expected to do sowhen finalized.

4. License Amendments

Table 1 illustrates that all NRC andaffected Agreement State licenses,except one, have been modifiedpursuant to the MOU. Attachment A tothe MOU, developed in conjunctionwith each site and considering theparticular circumstances of that site,lists target dates for emplacement of thepermanent radon barrier with "aguiding objective that this occur to allcurrent disposal sites by the end of1997, and within seven years of.whenthe existing operating and standby sitescease operation." 56 FR 67568(December 31, 1991). The MOU requiresNRC and the Agreement States to,.ensure * * * that cover emplacementon the tailings impoundments occurs asexpeditiously as practicable consideringboth short-term reductions in radonreleases and long-term stability of theuranium mill tailings." Id. Under theMOU, the compliance schedules (i.e.,tailings closure plans (radon) undersubpart D, as amended) were to bedeveloped consistent with the MOUtargets as reasonably applied to thespecific circumstances of each site, witha goal that final closure occur byDecember 31, 1997, for those non-operational uranium mill tailings pileslisted in the MOU. EPA believes theNRC and-the Agreement States haveacted in good faith to implement their

comnmitments under the MOU byamending the site licenses. EPA alsobelieves that uranium mill tailingsdisposal site owners and operators haveacted in good faith by voluntarilyrequesting the license amendments. Thelicense amendments by NRC and theaffected Agreement States appear toreflect closure-as expeditiously aspracticable under the terms of the MOUand the requirements of subpart D asamended, thus supporting rescission ofsubpart T and a determination that theNRC program protects public healthwith an ample margin of safety. SeeDocket Entry A91-67 IV-D-46 (NRCComments in Response to EPA'sFebruary 7, 1994 Proposal);.DocketEntry A91-67 II-D-23 (February 7,1994, Note to Docket from GaleBonanno, Office of Radiation and IndoorAir, Criteria and Standards Divisiondetailing approval of NRC licenses andmilestone schedules); Docket EntryA91-67 II-D-45 (June 1, 1994, Note toDocket from Gale Bonanno, Office ofRadiation and Indoor Air, Criteria andStandards Division detailing approval ofAgreement State licenses and milestoneschedules); Docket Entry A91-67 IV-D--52 (June 13, 1994, Letter to GailBonanno from State of Washington);Docket Entry A91-67 IV-D-49 (Letter toGail Bonnano [sic] providinginformation for Washington Statelicensees, Dawn Mining Company andWestern Nuclear, Inc.). In addition,consistent with their commitmentsunder the MOU, NRC and the affectedAgreement States are providingopportunities for public particpation inthe license amendment process.

TABLE 1 .- STATUS OF RECLAMATION PLAN, FOR NON-OPERATIONAL URANIUM MILL TAILINGS IMPOUNDMENTS'

Facility

ANC, Gas Hills, WY ..........................................

ARCO Coal, Bluewater, New Mexico .....................................................Atlas, M oab, Utah .............................................. ................................................Conoco, Conqutsta, Texas ................ ...............................................................Ford-Dawn Mining, Ford, WA .............. . .......................Heca Mining, Duria, CO .......................................Homestake, Milan, NM ........................................Pathfinder-Lucky Mc, Gas Hills, Wyoming ..................................Petrotomics, Shirley Basin, W Y .................. ............... ....................................Quivira, Ambrosia Lake, NM ........................................ ......................................Rio Algom , Lisbon,. UT .........................................................................................Sohie L-Bar, Cetiolleta, New Mexico ........... ..................................................UMETCO, Gas Hills, Wyoming ...............................UMETCO, Maybell, 0O ..................... ..................UM ETCO , Uravan. CO ......................... ...... ............................ ..... .... ..........UNG, Church Rock, NM ..........................................Union Pacfic, Bear Creek, W yoming ........................................... ........................W NI, Sherwood, W A ................... .......................................................................

Approvaldate for rec-lamation plan

Approvaldate for rec-

lamationmilestones

MOU date forfinal radon

cover-f -4 -J

4/10/83

1/301923

9/8/939/30/939/30/937/23/939/17/93

10/23/8910/5/909/29/935/1/89

8

7/30/9312/31/873/11/924/3/92

9/30/93

11/5/92

11/9/9211/4/929/8/93

9/30939/30/9311/9/92

12/29/921/21/931/22193

12/31/9611/4/9212/21927/30/93

12/31/8710/29/9211/5/929/30/93

1995

19951996199620101997

5 1996/2001'19981955

19971996199219951997

199719961996

License datefor final

radon cover

12/31/9426/30/96

12/28/9412/31/9612/31/93

412/31/18

12/3,1/95C12/31/01

9/30/9812/31/95

712/3119712/31/9612/31/9212/31/9512/31/9712/31/96

12/31/.9712/31/0641/31/98

36289



TABLE 1 -STATUS OF RECLAMATION PLANS FOR NON-OPERATIONAL URANIUM MILL TAILINGS IMPOUNDMENTS 1-

Continued

Approval Approval MOU date for License dateFacility date for rec date for rec final radon for final

lamation plan milestones cover radon cover

W NI, Split Rock, W Y ................................................................................................ 6/17193 11/5/92 1995 12/31/94

NRC and the affected Agreement States committed to complete review and approval of reclamation plants, including schedules for emplace-ment of earthen covers on non-operational tailings impoundments by September 30, 1993.2 Two impoundments: 1996 date is for impoundment which was accepting waste from off-site for disposal. Licensee has requested an amend-ment for a one year extension of dates for placement of radon barrier on the two piles.

3 Delayed pending resolution of issues raised in response to Federal Register notice dated July 20, 1993.4 Closure date change is because of groundwater remediation schedule.5Two impoundments: large impoundment to be completed by 1996, small impoundment by 2001 except for areas covered by evaporation

ponds. Final radon barrier placement over the remainder of the small impoundment shall be completed within two years of completion of ground-water corrective actions.

6 Date in the MOU is for final reclamation.7Two impoundments: final radon barrier placement on both by December 31, 1997 One active cell.8 Vanous early 1980s.

The license amendments noted inTable 1 reflect consistent application ofthe dates contained in the MOU. Threeexceptions are worth noting. First,although the license amendment toincorporate the reclamation plan for theAtlas site is not complete, EPA isconfident that NRC is actively pursuingfinal resolution of the pendingreclamation plan. In the noticeannouncing its intent to prepare anenvironmental impact statement, NRCpublished a tentative schedule to:prepare a draft EIS and issue for publiccomment in October 1994; provide a 45day comment period; and publish thefinal EIS in April 1995. (59 FR 14914,March 30, 1994). Pending final approvalof a reclamation plan, the Atlas site iscontinuing to emplace an interim coveron the pile to control radon emissions,and recently received approval toextend the date for placement of theinterim cover to February 15, 1995. Thedate for placement of the "final" radonbarrier was not extended by NRC andremains December 31, 1996. See DocketEntry A91-67 IV-E-5 (Note to Docketfrom Gale Bonanno, Office of Radiationand Indoor Air, Criteria and StandardsDivision, summary of telephoneconversation with legal counsel toAMC); Docket Entry A91-67 IV-D-50(Letter from NRC to Atlas).

Second, the license amendments forthe ANC Gas Hills site address twoseparate impoundments. Consistentwith the MOU, the license amendmentfor the non-operational impoundmentcontains a December 31, 1994, date foremplacement of the permanent radonbarrier. On February 11, 1994, NRCpublished a notice of receipt of a requestto amend the reclamation schedule atthe.ANC Gas Hills site. (59 FR 6658).ANC has requested a one-year extensionof the current date for emplacement ofthe permanent radon barrier. ANC

"believes [it] cannot begin authorizedrestoration activities in the timenecessary to meet current reclamationmilestone dates," due to an NRCcommunication "that a previousamendment request for a reclamationredesign proposal dated April 16, 1992,would not be reviewed by late 1992 orearly 1993." Id. NRC notes that ANC iscontinuing to monitor and maintain theinterim cover. Further, NRC states-

Approval of the requestwill be based ondetermination there be no harm to humanhealth or the environment, that reclamationwill be completed as expeditiousry aspracticallsic], verification that reschedulingreclamation will not impact the final closuredate for the entire facility.

Additionally an impoundmentpreviously designated as operational forin-situ waste disposal is now non-operational. Emplacement of thepermanent radon barrier on this secondimpoundment is scheduled to becompleted by June 30, 1996, *iell withinthe seven year goal of the MOU forimpoundments which cease operationsafter December 31; 1991.

On May 9, 1994, ANC informed NRCby letter that it would be ceasingoperations and going out of business bythe end of May 1994. On May 13, 1994,NRC issued an Order and Demand forInformation to ANC. See Docket EntryA91-67 IV-D-47 This Order requiresANC to continue complying with allapplicable license conditions, includingmonitoring and reclamation activities.The Order further states"ID]iscontinuance of those programsand functions in the manner describedby the Licensee in its letter of May 9,1994, would constitute a willfulviolation of ANC's license." Accordingto the Order, abandonment wouldconstitute a "deliberate violation" ofsection 184 -of the.AEA* of 1954, asamended, 10 CFR 40.41.(b), and 10 CFR

40.42. The Order further states that"such a deliberate act of abandonmentwould be a serious violation of the AEA

NRC regulations, and ANC'slicense," and could subject ANC and theindividuals causing the violations tofurther enforcement actions andpotential criminal sanctions. NRC alsoordered that ANC submit additionalinformation in order for NRC todetermine "whether enforcement actionshould be taken to ensure compliancewith NRC statutory and regulatoryrequirements."

EPA notes that the actions taken todate by NRC regarding this site indicatea good faith intention to implement theMOU and the requirements of subpart Dand to respond quickly as the situationat the ANC Gas Hills site develops. EPAfully expects that NRC will take actionsconsistent with the Commission'senforcement policy and authority. See10 CFR part 2, subpart Boand appendixC. While difficult enforcement questionsare raised about this site, EPA notes thatthe same questions would be raised ifsubpart T were not rescinded. Under theprovisions of the rule adopted today, iffuture developments meet the criteriaand conditions for reconsideration ofrescission, the Agency expects it wouldreceive a petition pursuant to§ 61.226(b). EPA would then take actionconsistent with those provisions at thattime. In any case, EPA reserves the rightto initiate reconsideration ifappropriate.

Lastly, the license amendment datesfor two additional sites, the Ford-DawnMining site and the Western Nuclear,Inc. (WNI) site both located in theAgreement State of Washington, are alsobeyond the dates contained in the MOU.However, Washington State notes thatfor these sites the closure date waschanged because of the groundwaterremediation schedule, and the difficulty



experienced in drying the piles due tothe evaporation and precipitation rates.In sum, EPA believes that the licenseamendments adopted by the State ofWashington for these two sites reflect agood faith attempt to implement theMOU and reflect closure of the sites asexpeditiously as practical consideringtechnological feasibility under subpartD.

While NRC and the Agreement Stateshave obtained license amendments forall but one of the relevant sites, theyhave not as yet established a record forenforcement of the milestones,including action on requests forextensions. To date, only one extensionfor placement of the interim cover at theAtlas site has been approved by NRC.Based on NRC representations, nomilestones occurring after the date ofthe MOU, October 1991, have beenmissed and, as noted in footnote 2 ofTable 1, -an application for anotherextension is pending but no action hasbeen taken. However, given theirresponse to the requirements of theMOU, and the rulemaking conducted byNRC to implement the requirements ofsubpart D, EPA expects that themilestones established in the licensesfor emplacement of the permanentradon barrier (i.e., the tailings closureplan (radon)) will be implemented andenforced in significant part on aprogrammatic and site-specific basis.The relevant portions of the amendedlicenses have been placed in the docketfor this action, as well as letters fromNRC to EPA apprising the Agency of thestatus of the license amendments.

EPA and NRC have completed almostall of the actions required by the MOU,including: revising the NRC and affectedAgreement State licenses to reflect theMOU and regulatory requirements,promulgating amendments to EPA'sUMTRCA regulations at 40 CFR part192, subpart D, and revising the NRCregulations at 10 CFR part 40 to conformto EPA's revised UMTRCA regulations.Based on EPA's review, to date, of theregulatory program established by NRCunder UMTRCA (including amended 10CFR part 40, appendix A), EPA hasdetermined that the timing andmonitoring concerns are fully addressedconsistent with EPA's UMTRCAstandards, and the NRC criteria result inreclamation designs and schedules fullyadequate to ensure compliance with the20 pCi/m 2-s flux standard asexpeditiously as practicable consideringtechnological feasibility (includingfactors beyond the control of thelicensee). EPA today finds that NRC andthe affected Agreement States are or willbe implementing and enforcing, insignificant part, the regulations

governing disposal of tailings and thelicense requirements (tailings closureplan (radon)) that establish milestonesfor emplacement of a permanent radonbarrier that will achieve compliancewith the 20 pCi/m 2-s flux standard ona programmatic and a site-specific basis.The Agency intends "in significantpart" to mean that NRC or an affectedAgreement State is implementing andenforcing the regulatory and licenserequirements in a manner that EPAreasonably expected to not materially(i.e., more than de minimis) I interferewith compliance with the 20 pCi/m 2-sstandard as expeditiously as practicableconsidering technological feasibility(including factors beyond the control ofthe licensee).

As announced in the February 71994, proposal, EPA is taking today'saction since NRC's regulations at 10CFR part 40, appendix A, wereeffectively revised, as necessary andappropriate to implement the revisionsto EPA's regulations at 40 CFR part 192,subpart D. As stated in the February1994 proposal, EPA intended to takefinal action on the proposed rescissionprior to the time compliance with the 20pCi/m 2-s flux standard is achieved at allsites.

5. Judicial or Administrative ChallengesNeither EPA nor any commenter is

aware of any judicial or administrativechallenge to these regulations that ispending. Thus, EPA is aware of nochallenge which would present asignificant risk of interference with thepurposes and objectives of the MOU, asreflected in the regulatory changes.B. Reconsideration Provisions

Under the Atomic Energy Act, NRChas the authority to waive, for reasonsof practicability, the dual requirement ofthe MOU that compliance with the 20pCi/m 2-s flux standard occur asexpeditiously as practicable consideringtechnological feasibility. 42 U.S.C.2114(c). NRC considers the term"practicability" to include certaineconomic considerations notcontemplated by the requirement of theMOU that compliance occur asexpeditiously as practicable consideringtechnological feasibility. Inpromulgating subpart T, the CAA didnot permit, and EPA did not consider,site-specific waivers from ultimatecompliance with that standard. Thus, asa theoretical matter, EPA recognized inits December 1991 proposal that thiswaiver authority might be exercised in

The phrase "de minimis" as used in this noticeis not intended to be restricted to the meaning ofsection 112(g}1](A} of the Clean Air Act, asamended.

a manner not addressed in the MOUeven after the UMTRCA regulationshave been promulgated and each licenseamended, although EPA has no reasonto believe such relaxation of restrictionwill actually occur. Nevertheless, EPArecognized that this authority would notexist under the CAA and subpart T and,thus, there was some concern over thepotential for deviation from theagreements contained in the MOU.

1. December 31, 1991 Proposed Rule toRescind subpart T

In response to the concern over thewaiver authority in the Atomic EnergyAct, and in order to ensure its exercisedoes not alter EPA's finding that theNRC regulatory program protects publichealth with an ample margin of safetyEPA announced in its December 31,1991, proposal that certain conditionsand grounds for reconsideration wouldbe included in any final decision torescind subpart T In this way, EPAmight base its rescission finding uponits view of the NRC regulatory programcontemplated by the MOU at the time oftaking final action, while also providingsome assurance that EPA would revisitthat finding should NRC or the affectedAgreement States substantially deviatefrom that program. Thus, in December1991, EPA proposed certain conditionsand grounds for reconsideration, toprovide assurance that any finding bythe Agency that the NRC program issufficient to justify rescission of subpartT under CAA section 112(d)(9) wouldbe revisited if the NRC program isactually implemented in a mannerinconsistent with that finding. Thespecific reconsideration optionsproposed by EPA were published at 56FR 67565 (December 31, 1991).

2. Reconsideration OptionsEPA has reviewed the various options

for reconsideration proposed inDecember 1991 in light of thecomprehensive details added to theterms of the MOU by the settlementagreement finalized in April 1993. OnFebruary 7 1994, EPA proposed anadditional reconsideration option that isa combination of the options proposedin December 1991. It is in effect a hybridof that December 1991 proposal. WhileEPA did not withdraw its priorreconsideration proposal and thereconsideration.options containedtherein, the additional reconsiderationoption proposed in February 1994 waspreferred by EPA.

3. Reconsideration Provisions AdoptedToday

EPA believes the followingreconsideration provisions adopted

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36292, Federal: Register I Viol. 59, No.. 135- / Friday, July 15,. 1994 / Rules and Regulations

today, which include bothprogrammatic and sita-specific bases forreinstatement, represent acomprehensive approach. under both. theMOU and settlement agreement. TheAgency notes that the 20 pCihn2 -s flixstandard, must be met by all, sites asprovided by 40 CFR part 192, subpart DIEPA does not intend to reconsider thedecision to rescind subpart T for anysite that is in fact meoting the 20 pCi/m2-s flux standard, absent other factorsthat would' indicate the need forreinstatement. For example, EPA mayinitiate reconsideration under § 61.226even if a site is meeting the 20 pCi'm 2 -

s flux standard'if here are factors whichshow that NRC or an Agreement Statefailed to imprement and enforce uisignificant part, the applicableregulations, e.g., failure of that sito toemplace a permanent radon barnerdesigned to meet the requirements ofsubpart DThis action amends subpart T and

estaclishes an obligation for theAdmim:s zator to reinstate subpart T as;applied to owners and operators of non-operational urarmum mill tailingsdisposal sites licensed by NRC'o: anaffected Ag&eemort. State providadcerta n conditicns are met.Addftiornally, this action sets forth theprocedures for EPA to' act on a petitionto reccsider rescission of subpart Twhich seeks such reinstatinen-t.However-., thee prcnsians ame notintonded to ce exlusive. EPA rosorvesthe right to izitiate reinstatement ofsubpart T if appmpnate. Pursuant tosection 553ta) cf the AdmwinstrativeProcedure Act (5 U.S.C. 553(c)interested per"onlin- ay petition the EPAto i itiate rca tateant of suhpeat T, Maddition to petitions for ruinstatmentunder today's procedures.

The reconsideration provisions setfcrth in § 61.225 establish proceduresfor persons to petition EPA forreconsideration of the rescission andseek reistatement of subpart TandEPA's response to such petitions.Provisions for the substantive.conditions far reconmderation of therescission of this subpart andsubsequent reinstatement for NClicensees are also included. Und-athesepramnsicns, a person may petition theAdministrator for reconsideration of therescission and seek reinstatement of.subpart T under § 61.226(a) whichprovides for pzcgranimatic and site-specific reinstatement.. Ifreconsideration is initiated it must heconducted pursuant to notice andcomment procedures. It is importantthat any alleged failures by NRC or anaffected Agreement State to implementand enforce the regulations governing:

uranium mill tailings or the applicablelicense!requirements, be addressed m atimely manner. These provisions areintended to ensure that persons mayseek recourse from the Administrator ifthey are adversely affected by the failureof NRC or an affected: Agreement Stateto implement and' enforce, in significantpart, on a programmatic and a site-specific basis the regulations governingthe disposal of uranium mill tailingspromulgated by EPA and NRC,requirements of the tailings closureplan, or license requirementsestablishing milestones for the purposeofemplacing a permanent radon barrerthat will achieve compliance with the20,pCi/m 2-s flux standard'. Thus, EPA is,establishing a non-discretionary duty totake final action granting or denying anauthorized petition for reconsiderationof the rescission of subpart T within 300days of receipt of the petition. If EPAgrants such petition it would thenproceed to initiate rulemaking toreinstate subpart T. The rulemaking toreinstate subpart T, however, is notsubject to the 300-day time period. Thisschedule is intended to provide EPAand NRC adequate time to reselve anypotential problems identified by apetition. Failure to meet this 300-daydeadline for a ciecison on whether toinitiate rulemaking or not cculd lead toa citizen suit action m a federal DistrictCourt under CAA section 304 for anorder that EPA take final action cn thepetition. Review of that final os-ponaewould be in a federal Circuit Court ofAppeals under CAA section 307(b). IfEPA grants such a petition and init'at-esrulemaking to reinstate subpart T thenfinal agency action would not occuruntil E.?A had concluded suchrulamakang. Consistent wi h thesuttlein nt agreement, EPA may proposeto grant or deny the petition within 120days of receipt, allow a comment periodof at least 60 days, and take fiz1al actiongranting or denying the Fetifion within120 days of the close of the commentperiod.

Under today's procedures, EPA shallsummarily disrmiss without prejudice a§ 61.226(b) petition to reconsider therescission and seek reinstatement ofsubpart T on a programmatic basis,unless the petitioner demonstratas thatit provided written notice of the allegedfailure to NRC or an affected AgreementState at least 60 days before filing itspetition with EPA. This notice to NRCmust include a statement of the groundsfor such a petition. This noticerequirement may be satisfied, amongother ways, by submissions or pleadings;submitted to NRC during aproceedingconducted by NRC. The purpose of this

advance notice requirement is toprovide NRC'or an affected, AgreementState with an opportunity to address theconcerns raised by the potentialpetitioner. Additionally, EPA shall'summarily dismiss without prejudice a§ 61.2261b) petition to reconsider therescission and seek reinstatement ofsubpart T on a site-specific basis, unlessthe petitioner demonstrates that itprovided, at least 60 days before filingits petition' with EPA, a written requestto NRC or an affected' Agreement Statefor enforcement or other relief, andunless the petitioner alleges that NRC'orthe affected Agreement State failed torespond to such request by. taking.action, as necessary, to assure timelyimplementation and enforcement of the20 pCi/m2-s flux standard. Thisprovision is intended to provide NRC oran Agreement State with an opporttmityto address the concerns raised by thepotential petitioner through its standardenforcement mechanisms.

The Administrator may also initiatereconsideration of the rescission andreinstatement ef subpart T as applied' toowners and operators of non-operationaluranium mill tailings disposal sites ifEPA believes it is appropiata to do so.For example, EPA may initiate suchrecornderation if it has reason tobeli-ve that NRC or an affectedAgreement State has failed toimplement and enforce, in significantpart, the regulations governing thedisposal of uranizin mi:i tailingspromalgated by EPA and NRC or thetailings clocure plan (radon)requirements establishing milestones forthe purpose of emplacing a permanentradon barrer that will achievecompliance with the 23 pCi/mz-s fluxstandard. Before the Administratorinitiates reconsideraticn of therescission and reinstatement of subpadtT, EPA shall consult with NRC toaddress EPA's concerns, if theconsultation does not resolve theconcerns, EPA shall provide NRC with60 days notice of the Agency's intent toinitiate rulemaking to reinstate thissubpart.

Upon. Gcmpletion of a reconsiderationrulemaking, EPA may: (1) Reinstatesubpart Ton a pro;rem-,iiaic basis ifEPA determines, based on the record,,.that NRC has significantly failed toimplement and enforce; iii significantpart, on a programmatic basis, (a) the'regulations governing the disposal ofuranium mill tailings promulgated byEPA and NRC or (hJ the licenserequirements establishing milestones forthe purpose of emplacing a permanentradon barrier that will achievecompliance with the 20 pCi/m 2-s fluxstandard; (2) reinstate subpart T on a



site-specific basis if EPA determines,based on the record, that NRC or anaffected Agreement State hassignificantly failed to implement andenforce, in significant part, on a site-specific basis, (a) the regulationsgoverning the disposal of uranium milltailings promulgated by EPA and NRCor (b) the license requirementsestablishing milestones for the purposeof emplacing a permanent radon barrierthat will achieve compliance with the20 pCi/m 2-s flux standard; or (3) issuea finding that NRC is implementing andenforcing on either a site-specific orprogrammatic basis the regulations andlicense requirements described aboveand that reinstatement of subpart T isnot appropriate.

The regulations establish anobligation for the Administrator toreinstate subpart T as applied to.ownersand operators of non-operationaluranium mill tailings disposal sites ifthe Administrator determines byrulemaking, based on the record, thatNRC or an affected Agreement State hasfailed on a programmatic basis toimplement and enforce, in significantpart, the regulations governing thedisposal of uranium mill tailingspromulgated by EPA and NRC or thetailings closure plan (radon)requirements establishing milestones forthe purpose of emplacing a permanentradon barrier that will achievecompliance with the 20 pCi/m 2-s fluxstandard. The Administrator also shallreinstate subpart T on a site-specificbasis as applied to owners and operatorsof non-operational uranium mill tailingsdisposal sites if the Administratordetermines by rulemaking, based on therecord, that NRC or an affectedAgreement State has failed on a site-specific basis to achieve compliance bythe operator of the site or sites withapplicable license requirements,regulations, or standards implementedby NRC and the affected AgreementStates. Under today's action, EPA shallbe required to reinstate subpart T onlyfor the failures enumerated in thepreceding sentence that may reasonablybe anticipated to significantly interfere(i.e., more than de minimis) with thetimely emplacement of a permanentradon barrier constructed to achievecompliance with the 20 pCi/m 2-s fluxstandard at uranium mill tailingsdisposal sites. In rescinding subpart TEPA intends "in significant part" tomean that EPA must find that NRC oran affected Agreement State isimplementing and enforcing, on aprogrammatic and a site-specific basis:(1) The regulations governing thedisposal of uranium mill tailings

promulgated by EPA and NRCconsistent with the MOU and settlementagreement and (2) the tailings closureplan (radon) requirements establishingmilestones for the purpose of emplacinga permanent radon barrier that willachieve compliance with the 20 pCi/m 2

s flux standard in a manner that is notreasonably expected to materially (i.e.,more than de minimis) interfere withcompliance with the 20 pCi/m 2-S fluxstandard as expeditiously as practicableconsidering technological feasibility(including factors beyond the control ofthe licensee). Reinstatement wouldrequire an EPA finding that NRC or anaffected Agreement State has failed toimplement and enforce in this manner.

IV Discussion of Comments andResponse to Comments From NPR

Public hearings on EPA's December31, 1991, proposal to rescind subpart T(56 FR 67561) were held on January 15,1992 in Washington, D.C. and onJanuary 21-22, 1992 in Santa Fe, NewMexico. Representatives of the NuclearRegulatory Commission (NRC), theAmerican Mining Congress (AMC), theowners and operators of individual sitesand the Southwest Research andInformation Center (SWRIC) testified atthese hearings. Written comments werealso received from the EnvironmentalDefense Fund (EDF), NRC, AMC,owners and operators of individualsites, the Department of Energy and theSWRIC.

In February 1993, an agreement wasreached between EPA, EDF NRDC,AMC, and individual uranium milltailings disposal sites to settle pendinglitigation and administrativeproceedings, avoid potential futurelitigation, and otherwise agree to apotential approach to regulation of NRCand Agreement State licensed non-operational uranium mill tailingsdisposal sites. See 58 FR 17230 (April1, 1993) (notice announcing settlementagreement under CAA section 113(g)).NRC agreed in principle with thesettlement agreement. The settlementagreement added comprehensive detailto, and thereby continued, the approachset forth in the MOU published with the1991 proposal. (56 FR 67568, December31, 1991).

Written comments in response toEPA's February 7 1994 supplementalproposal were received from NRC, EDFAMC, Homestake Mining Company RioAlgom Mining Corp., ARCO andEnvirocare of Utah, Inc.

Many of the parties who commentedon the December 1991 proposal alsosigned the settlement agreement andcommented on the February 1994proposal. In certain cases, a party's

comments to the December 1991proposal are inconsistent with andconflict with comments later submittedin response to the 1994 proposal. Giventhe intervening settlement agreementand the revisions to EPA's and NRC'sUMTRCA regulations, EPA believes thatthe more recent comments submitted bya party in response to the 1994proposal, should be accorded moreweight than comments previouslysubmitted by that same party in 1991,where there is inconsistency betweenthe comments.

In addition, EPA's review of thecomments has been limited to thequestion.of whether EPA should rescindsubpart T This rulemaking was notintended to reconsider and did notaddress whether EPA should havepromulgated subpart T in 1989. EPAtherefore rejected as irrelevant to thisrulemaking, comments addressed to thevalidity or appropriateness of thepromulgation of subpart T

1. General

In response to the 1991 and 1994Notices of Proposed Rulemaking (NPR),NRC, environmental and industrygroups generally support EPA'sproposal to rescind 40 CFR part 61,subpart T as applied to owners andoperators of NRC and Agreement Statelicensed non-operational uranium milltailings disposal sites. Variouscommenters to the 1994 proposalsuggested specific revisions to theproposed regulatory text and preamble.The Agency has reviewed all commentsand suggested revisions carefully.Revisions to the regulatory text andpreamble have been made wheredeemed appropriate.

2. Request for Comments Contained inthe 1994 NPR

In the February 1994 proposal, EPArequested comments on its proposeddetermination that the NRC regulatoryprogram protects public health with anample margin of safety, includingcomments on whether: (1) EPA haseffectively promulgated appropriaterevisions to 40 CFR.part 192, subpart D;(2) NRC's regulations at 10 CFR part 40,appendix A either already adequatelyand appropriately implement-therevisions to EPA's regulations, or mayreasonably be expected to do so prior torescission of subpart T (3) the revisionof NRC and affected Agreement Statelicenses reflect the new requirements ofsubpart D; and (4) any judicial oradministrative challenge to EPA or NRCregulations is expected to present asignificant risk of interference with fullcompliance with the MOU and thesettlement agreement.

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36294 Federal Register I Vol. 59, No. 135 / Friday, July 15, 1994 / Rules and Regulations

Several comienters responded to the,Agency's request for com ents., -Commenters believed EPA samendments to 40 CFR paA 192,subpart D f-l1Z1 the lnt._N of thasettlement agroemnat with raspect toactions rccu2ed by EPA. Hover,cerlal_ ccmmenters noted that ilhesettlement agreement called fcr actionby both EPA and NRC. The comneWoirsuniversally agreed that hased uponNRC's November 3, 1993 pioposal, NRC.may reasonably be expected, toadequately and appropriatelyimplement the Agency's amendments to40 CFR pert 192, subpart D. Theseccmmec;.tat3 believe tnat when finalized,NRC's r-gcuatons at 10 CFR part 40,appendix A should adequately complywith the settlement agreement andconform to EPA s subpart D UMTRCAregulations.

Many commenters noted that NRCand the Agreement States havefaithfully implemented their MOUcommitment to complete review and.approval by no later than September1993 of detailed reclamation plansincluding !chedules for emplacing an.earthen cover on non-operationaltailings impoundments to. controfemissions of radon-222 to 20 pCilm~-s,See 56 FR 67S68,. December .31, 1q91.Several commenters noted that although,the license amendment for the Atlas sitein Moab, Utah is not yet complete, thatsite represents a-unque situation andshould not affect EPA s decision torescind subpart T:

No commenter was aware of anypending judicial or adiinistrativechallenge that would present asignificant risk of interference with. theMOU and the settlement agreement.

Additionally, EPA requestedcomments on the proposedreconsideration pravisions included in anew § 61.226. added to subpart, T.. Enparticular EPA requested. comments asto whether these provisions effectivelyimplement the regulatory, approach ofthe settlement agreement, especially theterms providing specific time. periodsfor a reconsideration rulemaking, Onecommenter believed the criteria and.procedures for reconsidering thed(cision ta rescind subpart T wereconsistent with theterms of thesettlement agreement. Several othercommentersacommnented as to specificaspects of these provisions and,suggosted revisions to the regulatorylanguage far consistency with thesettlement agreement. Specificcomments pertaining to the proposedprovisions for reconsideration of the'rescission and,reinstatement of subpartT are addressed in Section 4 below.

There was widespread agrmaentamong the corimenters that the EPAand NC regulatory and liceoi::gframework that eiher h1aa heen, oi is inthe prccess of beig, im enter~d triJensure that P-on-opE.-ticnal u.immnimill tailings dispcsal sites wil aE:Levethe 20 pCi/m2-s fiw standazu asexpeditiously as practicable consiJcmngtechoclogical oasihility.

3. Rescission of Subpart T

3.1 Timing of Resc.ssmon

Comment: In response to the 1991proposal, one commenter noted EPAshould not rescind subpart T until theAgency is assured that tae iNUbetween EPA, NRC and the affectedAgreement States is impemeniad andEPA's amendments to its.ULMTRCA,regulations at 40 CFR part 192, subpartD are complete.

Response: As stated in the preambleto the 1994 proposal and the final ruleamending 40 CFR part 192,.subpart D,EPA is now rescinding subpart T for"NRC-licensed uranium mill, tailingsdisposal sites due to the completion ofthe Agency's amendments to subpart D,completion of NRC.conformng.regulations, and completion by NRC. andaffected Agreement. States of various,license. amendments containingschedules for emplacement of thepermanent radon barrier. EPA believesit is appropriate to-rescind subpart Tpursuant. to the authority of.section112(d)(9) of the'CAA, as amended, sinceNRC has established, a regulatoryprogram to. ensure that non operationaluranium: mill tailings pile, will be,closed as expeditiously as practicableconsidering technological feasibility.

3.2 Section 112(d)(9) of the Clean AirAct, As Amended ("SimpsonAmendmenV')

•Comment:'n response to the 1991proposal, one commenter argued section112(d)(9) of the CAA, as amended,applies prospectively and does notauthorize EPA to rescind, a previouslypromulgated standard.

Response: The Agency disagrees andbelieves that section 112(d)(9) of theCAA authorizes EPA to rescindpreviously promulgated regulations ifcertain determinations are made byEPA. Congress clearly intended to givethu Agency the discretion to rescindcertain previously promulgatedregulations and thereby relieve affected'facilities from the burdens associatedwith parallel regulation when the NRCregulatory program would protectpublic health with an amplemargin ofsafety. See, e.g., 136 Cong. Rec. S 3797-99 (daily ed. April 3, 1990), reprintedi m

4 A LcigoOative History of the Clean AirAct Amendments of 1990, at 7156-7162(1993). ("Legislatidve History, CAAA1990"). Tis Seumae floor debate onAmendmcnt Nor. 457 toS. 162tevidences a cjar inteatien that esedi112(d)(9) authorzzee rscissimn ofprevcusiy prnoz-gatda mdtcnncldcNESHAPs. Senator Simpson., thespcn-or of the amn-dment, stated that"[p lassage of tins amnendment V il alliwEPA to replace tke enussicn standardsissued by EPA in November 1989, forNRC-licensed facilities, including powerplants, uranium fuel cycle facilities, midby-product facilities, if that agencyconcludes that the existing NRCregulatory program adequately protectspublic health." 4 Legislative History,CAAA 1990 at 7158. Also see 1Legislative History, CAAA 1990 at 773(1993] (statement by Senator Burdickduring debate on the ConferenceCommittee Report) ("It is clear that theexisting regulatory program under theAtomic Energy Act protects the publichealth with an ample margin of safety.Under these circumstances, additionalor dual regulation under the Clean AirAct does not make any sense."I

Additionally in commenting on the1994 proposal', this commenterexpressed the belief that the 1994,proposal is consistent with the terms of,the settlement agreement between EPA,EDF NRDC, AMC and' individual siteowners and operators. The settlementagreement, as described in detail above,,promotes the objectives of section112(d)(9}' of the CAA by establishing anagreed upon framework forreconsideration of rescinding subpart 'Fand making minor modifications to theAEA regulatory program for closure ofthe uranium mill tailings'disposal sites.Clearly rescission of the previouslypromulgated subpart T wascontemplated by the parties to the.settlement agreement. This particularcommenter and' EPA were parties to thatagreement. EPA continues to implementthe terms of the settlement agreement,inclnding.today's action rescindingsubpart T Thus, EPA is rejecting theprior comment to the 1991 proposal.

Comment: In response to the 1991proposal, a commenter suggested EPA.publish its finding that the NRCregulatory program protects the publichealth with an ample margin of sali*ty.

Response: Pursuant to the settlementagreement, EPA published and invitedcomment on its proposed determination.that the NRC. regulatory programprotects public health, with an amplemargin of safety on February, 7 1994 (59'FR 5674). That. determmation is alsocontained! in this action, which will bepublished in the Federal Regster.


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Comment: Commenters, suggested inresponse to the. 1991 proposal that EPAcould. not determine that. the NRC.regulatory program protects. public.health with an ample. margin of safetyso long as NRC retains the authority, towaive standards and time schedules forcompliance,, and there are no provisionsunder the AEA for citizens' suits..

Response: The commenters suggestthat the NRC regulatory program doesnot ensure, that EPA's revised; UMTRCAregulations. (40 CFR' part- 192, subpart D)would' apply, since'NRC has theauthority to, grant waivers under the'AEA due to cost or technologicalfeasibility. EPA recognizes that the NRChas authority under the AEA to waive,for economic reasons strict compliancewith the requirement that sites meet the20 pCi/m 2-s standard as expeditiously,as practicable considering technologicalfeasibility (including. factors beyond thecontrol of the licensee). AEA section'84c., 4Z USC 211'4c. However, the full,exercise of this.authority, is notcontemplated by either the MOU or thesettlement agreement, described' above.If this waiver authority is; used in, a.manner inconsistent with the purposesand' objectives of the MOU andsettlement agreement, today's actionincludes procedural and substantiveprovisions designed to facilitate.reconsideration of the rescission andpossible reinstatement of'subpart T.The amendments to subpart T provide

clearauthority and procedures for EPAto revisit today's finding should NRC orthe affected' Agreement States deviate-from the regulatory program' in place ina manner which materially (i.e., morethan de minimis) interferes withcompliance with the 20 pCi/m2s fluxstandard: as expeditiously as: practicableconsidering technological feasibility,(including factors beyond the control! ofthe licensee). Additionally, EPAbelieves the actions taken, to date byNRC, including the license amendmentsand. the final.amendments to, the NRCconforming regulations, as described'above, reflect the good faith effort on, thepart of NRC to implement the MOU.Thus, EPA believes under thesecircumstances NRCs authority to waivestrict compliance with the, flux standardand the time for compliance does notpreclude EPA from finding NRC!sregulatory program protects the publichealth with, an ample margin of safety,.

Further,, the Agency believes thatCongress was aware that the legislativeauthority under the CAA provided, forcitizen suits while the. AEA did notcontain. such provisions. Congressclearly envisioned that circumstances.might be such that EPA would make thefinding required by the Simpson

Amendment. In making today's amplemargin of safety determination., EPAconsidered whether NRC isimplementing, and enforcing,., insignificant part, the regulationsgoverning disposal of tailings and, the.license requirements which, establishimilestones for emplacement of a,permanent radon barrier that will:achieve compliance with the 20pCi/m 2-s, flux standard on, aprogrammatic and site-specific basis.UMTRCA gives NRC and the: AgreementStates the responsibility to-implementand enforce regulations promulgatedunder UMTRCA. If, in the future, NRCor the Agreement States do:notimplement and enforce, in significantpart,, the regulations. governing disposalof tailings and the license requirementswhich establish, milestones, foremplacement of a permanent radonbarrier that will achieve compliancewith the 20 pCi/mg-s flux standard ona programmatic or site-specific basis,reconsideration and: reinstatementprovisions adopted today allow EPA, toreconsider its rescission of-subpart T'and thus, possibly reinstate the. CAAstandards, The settlement agreement'executed between, EPA, EDF NRDC andAMC which provided the regulatoryapproach for today's action had as an,objective the rescission of subpart T.Moreover, NRC's final amendments. to;the conforming regulations also, provideenhanced opportunities for publicparticipation under certaincircumstances.

3.3 Section 112(q)(3) of the Clean AirAct, As Amended'

Comment: The comments to the 1991proposal included, a comment that the"Savings Provision" (section 1'12(q)(3))of the CAA requires that subpart Tremain in effect.

Response: Section 1 l2(q)(3)' providesthis section, as in effect prior to'the

date of enactment of the Clean Air ActAmendments of 1990, shall remain ineffect for radionuclide emissions from

disposal of uranium mill tailingspiles, unless the Administrator, in the.Administrator s.discretion, applies the:requirements of this- section as modifiedby the Clean Air Act Amendments of1990 to such sources of radionuclides.

EPA believes-the plain language ofsection. 112(q)(3), gives theAdministrator the discretion, to, rescindsubpart T pursuant to section 112(d)(9)or allow subpart T to. remain in effectpursuant to, section 112 as in effect priorto the CAAA of 1990L. In. thisrulemaking, EPA acted to. apply section112.as modified by the 1990amendments, and pursuant to. section.

112(d)(9) to decline toregulate"radionuclide emissions from: anycategory or subcategory of facilities,licensed by the Nuclear RegulatoryCommission (.or an. Agreement State)" ifthe: Administrator determines,by ruleand after consultation with the, NuclearRegulatory Commission, "that theregulatory program established by theNuclear Regulatory Commissionpursuant to-the Atomic Energy Act, for'such category, or subcategory, providasan ample margin. of safety, to protect thepublic health.." This provision strives toeliminate duplication of, effort betweenEPA and' NRC, so long as public healthis. protected with an ample margin: ofsafety. Although the commentersuggests that section 112 (q) (3). shouldcause the Administrator to not rescindsubpart T such an interpretation is notharmonious and is inconsistent with theintent of Congress in. enactingthe CAAAof 1990.

Additionally EPA received' commentsfrom this commenter supporting the1994 proposal, expressing the belief thatthe 1994' proposal' is consistent' with theterms of the, settlement agreement. Thesettlement agreement promotes theobjectives of section 112(d)(9)' of theCAA as amended by establishing an'agreed upon framework for'consideration of the rescission ofsubpart T and' minor modifications tothe AEA regulatory program for closureof uranium mill tailings disposal: sites.This commenter, together with EPA andothers, was a party' to that agreement,which clearly envisions rescission ofsub part T.

Thus, EPA is. rejecting this comment,since a plain reading of section 112(q)(3)authorizes EPA, to exercise its discretionunder section 112(d)(.9)'and as a partyto the settlement agreement the'commenter clearly supports the goal ofthe agreement that subpart T berescinded.3.3 Section 122(a) of the Clean Air Act,as Amended in 1977

Comment: The commenter asserts inresponse' to the' 1991 proposal, that EPAshould not rescind, subpart T becausesuch rescission is inconsistent withsection 122(a) of the CAA, of 1,977. Thecommenter contends section 122(a) wasnot repealed: by, the, 1990, amendments tothe CAA and that it required the Agencyto list radionuclides as a hazardous airpollutant if the Administrator found!that public health. was threatened due toair emissions of radionuclides.

Response:. EPA disagrees with, thecommenter's interpretation thatrescission of subpart T pursuant tosection 1.12(d)(9) of the CAA is-inconsistent with, section, 1.22(a) of the

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CAA. On December 27 1979, EPA listedradionuclides, including those definedby the AEA as byproduct material, 4s aHazardous Air Pollutant pursuant tosection 112(b)(1)(A) of the CAA asamended in 1977 (44 FR 76738). In thatnotice EPA stated that

[lin accordance with the requirements ofsections 122 and 112, the Agency finds thatstudies of the biological effects of ionizingradiatioii indicate that exposure toradionuclides increases the risk of humancancer and genetic damage. Based onthis information, the Administrator hasconcluded that emission of radionuclidesmay reasonably be anticipated to endangerpublic health, and that radionuclidesconsfitute hazardous air pollutants withinthe meaning of the Clean Air Act.

Id. On April 6, 1983 (48 FR 15076) EPAannounced proposed standards for foursources of emissions of radionuclides,and its decision to not regulate uraniummill tailings together with other sources.Under court order, EPA finalized theregulations proposed in 1983 onFebruary 6, 1985. 50 FR 5190. See alsoSierra Club v Ruckelshaus, No. 84-0656 (U.S. District Court for theNorthern District of California). OnSeptember 24, 1986, EPA promulgated afinal rule regulating radon-222emissions from licensed uranium millprocessing sites by establishing workpractices for new tailings. (51 FR34056). On April 1, 1988, EPA requesteda remand for this standard. On EPA smotion, the Court placed the uraniummill tailings NESHAPs on the sameschedule as the other radionuclideNESHAPs to reconsider the standards inlight of Natural Resources DefenseCouncil v. EPA, 824 F.2d 1146 (D.C. Cir1987) (Vinyl Chloride). EPAsubsequently promulgated 40 CFR part61, subpart T the subject of today'saction.

EPA believes section 122 of the CAAmust be read consistent with and inharmony with the 1990 amendments tothe CAA. EPA took action under section122 when it listed radionuclides. EPAsubsequently regulated radionuclidesemissions under section 112. Section112(d)(9) of the CAA authorizes EPA tonow decline to regulate radionuclideemissions from any category orsubcategory of facilities licensed by theNRC (or an Agreement State) if theAdministrator determines, by rule, andafter consultation with the NRC, that theregulatory program established by theNRC pursuant to the AEA for suchcategory or subcategory provides anample margin of safety to protect thepublic health. This provision strives toeliminate duplication of effort betweenEPA and NRC, so long as public healthis protected with an ample margin of

safety. While section 122 addresseswhether radionuclides should be listed,section 112(d)(9) addresses a separateissue-whether EPA should continue toregulate or initiate regulation ofradionuclide air emissions undersection 112 based on the NRC regulatoryprogram.

Although the commenter suggestsEPA should not rescind subpart T basedon section 122(a), EPA believes such areading of sections 112(d)(9) and 122(a)is not harmonious and is inconsistentwith the intent of Congress in enactingsection 112(d)(9).

Additionally EPA received commentsfrom this particular commenter inresponse to the 1994 proposalexpressing the belief that the 1994proposal to rescind subpart T isconsistent with the terms of thesettlement agreement. The settlementagreement promotes the objectives ofsection 112(d)(9) of the CAA asamended through the rescission ofsubpart T and minor modifications tothe AEA regulatory program for closureof the uranium mill tailings disposalsites. This commenter, together withEPA and others, was a party to thatagreement. Through today's actionrescinding subpart T EPA is furtheringthe goal of the settlement agreement.

Thus, EPA is rejecting this comment,since a reading of section 122(a)apparently preventing such rescission isinconsistent with the intent of Congressin enacting section 112(d)(9), and as aparty to the settlement agreement thecommenter was aware of and supportedthe goal of the agreement that subpart Tbe rescinded.

4. Proposed Amendments to 40 CFRPart 61, Subpart T

4.1 General

Comment: The rationale for addingthe definitions residual radioactivematerial and tailings, while deleting thedefinition of uranium byproductmaterial or tailings is not clear. Theproposed definitions appear to apply toTitle I sites, and significant problemsmight arise if these definitions were tobe applied to Title II sites in the eventof reinstatement of subpart T.

Response: § 61.220(a) as adoptedtoday states that subpart T applies onlyto Title I sites except for thereconsideration and reinstatementprocedures in § 61.226. The phrase oruranium byproduct materials" wasdeleted to further clarify that subpart Tapplies to Title I sites. The phrases"residual radioactive matenals" and"tailings" currently appear in§ 61.220(a). EPA noted in describingDOE sites in the 1989 BID that the

tailings located at these sites containresidual radioactive materials, includingtraces of unrecovered uranium, variousheavy metals and other elements.Background Information Document:Risk Assessments; EnvironmentalImpact Statement; NESHAPs forRadionuclides, Volume 2 at 8-2 (EPA/520/1-89-006-1, September 1989).

EPA believes it appropriate to defineresidual radioactive material andtailings for purposes of this subpart. TheAgency proposed these definitions onDecember 31,-1991 and February 4,1994. (56 FR 67561, 59 FR 5687). Theproposed definitions for these termswere consistent with definitionscontained in UMTRCA. 42 U.S.C. 7911,sections 101(7) and 101(8). The termsare defined in the Final Rule byexpressly referencing UMTRCA, toensure consistency with that Act. TheAgency does not believe thesedefinitions would be problematic if theAgency decided to reinstate subpart Tsince EPA would amend subpart T at.that time to apply to the Title II sitesand to include appropriate definitions.

Comment: The provisions of subpartT, with the exception of § 61.226,should only apply to Title I sites andsome apparent references to Title II sitesremain.

Response: EPA is rescinding subpartT as applied to NRC or Agreement Statelicensed non-operational uranunfmilltailings disposal sites, and thus, doesnot intend any provision of subpart Texcepting § 61.226 and applicabledefinitions, to apply to these sites. EPAhas revised § 61.220(a) to reflect thisintent.

Comment: Section 61.226(c)(2) asproposed suggests that no future actioncan be taken to resolve EPA's concernsafter EPA notifies NRC of its intent toinitiate a rdlemaking to reinstate subpartT

Response: EPA disagrees with thecommenter's suggestion that no furtheraction may be taken to resolve theAgency's then existing-concerns afterEPA notifies NRC of its intent toproceed with a rulemaking to reinstatesubpart T. The purpose of consultingwith NRC about the Agency's concernsprior to notifying NRC and thesubsequent 60-day period is to provideEPA and NRC with an opportunity toaddress EPA's concerns prior to EPAactually initiating such a rulemaking.Additionally EPA expects that the twoagencies would continue consultationsduring the rulemaking process toattempt to resolve any remainingconcerns. Section 61.226(c)(2) wouldnot limit such continued consultations.


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4.2. Provisions for Reconsideration ofthe Rescission and Reinstatement ofSubpart T

Comment: Many commenters,although generally opposed to the ideaof reinstatement of subpart T' favoredincluding provisions for reconsiderationand reinstatement of subpart Ton eithera site-specific or programmatic basis, asset forth in the Agency's 1991 proposalto rescind subpart T.

Response: EPA reviewed the variousreconsideration options proposed inDecember 1991, taking intoconsideration the comprehensive detailsadded to the terms of the MOU by thesettlement agreement finalized in April1993. In its 1994 supplementalproposal, EPA proposed' an additionalreconsideration option that was acombination of the options originallyproposed. EPA did not withdraw theoriginal options, but instead announcedthe Agency's preference for provisionson reconsideration and reinstatement ofsubpart T on both programmatic andsite-specific bases. The Agency hasreviewed carefully all commentssubmitted on the proposedreconsideration provisions and has.revised the regulatory text and preamblewhere deemed appropriate. The Agencybelieves the provisions forreconsideration and reinstatement ofsubpart T adopted today represent acomprehensive approach based onEPA's current evaluation of the NRCregulatory program, and a regulatorystructure designed to address futureevaluations of the' program.

Comment: EPA received a variety ofcomments dealing -with the consistencyof the proposed regulations with thesettlement agreement between EPA,EDF NRDC, AMC, and individual siteowners described above; to which NRCagreed in principle, These commenterssuggested various minor revisions to theregulations.

Response: EPA has adopted certaincomments and suggested minorlanguage changes while rejecting others,depending on whether they effectivelyimplement the goal of rescission ofsubpart T

Comment: Several commenterscontend the site-specific reconsiderationand reinstatement options contained inthe December 1991 proposal would'unduly restrict NRC's waiver authoritysince EPA proposed a non-discretionaryduty to reinstate subpart T on a site-specific basis if NRC exercises its waiverauthority.

Response: As described in theproposals, EPA was concerned over thepotential for deviation from theagreements contained in the MOU and

the requirements of revised subpart DIn response, EPA proposed and is now-adopting- procedural and substantiveprovisions for site-specific andprogrammatic reconsideration andreinstatement if certain criteria are met.In promulgating subpart T, the CAA didnot permit, and EPA did' not consider,site-specific waivers from ultimatecompliance with that standard. Thus, inevaluating NRC's regulatory program,EPA recognized in its December 1991proposal that NRC's waiver authorityunder the AEA might be exercised in amanner not addressed in, the MOU evenafter the revisions to 40' CFR part 192,subpart D and 10 CFR part 40, appendixA have been promulgated and the,licenses amended'. However, EPA has noreason to believe such relaxation of thestandards will actually occur. EPAbelieves the provisions adopted todayrepresent a comprehensive approachbased on EPA's current evaluation of theNRC regulatory program, and aregulatory structure designed to addressfuture evaluations of the program.

Additionally in response' to, the 1994proposal, EPA received subsequentcomments from these commenterssupporting the rescission of subpart T.Furthermore, these commenterssupported the proposed reconsiderationand reinstatement provisions withcertain modifications. Thesecommenters believe the 1994 proposalto rescindsubpart T is consistent withthe terms of the settlement agreementbetween EPA, EDF NRDC, AMC, andindividual sites. Thus, based on theabove reasons for adoptingreconsideration and reinstatementprovisions, and due to the inconsistencybetween the earlier comments. receivedand the subsequent expressions ofsupport for the rescission of subpart T,EPA is rejecting the earlier comments.

Comment: Many commenters to the1991 proposal believe thatreconsideration of the rescission ofsubpart Tand subsequent reinstatementon a programmatic basis isinappropriate if one site fails to comply.

Response: Today's action sets forthprovisions for the reconsideration of therescission of subpart T'andreinstatement of that subpart. Theregulations adopted today inclhdeprovisions for programmatic and site-specific reinstatement with separate butsomewhat parallel criteria. At this time,EPA is not aware of a situation. whichwould cause it to reinstate subpart T ona programmatic basis if one site fails tocomply and would not expect toreinstate subpart T on that basis.However, the Agency cannot predict allfuture circumstances, and' cannot at thistime preclude the possibility of such

reinstatement. EPA does, however,believe the criteria adopted todayappropriately address bothprogrammatic and site-specificreinstatement.

EPA rejects this comment for theabove reasons, and because of theinconsistent responses to the 1991' and1994 proposals received from the samecommenters.

Comment: Some commenters assert,,in response to the 1991 proposal thatEPA lacks the authority, to reinstatesubpart T on a site-specific basis, sincesection 112(d)(9) is concerned' only withNRC's regulatory program.

Response: EPA believes that section,112(d)(9) does not preclude site-specificreinstatement. Section 1.12(d(9), of the'CAA as amended' authorizes EPA todecline to regulate radionuclideemissions from anycategory orsubcategory of facilities licensed by theNuclear Regulatory, Commission Car anAgreement State) if the Admimstratordetermines, by rule, and afterconsultation with the NuclearRegulatory Commission, that theregulatory program established,'by theNuclear Regulatory Commissionpursuant to the Atomic Energy Act forsuch category or subcategory providesan ample margin of safety to protect thepublic health. The text of this sectiondoes not appear to precludereinstatement on a site-specific basis.Section 112(d)(9) allows EPA tocategorize and subcategorize, and forany such category or subcategorydetermine whether the public health isprotected with an ample margin ofsafety by the NRC regulatory programfrom a particular source of radionuclideemissions. EPA believes that under theappropriate circumstances, the Agencymay want to specifically categorizesites. The CAA as amended does notappear to preclude such specificcategories on its face.

EPA rejects this comment for theabove reasons, and because of thecontradictory and inconsistent nature ofthe comments received from the samecommenters in response to the 1991 and1994 proposals, and the commenters'support of EPA's 1994 proposal whichcontains provisions for site-specificreinstatement.

Comment: One commenter appears torecognize EPA's authority for site-specific reinstatement of subpart T butis opposed to EPA's exercise of suchauthority and questions itsappropriateness, since it appears to thecommenter that NRC's existinginspection and enforcement programsaddress site-specific failures.

Response: This commenter does notoppose the proposed reinstatement

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provisions and expresses the clearopinion that EPA committed in thesettlement agreement to includeprovisions for site-specificreconsideration and reinstatement ofsubpart T. EPA anticipates that beforeinitiating a rulemaking to reinstatesubpart T on a site-specific basis, therewould be extensive consultation withNRC. Based on the actions of NRC todate in implementing the terms of theMOU, EPA hopes that all concernscould be resolved. EPA is adopting theprovisions for site-specificreconsideration and reinstatement aspart of a comprehensive approach basedon EPA's current evaluation of the NRCregulatory program, and a regulatorystructure designed to address futureevaluations of the program.

Comment: Some commenters contendthat in reconsidering the rescission andreinstatement of subpart T on aprogrammatic basis, section 112(d)(9)requires EPA to determine whetherpublic health is threatened by thefailure of a particular site to meet the 20pCi/m 2-s flux standard.

Response: The Agency disagrees withthe commenters' interpretation ofsection 112(d)(9) as applying toprovisions for reinstatement. Section112(d)(9) does not establish the criteriafor reinstatement, rather it authorizesEPA to decline to regulate radionuclideemissions from NRC or Agreement Statelicensees if the Administratordetermines, by rule, and afterconsultation with the NRC, that the NRCregulatory program protects the publichealth with an ample margin of safetyUnder section 112(d)(9), EPA mayrescind subpart T if EPA determinesthat the NRC regulatory programprovides an equivalent level of publichealth protection (i.e., an ample marginof safety) as would implementation ofsubpart T in order to rescind subpart T.Section 112(d)(9) does not limit EPA'sauthority to reinstate subpart T. EPAbelieves the criteria adopted todayappropriately address bothprogrammatic and site-specificreinstatement.

Additionally, this comment wasreceived in response to the 1991proposal. EPA rejects this comment forthe above reasons, and because of theinconsistent responses to the 1991 and1994 proposals received from the samecommenters.

Comment: Some commenters contendin response to the 1994 proposal thatEPA should not treat reinstatement atthe Administrator's initiative on thesame terms as reinstatement based on athird party petition. These commentssuggest revising the proposedregulations to reflect the differences

between the two, including adding aprovision for a third possible result (i.e.,a finding that NRC is in compliance).

Response: EPA disagrees with thecommenters' suggestion thatreinstatement at the Administrator'sinitiative should be treated differentlyfrom reinstatement based on a thirdparty petition.

The commenters are basing theircontentions on the terms of thesettlement agreement which the Agencyentered into with EDF NRDC, AMC andindividual sites in February 1993. Thatagreement adds comprehensive detailsto the regulatory approach of the MOUbetween EPA, NRC and the affectedAgreement States. EPA has reviewed theterms of the settlement agreementpertaining to the reconsideration ofrescission and reinstatement of subpartT The settlement agreement specifies atparagraph III.e. that upon completion ofa rulemaking reconsidering therescission of subpart T EPA may (1)reinstate subpart T on a programmaticbasis if certain criteria are met; (2)reinstate subpart T-on a site-specificbasis if certain criteria are met; or (3)issue a finding that NRC is incompliance with certain criteria andthat reinstatement of subpart T is notappropriate.

The Agency believes the criteria in§ 61.226(a) for requiring reinstatementupon completion of a reconsiderationrulemaking should apply whether therulemaking is at the Administrator'sinitiative or based on a third partypetition. These criteria are: (1) Failureby the NRC or an Agreement State on aprogrammatic basis to implement andenforce, in significant part, theregulations governing the disposal ofuranium mill tailings promulgated byEPA and NRC or the tailings closureplan (radon) requirements (i.e.,contained in the license) establishingmilestones for the purpose of emplacinga permanent radon barrier that Willachieve compliance with the 20 pCi/m 2-s flux standard; or (2) failure by NRC oran affected Agreement State on a site-specific basis to achieve compliance bythe operator of the site or sites withapplicable license requirements,regulations, or standards implementedby NRC and the affected AgreementStates. Additionally EPA would not berequired to reinstate subpart T under§ 61.226(a) unless those failures mayreasonably be anticipated tosignificantly interfere (i.e., more than deminimis) with the timely emplacementof a permanent radon barrierconstructed to achieve compliance withthe 20 pCi/m 2-s flux standard aturanium mill tailings disposal sites.

The commenters contend that thenature of the party initiating thereconsideration rulemaking shoulddetermine whether reinstatement isdiscretionary (for initiation by theAdministrator) or mandatory (for a thirdparty petition), apparently based on adesire to provide EPA with greaterflexibility to address concerns overfailures of NRC or an Agreement Stateto implement or enforce applicablerequirements. The Agency believes thatthe nature of the initiating partyproperly may trigger differentprocedural requirements. For example,when a private party initiates theprocess by filing a petition, EPA hasestablished a requirement that it takefinal action on such a petition within aset time period. However, EPA believesthat the nature of the party initiating theprocess leading to a rulemaking is notrelevant to deciding whether toreinstate, assuming the relevant criteriafor reinstatement are met under eithercircumstance. EPA believes that if theAdministrator determines, based on therecord, that (1) NRC or an AgreementState failed on a programmatic basis toimplement and enforce, in significantpart, the regulations governing thedisposal of uranium mill tailingspromulgated by EPA and NRC or thetailings closure plan (radon) (i.e.,contained in the license) requirementsestablishing milestones for the purposeof emplacing a permanent radon barrierthat will achieve compliance with the20 pCi/m 2-s flux standard or (2) NRC oran affected Agreement State failed insignificant part, on a site-specific basis,to achieve compliance by. the operator ofthe site or sites with applicable licenserequirements, regulations. or standardsimplemented by NRC and the affectedAgreement States, then there would bethe same reason for the Agency toreinstate subpart T whether the processwas initiated by a private petition or at.,EPA's own initiation. If the Agencymakes the determination required toreinstate subpart T based onreconsideration of rescission at theAdministrator's initiative and suchreinstatement is considereddiscretionary the Agency is not awareof circumstances wh'ch would lead theAgency not to reinstate subpart T. Inany case, if the Administrator shouldmake the determination in § 61.226(a)(1) or (2) but decide in her discretionnot to reinstate subpart T in aproceedinginitiated by theAdministrator, then the Agencybelievesit would promptly receive third partypetitions based on the finding made atthe Administrator's initiative, and the.Agency would then be obligated to


Federal Register / Vol. 59, No. 135 / Friday, July 15, 1994 / Rules and Regulations

reinstate subpart T. Additionally, uponcompletion of the reconsideration ofrescission pursuant to § 61.226(c)-theAdministrator may in her discretionissue a finding that reinstatement of thissubpart is not appropriate if theAdministrator makes certain findings.However, the discretion to issue such afinding is not relevant to the situationwhere the Administrator has found thatthe criteria for reinstatement havealready been met, since the'two findingsare mutually exclusive. Finally, thecommenters apparently believe thatreinstatement at the Administrator'sinitiative should be discretionary so thatEPA and NRC can continue attempts toresolve concerns and thereby avoid theneed to reinstate. EPA believes that suchongoing consultation is not precludedby the regulations adopted today, andEPA expects the agencies wouldcontinue consultations and make allpossible efforts to resolve the concernsduring the rulemaking process. Theregulation does not establish a timelimit for final agency action in this case,and the agency would have discretion toextend the rulemaking if appropriate tocontinue such inter-agencyconsultations.

EPA agrees with the commenters thatthe settlement agreement provides anadditional possible result upon-completion of a reconsiderationrulemaking initiated by theAdministrator, namely that the Agencymay issue a finding that reinstatement'isnot~appropriate if the Agency finds: (1)NRC and the affected Agreement Statesare on a programmatic basisimplementing and enforcing, insignificant part, the regulationsgoverning the disposal of uramum milltailings promulgated by EPA and NRC'or the tailings'closure plan (radon) (i.e.,contained in the license) requirementsestablishing milestones for the purposeof emplacing a permanent radon barrierthat will achieve compliance with the20 pCi/m 2-s flux standard; or (2) NRC oran affected. Agreement State are, insignificant part, on a site-specific basisachieving compliance by the operator ofthe site or sites with applicable licenserequirements, regulations, or standardsimplemented by NRC and the affectedAgreement States. EPA believesaddition of this provision to theregulations will clarify the existence ofthis option and has revised §,61.226(a)of the reinstatement provisions toprovide for this additional result.

Comment: One commenter-assertsthat EPA's characterization of itsauthority to reconsider rescission ofsubpart T in the preamble to the 1.994proposal appears overly broad andreinstatement should be clearly limited

to those conditions proposed in§ 61.226(a).

Response: EPA believes that theprovisions for reconsideration ofrescission adopted in § 61.226 representa comprehensive approach under boththe MOU and the settlement agreement.The provisions include substantive andprocedural provisions forreconsideration of rescission and thereinstatement of this subpart on.aprogrammatic or site-specific basis. Theprovisions include the obligation toreinstate subpart T if certain conditionsare met, procedures for reconsiderationand provisions authorizing theAdministrator to initiatereconsideration. Although.the Agencydoes not intend to reconsider itsdecision'to rescind subpart T for a sitewhich is in fact meetingthe 20 pCi/in 2-s flux standard absent other factors thatwould indicate the need forreinstatement, the Agency recognizesthat a situation may anse wherereconsideration of rescission isnevertheless appropriate. For example,EPA might consider. initiatingreconsideration under § 61.226 where asite is meeting-the 20 pCi/m 2-s fluxstandard'if there are factors which showthat NRC or an Agreement State failedto implement and enforce in significantpart, the applicable regulations, e.g.,clear failure of that site to emplace thepermanent radon bamerwithin the timeperiods established in implementingsubpart D, EPA is not aware of*circumstances under which EPA mighireconsider rescission for a-site that ismeeting the 20 pCi/m 2-s flux standard,other than those indicating-thatithemilestone for emplacement of thepermanent-radon barrier has passed, thedelay was not approved by NRC-or anAgreement State and the licensee failedto emplace the permanent radon barrer,and there are indications that thelicensee does-not plan to emplace thebarrier and NRC or an Agreement Statedoes not plan to enforce thisrequirement. EPA does not envisionsuch an unusual situation arising. EPAbelieves the actions taken to datebyNRC, including the license amendments'and the final amendments to the:NRCconforming regulations, as describedabove, reflect the good faith effort on-thepart of NRC and the Agreement Statesto Implement the MOU and.EPA'ssubpart D regulations;-However, theAgency, is not now.in the positiontodetermine that there could be nocircumstances which might -mdi pate theneed -to reconsider the rescission ofsubpart T for a site that is in factmeeting the 20 pCi/m 2-s flux standard.

Additionally, EPA reserves the rightto initiate.reinstatement of subpart T if

appropnate, since although the § 61.226provisions adopted today establish anobligation for the Administrator toreinstate if certain conditions are met,they are-not intended to be the exclusivebasis for reinstatement. Under theregulations adopted today, EPA has theauthority to reconsider-the rescission ofsubpart T at the Administrator's

'initiative and upon the petition of athird party. The Agency is obligated toreinstate subpart Ton a programmaticbasis if the Administrator determines byrulemaking, based on the record, thatNRC or an, affected Agreement State hasfailed on a programmatic basis to.implement and enforce, in significantpart, the regulations governing thedisposal'of uramum-mill tailingspromulgated by EPA and NRC or thetailings closure plan (radon),rquirements establishing milestones forthe purpose of emplacing a permanentradon barrierthat will achievecompliance with the 20 pCi/m 2-s fluxstandard. Additionally, EPA is obligatedto reinstate subpart T on a site-specificbasis as applied to owners and operatorsof non-operational uranium mill tailingsdisposal sites if the Administratordetermines by rulemaking, based on therecord, that NRC or an affectedAgreement State has failed, in significantpart on a site-specific basis to achievecompliance by the operator of the site orsites with applicable licenserequirements, regulations,: or standards

-Implemented by NRC and the affectedAgreement States. The obligation toreinstate subpart T is limited to thosefailures which may reasonably be.anticipated to significantly interfereWith timely emplacement of thepermanent radon barner-constructed toachieve compliance with the 20 pCi/m2 -s'flux standard. At this time, EPA is notaWare of circumstances where it wouldconsider reinstating subpart T -if thefqilure does not significantly interfere-with emplacement of the required .permanent.radon barrier. However, EPAreserves the right to reconsider ther sci~siornwhere the criteria of-.§61.226(a) have not been met,. under theAgency's authority to issue NESHAPs -

contained m section. 112 of the CAA.For example, even if the NRC or anAgreement State is implementing and.enforcing, in significant.part, theapplicable regulations and licenseamendments,-the Agency may decide to-reconsider the rescission if newizformation indicated that the public-health is not-protected with an amplemargin of safety. The Agency cannotpredict all future-circumstances andcannot at this time preclude thepossibility of such reconsideration and

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possible reinstatement. Despitereserving this authority, the Agencybelieves this is a theoretical situationand has no current intention to act onthis authority.

5. Miscellaneous

5.1. Monitoring

Comment: EPA must ensure. that thesingle monitoring event currentlyrequired by subpart T would remain, ineffect if subpart T is reinstated,particularly in light of the recentlyproposed "enhanced monitoring'regulations.

Response: Subpart T currentlyrequires monitoring to occur only onceto demonstrate compliance with the 20pCi/m 2-s flux standard of § 61.222.However, EPA published a proposedEnhanced Monitoring Program onOctober 22, 1993, which would requireowners and operators of sources subjectto existing NESHAPs' to performenhanced monitoring at emissions units.(58 FR 54648). It appears that theproposal applies the enhancedmonitoring requirements for hazardousair pollutants to all emissions unitswhich would be reqired to. obtain anoperating permit. (54 FR 54651, October22, 1993). Additionally, althouglhasbestos demolition and renovationprojects, (subpart M) were exemptedfrom the enhanced monitoringprovisions, it does not appear subpart Twould be exempted. The rationale forthe proposed asbestos demolitionexemption, that EPA was not requiringstates to permit those sources and the.permit program is the establishedmethod for implementing the enhancedmonitoring program, does not appear toapply to uranium mill tailings disposalsites. It would be premature for EPA todetermine today that in the eventsubpart T is reinstated for Title IL sites,the proposed enhanced monitoringprovisions would not apply.

5.2 Discussion of 40 CFR part 192,Subpart D Extension Provisions

Comment: EPA's discussion of theextension provisions contained in 40CFR 192.32(a)(3)(ii), (iii) is confusingand should be revised to equallyconsider the possibility of extensions forfactors beyond the control of thelicensee.

Response: EPA believes its discussionof the extension provisions contained inthe Agency's amendments to itsUMTRCA regulations at 40 CFR192.32(a)(3)(ii) and (iii) does not needfurther clarification. EPA disagrees withthe commenter's claim that an extensionbased upon "factors beyond the controlof the licensee" should be considered

equally with the delay provisionsencompassed in EPA's UMTRCAregulations. 40 CFR 192.32(a)(3)(ii)and(iii) specifically provide that NRC maygrant an extension on either one of twobases. However, an extension due to"factors beyond the control of thelicensee" is implicit in the definition of"as expeditiously as practicable?' Theterm "factors beyond the control of thelicensee" would be one element for NRCto evaluate in reconsidering a priordecision establishing a date foremplacement of the permanent radonbarrier that meets the definition of "asexpeditiously as practicable. A changein any one of the factors considered inestablishing a date thatmeets the "asexpeditiously as practicable" standardwould not automatically lead to anextension, rather NRC would need toevaluate all the relevant factors under§ 192.32(a)(3)(i) before it could change apreviously established milestone or datefor emplacement of the permanentradon barrier.

5.3 Discussion of Amendment of NRCand Agreement State Licenses

Comment: There is some concern thatEPA may be over scrutinizing the NRClicense amendment process, particularlywith respect to the Atlas site located inMoab, Utah.

Response: In order to determine thatthe NRC regulatory program protects thepublic health with an ample margin ofsafety and rescind subpart T, EPA mustconclude, inter ala that NRC andi theaffected Agreement States are or will beimplementing and enforcing the licenserequirements (tailings closure plan(radon)) that establish the milestones foremplacement of a permanent-radonbarrier that will achieve compliancewith the 20 pCi/m 2-s flux standard asexpeditiously as practicable consideringtechnological feasibility. The Agency isapplying the same basic approach inreviewing all of the licenseamendments. Presently, Atlas is theonly site where the site license has notyet been amended, but the tailingsclosure plan (radon) milestones are injeopardy. There is a wealth ofinformation for EPA to review due tothe unique circumstances of this site.

EPA is interested in the Atlas sitebecause the license amendmentincorporating the reclamation plan hasnot yet been completed, and this mayjeopardize the dates contained in thetailings closure plan (radon). The MOUestablished a target closure date of 1996.EPA recognizes that this is the only sitefor which a license amendmentincorporating the. reclamation plan hasnot been established, thereby possiblyimpacting the dates currently contained

in the approved tailings closure plan(radon) adopted pursuant to the MOUand EPA's evised subpart Dregulations, andthat the circumstancessurrounding the delay are unique. EPAbelieves NRC, the affected AgreementStates and the licensees have acted ingood faith to amend the site licenses.

The Agency does not believe it isoverly scrutinizing the licenseamendment process. The Agencybelieves its interest in the. Atlas sitereflects EPA's commitment to andreview of the applicable criteria infinally determining that NRC and theaffected Agreement States am or will beimplementing and enforcing the licenserequirements (tailings closure plan(radon)) to achieve compliance with'the20 pCiim2-s flux standard.. EPA ismerely reviewing current informationand monitoring the progress of NRC inimplementing.the requirements ofsubpart D. The Agency has notsuggested any course of action to NRC'

5.4 Public ParticipationComment: An industrial site, other

than a uramum mill tailings disposalsite, commented that publishing anotice in the Federal Register does notprovide sufficient notice for citizens ofcommunities where uranium milltailings disposal sites are located.

Response: The EPA made every effortto notify the affected public of theproposed rulemakmg action. EPApublished a NPR on December 31, 1991,and a supplement to that proposal onFebruary 7 1994, in the FederalRegister. There was a public commentperiod after each proposal; publichearings were held in Washington, DCand Santa Fe, NM after the 1991proposal and no request for a heanngwas received after the 1994 proposal.EPA believes it has afforded the publicwith full opportunity to participate inthis proceeding, as well as satisfied allsuch requirements under Clean Air Actsection 307

V Miscellaneous

A. Disposition of Pending JudicialChallenges and Petitions forReconsideration

By taking today's action rescindingsubpart T as applied to owners andoperators of uranium mill tailingsdisposal sites regulated under Title II ofUMTRCA, the stay of subpart, T is nolonger effective. Thus, the challenge tothe stay of subpart T filed by EDF ismoot, and EPA expects that the pendinglitigation will be promptly resolved bydismissal. Based on the terms of thesettlement agreement between EDFNRDC, AMC, individual sites and EPA


Federal Register / VoL 59, No.. 135 1 Friday, Jiily- 15, 1.994 V, R.ad§e antd" Regulations 3

as described above, and based ontoday.'s rescission of subpat T,.AMC'spending administrative petition forreconsideration of subpart T is deniedas moot. Additionally, all other pendingpetitions for reconsideration of subpartT as applied to Title II sites are deniedas moot-umder today's action.

B. Paperwork Reduction. ActThere are no information collection

requirements in this rule.

C. Executive Order 12866Under. Executive Order 12866, (58 FR

57735, October,4, 1993) the Agency,must determine whether this regulation,if promulgated, is "significant" andtherefore subject to OMB review and thereqiuirements of the Executive Order,.The Order defines "significantregulatory action" as one that is likely....to result in a rule that may:,

.(1 Have an annual effect on theeconomy of $100 million or more oradversely affect in a material way the-economy, a sector of the economy,productivity, cQmpetition, jobs, theenvironment, public health or safety, orState, localor tribal governments orcommunities;

(2) Create a serious inconsistency orotherwise interfere with an action takenorplanned by another agency;

(3) Materially alter the budgetaryimpact of entitlements, grants, user fees,or loan programs or the rights andobligations of recipients thereof;.or

(4) Raise novel legal or policy issuesarising out of legal mandates, thePresident's priorities, or theprinciplesset forth in the Executive Order.

This action is not a significantregulatory action as that term is definedin Executive Order 12866, since it willnot result in-an annual effect on the.economy of $100 million or anotheradverse economic impact; it does notcreate a serious inconsistency orinterfere with another agency's action; itdoes not materially alter. the budgetaryimpacts of entitlements, grants, userfees, etc., and it does not raise novellegal or policy issues. Thus, EPA- hasdetermined that rescinding subpart T asit applies to owners and operators ofuranium mill tailings disposal sites thatare licensed by the NRC or an affectedAgreement State is not a "significant,regulatory action" under the terms ofExecutive'Order 12866 and is thereforenot subject to OMB review.

D. Reguldtory Flexibility AnalysisSection 603 of the Regulatory

Flexibility Act, 5 U.S.C. 603, requiresEPA to prepare and make available forcomment an "initial regulatoryflexibility analysis" which describes-the

effect of.this rule on small busines,entities. However, section 604(b) of theAct provides that an analysis not borequired when the head of an Agencycertifies that the rule will not, ifpromulgated, have a significant,economic impact on a substantialnumber of small entities.

Most firms that own uranium- milltailings piles are divisions orsubsidiaries of major U.S. andinternational corporations. Many areparts of larger diversified mining firmswhich are engaged-in a number of rawmaterials industries; the disposal ofuranium mill tailings piles representsonly a small portion of their overall,operations. Others are owned by' majoroil companies and electric utilitieswhichwere'engaged in horizontal and

vertical integration, respectively duringthe industry's growth phase in the 1960sand 1970s.

It was.found in the 1989 rulemakingthat there was no significant impact onsmall business entities. There has been.no change in this, and no new-tailingspileshave been constructed since 1989.I certify that this final rule to rescind'40CFR part 61, subpart T as applied toowners and operators of NRC licensednon-operational uranium mill'tailingsdisposal sites, will not have significanteconomic impact on a substantialnumber of small entities.

List of Subjects in 40 CFR Part 61

Environmental protection, Airpollution control, Arsenic, Asbestos,:Benzene, Beryllium, Hazardoussubstances, Mercury, Radionuclides,Radon, Reporting and recordkeepingrequirements, Uranium, Vinyl chloride.

Dated: June 29, 1994.Carol M. Browner,Administrator,

Pait 61 of chapter I of title 40of theCode ofFederal Regulations is amendedas follows:

PART 61-(AMENDED)

1. The authority citation for part 6.1. isrevised to read as follows:

Authority: 42 U.S.C. 7401,7412,7414,7416, 7601.

2. Section 61.220 is amended byrevising paragraph,(a) and removing and:reserving paragraph (b) to read asfollows:

§ 61.220 Designation of facilities.(a) The provisions of this subpart

apply to owners and operators of allsites that are used for the disposal oftailings, and that managed residualradioactive material during andfollowing the processing of uranium

ores, commonly referred to-as uranium,nills and their associated tailings, thatare listed in, or designated by theSecretary of Energy, under Title I of the,Uramm,Mill Tailings RadiationControl Act of 1978, except § 61.226 ofthis subpart which applies to ownersand operators of all sites that areregulated under Title II of the UraniumMill Tailings Radiation Control Act of1978 ".

(b) IReserved]3. Section 61.221 is amended by

revising the introductory text, revisingparagraphs (a) and (c), and by addingparagraphs (d) and (e) to read as follows:

§61.221 Delinitions.As used in this subpart, all terms not

defined here have the meanings giventhem in the Clean Air Act or subpart Aof Part 61. The, following terms shallhave the following specific meanings:

(a)Long term stabilization means theaddition of material on a uranium mill'tailings pile for the purpose of.ensunngcompliance-with the requirements of,40CFR 192.02(a). These actions shall beconsidered complete when-the NuclearRegulatory Commission determines thatthe requirements of 40 CFR 192.02(a).have been met.

(c) Residual radioactive materialsshall have the same meaning as insection 101(7) of the Uranium MillTailings Radiation Control Act of 1978,42 U.S.C. 7911(7).

(d) Tailings shall have the samemeaning as in section 101(8) of theUranium Mill Tailings RadiationControl Act of 1978, 42 U.S.C. 7911(8).

?(e) In significant part means in amanner that is not reasonably expectedtomaterially (Le., more than deminimis) interfere with compliancewith the 20 pCi/m2-s flux standard asexpeditiously as practicable consideringtechnological feasibility (includingfactors' beyond the control of thelicensee).

4. Section 61.222 is amended byrevising paragraph (b) to read as follows:

§ 61.222 Standard.

'(b) Once a uranium mill tailings pileot impoundment ceases to beoperational it must be disposed of andbrought into compliance with thisstandard within two years of theeffective date of the standard. If it is notphysically possible for an owner oroperator to complete disposal withinthat time, EPA shall, after consultationwith the owner or operator, establish acompliance agreement which willassure that disposal will be completedas quickly as possible,

li ll l I I I I ll I I I II I I I I I I

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5. Section 61.223 is amended byrevising paragraph (b1(5) to read asfollows:

§ 61.223 Compliance procedures.

(b)(5) Each report shall be signed and

dated by a public official in charge ofthe facility and contain the followingdeclaration immediately above thesignature line:

I certify under penalty of law that I havepersonally examined and am familfiar withthe information submitted herein.and basedon my inquiry of those individualsimmediately responsible for obtaining theinformation. I believe that the submittedinformation is true. accurate and complete. Iam aware that there are significant penaltiesfor submitting false information includingthe possibility of fine and imprisonment. See.18 U.S.C. 1001.

6. Section 61.226 is added to subpartT to read as follows:

§ 61.226 Reconsideration of rescissionand reinstMement of this subpart.

(a) Reinstatement of this subpart uponcompletion of reconsideration ofrescission.

(1) The Administrator shall reinstate40 CFR part 61, subpart T as applied toowners and operators of non-operationaluranium mill tailings disposal sites thatare licensed by the NRC or an affectedAgreement State if the Administratordetermines by rulemaking, based on therecord, that NRC or an affectedAgreement State has.

(i) Failed on a programmatic basis toimplement and enforce, in significantpart, the regulations governing thedisposal of uranium mill tailingspromulgated by EPA and NRC or thetailings closure plan (radon) (i.e.,contained in the license) requirementsestablishing milestones for the purposeof emplacing a permanent radon barrierthat will achieve compliance with the20 pCi/m 2-S flux standard; and

(ii) Those failures may reasonably beanticipated to significantly interfere(i.e., more than de minimis) with thetimely emplacement of a permanentradon barrier constructed to achievecompliance with the 20 pCi/m --s fluxstandard at the uranium mill tailingsdisposal site.

(2) The Administrator shall reinstate40 CFR part 61 subpart T on a site-specific basis as applied to owners andoperators of non-operational uraniummill tailings disposal sites that are

licensed by the NRC or an affectedAgreement State if the Administratordetermines by rulemaking, based on therecord:

(i) That NRC or an affected AgreementState has failed in significant part on asite-specific basis to achieve complianceby the operator of the site or sites withapplicable license requirements,regulations, or standards implementedby NRC and the affected AgreementStates; and

(ii) Those failures may reasonably beanticipated to significantly interfere(i.e., more than de minimis) with thetimely emplacement of a permanentradon barrier constructed to achievecompliance with the 20 pCi/m 2-s fluxstandard at the uranium mill tailingsdisposal site.

(3) Upon completion of thereconsideration of rescission pursuantto § 61.226(c) the Administrator mayissue a finding that reinstatement of thissubpart is not appropriate if theAdministrator finds:

(i) NRC and the affected AgreementStates are on a programmatic basisimplementing and enforcing, insignificant part, the regulationsgoverning the disposal of uranium milltailings promulgated by EPA and NRCor the tailings closure plan (radon) (i.e.,contained in the licensel requirementsestablishing milestones for the purposeof emplacing a permanent radon barrierthat will achieve compliance with the20 pCi/m 7-s flux standard, or

(ii) NRC or an affected AgreementState are on a site-specific basis, insignificant part, achieving complianceby the operator of the site or sites withapplicable license requirements,regulations, or standards implementedby NRC and the affected AgreementStates.

(b) Procedures to Petition forReconsideration of Rescission of thissubpart.

(1) A person may petition theAdministrator to reconsider therescission and seek reinstatement of thissubpart under § 61.226(a).

(2) EPA shall summarily disriss apetition to reconsider rescission andseek reinstatement of this subpart under§ 61.226(a)(11. (programmatic basis),without prejudice, unless the petitionerdemonstrates that written notice ofthealleged failure(s) was provided to NRCat least 60 days before filing the petitionwith EPA. This notification shallinclude a statement of the grounds forsuch a petition and this notice

requirement may be satisfied by but isnot limited to, submLssions or pleadingssubmitted to NRC during a proceedingconducted by NRC.

(3) EPA shall summarily disnuss a.petition to reconsider rescission andseek reinstatement of this subpart under§ 61.226(a)(2) (site-specific basis),without prejudice, unless the petitionerdemonstrates that a written request wasmade to NRC or anaffected AgreementState for enforcement or other relief atleast 60 days before filing its petitionwith EPA, and unless the petitioneralleges that NRC or the affectedAgreement State failed to respond tosuch request by taking action, asnecessary to assure timelyimplementation and enforcement of the20 pCi/m 2-S flux standard.

(4) Upon receipt of a petition under§61.226(b)(1) that is not dismissed,under § 61.226(b)(2) or (b)(3), EPA willpropose to grant or deny an authorizedpetition to reconsider, take commentson the Agency's proposed action, andtake final action granting or denyingsuch petition to reconsider within 300days of receipt.

(c) Reconsideration of Rescission ofthis Subpart Initiated by theAdministrator.

(1) The Administrator may initiatereconsideration of the rescission andreinstatement of this subpart as appliedto owners and operators of non-operational uranium mill tailingsdisposal sites if EPA has reason tobelieve that NRC or an affectedAgreement State has failed toimplement and enforce, in significantpart, the regulations governing thedisposal of uranium mill tailingspromulgated by EPA and NRC or thetailings closure plan (radon)requirements establishing milestones forthe purpose of emplacing a permanentradon barrier that will achievecompliance with the 20 pCilm Z-s fluxstandard.

(2) Before the Administrator initiatesreconsideration of the rescission andreinstatement of this subpart under§ 61.226(c)(1), EPA shall consult withNRC to address EPA's concerns and ifthe consultation does not resolve theconcerns, EPA shall provide NRC. with60 days notice of the Agency's intent toinitiate rulemaking to reinstate thissubpart.

IFR Doc. 94-17089 Filed 7-14-94: 8:45 amilBILLING CODE 6560-60-P


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