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###### Nuclear Regulatory Commission

          - [NRC-2010-0073]

# AGENCY:

Nuclear Regulatory Commission.

# ACTION:

Notice of opportunity for public comment.

# SUMMARY:

                        The U.S. Nuclear Regulatory Commission (NRC) is proposing to issue a regulatory issue summary (RIS) to re-affirm its existing interpretation of the regulatory policy regarding the scope and corresponding dollar amount of the long-term surveillance charge (LTSC) to be paid to the general treasury of the United States, or to an appropriate State agency. This LTSC is paid prior to the transfer of title to a uranium mill, covered by Title II of the Uranium Mill Tailings Radiation Control Act (UMTRCA) of 1978 (UMTRCA Title II site), to the long-term custodian for long-term care and license termination. This                         **Federal Register**                         notice is available through the NRC's Agencywide Documents Access and Management System (ADAMS) under accession number ML102080569.                    

# DATES:

Comment period expires May 5, 2011. Comments submitted after this date will be considered if it is practical to do so, but assurance of consideration cannot be given except for comments received on or before this date.

# ADDRESSES:

You may submit comments by any one of the following methods. Please include Docket ID NRC-2011-0073 in the subject line of your comments. Comments submitted in writing or in electronic form will be posted on the NRC website and on the Federal rulemaking website Regulations.gov. Because your comments will not be edited to remove any identifying or contact information, the NRC cautions you against including any information in your submission that you do not want to be publicly disclosed.

The NRC requests that any party soliciting or aggregating comments received from other persons for submission to the NRC inform those persons that the NRC will not edit their comments to remove any identifying or contact information, and therefore, they should not include any information in their comments that they do not want publicly disclosed.

*Federal Rulemaking Web site:*                         Go to                         *http://www.regulations.gov*                         and search for documents filed under Docket ID NRC-2011-0073. Address questions about NRC dockets to Carol Gallagher 301-492-3668; e-mail                         *Carol.Gallagher@nrc.gov.*

*Mail comments to:*                         Cindy Bladey, Chief, Rules, Announcements, and Directives Branch (RADB), Office of Administration, Mail Stop: TWB-05-B01M, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, or by fax to RADB at 301-492-3446.                    

You can access publicly available documents related to this notice using the following methods:

NRC's Public Document Room (PDR): The public may examine and have copied for a fee publicly available documents at the NRC's PDR, Room O1 F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.

                        NRC's Agencywide Documents Access and Management System (ADAMS): Publicly available documents created or received at the NRC are available electronically at the NRC's Electronic Reading Room at                         *http://www.nrc.gov/​reading-rm/​adams.html.*                         From this page, the public can gain entry into ADAMS, which provides text and image files of NRC's public documents. If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the NRC's PDR reference staff at 1-800-397-4209, 301-415-4737, or by e-mail to                         *pdr.resource@nrc.gov.*

*Federal Rulemaking Web site:*                         Public comments and supporting materials related to this notice can be found at                         *http://www.regulations.gov*                         by searching on Docket ID: NRC-2011-0073.                    

# FOR FURTHER INFORMATION CONTACT:

                        Mr. Roman A. Przygodzki at 301-415-5143 or by e-mail at                         *roman.przygodzki@nrc.gov.*

# SUPPLEMENTARY INFORMATION:

## Draft Regulatory Issue Summary 2010-XX, “Licensee Justification of Long-Term Surveillance Charge”

### Addressees

                    All holders of operating licenses for conventional or heap leach uranium recovery facilities, all holders of licenses for conventional or heap leach uranium recovery facilities in                           ( print page 18808)                        decommissioning, and all companies that have submitted applications to construct new conventional or heap leach uranium recovery facilities or letters of intent to submit such applications, and all UMTRCA Title II sites.                

### Intent

NRC is issuing this RIS to reiterate its policy regarding the Long-Term Surveillance Charge (LTSC) for the applicable uranium recovery facilities. This RIS, among other things, discusses NRC's existing policy regarding the scope and corresponding dollar amount of the LTSC to be paid to the General Treasury of the United States, or to an appropriate State agency, prior to the transfer of title to the long-term custodian for long-term care and license termination. No specific action or written response is required.

### Background

                    Both conventional and heap leach uranium milling processes generate mill tailings, which are primarily a sandy waste material containing the radioactive decay products from the uranium chains (mainly the Uranium-238 chain) and heavy metals. During operations, the tailings are deposited in a tailings impoundment or disposal cell. The goal of the tailings impoundment or disposal cell is to provide long-term protection of human health and safety, to protect the environment, and to isolate the tailings without ongoing maintenance. Specifically, Criterion 1 to Appendix A of Title 10 of the                     *Code of Federal Regulations*                     (CFR), Part 40 (10 CFR 40) states that:                 

The general goal or broad objective in siting and design decisions is permanent isolation of tailings and associated contaminants by minimizing disturbance and dispersion by natural forces, and to do so without ongoing maintenance.

Criterion 6 to Appendix A of 10 CFR Part 40 states that licensees are required to place a cover over the tailings or wastes “…which provides reasonable assurance of control of radiological hazards…for 1,000 years, to the extent reasonably achievable, and, in any case, for at least 200 years.”

Prior to license termination, a Long-Term Surveillance Plan (LTSP) is submitted to NRC for review. According to 10 CFR 40.28(b)(2) and 10 CFR 40.28(b)(3), cited below, groundwater monitoring must be considered in the LTSP, if required:

(b)(2) A detailed description, which can be in the form of a reference of the final disposal site conditions, including existing ground water characterization. This description must be detailed enough so that future inspectors will have a baseline to determine changes to the site and when these changes are serious enough to require maintenance or repairs.

                        (b)(3) A description of the long-term surveillance program, including proposed inspection frequency and reporting to the Commission (as specified in appendix A, Criterion 12 of this part),                         *frequency and extent of ground water monitoring if required,*                         appropriate constituent concentration limits for ground water, inspection personnel qualifications, inspection procedures, recordkeeping and quality assurance procedures. (emphasis added)                     

Additionally, prior to license termination, all operators of uranium mills are required to pay an appropriate LTSC to the General Treasury of the United States, or the appropriate State agency, as stated in the following excerpt from Criterion 10 to Appendix A of 10 CFR Part 40:

A minimum charge of $250,000 (1978 dollars) to cover the costs of long-term surveillance must be paid by each mill operator to the general treasury of the United States or to an appropriate State agency prior to the termination of a uranium or thorium mill license.

The LTSC is a one-time charge, in an amount such that an assumed 1 percent annual real interest rate would provide interest income sufficient to cover the annual costs of site surveillance incurred by the long-term custodian. Specifically, the intent of the minimum LTSC is to cover costs of a “passive monitoring” approach to site surveillance, whose assumptions are described in NUREG-0706, Vol. I, “Final Generic Environmental Impact Statement of Uranium Milling Project M-25,” dated September 1980 (Agencywide Documents Access and Management System [ADAMS] accession number ML032751663); Appendix R, “Costs of Post-Operational Site Surveillance” of NUREG-0706, Vol. III, “Final Generic Environmental Impact Statement of Uranium Milling Project M-25—Appendices G-V,” dated September 1980 (ADAMS accession number ML032751669); and “[NRC] Staff Guidance on the License Termination Process for Conventional Uranium Mill Licensees,” dated November 27, 1996 (ADAMS accession number ML100840671).

Recently, the U.S. Department of Energy (DOE) raised an issue to the NRC regarding the minimum LTSC amount paid. Specifically, DOE inquired as to what long-term care activities would merit an increase in the LTSC above the minimum amount. DOE stated that, based on actual costs of site surveillance and control activities, the minimum amount paid as the LTSC may not be sufficient to cover the costs for the needed site surveillance and control activities, in certain cases. For instance, sites with alternate concentration limits (ACLs) may require increased groundwater monitoring not covered by the “passive monitoring” approach assumed in the development of the minimum LTSC.

In a letter dated June 17, 2010, NRC responded to DOE's query with regard to what long-term care activities would merit an increase in the LTSC (ADAMS accession number ML100670337). It is the intent of this RIS to further clarify the matters discussed in that letter, as well as state NRC's intent with regard to the review of proposed LTSCs and financial assurance.

### Summary of Issue

Pursuant to Criterion 10 to Appendix A of 10 CFR 40, an escalation in the LTSC from the minimum charge amount is within NRC's regulatory authority:

                        If site surveillance or control requirements at a particular site are determined, on the basis of a site-specific evaluation, to be significantly greater than those specified in Criterion 12…                        *variance in funding requirements may be specified by the Commission.*                         (emphasis added)                    

The NRC's position on the LTSC—described in “[NRC] Staff Guidance on the License Termination Process for Conventional Uranium Mill Licensees,” (ADAMS accession number ML100840671)—is well established and goes back over 13 years. Escalation of the LTSC is consistent with NRC's historical practice. The LTSC of the Atlantic Richfield Company's (ARCO's) Bluewater Uranium Mill and Tailings site was escalated for sampling of groundwater (ML103410026). At the Sohio Western Mining Company's L-Bar uranium mill tailings site, the LTSC was escalated for the maintenance required to address of future accumulation of sedimentation in the diversion channels (ADAMS accession numbers ML042580467 and ML042580457).

                    Provided that there is a nexus to radiological health and safety, the NRC may consider escalating the LTSC above the minimum amount, adjusted to current year dollars. The increased LTSC would address long-term maintenance and control activities if site surveillance or control requirements are expected to be greater than those specified in Criterion 12 to Appendix A of 10 CFR 40 to cover such measures relied on for the performance of the tailings impoundment. The NRC may consider escalating the LTSC for long-term maintenance and control activities undertaken to ensure maintenance of radiological health and safety such as,                           ( print page 18809)                        but not limited to: (1) Groundwater monitoring; (2), rip-rap, erosion or other cover repair; (3) fencing; and (4) vegetation control.                

                    Consistent with past practice, on a site-specific basis, NRC staff will continue to work with the custodial agency and the licensee to address the LTSC, with any final variances in the funding requirements to be determined solely by the NRC. If the custodial agency desires to have commitments in the LTSP that exceed the requirements set forth in Appendix A of 10 CFR 40 and do not have a nexus to radiological health and safety (                    *e.g.,*                     fencing that is not necessary to ensure maintenance of radiological health and safety), the custodial agency would need to identify a funding mechanism to meet these desired commitments.                

                    Annual updates to financial assurance for decommissioning submitted to NRC should contain a detailed basis (                    *e.g.,*                     unit cost and units) and justification for the LTSC calculated by the licensee or license applicant. The licensee should consider all activities for site surveillance and control as specified in Criterion 12 to Appendix A of 10 CFR 40, including groundwater monitoring. For groundwater monitoring, the licensee or applicant should specify, with a sufficient basis, the number of wells to be sampled; the frequency of sampling; the duration of sampling; and the constituents analyzed during long-term site surveillance and control. If site surveillance or control requirements, including groundwater monitoring, are expected to be greater than those specified in Criterion 12 to Appendix A of 10 CFR 40, the licensee should fully describe the activities needed with a basis for their costs, propose an escalation in the LTSC, and provide an overall bottom-line amount, corresponding to the proposed, escalated LTSC.                

### Federal Register Notification

To be done after the public comment period.

### Congressional Review Act

This RIS is not a rule as designated in the Congressional Review Act (5 U.S.C. 801-886) and, therefore, is not subject to the Act.

### Paperwork Reduction Act Statement

                    This RIS contains and references information collection requirements that are subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501*et seq.*). Existing information collection requirements were approved by the Office of Management and Budget, approval number 3150-0020.                

### Public Protection Notification

The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection requirement unless the requesting document displays a currently valid OMB control number.

### Contact

This RIS requires no specific action or written response. If you have any questions about this summary, please contact the technical contact listed below.

*Technical Contact:*                     Roman A. Przygodzki, DWMEP/SPB, (301) 415-5143,                     *E-mail:  roman.przygodzki@nrc.gov.*

# Note: 

                         The NRC's generic communications may be found on the NRC public Web site,                         *http://www.nrc.gov,*                         under Electronic Reading Room/Document Collections.                    

## End of Draft Regulatory Issue Summary

                    Documents may be examined, and/or copied for a fee, at the NRC's Public Document Room at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible electronically from the Agencywide Documents Access and Management System (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site,                     *http://www.nrc.gov/​NRC/​ADAMS/​index.html.*                     If you do not have access to ADAMS or if you have problems in accessing the documents in ADAMS, contact the NRC Public Document Room (PDR) reference staff at 1-800-397-4209 or 301-415-4737 or by e-mail to                     *pdr@nrc.gov.*

Dated at Rockville, Maryland, this 28th day of March 2011.

For the Nuclear Regulatory Commission.

Keith I. McConnell,

Deputy Director, Decommissioning and Uranium Recovery Licensing Directorate, Division of Waste Management and Environmental Protection, Office of Federal and State Materials and Environmental Management Programs.

[FR Doc. 2011-8009 Filed 4-4-11; 8:45 am]

BILLING CODE 7590-01-P