October 2, 2003

Ms. Sarah Fields

P.O. Box 143

Moab, UT 84532

Dear Ms. Fields:

First, I apologize for the delayed response to your July 17, 2003 letter. Your letter asks several

questions related to the Nuclear Regulatory Commission (NRC) and Environmental Protection

Agency (EPA) Memorandum of Understanding (MOU) of October 25, 1991. The MOU was

used to guide the process to establish additional regulatory requirements for air emissions

under the Atomic Energy Act so that no additional requirements would be necessary under the

Clean Air Act. The enclosed Federal Register notice (59 FR 28220, June 1, 1994) discusses

the EPA and NRC interactions and the development of the final rule that modified Appendix A

to 10 CFR Part 40. This final rule implemented the goals of the EPA/NRC/Agreement State

MOU. 

Utah, in developing its regulations for their uranium milling program including 11e.(2) byproduct

material, adopted these requirements in Appendix A to 10 CFR Part 40 by reference. 

Therefore, Utah’s regulations meet the goals of the MOU. 

The only other MOU that needs to be addressed is the MOU between NRC and the Mine Safety

and Health Administration (MSHA) published in the Federal Register on January 4, 1980. This

MOU addresses the sharing of information on the occupational hazards from source material

used at uranium milling facilities. The Division of Radiation Control will be coordinating with the

State organization that implements the MSHA responsibilities in Utah. 

If you have any questions on this response, please contact me at 301-415-2819 or email: 

dms4@nrc.gov. 

Sincerely,

 /RA/

Dennis M. Sollenberger

Senior Health Physicist

Office of State and Tribal Programs

Enclosure:

As stated

cc: William Sinclair, UT

Department of Environmental Quality
Ms. Sarah Fields October 2, 2004

Distribution:

DIR RF DCD (SP08) Response to Incoming Document: ML032120254

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To receive a copy of this document, indicate in the box: "C" = Copy without attachment/enclosure "E" = Copy with attachment/enclosure "N" = No copy

OFFICE STP STP:DD OGC STP:D

NAME DSollenberger:gd JMPiccone

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JLieberman PHLohaus

DATE 09/30/03 10/1/03 10/2/03 10/2/03

ML040711266 OFFICIAL RECORD COPY
Page 1 of 21

[Federal Register: June 1, 1994]

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NUCLEAR REGULATORY COMMISSION

10 CFR Part 40

RIN 3150-AE77

Uranium Mill Tailings Regulations; Conforming NRC Requirements to 

EPA Standards

AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

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

SUMMARY: The Nuclear Regulatory Commission (NRC) is amending its 

regulations governing the disposal of uranium mill tailings. These 

changes conform existing NRC regulations to regulations published by 

the Environmental Protection Agency (EPA). The conforming amendments 

are intended to clarify the existing rules by ensuring timely 

emplacement of the final radon barrier and by requiring appropriate 

verification of the radon flux through that barrier. This action is 

related to another action by EPA to rescind its National Emissions 

Standard for Hazardous Air Pollutants (NESHAPs) for radon emissions 

from the licensed disposal of uranium mill tailings at non-operational 

sites.

EFFECTIVE DATE: This regulation becomes effective on July 1, 1994.

FOR FURTHER INFORMATION CONTACT: Catherine R. Mattsen, Office of 

Nuclear Regulatory Research, U.S. Nuclear Regulatory Commission, 

Washington, DC 20555, telephone (301) 415-6264.

SUPPLEMENTARY INFORMATION:

Background

 On April 29, 1983 (48 FR 19584), EPA proposed general environmental 

standards for uranium and thorium mill tailings sites licensed by NRC 

or one of its Agreement States. Final standards were published on 

September 30, 1983 (48 FR 45926), and codified in 40 CFR part 192, 

subparts D and E. On October 16, 1985 (50 FR 41852), NRC published 

amendments to 10 CFR part 40 to conform its rules to EPA’s general 

standards in 40 CFR part 192, as it affected matters other than ground 

water protection. Both NRC and EPA regulations included a design 

standard requiring that the tailings or wastes from mill operations be 

covered to provide reasonable assurance that radon released to the 

atmosphere from the tailings or wastes will not exceed an average of 20 

picocuries per square meter per second (pCi/m\2\s) for 1000 years, to 

the extent reasonably achievable, and in any case, for 200 years.

 Neither the EPA standards of 1983 nor NRC’s conforming standards of 

1985 established compliance schedules to ensure that the tailings piles 

would be expeditiously closed and the 20 pCi/m\2\s standard would be 

met within a reasonable period of time. Criterion 6 of appendix A to 

part 40 was initially only a design standard and did not require 

verification that the radon releases meet this ‘‘flux standard.’’

 In response to the separate requirements of the Clean Air Act 

(CAA), EPA promulgated additional standards in 40 CFR part 61 (subpart 
Page 2 of 21

T for non-operational sites) to ensure that the piles would be closed 

in a timely manner (December 15, 1989; 54 FR 51654). This regulation 

applies only to uranium mill tailings and requires, in addition to the 

flux standard of 20 pCi/m\2\s, that once a uranium mill tailings pile 

or impoundment ceases to be operational, it must be closed and brought 

into compliance with the standard within two years of the effective 

date of the standard (by December 15, 1991) or within two years of the 

day it ceases to be operational, whichever is later. If it were not 

physically possible for the mill owner or operator to complete disposal 

within that time, EPA contemplated a negotiated compliance agreement 

with the mill owner or operator pursuant to EPA’s enforcement authority 

in order to assure that disposal would be completed as quickly as 

possible. Subpart T of 40 CFR part 61 also requires testing for all 

piles within the facility to demonstrate compliance with the emission 

limit and specifies reporting and recordkeeping associated with this 

demonstration.

 Subpart T was challenged by a number of parties including the 

American Mining Congress (AMC), the Environmental Defense Fund (EDF), 

and the Natural Resources Defense Council (NRDC). In addition, AMC, the 

NRC, and others filed an administrative petition for reconsideration of 

subpart T. Among the concerns of these parties was the argument that 

the overlap between EPA’s subpart D of 40 CFR part 192 (based on the 

Uranium Mill Tailings Radiation Control Act (UMTRCA)) and subpart T of 

40 CFR part 61 (based on the CAA) resulted in regulations that are 

unnecessarily burdensome and duplicative. Among other things, the 

industry also alleged that subpart T was unlawful because it was 

physically impossible to come into compliance with subpart T in the 

time required. In November 1990, Congress amended the CAA by including 

a new provision, section 112(d)(9). This provision authorized EPA to 

decline to regulate radionuclide emissions from NRC licensees under the 

CAA if EPA found, by rule, after consultation with NRC, that the 

regulatory program implemented by NRC protects the public health with 

an ample margin of safety.

 In July 1991, EPA, NRC, and the affected Agreement States began 

discussions concerning the dual regulatory programs established under 

UMTRCA and the CAA. In October 1991, those discussions resulted in a 

Memorandum of Understanding (MOU) between EPA, NRC, and the affected 

Agreement States. The MOU outlines the steps each party would take to 

both eliminate regulatory redundancy and to ensure uranium mill 

tailings piles are closed as expeditiously as practicable. (The MOU was 

published by EPA on October 25, 1991 (56 FR 55434) as part of a 

proposal to stay subpart T.) The primary purpose of the MOU is to 

ensure that the owners and operators of all disposal sites that have 

ceased operation and those owners and operators of sites that will 

cease operation in the future effect emplacement of a final earthen 

cover to limit radon emissions to a flux of no more than 20 pCi/m\2\s 

as expeditiously as practicable considering technological feasibility. 

The MOU presents a goal that all current disposal sites be closed and 

in compliance with the radon emission standard by the end of 1997 or 

within seven years of the date on which existing operations cease and 

standby sites enter disposal status. The attachment to the MOU lists 

specific target dates for completing emplacement of final earthen 

covers to limit radon emissions from non-operational tailings 

impoundments. These target dates were based on consultations with the 

licensed mill operators.

 On December 31, 1991, the EPA published three Federal Register 

notices: a final rule to stay the effectiveness of 40 CFR part 61, 

subpart T, as it applies to owners and operators of uranium mill 

tailings disposal sites licensed by the NRC or an Agreement State (56 

FR 67537); a proposed rule to rescind 40 CFR part 61, subpart T, as it 

applies to uranium mill tailings disposal sites licensed by the NRC or 

an Agreement State (56 FR 67561); and an advance notice of proposed 

rulemaking to amend 40 CFR part 192, subpart D, to require that site 

closure occur as expeditiously as practicable considering technological 

feasibility and to add a demonstration of compliance with the design 

standard for radon releases (56 FR 67569). The stay of effectiveness of 

subpart T is to remain in effect until EPA takes final action to 

rescind subpart T and amend 40 CFR part 192, subpart D, to ensure that 
Page 3 of 21

the remaining rules are as protective of the public health with an 

ample margin of safety as implementation of subpart T, or until June 

30, 1994. If EPA fails to complete these rulemakings by that date, the 

stay will expire and the requirements of subpart T will become 

effective.

 The stay of effectiveness of subpart T was also challenged. 

Discussions continued between EPA, the litigants, and the NRC. In 

February 1993, final agreement was reached to settle the pending 

litigation and the administrative proceeding, avoid potential future 

litigation, and otherwise agree to a consensus approach to regulation 

of licensed non-operational uranium mill tailings disposal sites. EPA 

announced the settlement agreement in a notice of April 1, 1993 (58 FR 

17230). The NRC was not a signatory to this agreement but agreed in 

principle with the settlement agreement. The settlement agreement 

further defined steps for implementing the MOU. It called for the NRC 

to amend its regulations in appendix A of part 40 to be substantially 

consistent with a specific regulatory approach described in the 

settlement agreement. It also described actions to be taken by the 

parties to the agreement which were intended to implement the MOU and 

eliminate further litigation with respect to subpart T.

 On June 8, 1993 (58 FR 32174), the EPA proposed minor amendments to 

40 CFR part 192, subpart D, to ensure timely emplacement of the final 

radon barrier and to require monitoring to verify radon flux levels (a 

one-time verification). In that notice, the EPA stated its tentative 

conclusion that if those amendments to 40 CFR part 192, subpart D, were 

properly implemented by NRC and the Agreement States to ensure 

specific, enforceable closure schedules and radon level monitoring, the 

NRC’s regulatory program for non-operational uranium mill tailings 

piles would protect the public health with an ample margin of safety. 

The EPA also noted its intent to publish a proposed finding for public 

comment on whether the NRC program protects public health with an ample 

margin of safety before taking final action on rescission of 40 CFR 

part 61, subpart T.

 On November 3, 1993 (58 FR 58657), the NRC published a proposed 

revision to appendix A of part 40 intended to conform to EPA’s proposed 

revisions to 40 CFR part 192, subpart D. On November 15, 1993 (58 FR 

60340), the EPA published a final effective rule amending 40 CFR part 

192, subpart D. This final amendment to appendix A of 10 CFR part 40 

must conform to 40 CFR part 192, subpart D, as amended on November 15, 

1993. Changes in this final rule that relate to changes made in EPA’s 

final rule are noted in the detailed discussion.

 On February 7, 1994 (59 FR 5674), the EPA published a supplement to 

its proposed rescission of subpart T as it applies to owners and 

operators of uranium mill tailings disposal sites licensed by the NRC 

or an Agreement State. That action was also taken in accordance with 

the settlement agreement. That notice did not present a change from 

EPA’s plans, strategies, or findings as discussed in the actions 

pertaining to the revision of 40 CFR part 192, subpart D. EPA invited 

comments on the proposed rescission of subpart T and on its 

determination that the NRC regulatory program protects public health 

and safety with an ample margin. It does not specifically address NRC 

actions except that EPA has again stated that this conforming rule is 

necessary to support the rescission of 40 CFR part 61, subpart T.

 EPA’s revision to 40 CFR part 192 is not intended to change EPA’s 

original rationale or scheme set forth in its 1983 rule. The EPA rule 

‘‘seeks to clarify and supplement that scheme in a manner that will 

better support its original intent.’’ EPA’s final rule and this NRC 

conforming rule require that when a uranium mill becomes nonoperational, the final barrier to control radon will be emplaced as 

expeditiously as practicable considering technological feasibility 

(including factors beyond the control of the licensee). Setting interim 

dates for achieving milestones towards emplacement will support and 

better assure this progress. Also, post-emplacement determination of 

radon flux will serve as confirmation that the design of the cover is 

working as intended. EPA’s June 8, 1993 (58 FR 32174), notice of 

proposed rulemaking and its November 15, 1993 (58 FR 60340), notice of 

final rulemaking provide detailed discussion of the rationale for the 

action and the legislative and regulatory history leading to its 
Page 4 of 21

proposal.

Coordination With Affected NRC Agreement States

 The affected Agreement States of Colorado, Texas, and Washington, 

as well as the State of Illinois, were provided a draft of the proposed 

rule before its promulgation. These States’ comments and the 

Commission’s responses were discussed in the notice of proposed 

rulemaking of November 3, 1993 (58 FR 58657). Copies of that notice 

were sent to the affected States. One State submitted comments, which 

are addressed below along with the other comments received.

Issue of Compatibility With Agreement States

 The Commission has determined that these changes are a Division 2 

matter of compatibility. Under Division 2, States must adopt the 

provisions of an NRC rule but can adopt more stringent provisions. A 

State may not adopt less stringent ones. This designation (Division 2) 

is compatible with section 274o of the Atomic Energy Act of 1954, as 

amended (AEA).

Description of the Rule

 Section 84a(2) of the AEA requires the Commission to conform its 

regulations governing uranium mill tailings to applicable EPA 

requirements and standards. Based on this requirement and the plans and 

schedules related to the rescission discussed in this document, the NRC 

proposed to amend appendix A of 10 CFR part 40 to conform to EPA 

proposed amendments to 40 CFR part 192, subpart D, concerning nonoperational, NRC or Agreement State licensed mill tailings sites. 

Criterion 6 of appendix A to part 40 requires that an earthen cover (or 

approved alternative cover) be placed over uranium mill tailings to 

control the release of radon-222 at the end of milling operations. This 

cover is to be designed to provide reasonable assurance that releases 

of radon will not exceed an average of 20 pCi/m<SUP>2s and that the 

barrier will be effective in controlling radon releases to this level 

for 1,000 years, to the extent reasonably achievable, and, in any case, 

for at least 200 years. The design for satisfying the longevity 

requirement includes features for erosion control such as the placement 

of riprap over the earthen cover itself. (Criterion 6 is also 

applicable to thorium mill tailings. These amendments to Criterion 6 

apply to uranium mill tailings only.)

 This rule, both as proposed and as now being adopted, amends 

Criterion 6, adds a new Criterion 6A, and adds to the definitions 

contained in the Introduction to appendix A to part 40.

 Paragraphs (1), (5), (6), and (7) of revised Criterion 6 contain 

the previously existing requirements of Criterion 6. These provisions 

were not the subject of or affected by this rulemaking. These 

preexisting portions of Criterion 6 appear in this notice only for the 

purpose of numbering the paragraphs for ease of reference to specific 

requirements contained within the criterion. However, minor conforming 

revisions, as proposed, have been made to paragraph (1) of Criterion 6 

and its footnotes for clarity and consistency with the new 

requirements.

 This rule adds a requirement to Criterion 6 for a one-time 

verification that the barrier, as constructed, is effective in 

controlling releases of radon from uranium byproduct material to levels 

no greater than 20 pCi/m\2\s when averaged over the pile or 

impoundment. This provision, which appears at paragraph (2), also 

specifies EPA method 115, as described in 40 CFR part 61, appendix B, 

as a standard for adequate demonstration of compliance. As is required 

by the recent amendments to 40 CFR part 192, subpart D, the licensee 

must use this method or another approved by the NRC as being at least 

as effective in demonstrating the effectiveness of the final radon 

barrier. A copy of 40 CFR part 61, appendix B, has been made available 

for inspection at the NRC Public Document Room, 2120 L Street, NW. 

(Lower Level), Washington, DC.

 Because of practical reasons, the verification of radon flux levels 
Page 5 of 21

must take place after emplacement of the final radon barrier but before 

completion of erosion protection features. In order for the results of 

the verification to remain valid, erosion protection features must be 

completed before significant degradation of the earthen barrier occurs. 

The NRC will consider this in a final determination of compliance with 

Criterion 6. The NRC could require, among other things, repetition of 

part or all of the verification procedures on a case-by-case basis if 

significant delay occurs before completion of erosion protection 

features.

 Paragraph (3) of revised Criterion 6 adds a requirement that, if 

the reclamation plan calls for phased emplacement of the final radon 

barrier, the verification of radon flux be performed on each portion of 

the pile or impoundment as the final radon barrier is completed.

 Paragraph (4) specifies the reporting and recordkeeping to be made 

in connection with this demonstration of effectiveness of the final 

radon barrier. A one-time report that details the method of 

verification is to be made within 90 days of completion of the final 

determination of radon flux levels. Records will be required to be kept 

until license termination documenting the source of input parameters 

and the results of all measurements on which they are based, the 

calculations and/or analytical methods used to derive values for input 

parameters, and the procedure used to determine compliance. These 

reporting and recordkeeping requirements are comparable to the EPA 

requirements in 40 CFR part 61, subpart T.

 The Commission notes that the proper implementation of the design 

standard of paragraph (1) of Criterion 6 is of primary importance in 

the control of radon releases. The addition of the requirement for 

verification of radon flux levels does not replace or detract from the 

importance of the radon attenuation tailings cover design standard.

 The new Criterion 6A addresses the timeliness of achieving radon 

emission control in the case of uranium mill tailings. Criterion 6A 

requires that the emplacement of the earthen cover (or approved 

alternative cover) be carried out in accordance with a written, 

Commission-approved, reclamation plan that includes enforceable dates 

for the completion of key reclamation milestones. This plan will be 

incorporated as a condition of the individual license. This plan must 

provide for the completion of the final radon barrier as expeditiously 

as practicable considering technological feasibility after the pile or 

impoundment ceases operation. This timeliness requirement has the same 

goals for completing the final radon barrier as were in the MOU 

discussed above. In addition, erosion protection features must also be 

completed in a timely manner in accordance with the Commission-approved 

reclamation plan.

 For the purposes of Criterion 6A, definitions are being added to 

the Introduction of appendix A to part 40 (in alphabetical order with 

the preexisting definitions) for: as expeditiously as practicable 

considering technological feasibility, available technology, factors 

beyond the control of the licensee, final radon barrier, milestone, 

operation, and reclamation plan. These definitions are substantively 

the same as contained in the EPA’s recent amendment to 40 CFR part 192, 

subpart D. However, reclamation plan covers a broader range of 

activities than required in EPA’s tailings closure plan (radon). 

Reclamation of the tailings in accordance with appendix A to part 40 

includes activities also occurring after the end of operation that are 

beyond those involved in the control of radon releases, such as 

groundwater remediation. Thus, it is appropriate and efficient for 

planning if these activities are addressed in a single document. (This 

rule would also allow the reclamation plan to be incorporated into the 

pre-existing closure plan, also required by appendix A, which includes 

other activities associated with decommissioning of the mill.)

 A definition of final radon barrier was also included in the 

Commission’s proposed rule to facilitate the drafting of clear 

regulatory text and to eliminate any ambiguity with respect to 

compliance with the 20 pCi/m<SUP>2s ‘‘flux standard’’ after completion 

of the final earthen barrier and not as a result of any temporary 

conditions or interim measures. This definition excludes the erosion 

protection features which were not a subject of EPA’s amendment to 40 

CFR part 192. The EPA’s proposed rule had not provided a definition of 
Page 6 of 21

this term or comparable term. However, in its final rule, the EPA added 

a definition of the term permanent radon barrier, also to reduce 

ambiguity. The EPA’s definition is substantively the same as the NRC 

definition of final radon barrier. The EPA used the word ‘‘permanent’’

in keeping with the terminology of the settlement agreement but defined 

‘‘permanent radon barrier’’ as ‘‘the final radon barrier constructed to 

achieve compliance with, including attainment of, the limit on releases 

of radon-222 in Sec. 192.32(b)(1)(ii).’’ Both definitions refer to 

comparable standards requiring control of radon releases to levels not 

exceeding 20 pCi/m<SUP>2s after closure. This final NRC rule continues 

to use the word ‘‘final’’ as proposed, because it is more appropriate. 

The word ‘‘final’’ more accurately describes the last earthen cover 

over the tailings pile without the erosion protection features. The 

barrier would not provide permanent protection without the erosion 

protection features. Even after these features are completed, the 

applicable long-term design standard in paragraph (1) of Criterion 6 is 

‘‘effective for 1,000 years, to the extent reasonably achievable, and, 

in any case, for at least 200 years.’’ Although not intended by EPA, 

the term ‘‘permanent’’ could be interpreted to imply ‘‘forever.’’

 Factors beyond the control of the licensee are defined as factors 

proximately causing delay in meeting the schedule in the applicable 

reclamation plan for the timely emplacement of the final radon barrier 

notwithstanding the good faith efforts of the licensee to complete the 

barrier. Consistent with the final version of EPA’s rule, the following 

description of possible factors beyond the control of the licensee has 

been added to the definition in this final rule: these factors may 

include, but are not limited to:

 Physical conditions at the site;

 Inclement weather or climatic conditions;

 An act of God;

 An act of war;

 A judicial or administrative order or decision, or change to the 

statutory, regulatory, or other legal requirements applicable to the 

licensee’s facility that would preclude or delay the performance of 

activities required for compliance;

 Labor disturbances;

 Any modifications, cessation, or delay ordered by State, Federal, 

or local agencies;

 Delays beyond the time reasonably required in obtaining necessary 

government permits, licenses, approvals, or consent for activities 

described in the reclamation plan proposed by the licensee that result 

from agency failure to take final action after the licensee has made a 

good faith, timely effort to submit legally sufficient applications, 

responses to requests (including relevant data requested by the 

agencies), or other information, including approval of the reclamation 

plan; and

 An act or omission of any third party over whom the licensee has no 

control.

 In the definition of available technology, the phrase ‘‘and 

provided there is reasonable progress toward emplacement of a permanent 

radon barrier’’ was not included in the Commission’s proposed rule as 

it seemed inappropriate within the definition and the concept is 

incorporated into the standard itself, i.e., Criterion 6A. This phrase 

has been included in the final definition with the word ‘‘final’’ in 

place of ‘‘permanent’’ in keeping with the terminology used in this 

rule. A parenthetical with illustrative examples of grossly excessive 

costs has also been added consistent with EPA’s final amendments.

 The definitions for as expeditiously as practicable considering 

technological feasibility and reclamation plan have been specifically 

identified as applying to only Criterion 6A to prevent any potential 

misapplication. This has not been done in the case of the other 

definitions because either the terms are not used elsewhere in appendix 

A or are used consistently with the definitions being added.

 This rule goes beyond EPA’s rule by requiring that the erosion 

protection barriers (or other features for longevity) be completed in a 

timely manner. However, the rule does not require that enforceable 

dates be established for completion of erosion protection as a 

condition of license. (The key reclamation activities or ‘‘milestones’’
Page 7 of 21

for which enforceable dates are to be established are the same as in 

EPA’s rule.) The reason for this difference is so that the NRC can 

assure that erosion protection is completed before the barrier could 

degrade significantly while allowing more flexibility in this regard 

than for the ‘‘key reclamation milestones.’’ Allowing significant 

degradation of the cover before completion of other aspects of the 

design could violate the design basis.

 As a result of the MOU, most affected licensees (those facilities 

that were non-operational at the time of the MOU) have voluntarily 

submitted reclamation plans which include proposed dates for attainment 

of key reclamation milestones. (Planning for reclamation activities 

with Commission approval was required by previously existing 

regulations.) The process of approving those reclamation plans, at 

least those portions dealing with control of radon emissions, and 

amending the licenses to make the dates for completion of key 

reclamation milestones a condition of license is complete with the 

exception of the Atlas site in Moab, Utah. (In this case, license 

amendment has been delayed pending resolution of issues raised when the 

action was noticed in the Federal Register.) These impoundments are in 

the process of being reclaimed with varying degrees of completion. 

Other affected NRC licensees include one whose impoundment has ceased 

operation since the MOU and who is in the process of preparing a 

reclamation plan, and four with operational impoundments who will be 

affected at the time the impoundments cease to be operational.

 The considerations made in these recent licensing actions have been 

consistent with those reflected in this rule, i.e., paragraph (1) of 

Criterion 6A has essentially been implemented prior to promulgation as 

a result of the MOU and the settlement agreement and in anticipation of 

the amendments to 40 CFR part 192 and this rulemaking. Thus, the 

deadlines for completion of milestones established in licenses will not 

need to be reconsidered as a result of this rule. Also, the actions 

taken since the MOU in the case of the Atlas site in Moab, Utah are 

consistent with this rulemaking. The licensee has submitted proposed 

revisions to its reclamation plans. The licensee has also supplied 

further information and proposed modifications to address concerns that 

have been raised. Notices of proposed amendments to the license to 

provide for public participation have been published. The most recent 

of these was published on April 7, 1994 (58 FR 16665). Delays in the 

schedule for radon barrier emplacement are as a result of difficulties 

in resolving technical issues related to the adequacy of plans for 

erosion protection and groundwater protection and the consideration of 

alternatives under the National Environmental Policy Act. Thus, delays 

result from a combination of ‘‘the need for consistency with mandatory 

requirements of other regulatory programs’’ and ‘‘factors beyond the 

control of the licensee.’’ This case is primarily an example of factor 

number (8) in the definition of factors beyond the control of the 

licensee concerning delays in obtaining necessary approvals. The issues 

of concern in the approval of this revised reclamation plan are yet to 

be resolved and further delays are possible. However, no new issues 

with regard to the scheduling of final radon barrier emplacement are 

added as a result of this rule. The license amendment process and the 

approval of the reclamation plans will not be adversely affected. The 

NRC staff is continuing to provide timely attention to the resolution 

of this case.

 Paragraph (2) of Criterion 6A adds specific criteria for certain 

circumstances under which the NRC may extend the time allowed for 

completion of key milestones once enforceable dates have been 

established. An opportunity for public participation will be provided 

in a decision to extend the time allowed in these cases. The Commission 

may approve an extension of the schedule for meeting milestones if it 

is demonstrated that radon emissions do not exceed 20 pCi/m<SUP>2s 

averaged over the entire impoundment. The intent of this provision is 

that, if the radon release rates are as low as will be required after 

closure, there is no need for complex justifications for delaying 

completion of reclamation. However, the Commission may not necessarily 

extend deadlines for completion of milestones indefinitely on this 

basis alone. In addition, the Commission may approve an extension of 

the final compliance date for completion of the final radon barrier 
Page 8 of 21

based upon cost if the Commission finds that the licensee is making 

good faith efforts to emplace the final radon barrier, that the delay 

is consistent with the definition of available technology, and that the 

radon releases caused by the delay will not result in a significant 

incremental risk to the public health. If the basis for approving a 

delay is that the radon levels do not exceed 20 pCi/m<SUP>2s, 

verification of radon levels will be required annually. Any other 

reconsideration of deadlines once established as a result of changing 

circumstances would be evaluated under paragraph (1) of Criterion 6A 

giving consideration to all factors relevant to the ‘‘as expeditiously 

as practicable considering technological feasibility’’ standard.

 Paragraph (3) of Criterion 6A, as proposed, was to allow for the 

continued acceptance of uranium byproduct material or such materials 

that are similar in physical, chemical, and radiological 

characteristics to the uranium mill tailings and associated wastes in 

the pile or impoundment, from other sources, for disposal into a 

portion of the impoundment after the end of operation but during 

closure activities. This authorization was to be made only after 

providing an opportunity for public participation. This paragraph was 

intended to conform with proposed 40 CFR 192.32(a)(3)(iii). In the 

context of appendix A, ‘‘during closure activities’’ could include the 

period after emplacement of the final radon barrier. In this 

circumstance, the Commission may except completion of reclamation 

activities for a small portion of the impoundment from the deadlines 

established in the license. The proposed rule specified that the 

verification requirements for radon releases may still be satisfied in 

this case if the Commission finds that the impoundment will continue to 

achieve a level of radon releases not exceeding 20 pCi/m<SUP>2s 

averaged over the entire impoundment. However, reclamation of the 

remaining disposal area, as appropriate, would be required in a timely 

manner once the waste disposal operations cease.

 This paragraph has been somewhat revised in the final rule 

consistent with revisions made in EPA’s final rule; these provisions 

now appear at 40 CFR 192.32(a)(3) (iv) and (v). Both final rules are 

more consistent with the settlement agreement in this regard. The 

revisions are (1) that only byproduct material, not ‘‘similar’’

material, will be approved for disposal after the final radon barrier 

is complete except for the continuing disposal area and the 

verification of radon flux levels has been made, and (2) that public 

participation is specifically to be provided for only in the case of 

continued disposal after radon flux verification.

 The final rule has also been modified by changing the words ‘‘as 

expeditiously as practicable’’ in the last sentence of this paragraph 

to ‘‘ in a timely manner’’ to avoid the unintended application of the 

definition of the term ‘‘as expeditiously as practicable considering 

technological feasibility’’ to activities beyond the emplacement of the 

final radon barrier. Additional clarifying language has also been added 

to this paragraph.

 Note, as discussed in EPA’s statements of consideration for its 

amendment of 40 CFR part 192 (at 58 FR 32183; June 8, 1993 and 

reiterated at 58 FR 60354; November 15, 1993), the reclamation of 

evaporation ponds may be dealt with separately from meeting the 

expeditious radon cover requirements if deemed appropriate by the 

Commission or the regulating Agreement State. This may be the case 

whether or not the evaporation pond area is being used for continued 

disposal of byproduct material.

 The opportunities for public participation specified in Criterion 

6A are in keeping with the MOU and the settlement agreement, and will 

be made through a notice in the Federal Register providing an 

opportunity for public comment on the proposed license amendment. This 

notice will also provide the opportunity to request an informal hearing 

in accordance with the Commission’s regulations in 10 CFR part 2, 

subpart L.

Analysis of Comments

 In response to the proposed rule, the Commission received comments 

from seven organizations including one State regulatory agency, the 
Page 9 of 21

Environmental Protection Agency, and five industry organizations. 

Copies of the comments may be examined and copied for a fee at the 

Commission’s Public Document Room at 2120 L Street, NW. (Lower Level), 

Washington, DC. The following discussion summarizes and responds to the 

comments.

General: Need and Basis for Rule

 Comment. The commenters were generally in favor of the proposed 

rule. However, most had some suggestions for modifications. Many of 

these proposed modifications reflected a desire for stricter adherence 

to the words of the settlement agreement or to EPA’s final rule. One 

commenter said that it understood the proposal to be consistent with 

the terms that industry litigants accepted in the related EPA 

proceedings. The American Mining Congress (AMC) and the Atlantic 

Richfield Company (ARCO), which incorporated all of the AMC comments by 

reference in its comments, specifically supported the rule for the 

purpose of implementing the settlement agreement and in order that the 

‘‘duplicative’’ Clean Air Act requirements in 40 CFR part 61, subpart 

T, would be rescinded. AMC and ARCO contended that the rule was not 

needed to protect public health with the ample margin of safety 

required as a basis for rescinding subpart T, but that it would 

strengthen existing protection. Specifically, it was suggested that 

Sec. 40.63 gives NRC the ability to provide post-closure testing; that 

Sec. 40.42(c)(2)(i), (iii), and (iv) can provide for timely reclamation 

of the tailings; that proper milestones have been added to licenses 

under the existing regulatory program; and that EPA has never issued a 

finding of unacceptable risk. In addition, AMC provided extensive 

background and support for rescission of subpart T and elimination of 

dual regulation.

 Response. The Commission has stated and continues to believe that 

its program provides an adequate degree of protection of the public 

health and safety but that this rule provides greater assurance that 

the final radon barrier will be completed in a timely manner and in 

accordance with the design standard. The Commission disagrees with 

certain statements made by commenters to support their contention that 

this rule was not necessary to support the rescission of subpart T. 

With regard to Sec. 40.63 and post-closure testing, because footnote 1 

to Criterion 6 specifically indicated that no radon monitoring was 

required, the Commission would not have considered it appropriate to 

use Sec. 40.63 to require post-closure testing to verify that radon 

flux levels do not exceed 20 pCi/m\2\s. It was also suggested that 

Sec. 40.42 adequately addresses the timeliness of tailings reclamation. 

Although decommissioning normally includes cleanup of a site, appendix 

A provides the detailed closure requirements for mills in which the 

reclamation of tailings is covered as a separate activity and, thus, is 

an exception to the general requirements for decommissioning. This is a 

result of the unique treatment of tailings under UMTRCA, which provides 

for the ultimate custodial care of tailings by the Federal government 

rather than a return to unrestricted use. The timeliness statement in 

Sec. 40.42(c)(2)(iv) is interpreted as applying to the decommissioning 

of the mill not to reclamation of the tailings. The background 

materials submitted by AMC have been reviewed to assure that there are 

no gaps in the information previously available to the Commission in 

its deliberations.

 As a general response concerning the use of the exact words of the 

settlement agreement and the EPA regulations, the Commission notes that 

it is required to ‘‘conform’’ to 40 CFR part 192 by section 84a(2) of 

the AEA and has agreed in principle to, but was not a party to, the 

settlement agreement. In past conforming changes, conformance has not 

been viewed as requiring identical wording and flexibility has been 

used for clarity and to account for different formats and contents of 

rules. Thus, the Commission is not bound to the exact words in either 

case. Some differences are necessary to avoid ambiguity or confusion. 

For example, with regard to this rulemaking, the scope of both the 

settlement agreement and the EPA amendments were limited to the 

completion of the final radon barrier and did not extend to the 

longevity aspect of radon control nor to other aspects of reclamation. 
Page 10 of 21

The terms ‘‘reclamation’’ and ‘‘closure’’ have a broader meaning in 

appendix A than as used in the settlement agreement or in EPA’s 

amendments to 40 CFR part 192. It would not be practical to limit the 

use of these terms for the purpose of these specific amendments to 

appendix A. There are other terms that must also be used carefully 

because of their use in NRC regulations or by the regulated industry. 

Beyond what was considered necessary to avoid ambiguity and to provide 

appropriate expansion beyond the scope of EPA’s amendments, the 

Commission has attempted to be consistent with the words of the 

settlement agreement and 40 CFR part 192.

Definitions

 Comment. The four industry commenters who suggested that changes 

were needed all believed it was important that the definitions of 

factors beyond the control of the licensee and available technology be 

completely consistent with the settlement agreement and the final 

amendments to 40 CFR part 192, subpart D, and specifically, to include 

all the illustrative examples within the definition, not just in the 

statement of considerations. Some also suggested that the words 

‘‘complete the barrier’’ in the definition of factors beyond the 

control of the licensee be changed to ‘‘achieve compliance.’’ They were 

concerned that the intent of the parties to the settlement agreement 

would not be carried out in the interpretation of these terms in the 

future. Some specifically noted the loss of personnel familiar with the 

issues that will accompany the close of the NRC uranium recovery field 

office (URFO). The EPA did not suggest that including all of the 

illustrative text was necessary for conformance but suggested it would 

be best to include the phrase ‘‘provided there is reasonable progress 

toward emplacement of the final radon barrier’’ (from 40 CFR 192.31(m)) 

in NRC’s definition of available technology. The EPA also suggested 

adding ‘‘ in compliance with Criterion 6A-(1)’’ after ‘‘complete the 

barrier’’ in the definition of factors beyond the control of the 

licensee for clarity and to assure proper implementation of subpart D 

of 40 CFR part 192.

 Response. Explanations concerning the Commission’s intent regarding 

its interpretation of its regulations that appear in statements of 

consideration stand as a record of the Commission’s intent. However, 

inclusion within the regulatory text makes the illustrative examples 

more readily available so that questions of interpretation are less 

likely to arise. Consistent with EPA’s final amendments to 40 CFR part 

192, all of the illustrative examples have been added in the final 

definitions. The additional text suggested by EPA has also been 

included in these definitions.

 Comment. Most of the industry commenters also wanted the definition 

of milestone to be worded exactly as in 40 CFR part 192. The concern 

was primarily that milestones not be required to be established for 

actions beyond meeting the radon ‘‘flux standard.’’ Some of the 

commenters also suggested that the use in the preamble of varying 

modifiers, ‘‘key,’’ ‘‘ interim,’’ and ‘‘reclamation,’’ to ‘‘milestones’’

and ‘‘milestone activities,’’ which are used interchangeably, was 

confusing.

 Response. The definition of milestone has not been changed because 

the Commission believes it is less confusing in that it is in better 

agreement with normal usage. There is no substantive difference in the 

standard as a result of this difference and it gives the Commission the 

flexibility to use the term generically. The concerns expressed are 

addressed alternatively through minor revisions to the definition of 

reclamation plan and paragraph (2) of Criterion 6A to further clarify 

that no deadlines are required to be established in the licenses beyond 

completing the final radon barrier as a result of this rulemaking and 

that any other schedules established in a license do not come under the 

specific provisions of paragraph (2) of Criterion 6A. The term 

‘‘milestone activities’’ has been avoided in this final rule as it is 

redundant given this definition. The terms ‘‘key,’’ ‘‘ interim,’’ and 

‘‘reclamation’’ are used in accordance with their dictionary 

definitions and require no further definition. As is clear from the 

definition of reclamation plan, the term ‘‘reclamation’’ is not limited 
Page 11 of 21

to radon control measures.

 No comments were received concerning the definitions of: as 

expeditiously as practicable considering technological feasibility, 

final radon barrier, and operation.

Criterion 6--Verification of Radon Release Levels

 Comment. Some commenters suggested that paragraph (4) of Criterion 

6 could be interpreted to require submission of the results of radon 

measurements after measurements are made on a portion of an impoundment 

in the case of phased emplacement of the radon barrier. Two commenters 

suggested that interim reports might be required in a particular case 

subject to the agreement of the licensee, but objected to the possible 

interpretation that separate reports be required routinely on each 

portion. One suggested that it should be clarified that the testing 

need not be done on each portion as the cover is completed.

 Response. Paragraph (3) specifically requires testing to be done on 

each portion of the impoundment as the cover is completed in the case 

of phased emplacement. This was made a requirement rather than simply 

being allowed as in 40 CFR 192.32(b)(4)(ii) because of the requirement 

in paragraph (2) of this Criterion to conduct testing and analysis 

prior to placement of erosion protection features and the importance of 

timeliness in completing erosion protection features. There is, 

however, no specific time limit established in the regulation for these 

measurements on the individual portions of the impoundment.

 Paragraph (4) requires submittal of a report 90 days after 

completion of the testing and analysis. Because this verification is of 

radon flux levels averaged over the impoundment, it is not complete 

until all testing and analysis is complete for the whole impoundment. 

Thus, only one report is required, although further testing and 

analysis with associated reporting could be required in a particular 

case if the initial report is not acceptable. Minor editorial changes 

have been made to further clarify this point. Note, although it is 

impractical to do so routinely, riprap or other erosion protection 

barriers can be disturbed in order to take a radon emission measurement 

if necessary.

 Comment. One commenter suggested that paragraph (2) of Criterion 6 

should contain details such as are contained in 40 CFR part 61 on the 

one-time measurement which are intended to assure that conditions under 

which the flux is measured lead to a reasonable average flux. It was 

suggested that this would eliminate confusion with footnote 2 that 

applies to the design criterion. Related to this, some commenters 

argued for deletion of part of existing footnote 2 regarding average 

radon emissions being ‘‘over a period of at least one year, but a 

period short compared to 100 years.’’ These commenters were concerned 

that long-term monitoring could be implied. Also, two commenters said 

the footnote was contrary to the settlement agreement and the EPA rule. 

One said specifically that it was inconsistent with language of 40 CFR 

192.12(b)(2).

 Response. Footnote 2 applies only to the design criterion. Although 

the new testing and analysis is intended to verify the effectiveness of 

the radon barrier, it does not need to take place over the period of 

time specified in footnote 2. However, it should be reasonably 

representative of long-term radon releases. The details concerning 

conditions for flux measurements in 40 CFR part 61 are contained in the 

description of Method 115 in appendix B and address such matters as the 

weather conditions at the time measurements are performed. Method 115 

is specifically identified in this standard as acceptable and, if used, 

the conditions embodied in the description in appendix B of 40 CFR part 

61 would apply. Because Method 115 is also a standard for the adequacy 

of other verification methods in Criterion 6, alternative methods must 

be approved by the Commission as being at least as effective as Method 

115. Similar considerations to those embodied in Method 115 concerning 

the representiveness of the measurement results of the long term radon 

releases will be made in judging alternative methods. Details of 

conditions for measurement need not be specified in this rule.

 Modifying footnote 2 substantively, as was suggested by the 

commenters, would be outside the scope of this rulemaking. Footnote 2 
Page 12 of 21

is consistent with 40 CFR part 192, subpart D, which contains the same 

footnote (in the comparable design standard, 40 CFR 192.32(b)(1)(ii)). 

The footnote was not intended to and does not require long-term 

monitoring. The Commission agrees that long-term monitoring would be 

contrary to the settlement agreement.

 Comment. One commenter argued that the existing requirement to 

reduce gamma exposure to background levels should be eliminated or 

applied only at the site boundary. This commenter stated that this 

requirement appears to be a misinterpretation of the intent of 40 CFR 

part 192, subpart A. This commenter also said that the radon cover will 

attenuate gamma radiation to near background levels in most cases; and 

that in an unusual case, adding to the cover to control gamma exposure 

levels could be unnecessarily expensive, as access is restricted. The 

commenter believed that, as a minimum, the Commission should specify a 

limit based on acceptable risk to the maximum-exposed individual that 

can be supported by a cost-benefit analysis.

 Response. The criterion on gamma exposure levels is not based on 40 

CFR part 192 nor any other EPA regulation. It has been in appendix A to 

part 40 since it was originally added to part 40 on October 3, 1980 (45 

FR 65521). This aspect of Criterion 6 is outside the scope of this 

rulemaking. However, if the cost of meeting any criterion in appendix A 

is excessive in a specific case due to unique conditions, the licensee 

may request an alternative approach in accordance with the Introduction 

to appendix A.

Criterion 6A, Paragraph (1)--Requirement for Timeliness

 Comment. Two commenters were concerned that the parenthetical 

‘‘(including factors beyond the control of the licensee)’’ was not 

included in the standard following, ‘‘as expeditiously as practicable 

considering technological feasibility’’ as in 40 CFR 192.32(a)(3)(i) 

even though it is contained in the definition of as expeditiously as 

practicable considering technological feasibility. They claimed that 

this could lead to misinterpretation that the standard deletes this 

essential concept.

 Response. A parenthetical statement noting that the term as 

expeditiously as practicable considering technological feasibility is 

specifically defined in the Introduction and includes ‘‘factors beyond 

the control of the licensee’’ has been added.

 Comment. Some of the commenters opposed the establishment of 

separate milestone deadlines for dewatering and recontouring, saying 

that the settlement agreement and 40 CFR part 192 specify only three 

required milestones including just one for interim stabilization. 

Dewatering and recontouring are part of interim stabilization. These 

commenters said that this was also inconsistent with the practice with 

existing licenses. The EPA noted that it agreed with NRC’s statement in 

the preamble of its proposed rule that the concept of milestones could 

not be omitted.

 Response. The final rule has been changed to specifically require 

the establishment of deadlines for only three milestones: Wind blown 

tailings retrieval and placement on the pile, interim stabilization 

(including dewatering or the removal of freestanding liquids and 

recontouring), and final radon barrier construction. The Commission, 

however, retains the authority to require the establishment of 

additional milestones determined to be ‘‘key’’ to the completion of the 

final radon barrier in an individual case (note the words ‘‘but not 

limited to’’ in the definition of reclamation plan). This is consistent 

with 40 CFR part 192, subpart D, and with the settlement agreement. The 

Commission has no intent at this time to change the milestones for 

which deadlines have already been approved in individual licensing 

actions.

 Comment. The EPA noted that it understands that emplacement of the 

final radon barrier is a requisite milestone but was concerned that it 

could be interpreted otherwise, and suggested clarification. The EPA 

also noted that it understands ‘‘deadlines’’ to mean dates by which 

actions must be completed and ‘‘established as a condition of an 

individual license’’ to mean incorporation of a condition into a 

license by the Commission. However, the EPA was concerned that 
Page 13 of 21

paragraph (1) of Criterion 6A may be ambiguous and provided specific 

suggested edits.

 Response. Paragraph (1) of Criterion 6A has been modified slightly 

to address EPA’s concerns, although not exactly as suggested. The 

Commission believes it is clear that completion of the final radon 

barrier is a requisite milestone, that ‘‘deadlines’’ means dates by 

which actions must be completed, and that deadlines are to be 

established on the basis that the barrier is to be completed as 

expeditiously as practicable considering technological feasibility. The 

Commission also believes that its regulations are less subject to 

misinterpretation if there is consistency of style and terminology.

 Comment. Two commenters were concerned about the NRC extending the 

scope of the timeliness requirement from that of 40 CFR part 192, 

subpart D, stating that the ‘‘as expeditiously as practicable 

considering technological feasibility’’ requirement should not be 

extended to erosion protection. They contended that this is a term of 

art limited to radon emissions, that EPA used this term to eliminate 

the cost-balancing standards of the AEA from radon control measures, 

and that applying it to erosion protection would constrain the use of 

AEA cost considerations. They also noted that NRC has adequate 

authority under other aspects of its UMTRCA program to deal with 

concern for degradation of the barrier and stated that NRC should 

handle this on a site-specific basis through license amendment.

 Response. The final rule has been modified so that the terminology 

‘‘as expeditiously as practicable considering technological 

feasibility’’ is used only for emplacement of the final radon barrier. 

A general timeliness standard for completing erosion protection 

features is retained. Thus, it is clear that the licensee must complete 

these actions in a timely way and that the NRC has the authority to 

take action if necessary in this regard. However, the restrictive cost 

considerations specified for the completion of the final radon barrier 

do not apply to decisions concerning the timeliness of completion of 

erosion protection features. Instead, the more flexible, general cost 

considerations of the AEA (Section 84a(1)) apply.

 Comment. The same commenters sought clarification of NRC’s intent 

in extending reclamation plans to cover groundwater protection. They 

asked whether the NRC could prevent licensees from continuing surface 

reclamation until groundwater issues are resolved, stating that this 

was not past practice. However, they also wanted the Commission to 

confirm that groundwater concerns could constitute a legitimate cause 

for delay.

 Response. It is important for all aspects of reclamation to be 

addressed in one plan so that potential interactions of various 

activities can be accounted for and that reclamation can be planned for 

overall efficiency. Nonetheless, all aspects of a reclamation plan 

would not necessarily be approved at the same time. Past licensing 

practice has not necessarily required all details of reclamation 

planning to be in one document; however, approvals of activities have 

included consideration of impacts to other aspects of reclamation. The 

NRC would not necessarily prevent licensees from continuing surface 

reclamation until groundwater issues are resolved. However, the words 

‘‘the need for consistency with mandatory requirements of other 

regulatory programs’’ in the definition of ‘‘as expeditiously as 

practicable considering technological feasibility’’ make it clear that 

groundwater concerns could constitute a legitimate cause for delay. 

Whether or not a groundwater issue would be considered a legitimate 

cause for delay of radon control measures under paragraph (1) of 

Criterion 6A would depend on the nature of the interaction of the 

various reclamation activities in a particular case.

Criterion 6A, Paragraph (2)--Special Criteria for Approval of Delays

 Comment. Two commenters stated that paragraph (2) of Criterion 6A 

does not fully implement the settlement agreement. They stated that the 

settlement agreement and 40 CFR 192.32(a)(3)(iii) include delay of 

interim milestones for reason of cost not just the dates for completion 

of the final radon barrier. These same commenters were concerned that 

it was not clear from paragraph (2) of Criterion 6A that deadlines for 
Page 14 of 21

milestones could also be extended because of factors beyond the control 

of the licensee and also expressed strong agreement with the statement 

that there is ‘‘no need for complex justifications for delaying 

completion of reclamation’’ if the licensee demonstrates that the site 

meets 20 pCi/m<SUP>2s prior to final closure. These two commenters also 

stated that the intent of the settlement agreement is that interim 

milestones may be changed without meeting 20 pCi/m<SUP>2s, if there is 

no delay in final closure date. On this subject, the EPA specifically 

supported paragraph (2) of Criterion 6A as drafted. The EPA also 

specifically confirmed our interpretation of its amendments to 40 CFR 

part 192 in this regard and clarified that there may be other instances 

under which NRC may reconsider a date established for completion of a 

milestone. The EPA also stated in its comments that the alternative 

interpretation of its proposed amendments suggested in the Commission’s 

preamble to its proposed rule (that meeting the 20 pCi/m<SUP>2s ‘‘flux 

standard’’ might be required in all cases) was incorrect.

 Response. The Commission does not agree that the words ‘‘or 

relevant milestone’’ in section III.2.j of the settlement agreement and 

40 CFR 192.32(a)(3)(iii) should be interpreted to mean that these 

paragraphs address delay of interim milestones for reason of cost. 

Also, approvals of extensions of interim milestones without meeting 20 

pCi/m<SUP>2s are not necessarily limited to cases where there is no 

delay in final closure date.

 Paragraph (2) of Criterion 6A and 40 CFR 192.32(a)(3)(ii) and (iii) 

set forth specific criteria for extensions of deadlines under certain 

circumstances. These provisions do not cover all circumstances under 

which extensions may be approved. This interpretation was confirmed by 

EPA in the preamble of its final rule and in its comments submitted on 

NRC’s proposed rule. All other approvals of extensions must be made 

under paragraph (1) of Criterion 6A through applying all of the 

concepts involved in the requirement for completion of the final radon 

barrier ‘‘as expeditiously as practicable considering technological 

feasibility’’ (including within its definition ‘‘factors beyond the 

control of the licensee’’). This was stressed in EPA’s final rule 

notice of November 15, 1993, at 58 FR 60351. In response to a commenter 

that noted that NRC or an Agreement State may extend the date for 

emplacement of the radon barrier based on ‘‘factors beyond the control 

of the licensee’’ as that term is implicit in the definition of ‘‘as 

expeditiously as possible,’’ EPA stated in part that ‘‘there is no bar 

to NRC or an Agreement State reconsidering a prior decision 

establishing a date for emplacement of the radon barrier that meets the 

standard of ‘as expeditiously as possible.’ Such reconsideration could, 

for example, be based on the existence of factors beyond the control of 

the licensee, or on a change in any of the various factors that must be 

considered in establishing a date that meets the ‘as expeditiously as 

practicable’ standard of Sec. 192.32(a)(3)(i). However, EPA stresses 

that such a change in circumstances would not automatically lead to an 

extension. It would be incumbent on NRC or an Agreement State to 

evaluate all of the factors relevant under Sec. 192.32(a)(3)(i) before 

it could change a previously established milestone or date for the 

emplacement of the final barrier, and any new date would have to meet 

the standard set out in Sec. 192.32(a)(3)(i).’’ The comparable standard 

in this NRC rule is set out in paragraph (1) of Criterion 6A.

Criterion 6A, Paragraph (3)--Continuing Disposal During Closure

 Comment. Some commenters noted that Criterion 6A, paragraph 3, as 

proposed, was inconsistent with the final EPA rule. Some also suggested 

that it was inconsistent with the settlement agreement, could lead to 

premature closure, and would require radon monitoring during closure. 

One commenter said that ‘‘during closure activities’’ does not include 

the period after emplacement of the final radon barrier according to 

the EPA rule and the settlement agreement, and that the intent should 

be that ‘‘once the final radon barrier has been placed over the 

impoundment, excluding the area receiving byproduct material, the 

‘closure process’ ceases.’’ Two of the commenters specifically agreed 

with the interpretation that ‘‘during closure activities’’ could 

include the period after emplacement of the final radon barrier and 
Page 15 of 21

wanted the NRC to confirm this so that similar materials would still be 

allowed at that time. These two commenters did not want paragraph (3) 

of Criterion 6A to require an opportunity for public participation in 

approving acceptance of byproduct material ‘‘during closure.’’ The EPA 

submitted suggested revisions to make final paragraph (3) of Criterion 

6A consistent with the final amendments in 40 CFR 192.32(a)(3)(iv) and 

(v).

 Response. EPA, in its proposed revision of 40 CFR part 192, 

subpart D, combined the provisions of sections III.2.c (i) and (ii) of 

the settlement agreement in one paragraph. In so doing, EPA, apparently 

inadvertently, differed somewhat from the settlement agreement but 

modified the final rule so that it is now consistent with the 

settlement agreement. The Commission must conform appendix A to 40 CFR 

part 192, as adopted, and has thus revised its final rule accordingly. 

The differences from the proposed rule are that (1) materials similar 

to byproduct material will not be approved for continued disposal after 

the verification of radon flux levels and (2) an opportunity for public 

participation will not specifically be provided in the case of 

continued disposal during closure prior to this point in time. Note, 

however, opportunity for public participation exists in any case under 

10 CFR part 2, subpart L. The exact words suggested in EPA’s comments 

have not been used but the revisions are substantively the same. The 

reasons for differing are the same as when the proposed rule was 

drafted: (1) the term ‘‘closure’’ in appendix A has a broader meaning 

than the scope of EPA’s rule, and (2) the final radon barrier is not 

absolutely complete while disposal is continuing even though it may be 

adequate to demonstrate that average radon release levels meet the 20 

pCi/m<SUP>2s ‘‘flux standard.’’

Miscellaneous comments

 Comment. One State commenter strongly recommended that NRC offer 

guidance (not necessarily in the rule) on paragraph (3) of Criterion 6A 

on what materials are appropriately similar. The commenter suggested 

specification of limits to the range of variation of a critical 

property or concentration or activity.

 Response. Guidance on considerations for the approval of disposal 

of non-11e(2) materials in tailings impoundments was published May 13, 

1992 (57 FR 20525). This notice also presented a staff analysis on 

which the guidance is based and requested public comment to be 

considered in a decision on whether the guidance should be revised.

 Comment. Two commenters stated, for the record, that they agreed 

with NRC that the implementation details of EPA’s 40 CFR part 192, 

subpart D, are a special case and go beyond ‘‘generally applicable 

standards,’’ and that these provisions should not set a precedent with 

regard to what constitutes a generally applicable standard. They 

contended that certain aspects of subpart D exceed EPA’s statutory 

authority.

 Response. The Commission noted in the preamble of the proposed rule 

that the nature of the revisions to 40 CFR part 192, subpart D, were 

influenced by the settlement agreement, that the settlement agreement 

included considerable detail concerning the specifics of the 

regulations that were to be developed, and that apparently as a result 

of this, 40 CFR part 192, subpart D, includes numerous details of 

implementation. The Commission also stated its view, which it still 

holds, that the inclusion of these implementation details is a special 

case because of the settlement agreement and does not establish any 

precedent with regard to what constitutes a generally applicable 

standard. With regard to the question of the limits of EPA’s statutory 

authority, any challenge to EPA’s authority to issue the November 15, 

1993, final amendments to 40 CFR part 192 is outside the scope of this 

conforming action.

 Comment. The AMC stated that even if the Commission makes this rule 

a Division 2 matter of compatibility, AMC will return to litigation if 

an Agreement State adopts more stringent provisions.

 Response. UMTRCA provides the States an option for alternative, 

more stringent standards. The settlement agreement cannot eliminate 

this option. However, notice for comment and approval by NRC is 
Page 16 of 21

required and AMC can raise appropriate issues at that time should a 

State propose more stringent standards. The Division 2 matter of 

compatibility is maintained.

 Comment. The AMC contended that some statements in the preamble to 

the proposed rule were in error or in need of clarification. Among 

these contentions were that the summary of bases for AMC’s challenge to 

subpart T implied that the limited bases mentioned were all inclusive.

 Response. The primary bases for the various litigants’ challenges 

were mentioned in a brief historical summary that was not presented as 

a complete background. The EPA’s various notices are referenced in the 

background section of this notice for more details concerning subpart T 

and the related litigation.

 Comment. AMC also stated that NRC had implied that EPA could not 

rescind subpart T if the planned rulemakings were not completed, 

arguing that EPA has adequate bases to rescind absent these 

rulemakings.

 Response. NRC did not mean to imply that EPA could not rescind 

subpart T absent the planned rulemakings. However, EPA had made 

statements that it would not rescind subpart T unless comparable 

provisions were added to 40 CFR part 192 and 10 CFR part 40.

 Comment. The AMC also stated that the timeliness of decommissioning 

rule should not have been suggested as in any way relevant and 

requested that NRC note that Chairman Selin is on record suggesting 

that a blanket exemption of uranium recovery facilities may make sense.

 Response. Final action on the proposed NRC rule to require 

timeliness in decommissioning (January 13, 1993; 58 FR 4099) would be 

expected to impact the timing of decommissioning of the mill, not 

necessarily the timing of the impoundment going from operational status 

to closure. (‘‘Closure’’ in appendix A does include both 

decommissioning of the mill and reclamation of the tailings and/or 

waste disposal areas.) If subpart T is rescinded, there will be no 

regulatory requirement for the tailings impoundment to change from 

operational to non-operational status within any specified time after 

the mill ceases operation. The definition of ‘‘operational’’ in subpart 

T would have restricted the continued use of the impoundment for 

extended periods after the associated mill was decommissioned.

 No comments were received on the regulatory analysis or the 

environmental assessment and finding of no significant impact.

Conclusion

 As indicated in the responses to the comments, the Commission has 

decided to adopt the rule as proposed with minor modifications, which 

consist of revisions to conform to the final effective amendments to 40 

CFR part 192 and clarifications.

Finding of No Significant Environmental Impact: Availability

 The Commission has determined under the National Environmental 

Policy Act of 1969, as amended, and the Commission’s regulations in 

subpart A of 10 CFR part 51, that this rule is not a major Federal 

action significantly affecting the quality of the human environment and 

therefore an environmental impact statement is not required. This final 

rule requires that enforceable dates be established for certain interim 

milestones and completion of the final radon barrier on non-operational 

mill tailings piles through an approved reclamation plan and that a 

determination of the radon flux levels be made to verify compliance 

with the existing design standard for the final radon barrier. It is 

intended to better assure that the final radon barrier is completed in 

a timely manner and is adequately constructed to comply with the 

applicable design standard. Thus, it provides an additional assurance 

that public health and the environment are adequately protected. 

Because the final rule is not expected to change the basic procedures 

or construction of the radon barrier, there should be no adverse 

environmental impacts. The environmental assessment and finding of no 

significant impact on which this determination is based are available 

for inspection at the NRC Public Document Room, 2120 L Street NW. 

(Lower Level), Washington, DC. Single copies of the environmental 
Page 17 of 21

assessment and finding of no significant impact are available from 

Catherine R. Mattsen, U. S. Nuclear Regulatory Commission, Washington, 

DC 20555, Phone: (301) 415-6264.

Paperwork Reduction Act Statement

 This final rule amends information collection requirements that are 

subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et 

seq.). These requirements were approved by the Office of Management and 

Budget approval number 3150-0020.

 Public reporting burden for this collection of information is 

estimated to average 156 hours per response, including the time for 

reviewing instructions, searching existing data sources, gathering and 

maintaining the data needed, and completing and reviewing the 

collection of information. Send comments regarding this burden estimate 

or any other aspect of this collection of information, including 

suggestions for reducing this burden, to the Information and Records 

Management Branch (T-6 F33), U.S. Nuclear Regulatory Commission, 

Washington, DC 20555; and to the Desk Officer, Office of Information 

and Regulatory Affairs, NEOB-3019 (3150-0020), Office of Management and 

Budget, Washington, DC 20503.

Regulatory Analysis

 The Commission has prepared a regulatory analysis on this final 

regulation. The analysis examines the costs and benefits of the 

alternatives considered by the Commission. The analysis is available 

for inspection in the NRC Public Document Room, 2120 L Street NW. 

(Lower Level), Washington, DC. Single copies of the analysis may be 

obtained from Catherine R. Mattsen, U.S. Nuclear Regulatory Commission, 

Washington, DC 20555, (301) 415-6264.

Regulatory Flexibility Certification

 In accordance with the Regulatory Flexibility Act of 1980, (5 

U.S.C. 605(b)), the Commission certifies that this rule will not have a 

significant economic impact on a substantial number of small entities. 

There are only 19 NRC uranium mill licensees. Almost all of these mills 

are owned by large corporations. Although a few of the mills are 

partly-owned by companies that might qualify as small businesses under 

the Small Business Administration size standards, the Regulatory 

Flexibility Act incorporates the definition of small business presented 

in the Small Business Act. Under this definition, a small business is 

one that is independently owned and operated and is not dominant in its 

field. Because these mills are not independently owned, they do not 

qualify as small entities.

List of Subjects in 10 CFR part 40

 Criminal penalties, Government contracts, Hazardous materials 

transportation, Nuclear materials, Reporting and recordkeeping 

requirements, Source material, Uranium.

 For the reasons set out in the preamble and under the authority of 

the Atomic Energy Act of 1954, as amended; the Energy Reorganization 

Act of 1974, as amended; and 5 U.S.C. 552 and 553; the NRC is adopting 

the following amendments to 10 CFR part 40.

PART 40--LICENSING OF SOURCE MATERIAL

 1. The authority citation for part 40 continues to read as follows:

 Authority: Secs. 62, 63, 64, 65, 81, 161, 182, 183, 186, 68 

Stat. 932, 933, 935, 948, 953, 954, 955, as amended, secs. 11e(2), 

83, 84, Pub. L. 95-604, 92 Stat. 3033, as amended, 3039, sec. 234, 

83 Stat. 444, as amended (42 U.S.C. 2014(e)(2), 2092, 2093, 2094, 

2095, 2111, 2113, 2114, 2201, 2232, 2233, 2236, 2282); sec. 274, 

Pub. L. 86-373, 73 Stat. 688 (42 U.S.C. 2021); secs. 201, as 
Page 18 of 21

amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 

5841, 5842, 5846); sec. 275, 92 Stat. 3021, as amended by Pub. L. 

97-415, 96 Stat. 2067 (42 U.S.C. 2022).

 Section 40.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat. 

2951 (42 U.S.C. 5851). Section 40.31(g) also issued under sec. 122, 

68 Stat. 939 (42 U.S.C. 2152). Section 40.46 also issued under sec. 

184, 68 Stat. 954, as amended (42 U.S.C. 2234). Section 40.71 also 

issued under sec. 187, 68 Stat. 955 (42 U.S.C. 2237).

 2. In appendix A, add the definitions of as expeditiously as 

practicable considering technological feasibility, available 

technology, factors beyond the control of the licensee, final radon 

barrier, milestone, operation, and reclamation plan to the Introduction 

in alphabetical order; revise Criterion 6; and add Criterion 6A to read 

as follows:

Appendix A to Part 40--Criteria Relating to the Operation of 

Uranium Mills and the Disposition of Tailings or Wastes Produced by 

the Extraction or Concentration of Source Material From Ores 

Processed Primarily for Their Source Material Content

Introduction

* * * * *

 As expeditiously as practicable considering technological 

feasibility, for the purposes of Criterion 6A, means as quickly as 

possible considering: the physical characteristics of the tailings 

and the site; the limits of available technology; the need for 

consistency with mandatory requirements of other regulatory 

programs; and factors beyond the control of the licensee. The phrase 

permits consideration of the cost of compliance only to the extent 

specifically provided for by use of the term available technology.

 Available technology means technologies and methods for 

emplacing a final radon barrier on uranium mill tailings piles or 

impoundments. This term shall not be construed to include 

extraordinary measures or techniques that would impose costs that 

are grossly excessive as measured by practice within the industry 

(or one that is reasonably analogous), (such as, by way of 

illustration only, unreasonable overtime, staffing, or 

transportation requirements, etc., considering normal practice in 

the industry; laser fusion of soils, etc.), provided there is 

reasonable progress toward emplacement of the final radon barrier. 

To determine grossly excessive costs, the relevant baseline against 

which cost shall be compared is the cost estimate for tailings 

impoundment closure contained in the licensee’s approved reclamation 

plan, but costs beyond these estimates shall not automatically be 

considered grossly excessive.

* * * * *

 Factors beyond the control of the licensee means factors 

proximately causing delay in meeting the schedule in the applicable 

reclamation plan for the timely emplacement of the final radon 

barrier notwithstanding the good faith efforts of the licensee to 

complete the barrier in compliance with paragraph (1) of Criterion 

6A. These factors may include, but are not limited to--

 (1) Physical conditions at the site;

 (2) Inclement weather or climatic conditions;

 (3) An act of God;

 (4) An act of war;

 (5) A judicial or administrative order or decision, or change to 

the statutory, regulatory, or other legal requirements applicable to 

the licensee’s facility that would preclude or delay the performance 

of activities required for compliance;

 (6) Labor disturbances;

 (7) Any modifications, cessation or delay ordered by State, 

Federal, or local agencies;

 (8) Delays beyond the time reasonably required in obtaining 

necessary government permits, licenses, approvals, or consent for 

activities described in the reclamation plan proposed by the 
Page 19 of 21

licensee that result from agency failure to take final action after 

the licensee has made a good faith, timely effort to submit legally 

sufficient applications, responses to requests (including relevant 

data requested by the agencies), or other information, including 

approval of the reclamation plan; and

 (9) An act or omission of any third party over whom the licensee 

has no control.

 Final radon barrier means the earthen cover (or approved 

alternative cover) over tailings or waste constructed to comply with 

Criterion 6 of this appendix (excluding erosion protection 

features).

* * * * *

 Milestone means an action or event that is required to occur by 

an enforceable date.

* * * * *

 Operation means that a uranium or thorium mill tailings pile or 

impoundment is being used for the continued placement of byproduct 

material or is in standby status for such placement. A pile or 

impoundment is in operation from the day that byproduct material is 

first placed in the pile or impoundment until the day final closure 

begins.

* * * * *

 Reclamation plan, for the purposes of Criterion 6A, means the 

plan detailing activities to accomplish reclamation of the tailings 

or waste disposal area in accordance with the technical criteria of 

this appendix. The reclamation plan must include a schedule for 

reclamation milestones that are key to the completion of the final 

radon barrier including as appropriate, but not limited to, wind 

blown tailings retrieval and placement on the pile, interim 

stabilization (including dewatering or the removal of freestanding 

liquids and recontouring), and final radon barrier construction. 

(Reclamation of tailings must also be addressed in the closure plan; 

the detailed reclamation plan may be incorporated into the closure 

plan.)

* * * * *

 Criterion 6 (1) In disposing of waste byproduct material, 

licensees shall place an earthen cover (or approved alternative) 

over tailings or wastes at the end of milling operations and shall 

close the waste disposal area in accordance with a design<SUP>1 

which provides reasonable assurance of control of radiological 

hazards to (i) be effective for 1,000 years, to the extent 

reasonably achievable, and, in any case, for at least 200 years, and 

(ii) limit releases of radon-222 from uranium byproduct materials, 

and radon-220 from thorium byproduct materials, to the atmosphere so 

as not to exceed an average<SUP>2 release rate of 20 picocuries per 

square meter per second (pCi/m<SUP>2s) to the extent practicable 

throughout the effective design life determined pursuant to (1)(i) 

of this Criterion. In computing required tailings cover thicknesses, 

moisture in soils in excess of amounts found normally in similar 

soils in similar circumstances may not be considered. Direct gamma 

exposure from the tailings or wastes should be reduced to background 

levels. The effects of any thin synthetic layer may not be taken 

into account in determining the calculated radon exhalation level. 

If non-soil materials are proposed as cover materials, it must be 

demonstrated that these materials will not crack or degrade by 

differential settlement, weathering, or other mechanism, over longterm intervals.

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

 \1\In the case of thorium byproduct materials, the standard 

applies only to design. Monitoring for radon emissions from thorium 

byproduct materials after installation of an appropriately designed 

cover is not required.

 \2\This average applies to the entire surface of each disposal 

area over a period of a least one year, but a period short compared 

to 100 years. Radon will come from both byproduct materials and from 

covering materials. Radon emissions from covering materials should 

be estimated as part of developing a closure plan for each site. The 
Page 20 of 21

standard, however, applies only to emissions from byproduct 

materials to the atmosphere.

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

 (2) As soon as reasonably achievable after emplacement of the 

final cover to limit releases of radon-222 from uranium byproduct 

material and prior to placement of erosion protection barriers or 

other features necessary for long-term control of the tailings, the 

licensee shall verify through appropriate testing and analysis that 

the design and construction of the final radon barrier is effective 

in limiting releases of radon-222 to a level not exceeding 20 pCi/

m\2\s averaged over the entire pile or impoundment using the 

procedures described in 40 CFR part 61, appendix B, Method 115, or 

another method of verification approved by the Commission as being 

at least as effective in demonstrating the effectiveness of the 

final radon barrier.

 (3) When phased emplacement of the final radon barrier is 

included in the applicable reclamation plan, the verification of 

radon-222 release rates required in paragraph (2) of this criterion 

must be conducted for each portion of the pile or impoundment as the 

final radon barrier for that portion is emplaced.

 (4) Within ninety days of the completion of all testing and 

analysis relevant to the required verification in paragraphs (2) and 

(3) of this criterion, the uranium mill licensee shall report to the 

Commission the results detailing the actions taken to verify that 

levels of release of radon-222 do not exceed 20 pCi/m\2\s when 

averaged over the entire pile or impoundment. The licensee shall 

maintain records until termination of the license documenting the 

source of input parameters including the results of all measurements 

on which they are based, the calculations and/or analytical methods 

used to derive values for input parameters, and the procedure used 

to determine compliance. These records shall be kept in a form 

suitable for transfer to the custodial agency at the time of 

transfer of the site to DOE or a State for long-term care if 

requested.

 (5) Near surface cover materials (i.e., within the top three 

meters) may not include waste or rock that contains elevated levels 

of radium; soils used for near surface cover must be essentially the 

same, as far as radioactivity is concerned, as that of surrounding 

surface soils. This is to ensure that surface radon exhalation is 

not significantly above background because of the cover material 

itself.

 (6) The design requirements in this criterion for longevity and 

control of radon releases apply to any portion of a licensed and/or 

disposal site unless such portion contains a concentration of radium 

in land, averaged over areas of 100 square meters, which, as a 

result of byproduct material, does not exceed the background level 

by more than: (i) 5 picocuries per gram (pCi/g) of radium-226, or, 

in the case of thorium byproduct material, radium-228, averaged over 

the first 15 centimeters (cm) below the surface, and (ii) 15 pCi/g 

of radium-226, or, in the case of thorium byproduct material, 

radium-228, averaged over 15-cm thick layers more than 15 cm below 

the surface.

 (7) The licensee shall also address the nonradiological hazards 

associated with the wastes in planning and implementing closure. The 

licensee shall ensure that disposal areas are closed in a manner 

that minimizes the need for further maintenance. To the extent 

necessary to prevent threats to human health and the environment, 

the licensee shall control, minimize, or eliminate post-closure 

escape of nonradiological hazardous constituents, leachate, 

contaminated rainwater, or waste decomposition products to the 

ground or surface waters or to the atmosphere.

 Criterion 6A (1) For impoundments containing uranium byproduct 

materials, the final radon barrier must be completed as 

expeditiously as practicable considering technological feasibility 

after the pile or impoundment ceases operation in accordance with a 

written, Commission-approved reclamation plan. (The term as 

expeditiously as practicable considering technological feasibility 
Page 21 of 21

as specifically defined in the Introduction of this appendix 

includes factors beyond the control of the licensee.) Deadlines for 

completion of the final radon barrier and, if applicable, the 

following interim milestones must be established as a condition of 

the individual license: windblown tailings retrieval and placement 

on the pile and interim stabilization (including dewatering or the 

removal of freestanding liquids and recontouring). The placement of 

erosion protection barriers or other features necessary for longterm control of the tailings must also be completed in a timely 

manner in accordance with a written, Commission-approved reclamation 

plan.

 (2) The Commission may approve a licensee’s request to extend 

the time for performance of milestones related to emplacement of the 

final radon barrier if, after providing an opportunity for public 

participation, the Commission finds that the licensee has adequately 

demonstrated in the manner required in paragraph (2) of Criterion 6 

that releases of radon-222 do not exceed an average of 20 pCi/m\2\s. 

If the delay is approved on the basis that the radon releases do not 

exceed 20 pCi/m\2\s, a verification of radon levels, as required by 

paragraph (2) of Criterion 6, must be made annually during the 

period of delay. In addition, once the Commission has established 

the date in the reclamation plan for the milestone for completion of 

the final radon barrier, the Commission may extend that date based 

on cost if, after providing an opportunity for public participation, 

the Commission finds that the licensee is making good faith efforts 

to emplace the final radon barrier, the delay is consistent with the 

definition of available technology, and the radon releases caused by 

the delay will not result in a significant incremental risk to the 

public health.

 (3) The Commission may authorize by license amendment, upon 

licensee request, a portion of the impoundment to accept uranium 

byproduct material or such materials that are similar in physical, 

chemical, and radiological characteristics to the uranium mill 

tailings and associated wastes already in the pile or impoundment, 

from other sources, during the closure process. No such 

authorization will be made if it results in a delay or impediment to 

emplacement of the final radon barrier over the remainder of the 

impoundment in a manner that will achieve levels of radon-222 

releases not exceeding 20 pCi/m\2\s averaged over the entire 

impoundment. The verification required in paragraph (2) of Criterion 

6 may be completed with a portion of the impoundment being used for 

further disposal if the Commission makes a final finding that the 

impoundment will continue to achieve a level of radon-222 releases 

not exceeding 20 pCi/m<SUP>2s averaged over the entire impoundment. 

In this case, after the final radon barrier is complete except for 

the continuing disposal area, (a) only byproduct material will be 

authorized for disposal, (b) the disposal will be limited to the 

specified existing disposal area, and (c) this authorization will 

only be made after providing opportunity for public participation. 

Reclamation of the disposal area, as appropriate, must be completed 

in a timely manner after disposal operations cease in accordance 

with paragraph (1) of Criterion 6; however, these actions are not 

required to be complete as part of meeting the deadline for final 

radon barrier construction.

 Dated at Rockville, Maryland, this 24th day of May, 1994.

 For the Nuclear Regulatory Commission.

John C. Hoyle,

Acting Secretary of the Commission.

[FR Doc. 94-13248 Filed 5-31-94; 8:45 am]

BILLING CODE 7590-01-P