[Federal Register Volume 84, Number 21 (Thursday, January 31, 2019)]
[Proposed Rules]
[Pages 574-578]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-00435]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 40

[NRC-2008-0421]
RIN 3150-AI40


Ground Water Protection at Uranium In Situ Recovery Facilities

AGENCY: Nuclear Regulatory Commission.

ACTION: Request for comment.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is requesting 
views from interested stakeholders on whether the NRC should resume 
rulemaking to amend its regulations governing the domestic licensing of 
source material by codifying general requirements to address ground 
water protection at uranium in situ recovery (ISR) facilities. The NRC 
currently regulates ISR operations through application of regulations 
that primarily focus on conventional uranium mills and site-specific 
license conditions. The NRC initiated rulemaking in 2006 to develop 
requirements to provide regulatory consistency and improve the 
efficiency of the ISR licensing process but placed this rulemaking on 
hold in 2010. Information provided to the NRC during the public comment 
period will be factored into the decision as to whether the NRC will 
continue this rulemaking.

DATES: Submit comments by March 4, 2019. Comments received after this 
date will be considered if it is practical to do so, but the NRC is 
able to ensure consideration only for comments received on or before 
this date. The NRC will not prepare written responses to each 
individual comment but will consider each in determining the path 
forward for this rulemaking.

ADDRESSES: You may submit comments by any of the following methods:
    <bullet> Federal Rulemaking Website: Go to http://www.regulations.gov and search

[[Page 575]]

for Docket ID NRC-2008-0421. Address questions about NRC dockets to 
Carol Gallagher; telephone: 301-415-3463; email: 
<a href="/cdn-cgi/l/email-protection#91d2f0e3fefdbfd6f0fdfdf0f6f9f4e3d1ffe3f2bff6fee7"><span class="__cf_email__" data-cfemail="e1a280938e8dcfa6808d8d8086898493a18f9382cf868e97">[email protected]</span></a>. For technical questions contact the 
individuals listed in the FOR FURTHER INFORMATION CONTACT section of 
this document.
    <bullet> Email comments to: <a href="/cdn-cgi/l/email-protection#550720393038343e3c3b327b163a3838303b2126153b27367b323a23"><span class="__cf_email__" data-cfemail="80d2f5ece5ede1ebe9eee7aec3efedede5eef4f3c0eef2e3aee7eff6">[email protected]</span></a>. If you do 
not receive an automatic email reply confirming receipt, then contact 
us at 301-415-1677.
    <bullet> Fax comments to: Secretary, U.S. Nuclear Regulatory 
Commission at 301-415-1101.
    <bullet> Mail comments to: Secretary, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001, ATTN: Rulemakings and 
Adjudications Staff.
    <bullet> Hand deliver comments to: 11555 Rockville Pike, Rockville, 
Maryland 20852, between 7:30 a.m. and 4:15 p.m. (Eastern Time) Federal 
workdays; telephone: 301-415-1677.
    For additional direction on obtaining information and submitting 
comments, see ``Obtaining Information and Submitting Comments'' in the 
SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Andrew G. Carrera, telephone: 301-415-
1078; email: <a href="/cdn-cgi/l/email-protection#b5f4dbd1c7d0c29bf6d4c7c7d0c7d4f5dbc7d69bd2dac3"><span class="__cf_email__" data-cfemail="80c1eee4f2e5f7aec3e1f2f2e5f2e1c0eef2e3aee7eff6">[email protected]</span></a>; or Gary Comfort, telephone: 301-
415-8106; email: <a href="/cdn-cgi/l/email-protection#327553404b1c715d5f545d4046725c40511c555d44"><span class="__cf_email__" data-cfemail="a1e6c0d3d88fe2ceccc7ced3d5e1cfd3c28fc6ced7">[email protected]</span></a>. Both are staff of the Office of 
Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001.

SUPPLEMENTARY INFORMATION: 

I. Obtaining Information and Submitting Comments

A. Obtaining Information

    Please refer to Docket ID NRC-2008-0421 when contacting the NRC 
about the availability of information for this action. You may obtain 
publicly-available information related to this action by any of the 
following methods:
    <bullet> Federal Rulemaking Website: Go to http://www.regulations.gov and search for Docket ID NRC-2008-0421.
    <bullet> NRC's Agencywide Documents Access and Management System 
(ADAMS): You may obtain publicly-available documents online in the 
ADAMS Public Documents collection at http://www.nrc.gov/reading-rm/adams.html. To begin the search, select ``Begin Web-based ADAMS 
Search.'' For problems with ADAMS, please contact the NRC's Public 
Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or 
by email to <a href="/cdn-cgi/l/email-protection#a9d9cddb87dbccdac6dcdbcacce9c7dbca87cec6df"><span class="__cf_email__" data-cfemail="e3938791cd9186908c96918086a38d9180cd848c95">[email protected]</span></a>. For the convenience of the reader, 
instructions about obtaining materials referenced in this document are 
provided in the ``Availability of Documents'' section.
    <bullet> NRC's PDR: You may examine and purchase copies of public 
documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 
Rockville Pike, Rockville, Maryland 20852.

B. Submitting Comments

    Please include Docket ID NRC-2008-0421 in your comment submission.
    The NRC cautions you not to include identifying or contact 
information that you do not want to be publicly disclosed in your 
comment submission. The NRC will post all comment submissions at http://www.regulations.gov as well as enter the comment submissions into 
ADAMS. The NRC does not routinely edit comment submissions to remove 
identifying or contact information.
    If you are requesting or aggregating comments from other persons 
for submission to the NRC, then you should inform those persons not to 
include identifying or contact information that they do not want to be 
publicly disclosed in their comment submission. Your request should 
state that the NRC does not routinely edit comment submissions to 
remove such information before making the comment submissions available 
to the public or entering the comment into ADAMS.

II. Background

    In situ recovery is a method used to extract uranium from 
underground ore bodies without physical excavation. It is also known as 
``solution mining'' or in situ leaching. In the ISR process, a solution 
called lixiviant is pumped into the subsurface. In the United States, 
lixiviant typically contains water mixed with oxygen and/or hydrogen 
peroxide, as well as sodium carbonate or carbon dioxide. The lixiviant 
dissolves the uranium, located in the underground ore body, into the 
solution. The solution is then pumped to the surface, where it 
undergoes additional processing and concentration to produce a solid 
form of uranium called ``yellowcake.'' The yellowcake is ultimately 
used in the manufacture of fuel for nuclear reactors.
    The licensed area of a typical uranium ISR facility covers several 
square miles and may include several discrete or contiguous wellfields, 
some of which may be operating while others may be in restoration or 
decommissioning. Each ISR wellfield is composed of a series of 
injection and extraction wells drilled into a uranium ore body that has 
been identified in a subsurface geologic formation within the 
wellfield. The aquifer within the formation where the ore body is 
located is commonly referred to as the ``ore zone aquifer''. Currently, 
there are six ISR facilities operating in the United States.
    Uranium ISR was introduced in the late 1970s as an alternative to 
conventional uranium recovery, which involves extracting uranium ore 
from the earth, typically through deep underground shafts or shallow 
open pits. Ore extracted by conventional uranium recovery is 
transported to a mill, where it is crushed and undergoes a chemical 
process to remove the uranium. The uranium is then concentrated to 
produce yellowcake. The sandy waste resulting from crushing the uranium 
ore is known as ``uranium mill tailings'' or ``tailings.'' Tailings 
contain heavy metals and radioactive constituents, such as radium. 
Alternatively, uranium may be recovered from the ore using a heap leach 
process. In the heap leach process, the ore is placed on an engineered 
barrier and sprayed with acid. The uranium dissolves into solution and 
is collected at the engineered barrier. The solution undergoes 
additional chemical processing to produce yellowcake. Currently, there 
is one operating conventional uranium mill and there are no operating 
heap leach facilities in the United States.
    The NRC licenses ISR facilities under part 40 of title 10 of the 
Code of Federal Regulations (10 CFR), ``Domestic Licensing of Source 
Material,'' because these facilities possess and use source 
material.\1\ The possession and use of source material are activities 
that require a license from the NRC under the Atomic Energy Act of 
1954, as amended (AEA).\2\ The waste (tailings) generated as a result 
of the ISR process falls within a category of byproduct material 
defined in section 11e.(2) of the AEA. Specifically, in section 
11e.(2), byproduct material is defined as ``the tailings or wastes 
produced by the extraction or concentration of uranium or thorium from 
any ore processed

[[Page 576]]

primarily for its source material content.'' \3\
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    \1\ The term ``source material'' is defined as ``(1) Uranium or 
thorium, or any combination thereof, in any physical or chemical 
form or (2) ores which contain by weight one-twentieth of one 
percent (0.05%) or more of: (i) Uranium, (ii) thorium or (iii) any 
combination thereof.'' 10 CFR 40.4, ``Definitions''.
    \2\ AEA, Sec.  62, 42 U.S.C. 2092 (``Unless authorized by a 
general or specific license issued by the [Nuclear Regulatory] 
Commission . . . no person may transfer or receive in interstate 
commerce, transfer, deliver, receive possession of or title to, or 
import into or export from the United States any source material 
after removal from its place of deposit in nature . . .'').
    \3\ AEA, Sec.  11e.(2); 42 U.S.C. 2014(e)(2). In 10 CFR 40.4, 
the NRC further defines section 11e.(2) byproduct material as ``the 
tailings or wastes produced by the extraction or concentration of 
uranium or thorium from any ore processed primarily for its source 
material content, including discrete surface wastes resulting from 
uranium solution extraction processes. Underground ore bodies 
depleted by such solution extraction operations do not constitute 
`byproduct material' within this definition.''
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    Under the Uranium Mill Tailings Radiation Control Act of 1978 
(UMTRCA) (Pub. L. 95-604), the NRC is responsible for regulating 
section 11e.(2) byproduct material at sites where such material is 
generated. Congress enacted UMTRCA to provide public health, safety, 
and environmental protection from the radiological and non-radiological 
hazards associated with the processing, possession, transfer, and 
disposal of AEA section 11e.(2) byproduct material. The UMTRCA amended 
the AEA by adding to it the section 11e.(2) definition of byproduct 
material and sections 84 and 275.
    The AEA, as amended by UMTRCA, established a dual regulatory scheme 
over the domestic uranium milling industry between the U.S. 
Environmental Protection Agency (EPA) and the NRC. Under section 275b. 
of the AEA, the EPA is authorized to issue standards of general 
applicability for the protection of health, safety, and the environment 
from radiological and non-radiological hazards associated with the 
processing of section 11(e)(2) byproduct material.\4\ Under AEA section 
84,\5\ the NRC or the appropriate Agreement State \6\ is responsible 
for implementing the EPA's generally applicable standards. In this 
regard, the NRC or the applicable Agreement State entity is the 
regulatory or licensing agency for all uranium recovery facilities, 
including ISR facilities, and is responsible for inspecting the 
facility and enforcing the terms and conditions of the operating 
license.\7\
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    \4\ 42 U.S.C. 2022(b).
    \5\ 42 U.S.C. 2114.
    \6\ Section 274 of the AEA authorizes the NRC to relinquish or 
discontinue its regulatory authority over certain categories of 
radioactive material to a State following a duly executed agreement 
between the NRC and the governor of the State. 42 U.S.C. 2021. After 
the agreement is entered into, the State, now an ``Agreement 
State,'' must promulgate or adopt regulations compatible to those 
NRC regulations that govern the subject matter areas relinquished to 
the Agreement State.
    \7\ AEA Sec.  275b.(2); 42 U.S.C. 2022(b)(2) (``no permit issued 
by the [EPA] Administrator is required under this Act or the 
[Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq.] for 
the processing, possession, transfer, or disposal of [section 
11e.(2)] byproduct material'').
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    The EPA first issued generally applicable standards on October 7, 
1983 (48 FR 45926) and updated these standards on November 15, 1993 (58 
FR 60340). The EPA codified these standards into its regulations at 40 
CFR part 192, ``Health and Environmental Protection Standards for 
Uranium and Thorium Mill Tailings,'' subpart D, ``Standards for 
Management of Uranium Byproduct Materials Pursuant to Section 84 of the 
Atomic Energy Act of 1954, as amended.'' The NRC issued its 
implementing regulations on October 16, 1985 (50 FR 41852) and further 
amended them in subsequent rulemakings.\8\ The NRC codified its 
implementing regulations at 10 CFR part 40, ``Domestic Licensing of 
Source Material,'' appendix A, ``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.''
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    \8\ Substantive amendments include 52 FR 43553 (November 13, 
1987) (NRC conforming amendments not covered in the October 16, 1985 
rule); 53 FR 19240 (May 27, 1988) (record retention periods); 59 FR 
28220 (June 1, 1994) (emplacement of final radon barrier on 
conventional mill tailings piles); and 76 FR 35512 (June 17, 2011) 
(financial assurance requirements associated with decommissioning 
planning).
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    In the 1990s, ISR operations became the predominant means of 
extracting uranium in the United States. In COMJSM-06-0001, 
``Regulation of Groundwater Protection at In Situ Leach Uranium 
Extraction Facilities,'' dated January 17, 2006 (ADAMS Accession No. 
ML060830041), NRC Commissioner Merrifield stated:

[W]hile the staff has done its best to regulate [ISR] licensees 
through the generally applicable requirements in Part 40 and 
imposition of license conditions, our failure to promulgate specific 
regulations for [ISRs] has resulted in an inconsistent and 
ineffective regulatory program. We have been attempting to force a 
square peg into a round hole for years, and I believe we should 
finally remedy this situation through notice and comment rulemaking. 
In developing a proposed rule, the staff should formulate a 
regulatory framework that is tailored specifically to this unique 
group of licensees.

In the Commission's subsequent staff requirements memorandum, dated 
March 23, 2006 (ADAMS Accession No. ML060820503), the Commission 
approved the initiation of a rulemaking for the purpose of providing 
clarity, predictability, and consistency to the licensing and 
regulation of ISR facilities.
    In 2010, the EPA informed the NRC that it would undertake its own 
rulemaking effort to issue generally applicable standards for ISRs. The 
NRC then deferred its ongoing ISR rulemaking effort, prior to the 
publication of a proposed rule, in anticipation of the need to conform 
its implementing regulations to the generally applicable standards to 
be issued by the EPA. The EPA issued its proposed rule on January 26, 
2015 (80 FR 4156). Subsequently, the EPA decided to re-propose the rule 
and seek additional public comment. The EPA issued the re-proposed 
rule, superseding the January 2015 proposed rule, on January 19, 2017 
(82 FR 7400). The NRC had jurisdictional and technical concerns with 
both the January 2015 and January 2017 proposed rules and submitted 
comments addressing these concerns on July 18, 2017 (ADAMS Accession 
No. ML17173A638).
    On October 30, 2018 (83 FR 54543), the EPA withdrew its proposed 
rule. The EPA concluded, based on comments from stakeholders, that it 
had serious questions concerning whether it has the legal authority 
under UMTRCA to issue the regulations as provided in the 2017 proposed 
rule. The EPA also concluded that the existing regulatory framework was 
sufficient to ensure the protection of public health and the 
environment at existing ISRs. Finally, the EPA stated that, given 
current and foreseeable market conditions, the uranium recovery 
industry was not likely to have the robust growth that was anticipated 
in the 2000s. Given the EPA's withdrawal of its proposed rule, the NRC 
must now decide whether to proceed with its 2006 ISR-specific 
rulemaking, held in abeyance since 2010.

III. Discussion

    The current version of appendix A to 10 CFR part 40 provides a 
generic set of regulations for the operation of conventional uranium 
mills. With respect to the NRC's licensing of ISR facilities, the 
current regulations in appendix A, coupled with the conditions of ISR 
site-specific licenses and the NRC's ongoing oversight of the 
licensees' operations, provide adequate protection to the public health 
and safety and the environment. The NRC's purpose in promulgating a 
generic set of regulations for the operation of ISRs is to standardize 
existing NRC ISR licensing and oversight practices and to ensure 
consistency in the NRC staff's evaluation and approval of ISR license 
applications. In addition, the promulgation of generic regulations for 
ISR facilities would provide a national regulatory framework from which 
Agreement States can, in turn, promulgate their own compatible 
regulatory standards. If the NRC continues with this rulemaking, the 
amendments to appendix A would be

[[Page 577]]

based upon many of the license conditions that are contained in current 
NRC-issued site-specific ISR licenses and would be further informed by 
the approved methodologies and best practices set forth in those NRC 
guidance documents that are applicable to ISR activities.
    ISR operations are substantially different from those of 
conventional uranium milling, including the measures taken to ensure 
the protection of groundwater. The requirements for groundwater 
protection at conventional uranium mills are mainly concerned with the 
prevention, detection, and correction of contamination in shallow 
aquifers from seepage and leaks associated with the long-term 
management of mill tailings impoundments. At ISR facilities, however, 
the main concern is contamination of the surrounding groundwater by the 
short-term degradation of the water quality in the ore zone aquifer 
during ISR operations. Specifically, the groundwater chemistry in the 
ore zone aquifer is altered by the injection of lixiviant, which along 
with dissolving the uranium located in the underground ore body, also 
mobilizes hazardous constituents such as metals and radionuclides like 
radium. If the lixiviant is not controlled within the ore zone aquifer, 
then these hazardous constituents may migrate outside the ISR wellfield 
and potentially contaminate surrounding groundwater and connected 
surface water. Therefore, the NRC and the Agreement States have 
included license conditions in ISR licenses requiring ISR licensees to 
satisfy certain technical criteria that will protect surrounding 
groundwater during ISR operations and restore the water quality in ore 
zone aquifers after ISR operations. Unlike conventional mill tailings 
impoundments that require long-term management for groundwater 
protection, ISR wellfields may be decommissioned and the ISR license 
terminated once groundwater restoration requirements are met.
    The NRC initiated the ISR rulemaking in 2006 to provide regulatory 
predictability and consistency to the licensing process for ISRs. By 
establishing a generic set of requirements for ISR activities, the rule 
would improve regulatory efficiency and make the NRC's review process 
for ISR license applications and amendments more consistent and 
transparent to the public and industry.
    Most ISR facilities currently in operation are licensed by 
Agreement States. One of the requirements of the NRC's Agreement State 
program is that the regulations of an Agreement State must be 
``compatible'' with the NRC's regulatory program.\9\ Therefore, in 
accordance with the NRC's Agreement State program, the promulgation of 
an NRC rulemaking specific to ISR facilities would require Agreement 
States to conform their regulations, to the extent appropriate, to the 
new or amended NRC regulations. The benefit of having Agreement States 
conform their regulations would be the establishment of a relatively 
uniform \10\ set of both groundwater protection and radiation health 
and safety requirements for ISR facilities nationwide.
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    \9\ Agreement State Program Policy Statement, 82 FR 48535-39 
(October 18, 2017); see also id. at 48536-37 (``The NRC and the 
Agreement States have the responsibility to ensure that the 
radiation control programs are compatible. Such radiation control 
programs should be based on a common regulatory philosophy including 
the common use of definitions and standards. The programs should be 
effective and cooperatively implemented by the NRC and the Agreement 
States and also should provide uniformity and achieve common 
strategic outcomes in program areas of national significance.'').
    \10\ Based upon the compatibility category (see id. at 48538-39) 
that the NRC assigns to each new or amended regulation, Agreement 
States should have a substantial degree of flexibility in 
promulgating their conforming regulations. Id. at 48537 (``With the 
exception of those compatibility areas where programs should be 
essentially identical, Agreement State radiation control programs 
have flexibility in program implementation and administration to 
accommodate individual State preferences, State legislative 
direction, and local needs and conditions.'').
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    In light of the EPA's withdrawal of its January 2017 proposed rule, 
the NRC is now conducting an assessment of the requirements in 10 CFR 
part 40 appendix A pertaining to the licensing of ISRs and is 
requesting input from members of the public about the topics discussed 
in the ``Request for Comments'' section. The information received from 
this request will be factored into the decision whether to continue 
this rulemaking.

IV. Request for Comments

    The NRC welcomes general comments and seeks comments in response to 
the numbered items in this section. In responding to these numbered 
items, please provide your rationale or justification for your 
position. In addition, please provide a discussion of any factors that 
you considered in providing your opinion and any recommendations to 
assist the NRC in improving its regulatory process. The factors that 
the NRC must consider in determining whether to proceed with this 
rulemaking include technical feasibility, a cost-benefit analysis, and 
consistency and clarity of applicable regulations for the adequate 
protection of the health and safety and the environment.
    1. If the NRC were to proceed with its ISR rulemaking that has been 
held in abeyance since 2010, the NRC would amend its current uranium 
milling regulations in appendix A to 10 CFR part 40 to add ISR-specific 
requirements. Should the NRC proceed with this rulemaking?
    2. Please identify any issues that should be addressed to protect 
groundwater at ISR facilities, in either this rulemaking or through the 
development of guidance documents.
    3. Please identify any issues that should be addressed to enhance 
public or occupational safety at ISR facilities, in either this 
rulemaking or through the development of guidance documents.
    4. Please identify any issues that should be addressed to establish 
a relatively uniform set of requirements for ISR facilities nationwide 
(both in Agreement States and in non-Agreement States).

VI. Availability of Documents

    The documents identified in the following table are available to 
interested persons through one or more of the following methods, as 
indicated.

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                                                  ADAMS accession No./
                   Document                    Federal Register citation
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COMJSM-06-0001, ``Regulation of Groundwater    ML060830041
 Protection at In Situ Leach Uranium
 Extraction Facilities,'' dated January 17,
 2006.
Staff Requirements Memorandum-COMJSM-06-0001,  ML060820503
 ``Regulation of Groundwater Protection at In
 Situ Leach Uranium Extraction Facilities,''
 dated March 23, 2006.

[[Page 578]]

 
``40 CFR Part 192, Health and Environmental    82 FR 7400
 Protection Standards for Uranium and Thorium
 Mill Tailings; Proposed Rule,'' January 19,
 2017.
``40 CFR Part 192, Health and Environmental    83 FR 54543
 Protection Standards for Uranium and Thorium
 Mill Tailings; Proposed Rule; Withdrawal,''
 October 30, 2018.
NUREG-1569, ``Standard Review Plan for In      ML032310005
 Situ Leach Uranium Extraction License
 Applications: Final Report,'' June 2003.
``NRC Staff's Comments on EPA Proposed         ML17173A638
 Rulemaking for 40 CFR Part 192 Rule, 82 FR
 7400,'' July 17, 2017.
``40 CFR Part 192, Environmental Standards     48 FR 45926
 for Uranium and Thorium Mill Tailings at
 Licensed Commercial Processing Sites; Final
 Rule,'' October 7, 1983.
``40 CFR Part 192, Environmental Standards     58 FR 60340
 for Uranium and Thorium Mill Tailings at
 Licensed Commercial Processing Sites; Final
 Rule,'' November 15, 1993.
``Uranium Mill Tailings Regulations;           50 FR 41852
 Conforming NRC Requirements to EPA
 Standards; Final Rule,'' October 16, 1985.
``40 CFR Part 192, Health and Environmental    80 FR 4156
 Protection Standards for Uranium and Thorium
 Mill Tailings; Proposed Rule,'' January 26,
 2015.
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    Throughout the development of this assessment, the NRC may post 
related documents, including public comments, on the Federal rulemaking 
website at http://www.regulations.gov under Docket ID NRC-2008-0421. 
The Federal rulemaking website allows you to receive alerts when 
changes or additions occur in a docket folder. To subscribe: (1) 
Navigate to the docket folder (NRC-2008-0421); (2) click the ``Sign up 
for Email Alerts'' link; and (3) enter your email address and select 
how frequently you would like to receive emails (daily, weekly, or 
monthly).

    Dated at Rockville, Maryland, this 28th day of January 2019.

    For the Nuclear Regulatory Commission.
Theresa V. Clark,
Deputy Director, Division of Rulemaking, Office of Nuclear Material 
Safety and Safeguards.
[FR Doc. 2019-00435 Filed 1-30-19; 8:45 am]
 BILLING CODE 7590-01-P


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