Editorial Note on Part 40
Editorial Note: Nomenclature changes to part 40 appear at 79 FR 75740, Dec. 19, 2014.

§ 40.28 General license for custody and long-term care of uranium or thorium byproduct materials disposal sites. ( a ) A general license is issued for the custody of and long-term care, including monitoring, maintenance, and emergency measures necessary to protect the public health and safety and other actions necessary to comply with the standards in this part for uranium or thorium mill tailings sites closed under title II of the Uranium Mill Tailings Radiation Control Act of 1978, as amended. The licensee will be the Department of Energy, another Federal agency designated by the President, or a State where the disposal site is located. The purpose of this general license is to ensure that uranium and thorium mill tailings disposal sites will be cared for in such a manner as to protect the public health, safety, and the environment after closure.
( b ) The general license in paragraph (a) of this section becomes effective when the Commission terminates, or concurs in an Agreement State's termination of, the current specific license and a site Long-Term Surveillance Plan (LTSP) meeting the requirements of this section has been accepted by the Commission. There is no termination of this general license. If the LTSP has not been formally received by the NRC prior to termination of the current specific license, the Commission may issue a specific order to the intended custodial agency to ensure continued control and surveillance of the disposal site to protect the public health, safety, and the environment. The Commission will not unnecessarily delay the termination of the specific license solely on the basis that an acceptable LTSP has not been received. The LTSP may incorporate by reference information contained in documents previously submitted to the Commission if the references to the individual incorporated documents are clear and specific. Each LTSP must include— ( 1 ) A legal description of the disposal site to be transferred (unless transfer is exempted under provisions of the Atomic Energy Act, § 83(b)(1)(A)) and licensed;
( 2 ) A detailed description, which can be in the form of a reference of the final disposal site conditions, including existing groundwater characterization. This description must be detailed enough so that future inspectors will have a baseline to determine changes to the site and when these changes are serious enough to require maintenance or repairs;
( 3 ) A description of the long-term surveillance program, including proposed inspection frequency and reporting to the Commission (as specified in appendix A, Criterion 12 of this part), frequency and extent of groundwater monitoring if required, appropriate constituent concentration limits for groundwater, inspection personnel qualifications, inspection procedures, recordkeeping and quality assurance procedures;
( 4 ) The criteria for follow-up inspections in response to observations from routine inspections or extreme natural events; and
( 5 ) The criteria for instituting maintenance or emergency measures.
( c ) The long-term care agency who has a general license established by paragraph (a) of this section shall— ( 1 ) Implement the LTSP as described in paragraph (b) of this section;
( 2 ) Care for the disposal site in accordance with the provisions of the LTSP;
( 3 ) Notify the Commission of any changes to the LTSP; the changes may not conflict with the requirements of this section;
( 4 ) Guarantee permanent right-of-entry to Commission representatives for the purpose of periodic site inspections; and
( 5 ) Notify the Commission prior to undertaking any significant construction, actions, or repairs related to the disposal site, even if the action is required by a State or another Federal agency.
( d ) Upon application, the Commission may issue a specific license, as specified in the Uranium Mill Tailings Radiation Control Act of 1978, as amended, permitting the use of surface and/or subsurface estates transferred to the United States or a State. Although an application may be received from any person, if permission is granted, the person who transferred the land to DOE or the State shall receive the right of first refusal with respect to this use of the land. The application must demonstrate that— ( 1 ) The proposed action does not endanger the public health, safety, welfare, or the environment;
( 2 ) Whether the proposed action is of a temporary or permanent nature, the site would be maintained and/or restored to meet requirements in appendix A of this part for closed sites; and
( 3 ) Adequate financial arrangements are in place to ensure that the byproduct materials will not be disturbed, or if disturbed that the applicant is able to restore the site to a safe and environmentally sound condition.
( e ) The general license in paragraph (a) of this section is exempt from parts 19, 20, and 21 of this chapter, unless significant construction, actions, or repairs are required. If these types of actions are to be undertaken, the licensee shall explain to the Commission which requirements from these parts apply for the actions and comply with the appropriate requirements.
( f ) In cases where the Commission determines that transfer of title of land used for disposal of any byproduct materials to the United States or any appropriate State is not necessary to protect the public health, safety or welfare or to minimize or eliminate danger to life or property (Atomic Energy Act, § 83(b)(1)(A)), the Commission will consider specific modifications of the custodial agency's LTSP provisions on a case-by-case basis.
[55 FR 45599, Oct. 30, 1990, as amended at 81 FR 86909, Dec. 2, 2016]