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Part III

Environmental

Protection Agency

40 CFR Part 61

National Emissions Standards for

Hazardous Air Pollutants; Final Rule

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

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 61

[FRL-6011-1]

RIN 2060-AE23

National Emissions Standards for

Hazardous Air Pollutants

AGENCY- Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY, EPA is rescinding 40 CFR part

61, subpart T (subpart T) as it applies to

owners and operators of uranum mill

tailings disposal sites licensed by the

Nuclear Regulatory Commission (NRC)

or an affected Agreement State

(Agreement States). As required by

section 112(d)(9) of the Clean Air Act as

amended, EPA has determined that the

NRC regulatory program protects public

health with an ample margin of safety

to the same level as would

implementation of subpart T Subpart T

is a National Emission Standard for

Hazardous Air Pollutants (NESHAPs)

which was published on December 15,

1989 and which regulates emissions of

radon-222 into the ambient air from

uranium mill tailings disposal sites.

Subpart T continues to apply to

unlicensed uranium mill tailings

disposal sites currently regulated under

subpart T that are under the control of

the Department of Energy (DOE).

DATES: This rule is effective June 29,

1994. The provisions in this rule will be

applied immediately to all affected

facilitiesincluding existing sources.

Under section 307(b)(1) of the Clean Air

Act, judicial review of this final action

is available only by filing a petition for

review in the United States Court of

Appeals for the District of Columbia

Circuit within 60 days of publication of

this rule. Under section 307(b)(2) of the

Act, the provisions which are the

subject of today's rule will not be

subject to.judicial review In any civil or

criminal proceedings brought by EPA to

enforce these requirements.

FOR FURTHER INFORMATION CONTACT, Gale

C. Bonanno, Risk Assessment and Air

Standards Branch, Criteria and

Standards Division, 6602J, Office of

Radiation and Indoor Air,

Environmental Protection Agency

Washington, D.C. 20460 (202) 233-9219.

SUPPLEMENTARY INFORMATION:

Docket

Docket A-91-67 contains the

rulemaking record. The docket is

available for public inspection between

the hours of 8 a.m. and 4 p.m., Monday

through Friday, in room M1500 of

Waterside Mall, 401 M Street, SW

Washington, DC 20460. A reasonable fee

may be charged for copying.

Table of Contents

I. Background

A. Description of Uranium Mill Tailings

B. Regulatory History

C. Clean Air Act Amendments of 1990

D. Memorandum of Understanding (MOU)

between EPA, NRC and affected

Agreement States

E. The Settlement Agreement

II. Rationale for Final Rule to Rescind 40 CFR

Part 61 Subpart T for NRC and Agreement

State Licensees

A. The Regulatory Scheme Under UMTRCA

B. Clean Air Act Amendments of 1990:

Section 112(d)(9) ("Simpson

Amendment")

C. Memorandum of Understanding (MOU)

D. Settlement Agreement

E. Actions by NRC and EPA Pursuant to the

MOU and Settlement Agreement

1. EPA Regulatory Actions

2. NRC Regulatory Action

3. Amendment of NRC and Agreement

State Licenses

1II. Final Rule to Rescind 40 CFR Part 61,

Subpart T for NRC and Agreement State

Licensees

A. EPA Determination under CAA Section

112(d)(9)

1. Background

2. EPA's UMTRCA Standards

3. NRC's Conforming Regulations

4. License Amendments

5. Judicial or Administrative Challenges

B. Reconsideration Provisions

1. December 31, 1991 Proposed Rule to

Rescind subpart T

2. Reconsideration Options

3. Reconsideration Provisions Adopted

Today

IV Discussion of Comments and Response to

Comments From NPR

V Miscellaneous

A. Disposition of Pending Judicial Challenges

and Petitions for Reconsideration

B. Paperwork Reduction Act

C. Executive Order 12866

D. Regulatory Flexibility Analysis

1. Background

A. Description of Uranium Mill Tailings

Uranium mill tailings are sand-like

wastes that result from the processing of

uranium ore. Tailings are stored in large

surface impoundments, called piles, in

amounts from less than one million tons

to over thirty million tons, over areas

that may cover hundreds of acres. Most

piles are located in the Western United

States, and all piles emit radon gas, a

decay product of radium in the waste

material resulting from the processing of

ore to recover uranium at the uranium

mills.

B. Regulatory History

To deal specifically with the risks

associated with these tailings, Congress

passed the Uranium Mill Tailings

Radiation Control Act (UMTRCA) in

1978 (42 U.S.C. 2022, 7901-7942). In

enacting UMTRCA, Congress found that

uranium mill tailings may pose a

potential and significant radiation

health hazard to the public, and that

every reasonable effort should be made

to provide for the stabilization, disposal,

and control in a safe and

environmentally sound manner of such

tailings in order to prevent or minimize

radon diffusion into the environment

and to prevent or minimize other

environmental hazards from such

tailings. See 42 U.S.C. 7901(a). Under

UMTRCA, two programs were

established to protect public health and

the environment from the hazards

associated with uranium mill tailings.

One program (Title I) required the

Department of Energy (DOE) to conduct

the necessary remedial actions at

designated inactive uranium mill tailing

sites to achieve compliance with the

general environmental standards to be

promulgated by EPA. These sites were

generally abandoned uranium

processing sites for which a license

issued by the NRC or its predecessor,

the Atomic Energy Commission (AEC),

was not in effect on January 1, 1978.

The other program (Title II) pertained to

active sites, which are those that are

licensed by the NRC or an affected

Agreement State. Requirements for

licensed sites include the final disposal

of tailings, including the control of

radon after milling operations cease.

UJMTRCA also required that EPA

promulgate standards for these licensed

sites, including standards that protect

human health and the environment in a

manner consistent with standards

established under Subtitle C of the Solid

Waste Disposal Act, as amended. The

NRC, or an Agreement State, is

responsible for implementing the EPq

standards at licensed uranium milling

sites.

As part of NRC's 1982 authorization

and appropriations, Congress amended

UMTRCA on January 4, 1983. Public

Law 97-415, sections 18(a) and 22(b),

reprinted in 2 1982 U.S. Code Cong. &

Admin. News (96 Stat.) 2077 and 2080.

As partially amended thereby EPA was

required to promulgate standards of

general applicability for the protection

of the public health, safety and the

environment from radiological and

nonradiological hazards associated with

the processing and with the possession.

transfer, and disposal of byproduct

material as defined under section 1 e(2)

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of the AEA, e.g., uranium mill tailings.

Requirements established by the NRC

with respect to byproduct material must

conform to the EPA standards. Any

requirements of such standards adopted

by the NRC shall be amended as the

NRC deems necessary to conform to

EPA's standards. In establishing such

standards, the Administrator was to

consider the risk to the public health,

safety and the environment, the

environmental and economic costs of

applying such standards, and such other

factors as the Administrator determines

to be appropriate. See 42 U.S.C.

2022(b)(1).

As promulgated by EPA under

subpart D of 40 CFR part 192 in 1983

and implemented by NRC pursuant to

its'regulations at 10 CFR part 40,

appendix A, a Title II site licensed by

NRC or an Agreement State, could

indefinitely continue to emit radon at

levels that could result in risks higher

than allowed under the CAA. It was this

possibility which compelled EPA to

promulgate subpart T of 40 CFR part 61

under CAA section 112. In addition, the

UMTRCA regulations called for an

impoundment design that would

.achieve compliance with the 20 pCi/m 2

-

s flux standard for 1,000 years, or at

least 200 years, but prior to the recent

EPA amendments did not include any

requirement that monitoring occur to

verify the efficacy of the design.

On October 16, 1985, NRC

promulgated rules at 10 CFR part 40,

appendix A to conform NRC's

regulations issued five years earlier to

the provisions of EPA's general

UMTRCA standards other than those

affecting groundwater protection at 40

CFR part 192 (50 FR 41852). NRC

completed conforming amendments for

groundwater protection in appendix A

of 10 CFR part 40 in 1987

Neither the UMTRCA standards

promulgated by EPA in 1983 nor the

NRC standards promulgated in 1980 and

amended in 1985, established

compliance schedules to ensure that

non-operational tailings piles would be

closed, and that the 20 pCi/m--s

standard would be met, within a

reasonable period of time. Moreover, the

EPA standards and NRC criteria also did

not require monitoring to ensure

compliance with the flux standard. 50

FR 41852 (October 16, 1985). To rectify

these shortcomings of the then current

EPA and NRC programs regulating

uranium mill tailings, EPA promulgated

standards under Section 112 of the CAA

on October 31, 1989, to ensure that the

piles would be closed in a timely

manner with monitoring.

On December 15, 1989, EPA

published national standards regulating

radionuclide emissions to the ambient

air from several source categories,

including non-operational sites used for

the disposal of uranium mill tailings.

(54 FR 51654). These sites are either

under the control of the DOE pursuant

to Title I of the Uranium Mill Tailings

Radiation Control Act (UMTRCA) of

1978, 42 USC 7901 et. seq., or are under

the control of NRC or Agreement Statelicensees pursuant to Title II of

UMTRCA. These standards-subpart T

of 40 CFR part 61 (subpart T)-were

promulgated pursuant to the authority

of Clean Air Act (CAA or Act) section

112 as it existed in 1989.

Prior to today's action, subpart T of 40

CFR part 61, limited radon-222

emissions to the ambient air from nonoperational uranium mill tailings

disposal sites licensed by the NRC or an

affected Agreement State. Subpart T

required that these sites, which consist

of large (i.e., numerous acre)

impoundments or piles, comply with a

radon flux standard of 20 pCi/m 2-s. 40

CFR 61.222(a). Moreover, compliance

must be achieved within two years of

when the site becomes non-operational,

40 CFR 61.222(b), which for piles which

had ceased operation prior to the time

of promulgation was no later than

December 15, 1991. While at the time of

promulgation EPA recognized that many

sources might not be able to achieve this

date, EPA was constrained by then

existing CAA section 112(c)(1)(B)ii)

which allows a maximum of two years

for facilities to come into compliance.

EPA stated that for those sites which

could not meet the two-year date, the

Agency would negotiate expeditious

compliance schedules pursuant to its

enforcement authority under CAA

section 113. See 54 FR 51683. Subpart

T also called for monitoring and

recordkeeping to establish and

demonstrate compliance. See 40 CFR

61.223 and 61.224.

Subpart T was part of a larger

promulgation of radionuclide NESHAPs

that represent the Agency's application

of the policy for regulating pollutants

under then existing CAA section 112,

which was first announced in the

benzene NESHAPs. 54 FR 38044

(September 14, 1989). The-NESHAPs

policy utilized a two-step approach. In

the first step, EPA considered the

lifetime risk to the maximally exposed

individual, and found that it is

presumptively acceptable if it is no

higher than approximately one in ten

thousand. This -presumptive level

provides a benchmark for judging the

acceptability of a category of emissions.

This first step also considers other

health and risk factors such as projected

incidence of cancer, the estimated

number of persons exposed within each

individual lifetime risk range, the

weight of evidence presented in the risk

assessment, and the estimated incidence

of non-fatal cancer and other health

effects. After considering all of this

information, a final decision on a safe

level of acceptable risk is made. This

becomes the starting point for the

second step, determining the ample

margin of safety.

In the second step, EPA strives to

provide protection for the greatest

number of persons possible to an

individual lifetime risk level no higher

than approximately one in one million.

In this step, the Agency sets a standard

which provides an ample margin of

safety again considering all of the

health risk and other health information

considered in the first step, as well as

additional factors such as costs and

economic impacts of controls,

technological feasibility uncertdiuties,

and any other relevant factors.

EPA noted that standards it had

already promulgated pursuant to

UMTRCA (42 U.S.C. 2022, 7901-7942)

would eventually limit radon emissions

from those sites to a flux-of 20 pCi/m2-

s (see 40 CFR part 192, subpart D), and

thus EPA referred to that level as

"baseline." EPA's risk assessment

revealed that compliance with the 20

pCi/m 2-s baseline would result in an

estimated lifetime risk to the maximally

exposed individual of approximately lx10-4 a level EPA determined to be

safe under the first step of the analysis.

EPA further concluded in the second

step, which considers additional factors

such as cost and technological

feasibility that the baseline level also

provided an ample margin of safety.

Even though EPA determined that the

baseline was protective of public health

with an ample margin of safety. EPA

still found it was necessary to

promulgate subpart T. This was because

the baseline assumed compliance with

the UMTRCA regulations even though I

those regulations did not require that

compliance occur in the foreseeable

future and, in fact, many sites were not

proceeding towards the baseline level at

the time subpart T was promulgated. In

other words, EPA promulgated subpart

T to address the timing issue, which

was not addressed in the UMTRCA

regulations. The primary subpart T standard is the

requirement that radon-222 emissions

not exceed a flux of 20 pCi/m2 -s. 40 CFR

61.222(a). Additionally it requires that,

once a uranium mill tailings pile or

impoundment ceases to be operational,

it must be disposed of and brought into

compliance with the emission limit

within two years of the effective date of

36281

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the standard (by December 15, 1991) or

within two years of the day it ceases to

be operational, whichever is later.

Lastly, it requires monitoring of the

disposed pile to demonstrate

compliance with the radon emission

limit. See 40 CFR 61.223 and 61.224. In

its 1989 action, EPA recognized that

even though NRC implements general

EPA standards (promulgated under

UMTRCA) which also regulate these

sites and call for compliance with a 20

pCi/m 2-s flux standard (see 40 CFR part

192, subpart D), the UMTRCA

regulatory program did not answer the

critical timing concern addressed by

subpart T

The existing UMTRCA regulations set no

time limits for disposal of the piles. Some

piles have remained uncovered for decades

emitting radon. Although recent action has

been taken to move toward disposal of these

piles, some of them may still remain

uncovered for years.

54 FR at 51683: However, due to thenexisting CAA section 112(c)(1)(B)(ii),

EPA was constrained to requiring

compliance with the 20 pCi/m 2-s

baseline within two years, a date the

Agency recognized many sites might

find impossible to meet. EPA

announced that those situations could

be dealt with through site-specific

enforcement- agreements under CAA

section 113. Because EPA felt

constrained by the CAA as it existed at

that time, EPA stated that for those sites

the Agency would-negotiate expeditious

compliance schedules pursuant to its

enforcement authority under CAA

section 113. See 54 FR 51683. By so

doing, subpart T in effect mandated that

the cover to meet that emissions level be

installed as expeditiously as practicable

considering technological feasibility. The numerical radon emission limit

of subpart T is the same as the UMTRCA

standard at 40 CFR part 192, subpart D

(subpart D) (although under UMTRCA,

the limit is to be met through proper design of.the disposal impoundment,

and is to be implemented by DOE and

NRC for the individual sites, while

under the CAA, the standard is an

emissions limit with compliance

established by EPA through

monitoring). However, the two year

-disposal requirement and the radon

monitoring requirement were not

separately required by the then existing

UMTRCA regulations. EPA amended 40 CFR part 192,

subpart D on November 15, 1993; (58 FR

60340) to fill a specific regulatory gap

with respect to timing and monitoring.

Under subpart D, sites are now required

to construct a permanent radQn barrier

pursuant to a design to achieve

compliance with the 20 pCi/m 2 -s flux

standard as expeditiously as practicable

considenng technological feasibility

(including factors beyond the control of

the licensee). EPA announced fts goal

that this occur by December 31, 1997

for.those non-operational uranium mill

tailings piles listed in the MOU between

EPA, NRC and the affected Agreement

States (at 56 FR 67568), or seven years

after the date on which the

impoundments cease operation for all

other piles. The new requirement for

verifying the flux with monitoring is

meant to assure the efficacy of the

design of the permanent radon barrier

following construction.

Section 84a(2) of the Atomic Energy

Act requires NRC to conform its

regulations to EPA's regulations

promulgated under UMTRCA. As noted

above, the then existing NRC criteria

while providing a comprehensive

response to EPA's general UMTRCA

standards did not compel sites to

proceed to final closure by a certain date

nor did they require monitonng to

confirm the efficacy of the design of the

cover. NRC proposed uranium mill

-tailings regulations to conform the NRC

requirements to EPA's proposed

amended standards at 40 CFR part 192

subpart D. 58 FR 58657 (November 3,

1993). The final NRC regulations amend

Criterion 6 and add a new Criterion 6A

together with new definitions in the

Introduction to appendix A to part 40 of

title 10 of the CFR..(59 FR 28220, June

1, 1994).

These CAA and UMTRCA programs

duplicate each other by creating dual

regulatory oversight, including

independent procedural requirements,

while seeking to ensure compliance

with the same numerical 20 pCi/m 2-s

flux standard. Concern over this

duplication inspired several petitions for reconsideration, most notably from

NRC, the American Mining Congress

(AMC) and Homestake Mining Co. It

was also alleged that subpart T was

unlawful because it was physically

impossible for some sites to come into

compliance with subpart T in the time

required. While those petitions

remained pending before EPA (at least

in part), EPA has taken several actions

to address the issues they raised,

including publishing the proposal to

rescind subpart T, as well as the Final

Rule to amend 40 CFR part 192, subpart

D (UMTRCA regulations) and a Final

Rule staying subpart T pending the

.conclusion of this rulemaking.

C. Clean Air Act Amendments of 1990

After promulgation of subpart T (and

receipt of reconsideration petitions), the

Clean Air Act was substantially

amended in November 1990. Included

in the amended Act was an amendment

that speaks directly to the duplication

issue. Newlyenacted section 112(d)(9)

provides that no standard for

radionuclide emissions from any

category or subcategory of facilities

licensed by the Nuclear Regulatory

Commission (or an Agreement State) is

required to be promulgated under

section 112 if the Administrator

determines, by rule, and after

consultation with the Nuclear

Regulatory Commission, that the

regulatory program established by the

Nuclear Regulatory Commission

pursuant to the Atomic Energy Act for

such category or subcategory provides

an ample margin of safety to protect the

public health. This provision strives to

eliminate duplication of effort between

EPA and NRC, so long as public health

is protected with an ample margin of

safety.

Moreover, Congress expressed

sensitivity to the special compliance

problems of uranium mill tailings sites

through new section 112(i)(3). This

provision provides an additional 3-year

extension to mining waste operations

(e.g., uranium mill tailings) if the 4

years allowed (including a one year

extension) for compliance with

standards promulgated under the

amended section 112 is insufficient to

dry and cover the mining waste (thereby

controlling emissions).

D. Memorandum of Understanding

(MOU) Between EPA, NRC and Affected

Agreement States

In July of 1991, EPA, NRC and the

affected Agreement States entered into

discussions over 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 Agreement States which

outlines the steps each party will take

to both eliminate regulatory redundancy

and to ensure uranium mill tailings

piles are closed as expeditiously as

practicable. See 56 FR 55434 (MOU

reproduced as part of proposal to stay

subpart T); see also 56 FR 67537 (final

rule to stay subpart T). The pnmary

purpose of the MOU is to ensure that

owners of uranium mill tailings disposal

sites that have ceased operation, and

owners of sites that will cease operation

in the future, bring those piles into

compliance with the 20 pCi/m2-s flux

standard as expeditiously as practicable

considenng technological feasibility

(including factors beyond the control of

the licensee) with the goal that all

current disposal sites be closed and. in

compliance with the radon emissionstandard by the end of 1997 or within

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seven years of the date on which

existing operations and standby sites

enter disposal status. This goal

comports with Congress's concern over

timing as reflected in CAA section

112(i)(3), as amended.

E. The Settlement Agreement

As contemplated by the MOU, on

December 31, 1991, EPA took final

action to stay and proposed rescission of

subpart T under section 112(d)(9), and

issued an advance notice of proposed

rulemaking under UMTRCA. See 55 FR

67537 67561 and 67569. In order to

preserve its rights, EDF filed a lawsuit

challenging the legality of the stay. EDF

v Reilly, No. 92-1082 (D.C. Cir.).

Litigation had previously been filed by

EDF NRDC, AMC, Homestake and

others, challenging subpart T AMC, et

al. v EPA, Nos. 90-1058, 90-1063, 90-

1068, and 90-1074 (D.C. Cir.). NRC,

AMC and Homestake had also filed an

administrative petition for

reconsideration of subpart T

Discussions continued with the

litigants and NRC, and in February

1993, an agreement was reached to

settle the pending litigation and the

administrative proceeding, avoid

potential future litigation, and otherwise

agree to a potential approach to

regulation of NRC-licensed nonoperational uranium mill tailings

disposal sites. See 58 FR 17230 (April

1, 1993) (notice announcing settlement

agreement under CAA section 113(g)).

NRC agreed in principle with the

agreement by letter.

The settlement agreement adds

comprehensive detail to, and thereby

continues, the approach set forth in the

MOU. Actions implemented under the

settlement agreement should result in

the expeditious control of radon-222

emissions at non-operational uranium

mill tailings disposal sites without the

delays and resource expenditures

engendered by litigation and

contentious administrative process. This

enables EPA to satisfy the criteria of

section 112(d)(9) that EPA find, by rule,

that the NRC regulatory program

protects public health with an ample

margin of safety. It does this, in part, by

providing for changing EPA's UMTRCA

regulations such that public health

would be as well protected under

UMTRCA as would implementation of

subpart T under the CAA.

II. Rationale for Final Rule To Rescind

40 CFR Part 61 Subpart T for NRC and

Agreement State Licensees

In light of the new statutory authority

provided EPA by section 112(d)(9) of

the Clean Air Act as amended, EPA met

with NRC and the affected Agreement

'States to determine whether, with

certain modifications to its regulatory

program under UMTRCA, the NRC

regulatory program might provide an

ample margin of safety. If so, subpart T

would be rendered superfluous and,

therefore, needlessly duplicative and

burdensome such that rescission

pursuant to CAA section 112(d)(9)

would be appropriate.

In applying the risk methodology for

CAA section 112 to the risk assessment

for subpart T EPA has already

determined that the baseline that would

result once the 20 pCi/m2 -s UMTRCA

standard is met protects public health

with an ample margin of safety. Thus,

since the regulatory program

implemented by NRC assures that sites

will achieve the baseline (20 pCi/m 2

-s)

as soon as practicable considering

technological feasibility and factors

beyond the control of the licensee, the

NRC program protects the public to the

same extent as subpart T and subpart T

is not necessary for these facilities. More

specifically appropriate modifications

to the UMTRCA regulatory scheme as

implemented by NRC and the affected

Agreement States to ensure specific,

enforceable closure deadlines and

monitoring requirements such that

compliance with the baseline occurs as

expeditiously as practicable considering

technological feasibility and factors

beyond the control of the licensee,

protect public health with an ample

margin of safety. In so concluding, EPA

relies wholly upon the risk analysis it

conducted in promulgating subpart T.

EPA is not revisiting that analysis here.

A. The Regulatory Scheme Under

UMTRCA

As a supplement to the Atomic

Energy Act of 1954, as amended,

UMTRCA (42 U.S.C. 2022, 7901-7942)

was enacted to comprehensively

address the dangers presented by

uranium mill tailings, including their

disposal:

Uranium mill tailings located at active and

inactive mill operations may pose a potential and significant radiation health hazard to.the

public, and the protection of the

public health, safety, and welfare

require[s] that every reasonable effort be

made to provide for the stabilization,

disposal, and control in a safe and

environmentally sound manner of such

tailings in order to prevent or minimize

radon diffusion into the environment

42 U.S.C. 7901(a); see American Mining

Congress v. Thomas, 772 F.2d 617 (10th

Cir. 1985), cert. denied, 426 U.S. 1158

(1986). As to uranium mill tailings

disposal sites in particular, UMTRCA

gives the Department of Energy (DOE)

the responsibility to clean up and

dispose of certain sites (i.e., Title I), and

gives NRC the responsibility for

regulating those sites that are owned

and operated by its licensees (i.e., Title

II). EPA is responsible for promulgating

the generally applicable environmental

standards to be implemented by both

NRC and DOE. 42 U.S.C. 2022(a), 7911-

7924; AMC, 724 F.2d at 621. EPA

published its final UMTRCA regulations

on December 15, 1982 for Title I sites

and on September 30, 1983 for Title II

sites. 48 FR 590 and 48 FR 45926

(codified at 40 CFR part 192).

Parts of EPA's final UMTRCA

regulations are directed to the

permanent disposal of uranium mill

tailings. See 40 CFR part 192, subpart D.

Among the requirements of subpart D is

the mandate that radon releases from

the disposal sites not exceed a flux of

-20 pCi/m 2-s. 40 CFR 192.32 (a) and (1).

Other aspects of subpart D pertain to

.groundwater, monitoring, design, and

duration of closure. See 40 CFR 192.32

and 192.33. With the exception of the

groundwater provisions at 40 CFR

192.20(a)(2)-(3), applicable to Title I

sites, all aspects of EPA's regulations

were upheld by the Tenth Circuit in

AMC v Thomas. 772 F.2d at 640. EPA

is currently engaged in rulemaking to

address the court's remand of the Title,

I groundwater provisions.

Because NRC implements EPA's

general UMTRCA standards for its

licensees (as do its Agreement States), it

has promulgated its own implementing

regulations in the form of "criteria. See

generally 10 CFR part 40, appendix A.

While these criteria set forth a variety of

specific requirements-financial,

technical, and administrative-to

govern the final reclamation (i.e.,

closure) design for each disposal site,

they also provide for "site-specific"

flexibility by authorizing alternatives

that are at least as stringent as EPA's

general standards and NRC's criteria,

"to the extent practicable" as provided

in section 84c of the Atomic Energy Act

of 1954, as amended. 10 CFR part 40,

appendix A, Introduction.

Overall, NRC's implementation

criteria set forth a rigorous program

governing the reclamation of the

disposal sites so that closure will (1) last

for 1,000 years to the extent reasonable,

but in any event at least 200 years, and

(2) limit radon release to 20 pCi/m 2

-s

throughout that period. The design must

be able to withstand extreme weather

and other natural forces. Upon review,

EPA belidved the NRC criteria comprise

a comprehensive response to EPA's

general standards at 40 CFR part 192,

subpart D. However, as noted above,

nothing in either EPA's 1983 general

standards or NRC's 1985 amended

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implementing criteria compelled sites to

proceed towards final closure by a

certain date. This was the reason for

EPA's decision in 1989 to promulgate

the subpart T NESHAPs under the CAA.

Moreover, neither EPA s general

UMTRCA regulations, nor NRC's

implomenting criteria previously

required appropriate monitoring to

ensure compliance with the 20 pCi/m 2

-

s standard.

B. Clean Air Act Amendments of 1990:

Section 112(d)(9) ("Simpson

Amendment")

The purpose of this provision is to

preserve governmental resources and

avoid needless, burdensome, and

potentially contradictory CAA

regulations. Specifically, section

112(d)(9) makes explicit that EPA need

not regulate radionuclides under section

112 of the CAA for those radionuclide

sources that are sufficiently regulated by

NRC or its Agreement States (under the

Atomic Energy Act or its component

Acts, such as UMTRCA). More

particularly, section 112(d)(9) allows

EPA to decline to regulate under section

112 if the Administrator determines "by

rule, and after consultation with the

[NRC1'," that NRC's regulatory program

for a particular source "category or

subcategory provides an ample margin

of safety to protect the public health."

As EPA interprets section 112(d)(9),

the Agency may rescind the subpart T

NESHAP as it applies to nonoperational uranium mill tailings

disposal facilities licensed by NRC or an

affected Agreement State if the Agency

(1) consults with NRC, (2) engages in

public notice and comment rulemaking,

and (3) finds that the separate NRC

regulatory program provides an

equivalent level of public health

protection (i.e., an ample margin of

safety) as would implementation of

subpart T. While this rulemaking may

commence prior to final development of

NRC's regulatory program, that program

must fully satisfy the statute at the time

EPA takes final action. In so doing, EPA

must find that the NRC regulatory

program satisfies the CAA standard, not

that full and final implementation of

that program has already successfully

occurred.

C. Memorandum of Understanding

(MOU)

EPA, NRC and the affected Agreement

States entered intensive discussions

resulting in the execution of a

Memorandum of Understanding (MOU),

a copy of which was printed at the end

of the proposed rule to rescind subpart

T published December 31, 1991 (56 FR

67568). The pnmary purpose of the

MOU is to ensure that non-operational

uranium mill tailings piles and

impoundments licensed by NRC or an

affected Agreement State achieve

compliance through emplacement of a.

permanent radon barrier with the 20

pCi/m 2-s flux standard specified in

EPA's UMTRCA standards (40 CFR

192.32(b)(1)) as expeditiously as

practicable considenng technological

feasibility (including factors beyond the

control of the licensee). The goal is that

this occur at all current disposal sites by

the end of 1997 or within seven years

of when the existing operating and

standby sites enter disposal status. The

MOU called for EPA to modify its

UMTRCA regulations (at 40 CFR part

192, subpart D) to address the timing

concern that resulted in EPA's 1989

decision to promulgate subpart T. In

addition, the MOU called for NRC to

modify its implementing regulations at

10 CFR part 40, appendix A, as

appropriate, and to immediately

commence efforts to amend the licenses

of the non-operational mill tailings

disposal site owners and operators to

include reclamation plans that require

compliance with the 20 pCi/m 2 s

standard as expeditiously as practicable

considering technological feasibility

(including factors beyond the control of

the licensee). This was to be

accomplished either through voluntary

cooperation with the licensees, or

through administratively enforceable

orders. In accordance with the MOU,

the NRC and affected Agreement States

agreed to amend the licenses of all sites

whose milling operations have ceased

and whose tailings piles remain

partially or totally uncovered. The

amended licenses would require each

mill operator to establish a detailed

tailings closure plan for radon to

include key closure milestones and a

schedule for timely emplacement of a

permanent radon barrier on all nonoperational tailings impoundments to

ensure that radon emissions do not

exceed a flux of 20 pCi/m 2

-s. These

actions, coupled with NRC's

commitment to enforce the amended

licenses, are intended to provide the

basis for EPA to make the requisite

findings under CAA section 112(d)(9)

for rescission of subpart T.

D. Settlement Agreement

In light of CAA section 112(d)(9), and

in order to foster a consensus approach

to regulation in this area, EPA then

commenced discussions with NRC, the

American Mining Congress (AMC), and

the Environmental Defense Fund (EDF).

As a result of discussions after

execution of the MOU, a final settlement

agreement was executed between EPA,

AMC, EDF NRDC and individual site

owners, to which NRC agreed in

principle by letter. The settlement

agreement continues the regulatory

approach set forth in the MOU adding

extensive detail to that agreement.

Under the agreement between EDF

AMC, individual sites and EPA, the

pending litigation would not be

dismissed until after certain terms in the

agreement were fulfilled. The parties

agreed that upon rescission of subpart T

they would jointly move the court to

dismiss the challenges pertaimng solely

to subpart T. (Paragraph 111.1.) By the

terms of the agreement (paragraph

111.15.), AMC's pending administrative

petition for reconsideration of subpart T

becomes moot with the final rescission

of subpart T. Moreover, the agreement

does not legally bind or otherwise

restrict EPA's rights or obligations under

law- rather, by its terms (paragraph

111.12.), there is no recourse for a court

order to implement the agreement.

Indeed, the only remedy for failure to

meet the terms of the final agreement is

activation by the litigants of the

underlying litigation.

E. Actions by NRC and EPA Pursuant to

the MOU and Settlement Agreement

1. EPA Regulatory Actions

On December 31, 1991, EPA took

several steps towards fulfilling its

responsibilities under the MOU and in

implementing CAA section 112(d)(9) by

publishing three Federal Register (FR)

notices. In the first notice (56 FR 67537),

EPA published a Final Rule to stay the

effectiveness of 40 CFR part 61, subpart

T as it applies to owners and operators

of non-operational uranium mill tailings

disposal sites licensed by the NRC or an

Agreement State. The stay will remain

in effect until the Agency rescinds the

uranium mill tailings NESHAPs at 40

CFR part 61, subpart T. However, if EPA

fails to complete that rulemaking by

June 30, 1994, the stay will expire and

the requirements of subpart T will

become effective.

In a second notice published on

December 31, 1991, the Agency

proposed to rescind the NESHAPs for

radionuclides that appears at 40 CFR

part 61, subpart T, as it applies to nonoperational uranium mill tailings

disposal sites licensed by the NRC or an

Agreement State (56 FR 67561).

In the third notice, EPA published an

advanced notice of proposed

rulemaking to amend 40 CFR part 192,

subpart D (56 FR 67569) to provide for

site closure to occur as expeditiously as

practicable considering technological

feasibility (including factors beyond the

control of the licensee), and appropriate

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monitoring requirements for nonoperational uranium mill tailings piles.

These amendments would ensure timely

compliance and add monitoring

requirements currently lacking in the

UMTRCA regulations.

EPA published a notice on June 8,

1993, proposing to amend 40 CFR part

192, subpart D. (58 FR 32174). On

November 15, 1993, EPA published the

Final Rule amending 40 CFR part 192,

subpart D. (58 FR 60340). This Final

Rule requires: (1) Emplacement of a

permanent radon barrier constructed to

achieve compliance with, including

attainment of, the 20 pCi/m 2-s flux

standard by all NRC or Agreement State

licensed sites that, absent rescission,

would be subject to subpart T (2)

interim milestones to assure appropriate

progress in emplacing the permanent

radon barrier; and (3) closure of the site

closure as expeditiously as practicable

considering technological feasibility

(including factors beyond the control of

the licensee) after the impoundments

cease operation. EPA announced a goal

that this occur by December 31, 1997

for those non-operational uranium mill

tailings piles listed in the MOU between

EPA, NRC and affected Agreement

States (at 56 FR 67568), or seven years

after the date on which the

impoundments cease operation for all

other piles. As-intended by EPA, the phrase "as

expeditiously as practicable considering

technological feasibility "means as

quickly as possible considering: (1) The

physical characteristics of the tailings

and sites; (2) the limits of available

technology; (3) the need for consistency

with mandatory requirements of other

regulatory programs; and (4) factors

beyond the control of the licensee.

While this phrase does not preclude

economic considerations to the extent

provided by the phrase "available

technology," it also does not

contemplate utilization of a cost-benefit

analysis in setting compliance

schedules. The radon control

compliance schedules are to be

developed consistent with the targets set

forth in the MOU as reasonably applied

to the specific circumstances of each

site.

EPA recognized that the UMTRCA

regulatory scheme encompasses a

design standard. EPA made minor

amendments to this scheme to better

facilitate implementation of the

regulation -without fundamentally

altering the current method of

compliance. Subpart D, as amended,

requires site control 'be carried out in

accordance with a written tailings

closure plan (radon), and in a manner

which ensures that closure activities are

initiated as expeditiously as practicable

considering technological feasibility

(including factors beyond the control of

licensees). The tailings closure plan

(radon), either as originally written or

subsequently amended, will be

incorporated into the individual site

licenses, including provisions for and

amendments to the milestones for

control, after NRC or an affected

Agreement State finds that the schedule

reflects compliance as expeditiously as

practicable considering technologicalfeasibility (including factors beyond the

control of the licensee). The compliance

schedules are to be developed

consistent with the targets set forth in

the MOU as reasonably applied to the

specific circumstances of each site with

a goal that final closure occur by

December 31, 1997 for those nonoperational uranium mill tailings piles

listed in the MOU between EPA, NRC

and affected Agreement States (at 56 FR

67568), or seven years after the date on

which the impoundments cease

operation for all other piles. These

schedules must include key closure

milestones and other milestones which

are reasonably determined to promote

timely compliance with the 20 pCi/m 2-

s flux standard. Milestones which are

not reasonably determined to advance

timely compliance with the radon air

emissions standard, e.g. installation of

erosion protection and groundwater

corrective actions, are not relevant to

the tailings closure plans (radon). In

addition, subpart D requires that

licensees ensure that radon closure

milestone activities, such as wind

blown tailings retrieval and placement

on the pile, interim stabilization

(including dewatering or the removal of

freestanding liquids and recontouring),

and radon barrier construction, are

undertaken to achieve compliance with,

including attainment of, the 20 pCi/m 2

-

s flux standard as expeditiously as

practicable considering technological

feasibility

The goal of the amendments to

subpart D is for existing sites, or those

that become non-operational in the

future, to achieve compliance as

expeditiously as practicable considering

technological feasibility (including

factors beyond the control of licensees)

within the time periods set forth in the

MOU, including Attachment A thereto,

and for new sites to achieve compliance

no later than seven years after becoming

non-operational.

However, if the NRC or an Agreement

State makes a finding that compliance

with the 20 pCi/m 2

-s flux standard has

been demonstrated through appropriate

monitoring, after providing an

opportunity for public participation,

then the performance of the milestone(s)

may be extended. If an extension is

granted, then during the period of the

extension, compliance with the 20 pCi/ m2

-s flux standard must be

demonstrated each year. Additionally,

licensees may request, based upon cost,

that the final compliance date for

emplacement of the permanent radon

barrier, or relevant milestone set forth in

the applicable license or incorporated in

the tailings closure plan (radon), be.

extended. The NRC or an affected

Agreement State may approve such a

request if it finds, after providing the

opportunity for public participation,

that: (1) The licensee is making good

faith efforts to emplace a permanent

radon barrier constructed to achieve the

20 pCi/m 2-s flux standard; (2) such

delay is consistent with the definition of "available technology'" and (3) such

delay will not result in radon emissions

that are determined to result in

significant incremental risk to the

public health. Such a finding should be

accompanied by new deadlines which

reasonably correspond to the target

dates identified in Attachment A of the

MOU. (56 FR 67569).

EPA expects the NRC and Agreement

States to act consistently with their

commitment in the MOU and provide

for public notice and comment on

proposals or requests to (1) incorporate

radon tailings closure plans or other

schedules for effecting emplacement of

a permanent radon barrier into licenses

and (2) amend the radon tailings closure

schedules as necessary or appropriate

for reasons of technological feasibility

(including factors beyond the control of

the licensees). Under the terms of the

MOU, NRC should do so with notice

timely published in the Federal

Register. In addition, consistent with

the MOU, members of the public may

request NRC action on these matters

pursuant to 10 CFR 2.206. EPA also

expects the Agreement States to provide

comparable opportunities for public

participation pursuant to their existing

authorities and procedures. The UMTRCA regulations, as

promulgated by EPA and implemented

by NRC prior to the 1993 amendments,

while ultimately limiting emissions to

the same numerical level as subpart T,

were supported by a variety of designbased substantive and procedural

requirements that speak to UMTRCA's

unique concern that final site closure

occur in a manner that will last 1,000

years or at least 200 years, but did not

require monitoring of emissions to

confirm the performance of the earthen

cover. See generally 10 CFR part 40,

appendix A and 40 CFR part 192.

Subpart D, as amended, requires all

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appropnate monitoring be conducted

pursuant to the procedures described in

40 CFR part 61, appendix B, Method

115, or any other measurement method

proposed by a licensee and approved by

NRC or the affected Agreement State as

being at least as effective as EPA

Method 115 in demonstrating the

effectiveness of the permanent radon

barriar in achieving compliance with

the 20 pCi/m 2

-s flux standard. After

emplacement of a permanent radon

barrier designed and constructed to

achieve compliance wit:h, including

attainment of, the 20 pCi/m 2-s flux

standard, the licensee shall conduct

appropriate mcnitoring and analysis of

the radon flux through the barer. This

monitoring will verify that the design of

the permanent radon barrier is effective

in ensuring that emissions of radon-222

will not exceed compliance with the 20

pCi/m--s flux.standard, as contemplated

by 40 CFR 192.32(b)(1)(ii). EPA intends

that the permanent radon barrier be

designed to ensure sustained

compliance with the 20 pCi/m 2-s flux

standard by all sites, but does not

require continuous emissions

monitoring. Rather, a single monitoring

event may suffice to verify the design of

the permanent radon barrier to ensure

continued compliance. Note, however

that if the NRC or an Agreement State

extends the time for performance of

milestones based on a finding that

compliance with the 20 pCi/m 2

-.s flux

standard has been demonstrated by

appropriate monitoring, compliance

with the 20 pCi/m 2

-s flux standard must

be demonstrated each year during the

period of the extension.

2. NRC Regulatory Action

On May 20, 1994, the Commissioners

approved final amendments conforming

10 CFR part 40, appendix A to 40 CFR

part 192, subpart D. The final

regulations adopted by NRC amend

Criterion 6, add a new Criterion 6A and

new definitions contained in the

Introduction to appendix A. Criterion 6

was revised to provide for appropnate

verification that the "final" (or "permanent" as defined by EPA) radon

barrier, as designed and constructed, is

effective in controlling releases of

radon-222 to a level no greater than 20

pCi/m 2

-s when averaged over the entire

pile or impoundment. Criterion 6(2) (59

FR 28220, June 1, 1994). The licensee

must use EPA Method 115, or another

method approved by the NRC as being

at least as effective in demonstrating the

effectiveness of the "final" radon

barrer. Id. If the reclamation plan

specifies phased emplacement of the

"final" radon barrier, the verification

must be performed on the portion of the

pile or impoundment as the "final"

radon barrier for that portion is

emplaced. Additionally, certain

reporting and recordkeeping is required

in connection with the verification of

the effectiveness of the "final" radon

barrier. Criterion 6(4) (59 FR 28220,

June 1, 1994).

The Introduction section of appendix

A to part 40 was amended by adding the

following definitions: as expeditiously

as practicable considering technological

.feasibil'ty available technology factors

beyond the control of the licensee, final

radon barrier, milestone, operation and

reclamation plan. While supbart D

requires emplacement of the "permanent" radon barrer NRC

requires emplacement of the "final"

radon barrier. According to NRC, the

definition of final radon bamrer, is

intended to "facilitate the drafting of

clear regulatory text and to eliminate

any ambiguity with respect to

compliance with the 20 pCi/m 2

-s 'flux

standard' after completion of the final

earthen barrier and not as a result of any

temporary conditions or interim

measures. (59 FR 28222, June 1, 1994).

The final definitions of factors beyond

the control of the licensee and available

technology have been revised to include

a list of possible factors and examples

of grossly excessive costs respectively,

consistent with subpart D.

Criterion 6A paragraph 1 requires

completion of the "final" radon barrier

as expeditiously as practicable

considering technological feasibility

after a pile or impoundment containing

uranium byproduct materials ceases

operation, and requires it to be done in

accordance with a written Commissionapproved reclamation plan. In addition,

this paragraph requires inclusion of

specified interim milestones as a

condition of the individual site license.

Criterion 6A also specifies the

conditions for Commission approval of

extensions for performance of

milestones and continued acceptance of

uranium byproduct and other materials

in the pile or impoundment. 10 CFR

part 40, appendix A Criterion 6A (2) and

(3) (59 FR 28220, June 1, 1994). These

provisions vary somewhat from NRC's

proposal, to reflect changes made in

EPA's final amendments to subpart D at

§§ 192.32(a)(3) (iv) and (v). The changes

are "(1) that only byproduct material,

not 'similar' material, will be approved

for continued disposal after the final

radon bamer is essentially complete

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, in addition to general

clarification of the paragraph." (59 FR

28224, June 1, 1994):

Additionally NRC's final regulations

in Criterion 6A provide for public

participation consistent with the MOU

and the settlement agreement. Such

public participation will be provided

through a notice published in the

Federal Register including the

opportunity for public comment on the

proposed license amendment and the

opportunity to request an informal

hearing in accordance with the

Commission's regulations at 10 CFR part

2, subpart L. The final regulations

contain various revisions to NRC's

proposal, both substantive and editorial

in nature, primarily for consistency with

EPA's final amendments to subpart D.

EPA believes the final revisions

clarify NRC's proposal. EPA further

believes that although NRC's

conforming regulations are not identical

to subpart D, the differences are minor

in nature, and properly reflect

application of the subpart D

requirements to NRC's separate

regulatory program. NRC's final rule

appropriately conforms its regulations

to 40 CFR part 192 subpart D. EPA notes

that NRC's conforming amendments are

an important consideration in EPA's

determination that the NRC regulatory

program protects the public health with

an ample margin of safety.

3. Amendment of NRC and Agreement

State Licenses

Consistent with their commitments

tinder the MOU, as well as EPA s

previous proposal to rescind subpart T

(56 FR 67561 December 31, 1991), NRC

and'the affected Agreement States

agreed to amend the licenses of all nonoperational uranium mill tailings sites

to ensure inclusion of schedules for

emplacing a permanent radon bamer on

the tailings impoundments, as well as

.interim milestones (e.g., wind blown

tailings retrieval and placement on the

pile, and interim stabilization). To this

end, NRC and the Agreement States

requested the licensees to voluntarily

seek amended licenses and have

completed, processing those requests.

NRC has continued the spirit of

cooperation between EPA and NRC by

keeping the Agency apprised of the

status of the approval of reclamation

plans and amendment of licenses.

As of September 30, 1993, NRC and

the Agreement States had completed all

license amendments for closure of

licensed non-operational

impoundments, with the exception of

.the license amendment incorporating

the reclamation plan for the Atlas site

located in Moab, Utah.

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NRC informed EPA by letter that the

Commission received extensive

comments on NRC's July 20, 1993

.proposal to approve the Atlas

reclamation plan, including the closure

schedule and interim milestones

required by the MOU, and the

Environmental Assessment and the

Finding of No Signifi~ant Impact for the

Atlas mill. NRC rescinded its Finding of

No Significant Impact for the Atlas mill

in October 1993. (58 FR 52516, October

8, 1993). One issue appears to be the

potential for flooding of the Atlas

impoundment if it is reclaimed on-site,

due to the proximity of the site to the

Colorado River. This concern and others

appear to have caused delays in the

license amendment for this site. NRC is

actively pursuing a timely final decision

on the acceptability of the existing Atlas

site and its reclamation plan. To this

end, NRC informed EPA by letter dated

December 28, 1993, that NRC has

conducted several meetings with the

various representatives enumerated

above and has requested additional

technical information from the licensee.

On March 30, 1994, NRC published a

Notice of Intent to Prepare an

Environmental Impact Statement and to

Conduct a Scoping Process. (59 FR

14912). In that notice, NRC states its

determination "that approval of the

revised reclamation plan constitutes a

major Federal action and that based on

the level of controversy related to the

proposed action [on-site reclamation]

and uncertainties associated with the

unique features of the Moab site,

preparation of an EIS in accordance

with the National Environmental Policy

Act (NEPA) and the NRC's

implementing requirements in 10 CFR

part 51 is warranted. (59 FR 14913,

March 30, 1994). The notice describes

the proposed action, possible alternative

approaches and the scoping process.

The alternative approaches include

moving the pile to one of two alternative

sites. Id.

The near edge of the town of Moab is

located about 2 km to the east of the

Atlas tailings impoundment. However,

it appears the area within a 1.5 km

radius of the Atlas mill tailings

impoundment site is sparsely

populated. An interim cover is being

placed over the impoundment for radon

emission control as the Atlas tailings

impoundment dries sufficiently to allow

access of the necessary equipment. As

discussed m the Background

Information Document (BID) for the

amendments to 40 CFR part 192 subpart

D, interim covers significantly reduce

radon emissions. Technical Support for

Amending Standards for Management of

Uranium Byproduct Materials: 40 CFR

Part 192 Background Information

Document, EPA 402-R-93-085, October

1993.

NRC announced on May 11, 1994 (59

FR 24490) that Atlas Corporation

applied to amend condition 55 of its

source material license. Atlas proposed

to amend the milestone dates by

extending the dates for windblown

tailings retrieval and placement on the

pile, placement of the interim cover and

placement of the final radon barrier by

one year, NRC has informed EPA that

the Commission approved the extension

of the date for placement of the interim

cover to February 15, 1995 and that the

milestone for emplacement of the

"final" radon barrier was not extended.

See Docket Entry A91-67 IV-D-50

(Letter from NRC to Atlas).

Since NRC will notice any proposed

change in the milestone date for

emplacement of the permanent radon

barrier, EPA and others will have the

opportunity to monitor such an

extension at that time. Under the

present circumstances, it appears an

extension of the MOU target date of

1996 would be consistent with the

factors to be considered under the "as

expeditiously as practicable" standard

at 40 CFR 192.32(a)(3)(i), since NRC has

determined there is a need for

consistency with mandatory

requirements of the National

Environmental Policy Act (NEPA) and

there may be factors beyond the control

of the licensee. 40 CFR 192.31(k). Based

on representations from NRC, EPA

believes that the extra time NRC is

taking to further review the proposed

Atlas mill site reclamation plan is

necessary to address the large amount of

public comments received and that it

will result in a final solution that is

more responsive to public comment.

NRC and the affected Agreement

States have also agreed to enforce the

provisions of the amended licenses to

ensure compliance with the new

schedules for emplacing the permanent

radon barriers, including interim

milestones, and to ensure (and verify)

the efficacy of the design and

construction of the barrier to achieve

compliance with the 20 pCi/m 2-s flux

standard contained in the amendments

to subpart D. (56 FR 67568, December

31, 1991) (MOU, a copy of which was

printed at the end of the proposed rule

to rescind subpart T).

III. Final Rule to Rescind 40 CFR Part

61, Subpart T for NRC and Agreement

State Licensees

EPA is rescinding subpart T as it

applies to non-operational uramum mill

tailings disposal sites licensed by NRC

or an affected Agreement State. The

Agency sets forth this Final Rule

pursuant to its authority under section

112(d)(9) of the CAA, as amended in

1990. The support for this action

includes (1) the MOU, which reflects

consultation with NRC and the affected

Agreement States and sets forth a course

of conduct to bolster NRC's regulatory

program under UMTRCA so that it is

protective of public health with an

ample margin of safety (2) the

settlement a~reement which adds

comprehensive detail to the MOU, (3)

EPA's amendments to 40 CFR part 192,

subpart D, (4) the relevant NRC and

Agreement State actions concerning,

license amendments, to date, and (5)

NRC's amendments to its

implementation regulations at appendix

A, 10 CFR part 40.

A. EPA Determination Under CAA

Section 112(d)(9)

1. Background

Section 112(d)(9) authorizes EPA to

decline to regulate radionuclide

emissions from NRC-licensees under the

CAA provided that EPA determines, by

rule, and after consultation with NRC,

that the regulatory scheme established

by NRC protects the public health with

an ample margin of safety. The

legislative history of section 112(d)(9)

provides additional guidance as to what

is meant by "an ample margin of safety

to protect the public health" and what

process the Administrator should follow

in making that determination in a

rulemaking proceeding under section

112(d)(9). The Conference Report

accompanying S. 1630 points out that

the "ample margin of safety" finding

under section 112(d)(9) is the same "ample margin of safety" requirement

that was contained in section 112 of the

CAA prior to its amendment in 1990.

The conferees also made clear that the

process the Administrator was expected

to follow in making any such

determination under section 112(d)(9)

was that "required under the decision of

the U.S. Court of Appeals in NRDC v

EPA, 824 F.2d 1146 (D.C. Cir 1987)

(Vinyl Chloride). H. Rep. No. 101-952,

101st Cong., 2d Sess. 339 (1990),

reprinted in 1 A Legislative History of

the Clean Air Act Amendments of 1990,

at 1789 (1993) (hereinafter "Legislative

History CAAA90"J.

EPA has already made a

determination in promulgating subpart

T that compliance with the 20 pCi/m 2 -

s flux stwndard protects public health

with an ample margin of safety. EPA

conducted a risk analysis in

promulgating subpart T in 1989. At that

time, EPA determined that the 20 pCi/

36287

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m2

-s flux standard was a "baseline" that

was provided by EPA's general

UMTRCA standards at 40 CFR part 192,

subpart D. EPA further determined that

compliance with that baseline would be

protective of public health with an

ample margin of safety. EPA

promulgated subpart T to ensure

achievement of the flux standard at nonoperational sites in a timely manner. In

conducting this rescission rulemaking,,

EPA is not revisiting either the risk

analysis or decision methodology that

supported the promulgation of subpart

T rather, EPA is only visiting whether

NRC's regulatory program under

UMTRCA will result in meeting the 20

pCi/m 2

-s flux standard established in

subpart T as being the level that

provides an ample margin of safety

with compliance achieved in a timely

manner thereby rendering subpart T

unnecessarily duplicative. EPA's determination that the NRC

regulatory program protects public

health with an ample margin of safety

includes a finding that NRC and the

affected Agreement States are

implementing and enforcing, in

significant part on a programmatic and

site-specific basis: (1) The regulations

governing the disposal of uranium mill

tailings promulgated by EPA and NRC

consistent with the settlement

agreement described above and (2) the

license (i.e., tailings closure plan)

requirements that establish milestones

for the purpose of emplacing a

permanent radon barrier that will

achieve compliance with the 20 pCi/m 2

-

s flux standard.

2. EPA's UMTRCA Standards

As discussed above, EPA has

modified its UMTRCA regulations (40

CFR part 192 subpart D) to require

compliance with the 20 pCi/m--s flux

standard as expeditiously as practicable

considering technological feasibility

(and factors beyond the control of the

licensee), and to require appropriate

monitoring to verify the efficacy of the

design of the permanent radon barrier.

By definition, no more rapid

compliance can occur, as a practical

matter, because this schedule represents

the earliest that the sites could be closed

when all factors are considered. EPA

expects that these compliance schedules

were developed and will be modified

consistent with the targets set forth in

the MOU as reasonably applied to the

specific circumstances of each site.

When EPA promulgated subpart T it

recognized that many sources might not

be able to comply with the two year

compliance date then required pursuant

to section 112. Based on this, subpart T

includes a provision that in such a case

EPA would "establish a compliance

agreement which will assure that

disposal will be completed as quickly as

possible." 40 CFR 61.222(b). The time

period required for closure under

subpart D embodies the same approach.

In practice, therefore, both subpart T

and subpart D establish the same basic

timeframes for achievement of the flux

standard. Assuming NRC and the

Agreement States faithfully implement

subpart D and the license amendments

required under subpart D, EPA would

not expect there to be any significant

difference between these two programs

in the amount of time required for sites

to comply with the flux standard.

As discussed above, subpart D as

amended, provides that NRC may grant

an extension of time to comply with

either of the following deadlines: (1)

Performance of milestones based upon a

finding that compliance with the 20

pCi/m 2

-s flux standard has been met or

(2) final compliance beyond the date or

relevant milestone based upon cost.

EPA considers these two bases upon

which NRC may grant an extension to

be mutually exclusive, i.e., a request for

a specific extension may be based on

one or the other but not both grounds.

If a milestone is being extended for a

basis other than cost, such an extension

may be granted if NRC finds that

compliance with the 20 pCi/m 2-s flux

standard has been demonstrated using

EPA Method 115 or an NRC approved

alternative. In addition the site must

continue to demonstrate compliance

with this flux standard on an annual

basis. However, if a licensee requests

extension of the final compliance date

(or relevant milestone) based upon cost,

such an extension may only be granted

if NRC finds that the three criteria

specified in 40 CFR section

192.32(a)(3)(iii) are met. Any extensions

of the final compliance date based upon

cost will by the nature of the criteria be

granted on a site-specific basis.

If a licensee requests an extension of

the final compliance date based upon

cost, technology may not be used as a

basis for granting the extension unless

the costs are grossly excessive, as measured by normal practice within the

industry. EPA recognizes that the

emissions from the pile may exceed the

20 pCi/m 2

-s flux standard pending final

compliance, but believes these increases

will be minimal and of limited duration.

EPA does not anticipate the short

extensions in the time to complete the

radon barrier contemplated in subpart D

and the NRC conforming amendments

to increase the maximum lifetime

individual risk beyond 1 in 10,000, the

level which EPA found presumptively

safe under the benzene policy and for

this category protective of the public

health with an ample margin of safety

in promulgating subpart T 54 FR 51656

(December 15; 1989). EPA believes that

during the short extensions, this is

consistent with the reality of short-term

risks from radon emissions during the

period of delay and consistent with the

risks associated with negotiated

compliance agreements when nonoperational sites fail to close within the

two-year period required by subpart T

EPA believes these emissions should

not exceed those emissions which could

occur under subpart T if compliance

agreements had been negotiated.

Extensions based upon cost will only be

granted if NRC or an Agreement State

finds, after providing an opportunity for

public participation, that the emissions

caused by the delay will not cause

significant incremental risk to the

public health. Additionally, a site

requesting an extension based upon cost

must demonstrate that it is making a

good faith effort to emplace the

permanent radon barrier. In many

situations, where an interim cover is in

place, radon emissions are significantlv

reduced and tailings which are wet or

ponded emit no significant levels of

radon. If NRC or an Agreement State

uses this flexibility, public notice is

required, and as appropriate, EPA

would be aware of its use and could also

monitor extensions under the provisions

of § 61.226(c) to determine whether the

Agency should reconsider the rescission

and seek reinstatement of subpart T on

either a programmatic or site-specific

basis. Thus, under the circumstances.

EPA believes affording authority for

extensions of the final compliance date

based upon cost is not inconsistent with

protecting the public health.

Additionally 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

practicable." EPA understands that

under subpart'D's provisions 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

practicable considering technological

feasibility 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 § 192.32(a)(3)(i). However, EPA

stresses that such a change in

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circumstances would not automatically

lead to an extension. It would be

incumbent on NRC or an Agreement

State to evaluate all the factors relevant

under § 192.32(a)(3)(i) before it changed

a previously establshed milestone or

date for emplacement of the final

barrier, and any new date would have

to meet the standard set out in

§ 192.32(a)(3)(i). Finally, NRC's and

Agreement States' authority to

reconsider previously established

milestones or dates would include

authority to shorten or speed up such

dates, as well as extend them. EPA also

expects that public participation

consistent with that level of

participation provided in the MOU and

the settlement agreement will be

afforded the public by NRC or an

Agreement State in amending a license

due to "factors beyond the control of the

licensee," or for any other basis.

3. NRC's Conforming Regulations

As discussed previously, the

Commission has approved final

regulations to conform appendix A of 10

CFR part 40 to EPA's general standards

promulgated uider UMTRCA.,(59 FR

28220, June 1, 1994.) EPAiistoday

making a determination that NRCs final

regulations support rescission. EPA

believes NRC's final regulations

adequately and appropriately

implement EPA's amendments to 40

CFR part 192, subpart D. This

determination is supported by the

comments received in response to EPA's

supplemental proposal to rescind

subpart T. (59 FR 5174, February 7,

1994.) All commenters agreed that

NRC's proposed conforming regulations

support EPA's proposal to rescind

subpart T by either adequately and

appropriately implementing subpart D,

or may reasonably be expected to do so

when finalized.

4. License Amendments

Table 1 illustrates that all NRC and

affected Agreement State licenses,

except one, have been modified

pursuant to the MOU. Attachment A to

the MOU, developed in conjunction

with each site and considering the

particular circumstances of that site,

lists target dates for emplacement of the

permanent radon barrier with "a

guiding objective that this occur to all

current disposal sites by the end of

1997, and within seven years of.when

the existing operating and standby sites

cease operation." 56 FR 67568

(December 31, 1991). The MOU requires

NRC and the Agreement States to

,.ensure * * * that cover emplacement

on the tailings impoundments occurs as

expeditiously as practicable considering

both short-term reductions in radon

releases and long-term stability of the

uranium mill tailings." Id. Under the

MOU, the compliance schedules (i.e.,

tailings closure plans (radon) under

subpart D, as amended) were to be

developed consistent with the MOU

targets as reasonably applied to the

specific circumstances of each site, with a goal that final closure occur by

December 31, 1997, for those nonoperational uranium mill tailings piles

listed in the MOU. EPA believes the

NRC and-the Agreement States have

acted in good faith to implement their

comnmitments under the MOU by

amending the site licenses. EPA also

believes that uranium mill tailings

disposal site owners and operators have

acted in good faith by voluntarily

requesting the license amendments. The

license amendments by NRC and the

affected Agreement States appear to

reflect closure-as expeditiously as

practicable under the terms of the MOU

and the requirements of subpart D as

amended, thus supporting rescission of

subpart T and a determination that the

NRC program protects public health

with an ample margin of safety. See

Docket Entry A91-67 IV-D-46 (NRC

Comments in Response to EPA's

February 7, 1994 Proposal);.Docket

Entry A91-67 II-D-23 (February 7,

1994, Note to Docket from Gale

Bonanno, Office of Radiation and Indoor

Air, Criteria and Standards Division

detailing approval of NRC licenses and

milestone schedules); Docket Entry

A91-67 II-D-45 (June 1, 1994, Note to

Docket from Gale Bonanno, Office of

Radiation and Indoor Air, Criteria and

Standards Division detailing approval of

Agreement State licenses and milestone

schedules); Docket Entry A91-67 IV-D--

52 (June 13, 1994, Letter to Gail

Bonanno from State of Washington);

Docket Entry A91-67 IV-D-49 (Letter to

Gail Bonnano [sic] providing

information for Washington State

licensees, Dawn Mining Company and

Western Nuclear, Inc.). In addition,

consistent with their commitments

under the MOU, NRC and the affected

Agreement States are providing

opportunities for public particpation in

the license amendment process.

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

Facility

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

ARCO Coal, Bluewater, New Mexico ..................................................... Atlas, M oab, Utah .............................................. ................................................ Conoco, Conqutsta, Texas ................ ............................................................... Ford-Dawn Mining, Ford, WA .............. . ....................... Heca Mining, Duria, CO .......................................

Homestake, Milan, NM ........................................

Pathfinder-Lucky Mc, Gas Hills, Wyoming .................................. Petrotomics, Shirley Basin, W Y .................. ............... ....................................

Quivira, Ambrosia Lake, NM ........................................ ...................................... Rio Algom , Lisbon,. UT .........................................................................................

Sohie L-Bar, Cetiolleta, New Mexico ........... .................................................. UMETCO, Gas Hills, Wyoming ............................... UMETCO, Maybell, 0O ..................... .................. UM ETCO , Uravan. CO ......................... ...... ............................ ..... .... .......... UNG, Church Rock, NM ..........................................

Union Pacfic, Bear Creek, W yoming ........................................... ........................ W NI, Sherwood, W A ................... .......................................................................

Approval

date for rec- lamation plan

Approval

date for rec- lamation

milestones

MOU date for

final radon cover

-f -4 -J

4/10/83

1/301923

9/8/93

9/30/93

9/30/93

7/23/93

9/17/93

10/23/89

10/5/90

9/29/93

5/1/898

7/30/93

12/31/87

3/11/92

4/3/92

9/30/93

11/5/92

11/9/92

11/4/92

9/8/93

9/3093

9/30/93

11/9/92

12/29/92

1/21/93

1/22193

12/31/96

11/4/92

12/2192

7/30/93

12/31/87

10/29/92

11/5/92

9/30/93

1995

1995

1996

1996

2010

1997

5 1996/2001

'1998 1955

1997

1996

1992

1995

1997

1997

1996

1996

License date

for final

radon cover

12/31/94

26/30/96

12/28/94

12/31/96

12/31/93

412/31/18

12/3,1/95

C12/31/01

9/30/98

12/31/95

712/31197

12/31/96

12/31/92

12/31/95

12/31/97 12/31/96

12/31/.97

12/31/06

41/31/98

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

Continued

Approval Approval MOU date for License date

Facility date for rec date for rec final radon for final

lamation plan milestones cover radon cover

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

NRC and the affected Agreement States committed to complete review and approval of reclamation plants, including schedules for emplacement 2 of earthen covers on non-operational tailings impoundments by September 30, 1993. Two impoundments: 1996 date is for impoundment which was accepting waste from off-site for disposal. Licensee has requested an amendment for a one year extension of dates for placement of radon barrier on the two piles. 3 Delayed pending resolution of issues raised in response to Federal Register notice dated July 20, 1993.

4 Closure date change is because of groundwater remediation schedule. 5Two impoundments: large impoundment to be completed by 1996, small impoundment by 2001 except for areas covered by evaporation ponds. Final radon barrier placement over the remainder of the small impoundment shall be completed within two years of completion of ground- water corrective actions.

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

The license amendments noted in

Table 1 reflect consistent application of

the dates contained in the MOU. Three

exceptions are worth noting. First,

although the license amendment to

incorporate the reclamation plan for the

Atlas site is not complete, EPA is

confident that NRC is actively pursuing

final resolution of the pending

reclamation plan. In the notice

announcing its intent to prepare an

environmental impact statement, NRC

published a tentative schedule to:

prepare a draft EIS and issue for public

comment in October 1994; provide a 45

day comment period; and publish the

final EIS in April 1995. (59 FR 14914,

March 30, 1994). Pending final approval

of a reclamation plan, the Atlas site is

continuing to emplace an interim cover

on the pile to control radon emissions,

and recently received approval to

extend the date for placement of the

interim cover to February 15, 1995. The

date for placement of the "final" radon

barrier was not extended by NRC and

remains December 31, 1996. See Docket

Entry A91-67 IV-E-5 (Note to Docket

from Gale Bonanno, Office of Radiation

and Indoor Air, Criteria and Standards

Division, summary of telephone

conversation with legal counsel to

AMC); Docket Entry A91-67 IV-D-50

(Letter from NRC to Atlas).

Second, the license amendments for

the ANC Gas Hills site address two

separate impoundments. Consistent

with the MOU, the license amendment

for the non-operational impoundment

contains a December 31, 1994, date for

emplacement of the permanent radon

barrier. On February 11, 1994, NRC

published a notice of receipt of a request

to amend the reclamation schedule at

the.ANC Gas Hills site. (59 FR 6658).

ANC has requested a one-year extension

of the current date for emplacement of

the permanent radon barrier. ANC

"believes [it] cannot begin authorized

restoration activities in the time

necessary to meet current reclamation

milestone dates," due to an NRC

communication "that a previous

amendment request for a reclamation

redesign proposal dated April 16, 1992,

would not be reviewed by late 1992 or

early 1993." Id. NRC notes that ANC is

continuing to monitor and maintain the

interim cover. Further, NRC statesApproval of the requestwill be based on determination there be no harm to human

health or the environment, that reclamation

will be completed as expeditiousry as practicallsic], verification that rescheduling

reclamation will not impact the final closure

date for the entire facility.

Additionally an impoundment

previously designated as operational for

in-situ waste disposal is now nonoperational. Emplacement of the

permanent radon barrier on this second

impoundment is scheduled to be

completed by June 30, 1996, *iell within

the seven year goal of the MOU for

impoundments which cease operations

after December 31; 1991.

On May 9, 1994, ANC informed NRC

by letter that it would be ceasing

operations and going out of business by

the end of May 1994. On May 13, 1994,

NRC issued an Order and Demand for

Information to ANC. See Docket Entry

A91-67 IV-D-47 This Order requires

ANC to continue complying with all

applicable license conditions, including

monitoring and reclamation activities.

The Order further states

"ID]iscontinuance of those programs

and functions in the manner described

by the Licensee in its letter of May 9,

1994, would constitute a willful

violation of ANC's license." According

to the Order, abandonment would

constitute a "deliberate violation" of

section 184 -of the.AEA* of 1954, as

amended, 10 CFR 40.41.(b), and 10 CFR

40.42. The Order further states that "such a deliberate act of abandonment

would be a serious violation of the AEA

NRC regulations, and ANC's

license," and could subject ANC and the

individuals causing the violations to

further enforcement actions and

potential criminal sanctions. NRC also

ordered that ANC submit additional

information in order for NRC to

determine "whether enforcement action

should be taken to ensure compliance

with NRC statutory and regulatory

requirements."

EPA notes that the actions taken to

date by NRC regarding this site indicate

a good faith intention to implement the

MOU and the requirements of subpart D

and to respond quickly as the situation

at the ANC Gas Hills site develops. EPA

fully expects that NRC will take actions

consistent with the Commission's

enforcement policy and authority. See

10 CFR part 2, subpart Boand appendix

C. While difficult enforcement questions

are raised about this site, EPA notes that

the same questions would be raised if

subpart T were not rescinded. Under the

provisions of the rule adopted today, if

future developments meet the criteria

and conditions for reconsideration of

rescission, the Agency expects it would

receive a petition pursuant to

§ 61.226(b). EPA would then take action

consistent with those provisions at that

time. In any case, EPA reserves the right

to initiate reconsideration if

appropriate.

Lastly, the license amendment dates

for two additional sites, the Ford-Dawn

Mining site and the Western Nuclear,

Inc. (WNI) site both located in the

Agreement State of Washington, are also

beyond the dates contained in the MOU.

However, Washington State notes that

for these sites the closure date was

changed because of the groundwater

remediation schedule, and the difficulty

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experienced in drying the piles due to

the evaporation and precipitation rates.

In sum, EPA believes that the license

amendments adopted by the State of

Washington for these two sites reflect a

good faith attempt to implement the

MOU and reflect closure of the sites as

expeditiously as practical considering

technological feasibility under subpart

D.

While NRC and the Agreement States

have obtained license amendments for

all but one of the relevant sites, they have not as yet established a record for

enforcement of the milestones,

including action on requests for

extensions. To date, only one extension

for placement of the interim cover at the

Atlas site has been approved by NRC.

Based on NRC representations, no

milestones occurring after the date of

the MOU, October 1991, have been

missed and, as noted in footnote 2 of

Table 1, -an application for another

extension is pending but no action has

been taken. However, given their

response to the requirements of the

MOU, and the rulemaking conducted by NRC to implement the requirements of

subpart D, EPA expects that the

milestones established in the licenses

for emplacement of the permanent

radon barrier (i.e., the tailings closure

plan (radon)) will be implemented and

enforced in significant part on a

programmatic and site-specific basis.

The relevant portions of the amended

licenses have been placed in the docket

for this action, as well as letters from

NRC to EPA apprising the Agency of the

status of the license amendments.

EPA and NRC have completed almost

all of the actions required by the MOU,

including: revising the NRC and affected

Agreement State licenses to reflect the

MOU and regulatory requirements, promulgating amendments to EPA's

UMTRCA regulations at 40 CFR part

192, subpart D, and revising the NRC

regulations at 10 CFR part 40 to conform

to EPA's revised UMTRCA regulations.

Based on EPA's review, to date, of the

regulatory program established by NRC

under UMTRCA (including amended 10

CFR part 40, appendix A), EPA has

determined that the timing and

monitoring concerns are fully addressed

consistent with EPA's UMTRCA

standards, and the NRC criteria result in

reclamation designs and schedules fully

adequate to ensure compliance with the

20 pCi/m 2-s flux standard as

expeditiously as practicable considering

technological feasibility (including

factors beyond the control of the

licensee). EPA today finds that NRC and

the affected Agreement States are or will

be implementing and enforcing, in

significant part, the regulations

governing disposal of tailings and the

license requirements (tailings closure

plan (radon)) that establish milestones

for emplacement of a permanent radon

barrier that will achieve compliance

with the 20 pCi/m 2

-s flux standard on

a programmatic and a site-specific basis.

The Agency intends "in significant

part" to mean that NRC or an affected

Agreement State is implementing and

enforcing the regulatory and license

requirements in a manner that EPA

reasonably expected to not materially

(i.e., more than de minimis) I interfere

with compliance with the 20 pCi/m 2

-s

standard as expeditiously as practicable

considering technological feasibility

(including factors beyond the control of

the licensee).

As announced in the February 7

1994, proposal, EPA is taking today's

action since NRC's regulations at 10

CFR part 40, appendix A, were

effectively revised, as necessary and

appropriate to implement the revisions

to EPA's regulations at 40 CFR part 192,

subpart D. As stated in the February

1994 proposal, EPA intended to take

final action on the proposed rescission

prior to the time compliance with the 20

pCi/m 2-s flux standard is achieved at all

sites.

5. Judicial or Administrative Challenges

Neither EPA nor any commenter is

aware of any judicial or administrative

challenge to these regulations that is

pending. Thus, EPA is aware of no

challenge which would present a

significant risk of interference with the

purposes and objectives of the MOU, as

reflected in the regulatory changes.

B. Reconsideration Provisions

Under the Atomic Energy Act, NRC

has the authority to waive, for reasons

of practicability, the dual requirement of

the MOU that compliance with the 20

pCi/m 2

-s flux standard occur as

expeditiously as practicable considering

technological feasibility. 42 U.S.C.

2114(c). NRC considers the term "practicability" to include certain

economic considerations not

contemplated by the requirement of the

MOU that compliance occur as

expeditiously as practicable considering

technological feasibility. In

promulgating subpart T, the CAA did

not permit, and EPA did not consider,

site-specific waivers from ultimate

compliance with that standard. Thus, as

a theoretical matter, EPA recognized in

its December 1991 proposal that this

waiver authority might be exercised in

The phrase "de minimis" as used in this notice

is not intended to be restricted to the meaning of

section 112(g}1](A} of the Clean Air Act, as amended.

a manner not addressed in the MOU

even after the UMTRCA regulations

have been promulgated and each license

amended, although EPA has no reason

to believe such relaxation of restriction

will actually occur. Nevertheless, EPA

recognized that this authority would not

exist under the CAA and subpart T and,

thus, there was some concern over the

potential for deviation from the

agreements contained in the MOU.

1. December 31, 1991 Proposed Rule to

Rescind subpart T

In response to the concern over the

waiver authority in the Atomic Energy

Act, and in order to ensure its exercise

does not alter EPA's finding that the

NRC regulatory program protects public

health with an ample margin of safety

EPA announced in its December 31,

1991, proposal that certain conditions

and grounds for reconsideration would

be included in any final decision to

rescind subpart T In this way, EPA

might base its rescission finding upon

its view of the NRC regulatory program

contemplated by the MOU at the time of

taking final action, while also providing

some assurance that EPA would revisit

that finding should NRC or the affected

Agreement States substantially deviate

from that program. Thus, in December

1991, EPA proposed certain conditions

and grounds for reconsideration, to

provide assurance that any finding by

the Agency that the NRC program is

sufficient to justify rescission of subpart

T under CAA section 112(d)(9) would

be revisited if the NRC program is

actually implemented in a manner

inconsistent with that finding. The

specific reconsideration options

proposed by EPA were published at 56

FR 67565 (December 31, 1991).

2. Reconsideration Options

EPA has reviewed the various options

for reconsideration proposed in

December 1991 in light of the

comprehensive details added to the

terms of the MOU by the settlement

agreement finalized in April 1993. On

February 7 1994, EPA proposed an

additional reconsideration option that is

a combination of the options proposed

in December 1991. It is in effect a hybrid

of that December 1991 proposal. While

EPA did not withdraw its prior

reconsideration proposal and the

reconsideration.options contained

therein, the additional reconsideration

option proposed in February 1994 was

preferred by EPA.

3. Reconsideration Provisions Adopted

Today

EPA believes the following

reconsideration provisions adopted

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today, which include both

programmatic and sita-specific bases for

reinstatement, represent a

comprehensive approach. under both. the

MOU and settlement agreement. The

Agency notes that the 20 pCihn2 -s flix

standard, must be met by all, sites as

provided by 40 CFR part 192, subpart DI

EPA does not intend to reconsider the

decision to rescind subpart T for any

site that is in fact meoting the 20 pCi/

m2-s flux standard, absent other factors

that would' indicate the need for

reinstatement. For example, EPA may

initiate reconsideration under § 61.226

even if a site is meeting the 20 pCi'm 2 -

s flux standard'if here are factors which

show that NRC or an Agreement State

failed to imprement and enforce ui

significant part, the applicable

regulations, e.g., failure of that sito to

emplace a permanent radon barner

designed to meet the requirements of

subpart D

This action amends subpart T and

estaclishes an obligation for the

Admim:s zator to reinstate subpart T as;

applied to owners and operators of nonoperational urarmum mill tailings

disposal sites licensed by NRC'o: an

affected Ag&eemort. State providad

certa n conditicns are met.

Addftiornally, this action sets forth the

procedures for EPA to' act on a petition

to reccsider rescission of subpart T

which seeks such reinstatinen-t.

However-., thee prcnsians ame not

intonded to ce exlusive. EPA rosorves

the right to izitiate reinstatement of

subpart T if appmpnate. Pursuant to

section 553ta) cf the Admwinstrative

Procedure Act (5 U.S.C. 553(c)

interested per"onlin- ay petition the EPA

to i itiate rca tateant of suhpeat T, M

addition to petitions for ruinstatment

under today's procedures. The reconsideration provisions set

fcrth in § 61.225 establish procedures

for persons to petition EPA for

reconsideration of the rescission and

seek reistatement of subpart Tand

EPA's response to such petitions.

Provisions for the substantive.

conditions far reconmderation of the

rescission of this subpart and

subsequent reinstatement for NC

licensees are also included. Und-athese

pramnsicns, a person may petition the

Administrator for reconsideration of the

rescission and seek reinstatement of.

subpart T under § 61.226(a) which

provides for pzcgranimatic and sitespecific reinstatement.. If

reconsideration is initiated it must he

conducted pursuant to notice and

comment procedures. It is important that any alleged failures by NRC or an

affected Agreement State to implement

and enforce the regulations governing:

uranium mill tailings or the applicable

license!requirements, be addressed m a

timely manner. These provisions are

intended to ensure that persons may

seek recourse from the Administrator if

they are adversely affected by the failure

of NRC or an affected: Agreement State

to implement and' enforce, in significant

part, on a programmatic and a sitespecific basis the regulations governing

the disposal of uranium mill tailings

promulgated by EPA and NRC,

requirements of the tailings closure

plan, or license requirements

establishing milestones for the purpose

ofemplacing a permanent radon barrer

that will achieve compliance with the

20,pCi/m 2-s flux standard'. Thus, EPA is,

establishing a non-discretionary duty to

take final action granting or denying an

authorized petition for reconsideration

of the rescission of subpart T within 300

days of receipt of the petition. If EPA

grants such petition it would then

proceed to initiate rulemaking to

reinstate subpart T. The rulemaking to

reinstate subpart T, however, is not

subject to the 300-day time period. This

schedule is intended to provide EPA

and NRC adequate time to reselve any

potential problems identified by a

petition. Failure to meet this 300-day

deadline for a ciecison on whether to

initiate rulemaking or not cculd lead to

a citizen suit action m a federal District

Court under CAA section 304 for an

order that EPA take final action cn the

petition. Review of that final os-ponae

would be in a federal Circuit Court of

Appeals under CAA section 307(b). If

EPA grants such a petition and init'at-es

rulemaking to reinstate subpart T then

final agency action would not occur

until E.?A had concluded such

rulamakang. Consistent wi h the

suttlein nt agreement, EPA may propose

to grant or deny the petition within 120

days of receipt, allow a comment period

of at least 60 days, and take fiz1al action

granting or denying the Fetifion within

120 days of the close of the comment

period.

Under today's procedures, EPA shall

summarily disrmiss without prejudice a

§ 61.226(b) petition to reconsider the

rescission and seek reinstatement of

subpart T on a programmatic basis,

unless the petitioner demonstratas that

it provided written notice of the alleged

failure to NRC or an affected Agreement

State at least 60 days before filing its

petition with EPA. This notice to NRC

must include a statement of the grounds

for such a petition. This notice

requirement may be satisfied, among other ways, by submissions or pleadings;

submitted to NRC during aproceeding

conducted by NRC. The purpose of this

advance notice requirement is to

provide NRC'or an affected, Agreement

State with an opportunity to address the

concerns raised by the potential

petitioner. Additionally, EPA shall'

summarily dismiss without prejudice a

§ 61.2261b) petition to reconsider the

rescission and seek reinstatement of

subpart T on a site-specific basis, unless

the petitioner demonstrates that it

provided, at least 60 days before filing

its petition' with EPA, a written request

to NRC or an affected' Agreement State

for enforcement or other relief, and

unless the petitioner alleges that NRC'or

the affected Agreement State failed to

respond to such request by. taking.

action, as necessary, to assure timely

implementation and enforcement of the

20 pCi/m2-s flux standard. This

provision is intended to provide NRC or

an Agreement State with an opporttmity

to address the concerns raised by the

potential petitioner through its standard

enforcement mechanisms.

The Administrator may also initiate

reconsideration of the rescission and

reinstatement ef subpart T as applied' to

owners and operators of non-operational

uranium mill tailings disposal sites if

EPA believes it is appropiata to do so.

For example, EPA may initiate such

recornderation if it has reason to

beli-ve that NRC or an affected

Agreement State has failed to

implement and enforce, in significant

part, the regulations governing the

disposal of uranizin mi:i tailings

promalgated by EPA and NRC or the

tailings clocure plan (radon)

requirements establishing milestones for

the purpose of emplacing a permanent

radon barrer that will achieve

compliance with the 23 pCi/mz-s flux

standard. Before the Administrator

initiates reconsideraticn of the

rescission and reinstatement of subpadt

T, EPA shall consult with NRC to

address EPA's concerns, if the

consultation does not resolve the

concerns, EPA shall provide NRC with

60 days notice of the Agency's intent to

initiate rulemaking to reinstate this

subpart.

Upon. Gcmpletion of a reconsideration

rulemaking, EPA may: (1) Reinstate

subpart Ton a pro;rem-,iiaic basis if

EPA determines, based on the record,,.

that NRC has significantly failed to

implement and enforce; iii significant

part, on a programmatic basis, (a) the'

regulations governing the disposal of

uranium mill tailings promulgated by

EPA and NRC or (hJ the license

requirements establishing milestones for

the purpose of emplacing a permanent

radon barrier that will achieve

compliance with the 20 pCi/m 2-s flux

standard; (2) reinstate subpart T on a

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site-specific basis if EPA determines,

based on the record, that NRC or an

affected Agreement State has

significantly failed to implement and

enforce, in significant part, on a sitespecific basis, (a) the regulations

governing the disposal of uranium mill

tailings promulgated by EPA and NRC

or (b) the license requirements

establishing milestones for the purpose

of emplacing a permanent radon barrier

that will achieve compliance with the

20 pCi/m 2-s flux standard; or (3) issue

a finding that NRC is implementing and

enforcing on either a site-specific or

programmatic basis the regulations and

license requirements described above

and that reinstatement of subpart T is

not appropriate.

The regulations establish an

obligation for the Administrator to

reinstate subpart T as applied to.owners

and operators of non-operational

uranium mill tailings disposal sites if

the Administrator determines by

rulemaking, based on the record, that

NRC or an affected Agreement State has

failed on a programmatic basis to

implement and enforce, in significant

part, the regulations governing the

disposal of uranium mill tailings

promulgated by EPA and NRC or the

tailings closure plan (radon)

requirements establishing milestones for

the purpose of emplacing a permanent

radon barrier that will achieve

compliance with the 20 pCi/m 2

-s flux

standard. The Administrator also shall

reinstate subpart T on a site-specific

basis as applied to owners and operators

of non-operational uranium mill tailings

disposal sites if the Administrator

determines by rulemaking, based on the

record, that NRC or an affected

Agreement State has failed on a sitespecific basis to achieve compliance by

the operator of the site or sites with

applicable license requirements,

regulations, or standards implemented

by NRC and the affected Agreement

States. Under today's action, EPA shall

be required to reinstate subpart T only

for the failures enumerated in the

preceding sentence that may reasonably

be anticipated to significantly interfere

(i.e., more than de minimis) with the

timely emplacement of a permanent

radon barrier constructed to achieve

compliance with the 20 pCi/m 2

-s flux

standard at uranium mill tailings

disposal sites. In rescinding subpart T

EPA intends "in significant part" to

mean that EPA must find that NRC or

an affected Agreement State is

implementing and enforcing, on a

programmatic and a site-specific basis:

(1) The regulations governing the

disposal of uranium mill tailings

promulgated by EPA and NRC

consistent with the MOU and settlement

agreement and (2) the tailings closure

plan (radon) requirements establishing

milestones for the purpose of emplacing

a permanent radon barrier that will

achieve compliance with the 20 pCi/m 2

s flux standard in a manner that is not

reasonably expected to materially (i.e.,

more than de minimis) interfere with

compliance with the 20 pCi/m 2-S flux

standard as expeditiously as practicable

considering technological feasibility

(including factors beyond the control of

the licensee). Reinstatement would

require an EPA finding that NRC or an

affected Agreement State has failed to

implement and enforce in this manner.

IV Discussion of Comments and

Response to Comments From NPR

Public hearings on EPA's December

31, 1991, proposal to rescind subpart T

(56 FR 67561) were held on January 15,

1992 in Washington, D.C. and on

January 21-22, 1992 in Santa Fe, New

Mexico. Representatives of the Nuclear

Regulatory Commission (NRC), the

American Mining Congress (AMC), the

owners and operators of individual sites

and the Southwest Research and

Information Center (SWRIC) testified at

these hearings. Written comments were

also received from the Environmental

Defense Fund (EDF), NRC, AMC,

owners and operators of individual

sites, the Department of Energy and the

SWRIC.

In February 1993, an agreement was

reached between EPA, EDF NRDC,

AMC, and individual uranium mill

tailings disposal sites to settle pending

litigation and administrative

proceedings, avoid potential future

litigation, and otherwise agree to a

potential approach to regulation of NRC

and Agreement State licensed nonoperational uranium mill tailings

disposal sites. See 58 FR 17230 (April

1, 1993) (notice announcing settlement

agreement under CAA section 113(g)).

NRC agreed in principle with the

settlement agreement. The settlement

agreement added comprehensive detail

to, and thereby continued, the approach

set forth in the MOU published with the

1991 proposal. (56 FR 67568, December

31, 1991).

Written comments in response to

EPA's February 7 1994 supplemental

proposal were received from NRC, EDF

AMC, Homestake Mining Company Rio

Algom Mining Corp., ARCO and

Envirocare of Utah, Inc.

Many of the parties who commented

on the December 1991 proposal also

signed the settlement agreement and

commented on the February 1994

proposal. In certain cases, a party's

comments to the December 1991

proposal are inconsistent with and

conflict with comments later submitted

in response to the 1994 proposal. Given

the intervening settlement agreement

and the revisions to EPA's and NRC's

UMTRCA regulations, EPA believes that

the more recent comments submitted by

a party in response to the 1994

proposal, should be accorded more

weight than comments previously

submitted by that same party in 1991,

where there is inconsistency between

the comments.

In addition, EPA's review of the

comments has been limited to the

question.of whether EPA should rescind

subpart T This rulemaking was not

intended to reconsider and did not

address whether EPA should have

promulgated subpart T in 1989. EPA

therefore rejected as irrelevant to this

rulemaking, comments addressed to the

validity or appropriateness of the

promulgation of subpart T

1. General

In response to the 1991 and 1994

Notices of Proposed Rulemaking (NPR),

NRC, environmental and industry

groups generally support EPA's

proposal to rescind 40 CFR part 61,

subpart T as applied to owners and

operators of NRC and Agreement State

licensed non-operational uranium mill

tailings disposal sites. Various

commenters to the 1994 proposal

suggested specific revisions to the

proposed regulatory text and preamble.

The Agency has reviewed all comments

and suggested revisions carefully.

Revisions to the regulatory text and

preamble have been made where

deemed appropriate.

2. Request for Comments Contained in

the 1994 NPR

In the February 1994 proposal, EPA

requested comments on its proposed

determination that the NRC regulatory

program protects public health with an

ample margin of safety, including

comments on whether: (1) EPA has

effectively promulgated appropriate

revisions to 40 CFR.part 192, subpart D;

(2) NRC's regulations at 10 CFR part 40,

appendix A either already adequately

and appropriately implement-the

revisions to EPA's regulations, or may

reasonably be expected to do so prior to

rescission of subpart T (3) the revision

of NRC and affected Agreement State

licenses reflect the new requirements of

subpart D; and (4) any judicial or

administrative challenge to EPA or NRC

regulations is expected to present a

significant risk of interference with full

compliance with the MOU and the

settlement agreement.

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Several comienters responded to the,

Agency's request for com ents., -

Commenters believed EPA s

amendments to 40 CFR paA 192,

subpart D f-l1Z1 the lnt._N of tha

settlement agroemnat with raspect to

actions rccu2ed by EPA. Hover,

cerlal_ ccmmenters noted that ilhe

settlement agreement called fcr action

by both EPA and NRC. The comneWoirs

universally agreed that hased upon

NRC's November 3, 1993 pioposal, NRC.

may reasonably be expected, to

adequately and appropriately

implement the Agency's amendments to

40 CFR pert 192, subpart D. These

ccmmec;.tat3 believe tnat when finalized,

NRC's r-gcuatons at 10 CFR part 40,

appendix A should adequately comply

with the settlement agreement and

conform to EPA s subpart D UMTRCA

regulations.

Many commenters noted that NRC

and the Agreement States have

faithfully implemented their MOU

commitment to complete review and.

approval by no later than September

1993 of detailed reclamation plans

including !chedules for emplacing an.

earthen cover on non-operational

tailings impoundments to. controf

emissions of radon-222 to 20 pCilm~-s,

See 56 FR 67S68,. December .31, 1q91.

Several commenters noted that although,

the license amendment for the Atlas site

in Moab, Utah is not yet complete, that

site represents a-unque situation and

should not affect EPA s decision to

rescind subpart T:

No commenter was aware of any

pending judicial or adiinistrative

challenge that would present a

significant risk of interference with. the

MOU and the settlement agreement.

Additionally, EPA requested

comments on the proposed

reconsideration pravisions included in a

new § 61.226. added to subpart, T.. En

particular EPA requested. comments as

to whether these provisions effectively

implement the regulatory, approach of

the settlement agreement, especially the

terms providing specific time. periods

for a reconsideration rulemaking, One

commenter believed the criteria and.

procedures for reconsidering the

d(cision ta rescind subpart T were

consistent with theterms of the

settlement agreement. Several other

commentersacommnented as to specific

aspects of these provisions and,

suggosted revisions to the regulatory

language far consistency with the

settlement agreement. Specific

comments pertaining to the proposed

provisions for reconsideration of the'

rescission and,reinstatement of subpart

T are addressed in Section 4 below.

There was widespread agrmaent

among the corimenters that the EPA

and NC regulatory and liceoi::g

framework that eiher h1aa heen, oi is in

the prccess of beig, im enter~d triJ

ensure that P-on-opE.-ticnal u.immni

mill tailings dispcsal sites wil aE:Leve

the 20 pCi/m2-s fiw standazu as

expeditiously as practicable consiJcmng

techoclogical oasihility.

3. Rescission of Subpart T

3.1 Timing of Resc.ssmon

Comment: In response to the 1991

proposal, one commenter noted EPA

should not rescind subpart T until the

Agency is assured that tae iNU

between EPA, NRC and the affected

Agreement States is impemeniad and

EPA's amendments to its.ULMTRCA,

regulations at 40 CFR part 192, subpart

D are complete.

Response: As stated in the preamble

to the 1994 proposal and the final rule

amending 40 CFR part 192,.subpart D,

EPA is now rescinding subpart T for"

NRC-licensed uranium mill, tailings

disposal sites due to the completion of

the Agency's amendments to subpart D,

completion of NRC.conformng.

regulations, and completion by NRC. and

affected Agreement. States of various,

license. amendments containing

schedules for emplacement of the

permanent radon barrier. EPA believes

it is appropriate to-rescind subpart T

pursuant. to the authority of.section

112(d)(9) of the'CAA, as amended, since

NRC has established, a regulatory

program to. ensure that non operational

uranium: mill tailings pile, will be,

closed as expeditiously as practicable

considering technological feasibility.

3.2 Section 112(d)(9) of the Clean Air

Act, As Amended ("Simpson

AmendmenV')

•Comment:'n response to the 1991

proposal, one commenter argued section

112(d)(9) of the CAA, as amended,

applies prospectively and does not

authorize EPA to rescind, a previously

promulgated standard.

Response: The Agency disagrees and

believes that section 112(d)(9) of the

CAA authorizes EPA to rescind

previously promulgated regulations if

certain determinations are made by

EPA. Congress clearly intended to give

thu Agency the discretion to rescind

certain previously promulgated

regulations and thereby relieve affected'

facilities from the burdens associated

with parallel regulation when the NRC

regulatory program would protect

public health with an amplemargin of

safety. See, e.g., 136 Cong. Rec. S 3797-

99 (daily ed. April 3, 1990), reprintedi m

4 A LcigoOative History of the Clean Air

Act Amendments of 1990, at 7156-7162

(1993). ("Legislatidve History, CAAA

1990"). Tis Seumae floor debate on

Amendmcnt Nor. 457 toS. 162t

evidences a cjar inteatien that esedi

112(d)(9) authorzzee rscissimn of

prevcusiy prnoz-gatda mdtcnncldc

NESHAPs. Senator Simpson., the

spcn-or of the amn-dment, stated that

"[p lassage of tins amnendment V il alliw

EPA to replace tke enussicn standards

issued by EPA in November 1989, for

NRC-licensed facilities, including power

plants, uranium fuel cycle facilities, mid

by-product facilities, if that agency

concludes that the existing NRC

regulatory program adequately protects

public health." 4 Legislative History,

CAAA 1990 at 7158. Also see 1

Legislative History, CAAA 1990 at 773

(1993] (statement by Senator Burdick

during debate on the Conference

Committee Report) ("It is clear that the

existing regulatory program under the

Atomic Energy Act protects the public

health with an ample margin of safety.

Under these circumstances, additional

or dual regulation under the Clean Air

Act does not make any sense."I

Additionally in commenting on the

1994 proposal', this commenter

expressed the belief that the 1994,

proposal is consistent with the terms of

,the settlement agreement between EPA,

EDF NRDC, AMC and' individual site

owners and operators. The settlement

agreement, as described in detail above,,

promotes the objectives of section

112(d)(9}' of the CAA by establishing an

agreed upon framework for

reconsideration of rescinding subpart 'F

and making minor modifications to the

AEA regulatory program for closure of

the uranium mill tailings'disposal sites.

Clearly rescission of the previously

promulgated subpart T was

contemplated by the parties to the.

settlement agreement. This particular

commenter and' EPA were parties to that

agreement. EPA continues to implement

the terms of the settlement agreement,

inclnding.today's action rescinding

subpart T Thus, EPA is rejecting the

prior comment to the 1991 proposal.

Comment: In response to the 1991

proposal, a commenter suggested EPA.

publish its finding that the NRC

regulatory program protects the public

health with an ample margin of sali*ty.

Response: Pursuant to the settlement

agreement, EPA published and invited

comment on its proposed determination.

that the NRC. regulatory program

protects public health, with an ample

margin of safety on February, 7 1994 (59'

FR 5674). That. determmation is also

contained! in this action, which will be

published in the Federal Regster.

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Comment: Commenters, suggested in

response to the. 1991 proposal that EPA

could. not determine that. the NRC.

regulatory program protects. public.

health with an ample. margin of safety

so long as NRC retains the authority, to

waive standards and time schedules for

compliance,, and there are no provisions

under the AEA for citizens' suits..

Response: The commenters suggest

that the NRC regulatory program does

not ensure, that EPA's revised; UMTRCA

regulations. (40 CFR' part- 192, subpart D)

would' apply, since'NRC has the

authority to, grant waivers under the'

AEA due to cost or technological

feasibility. EPA recognizes that the NRC

has authority under the AEA to waive,

for economic reasons strict compliance

with the requirement that sites meet the

20 pCi/m 2-s standard as expeditiously,

as practicable considering technological

feasibility (including. factors beyond the

control of the licensee). AEA section'

84c., 4Z USC 211'4c. However, the full,

exercise of this.authority, is not

contemplated by either the MOU or the

settlement agreement, described' above.

If this waiver authority is; used in, a.

manner inconsistent with the purposes

and' objectives of the MOU and

settlement agreement, today's action

includes procedural and substantive

provisions designed to facilitate.

reconsideration of the rescission and

possible reinstatement of'subpart T.

The amendments to subpart T provide

clearauthority and procedures for EPA

to revisit today's finding should NRC or

the affected' Agreement States deviate

-from the regulatory program' in place in

a manner which materially (i.e., more

than de minimis) interferes with

compliance with the 20 pCi/m2s flux

standard: as expeditiously as: practicable

considering technological feasibility,

(including factors beyond the control! of

the licensee). Additionally, EPA

believes the actions taken, to date by

NRC, including the license amendments

and. the final.amendments to, the NRC

conforming regulations, as described'

above, reflect the good faith effort on, the

part of NRC to implement the MOU.

Thus, EPA believes under these

circumstances NRCs authority to waive

strict compliance with the, flux standard

and the time for compliance does not

preclude EPA from finding NRC!s

regulatory program protects the public

health with, an ample margin of safety,.

Further,, the Agency believes that

Congress was aware that the legislative

authority under the CAA provided, for

citizen suits while the. AEA did not

contain. such provisions. Congress

clearly envisioned that circumstances.

might be such that EPA would make the

finding required by the Simpson

Amendment. In making today's ample

margin of safety determination., EPA

considered whether NRC is

implementing, and enforcing,., in

significant part, the regulations

governing disposal of tailings and, the.

license requirements which, establishi

milestones for emplacement of a,

permanent radon barrier that will:

achieve compliance with the 20

pCi/m 2-s, flux standard on, a

programmatic and site-specific basis.

UMTRCA gives NRC and the: Agreement

States the responsibility to-implement

and enforce regulations promulgated

under UMTRCA. If, in the future, NRC

or the Agreement States do:not

implement and enforce, in significant

part,, the regulations. governing disposal

of tailings and the license requirements

which establish, milestones, for

emplacement of a permanent radon

barrier that will achieve compliance

with the 20 pCi/mg-s flux standard on

a programmatic or site-specific basis,

reconsideration and: reinstatement

provisions adopted today allow EPA, to

reconsider its rescission of-subpart T'

and thus, possibly reinstate the. CAA

standards, The settlement agreement

'executed between, EPA, EDF NRDC and

AMC which provided the regulatory

approach for today's action had as an,

objective the rescission of subpart T.

Moreover, NRC's final amendments. to;

the conforming regulations also, provide

enhanced opportunities for public

participation under certain

circumstances.

3.3 Section 112(q)(3) of the Clean Air

Act, As Amended'

Comment: The comments to the 1991

proposal included, a comment that the

"Savings Provision" (section 1'12(q)(3))

of the CAA requires that subpart T

remain in effect.

Response: Section 1 l2(q)(3)' provides

this section, as in effect prior to'the

date of enactment of the Clean Air Act

Amendments of 1990, shall remain in

effect for radionuclide emissions from

disposal of uranium mill tailings

piles, unless the Administrator, in the.

Administrator s.discretion, applies the:

requirements of this- section as modified

by the Clean Air Act Amendments of

1990 to such sources of radionuclides.

EPA believes-the plain language of

section. 112(q)(3), gives the

Administrator the discretion, to, rescind

subpart T pursuant to section 112(d)(9)

or allow subpart T to. remain in effect

pursuant to, section 112 as in effect prior

to the CAAA of 1990L. In. this

rulemaking, EPA acted to. apply section

112.as modified by the 1990

amendments, and pursuant to. section.

112(d)(9) to decline toregulate "radionuclide emissions from: any

category or subcategory of facilities,

licensed by the Nuclear Regulatory

Commission (.or an. Agreement State)" if

the: Administrator determines,by rule

and after consultation with the, Nuclear

Regulatory Commission, "that the

regulatory program established by the

Nuclear Regulatory Commission

pursuant to-the Atomic Energy Act, for'

such category, or subcategory, providas

an ample margin. of safety, to protect the

public health.." This provision strives to

eliminate duplication of, effort between

EPA and' NRC, so long as public health

is. protected with an ample margin: of

safety. Although the commenter

suggests that section 112 (q) (3). should

cause the Administrator to not rescind

subpart T such an interpretation is not

harmonious and is inconsistent with the

intent of Congress in. enactingthe CAAA

of 1990.

Additionally EPA received' comments

from this commenter supporting the

1994 proposal, expressing the belief that

the 1994' proposal' is consistent' with the

terms of the, settlement agreement. The

settlement agreement promotes the

objectives of section 112(d)(9)' of the

CAA as amended by establishing an'

agreed upon framework for'

consideration of the rescission of

subpart T and' minor modifications to

the AEA regulatory program for closure

of uranium mill tailings disposal: sites.

This commenter, together with EPA and

others, was a party' to that agreement,

which clearly envisions rescission of

sub part T.

Thus, EPA is. rejecting this comment,

since a plain reading of section 112(q)(3)

authorizes EPA, to exercise its discretion

under section 112(d)(.9)'and as a party

to the settlement agreement the'

commenter clearly supports the goal of

the agreement that subpart T be

rescinded.

3.3 Section 122(a) of the Clean Air Act,

as Amended in 1977

Comment: The commenter asserts in

response' to the' 1991 proposal, that EPA

should not rescind, subpart T because

such rescission is inconsistent with

section 122(a) of the CAA, of 1,977. The

commenter contends section 122(a) was

not repealed: by, the, 1990, amendments to

the CAA and that it required the Agency

to list radionuclides as a hazardous air

pollutant if the Administrator found!

that public health. was threatened due to

air emissions of radionuclides.

Response:. EPA disagrees with, the

commenter's interpretation that

rescission of subpart T pursuant to

section 1.12(d)(9) of the CAA isinconsistent with, section, 1.22(a) of the

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CAA. On December 27 1979, EPA listed

radionuclides, including those defined

by the AEA as byproduct material, 4s a

Hazardous Air Pollutant pursuant to

section 112(b)(1)(A) of the CAA as

amended in 1977 (44 FR 76738). In that

notice EPA stated that

[lin accordance with the requirements of

sections 122 and 112, the Agency finds that

studies of the biological effects of ionizing

radiatioii indicate that exposure to

radionuclides increases the risk of human cancer and genetic damage. Based on this information, the Administrator has

concluded that emission of radionuclides

may reasonably be anticipated to endanger

public health, and that radionuclides

consfitute hazardous air pollutants within

the meaning of the Clean Air Act.

Id. On April 6, 1983 (48 FR 15076) EPA

announced proposed standards for four

sources of emissions of radionuclides,

and its decision to not regulate uranium

mill tailings together with other sources.

Under court order, EPA finalized the

regulations proposed in 1983 on

February 6, 1985. 50 FR 5190. See also

Sierra Club v Ruckelshaus, No. 84-

0656 (U.S. District Court for the

Northern District of California). On

September 24, 1986, EPA promulgated a

final rule regulating radon-222

emissions from licensed uranium mill

processing sites by establishing work

practices for new tailings. (51 FR

34056). On April 1, 1988, EPA requested

a remand for this standard. On EPA s

motion, the Court placed the uranium

mill tailings NESHAPs on the same

schedule as the other radionuclide

NESHAPs to reconsider the standards in

light of Natural Resources Defense

Council v. EPA, 824 F.2d 1146 (D.C. Cir

1987) (Vinyl Chloride). EPA

subsequently promulgated 40 CFR part

61, subpart T the subject of today's

action.

EPA believes section 122 of the CAA

must be read consistent with and in

harmony with the 1990 amendments to

the CAA. EPA took action under section

122 when it listed radionuclides. EPA

subsequently regulated radionuclides

emissions under section 112. Section

112(d)(9) of the CAA authorizes EPA to

now decline to regulate radionuclide

emissions from any category or

subcategory of facilities licensed by the

NRC (or an Agreement State) if the

Administrator determines, by rule, and

after consultation with the NRC, that the

regulatory program established by the

NRC pursuant to the AEA for such

category or subcategory provides an

ample margin of safety to protect the

public health. This provision strives to

eliminate duplication of effort between

EPA and NRC, so long as public health

is protected with an ample margin of

safety. While section 122 addresses

whether radionuclides should be listed,

section 112(d)(9) addresses a separate

issue-whether EPA should continue to

regulate or initiate regulation of

radionuclide air emissions under

section 112 based on the NRC regulatory

program.

Although the commenter suggests

EPA should not rescind subpart T based

on section 122(a), EPA believes such a

reading of sections 112(d)(9) and 122(a)

is not harmonious and is inconsistent

with the intent of Congress in enacting

section 112(d)(9).

Additionally EPA received comments

from this particular commenter in

response to the 1994 proposal

expressing the belief that the 1994

proposal to rescind subpart T is

consistent with the terms of the

settlement agreement. The settlement

agreement promotes the objectives of

section 112(d)(9) of the CAA as

amended through the rescission of

subpart T and minor modifications to

the AEA regulatory program for closure

of the uranium mill tailings disposal

sites. This commenter, together with

EPA and others, was a party to that

agreement. Through today's action

rescinding subpart T EPA is furthering

the goal of the settlement agreement.

Thus, EPA is rejecting this comment,

since a reading of section 122(a)

apparently preventing such rescission is

inconsistent with the intent of Congress

in enacting section 112(d)(9), and as a

party to the settlement agreement the

commenter was aware of and supported

the goal of the agreement that subpart T

be rescinded.

4. Proposed Amendments to 40 CFR

Part 61, Subpart T

4.1 General

Comment: The rationale for adding

the definitions residual radioactive

material and tailings, while deleting the

definition of uranium byproduct

material or tailings is not clear. The

proposed definitions appear to apply to

Title I sites, and significant problems

might arise if these definitions were to

be applied to Title II sites in the event

of reinstatement of subpart T.

Response: § 61.220(a) as adopted

today states that subpart T applies only

to Title I sites except for the

reconsideration and reinstatement

procedures in § 61.226. The phrase or

uranium byproduct materials" was

deleted to further clarify that subpart T

applies to Title I sites. The phrases "residual radioactive matenals" and

"tailings" currently appear in

§ 61.220(a). EPA noted in describing

DOE sites in the 1989 BID that the

tailings located at these sites contain

residual radioactive materials, including

traces of unrecovered uranium, various

heavy metals and other elements.

Background Information Document:

Risk Assessments; Environmental

Impact Statement; NESHAPs for

Radionuclides, Volume 2 at 8-2 (EPA/

520/1-89-006-1, September 1989).

EPA believes it appropriate to define

residual radioactive material and

tailings for purposes of this subpart. The

Agency proposed these definitions on

December 31,-1991 and February 4,

1994. (56 FR 67561, 59 FR 5687). The

proposed definitions for these terms

were consistent with definitions

contained in UMTRCA. 42 U.S.C. 7911,

sections 101(7) and 101(8). The terms

are defined in the Final Rule by

expressly referencing UMTRCA, to

ensure consistency with that Act. The

Agency does not believe these

definitions would be problematic if the

Agency decided to reinstate subpart T

since EPA would amend subpart T at.

that time to apply to the Title II sites

and to include appropriate definitions.

Comment: The provisions of subpart

T, with the exception of § 61.226,

should only apply to Title I sites and

some apparent references to Title II sites

remain.

Response: EPA is rescinding subpart

T as applied to NRC or Agreement State

licensed non-operational uranunfmill

tailings disposal sites, and thus, does

not intend any provision of subpart T

excepting § 61.226 and applicable

definitions, to apply to these sites. EPA

has revised § 61.220(a) to reflect this

intent.

Comment: Section 61.226(c)(2) as

proposed suggests that no future action

can be taken to resolve EPA's concerns

after EPA notifies NRC of its intent to

initiate a rdlemaking to reinstate subpart

T

Response: EPA disagrees with the

commenter's suggestion that no further

action may be taken to resolve the

Agency's then existing-concerns after

EPA notifies NRC of its intent to

proceed with a rulemaking to reinstate

subpart T. The purpose of consulting

with NRC about the Agency's concerns

prior to notifying NRC and the

subsequent 60-day period is to provide

EPA and NRC with an opportunity to

address EPA's concerns prior to EPA

actually initiating such a rulemaking.

Additionally EPA expects that the two

agencies would continue consultations

during the rulemaking process to

attempt to resolve any remaining

concerns. Section 61.226(c)(2) would

not limit such continued consultations.

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4.2. Provisions for Reconsideration of

the Rescission and Reinstatement of

Subpart T

Comment: Many commenters,

although generally opposed to the idea

of reinstatement of subpart T' favored

including provisions for reconsideration

and reinstatement of subpart Ton either

a site-specific or programmatic basis, as

set forth in the Agency's 1991 proposal

to rescind subpart T.

Response: EPA reviewed the various

reconsideration options proposed in

December 1991, taking into

consideration the comprehensive details

added to the terms of the MOU by the

settlement agreement finalized in April

1993. In its 1994 supplemental

proposal, EPA proposed' an additional

reconsideration option that was a

combination of the options originally

proposed. EPA did not withdraw the

original options, but instead announced

the Agency's preference for provisions

on reconsideration and reinstatement of

subpart T on both programmatic and

site-specific bases. The Agency has

reviewed carefully all comments

submitted on the proposed

reconsideration provisions and has.

revised the regulatory text and preamble

where deemed appropriate. The Agency

believes the provisions for

reconsideration and reinstatement of

subpart T adopted today represent a

comprehensive approach based on

EPA's current evaluation of the NRC

regulatory program, and a regulatory

structure designed to address future

evaluations of the' program.

Comment: EPA received a variety of

comments dealing -with the consistency

of the proposed regulations with the

settlement agreement between EPA,

EDF NRDC, AMC, and individual site

owners described above; to which NRC

agreed in principle, These commenters

suggested various minor revisions to the

regulations.

Response: EPA has adopted certain

comments and suggested minor

language changes while rejecting others,

depending on whether they effectively

implement the goal of rescission of

subpart T

Comment: Several commenters

contend the site-specific reconsideration

and reinstatement options contained in

the December 1991 proposal would'

unduly restrict NRC's waiver authority

since EPA proposed a non-discretionary

duty to reinstate subpart T on a sitespecific basis if NRC exercises its waiver

authority.

Response: As described in the

proposals, EPA was concerned over the

potential for deviation from the

agreements contained in the MOU and

the requirements of revised subpart D

In response, EPA proposed and is now

-adopting- procedural and substantive

provisions for site-specific and

programmatic reconsideration and

reinstatement if certain criteria are met.

In promulgating subpart T, the CAA did

not permit, and EPA did' not consider,

site-specific waivers from ultimate

compliance with that standard. Thus, in

evaluating NRC's regulatory program,

EPA recognized in its December 1991

proposal that NRC's waiver authority

under the AEA might be exercised in a

manner not addressed in, the MOU even

after the revisions to 40' CFR part 192,

subpart D and 10 CFR part 40, appendix

A have been promulgated and the,

licenses amended'. However, EPA has no

reason to believe such relaxation of the

standards will actually occur. EPA

believes the provisions adopted today

represent a comprehensive approach

based on EPA's current evaluation of the

NRC regulatory program, and a

regulatory structure designed to address

future evaluations of the program. Additionally in response' to, the 1994

proposal, EPA received subsequent

comments from these commenters

supporting the rescission of subpart T.

Furthermore, these commenters

supported the proposed reconsideration

and reinstatement provisions with

certain modifications. These

commenters believe the 1994 proposal

to rescindsubpart T is consistent with

the terms of the settlement agreement

between EPA, EDF NRDC, AMC, and

individual sites. Thus, based on the

above reasons for adopting

reconsideration and reinstatement

provisions, and due to the inconsistency

between the earlier comments. received

and the subsequent expressions of

support for the rescission of subpart T,

EPA is rejecting the earlier comments.

Comment: Many commenters to the

1991 proposal believe that

reconsideration of the rescission of

subpart Tand subsequent reinstatement

on a programmatic basis is

inappropriate if one site fails to comply.

Response: Today's action sets forth

provisions for the reconsideration of the

rescission of subpart T'and

reinstatement of that subpart. The

regulations adopted today inclhde

provisions for programmatic and sitespecific reinstatement with separate but

somewhat parallel criteria. At this time,

EPA is not aware of a situation. which

would cause it to reinstate subpart T on

a programmatic basis if one site fails to

comply and would not expect to

reinstate subpart T on that basis.

However, the Agency cannot predict all

future circumstances, and' cannot at this

time preclude the possibility of such

reinstatement. EPA does, however,

believe the criteria adopted today

appropriately address both

programmatic and site-specific

reinstatement.

EPA rejects this comment for the

above reasons, and because of the

inconsistent responses to the 1991' and

1994 proposals received from the same

commenters.

Comment: Some commenters assert,,

in response to the 1991 proposal that

EPA lacks the authority, to reinstate

subpart T on a site-specific basis, since

section 112(d)(9) is concerned' only with

NRC's regulatory program.

Response: EPA believes that section,

112(d)(9) does not preclude site-specific

reinstatement. Section 1.12(d(9), of the'

CAA as amended' authorizes EPA to

decline to regulate radionuclide

emissions from any- category or

subcategory of facilities licensed by the

Nuclear Regulatory, Commission Car an

Agreement State) if the Admimstrator

determines, by rule, and after

consultation with the Nuclear

Regulatory Commission, that the

regulatory program established,'by the

Nuclear Regulatory Commission

pursuant to the Atomic Energy Act for

such category or subcategory provides

an ample margin of safety to protect the

public health. The text of this section

does not appear to preclude

reinstatement on a site-specific basis.

Section 112(d)(9) allows EPA to

categorize and subcategorize, and for

any such category or subcategory

determine whether the public health is

protected with an ample margin of

safety by the NRC regulatory program

from a particular source of radionuclide

emissions. EPA believes that under the

appropriate circumstances, the Agency

may want to specifically categorize

sites. The CAA as amended does not

appear to preclude such specific

categories on its face.

EPA rejects this comment for the

above reasons, and because of the

contradictory and inconsistent nature of

the comments received from the same

commenters in response to the 1991 and

1994 proposals, and the commenters'

support of EPA's 1994 proposal which

contains provisions for site-specific

reinstatement.

Comment: One commenter appears to

recognize EPA's authority for sitespecific reinstatement of subpart T but

is opposed to EPA's exercise of such

authority and questions its

appropriateness, since it appears to the

commenter that NRC's existing

inspection and enforcement programs

address site-specific failures.

Response: This commenter does not

oppose the proposed reinstatement

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provisions and expresses the clear

opinion that EPA committed in the

settlement agreement to include

provisions for site-specific

reconsideration and reinstatement of

subpart T. EPA anticipates that before

initiating a rulemaking to reinstate

subpart T on a site-specific basis, there

would be extensive consultation with

NRC. Based on the actions of NRC to

date in implementing the terms of the

MOU, EPA hopes that all concerns

could be resolved. EPA is adopting the

provisions for site-specific

reconsideration and reinstatement as

part of a comprehensive approach based

on EPA's current evaluation of the NRC

regulatory program, and a regulatory

structure designed to address future

evaluations of the program.

Comment: Some commenters contend

that in reconsidering the rescission and

reinstatement of subpart T on a

programmatic basis, section 112(d)(9)

requires EPA to determine whether

public health is threatened by the

failure of a particular site to meet the 20

pCi/m 2-s flux standard.

Response: The Agency disagrees with

the commenters' interpretation of

section 112(d)(9) as applying to

provisions for reinstatement. Section

112(d)(9) does not establish the criteria

for reinstatement, rather it authorizes

EPA to decline to regulate radionuclide

emissions from NRC or Agreement State

licensees if the Administrator

determines, by rule, and after

consultation with the NRC, that the NRC

regulatory program protects the public

health with an ample margin of safety

Under section 112(d)(9), EPA may

rescind subpart T if EPA determines

that the NRC regulatory program

provides an equivalent level of public

health protection (i.e., an ample margin

of safety) as would implementation of

subpart T in order to rescind subpart T.

Section 112(d)(9) does not limit EPA's

authority to reinstate subpart T. EPA

believes the criteria adopted today

appropriately address both

programmatic and site-specific

reinstatement.

Additionally, this comment was

received in response to the 1991

proposal. EPA rejects this comment for

the above reasons, and because of the

inconsistent responses to the 1991 and

1994 proposals received from the same

commenters.

Comment: Some commenters contend

in response to the 1994 proposal that

EPA should not treat reinstatement at

the Administrator's initiative on the

same terms as reinstatement based on a

third party petition. These comments

suggest revising the proposed

regulations to reflect the differences

between the two, including adding a

provision for a third possible result (i.e.,

a finding that NRC is in compliance).

Response: EPA disagrees with the

commenters' suggestion that

reinstatement at the Administrator's

initiative should be treated differently

from reinstatement based on a third

party petition.

The commenters are basing their

contentions on the terms of the

settlement agreement which the Agency

entered into with EDF NRDC, AMC and

individual sites in February 1993. That

agreement adds comprehensive details

to the regulatory approach of the MOU

between EPA, NRC and the affected

Agreement States. EPA has reviewed the

terms of the settlement agreement

pertaining to the reconsideration of

rescission and reinstatement of subpart

T The settlement agreement specifies at

paragraph III.e. that upon completion of

a rulemaking reconsidering the

rescission of subpart T EPA may (1)

reinstate subpart T on a programmatic

basis if certain criteria are met; (2)

reinstate subpart T-on a site-specific

basis if certain criteria are met; or (3)

issue a finding that NRC is in

compliance with certain criteria and

that reinstatement of subpart T is not

appropriate.

The Agency believes the criteria in

§ 61.226(a) for requiring reinstatement

upon completion of a reconsideration

rulemaking should apply whether the

rulemaking is at the Administrator's

initiative or based on a third party

petition. These criteria are: (1) Failure

by the NRC or an Agreement State on a

programmatic basis to implement and

enforce, in significant part, the

regulations governing the disposal of

uranium mill tailings promulgated by

EPA and NRC or the tailings closure

plan (radon) requirements (i.e.,

contained in the license) establishing

milestones for the purpose of emplacing

a permanent radon barrier that Will

achieve compliance with the 20 pCi/m 2

-

s flux standard; or (2) failure by NRC or

an affected Agreement State on a sitespecific basis to achieve compliance by

the operator of the site or sites with

applicable license requirements,

regulations, or standards implemented

by NRC and the affected Agreement

States. Additionally EPA would not be

required to reinstate subpart T under

§ 61.226(a) unless those failures may

reasonably be anticipated to

significantly interfere (i.e., more than de

minimis) with the timely emplacement

of a permanent radon barrier

constructed to achieve compliance with

the 20 pCi/m 2

-s flux standard at

uranium mill tailings disposal sites.

The commenters contend that the

nature of the party initiating the

reconsideration rulemaking should

determine whether reinstatement is

discretionary (for initiation by the

Administrator) or mandatory (for a third

party petition), apparently based on a

desire to provide EPA with greater

flexibility to address concerns over

failures of NRC or an Agreement State

to implement or enforce applicable

requirements. The Agency believes that

the nature of the initiating party

properly may trigger different

procedural requirements. For example,

when a private party initiates the

process by filing a petition, EPA has

established a requirement that it take

final action on such a petition within a

set time period. However, EPA believes

that the nature of the party initiating the

process leading to a rulemaking is not

relevant to deciding whether to

reinstate, assuming the relevant criteria

for reinstatement are met under either

circumstance. EPA believes that if the

Administrator determines, based on the

record, that (1) NRC or an Agreement

State failed on a programmatic basis to

implement and enforce, in significant

part, the regulations governing the

disposal of uranium mill tailings

promulgated by EPA and NRC or the

tailings closure plan (radon) (i.e.,

contained in the license) requirements

establishing milestones for the purpose

of emplacing a permanent radon barrier

that will achieve compliance with the

20 pCi/m 2

-s flux standard or (2) NRC or

an affected Agreement State failed in

significant part, on a site-specific basis,

to achieve compliance by. the operator of

the site or sites with applicable license

requirements, regulations. or standards

implemented by NRC and the affected

Agreement States, then there would be

the same reason for the Agency to

reinstate subpart T whether the process

was initiated by a private petition or at.,

EPA's own initiation. If the Agency

makes the determination required to

reinstate subpart T based on

reconsideration of rescission at the

Administrator's initiative and such

reinstatement is considered

discretionary the Agency is not aware

of circumstances wh'ch would lead the

Agency not to reinstate subpart T. In

any case, if the Administrator should

make the determination in § 61.226(a)

(1) or (2) but decide in her discretion

not to reinstate subpart T in a

proceedinginitiated by the

Administrator, then the Agencybelieves

it would promptly receive third party

petitions based on the finding made at

the Administrator's initiative, and the.

Agency would then be obligated to

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reinstate subpart T. Additionally, upon

completion of the reconsideration of

rescission pursuant to § 61.226(c)-the

Administrator may in her discretion

issue a finding that reinstatement of this

subpart is not appropriate if the

Administrator makes certain findings.

However, the discretion to issue such a

finding is not relevant to the situation

where the Administrator has found that

the criteria for reinstatement have

already been met, since the'two findings

are mutually exclusive. Finally, the

commenters apparently believe that

reinstatement at the Administrator's

initiative should be discretionary so that

EPA and NRC can continue attempts to

resolve concerns and thereby avoid the

need to reinstate. EPA believes that such

ongoing consultation is not precluded

by the regulations adopted today, and

EPA expects the agencies would

continue consultations and make all

possible efforts to resolve the concerns

during the rulemaking process. The

regulation does not establish a time

limit for final agency action in this case,

and the agency would have discretion to

extend the rulemaking if appropriate to

continue such inter-agency

consultations.

EPA agrees with the commenters that

the settlement agreement provides an

additional possible result upon

-completion of a reconsideration

rulemaking initiated by the

Administrator, namely that the Agency

may issue a finding that reinstatement'is

not~appropriate if the Agency finds: (1)

NRC and the affected Agreement States

are on a programmatic basis

implementing and enforcing, in

significant part, the regulations

governing the disposal of uramum mill

tailings promulgated by EPA and NRC'

or the tailings'closure plan (radon) (i.e.,

contained in the license) requirements

establishing milestones for the purpose

of emplacing a permanent radon barrier

that will achieve compliance with the

20 pCi/m 2

-s flux standard; or (2) NRC or

an affected. Agreement State are, in

significant part, on a site-specific basis

achieving compliance by the operator of

the site or sites with applicable license

requirements, regulations, or standards

implemented by NRC and the affected

Agreement States. EPA believes

addition of this provision to the

regulations will clarify the existence of

this option and has revised §,61.226(a)

of the reinstatement provisions to

provide for this additional result.

Comment: One commenter-asserts

that EPA's characterization of its

authority to reconsider rescission of

subpart T in the preamble to the 1.994

proposal appears overly broad and

reinstatement should be clearly limited

to those conditions proposed in

§ 61.226(a).

Response: EPA believes that the

provisions for reconsideration of

rescission adopted in § 61.226 represent

a comprehensive approach under both

the MOU and the settlement agreement.

The provisions include substantive and

procedural provisions for

reconsideration of rescission and the

reinstatement of this subpart on.a

programmatic or site-specific basis. The

provisions include the obligation to

reinstate subpart T if certain conditions

are met, procedures for reconsideration

and provisions authorizing the

Administrator to initiate

reconsideration. Although.the Agency

does not intend to reconsider its

decision'to rescind subpart T for a site

which is in fact meetingthe 20 pCi/in 2-

s flux standard absent other factors that

would indicate the need for

reinstatement, the Agency recognizes

that a situation may anse where

reconsideration of rescission is

nevertheless appropriate. For example,

EPA might consider. initiating

reconsideration under § 61.226 where a

site is meeting-the 20 pCi/m 2-s flux

standard'if there are factors which show

that NRC or an Agreement State failed

to implement and enforce in significant

part, the applicable regulations, e.g.,

clear failure of that site to emplace the

permanent radon bamerwithin the time

periods established in implementing

subpart D, EPA is not aware of*

circumstances under which EPA mighi

reconsider rescission for a-site that is

meeting the 20 pCi/m 2-s flux standard,

other than those indicating-thatithe

milestone for emplacement of the

permanent-radon barrier has passed, the

delay was not approved by NRC-or an

Agreement State and the licensee failed

to emplace the permanent radon barrer,

and there are indications that the

licensee does-not plan to emplace the

barrier and NRC or an Agreement State

does not plan to enforce this

requirement. EPA does not envision

such an unusual situation arising. EPA

believes the actions taken to dateby

NRC, including the license amendments'

and the final amendments to the:NRC

conforming regulations, as described

above, reflect the good faith effort on-the

part of NRC and the Agreement States

to Implement the MOU and.EPA's

subpart D regulations;-However, the

Agency, is not now.in the positionto

determine that there could be no

circumstances which might -mdi pate the

need -to reconsider the rescission of

subpart T for a site that is in fact

meeting the 20 pCi/m 2

-s flux standard.

Additionally, EPA reserves the right

to initiate.reinstatement of subpart T if

appropnate, since although the § 61.226

provisions adopted today establish an

obligation for the Administrator to

reinstate if certain conditions are met,

they are-not intended to be the exclusive

basis for reinstatement. Under the

regulations adopted today, EPA has the

authority to reconsider-the rescission of

subpart T at the Administrator's

'initiative and upon the petition of a

third party. The Agency is obligated to

reinstate subpart Ton a programmatic

basis if the Administrator determines by

rulemaking, based on the record, that

NRC or an, affected Agreement State has

failed on a programmatic basis to.

implement and enforce, in significant

part, the regulations governing the

disposal'of uramum-mill tailings

promulgated by EPA and NRC or the

tailings closure plan (radon)

,rquirements establishing milestones for

the purpose of emplacing a permanent

radon barrier- that will achieve

compliance with the 20 pCi/m 2-s flux

standard. Additionally, EPA is obligated

to reinstate subpart T on a site-specific

basis as applied to owners and operators

of non-operational uranium mill tailings

disposal sites if the Administrator

determines by rulemaking, based on the

record, that NRC or an affected

Agreement State has failed, in significant

part on a site-specific basis to achieve

compliance by the operator of the site or

sites with applicable license

requirements, regulations,: or standards -Implemented by NRC and the affected

Agreement States. The obligation to

reinstate subpart T is limited to those

failures which may reasonably be

.anticipated to significantly interfere

With timely emplacement of the

permanent radon barner-constructed to

achieve compliance with the 20 pCi/m2 - s'flux standard. At this time, EPA is not

aWare of circumstances where it would

consider reinstating subpart T -if the

fqilure does not significantly interfere

-with emplacement of the required .

permanent.radon barrier. However, EPA

reserves the right to reconsider the

r sci~siornwhere the criteria of-

.§61.226(a) have not been met,. under the

Agency's authority to issue NESHAPs -

contained m section. 112 of the CAA.

For example, even if the NRC or an

Agreement State is implementing and.

enforcing, in significant.part, the

applicable regulations and license

amendments,-the Agency may decide toreconsider the rescission if new

izformation indicated that the publichealth is not-protected with an ample

margin of safety. The Agency cannot

predict all future-circumstances and

cannot at this time preclude the

possibility of such reconsideration and

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possible reinstatement. Despite

reserving this authority, the Agency

believes this is a theoretical situation

and has no current intention to act on

this authority.

5. Miscellaneous

5.1. Monitoring

Comment: EPA must ensure. that the

single monitoring event currently

required by subpart T would remain, in

effect if subpart T is reinstated,

particularly in light of the recently

proposed "enhanced monitoring'

regulations.

Response: Subpart T currently

requires monitoring to occur only once

to demonstrate compliance with the 20

pCi/m 2-s flux standard of § 61.222.

However, EPA published a proposed

Enhanced Monitoring Program on

October 22, 1993, which would require

owners and operators of sources subject

to existing NESHAPs' to perform

enhanced monitoring at emissions units.

(58 FR 54648). It appears that the

proposal applies the enhanced

monitoring requirements for hazardous

air pollutants to all emissions units

which would be reqired to. obtain an

operating permit. (54 FR 54651, October

22, 1993). Additionally, althouglh

asbestos demolition and renovation

projects, (subpart M) were exempted

from the enhanced monitoring

provisions, it does not appear subpart T

would be exempted. The rationale for

the proposed asbestos demolition

exemption, that EPA was not requiring

states to permit those sources and the.

permit program is the established

method for implementing the enhanced

monitoring program, does not appear to

apply to uranium mill tailings disposal

sites. It would be premature for EPA to

determine today that in the event

subpart T is reinstated for Title IL sites,

the proposed enhanced monitoring

provisions would not apply.

5.2 Discussion of 40 CFR part 192,

Subpart D Extension Provisions

Comment: EPA's discussion of the

extension provisions contained in 40

CFR 192.32(a)(3)(ii), (iii) is confusing

and should be revised to equally

consider the possibility of extensions for

factors beyond the control of the

licensee.

Response: EPA believes its discussion

of the extension provisions contained in

the Agency's amendments to its

UMTRCA regulations at 40 CFR

192.32(a)(3)(ii) and (iii) does not need

further clarification. EPA disagrees with

the commenter's claim that an extension

based upon "factors beyond the control

of the licensee" should be considered

equally with the delay provisions

encompassed in EPA's UMTRCA

regulations. 40 CFR 192.32(a)(3)(ii)and

(iii) specifically provide that NRC may

grant an extension on either one of two

bases. However, an extension due to

"factors beyond the control of the

licensee" is implicit in the definition of

"as expeditiously as practicable?' The

term "factors beyond the control of the

licensee" would be one element for NRC

to evaluate in reconsidering a prior

decision establishing a date for

emplacement of the permanent radon

barrier that meets the definition of "as

expeditiously as practicable. A change

in any one of the factors considered in

establishing a date thatmeets the "as

expeditiously as practicable" standard

would not automatically lead to an

extension, rather NRC would need to

evaluate all the relevant factors under

§ 192.32(a)(3)(i) before it could change a previously established milestone or date

for emplacement of the permanent

radon barrier.

5.3 Discussion of Amendment of NRC

and Agreement State Licenses

Comment: There is some concern that

EPA may be over scrutinizing the NRC

license amendment process, particularly

with respect to the Atlas site located in

Moab, Utah.

Response: In order to determine that

the NRC regulatory program protects the

public health with an ample margin of

safety and rescind subpart T, EPA must

conclude, inter ala that NRC andi the

affected Agreement States are or will be

implementing and enforcing the license

requirements (tailings closure plan

(radon)) that establish the milestones for

emplacement of a permanent-radon

barrier that will achieve compliance

with the 20 pCi/m 2

-s flux standard as

expeditiously as practicable considering

technological feasibility. The Agency is

applying the same basic approach in

reviewing all of the license

amendments. Presently, Atlas is the

only site where the site license has not

yet been amended, but the tailings

closure plan (radon) milestones are in

jeopardy. There is a wealth of

information for EPA to review due to

the unique circumstances of this site.

EPA is interested in the Atlas site

because the license amendment

incorporating the reclamation plan has

not yet been completed, and this may

jeopardize the dates contained in the

tailings closure plan (radon). The MOU

established a target closure date of 1996.

EPA recognizes that this is the only site

for which a license amendment

incorporating the. reclamation plan has

not been established, thereby possibly

impacting the dates currently contained

in the approved tailings closure plan

(radon) adopted pursuant to the MOU

and EPA's evised subpart D

regulations, and- that the circumstances

surrounding the delay are unique. EPA

believes NRC, the affected Agreement

States and the licensees have acted in

good faith to amend the site licenses.

The Agency does not believe it is

overly scrutinizing the license

amendment process. The Agency

believes its interest in the. Atlas site

reflects EPA's commitment to and

review of the applicable criteria in

finally determining that NRC and the

affected Agreement States am or will be

implementing and enforcing the license

requirements (tailings closure plan

(radon)) to achieve compliance with'the

20 pCiim2-s flux standard.. EPA is

merely reviewing current information

and monitoring the progress of NRC in

implementing.the requirements of

subpart D. The Agency has not

suggested any course of action to NRC'

5.4 Public Participation

Comment: An industrial site, other

than a uramum mill tailings disposal

site, commented that publishing a

notice in the Federal Register does not

provide sufficient notice for citizens of

communities where uranium mill

tailings disposal sites are located.

Response: The EPA made every effort

to notify the affected public of the

proposed rulemakmg action. EPA

published a NPR on December 31, 1991,

and a supplement to that proposal on

February 7 1994, in the Federal

Register. There was a public comment

period after each proposal; public

hearings were held in Washington, DC

and Santa Fe, NM after the 1991

proposal and no request for a heanng

was received after the 1994 proposal.

EPA believes it has afforded the public

with full opportunity to participate in

this proceeding, as well as satisfied all

such requirements under Clean Air Act

section 307

V Miscellaneous

A. Disposition of Pending Judicial

Challenges and Petitions for

Reconsideration

By taking today's action rescinding

subpart T as applied to owners and

operators of uranium mill tailings

disposal sites regulated under Title II of

UMTRCA, the stay of subpart, T is no

longer effective. Thus, the challenge to

the stay of subpart T filed by EDF is

moot, and EPA expects that the pending

litigation will be promptly resolved by

dismissal. Based on the terms of the

settlement agreement between EDF

NRDC, AMC, individual sites and EPA

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

as described above, and based on

today.'s rescission of subpat T,.AMC's

pending administrative petition for

reconsideration of subpart T is denied

as moot. Additionally, all other pending

petitions for reconsideration of subpart

T as applied to Title II sites are denied

as moot-umder today's action.

B. Paperwork Reduction. Act

There are no information collection

requirements in this rule.

C. Executive Order 12866

Under. Executive Order 12866, (58 FR

57735, October,4, 1993) the Agency,

must determine whether this regulation,

if promulgated, is "significant" and

therefore subject to OMB review and the

reqiuirements of the Executive Order,.

The Order defines "significant

regulatory action" as one that is likely....

to result in a rule that may:, .(1 Have an annual effect on the

economy of $100 million or more or

adversely affect in a material way theeconomy, a sector of the economy,

productivity, cQmpetition, jobs, the

environment, public health or safety, or

State, localor tribal governments or

communities;

(2) Create a serious inconsistency or

otherwise interfere with an action taken

orplanned by another agency;

(3) Materially alter the budgetary

impact of entitlements, grants, user fees,

or loan programs or the rights and

obligations of recipients thereof;.or

(4) Raise novel legal or policy issues

arising out of legal mandates, the

President's priorities, or theprinciples

set forth in the Executive Order.

This action is not a significant

regulatory action as that term is defined

in Executive Order 12866, since it will

not result in-an annual effect on the.

economy of $100 million or another

adverse economic impact; it does not

create a serious inconsistency or

interfere with another agency's action; it

does not materially alter. the budgetary

impacts of entitlements, grants, user

fees, etc., and it does not raise novel

legal or policy issues. Thus, EPA- has

determined that rescinding subpart T as

it applies to owners and operators of

uranium mill tailings disposal sites that

are licensed by the NRC or an affected

Agreement State is not a "significant

,regulatory action" under the terms of

Executive'Order 12866 and is therefore

not subject to OMB review.

D. Reguldtory Flexibility Analysis

Section 603 of the Regulatory

Flexibility Act, 5 U.S.C. 603, requires

EPA to prepare and make available for

comment an "initial regulatory

flexibility analysis" which describes-the

effect of.this rule on small busines,

entities. However, section 604(b) of the

Act provides that an analysis not bo

required when the head of an Agency

certifies that the rule will not, if

promulgated, have a significant,

economic impact on a substantial

number of small entities.

Most firms that own uranium- mill

tailings piles are divisions or

subsidiaries of major U.S. and

international corporations. Many are

parts of larger diversified mining firms

which are engaged-in a number of raw

materials industries; the disposal of

uranium mill tailings piles represents

only a small portion of their overall

,operations. Others are owned by' major

oil companies and electric utilities

whichwere'engaged in horizontal and

vertical integration, respectively during

the industry's growth phase in the 1960s

and 1970s.

It was.found in the 1989 rulemaking

that there was no significant impact on

small business entities. There has been.

no change in this, and no new-tailings

pileshave been constructed since 1989.

I certify that this final rule to rescind'40

CFR part 61, subpart T as applied to

owners and operators of NRC licensed

non-operational uranium mill'tailings

disposal sites, will not have significant

economic impact on a substantial

number of small entities.

List of Subjects in 40 CFR Part 61

Environmental protection, Air

pollution control, Arsenic, Asbestos,

:Benzene, Beryllium, Hazardous

substances, Mercury, Radionuclides,

Radon, Reporting and recordkeeping

requirements, Uranium, Vinyl chloride.

Dated: June 29, 1994.

Carol M. Browner,

Administrator,

Pait 61 of chapter I of title 40of the

Code ofFederal Regulations is amended

as follows:

PART 61-(AMENDED)

1. The authority citation for part 6.1. is

revised to read as follows:

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

7416, 7601.

2. Section 61.220 is amended by

revising paragraph,(a) and removing and:

reserving paragraph (b) to read as

follows:

§ 61.220 Designation of facilities.

(a) The provisions of this subpart

apply to owners and operators of all

sites that are used for the disposal of

tailings, and that managed residual

radioactive material during and

following the processing of uranium

ores, commonly referred to-as uranium,

nills and their associated tailings, that

are listed in, or designated by the

Secretary of Energy, under Title I of the,

Uramm,Mill Tailings Radiation

Control Act of 1978, except § 61.226 of

this subpart which applies to owners

and operators of all sites that are

regulated under Title II of the Uranium

Mill Tailings Radiation Control Act of

1978 ".

(b) IReserved]

3. Section 61.221 is amended by

revising the introductory text, revising

paragraphs (a) and (c), and by adding

paragraphs (d) and (e) to read as follows:

§61.221 Delinitions.

As used in this subpart, all terms not

defined here have the meanings given

them in the Clean Air Act or subpart A

of Part 61. The, following terms shall

have the following specific meanings:

(a)Long term stabilization means the

addition of material on a uranium mill'

tailings pile for the purpose of.ensunng

compliance-with the requirements of,40

CFR 192.02(a). These actions shall be

considered complete when-the Nuclear

Regulatory Commission determines that

the requirements of 40 CFR 192.02(a)

.have been met.

(c) Residual radioactive materials

shall have the same meaning as in

section 101(7) of the Uranium Mill

Tailings Radiation Control Act of 1978,

42 U.S.C. 7911(7).

(d) Tailings shall have the same

meaning as in section 101(8) of the

Uranium Mill Tailings Radiation

Control Act of 1978, 42 U.S.C. 7911(8).

?(e) In significant part means in a

manner that is not reasonably expected

tomaterially (Le., more than de

minimis) interfere with compliance

with the 20 pCi/m2-s flux standard as

expeditiously as practicable considering

technological feasibility (including

factors' beyond the control of the

licensee).

4. Section 61.222 is amended by

revising paragraph (b) to read as follows:

§ 61.222 Standard.

'(b) Once a uranium mill tailings pile

ot impoundment ceases to be

operational it must be disposed of and

brought into compliance with this

standard within two years of the

effective date of the standard. If it is not

physically possible for an owner or

operator to complete disposal within

that time, EPA shall, after consultation

with the owner or operator, establish a

compliance agreement which will

assure that disposal will be completed

as quickly as possible,

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5. Section 61.223 is amended by

revising paragraph (b1(5) to read as

follows:

§ 61.223 Compliance procedures.

(b)

(5) Each report shall be signed and

dated by a public official in charge of

the facility and contain the following

declaration immediately above the

signature line:

I certify under penalty of law that I have

personally examined and am familfiar with

the information submitted herein.and based on my inquiry of those individuals

immediately responsible for obtaining the

information. I believe that the submitted

information is true. accurate and complete. I am aware that there are significant penalties

for submitting false information including

the possibility of fine and imprisonment. See.

18 U.S.C. 1001.

6. Section 61.226 is added to subpart

T to read as follows:

§ 61.226 Reconsideration of rescission

and reinstMement of this subpart.

(a) Reinstatement of this subpart upon

completion of reconsideration of

rescission.

(1) The Administrator shall reinstate

40 CFR part 61, subpart T as applied to

owners and operators of non-operational

uranium mill tailings disposal sites that

are licensed by the NRC or an affected

Agreement State if the Administrator

determines by rulemaking, based on the

record, that NRC or an affected

Agreement State has.

(i) Failed on a programmatic basis to

implement and enforce, in significant

part, the regulations governing the

disposal of uranium mill tailings

promulgated by EPA and NRC or the

tailings closure plan (radon) (i.e.,

contained in the license) requirements

establishing milestones for the purpose

of emplacing a permanent radon barrier

that will achieve compliance with the

20 pCi/m 2-S flux standard; and

(ii) Those failures may reasonably be

anticipated to significantly interfere

(i.e., more than de minimis) with the

timely emplacement of a permanent

radon barrier constructed to achieve

compliance with the 20 pCi/m --s flux

standard at the uranium mill tailings

disposal site.

(2) The Administrator shall reinstate

40 CFR part 61 subpart T on a sitespecific basis as applied to owners and

operators of non-operational uranium

mill tailings disposal sites that are

licensed by the NRC or an affected

Agreement State if the Administrator

determines by rulemaking, based on the

record:

(i) That NRC or an affected Agreement

State has failed in significant part on a

site-specific basis to achieve compliance

by the operator of the site or sites with

applicable license requirements,

regulations, or standards implemented

by NRC and the affected Agreement

States; and

(ii) Those failures may reasonably be

anticipated to significantly interfere

(i.e., more than de minimis) with the

timely emplacement of a permanent

radon barrier constructed to achieve

compliance with the 20 pCi/m 2-s flux

standard at the uranium mill tailings

disposal site.

(3) Upon completion of the

reconsideration of rescission pursuant

to § 61.226(c) the Administrator may

issue a finding that reinstatement of this

subpart is not appropriate if the

Administrator finds:

(i) NRC and the affected Agreement

States are on a programmatic basis

implementing and enforcing, in

significant part, the regulations

governing the disposal of uranium mill

tailings promulgated by EPA and NRC

or the tailings closure plan (radon) (i.e.,

contained in the licensel requirements

establishing milestones for the purpose

of emplacing a permanent radon barrier

that will achieve compliance with the

20 pCi/m 7-s flux standard, or

(ii) NRC or an affected Agreement

State are on a site-specific basis, in

significant part, achieving compliance

by the operator of the site or sites with

applicable license requirements,

regulations, or standards implemented

by NRC and the affected Agreement

States.

(b) Procedures to Petition for

Reconsideration of Rescission of this

subpart.

(1) A person may petition the

Administrator to reconsider the

rescission and seek reinstatement of this

subpart under § 61.226(a).

(2) EPA shall summarily disriss a

petition to reconsider rescission and

seek reinstatement of this subpart under

§ 61.226(a)(11. (programmatic basis),

without prejudice, unless the petitioner

demonstrates that written notice ofthe

alleged failure(s) was provided to NRC

at least 60 days before filing the petition

with EPA. This notification shall

include a statement of the grounds for

such a petition and this notice

requirement may be satisfied by but is

not limited to, submLssions or pleadings

submitted to NRC during a proceeding

conducted by NRC.

(3) EPA shall summarily disnuss a

.petition to reconsider rescission and

seek reinstatement of this subpart under

§ 61.226(a)(2) (site-specific basis),

without prejudice, unless the petitioner

demonstrates that a written request was

made to NRC or an- affected Agreement

State for enforcement or other relief at

least 60 days before filing its petition

with EPA, and unless the petitioner

alleges that NRC or the affected

Agreement State failed to respond to

such request by taking action, as

necessary to assure timely

implementation and enforcement of the

20 pCi/m 2-S flux standard.

(4) Upon receipt of a petition under

§61.226(b)(1) that is not dismissed,

under § 61.226(b)(2) or (b)(3), EPA will

propose to grant or deny an authorized

petition to reconsider, take comments

on the Agency's proposed action, and

take final action granting or denying

such petition to reconsider within 300

days of receipt.

(c) Reconsideration of Rescission of

this Subpart Initiated by the

Administrator.

(1) The Administrator may initiate

reconsideration of the rescission and

reinstatement of this subpart as applied

to owners and operators of nonoperational uranium mill tailings

disposal sites if EPA has reason to

believe that NRC or an affected

Agreement State has failed to

implement and enforce, in significant

part, the regulations governing the

disposal of uranium mill tailings

promulgated by EPA and NRC or the

tailings closure plan (radon)

requirements establishing milestones for

the purpose of emplacing a permanent

radon barrier that will achieve

compliance with the 20 pCilm Z-s flux

standard.

(2) Before the Administrator initiates

reconsideration of the rescission and

reinstatement of this subpart under

§ 61.226(c)(1), EPA shall consult with

NRC to address EPA's concerns and if

the consultation does not resolve the

concerns, EPA shall provide NRC. with

60 days notice of the Agency's intent to

initiate rulemaking to reinstate this

subpart.

IFR Doc. 94-17089 Filed 7-14-94: 8:45 amil

BILLING CODE 6560-60-P

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