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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 ofuranum 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) ofthe Clean Air Act as amended, EPA has determined that the NRC regulatory program protects public health with an ample margin ofsafety
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 thisrule will be applied immediately to all affected facilitiesincluding existing sources. Under section 307(b)(1) of the Clean Air Act, judicial review ofthis final action is available only by filing a petition for review in the United States Court of Appeals for theDistrict ofColumbia Circuit within 60 days ofpublication of this rule. Under section 307(b)(2) of the Act, the provisions which are the subject oftoday'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 of8 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 ofContents
I.Background
A. Description ofUranium Mill Tailings B.Regulatory History C.Clean Air Act Amendments of1990 D.Memorandum ofUnderstanding (MOU) between EPA,NRC and affected Agreement States E.The Settlement Agreement
II.Rationale for Final Rule to Rescind 40 CFR Part 61 Subpart Tfor 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 ofUnderstanding (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 ofNRC 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 orAdministrative Challenges B.Reconsideration Provisions

1.December 31, 1991 Proposed Rule to

Rescind subpart T 2. Reconsideration Options 3. Reconsideration Provisions Adopted

Today
IV Discussion ofComments and Response to Comments From NPR
V Miscellaneous
A. Disposition ofPendingJudicial Challenges and Petitions for Reconsideration B.Paperwork Reduction Act C. Executive Order 12866 D.Regulatory Flexibility Analysis

1. Background

A. DescriptionofUraniumMill 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 ofacres. Most piles are located in the Western United States, and all piles emit radon gas, a decay product ofradium in the waste material resulting from the processing of

ore to recover uranium at the uranium mills. B. RegulatoryHistory
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 orminimize radon diffusion into the environment and to prevent orminimize 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 ofEnergy (DOE) to conduct the necessary remedial actions at designated inactive uranium mill tailing sites to achieve compliance with the general environmental standards tobe 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 oftailings, 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 ofthe 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 ofNRC'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 ofthe 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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ofthe AEA, e.g., uranium mill tailings. Requirements established by the NRC with respect to byproduct material must conform to the EPA standards. Any requirements ofsuch standards adopted by theNRC 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 theAdministrator determines
to be appropriate. See 42 U.S.C. 2022(b)(1).

As promulgated by EPA under subpart D of40 CFR part 192 in 1983 and implemented by NRC pursuant to its'regulations at 10 CFR part 40, appendix A, aTitle II site licensed by NRC or an Agreement State, could indefinitely continue to emit radon at levels that could result inrisks higher than allowed under the CAA. It was this possibility which compelled EPA to promulgate subpart T of40 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 didnot include any requirement that monitoring occur to verify the efficacy ofthe 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 ofEPA'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 bemet, 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 ofthe thencurrent EPA and NRC programs regulating uranium mill tailings, EPA promulgated standards under Section 112 ofthe 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 tothe ambient air from several source categories, including non-operational sites used for the disposal ofuranium mill tailings. (54 FR 51654). These sites are either under the control ofthe DOE pursuant to Title Iofthe Uranium Mill Tailings Radiation Control Act (UMTRCA) of 1978, 42 USC 7901 et. seq., or are under the control ofNRC or Agreement Statelicensees pursuant to Title II of UMTRCA. These standards-subpart T of40 CFR part 61 (subpartT)-were promulgated pursuant to the authority of Clean AirAct (CAA or Act) section 112 as it existed in 1989.

Prior to today's action, subpart T of40 CFRpart 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 oflarge (i.e., numerous acre) impoundments orpiles, comply with a radon flux standard of20 pCi/m 2-s. 40 CFR 61.222(a). Moreover, compliance
mustbe achieved within two years of when the site becomes non-operational, 40 CFR 61.222(b), which for piles which had ceased operation priorto thetime ofpromulgation was no later than December 15, 1991. While atthe time of promulgation EPA recognized that many

sources might notbe able to achieve this date, EPA was constrained by then existing CAA section 112(c)(1)(B)ii) which allows a maximum oftwo years for facilities to come into compliance. EPA stated that forthose 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 formonitoring and recordkeeping to establish and demonstrate compliance. See 40 CFR 61.223 and 61.224.

Subpart T was part ofa larger promulgation ofradionuclide NESHAPs that represent the Agency's application ofthe 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 ifit is no higher than approximately one in ten thousand. This-presumptive level provides a benchmark forjudging the acceptability ofa category ofemissions. This first step also considers other health and risk factors such as projected incidence ofcancer, the estimated 

### number ofpersons exposed within each individual lifetime riskrange, the weight ofevidence presented inthe risk assessment, and the estimated incidence ofnon-fatal cancer and other health effects. After considering all ofthis information, a final decision on a safe level ofacceptable riskis made. This becomes the starting point for the second step, determining the ample margin ofsafety.

In the second step, EPA strives to provide protection forthe greatest number ofpersons possible to an individual lifetime risk level no higher than approximately one in onemillion. In this step, the Agency sets a standard which provides an ample margin of safety again considering all ofthe health risk and other health information considered in the first step, aswell as additional factors such as costs and economic impacts ofcontrols, 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-of20 pCi/m2



### -
s (see 40 CFR part 192, subpart D), and thus EPAreferred to that level as "baseline." EPA's risk assessment revealed that compliance withthe 20 pCi/m 2 

### -s baseline would result in an estimated lifetime riskto themaximally exposed individual of approximately lx10-4 a level EPA determined to be 

### safe under the first step ofthe 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 ofsafety.

Eventhough EPA determined that the baseline was protective ofpublichealth with an ample margin ofsafety. EPA still found it wasnecessary 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 inthe 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 itrequires that,

once a uranium mill tailings pile or impoundment ceases to be operational, it must be disposed ofand brought into compliance withthe emission limit within two years ofthe effective date of 36281

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the standard (by December 15, 1991) or within two years ofthe dayit ceases to be operational, whichever is later. Lastly, it requires monitoring ofthe disposed pile to demonstrate compliance withthe 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 notanswer the critical timing concern addressed by subpart T

The existing UMTRCA regulations set no time limits for disposal ofthepiles. Some piles have remained uncovered for decades emitting radon. Although recent action has been taken tomove toward disposal ofthese piles, some ofthem may stillremain uncovered foryears. 54 FRat 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 tomeet. 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 theAgency would-negotiate expeditious compliance schedules pursuant toits enforcement authority under CAA section 113. See 54 FR 51683. By so doing, subpart T in effect mandated that the coverto meet that emissions levelbe installed as expeditiously as practicable considering technological feasibility.

The numerical radon emission limit ofsubpart Tis the same as the UMTRCA standard at 40 CFR part 192, subpart D (subpart D) (although under UMTRCA, the limit is tobe metthrough proper design of.the disposal impoundment, andis to be implemented by DOE and NRC forthe individual sites, while under the CAA, the standard is an emissions limit with compliance establishedby EPA through monitoring). However, the two year -disposal requirement and the radon monitoringrequirement 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) tofill a specific regulatory gap with respect totiming andmonitoring. Under subpart D,sites are now required
to construct a permanent radQnbarrier pursuant to a design to achieve compliance with the 20pCi/m 2-s flux 

### standard asexpeditiously as practicable considenng technological feasibility (including factorsbeyond the control of the licensee). EPA announced fts goal that this occurby December 31, 1997 for.those non-operational uranium mill tailings piles listed in the MOU between EPA, NRC and the affected Agreement States (at 56FR 67568), or seven years after the date on which the impoundments cease operation forall other piles. The new requirement for verifying the flux with monitoring is meant to assure the efficacy ofthe design ofthe permanent radon barrier following construction.

Section 84a(2) ofthe 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 acomprehensive 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 ofthe design of the

cover. NRC proposed uranium mill -tailingsregulations to conform the NRC requirements toEPA's proposed amended standards at 40 CFR part 192 subpart D. 58 FR58657 (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 Ato part 40 of title 10 ofthe CFR..(59 FR28220, 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 forreconsideration, most notably from NRC, the American Mining Congress (AMC) andHomestake Mining Co. It

was also alleged that subpart Twas unlawfulbecause 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 inpart), EPA has taken several actions
to address the issues they raised, including publishing the proposal to rescind subpart T, as well asthe Final Rule to amend 40 CFRpart 192, subpart D (UMTRCA regulations) and a Final Rule staying subpart T pendingthe .conclusion ofthisrulemaking.

C. CleanAirActAmendments of1990

Afterpromulgation of subpart T (and receipt ofreconsideration petitions), the Clean AirAct 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 offacilities licensed by the Nuclear Regulatory Commission (or an Agreement State) is required to be promulgated under section 112 ifthe Administrator determines, by rule, and after consultation with the Nuclear Regulatory Commission, that the regulatory program established by the Nuclear Regulatory Commission pursuant tothe Atomic Energy Act for such category or subcategory provides

an ample margin ofsafety toprotect the public health. Thisprovision strives to eliminate duplication ofeffort between EPA and NRC, so long aspublic health is protected with an ample margin of safety.

Moreover, Congress expressed sensitivity to the special compliance problems ofuranium 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) ifthe 4 years allowed (including a one year extension) for compliance with standards promulgated under the amended section 112 is insufficient to dry andcover the mining waste (thereby controlling emissions).

D.MemorandumofUnderstanding (MOU) Between EPA, NRCandAffected AgreementStates

In July of1991, 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 ofUnderstanding (MOU)between EPA, NRC and the Agreement States which outlines the steps each party will take toboth eliminate regulatory redundancy and to ensure uranium milltailings piles are closed asexpeditiously as practicable. See 56 FR 55434 (MOU reproduced aspart ofproposal to stay subpart T); see also 56 FR 67537 (final rule to stay subpart T). The pnmary purpose ofthe MOU is to ensure that

owners ofuranium 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 (includingfactors 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 orwithin

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seven years ofthe 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), asamended.

E. The SettlementAgreement

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 ofproposed rulemaking under UMTRCA. See 55 FR 67537 67561 and 67569. In order to preserve its rights, EDF filed a lawsuit challenging the legality ofthe 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 ofsubpart T

Discussions continued with the litigants and NRC, andin February 1993, an agreement was reached to settle the pending litigation and the administrative proceeding, avoid potential future litigation, and otherwise agree to apotential approach to regulation ofNRC-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, andthereby continues, the approach set forth in the MOU. Actions implemented under the settlement agreement should result in the expeditious control ofradon-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 ofsafety. It does this, in part,by providing for changing EPA's UMTRCA regulations such that public health wouldbe as well protected under UMTRCA as would implementation of subpart Tunder the CAA.
II.Rationale for FinalRule To Rescind 40 CFRPart61 SubpartTforNRC and Agreement State Licensees

In light of thenew statutory authority provided EPA by section 112(d)(9) of the Clean Air Act as amended, EPA met with NRC andthe affected Agreement 'States to determine whether, with certain modifications to its regulatory program under UMTRCA, the NRC regulatory program might provide an ample margin ofsafety. Ifso, 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 ofsafety. 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 ofthe licensee, the NRC program protects the public to the

same extent as subpart T and subpart T is notnecessary for these facilities. More specifically appropriate modifications to the UMTRCA regulatory scheme as implemented by NRC andthe affected Agreement States to ensure specific, enforceable closure deadlines and monitoring requirements such that compliance with thebaseline occurs as expeditiously as practicable considering technological feasibility and factors beyond the control ofthe licensee, protectpublic health with an ample margin ofsafety. In so concluding, EPA relies wholly upon the risk analysis it conducted inpromulgating subpart T. EPA is not revisiting that analysis here.
A. The RegulatoryScheme Under UMTRCA

As a supplement to the Atomic Energy Act of1954, as amended, UMTRCA (42 U.S.C. 2022, 7901-7942)

was enacted to comprehensively address the dangers presented by uranium milltailings, including their disposal:

Uranium mill tailingslocated at active and inactivemill operations may poseapotential andsignificant radiation healthhazard to.the public, and the protection ofthe public health, safety, andwelfare require[s] that everyreasonable effort be madetoprovide for the stabilization, disposal, andcontrol in asafe and environmentally sound manner ofsuch tailingsin orderto prevent or minimize radon diffusion into the environment 42 U.S.C. 7901(a); see AmericanMining Congressv. 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 ofEnergy (DOE) the responsibility to clean up and 

### dispose ofcertain sites (i.e., Title I),and gives NRC the responsibility for regulating those sites that are owned and operated byits licensees (i.e., Title II). EPA is responsible forpromulgating the generally applicable environmental standards tobe 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 Isites and on September 30, 1983 for Title II sites. 48 FR 590 and 48 FR 45926 (codified at40 CFRpart 192).

Parts ofEPA's final UMTRCA regulations are directed to the permanent disposal ofuranium mill tailings. See 40 CFR part 192, subpart D. Among the requirements of subpart Dis the mandate that radon releases from the disposal sites notexceed a flux of -20 pCi/m 2

### -s. 40 CFR 192.32 (a) and (1). Other aspects ofsubpart D pertain to .groundwater, monitoring, design, and duration ofclosure. See 40 CFR 192.32 and 192.33. With the exception ofthe groundwater provisions at 40 CFR 192.20(a)(2)-(3), applicable to Title I sites, all aspects ofEPA's regulations

were upheld bythe Tenth Circuit in AMC v Thomas. 772 F.2d at 640. EPA is currently engaged inrulemaking to address the court's remand ofthe Title, Igroundwater 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 generally10 CFRpart 40, appendix A. While these criteria set forth avariety 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 asEPA's general standards and NRC's criteria, "to the extent practicable" as provided in section 84c ofthe Atomic Energy Act of 1954, as amended. 10 CFR part 40, appendix A,Introduction.

Overall, NRC's implementation criteria set forth arigorous program governing thereclamation ofthe disposal sites so that closure will (1)last for 1,000 years to the extent reasonable, but in any event atleast 200 years, and (2) limitradon 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 at40 CFR part192, subpart D. However, as noted above, nothing ineither EPA's 1983 general standards or NRC's 1985 amended 36283

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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 TNESHAPs 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 AirActAmendments of1990: Section 112(d)(9) ("Simpson Amendment")

The purpose ofthisprovision 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 ofthe CAA for those radionuclide

sources that are sufficiently regulated by NRC orits Agreement States (underthe Atomic Energy Act orits component Acts, such as UMTRCA). More particularly, section 112(d)(9) allows EPA to decline to regulate under section 112 ifthe 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 mayrescind the subpart T NESHAP as it applies to nonoperational uranium mill tailings disposal facilities licensed by NRC or an affected Agreement State ifthe 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 ofpublic health protection (i.e., an ample margin of safety) as would implementation of subpart T. While thisrulemaking may

commence prior to final development of NRC's regulatory program, that program mustfully satisfy the statute at the time EPA takes final action. In so doing, EPA
must find thatthe NRC regulatory
program satisfies the CAA standard, not that full and final implementation of that program has already successfully occurred.

C.Memorandum ofUnderstanding 

### (MOU)

EPA, NRC and the affected Agreement States entered intensive discussions resulting in the execution ofa Memorandum ofUnderstanding (MOU),

a copy ofwhich was printed at the end ofthe proposed rule to rescind subpart T published December 31, 1991 (56 FR 67568). The pnmary purpose ofthe 

### MOU is to ensure that non-operational uranium mill tailings pilesand impoundments licensed by NRC oran affected Agreement State achieve compliancethrough emplacement ofa. permanent radon barrierwith the 20 pCi/m2 

### -s flux standard specified in EPA's UMTRCA standards (40CFR 192.32(b)(1)) as expeditiously as practicable considenng technological feasibility (including factors beyond the control ofthe licensee). The goal isthat this occur at all current disposal sitesby the end of 1997 orwithin seven years ofwhen the existing operating and standby sites enter disposal status. The MOU called forEPA to modify its UMTRCA regulations (at 40 CFRpart 192, 

### subpart D)to address the timing

concern thatresulted in

### EPA's 1989 decision to promulgate subpart T. In addition, the MOU called for NRC to modify its implementing regulations at 10 CFRpart 40, appendix A, as appropriate, and to immediately

commence effortsto amend the licenses ofthe 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 factorsbeyond the control of the licensee). This was tobe accomplished eitherthrough 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 ofall sites whose milling operations have ceased and whose tailings piles remain partially ortotally uncovered. The amended licenses would require each mill operator to establish a detailed tailings closure plan forradon to include key closure milestones and a schedule for timely emplacement of a permanent radon barrieron allnonoperational tailings impoundments to

ensure thatradon emissions donot exceed aflux of20 pCi/m 2 

### -s. These actions, coupled with NRC's commitment to enforce the amended licenses, are intended to provide the basis forEPA tomake the requisite findings under CAA section 112(d)(9) forrescission of subpart T.
D. SettlementAgreement

In light ofCAA 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 aresult ofdiscussions after execution ofthe 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 notbe dismissed until after certain terms in the agreement were fulfilled. The parties agreed that upon rescission ofsubpart T they would jointly move the court to dismiss the challenges pertaimng solely
to subpart T. (Paragraph 111.1.) By the
terms ofthe agreement (paragraph 111.15.), AMC's pending administrative petition for reconsideration ofsubpart T becomes moot with the final rescission ofsubpart T.Moreover, the agreement does not legallybind or otherwise restrict EPA's rights orobligations 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 ofthe final agreement is activation by the litigants ofthe underlying litigation.

E.Actions by NRCand EPA Pursuant to theMOUand SettlementAgreement

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 of40 CFR part 61, subpart T as it applies to owners and operators of non-operational uranium milltailings disposal sites licensed by the NRCor an Agreement State. The stay will remain in effect until the Agency rescinds the uranium mill tailings NESHAPs at40 CFR part 61, subpart T. However, ifEPA fails to complete that rulemaking by June 30, 1994, the stay will expire and the requirements ofsubpart Twill 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 NRCor an Agreement State (56 FR 67561).

In the third notice, EPA published an advanced notice ofproposed 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 factorsbeyond the control ofthe 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 ofa permanent radon barrier constructed to achieve compliance with, including attainment of,the 20 pCi/m 2

### -sflux standard by all NRC orAgreement 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 ofthe site closure as expeditiously as practicable considering technological feasibility (includingfactors beyond the control of the licensee) afterthe impoundments

cease operation. EPA announced agoal that this occurby December 31, 1997 forthose 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 aspracticable considering technological feasibility "means as quickly as possible considering: (1)The physical characteristics ofthe tailings and sites; (2)the limits of available technology; (3) the need for consistency with mandatory requirements ofother 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 ofa cost-benefit analysis in setting compliance schedules. The radon control compliance schedules are to be developed consistent with the targets set forth inthe MOU as reasonably applied to the specific circumstances ofeach site.

EPA recognized that the UMTRCA regulatory scheme encompasses a design standard. EPA made minor amendments to this scheme to better facilitate implementation ofthe regulation -withoutfundamentally altering the current method of compliance. Subpart D, as amended, requires site control 'becarried 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 tothe milestones for control, after NRCor an affected Agreement State finds that the schedule reflects compliance as expeditiously as practicable considering technologicalfeasibility (including factorsbeyond the control ofthe licensee). The compliance schedules are to be developed consistent with the targets set forth in theMOU as reasonably applied to the specific circumstances ofeach site with

agoal that final closure occur by December 31, 1997 for those nonoperational uranium mill tailings piles listed inthe MOU between EPA, NRC and affected Agreement States (at56 FR 67568), or seven years afterthe date on whichthe 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 Drequires 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 andrecontouring), 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 ofthe 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 oflicensees) within the time periods set forth in the MOU, including Attachment A thereto, and for new sites to achieve compliance

no laterthan seven years after becoming non-operational.

However, ifthe 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 forpublic participation, then the performance of themilestone(s)
may be extended. Ifan extension is granted, then during the period ofthe 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 ofthe permanent radon barrier, orrelevant 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 ifit finds, after providing the opportunity forpublic 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 willnot 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 ofthe MOU. (56 FR 67569).

EPA expects the NRC and Agreement States to act consistently with their commitment inthe MOU and provide forpublic notice and comment on proposals orrequests 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 oftechnological feasibility (including factors beyond the control of the licensees). Under the terms ofthe 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 subpartT,

were supported by a variety ofdesignbased 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 atleast 200years, but did not require monitoring ofemissions to confirm the performance ofthe earthen

cover. See generally 10 CFRpart 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, orany 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 ofthe permanent radon barriar in achieving compliance with the 20 pCi/m 2-s flux standard. After emplacement ofa permanent radon barrier designed and constructed to achieve compliance wit:h, including attainment of,the 20pCi/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 ofradon-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 ifthe 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 ofthe extension.

2. NRCRegulatory 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 NRCamend 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 ofthe "final" radon barrer. Id. Ifthe reclamation plan specifies phased emplacement ofthe "final" radon barrier, the verification
must be performed onthe portion of the 

### pile or impoundment asthe "final" radon barrier for that portion is emplaced. Additionally, certain reporting and recordkeeping isrequired in connection with the verification of the effectiveness ofthe "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 ofthe licensee, final radon barrier, milestone, operation and reclamation plan. While supbart D requires emplacement of the "permanent" radon barrer NRC requires emplacement ofthe "final" radon barrier. According to NRC, the definition offinal 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 ofthe final earthen barrier and not as a result ofany temporary conditions or interim

measures. (59 FR 28222, June 1, 1994). The final definitions offactors beyond the control ofthe licensee and available technology have been revised to include

a list ofpossible factors and examples ofgrossly excessive costs respectively, consistent with subpart D.

Criterion 6A paragraph 1requires completion ofthe "final" radonbarrier

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 awritten Commissionapproved reclamation plan. In addition, this paragraph requires inclusion of specified interim milestones as a condition ofthe individual site license. Criterion 6A also specifies the conditions for Commission approval of extensions forperformance 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) 

### (59FR 28220, 

### June 1,1994). These provisions vary somewhat from NRC's proposal, toreflect 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 ofradon flux levels has been made, and (2) that public participation is specifically tobe provided for only.in the case of continued disposal after radon flux verification, in addition to general 

### clarification ofthe 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 finalregulations contain various revisions to NRC's proposal, both substantive and editorial in nature, primarily forconsistency 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 arenot identical to subpart D, the differences are minor in nature, and properly reflect application ofthe subpart D requirements toNRC's separate regulatory program. NRC's final rule appropriately conforms its regulations to 40 CFR part 192subpart 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 ofsafety.
3.Amendment of NRCand Agreement State Licenses

Consistent with their commitments tinder the MOU, as well asEPA s previous proposal to rescind subpart T (56 FR 67561 December31, 1991), NRC and'the affected Agreement States agreed to amend the licenses ofall nonoperational uranium milltailings sites
to ensure inclusion ofschedules for emplacing a permanent radon bamer on the tailings impoundments, aswell as .interim milestones (e.g., wind blown tailings retrieval and placement on the pile, and interim stabilization). To this end, NRC andthe 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 NRCby keeping the Agency apprised ofthe
status ofthe approval ofreclamation plans and amendment oflicenses.

As ofSeptember 30, 1993, NRC and the Agreement Stateshad completed all license amendments forclosure of licensed non-operational impoundments, with the exception of .thelicense amendment incorporating the reclamation plan for the Atlas site locatedin 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 ofthe 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 atimely final decision

on the acceptability of theexisting Atlas site and its reclamation plan. To this end, NRC informed EPAby 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 thatbased on the level ofcontroversy related to the proposed action [on-site reclamation] and uncertainties associated with the unique features ofthe Moab site, preparation ofan EIS in accordance with the National Environmental Policy Act (NEPA) and the NRC's implementing requirements in 10 CFR part 51 is warranted. (59FR 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 oftwo alternative sites. Id.

The near edge ofthe town ofMoab is located about 2 km to the east of the Atlas tailings impoundment. However, it appears the area within a 1.5 km radius ofthe Atlas mill tailings impoundment site is sparsely populated. An interim cover is being placed overthe impoundment for radon emission control as the Atlas tailings impoundment dries sufficiently to allow

access ofthe necessary equipment. As discussed m the Background Information Document (BID) forthe 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 datesby extending the dates for windblown tailings retrieval and placement on the pile, placement ofthe interim cover and placement ofthe final radon barrier by

one year, NRC has informed EPA that the Commission approved the extension ofthe date for placement of the interim

cover to February 15, 1995 and that the milestone for emplacement ofthe "final" radon barrier was not extended. See Docket Entry A91-67 IV-D-50 (Letterfrom NRC to Atlas).

Since NRC will notice any proposed change in the milestone date for emplacement ofthe 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 ofthe 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 ofthe National Environmental Policy Act (NEPA) and there may be factors beyond the control ofthe 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 ofthe amended licenses to

ensure compliance with the new schedules for emplacing the permanent radon barriers, including interim milestones, and to ensure (andverify) the efficacy ofthe design and construction ofthe 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, acopy ofwhich was printed at theend ofthe proposed rule
to rescind subpart T).

III. Final Rule to Rescind 40 CFR Part 61, SubpartTfor 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) ofthe 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 ofconduct to bolster NRC's regulatory
program under UMTRCA so that it is protective ofpublic health with an ample margin ofsafety (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 DeterminationUnderCAA
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 ofsafety. The legislative history ofsection 112(d)(9) provides additional guidance as to what is meant by "an ample margin ofsafety
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 ofsafety" finding under section 112(d)(9) is the same "ample margin ofsafety" requirement that was contained in section 112 ofthe CAA prior to itsamendment 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 ofAppeals 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 of1990,
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 ofsafety. EPA conducted arisk analysis in promulgating subpart T in 1989. At that time, EPA determined that the 20pCi/ 

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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 thatbaseline would be protective ofpublic health with an ample margin ofsafety. EPA promulgated subpart Tto ensure achievement ofthe flux standard at nonoperational sites in a timely manner. In conducting this rescission rulemaking,, EPA is notrevisiting either the risk analysis or decision methodology that supported the promulgation ofsubpart T rather, EPA is only visitingwhether NRC's regulatory program under UMTRCA will result in meeting the 20 pCi/m 2 

### -s flux standard established in subpart T as beingthe level that provides an ample margin ofsafety 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 ofsafety 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 ofuranium 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 ofemplacing a permanent radon barrier that will achieve compliance with the 20 pCi/m 2

-


### sflux 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 aspracticable considering technological feasibility (and factors beyond the control ofthe licensee), and to require appropriate monitoring to verify the efficacy ofthe design ofthe 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 beclosed 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 asreasonably applied to the specific circumstances ofeach site. When EPA promulgated subpart T it recognized that many sources might not be able to comply with thetwo 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 ofthe 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 oftime required for sites
to comply with the flux standard.

As discussed above, subpart D as amended, provides that NRC may grant

an extension oftime to comply with either ofthe following deadlines: (1) Performance ofmilestones based upon a finding that compliance with the 20 pCi/m 2-s flux standard hasbeen 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 bebased on

one or the otherbut not both grounds. Ifa 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, ifa licensee requests extension ofthe final compliance date (orrelevant milestone) based upon cost, such an extension may only be granted
ifNRC finds that the three criteria specified in 40 CFR section 192.32(a)(3)(iii) are met. Any extensions ofthe final compliance date based upon cost will by the nature ofthe criteria be granted on a site-specific basis.

Ifa 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 ofsafety in promulgating subpart T 54 FR 51656 (December 15; 1989). EPA believes that during the short extensions, this is consistent with the reality ofshort-term risks from radon emissions during the period ofdelay 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 ifcompliance agreements had been negotiated. Extensions based upon cost will only be granted ifNRC 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. IfNRC or an Agreement State

uses this flexibility, public notice is required, and as appropriate, EPA would be aware ofits 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 ofsubpart T on either aprogrammatic or site-specific basis. Thus, under the circumstances. EPA believes affording authority for extensions ofthe 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 ofthe radon barrier based

on "factors beyond the control ofthe 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, bebased on the existence offactors beyond the control ofthe licensee, or on a change in any ofthe 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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### 3

circumstances would not automatically lead to anextension. 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 ofthe 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 CFRpart 40 toEPA'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 mayreasonably be expected to do so when finalized.

4. License Amendments

Table 1 illustrates that all NRC and affected Agreement State licenses, except one, havebeen modified pursuant to the MOU. Attachment A to the MOU, developed in conjunction with each site and considering the particular circumstances ofthat site, lists target dates for emplacement ofthe permanent radonbarrier 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 aspracticable considering both short-term reductions in radon releases and long-term stability ofthe uranium mill tailings." Id.Under the MOU, thecompliance schedules (i.e., tailings closure plans (radon)under subpart D, as amended) were tobe developed consistent with the MOU targets asreasonably applied to the specific circumstances ofeach site, with

a goal that final closure occurby December 31, 1997, forthose 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 ofthe MOU and the requirements ofsubpart D as amended, thus supporting rescission of subpart T and adetermination 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 ofRadiation and Indoor Air, Criteria and StandardsDivision detailing approval ofNRC 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 ofWashington); Docket Entry A91-67 IV-D-49 (Letterto Gail Bonnano [sic] providing information forWashington State licensees, DawnMining 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

..................... .................. UMETCO
, Uravan. CO

......................... ...... ............................ ..... .... .......... UNG, Church Rock, NM

.......................................... Union Pacfic, Bear Creek, Wyoming

........................................... ........................ WNI, Sherwood, WA

................... ....................................................................... Approval date for rec- lamation plan Approval date for rec-

lamation milestones MOU date for final radon

cover

-f -4 -J 4/10/83

1/30192

3 9/8/93 9/30/93 9/30/93 7/23/93 9/17/93 10/23/89 10/5/90 9/29/93 5/1/89

8 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 

### 36289

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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

WNI, Split Rock, WY

................................................................................................ 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 of earthen covers on non-operational tailings impoundments by September 30, 1993.

2Two impoundments: 1996 date isfor impoundment which was accepting waste from off-site for disposal. Licensee has requested an amendment for a one year extensionof datesfor placement of radon barrier on the two piles.

3Delayed pending resolution of issues raised in response to Federal Registernotice dated July20, 1993. 4Closure date change isbecause 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.

6Date in the MOU isfor final reclamation. 7Two impoundments: final radon barrier placement on both by December 31, 1997 One activecell. 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 ofthe 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 a45 day comment period; and publish the final EIS in April 1995. (59 FR 14914, March 30, 1994). Pending final approval ofa 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 ofthe interim cover to February 15, 1995. The date for placement ofthe "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 ofRadiation and Indoor Air, Criteria and Standards Division, summary oftelephone conversation with legal counsel to AMC); Docket Entry A91-67 IV-D-50 (Letter from NRCto 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 ofthe permanent radon barrier. On February 11, 1994, NRC published a notice ofreceipt ofa request to amend the reclamation schedule at the.ANC Gas Hills site. (59 FR 6658). ANC has requested a one-year extension ofthe 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 aprevious amendment request for a reclamation redesign proposal dated April 16, 1992, would notbe reviewed by late 1992 or early 1993." Id. NRCnotes that ANC is continuing to monitor and maintain the interim cover. Further, NRC statesApproval ofthe requestwill bebased 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 ofthe permanent radon barrier on this second impoundment is scheduled to be completed by June 30, 1996, *iell within the seven year goal ofthe 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 ofbusiness by the end ofMay 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 ofthose programs and functions in the manner described by the Licensee in its letter ofMay 9, 1994, would constitute a willful violation ofANC'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 ofabandonment wouldbe a serious violation ofthe 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 forNRC 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 ofsubpart 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 theCommission's enforcement policy and authority. See 10 CFR part 2, subpart Boand appendix C. While difficult enforcement questions

are raised about this site, EPAnotes that the same questions would be raised if subpart T were not rescinded. Under the provisions ofthe 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 atthat 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 ofWashington, are also beyond the dates contained in the MOU. However, Washington State notes that forthese sites the closure date was changed because ofthe groundwater remediation schedule, and the difficulty

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experienced indrying the piles due to the evaporation and precipitation rates. In sum, EPA believes thatthe license amendments adopted by the State of Washington forthese two sites reflect a good faith attempt to implement the MOU andreflect closure ofthe 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 ofthe relevant sites, they have notas yet established a record for enforcement of the milestones, including action on requests for extensions. To date, only one extension for placement ofthe interim cover atthe 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, asnoted in footnote 2 of Table 1, -anapplication for another extension is pending butno action has been taken. However, given their response to the requirements ofthe 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 ofthe permanent radon barrier (i.e., the tailings closure plan (radon)) willbe implemented and enforced in significant part on a programmatic and site-specific basis. The relevant portions ofthe amended licenses have beenplaced in the docket forthis action, as well as letters from NRC to EPA apprising the Agency ofthe status ofthe license amendments.

EPA and NRC have completed almost all ofthe actions required by theMOU, including: revising the NRC and affected Agreement State licenses to reflect the MOU andregulatory requirements, promulgating amendments to EPA's UMTRCA regulations at 40 CFRpart 192, subpart D, and revising the NRC regulations at 10 CFRpart 40 to conform to EPA's revised UMTRCA regulations. Based on EPA's review, to date, ofthe regulatory program established by NRC under UMTRCA (including amended 10 CFR part40, 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

### -sflux standard as expeditiously aspracticable considering technological feasibility (including factors beyond the control ofthe licensee). EPA today finds that NRC and the affected Agreement States are orwill be implementing and enforcing, in significant part, the regulations governing disposal oftailings and the license requirements (tailings closure plan (radon)) that establish milestones foremplacement ofa permanent radon barrier that will achieve compliance with the 20 pCi/m 2 

### -s flux standard on
aprogrammatic and a site-specific basis. The Agency intends "in significant part" to mean that NRC oran 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) Iinterfere 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 inthe 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 ofanyjudicial or administrative challenge to these regulations that is pending. Thus, EPA is aware ofno challenge which would present a significant risk ofinterference with the purposes and objectives ofthe MOU, as reflected in the regulatory changes.
B. Reconsideration Provisions
Under the Atomic Energy Act, NRC has the authority to waive, forreasons ofpracticability, 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 aspracticable considering technological feasibility. In promulgating subpart T, the CAA did not permit, and EPA did notconsider, site-specific waivers from ultimate compliance with that standard. Thus, as a theoretical matter, EPArecognized in its December 1991 proposal that this waiver authority might beexercised in

The phrase "de minimis" as used in this notice is not intended to berestricted to the meaning of section 112(g}1](A} oftheClean Air Act, as amended. 

### a manner notaddressed in theMOU

even after the UMTRCA regulations have been promulgated and each license amended, although EPA has no reason to believe such relaxation ofrestriction 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 orderto ensure its exercise doesnot alter EPA's finding that the NRCregulatory program protects public health with an ample margin ofsafety EPA announced in itsDecember 31, 1991, proposal that certain conditions and grounds for reconsideration would be included in any final decision to rescind subpart T Inthis way, EPA might base its rescission finding upon its view ofthe NRCregulatory program contemplated by the MOU atthe time of taking final action, while also providing

some assurance thatEPA would revisit that finding should NRC orthe affected Agreement States substantially deviate from that program. Thus, in December 1991, EPA proposed certain conditions and grounds forreconsideration, to provide assurance that any finding by the Agency that the NRCprogram is sufficient to justify rescission ofsubpart Tunder CAA section 112(d)(9) would be revisited ifthe NRC program is actually implemented in amanner inconsistent with that finding. The specific reconsideration options proposed by EPA werepublished at 56 FR 67565 (December 31, 1991).
2.Reconsideration Options

EPA has reviewed the various options forreconsideration proposed in December 1991 in light ofthe comprehensive details added to the terms ofthe MOU by the settlement agreement finalized in April 1993. On February 7 1994, EPA proposed an additional reconsideration option that is

a combination ofthe options proposed in December 1991. It is in effect a hybrid ofthat December 1991 proposal. While EPAdid 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 36291

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### Federal: Register I Viol. 59, No.. 135-/ Friday, July 15,. 1994 / Rules and Regulations

today, which includeboth programmatic and sita-specific bases for reinstatement, represent a comprehensive approach.under both.the MOU and settlement agreement. The Agency notes thatthe 20pCihn 2

### -s flix standard, must be metby all,sites as provided by40 CFR part 192, subpart DI EPA does notintend to reconsider the decision torescind subpartT for any site thatis in factmeoting the 20pCi/

m2 

### -s flux standard, absent other factors that would'indicate the need for reinstatement. For example, EPA may initiate reconsideration under §61.226

even ifa site is meeting the 20 pCi'm 2

-



### s flux standard'if hereare factors which showthat NRCor an Agreement State failed to imprement and enforce ui significant part, theapplicable regulations, e.g., failure ofthat sito to emplace apermanent radon barner designed to meet the requirements of subpart D

This action amends subpart Tand estaclishes an obligation for the Admim:s zatortoreinstate subpart Tas; applied toowners and operators ofnonoperational urarmum mill tailings disposal siteslicensed by NRC'o: an affected Ag&eemort.State providad certa n conditicns are met. Addftiornally, this action sets forth the procedures for EPAto'act ona petition to reccsider rescission ofsubpart T which seeks such reinstatinen-t. However-., thee prcnsians ame not intonded to ceexlusive. EPA rosorves the right to izitiate reinstatement of subpart Tifappmpnate. Pursuant to section 553ta) cfthe Admwinstrative Procedure Act (5 U.S.C. 553(c) interested per"onlin- ay petition the EPA to i itiate rcatateant of suhpeat T, M addition to petitions forruinstatment under today'sprocedures.

The reconsideration provisions set fcrth in §61.225 establish procedures for personsto petition EPA for reconsideration ofthe rescission and seek reistatement ofsubpart Tand EPA'sresponse to such petitions. Provisions forthe substantive. conditions farreconmderation ofthe rescission ofthissubpart and subsequent reinstatement for NC licensees are also included. Und-athese pramnsicns, aperson may petition the Administrator forreconsideration ofthe rescission and seek reinstatement of. subpart Tunder §61.226(a) which provides forpzcgranimatic and sitespecific reinstatement..If reconsideration is initiated it musthe conducted pursuant to notice and comment procedures. Itis important that any alleged failures by NRC or an affected Agreement State to implement and enforce theregulations governing: uranium mill tailings orthe applicable license!requirements,beaddressed m a timelymanner. These provisions are intended to ensure that persons may seek recourse from theAdministrator if they are adversely affected bythe failure ofNRC or an affected: Agreement State
to implement and'enforce, in significant part, on a programmatic and asitespecificbasis theregulations governing the disposal ofuranium milltailings promulgatedby EPA and NRC, requirements ofthe tailingsclosure plan, orlicense requirements establishing milestones forthe purpose ofemplacing a permanent radon barrer that will achieve compliance with the 20,pCi/m 2

### -s flux standard'.Thus, EPA is, establishing anon-discretionary duty to take final action granting or denying an authorized petition forreconsideration ofthe rescission ofsubpart T within 300 days ofreceipt ofthe petition. IfEPA grants such petition itwould then proceed to initiate rulemaking to reinstate subpart

### T. The rulemaking to reinstate subpartT, 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 meetthis 300-day deadline for a ciecison on whether to initiate rulemaking or notcculd lead to

a citizen suitaction m a federal District Court under CAA section 304 for an order thatEPA take final action cnthe petition. Review ofthat final os-ponae would be in a federal CircuitCourt of Appeals under CAA section 307(b). If EPA grants such a petition andinit'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 ordeny thepetition within 120 days ofreceipt, allow a comment period ofat least 60 days, andtake fiz1al action granting or denying the Fetifion within 120 days ofthe close ofthe 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 Ton a programmatic basis, unless the petitioner demonstratas that itprovided 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 ofthe grounds forsuch apetition. This notice requirement may be satisfied, among other ways, by submissions or pleadings; submitted to NRC during aproceeding conducted by NRC. The purpose ofthis advance notice requirement isto provide NRC'or an affected,Agreement State with an opportunity to address the

concerns raisedby thepotential petitioner. Additionally,EPA shall' summarily dismiss withoutprejudice a §61.2261b) petition to reconsider the rescission and seek reinstatement of subpart Ton a site-specific basis,unless the petitioner demonstrates that it provided, at least 60 daysbefore filing its petition'with EPA, awritten request to NRC or an affected'Agreement State forenforcement or otherrelief, and unless the petitioner alleges that NRC'or the affected Agreement Statefailed to respond to such requestby.taking. action, as necessary, toassure timely implementation andenforcement ofthe 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 petitionerthrough its standard enforcement mechanisms.

The Administratormay also initiate reconsideration oftherescission and reinstatement ef subpart T asapplied'to

owners and operators ofnon-operational uranium mill tailings disposal sites if EPAbelieves it is appropiata to do so. For example, EPA mayinitiate such recornderation ifit has reason to beli-ve that NRC or an affected Agreement State has failed to implementand enforce, in significant part, theregulations governing the disposal ofuranizin mi:i tailings promalgated byEPA and NRC or the tailings clocure plan (radon) requirements establishing milestones for the purpose ofemplacing a permanent radon barrer thatwill achieve compliance with the 23 pCi/mz-s flux standard. Before the Administrator initiates reconsideraticn ofthe rescission andreinstatement ofsubpadt T, EPA shall consult with NRC to address EPA's concerns, ifthe consultation does notresolve the
concerns, EPA shall provide NRC with 60 days notice ofthe Agency's intent to initiate rulemaking to reinstate this subpart.

Upon. Gcmpletion ofareconsideration rulemaking, EPA may: (1) Reinstate 

### subpart Ton a pro;rem-,iiaic basis if EPA determines, based on therecord,,. 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 ofemplacing apermanent radonbarrier that will achieve compliance with the 20 pCi/m 2-s flux standard; (2) reinstate subpart Ton a

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site-specific basis ifEPA determines, based onthe 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 ofuranium mill tailings promulgated by EPA and NRC

or (b) the license requirements establishing milestones forthe purpose ofemplacing 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 ofsubpart T is

not appropriate.

The regulations establish an obligation for the Administrator to reinstate subpart T as applied to.owners and operators ofnon-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 ofuranium mill tailings promulgated by EPA and NRC or the tailings closure plan (radon) requirements establishing milestones for the purpose ofemplacing apermanent 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 ofnon-operational uranium mill tailings disposal sites ifthe 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 ofthe 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 mayreasonably be anticipated to significantly interfere (i.e., more than deminimis) with the timely emplacement ofa permanent radon barrier constructed to achieve compliance with the 20pCi/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 forthe purpose ofemplacing

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 aspracticable considering technological feasibility (including factorsbeyond the control of the licensee). Reinstatement would require an EPA finding that NRC oran affected Agreement State has failed to implement and enforce in this manner.

IV Discussion ofComments 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 ofthe Nuclear Regulatory Commission (NRC), the American Mining Congress (AMC), the

owners and operators ofindividual 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 ofindividual sites, the Department ofEnergy 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 ofNRC 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 ofthe 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 inresponse 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 ofthe
comments has been limited to the question.of whether EPA should rescind subpart T Thisrulemaking 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 ofthe promulgation ofsubpart T

1. General

Inresponse to the 1991 and 1994 Notices ofProposed 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 ofNRC 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 ofsafety, 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 ofsubpart T (3) the revision ofNRC 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 ofinterference with full compliance with the MOU and the settlement agreement. 

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Several comienters responded to the, Agency's request forcom ents.,

- Commenters believed EPA s amendments to40 CFR paA 192, subpart D f-l1Z1 the lnt._Noftha 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 part40, 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 ofradon-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 isnotyet complete, that site represents a-unque situation and should not affect EPA s decision to rescind subpart T:

No commenter wasaware ofany pending judicial or adiinistrative challenge that wouldpresent 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 forreconsidering the d(cision tarescind subpart T were consistent with theterms ofthe settlement agreement. Several other commentersacommnented as to specific aspects of theseprovisions and, suggosted revisions to the regulatory languagefarconsistency with the settlement agreement. Specific
comments pertaining to the proposed provisions for reconsideration of the' rescission and,reinstatement ofsubpart Tare addressed in Section 4below. 

### There was widespread agrmaent amongthe corimenters thatthe 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 TimingofResc.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 ofNRC.conformng. regulations, and completion by NRC.and affected Agreement. States ofvarious, license.amendments containing schedules foremplacement ofthe permanent radon barrier. EPA believes it is appropriate to-rescind subpart T pursuant.to the authority of.section 112(d)(9) ofthe'CAA, as amended, since NRC has established,a regulatory program to. ensure that non operational uranium: mill tailings pile, will be, closed as expeditiously aspracticable considering technological feasibility.

3.2 Section 

### 112(d)(9) ofthe 

### CleanAir Act,As Amended ("Simpson AmendmenV')

•Comment:'nresponse to the 1991 proposal, one commenter argued section 112(d)(9) ofthe 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) ofthe 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 whenthe 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 ofthe Clean Air Act Amendments of1990, 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-gatdamdtcnncldc NESHAPs. Senator Simpson., the
spcn-or ofthe amn-dment, stated that 

### "[p lassage oftinsamnendment Vilalliw 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, ifthat 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] (statementby Senator Burdick during debate on the Conference Committee Report) ("It is clear that the existing regulatory programunder the Atomic Energy Act protects the public health with an amplemargin ofsafety. 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 beliefthat 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 ofsection 112(d)(9}' ofthe CAA by establishing an agreed upon framework for reconsideration ofrescinding subpart 'F and making minor modifications to the AEA regulatory program for closure of the uranium milltailings'disposal sites. Clearly rescission ofthe 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 ofthe 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 findingthat the NRC regulatory program protects the public health with an ample margin ofsali*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 ofsafety on February, 7 1994 (59' FR 5674). That.determmation is also contained! in this action, which will be published inthe Federal Regster.

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Comment:Commenters,suggestedin responseto the.1991 proposal that EPA could.not determine that. the NRC. regulatory program protects.public. health with an ample.margin ofsafety

so long as NRCretains the authority,to waive standards andtime schedules for compliance,,and there are noprovisions under the AEA for citizens' suits..

Response:The commenters suggest thatthe NRC regulatory program does
notensure,thatEPA'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, foreconomic reasons strict compliance with therequirement that sites meet the 20pCi/m 2

### -sstandard asexpeditiously,

as practicable considering technological feasibility (including.factorsbeyond the control ofthe licensee). AEA section' 84c., 4ZUSC 211'4c. However, the full, exercise ofthis.authority,is not contemplated by either the MOU or the settlement agreement, described'above. Ifthis waiver authority is; used in,a.
manner inconsistent with the purposes and'objectives ofthe MOU and settlementagreement, today's action includes procedural and substantive provisions designed to facilitate. reconsideration ofthe rescission and possible reinstatement of'subpart T.

The amendments to subpart Tprovide clearauthority and procedures for EPA
to revisit today's finding should NRC or the affected'Agreement States deviate -fromthe 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: asexpeditiously 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 partofNRCto implement the MOU. Thus, EPA believes under these circumstances NRCs authority to waive strict compliance with the,flux standard and the time forcompliance does not preclude EPA from finding NRC!s regulatory program protects the public health with,an ample margin ofsafety,.

Further,,the Agencybelieves 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 ofsafety determination., EPA considered whether NRCis implementing,and enforcing,.,in significant part,the regulations governing disposal oftailings and,the. license requirements which,establishi milestones for emplacement ofa, permanent radon barrierthat will: achieve compliance with the 20 pCi/m 2

### -s,flux standard on, a programmatic and site-specific basis. UMTRCA gives NRC andthe:Agreement States the responsibility to-implement and enforce regulations promulgated under UMTRCA. If,in the future, NRC

or theAgreement States do:not implement and enforce, in significant part,,the regulations.governing disposal oftailings and the license requirements which establish,milestones,for emplacement ofa permanentradon barrier that will achieve compliance with the 20 pCi/mg-s flux standard on

aprogrammatic orsite-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 ofsubpart 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)ofthe CleanAir Act, AsAmended'
Comment:The comments to the 1991 proposal included,a comment thatthe "Savings Provision" 

### (section 1'12(q)(3)) 

### ofthe CAA requires that subpartT remain in effect.

Response:Section 1

### l2(q)(3)'provides this section, as in effect prior to'the date ofenactment ofthe Clean AirAct Amendments of1990, shall remain in effect forradionuclide emissions from disposal ofuranium mill tailings piles, unless the Administrator, in the. Administrator s.discretion, applies the: requirements ofthis-section as modified by theClean AirAct Amendments of 1990 to such sources ofradionuclides.

EPA believes-the plain language of section.112(q)(3), gives the Administrator the discretion,to, rescind subpart Tpursuant to section 112(d)(9)

orallow subpartT to.remain ineffect pursuant to, section 112 as in effect prior
to the CAAA of1990L.In.this rulemaking, EPA acted to.apply section 112.as 

### modified by the 1990 amendments, and pursuantto.section. 112(d)(9) to decline toregulate "radionuclide emissions from: any category or subcategory offacilities, licensed by the Nuclear Regulatory Commission (.oran.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,orsubcategory,providas

an ample margin.of safety,to protect the public health.." This provision strives to eliminate duplication of, effort between EPAand'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 notrescind subpart T such an interpretation is not harmonious and is inconsistent with the intent ofCongress in.enactingthe CAAA of 1990.

Additionally EPA received'comments from this commenter supporting the 1994 proposal, expressing thebeliefthat the 1994'proposal'is consistent'with the terms ofthe,settlement agreement. The settlement agreement promotes the objectives ofsection 112(d)(9)' ofthe CAA as amendedby establishing an' agreed upon framework for' consideration ofthe rescission of subpart T and'minor modifications to the AEA regulatory program for closure ofuranium mill tailings disposal: sites. This commenter, together with EPA and others, was aparty'tothat agreement, which clearly envisions rescission of subpart T.

Thus, EPA is. rejecting thiscomment, since aplain reading ofsection 112(q)(3) authorizes EPA,to exercise its discretion under section 112(d)(.9)'and as a party to thesettlement agreement the'
commenter clearly supports the goal of theagreement that subpart Tbe rescinded.
3.3 Section 122(a)of the CleanAirAct,

asAmendedin 1977

Comment:The commenter asserts in response'to the'1991 proposal,that EPA should notrescind,subpart Tbecause such rescission is inconsistent with section 122(a) ofthe CAA,of 1,977. The
commenter contends section 122(a) was notrepealed: by,the,1990,amendments to the CAA and that it required the Agency to list radionuclides as ahazardous air 

### pollutant ifthe Administrator found! that public health.was threatened due to air emissions ofradionuclides.

Response:. EPAdisagrees with,the commenter's interpretation that rescission ofsubpart Tpursuant to section 1.12(d)(9) ofthe CAA isinconsistent with,section, 1.22(a) ofthe 36295

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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 ofthe biological effects ofionizing radiatioii indicate thatexposure to radionuclides increases the risk ofhuman

cancer and genetic damage. Based on this information, the Administrator has concluded that emission ofradionuclides may reasonably be anticipated to endanger public health, and that radionuclides consfitute hazardous air pollutants within the meaning of the Clean AirAct.
Id.On April 6, 1983 (48 FR 15076) EPA announced proposed standards for four

sources ofemissions ofradionuclides, 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 SierraClubv 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 fornew 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 ofNatural ResourcesDefense Councilv. EPA, 824 F.2d 1146 (D.C. Cir 1987) (Vinyl Chloride).EPA subsequently promulgated 40 CFR part 61, subpart T the subject oftoday's action.

EPA believes section 122 ofthe CAA
mustbe 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) ofthe 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) ifthe 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 ofsafety to protect the public health. This provision strives to eliminate duplication ofeffort 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 notrescind subpart T based

on section 122(a), EPA believes such a reading ofsections 112(d)(9) and 122(a) is notharmonious and is inconsistent with the intent ofCongress in enacting section 112(d)(9).

Additionally EPA received comments from this particular commenter in
response to the 1994 proposal expressing the beliefthat 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 theCAA as amended through the rescission of subpart T and minor modifications to the AEA regulatory program for closure ofthe uranium mill tailings disposal sites. This commenter, together with EPA and others, was aparty to that agreement. Through today's action rescinding subpart T EPA is furthering the goal ofthe settlement agreement.

Thus, EPA is rejecting this comment, since areading ofsection 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 ofand supported the goal ofthe 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 residualradioactive materialand tailings,while deleting the definition ofuraniumbyproduct material or tailingsis not clear. The proposed definitions appear to apply to Title I sites, and significant problems might arise ifthese definitions were to be applied to Title II sites in the event ofreinstatement ofsubpart 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 atthese sites contain residual radioactive materials, including
traces ofunrecovered uranium, various heavy metals and other elements. BackgroundInformationDocument: RiskAssessments;Environmental ImpactStatement;NESHAPs for Radionuclides, Volume 2 at 8-2 (EPA/ 

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

EPAbelieves it appropriate to define residualradioactive materialand tailingsfor purposes ofthis subpart. The Agency proposed these definitions on December 31,-1991 and February 4, 1994. (56FR 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 notbelieve these definitions would be problematic ifthe 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 TitleII sites remain.

Response:EPA is rescinding subpart T as applied toNRC or Agreement State licensed non-operational uranunfmill tailings disposal sites, and thus, does not intend any provision ofsubpart 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 suggeststhat nofuture action

can be taken toresolve EPA's concerns after EPA notifies NRC ofits intent to initiate ardlemaking 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 ofits intent to proceed with a rulemaking to reinstate subpart T. The purpose ofconsulting 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 anyremaining

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 tothe idea ofreinstatement ofsubpart T' favored includingprovisions forreconsideration and reinstatement ofsubpart Ton either

a site-specific orprogrammatic basis, as set forth in 

### theAgency'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 tothe terms ofthe MOU by the settlement agreement finalized in April 1993. In its 1994 supplemental proposal, EPA proposed'an additional reconsideration option thatwas a combination ofthe options originally proposed. EPA did notwithdraw the original options, but instead announced the Agency's preference forprovisions

on reconsideration and reinstatement of subpart T onboth programmatic and site-specific bases. The Agency has reviewed carefully all comments submitted onthe proposed reconsideration provisions and has. revised the regulatory textand preamble where deemed appropriate. The Agency believes the provisions for reconsideration and reinstatement of subpart T adoptedtoday represent a comprehensive approach based on EPA's current evaluation oftheNRC regulatory program, anda regulatory structure designed to address future evaluations ofthe'program. Comment:EPA received a variety of comments dealing -withthe consistency ofthe proposed regulations with the settlement agreement between EPA, EDF NRDC, AMC, andindividual 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 whetherthey effectively implement the goal ofrescission 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 ifNRC exercises its waiver authority.

Response:As described in the proposals, EPA was concerned over the potential fordeviation from the agreements contained in the MOU and the requirements ofrevised subpart D Inresponse, EPA proposed and is now -adopting- procedural and substantive provisions for site-specific and programmatic reconsideration and reinstatement if certain criteria are met. Inpromulgating subpartT,the CAA did notpermit, and EPA did'notconsider, site-specific waivers from ultimate compliance with that standard. Thus, in evaluating NRC's regulatory program, EPA recognized inits December 1991 proposal that NRC's waiver authority under the AEA mightbe exercised in a
manner not addressed in, 

### the MOU even afterthe revisions to 40'CFRpart 192, subpart D and 10CFR part40, appendix Ahave beenpromulgated and the, licenses amended'. However,EPA has no
reason to believe such relaxation ofthe standards willactually occur. EPA believes the provisions adopted today represent a comprehensive approach based on EPA's current evaluation ofthe NRC regulatory program, and a regulatory structure designed to address future evaluations ofthe program.

Additionally in response' to,the 1994 proposal, EPA received subsequent comments from these commenters supporting the rescission ofsubpart T. Furthermore, these commenters supported the proposed reconsideration and reinstatement provisions with certain modifications. These commenters believe the 1994 proposal to rescindsubpart Tis consistent with the terms ofthe settlement agreement betweenEPA, EDF NRDC, AMC,and individual sites. Thus, basedon the abovereasons for adopting reconsideration and reinstatement provisions, and due tothe inconsistency between the earlier comments.received and the subsequent expressions of support forthe rescission ofsubpart T, EPA is rejecting the earlier comments.

Comment:Many commenters to the 1991 proposal believe that reconsideration ofthe rescission of subpart Tand subsequent reinstatement

on a programmatic basis is inappropriate ifone site fails to comply.

Response:Today's action sets forth provisions for the reconsideration ofthe rescission ofsubpart T'and reinstatement ofthat subpart. The regulations adopted today inclhde provisions for programmatic and sitespecific reinstatement with separate but somewhat parallel criteria. At thistime, EPA is not aware ofa situation.which would cause itto reinstate subpart Ton
a programmatic basisifone sitefails to comply and would not expect to reinstate subpart T on thatbasis. However, the Agency cannot predict all future circumstances, and'cannot at this time preclude the possibility ofsuch reinstatement. EPA does, however, believe the criteria adopted today appropriately addressboth programmatic and site-specific reinstatement.

EPA rejects this comment for the above reasons, and because ofthe inconsistent responses to the 1991'and 1994 proposals received from the same commenters.

Comment:Some commenters assert,, inresponse tothe 1991 proposal that EPA lacks the authority,to reinstate subpart Ton a site-specific basis, since section 112(d)(9) is concerned'only with NRC's regulatoryprogram.

Response:EPAbelieves that section, 112(d)(9) does notpreclude site-specific reinstatement. Section 1.12(d(9), ofthe' CAA as amended' authorizes EPAto decline to regulate radionuclide emissions from any-category or subcategory offacilities licensed by the Nuclear Regulatory,Commission Car an Agreement State) ifthe Admimstrator 

### determines, by rule,and after consultation with the Nuclear Regulatory Commission, thatthe regulatory program established,'by the Nuclear Regulatory Commission pursuant to the Atomic Energy Act for such category orsubcategory provides

an ample margin ofsafety to protect the public health. The text ofthis section does not appearto preclude reinstatement on a site-specific basis. Section 112(d)(9) allows EPA to categorize and subcategorize, and for any such category orsubcategory determine whether the public health is protected with an ample margin of safety bythe NRC regulatory program froma particular source ofradionuclide 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 ofthe contradictory andinconsistent nature of the comments received from the same commenters in response to the 1991 and 1994 proposals, and the commenters' support ofEPA's 1994 proposal which contains provisions for site-specific reinstatement.

Comment:One commenter appears to recognize EPA's authority for sitespecific reinstatement ofsubpart Tbut is opposed to EPA's exercise ofsuch 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 doesnot oppose the proposed reinstatement 36297

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provisions and expresses the clear opinion that EPA committed in the settlement agreement to include provisions for site-specific reconsideration andreinstatement of subpart T.EPA anticipates that before initiating a rulemaking toreinstate subpart Ton a site-specific basis, there wouldbe extensive consultation with NRC. Based on the actions ofNRC to date in implementing the terms ofthe MOU, EPA hopes that all concerns could be resolved. EPA is adopting the provisions for site-specific reconsideration and reinstatement as partofa comprehensive approach based

onEPA's current evaluation ofthe NRC regulatory program, and a regulatory
structure designed to address future evaluations ofthe program.

Comment:Some commenters contend thatin reconsidering the rescission and reinstatement ofsubpart T on a programmatic basis, section 112(d)(9) requires EPA to determine whether public health is threatened by the failure ofa 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) doesnot establish the criteria for reinstatement, rather it authorizes EPA to decline to regulate radionuclide emissions from NRC orAgreement State licensees ifthe Administrator determines, by rule, and after consultation with the NRC, that the NRC regulatory program protects the public health with an ample margin ofsafety Under section 112(d)(9),EPA may rescind subpart TifEPA determines that the NRCregulatory program provides an equivalent level ofpublic health protection (i.e., an ample margin of safety) aswould implementation of subpart T in order to rescind subpart T. Section 112(d)(9) does notlimit 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 inresponse to the 1991 proposal. EPA rejects this comment for the above reasons, and because ofthe 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 shouldnot 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 toreflect the differences between the two, including adding a provision for athird 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 ofthe 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 ofthe MOU between EPA, NRC and the affected Agreement States. EPA has reviewed the
terms ofthe settlement agreement pertaining to the reconsideration of rescission and reinstatement ofsubpart T The settlement agreement specifies at paragraph III.e. that upon completion of

arulemaking reconsidering the rescission ofsubpart 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 ifcertain criteria are met; or (3) issue a finding that NRC is in compliance with certain criteria and that reinstatement ofsubpart T is not appropriate.

The Agency believes the criteria in §61.226(a) for requiring reinstatement
upon completion ofa reconsideration rulemaking should apply whether the rulemaking is at the Administrator's initiative orbased 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 orthe tailings closure plan (radon)requirements (i.e., contained in the license) establishing milestones for the purpose ofemplacing

a permanent radonbarrier 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 ofthe site or sites with applicable license requirements, regulations, or standards implemented by NRC and the affected Agreement States. Additionally EPA would notbe 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 ofa permanent radon barrier constructed to achieve compliance with the 20 pCi/m 2-s flux standard at uranium milltailings disposal sites. The commenters contend that the
nature ofthe party initiating the reconsideration rulemaking should determine whether reinstatement is discretionary (forinitiation 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 ofNRC or an Agreement State
to implement or enforce applicable requirements. The Agency believes that the nature ofthe initiating party properly may trigger different procedural requirements. For example, when aprivate party initiates the
process by filing a petition, EPA has established arequirement that it take final action on such a petition within a set time period. However, EPA believes that the nature ofthe 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 ifthe 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 ofuranium 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 ofemplacing a permanent radonbarrier 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 wouldbe the same reason forthe Agency to reinstate subpart T whether the process

was initiated by a private petition or at., EPA's owninitiation. Ifthe Agency makes the determination required to reinstate subpart T based on reconsideration ofrescission atthe 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, ifthe 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 findingthat reinstatement ofthis subpart is not appropriate ifthe 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 forreinstatement 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 andthereby avoid the need toreinstate. EPAbelieves that such ongoing consultation is not precluded by theregulations 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 ifappropriate to continue such inter-agency consultations.

EPA agrees with the commenters that the settlement agreement provides an additional possible result upon -completionofareconsideration rulemaking initiated by the Administrator, namely that the Agency mayissue a findingthat reinstatement'is not~appropriate ifthe 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 ofuramum mill tailings promulgated by EPA and NRC'

or the tailings'closure plan (radon) (i.e., contained in the license) requirements establishing milestones forthe purpose ofemplacing a permanent radon barrier that will achieve compliance with the 20 pCi/m 2 

### -s flux standard; or (2) NRCor

an affected.Agreement State are, in 

### significant part, on a site-specific basis achieving compliance by the operator of the site orsites with applicable license requirements, regulations, or standards implemented by NRC andthe affected Agreement States.EPA believes addition ofthis provision to the regulations will clarify the existence of this option and has revised §,61.226(a) ofthe reinstatement provisions to provide for thisadditional result.

Comment:One commenter-asserts that EPA's characterization ofits authority to reconsiderrescission 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 underboth the MOU and the settlement agreement. The provisions include substantive and procedural provisions for reconsideration ofrescission andthe reinstatement ofthis subpart on.a programmatic or site-specific basis.The provisions include the obligation to reinstate subpart T ifcertain conditions

aremet, procedures forreconsideration and provisions authorizing the Administrator to initiate reconsideration. Although.the Agency does not intend to reconsiderits decision'to rescind subpart Tfor asite which is in fact meetingthe 20 pCi/in2



### - s flux standard absent other factors that would indicate the need for reinstatement, the Agency recognizes that a situation may anse where reconsideration ofrescission is nevertheless appropriate. For example, EPA might consider.initiating reconsideration under §61.226 where a site is meeting-the 20pCi/m 2

### -s flux standard'ifthere are factors which show that NRC oran Agreement State failed
to implement and enforce in significant part, the applicable regulations, e.g., clear failure ofthat siteto emplace the permanent radonbamerwithin thetime periods established inimplementing subpart D, EPA is not aware of* circumstances under which EPAmighi reconsider rescission for a-site that is meeting the 20 pCi/m 2

### -sflux standard, other than those indicating-thatithe milestone for emplacement ofthe permanent-radon barrier has passed, the delay was not approved byNRC-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 andNRC or an Agreement State does notplan 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, asdescribed above, reflect the good faith effort on-the part ofNRC andthe Agreement States to Implement theMOU and.EPA's subpart Dregulations;-However, the Agency,is not now.in thepositionto determine that there could beno circumstances which might-mdi pate the need -to reconsider the rescission of subpart Tfor a sitethat is infact meeting the 20 pCi/m 2 

### -sflux standard. Additionally, EPAreserves the right
to initiate.reinstatement ofsubpart Tif appropnate, since although the §61.226 provisions adopted today establish an obligation for the Administrator to reinstate ifcertain conditions are met, they are-not intended tobe the exclusive basis for reinstatement. Under the regulations adopted today, EPA has the authority toreconsider-the rescission of subpart T atthe Administrator's 'initiative and upon the petition ofa third party. The Agency is obligated to reinstate subpart Ton aprogrammatic basisifthe Administrator determines by rulemaking, based on the record, that NRC or an,affected Agreement Statehas failed on a programmatic basis to. implement and enforce, in significant part, the regulations governing the disposal'ofuramum-mill tailings promulgated by EPA and NRC orthe tailings closure plan (radon) ,rquirementsestablishing milestones for thepurpose ofemplacing a permanent radonbarrier-that will achieve compliance with the 20 pCi/m2

### -s flux standard. Additionally, EPA is obligated
toreinstate subpart T on a site-specific basis as applied to owners and operators ofnon-operational uranium mill tailings disposal sites ifthe Administrator determines by rulemaking, based on the record, that NRC oran affected Agreement State has failed,in significant part on a site-specific basisto achieve compliance by the operator ofthe site or sites with applicable license requirements, regulations,:orstandards

-Implemented 

### by NRC and the affected Agreement States.The obligation to reinstate subpart Tis limited to those failures which may reasonably be .anticipated to significantly interfere With timely emplacement of the permanent radonbarner-constructed to achieve compliance with the 20 pCi/m2



### - s'flux standard. At this time,EPA is not aWare ofcircumstances where itwould consider reinstating subpart T-if the fqilure doesnot significantly interfere -with emplacement oftherequired

. 

### permanent.radon barrier. However, EPA

reserves the right toreconsider 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 ofthe CAA. For example, even ifthe NRC or an Agreement State isimplementing and. enforcing, in significant.part, the applicable regulations and license amendments,-the Agency may decide toreconsider therescission ifnew izformation indicated that thepublichealth is not-protected with an ample margin of safety. The Agency cannot predict all future-circumstances and cannot at thistime preclude the possibility ofsuch reconsideration and 36299

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possible reinstatement. Despite reserving this authority, the Agency believes this is a theoretical situation and has no current intention to acton this authority.

5. Miscellaneous

5.1. Monitoring

Comment:EPA must ensure.that the single monitoring event currently required bysubpart T would remain,in effect ifsubpart 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-sflux standard of § 61.222. However, EPA published a proposed Enhanced Monitoring Program on October 22, 1993, which would require

owners and operators ofsources 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 wouldbe reqired to.obtain an operating permit. (54FR54651, 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 EPAwas not requiring
states topermit those sources and the. permit program is the established method for implementing the enhanced monitoring program, does not appear to apply touranium mill tailings disposal sites. It would be premature for EPAto determine today that in the event subpart Tisreinstated for Title ILsites, the proposed enhanced monitoring provisions would not apply.

5.2 Discussionof40 CFRpart192, SubpartDExtensionProvisions

Comment:EPA's discussion ofthe extension provisions contained in 40 CFR 192.32(a)(3)(ii), (iii)is confusing and should be revised to equally consider thepossibility ofextensions for factors beyond the control ofthe licensee.

Response:EPAbelieves its discussion ofthe 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 disagreeswith the commenter's claim that an extension based upon "factors beyond thecontrol of the licensee" should be considered equally withthe 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 oftwo bases. However, an extension due to "factors beyond the control ofthe licensee" is implicit in the definition of "as expeditiously aspracticable?' The
term "factors beyond the control ofthe licensee" would be one element for NRC
to evaluate in reconsidering a prior decision establishing a date for emplacement ofthe permanentradon barrier that meets the definition of "as expeditiously as practicable. A change in any one ofthe 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 allthe relevant factors under § 192.32(a)(3)(i) before it could change a previously established milestone or date for emplacement ofthepermanent radon barrier.

5.3 Discussionof Amendment of NRC andAgreementStateLicenses

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, interalathatNRC andi the affected Agreement States are or willbe implementing and enforcing the license requirements (tailings closure plan (radon)) thatestablish the milestones for emplacement ofa permanent-radon barrier that will achieve compliance with the 20 pCi/m 2-s flux standard as expeditiously aspracticable considering technological feasibility. The Agency is applying the same basic approach in reviewing all ofthe license amendments. Presently, Atlas is the only site where the site license hasnot 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 ofthis site.

EPAis interested in the Atlas site because the license amendment incorporating the reclamation plan has
not yetbeen completed, and this may jeopardize the dates contained in the tailings closure plan (radon). TheMOU 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-thatthe circumstances surrounding the delay are unique. EPA believes NRC,the affected Agreement States and the licensees have acted in good faithto amend the site licenses.

The Agency does notbelieve itis overly scrutinizingthe license amendment process. TheAgency believes itsinterest inthe.Atlas site reflects EPA's commitment to and review ofthe applicablecriteria in finally determiningthat NRC and the affected Agreement States amorwill 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 ofNRC in implementing.the requirements of subpart D.TheAgency hasnot suggested anycourse of action toNRC'
5.4 PublicParticipation

Comment:An industrial site, other than a uramum mill tailings disposal site, commented that publishing a notice in the Federal Registerdoes not provide sufficientnotice forcitizens of communities where uraniummill tailings disposal sites are located.

Response:TheEPA made every effort to notify the affected publicof the proposed rulemakmg action. EPA published a NPR onDecember 31, 1991, and a supplement tothat proposal on February 7 1994, in the Federal Register. There was a public comment period after each proposal; public hearings were heldin Washington, DC and Santa Fe,NM afterthe 1991 proposal and no request for a heanng

was received after the 1994 proposal. EPA believes it has afforded the public with full opportunity toparticipate in this proceeding,as well as satisfied all such requirements under Clean Air Act section 307

V Miscellaneous
A. Disposition ofPending Judicial ChallengesandPetitions for Reconsideration

By taking today's action rescinding subpart T asapplied to owners and operators ofuranium mill tailings disposal sites regulated under Title IIof UMTRCA, the stay ofsubpart,T isno longer effective. Thus, thechallenge to the stay ofsubpart Tfiled by EDF is moot, andEPA expects that thepending litigation will bepromptly resolved by dismissal. Based onthe terms ofthe 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 ofsubpat T,.AMC's pending administrative petition for reconsideration ofsubpart T isdenied

as moot. Additionally, all other pending petitions for reconsideration ofsubpart T as applied to Title IIsites are denied

asmoot-umder today's action.

B. Paperwork Reduction. Act
There are no information collection requirements inthis rule.

C.ExecutiveOrder12866

Under.Executive Order 12866, (58FR 57735, October,4, 1993) the Agency,
mustdetermine whether thisregulation, ifpromulgated, is "significant" and therefore subject to OMB review and the reqiuirements ofthe Executive Order,. The Order defines "significant regulatory action" as one that is likely....
toresult ina rule that may:,

.(1 Have an annual effect on the
economy of$100 million ormore or adversely affect in a material way theeconomy, a sector ofthe 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 alterthe budgetary impact ofentitlements, grants, user fees,

or loan programs or the rightsand obligations ofrecipients thereof;.or

(4) Raise novel legal orpolicy issues arising outoflegal mandates, the President's priorities, or theprinciples
setforth in theExecutive Order.

This action is nota significant regulatory action as that termis defined in Executive Order 12866, since it will
notresult in-an annual effect onthe.
economy of$100 million oranother 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 ofentitlements, grants,user fees, etc., and it does notraise novel legal orpolicy issues. Thus,EPA-has determined that rescinding subpart T as it applies toowners 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 OMBreview.

D.ReguldtoryFlexibility Analysis
Section 603 ofthe Regulatory Flexibility Act, 5 U.S.C. 603, requires EPA toprepare 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) ofthe Act provides that an analysis notbo required when the head ofan Agency certifies that the rule will not, if promulgated, have a significant, economic impact on a substantial number ofsmall entities.

Most firms thatown uranium-mill tailings piles are divisions or subsidiaries ofmajor U.S. and international corporations. Many are parts oflarger diversified mining firms which are engaged-in a number ofraw materials industries; the disposal of uranium mill tailings piles represents only a small portion oftheir 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 hasbeen.

no change in this, and nonew-tailings pileshave been constructed since 1989. Icertify that this final rule to rescind'40 CFR part 61,subpart T as applied to

owners and operators ofNRC licensed non-operational uranium mill'tailings disposal sites, will not have significant economic impact on a substantial number of small entities.

List ofSubjects in 40 CFR Part61

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. CarolM. Browner, Administrator,

Pait 61 ofchapter Ioftitle 40ofthe Code ofFederal Regulations is amended

as follows:

PART 61-(AMENDED)

1. The authority citation forpart 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 ofthis subpart apply to owners and operators ofall sites that are used for the disposal of tailings, and that managed residual radioactive material during and following theprocessing ofuranium 

### ores, commonly referred to-as uranium, nills andtheir associated tailings,that

are listed in, or designated by the Secretary ofEnergy,under Title I ofthe, Uramm,Mill Tailings Radiation Control Act of1978, except § 61.226 of this subpart which applies to owners and operators ofall sites that are regulated under Title II ofthe 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 CleanAir Act or subpart A ofPart 61. The,following terms shall have the following specific meanings:

(a)Longterm stabilization means the addition ofmaterial on a uranium mill' tailings pile forthe 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 of40 CFR 192.02(a) .havebeen met.

(c) Residualradioactive materials shall have the same meaning as in section 101(7) ofthe Uranium Mill Tailings Radiation Control Act of 1978, 42 U.S.C. 7911(7). (d) Tailingsshall have the same meaning as in section 101(8) ofthe 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 ofthe 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 ofand brought into compliance with this standard within two years ofthe effective date of the standard. Ifit 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, li ll

l I II Ill I I I II I I I I I I 

### 363011

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### 36302 Federal Register / Vol. 59, No. 135 / Friday July 15, 1994 / Rules and Regulations

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:

Icertify under penalty oflaw that Ihave personally examined and am familfiar with the information submitted herein.and based

onmy inquiryofthose individuals immediately responsible for obtaining the information. Ibelieve that the submitted information is true. accurate andcomplete. 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 toread as follows: §61.226 Reconsideration of rescission and reinstMement ofthissubpart.

(a)Reinstatement ofthis subpart upon completion ofreconsideration of
rescission.

(1) The Administrator shall reinstate 40 CFR part 61, subpart T as applied to

owners and operators ofnon-operational uranium mill tailings disposal sites that

are licensed by the NRC or an affected Agreement State ifthe 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 ofuranium mill tailings promulgated by EPA and NRC or the tailings closure plan (radon) (i.e., contained in the license) requirements establishing milestones forthepurpose ofemplacing apermanent radon barrier that will achieve compliance with the 20 pCi/m 2-S flux standard; and

(ii)Those failures may reasonablybe anticipated to significantly interfere (i.e., more than de minimis) with the timely emplacement ofa permanent radon barrier constructed to achieve compliance with the 20 pCi/m

--s flux standard at the uranium milltailings disposal site.

(2) The Administrator shall reinstate 40 CFR part 61 subpart Ton a sitespecific basis as applied to owners and operators ofnon-operational uranium mill tailings disposal sites that are licensed by the NRC or an affected Agreement State ifthe 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 ofthe site or sites with applicable licenserequirements, 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 ofapermanent 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 ofthe reconsideration ofrescission pursuant
to §61.226(c) the Administrator may issue a finding that reinstatement ofthis subpart is not appropriate ifthe Administrator finds:

(i) NRCand the affected Agreement States are on aprogrammatic basis implementing and enforcing, in significant part, the regulations governing the disposal ofuranium 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 ofemplacing apermanent 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 ofthe site or sites with applicable licenserequirements, regulations, or standards implemented by NRC and the affected Agreement
States.

(b) Procedures to Petition for Reconsideration ofRescission ofthis subpart.

(1) A person may petition the Administrator to reconsider the rescission and seek reinstatement ofthis subpart under §61.226(a).

(2) EPA shall summarily disriss a petition to reconsider rescission and seek reinstatement ofthis subpart under §61.226(a)(11. (programmatic basis), without prejudice, unlessthe 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 ofthe grounds for such a petition and this notice requirement maybe 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 ofthis subpart under § 61.226(a)(2) (site-specific basis), without prejudice, unless the petitioner demonstrates that awritten request was made to NRC or an-affected Agreement State for enforcement or other reliefat least 60 daysbefore filing its petition with EPA, and unless the petitioner alleges thatNRC or the affected Agreement State failed to respond to such requestby taking action, as necessary to assure timely implementation and enforcement ofthe 20 pCi/m2-S flux standard.

(4) Upon receipt ofa 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 ofreceipt.

(c) Reconsideration ofRescission of this Subpart Initiated by the Administrator.

(1) The Administrator may initiate reconsideration ofthe rescission and reinstatement ofthis subpart as applied
to owners and operators ofnonoperational uranium mill tailings disposal sites ifEPA has reason to believe that NRC or an affected Agreement State has failed to implement andenforce, in significant part, the regulations governing the disposal ofuranium mill tailings promulgated by EPA and NRC or the tailings closure plan (radon) requirements establishing milestones for the purpose ofemplacing a permanent radon barrier that will achieve compliance with the 20 pCilm Z-s flux standard.

(2) Before the Administrator initiates reconsideration oftherescission and reinstatement ofthis subpart under §61.226(c)(1), EPA shall consult with NRC to address EPA's concerns and if the consultation doesnotresolve the

concerns, EPA shall provide NRC.with 60 days notice of theAgency'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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