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(PART A_ of__B ) 

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Internal SFUND Box Number 35 OF _283_ 

Initials/Date: _LDS /_3-8-2007 
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fo?-&?-AW-*-') 

REGULATION OF RADIONUCLIDES UNDER ENVIRONMENTAL LAWS 

The summaries provided below describe whether and how statutes other than 

CERCLA govern the release of radionuclides. When appropriate, regulations and 

standards issued under each of the statutes are discussed. The statutes 

examined are: 

(1) The Clean Air Act; 

(2) The Resource Conservation and Recovery Act; 

(3) The Safe Drinking Water Act; 

(4) The Clean Water Act; and 

(5) The Toxic Substances Control Act. 

A brief description of the coverage of radionuclides under CERCLA is also 

given. 

The Clean Air Act 

Radionuclides are listed as hazardous substances under Section 112 of the 

Clean Air Act (CAA). This listing (44 FR 76738, December 27, 1979) identifies 

radionuclides as a generic class of substances, without specifying any 

particular radionuclides that are to be considered hazardous. Regulatory 

action under the CAA neither expands nor restricts this generic term in any 

fashion. 

On April 6, 1983, EPA issued proposed standards for sources of 

radionuclide emissions to air (48 FR 15077). These included standards for the 

following source categories: (1) Department of Energy (DOE) facilities; (2) 

Nuclear Regulatory Commission (NRC)-licensed facilities and non-DOE Federal 

facilities; (3) elemental phosphorus plants; and (4) underground uranium 

mines. Later, on October 23, 1984, EPA withdrew the proposed standards for 

the first three source categories on the grounds that current radionuclide 

emissions from these sources do not present a serious health threat (49 FR 

43906). At the same time, EPA published an Advance Notice of Proposed 

Rulemaking for Radon-222 emissions from underground uranium mines. 

Nevertheless, acting in response to a court order, EPA has promulgated 

final standards for radionuclide emissions to air from DOE facilities, 

NRC-licensed and non-DOE Federal facilities, and elemental phosphorus plants 

(50 FR 5190). These standards limit radionuclide emissions from DOE 

facilities and NRC-licensed and non-DOE Federal facilities to an amount that 

causes: (1) a dose-equivalent rate of 25 millirem/year to the whole body; or 

(2) a dose-equivalent rate of 75 millirem/year to the critical organ of any 

member of the public. These standards exclude doses due to Radon-222, 

Radon-220, and their respective decay products. For elemental phosphorus 

plants, the national emission standards limit the total emissions of 

Polonium-210 to 21 curies/year. 
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The Resource Conservation and Recovery Act 

The Resource Conservation and Recovery Act (RCRA) specifically excludes 

from its definition of "solid waste" (and therefore excludes from regulation 

under RCRA) "source, special nuclear, or byproduct material as defined by the 

Atomic Energy Act of 1954" (Section 1004(27)). This exemption is similar to, 

but less specific than, the exemption afforded federally permitted releases 

under Section 101(10)(K) of CERCLA. CERCLA adds that such releases must be 

"in compliance with a legally enforceable license, permit, regulation, or 

order issued pursuant to the Atomic Energy Act of 1954." 

Although radionuclides other than those excluded by RCRA Section 1004(27) 

are not specifically listed as a RCRA hazardous waste, some radionuclides may 

be judged to fall under RCRA jurisdiction. Radioactive materials that are 

naturally occurring (but not source, special nuclear, or byproduct material) 

or accelerator produced are not included in the Section 1004(27) exemption. 

If such radioactive wastes either exhibited a characteristic of ignitability, 

reactivity, corrosivity, or EP toxicity (as defined in 40 CFR 261 Subpart C) 

or were mixed with a listed waste (e.g., a spent solvent listed in 40 CFR 261 

Subpart D), the radioactive wastes would be considered subject to RCRA. 

In managing radioactive wastes subject to RCRA, owners and operators of 

hazardous waste land disposal facilities are required by RCRA Section 

3005(e)(2) to: 

(a) Submit a RCRA Part B permit application to EPA or an 

authorized State, 

(b) Certify that they are in compliance with the interim 

status groundwater monitoring requirements of Subpart F 

of 40 CFR Part 265, and 

(c) Certify compliance with the interim status financial 

requirements of Subpart H of 40 CFR Part 265 (under 

§265.140(c) Federal facilities are exempt from these 

requirements—certification should simply so state). 

In addition, generators of relevant radioactive wastes are subject to waste 

minimization requirements under RCRA Sections 3002(b), 3002(a)(6), and 3005(h), 

The Safe Drinking Water Act 

The Safe Drinking Water Act directs the EPA to set interim primary 

standards for drinking water. Accordingly, as part of the National Interim 

Primary Drinking Water Regulations, EPA has promulgated maximum contaminant 

levels (MCLs) for radionuclides in community water systems. 

MCLs for radionuclides have been established in two forms: (1) 

radioactivity concentration limits for certain naturally-occurring 

radionuclides; and (2) a dose-equivalent limit resulting from consumption of 

man-made radionuclides. The MCLs for naturally occurring radionuclides are as 
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follows: 5 picocuries/liter1 for combined Radium-226 and Radium-228; and 15 

picocuries/liter for gross alpha particle activity2 (including Radium-226 

but excluding Radon and Uranium). For man-made radionuclides, EPA's MCL 

states "the average annual beta particle and photon1 radioactivity from 

man-made radionuclides in drinking water shall not produce an annual 

dose-equivalent to the body or any internal organ greater than 4 

millirem/year." The concentration of man-made radionuclides causing 4 

millirem/year is to be calculated in accordance with procedures specified in 

the drinking water regulations. 

The Clean Water Act 

Except as permitted under its NPDES program, the Clean Water Act (CWA) 

prohibits the discharge of "pollutants" into navigable waters. The CWA 

defines the term "pollutant" to include, among other things, "radioactive 

materials" (CWA Sect ion 502(b)). When EPA created regulations governing the 

permit program (40 CFR 125), however, it specifically excluded source, 

byproduct, and special nuclear materials covered by the Atomic Energy Act 

(AEA). It appears, then, that these types of radioactive materials are 

excluded from CWA coverage. 

EPA's authority to exclude certain radioactive materials from CWA coverage 

was challenged in Train v. Colorado Public Interest Research Group (PIRG) 

(U.S. Supreme Court, No. 74-1270, June 1, 1976). Based on the CWA legislative 

history, the Court ruled that EPA lacks authority under the CWA to regulate 

nuclear plants' discharge of source, byproduct, or special nuclear materials. 

Such materials were decided not to be "pollutants" subject to EPA regulation 

under the CWA but to be regulated exclusively under the AEA. The Court also 

noted, however, that certain radioactive materials not covered by the AEA, 

such as radium and accelerator produced isotopes, are included in the term 

"pollutant" and are therefore covered by the CWA. 

Toxic Substances Control Act 

The Toxic Substances Control Act (TSCA), which requires testing and use 

restrictions on certain chemical substances, specifically excludes from the 

definition of "chemical substance" the following: "any source material, 

special nuclear material, or byproduct material (as such terms are defined in 

the Atomic Energy Act of 1954 and regulations issued under such Act)" (TSCA 

Section 3(2)(A)(iii). A DOE publication on TSCA compliance (DOE/PE-0057, p. 

1-2) indicates that DOE and EPA consider only toxic materials that are not 

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1 1 picocurie = 1x10 curies 

2 Gross alpha particle activity means the total radioactivity due to 

alpha particle emission regardless of the particular radionuclide(s) involved. 

3 A photon is another name for a gamma ray. 
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radioactively contaminated to be subject to TSCA regulations. Radionuclides 

have not been excluded from TSCA control and conceivably there could be 

radionuclides that are subject to TSCA; however, preliminary research into the 

TSCA program indicates that the program does not address radionuclides. 

Furthermore, TSCA only applies to substances that could not be regulated under 

other Federal laws, and other Federal laws clearly control radionuclides. 

The Comprehensive Environmental Response, 

Compensation, and Liability Act (CERCLA) 

Radionuclides as a generic class of substances are included as hazardous 

substances under CERCLA because they are listed as hazardous air pollutants 

under Section 112 of the Clean Air Act. Therefore, except for certain 

exemptions highlighted below, releases of radionuclides by themselves or 

inseparably mixed with other hazardous substances invoke the provisions of 

CERCLA. 

Releases of source, special nuclear, and byproduct material as defined by 

the Atomic Energy Act are exempt from certain provisions of CERCLA under 

certain conditions. First, releases of these radioactive materials from 

facilities subject to the "Price-Anderson Act" (e.g., nuclear reactors) are 

exempt from all of CERCLA's requirements. Second, releases of these materials 

from processing sites designated under the Uranium Mill Tailings Radiation 

Control Act are exempt from emergency and remedial response actions under 

CERCLA; however, CERCLA does require that such releases be reported to the 

National Response Center if CERCLA's reportable quantity (RQ) for 

radionuclides has been exceeded. Third, releases of source, special nuclear, 

and byproduct material that are "federally-permitted" are exempt from CERCLA's 

reporting requirements, but not its response requirements. All of CERCLA's 

provisions apply to releases of naturally occurring and accelerator produced 

radioactive material (e.g., radium and radon). 

The RQ for radionuclides established by CERCLA is one pound and this 

quantity has not been adjusted by regulation. Because EPA recognizes that 

one-pound is not a suitable RQ for radionuclides, EPA is in the process of 

reviewing issues and alternatives for adjusting the radionuclide RQ. The 

existing Superfund bill requires adjustment of the radionuclide RQ by December 

31, 1986, although the EPA Administrator has requested this date be changed to 

December 31, 1987.