[Federal Register Volume 59, Number 98 (Monday, May 23, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-12132]


[[Page Unknown]]

[Federal Register: May 23, 1994]


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Part III





Department of Energy





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10 CFR Part 765




Reimbursement for Costs of Remedial Action at Active Uranium and 
Thorium Processing Sites; Final Rule and Notice
DEPARTMENT OF ENERGY

10 CFR Part 765

[1901-AA53]

 
Reimbursement for Costs of Remedial Action at Active Uranium and 
Thorium Processing Sites

AGENCY: Office of Environmental Management, Department of Energy.

ACTION: Final rule.

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SUMMARY: The Department of Energy, Office of Environmental Management, 
is promulgating this final rule to establish requirements governing 
reimbursement for certain costs of decontamination, decommissioning, 
reclamation, and other remedial action incurred by licensees at active 
uranium or thorium processing sites to remediate byproduct material 
generated as an incident of sales to the United States Government. The 
Energy Policy Act of 1992 requires the Department of Energy to 
implement these requirements of Title X and establish procedures for 
eligible licensees to submit claims for reimbursements.

EFFECTIVE DATE: June 22, 1994.

ADDRESSES: The official record for this rulemaking activity is 
available for public review in the Department of Energy Freedom of 
Information Reading Room, 1000 Independence Avenue, SW., Washington, 
DC, from 9:30 a.m. to 4:30 p.m., Monday through Friday. The 
Department's standardized claims format guide and annual report will be 
available upon written request to the Uranium Mill Tailings Remedial 
Action Project Office, U.S. Department of Energy, 2155 Louisiana NE., 
suite 10000, Albuquerque, NM 87110.

FOR FURTHER INFORMATION CONTACT: David Mathes, Office of Environmental 
Management (EM-45), U.S. Department of Energy, (301) 903-7223, or 
Steven Hamp, Uranium Mill Tailings Remedial Action Project Office, U.S. 
Department of Energy, (505) 845-4628.

SUPPLEMENTARY INFORMATION:
I. Introduction and Background
    A. Statutory Authority
    B. Background
    1. Overview of Uranium Processing Activity Licensed Under the 
Atomic Energy Act of 1954
    2. Overview of Uranium Mill Tailings Radiation Control Act
    3. Legislative Background
II. Response to Public Comments on the Proposed Rule
    A. Eligibility for Reimbursement
    B. Costs Eligible for Reimbursement
    C. Determining the Federal Reimbursement Ratio
    D. Definition of Byproduct Material and Dry Short Tons of 
Byproduct Material; and Determination of Reimbursement Ceiling at 
Each Active Uranium Processing Site
    E. Documentation Requirements
    F. NRC or Agreement State Concurrence
    G. Reimbursement of Costs of Subsequent Remedial Action
    H. Actions Subject to Appeals Procedures
    I. Miscellaneous Comments
III. Section-By-Section Analysis
    A. Subpart A--General
    1. Section 765.1  Purpose
    2. Section 765.2  Scope and Applicability
    3. Section 765.3  Definitions
    B. Subpart B--Reimbursement Criteria
    1. Section 765.10  Eligibility for Reimbursement
    2. Section 765.11  Reimbursable Costs
    3. Section 765.12  Inflation Index Adjustment Procedures
    C. Subpart C--Procedures for Submitting and Processing 
Reimbursement Claims
    1. Section 765.20  Procedures for Submitting Reimbursement 
Claims
    2. Section 765.21  Procedures for Processing Reimbursement 
Claims
    3. Section 765.22  Appeals Procedures
    4. Section 765.23  Annual Report
    D. Subpart D--Additional Reimbursement Procedures
    1. Section 765.30  Reimbursement of Costs Incurred in Accordance 
with a Plan for Subsequent Remedial Action
    2. Section 765.31  Designation of Funds Available for Subsequent 
Remedial Action
    3. Section 765.32  Reimbursement of Excess Funds
IV. Review Under Executive Order 12866
V. Review Under the Regulatory Flexibility Act
VI. Review Under the Paperwork Reduction Act
VII. Review Under the National Environmental Policy Act
VIII. Review Under Executive Order 12612
IX. Review Under Executive Order 12778

I. Introduction and Background

A. Statutory Authority

    Title X of the Energy Policy Act of 1992 (Sections 1001-1004 of 
Public Law 102-486, 42 U.S.C. 2296a et seq. (hereinafter ``the Act'')), 
enacted on October 24, 1992, requires the Department of Energy 
(hereinafter the ``Department'') to reimburse eligible uranium and 
thorium licensees for certain costs of decontamination, 
decommissioning, reclamation, and other remedial action at active 
uranium or thorium processing sites, which also include vicinity 
properties. Consistent with section 1002 of the Act (42 U.S.C. 2296a-1) 
the Department is promulgating this final rule to implement the 
requirements of Title X and to establish procedures for eligible 
applicants to submit claims for reimbursement.
    Title X provides that, with certain exceptions, remedial action 
costs at active uranium or thorium processing sites shall be borne by 
persons licensed under section 62 or 81 of the Atomic Energy Act of 
1954, as amended (42 U.S.C. 2092, 2111) (hereinafter the ``Atomic 
Energy Act''). Section 1001(b)(1)(B) of the Act (42 U.S.C. 
2296a(b)(1)(B)) requires the Department to reimburse eligible licensees 
of an active processing site a portion of the costs determined by the 
Department to be attributable to byproduct material generated as an 
incident of sales to the United States and either (a) Incurred by such 
licensee not later than December 31, 2002; or (b) placed in escrow not 
later than December 31, 2002, and incurred by the licensee in 
accordance with a plan for subsequent decontamination, decommissioning, 
reclamation, and other remedial action approved by the Department.
    In order to be reimbursable, such costs must be for work which is 
necessary to comply with applicable requirements of the Uranium Mill 
Tailings Radiation Control Act of 1978 (42 U.S.C. 7901 et seq.) 
(hereinafter ``UMTRCA'') or, where appropriate, with requirements 
established by a state pursuant to a discontinuance agreement under 
section 274 of the Atomic Energy Act (42 U.S.C. 2021), hereinafter 
``Agreement State''. In addition, claims for reimbursement of costs of 
remedial action must be supported by reasonable documentation as 
determined by the Department.
    Section 1001(b)(2) of the Act (42 U.S.C. 2296a(b)(2)) limits the 
amount of reimbursement paid to any one licensee of an active uranium 
mill tailings site to an amount not to exceed $5.50 multiplied by the 
dry short tons of byproduct material located at the site on October 24, 
1992, and generated as an incident of sales to the United States. Total 
reimbursement, in the aggregate, for work performed at active uranium 
sites shall not exceed $270 million. Total reimbursement for work 
performed at the active thorium site shall not exceed $40 million, and 
is limited to costs incurred for offsite disposal. Under sections 
1001(b)(2)(D) and 1003(a) of the Act (42 U.S.C. 2296a(b)(2)(D) and 
2296a-2(a)), the $5.50 per dry short ton limit on reimbursement to 
individual uranium site licensees and aggregate ceilings shall be 
subject to annual adjustment for inflation based upon an inflation 
index chosen by the Department.

B. Background

1. Overview of Uranium Processing Activity Licensed Under the Atomic 
Energy Act
    The U.S. Army's Manhattan Engineer District, from 1942 to 1946, and 
later the Atomic Energy Commission (hereinafter ``AEC''), from 1947 
through 1970, entered into several contracts for the purchase of 
uranium concentrate to support the Nation's defense programs. 
Initially, four mills provided uranium for the Army, primarily through 
reprocessing radium and vanadium mill tailings. Eventually a total of 
34 commercially operated mills produced uranium concentrate for sale to 
the United States Government.
    These contracts were for the purchase of an agreed-upon quantity of 
uranium concentrate. Contract specifications addressed physical 
characteristics, grade, and impurities but did not include provisions 
for mill decommissioning, long-term management of the milling-process 
wastes, known as tailings, or stabilization of tailings piles. When 
these contracts were executed, the potential hazards of tailings were 
not fully recognized. Over the ensuing decades, however, potential 
radiological and chemical hazards associated with uranium and thorium 
mill tailings were identified and standards and requirements were 
developed for the control and management of tailings.
    Between 1975 and 1979, the Department and the Energy Research and 
Development Administration, successor agencies to the AEC, completed 
studies of uranium mill sites that had produced uranium concentrate for 
the AEC, had subsequently ceased operations, and were considered 
inactive. These studies determined that uranium mill tailings located 
at these inactive uranium milling sites posed potentially significant 
health hazards to the public and that a program should be developed to 
ensure proper stabilization or disposal of these tailings to prevent or 
minimize radon diffusion into the environment and other related 
hazards.
2. Overview of Uranium Mill Tailings Radiation Control Act
    As a result of these studies, in November 1978, Congress enacted 
UMTRCA, which authorizes the Department to undertake remedial action at 
``inactive'' uranium milling sites and at vicinity properties 
contaminated with residual radioactive material1generated at a 
site. Inactive uranium milling sites are those which were no longer 
licensed under the Atomic Energy Act on January 1, 1978, and where all 
or substantially all of the uranium concentrate was produced for the 
Federal Government. The Department conducts remedial action in 
coordination with affected States and Indian tribes under cooperative 
agreements at 24 inactive sites.
---------------------------------------------------------------------------

    \1\The term ``residual radioactive material'' is defined by 
Section 101(7) of UMTRCA (42 U.S.C. 7911(7)) to mean: ``(A) Waste 
(which the Secretary determines to be radioactive) in the form of 
tailings resulting from the processing of ores for the extraction of 
uranium and other valuable constituents of the ores; and (B) other 
waste (which the Secretary determines to be radioactive) at a 
processing site which relate to such processing, including any 
residual stock or unprocessed ores or low-grade materials.''
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    In addition, UMTRCA established a program authorizing the United 
States Nuclear Regulatory Commission (hereinafter ``NRC'') to regulate 
mill tailings generated during processing operations at ``active'' 
processing sites (i.e., sites with active licenses under the Atomic 
Energy Act on or after January 1, 1978) to ensure sound management of 
tailings throughout the production, reclamation and disposal phases.
3. Legislative Background
    UMTRCA did not provide for payment of costs of remedial action 
incurred at active uranium processing sites which were contaminated 
with uranium mill tailings generated under Federal contract. Two 
reports prepared subsequently for Congress, by the Department in 
January 19792 and by the General Accounting Office in February 
1979,3 concluded that Federal assistance should be provided to 
licensees at these sites to address the cost of remediating mill 
tailings that were generated under contracts with the United States 
Government.
---------------------------------------------------------------------------

    \2\``Answers to Questions on Commingled Tailings at Currently 
Operating Uranium Ore Processing Mills That Produced Uranium Under 
Atomic Energy Commission Contracts'' (Department of Energy, January 
29, 1979).
    \3\``Cleaning Up Commingled Uranium Mill Tailings: Is Federal 
Assistance Necessary'' (General Accounting Office, EMD-79-29, U.S. 
Department of Commerce, February 5, 1979).
---------------------------------------------------------------------------

    Congress directed the Department, through section 213 of Public Law 
96-540, to develop a plan for establishing a cooperative program to 
provide Federal assistance in the stabilization and management of 
uranium mill tailings generated as an incident of sales to the United 
States Government which are commingled with other tailings. The 
Department was directed to identify, among other things, the amount of 
tailings generated under Federal contract at each active site. This 
determination was to be used to calculate the percentage of such 
tailings in relation to total tailings at each site, and the 
corresponding share of Federal assistance appropriate to meet the costs 
of stabilizing and managing tailings as required by Federal law.
    Title X establishes the authority and framework for providing this 
Federal assistance. The Department is required to issue regulations 
governing reimbursement to licensees at active uranium and thorium 
processing sites for certain costs of remedial action. This final rule 
establishes the requirements and procedures under which the Department 
will implement this reimbursement program.

II. Response to Public Comments on the Proposed Rule

    The Department's proposed rule was published on August 9, 1993 (58 
FR 42450). A public hearing was held on September 14, 1993 in Denver, 
Colorado. A total of 16 written comments were received, of which four 
identical comments were also presented orally at the public hearing. 
Most of the comments concerned eligibility for reimbursement, 
reimbursable costs, determination of the Federal reimbursement ratio, 
definition of byproduct material, and claim documentation requirements. 
These and all other comments to the proposed rule are discussed below.

A. Eligibility for Reimbursement

    Subject to certain specific limitations set forth in section 
1001(b) of the Act (42 U.S.C. 2296(a)(b)), Title X requires the 
Department to reimburse licensees of active uranium or thorium 
processing sites for that portion of remedial action costs that may be 
attributed to byproduct material generated as an incident of sales to 
the United States. Parties eligible for reimbursement must be, or have 
been, licensed under section 62 or 81 of the Atomic Energy Act, and 
must have incurred costs of ``decontamination, decommissioning, 
reclamation, or other remedial action'' at an ``active uranium or 
thorium processing site,'' as those terms are defined by Title X, 
sections 1004(3) and 1004(1), respectively (42 U.S.C. 2296a-3(3) and 
2296a-3(1)). A number of comments were received requesting 
clarification or revision of the proposed rule's requirements 
concerning eligibility for reimbursement.
    One commenter requested that the proposed rule's definition of 
``licensee'' be changed to specifically include entities licensed by an 
Agreement State. Sections 1001(a) and (b) of the Act (42 U.S.C. 
2296a(a) and (b)) require that the Department reimburse ``persons 
licensed under section 62 or 81 of the Atomic Energy Act of 1954.'' 
Both section 62 and section 81 confer licensing authority to AEC and 
its successor agency, the NRC.
    However, NRC and a state may enter into an agreement pursuant to 
section 274 of the Atomic Energy Act which provides for discontinuance 
of the regulatory authority of the NRC under Chapters 6, 7, and 8, and 
section 161 of the Atomic Energy Act when the NRC finds, upon 
certification by the Governor, that the state's program is in all 
respects compatible with the NRC's program for the regulation of 
byproduct and source material. The discontinuance of NRC authority is 
coupled with the Agreement State's issuance of licenses pursuant to a 
counterpart to section 62 or 81 of the Atomic Energy Act, under state 
law.
    If an Agreement State has received authority pursuant to a 
discontinuance agreement to issue licenses under either section 62 or 
section 81 of the Atomic Energy Act, recipients of an Agreement State-
issued license, that was in effect or pending on January 1, 1978, are 
eligible to apply for reimbursement under Title X. In addition, some 
active site licensees have been subject to remedial action requirements 
established both by NRC and an Agreement State. Accordingly, the 
definition of ``licensee'' in the proposed rule has been revised to 
clarify that a person licensed under the authority of either section 62 
or 81 of the Atomic Energy Act, by NRC, or under state law by an 
Agreement State, or both, is eligible to apply for reimbursement of 
costs of remedial action. This approach is consistent with, and 
reflected by, the definition of ``active uranium or thorium processing 
site'' in section 1004(1) of the Act (42 U.S.C. 2296a-3(1)), which 
specifies that the license for the production of uranium or thorium 
derived from ore may be issued by NRC, AEC, or by an Agreement State.
    Several comments were also received concerning the proposed 
eligibility requirement that a licensee also be a ``site owner'' of an 
active processing site. These commenters pointed out that land 
ownership was not intended by Congress to be a requirement for 
reimbursement. One commenter indicated that ownership of the property 
on which its processing site is located is divided between private, 
Federal, and state parties. Other commenters were concerned that the 
intent of Title X would be contravened if land ownership was a 
condition of eligibility for reimbursement. These commenters suggested 
that land ownership could also be difficult to define and determine.
    While section 1002 of the Act (42 U.S.C. 2296a-1) appears to 
contemplate that applications for reimbursements will be made by ``a 
site owner,'' section 1001(b)(2)(A) of the Act (42 U.S.C. 
2296a(b)(2)(A)) specifically refers to reimbursements paid ``to any 
licensee,'' and the remainder of Title X is also drafted in terms of 
payments to licensees. The term site owner, as used in section 1002 (42 
U.S.C. 2296a-1), is not defined nor is there any legislative history 
that sheds light on the single reference to ``site owner'' in section 
1002. Consistent with apparent Congressional intent, the Department has 
interpreted the term ``site owner'' to include any person that 
currently holds, or held in the past, any interest in land, including 
but not limited to a fee simple absolute, surface or subsurface 
ownership of mining claims, easements, or a right of access for the 
purposes of remediation, or any other legal or equitable interest. The 
Department has concluded that this definition will encompass all 
eligible current and former licensees. To avoid unnecessary confusion, 
the term ``site owner'' is not used in the rule and the term 
``licensee'' is used instead.

B. Costs Eligible for Reimbursement

    Several commenters proposed changes to, or requested clarification 
of, the language in Sec. 765.11(a) of the proposed rule concerning 
reimbursable costs and the definition of ``costs of remedial action.'' 
The proposed rule defined such costs as those costs incurred by a 
licensee that were necessary to perform ``decontamination, 
decommissioning, reclamation, and other remedial action.'' The phrase 
``decontamination, decommissioning, reclamation, and other remedial 
action'' is defined by section 1004(3) of the Act (42 U.S.C. 2296a-
3(3)), as well as the proposed rule, as work ``necessary to comply with 
all applicable requirements of'' UMTRCA or, where appropriate, with 
requirements established by an Agreement State.
    Several commenters asked that the definition of ``costs of remedial 
action'' specifically include a list of cost categories that are 
eligible for reimbursement. Furthermore, some commenters suggested that 
this list should specifically include the cost of capital, cost of 
equipment, and interest that might have been earned over the period 
between the expenditure and reimbursement; administrative costs; and 
costs in implementing other environmental program requirements.
    In response to these comments, the Department has revised the 
definition of ``costs of remedial action'' to include those activities 
specified in the Joint Explanatory Statement of the Committee of 
Conference that accompanied the enactment of Title X which states:

    Funds made available under this program are intended to be 
provided for all costs that result from the disposition of by-
product [sic] material at active processing sites (subject to the 
limitations of sec. 1001(b)), including groundwater remediation, 
treatment of contaminated soil, disposal of process wastes, removal 
actions, air pollution studies, mill and equipment decommissioning, 
site monitoring, administrative expenses, and additional 
expenditures required by related standards and regulations.'' (H.R. 
CONF. REP. NO. 102-1018, 102d Cong., 2d Sess. 392 (1992))

    Rather than further attempt to enumerate more precise activities 
and circumstances for which costs are reimbursable, the Department has 
determined that this issue should be resolved on a case-by-case basis, 
consistent with the statutory requirements. Section 1004(3) of the Act 
(42 U.S.C. 2296a-3(3)) limits reimbursement to costs for ``work 
performed . . . which is necessary to comply'' with UMTRCA or, where 
appropriate, with applicable Agreement State requirements. Therefore, 
whether work for which reimbursement is sought is necessary to comply 
with UMTRCA or, where appropriate, with applicable Agreement State 
requirements as required by section 1004(3) of the Act (42 U.S.C. 
2296a-3(3)), will depend on specific circumstances that may vary from 
one site to the next.
    However, in the absence of specific statutory authority, the 
Department has determined that the carrying cost of past expenditures 
or other costs of capital or lost interest are not eligible for 
reimbursement. Costs incurred for activities required by other Federal 
and state regulatory authorities may only be considered reimbursable if 
the activity falls within the final rule's definition of 
``decontamination, decommissioning, reclamation, and other remedial 
action.'' For example, the United States Environmental Protection 
Agency or a state regulatory authority may require a licensee to obtain 
a storm water discharge permit pursuant to the Clean Water Act before 
the licensee is able to conduct a remedial action. Therefore, a 
licensee may be able to demonstrate that the cost in obtaining and 
maintaining the a discharge permit is necessary to comply with UMTRCA 
or, where appropriate, with Agreement State requirements.
    Administrative costs and other costs associated with cleanup or 
restoration of the site may be eligible for reimbursement provided that 
a licensee can demonstrate that the costs were necessary to comply with 
the requirements of UMTRCA or, where appropriate, with applicable 
requirements of an Agreement State.
    Several commenters construed the proposed rule to limit costs of 
remedial action to activities required by an approved site reclamation 
plan. These commenters requested that the rule be clarified to provide 
for reimbursement of other activities required by other written 
authorization from NRC or an Agreement State.
    The final rule clarifies that costs for activities required by NRC 
or an Agreement State and established by a license condition or other 
authorization or directive may be eligible for reimbursement. The 
phrase ``or other written authorization'' is used throughout the final 
rule to specify that the activity may be authorized by the applicable 
regulatory authority by some mechanism other than an approved 
reclamation plan.
    Several commenters requested that the final rule specify that costs 
incurred prior to the enactment of UMTRCA are reimbursable. This 
request is consistent with section 1001(b)(1) of the Act (42 U.S.C. 
2296a(b)(1)), which provides that the Secretary shall reimburse a 
licensee for costs of decontamination, decommissioning, reclamation, 
and other remedial action which are attributable to byproduct material 
generated as an incident of sales to the United States and incurred by 
the licensee not later than December 31, 2002. Furthermore, section 
1004(3) of the Act (42 U.S.C. 2296a-3(3)) specifies that the term 
``decontamination, decommissioning, reclamation, and other remedial 
action'' means work performed that is necessary to comply with UMTRCA 
or, where appropriate, requirements established by an Agreement State.
    Therefore, the final rule states that pre-UMTRCA costs may be 
eligible for reimbursement if the licensee can demonstrate and obtain 
the Department's approval that the work was necessary to comply with 
UMTRCA. A licensee can make this demonstration by providing a written 
authorization from the NRC or an Agreement State which indicates that 
the work performed by the licensee prior to the enactment of UMTRCA was 
necessary to comply with UMTRCA or, where appropriate, with applicable 
Agreement State requirements.
    Some commenters objected to Sec. 765.11(a) of the proposed rule, 
concerning the requirement that reimbursable costs must be for 
activities ``contributing to final closure.'' These commenters were 
concerned that the applicable regulatory authority may revise an 
approved reclamation plan, license condition, or other directive for 
the remediation of the site. Under the proposed rule, a licensee's 
previously incurred costs of remedial action would not be reimbursable. 
The Department acknowledges this concern and has revised the final rule 
by deleting this requirement.
    In addition, commenters objected to Sec. 765.20 of the proposed 
rule which required licensees to certify that remedial action work was 
completed as required by a reclamation plan or other written 
authorization. These commenters were concerned that licensees might not 
be reimbursed prior to completion of remedial actions for individual 
tasks, as specified in an approved reclamation plan or other written 
authorization, upon the licensees completion of these tasks. The 
Department agrees with these commenters and notes that it is the 
Department's intent to reimburse these costs upon completion of the 
individual tasks instead of the entire remediation.
    Finally, one commenter suggested that Sec. 765.2(d) of the proposed 
rule be modified to clarify that expenses incurred as a result of an 
NRC directive, an Agreement State directive, or both, are eligible for 
reimbursement. A mill may have been regulated by both the NRC and an 
Agreement State during the mill's history, and may have therefore 
incurred costs for activities required by directives from both 
regulatory authorities. This commenter urged that references to ``NRC 
or Agreement State'' be revised to read ``NRC and/or an Agreement 
State.''
    The Department has retained the proposed language but wishes to 
clarify that use of the phrase ``NRC or an Agreement State'' refers to 
NRC, an Agreement State, or both.

C. Determining the Federal Reimbursement Ratio

    The proposed rule provided that the Department would establish a 
``Federal reimbursement ratio'' to determine the portion of costs of 
remedial action attributable to byproduct material generated as an 
incident of sales to the United States. Under the proposed rule, the 
Federal reimbursement ratio would be the ratio of Federal-related dry 
short tons of byproduct material to total dry short tons of byproduct 
material present at each site on the date of enactment of Title X.
    Some commenters suggested that the Department should allow 
licensees to use a method other than the proposed rule's tonnage or 
quantity-based approach to establish a site's Federal reimbursement 
ratio. These commenters argued that at some sites the tonnage-based 
Federal reimbursement ratio may not accurately reflect the true costs 
of remediation attributable to byproduct material generated as an 
incident of sales to the United States. These commenters also suggested 
that the rule allow greater flexibility in the methods available to 
determine the Federal reimbursement ratio. In particular, these 
commenters requested that the rule allow such ratio to be based on the 
acreage covered by Federal-related dry short tons of byproduct material 
compared to the total acreage covered by all dry short tons of 
byproduct material at the site.
    Title X limits reimbursement to costs ``attributable to'' byproduct 
material generated as an incident of sales to the United States, but 
does not require a specific method for determining how to attribute 
costs to byproduct material generated as an incident of sales to the 
United States. Section 1001(b)(2)(A) of the Act (42 U.S.C. 
2296a(b)(2)(A)) establishes a $5.50 per dry short ton of byproduct 
material limit on reimbursement. This indicates that the tonnage 
approach is an appropriate method for determining the Federal portion 
of remedial action costs. However, the tonnage approach may not, in 
some cases, most accurately reflect the portion of costs attributable 
to byproduct material generated as an incident of sales to the United 
States. As the Department recognized in the ``Commingled Uranium 
Tailings Study, Volume II: Technical Report,'' (Department of Energy, 
June 30, 1982) different approaches for allocating costs attributable 
to byproduct material generated as an incident of sales to the United 
States may be appropriate, depending on the unique characteristics at 
each site.
    Accordingly, the final rule has been revised to allow a licensee to 
demonstrate that an alternative method for determining the Federal 
reimbursement ratio, other than the tonnage approach, should be used. 
In order to make this demonstration, the final rule requires the 
licensee to demonstrate to the satisfaction of the Department that such 
alternative method is more accurate than the tonnage-based approach in 
delineating between costs of remedial action attributable to byproduct 
material generated as an incident of sales to the United States and 
costs attributable to other byproduct material at the site. Any 
licensee requesting that the Department consider an alternative 
approach for establishing a site's Federal reimbursement ratio, must 
submit the request in writing, together with any information the 
licensee wants the Department to consider in support of the request. 
The Department reserves the right to approve or reject the alternative 
method, based on the Department's determination of whether such method 
may provide an effective, accurate, and verifiable means of attributing 
costs of remedial action for byproduct material generated as an 
incident of sales to the United States. Regardless of the methodology 
used to establish the Federal reimbursement ratio, the statutory 
ceiling on reimbursements to licensees will not change.

D. Definition of Byproduct Material and Dry Short Tons of Byproduct 
Material; and Determination of Reimbursement Ceiling at Each Active 
Uranium Processing Site

    One commenter disagreed with the proposed rule's definition of 
``dry short tons of byproduct material.'' This commenter requested that 
the definition be expanded to include other wastes as well as tailings. 
For the reasons stated below, the Department has not adopted this 
approach.
    Section 1001(b)(2)(A) of the Act (42 U.S.C. 2296(a)(b)(2)(A)) 
requires that the ceiling for uranium mill tailings sites shall not 
exceed an amount equal to $5.50 multiplied by the dry short tons of 
byproduct material onsite on the date of Title X's enactment and 
generated as an incident of sales to the United States. Although Title 
X incorporates by reference the Atomic Energy Act's definition of 
``byproduct material,''\4\ the phrase ``dry short ton of byproduct 
material'' is not defined in either Act. While the definition of 
``byproduct material'' could be read to suggest that the term includes 
wastes other than tailings, section 1001(b)(2)(A) of the Act (42 U.S.C. 
2296a(b)(2)(A)) appears to use the phrase ``uranium mill tailings'' 
interchangeably in the same sentence with the phrase ``byproduct 
material.'' The apparent interchangeable use of these terms is further 
reflected by the fact that House Bill 776\5\, which ultimately was 
enacted, established a reimbursement limit of $5.50 per ``dry short 
tons of byproduct material,'' (emphasis added) while the section-by-
section analysis of the House Energy and Commerce Report\6\ 
accompanying the bill described the limit as ``$5.50 per dry ton for 
uranium tailings'' (emphasis added).
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    \4\Section 1004(2) of the Act (42 U.S.C. 2296a-3(2)) provides 
that the term ``byproduct material'' has the meaning given that term 
in section 11e.(2) of the Atomic Energy Act, which defines 
``byproduct material'' as ``the tailings or wastes produced from the 
extraction or concentration of uranium or thorium from any ore 
processed primarily for its source material content.''
    \5\Section 1001(b)(2)(A) of H.R. 776, 102d Cong., 2d Sess. 
(1992).
    \6\See H.REP. NO. 474, 102 Cong., 2d Sess. pt 1, at 205 (1992), 
reprinted in 1992 U.S.C.C.A.N. 2028.
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    Consequently, for the purposes of this rule's maximum reimbursement 
ceiling determination for active uranium processing site licensees and 
Federal reimbursement ratio for uranium and thorium licensees, the 
Department is defining the phrase ``dry short ton of byproduct 
material'' in the final rule to mean ``the quantity of tailings 
generated from the extraction and processing of 2,000 pounds of uranium 
or thorium ore-bearing rock.''
    One commenter requested that the proposed definition of 
``tailings'' be revised to conform to the definition established by 
section 101(8) of UMTRCA (42 U.S.C. 7911(8)). The Department agrees 
with this comment and has revised the definition accordingly.
    The following table establishes the Department's determination as 
to the quantity of Federal-related dry short tons of byproduct material 
and total dry short tons of byproduct material present at each active 
uranium or thorium processing site as of October 24, 1992. The data 
from which these quantities are derived were obtained from the reports 
entitled ``Commingled Uranium Mill Tailings Study, Volume II: Technical 
Report,'' (DOE, June 30, 1982) and ``Integrated Data Base for 1992: 
U.S. Spent Fuel and Radioactive Waste Inventories, Projections, and 
Characteristics'' (DOE/RW 0006, Rev. 8). In some cases, this data was 
updated based on the Department's review of quantity information 
provided by some licensees in response to the proposed rule. These 
quantity reports are available in the Department's Freedom of 
Information Reading Room indicated in the ADDRESSES section of this 
preamble. These quantities shall be the basis for the Department's 
determination of the Federal reimbursement ratio applicable to each 
active processing site, unless a licensee requests and the Department 
agrees to use an alternative method for computing the ratio. These 
quantities will also be the basis for the Department's determination of 
the individual maximum reimbursement ceiling applicable to each active 
uranium processing site.
    Although Title X provides that the per dry short ton limit on 
reimbursement for each eligible uranium licensee shall not exceed an 
amount equal to $5.50, as adjusted for inflation, the Department is 
authorized to establish a lower per dry short ton limit if necessary. 
Based on the total quantity of 56.231 million Federal-related dry short 
tons of byproduct material, the Department is establishing an initial 
per dry short ton limit of $4.80. This is necessary because the 
aggregate $270 million statutory ceiling will not support the maximum 
allowable reimbursement of $5.50 per dry short ton, as established by 
the Act, if remedial action costs at all of the eligible uranium 
processing sites reach or approach this per dry short ton limit (i.e., 
$270 million divided by 56.231 million Federal-related dry short tons 
of byproduct material equals $4.80 per dry short ton). The Department 
will adjust the preliminary limit on reimbursement accordingly when the 
$270 million statutory ceiling is adjusted annually for inflation or if 
other circumstances, as determined by the Department, enable the 
adjustment of the preliminary limit. 

                                      Dry Short Tons of Byproduct Material                                      
                                                   [Millions]                                                   
----------------------------------------------------------------------------------------------------------------
                                                                                                      Federal   
                     Licensee/active uranium site                          Federal       Total     reimbursement
                                                                           related                     ratio    
----------------------------------------------------------------------------------------------------------------
American Nuclear Corp., Gas Hills Mill Site, (Gas Hills, WY)...........        2.191          6.0         0.365 
Atlantic Richfield Company, Blue Water Mill Site, (Grants, NM).........        8.837         23.9          .370 
Atlas Corp., Moab Mill Site, (Moab, UT)................................        5.946         10.6          .561 
Cotter Corp., Canon City Mill Site, (Canon City, CO)...................         .315          2.2          .143 
Dawn Mining Company, Ford Mill Site, (Ford, WA)........................        1.171          3.1          .378 
Homestake Mining Company, Grants, Mill Site, (Grants, NM)..............       11.411         22.3          .512 
Pathfinder Mines Corp., Lucky McMine, (Riverton, WY)...................        2.842         11.7          .243 
Petrotomics Company, Shirley Basin Mill Site, (Shirley Basin, WY)......         .725          6.3          .115 
Quivira Mining Company, Ambrosia Lake Mill Site, (Grants, NM)..........       10.017         33.2          .302 
Tennessee Valley Authority, Edgemont Mill Site, (Edgemont, SD).........        1.625          2.0          .813 
UMETCO Mineral Corp., Uravan Mill Site, (Nucla, CO)....................        5.701         10.5          .543 
Union Carbide Corp., East Gas Hills Mill Site, (Gas Hills Station, WY).        2.103          8.0          .263 
Western Nuclear, Inc., Split Rock Mill Site, (Jeffrey City, WY)........        3.347          7.7          .435 
Licensee/Active Thorium Site...........................................                                         
Kerr-McGee Chemical, Corp., West Chicago, Thorium Mill Site, (West                                              
 Chicago, IL)..........................................................        0.032         .058         .552  
----------------------------------------------------------------------------------------------------------------

E. Documentation Requirements

    Section 765.20 of the proposed rule required that each claim for 
reimbursement of costs of remedial action be supported by adequate 
documentation. All costs for which reimbursement was sought and all 
supporting documentation were to be organized and cross-referenced to 
specific requirements or activities in an approved reclamation plan. 
Further, the proposed rule expressed a preference for documentation 
that was prepared contemporaneously to the time the costs were 
incurred.
    A number of commenters questioned the use of the word ``adequate'' 
to describe the documentation necessary to support a claim for 
reimbursement. Section 1002 of the Act (42 U.S.C. 2296a-1)) requires a 
licensee to submit a claim together with ``reasonable'' documentation. 
In the final rule, the word ``adequate'' has been replaced with 
``reasonable'' in Sec. 765.20(a) to make the language of the rule 
consistent with that of Title X.
    The proposed rule also generated several comments concerning the 
amount and type of documentation necessary. Many commenters contended 
that the documentation requirements were unduly burdensome. Several 
commenters recommended that the Department consider accepting a summary 
of the available documentation, while reserving the right to audit the 
actual documentation at the licensee's facility.
    As a result of these comments, the Department has modified the 
documentation requirements in the final rule to specifically permit the 
submission of claims that summarize the supporting documentation, 
without requiring the submission of all supporting documentation with 
the claim itself. Under the final rule, licensees may submit a claim 
which outlines all costs of remedial action for which reimbursement is 
sought and summarizes the documentation available to support the claim. 
The Department may audit or may require the licensee to audit, on a 
case-by-case basis, any documents used in support of a claim. Under the 
final rule, licensees are still required to organize and cross-
reference summary documentation supporting a claim to the activity or 
requirement established in the reclamation plan, or other written 
authorization for both pre- and post-UMTRCA costs of remedial action, 
in order to facilitate such an audit. These documents also must be 
retained by each licensee until 4 years after final payment of a claim 
is made by the Department, access to which must be made available to 
the Department upon request.
    In addition, many commenters indicated that contemporaneous 
documentation might not be available to support claims. Various 
reasons, including the passage of time since costs were incurred, were 
provided to support the request that non-contemporaneous documentation 
be permitted to support the claim for reimbursement.
    The proposed rule did not prohibit the use of non-contemporaneous 
documentation. Instead it established a preference, but not a 
requirement, for contemporaneous documentation. The final rule has been 
clarified to indicate that documentation prepared contemporaneous to 
the time the costs were incurred should be used where available. To 
support a claim for reimbursement, the most appropriate documentation, 
but not the only acceptable documentation, is documentation that was 
prepared contemporaneous to the time the cost was incurred. If 
contemporaneous documentation is not available, Sec. 765.20(d)(2) 
provides that non-contemporaneous documentation may be submitted, 
provided that the documentation is the only means available to document 
the costs for which reimbursement is sought. This approach reflects the 
Department's understanding that Title X establishes a test of 
reasonableness regarding the level of documentation necessary to 
support a claim for reimbursement. The level of documentation that 
reasonably can be expected will depend on the specific circumstances 
involved in each claim, including the time that has elapsed since the 
costs were incurred and the activity for which costs were incurred. The 
Department intends to evaluate each claim on a case-by-case basis using 
this standard of reasonableness.
    Some commenters requested that Sec. 765.20(e) of the proposed rule 
be revised to exclude the requirement that the licensee certify that a 
quality assurance program was implemented. The Department has 
determined that this certification is not required by the Act, but 
rather is a responsibility of NRC or an Agreement State. Therefore, 
this requirement has been deleted from the final rule.
    Finally, one commenter encouraged the Department to provide a 
standardized claims format guide so that guidance for preparing claims 
will be available to licensees when the rule is finalized. The 
Department is preparing guidance to aid licensees in claim submission 
procedures. This guide will be distributed to eligible licensees 
shortly after publication of the final rule. In addition, the guide 
will be made available to other interested parties upon written request 
to the Uranium Mill Tailings Remedial Action Project Office, U.S. 
Department of Energy, 2155 Louisiana NE., suite 10000, Albuquerque, NM 
87110, or by visiting the Department of Energy's Freedom of Information 
Reading Room, 1000 Independence Avenue SW., Washington, DC, from 9:30 
a.m. to 4:30 p.m., Monday through Friday.

F. NRC or Agreement State Concurrence

    Several commenters objected to the provision in Sec. 765.21(d) of 
the proposed rule requiring NRC or Agreement State concurrence in the 
reimbursement claim approval process. These commenters asserted that 
involving the NRC or Agreement States in the process will cause undue 
delay. Furthermore, commenters argued that the Department's review will 
be adequate because of the Department's experience with UMTRCA Title I 
sites and because approved reclamation plans, or other written 
authorization for both pre- and post-UMTRCA costs, will be submitted to 
support claims for reimbursement. Some commenters argued that NRC or 
Agreement State concurrence is unnecessary for those claims that fall 
clearly within the scope of an approved plan or license condition. 
However, another commenter strongly supported the requirement for 
written certification from NRC or an Agreement State that claims be 
substantially in conformance with NRC or Agreement State authorization.
    As discussed elsewhere in this preamble, section 1004(3) of the Act 
(42 U.S.C. 2296a-3(3)) requires that remedial action costs for which 
reimbursement is claimed must be for work ``necessary to comply with 
all applicable requirements'' of UMTRCA or, where appropriate, with 
applicable requirements established by an Agreement State. Whether work 
is necessary to comply with UMTRCA or Agreement State requirements 
often may be determined, at least in part, by a review of a site's 
approved reclamation plan or other written authorization. Licensees are 
required to link each cost of remedial action for which reimbursement 
is claimed to a specific element or activity contained in an approved 
reclamation plan or other NRC or Agreement State authorization for both 
pre- and post-UMTRCA costs. This will facilitate the Department's 
review of claims, and help to ensure that reimbursement is made only 
for costs incurred for activities necessary to comply with UMTRCA or, 
where appropriate, with applicable Agreement State requirements.
    There may be situations, nevertheless, where the Department's 
review of the site's reclamation plan or other written authorization 
does not confirm that an activity for which reimbursement is claimed 
was necessary to comply with UMTRCA or, where appropriate, Agreement 
State requirements. To address these situations, Sec. 765.21(d) of the 
proposed rule provided that before approving a claim for reimbursement, 
the Department would request NRC or the Agreement State to review the 
claim and provide written concurrence that the activities for which 
reimbursement is claimed are ``substantially in conformance with the 
licensee's approved reclamation plan.''
    In response to the concerns raised by commenters, however, the 
Department has revised the requirement for NRC or Agreement State 
written concurrence. When it is not clear from a comparison of a claim 
and the approved site reclamation plan or other written authorization 
that an activity for which reimbursement is sought was necessary to 
comply with UMTRCA or, where appropriate, with applicable Agreement 
State requirements, the Department will consult with the appropriate 
regulatory authority to determine whether the activity was necessary to 
comply with these requirements.
    In addition, some commenters urged that Sec. 765.21(c) of the rule 
explicitly provide licensees with a right to attend and participate in 
informal conferences between Department and NRC or Agreement State 
personnel concerning a claim for reimbursement. The Department has 
decided not to adopt this approach. The claim submittal and review 
process provide a licensee with ample opportunity to present any 
relevant information or clarification necessary for the Department to 
be fully informed in reviewing and acting upon a claim. In addition, 
the Department may, at its discretion, provide a licensee with 
additional opportunities to clarify any issues which could arise with 
regard to a claim prior to reaching a final decision. However, to 
conform with the above revision to Sec. 765.21(d) the Department has 
deleted the reference to the informal conference with NRC or an 
Agreement State in Sec. 765.20(c). Any informal conference would be 
conducted as part of the Department's consultation with these 
regulatory agencies pursuant to Sec. 765.21(d).

G. Reimbursement of Costs of Subsequent Remedial Action

    Section 765.30 of the proposed rule required licensees seeking 
reimbursement of costs after December 31, 2002 to submit a subsequent 
plan for remedial action to the Department in accordance with section 
1001(b)(1)(B)(ii) of the Act. Specifically, reimbursement of costs 
incurred after December 31, 2002 would be subject to Department's 
approval of a plan containing: (1) Applicable remedial action 
requirements established by NRC or an Agreement State pursuant to 
UMTRCA that had not yet been satisfied by the licensee; and (2) the 
total cost of remedial action required at the site, with supporting 
documentation, segregated into actual costs incurred and anticipated 
future costs.
    Several commenters indicated that the proposed rule provided 
inadequate guidance on the criteria the Department will use in 
approving a subsequent plan for remedial action. Specifically, these 
commenters construed proposed Sec. 765.30(c) to mean that the 
Department would, if necessary, require a licensee to make changes to a 
reclamation plan approved by NRC or an Agreement State. In addition, 
some of these commenters claimed that the Department's review should be 
limited to matters of schedule.
    The Department did not intend the proposed rule to require a 
licensee to make any changes to a reclamation plan approved by NRC or 
an Agreement State. On the other hand, the statutory authority to 
review and approve such plans is by no means limited to the scheduling 
of subsequent remedial action. To clarify the scope and purpose of this 
review, Sec. 765.30(c) has been revised to state that the intended 
purpose of the Department's review is to determine conformance with an 
NRC- or Agreement State-approved reclamation plan, as well as the 
reasonableness of anticipated future costs.
    Several commenters requested that the Department clarify in 
Sec. 765.30(b) of the proposed rule the time in which it would approve 
a subsequent plan for remedial action which was previously rejected by 
the Department and modified by a licensee.
    The final rule has been revised to provide that a licensee may 
continue to resubmit a subsequent plan for remedial action until the 
Department approves the plan or September 30, 2002, whichever date is 
earlier. This deadline for submission of plans provides sufficient time 
for a licensee to resubmit such a plan. It also allows the Department 
sufficient time to review and approve the plan and to designate by 
December 31, 2002 available amounts deposited in the Uranium Enrichment 
Decontamination and Decommissioning Fund, an escrow account established 
at the United States Treasury Department pursuant to section 1801 of 
the Act (42 U.S.C. 2297(g)), for reimbursement.
    Some of these commenters requested that the Department allow for 
the reimbursement of remedial action costs incurred after December 31, 
2002 for plans which have been submitted, but not yet approved by the 
Department, before this date. The Department does not have statutory 
authority to reimburse licensees for costs of remedial action after 
December 31, 2002 for which a plan has not been approved. Therefore, 
the final rule does not allow for the reimbursement of remedial costs 
incurred after December 31, 2002, for those plans which have not been 
approved by this date.
    One commenter questioned how the Department intends to address 
costs incurred prior to December 31, 2002, but not yet approved by the 
Department at the time the plan is submitted by the licensee.
    To ensure that all incurred and future costs of remedial action are 
included in a subsequent plan for remedial action, the Department has 
revised Sec. 765.30(b)(2) to include a third category of costs: Those 
costs incurred or expected to be incurred prior to December 31, 2002. 
This category includes those costs incurred prior to December 31, 2002 
but not yet submitted in a claim for reimbursement, or approved by the 
Department.
    Finally, many commenters requested that Secs. 765.20(e) and 
765.30(b)(2) of the proposed rule eliminate the provision that claims 
for reimbursement will be reviewed by the Department to assure that the 
costs are consistent with the surety requirements provided by the 
licensees to NRC or an Agreement State. These commenters argued that 
there are many significant differences between the anticipated costs 
upon which the surety requirements are based and the anticipated costs 
contained in plans for subsequent remedial action. These commenters 
also noted that in some circumstances the surety may not take into 
consideration all costs that may be reimbursed under Title X.
    The Department acknowledges these concerns and has eliminated the 
surety requirement in the final rule. To conform with this change, the 
Department has deleted the definition of ``surety requirements'' 
contained in Sec. 765.3 of the proposed rule.

H. Actions Subject to Appeals Procedures

    Section 765.22 of the proposed rule provided procedures for 
appealing the Department's determination concerning the total dry short 
tons of byproduct material quantity and Federal-related dry short tons 
of byproduct material quantity present at a site. Although proposed 
Sec. 765.22 provided licensees the opportunity to appeal the 
Department's dry short tons of byproduct material quantity 
determination, several commenters argued that proposed Sec. 765.10(b), 
which required a licensee to either concur with the Department's 
determination or waive or exhaust its right of appeal prior to 
submitting a claim for reimbursement, effectively forced licensees to 
forego their right of appeal to obtain timely reimbursement. These 
commenters expressed concern that licensees would be unfairly penalized 
if denied reimbursement during the potentially lengthy appeals period.
    The Department agrees with these commenters and has eliminated the 
requirement that a licensee waive its right of appeal with respect to a 
quantity determination of dry short tons of byproduct material prior to 
submitting a claim. However, in order to define the Federal 
reimbursement ratio that the Department will use to calculate 
reimbursement, the Department must, prior to providing any 
reimbursement to a licensee, make a determination concerning the total 
and Federal-related dry short tons of byproduct material quantities 
present at each site on October 24, 1992. Therefore, although under the 
final rule a licensee may submit a claim for reimbursement while 
appealing the Department's dry short tons of byproduct material 
quantity determination, the appeal must be made within 45 days after 
receiving notice of such determination. The 45-day limit provides a 
licensee with the right to appeal without foregoing the right to timely 
reimbursement and helps ensure that the Department is able to make the 
determinations necessary for orderly administration of the 
reimbursement program.
    Under Sec. 765.10(b), the Department's dry short tons of byproduct 
material quantity determinations will be used to calculate that portion 
of an approved claim that will be reimbursed. If the licensee's appeal 
of the Department's initial determination is successful, the difference 
between the initial quantity determination and that established by the 
appeals process will be paid to the licensee.
    Some commenters noted that the proposed rule did not provide a 
licensee an opportunity to appeal the Department's decision concerning 
plans for subsequent remedial action, as well as other determinations 
required by this rule. This omission in the proposed rule was 
unintentional. Section 765.22 has been revised and streamlined in the 
final rule to allow appeals of any Department determination required by 
this rule, including a decision to reject or modify a plan for 
subsequent remedial action. While the decision to appeal a Department 
determination associated with this rule lies in the discretion of each 
eligible licensee, the rule requires that any appeal comply with the 
appeals process specified in Sec. 765.22.

I. Miscellaneous Comments

    Under Sec. 765.3 of the proposed rule, the definition of ``offsite 
disposal'' refers to disposal of byproduct material from the sole 
existing thorium mill site pursuant to a plan approved by, or written 
authorization from, the Illinois Department of Nuclear Safety or other 
appropriate state agency. One commenter urged that the specific 
reference to the Illinois Department of Nuclear Safety be deleted from 
the definition in the event of a name change or revision of 
responsibilities of that agency, and the definition also include 
approvals and authorizations from the NRC. The Department has 
determined that the language of Title X does not limit reimbursement 
for offsite disposal to activities required by a specific state 
regulatory authority. Therefore, the definition of ``offsite disposal'' 
in the final rule has been modified to include activities required by 
the NRC or the State of Illinois.
    Another commenter suggested that the Department consider making 
partial provisional advance payments to licensees, subject to an audit 
of expenditures. The Department does not have the statutory authority 
to make partial provisional advance payments.
    A number of commenters suggested that the Department clarify how 
available funds will be disbursed if there are insufficient funds for 
full payment of all claims. Language in the proposed rule did not 
explicitly specify the priority for disbursement of funds among claims 
submitted by different review submission deadlines established by the 
Department. The final rule has been revised to specify that, if funds 
available are insufficient to make full payment in any given review 
cycle, all outstanding approved claims will be reimbursed on a prorated 
basis, regardless of when the claims were submitted or approved. This 
approach is consistent with the requirement of Title X that 
reimbursements be made to licensees at least annually.
    Commenters also requested that claims be processed and paid twice a 
year. Title X requires that licensees be reimbursed at least annually. 
Therefore, the Department intends to provide payments to the licensees 
on at least an annual basis, but the Department is not prepared to 
commit in the rule to a more frequent reimbursement schedule.
    The Department has modified Sec. 765.20(a) and (d) of the proposed 
rule to clarify that the claim submission deadline(s) for a given year 
will be announced in the Federal Register shortly after the annual 
appropriation of funds by the Congress. To ensure an equitable 
distribution of annual appropriations, DOE will make payments for 
approved costs of remedial action from the Fund within one year of the 
claim submission deadline.
    Some commenters also urged the Department to modify the proposed 
rule's application of the inflation index adjustment provided in 
Sec. 765.12 for claims approved for reimbursement. Some commenters 
argued that claims for reimbursement should be adjusted for inflation 
from the date the costs were incurred until the date of reimbursement. 
Others thought that an inflation adjustment should be made for the 
period between the submission or approval of a claim and the date of 
reimbursement.
    Section 1001(b)(2)(D) of the Act (42 U.S.C. 2296(a)(b)(2)(D)) 
specifies the authority provided to the Department to adjust certain 
amounts for inflation. While the Secretary is given discretion to 
determine the appropriate inflation index to apply, this section 
dictates the amounts that are subject to adjustment for inflation. 
Congress explicitly and unequivocally limited the application of the 
inflation index to ``the amounts in subparagraphs (A), (B), and (C) of 
this paragraph [section 1001(b)(2) of the Act]'' (42 U.S.C. 
2296a(b)(2)(D)). The amounts in subparagraphs (A), (B), and (C) of 
paragraph 1001(b)(2) are $5.50, $270,000,000, and $40,000,000, 
respectively. The Department is not authorized to adjust for inflation 
any claims for reimbursement. As a result, the approach taken in the 
proposed rule has been retained in the final rule.
    In addition to the revisions discussed above, the Department also 
made minor clarifying or editorial changes to the proposed rule which 
are not specifically discussed in this preamble.

III. Section-By-Section Analysis

A. Subpart A--General

1. Section 765.1  Purpose
    Section 765.1 specifies that the purpose of this rule is to 
establish procedures and requirements governing the reimbursement of 
remedial action costs authorized by Title X of the Act. The section 
confirms that the rule is promulgated as required by section 1002 of 
the Act (42 U.S.C. 2296a-1).
2. Section 765.2  Scope and Applicability
    Section 765.2 describes the general scope and applicability of the 
rule. In particular, the section provides that reimbursements shall be 
made to a licensee of an active uranium or thorium processing site for 
costs of decontamination, decommissioning, reclamation, or other 
remedial action, which are supported by reasonable documentation and 
determined by the Department to be attributable to byproduct material 
generated as an incident of sales to the United States. Costs of 
decontamination, decommissioning, reclamation, and other remedial 
action must be for work that is necessary to comply with the 
requirements of UMTRCA or, where appropriate, with applicable 
requirements established by an Agreement State. Moreover, except as 
provided by Sec. 765.32, reimbursement of a uranium site licensee shall 
be limited to $5.50, as adjusted for inflation, per Federal-related dry 
short ton of byproduct material. The total reimbursement paid to all 
uranium licensees shall not exceed $270 million, as adjusted for 
inflation. Reimbursement of the thorium site licensee shall not exceed 
$40 million, as adjusted for inflation.
3. Section 765.3  Definitions
    Section 765.3 defines the acronyms and key terms used in the rule. 
Many of the definitions contained in Sec. 765.3 are taken verbatim, or 
with minor changes, from Title X, UMTRCA, or the Atomic Energy Act. 
Additional definitions, discussed below, were developed specifically 
for this rule.
    The term ``active uranium or thorium processing site'' or ``active 
processing site'' means:
    (1) any uranium or thorium processing site, including the mill, 
containing byproduct material for which a license, issued either by NRC 
or by an Agreement State, for the production at such site of any 
uranium or thorium derived from ore--
    (i) was in effect on January 1, 1978;
    (ii) was issued or renewed after January 1, 1978; or
    (iii) for which an application for renewal or issuance was pending 
on, or after January 1, 1978; and
    (2) any other real property or improvement on such real property 
that is determined by the Secretary or by an Agreement State to be:
    (i) in the vicinity of the site; and
    (ii) contaminated with residual byproduct material.
    The term ``Agreement State'' means a State that is or has been a 
party to a discontinuance agreement with NRC under section 274 of the 
Atomic Energy Act (42 U.S.C. 2021) and thereafter issues licenses and 
establishes remedial action requirements pursuant to a counterpart to 
section 62 or 81 of the Atomic Energy Act under state law.
    The term ``Atomic Energy Act'' means Atomic Energy Act of 1954, as 
amended, (42 U.S.C. 2011 et seq.).
    The term ``byproduct material'' means the tailings or wastes 
produced by the extraction or concentration of uranium or thorium from 
any ore processed primarily for its source material content.
    The term ``claim for reimbursement'' is defined as the submission 
of an application for reimbursement in accordance with the requirements 
established in subpart C of this rule.
    The term ``costs of remedial action'' means costs incurred by a 
licensee prior to or after enactment of UMTRCA to perform 
decontamination, decommissioning, reclamation, or other remedial 
action. These costs must be substantiated by documentation in 
accordance with the requirements of Subpart C of the rule. Costs of 
remedial action may include, but are not limited to, ground water 
remediation, treatment or containment of contaminated soil, disposal of 
process wastes, removal actions, air pollution abatement measures, mill 
and equipment decommissioning, site monitoring, administrative 
activities directly related to remedial action, expenditures required 
to meet necessary regulatory standards, and other costs for activities 
necessary to comply with the requirements of UMTRCA or applicable 
requirements established by an Agreement State.
    The term ``decontamination, decommissioning, reclamation, and other 
remedial action'' means work performed which is necessary to comply 
with all applicable requirements of UMTRCA or, where appropriate, with 
applicable requirements established by an Agreement State.
    The term ``Department'' means the United States Department of 
Energy or its authorized agents.
    The term ``dry short ton of byproduct material'' is defined as the 
quantity of tailings generated from the extraction and processing of 
2,000 pounds of uranium or thorium ore-bearing rock.
    The term ``Federal reimbursement ratio'' means the ratio of 
Federal-related dry short tons of byproduct material to total dry short 
tons of byproduct material present at an active uranium or thorium 
processing site on October 24, 1992. The ratio shall be established by 
comparing Federal-related dry short tons of byproduct material to dry 
short tons of total byproduct material present at the site on October 
24, 1992, or by another means of attributing costs of remedial action 
to byproduct material generated as an incident of sales to the United 
States which the Department determines is more accurate than a ratio 
established using dry short tons.
    The term ``Federal-related dry short ton(s) of byproduct material'' 
is defined as the dry short ton(s) of byproduct material present at the 
site on October 24, 1992 that was generated as an incident of sales to 
the United States.
    The term ``generally accepted accounting principles'' means those 
principles established by the Financial Accounting Standards Board 
which encompass the conventions, rules, and procedures necessary to 
define accepted accounting practice at a particular time.
    The term ``inflation index'' is defined as the consumer price index 
for all urban consumers (CPI-U) as published by the Department of 
Commerce's Bureau of Labor Statistics.
    The term ``licensee'' includes any site owner licensed under 
section 62 or 81 of the Atomic Energy Act by either NRC, or an 
Agreement State.
    The terms ``maximum reimbursement amount or maximum reimbursement 
ceiling'' means the smaller of the following two quantities: (1) The 
amount obtained by multiplying the total cost of remedial action at the 
site, as determined in the approved plan for subsequent remedial 
action, by the Federal reimbursement ratio established for the site; or 
(2) $5.50, as adjusted for inflation, multiplied by the number of 
Federal-related dry short tons of byproduct material.
    The term ``NRC'' means the United States Nuclear Regulatory 
Commission or its predecessor agency.
    The term ``offsite disposal'' is defined as the decontamination, 
decommissioning, reclamation and other remedial action associated with 
disposal of byproduct material in a location not contiguous to the West 
Chicago Thorium Mill Site. This includes activities required by the 
State of Illinois, or NRC provided these activities are consistent with 
the ultimate removal of byproduct material from the West Chicago 
Thorium Mill Site.
    The term ``plan for subsequent remedial action'' is defined as a 
plan approved by the Department, which includes an estimated total cost 
for remedial action and all applicable requirements of remedial action 
established by NRC or an Agreement State to be performed after December 
31, 2002 at an active uranium or thorium processing site.
    The terms ``reclamation plan'' or ``site reclamation plan'' means a 
plan approved by NRC or an Agreement State that establishes the work 
necessary to comply with UMTRCA or where appropriate applicable 
Agreement State requirements.
    The term ``remedial action'' means decontamination, 
decommissioning, reclamation, and other remedial action at an active 
uranium or thorium processing site.
    The term ``Secretary'' means the Secretary of Energy or her 
designees.
    The term ``site owner'' is defined as a person that presently 
holds, or held in the past, any interest in land, including but not 
limited to a fee simple absolute, surface or subsurface ownership of 
mining claims, easements, and a right of access for the purposes of 
cleanup, or any other legal or equitable interest.
    The term ``tailings'' is defined as the remaining portion of a 
metal-bearing ore after some or all of the metal, such as uranium, has 
been extracted.
    The term ``the Fund'' means the Uranium Enrichment Decontamination 
and Decommissioning Fund established at the United States Department of 
Treasury pursuant to section 1801 of the Atomic Energy Act (42 U.S.C. 
2297g).
    The term ``Title X'' or ``the Act'' means Subtitle A of Title X of 
the Energy Policy Act of 1992, Pub. L. 102-486, 106 Stat. 2776 (42 
U.S.C. 2296a-1 et seq.).
    The term ``UMTRCA'' means the Uranium Mill Tailings Radiation 
Control Act of 1978, as amended (42 U.S.C. 7901 et seq.).
    The term ``United States'' means any executive department, 
commission, or agency, or other establishment in the executive branch 
of the Federal Government.
    The term ``written authorization'' means a written statement from 
either the NRC or an Agreement State that a licensee has performed in 
the past, or is authorized to perform in the future, a remedial action 
that is necessary to comply with the requirements of UMTRCA, or where 
appropriate with applicable Agreement State requirements.

B. Subpart B--Reimbursement Criteria

1. Section 765.10  Eligibility for Reimbursement
    Section 765.10 outlines the basic eligibility requirements 
governing reimbursement. In particular, as required by section 1001 of 
the Act (42 U.S.C. 2296a), Sec. 765.10 specifies that licensees shall 
be eligible for reimbursement of certain costs of remedial action, 
subject to the procedures and limitations specified in this rule.
    Section 765.10(a) of the rule provides that costs of remedial 
action attributable to byproduct material generated as an incident of 
sales to the United States are reimbursable. Section 765.10(b) states 
that prior to reimbursement, the Department must determine the number 
of total dry short tons of byproduct material present at the site on 
October 24, 1992 and Federal-related dry short tons of byproduct 
material. This section provides that these determinations are subject 
to the appeals procedures specified in the rule. Provisions are made 
concerning reimbursement in the event of an appeal.
2. Section 765.11  Reimbursable Costs
    Section 765.11 defines the requirements that a licensee must meet 
to be reimbursed for costs of remedial action at its active uranium or 
thorium processing site. Reimbursable costs of remedial action must be 
incurred prior to December 31, 2002, or be in accordance with a plan 
for subsequent remedial action approved by the Department. These costs 
of remedial action shall be reimbursed only if supported by reasonable 
documentation and approved by the Department in accordance with this 
rule. This documentation must demonstrate that the costs of remedial 
action incurred by a licensee are necessary to comply with applicable 
requirements of UMTRCA, or, where appropriate, with requirements 
established by an Agreement State. These requirements are contained in 
a reclamation plan, or other written authorization, issued or approved 
by NRC or an Agreement State, for work performed prior to or after 
enactment of UMTRCA. In addition, costs of remedial action are 
reimbursable only if the Department determines that they are 
attributable to byproduct material generated as an incident of sales to 
the United States and present at the site on October 24, 1992. These 
costs are equal to the total costs of remedial action at a site 
multiplied by the Federal reimbursement ratio established for the site, 
and approved by the Department for reimbursement.
    Section 765.11 limits the amount of reimbursement paid to any one 
licensee of an active uranium processing site to an amount not to 
exceed $5.50, as adjusted for inflation, multiplied by the number of 
Federal-related dry short tons of byproduct material. Total 
reimbursement in the aggregate of uranium site licensees is limited to 
$270 million, as adjusted for inflation. Reimbursement of costs of 
remedial action at the eligible thorium processing site may only be 
made for costs incurred for offsite disposal, and is limited to $40 
million, as adjusted for inflation.
3. Section 765.12  Inflation Index Adjustment Procedures
    Title X directs the Department to determine an appropriate 
inflation index by which to increase annually (1) The $5.50 per dry 
short ton of byproduct material limit on reimbursement to individual 
uranium site licensees, (2) the amount of $270 million authorized for 
payment to active uranium processing site licensees, (3) the amount of 
$40 million authorized for payment to the active thorium processing 
site licensee, and (4) the aggregate amount of $310 million authorized 
for payment to all licensees by Title X. As discussed elsewhere in this 
preamble, the Department intends to use the Consumer Price Index-Urban 
(CPI-U) as the appropriate inflation index for these adjustments. 
Section 765.12 of the rule provides that the    CPI-U will be used to 
adjust these amounts annually beginning in 1994, to account for 
inflation that occurred in the previous calendar year.

C. Subpart C--Procedures for Filing and Processing Reimbursement 
Requests

    Subpart C establishes the procedures for preparing and processing 
reimbursement claims. These procedures are designed to ensure that all 
information the Department needs to review a claim is made available to 
the Department, that claims are evaluated on a consistent basis, and 
that claims are processed in an efficient and equitable manner.
1. Section 765.20  Reimbursement Request Filing Procedures
    Section 765.20 of the rule establishes the filing procedures, 
content, and format that a licensee must follow when submitting a claim 
for reimbursement. Each claim for reimbursement of remedial action 
costs must be supported by reasonable documentation.
    A copy of the licensee's approved reclamation plan or other written 
authorization from NRC or an Agreement State must be submitted with the 
initial claim. Any revisions to this plan or authorization by NRC or an 
Agreement State must be submitted with the next claim prepared 
following approval of the revision. Each claim must provide a summary 
of all costs of remedial action for which reimbursement is claimed. The 
summary of costs must identify the pre- and post-UMTRCA costs 
associated with each major activity or requirement established by the 
site's reclamation plan or other written authorization.
    The claim for reimbursement must also include a summary of the 
documentation available to support the claim. All summary documentation 
used in support of a claim must be cross-referenced to the relevant 
page and activity of the licensee's reclamation plan or other written 
authorization for pre- and post-UMTRCA costs. All documentation used in 
support of a claim must be made accessible to the Department, and the 
documentation should demonstrate that each cost for which reimbursement 
is claimed was incurred for a pre- or post-UMTRCA specific activity 
included in a reclamation plan or other written authorization, approved 
by NRC or an Agreement State. Where available, invoices, payroll 
records, receipts, and other documents should be used by the licensee 
to support claims for reimbursement. The rule requires licensees to 
utilize documents that were prepared contemporaneous to the time the 
cost which they support was incurred, whenever these documents are 
available. Documents prepared substantially after the cost was incurred 
will be considered by the Department in reviewing claims if that 
documentation is the only means available to document costs for which 
reimbursement is sought. The Department may audit, or require a 
licensee to audit, any documentation used to support a claim on a case-
by-case basis and will exercise its discretion in determining the 
weight to accord to various supporting documents.
2. Section 765.21  Processing Reimbursement Requests
    Section 765.21 outlines the procedures to be followed by the 
Department in processing each claim for reimbursement.
    Sections 765.21 (a)-(c) provide that the Department will conduct a 
preliminary review of each claim within 60 days of the claim submittal 
deadline to determine if additional information is necessary. The 
Department may audit documentation used in support of the claim or 
request additional information or clarification necessary to verify any 
information provided by the licensee in a claim for reimbursement. In 
addition, the Department may request an informal conference with the 
applicant and, if necessary, with NRC or an Agreement State, to obtain 
information or clarification concerning any aspect of a claim. While 
the applicant is not required to provide additional information or 
clarification requested by the Department, a failure to do so may 
result in the denial of that portion of the claim for which information 
is requested.
    The Department will conduct a final review of all relevant 
information to make a reimbursement decision. The Department will 
notify the claimant of its decision regarding a claim within 10 days of 
completing the final review.
    Sections 765.21 (f)-(g) discuss the timing for processing and for 
payment of reimbursement requests. Reimbursements will be made on a 
prorated basis if there are insufficient funds available to reimburse 
all claims in full. Amounts not initially disbursed will be paid on a 
prorated basis, until satisfied in full, as funds become available. All 
outstanding, approved claims will be paid on the same prorated basis, 
regardless of when the claim was submitted or approved. Payments will 
be provided from the Fund, as required by the Act. Payment or 
obligation of funds shall be subject to the requirements of the Anti-
Deficiency Act (31 U.S.C. 1341) as specified by Sec. 765.21(g) of this 
rule. Following each annual appropriation by Congress, the Department 
will issue a Federal Register notice informing licensees of the 
availability of funds for reimbursement and whether the Department 
anticipates that approved claims for that year may be subject to 
prorated payment.
    Section 765.21(h) requires an officer or other authorized official 
of a licensee to certify the accuracy of a claim for reimbursement, and 
subjects the individual making the certification to Federal statutes 
which provide civil and criminal penalties for making false claims.
3. Section 765.22  Appeals Procedures
    Section 765.22 requires a licensee to utilize the Department's 
administrative appeals process (see 10 CFR part 205, subpart H) to 
appeal any Department determination required by this rule, including 
decisions that: (1) Determine tailings quantities of dry short tons of 
byproduct material or the Federal reimbursement ratio; (2) deny, in 
whole or in part, any claim for reimbursement; or (3) require 
modification of or reject a plan for subsequent remedial action. Any 
appeal must be filed with the Department's Office of Hearing and 
Appeals (hereinafter ``OHA'') within 45 days after the licensee 
receives notice, actual or constructive, (i.e., by a publication in the 
Federal Register) of the Department's determination. OHA is a quasi-
judicial body that reports to the Secretary of Energy and, except as 
otherwise provided by law, is responsible for conducting informal 
adjudicative proceedings of the Department, where there is a provision 
for separation of function. In connection with these duties, OHA holds 
hearings, receives evidence, develops a record, and issues a final 
determination, which is the Department's final decision, subject to 
review in the federal courts. A licensee must file an appeal in order 
to exhaust its administrative remedies, and the receipt of an OHA 
decision is a prerequisite to seeking judicial review of any 
determination made under this Part.
4. Section 765.23  Annual Report
    The Department will prepare an annual report, available to the 
public, summarizing pertinent information from the preceding year 
regarding the reimbursement program. The information may include, but 
not be limited to, individual and aggregate reimbursement claims 
approved and paid, approval of plans for subsequent remedial action, 
completion of particular elements of remedial action at active sites, 
total amounts paid and remaining for reimbursement, and other 
information. Licensees should be aware that any information submitted 
in a claim for reimbursement may be subject to public disclosure, 
through the annual report as well as by specific request, in accordance 
with the Freedom of Information Act (5 U.S.C. 552) and all other 
applicable requirements.

Subpart D--Additional Reimbursement Procedures

1. Section 765.30  Reimbursement of Costs Incurred in Accordance with a 
Plan for Subsequent Remedial Action
    Section 765.30 of Subpart D establishes procedures for 
reimbursement of costs incurred in accordance with a plan for 
subsequent remedial action approved by the Department.
    Reimbursement of costs incurred after December 31, 2002 shall be 
subject to the submission by the licensee of a plan for subsequent 
remedial action and approval of the plan by the Department. Each 
licensee seeking reimbursement of costs of remedial action to be 
incurred after December 31, 2002 shall submit their plan to the 
Department for its review and approval at any time between January 1, 
2000 and December 31, 2001. The plan must include an estimated total 
cost and schedule for remedial action as well as all applicable 
requirements of remedial action established by NRC or an Agreement 
State to be performed after December 31, 2002 at an active uranium or 
thorium processing site. Each licensee will be required to provide 
reasonable documentation or other information to support its estimate 
of costs to be incurred.
    The Department may approve, approve with modification, or reject 
any plan submitted by a licensee. At any time following submittal of a 
plan, the Department may request additional information from the 
licensee, and may consult with NRC or an Agreement State concerning 
remaining remedial action requirements contained in the site's approved 
reclamation plan. If the Department rejects a plan, the licensee may 
file an appeal pursuant to Sec. 765.22 or submit revised plans for 
review by the Department, until a plan is approved, or until September 
30, 2002, whichever occurs first. The Department has established 
September 30, 2002, as the deadline for submission of any potential 
revised plans so that the Department will have sufficient time to 
review the submittals and designate available amounts on deposit in the 
Fund for reimbursement by December 31, 2002 consistent with section 
1001(b)(1)(B)(ii) of the Act (42 U.S.C. 2296a(b)(1)(B)(ii)). A failure 
by a licensee to receive approval from the Department of a plan for 
subsequent remedial action prior to December 31, 2002 will preclude 
that licensee from receiving any reimbursement for costs incurred after 
that date. Costs incurred in accordance with the requirements of a plan 
for subsequent remedial action, and approved by the Department, will be 
reimbursed in an amount equal to the approved cost multiplied by the 
site's Federal reimbursement ratio, until such time as the Department 
determines that its obligation under Title X to reimburse the licensee 
has been satisfied.
2. Section 765.31  Designation of Funds Available for Subsequent 
Remedial Action
    Section 765.31 establishes procedures for reimbursement of costs 
incurred in accordance with an approved plan(s) for subsequent remedial 
action.
    Upon approval of each plan submitted by a licensee, and subject to 
the availability of appropriated funds and the requirements of the 
Anti-Deficiency Act (31 U.S.C. 1341), the Department will designate 
amounts deposited in the Fund at the United States Department of 
Treasury, established pursuant to section 1801 of the Atomic Energy Act 
(42 U.S.C. 2297g), to reimburse a licensee for estimated costs of 
remedial action in implementing a Department-approved plan for 
subsequent remedial action.
3. Section 765.32  Reimbursement of Excess Funds
    Section 1001(b)(2)(E)(i) of the Act (42 U.S.C. 2296a(b)(2)(B)(i)) 
authorizes the Department to determine, as of July 31, 2005, whether 
the aggregate amount authorized to be appropriated by section 1003 of 
the Act (42 U.S.C. 2296a-2) when considered with the $5.50 per dry 
short ton limit on reimbursement, as adjusted for inflation, for active 
uranium processing site licensees, exceeds the amount reimbursable to 
licensees under section 1001(b)(2) of the Act (42 U.S.C. 2296a(b)(2)). 
If any active uranium processing site licensee incurs reimbursable 
costs in excess of $5.50 per dry short ton limit on reimbursement, and 
the Department has determined that excess funds exist as of July 31, 
2005, section 1001(b)(2)(E)(ii) of the Act (42 U.S.C. 
2296a(b)(2)(E)(ii)) authorizes the Department to provide reimbursement 
of those costs on a prorated basis to the extent funds are available.
    Section 765.32 outlines the procedures that would govern any 
additional reimbursement.

IV. Review Under Executive Order 12866

    Today's regulatory action has been determined not to be a 
``significant regulatory action'' under Executive Order 12866, 
``Regulatory Planning and Review,'' (58 FR 51735, October 4, 1993). 
Accordingly, today's action was not subject to review under the 
Executive Order by the Office of Information and Regulatory Affairs.

V. Review Under the Regulatory Flexibility Act

    This rule was reviewed under the Regulatory Flexibility Act, 5 
U.S.C. 601 et seq. The Regulatory Flexibility Act requires that a 
regulatory flexibility analysis be performed for all rules that are 
likely to have ``significant impact on a substantial number of small 
entities.'' This rule involves reimbursement for costs of remedial 
action at active uranium and thorium processing sites. The number of 
potentially eligible applicants is very limited. Because this rule 
provides for reimbursement of funds authorized by Title X, it does not 
pose any adverse effect on the private sector economy or small 
entities, and in fact may provide a benefit to small entities located 
near active processing sites. The Department, therefore, certifies that 
this rule will not have a significant impact on a substantial number of 
small entities.

VI. Review Under the Paperwork Reduction Act

    The information collection requirements in this rule have been 
approved by the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act (44 U.S.C. 3501 et seq.) and have been assigned 
OMB control number 1910-1400.

VII. Review Under the National Environmental Policy Act

    This rule establishes procedures for the reimbursement of eligible 
remedial action costs incurred by licensees at active uranium or 
thorium processing sites. Implementation of this rule will result in 
cost reimbursement payments to eligible licensees, but will not affect 
the legally required cleanup of the sites or result in any other 
environmental impacts. The Department has therefore determined that 
this rule is covered under the Categorical Exclusion found at paragraph 
A6. of Appendix A to subpart D, 10 CFR part 1021, which applies to the 
establishment of procedural rulemakings such as procedures for the 
review and approval of applications for grants and cooperative 
agreements. Accordingly, neither an environmental assessment nor an 
environmental impact statement is required.

VIII. Review Under Executive Order 12612

    This rule does not have a substantial direct effect on the States, 
the relationship between the States and the Federal Government, or the 
distribution of power and responsibilities among various levels of 
government. Therefore, no federalism assessment under Executive Order 
12612 is required.

IX. Review Under Executive Order 12778

    Section 2 of Executive Order 12778 instructs agencies to adhere to 
certain requirements in promulgating new regulations and reviewing 
existing regulations. These requirements, set forth in sections 2(a) 
and (b), include eliminating drafting errors and needless ambiguity, 
drafting the regulations to minimize litigation, providing clear and 
certain legal standards for affected conduct, and promoting 
simplification and burden reduction. Agencies are also instructed to 
make every reasonable effort to ensure that the rule clearly specifies 
any preemptive effect, effect on existing Federal law or regulation, 
and retroactive effect; describes any administrative proceedings 
available prior to judicial review; any provisions for the exhaustion 
of administrative proceedings; and defines key terms. The Department 
certifies that today's rule meets the requirements of sections 2(a) and 
(b) of Executive Order 12778.

List of Subjects in 10 CFR Part 765

    Radioactive materials, Reclamation, Reporting and recordkeeping 
requirements, Uranium.

    Issued in Washington, DC, on this 10th day of May 1994.
Thomas P. Grumbly,
Assistant Secretary for Environmental Management.

    For the reasons set out in the Preamble, Chapter III of Title 10 of 
the Code of Federal Regulations is amended by adding a new part 765 to 
read as follows:

PART 765--REIMBURSEMENT FOR COSTS OF REMEDIAL ACTION AT ACTIVE 
URANIUM AND THORIUM PROCESSING SITES

Subpart A--General

Sec.
765.1  Purpose.
765.2  Scope and applicability.
765.3  Definitions.

Subpart B--Reimbursement Criteria

765.10  Eligibility for reimbursement.
765.11  Reimbursable costs.
765.12  Inflation index adjustment procedures.
Subpart C--Procedures for Submitting and Processing Reimbursement 
Requests
765.20  Procedures for submitting reimbursement claims.
765.21  Procedures for processing reimbursement claims.
765.22  Appeals procedures.
765.23  Annual report.

Subpart D--Additional Reimbursement Procedures

765.30  Reimbursement of costs incurred in accordance with a plan 
for subsequent remedial action.
765.31  Designation of funds available for subsequent remedial 
action.
765.32  Reimbursement of excess funds.

    Authority: Sections 1001-1004 of Pub. L. No. 102-486, 106 Stat. 
2776 (42 U.S.C. 2296a et seq.).

Subpart A--General


765.1  Purpose.

    The provisions of this Part establish regulatory requirements 
governing reimbursement for certain costs of remedial action at active 
uranium or thorium processing sites as specified by Subtitle A of Title 
X of the Energy Policy Act of 1992. These regulations are authorized by 
section 1002 of the Act (42 U.S.C. 2296a-1), which requires the 
Secretary to issue regulations governing the reimbursements.


765.2  Scope and applicability.

    (a) This Part establishes policies, criteria, and procedures 
governing reimbursement of certain costs of remedial action incurred by 
licensees at active uranium or thorium processing sites as a result of 
byproduct material generated as an incident of sales to the United 
States.
    (b) Costs of remedial action at active uranium or thorium 
processing sites are borne by persons licensed under section 62 or 81 
of the Atomic Energy Act (42 U.S.C. 2092, 2111), either by NRC or an 
Agreement State pursuant to a counterpart to section 62 or 81 of the 
Atomic Energy Act, under State law, subject to the exceptions and 
limitations specified in this Part.
    (c) The Department shall, subject to the provisions specified in 
this part, reimburse a licensee, of an active uranium or thorium 
processing site for the portion of the costs of remedial action as are 
determined by the Department to be attributable to byproduct material 
generated as an incident of sales to the United States and either 
incurred by the licensee not later than December 31, 2002, or incurred 
by the licensee in accordance with a plan for subsequent remedial 
action approved by the Department.
    (d) Costs of remedial action are reimbursable under Title X for 
decontamination, decommissioning, reclamation, and other remedial 
action, provided that claims for reimbursement are supported by 
reasonable documentation as specified in Subpart C of this Part.
    (e) Except as authorized by Sec. 765.32, the total amount of 
reimbursement paid to any licensee of an active uranium processing site 
shall not exceed $5.50 multiplied by the number of Federal-related dry 
short tons of byproduct material. This total amount shall be adjusted 
for inflation pursuant to section 765.12.
    (f) The total amount of reimbursement paid to all active uranium 
processing site licensees shall not exceed $270 million. This total 
amount shall be adjusted for inflation by applying the CPI-U, as 
provided by Sec. 765.12.
    (g) The total amount of reimbursement paid to the licensee of the 
active thorium processing site shall not exceed $40 million, as 
adjusted for inflation by applying the CPI-U as provided by 
Sec. 765.12.
    (h) Reimbursement of licensees for costs of remedial action will 
only be made for costs that are supported by reasonable documentation 
as required by Sec. 765.20 and claimed for reimbursement by a licensee 
in accordance with the procedures established by Subpart C of this 
Part.
    (i) The $310 million aggregate amount authorized to be appropriated 
under section 1003(a) of the Act (42 U.S.C. 2296a-2(a)) shall be 
adjusted for inflation by applying the CPI-U as provided by 
Sec. 765.12, and shall be provided from the Fund.


Sec. 765.3  Definitions.

    For the purposes of this Part, the following terms are defined as 
follows:
    Active uranium or thorium processing site or active processing site 
means:
    (1) any uranium or thorium processing site, including the mill, 
containing byproduct material for which a license, issued either by NRC 
or by an Agreement State, for the production at a site of any uranium 
or thorium derived from ore--
    (i) was in effect on January 1, 1978;
    (ii) was issued or renewed after January 1, 1978; or
    (iii) for which an application for renewal or issuance was pending 
on, or after January 1, 1978; and
    (2) any other real property or improvement on such real property 
that is determined by the Secretary or by an Agreement State to be:
    (i) in the vicinity of such site; and
    (ii) contaminated with residual byproduct material.
    Agreement State means a State that is or has been a party to a 
discontinuance agreement with NRC under section 274 of the Atomic 
Energy Act (42 U.S.C. 2021) and thereafter issues licenses and 
establishes remedial action requirements pursuant to a counterpart to 
section 62 or 81 of the Atomic Energy Act under state law.
    Atomic Energy Act means the Atomic Energy Act of 1954, as amended, 
(42 U.S.C. 2011 et seq.).
    Byproduct material means the tailings or wastes produced by the 
extraction or concentration of uranium or thorium from any ore 
processed primarily for its source material content.
    Claim for reimbursement means the submission of an application for 
reimbursement in accordance with the requirements established in 
Subpart C of this Part.
    Costs of remedial action means costs incurred by a licensee prior 
to or after enactment of UMTRCA to perform decontamination, 
decommissioning, reclamation, and other remedial action. These costs 
may include but are not necessarily limited to expenditures for work 
necessary to comply with applicable requirements to conduct groundwater 
remediation, treatment or containment of contaminated soil, disposal of 
process wastes, removal actions, air pollution abatement measures, mill 
and equipment decommissioning, site monitoring, administrative 
activities, expenditures required to meet necessary regulatory 
standards, or other requirements established by NRC, or an Agreement 
State. Costs of remedial action must be supported by reasonable 
documentation in accordance with the requirements of Subpart C of this 
Part.
    Decontamination, decommissioning, reclamation, and other remedial 
action means work performed which is necessary to comply with all 
applicable requirements of UMTRCA or, where appropriate, with 
applicable requirements established by an Agreement State.
    Department means the United States Department of Energy or its 
authorized agents.
    Dry short tons of byproduct material means the quantity of tailings 
generated from the extraction and processing of 2,000 pounds of uranium 
or thorium ore-bearing rock.
    Federal reimbursement ratio means the ratio of Federal-related dry 
short tons of byproduct material to total dry short tons of byproduct 
material present at an active uranium or thorium processing site on 
October 24, 1992. The ratio shall be established by comparing Federal-
related dry short tons of byproduct material to total dry short tons of 
byproduct material present at the site on October 24, 1992, or by 
another means of attributing costs of remedial action to byproduct 
material generated as an incident of sales to the United States which 
the Department determines is more accurate than a ratio established 
using dry short tons of byproduct material.
    Federal-related dry short tons of byproduct material means dry 
short tons of byproduct material that was present at an active uranium 
or thorium processing site on October 24, 1992, and was generated as an 
incident of uranium or thorium sales to the United States.
    Generally accepted accounting principles means those principles 
established by the Financial Accounting Standards Board which encompass 
the conventions, rules, and procedures necessary to define accepted 
accounting practice at a particular time.
    Inflation index means the consumer price index for all urban 
consumers (CPI-U) as published by the Department of Commerce's Bureau 
of Labor Statistics.
    Licensee means a site owner licensed under section 62 or 81 of the 
Atomic Energy Act (42 U.S.C. 2092, 2111) by NRC, or an Agreement State, 
for any activity at an active uranium or thorium processing site which 
results, or has resulted, in the production of byproduct material.
    Maximum reimbursement amount or maximum reimbursement ceiling means 
the smaller of the following two quantities:
    (1) The amount obtained by multiplying the total cost of remedial 
action at the site, as determined in the approved plan for subsequent 
remedial action, by the Federal reimbursement ratio established for the 
site; or
    (2) $5.50, as adjusted for inflation, multiplied by the number of 
Federal-related dry short tons of byproduct material.
    NRC means the United States Nuclear Regulatory Commission or its 
predecessor agency.
    Offsite disposal means the disposal, and activities that contribute 
to the disposal, of byproduct material in a location that is not 
contiguous to the West Chicago Thorium Mill Site located in West 
Chicago, Illinois, in accordance with a plan approved by, or other 
written authorization from, the State of Illinois or NRC provided the 
activities are consistent with the ultimate removal of byproduct 
material from the West Chicago Thorium Mill Site.
    Plan for subsequent remedial action means a plan approved by the 
Department which includes an estimated total cost and schedule for 
remedial action, and all applicable requirements of remedial action 
established by NRC or an Agreement State to be performed after December 
31, 2002 at an active uranium or thorium processing site.
    Reclamation plan or site reclamation plan means a plan, which has 
been approved by NRC or an Agreement State, for remedial action at an 
active processing site that establishes the work necessary to comply 
with applicable requirements of UMTRCA, or where appropriate with 
requirements established by an Agreement State.
    Remedial action means decontamination, decommissioning, 
reclamation, and other remedial action at an active uranium or thorium 
processing site.
    Secretary means the Secretary of Energy or her designees.
    Site owner means a person that presently holds, or held in the 
past, any interest in land, including but not limited to a fee simple 
absolute, surface or subsurface ownership of mining claims, easements, 
and a right of access for the purposes of cleanup, or any other legal 
or equitable interest.
    Tailings means the remaining portion of a metal-bearing ore after 
some or all of the metal, such as uranium, has been extracted.
    The Fund means the Uranium Enrichment Decontamination and 
Decommissioning Fund established at the United States Department of 
Treasury pursuant to section 1801 of the Atomic Energy Act (42 U.S.C. 
2297g).
    Title X or ``the Act'' means Subtitle A of Title X of the Energy 
Policy Act of 1992, Public Law 102-486, 106 Stat. 2776 (42 U.S.C. 
2296a-1 et seq.).
    UMTRCA means the Uranium Mill Tailings Radiation Control Act of 
1978, as amended (42 U.S.C. 7901 et seq.).
    United States means any executive department, commission, or 
agency, or other establishment in the executive branch of the Federal 
Government.
    Written Authorization means a written statement from either the NRC 
or an Agreement State that a licensee has performed in the past, or is 
authorized to perform in the future, a remedial action that is 
necessary to comply with the requirements of UMTRCA or, where 
appropriate, the requirements of an Agreement State.

Subpart B--Reimbursement Criteria


Sec. 765.10  Eligibility for reimbursement.

    (a) Any licensee of an active uranium or thorium processing site 
that has incurred costs of remedial action for the site that are 
attributable to byproduct material generated as an incident of sales to 
the United States shall be eligible for reimbursement of these costs, 
subject to the procedures and limitations specified in this Part.
    (b) Prior to reimbursement of costs of remedial action incurred by 
a licensee, the Department shall make a determination regarding the 
total quantity of dry short tons of byproduct material, and the 
quantity of Federal-related dry short tons of byproduct material 
present on October 24, 1992 at the licensee's active processing site. A 
claim for reimbursement from a site for which a determination is made 
will be evaluated individually. If a licensee does not concur with the 
Department's determination regarding the quantity of dry short tons of 
byproduct material present at the site, the licensee may appeal the 
Department's determination in accordance with Sec. 765.22 of this part. 
The Department's determination shall be used to determine that portion 
of an approved claim for reimbursement submitted by the licensee which 
shall be reimbursed, unless or until the determination is overturned on 
appeal. If the outcome of an appeal requires a change in the 
Department's initial determination, the Department will adjust any 
payment previously made to the licensee to reflect the change.


Sec. 765.11  Reimbursable costs.

    (a) Costs for which a licensee may be reimbursed must be for 
remedial action that a licensee demonstrates is attributable to 
byproduct material generated as an incident of sales to the United 
States, as determined by the Department. These costs are equal to the 
total costs of remedial action at a site multiplied by the Federal 
reimbursement ratio established for the site. These costs must be 
incurred in the performance of activities, prior to or after enactment 
of UMTRCA, and required by a plan, portion thereof, or other written 
authorization, approved by NRC or by an Agreement State. Costs of 
remedial action shall be reimbursable only if approved by the 
Department in accordance with the provisions of this part.
    (b) In addition, costs of remedial action incurred by a licensee 
after December 31, 2002 must be in accordance with a plan for 
subsequent remedial action approved by the Department as specified in 
Sec. 765.30.
    (c) Total reimbursement of costs of remedial action incurred at an 
active processing site that are otherwise reimbursable pursuant to the 
provisions of this Part shall be limited as follows:
    (1) Reimbursement of costs of remedial action to active uranium 
processing site licensees shall not exceed $5.50, as adjusted for 
inflation, multiplied by the number of Federal-related dry short tons 
of byproduct material.
    (2) Aggregate reimbursement of costs of remedial action incurred at 
all active uranium processing sites shall not exceed $270 million. This 
aggregate amount shall be adjusted for inflation pursuant to 
Sec. 765.12; and
    (3) Reimbursement of costs of remedial action at the active thorium 
processing site shall be limited to costs incurred for offsite disposal 
and shall not exceed $40 million. This amount shall be adjusted for 
inflation pursuant to Sec. 765.12.
    (d) Notwithstanding the Title X requirement that byproduct material 
must be located at an active processing site on October 24, 1992, 
byproduct material moved from the Edgemont Mill in Edgemont, South 
Dakota, to a disposal site as a result of remedial action, shall be 
eligible for reimbursement in accordance with all applicable 
requirements of this part.


Sec. 765.12  Inflation index adjustment procedures.

    (a) The amounts of $5.50 (as specified in Sec. 765.2(e) of this 
rule) $270 million (as specified in Sec. 765.2(f) of this rule), $40 
million (as specified in Sec. 765.2(g) of this rule) and $310 million 
(as specified in Sec. 765.2(i) of this rule) shall be adjusted for 
inflation as provided by this section.
    (b) To make adjustments for inflation to the amounts specified in 
paragraph (a) of this section, the Department shall apply the CPI-U to 
these amounts annually, beginning in 1994, using the CPI-U as published 
by the Bureau of Labor Statistics within the Department of Commerce for 
the preceding calendar year.
    (c) The Department shall adjust annually, using the CPI-U as 
defined in this Part, amounts paid to an active uranium processing site 
licensee for purposes of comparison with the $5.50 per dry short ton 
limit on reimbursement as adjusted for inflation.

Subpart C--Procedures for Submitting and Processing Reimbursement 
Claims


Sec. 765.20  Procedures for submitting reimbursement claims.

    (a) All costs of remedial action for which reimbursement is claimed 
must be supported by reasonable documentation as specified in this 
subpart. The Department reserves the right to deny any claim for 
reimbursement, in whole or in part, that is not submitted in accordance 
with the requirements of this subpart.
    (b) The licensee shall provide a copy of the approved site 
reclamation plan or other written authorization from NRC or an 
Agreement State upon which claims for reimbursement are based, with the 
initial claim submitted. Any revision or modification made to the plan 
or other written authorization, which is approved by NRC or an 
Agreement State, shall be included by the licensee in the next claim 
submitted to the Department following that revision or modification. 
This reclamation plan or other written authorization, as modified or 
revised, shall serve as the basis for the Department's evaluation of 
all claims for reimbursement submitted by a licensee.
    (c) Each submitted claim shall provide a summary of all costs of 
remedial action for which reimbursement is claimed. This summary shall 
identify the costs of remedial action associated with each major 
activity or requirement established by the site's reclamation plan or 
other written authorization. In addition, each claim shall provide a 
summary of the documentation relied upon by the licensee in support of 
each cost category for which reimbursement is claimed.
    (d) Documentation used to support a reimbursement claim must 
demonstrate that the costs of remedial action for which reimbursement 
is claimed were incurred specifically for activities specified in the 
site's reclamation plan, or otherwise authorized by NRC or an Agreement 
State. Summary documentation used in support of a claim must be cross-
referenced to the relevant page and activity of the licensee's 
reclamation plan, or other written authorization approved by NRC or an 
Agreement State.
    (1) Documentation prepared contemporaneous to the time the cost was 
incurred should be used when available. The documentation should 
identify the date or time period for which the cost was incurred, the 
activity for which the cost was incurred, and the reclamation plan 
provision or other written authorization to which the cost relates. 
Where available, each claim should be supported by receipts, invoices, 
pay records, or other documents that substantiate that each specific 
cost for which reimbursement is claimed was incurred for work that was 
necessary to comply with UMTRCA or applicable Agreement State 
requirements.
    (2) Documentation not prepared contemporaneous to the time the cost 
was incurred, or not directly related to activities specified in the 
reclamation plan or other written authorization, may be used in support 
of a claim for reimbursement provided that the licensee determines the 
documentation is the only means available to document costs for which 
reimbursement is sought.
    (e) The Department may audit, or require the licensee to audit, any 
documentation used to support a claim on a case-by-case basis and may 
approve, approve in part, or deny reimbursement of any claim in 
accordance with the requirements of this part. Documentation relied 
upon by a licensee in support of a claim for reimbursement shall be 
made available to the Department and retained by the licensee until 4 
years after final payment of a claim is made by the Department.
    (f) Each licensee should utilize generally accepted accounting 
principles consistently throughout the claim. These accounting 
principles, underlying assumptions, and any other information necessary 
for the Department to evaluate the claim shall be set forth in each 
claim.
    (g) Following each annual appropriation by Congress, the Department 
will issue a Federal Register Notice announcing:

(1) A claim submission deadline for that fiscal year;
(2) Availability of funds for reimbursement of costs of remedial 
action;
(3) Whether the Department anticipates that approved claims for that 
fiscal year may be subject to prorated payment;
(4) Any changes in the Federal reimbursement ratio or maximum 
reimbursement ceiling for any active uranium or thorium processing 
site;
(5) Any revision in the per dry short ton limit on reimbursement for 
all active uranium processing sites; and
(6) Any other relevant information.

    (h) A licensee shall certify, with respect to any claim submitted 
by it for reimbursement, that the work was completed as described in an 
approved reclamation plan or other authorization. In addition, the 
licensee shall certify that all costs for which reimbursement is 
claimed, all documentation relied upon in support of its costs, and all 
statements or representations made in the claim are complete, accurate, 
and true. The certification shall be signed by an officer or other 
official of the licensee with knowledge of the contents of the claim 
and authority to represent the licensee in making the certification. 
Any knowingly false or frivolous statements or representations may 
subject the individual to penalties under the False Claims Act, 
sections 3729 through 3731 of title 31 United States Code, or any other 
applicable statutory authority; and criminal penalties under sections 
286, 287, 1001 and 1002 of title 18, United States Code, or any other 
applicable statutory authority.
    (i) All claims for reimbursement submitted to the Department shall 
be sent by registered or certified mail, return receipt requested. The 
Department reserves all rights under applicable law to recover any 
funds paid to licensees which an audit finds to not meet the 
requirements of this part.


Sec. 765.21  Procedures for processing reimbursement claims.

    (a) The Department will conduct a preliminary review of each claim 
within 60 days after the claim submission deadline announced in the 
Federal Register Notice specified in Sec. 765.20(g) to determine the 
completeness of each claim. Payments from the Fund to active uranium or 
thorium processing site licensees for approved costs of remedial action 
will be made simultaneously by the Department within 1 year of the 
claim submission deadline.
    (b) After completing the preliminary review specified in paragraph 
(a) of this section, the Department may audit, or require the licensee 
to audit, any documentation used in support of such claim, request the 
licensee to provide additional information, or request the licensee to 
provide other clarification determined by the Department to be 
necessary to complete its evaluation of the claim. In addition, the 
Department reserves the right to conduct an inspection of the site to 
verify any information provided by the licensee in a claim for 
reimbursement, or in support thereof. Any information requested by the 
Department, if provided, must be submitted by the claimant within 60 
days of receipt of the request unless the Department specifies in 
writing that additional time is provided.
    (c) At any time during the review of a claim, the Department may 
request an informal conference with a licensee to obtain further 
information or clarification on any unresolved issue pertaining to the 
claim. While the licensee is not required to provide additional 
clarification requested by the Department, a failure to do so may 
result in the denial of that portion of the claim for which information 
is requested.
    (d) Based upon the claim submitted and any additional information 
received by the Department, including any audit or site inspection if 
conducted, the Department shall complete a final review of all relevant 
information prior to making a reimbursement decision. When the 
Department determines it is not clear that an activity for which 
reimbursement is claimed was necessary to comply with UMTRCA or where 
appropriate, with applicable Agreement State requirements, the 
Department may consult with the appropriate regulatory authorities.
    (e) A written decision regarding the Department's determination to 
approve, approve in part, or deny a claim will be provided to the 
licensee within 10 days of completion of the final review.
    (f) If the Department determines that insufficient funds are 
available at any time to provide for complete payment of all 
outstanding approved claims, reimbursements of approved claims will be 
made on a prorated basis. A prorated payment of all outstanding 
approved claims for reimbursement, or any unpaid portion thereof, shall 
be made on the basis of the total amount of all outstanding approved 
claims, regardless of when the claims were submitted or approved.
    (g) Notwithstanding the provisions of paragraph (f) of this 
section, or any other provisions of this part, any requirement for the 
payment or obligation of funds by the Department established by this 
part shall be subject to the availability of appropriated funds, and no 
provision herein shall be interpreted to require obligation or payment 
of funds in violation of the Anti-Deficiency Act (31 U.S.C. 1341).


Sec. 765.22  Appeals procedures.

    (a) Any appeal by a licensee of any Department determination 
subject to the requirements of this part, shall invoke the appeals 
process specified in paragraph (b) of this section.
    (b) A licensee shall file an appeal of any Department determination 
subject to the requirements of this part with the Office of Hearings 
and Appeals, U.S. Department of Energy, 1000 Independence Avenue, SW., 
Washington, DC 20585. Any appeal must be filed within 45 days from the 
date the licensee received notice, actual or constructive (i.e., 
publication in the Federal Register), of the Department's 
determination. Appeals will be governed by, and must comply in full 
with, the procedures set forth in 10 CFR part 205, subpart H. The 
decision of the Office of Hearings and Appeals shall be the final 
decision of the Department. A licensee must file an appeal in order to 
exhaust its administrative remedies, and the receipt of an appellate 
decision is a prerequisite to seeking judicial review of any 
determination made under this part.


Sec. 765.23  Annual report.

    The Department shall prepare annually a report summarizing 
pertinent information concerning claims submitted in the previous 
calendar year, the status of the Department's review of the claims, 
determinations made regarding the claims, amounts paid for claims 
approved, and other relevant information concerning this reimbursement 
program. The report will be available to all interested parties upon 
written request to the Department's Uranium Mill Tailings Remedial 
Action Project Office, 2155 Louisiana NE., suite 10000, Albuquerque, NM 
87110 and will also be available in the Department's Freedom of 
Information Reading room, 1000 Independence Avenue SW., Washington, DC.

Subpart D--Additional Reimbursement Procedures


Sec. 765.30  Reimbursement of costs incurred in accordance with a plan 
for subsequent remedial action.

    (a) This section establishes procedures governing reimbursements of 
costs of remedial action incurred in accordance with a plan for 
subsequent remedial action approved by the Department as provided in 
this section. Costs otherwise eligible for reimbursement in accordance 
with the terms of this part and incurred in accordance with the plan 
shall be reimbursed in accordance with the provisions of subpart D and 
subpart C. In the event there is an inconsistency between the 
requirements of subpart D and subpart C, the provisions of subpart D 
shall govern reimbursement of such costs of remedial action.
    (b) A licensee who anticipates incurring costs of remedial action 
after December 31, 2002 may submit a plan for subsequent remedial 
action. This plan may be submitted at any time after January 1, 2000, 
but no later than December 31, 2001. Reimbursement of costs of remedial 
action incurred after December 31, 2002 shall be subject to the 
approval of this plan by the Department. This plan shall describe:
    (1) All applicable requirements established by NRC pursuant to 
UMTRCA, or where appropriate, by the requirements of an Agreement 
State, included in a reclamation plan approved by NRC or an Agreement 
State which have not yet been satisfied in full by the licensee, and
    (2) The total cost of remedial action required at the site, 
together with all necessary supporting documentation, segregated into 
actual costs incurred to date, costs incurred or expected to be 
incurred prior to December 31, 2002 but not yet approved for 
reimbursement, and anticipated future costs.
    (c) The Department shall review the plan for subsequent remedial 
action to verify conformance with the NRC- or Agreement State-approved 
reclamation plan or other written authorization, and to determine the 
reasonableness of anticipated future costs, and shall approve, approve 
with suggested modifications, or reject the plan. During its review, 
the Department may request additional information from the licensee to 
clarify or provide support for any provision or estimate contained in 
the plan. The Department may also consult with NRC or an Agreement 
State concerning any provision or estimate contained in the plan. Upon 
approval, approval with modifications, or rejection of a plan, the 
Department shall inform and explain to the licensee its decision.
    (d) If the Department rejects a plan for subsequent remedial action 
submitted by a licensee, the licensee may appeal the Department's 
rejection or prepare and submit a revised plan. The licensee may 
continue to submit revised plans for subsequent remedial action until 
the Department approves a plan, or September 30, 2002, whichever occurs 
first. A failure by a licensee to receive approval from the Department 
of a plan prior to December 31, 2002 will preclude that licensee from 
receiving any reimbursement for costs of remedial action incurred after 
that date.
    (e) The Department shall determine, in approving a plan for 
subsequent remedial action, the maximum reimbursement amount for which 
the licensee may be eligible. This maximum reimbursement amount shall 
be the smaller of the following two quantities:
    (1) The amount obtained by multiplying the total cost of remedial 
action at the site, as determined in the approved plan for subsequent 
remedial action, by the Federal reimbursement ratio established for 
such site; or
    (2) $5.50, as adjusted for inflation, multiplied by the number of 
Federal-related dry short tons of byproduct material. The Department 
shall subtract from the maximum reimbursement amount any reimbursement 
already approved to be paid to the licensee. The resulting sum shall be 
the potential additional reimbursement to which the licensee may be 
entitled.


Sec. 765.31  Designation of funds available for subsequent remedial 
action.

    (a) Upon the Department's approval of each plan for subsequent 
remedial action submitted by a licensee, the Department will designate 
specific amounts on deposit in the Fund for reimbursement, subject to 
the availability of appropriated funds as specified in Sec. 765.21(g). 
If insufficient funds are available at the time of approval of a plan 
for subsequent remedial action to provide for reimbursement of the 
total estimated costs, the designation of specific amounts on deposit 
in the Fund for reimbursement will be made on a prorated basis. Any 
remaining balance will be designated for reimbursement at the time 
additional funds become available.
    (b) The Department shall authorize reimbursement of costs of 
remedial action, incurred in accordance with an approved plan for 
subsequent remedial action and approved by the Department as specified 
in Subpart C to this Part, to be made from the Fund. These costs are 
reimbursable until:

(1) This remedial action has been completed, or
(2) The licensee has been reimbursed its maximum reimbursement amount 
as determined by the Department pursuant to paragraph (e) of 
Sec. 765.30.

    (c) A licensee shall submit any claim for reimbursement of costs of 
remedial action incurred pursuant to an approved plan for subsequent 
remedial action in accordance with the requirements of subpart C of 
this part. The Department shall approve, approve in part, or deny any 
claims in accordance with the procedures specified in subpart C of this 
part. The Department shall authorize the disbursement of funds upon 
approval of a claim for reimbursement.
    (d) After all remedial actions have been completed by affected 
Agreement State or NRC licensees, the Department will issue a Federal 
Register notice announcing a termination date beyond which claims for 
reimbursement will no longer be accepted.


Sec. 765.32  Reimbursement of excess funds.

    (a) No later than July 31, 2005, the Department shall determine if 
the aggregate amount authorized for appropriation pursuant to section 
1003 of the Act (42 U.S.C. 2296a-2), as adjusted for inflation pursuant 
to Sec. 765.12, exceed as of that date the combined total of all 
reimbursements which have been paid to licensees under this part, any 
amounts approved for reimbursement and owed to any licensee, and any 
anticipated additional reimbursements to be made in accordance with 
approved plans for subsequent remedial action.
    (b) If the Department determines that the amount authorized 
pursuant to section 1003 of the Act (42 U.S.C. 2296a-2), as adjusted 
for inflation, exceed the combined total of all reimbursements (as 
indicated in paragraph (a) of this section), the Department may 
establish procedures for providing additional reimbursement to uranium 
licensees for costs of remedial action, subject to the availability of 
appropriated funds. If the amount of available excess funds is 
insufficient to provide reimbursement of all eligible costs of remedial 
action, then reimbursement shall be paid on a prorated basis.
    (c) Each eligible uranium licensee's prorated share will be 
determined by dividing the total excess funds available by the total 
number of Federal-related dry short tons of byproduct material present 
at the site where costs of remedial action exceed $5.50 per dry short 
ton, as adjusted for inflation pursuant to Sec. 765.12. The resulting 
number will be the maximum cost per dry short ton, over $5.50, that may 
be reimbursed. Total reimbursement for each licensee that has incurred 
approved costs of remedial action in excess of $5.50 per dry short ton 
will be the product of the excess cost per dry short ton multiplied by 
the number of Federal-related dry short tons of byproduct material at 
the site or the actual costs incurred and approved by the Department, 
whichever is less.
    (d) Any costs of remedial action for which reimbursement is sought 
from excess funds determined by the Department to be available is 
subject to all requirements of this part except the per dry short ton 
limit on reimbursement established by paragraph (d) of Sec. 765.11.

[FR Doc. 94-12132 Filed 5-20-94; 8:45 am]
BILLING CODE 6450-01-P