[Federal Register Volume 59, Number 104 (Wednesday, June 1, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-13248]


[[Page Unknown]]

[Federal Register: June 1, 1994]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 40

RIN 3150-AE77

 

Uranium Mill Tailings Regulations; Conforming NRC Requirements to 
EPA Standards

AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is amending its 
regulations governing the disposal of uranium mill tailings. These 
changes conform existing NRC regulations to regulations published by 
the Environmental Protection Agency (EPA). The conforming amendments 
are intended to clarify the existing rules by ensuring timely 
emplacement of the final radon barrier and by requiring appropriate 
verification of the radon flux through that barrier. This action is 
related to another action by EPA to rescind its National Emissions 
Standard for Hazardous Air Pollutants (NESHAPs) for radon emissions 
from the licensed disposal of uranium mill tailings at non-operational 
sites.

EFFECTIVE DATE: This regulation becomes effective on July 1, 1994.

FOR FURTHER INFORMATION CONTACT: Catherine R. Mattsen, Office of 
Nuclear Regulatory Research, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555, telephone (301) 415-6264.

SUPPLEMENTARY INFORMATION:

Background

    On April 29, 1983 (48 FR 19584), EPA proposed general environmental 
standards for uranium and thorium mill tailings sites licensed by NRC 
or one of its Agreement States. Final standards were published on 
September 30, 1983 (48 FR 45926), and codified in 40 CFR part 192, 
subparts D and E. On October 16, 1985 (50 FR 41852), NRC published 
amendments to 10 CFR part 40 to conform its rules to EPA's general 
standards in 40 CFR part 192, as it affected matters other than ground 
water protection. Both NRC and EPA regulations included a design 
standard requiring that the tailings or wastes from mill operations be 
covered to provide reasonable assurance that radon released to the 
atmosphere from the tailings or wastes will not exceed an average of 20 
picocuries per square meter per second (pCi/m\2\s) for 1000 years, to 
the extent reasonably achievable, and in any case, for 200 years.
    Neither the EPA standards of 1983 nor NRC's conforming standards of 
1985 established compliance schedules to ensure that the tailings piles 
would be expeditiously closed and the 20 pCi/m\2\s standard would be 
met within a reasonable period of time. Criterion 6 of appendix A to 
part 40 was initially only a design standard and did not require 
verification that the radon releases meet this ``flux standard.''
    In response to the separate requirements of the Clean Air Act 
(CAA), EPA promulgated additional standards in 40 CFR part 61 (subpart 
T for non-operational sites) to ensure that the piles would be closed 
in a timely manner (December 15, 1989; 54 FR 51654). This regulation 
applies only to uranium mill tailings and requires, in addition to the 
flux standard of 20 pCi/m\2\s, that once a uranium mill tailings pile 
or impoundment ceases to be operational, it must be closed and brought 
into compliance with the standard within two years of the effective 
date of the standard (by December 15, 1991) or within two years of the 
day it ceases to be operational, whichever is later. If it were not 
physically possible for the mill owner or operator to complete disposal 
within that time, EPA contemplated a negotiated compliance agreement 
with the mill owner or operator pursuant to EPA's enforcement authority 
in order to assure that disposal would be completed as quickly as 
possible. Subpart T of 40 CFR part 61 also requires testing for all 
piles within the facility to demonstrate compliance with the emission 
limit and specifies reporting and recordkeeping associated with this 
demonstration.
    Subpart T was challenged by a number of parties including the 
American Mining Congress (AMC), the Environmental Defense Fund (EDF), 
and the Natural Resources Defense Council (NRDC). In addition, AMC, the 
NRC, and others filed an administrative petition for reconsideration of 
subpart T. Among the concerns of these parties was the argument that 
the overlap between EPA's subpart D of 40 CFR part 192 (based on the 
Uranium Mill Tailings Radiation Control Act (UMTRCA)) and subpart T of 
40 CFR part 61 (based on the CAA) resulted in regulations that are 
unnecessarily burdensome and duplicative. Among other things, the 
industry also alleged that subpart T was unlawful because it was 
physically impossible to come into compliance with subpart T in the 
time required. In November 1990, Congress amended the CAA by including 
a new provision, section 112(d)(9). This provision authorized EPA to 
decline to regulate radionuclide emissions from NRC licensees under the 
CAA if EPA found, by rule, after consultation with NRC, that the 
regulatory program implemented by NRC protects the public health with 
an ample margin of safety.
    In July 1991, EPA, NRC, and the affected Agreement States began 
discussions concerning the dual regulatory programs established under 
UMTRCA and the CAA. In October 1991, those discussions resulted in a 
Memorandum of Understanding (MOU) between EPA, NRC, and the affected 
Agreement States. The MOU outlines the steps each party would take to 
both eliminate regulatory redundancy and to ensure uranium mill 
tailings piles are closed as expeditiously as practicable. (The MOU was 
published by EPA on October 25, 1991 (56 FR 55434) as part of a 
proposal to stay subpart T.) The primary purpose of the MOU is to 
ensure that the owners and operators of all disposal sites that have 
ceased operation and those owners and operators of sites that will 
cease operation in the future effect emplacement of a final earthen 
cover to limit radon emissions to a flux of no more than 20 pCi/m\2\s 
as expeditiously as practicable considering technological feasibility. 
The MOU presents a goal that all current disposal sites be closed and 
in compliance with the radon emission standard by the end of 1997 or 
within seven years of the date on which existing operations cease and 
standby sites enter disposal status. The attachment to the MOU lists 
specific target dates for completing emplacement of final earthen 
covers to limit radon emissions from non-operational tailings 
impoundments. These target dates were based on consultations with the 
licensed mill operators.
    On December 31, 1991, the EPA published three Federal Register 
notices: a final rule to stay the effectiveness of 40 CFR part 61, 
subpart T, as it applies to owners and operators of uranium mill 
tailings disposal sites licensed by the NRC or an Agreement State (56 
FR 67537); a proposed rule to rescind 40 CFR part 61, subpart T, as it 
applies to uranium mill tailings disposal sites licensed by the NRC or 
an Agreement State (56 FR 67561); and an advance notice of proposed 
rulemaking to amend 40 CFR part 192, subpart D, to require that site 
closure occur as expeditiously as practicable considering technological 
feasibility and to add a demonstration of compliance with the design 
standard for radon releases (56 FR 67569). The stay of effectiveness of 
subpart T is to remain in effect until EPA takes final action to 
rescind subpart T and amend 40 CFR part 192, subpart D, to ensure that 
the remaining rules are as protective of the public health with an 
ample margin of safety as implementation of subpart T, or until June 
30, 1994. If EPA fails to complete these rulemakings by that date, the 
stay will expire and the requirements of subpart T will become 
effective.
    The stay of effectiveness of subpart T was also challenged. 
Discussions continued between EPA, the litigants, and the NRC. In 
February 1993, final agreement was reached to settle the pending 
litigation and the administrative proceeding, avoid potential future 
litigation, and otherwise agree to a consensus approach to regulation 
of licensed non-operational uranium mill tailings disposal sites. EPA 
announced the settlement agreement in a notice of April 1, 1993 (58 FR 
17230). The NRC was not a signatory to this agreement but agreed in 
principle with the settlement agreement. The settlement agreement 
further defined steps for implementing the MOU. It called for the NRC 
to amend its regulations in appendix A of part 40 to be substantially 
consistent with a specific regulatory approach described in the 
settlement agreement. It also described actions to be taken by the 
parties to the agreement which were intended to implement the MOU and 
eliminate further litigation with respect to subpart T.
    On June 8, 1993 (58 FR 32174), the EPA proposed minor amendments to 
40 CFR part 192, subpart D, to ensure timely emplacement of the final 
radon barrier and to require monitoring to verify radon flux levels (a 
one-time verification). In that notice, the EPA stated its tentative 
conclusion that if those amendments to 40 CFR part 192, subpart D, were 
properly implemented by NRC and the Agreement States to ensure 
specific, enforceable closure schedules and radon level monitoring, the 
NRC's regulatory program for non-operational uranium mill tailings 
piles would protect the public health with an ample margin of safety. 
The EPA also noted its intent to publish a proposed finding for public 
comment on whether the NRC program protects public health with an ample 
margin of safety before taking final action on rescission of 40 CFR 
part 61, subpart T.
    On November 3, 1993 (58 FR 58657), the NRC published a proposed 
revision to appendix A of part 40 intended to conform to EPA's proposed 
revisions to 40 CFR part 192, subpart D. On November 15, 1993 (58 FR 
60340), the EPA published a final effective rule amending 40 CFR part 
192, subpart D. This final amendment to appendix A of 10 CFR part 40 
must conform to 40 CFR part 192, subpart D, as amended on November 15, 
1993. Changes in this final rule that relate to changes made in EPA's 
final rule are noted in the detailed discussion.
    On February 7, 1994 (59 FR 5674), the EPA published a supplement to 
its proposed rescission of subpart T as it applies to owners and 
operators of uranium mill tailings disposal sites licensed by the NRC 
or an Agreement State. That action was also taken in accordance with 
the settlement agreement. That notice did not present a change from 
EPA's plans, strategies, or findings as discussed in the actions 
pertaining to the revision of 40 CFR part 192, subpart D. EPA invited 
comments on the proposed rescission of subpart T and on its 
determination that the NRC regulatory program protects public health 
and safety with an ample margin. It does not specifically address NRC 
actions except that EPA has again stated that this conforming rule is 
necessary to support the rescission of 40 CFR part 61, subpart T.
    EPA's revision to 40 CFR part 192 is not intended to change EPA's 
original rationale or scheme set forth in its 1983 rule. The EPA rule 
``seeks to clarify and supplement that scheme in a manner that will 
better support its original intent.'' EPA's final rule and this NRC 
conforming rule require that when a uranium mill becomes non-
operational, the final barrier to control radon will be emplaced as 
expeditiously as practicable considering technological feasibility 
(including factors beyond the control of the licensee). Setting interim 
dates for achieving milestones towards emplacement will support and 
better assure this progress. Also, post-emplacement determination of 
radon flux will serve as confirmation that the design of the cover is 
working as intended. EPA's June 8, 1993 (58 FR 32174), notice of 
proposed rulemaking and its November 15, 1993 (58 FR 60340), notice of 
final rulemaking provide detailed discussion of the rationale for the 
action and the legislative and regulatory history leading to its 
proposal.

Coordination With Affected NRC Agreement States

    The affected Agreement States of Colorado, Texas, and Washington, 
as well as the State of Illinois, were provided a draft of the proposed 
rule before its promulgation. These States' comments and the 
Commission's responses were discussed in the notice of proposed 
rulemaking of November 3, 1993 (58 FR 58657). Copies of that notice 
were sent to the affected States. One State submitted comments, which 
are addressed below along with the other comments received.

Issue of Compatibility With Agreement States

    The Commission has determined that these changes are a Division 2 
matter of compatibility. Under Division 2, States must adopt the 
provisions of an NRC rule but can adopt more stringent provisions. A 
State may not adopt less stringent ones. This designation (Division 2) 
is compatible with section 274o of the Atomic Energy Act of 1954, as 
amended (AEA).

Description of the Rule

    Section 84a(2) of the AEA requires the Commission to conform its 
regulations governing uranium mill tailings to applicable EPA 
requirements and standards. Based on this requirement and the plans and 
schedules related to the rescission discussed in this document, the NRC 
proposed to amend appendix A of 10 CFR part 40 to conform to EPA 
proposed amendments to 40 CFR part 192, subpart D, concerning non-
operational, NRC or Agreement State licensed mill tailings sites. 
Criterion 6 of appendix A to part 40 requires that an earthen cover (or 
approved alternative cover) be placed over uranium mill tailings to 
control the release of radon-222 at the end of milling operations. This 
cover is to be designed to provide reasonable assurance that releases 
of radon will not exceed an average of 20 pCi/m2s and that the 
barrier will be effective in controlling radon releases to this level 
for 1,000 years, to the extent reasonably achievable, and, in any case, 
for at least 200 years. The design for satisfying the longevity 
requirement includes features for erosion control such as the placement 
of riprap over the earthen cover itself. (Criterion 6 is also 
applicable to thorium mill tailings. These amendments to Criterion 6 
apply to uranium mill tailings only.)
    This rule, both as proposed and as now being adopted, amends 
Criterion 6, adds a new Criterion 6A, and adds to the definitions 
contained in the Introduction to appendix A to part 40.
    Paragraphs (1), (5), (6), and (7) of revised Criterion 6 contain 
the previously existing requirements of Criterion 6. These provisions 
were not the subject of or affected by this rulemaking. These 
preexisting portions of Criterion 6 appear in this notice only for the 
purpose of numbering the paragraphs for ease of reference to specific 
requirements contained within the criterion. However, minor conforming 
revisions, as proposed, have been made to paragraph (1) of Criterion 6 
and its footnotes for clarity and consistency with the new 
requirements.
    This rule adds a requirement to Criterion 6 for a one-time 
verification that the barrier, as constructed, is effective in 
controlling releases of radon from uranium byproduct material to levels 
no greater than 20 pCi/m\2\s when averaged over the pile or 
impoundment. This provision, which appears at paragraph (2), also 
specifies EPA method 115, as described in 40 CFR part 61, appendix B, 
as a standard for adequate demonstration of compliance. As is required 
by the recent amendments to 40 CFR part 192, subpart D, the licensee 
must use this method or another approved by the NRC as being at least 
as effective in demonstrating the effectiveness of the final radon 
barrier. A copy of 40 CFR part 61, appendix B, has been made available 
for inspection at the NRC Public Document Room, 2120 L Street, NW. 
(Lower Level), Washington, DC.
    Because of practical reasons, the verification of radon flux levels 
must take place after emplacement of the final radon barrier but before 
completion of erosion protection features. In order for the results of 
the verification to remain valid, erosion protection features must be 
completed before significant degradation of the earthen barrier occurs. 
The NRC will consider this in a final determination of compliance with 
Criterion 6. The NRC could require, among other things, repetition of 
part or all of the verification procedures on a case-by-case basis if 
significant delay occurs before completion of erosion protection 
features.
    Paragraph (3) of revised Criterion 6 adds a requirement that, if 
the reclamation plan calls for phased emplacement of the final radon 
barrier, the verification of radon flux be performed on each portion of 
the pile or impoundment as the final radon barrier is completed.
    Paragraph (4) specifies the reporting and recordkeeping to be made 
in connection with this demonstration of effectiveness of the final 
radon barrier. A one-time report that details the method of 
verification is to be made within 90 days of completion of the final 
determination of radon flux levels. Records will be required to be kept 
until license termination documenting the source of input parameters 
and the results of all measurements on which they are based, the 
calculations and/or analytical methods used to derive values for input 
parameters, and the procedure used to determine compliance. These 
reporting and recordkeeping requirements are comparable to the EPA 
requirements in 40 CFR part 61, subpart T.
    The Commission notes that the proper implementation of the design 
standard of paragraph (1) of Criterion 6 is of primary importance in 
the control of radon releases. The addition of the requirement for 
verification of radon flux levels does not replace or detract from the 
importance of the radon attenuation tailings cover design standard.
    The new Criterion 6A addresses the timeliness of achieving radon 
emission control in the case of uranium mill tailings. Criterion 6A 
requires that the emplacement of the earthen cover (or approved 
alternative cover) be carried out in accordance with a written, 
Commission-approved, reclamation plan that includes enforceable dates 
for the completion of key reclamation milestones. This plan will be 
incorporated as a condition of the individual license. This plan must 
provide for the completion of the final radon barrier as expeditiously 
as practicable considering technological feasibility after the pile or 
impoundment ceases operation. This timeliness requirement has the same 
goals for completing the final radon barrier as were in the MOU 
discussed above. In addition, erosion protection features must also be 
completed in a timely manner in accordance with the Commission-approved 
reclamation plan.
    For the purposes of Criterion 6A, definitions are being added to 
the Introduction of appendix A to part 40 (in alphabetical order with 
the preexisting definitions) for: as expeditiously as practicable 
considering technological feasibility, available technology, factors 
beyond the control of the licensee, final radon barrier, milestone, 
operation, and reclamation plan. These definitions are substantively 
the same as contained in the EPA's recent amendment to 40 CFR part 192, 
subpart D. However, reclamation plan covers a broader range of 
activities than required in EPA's tailings closure plan (radon). 
Reclamation of the tailings in accordance with appendix A to part 40 
includes activities also occurring after the end of operation that are 
beyond those involved in the control of radon releases, such as 
groundwater remediation. Thus, it is appropriate and efficient for 
planning if these activities are addressed in a single document. (This 
rule would also allow the reclamation plan to be incorporated into the 
pre-existing closure plan, also required by appendix A, which includes 
other activities associated with decommissioning of the mill.)
    A definition of final radon barrier was also included in the 
Commission's proposed rule to facilitate the drafting of clear 
regulatory text and to eliminate any ambiguity with respect to 
compliance with the 20 pCi/m2s ``flux standard'' after completion 
of the final earthen barrier and not as a result of any temporary 
conditions or interim measures. This definition excludes the erosion 
protection features which were not a subject of EPA's amendment to 40 
CFR part 192. The EPA's proposed rule had not provided a definition of 
this term or comparable term. However, in its final rule, the EPA added 
a definition of the term permanent radon barrier, also to reduce 
ambiguity. The EPA's definition is substantively the same as the NRC 
definition of final radon barrier. The EPA used the word ``permanent'' 
in keeping with the terminology of the settlement agreement but defined 
``permanent radon barrier'' as ``the final radon barrier constructed to 
achieve compliance with, including attainment of, the limit on releases 
of radon-222 in Sec. 192.32(b)(1)(ii).'' Both definitions refer to 
comparable standards requiring control of radon releases to levels not 
exceeding 20 pCi/m2s after closure. This final NRC rule continues 
to use the word ``final'' as proposed, because it is more appropriate. 
The word ``final'' more accurately describes the last earthen cover 
over the tailings pile without the erosion protection features. The 
barrier would not provide permanent protection without the erosion 
protection features. Even after these features are completed, the 
applicable long-term design standard in paragraph (1) of Criterion 6 is 
``effective for 1,000 years, to the extent reasonably achievable, and, 
in any case, for at least 200 years.'' Although not intended by EPA, 
the term ``permanent'' could be interpreted to imply ``forever.''
    Factors beyond the control of the licensee are defined as factors 
proximately causing delay in meeting the schedule in the applicable 
reclamation plan for the timely emplacement of the final radon barrier 
notwithstanding the good faith efforts of the licensee to complete the 
barrier. Consistent with the final version of EPA's rule, the following 
description of possible factors beyond the control of the licensee has 
been added to the definition in this final rule: these factors may 
include, but are not limited to:
    Physical conditions at the site;
    Inclement weather or climatic conditions;
    An act of God;
    An act of war;
    A judicial or administrative order or decision, or change to the 
statutory, regulatory, or other legal requirements applicable to the 
licensee's facility that would preclude or delay the performance of 
activities required for compliance;
    Labor disturbances;
    Any modifications, cessation, or delay ordered by State, Federal, 
or local agencies;
    Delays beyond the time reasonably required in obtaining necessary 
government permits, licenses, approvals, or consent for activities 
described in the reclamation plan proposed by the licensee that result 
from agency failure to take final action after the licensee has made a 
good faith, timely effort to submit legally sufficient applications, 
responses to requests (including relevant data requested by the 
agencies), or other information, including approval of the reclamation 
plan; and
    An act or omission of any third party over whom the licensee has no 
control.
    In the definition of available technology, the phrase ``and 
provided there is reasonable progress toward emplacement of a permanent 
radon barrier'' was not included in the Commission's proposed rule as 
it seemed inappropriate within the definition and the concept is 
incorporated into the standard itself, i.e., Criterion 6A. This phrase 
has been included in the final definition with the word ``final'' in 
place of ``permanent'' in keeping with the terminology used in this 
rule. A parenthetical with illustrative examples of grossly excessive 
costs has also been added consistent with EPA's final amendments.
    The definitions for as expeditiously as practicable considering 
technological feasibility and reclamation plan have been specifically 
identified as applying to only Criterion 6A to prevent any potential 
misapplication. This has not been done in the case of the other 
definitions because either the terms are not used elsewhere in appendix 
A or are used consistently with the definitions being added.
    This rule goes beyond EPA's rule by requiring that the erosion 
protection barriers (or other features for longevity) be completed in a 
timely manner. However, the rule does not require that enforceable 
dates be established for completion of erosion protection as a 
condition of license. (The key reclamation activities or ``milestones'' 
for which enforceable dates are to be established are the same as in 
EPA's rule.) The reason for this difference is so that the NRC can 
assure that erosion protection is completed before the barrier could 
degrade significantly while allowing more flexibility in this regard 
than for the ``key reclamation milestones.'' Allowing significant 
degradation of the cover before completion of other aspects of the 
design could violate the design basis.
    As a result of the MOU, most affected licensees (those facilities 
that were non-operational at the time of the MOU) have voluntarily 
submitted reclamation plans which include proposed dates for attainment 
of key reclamation milestones. (Planning for reclamation activities 
with Commission approval was required by previously existing 
regulations.) The process of approving those reclamation plans, at 
least those portions dealing with control of radon emissions, and 
amending the licenses to make the dates for completion of key 
reclamation milestones a condition of license is complete with the 
exception of the Atlas site in Moab, Utah. (In this case, license 
amendment has been delayed pending resolution of issues raised when the 
action was noticed in the Federal Register.) These impoundments are in 
the process of being reclaimed with varying degrees of completion. 
Other affected NRC licensees include one whose impoundment has ceased 
operation since the MOU and who is in the process of preparing a 
reclamation plan, and four with operational impoundments who will be 
affected at the time the impoundments cease to be operational.
    The considerations made in these recent licensing actions have been 
consistent with those reflected in this rule, i.e., paragraph (1) of 
Criterion 6A has essentially been implemented prior to promulgation as 
a result of the MOU and the settlement agreement and in anticipation of 
the amendments to 40 CFR part 192 and this rulemaking. Thus, the 
deadlines for completion of milestones established in licenses will not 
need to be reconsidered as a result of this rule. Also, the actions 
taken since the MOU in the case of the Atlas site in Moab, Utah are 
consistent with this rulemaking. The licensee has submitted proposed 
revisions to its reclamation plans. The licensee has also supplied 
further information and proposed modifications to address concerns that 
have been raised. Notices of proposed amendments to the license to 
provide for public participation have been published. The most recent 
of these was published on April 7, 1994 (58 FR 16665). Delays in the 
schedule for radon barrier emplacement are as a result of difficulties 
in resolving technical issues related to the adequacy of plans for 
erosion protection and groundwater protection and the consideration of 
alternatives under the National Environmental Policy Act. Thus, delays 
result from a combination of ``the need for consistency with mandatory 
requirements of other regulatory programs'' and ``factors beyond the 
control of the licensee.'' This case is primarily an example of factor 
number (8) in the definition of factors beyond the control of the 
licensee concerning delays in obtaining necessary approvals. The issues 
of concern in the approval of this revised reclamation plan are yet to 
be resolved and further delays are possible. However, no new issues 
with regard to the scheduling of final radon barrier emplacement are 
added as a result of this rule. The license amendment process and the 
approval of the reclamation plans will not be adversely affected. The 
NRC staff is continuing to provide timely attention to the resolution 
of this case.
    Paragraph (2) of Criterion 6A adds specific criteria for certain 
circumstances under which the NRC may extend the time allowed for 
completion of key milestones once enforceable dates have been 
established. An opportunity for public participation will be provided 
in a decision to extend the time allowed in these cases. The Commission 
may approve an extension of the schedule for meeting milestones if it 
is demonstrated that radon emissions do not exceed 20 pCi/m2s 
averaged over the entire impoundment. The intent of this provision is 
that, if the radon release rates are as low as will be required after 
closure, there is no need for complex justifications for delaying 
completion of reclamation. However, the Commission may not necessarily 
extend deadlines for completion of milestones indefinitely on this 
basis alone. In addition, the Commission may approve an extension of 
the final compliance date for completion of the final radon barrier 
based upon cost if the Commission finds that the licensee is making 
good faith efforts to emplace the final radon barrier, that the delay 
is consistent with the definition of available technology, and that the 
radon releases caused by the delay will not result in a significant 
incremental risk to the public health. If the basis for approving a 
delay is that the radon levels do not exceed 20 pCi/m2s, 
verification of radon levels will be required annually. Any other 
reconsideration of deadlines once established as a result of changing 
circumstances would be evaluated under paragraph (1) of Criterion 6A 
giving consideration to all factors relevant to the ``as expeditiously 
as practicable considering technological feasibility'' standard.
    Paragraph (3) of Criterion 6A, as proposed, was to allow for the 
continued acceptance of uranium byproduct material or such materials 
that are similar in physical, chemical, and radiological 
characteristics to the uranium mill tailings and associated wastes in 
the pile or impoundment, from other sources, for disposal into a 
portion of the impoundment after the end of operation but during 
closure activities. This authorization was to be made only after 
providing an opportunity for public participation. This paragraph was 
intended to conform with proposed 40 CFR 192.32(a)(3)(iii). In the 
context of appendix A, ``during closure activities'' could include the 
period after emplacement of the final radon barrier. In this 
circumstance, the Commission may except completion of reclamation 
activities for a small portion of the impoundment from the deadlines 
established in the license. The proposed rule specified that the 
verification requirements for radon releases may still be satisfied in 
this case if the Commission finds that the impoundment will continue to 
achieve a level of radon releases not exceeding 20 pCi/m2s 
averaged over the entire impoundment. However, reclamation of the 
remaining disposal area, as appropriate, would be required in a timely 
manner once the waste disposal operations cease.
    This paragraph has been somewhat revised in the final rule 
consistent with revisions made in EPA's final rule; these provisions 
now appear at 40 CFR 192.32(a)(3) (iv) and (v). Both final rules are 
more consistent with the settlement agreement in this regard. The 
revisions are (1) that only byproduct material, not ``similar'' 
material, will be approved for disposal after the final radon barrier 
is complete except for the continuing disposal area and the 
verification of radon flux levels has been made, and (2) that public 
participation is specifically to be provided for only in the case of 
continued disposal after radon flux verification.
    The final rule has also been modified by changing the words ``as 
expeditiously as practicable'' in the last sentence of this paragraph 
to ``in a timely manner'' to avoid the unintended application of the 
definition of the term ``as expeditiously as practicable considering 
technological feasibility'' to activities beyond the emplacement of the 
final radon barrier. Additional clarifying language has also been added 
to this paragraph.
    Note, as discussed in EPA's statements of consideration for its 
amendment of 40 CFR part 192 (at 58 FR 32183; June 8, 1993 and 
reiterated at 58 FR 60354; November 15, 1993), the reclamation of 
evaporation ponds may be dealt with separately from meeting the 
expeditious radon cover requirements if deemed appropriate by the 
Commission or the regulating Agreement State. This may be the case 
whether or not the evaporation pond area is being used for continued 
disposal of byproduct material.
    The opportunities for public participation specified in Criterion 
6A are in keeping with the MOU and the settlement agreement, and will 
be made through a notice in the Federal Register providing an 
opportunity for public comment on the proposed license amendment. This 
notice will also provide the opportunity to request an informal hearing 
in accordance with the Commission's regulations in 10 CFR part 2, 
subpart L.

Analysis of Comments

    In response to the proposed rule, the Commission received comments 
from seven organizations including one State regulatory agency, the 
Environmental Protection Agency, and five industry organizations. 
Copies of the comments may be examined and copied for a fee at the 
Commission's Public Document Room at 2120 L Street, NW. (Lower Level), 
Washington, DC. The following discussion summarizes and responds to the 
comments.

General: Need and Basis for Rule

    Comment. The commenters were generally in favor of the proposed 
rule. However, most had some suggestions for modifications. Many of 
these proposed modifications reflected a desire for stricter adherence 
to the words of the settlement agreement or to EPA's final rule. One 
commenter said that it understood the proposal to be consistent with 
the terms that industry litigants accepted in the related EPA 
proceedings. The American Mining Congress (AMC) and the Atlantic 
Richfield Company (ARCO), which incorporated all of the AMC comments by 
reference in its comments, specifically supported the rule for the 
purpose of implementing the settlement agreement and in order that the 
``duplicative'' Clean Air Act requirements in 40 CFR part 61, subpart 
T, would be rescinded. AMC and ARCO contended that the rule was not 
needed to protect public health with the ample margin of safety 
required as a basis for rescinding subpart T, but that it would 
strengthen existing protection. Specifically, it was suggested that 
Sec. 40.63 gives NRC the ability to provide post-closure testing; that 
Sec. 40.42(c)(2)(i), (iii), and (iv) can provide for timely reclamation 
of the tailings; that proper milestones have been added to licenses 
under the existing regulatory program; and that EPA has never issued a 
finding of unacceptable risk. In addition, AMC provided extensive 
background and support for rescission of subpart T and elimination of 
dual regulation.
    Response. The Commission has stated and continues to believe that 
its program provides an adequate degree of protection of the public 
health and safety but that this rule provides greater assurance that 
the final radon barrier will be completed in a timely manner and in 
accordance with the design standard. The Commission disagrees with 
certain statements made by commenters to support their contention that 
this rule was not necessary to support the rescission of subpart T. 
With regard to Sec. 40.63 and post-closure testing, because footnote 1 
to Criterion 6 specifically indicated that no radon monitoring was 
required, the Commission would not have considered it appropriate to 
use Sec. 40.63 to require post-closure testing to verify that radon 
flux levels do not exceed 20 pCi/m\2\s. It was also suggested that 
Sec. 40.42 adequately addresses the timeliness of tailings reclamation. 
Although decommissioning normally includes cleanup of a site, appendix 
A provides the detailed closure requirements for mills in which the 
reclamation of tailings is covered as a separate activity and, thus, is 
an exception to the general requirements for decommissioning. This is a 
result of the unique treatment of tailings under UMTRCA, which provides 
for the ultimate custodial care of tailings by the Federal government 
rather than a return to unrestricted use. The timeliness statement in 
Sec. 40.42(c)(2)(iv) is interpreted as applying to the decommissioning 
of the mill not to reclamation of the tailings. The background 
materials submitted by AMC have been reviewed to assure that there are 
no gaps in the information previously available to the Commission in 
its deliberations.
    As a general response concerning the use of the exact words of the 
settlement agreement and the EPA regulations, the Commission notes that 
it is required to ``conform'' to 40 CFR part 192 by section 84a(2) of 
the AEA and has agreed in principle to, but was not a party to, the 
settlement agreement. In past conforming changes, conformance has not 
been viewed as requiring identical wording and flexibility has been 
used for clarity and to account for different formats and contents of 
rules. Thus, the Commission is not bound to the exact words in either 
case. Some differences are necessary to avoid ambiguity or confusion. 
For example, with regard to this rulemaking, the scope of both the 
settlement agreement and the EPA amendments were limited to the 
completion of the final radon barrier and did not extend to the 
longevity aspect of radon control nor to other aspects of reclamation. 
The terms ``reclamation'' and ``closure'' have a broader meaning in 
appendix A than as used in the settlement agreement or in EPA's 
amendments to 40 CFR part 192. It would not be practical to limit the 
use of these terms for the purpose of these specific amendments to 
appendix A. There are other terms that must also be used carefully 
because of their use in NRC regulations or by the regulated industry. 
Beyond what was considered necessary to avoid ambiguity and to provide 
appropriate expansion beyond the scope of EPA's amendments, the 
Commission has attempted to be consistent with the words of the 
settlement agreement and 40 CFR part 192.

Definitions

    Comment. The four industry commenters who suggested that changes 
were needed all believed it was important that the definitions of 
factors beyond the control of the licensee and available technology be 
completely consistent with the settlement agreement and the final 
amendments to 40 CFR part 192, subpart D, and specifically, to include 
all the illustrative examples within the definition, not just in the 
statement of considerations. Some also suggested that the words 
``complete the barrier'' in the definition of factors beyond the 
control of the licensee be changed to ``achieve compliance.'' They were 
concerned that the intent of the parties to the settlement agreement 
would not be carried out in the interpretation of these terms in the 
future. Some specifically noted the loss of personnel familiar with the 
issues that will accompany the close of the NRC uranium recovery field 
office (URFO). The EPA did not suggest that including all of the 
illustrative text was necessary for conformance but suggested it would 
be best to include the phrase ``provided there is reasonable progress 
toward emplacement of the final radon barrier'' (from 40 CFR 192.31(m)) 
in NRC's definition of available technology. The EPA also suggested 
adding ``in compliance with Criterion 6A-(1)'' after ``complete the 
barrier'' in the definition of factors beyond the control of the 
licensee for clarity and to assure proper implementation of subpart D 
of 40 CFR part 192.
    Response. Explanations concerning the Commission's intent regarding 
its interpretation of its regulations that appear in statements of 
consideration stand as a record of the Commission's intent. However, 
inclusion within the regulatory text makes the illustrative examples 
more readily available so that questions of interpretation are less 
likely to arise. Consistent with EPA's final amendments to 40 CFR part 
192, all of the illustrative examples have been added in the final 
definitions. The additional text suggested by EPA has also been 
included in these definitions.
    Comment. Most of the industry commenters also wanted the definition 
of milestone to be worded exactly as in 40 CFR part 192. The concern 
was primarily that milestones not be required to be established for 
actions beyond meeting the radon ``flux standard.'' Some of the 
commenters also suggested that the use in the preamble of varying 
modifiers, ``key,'' ``interim,'' and ``reclamation,'' to ``milestones'' 
and ``milestone activities,'' which are used interchangeably, was 
confusing.
    Response. The definition of milestone has not been changed because 
the Commission believes it is less confusing in that it is in better 
agreement with normal usage. There is no substantive difference in the 
standard as a result of this difference and it gives the Commission the 
flexibility to use the term generically. The concerns expressed are 
addressed alternatively through minor revisions to the definition of 
reclamation plan and paragraph (2) of Criterion 6A to further clarify 
that no deadlines are required to be established in the licenses beyond 
completing the final radon barrier as a result of this rulemaking and 
that any other schedules established in a license do not come under the 
specific provisions of paragraph (2) of Criterion 6A. The term 
``milestone activities'' has been avoided in this final rule as it is 
redundant given this definition. The terms ``key,'' ``interim,'' and 
``reclamation'' are used in accordance with their dictionary 
definitions and require no further definition. As is clear from the 
definition of reclamation plan, the term ``reclamation'' is not limited 
to radon control measures.
    No comments were received concerning the definitions of: as 
expeditiously as practicable considering technological feasibility, 
final radon barrier, and operation.

Criterion 6--Verification of Radon Release Levels

    Comment. Some commenters suggested that paragraph (4) of Criterion 
6 could be interpreted to require submission of the results of radon 
measurements after measurements are made on a portion of an impoundment 
in the case of phased emplacement of the radon barrier. Two commenters 
suggested that interim reports might be required in a particular case 
subject to the agreement of the licensee, but objected to the possible 
interpretation that separate reports be required routinely on each 
portion. One suggested that it should be clarified that the testing 
need not be done on each portion as the cover is completed.
    Response. Paragraph (3) specifically requires testing to be done on 
each portion of the impoundment as the cover is completed in the case 
of phased emplacement. This was made a requirement rather than simply 
being allowed as in 40 CFR 192.32(b)(4)(ii) because of the requirement 
in paragraph (2) of this Criterion to conduct testing and analysis 
prior to placement of erosion protection features and the importance of 
timeliness in completing erosion protection features. There is, 
however, no specific time limit established in the regulation for these 
measurements on the individual portions of the impoundment.
    Paragraph (4) requires submittal of a report 90 days after 
completion of the testing and analysis. Because this verification is of 
radon flux levels averaged over the impoundment, it is not complete 
until all testing and analysis is complete for the whole impoundment. 
Thus, only one report is required, although further testing and 
analysis with associated reporting could be required in a particular 
case if the initial report is not acceptable. Minor editorial changes 
have been made to further clarify this point. Note, although it is 
impractical to do so routinely, riprap or other erosion protection 
barriers can be disturbed in order to take a radon emission measurement 
if necessary.
    Comment. One commenter suggested that paragraph (2) of Criterion 6 
should contain details such as are contained in 40 CFR part 61 on the 
one-time measurement which are intended to assure that conditions under 
which the flux is measured lead to a reasonable average flux. It was 
suggested that this would eliminate confusion with footnote 2 that 
applies to the design criterion. Related to this, some commenters 
argued for deletion of part of existing footnote 2 regarding average 
radon emissions being ``over a period of at least one year, but a 
period short compared to 100 years.'' These commenters were concerned 
that long-term monitoring could be implied. Also, two commenters said 
the footnote was contrary to the settlement agreement and the EPA rule. 
One said specifically that it was inconsistent with language of 40 CFR 
192.12(b)(2).
    Response. Footnote 2 applies only to the design criterion. Although 
the new testing and analysis is intended to verify the effectiveness of 
the radon barrier, it does not need to take place over the period of 
time specified in footnote 2. However, it should be reasonably 
representative of long-term radon releases. The details concerning 
conditions for flux measurements in 40 CFR part 61 are contained in the 
description of Method 115 in appendix B and address such matters as the 
weather conditions at the time measurements are performed. Method 115 
is specifically identified in this standard as acceptable and, if used, 
the conditions embodied in the description in appendix B of 40 CFR part 
61 would apply. Because Method 115 is also a standard for the adequacy 
of other verification methods in Criterion 6, alternative methods must 
be approved by the Commission as being at least as effective as Method 
115. Similar considerations to those embodied in Method 115 concerning 
the representiveness of the measurement results of the long term radon 
releases will be made in judging alternative methods. Details of 
conditions for measurement need not be specified in this rule.
    Modifying footnote 2 substantively, as was suggested by the 
commenters, would be outside the scope of this rulemaking. Footnote 2 
is consistent with 40 CFR part 192, subpart D, which contains the same 
footnote (in the comparable design standard, 40 CFR 192.32(b)(1)(ii)). 
The footnote was not intended to and does not require long-term 
monitoring. The Commission agrees that long-term monitoring would be 
contrary to the settlement agreement.
    Comment. One commenter argued that the existing requirement to 
reduce gamma exposure to background levels should be eliminated or 
applied only at the site boundary. This commenter stated that this 
requirement appears to be a misinterpretation of the intent of 40 CFR 
part 192, subpart A. This commenter also said that the radon cover will 
attenuate gamma radiation to near background levels in most cases; and 
that in an unusual case, adding to the cover to control gamma exposure 
levels could be unnecessarily expensive, as access is restricted. The 
commenter believed that, as a minimum, the Commission should specify a 
limit based on acceptable risk to the maximum-exposed individual that 
can be supported by a cost-benefit analysis.
    Response. The criterion on gamma exposure levels is not based on 40 
CFR part 192 nor any other EPA regulation. It has been in appendix A to 
part 40 since it was originally added to part 40 on October 3, 1980 (45 
FR 65521). This aspect of Criterion 6 is outside the scope of this 
rulemaking. However, if the cost of meeting any criterion in appendix A 
is excessive in a specific case due to unique conditions, the licensee 
may request an alternative approach in accordance with the Introduction 
to appendix A.

Criterion 6A, Paragraph (1)--Requirement for Timeliness

    Comment. Two commenters were concerned that the parenthetical 
``(including factors beyond the control of the licensee)'' was not 
included in the standard following, ``as expeditiously as practicable 
considering technological feasibility'' as in 40 CFR 192.32(a)(3)(i) 
even though it is contained in the definition of as expeditiously as 
practicable considering technological feasibility. They claimed that 
this could lead to misinterpretation that the standard deletes this 
essential concept.
    Response. A parenthetical statement noting that the term as 
expeditiously as practicable considering technological feasibility is 
specifically defined in the Introduction and includes ``factors beyond 
the control of the licensee'' has been added.
    Comment. Some of the commenters opposed the establishment of 
separate milestone deadlines for dewatering and recontouring, saying 
that the settlement agreement and 40 CFR part 192 specify only three 
required milestones including just one for interim stabilization. 
Dewatering and recontouring are part of interim stabilization. These 
commenters said that this was also inconsistent with the practice with 
existing licenses. The EPA noted that it agreed with NRC's statement in 
the preamble of its proposed rule that the concept of milestones could 
not be omitted.
    Response. The final rule has been changed to specifically require 
the establishment of deadlines for only three milestones: Wind blown 
tailings retrieval and placement on the pile, interim stabilization 
(including dewatering or the removal of freestanding liquids and 
recontouring), and final radon barrier construction. The Commission, 
however, retains the authority to require the establishment of 
additional milestones determined to be ``key'' to the completion of the 
final radon barrier in an individual case (note the words ``but not 
limited to'' in the definition of reclamation plan). This is consistent 
with 40 CFR part 192, subpart D, and with the settlement agreement. The 
Commission has no intent at this time to change the milestones for 
which deadlines have already been approved in individual licensing 
actions.
    Comment. The EPA noted that it understands that emplacement of the 
final radon barrier is a requisite milestone but was concerned that it 
could be interpreted otherwise, and suggested clarification. The EPA 
also noted that it understands ``deadlines'' to mean dates by which 
actions must be completed and ``established as a condition of an 
individual license'' to mean incorporation of a condition into a 
license by the Commission. However, the EPA was concerned that 
paragraph (1) of Criterion 6A may be ambiguous and provided specific 
suggested edits.
    Response. Paragraph (1) of Criterion 6A has been modified slightly 
to address EPA's concerns, although not exactly as suggested. The 
Commission believes it is clear that completion of the final radon 
barrier is a requisite milestone, that ``deadlines'' means dates by 
which actions must be completed, and that deadlines are to be 
established on the basis that the barrier is to be completed as 
expeditiously as practicable considering technological feasibility. The 
Commission also believes that its regulations are less subject to 
misinterpretation if there is consistency of style and terminology.
    Comment. Two commenters were concerned about the NRC extending the 
scope of the timeliness requirement from that of 40 CFR part 192, 
subpart D, stating that the ``as expeditiously as practicable 
considering technological feasibility'' requirement should not be 
extended to erosion protection. They contended that this is a term of 
art limited to radon emissions, that EPA used this term to eliminate 
the cost-balancing standards of the AEA from radon control measures, 
and that applying it to erosion protection would constrain the use of 
AEA cost considerations. They also noted that NRC has adequate 
authority under other aspects of its UMTRCA program to deal with 
concern for degradation of the barrier and stated that NRC should 
handle this on a site-specific basis through license amendment.
    Response. The final rule has been modified so that the terminology 
``as expeditiously as practicable considering technological 
feasibility'' is used only for emplacement of the final radon barrier. 
A general timeliness standard for completing erosion protection 
features is retained. Thus, it is clear that the licensee must complete 
these actions in a timely way and that the NRC has the authority to 
take action if necessary in this regard. However, the restrictive cost 
considerations specified for the completion of the final radon barrier 
do not apply to decisions concerning the timeliness of completion of 
erosion protection features. Instead, the more flexible, general cost 
considerations of the AEA (Section 84a(1)) apply.
    Comment. The same commenters sought clarification of NRC's intent 
in extending reclamation plans to cover groundwater protection. They 
asked whether the NRC could prevent licensees from continuing surface 
reclamation until groundwater issues are resolved, stating that this 
was not past practice. However, they also wanted the Commission to 
confirm that groundwater concerns could constitute a legitimate cause 
for delay.
    Response.  It is important for all aspects of reclamation to be 
addressed in one plan so that potential interactions of various 
activities can be accounted for and that reclamation can be planned for 
overall efficiency. Nonetheless, all aspects of a reclamation plan 
would not necessarily be approved at the same time. Past licensing 
practice has not necessarily required all details of reclamation 
planning to be in one document; however, approvals of activities have 
included consideration of impacts to other aspects of reclamation. The 
NRC would not necessarily prevent licensees from continuing surface 
reclamation until groundwater issues are resolved. However, the words 
``the need for consistency with mandatory requirements of other 
regulatory programs'' in the definition of ``as expeditiously as 
practicable considering technological feasibility'' make it clear that 
groundwater concerns could constitute a legitimate cause for delay. 
Whether or not a groundwater issue would be considered a legitimate 
cause for delay of radon control measures under paragraph (1) of 
Criterion 6A would depend on the nature of the interaction of the 
various reclamation activities in a particular case.

Criterion 6A, Paragraph (2)--Special Criteria for Approval of Delays

    Comment.  Two commenters stated that paragraph (2) of Criterion 6A 
does not fully implement the settlement agreement. They stated that the 
settlement agreement and 40 CFR 192.32(a)(3)(iii) include delay of 
interim milestones for reason of cost not just the dates for completion 
of the final radon barrier. These same commenters were concerned that 
it was not clear from paragraph (2) of Criterion 6A that deadlines for 
milestones could also be extended because of factors beyond the control 
of the licensee and also expressed strong agreement with the statement 
that there is ``no need for complex justifications for delaying 
completion of reclamation'' if the licensee demonstrates that the site 
meets 20 pCi/m2s prior to final closure. These two commenters also 
stated that the intent of the settlement agreement is that interim 
milestones may be changed without meeting 20 pCi/m2s, if there is 
no delay in final closure date. On this subject, the EPA specifically 
supported paragraph (2) of Criterion 6A as drafted. The EPA also 
specifically confirmed our interpretation of its amendments to 40 CFR 
part 192 in this regard and clarified that there may be other instances 
under which NRC may reconsider a date established for completion of a 
milestone. The EPA also stated in its comments that the alternative 
interpretation of its proposed amendments suggested in the Commission's 
preamble to its proposed rule (that meeting the 20 pCi/m2s ``flux 
standard'' might be required in all cases) was incorrect.
    Response.  The Commission does not agree that the words ``or 
relevant milestone'' in section III.2.j of the settlement agreement and 
40 CFR 192.32(a)(3)(iii) should be interpreted to mean that these 
paragraphs address delay of interim milestones for reason of cost. 
Also, approvals of extensions of interim milestones without meeting 20 
pCi/m2s are not necessarily limited to cases where there is no 
delay in final closure date.
    Paragraph (2) of Criterion 6A and 40 CFR 192.32(a)(3)(ii) and (iii) 
set forth specific criteria for extensions of deadlines under certain 
circumstances. These provisions do not cover all circumstances under 
which extensions may be approved. This interpretation was confirmed by 
EPA in the preamble of its final rule and in its comments submitted on 
NRC's proposed rule. All other approvals of extensions must be made 
under paragraph (1) of Criterion 6A through applying all of the 
concepts involved in the requirement for completion of the final radon 
barrier ``as expeditiously as practicable considering technological 
feasibility'' (including within its definition ``factors beyond the 
control of the licensee''). This was stressed in EPA's final rule 
notice of November 15, 1993, at 58 FR 60351. In response to a commenter 
that noted that NRC or an Agreement State may extend the date for 
emplacement of the radon barrier based on ``factors beyond the control 
of the licensee'' as that term is implicit in the definition of ``as 
expeditiously as possible,'' EPA stated in part that ``there is no bar 
to NRC or an Agreement State reconsidering a prior decision 
establishing a date for emplacement of the radon barrier that meets the 
standard of `as expeditiously as possible.' Such reconsideration could, 
for example, be based on the existence of factors beyond the control of 
the licensee, or on a change in any of the various factors that must be 
considered in establishing a date that meets the `as expeditiously as 
practicable' standard of Sec. 192.32(a)(3)(i). However, EPA stresses 
that such a change in circumstances would not automatically lead to an 
extension. It would be incumbent on NRC or an Agreement State to 
evaluate all of the factors relevant under Sec. 192.32(a)(3)(i) before 
it could change a previously established milestone or date for the 
emplacement of the final barrier, and any new date would have to meet 
the standard set out in Sec. 192.32(a)(3)(i).'' The comparable standard 
in this NRC rule is set out in paragraph (1) of Criterion 6A.

Criterion 6A, Paragraph (3)--Continuing Disposal During Closure

    Comment.  Some commenters noted that Criterion 6A, paragraph 3, as 
proposed, was inconsistent with the final EPA rule. Some also suggested 
that it was inconsistent with the settlement agreement, could lead to 
premature closure, and would require radon monitoring during closure. 
One commenter said that ``during closure activities'' does not include 
the period after emplacement of the final radon barrier according to 
the EPA rule and the settlement agreement, and that the intent should 
be that ``once the final radon barrier has been placed over the 
impoundment, excluding the area receiving byproduct material, the 
`closure process' ceases.'' Two of the commenters specifically agreed 
with the interpretation that ``during closure activities'' could 
include the period after emplacement of the final radon barrier and 
wanted the NRC to confirm this so that similar materials would still be 
allowed at that time. These two commenters did not want paragraph (3) 
of Criterion 6A to require an opportunity for public participation in 
approving acceptance of byproduct material ``during closure.'' The EPA 
submitted suggested revisions to make final paragraph (3) of Criterion 
6A consistent with the final amendments in 40 CFR 192.32(a)(3)(iv) and 
(v).
    Response.  EPA, in its proposed revision of 40 CFR part 192, 
subpart D, combined the provisions of sections III.2.c (i) and (ii) of 
the settlement agreement in one paragraph. In so doing, EPA, apparently 
inadvertently, differed somewhat from the settlement agreement but 
modified the final rule so that it is now consistent with the 
settlement agreement. The Commission must conform appendix A to 40 CFR 
part 192, as adopted, and has thus revised its final rule accordingly. 
The differences from the proposed rule are that (1) materials similar 
to byproduct material will not be approved for continued disposal after 
the verification of radon flux levels and (2) an opportunity for public 
participation will not specifically be provided in the case of 
continued disposal during closure prior to this point in time. Note, 
however, opportunity for public participation exists in any case under 
10 CFR part 2, subpart L. The exact words suggested in EPA's comments 
have not been used but the revisions are substantively the same. The 
reasons for differing are the same as when the proposed rule was 
drafted: (1) the term ``closure'' in appendix A has a broader meaning 
than the scope of EPA's rule, and (2) the final radon barrier is not 
absolutely complete while disposal is continuing even though it may be 
adequate to demonstrate that average radon release levels meet the 20 
pCi/m2s ``flux standard.''

Miscellaneous comments

    Comment.  One State commenter strongly recommended that NRC offer 
guidance (not necessarily in the rule) on paragraph (3) of Criterion 6A 
on what materials are appropriately similar. The commenter suggested 
specification of limits to the range of variation of a critical 
property or concentration or activity.
    Response. Guidance on considerations for the approval of disposal 
of non-11e(2) materials in tailings impoundments was published May 13, 
1992 (57 FR 20525). This notice also presented a staff analysis on 
which the guidance is based and requested public comment to be 
considered in a decision on whether the guidance should be revised.
    Comment. Two commenters stated, for the record, that they agreed 
with NRC that the implementation details of EPA's 40 CFR part 192, 
subpart D, are a special case and go beyond ``generally applicable 
standards,'' and that these provisions should not set a precedent with 
regard to what constitutes a generally applicable standard. They 
contended that certain aspects of subpart D exceed EPA's statutory 
authority.
    Response. The Commission noted in the preamble of the proposed rule 
that the nature of the revisions to 40 CFR part 192, subpart D, were 
influenced by the settlement agreement, that the settlement agreement 
included considerable detail concerning the specifics of the 
regulations that were to be developed, and that apparently as a result 
of this, 40 CFR part 192, subpart D, includes numerous details of 
implementation. The Commission also stated its view, which it still 
holds, that the inclusion of these implementation details is a special 
case because of the settlement agreement and does not establish any 
precedent with regard to what constitutes a generally applicable 
standard. With regard to the question of the limits of EPA's statutory 
authority, any challenge to EPA's authority to issue the November 15, 
1993, final amendments to 40 CFR part 192 is outside the scope of this 
conforming action.
    Comment. The AMC stated that even if the Commission makes this rule 
a Division 2 matter of compatibility, AMC will return to litigation if 
an Agreement State adopts more stringent provisions.
    Response. UMTRCA provides the States an option for alternative, 
more stringent standards. The settlement agreement cannot eliminate 
this option. However, notice for comment and approval by NRC is 
required and AMC can raise appropriate issues at that time should a 
State propose more stringent standards. The Division 2 matter of 
compatibility is maintained.
    Comment. The AMC contended that some statements in the preamble to 
the proposed rule were in error or in need of clarification. Among 
these contentions were that the summary of bases for AMC's challenge to 
subpart T implied that the limited bases mentioned were all inclusive.
    Response. The primary bases for the various litigants' challenges 
were mentioned in a brief historical summary that was not presented as 
a complete background. The EPA's various notices are referenced in the 
background section of this notice for more details concerning subpart T 
and the related litigation.
    Comment. AMC also stated that NRC had implied that EPA could not 
rescind subpart T if the planned rulemakings were not completed, 
arguing that EPA has adequate bases to rescind absent these 
rulemakings.
    Response. NRC did not mean to imply that EPA could not rescind 
subpart T absent the planned rulemakings. However, EPA had made 
statements that it would not rescind subpart T unless comparable 
provisions were added to 40 CFR part 192 and 10 CFR part 40.
    Comment. The AMC also stated that the timeliness of decommissioning 
rule should not have been suggested as in any way relevant and 
requested that NRC note that Chairman Selin is on record suggesting 
that a blanket exemption of uranium recovery facilities may make sense.
    Response. Final action on the proposed NRC rule to require 
timeliness in decommissioning (January 13, 1993; 58 FR 4099) would be 
expected to impact the timing of decommissioning of the mill, not 
necessarily the timing of the impoundment going from operational status 
to closure. (``Closure'' in appendix A does include both 
decommissioning of the mill and reclamation of the tailings and/or 
waste disposal areas.) If subpart T is rescinded, there will be no 
regulatory requirement for the tailings impoundment to change from 
operational to non-operational status within any specified time after 
the mill ceases operation. The definition of ``operational'' in subpart 
T would have restricted the continued use of the impoundment for 
extended periods after the associated mill was decommissioned.
    No comments were received on the regulatory analysis or the 
environmental assessment and finding of no significant impact.

Conclusion

    As indicated in the responses to the comments, the Commission has 
decided to adopt the rule as proposed with minor modifications, which 
consist of revisions to conform to the final effective amendments to 40 
CFR part 192 and clarifications.

Finding of No Significant Environmental Impact: Availability

    The Commission has determined under the National Environmental 
Policy Act of 1969, as amended, and the Commission's regulations in 
subpart A of 10 CFR part 51, that this rule is not a major Federal 
action significantly affecting the quality of the human environment and 
therefore an environmental impact statement is not required. This final 
rule requires that enforceable dates be established for certain interim 
milestones and completion of the final radon barrier on non-operational 
mill tailings piles through an approved reclamation plan and that a 
determination of the radon flux levels be made to verify compliance 
with the existing design standard for the final radon barrier. It is 
intended to better assure that the final radon barrier is completed in 
a timely manner and is adequately constructed to comply with the 
applicable design standard. Thus, it provides an additional assurance 
that public health and the environment are adequately protected. 
Because the final rule is not expected to change the basic procedures 
or construction of the radon barrier, there should be no adverse 
environmental impacts. The environmental assessment and finding of no 
significant impact on which this determination is based are available 
for inspection at the NRC Public Document Room, 2120 L Street NW. 
(Lower Level), Washington, DC. Single copies of the environmental 
assessment and finding of no significant impact are available from 
Catherine R. Mattsen, U. S. Nuclear Regulatory Commission, Washington, 
DC 20555, Phone: (301) 415-6264.

Paperwork Reduction Act Statement

    This final rule amends information collection requirements that are 
subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et 
seq.). These requirements were approved by the Office of Management and 
Budget approval number 3150-0020.
    Public reporting burden for this collection of information is 
estimated to average 156 hours per response, including the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information. Send comments regarding this burden estimate 
or any other aspect of this collection of information, including 
suggestions for reducing this burden, to the Information and Records 
Management Branch (T-6 F33), U.S. Nuclear Regulatory Commission, 
Washington, DC 20555; and to the Desk Officer, Office of Information 
and Regulatory Affairs, NEOB-3019 (3150-0020), Office of Management and 
Budget, Washington, DC 20503.

Regulatory Analysis

    The Commission has prepared a regulatory analysis on this final 
regulation. The analysis examines the costs and benefits of the 
alternatives considered by the Commission. The analysis is available 
for inspection in the NRC Public Document Room, 2120 L Street NW. 
(Lower Level), Washington, DC. Single copies of the analysis may be 
obtained from Catherine R. Mattsen, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555, (301) 415-6264.

Regulatory Flexibility Certification

    In accordance with the Regulatory Flexibility Act of 1980, (5 
U.S.C. 605(b)), the Commission certifies that this rule will not have a 
significant economic impact on a substantial number of small entities. 
There are only 19 NRC uranium mill licensees. Almost all of these mills 
are owned by large corporations. Although a few of the mills are 
partly-owned by companies that might qualify as small businesses under 
the Small Business Administration size standards, the Regulatory 
Flexibility Act incorporates the definition of small business presented 
in the Small Business Act. Under this definition, a small business is 
one that is independently owned and operated and is not dominant in its 
field. Because these mills are not independently owned, they do not 
qualify as small entities.

List of Subjects in 10 CFR part 40

    Criminal penalties, Government contracts, Hazardous materials 
transportation, Nuclear materials, Reporting and recordkeeping 
requirements, Source material, Uranium.

    For the reasons set out in the preamble and under the authority of 
the Atomic Energy Act of 1954, as amended; the Energy Reorganization 
Act of 1974, as amended; and 5 U.S.C. 552 and 553; the NRC is adopting 
the following amendments to 10 CFR part 40.

PART 40--LICENSING OF SOURCE MATERIAL

    1. The authority citation for part 40 continues to read as follows:

    Authority: Secs. 62, 63, 64, 65, 81, 161, 182, 183, 186, 68 
Stat. 932, 933, 935, 948, 953, 954, 955, as amended, secs. 11e(2), 
83, 84, Pub. L. 95-604, 92 Stat. 3033, as amended, 3039, sec. 234, 
83 Stat. 444, as amended (42 U.S.C. 2014(e)(2), 2092, 2093, 2094, 
2095, 2111, 2113, 2114, 2201, 2232, 2233, 2236, 2282); sec. 274, 
Pub. L. 86-373, 73 Stat. 688 (42 U.S.C. 2021); secs. 201, as 
amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 
5841, 5842, 5846); sec. 275, 92 Stat. 3021, as amended by Pub. L. 
97-415, 96 Stat. 2067 (42 U.S.C. 2022).
    Section 40.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat. 
2951 (42 U.S.C. 5851). Section 40.31(g) also issued under sec. 122, 
68 Stat. 939 (42 U.S.C. 2152). Section 40.46 also issued under sec. 
184, 68 Stat. 954, as amended (42 U.S.C. 2234). Section 40.71 also 
issued under sec. 187, 68 Stat. 955 (42 U.S.C. 2237).

    2. In appendix A, add the definitions of as expeditiously as 
practicable considering technological feasibility, available 
technology, factors beyond the control of the licensee, final radon 
barrier, milestone, operation, and reclamation plan to the Introduction 
in alphabetical order; revise Criterion 6; and add Criterion 6A to read 
as follows:

Appendix A to Part 40--Criteria Relating to the Operation of 
Uranium Mills and the Disposition of Tailings or Wastes Produced by 
the Extraction or Concentration of Source Material From Ores 
Processed Primarily for Their Source Material Content

Introduction

* * * * *
    As expeditiously as practicable considering technological 
feasibility, for the purposes of Criterion 6A, means as quickly as 
possible considering: the physical characteristics of the tailings 
and the site; the limits of available technology; the need for 
consistency with mandatory requirements of other regulatory 
programs; and factors beyond the control of the licensee. The phrase 
permits consideration of the cost of compliance only to the extent 
specifically provided for by use of the term available technology.
    Available technology means technologies and methods for 
emplacing a final radon barrier on uranium mill tailings piles or 
impoundments. This term shall not be construed to include 
extraordinary measures or techniques that would impose costs that 
are grossly excessive as measured by practice within the industry 
(or one that is reasonably analogous), (such as, by way of 
illustration only, unreasonable overtime, staffing, or 
transportation requirements, etc., considering normal practice in 
the industry; laser fusion of soils, etc.), provided there is 
reasonable progress toward emplacement of the final radon barrier. 
To determine grossly excessive costs, the relevant baseline against 
which cost shall be compared is the cost estimate for tailings 
impoundment closure contained in the licensee's approved reclamation 
plan, but costs beyond these estimates shall not automatically be 
considered grossly excessive.
* * * * *
    Factors beyond the control of the licensee means factors 
proximately causing delay in meeting the schedule in the applicable 
reclamation plan for the timely emplacement of the final radon 
barrier notwithstanding the good faith efforts of the licensee to 
complete the barrier in compliance with paragraph (1) of Criterion 
6A. These factors may include, but are not limited to--
    (1) Physical conditions at the site;
    (2) Inclement weather or climatic conditions;
    (3) An act of God;
    (4) An act of war;
    (5) A judicial or administrative order or decision, or change to 
the statutory, regulatory, or other legal requirements applicable to 
the licensee's facility that would preclude or delay the performance 
of activities required for compliance;
    (6) Labor disturbances;
    (7) Any modifications, cessation or delay ordered by State, 
Federal, or local agencies;
    (8) Delays beyond the time reasonably required in obtaining 
necessary government permits, licenses, approvals, or consent for 
activities described in the reclamation plan proposed by the 
licensee that result from agency failure to take final action after 
the licensee has made a good faith, timely effort to submit legally 
sufficient applications, responses to requests (including relevant 
data requested by the agencies), or other information, including 
approval of the reclamation plan; and
    (9) An act or omission of any third party over whom the licensee 
has no control.
    Final radon barrier means the earthen cover (or approved 
alternative cover) over tailings or waste constructed to comply with 
Criterion 6 of this appendix (excluding erosion protection 
features).
* * * * *
    Milestone means an action or event that is required to occur by 
an enforceable date.
* * * * *
    Operation means that a uranium or thorium mill tailings pile or 
impoundment is being used for the continued placement of byproduct 
material or is in standby status for such placement. A pile or 
impoundment is in operation from the day that byproduct material is 
first placed in the pile or impoundment until the day final closure 
begins.
* * * * *
    Reclamation plan, for the purposes of Criterion 6A, means the 
plan detailing activities to accomplish reclamation of the tailings 
or waste disposal area in accordance with the technical criteria of 
this appendix. The reclamation plan must include a schedule for 
reclamation milestones that are key to the completion of the final 
radon barrier including as appropriate, but not limited to, wind 
blown tailings retrieval and placement on the pile, interim 
stabilization (including dewatering or the removal of freestanding 
liquids and recontouring), and final radon barrier construction. 
(Reclamation of tailings must also be addressed in the closure plan; 
the detailed reclamation plan may be incorporated into the closure 
plan.)
* * * * *
    Criterion 6 (1) In disposing of waste byproduct material, 
licensees shall place an earthen cover (or approved alternative) 
over tailings or wastes at the end of milling operations and shall 
close the waste disposal area in accordance with a design1 
which provides reasonable assurance of control of radiological 
hazards to (i) be effective for 1,000 years, to the extent 
reasonably achievable, and, in any case, for at least 200 years, and 
(ii) limit releases of radon-222 from uranium byproduct materials, 
and radon-220 from thorium byproduct materials, to the atmosphere so 
as not to exceed an average2 release rate of 20 picocuries per 
square meter per second (pCi/m2s) to the extent practicable 
throughout the effective design life determined pursuant to (1)(i) 
of this Criterion. In computing required tailings cover thicknesses, 
moisture in soils in excess of amounts found normally in similar 
soils in similar circumstances may not be considered. Direct gamma 
exposure from the tailings or wastes should be reduced to background 
levels. The effects of any thin synthetic layer may not be taken 
into account in determining the calculated radon exhalation level. 
If non-soil materials are proposed as cover materials, it must be 
demonstrated that these materials will not crack or degrade by 
differential settlement, weathering, or other mechanism, over long-
term intervals.
---------------------------------------------------------------------------

    \1\In the case of thorium byproduct materials, the standard 
applies only to design. Monitoring for radon emissions from thorium 
byproduct materials after installation of an appropriately designed 
cover is not required.
    \2\This average applies to the entire surface of each disposal 
area over a period of a least one year, but a period short compared 
to 100 years. Radon will come from both byproduct materials and from 
covering materials. Radon emissions from covering materials should 
be estimated as part of developing a closure plan for each site. The 
standard, however, applies only to emissions from byproduct 
materials to the atmosphere.
---------------------------------------------------------------------------

    (2) As soon as reasonably achievable after emplacement of the 
final cover to limit releases of radon-222 from uranium byproduct 
material and prior to placement of erosion protection barriers or 
other features necessary for long-term control of the tailings, the 
licensee shall verify through appropriate testing and analysis that 
the design and construction of the final radon barrier is effective 
in limiting releases of radon-222 to a level not exceeding 20 pCi/
m\2\s averaged over the entire pile or impoundment using the 
procedures described in 40 CFR part 61, appendix B, Method 115, or 
another method of verification approved by the Commission as being 
at least as effective in demonstrating the effectiveness of the 
final radon barrier.
    (3) When phased emplacement of the final radon barrier is 
included in the applicable reclamation plan, the verification of 
radon-222 release rates required in paragraph (2) of this criterion 
must be conducted for each portion of the pile or impoundment as the 
final radon barrier for that portion is emplaced.
    (4) Within ninety days of the completion of all testing and 
analysis relevant to the required verification in paragraphs (2) and 
(3) of this criterion, the uranium mill licensee shall report to the 
Commission the results detailing the actions taken to verify that 
levels of release of radon-222 do not exceed 20 pCi/m\2\s when 
averaged over the entire pile or impoundment. The licensee shall 
maintain records until termination of the license documenting the 
source of input parameters including the results of all measurements 
on which they are based, the calculations and/or analytical methods 
used to derive values for input parameters, and the procedure used 
to determine compliance. These records shall be kept in a form 
suitable for transfer to the custodial agency at the time of 
transfer of the site to DOE or a State for long-term care if 
requested.
    (5) Near surface cover materials (i.e., within the top three 
meters) may not include waste or rock that contains elevated levels 
of radium; soils used for near surface cover must be essentially the 
same, as far as radioactivity is concerned, as that of surrounding 
surface soils. This is to ensure that surface radon exhalation is 
not significantly above background because of the cover material 
itself.
    (6) The design requirements in this criterion for longevity and 
control of radon releases apply to any portion of a licensed and/or 
disposal site unless such portion contains a concentration of radium 
in land, averaged over areas of 100 square meters, which, as a 
result of byproduct material, does not exceed the background level 
by more than: (i) 5 picocuries per gram (pCi/g) of radium-226, or, 
in the case of thorium byproduct material, radium-228, averaged over 
the first 15 centimeters (cm) below the surface, and (ii) 15 pCi/g 
of radium-226, or, in the case of thorium byproduct material, 
radium-228, averaged over 15-cm thick layers more than 15 cm below 
the surface.
    (7) The licensee shall also address the nonradiological hazards 
associated with the wastes in planning and implementing closure. The 
licensee shall ensure that disposal areas are closed in a manner 
that minimizes the need for further maintenance. To the extent 
necessary to prevent threats to human health and the environment, 
the licensee shall control, minimize, or eliminate post-closure 
escape of nonradiological hazardous constituents, leachate, 
contaminated rainwater, or waste decomposition products to the 
ground or surface waters or to the atmosphere.
    Criterion 6A (1) For impoundments containing uranium byproduct 
materials, the final radon barrier must be completed as 
expeditiously as practicable considering technological feasibility 
after the pile or impoundment ceases operation in accordance with a 
written, Commission-approved reclamation plan. (The term as 
expeditiously as practicable considering technological feasibility 
as specifically defined in the Introduction of this appendix 
includes factors beyond the control of the licensee.) Deadlines for 
completion of the final radon barrier and, if applicable, the 
following interim milestones must be established as a condition of 
the individual license: windblown tailings retrieval and placement 
on the pile and interim stabilization (including dewatering or the 
removal of freestanding liquids and recontouring). The placement of 
erosion protection barriers or other features necessary for long-
term control of the tailings must also be completed in a timely 
manner in accordance with a written, Commission-approved reclamation 
plan.
    (2) The Commission may approve a licensee's request to extend 
the time for performance of milestones related to emplacement of the 
final radon barrier if, after providing an opportunity for public 
participation, the Commission finds that the licensee has adequately 
demonstrated in the manner required in paragraph (2) of Criterion 6 
that releases of radon-222 do not exceed an average of 20 pCi/m\2\s. 
If the delay is approved on the basis that the radon releases do not 
exceed 20 pCi/m\2\s, a verification of radon levels, as required by 
paragraph (2) of Criterion 6, must be made annually during the 
period of delay. In addition, once the Commission has established 
the date in the reclamation plan for the milestone for completion of 
the final radon barrier, the Commission may extend that date based 
on cost if, after providing an opportunity for public participation, 
the Commission finds that the licensee is making good faith efforts 
to emplace the final radon barrier, the delay is consistent with the 
definition of available technology, and the radon releases caused by 
the delay will not result in a significant incremental risk to the 
public health.
    (3) The Commission may authorize by license amendment, upon 
licensee request, a portion of the impoundment to accept uranium 
byproduct material or such materials that are similar in physical, 
chemical, and radiological characteristics to the uranium mill 
tailings and associated wastes already in the pile or impoundment, 
from other sources, during the closure process. No such 
authorization will be made if it results in a delay or impediment to 
emplacement of the final radon barrier over the remainder of the 
impoundment in a manner that will achieve levels of radon-222 
releases not exceeding 20 pCi/m\2\s averaged over the entire 
impoundment. The verification required in paragraph (2) of Criterion 
6 may be completed with a portion of the impoundment being used for 
further disposal if the Commission makes a final finding that the 
impoundment will continue to achieve a level of radon-222 releases 
not exceeding 20 pCi/m2s averaged over the entire impoundment. 
In this case, after the final radon barrier is complete except for 
the continuing disposal area, (a) only byproduct material will be 
authorized for disposal, (b) the disposal will be limited to the 
specified existing disposal area, and (c) this authorization will 
only be made after providing opportunity for public participation. 
Reclamation of the disposal area, as appropriate, must be completed 
in a timely manner after disposal operations cease in accordance 
with paragraph (1) of Criterion 6; however, these actions are not 
required to be complete as part of meeting the deadline for final 
radon barrier construction.

    Dated at Rockville, Maryland, this 24th day of May, 1994.

    For the Nuclear Regulatory Commission.
John C. Hoyle,
Acting Secretary of the Commission.
[FR Doc. 94-13248 Filed 5-31-94; 8:45 am]
BILLING CODE 7590-01-P