[Federal Register Volume 59, Number 135 (Friday, July 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-17089]


[[Page Unknown]]

[Federal Register: July 15, 1994]


_______________________________________________________________________

Part III





Environmental Protection Agency





_______________________________________________________________________



40 CFR Part 61




National Emissions Standards for Hazardous Air Pollutants; Final Rule
ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 61

[FRL-5011-1]
RIN 2060-AE23

 
National Emissions Standards for Hazardous Air Pollutants

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is rescinding 40 CFR part 61, subpart T (subpart T) as it 
applies to owners and operators of uranium mill tailings disposal sites 
licensed by the Nuclear Regulatory Commission (NRC) or an affected 
Agreement State (Agreement States). As required by section 112(d)(9) of 
the Clean Air Act as amended, EPA has determined that the NRC 
regulatory program protects public health with an ample margin of 
safety to the same level as would implementation of subpart T. Subpart 
T is a National Emission Standard for Hazardous Air Pollutants 
(NESHAPs) which was published on December 15, 1989 and which regulates 
emissions of radon-222 into the ambient air from uranium mill tailings 
disposal sites. Subpart T continues to apply to unlicensed uranium mill 
tailings disposal sites currently regulated under subpart T that are 
under the control of the Department of Energy (DOE).

DATES: This rule is effective June 29, 1994. The provisions in this 
rule will be applied immediately to all affected facilities including 
existing sources. Under section 307(b)(1) of the Clean Air Act, 
judicial review of this final action is available only by filing a 
petition for review in the United States Court of Appeals for the 
District of Columbia Circuit within 60 days of publication of this 
rule. Under section 307(b)(2) of the Act, the provisions which are the 
subject of today's rule will not be subject to judicial review in any 
civil or criminal proceedings brought by EPA to enforce these 
requirements.

FOR FURTHER INFORMATION CONTACT: Gale C. Bonanno, Risk Assessment and 
Air Standards Branch, Criteria and Standards Division, 6602J, Office of 
Radiation and Indoor Air, Environmental Protection Agency, Washington, 
D.C. 20460 (202) 233-9219.

SUPPLEMENTARY INFORMATION:

Docket

    Docket A-91-67 contains the rulemaking record. The docket is 
available for public inspection between the hours of 8 a.m. and 4 p.m., 
Monday through Friday, in room M1500 of Waterside Mall, 401 M Street, 
SW, Washington, DC 20460. A reasonable fee may be charged for copying.

Table of Contents

I. Background

A. Description of Uranium Mill Tailings
B. Regulatory History
C. Clean Air Act Amendments of 1990
D. Memorandum of Understanding (MOU) between EPA, NRC and affected 
Agreement States
E. The Settlement Agreement

II. Rationale for Final Rule to Rescind 40 CFR Part 61 Subpart T for 
NRC and Agreement State Licensees

A. The Regulatory Scheme Under UMTRCA
B. Clean Air Act Amendments of 1990: Section 112(d)(9) (``Simpson 
Amendment'')
C. Memorandum of Understanding (MOU)
D. Settlement Agreement
E. Actions by NRC and EPA Pursuant to the MOU and Settlement 
Agreement
    1. EPA Regulatory Actions
    2. NRC Regulatory Action
    3. Amendment of NRC and Agreement State Licenses

III. Final Rule to Rescind 40 CFR Part 61, Subpart T for NRC and 
Agreement State Licensees

A. EPA Determination under CAA Section 112(d)(9)
    1. Background
    2. EPA's UMTRCA Standards
    3. NRC's Conforming Regulations
    4. License Amendments
    5. Judicial or Administrative Challenges
B. Reconsideration Provisions
    1. December 31, 1991 Proposed Rule to Rescind subpart T
    2. Reconsideration Options
    3. Reconsideration Provisions Adopted Today

IV. Discussion of Comments and Response to Comments From NPR

V. Miscellaneous

A. Disposition of Pending Judicial Challenges and Petitions for 
Reconsideration
B. Paperwork Reduction Act
C. Executive Order 12866
D. Regulatory Flexibility Analysis

1. Background

A. Description of Uranium Mill Tailings

    Uranium mill tailings are sand-like wastes that result from the 
processing of uranium ore. Tailings are stored in large surface 
impoundments, called piles, in amounts from less than one million tons 
to over thirty million tons, over areas that may cover hundreds of 
acres. Most piles are located in the Western United States, and all 
piles emit radon gas, a decay product of radium in the waste material 
resulting from the processing of ore to recover uranium at the uranium 
mills.

B. Regulatory History

    To deal specifically with the risks associated with these tailings, 
Congress passed the Uranium Mill Tailings Radiation Control Act 
(UMTRCA) in 1978 (42 U.S.C. 2022, 7901-7942). In enacting UMTRCA, 
Congress found that uranium mill tailings may pose a potential and 
significant radiation health hazard to the public, and that every 
reasonable effort should be made to provide for the stabilization, 
disposal, and control in a safe and environmentally sound manner of 
such tailings in order to prevent or minimize radon diffusion into the 
environment and to prevent or minimize other environmental hazards from 
such tailings. See 42 U.S.C. 7901(a). Under UMTRCA, two programs were 
established to protect public health and the environment from the 
hazards associated with uranium mill tailings. One program (Title I) 
required the Department of Energy (DOE) to conduct the necessary 
remedial actions at designated inactive uranium mill tailing sites to 
achieve compliance with the general environmental standards to be 
promulgated by EPA. These sites were generally abandoned uranium 
processing sites for which a license issued by the NRC or its 
predecessor, the Atomic Energy Commission (AEC), was not in effect on 
January 1, 1978. The other program (Title II) pertained to active 
sites, which are those that are licensed by the NRC or an affected 
Agreement State. Requirements for licensed sites include the final 
disposal of tailings, including the control of radon after milling 
operations cease. UMTRCA also required that EPA promulgate standards 
for these licensed sites, including standards that protect human health 
and the environment in a manner consistent with standards established 
under Subtitle C of the Solid Waste Disposal Act, as amended. The NRC, 
or an Agreement State, is responsible for implementing the EPA 
standards at licensed uranium milling sites.
    As part of NRC's 1982 authorization and appropriations, Congress 
amended UMTRCA on January 4, 1983. Public Law 97-415, sections 18(a) 
and 22(b), reprinted in 2 1982 U.S. Code Cong. & Admin. News (96 Stat.) 
2077 and 2080. As partially amended thereby, EPA was required to 
promulgate standards of general applicability for the protection of the 
public health, safety, and the environment from radiological and 
nonradiological hazards associated with the processing and with the 
possession, transfer, and disposal of byproduct material as defined 
under section 11e(2) of the AEA, e.g., uranium mill tailings. 
Requirements established by the NRC with respect to byproduct material 
must conform to the EPA standards. Any requirements of such standards 
adopted by the NRC shall be amended as the NRC deems necessary to 
conform to EPA's standards. In establishing such standards, the 
Administrator was to consider the risk to the public health, safety, 
and the environment, the environmental and economic costs of applying 
such standards, and such other factors as the Administrator determines 
to be appropriate. See 42 U.S.C. 2022(b)(1).
    As promulgated by EPA under subpart D of 40 CFR part 192 in 1983 
and implemented by NRC pursuant to its regulations at 10 CFR part 40, 
appendix A, a Title II site licensed by NRC or an Agreement State, 
could indefinitely continue to emit radon at levels that could result 
in risks higher than allowed under the CAA. It was this possibility 
which compelled EPA to promulgate subpart T of 40 CFR part 61 under CAA 
section 112. In addition, the UMTRCA regulations called for an 
impoundment design that would achieve compliance with the 20 pCi/
m2-s flux standard for 1,000 years, or at least 200 years, but 
prior to the recent EPA amendments did not include any requirement that 
monitoring occur to verify the efficacy of the design.
    On October 16, 1985, NRC promulgated rules at 10 CFR part 40, 
appendix A to conform NRC's regulations issued five years earlier to 
the provisions of EPA's general UMTRCA standards other than those 
affecting groundwater protection at 40 CFR part 192 (50 FR 41852). NRC 
completed conforming amendments for groundwater protection in appendix 
A of 10 CFR part 40 in 1987.
    Neither the UMTRCA standards promulgated by EPA in 1983 nor the NRC 
standards promulgated in 1980 and amended in 1985, established 
compliance schedules to ensure that non-operational tailings piles 
would be closed, and that the 20 pCi/m2-s standard would be met, 
within a reasonable period of time. Moreover, the EPA standards and NRC 
criteria also did not require monitoring to ensure compliance with the 
flux standard. 50 FR 41852 (October 16, 1985). To rectify these 
shortcomings of the then current EPA and NRC programs regulating 
uranium mill tailings, EPA promulgated standards under Section 112 of 
the CAA on October 31, 1989, to ensure that the piles would be closed 
in a timely manner with monitoring.
    On December 15, 1989, EPA published national standards regulating 
radionuclide emissions to the ambient air from several source 
categories, including non-operational sites used for the disposal of 
uranium mill tailings. (54 FR 51654). These sites are either under the 
control of the DOE pursuant to Title I of the Uranium Mill Tailings 
Radiation Control Act (UMTRCA) of 1978, 42 USC 7901 et. seq., or are 
under the control of NRC or Agreement State-licensees pursuant to Title 
II of UMTRCA. These standards--subpart T of 40 CFR part 61 (subpart 
T)--were promulgated pursuant to the authority of Clean Air Act (CAA or 
Act) section 112 as it existed in 1989.
    Prior to today's action, subpart T of 40 CFR part 61, limited 
radon-222 emissions to the ambient air from non-operational uranium 
mill tailings disposal sites licensed by the NRC or an affected 
Agreement State. Subpart T required that these sites, which consist of 
large (i.e., numerous acre) impoundments or piles, comply with a radon 
flux standard of 20 pCi/m2-s. 40 CFR 61.222(a). Moreover, 
compliance must be achieved within two years of when the site becomes 
non-operational, 40 CFR 61.222(b), which for piles which had ceased 
operation prior to the time of promulgation was no later than December 
15, 1991. While at the time of promulgation EPA recognized that many 
sources might not be able to achieve this date, EPA was constrained by 
then existing CAA section 112(c)(1)(B)(ii) which allows a maximum of 
two years for facilities to come into compliance. EPA stated that for 
those sites which could not meet the two-year date, the Agency would 
negotiate expeditious compliance schedules pursuant to its enforcement 
authority under CAA section 113. See 54 FR 51683. Subpart T also called 
for monitoring and recordkeeping to establish and demonstrate 
compliance. See 40 CFR 61.223 and 61.224.
    Subpart T was part of a larger promulgation of radionuclide NESHAPs 
that represent the Agency's application of the policy for regulating 
pollutants under then existing CAA section 112, which was first 
announced in the benzene NESHAPs. 54 FR 38044 (September 14, 1989). The 
NESHAPs policy utilized a two-step approach. In the first step, EPA 
considered the lifetime risk to the maximally exposed individual, and 
found that it is presumptively acceptable if it is no higher than 
approximately one in ten thousand. This presumptive level provides a 
benchmark for judging the acceptability of a category of emissions. 
This first step also considers other health and risk factors such as 
projected incidence of cancer, the estimated number of persons exposed 
within each individual lifetime risk range, the weight of evidence 
presented in the risk assessment, and the estimated incidence of non-
fatal cancer and other health effects. After considering all of this 
information, a final decision on a safe level of acceptable risk is 
made. This becomes the starting point for the second step, determining 
the ample margin of safety.
    In the second step, EPA strives to provide protection for the 
greatest number of persons possible to an individual lifetime risk 
level no higher than approximately one in one million. In this step, 
the Agency sets a standard which provides an ample margin of safety, 
again considering all of the health risk and other health information 
considered in the first step, as well as additional factors such as 
costs and economic impacts of controls, technological feasibility, 
uncertainties, and any other relevant factors.
    EPA noted that standards it had already promulgated pursuant to 
UMTRCA (42 U.S.C. 2022, 7901-7942) would eventually limit radon 
emissions from those sites to a flux of 20 pCi/m\2\-s (see 40 CFR part 
192, subpart D), and thus EPA referred to that level as ``baseline.'' 
EPA's risk assessment revealed that compliance with the 20 pCi/m\2\-s 
baseline would result in an estimated lifetime risk to the maximally 
exposed individual of approximately 1 x 10-4, a level EPA 
determined to be safe under the first step of the analysis. EPA further 
concluded in the second step, which considers additional factors such 
as cost and technological feasibility, that the baseline level also 
provided an ample margin of safety.
    Even though EPA determined that the baseline was protective of 
public health with an ample margin of safety, EPA still found it was 
necessary to promulgate subpart T. This was because the baseline 
assumed compliance with the UMTRCA regulations even though those 
regulations did not require that compliance occur in the foreseeable 
future and, in fact, many sites were not proceeding towards the 
baseline level at the time subpart T was promulgated. In other words, 
EPA promulgated subpart T to address the timing issue, which was not 
addressed in the UMTRCA regulations.
    The primary subpart T standard is the requirement that radon-222 
emissions not exceed a flux of 20 pCi/m\2\-s. 40 CFR 61.222(a). 
Additionally, it requires that, once a uranium mill tailings pile or 
impoundment ceases to be operational, it must be disposed of and 
brought into compliance with the emission limit within two years of the 
effective date of the standard (by December 15, 1991) or within two 
years of the day it ceases to be operational, whichever is later. 
Lastly, it requires monitoring of the disposed pile to demonstrate 
compliance with the radon emission limit. See 40 CFR 61.223 and 61.224. 
In its 1989 action, EPA recognized that even though NRC implements 
general EPA standards (promulgated under UMTRCA) which also regulate 
these sites and call for compliance with a 20 pCi/m\2\-s flux standard 
(see 40 CFR part 192, subpart D), the UMTRCA regulatory program did not 
answer the critical timing concern addressed by subpart T.

    The existing UMTRCA regulations set no time limits for disposal 
of the piles. Some piles have remained uncovered for decades 
emitting radon. Although recent action has been taken to move toward 
disposal of these piles, some of them may still remain uncovered for 
years.

54 FR at 51683. However, due to then-existing CAA section 
112(c)(1)(B)(ii), EPA was constrained to requiring compliance with the 
20 pCi/m\2\-s baseline within two years, a date the Agency recognized 
many sites might find impossible to meet. EPA announced that those 
situations could be dealt with through site-specific enforcement 
agreements under CAA section 113. Because EPA felt constrained by the 
CAA as it existed at that time, EPA stated that for those sites the 
Agency would negotiate expeditious compliance schedules pursuant to its 
enforcement authority under CAA section 113. See 54 FR 51683. By so 
doing, subpart T in effect mandated that the cover to meet that 
emissions level be installed as expeditiously as practicable 
considering technological feasibility.
    The numerical radon emission limit of subpart T is the same as the 
UMTRCA standard at 40 CFR part 192, subpart D (subpart D) (although 
under UMTRCA, the limit is to be met through proper design of the 
disposal impoundment, and is to be implemented by DOE and NRC for the 
individual sites, while under the CAA, the standard is an emissions 
limit with compliance established by EPA through monitoring). However, 
the two year disposal requirement and the radon monitoring requirement 
were not separately required by the then existing UMTRCA regulations.
    EPA amended 40 CFR part 192, subpart D on November 15, 1993, (58 FR 
60340) to fill a specific regulatory gap with respect to timing and 
monitoring. Under subpart D, sites are now required to construct a 
permanent radon barrier pursuant to a design to achieve compliance with 
the 20 pCi/m\2\-s flux standard as expeditiously as practicable 
considering technological feasibility (including factors beyond the 
control of the licensee). EPA announced its goal that this occur by 
December 31, 1997, for those non-operational uranium mill tailings 
piles listed in the MOU between EPA, NRC and the affected Agreement 
States (at 56 FR 67568), or seven years after the date on which the 
impoundments cease operation for all other piles. The new requirement 
for verifying the flux with monitoring is meant to assure the efficacy 
of the design of the permanent radon barrier following construction.
    Section 84a(2) of the Atomic Energy Act requires NRC to conform its 
regulations to EPA's regulations promulgated under UMTRCA. As noted 
above, the then existing NRC criteria while providing a comprehensive 
response to EPA's general UMTRCA standards did not compel sites to 
proceed to final closure by a certain date nor did they require 
monitoring to confirm the efficacy of the design of the cover. NRC 
proposed uranium mill tailings regulations to conform the NRC 
requirements to EPA's proposed amended standards at 40 CFR part 192 
subpart D. 58 FR 58657 (November 3, 1993). The final NRC regulations 
amend Criterion 6 and add a new Criterion 6A together with new 
definitions in the Introduction to appendix A to part 40 of title 10 of 
the CFR. (59 FR 28220, June 1, 1994).
    These CAA and UMTRCA programs duplicate each other by creating dual 
regulatory oversight, including independent procedural requirements, 
while seeking to ensure compliance with the same numerical 20 pCi/m\2\-
s flux standard. Concern over this duplication inspired several 
petitions for reconsideration, most notably from NRC, the American 
Mining Congress (AMC) and Homestake Mining Co. It was also alleged that 
subpart T was unlawful because it was physically impossible for some 
sites to come into compliance with subpart T in the time required. 
While those petitions remained pending before EPA (at least in part), 
EPA has taken several actions to address the issues they raised, 
including publishing the proposal to rescind subpart T, as well as the 
Final Rule to amend 40 CFR part 192, subpart D (UMTRCA regulations) and 
a Final Rule staying subpart T pending the conclusion of this 
rulemaking.

C. Clean Air Act Amendments of 1990

    After promulgation of subpart T (and receipt of reconsideration 
petitions), the Clean Air Act was substantially amended in November 
1990. Included in the amended Act was an amendment that speaks directly 
to the duplication issue. Newly enacted section 112(d)(9) provides that 
no standard for radionuclide emissions from any category or subcategory 
of facilities licensed by the Nuclear Regulatory Commission (or an 
Agreement State) is required to be promulgated under section 112 if the 
Administrator determines, by rule, and after consultation with the 
Nuclear Regulatory Commission, that the regulatory program established 
by the Nuclear Regulatory Commission pursuant to the Atomic Energy Act 
for such category or subcategory provides an ample margin of safety to 
protect the public health. This provision strives to eliminate 
duplication of effort between EPA and NRC, so long as public health is 
protected with an ample margin of safety.
    Moreover, Congress expressed sensitivity to the special compliance 
problems of uranium mill tailings sites through new section 112(i)(3). 
This provision provides an additional 3-year extension to mining waste 
operations (e.g., uranium mill tailings) if the 4 years allowed 
(including a one year extension) for compliance with standards 
promulgated under the amended section 112 is insufficient to dry and 
cover the mining waste (thereby controlling emissions).

D. Memorandum of Understanding (MOU) Between EPA, NRC and Affected 
Agreement States

    In July of 1991, EPA, NRC and the affected Agreement States entered 
into discussions over the dual regulatory programs established under 
UMTRCA and the CAA. In October 1991, those discussions resulted in a 
Memorandum of Understanding (MOU) between EPA, NRC and the Agreement 
States which outlines the steps each party will take to both eliminate 
regulatory redundancy and to ensure uranium mill tailings piles are 
closed as expeditiously as practicable. See 56 FR 55434 (MOU reproduced 
as part of proposal to stay subpart T); see also 56 FR 67537 (final 
rule to stay subpart T). The primary purpose of the MOU is to ensure 
that owners of uranium mill tailings disposal sites that have ceased 
operation, and owners of sites that will cease operation in the future, 
bring those piles into compliance with the 20 pCi/m\2\-s flux standard 
as expeditiously as practicable considering technological feasibility 
(including factors beyond the control of the licensee) with the goal 
that all current disposal sites be closed and in compliance with the 
radon emission standard by the end of 1997, or within seven years of 
the date on which existing operations and standby sites enter disposal 
status. This goal comports with Congress's concern over timing as 
reflected in CAA section 112(i)(3), as amended.

E. The Settlement Agreement

    As contemplated by the MOU, on December 31, 1991, EPA took final 
action to stay and proposed rescission of subpart T under section 
112(d)(9), and issued an advance notice of proposed rulemaking under 
UMTRCA. See 55 FR 67537, 67561 and 67569. In order to preserve its 
rights, EDF filed a lawsuit challenging the legality of the stay. EDF 
v. Reilly, No. 92-1082 (D.C. Cir.). Litigation had previously been 
filed by EDF, NRDC, AMC, Homestake and others, challenging subpart T. 
AMC, et al. v. EPA, Nos. 90-1058, 90-1063, 90-1068, and 90-1074 (D.C. 
Cir.). NRC, AMC and Homestake had also filed an administrative petition 
for reconsideration of subpart T.
    Discussions continued with the litigants and NRC, and in February 
1993, an agreement was reached to settle the pending litigation and the 
administrative proceeding, avoid potential future litigation, and 
otherwise agree to a potential approach to regulation of NRC-licensed 
non-operational uranium mill tailings disposal sites. See 58 FR 17230 
(April 1, 1993) (notice announcing settlement agreement under CAA 
section 113(g)). NRC agreed in principle with the agreement by letter.
    The settlement agreement adds comprehensive detail to, and thereby 
continues, the approach set forth in the MOU. Actions implemented under 
the settlement agreement should result in the expeditious control of 
radon-222 emissions at non-operational uranium mill tailings disposal 
sites without the delays and resource expenditures engendered by 
litigation and contentious administrative process. This enables EPA to 
satisfy the criteria of section 112(d)(9) that EPA find, by rule, that 
the NRC regulatory program protects public health with an ample margin 
of safety. It does this, in part, by providing for changing EPA's 
UMTRCA regulations such that public health would be as well protected 
under UMTRCA as would implementation of subpart T under the CAA.

II. Rationale for Final Rule To Rescind 40 CFR Part 61 Subpart T for 
NRC and Agreement State Licensees

    In light of the new statutory authority provided EPA by section 
112(d)(9) of the Clean Air Act as amended, EPA met with NRC and the 
affected Agreement States to determine whether, with certain 
modifications to its regulatory program under UMTRCA, the NRC 
regulatory program might provide an ample margin of safety. If so, 
subpart T would be rendered superfluous and, therefore, needlessly 
duplicative and burdensome such that rescission pursuant to CAA section 
112(d)(9) would be appropriate.
    In applying the risk methodology for CAA section 112 to the risk 
assessment for subpart T, EPA has already determined that the baseline 
that would result once the 20 pCi/m\2\-s UMTRCA standard is met 
protects public health with an ample margin of safety. Thus, since the 
regulatory program implemented by NRC assures that sites will achieve 
the baseline (20 pCi/m\2\-s) as soon as practicable considering 
technological feasibility and factors beyond the control of the 
licensee, the NRC program protects the public to the same extent as 
subpart T, and subpart T is not necessary for these facilities. More 
specifically, appropriate modifications to the UMTRCA regulatory scheme 
as implemented by NRC and the affected Agreement States to ensure 
specific, enforceable closure deadlines and monitoring requirements 
such that compliance with the baseline occurs as expeditiously as 
practicable considering technological feasibility and factors beyond 
the control of the licensee, protect public health with an ample margin 
of safety. In so concluding, EPA relies wholly upon the risk analysis 
it conducted in promulgating subpart T. EPA is not revisiting that 
analysis here.

A. The Regulatory Scheme Under UMTRCA

    As a supplement to the Atomic Energy Act of 1954, as amended, 
UMTRCA (42 U.S.C. 2022, 7901-7942) was enacted to comprehensively 
address the dangers presented by uranium mill tailings, including their 
disposal:

    Uranium mill tailings located at active and inactive mill 
operations may pose a potential and significant radiation health 
hazard to the public, and * * * the protection of the public health, 
safety, and welfare * * * require[s] that every reasonable effort be 
made to provide for the stabilization, disposal, and control in a 
safe and environmentally sound manner of such tailings in order to 
prevent or minimize radon diffusion into the environment * * *.

42 U.S.C. 7901(a); see American Mining Congress v. Thomas, 772 F.2d 617 
(10th Cir. 1985), cert. denied, 426 U.S. 1158 (1986). As to uranium 
mill tailings disposal sites in particular, UMTRCA gives the Department 
of Energy (DOE) the responsibility to clean up and dispose of certain 
sites (i.e., Title I), and gives NRC the responsibility for regulating 
those sites that are owned and operated by its licensees (i.e., Title 
II). EPA is responsible for promulgating the generally applicable 
environmental standards to be implemented by both NRC and DOE. 42 
U.S.C. 2022(a), 7911-7924; AMC, 724 F.2d at 621. EPA published its 
final UMTRCA regulations on December 15, 1982 for Title I sites and on 
September 30, 1983 for Title II sites. 48 FR 590 and 48 FR 45926 
(codified at 40 CFR part 192).
    Parts of EPA's final UMTRCA regulations are directed to the 
permanent disposal of uranium mill tailings. See 40 CFR part 192, 
subpart D. Among the requirements of subpart D is the mandate that 
radon releases from the disposal sites not exceed a flux of 20 pCi/
m\2\-s. 40 CFR 192.32 (a) and (b). Other aspects of subpart D pertain 
to groundwater, monitoring, design, and duration of closure. See 40 CFR 
192.32 and 192.33. With the exception of the groundwater provisions at 
40 CFR 192.20(a)(2)-(3), applicable to Title I sites, all aspects of 
EPA's regulations were upheld by the Tenth Circuit in AMC v. Thomas. 
772 F.2d at 640. EPA is currently engaged in rulemaking to address the 
court's remand of the Title I groundwater provisions.
    Because NRC implements EPA's general UMTRCA standards for its 
licensees (as do its Agreement States), it has promulgated its own 
implementing regulations in the form of ``criteria.'' See generally 10 
CFR part 40, appendix A. While these criteria set forth a variety of 
specific requirements--financial, technical, and administrative--to 
govern the final reclamation (i.e., closure) design for each disposal 
site, they also provide for ``site-specific'' flexibility by 
authorizing alternatives that are at least as stringent as EPA's 
general standards and NRC's criteria, ``to the extent practicable'' as 
provided in section 84c of the Atomic Energy Act of 1954, as amended. 
10 CFR part 40, appendix A, Introduction.
    Overall, NRC's implementation criteria set forth a rigorous program 
governing the reclamation of the disposal sites so that closure will 
(1) last for 1,000 years to the extent reasonable, but in any event at 
least 200 years, and (2) limit radon release to 20 pCi/m2-s 
throughout that period. The design must be able to withstand extreme 
weather and other natural forces. Upon review, EPA believed the NRC 
criteria comprise a comprehensive response to EPA's general standards 
at 40 CFR part 192, subpart D. However, as noted above, nothing in 
either EPA's 1983 general standards or NRC's 1985 amended implementing 
criteria compelled sites to proceed towards final closure by a certain 
date. This was the reason for EPA's decision in 1989 to promulgate the 
subpart T NESHAPs under the CAA. Moreover, neither EPA's general UMTRCA 
regulations, nor NRC's implementing criteria previously required 
appropriate monitoring to ensure compliance with the 20 pCi/m2-s 
standard.

B. Clean Air Act Amendments of 1990: Section 112(d)(9) (``Simpson 
Amendment'')

    The purpose of this provision is to preserve governmental resources 
and avoid needless, burdensome, and potentially contradictory CAA 
regulations. Specifically, section 112(d)(9) makes explicit that EPA 
need not regulate radionuclides under section 112 of the CAA for those 
radionuclide sources that are sufficiently regulated by NRC or its 
Agreement States (under the Atomic Energy Act or its component Acts, 
such as UMTRCA). More particularly, section 112(d)(9) allows EPA to 
decline to regulate under section 112 if the Administrator determines 
``by rule, and after consultation with the [NRC],'' that NRC's 
regulatory program for a particular source ``category or subcategory 
provides an ample margin of safety to protect the public health.''
    As EPA interprets section 112(d)(9), the Agency may rescind the 
subpart T NESHAP as it applies to non-operational uranium mill tailings 
disposal facilities licensed by NRC or an affected Agreement State if 
the Agency (1) consults with NRC, (2) engages in public notice and 
comment rulemaking, and (3) finds that the separate NRC regulatory 
program provides an equivalent level of public health protection (i.e., 
an ample margin of safety) as would implementation of subpart T. While 
this rulemaking may commence prior to final development of NRC's 
regulatory program, that program must fully satisfy the statute at the 
time EPA takes final action. In so doing, EPA must find that the NRC 
regulatory program satisfies the CAA standard, not that full and final 
implementation of that program has already successfully occurred.

C. Memorandum of Understanding (MOU)

    EPA, NRC and the affected Agreement States entered intensive 
discussions resulting in the execution of a Memorandum of Understanding 
(MOU), a copy of which was printed at the end of the proposed rule to 
rescind subpart T published December 31, 1991 (56 FR 67568). The 
primary purpose of the MOU is to ensure that non-operational uranium 
mill tailings piles and impoundments licensed by NRC or an affected 
Agreement State achieve compliance through emplacement of a permanent 
radon barrier with the 20 pCi/m2-s flux standard specified in 
EPA's UMTRCA standards (40 CFR 192.32(b)(1)) as expeditiously as 
practicable considering technological feasibility (including factors 
beyond the control of the licensee). The goal is that this occur at all 
current disposal sites by the end of 1997, or within seven years of 
when the existing operating and standby sites enter disposal status. 
The MOU called for EPA to modify its UMTRCA regulations (at 40 CFR part 
192, subpart D) to address the timing concern that resulted in EPA's 
1989 decision to promulgate subpart T. In addition, the MOU called for 
NRC to modify its implementing regulations at 10 CFR part 40, appendix 
A, as appropriate, and to immediately commence efforts to amend the 
licenses of the non-operational mill tailings disposal site owners and 
operators to include reclamation plans that require compliance with the 
20 pCi/m2-s standard as expeditiously as practicable considering 
technological feasibility (including factors beyond the control of the 
licensee). This was to be accomplished either through voluntary 
cooperation with the licensees, or through administratively enforceable 
orders. In accordance with the MOU, the NRC and affected Agreement 
States agreed to amend the licenses of all sites whose milling 
operations have ceased and whose tailings piles remain partially or 
totally uncovered. The amended licenses would require each mill 
operator to establish a detailed tailings closure plan for radon to 
include key closure milestones and a schedule for timely emplacement of 
a permanent radon barrier on all non-operational tailings impoundments 
to ensure that radon emissions do not exceed a flux of 20 pCi/m2-
s. These actions, coupled with NRC's commitment to enforce the amended 
licenses, are intended to provide the basis for EPA to make the 
requisite findings under CAA section 112(d)(9) for rescission of 
subpart T.

D. Settlement Agreement

    In light of CAA section 112(d)(9), and in order to foster a 
consensus approach to regulation in this area, EPA then commenced 
discussions with NRC, the American Mining Congress (AMC), and the 
Environmental Defense Fund (EDF). As a result of discussions after 
execution of the MOU, a final settlement agreement was executed between 
EPA, AMC, EDF, NRDC and individual site owners, to which NRC agreed in 
principle by letter. The settlement agreement continues the regulatory 
approach set forth in the MOU adding extensive detail to that 
agreement.
    Under the agreement between EDF, AMC, individual sites and EPA, the 
pending litigation would not be dismissed until after certain terms in 
the agreement were fulfilled. The parties agreed that upon rescission 
of subpart T, they would jointly move the court to dismiss the 
challenges pertaining solely to subpart T. (Paragraph III.1.) By the 
terms of the agreement (paragraph III.15.), AMC's pending 
administrative petition for reconsideration of subpart T becomes moot 
with the final rescission of subpart T. Moreover, the agreement does 
not legally bind or otherwise restrict EPA's rights or obligations 
under law; rather, by its terms (paragraph III.12.), there is no 
recourse for a court order to implement the agreement. Indeed, the only 
remedy for failure to meet the terms of the final agreement is 
activation by the litigants of the underlying litigation.

E. Actions by NRC and EPA Pursuant to the MOU and Settlement Agreement

1. EPA Regulatory Actions
    On December 31, 1991, EPA took several steps towards fulfilling its 
responsibilities under the MOU and in implementing CAA section 
112(d)(9) by publishing three Federal Register (FR) notices. In the 
first notice (56 FR 67537), EPA published a Final Rule to stay the 
effectiveness of 40 CFR part 61, subpart T, as it applies to owners and 
operators of non-operational uranium mill tailings disposal sites 
licensed by the NRC or an Agreement State. The stay will remain in 
effect until the Agency rescinds the uranium mill tailings NESHAPs at 
40 CFR part 61, subpart T. However, if EPA fails to complete that 
rulemaking by June 30, 1994, the stay will expire and the requirements 
of subpart T will become effective.
    In a second notice published on December 31, 1991, the Agency 
proposed to rescind the NESHAPs for radionuclides that appears at 40 
CFR part 61, subpart T, as it applies to non-operational uranium mill 
tailings disposal sites licensed by the NRC or an Agreement State (56 
FR 67561).
    In the third notice, EPA published an advanced notice of proposed 
rulemaking to amend 40 CFR part 192, subpart D (56 FR 67569) to provide 
for site closure to occur as expeditiously as practicable considering 
technological feasibility (including factors beyond the control of the 
licensee), and appropriate monitoring requirements for non-operational 
uranium mill tailings piles. These amendments would ensure timely 
compliance and add monitoring requirements currently lacking in the 
UMTRCA regulations.
    EPA published a notice on June 8, 1993, proposing to amend 40 CFR 
part 192, subpart D. (58 FR 32174). On November 15, 1993, EPA published 
the Final Rule amending 40 CFR part 192, subpart D. (58 FR 60340). This 
Final Rule requires: (1) Emplacement of a permanent radon barrier 
constructed to achieve compliance with, including attainment of, the 20 
pCi/m2-s flux standard by all NRC or Agreement State licensed 
sites that, absent rescission, would be subject to subpart T; (2) 
interim milestones to assure appropriate progress in emplacing the 
permanent radon barrier; and (3) closure of the site closure as 
expeditiously as practicable considering technological feasibility 
(including factors beyond the control of the licensee) after the 
impoundments cease operation. EPA announced a goal that this occur by 
December 31, 1997, for those non-operational uranium mill tailings 
piles listed in the MOU between EPA, NRC and affected Agreement States 
(at 56 FR 67568), or seven years after the date on which the 
impoundments cease operation for all other piles.
    As intended by EPA, the phrase ``as expeditiously as practicable 
considering technological feasibility,'' means as quickly as possible 
considering: (1) The physical characteristics of the tailings and 
sites; (2) the limits of available technology; (3) the need for 
consistency with mandatory requirements of other regulatory programs; 
and (4) factors beyond the control of the licensee. While this phrase 
does not preclude economic considerations to the extent provided by the 
phrase ``available technology,'' it also does not contemplate 
utilization of a cost-benefit analysis in setting compliance schedules. 
The radon control compliance schedules are to be developed consistent 
with the targets set forth in the MOU as reasonably applied to the 
specific circumstances of each site.
    EPA recognized that the UMTRCA regulatory scheme encompasses a 
design standard. EPA made minor amendments to this scheme to better 
facilitate implementation of the regulation without fundamentally 
altering the current method of compliance. Subpart D, as amended, 
requires site control be carried out in accordance with a written 
tailings closure plan (radon), and in a manner which ensures that 
closure activities are initiated as expeditiously as practicable 
considering technological feasibility (including factors beyond the 
control of licensees). The tailings closure plan (radon), either as 
originally written or subsequently amended, will be incorporated into 
the individual site licenses, including provisions for and amendments 
to the milestones for control, after NRC or an affected Agreement State 
finds that the schedule reflects compliance as expeditiously as 
practicable considering technological feasibility (including factors 
beyond the control of the licensee). The compliance schedules are to be 
developed consistent with the targets set forth in the MOU as 
reasonably applied to the specific circumstances of each site with a 
goal that final closure occur by December 31, 1997, for those non-
operational uranium mill tailings piles listed in the MOU between EPA, 
NRC and affected Agreement States (at 56 FR 67568), or seven years 
after the date on which the impoundments cease operation for all other 
piles. These schedules must include key closure milestones and other 
milestones which are reasonably determined to promote timely compliance 
with the 20 pCi/m2-s flux standard. Milestones which are not 
reasonably determined to advance timely compliance with the radon air 
emissions standard, e.g. installation of erosion protection and 
groundwater corrective actions, are not relevant to the tailings 
closure plans (radon). In addition, subpart D requires that licensees 
ensure that radon closure milestone activities, such as wind blown 
tailings retrieval and placement on the pile, interim stabilization 
(including dewatering or the removal of freestanding liquids and 
recontouring), and radon barrier construction, are undertaken to 
achieve compliance with, including attainment of, the 20 pCi/m2-s 
flux standard as expeditiously as practicable considering technological 
feasibility.
    The goal of the amendments to subpart D is for existing sites, or 
those that become non-operational in the future, to achieve compliance 
as expeditiously as practicable considering technological feasibility 
(including factors beyond the control of licensees) within the time 
periods set forth in the MOU, including Attachment A thereto, and for 
new sites to achieve compliance no later than seven years after 
becoming non-operational.
    However, if the NRC or an Agreement State makes a finding that 
compliance with the 20 pCi/m2-s flux standard has been 
demonstrated through appropriate monitoring, after providing an 
opportunity for public participation, then the performance of the 
milestone(s) may be extended. If an extension is granted, then during 
the period of the extension, compliance with the 20 pCi/m2-s flux 
standard must be demonstrated each year. Additionally, licensees may 
request, based upon cost, that the final compliance date for 
emplacement of the permanent radon barrier, or relevant milestone set 
forth in the applicable license or incorporated in the tailings closure 
plan (radon), be extended. The NRC or an affected Agreement State may 
approve such a request if it finds, after providing the opportunity for 
public participation, that: (1) The licensee is making good faith 
efforts to emplace a permanent radon barrier constructed to achieve the 
20 pCi/m2-s flux standard; (2) such delay is consistent with the 
definition of ``available technology;'' and (3) such delay will not 
result in radon emissions that are determined to result in significant 
incremental risk to the public health. Such a finding should be 
accompanied by new deadlines which reasonably correspond to the target 
dates identified in Attachment A of the MOU. (56 FR 67569).
    EPA expects the NRC and Agreement States to act consistently with 
their commitment in the MOU and provide for public notice and comment 
on proposals or requests to (1) incorporate radon tailings closure 
plans or other schedules for effecting emplacement of a permanent radon 
barrier into licenses and (2) amend the radon tailings closure 
schedules as necessary or appropriate for reasons of technological 
feasibility (including factors beyond the control of the licensees). 
Under the terms of the MOU, NRC should do so with notice timely 
published in the Federal Register. In addition, consistent with the 
MOU, members of the public may request NRC action on these matters 
pursuant to 10 CFR 2.206. EPA also expects the Agreement States to 
provide comparable opportunities for public participation pursuant to 
their existing authorities and procedures.
    The UMTRCA regulations, as promulgated by EPA and implemented by 
NRC prior to the 1993 amendments, while ultimately limiting emissions 
to the same numerical level as subpart T, were supported by a variety 
of design-based substantive and procedural requirements that speak to 
UMTRCA's unique concern that final site closure occur in a manner that 
will last 1,000 years or at least 200 years, but did not require 
monitoring of emissions to confirm the performance of the earthen 
cover. See generally 10 CFR part 40, appendix A and 40 CFR part 192. 
Subpart D, as amended, requires all appropriate monitoring be conducted 
pursuant to the procedures described in 40 CFR part 61, appendix B, 
Method 115, or any other measurement method proposed by a licensee and 
approved by NRC or the affected Agreement State as being at least as 
effective as EPA Method 115 in demonstrating the effectiveness of the 
permanent radon barrier in achieving compliance with the 20 pCi/
m2-s flux standard. After emplacement of a permanent radon barrier 
designed and constructed to achieve compliance with, including 
attainment of, the 20 pCi/m2-s flux standard, the licensee shall 
conduct appropriate monitoring and analysis of the radon flux through 
the barrier. This monitoring will verify that the design of the 
permanent radon barrier is effective in ensuring that emissions of 
radon-222 will not exceed compliance with the 20 pCi/m2-s flux 
standard, as contemplated by 40 CFR 192.32(b)(1)(ii). EPA intends that 
the permanent radon barrier be designed to ensure sustained compliance 
with the 20 pCi/m2-s flux standard by all sites, but does not 
require continuous emissions monitoring. Rather, a single monitoring 
event may suffice to verify the design of the permanent radon barrier 
to ensure continued compliance. Note, however, that if the NRC or an 
Agreement State extends the time for performance of milestones based on 
a finding that compliance with the 20 pCi/m2-s flux standard has 
been demonstrated by appropriate monitoring, compliance with the 20 
pCi/m2-s flux standard must be demonstrated each year during the 
period of the extension.
2. NRC Regulatory Action
    On May 20, 1994, the Commissioners approved final amendments 
conforming 10 CFR part 40, appendix A to 40 CFR part 192, subpart D. 
The final regulations adopted by NRC amend Criterion 6, add a new 
Criterion 6A and new definitions contained in the Introduction to 
appendix A. Criterion 6 was revised to provide for appropriate 
verification that the ``final'' (or ``permanent'' as defined by EPA) 
radon barrier, as designed and constructed, is effective in controlling 
releases of radon-222 to a level no greater than 20 pCi/m2-s when 
averaged over the entire pile or impoundment. Criterion 6(2) (59 FR 
28220, June 1, 1994). The licensee must use EPA Method 115, or another 
method approved by the NRC as being at least as effective in 
demonstrating the effectiveness of the ``final'' radon barrier. Id. If 
the reclamation plan specifies phased emplacement of the ``final'' 
radon barrier, the verification must be performed on the portion of the 
pile or impoundment as the ``final'' radon barrier for that portion is 
emplaced. Additionally, certain reporting and recordkeeping is required 
in connection with the verification of the effectiveness of the 
``final'' radon barrier. Criterion 6(4) (59 FR 28220, June 1, 1994).
    The Introduction section of appendix A to part 40 was amended by 
adding the following definitions: as expeditiously as practicable 
considering technological feasibility, available technology, factors 
beyond the control of the licensee, final radon barrier, milestone, 
operation and reclamation plan. While supbart D requires emplacement of 
the ``permanent'' radon barrier, NRC requires emplacement of the 
``final'' radon barrier. According to NRC, the definition of final 
radon barrier, is intended to ``facilitate the drafting of clear 
regulatory text and to eliminate any ambiguity with respect to 
compliance with the 20 pCi/m2-s `flux standard' after completion 
of the final earthen barrier and not as a result of any temporary 
conditions or interim measures.'' (59 FR 28222, June 1, 1994). The 
final definitions of factors beyond the control of the licensee and 
available technology have been revised to include a list of possible 
factors and examples of grossly excessive costs respectively, 
consistent with subpart D.
    Criterion 6A paragraph 1 requires completion of the ``final'' radon 
barrier as expeditiously as practicable considering technological 
feasibility after a pile or impoundment containing uranium byproduct 
materials ceases operation, and requires it to be done in accordance 
with a written Commission-approved reclamation plan. In addition, this 
paragraph requires inclusion of specified interim milestones as a 
condition of the individual site license. Criterion 6A also specifies 
the conditions for Commission approval of extensions for performance of 
milestones and continued acceptance of uranium byproduct and other 
materials in the pile or impoundment. 10 CFR part 40, appendix A 
Criterion 6A (2) and (3) (59 FR 28220, June 1, 1994). These provisions 
vary somewhat from NRC's proposal, to reflect changes made in EPA's 
final amendments to subpart D at Secs. 192.32(a)(3) (iv) and (v). The 
changes are ``(1) that only byproduct material, not `similar' material, 
will be approved for continued disposal after the final radon barrier 
is essentially complete and the verification of radon flux levels has 
been made, and (2) that public participation is specifically to be 
provided for only in the case of continued disposal after radon flux 
verification, in addition to general clarification of the paragraph.'' 
(59 FR 28224, June 1, 1994).
    Additionally, NRC's final regulations in Criterion 6A provide for 
public participation consistent with the MOU and the settlement 
agreement. Such public participation will be provided through a notice 
published in the Federal Register including the opportunity for public 
comment on the proposed license amendment and the opportunity to 
request an informal hearing in accordance with the Commission's 
regulations at 10 CFR part 2, subpart L. The final regulations contain 
various revisions to NRC's proposal, both substantive and editorial in 
nature, primarily for consistency with EPA's final amendments to 
subpart D.
    EPA believes the final revisions clarify NRC's proposal. EPA 
further believes that although NRC's conforming regulations are not 
identical to subpart D, the differences are minor in nature, and 
properly reflect application of the subpart D requirements to NRC's 
separate regulatory program. NRC's final rule appropriately conforms 
its regulations to 40 CFR part 192 subpart D. EPA notes that NRC's 
conforming amendments are an important consideration in EPA's 
determination that the NRC regulatory program protects the public 
health with an ample margin of safety.
3. Amendment of NRC and Agreement State Licenses
    Consistent with their commitments under the MOU, as well as EPA's 
previous proposal to rescind subpart T (56 FR 67561 December 31, 1991), 
NRC and the affected Agreement States agreed to amend the licenses of 
all non-operational uranium mill tailings sites to ensure inclusion of 
schedules for emplacing a permanent radon barrier on the tailings 
impoundments, as well as interim milestones (e.g., wind blown tailings 
retrieval and placement on the pile, and interim stabilization). To 
this end, NRC and the Agreement States requested the licensees to 
voluntarily seek amended licenses and have completed processing those 
requests. NRC has continued the spirit of cooperation between EPA and 
NRC by keeping the Agency apprised of the status of the approval of 
reclamation plans and amendment of licenses.
    As of September 30, 1993, NRC and the Agreement States had 
completed all license amendments for closure of licensed non-
operational impoundments, with the exception of the license amendment 
incorporating the reclamation plan for the Atlas site located in Moab, 
Utah.
    NRC informed EPA by letter that the Commission received extensive 
comments on NRC's July 20, 1993 proposal to approve the Atlas 
reclamation plan, including the closure schedule and interim milestones 
required by the MOU, and the Environmental Assessment and the Finding 
of No Significant Impact for the Atlas mill. NRC rescinded its Finding 
of No Significant Impact for the Atlas mill in October 1993. (58 FR 
52516, October 8, 1993). One issue appears to be the potential for 
flooding of the Atlas impoundment if it is reclaimed on-site, due to 
the proximity of the site to the Colorado River. This concern and 
others appear to have caused delays in the license amendment for this 
site. NRC is actively pursuing a timely final decision on the 
acceptability of the existing Atlas site and its reclamation plan. To 
this end, NRC informed EPA by letter dated December 28, 1993, that NRC 
has conducted several meetings with the various representatives 
enumerated above and has requested additional technical information 
from the licensee. On March 30, 1994, NRC published a Notice of Intent 
to Prepare an Environmental Impact Statement and to Conduct a Scoping 
Process. (59 FR 14912). In that notice, NRC states its determination 
``that approval of the revised reclamation plan constitutes a major 
Federal action and that based on the level of controversy related to 
the proposed action [on-site reclamation] and uncertainties associated 
with the unique features of the Moab site, preparation of an EIS in 
accordance with the National Environmental Policy Act (NEPA) and the 
NRC's implementing requirements in 10 CFR part 51 is warranted.'' (59 
FR 14913, March 30, 1994). The notice describes the proposed action, 
possible alternative approaches and the scoping process. The 
alternative approaches include moving the pile to one of two 
alternative sites. Id.
    The near edge of the town of Moab is located about 2 km to the east 
of the Atlas tailings impoundment. However, it appears the area within 
a 1.5 km radius of the Atlas mill tailings impoundment site is sparsely 
populated. An interim cover is being placed over the impoundment for 
radon emission control as the Atlas tailings impoundment dries 
sufficiently to allow access of the necessary equipment. As discussed 
in the Background Information Document (BID) for the amendments to 40 
CFR part 192 subpart D, interim covers significantly reduce radon 
emissions. Technical Support for Amending Standards for Management of 
Uranium Byproduct Materials: 40 CFR Part 192 Background Information 
Document, EPA 402-R-93-085, October 1993.
    NRC announced on May 11, 1994 (59 FR 24490) that Atlas Corporation 
applied to amend condition 55 of its source material license. Atlas 
proposed to amend the milestone dates by extending the dates for 
windblown tailings retrieval and placement on the pile, placement of 
the interim cover and placement of the final radon barrier by one year. 
NRC has informed EPA that the Commission approved the extension of the 
date for placement of the interim cover to February 15, 1995 and that 
the milestone for emplacement of the ``final'' radon barrier was not 
extended. See Docket Entry A91-67 IV-D-50 (Letter from NRC to Atlas).
    Since NRC will notice any proposed change in the milestone date for 
emplacement of the permanent radon barrier, EPA and others will have 
the opportunity to monitor such an extension at that time. Under the 
present circumstances, it appears an extension of the MOU target date 
of 1996 would be consistent with the factors to be considered under the 
``as expeditiously as practicable'' standard at 40 CFR 192.32(a)(3)(i), 
since NRC has determined there is a need for consistency with mandatory 
requirements of the National Environmental Policy Act (NEPA) and there 
may be factors beyond the control of the licensee. 40 CFR 192.31(k). 
Based on representations from NRC, EPA believes that the extra time NRC 
is taking to further review the proposed Atlas mill site reclamation 
plan is necessary to address the large amount of public comments 
received and that it will result in a final solution that is more 
responsive to public comment.
    NRC and the affected Agreement States have also agreed to enforce 
the provisions of the amended licenses to ensure compliance with the 
new schedules for emplacing the permanent radon barriers, including 
interim milestones, and to ensure (and verify) the efficacy of the 
design and construction of the barrier to achieve compliance with the 
20 pCi/m2-s flux standard contained in the amendments to subpart 
D. (56 FR 67568, December 31, 1991) (MOU, a copy of which was printed 
at the end of the proposed rule to rescind subpart T).

III. Final Rule to Rescind 40 CFR Part 61, Subpart T for NRC and 
Agreement State Licensees

    EPA is rescinding subpart T as it applies to non-operational 
uranium mill tailings disposal sites licensed by NRC or an affected 
Agreement State. The Agency sets forth this Final Rule pursuant to its 
authority under section 112(d)(9) of the CAA, as amended in 1990. The 
support for this action includes (1) the MOU, which reflects 
consultation with NRC and the affected Agreement States and sets forth 
a course of conduct to bolster NRC's regulatory program under UMTRCA so 
that it is protective of public health with an ample margin of safety, 
(2) the settlement agreement which adds comprehensive detail to the 
MOU, (3) EPA's amendments to 40 CFR part 192, subpart D, (4) the 
relevant NRC and Agreement State actions concerning license amendments, 
to date, and (5) NRC's amendments to its implementation regulations at 
appendix A, 10 CFR part 40.

A. EPA Determination Under CAA Section 112(d)(9)

1. Background
    Section 112(d)(9) authorizes EPA to decline to regulate 
radionuclide emissions from NRC-licensees under the CAA provided that 
EPA determines, by rule, and after consultation with NRC, that the 
regulatory scheme established by NRC protects the public health with an 
ample margin of safety. The legislative history of section 112(d)(9) 
provides additional guidance as to what is meant by ``an ample margin 
of safety to protect the public health'' and what process the 
Administrator should follow in making that determination in a 
rulemaking proceeding under section 112(d)(9). The Conference Report 
accompanying S. 1630 points out that the ``ample margin of safety'' 
finding under section 112(d)(9) is the same ``ample margin of safety'' 
requirement that was contained in section 112 of the CAA prior to its 
amendment in 1990. The conferees also made clear that the process the 
Administrator was expected to follow in making any such determination 
under section 112(d)(9) was that ``required under the decision of the 
U.S. Court of Appeals in NRDC v. EPA, 824 F.2d 1146 (D.C. Cir 1987) 
(Vinyl Chloride).'' H. Rep. No. 101-952, 101st Cong., 2d Sess. 339 
(1990), reprinted in 1 A Legislative History of the Clean Air Act 
Amendments of 1990, at 1789 (1993) (hereinafter ``Legislative History 
CAAA90'').
    EPA has already made a determination in promulgating subpart T that 
compliance with the 20 pCi/m2-s flux standard protects public 
health with an ample margin of safety. EPA conducted a risk analysis in 
promulgating subpart T in 1989. At that time, EPA determined that the 
20 pCi/m2-s flux standard was a ``baseline'' that was provided by 
EPA's general UMTRCA standards at 40 CFR part 192, subpart D. EPA 
further determined that compliance with that baseline would be 
protective of public health with an ample margin of safety. EPA 
promulgated subpart T to ensure achievement of the flux standard at 
non-operational sites in a timely manner. In conducting this rescission 
rulemaking, EPA is not revisiting either the risk analysis or decision 
methodology that supported the promulgation of subpart T; rather, EPA 
is only visiting whether NRC's regulatory program under UMTRCA will 
result in meeting the 20 pCi/m2-s flux standard established in 
subpart T as being the level that provides an ample margin of safety, 
with compliance achieved in a timely manner thereby rendering subpart T 
unnecessarily duplicative.
    EPA's determination that the NRC regulatory program protects public 
health with an ample margin of safety includes a finding that NRC and 
the affected Agreement States are implementing and enforcing, in 
significant part on a programmatic and site-specific basis: (1) The 
regulations governing the disposal of uranium mill tailings promulgated 
by EPA and NRC consistent with the settlement agreement described above 
and (2) the license (i.e., tailings closure plan) requirements that 
establish milestones for the purpose of emplacing a permanent radon 
barrier that will achieve compliance with the 20 pCi/m2-s flux 
standard.
2. EPA's UMTRCA Standards
    As discussed above, EPA has modified its UMTRCA regulations (40 CFR 
part 192 subpart D) to require compliance with the 20 pCi/m2-s 
flux standard as expeditiously as practicable considering technological 
feasibility (and factors beyond the control of the licensee), and to 
require appropriate monitoring to verify the efficacy of the design of 
the permanent radon barrier. By definition, no more rapid compliance 
can occur, as a practical matter, because this schedule represents the 
earliest that the sites could be closed when all factors are 
considered. EPA expects that these compliance schedules were developed 
and will be modified consistent with the targets set forth in the MOU 
as reasonably applied to the specific circumstances of each site. When 
EPA promulgated subpart T it recognized that many sources might not be 
able to comply with the two year compliance date then required pursuant 
to section 112. Based on this, subpart T includes a provision that in 
such a case EPA would ``establish a compliance agreement which will 
assure that disposal will be completed as quickly as possible.'' 40 CFR 
61.222(b). The time period required for closure under subpart D 
embodies the same approach. In practice, therefore, both subpart T and 
subpart D establish the same basic timeframes for achievement of the 
flux standard. Assuming NRC and the Agreement States faithfully 
implement subpart D and the license amendments required under subpart 
D, EPA would not expect there to be any significant difference between 
these two programs in the amount of time required for sites to comply 
with the flux standard.
    As discussed above, subpart D as amended, provides that NRC may 
grant an extension of time to comply with either of the following 
deadlines: (1) Performance of milestones based upon a finding that 
compliance with the 20 pCi/m2-s flux standard has been met or (2) 
final compliance beyond the date or relevant milestone based upon cost. 
EPA considers these two bases upon which NRC may grant an extension to 
be mutually exclusive, i.e., a request for a specific extension may be 
based on one or the other but not both grounds. If a milestone is being 
extended for a basis other than cost, such an extension may be granted 
if NRC finds that compliance with the 20 pCi/m2-s flux standard 
has been demonstrated using EPA Method 115 or an NRC approved 
alternative. In addition the site must continue to demonstrate 
compliance with this flux standard on an annual basis. However, if a 
licensee requests extension of the final compliance date (or relevant 
milestone) based upon cost, such an extension may only be granted if 
NRC finds that the three criteria specified in 40 CFR section 
192.32(a)(3)(iii) are met. Any extensions of the final compliance date 
based upon cost will by the nature of the criteria be granted on a 
site-specific basis.
    If a licensee requests an extension of the final compliance date 
based upon cost, technology may not be used as a basis for granting the 
extension unless the costs are grossly excessive, as measured by normal 
practice within the industry. EPA recognizes that the emissions from 
the pile may exceed the 20 pCi/m2-s flux standard pending final 
compliance, but believes these increases will be minimal and of limited 
duration. EPA does not anticipate the short extensions in the time to 
complete the radon barrier contemplated in subpart D and the NRC 
conforming amendments to increase the maximum lifetime individual risk 
beyond 1 in 10,000, the level which EPA found presumptively safe under 
the benzene policy, and for this category, protective of the public 
health with an ample margin of safety in promulgating subpart T. 54 FR 
51656 (December 15, 1989). EPA believes that during the short 
extensions, this is consistent with the reality of short-term risks 
from radon emissions during the period of delay, and consistent with 
the risks associated with negotiated compliance agreements when non-
operational sites fail to close within the two-year period required by 
subpart T. EPA believes these emissions should not exceed those 
emissions which could occur under subpart T if compliance agreements 
had been negotiated. Extensions based upon cost will only be granted if 
NRC or an Agreement State finds, after providing an opportunity for 
public participation, that the emissions caused by the delay will not 
cause significant incremental risk to the public health. Additionally, 
a site requesting an extension based upon cost must demonstrate that it 
is making a good faith effort to emplace the permanent radon barrier. 
In many situations, where an interim cover is in place, radon emissions 
are significantly reduced and tailings which are wet or ponded emit no 
significant levels of radon. If NRC or an Agreement State uses this 
flexibility, public notice is required, and as appropriate, EPA would 
be aware of its use and could also monitor extensions under the 
provisions of Sec. 61.226(c) to determine whether the Agency should 
reconsider the rescission and seek reinstatement of subpart T, on 
either a programmatic or site-specific basis. Thus, under the 
circumstances, EPA believes affording authority for extensions of the 
final compliance date based upon cost is not inconsistent with 
protecting the public health.
    Additionally, NRC or an Agreement State may extend the date for 
emplacement of the radon barrier based on ``factors beyond the control 
of the licensee,'' as that term is implicit in the definition of ``as 
expeditiously as practicable.'' EPA understands that under subpart D's 
provisions there is no bar to NRC or an Agreement State reconsidering a 
prior decision establishing a date for emplacement of the radon barrier 
that meets the standard of ``as expeditiously as practicable 
considering technological feasibility.'' Such reconsideration could, 
for example, be based on the existence of factors beyond the control of 
the licensee, or on a change in any of the various factors that must be 
considered in establishing a date that meets the ``as expeditiously as 
practicable'' standard of 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 the factors relevant under Sec. 192.32(a)(3)(i) before it 
changed a previously established milestone or date for emplacement of 
the final barrier, and any new date would have to meet the standard set 
out in Sec. 192.32(a)(3)(i). Finally, NRC's and Agreement States' 
authority to reconsider previously established milestones or dates 
would include authority to shorten or speed up such dates, as well as 
extend them. EPA also expects that public participation consistent with 
that level of participation provided in the MOU and the settlement 
agreement will be afforded the public by NRC or an Agreement State in 
amending a license due to ``factors beyond the control of the 
licensee,'' or for any other basis.
3. NRC's Conforming Regulations
    As discussed previously, the Commission has approved final 
regulations to conform appendix A of 10 CFR part 40 to EPA's general 
standards promulgated under UMTRCA. (59 FR 28220, June 1, 1994.) EPA is 
today making a determination that NRC's final regulations support 
rescission. EPA believes NRC's final regulations adequately and 
appropriately implement EPA's amendments to 40 CFR part 192, subpart D. 
This determination is supported by the comments received in response to 
EPA's supplemental proposal to rescind subpart T. (59 FR 5674, February 
7, 1994.) All commenters agreed that NRC's proposed conforming 
regulations support EPA's proposal to rescind subpart T by either 
adequately and appropriately implementing subpart D, or may reasonably 
be expected to do so when finalized.
4. License Amendments
    Table 1 illustrates that all NRC and affected Agreement State 
licenses, except one, have been modified pursuant to the MOU. 
Attachment A to the MOU, developed in conjunction with each site and 
considering the particular circumstances of that site, lists target 
dates for emplacement of the permanent radon barrier with ``a guiding 
objective that this occur to all current disposal sites by the end of 
1997, and within seven years of when the existing operating and standby 
sites cease operation.'' 56 FR 67568 (December 31, 1991). The MOU 
requires NRC and the Agreement States to ``ensure * * * that cover 
emplacement on the tailings impoundments occurs as expeditiously as 
practicable considering both short-term reductions in radon releases 
and long-term stability of the uranium mill tailings.'' Id. Under the 
MOU, the compliance schedules (i.e., tailings closure plans (radon) 
under subpart D, as amended) were to be developed consistent with the 
MOU targets as reasonably applied to the specific circumstances of each 
site, with a goal that final closure occur by December 31, 1997, for 
those non-operational uranium mill tailings piles listed in the MOU. 
EPA believes the NRC and the Agreement States have acted in good faith 
to implement their commitments under the MOU by amending the site 
licenses. EPA also believes that uranium mill tailings disposal site 
owners and operators have acted in good faith by voluntarily requesting 
the license amendments. The license amendments by NRC and the affected 
Agreement States appear to reflect closure as expeditiously as 
practicable under the terms of the MOU and the requirements of subpart 
D as amended, thus supporting rescission of subpart T and a 
determination that the NRC program protects public health with an ample 
margin of safety. See Docket Entry A91-67 IV-D-46 (NRC Comments in 
Response to EPA's February 7, 1994 Proposal); Docket Entry A91-67 II-D-
23 (February 7, 1994, Note to Docket from Gale Bonanno, Office of 
Radiation and Indoor Air, Criteria and Standards Division detailing 
approval of NRC licenses and milestone schedules); Docket Entry A91-67 
II-D-45 (June 1, 1994, Note to Docket from Gale Bonanno, Office of 
Radiation and Indoor Air, Criteria and Standards Division detailing 
approval of Agreement State licenses and milestone schedules); Docket 
Entry A91-67 IV-D-52 (June 13, 1994, Letter to Gail Bonanno from State 
of Washington); Docket Entry A91-67 IV-D-49 (Letter to Gail Bonnano 
[sic] providing information for Washington State licensees, Dawn Mining 
Company and Western Nuclear, Inc.). In addition, consistent with their 
commitments under the MOU, NRC and the affected Agreement States are 
providing opportunities for public participation in the license 
amendment process.

         Table 1.--Status of Reclamation Plans for Non-Operational Uranium Mill Tailings Impoundments\1\        
----------------------------------------------------------------------------------------------------------------
                                                            Approval      Approval                              
                                                            date for      date for    MOU date for  License date
                        Facility                           reclamation   reclamation   final radon    for final 
                                                              plan       milestones      cover       radon cover
----------------------------------------------------------------------------------------------------------------
ANC, Gas Hills, WY......................................       4/10/83       11/5/92          1995      12/31/94
                                                                                                      \2\6/30/96
                                                                                                                
ARCO Coal, Bluewater, New Mexico........................       1/30/92       11/9/92          1995      12/28/94
Atlas, Moab, Utah.......................................           \3\       11/4/92          1996      12/31/96
Conoco, Conquista, Texas................................        9/8/93        9/8/93          1996      12/31/93
Ford-Dawn Mining, Ford, WA..............................       9/30/93       9/30/93          2010   \4\12/31/18
Hecla Mining, Duria, CO.................................       9/30/93       9/30/93          1997      12/31/95
Homestake, Milan, NM....................................       7/23/93       11/9/92  \5\1996/2001   \5\12/31/01
Pathfinder-Lucky Mc, Gas Hills, Wyoming.................       9/17/93      12/29/92          1998       9/30/98
Petrotomics, Shirley Basin, WY..........................      10/23/89       1/21/93          1995      12/31/95
Quivira, Ambrosia Lake, NM..............................       10/5/90       1/22/93          1997   \7\12/31/97
Rio Algom, Lisbon, UT...................................       9/29/93      12/31/96          1996      12/31/96
Sohio L-Bar, Cebolleta, New Mexico......................        5/1/89       11/4/92          1992      12/31/92
UMETCO, Gas Hills, Wyoming..............................           \8\       12/2/92          1995      12/31/95
UMETCO, Maybell, CO.....................................       7/30/93       7/30/93          1997      12/31/97
UMETCO, Uravan, CO......................................      12/31/87      12/31/87       \6\2002      12/31/96
UNC, Church Rock, NM....................................       3/11/92      10/29/92          1997      12/31/97
Union Pacific, Bear Creek, Wyoming......................        4/3/92       11/5/92          1996      12/31/96
WNI, Sherwood, WA.......................................       9/30/93       9/30/93          1996    \4\1/31/98
WNI, Split Rock, WY.....................................       6/17/93       11/5/92          1995     12/31/94 
----------------------------------------------------------------------------------------------------------------
\1\NRC and the affected Agreement States committed to complete review and approval of reclamation plants,       
  including schedules for emplacement of earthen covers on non-operational tailings impoundments by September   
  30, 1993.                                                                                                     
\2\Two impoundments: 1996 date is for impoundment which was accepting waste from off-site for disposal. Licensee
  has requested an amendment for a one year extension of dates for placement of radon barrier on the two piles. 
\3\Delayed pending resolution of issues raised in response to Federal Register notice dated July 20, 1993.      
\4\Closure date change is because of groundwater remediation schedule.                                          
\5\Two impoundments: large impoundment to be completed by 1996, small impoundment by 2001 except for areas      
  covered by evaporation ponds. Final radon barrier placement over the remainder of the small impoundment shall 
  be completed within two years of completion of groundwater corrective actions.                                
\6\Date in the MOU is for final reclamation.                                                                    
\7\Two impoundments: final radon barrier placement on both by December 31, 1997. One active cell.               
\8\Various early 1980s.                                                                                         

    The license amendments noted in Table 1 reflect consistent 
application of the dates contained in the MOU. Three exceptions are 
worth noting. First, although the license amendment to incorporate the 
reclamation plan for the Atlas site is not complete, EPA is confident 
that NRC is actively pursuing final resolution of the pending 
reclamation plan. In the notice announcing its intent to prepare an 
environmental impact statement, NRC published a tentative schedule to: 
prepare a draft EIS and issue for public comment in October 1994; 
provide a 45 day comment period; and publish the final EIS in April 
1995. (59 FR 14914, March 30, 1994). Pending final approval of a 
reclamation plan, the Atlas site is continuing to emplace an interim 
cover on the pile to control radon emissions, and recently received 
approval to extend the date for placement of the interim cover to 
February 15, 1995. The date for placement of the ``final'' radon 
barrier was not extended by NRC and remains December 31, 1996. See 
Docket Entry A91-67 IV-E-5 (Note to Docket from Gale Bonanno, Office of 
Radiation and Indoor Air, Criteria and Standards Division, summary of 
telephone conversation with legal counsel to AMC); Docket Entry A91-67 
IV-D-50 (Letter from NRC to Atlas).
    Second, the license amendments for the ANC Gas Hills site address 
two separate impoundments. Consistent with the MOU, the license 
amendment for the non-operational impoundment contains a December 31, 
1994, date for emplacement of the permanent radon barrier. On February 
11, 1994, NRC published a notice of receipt of a request to amend the 
reclamation schedule at the ANC Gas Hills site. (59 FR 6658). ANC has 
requested a one-year extension of the current date for emplacement of 
the permanent radon barrier. ANC ``believes [it] cannot begin 
authorized restoration activities in the time necessary to meet current 
reclamation milestone dates,'' due to an NRC communication ``that a 
previous amendment request for a reclamation redesign proposal dated 
April 16, 1992, would not be reviewed by late 1992 or early 1993.'' Id. 
NRC notes that ANC is continuing to monitor and maintain the interim 
cover. Further, NRC states--

Approval of the request will be based on determination there be no 
harm to human health or the environment, that reclamation will be 
completed as expeditiously as practical[sic], verification that 
rescheduling reclamation will not impact the final closure date for 
the entire facility.

Additionally, an impoundment previously designated as operational for 
in-situ waste disposal is now non-operational. Emplacement of the 
permanent radon barrier on this second impoundment is scheduled to be 
completed by June 30, 1996, well within the seven year goal of the MOU 
for impoundments which cease operations after December 31, 1991.
    On May 9, 1994, ANC informed NRC by letter that it would be ceasing 
operations and going out of business by the end of May 1994. On May 13, 
1994, NRC issued an Order and Demand for Information to ANC. See Docket 
Entry A91-67 IV-D-47. This Order requires ANC to continue complying 
with all applicable license conditions, including monitoring and 
reclamation activities. The Order further states ``[D]iscontinuance of 
those programs and functions in the manner described by the Licensee in 
its letter of May 9, 1994, would constitute a willful violation of 
ANC's license.'' According to the Order, abandonment would constitute a 
``deliberate violation'' of section 184 of the AEA of 1954, as amended, 
10 CFR 40.41.(b), and 10 CFR 40.42. The Order further states that 
``such a deliberate act of abandonment would be a serious violation of 
the AEA * * * NRC regulations, and ANC's license,'' and could subject 
ANC and the individuals causing the violations to further enforcement 
actions and potential criminal sanctions. NRC also ordered that ANC 
submit additional information in order for NRC to determine ``whether 
enforcement action should be taken to ensure compliance with NRC 
statutory and regulatory requirements.''
    EPA notes that the actions taken to date by NRC regarding this site 
indicate a good faith intention to implement the MOU and the 
requirements of subpart D and to respond quickly as the situation at 
the ANC Gas Hills site develops. EPA fully expects that NRC will take 
actions consistent with the Commission's enforcement policy and 
authority. See 10 CFR part 2, subpart B and appendix C. While difficult 
enforcement questions are raised about this site, EPA notes that the 
same questions would be raised if subpart T were not rescinded. Under 
the provisions of the rule adopted today, if future developments meet 
the criteria and conditions for reconsideration of rescission, the 
Agency expects it would receive a petition pursuant to Sec. 61.226(b). 
EPA would then take action consistent with those provisions at that 
time. In any case, EPA reserves the right to initiate reconsideration 
if appropriate.
    Lastly, the license amendment dates for two additional sites, the 
Ford-Dawn Mining site and the Western Nuclear, Inc. (WNI) site both 
located in the Agreement State of Washington, are also beyond the dates 
contained in the MOU. However, Washington State notes that for these 
sites the closure date was changed because of the groundwater 
remediation schedule, and the difficulty experienced in drying the 
piles due to the evaporation and precipitation rates. In sum, EPA 
believes that the license amendments adopted by the State of Washington 
for these two sites reflect a good faith attempt to implement the MOU 
and reflect closure of the sites as expeditiously as practical 
considering technological feasibility under subpart D.
    While NRC and the Agreement States have obtained license amendments 
for all but one of the relevant sites, they have not as yet established 
a record for enforcement of the milestones, including action on 
requests for extensions. To date, only one extension for placement of 
the interim cover at the Atlas site has been approved by NRC. Based on 
NRC representations, no milestones occurring after the date of the MOU, 
October 1991, have been missed and, as noted in footnote 2 of Table 1, 
an application for another extension is pending but no action has been 
taken. However, given their response to the requirements of the MOU, 
and the rulemaking conducted by NRC to implement the requirements of 
subpart D, EPA expects that the milestones established in the licenses 
for emplacement of the permanent radon barrier (i.e., the tailings 
closure plan (radon)) will be implemented and enforced in significant 
part on a programmatic and site-specific basis. The relevant portions 
of the amended licenses have been placed in the docket for this action, 
as well as letters from NRC to EPA apprising the Agency of the status 
of the license amendments.
    EPA and NRC have completed almost all of the actions required by 
the MOU, including: revising the NRC and affected Agreement State 
licenses to reflect the MOU and regulatory requirements, promulgating 
amendments to EPA's UMTRCA regulations at 40 CFR part 192, subpart D, 
and revising the NRC regulations at 10 CFR part 40 to conform to EPA's 
revised UMTRCA regulations. Based on EPA's review, to date, of the 
regulatory program established by NRC under UMTRCA (including amended 
10 CFR part 40, appendix A), EPA has determined that the timing and 
monitoring concerns are fully addressed consistent with EPA's UMTRCA 
standards, and the NRC criteria result in reclamation designs and 
schedules fully adequate to ensure compliance with the 20 pCi/m2-s 
flux standard as expeditiously as practicable considering technological 
feasibility (including factors beyond the control of the licensee). EPA 
today finds that NRC and the affected Agreement States are or will be 
implementing and enforcing, in significant part, the regulations 
governing disposal of tailings and the license requirements (tailings 
closure plan (radon)) that establish milestones for emplacement of a 
permanent radon barrier that will achieve compliance with the 20 pCi/
m2-s flux standard on a programmatic and a site-specific basis. 
The Agency intends ``in significant part'' to mean that NRC or an 
affected Agreement State is implementing and enforcing the regulatory 
and license requirements in a manner that EPA reasonably expected to 
not materially (i.e., more than de minimis)1 interfere with 
compliance with the 20 pCi/m2-s standard as expeditiously as 
practicable considering technological feasibility (including factors 
beyond the control of the licensee).
---------------------------------------------------------------------------

    \1\ The phrase ``de minimis'' as used in this notice is not 
intended to be restricted to the meaning of section 112(g)(1)(A) of 
the Clean Air Act, as amended.
---------------------------------------------------------------------------

    As announced in the February 7, 1994, proposal, EPA is taking 
today's action since NRC's regulations at 10 CFR part 40, appendix A, 
were effectively revised, as necessary and appropriate to implement the 
revisions to EPA's regulations at 40 CFR part 192, subpart D. As stated 
in the February 1994 proposal, EPA intended to take final action on the 
proposed rescission prior to the time compliance with the 20 pCi/
m2-s flux standard is achieved at all sites.
5. Judicial or Administrative Challenges
    Neither EPA nor any commenter is aware of any judicial or 
administrative challenge to these regulations that is pending. Thus, 
EPA is aware of no challenge which would present a significant risk of 
interference with the purposes and objectives of the MOU, as reflected 
in the regulatory changes.

B. Reconsideration Provisions

    Under the Atomic Energy Act, NRC has the authority to waive, for 
reasons of practicability, the dual requirement of the MOU that 
compliance with the 20 pCi/m2-s flux standard occur as 
expeditiously as practicable considering technological feasibility. 42 
U.S.C. 2114(c). NRC considers the term ``practicability'' to include 
certain economic considerations not contemplated by the requirement of 
the MOU that compliance occur as expeditiously as practicable 
considering technological feasibility. In promulgating subpart T, the 
CAA did not permit, and EPA did not consider, site-specific waivers 
from ultimate compliance with that standard. Thus, as a theoretical 
matter, EPA recognized in its December 1991 proposal that this waiver 
authority might be exercised in a manner not addressed in the MOU even 
after the UMTRCA regulations have been promulgated and each license 
amended, although EPA has no reason to believe such relaxation of 
restriction will actually occur. Nevertheless, EPA recognized that this 
authority would not exist under the CAA and subpart T and, thus, there 
was some concern over the potential for deviation from the agreements 
contained in the MOU.
1. December 31, 1991 Proposed Rule to Rescind subpart T
    In response to the concern over the waiver authority in the Atomic 
Energy Act, and in order to ensure its exercise does not alter EPA's 
finding that the NRC regulatory program protects public health with an 
ample margin of safety, EPA announced in its December 31, 1991, 
proposal that certain conditions and grounds for reconsideration would 
be included in any final decision to rescind subpart T. In this way, 
EPA might base its rescission finding upon its view of the NRC 
regulatory program contemplated by the MOU at the time of taking final 
action, while also providing some assurance that EPA would revisit that 
finding should NRC or the affected Agreement States substantially 
deviate from that program. Thus, in December 1991, EPA proposed certain 
conditions and grounds for reconsideration, to provide assurance that 
any finding by the Agency that the NRC program is sufficient to justify 
rescission of subpart T under CAA section 112(d)(9) would be revisited 
if the NRC program is actually implemented in a manner inconsistent 
with that finding. The specific reconsideration options proposed by EPA 
were published at 56 FR 67565 (December 31, 1991).
2. Reconsideration Options
    EPA has reviewed the various options for reconsideration proposed 
in December 1991 in light of the comprehensive details added to the 
terms of the MOU by the settlement agreement finalized in April 1993. 
On February 7, 1994, EPA proposed an additional reconsideration option 
that is a combination of the options proposed in December 1991. It is 
in effect a hybrid of that December 1991 proposal. While EPA did not 
withdraw its prior reconsideration proposal and the reconsideration 
options contained therein, the additional reconsideration option 
proposed in February 1994 was preferred by EPA.
3. Reconsideration Provisions Adopted Today
    EPA believes the following reconsideration provisions adopted 
today, which include both programmatic and site-specific bases for 
reinstatement, represent a comprehensive approach under both the MOU 
and settlement agreement. The Agency notes that the 20 pCi/m2-s 
flux standard must be met by all sites as provided by 40 CFR part 192, 
subpart D. EPA does not intend to reconsider the decision to rescind 
subpart T for any site that is in fact meeting the 20 pCi/m2-s 
flux standard, absent other factors that would indicate the need for 
reinstatement. For example, EPA may initiate reconsideration under 
Sec. 61.226 even if a site is meeting the 20 pCi/ m2-s flux 
standard if there are factors which show that NRC or an Agreement State 
failed to implement and enforce in significant part, the applicable 
regulations, e.g., failure of that site to emplace a permanent radon 
barrier designed to meet the requirements of subpart D.
    This action amends subpart T and establishes an obligation for the 
Administrator to reinstate subpart T as applied to owners and operators 
of non-operational uranium mill tailings disposal sites licensed by NRC 
or an affected Agreement State provided certain conditions are met. 
Additionally, this action sets forth the procedures for EPA to act on a 
petition to reconsider rescission of subpart T which seeks such 
reinstatement. However, these provisions are not intended to be 
exclusive. EPA reserves the right to initiate reinstatement of subpart 
T if appropriate. Pursuant to section 553(e) of the Administrative 
Procedure Act (5 U.S.C. 553(e) interested persons may petition the EPA 
to initiate reinstatement of subpart T, in addition to petitions for 
reinstatement under today's procedures.
    The reconsideration provisions set forth in Sec. 61.226 establish 
procedures for persons to petition EPA for reconsideration of the 
rescission and seek reinstatement of subpart T and EPA's response to 
such petitions. Provisions for the substantive conditions for 
reconsideration of the rescission of this subpart and subsequent 
reinstatement for NRC-licensees are also included. Under these 
provisions, a person may petition the Administrator for reconsideration 
of the rescission and seek reinstatement of subpart T under 
Sec. 61.226(a) which provides for programmatic and site-specific 
reinstatement. If reconsideration is initiated it must be conducted 
pursuant to notice and comment procedures. It is important that any 
alleged failures by NRC or an affected Agreement State to implement and 
enforce the regulations governing uranium mill tailings or the 
applicable license requirements be addressed in a timely manner. These 
provisions are intended to ensure that persons may seek recourse from 
the Administrator if they are adversely affected by the failure of NRC 
or an affected Agreement State to implement and enforce, in significant 
part, on a programmatic and a site-specific basis the regulations 
governing the disposal of uranium mill tailings promulgated by EPA and 
NRC, requirements of the tailings closure plan, or license requirements 
establishing milestones for the purpose of emplacing a permanent radon 
barrier that will achieve compliance with the 20 pCi/m2-s flux 
standard. Thus, EPA is establishing a non-discretionary duty to take 
final action granting or denying an authorized petition for 
reconsideration of the rescission of subpart T within 300 days of 
receipt of the petition. If EPA grants such petition it would then 
proceed to initiate rulemaking to reinstate subpart T. The rulemaking 
to reinstate subpart T, however, is not subject to the 300-day time 
period. This schedule is intended to provide EPA and NRC adequate time 
to resolve any potential problems identified by a petition. Failure to 
meet this 300-day deadline for a decision on whether to initiate 
rulemaking or not could lead to a citizen suit action in a federal 
District Court under CAA section 304 for an order that EPA take final 
action on the petition. Review of that final response would be in a 
federal Circuit Court of Appeals under CAA section 307(b). If EPA 
grants such a petition and initiates rulemaking to reinstate subpart T, 
then final agency action would not occur until EPA had concluded such 
rulemaking. Consistent with the settlement agreement, EPA may propose 
to grant or deny the petition within 120 days of receipt, allow a 
comment period of at least 60 days, and take final action granting or 
denying the petition within 120 days of the close of the comment 
period.
    Under today's procedures, EPA shall summarily dismiss without 
prejudice a Sec. 61.226(b) petition to reconsider the rescission and 
seek reinstatement of subpart T on a programmatic basis, unless the 
petitioner demonstrates that it provided written notice of the alleged 
failure to NRC or an affected Agreement State at least 60 days before 
filing its petition with EPA. This notice to NRC must include a 
statement of the grounds for such a petition. This notice requirement 
may be satisfied, among other ways, by submissions or pleadings 
submitted to NRC during a proceeding conducted by NRC. The purpose of 
this advance notice requirement is to provide NRC or an affected 
Agreement State with an opportunity to address the concerns raised by 
the potential petitioner. Additionally, EPA shall summarily dismiss 
without prejudice a Sec. 61.226(b) petition to reconsider the 
rescission and seek reinstatement of subpart T on a site-specific 
basis, unless the petitioner demonstrates that it provided, at least 60 
days before filing its petition with EPA, a written request to NRC or 
an affected Agreement State for enforcement or other relief, and unless 
the petitioner alleges that NRC or the affected Agreement State failed 
to respond to such request by taking action, as necessary, to assure 
timely implementation and enforcement of the 20 pCi/m2-s flux 
standard. This provision is intended to provide NRC or an Agreement 
State with an opportunity to address the concerns raised by the 
potential petitioner through its standard enforcement mechanisms.
    The Administrator may also initiate reconsideration of the 
rescission and reinstatement of subpart T as applied to owners and 
operators of non-operational uranium mill tailings disposal sites if 
EPA believes it is appropriate to do so. For example, EPA may initiate 
such reconsideration if it has reason to believe that NRC or an 
affected Agreement State has failed to implement and enforce, in 
significant part, the regulations governing the disposal of uranium 
mill tailings promulgated by EPA and NRC or the tailings closure plan 
(radon) requirements establishing milestones for the purpose of 
emplacing a permanent radon barrier that will achieve compliance with 
the 20 pCi/m2-s flux standard. Before the Administrator initiates 
reconsideration of the rescission and reinstatement of subpart T, EPA 
shall consult with NRC to address EPA's concerns. If the consultation 
does not resolve the concerns, EPA shall provide NRC with 60 days 
notice of the Agency's intent to initiate rulemaking to reinstate this 
subpart.
    Upon completion of a reconsideration rulemaking, EPA may: (1) 
Reinstate subpart T on a programmatic basis if EPA determines, based on 
the record, that NRC has significantly failed to implement and enforce, 
in significant part, on a programmatic basis, (a) the regulations 
governing the disposal of uranium mill tailings promulgated by EPA and 
NRC or (b) the license requirements establishing milestones for the 
purpose of emplacing a permanent radon barrier that will achieve 
compliance with the 20 pCi/m2-s flux standard; (2) reinstate 
subpart T on a site-specific basis if EPA determines, based on the 
record, that NRC or an affected Agreement State has significantly 
failed to implement and enforce, in significant part, on a site-
specific basis, (a) the regulations governing the disposal of uranium 
mill tailings promulgated by EPA and NRC or (b) the license 
requirements establishing milestones for the purpose of emplacing a 
permanent radon barrier that will achieve compliance with the 20 pCi/
m2-s flux standard; or (3) issue a finding that NRC is 
implementing and enforcing on either a site-specific or programmatic 
basis the regulations and license requirements described above and that 
reinstatement of subpart T is not appropriate.
    The regulations establish an obligation for the Administrator to 
reinstate subpart T as applied to owners and operators of non-
operational uranium mill tailings disposal sites if the Administrator 
determines by rulemaking, based on the record, that NRC or an affected 
Agreement State has failed on a programmatic basis to implement and 
enforce, in significant part, the regulations governing the disposal of 
uranium mill tailings promulgated by EPA and NRC or the tailings 
closure plan (radon) requirements establishing milestones for the 
purpose of emplacing a permanent radon barrier that will achieve 
compliance with the 20 pCi/m2-s flux standard. The Administrator 
also shall reinstate subpart T on a site-specific basis as applied to 
owners and operators of non-operational uranium mill tailings disposal 
sites if the Administrator determines by rulemaking, based on the 
record, that NRC or an affected Agreement State has failed on a site-
specific basis to achieve compliance by the operator of the site or 
sites with applicable license requirements, regulations, or standards 
implemented by NRC and the affected Agreement States. Under today's 
action, EPA shall be required to reinstate subpart T only for the 
failures enumerated in the preceding sentence that may reasonably be 
anticipated to significantly interfere (i.e., more than de minimis) 
with the timely emplacement of a permanent radon barrier constructed to 
achieve compliance with the 20 pCi/m2-s flux standard at uranium 
mill tailings disposal sites. In rescinding subpart T, EPA intends ``in 
significant part'' to mean that EPA must find that NRC or an affected 
Agreement State is implementing and enforcing, on a programmatic and a 
site-specific basis: (1) The regulations governing the disposal of 
uranium mill tailings promulgated by EPA and NRC consistent with the 
MOU and settlement agreement and (2) the tailings closure plan (radon) 
requirements establishing milestones for the purpose of emplacing a 
permanent radon barrier that will achieve compliance with the 20 pCi/
m2-s flux standard in a manner that is not reasonably expected to 
materially (i.e., more than de minimis) interfere with compliance with 
the 20 pCi/m2-s flux standard as expeditiously as practicable 
considering technological feasibility (including factors beyond the 
control of the licensee). Reinstatement would require an EPA finding 
that NRC or an affected Agreement State has failed to implement and 
enforce in this manner.

IV. Discussion of Comments and Response to Comments From NPR

    Public hearings on EPA's December 31, 1991, proposal to rescind 
subpart T (56 FR 67561) were held on January 15, 1992 in Washington, 
D.C. and on January 21-22, 1992 in Santa Fe, New Mexico. 
Representatives of the Nuclear Regulatory Commission (NRC), the 
American Mining Congress (AMC), the owners and operators of individual 
sites and the Southwest Research and Information Center (SWRIC) 
testified at these hearings. Written comments were also received from 
the Environmental Defense Fund (EDF), NRC, AMC, owners and operators of 
individual sites, the Department of Energy and the SWRIC.
    In February 1993, an agreement was reached between EPA, EDF, NRDC, 
AMC, and individual uranium mill tailings disposal sites to settle 
pending litigation and administrative proceedings, avoid potential 
future litigation, and otherwise agree to a potential approach to 
regulation of NRC and Agreement State licensed non-operational uranium 
mill tailings disposal sites. See 58 FR 17230 (April 1, 1993) (notice 
announcing settlement agreement under CAA section 113(g)). NRC agreed 
in principle with the settlement agreement. The settlement agreement 
added comprehensive detail to, and thereby continued, the approach set 
forth in the MOU published with the 1991 proposal. (56 FR 67568, 
December 31, 1991).
    Written comments in response to EPA's February 7, 1994 supplemental 
proposal were received from NRC, EDF, AMC, Homestake Mining Company, 
Rio Algom Mining Corp., ARCO and Envirocare of Utah, Inc.
    Many of the parties who commented on the December 1991 proposal 
also signed the settlement agreement and commented on the February 1994 
proposal. In certain cases, a party's comments to the December 1991 
proposal are inconsistent with and conflict with comments later 
submitted in response to the 1994 proposal. Given the intervening 
settlement agreement and the revisions to EPA's and NRC's UMTRCA 
regulations, EPA believes that the more recent comments submitted by a 
party, in response to the 1994 proposal, should be accorded more weight 
than comments previously submitted by that same party in 1991, where 
there is inconsistency between the comments.
    In addition, EPA's review of the comments has been limited to the 
question of whether EPA should rescind subpart T. This rulemaking was 
not intended to reconsider and did not address whether EPA should have 
promulgated subpart T in 1989. EPA therefore rejected as irrelevant to 
this rulemaking, comments addressed to the validity or appropriateness 
of the promulgation of subpart T.
1. General
    In response to the 1991 and 1994 Notices of Proposed Rulemaking 
(NPR), NRC, environmental and industry groups generally support EPA's 
proposal to rescind 40 CFR part 61, subpart T as applied to owners and 
operators of NRC and Agreement State licensed non-operational uranium 
mill tailings disposal sites. Various commenters to the 1994 proposal 
suggested specific revisions to the proposed regulatory text and 
preamble. The Agency has reviewed all comments and suggested revisions 
carefully. Revisions to the regulatory text and preamble have been made 
where deemed appropriate.
2. Request for Comments Contained in the 1994 NPR
    In the February 1994 proposal, EPA requested comments on its 
proposed determination that the NRC regulatory program protects public 
health with an ample margin of safety, including comments on whether: 
(1) EPA has effectively promulgated appropriate revisions to 40 CFR 
part 192, subpart D; (2) NRC's regulations at 10 CFR part 40, appendix 
A either already adequately and appropriately implement the revisions 
to EPA's regulations, or may reasonably be expected to do so prior to 
rescission of subpart T; (3) the revision of NRC and affected Agreement 
State licenses reflect the new requirements of subpart D; and (4) any 
judicial or administrative challenge to EPA or NRC regulations is 
expected to present a significant risk of interference with full 
compliance with the MOU and the settlement agreement.
    Several commenters responded to the Agency's request for comments. 
Commenters believed EPA's amendments to 40 CFR part 192, subpart D 
fulfill the intent of the settlement agreement with respect to actions 
required by EPA. However, certain commenters noted that the settlement 
agreement called for action by both EPA and NRC. The commenters 
universally agreed that based upon NRC's November 3, 1993 proposal, NRC 
may reasonably be expected to adequately and appropriately implement 
the Agency's amendments to 40 CFR part 192, subpart D. These commenters 
believe that when finalized, NRC's regulations at 10 CFR part 40, 
appendix A should adequately comply with the settlement agreement and 
conform to EPA's subpart D UMTRCA regulations.
    Many commenters noted that NRC and the Agreement States have 
faithfully implemented their MOU commitment to complete review and 
approval by no later than September 1993 of detailed reclamation plans 
including schedules for emplacing an earthen cover on non-operational 
tailings impoundments to control emissions of radon-222 to 20 pCi/m\2\-
s. See 56 FR 67568, December 31, 1991. Several commenters noted that 
although the license amendment for the Atlas site in Moab, Utah is not 
yet complete, that site represents a unique situation and should not 
affect EPA's decision to rescind subpart T.
    No commenter was aware of any pending judicial or administrative 
challenge that would present a significant risk of interference with 
the MOU and the settlement agreement.
    Additionally, EPA requested comments on the proposed 
reconsideration provisions included in a new Sec. 61.226 added to 
subpart T. In particular EPA requested comments as to whether these 
provisions effectively implement the regulatory approach of the 
settlement agreement, especially the terms providing specific time 
periods for a reconsideration rulemaking. One commenter believed the 
criteria and procedures for reconsidering the decision to rescind 
subpart T were consistent with the terms of the settlement agreement. 
Several other commenters commented as to specific aspects of those 
provisions and suggested revisions to the regulatory language for 
consistency with the settlement agreement. Specific comments pertaining 
to the proposed provisions for reconsideration of the rescission and 
reinstatement of subpart T are addressed in Section 4 below.
    There was widespread agreement among the commenters that the EPA 
and NRC regulatory and licensing framework that either has been, or is 
in the process of being, implemented will ensure that non-operational 
uranium mill tailings disposal sites will achieve the 20 pCi/m\2\-s 
flux standard as expeditiously as practicable considering technological 
feasibility.
3. Rescission of Subpart T
3.1  Timing of Rescission
    Comment: In response to the 1991 proposal, one commenter noted EPA 
should not rescind subpart T until the Agency is assured that the MOU 
between EPA, NRC and the affected Agreement States is implemented and 
EPA's amendments to its UMTRCA regulations at 40 CFR part 192, subpart 
D are complete.
    Response: As stated in the preamble to the 1994 proposal and the 
final rule amending 40 CFR part 192, subpart D, EPA is now rescinding 
subpart T for NRC-licensed uranium mill tailings disposal sites due to 
the completion of the Agency's amendments to subpart D, completion of 
NRC conforming regulations, and completion by NRC and affected 
Agreement States of various license amendments containing schedules for 
emplacement of the permanent radon barrier. EPA believes it is 
appropriate to rescind subpart T pursuant to the authority of section 
112(d)(9) of the CAA, as amended, since NRC has established a 
regulatory program to ensure that non-operational uranium mill tailings 
piles will be closed as expeditiously as practicable considering 
technological feasibility.
3.2  Section 112(d)(9) of the Clean Air Act, As Amended (``Simpson 
Amendment'')
    Comment: In response to the 1991 proposal, one commenter argued 
section 112(d)(9) of the CAA, as amended, applies prospectively and 
does not authorize EPA to rescind a previously promulgated standard.
    Response: The Agency disagrees and believes that section 112(d)(9) 
of the CAA authorizes EPA to rescind previously promulgated regulations 
if certain determinations are made by EPA. Congress clearly intended to 
give the Agency the discretion to rescind certain previously 
promulgated regulations and thereby relieve affected facilities from 
the burdens associated with parallel regulation when the NRC regulatory 
program would protect public health with an ample margin of safety. 
See, e.g., 136 Cong. Rec. S 3797-99 (daily ed. April 3, 1990), 
reprinted in 4 A Legislative History of the Clean Air Act Amendments of 
1990, at 7156-7162 (1993). (``Legislative History, CAAA 1990''). This 
Senate floor debate on Amendment No. 1457 to S. 1630 evidences a clear 
intention that section 112(d)(9) authorizes rescission of previously 
promulgated radionuclide NESHAPs. Senator Simpson, the sponsor of the 
amendment, stated that ``[p]assage of this amendment will allow EPA to 
replace the emission standards issued by EPA in November 1989, for NRC-
licensed facilities, including power plants, uranium fuel cycle 
facilities, and by-product facilities, if that agency concludes that 
the existing NRC regulatory program adequately protects public 
health.'' 4 Legislative History, CAAA 1990 at 7158. Also see 1 
Legislative History, CAAA 1990 at 778 (1993) (statement by Senator 
Burdick during debate on the Conference Committee Report) (``It is 
clear that the existing regulatory program under the Atomic Energy Act 
protects the public health with an ample margin of safety. Under these 
circumstances, additional or dual regulation under the Clean Air Act 
does not make any sense.'')
    Additionally, in commenting on the 1994 proposal, this commenter 
expressed the belief that the 1994 proposal is consistent with the 
terms of the settlement agreement between EPA, EDF, NRDC, AMC and 
individual site owners and operators. The settlement agreement, as 
described in detail above, promotes the objectives of section 112(d)(9) 
of the CAA by establishing an agreed upon framework for reconsideration 
of rescinding subpart T and making minor modifications to the AEA 
regulatory program for closure of the uranium mill tailings disposal 
sites. Clearly, rescission of the previously promulgated subpart T was 
contemplated by the parties to the settlement agreement. This 
particular commenter and EPA were parties to that agreement. EPA 
continues to implement the terms of the settlement agreement, including 
today's action rescinding subpart T. Thus, EPA is rejecting the prior 
comment to the 1991 proposal.
    Comment: In response to the 1991 proposal, a commenter suggested 
EPA publish its finding that the NRC regulatory program protects the 
public health with an ample margin of safety.
    Response: Pursuant to the settlement agreement, EPA published and 
invited comment on its proposed determination that the NRC regulatory 
program protects public health with an ample margin of safety on 
February 7, 1994 (59 FR 5674). That determination is also contained in 
this action, which will be published in the Federal Register.
    Comment: Commenters suggested in response to the 1991 proposal that 
EPA could not determine that the NRC regulatory program protects public 
health with an ample margin of safety so long as NRC retains the 
authority to waive standards and time schedules for compliance, and 
there are no provisions under the AEA for citizens' suits.
    Response: The commenters suggest that the NRC regulatory program 
does not ensure that EPA's revised UMTRCA regulations (40 CFR part 192, 
subpart D) would apply, since NRC has the authority to grant waivers 
under the AEA due to cost or technological feasibility. EPA recognizes 
that the NRC has authority under the AEA to waive for economic reasons 
strict compliance with the requirement that sites meet the 20 pCi/m\2\-
s standard as expeditiously as practicable considering technological 
feasibility (including factors beyond the control of the licensee). AEA 
section 84c., 42 USC 2114c. However, the full exercise of this 
authority is not contemplated by either the MOU or the settlement 
agreement, described above. If this waiver authority is used in a 
manner inconsistent with the purposes and objectives of the MOU and 
settlement agreement, today's action includes procedural and 
substantive provisions designed to facilitate reconsideration of the 
rescission and possible reinstatement of subpart T.
    The amendments to subpart T provide clear authority and procedures 
for EPA to revisit today's finding should NRC or the affected Agreement 
States deviate from the regulatory program in place in a manner which 
materially (i.e., more than de minimis) interferes with compliance with 
the 20 pCi/m\2\-s flux standard as expeditiously as practicable 
considering technological feasibility (including factors beyond the 
control of the licensee). Additionally, EPA believes the actions taken 
to date by NRC, including the license amendments and the final 
amendments to the NRC conforming regulations, as described above, 
reflect the good faith effort on the part of NRC to implement the MOU. 
Thus, EPA believes under these circumstances NRC's authority to waive 
strict compliance with the flux standard and the time for compliance 
does not preclude EPA from finding NRC's regulatory program protects 
the public health with an ample margin of safety.
    Further, the Agency believes that Congress was aware that the 
legislative authority under the CAA provided for citizen suits while 
the AEA did not contain such provisions. Congress clearly envisioned 
that circumstances might be such that EPA would make the finding 
required by the Simpson Amendment. In making today's ample margin of 
safety determination, EPA considered whether NRC is implementing and 
enforcing, in significant part, the regulations governing disposal of 
tailings and the license requirements which establish milestones for 
emplacement of a permanent radon barrier that will achieve compliance 
with the 20
pCi/m\2\-s flux standard on a programmatic and site-specific basis. 
UMTRCA gives NRC and the Agreement States the responsibility to 
implement and enforce regulations promulgated under UMTRCA. If, in the 
future, NRC or the Agreement States do not implement and enforce, in 
significant part, the regulations governing disposal of tailings and 
the license requirements which establish milestones for emplacement of 
a permanent radon barrier that will achieve compliance with the 20 pCi/
m\2\-s flux standard on a programmatic or site-specific basis, 
reconsideration and reinstatement provisions adopted today allow EPA to 
reconsider its rescission of subpart T, and thus, possibly reinstate 
the CAA standards. The settlement agreement executed between EPA, EDF, 
NRDC and AMC which provided the regulatory approach for today's action 
had as an objective the rescission of subpart T. Moreover, NRC's final 
amendments to the conforming regulations also provide enhanced 
opportunities for public participation under certain circumstances.
3.3  Section 112(q)(3) of the Clean Air Act, As Amended
    Comment: The comments to the 1991 proposal included a comment that 
the ``Savings Provision'' (section 112(q)(3)) of the CAA requires that 
subpart T remain in effect.
    Response: Section 112(q)(3) provides

. . . this section, as in effect prior to the date of enactment of the 
Clean Air Act Amendments of 1990, shall remain in effect for 
radionuclide emissions from . . . disposal of uranium mill tailings 
piles, unless the Administrator, in the Administrator's discretion, 
applies the requirements of this section as modified by the Clean Air 
Act Amendments of 1990 to such sources of radionuclides.

    EPA believes the plain language of section 112(q)(3) gives the 
Administrator the discretion to rescind subpart T pursuant to section 
112(d)(9) or allow subpart T to remain in effect pursuant to section 
112 as in effect prior to the CAAA of 1990. In this rulemaking, EPA 
acted to apply section 112 as modified by the 1990 amendments, and 
pursuant to section 112(d)(9) to decline to regulate ``radionuclide 
emissions from any category or subcategory of facilities licensed by 
the Nuclear Regulatory Commission (or an Agreement State)'' if the 
Administrator determines, by rule, and after consultation with the 
Nuclear Regulatory Commission, ``that the regulatory program 
established by the Nuclear Regulatory Commission pursuant to the Atomic 
Energy Act for such category or subcategory provides an ample margin of 
safety to protect the public health.'' This provision strives to 
eliminate duplication of effort between EPA and NRC, so long as public 
health is protected with an ample margin of safety. Although the 
commenter suggests that section 112(q)(3) should cause the 
Administrator to not rescind subpart T, such an interpretation is not 
harmonious and is inconsistent with the intent of Congress in enacting 
the CAAA of 1990.
    Additionally, EPA received comments from this commenter supporting 
the 1994 proposal, expressing the belief that the 1994 proposal is 
consistent with the terms of the settlement agreement. The settlement 
agreement promotes the objectives of section 112(d)(9) of the CAA as 
amended by establishing an agreed upon framework for consideration of 
the rescission of subpart T and minor modifications to the AEA 
regulatory program for closure of uranium mill tailings disposal sites. 
This commenter, together with EPA and others, was a party to that 
agreement, which clearly envisions rescission of subpart T.
    Thus, EPA is rejecting this comment, since a plain reading of 
section 112(q)(3) authorizes EPA to exercise its discretion under 
section 112(d)(9) and as a party to the settlement agreement the 
commenter clearly supports the goal of the agreement that subpart T be 
rescinded.
3.3  Section 122(a) of the Clean Air Act, as Amended in 1977
    Comment: The commenter asserts in response to the 1991 proposal 
that EPA should not rescind subpart T because such rescission is 
inconsistent with section 122(a) of the CAA of 1977. The commenter 
contends section 122(a) was not repealed by the 1990 amendments to the 
CAA and that it required the Agency to list radionuclides as a 
hazardous air pollutant if the Administrator found that public health 
was threatened due to air emissions of radionuclides.
    Response: EPA disagrees with the commenter's interpretation that 
rescission of subpart T pursuant to section 112(d)(9) of the CAA is 
inconsistent with section 122(a) of the CAA. On December 27, 1979, EPA 
listed radionuclides, including those defined by the AEA as byproduct 
material, as a Hazardous Air Pollutant pursuant to section 112(b)(1)(A) 
of the CAA as amended in 1977. (44 FR 76738). In that notice EPA stated 
that

    [I]n accordance with the requirements of sections 122 and 112, 
the Agency finds that studies of the biological effects of ionizing 
radiation indicate that exposure to radionuclides increases the risk 
of human cancer and genetic damage. . . . Based on this information, 
the Administrator has concluded that emission of radionuclides may 
reasonably be anticipated to endanger public health, and that 
radionuclides constitute hazardous air pollutants within the meaning 
of the Clean Air Act.

Id. On April 6, 1983 (48 FR 15076) EPA announced proposed standards for 
four sources of emissions of radionuclides, and its decision to not 
regulate uranium mill tailings together with other sources. Under court 
order, EPA finalized the regulations proposed in 1983 on February 6, 
1985. 50 FR 5190. See also Sierra Club v. Ruckelshaus, No. 84-0656 
(U.S. District Court for the Northern District of California). On 
September 24, 1986, EPA promulgated a final rule regulating radon-222 
emissions from licensed uranium mill processing sites by establishing 
work practices for new tailings. (51 FR 34056). On April 1, 1988, EPA 
requested a remand for this standard. On EPA's motion, the Court placed 
the uranium mill tailings NESHAPs on the same schedule as the other 
radionuclide NESHAPs to reconsider the standards in light of Natural 
Resources Defense Council v. EPA, 824 F.2d 1146 (D.C. Cir 1987) (Vinyl 
Chloride). EPA subsequently promulgated 40 CFR part 61, subpart T, the 
subject of today's action.
    EPA believes section 122 of the CAA must be read consistent with 
and in harmony with the 1990 amendments to the CAA. EPA took action 
under section 122 when it listed radionuclides. EPA subsequently 
regulated radionuclides emissions under section 112. Section 112(d)(9) 
of the CAA authorizes EPA to now decline to regulate radionuclide 
emissions from any category or subcategory of facilities licensed by 
the NRC (or an Agreement State) if the Administrator determines, by 
rule, and after consultation with the NRC, that the regulatory program 
established by the NRC pursuant to the AEA for such category or 
subcategory provides an ample margin of safety to protect the public 
health. This provision strives to eliminate duplication of effort 
between EPA and NRC, so long as public health is protected with an 
ample margin of safety. While section 122 addresses whether 
radionuclides should be listed, section 112(d)(9) addresses a separate 
issue--whether EPA should continue to regulate or initiate regulation 
of radionuclide air emissions under section 112 based on the NRC 
regulatory program.
    Although the commenter suggests EPA should not rescind subpart T 
based on section 122(a), EPA believes such a reading of sections 
112(d)(9) and 122(a) is not harmonious and is inconsistent with the 
intent of Congress in enacting section 112(d)(9).
    Additionally, EPA received comments from this particular commenter 
in response to the 1994 proposal expressing the belief that the 1994 
proposal to rescind subpart T is consistent with the terms of the 
settlement agreement. The settlement agreement promotes the objectives 
of section 112(d)(9) of the CAA as amended through the rescission of 
subpart T and minor modifications to the AEA regulatory program for 
closure of the uranium mill tailings disposal sites. This commenter, 
together with EPA and others, was a party to that agreement. Through 
today's action rescinding subpart T, EPA is furthering the goal of the 
settlement agreement.
    Thus, EPA is rejecting this comment, since a reading of section 
122(a) apparently preventing such rescission is inconsistent with the 
intent of Congress in enacting section 112(d)(9), and as a party to the 
settlement agreement the commenter was aware of and supported the goal 
of the agreement that subpart T be rescinded.
4. Proposed Amendments to 40 CFR Part 61, Subpart T
4.1  General
    Comment: The rationale for adding the definitions residual 
radioactive material and tailings, while deleting the definition of 
uranium byproduct material or tailings is not clear. The proposed 
definitions appear to apply to Title I sites, and significant problems 
might arise if these definitions were to be applied to Title II sites 
in the event of reinstatement of subpart T.
    Response: Sec. 61.220(a) as adopted today states that subpart T 
applies only to Title I sites except for the reconsideration and 
reinstatement procedures in Sec. 61.226. The phrase ``or uranium 
byproduct materials'' was deleted to further clarify that subpart T 
applies to Title I sites. The phrases ``residual radioactive 
materials'' and ``tailings'' currently appear in Sec. 61.220(a). EPA 
noted in describing DOE sites in the 1989 BID that the tailings located 
at these sites contain residual radioactive materials, including traces 
of unrecovered uranium, various heavy metals and other elements. 
Background Information Document: Risk Assessments; Environmental Impact 
Statement; NESHAPs for Radionuclides, Volume 2 at 8-2 (EPA/520/1-89-
006-1, September 1989).
    EPA believes it appropriate to define residual radioactive material 
and tailings for purposes of this subpart. The Agency proposed these 
definitions on December 31, 1991 and February 4, 1994. (56 FR 67561; 59 
FR 5687). The proposed definitions for these terms were consistent with 
definitions contained in UMTRCA. 42 U.S.C. 7911, sections 101(7) and 
101(8). The terms are defined in the Final Rule by expressly 
referencing UMTRCA, to ensure consistency with that Act. The Agency 
does not believe these definitions would be problematic if the Agency 
decided to reinstate subpart T, since EPA would amend subpart T at that 
time to apply to the Title II sites and to include appropriate 
definitions.
    Comment: The provisions of subpart T, with the exception of 
Sec. 61.226, should only apply to Title I sites and some apparent 
references to Title II sites remain.
    Response: EPA is rescinding subpart T as applied to NRC or 
Agreement State licensed non-operational uranium mill tailings disposal 
sites, and thus, does not intend any provision of subpart T, excepting 
Sec. 61.226 and applicable definitions, to apply to these sites. EPA 
has revised Sec. 61.220(a) to reflect this intent.
    Comment: Section 61.226(c)(2) as proposed suggests that no future 
action can be taken to resolve EPA's concerns after EPA notifies NRC of 
its intent to initiate a rulemaking to reinstate subpart T.
    Response: EPA disagrees with the commenter's suggestion that no 
further action may be taken to resolve the Agency's then existing 
concerns after EPA notifies NRC of its intent to proceed with a 
rulemaking to reinstate subpart T. The purpose of consulting with NRC 
about the Agency's concerns prior to notifying NRC and the subsequent 
60-day period is to provide EPA and NRC with an opportunity to address 
EPA's concerns prior to EPA actually initiating such a rulemaking. 
Additionally, EPA expects that the two agencies would continue 
consultations during the rulemaking process to attempt to resolve any 
remaining concerns. Section 61.226(c)(2) would not limit such continued 
consultations.
4.2. Provisions for Reconsideration of the Rescission and Reinstatement 
of Subpart T
    Comment: Many commenters, although generally opposed to the idea of 
reinstatement of subpart T, favored including provisions for 
reconsideration and reinstatement of subpart T on either a site-
specific or programmatic basis, as set forth in the Agency's 1991 
proposal to rescind subpart T.
    Response: EPA reviewed the various reconsideration options proposed 
in December 1991, taking into consideration the comprehensive details 
added to the terms of the MOU by the settlement agreement finalized in 
April 1993. In its 1994 supplemental proposal, EPA proposed an 
additional reconsideration option that was a combination of the options 
originally proposed. EPA did not withdraw the original options, but 
instead announced the Agency's preference for provisions on 
reconsideration and reinstatement of subpart T on both programmatic and 
site-specific bases. The Agency has reviewed carefully all comments 
submitted on the proposed reconsideration provisions and has revised 
the regulatory text and preamble where deemed appropriate. The Agency 
believes the provisions for reconsideration and reinstatement of 
subpart T adopted today represent a comprehensive approach based on 
EPA's current evaluation of the NRC regulatory program, and a 
regulatory structure designed to address future evaluations of the 
program.
    Comment: EPA received a variety of comments dealing with the 
consistency of the proposed regulations with the settlement agreement 
between EPA, EDF, NRDC, AMC, and individual site owners described 
above; to which NRC agreed in principle. These commenters suggested 
various minor revisions to the regulations.
    Response: EPA has adopted certain comments and suggested minor 
language changes while rejecting others, depending on whether they 
effectively implement the goal of rescission of subpart T.
    Comment: Several commenters contend the site-specific 
reconsideration and reinstatement options contained in the December 
1991 proposal would unduly restrict NRC's waiver authority, since EPA 
proposed a non-discretionary duty to reinstate subpart T on a site-
specific basis if NRC exercises its waiver authority.
    Response: As described in the proposals, EPA was concerned over the 
potential for deviation from the agreements contained in the MOU and 
the requirements of revised subpart D. In response, EPA proposed and is 
now adopting procedural and substantive provisions for site-specific 
and programmatic reconsideration and reinstatement if certain criteria 
are met. In promulgating subpart T, the CAA did not permit, and EPA did 
not consider, site-specific waivers from ultimate compliance with that 
standard. Thus, in evaluating NRC's regulatory program, EPA recognized 
in its December 1991 proposal that NRC's waiver authority under the AEA 
might be exercised in a manner not addressed in the MOU even after the 
revisions to 40 CFR part 192, subpart D and 10 CFR part 40, appendix A 
have been promulgated and the licenses amended. However, EPA has no 
reason to believe such relaxation of the standards will actually occur. 
EPA believes the provisions adopted today represent a comprehensive 
approach based on EPA's current evaluation of the NRC regulatory 
program, and a regulatory structure designed to address future 
evaluations of the program.
    Additionally, in response to the 1994 proposal, EPA received 
subsequent comments from these commenters supporting the rescission of 
subpart T. Furthermore, these commenters supported the proposed 
reconsideration and reinstatement provisions with certain 
modifications. These commenters believe the 1994 proposal to rescind 
subpart T is consistent with the terms of the settlement agreement 
between EPA, EDF, NRDC, AMC and individual sites. Thus, based on the 
above reasons for adopting reconsideration and reinstatement 
provisions, and due to the inconsistency between the earlier comments 
received and the subsequent expressions of support for the rescission 
of subpart T, EPA is rejecting the earlier comments.
    Comment: Many commenters to the 1991 proposal believe that 
reconsideration of the rescission of subpart T and subsequent 
reinstatement on a programmatic basis is inappropriate if one site 
fails to comply.
    Response: Today's action sets forth provisions for the 
reconsideration of the rescission of subpart T and reinstatement of 
that subpart. The regulations adopted today include provisions for 
programmatic and site-specific reinstatement with separate but somewhat 
parallel criteria. At this time, EPA is not aware of a situation which 
would cause it to reinstate subpart T on a programmatic basis if one 
site fails to comply, and would not expect to reinstate subpart T on 
that basis. However, the Agency cannot predict all future 
circumstances, and cannot at this time preclude the possibility of such 
reinstatement. EPA does, however, believe the criteria adopted today 
appropriately address both programmatic and site-specific 
reinstatement.
    EPA rejects this comment for the above reasons, and because of the 
inconsistent responses to the 1991 and 1994 proposals received from the 
same commenters.
    Comment: Some commenters assert, in response to the 1991 proposal 
that EPA lacks the authority to reinstate subpart T on a site-specific 
basis, since section 112(d)(9) is concerned only with NRC's regulatory 
program.
    Response: EPA believes that section 112(d)(9) does not preclude 
site-specific reinstatement. Section 112(d)(9) of the CAA as amended 
authorizes EPA to decline to regulate radionuclide emissions from any 
category or subcategory of facilities licensed by the Nuclear 
Regulatory Commission (or an Agreement State) if the Administrator 
determines, by rule, and after consultation with the Nuclear Regulatory 
Commission, that the regulatory program established by the Nuclear 
Regulatory Commission pursuant to the Atomic Energy Act for such 
category or subcategory provides an ample margin of safety to protect 
the public health. The text of this section does not appear to preclude 
reinstatement on a site-specific basis. Section 112(d)(9) allows EPA to 
categorize and subcategorize, and for any such category or subcategory 
determine whether the public health is protected with an ample margin 
of safety by the NRC regulatory program from a particular source of 
radionuclide emissions. EPA believes that under the appropriate 
circumstances, the Agency may want to specifically categorize sites. 
The CAA as amended does not appear to preclude such specific categories 
on its face.
    EPA rejects this comment for the above reasons, and because of the 
contradictory and inconsistent nature of the comments received from the 
same commenters in response to the 1991 and 1994 proposals, and the 
commenters' support of EPA's 1994 proposal which contains provisions 
for site-specific reinstatement.
    Comment: One commenter appears to recognize EPA's authority for 
site-specific reinstatement of subpart T but is opposed to EPA's 
exercise of such authority, and questions its appropriateness, since it 
appears to the commenter that NRC's existing inspection and enforcement 
programs address site-specific failures.
    Response: This commenter does not oppose the proposed reinstatement 
provisions and expresses the clear opinion that EPA committed in the 
settlement agreement to include provisions for site-specific 
reconsideration and reinstatement of subpart T. EPA anticipates that 
before initiating a rulemaking to reinstate subpart T on a site-
specific basis, there would be extensive consultation with NRC. Based 
on the actions of NRC to date in implementing the terms of the MOU, EPA 
hopes that all concerns could be resolved. EPA is adopting the 
provisions for site-specific reconsideration and reinstatement as part 
of a comprehensive approach based on EPA's current evaluation of the 
NRC regulatory program, and a regulatory structure designed to address 
future evaluations of the program.
    Comment: Some commenters contend that in reconsidering the 
rescission and reinstatement of subpart T on a programmatic basis, 
section 112(d)(9) requires EPA to determine whether public health is 
threatened by the failure of a particular site to meet the 20 pCi/
m2-s flux standard.
    Response: The Agency disagrees with the commenters' interpretation 
of section 112(d)(9) as applying to provisions for reinstatement. 
Section 112(d)(9) does not establish the criteria for reinstatement, 
rather it authorizes EPA to decline to regulate radionuclide emissions 
from NRC or Agreement State licensees if the Administrator determines, 
by rule, and after consultation with the NRC, that the NRC regulatory 
program protects the public health with an ample margin of safety. 
Under section 112(d)(9) EPA may rescind subpart T if EPA determines 
that the NRC regulatory program provides an equivalent level of public 
health protection (i.e., an ample margin of safety) as would 
implementation of subpart T in order to rescind subpart T. Section 
112(d)(9) does not limit EPA's authority to reinstate subpart T. EPA 
believes the criteria adopted today appropriately address both 
programmatic and site-specific reinstatement.
    Additionally, this comment was received in response to the 1991 
proposal. EPA rejects this comment for the above reasons, and because 
of the inconsistent responses to the 1991 and 1994 proposals received 
from the same commenters.
    Comment: Some commenters contend in response to the 1994 proposal 
that EPA should not treat reinstatement at the Administrator's 
initiative on the same terms as reinstatement based on a third party 
petition. These comments suggest revising the proposed regulations to 
reflect the differences between the two, including adding a provision 
for a third possible result (i.e., a finding that NRC is in 
compliance).
    Response: EPA disagrees with the commenters' suggestion that 
reinstatement at the Administrator's initiative should be treated 
differently from reinstatement based on a third party petition.
    The commenters are basing their contentions on the terms of the 
settlement agreement which the Agency entered into with EDF, NRDC, AMC 
and individual sites in February 1993. That agreement adds 
comprehensive details to the regulatory approach of the MOU between 
EPA, NRC and the affected Agreement States. EPA has reviewed the terms 
of the settlement agreement pertaining to the reconsideration of 
rescission and reinstatement of subpart T. The settlement agreement 
specifies at paragraph III.e. that upon completion of a rulemaking 
reconsidering the rescission of subpart T, EPA may (1) reinstate 
subpart T on a programmatic basis if certain criteria are met; (2) 
reinstate subpart T on a site-specific basis if certain criteria are 
met; or (3) issue a finding that NRC is in compliance with certain 
criteria and that reinstatement of subpart T is not appropriate.
    The Agency believes the criteria in Sec. 61.226(a) for requiring 
reinstatement upon completion of a reconsideration rulemaking should 
apply whether the rulemaking is at the Administrator's initiative or 
based on a third party petition. These criteria are: (1) Failure by the 
NRC or an Agreement State on a programmatic basis to implement and 
enforce, in significant part, the regulations governing the disposal of 
uranium mill tailings promulgated by EPA and NRC or the tailings 
closure plan (radon) requirements (i.e., contained in the license) 
establishing milestones for the purpose of emplacing a permanent radon 
barrier that will achieve compliance with the 20 pCi/m2-s flux 
standard; or (2) failure by NRC or an affected Agreement State on a 
site-specific basis to achieve compliance by the operator of the site 
or sites with applicable license requirements, regulations, or 
standards implemented by NRC and the affected Agreement States. 
Additionally, EPA would not be required to reinstate subpart T under 
Sec. 61.226(a) unless those failures may reasonably be anticipated to 
significantly interfere (i.e., more than de minimis) with the timely 
emplacement of a permanent radon barrier constructed to achieve 
compliance with the 20 pCi/m2-s flux standard at uranium mill 
tailings disposal sites.
    The commenters contend that the nature of the party initiating the 
reconsideration rulemaking should determine whether reinstatement is 
discretionary (for initiation by the Administrator) or mandatory (for a 
third party petition), apparently based on a desire to provide EPA with 
greater flexibility to address concerns over failures of NRC or an 
Agreement State to implement or enforce applicable requirements. The 
Agency believes that the nature of the initiating party properly may 
trigger different procedural requirements. For example, when a private 
party initiates the process by filing a petition, EPA has established a 
requirement that it take final action on such a petition within a set 
time period. However, EPA believes that the nature of the party 
initiating the process leading to a rulemaking is not relevant to 
deciding whether to reinstate, assuming the relevant criteria for 
reinstatement are met under either circumstance. EPA believes that if 
the Administrator determines, based on the record, that (1) NRC or an 
Agreement State failed on a programmatic basis to implement and 
enforce, in significant part, the regulations governing the disposal of 
uranium mill tailings promulgated by EPA and NRC or the tailings 
closure plan (radon) (i.e., contained in the license) requirements 
establishing milestones for the purpose of emplacing a permanent radon 
barrier that will achieve compliance with the 20 pCi/m2-s flux 
standard or (2) NRC or an affected Agreement State failed in 
significant part, on a site-specific basis, to achieve compliance by 
the operator of the site or sites with applicable license requirements, 
regulations, or standards implemented by NRC and the affected Agreement 
States, then there would be the same reason for the Agency to reinstate 
subpart T whether the process was initiated by a private petition or at 
EPA's own initiation. If the Agency makes the determination required to 
reinstate subpart T based on reconsideration of rescission at the 
Administrator's initiative and such reinstatement is considered 
discretionary, the Agency is not aware of circumstances which would 
lead the Agency not to reinstate subpart T. In any case, if the 
Administrator should make the determination in Sec. 61.226(a) (1) or 
(2) but decide in her discretion not to reinstate subpart T in a 
proceeding initiated by the Administrator, then the Agency believes it 
would promptly receive third party petitions based on the finding made 
at the Administrator's initiative, and the Agency would then be 
obligated to reinstate subpart T. Additionally, upon completion of the 
reconsideration of rescission pursuant to Sec. 61.226(c) the 
Administrator may in her discretion issue a finding that reinstatement 
of this subpart is not appropriate if the Administrator makes certain 
findings. However, the discretion to issue such a finding is not 
relevant to the situation where the Administrator has found that the 
criteria for reinstatement have already been met, since the two 
findings are mutually exclusive. Finally, the commenters apparently 
believe that reinstatement at the Administrator's initiative should be 
discretionary so that EPA and NRC can continue attempts to resolve 
concerns and thereby avoid the need to reinstate. EPA believes that 
such ongoing consultation is not precluded by the regulations adopted 
today, and EPA expects the agencies would continue consultations and 
make all possible efforts to resolve the concerns during the rulemaking 
process. The regulation does not establish a time limit for final 
agency action in this case, and the agency would have discretion to 
extend the rulemaking if appropriate to continue such inter-agency 
consultations.
    EPA agrees with the commenters that the settlement agreement 
provides an additional possible result upon completion of a 
reconsideration rulemaking initiated by the Administrator, namely that 
the Agency may issue a finding that reinstatement is not appropriate if 
the Agency finds: (1) NRC and the affected Agreement States are on a 
programmatic basis implementing and enforcing, in significant part, the 
regulations governing the disposal of uranium mill tailings promulgated 
by EPA and NRC or the tailings closure plan (radon) (i.e., contained in 
the license) requirements establishing milestones for the purpose of 
emplacing a permanent radon barrier that will achieve compliance with 
the 20 pCi/m2-s flux standard; or (2) NRC or an affected Agreement 
State are, in significant part, on a site-specific basis achieving 
compliance by the operator of the site or sites with applicable license 
requirements, regulations, or standards implemented by NRC and the 
affected Agreement States. EPA believes addition of this provision to 
the regulations will clarify the existence of this option and has 
revised Sec. 61.226(a) of the reinstatement provisions to provide for 
this additional result.
    Comment: One commenter asserts that EPA's characterization of its 
authority to reconsider rescission of subpart T in the preamble to the 
1994 proposal appears overly broad and reinstatement should be clearly 
limited to those conditions proposed in Sec. 61.226(a).
    Response: EPA believes that the provisions for reconsideration of 
rescission adopted in Sec. 61.226 represent a comprehensive approach 
under both the MOU and the settlement agreement. The provisions include 
substantive and procedural provisions for reconsideration of rescission 
and the reinstatement of this subpart on a programmatic or site-
specific basis. The provisions include the obligation to reinstate 
subpart T if certain conditions are met, procedures for reconsideration 
and provisions authorizing the Administrator to initiate 
reconsideration. Although the Agency does not intend to reconsider its 
decision to rescind subpart T for a site which is in fact meeting the 
20 pCi/m2-s flux standard absent other factors that would indicate 
the need for reinstatement, the Agency recognizes that a situation may 
arise where reconsideration of rescission is nevertheless appropriate. 
For example, EPA might consider initiating reconsideration under 
Sec. 61.226 where a site is meeting the 20 pCi/m2-s flux standard 
if there are factors which show that NRC or an Agreement State failed 
to implement and enforce in significant part, the applicable 
regulations, e.g., clear failure of that site to emplace the permanent 
radon barrier within the time periods established in implementing 
subpart D. EPA is not aware of circumstances under which EPA might 
reconsider rescission for a site that is meeting the 20 pCi/m2-s 
flux standard, other than those indicating that the milestone for 
emplacement of the permanent radon barrier has passed, the delay was 
not approved by NRC or an Agreement State and the licensee failed to 
emplace the permanent radon barrier, and there are indications that the 
licensee does not plan to emplace the barrier and NRC or an Agreement 
State does not plan to enforce this requirement. EPA does not envision 
such an unusual situation arising. EPA believes the actions taken to 
date by NRC, including the license amendments and the final amendments 
to the NRC conforming regulations, as described above, reflect the good 
faith effort on the part of NRC and the Agreement States to implement 
the MOU and EPA's subpart D regulations. However, the Agency is not now 
in the position to determine that there could be no circumstances which 
might indicate the need to reconsider the rescission of subpart T for a 
site that is in fact meeting the 20 pCi/m2-s flux standard.
    Additionally, EPA reserves the right to initiate reinstatement of 
subpart T if appropriate, since although the Sec. 61.226 provisions 
adopted today establish an obligation for the Administrator to 
reinstate if certain conditions are met, they are not intended to be 
the exclusive basis for reinstatement. Under the regulations adopted 
today, EPA has the authority to reconsider the rescission of subpart T 
at the Administrator's initiative and upon the petition of a third 
party. The Agency is obligated to reinstate subpart T on a programmatic 
basis if the Administrator determines by rulemaking, based on the 
record, that NRC or an affected Agreement State has failed on a 
programmatic basis to implement and enforce, in significant part, the 
regulations governing the disposal of uranium mill tailings promulgated 
by EPA and NRC or the tailings closure plan (radon) requirements 
establishing milestones for the purpose of emplacing a permanent radon 
barrier that will achieve compliance with the 20 pCi/m2-s flux 
standard. Additionally, EPA is obligated to reinstate subpart T on a 
site-specific basis as applied to owners and operators of non-
operational uranium mill tailings disposal sites if the Administrator 
determines by rulemaking, based on the record, that NRC or an affected 
Agreement State has failed in significant part on a site-specific basis 
to achieve compliance by the operator of the site or sites with 
applicable license requirements, regulations, or standards implemented 
by NRC and the affected Agreement States. The obligation to reinstate 
subpart T is limited to those failures which may reasonably be 
anticipated to significantly interfere with timely emplacement of the 
permanent radon barrier constructed to achieve compliance with the 20 
pCi/m2-s flux standard. At this time, EPA is not aware of 
circumstances where it would consider reinstating subpart T if the 
failure does not significantly interfere with emplacement of the 
required permanent radon barrier. However, EPA reserves the right to 
reconsider the rescission where the criteria of Sec. 61.226(a) have not 
been met, under the Agency's authority to issue NESHAPs contained in 
section 112 of the CAA. For example, even if the NRC or an Agreement 
State is implementing and enforcing, in significant part, the 
applicable regulations and license amendments, the Agency may decide to 
reconsider the rescission if new information indicated that the public 
health is not protected with an ample margin of safety. The Agency 
cannot predict all future circumstances and cannot at this time 
preclude the possibility of such reconsideration and possible 
reinstatement. Despite reserving this authority, the Agency believes 
this is a theoretical situation and has no current intention to act on 
this authority.
5. Miscellaneous
5.1. Monitoring
    Comment: EPA must ensure that the single monitoring event currently 
required by subpart T would remain in effect if subpart T is 
reinstated, particularly in light of the recently proposed ``enhanced 
monitoring'' regulations.
    Response: Subpart T currently requires monitoring to occur only 
once to demonstrate compliance with the 20 pCi/m2-s flux standard 
of Sec. 61.222. However, EPA published a proposed Enhanced Monitoring 
Program on October 22, 1993, which would require owners and operators 
of sources subject to existing NESHAPs to perform enhanced monitoring 
at emissions units. (58 FR 54648). It appears that the proposal applies 
the enhanced monitoring requirements for hazardous air pollutants to 
all emissions units which would be required to obtain an operating 
permit. (58 FR 54651, October 22, 1993). Additionally, although 
asbestos demolition and renovation projects (subpart M) were exempted 
from the enhanced monitoring provisions, it does not appear subpart T 
would be exempted. The rationale for the proposed asbestos demolition 
exemption, that EPA was not requiring states to permit those sources 
and the permit program is the established method for implementing the 
enhanced monitoring program, does not appear to apply to uranium mill 
tailings disposal sites. It would be premature for EPA to determine 
today that in the event subpart T is reinstated for Title II sites, the 
proposed enhanced monitoring provisions would not apply.
5.2  Discussion of 40 CFR part 192, Subpart D Extension Provisions
    Comment: EPA's discussion of the extension provisions contained in 
40 CFR 192.32(a)(3)(ii), (iii) is confusing and should be revised to 
equally consider the possibility of extensions for factors beyond the 
control of the licensee.
    Response: EPA believes its discussion of the extension provisions 
contained in the Agency's amendments to its UMTRCA regulations at 40 
CFR 192.32(a)(3)(ii) and (iii) does not need further clarification. EPA 
disagrees with the commenter's claim that an extension based upon 
``factors beyond the control of the licensee'' should be considered 
equally with the delay provisions encompassed in EPA's UMTRCA 
regulations. 40 CFR 192.32(a)(3)(ii) and (iii) specifically provide 
that NRC may grant an extension on either one of two bases. However, an 
extension due to ``factors beyond the control of the licensee'' is 
implicit in the definition of ``as expeditiously as practicable.'' The 
term ``factors beyond the control of the licensee'' would be one 
element for NRC to evaluate in reconsidering a prior decision 
establishing a date for emplacement of the permanent radon barrier that 
meets the definition of ``as expeditiously as practicable.'' A change 
in any one of the factors considered in establishing a date that meets 
the ``as expeditiously as practicable'' standard would not 
automatically lead to an extension, rather NRC would need to evaluate 
all the relevant factors under Sec. 192.32(a)(3)(i) before it could 
change a previously established milestone or date for emplacement of 
the permanent radon barrier.
5.3  Discussion of Amendment of NRC and Agreement State Licenses
    Comment: There is some concern that EPA may be over scrutinizing 
the NRC license amendment process, particularly with respect to the 
Atlas site located in Moab, Utah.
    Response: In order to determine that the NRC regulatory program 
protects the public health with an ample margin of safety and rescind 
subpart T, EPA must conclude, inter alia that NRC and the affected 
Agreement States are or will be implementing and enforcing the license 
requirements (tailings closure plan (radon)) that establish the 
milestones for emplacement of a permanent radon barrier that will 
achieve compliance with the 20 pCi/m2-s flux standard as 
expeditiously as practicable considering technological feasibility. The 
Agency is applying the same basic approach in reviewing all of the 
license amendments. Presently, Atlas is the only site where the site 
license has not yet been amended, but the tailings closure plan (radon) 
milestones are in jeopardy. There is a wealth of information for EPA to 
review due to the unique circumstances of this site.
    EPA is interested in the Atlas site because the license amendment 
incorporating the reclamation plan has not yet been completed, and this 
may jeopardize the dates contained in the tailings closure plan 
(radon). The MOU established a target closure date of 1996. EPA 
recognizes that this is the only site for which a license amendment 
incorporating the reclamation plan has not been established, thereby 
possibly impacting the dates currently contained in the approved 
tailings closure plan (radon) adopted pursuant to the MOU and EPA's 
revised subpart D regulations, and that the circumstances surrounding 
the delay are unique. EPA believes NRC, the affected Agreement States 
and the licensees have acted in good faith to amend the site licenses.
    The Agency does not believe it is overly scrutinizing the license 
amendment process. The Agency believes its interest in the Atlas site 
reflects EPA's commitment to and review of the applicable criteria in 
finally determining that NRC and the affected Agreement States are or 
will be implementing and enforcing the license requirements (tailings 
closure plan (radon)) to achieve compliance with the 20 pCi/m\2\-s flux 
standard. EPA is merely reviewing current information and monitoring 
the progress of NRC in implementing the requirements of subpart D. The 
Agency has not suggested any course of action to NRC.
5.4  Public Participation
    Comment: An industrial site, other than a uranium mill tailings 
disposal site, commented that publishing a notice in the Federal 
Register does not provide sufficient notice for citizens of communities 
where uranium mill tailings disposal sites are located.
    Response: The EPA made every effort to notify the affected public 
of the proposed rulemaking action. EPA published a NPR on December 31, 
1991, and a supplement to that proposal on February 7, 1994, in the 
Federal Register. There was a public comment period after each 
proposal; public hearings were held in Washington, DC and Santa Fe, NM 
after the 1991 proposal and no request for a hearing was received after 
the 1994 proposal. EPA believes it has afforded the public with full 
opportunity to participate in this proceeding, as well as satisfied all 
such requirements under Clean Air Act section 307.

V. Miscellaneous

A. Disposition of Pending Judicial Challenges and Petitions for 
Reconsideration

    By taking today's action rescinding subpart T as applied to owners 
and operators of uranium mill tailings disposal sites regulated under 
Title II of UMTRCA, the stay of subpart T is no longer effective. Thus, 
the challenge to the stay of subpart T filed by EDF is moot, and EPA 
expects that the pending litigation will be promptly resolved by 
dismissal. Based on the terms of the settlement agreement between EDF, 
NRDC, AMC, individual sites and EPA as described above, and based on 
today's rescission of subpart T, AMC's pending administrative petition 
for reconsideration of subpart T is denied as moot. Additionally, all 
other pending petitions for reconsideration of subpart T as applied to 
Title II sites are denied as moot under today's action.

B. Paperwork Reduction Act

    There are no information collection requirements in this rule.

C. Executive Order 12866

    Under Executive Order 12866, (58 FR 57735, October 4, 1993) the 
Agency must determine whether this regulation, if promulgated, is 
``significant'' and therefore subject to OMB review and the 
requirements of the Executive Order. The Order defines ``significant 
regulatory action'' as one that is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local or tribal governments or communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    This action is not a significant regulatory action as that term is 
defined in Executive Order 12866, since it will not result in an annual 
effect on the economy of $100 million or another adverse economic 
impact; it does not create a serious inconsistency or interfere with 
another agency's action; it does not materially alter the budgetary 
impacts of entitlements, grants, user fees, etc.; and it does not raise 
novel legal or policy issues. Thus, EPA has determined that rescinding 
subpart T as it applies to owners and operators of uranium mill 
tailings disposal sites that are licensed by the NRC or an affected 
Agreement State is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 and is therefore not subject to OMB 
review.

D. Regulatory Flexibility Analysis

    Section 603 of the Regulatory Flexibility Act, 5 U.S.C. 603, 
requires EPA to prepare and make available for comment an ``initial 
regulatory flexibility analysis'' which describes the effect of this 
rule on small business entities. However, section 604(b) of the Act 
provides that an analysis not be required when the head of an Agency 
certifies that the rule will not, if promulgated, have a significant 
economic impact on a substantial number of small entities.
    Most firms that own uranium mill tailings piles are divisions or 
subsidiaries of major U.S. and international corporations. Many are 
parts of larger diversified mining firms which are engaged in a number 
of raw materials industries; the disposal of uranium mill tailings 
piles represents only a small portion of their overall operations. 
Others are owned by major oil companies and electric utilities which 
were engaged in horizontal and vertical integration, respectively, 
during the industry's growth phase in the 1960s and 1970s.
    It was found in the 1989 rulemaking that there was no significant 
impact on small business entities. There has been no change in this, 
and no new tailings piles have been constructed since 1989. I certify 
that this final rule to rescind 40 CFR part 61, subpart T as applied to 
owners and operators of NRC licensed non-operational uranium mill 
tailings disposal sites, will not have significant economic impact on a 
substantial number of small entities.

List of Subjects in 40 CFR Part 61

    Environmental protection, Air pollution control, Arsenic, Asbestos, 
Benzene, Beryllium, Hazardous substances, Mercury, Radionuclides, 
Radon, Reporting and recordkeeping requirements, Uranium, Vinyl 
chloride.

    Dated: June 29, 1994.
Carol M. Browner,
Administrator.

    Part 61 of chapter 1 of title 40 of the Code of Federal Regulations 
is amended as follows:

PART 61--[AMENDED]

    1. The authority citation for part 61 is revised to read as 
follows:

    Authority: 42 U.S.C. 7401, 7412, 7414, 7416, 7601.

    2. Section 61.220 is amended by revising paragraph (a) and removing 
and reserving paragraph (b) to read as follows:


Sec. 61.220  Designation of facilities.

    (a) The provisions of this subpart apply to owners and operators of 
all sites that are used for the disposal of tailings, and that managed 
residual radioactive material during and following the processing of 
uranium ores, commonly referred to as uranium mills and their 
associated tailings, that are listed in, or designated by the Secretary 
of Energy under Title I of the Uranium Mill Tailings Radiation Control 
Act of 1978, except Sec. 61.226 of this subpart which applies to owners 
and operators of all sites that are regulated under Title II of the 
Uranium Mill Tailings Radiation Control Act of 1978.
    (b) [Reserved]
    3. Section 61.221 is amended by revising the introductory text, 
revising paragraphs (a) and (c), and by adding paragraphs (d) and (e) 
to read as follows:


Sec. 61.221  Definitions.

    As used in this subpart, all terms not defined here have the 
meanings given them in the Clean Air Act or subpart A of Part 61. The 
following terms shall have the following specific meanings:
    (a) Long term stabilization means the addition of material on a 
uranium mill tailings pile for the purpose of ensuring compliance with 
the requirements of 40 CFR 192.02(a). These actions shall be considered 
complete when the Nuclear Regulatory Commission determines that the 
requirements of 40 CFR 192.02(a) have been met.
* * * * *
    (c) Residual radioactive materials shall have the same meaning as 
in section 101(7) of the Uranium Mill Tailings Radiation Control Act of 
1978, 42 U.S.C. 7911(7).
    (d) Tailings shall have the same meaning as in section 101(8) of 
the Uranium Mill Tailings Radiation Control Act of 1978, 42 U.S.C. 
7911(8).
    (e) In significant part means in a manner that is not reasonably 
expected to materially (i.e., more than de minimis) interfere with 
compliance with the 20 pCi/m\2\-s flux standard as expeditiously as 
practicable considering technological feasibility (including factors 
beyond the control of the licensee).
    4. Section 61.222 is amended by revising paragraph (b) to read as 
follows:


Sec. 61.222  Standard.

* * * * *
    (b) Once a uranium mill tailings pile or impoundment ceases to be 
operational it must be disposed of and brought into compliance with 
this standard within two years of the effective date of the standard. 
If it is not physically possible for an owner or operator to complete 
disposal within that time, EPA shall, after consultation with the owner 
or operator, establish a compliance agreement which will assure that 
disposal will be completed as quickly as possible.
    5. Section 61.223 is amended by revising paragraph (b)(5) to read 
as follows:


Sec. 61.223  Compliance procedures.

* * * * *
    (b) * * *
    (5) Each report shall be signed and dated by a public official in 
charge of the facility and contain the following declaration 
immediately above the signature line:

    I certify under penalty of law that I have personally examined 
and am familiar with the information submitted herein and based on 
my inquiry of those individuals immediately responsible for 
obtaining the information. I believe that the submitted information 
is true, accurate and complete. I am aware that there are 
significant penalties for submitting false information including the 
possibility of fine and imprisonment. See 18 U.S.C. 1001.
* * * * *
    6. Section 61.226 is added to subpart T to read as follows:


Sec. 61.226  Reconsideration of rescission and reinstatement of this 
subpart.

    (a) Reinstatement of this subpart upon completion of 
reconsideration of rescission.
    (1) The Administrator shall reinstate 40 CFR part 61, subpart T as 
applied to owners and operators of non-operational uranium mill 
tailings disposal sites that are licensed by the NRC or an affected 
Agreement State if the Administrator determines by rulemaking, based on 
the record, that NRC or an affected Agreement State has:
    (i) Failed on a programmatic basis to implement and enforce, in 
significant part, the regulations governing the disposal of uranium 
mill tailings promulgated by EPA and NRC or the tailings closure plan 
(radon) (i.e., contained in the license) requirements establishing 
milestones for the purpose of emplacing a permanent radon barrier that 
will achieve compliance with the 20 pCi/m\2\-s flux standard; and
    (ii) Those failures may reasonably be anticipated to significantly 
interfere (i.e., more than de minimis) with the timely emplacement of a 
permanent radon barrier constructed to achieve compliance with the 20 
pCi/m\2\-s flux standard at the uranium mill tailings disposal site.
    (2) The Administrator shall reinstate 40 CFR part 61 subpart T on a 
site-specific basis as applied to owners and operators of non-
operational uranium mill tailings disposal sites that are licensed by 
the NRC or an affected Agreement State if the Administrator determines 
by rulemaking, based on the record:
    (i) That NRC or an affected Agreement State has failed in 
significant part on a site-specific basis to achieve compliance by the 
operator of the site or sites with applicable license requirements, 
regulations, or standards implemented by NRC and the affected Agreement 
States; and
    (ii) Those failures may reasonably be anticipated to significantly 
interfere (i.e., more than de minimis) with the timely emplacement of a 
permanent radon barrier constructed to achieve compliance with the 20 
pCi/m\2\-s flux standard at the uranium mill tailings disposal site.
    (3) Upon completion of the reconsideration of rescission pursuant 
to Sec. 61.226(c) the Administrator may issue a finding that 
reinstatement of this subpart is not appropriate if the Administrator 
finds:
    (i) NRC and the affected Agreement States are on a programmatic 
basis implementing and enforcing, in significant part, the regulations 
governing the disposal of uranium mill tailings promulgated by EPA and 
NRC or the tailings closure plan (radon) (i.e., contained in the 
license) requirements establishing milestones for the purpose of 
emplacing a permanent radon barrier that will achieve compliance with 
the 20 pCi/m\2\-s flux standard; or
    (ii) NRC or an affected Agreement State are on a site-specific 
basis, in significant part, achieving compliance by the operator of the 
site or sites with applicable license requirements, regulations, or 
standards implemented by NRC and the affected Agreement States.
    (b) Procedures to Petition for Reconsideration of Rescission of 
this subpart.
    (1) A person may petition the Administrator to reconsider the 
rescission and seek reinstatement of this subpart under Sec. 61.226(a).
    (2) EPA shall summarily dismiss a petition to reconsider rescission 
and seek reinstatement of this subpart under Sec. 61.226(a)(1) 
(programmatic basis), without prejudice, unless the petitioner 
demonstrates that written notice of the alleged failure(s) was provided 
to NRC at least 60 days before filing the petition with EPA. This 
notification shall include a statement of the grounds for such a 
petition and this notice requirement may be satisfied by, but is not 
limited to, submissions or pleadings submitted to NRC during a 
proceeding conducted by NRC.
    (3) EPA shall summarily dismiss a petition to reconsider rescission 
and seek reinstatement of this subpart under Sec. 61.226(a)(2) (site-
specific basis), without prejudice, unless the petitioner demonstrates 
that a written request was made to NRC or an affected Agreement State 
for enforcement or other relief at least 60 days before filing its 
petition with EPA, and unless the petitioner alleges that NRC or the 
affected Agreement State failed to respond to such request by taking 
action, as necessary, to assure timely implementation and enforcement 
of the 20 pCi/m\2\-s flux standard.
    (4) Upon receipt of a petition under Sec. 61.226(b)(1) that is not 
dismissed under Sec. 61.226(b)(2) or (b)(3), EPA will propose to grant 
or deny an authorized petition to reconsider, take comments on the 
Agency's proposed action, and take final action granting or denying 
such petition to reconsider within 300 days of receipt.
    (c) Reconsideration of Rescission of this Subpart Initiated by the 
Administrator.
    (1) The Administrator may initiate reconsideration of the 
rescission and reinstatement of this subpart as applied to owners and 
operators of non-operational uranium mill tailings disposal sites if 
EPA has reason to believe that NRC or an affected Agreement State has 
failed to implement and enforce, in significant part, the regulations 
governing the disposal of uranium mill tailings promulgated by EPA and 
NRC or the tailings closure plan (radon) requirements establishing 
milestones for the purpose of emplacing a permanent radon barrier that 
will achieve compliance with the 20 pCi/m\2\-s flux standard.
    (2) Before the Administrator initiates reconsideration of the 
rescission and reinstatement of this subpart under Sec. 61.226(c)(1), 
EPA shall consult with NRC to address EPA's concerns and if the 
consultation does not resolve the concerns, EPA shall provide NRC with 
60 days notice of the Agency's intent to initiate rulemaking to 
reinstate this subpart.

[FR Doc. 94-17089 Filed 7-14-94; 8:45 am]
BILLING CODE 6560-50-P