[Federal Register Volume 60, Number 150 (Friday, August 4, 1995)]
[Proposed Rules]
[Pages 40042-40051]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-19194]




[[Page 40041]]

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Part VI





Environmental Protection Agency





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40 CFR Parts 302 and 355



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Administrative Reporting Exemptions for Certain Radionuclide Releases; 
Proposed Rule

  Federal Register / Vol. 60, No. 150 / Friday, August 4, 1995 / 
Proposed Rules   

[[Page 40042]]


ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 302 and 355

[FRL-5268-9]


Administrative Reporting Exemptions for Certain Radionuclide 
Releases

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: This notice of proposed rulemaking requests comments on 
broader administrative exemptions from the release reporting 
requirements under the Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980, as amended, and the Emergency 
Planning and Community Right-to-Know Act. In particular, the 
Environmental Protection Agency (EPA) is proposing to grant reporting 
exemptions for releases of naturally occurring radionuclides associated 
with land disturbance incidental to extraction activities at certain 
kinds of mines, and coal and coal ash piles at all kinds of sites. EPA 
also is requesting comments on two alternatives to these exemptions.
    These reporting exemptions are being proposed in response to 
comments on a November 30, 1992 proposed rule on administrative 
reporting exemptions (57 FR 56726).
    EPA thoroughly evaluated the radionuclide concentrations in various 
mining materials, coal, and coal ash relative to background levels to 
determine the scope of the proposed reporting exemptions; thus, this 
document reflects a sound, scientific approach. The exemptions would be 
consistent with the Agency's common sense goals in that they would 
eliminate unnecessary reporting burdens and allow EPA to focus its 
resources on the most serious releases. The reporting exemptions would 
result in an estimated net cost savings to industry of approximately 
$455,000 annually.

DATES: Comments must be submitted on or before October 3, 1995.

ADDRESSES: Submittal of Comments: Comments should be submitted in 
triplicate (no facsimiles or tapes) to: Docket Coordinator, 
Headquarters; U.S. EPA; CERCLA Docket Office; (Mail Code 5201G); 401 M 
Street, SW; Washington, DC 20460; 703/603-8917. Please note that this 
is the mailing address only. Documents are available for viewing, by 
appointment only, at the address provided below in the ``Document 
Viewing'' section.
    Document Viewing: Copies of materials relevant to this rulemaking 
are contained in Docket Number 102RQ-RN-2 at EPA Headquarters at the 
following address: U.S. EPA CERCLA Docket Office (Mail Code 5201G), 
Crystal Gateway #1, 12th Floor, 1235 Jefferson Davis Highway, 
Arlington, VA 22202. The docket is available for viewing, by 
appointment only, after the appearance of this rule. An appointment to 
view the docket can be made by calling the Docket Coordinator at 703/
603-8917. The hours of operation for the Headquarters docket are from 9 
a.m. to 4 p.m., Monday through Friday, excluding Federal holidays. 
Please note that this is the visiting address only. Mail comments to 
the address listed above in the ``Submittal of Comments'' section.
    The public may copy a maximum of 266 pages from any regulatory 
docket at no cost. If the number of pages copied exceeds 266, however, 
an administrative fee of $25 and a charge of $0.15 per page for each 
page after page 266 will be incurred. The docket will mail copies of 
materials to requestors who are outside the Washington, DC metropolitan 
area.
    Release Notification: The toll-free telephone number of the 
National Response Center is 800/424-8802; in the Washington, DC 
metropolitan area, the number is 202/267-2675. The facsimile number for 
the National Response Center is 202/267-2165 and the telex number is 
892427.

FOR FURTHER INFORMATION CONTACT: The RCRA/UST, Superfund, and EPCRA 
Hotline at 800/424-9346 (in the Washington, DC metropolitan area, 
contact 703/412-9810); the Telecommunications Device for the Deaf (TDD) 
Hotline at 800/553-7672 (in the Washington, DC metropolitan area, 
contact 703/486-3323); or Ms. Gerain H. Perry, Response Standards and 
Criteria Branch, Emergency Response Division (5202G), U.S. 
Environmental Protection Agency, 401 M Street, SW., Washington, DC 
20460, or at 703/603-8760.

SUPPLEMENTARY INFORMATION: The contents of today's preamble are listed 
in the following outline:
I. Introduction
    A. Statutory Authority
    B. Background of this Rulemaking
    C. Consultation and Outreach Activities
II. Regulatory Reporting Exemptions
    A. Proposed Exemptions
    B. Alternative Exemptions
III. Regulatory Analyses
    A. Executive Order 12866
    B. Regulatory Flexibility Act
    C. Paperwork Reduction Act
    D. Unfunded Mandates

I. Introduction

A. Statutory Authority

    The Comprehensive Environmental Response, Compensation, and 
Liability Act of 1980 (CERCLA) (Pub. L. 96-510), 42 U.S.C. 9601 et 
seq., as amended, established broad Federal authority to respond to 
releases or threats of releases of hazardous substances from vessels 
and facilities. Section 101(14) of CERCLA defines the term ``hazardous 
substance'' primarily by reference to various Federal environmental 
statutes.
    Under section 103(a) of CERCLA, the person in charge of a vessel or 
facility from which a CERCLA hazardous substance has been released in 
an amount equal to or greater than its reportable quantity (RQ) must 
immediately notify the National Response Center (see 40 CFR 302.6). In 
addition, the person in charge of a facility from which a CERCLA 
hazardous substance has been released in an amount equal to or greater 
than its RQ must immediately notify State and local response 
authorities, as required by section 304 of the Emergency Planning and 
Community Right-to-Know Act of 1986 (EPCRA) (Pub. L. 99-499), 42 U.S.C. 
11001 et seq. (see 40 CFR 355.40). As established by EPA in an earlier 
RQ rulemaking (50 FR 13463, April 4, 1985), a 24-hour period is used 
for measuring whether an RQ or more of a hazardous substance has been 
released (i.e., only releases of an RQ or more within 24 hours need to 
be reported) (see 40 CFR 302.6(a)).
    Section 102(b) of CERCLA establishes RQs at one pound for releases 
of hazardous substances, except for those substances for which RQs were 
established pursuant to section 311(b)(4) of the Clean Water Act (CWA). 
Section 102(a) of CERCLA authorizes EPA to adjust the RQs for all 
hazardous substances by regulation.
    A major purpose of the section 103(a) notification requirements is 
to alert the appropriate government officials to releases of hazardous 
substances that may require a response to protect public health or 
welfare or the environment. EPA emphasizes that an RQ is merely a 
trigger for informing the government of a release so that the 
appropriate government personnel can evaluate the need for a response 
action and can undertake any necessary response action in a timely 
fashion. Federal personnel evaluate all reported releases, but in some 
cases will not initiate a response because the release of an RQ does 
not pose a hazard in all circumstances. Government personnel assess 
each reported release on a case-

[[Page 40043]]
by-case basis to determine the appropriate response action, if any.
    CERCLA sections 102(a), 103, and 115 (the general rulemaking 
authority under CERCLA) together provide EPA with authority to grant 
administrative reporting exemptions. Such exemptions may be granted for 
releases of hazardous substances that pose little or no risk or to 
which a Federal response is infeasible or inappropriate. Requiring 
reports of such releases serves little or no useful purpose and could, 
instead, impose a significant burden on the Federal response system and 
on the persons responsible for notifying the Federal government of the 
release. Through such reporting exemptions, therefore, the Federal 
response system is able to more efficiently implement CERCLA and EPCRA 
and more effectively focus on reports of releases that are more likely 
to pose a significant hazard to human health and the environment.

B. Background of This Rulemaking

    Radionuclides are CERCLA hazardous substances because they are 
listed as hazardous air pollutants under section 112 of the Clean Air 
Act. Radionuclides initially had a one-pound RQ as established by 
CERCLA section 102(b). EPA recognized that an RQ of one pound for 
radionuclides was not appropriate because radionuclides are not 
generally measured in units of pounds, and releases of much less than 
one pound of radionuclides may present a substantial threat to public 
health or welfare or the environment. On March 16, 1987, EPA published 
a Notice of Proposed Rulemaking (NPRM) to adjust the RQ for 
radionuclide releases (52 FR 8172), with the comment period ending on 
May 15, 1987. A total of 28 comment letters, totaling about 150 pages, 
were received. The comments received, together with the Agency's 
responses, are contained in ``Responses to Comments on the Notice of 
Proposed Rulemaking on the Adjustment of Reportable Quantities for 
Radionuclides'' (Responses to Comments), which is available for 
inspection in Docket Number 102RQ-RN located at the U.S. EPA CERCLA 
Docket Office (Mail Code 5201G), Crystal Gateway #1, 12th Floor, 1235 
Jefferson Davis Highway, Arlington, VA 22202.
    The Agency promulgated a final rule (54 FR 22524; May 24, 1989) to 
adjust the RQs for all (approximately 1,500) radionuclides. In 
preparing the final rule, EPA considered carefully all of the public 
comments submitted on the proposals made in the March 16, 1987 NPRM. 
The final rule granted four administrative exemptions from CERCLA 
section 103 and EPCRA section 304 reporting requirements based on those 
comments. In particular, the Agency exempted: (1) Releases of naturally 
occurring radionuclides from large generally undisturbed land holdings, 
such as golf courses and parks; (2) releases of radionuclides naturally 
occurring from the disturbance of large areas of land for purposes 
other than mining, such as farming or building construction; (3) 
releases of radionuclides from the dumping of coal and coal ash at 
utility and industrial facilities with coal-fired boilers; and (4) 
radionuclide releases to all media from coal and coal ash piles at 
utility and industrial facilities with coal-fired boilers.
    Following the final rulemaking, the American Mining Congress (AMC), 
The Fertilizer Institute (TFI), and others challenged the rule in the 
United States Court of Appeals for the District of Columbia in TFI v. 
EPA (935 F2d 1303). In the litigation, AMC and TFI argued that EPA 
violated the Administrative Procedure Act (APA) by failing to provide 
notice and opportunity to comment on the proposed exemptions. The 
petitioners also argued that it was arbitrary and capricious for EPA to 
discriminate against mining by excluding it from the land disturbance 
exemption.
    The Court found that the administrative reporting exemptions were 
improperly promulgated because EPA failed to provide adequate notice 
of, and opportunity for public comment on, those exemptions. The Court, 
however, left the four exemptions in place while the Agency undertakes 
a new round of notice and comment rulemaking.
    In a proposed rule published on November 30, 1992 (57 FR 56726), 
the Agency complied with the Court's decision by providing notice of, 
and requesting comment on, the same four exemptions from CERCLA section 
103 and EPCRA section 304 notification requirements that were 
promulgated in the 1989 final radionuclide RQ adjustment regulation. 
EPA requested that public comments on the November 30, 1992 proposal be 
submitted by January 29, 1993. In response to several requests for an 
extension to the comment period, and in the interest of allowing the 
public greater opportunity to evaluate the issues raised in the 
November 30, 1992 NPRM, EPA re-opened the public comment period for an 
additional 60 days beginning on March 5, 1993 (58 FR 12876). All 
background materials and public comments related to the November 30, 
1992 proposal are available for inspection in Docket Number 102RQ-RN-1 
located at the U.S. EPA CERCLA Docket Office (Mail Code 5201G), Crystal 
Gateway #1, 12th Floor, 1235 Jefferson Davis Highway, Arlington, VA 
22202.
    A total of 27 comment letters, totalling more than 750 pages, were 
received on the November 30, 1992 NPRM, including two after the initial 
deadline and one after the close of the second comment period. These 
comments raised a number of issues that the Agency cannot resolve 
without additional information and analysis. Chief among these issues 
are:

--Do radionuclide releases from land disturbance incidental to 
extraction activities at mines pose a greater risk than such releases 
from farming and construction?
--Do coal and coal ash piles at sites without coal-fired boilers (e.g., 
coal piles at mines, railroad stockyards, and steel mills, and coal ash 
disposed of in off-site landfills) pose a greater radiological threat 
than such piles at boiler sites?
--Is the government likely to respond to radionuclide releases from 
land disturbance incidental to extraction activities or coal and coal 
ash piles at non-boiler sites, and if so, what response realistically 
can be taken?

    After reviewing the public comment letters and evaluating these 
issues, the Agency has decided to issue this supplemental proposal 
requesting information and comment on expanded reporting exemptions for 
certain radionuclide releases.

C. Consultation and Outreach Activities

    EPA has undertaken a number of activities to involve interested 
stakeholders in considering and developing this supplemental proposal. 
The November 30, 1992 NPRM served as a basis for informing and 
soliciting comments from all parties on the original reporting 
exemptions for four categories of radionuclide releases. Comment 
letters from mining trade organizations, individual mining companies, 
electric power generators and trade organizations, railroads, steel 
manufacturers, private citizens, States, and others were received and 
served as the prime impetus for considering broader exemptions. At 
their request, EPA met with representatives of AMC and TFI on January 
22, 1993 to hear their issues and concerns regarding the November 30, 
1992 NPRM. Following this meeting and the receipt of requests submitted 
by commenters, EPA re-opened the public comment period for an 
additional 60 days to give 

[[Page 40044]]
stakeholders ample opportunity to fully address their concerns. EPA 
then met again with representatives of AMC and TFI, at their request, 
on February 25, 1994 to receive further information and hear their 
views on the matter.
    This supplemental proposal was developed based on careful 
consideration of all information and comments received since the 
reporting exemptions for certain radionuclide releases were originally 
promulgated. EPA will develop a final rule on this matter based on 
combined information and comments received on both the November 30, 
1992, NPRM and this supplemental proposal.

II. Regulatory Reporting Exemptions

A. Proposed Exemptions

    EPA is proposing to broaden the present reporting exemption for 
land disturbance activities to include land disturbance incidental to 
extraction activities at all mines except certain categories of mines 
that are likely to handle raw materials with ``elevated'' radionuclide 
concentrations. The particular types of mines that would not be within 
the scope of the reporting exemption would be uranium, phosphate, tin, 
titanium, zirconium, hafnium, vanadium, and rare earth mines. For the 
purpose of this preamble and proposed rule, mines that extract monazite 
(a particular kind of rare earth mineral) for its thorium content are 
considered rare earth mines. Releases of naturally occurring 
radionuclides from land disturbance at all other types of mines would 
be exempted from CERCLA section 103 and EPCRA section 304 reporting 
requirements. For the purpose of this proposal, land disturbance 
incidental to extraction activities would include land clearing, 
overburden removal and stockpiling, and excavating, handling, 
transporting, and storing ores and other raw materials. Beneficiation 
and mineral processing activities, including the associated handling, 
transporting, and storing of bulk materials, would not be included 
within the scope of the exemption because such operations may tend to 
(1) concentrate radionuclides in waste streams or other materials well 
above natural background levels, and/or (2) result in substantially 
greater releases than associated with land disturbance incidental to 
extraction (e.g., smokestack emissions from smelters may far exceed 
fugitive releases from mining). Additionally, this broader exemption 
would exempt radionuclide releases from the subject land disturbance 
activities only from CERCLA section 103 and EPCRA section 304 reporting 
requirements, not from CERCLA response or liability provisions.
    EPA also is proposing to broaden the existing exemptions for coal 
and coal ash piles to include radionuclide releases to and from coal 
and coal ash piles at all kinds of sites, not just sites where there is 
a coal-fired boiler. As with the broader land disturbance exemption, 
this exemption for coal and coal ash piles would apply only to CERCLA 
section 103 and EPCRA section 304 reporting requirements, not to the 
related response or liability provisions. In the 1989 final 
radionuclide RQ adjustment rulemaking, the reporting exemptions for 
radionuclide releases to and from coal and coal ash piles at boiler 
sites were granted based both upon the risks posed and the 
appropriateness of a federal response to such releases under CERCLA (54 
FR 22529, May 24, 1989). The exemptions were limited to only boiler 
sites because there was sufficient information available to quantify 
the radiological risks of coal and coal ash piles at boiler sites, but 
not other kinds of sites. As discussed in more detail below, EPA is 
proposing today that a quantitative risk assessment is not necessary to 
support a CERCLA and EPCRA reporting exemption, if threshold questions 
about the appropriateness and feasibility of a federal response can be 
answered by a simple determination that radionuclide releases are at or 
near natural background levels. While this approach would be a 
departure from the detailed risk analysis performed for coal and coal 
ash piles at boiler sites, it would in fact be consistent with the 
original exemptions granted for undisturbed land holdings and land 
disturbance activities such as farming and construction, which were 
based on a qualitative review of radionuclide releases relative to 
background rather than a quantitative risk assessment.
    EPA is proposing these broader exemptions for three primary 
reasons, which apply equally to both land disturbance at certain mines 
and to coal and coal ash piles at non-boiler sites. First, the 
concentrations of naturally occurring radionuclides in the different 
materials that would be subject to the exemption (e.g., overburden and 
ores in the subject mining sectors, coal, and coal ash) are generally 
within the range of ``typical'' background concentrations in surficial 
rocks and soils in the U.S. Second, EPA believes that a CERCLA 
response, to the release otherwise reportable, would be very unlikely 
and possibly infeasible or inappropriate, because (1) the 
concentrations of materials being handled are at or near background, 
and (2) the resulting radionuclide releases are expected to be 
continuously low, spread over large areas, and widely dispersed in the 
environment. Third, the submission of individual notifications of these 
releases does not appear necessary for the government to assess whether 
a response action is needed, since the releases should be similarly low 
across all sites subject to the broader exemptions. As a result, the 
broader reporting exemptions are intended to allow EPA to focus its 
resources on the most serious releases and to protect public health and 
welfare and the environment more effectively and efficiently. At the 
same time, the exemptions would eliminate unnecessary reporting burdens 
on persons responsible for land disturbance at certain mine sites and 
any sites where coal or coal ash is stored or disposed.
    With respect to radionuclide concentrations, EPA reviewed available 
data on the concentrations of naturally occurring radionuclides in 
surficial rocks and soils, as well as in various ores, coal, and coal 
ash. These data are presented in a Technical Background Document 
(``Technical Background Document Supporting Proposed Administrative 
Reporting Exemptions for Certain Releases of Radionuclides'') available 
for inspection in the U.S. EPA CERCLA Docket Office (Mail Code 5201G), 
Crystal Gateway #1, 12th Floor, 1235 Jefferson Davis Highway, 
Arlington, VA 22202. As discussed in more detail in this document, 
typical concentrations of uranium-238, thorium-232, and their 
respective decay products in surficial rocks and soils in the U.S. 
hover around 1 picocurie per gram (pCi/g), although data developed by 
Myrick et al.1 and other researchers show that uranium-238 
concentrations may range from 0.12 to 3.8 pCi/g and thorium-232 
concentrations may range from 0.10 to 3.4 pCi/g. Concentrations well 
above these typical values, however, are known to occur in certain hot 
spot areas of the country. For example, elevated radioactivity has been 
observed in association with certain faults and shear zones in the 
Reading Prong region of Pennsylvania, New York, and New Jersey, with 
uranium-238 concentrations as high as 27 pCi/g being reported in one 
``profound case.'' 2 Similarly, uranium-238 concentrations 

[[Page 40045]]
of 20 pCi/g or more have been observed in isolated spots in central 
Florida where phosphate deposits are exposed or near the land surface.

    \1\ Myrick, T.E., B.A. Berven, and F.F. Haywood, ``Determination 
of Concentrations of Selected Radionuclides in Surface Soil in the 
U.S.,'' Health Physics, Vol. 45, No. 3 (September), pp. 631-642, 
1983.
    \2\ Smith et al., ``Radon: A Profound Case,'' Pennsylvania 
Geology, Volume 18, No. 2, p. 1-7, 1987.
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    Available data indicate that the radionuclide concentrations in 
many mining materials, coal, and coal ash are generally within the 
range reported for typical background. For example, as shown in the 
Technical Background Document supporting this proposed rule, all 
available data on the uranium-238 and thorium-232 concentrations in 
iron ore, zinc ore, limestone, clay, and fluorspar are within the range 
reported by Myrick et al. for background surface soils. Ninety-eight 
percent of all coal samples analyzed in support of EPA's 1989 final 
airborne emission standards for radionuclides were also within the 
typical background range; concentrations significantly above this range 
(between 20 and 43 pCi/g of uranium-238) were observed in only two out 
of more than 3,700 coal samples analyzed. The radioactivity of coal ash 
is usually higher than that of coal (estimated to be about ten times 
higher). However, typical coal ashes are expected to contain 4.3 pCi/g 
of uranium-238 and 3.5 pCi/g of thorium-232, which are only slightly 
higher than the background range reported by Myrick et al. Bauxite 
(aluminum) ore also can contain radionuclide concentrations that are 
slightly elevated compared to normal background (around 6 pCi/g of 
thorium-232 and 7 pCi/g of uranium-238), but still relatively low 
compared to the levels that naturally exist in surface rocks and soils 
in some areas of the country.
    Most data indicate that radionuclide concentrations in copper ores 
are at or near typical background levels. For example, a 1982 EPA study 
3 reports that the uranium-238 concentration in copper ore ranges 
from 0.79 pCi/g at an underground mine to 2.2 pCi/g at a surface mine. 
The concentration of thorium-232 is reported to range from 0.62 pCi/g 
at an underground mine to 3.1 pCi/g at a surface mine. These levels 
fall within the background ranges for surficial soils as reported by 
Myrick et al. Elevated levels, however, have been observed in certain 
copper ores from Arizona, Utah, and New Mexico (see the Technical 
Background Document for more information). Based on current information 
and understanding, EPA believes that many of these elevated readings 
are probably reflective of a biased sampling program, and that large 
site averages are likely to be lower and approaching typical background 
levels. EPA requests more reliable and current data on the radionuclide 
concentrations in copper ores along with comments on how these ores 
should be treated for the purpose of the final reporting exemption 
rule. If found to be necessary based on data and other information 
submitted during the comment period, land disturbance incidental to 
copper mining could be grouped with those mining sectors that would not 
be granted a reporting exemption in the final rule.

    \3\ U.S. EPA, ``Emissions of Naturally Occurring Radioactivity 
from Aluminum and Copper Facilities,'' Office of Radiation Programs, 
Las Vegas Facility, NV, EPA-520/6-82-018, 1982.
    The relatively low radionuclide concentrations reported for these 
different materials do not necessarily mean that the risks associated 
with radionuclide releases from many types of extraction sites and coal 
and coal ash piles are low or representative of undisturbed background. 
Indeed, many factors associated with the nature of the materials, 
management practices, and environmental and population characteristics 
at these sites would need to be studied in substantially more detail 
before it could be demonstrated that such risks are low in all or most 
cases. However, based on the relatively low radionuclide concentrations 
and the generally low-level, diffuse releases associated with the 
activities involved (land disturbance incidental to mining extraction; 
transporting, dumping, and storing coal; and transporting, dumping, 
storing, and disposing of coal ash), EPA believes that a CERCLA removal 
or remedial response to such radionuclide releases would very rarely, 
if ever, be necessary. Moreover, it is not clear that it would be 
feasible or practical to mount a CERCLA response at these types of 
sites, since the materials in question already have radionuclide 
concentrations that are likely to be at or near background and CERCLA 
responses would not normally clean up to below background levels. Any 
effort to remove the subject extraction materials, coal, or coal ash or 
cover these materials with soil, for example, would leave exposed soils 
that would have comparable concentrations of naturally occurring 
radionuclides. Therefore, EPA believes that reporting exemptions are 
warranted because continued evaluation and reporting of such 
radionuclide releases serves no useful purpose and, in fact, places an 
unnecessary burden on society. CERCLA response and liability 
provisions, however, would remain intact, enabling a response if a 
serious radiation threat is ever discovered by other means (e.g., 
Regional and State inspections) at an exempted mine or coal or coal ash 
pile.
    This same logic does not necessarily hold for other types of 
extraction sites that handle ores and other raw materials that 
routinely have radionuclide concentrations well above background 
levels. As discussed in more detail in the Technical Background 
Document supporting this proposed rule (``Technical Background Document 
Supporting Proposed Administrative Reporting Exemptions for Certain 
Releases of Radionuclides,'' available for inspection in the Superfund 
Docket), the materials extracted at uranium, phosphate, tin, titanium, 
zirconium, hafnium, vanadium, and rare earth mines can have elevated 
concentrations of uranium-238 and/or thorium-232, along with their 
respective decay products. For example:

-- Uranium ore has a uranium-238 concentration on the order of 280-560 
pCi/g, although concentrations as high as 760 pCi/g are reported in the 
literature.
-- Uranium-238 concentrations in phosphate rock range from 3-4 pCi/g in 
Tennessee to 20-60 pCi/g in other States (Florida, North Carolina, 
Idaho, Montana, Wyoming, and Utah). Concentrations as high as 270 pCi/g 
of uranium-238 have been reported.
--No data are available on the radionuclide concentrations in 
domestically mined tin ores. However, available data show that tin slag 
(produced from tin ore processing) contains 17-34 pCi/g of uranium-238. 
In addition, concentrated processed ores from Malaysia have been shown 
to contain 1,160 to 8,830 pCi/g of thorium-238.
-- Some titanium ores (rutile and leucoxene) are reported to contain 
12-14 pCi/g of uranium-238 and 1-10 pCi/g of thorium-232.
-- Zircon (zirconium and hafnium ore) has been measured to contain 13 
pCi/g of radium-226, a decay product of uranium-238 (which would be 
expected to be present at about the same concentration as radium-226). 
Measurements of radium-226 concentrations in processed ore concentrates 
from South Africa are as high as 200 pCi/g.
-- Vanadium-bearing ores are commonly the same as uranium ores, because 
vanadium is often recovered as a coproduct from uranium ore. Ores 
recovered primarily for their vanadium content contain lower 
radionuclide concentrations than uranium ore, but still appear to 
contain uranium at levels higher than typical background (in the 30 to 
58 pCi/g range).
--Monazite, an ore mined for its rare earth and thorium content, 
typically 

[[Page 40046]]
contains 3,900 pCi/g of thorium and 1,800 pCi/g of uranium. Another 
rare earth ore, bastnasite, typically contains less than 97 pCi/g of 
thorium.

    These concentrations generally are far above typical background 
concentrations expected in surface soils across most of the U.S. (i.e., 
uranium-238 ranging from 0.12 to 3.8 pCi/g, with an average of 1 pCi/g, 
and thorium-232 ranging from 0.10 to 3.4 pCi/g, with an average of 1 
pCi/g). The concentrations in uranium ore, phosphate rock, and rare 
earth ores (including monazite mined for its thorium content) also are 
above the elevated background concentrations known to exist at or near 
the land surface in certain hot spot regions of the country, such as 
the Reading Prong region.
    Just as the relatively low concentrations in iron, zinc, limestone, 
copper, and other mining sectors proposed to be exempted do not 
necessarily mean that the radiation risks are low, the relatively high 
concentrations encountered during uranium, phosphate, tin, titanium, 
zirconium, hafnium, vanadium, and rare earth mining do not necessarily 
mean that the radiation risks at these sites are high. To the contrary, 
EPA's risk analysis 4 supporting the National Emission Standards 
for Hazardous Air Pollutants (NESHAPs) shows that airborne emissions of 
radionuclides from surface uranium mines result in a maximally exposed 
individual risk of fatal cancer of 5  x  10-5. Furthermore, U.S. 
Nuclear Regulatory Commission licenses control radionuclide releases to 
all media from in-situ uranium mines and an EPA NESHAP limits radon 
emissions to the air from underground uranium mines (40 CFR part 61, 
subpart B); as a consequence, releases in compliance with these limits 
may be federally permitted under CERCLA and thus excluded from CERCLA 
reporting and liability requirements.

    \4\ U.S. EPA, ``Risk Assessments, Environmental Impact 
Statement, NESHAPS for Radionuclides, Background Information 
Document--Volume 2,'' Office of Radiation Programs, EPA/520/1-89-
006-1, Chapter 12, 1989.
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    EPA believes, however, that the elevated radionuclide 
concentrations in raw materials handled at uranium, phosphate, tin, 
titanium, zirconium, hafnium, vanadium, and rare earth mines 
distinguish such materials from the soil and rock disturbed at the vast 
majority of farming and construction sites across the U.S. When these 
elevated radionuclide concentrations are coupled with other factors 
that tend to distinguish mining from farming and construction--
generally much larger sites, larger quantities of earthen materials 
moved and stockpiled, longer-term and more frequent land disturbances 
at a given site, and frequently substantially greater depths uncovered 
(see the Technical Background Document for more detail)--EPA believes 
there is a reasonable basis for not including uranium, phosphate, tin, 
titanium, zirconium, hafnium, vanadium, and rare earth mining in the 
reporting exemption for land disturbance activities. Again, this does 
not mean that the radiation risks at such mines are necessarily high, 
but only that, in EPA's judgment, further evaluation would be required 
before it can be concluded with a sufficient degree of confidence that 
such risks are indeed low and that a government response would be 
unwarranted or infeasible.
    Commenters wishing to support exemptions for uranium, phosphate, 
tin, titanium, zirconium, hafnium, vanadium, and rare earth mining and 
wishing to obtain a reporting exemption are requested to submit 
particular kinds of information along with their comments on this 
proposal. Data and analyses regarding the radionuclide concentrations 
in ores and other raw materials handled in these mining sectors 
relative to the undisturbed, naturally occurring levels at or near the 
land surface around the mine sites would be especially helpful. If such 
data and analyses can demonstrate that the radionuclide concentrations 
in the ores and raw materials being handled are generally within the 
normal background range for surficial rocks and soils in the same area, 
a basis for broadening the reporting exemptions further to include 
these mining sectors may exist. If such a demonstration cannot be made, 
EPA requests information on special circumstances that would make a 
CERCLA response to radionuclide releases at these mine sites very 
unlikely, infeasible, and/or inappropriate.
    These special circumstances could include a demonstration that the 
radiation exposures and risks, for all radionuclides and all possible 
exposure pathways (not just radon and not just the air pathway), are 
low (e.g., 10-4 or lower lifetime cancer risk) for reasonably 
maximally exposed individuals, including closest offsite residents and 
onsite workers. Any analysis of risks should focus either on all sites 
within a given mining sector or on a model site that is demonstrated to 
conservatively represent other sites. Anecdotal information or basic 
assertions regarding independent factors that might influence risk, 
such as generalized statements that mines are commonly located in 
remote areas or that radon released from mines disperses rapidly and 
causes no incremental exposure above natural background radiation, are 
not convincing unless supported by data and an integrated risk 
analysis. Moreover, EPA believes that broad comparisons of the 
cumulative amount of soil moved or the cumulative amount of radon 
released at all mines versus all farming and construction sites are 
immaterial, since the need for a CERCLA response hinges on the 
particular conditions at any individual site, not all like sites in 
aggregate.
    Other special circumstances that might argue for additional 
reporting exemptions include a demonstration that a CERCLA response is 
infeasible or inappropriate at a particular type of mine. With respect 
to this issue, the Agency wishes to point out that appropriate CERCLA 
responses at mines can fall well short of covering the entire site with 
soil or water, which would defeat the very purpose of extraction. For 
example, it may be feasible or appropriate to cover certain waste piles 
or inactive mine areas with soil or water. Many other types of response 
actions have actually been taken at mine sites on the National 
Priorities List, although not in response to releases of radionuclides. 
These actions have included measures to control and treat mine water, 
diverting and controlling stormwater runoff, dumping materials in areas 
engineered for waste disposal, isolating contaminated areas with fences 
and signs, providing nearby communities with alternate sources of 
drinking water, excavating and removing contaminated soil, and 
injecting concrete into inactive underground mine workings. If these or 
other responses to radionuclide releases at mines would be infeasible 
or inappropriate, EPA requests information explaining why.

B. Alternative Exemptions

    As outlined below, EPA is considering two alternative approaches 
for broadening the existing reporting exemptions for certain 
radionuclide releases. EPA solicits comments and data to assist in 
consideration of these alternatives with regard to differences in 
protection of public health and welfare and the environment. All 
comments on these alternatives, together with comments on the proposed 
approach described above, will be considered in developing the final 
rule. 

[[Page 40047]]

1. Alternative 1: Exempt All Extraction and Coal and Coal Ash Piles
    Under one alternative, EPA would exempt from CERCLA section 103 and 
EPCRA section 304 reporting requirements radionuclide releases from 
land disturbance incidental to extraction activities at all mines, as 
well as coal and coal ash piles at all kinds of sites. As in the 
proposed exemptions, this alternative would not exempt radionuclide 
releases associated with beneficiation or processing operations that 
may be located at mine sites, nor would it exempt the disposal of high 
concentration materials, for example, in inactive mines.
    This alternative recognizes that reporting may not serve a useful 
purpose if a CERCLA response would be infeasible or inappropriate and 
if a response would rarely be undertaken. A broad exemption would allow 
the Agency to focus its resources on the most serious releases, and 
this alternative could result in a greater reduction in reporting 
burden for both industry and government and a greater cost savings 
compared to the proposed exemptions.
    Another factor possibly in favor of this approach is that 
individual release reports and responses under CERCLA may not be the 
most appropriate Federal regulatory response to radionuclide releases 
from mines. EPA and other government agencies are already aware that 
all mines in the U.S. are continuously releasing radionuclides to the 
environment, usually in relatively low concentrations. Rather than 
requiring release reports and evaluating the need for response on a 
facility-by-facility basis, it may be more effective for the Agency to 
study radiation threats at mines categorically and, if found to be 
necessary, develop more stringent regulations under other statutes. 
Such investigations focusing primarily on mining and mineral processing 
wastes are already underway within EPA, including the Office of 
Radiation and Indoor Air's study of diffuse naturally occurring 
radioactive material (NORM) wastes and the Office of Solid Waste's 
evaluation of extraction and beneficiation wastes under the Resource 
Conservation and Recovery Act. Under this alternative, CERCLA response 
and liability provisions would remain intact to respond to any serious 
radiation threats at mine sites that are not being adequately 
controlled under the existing network of regulations, but release 
reporting requirements would be eliminated in deference to these or 
other studies designed to address radiation threats at mines more 
categorically.
    Compared to the proposed exemptions, this alternative may be less 
successful in contributing to CERCLA's overall goal of protecting 
public health and welfare and the environment. This could be 
particularly true at the few categories of mines discussed above that 
are believed to handle materials with elevated concentrations of 
radionuclides.
    To assist in the evaluation of this alternative, EPA specifically 
requests information and comment on the need to obtain reports of 
radionuclide releases from uranium, phosphate, tin, titanium, 
zirconium, hafnium, vanadium, and rare earth mines (including monazite 
mined for its thorium content), which would have to be submitted under 
the proposed exemptions but would not be required under this 
alternative. Data and analyses regarding the magnitude and extent of 
radiation threats (if any) at these types of mines, as well as the 
feasibility and appropriateness of a CERCLA response, would be 
particularly helpful in this regard. Information and comment on the 
degree to which other existing regulations and programs adequately 
control any radiation threats at these types of mines also would assist 
in evaluating the need for CERCLA section 103 and EPCRA section 304 
reporting.
2. Alternative 2: Exempt All Land Disturbance Incidental to Extraction 
During Mining Activities and All Piles of Diffuse Naturally Occurring 
Radioactive Material Below a Concentration Cutoff
    Under another alternative, EPA would eliminate the requirement to 
report releases of radionuclides from land disturbance incidental to 
extraction and releases of radionuclides to and from all piles of 
diffuse naturally occurring radioactive material (including extraction, 
beneficiation, and mineral processing materials and wastes as well as 
coal and coal ash piles at any kind of site), as long as the 
concentration of naturally occurring radionuclides was below a certain 
concentration threshold. Persons in charge of sites where such 
materials are disturbed and/or stockpiled would have to determine the 
radionuclide concentration of the material that they move or handle. If 
the concentration fell below the pre-established threshold, it would 
not be necessary to determine total quantities of radionuclides 
released for comparison with the RQs (i.e., no release report would be 
required, regardless of the total quantity released). However, if the 
concentration exceeded the threshold, it then would be necessary to 
determine quantities released and to submit a report if the RQs were 
met or exceeded.
    EPA is considering a concentration cutoff because there may be very 
little benefit in requiring reports when more than an RQ of naturally 
occurring radionuclides is released from diffuse sources (such as land 
clearing, overburden removal and stockpiling, and excavating, handling, 
transporting, dumping, and storing ores, beneficiation or mineral 
processing materials and wastes, coal, and coal ash) that continuously 
emit radionuclides in low concentrations spread over large areas. In 
developing the adjusted radionuclide RQs, the Agency determined 
quantities that may result in unacceptable human exposures under a 
conservative hypothetical scenario in which radionuclides are released 
from a ground-level, point source (54 FR 22524, May 24, 1989). In 
essence, this assumes that radionuclides are released in a concentrated 
form and unable to undergo substantial dilution as they migrate to a 
point where a person might be exposed. This conservative approach was 
taken to develop adjusted RQs that would ensure timely reporting in 
most circumstances. EPA recognizes, however, that the RQs based on this 
scenario may be unnecessarily low when radionuclides are actually 
released in more dilute form from a large area source.
    In the radionuclide RQ adjustment NPRM (52 FR 8182, March 16, 
1987), EPA requested comments on such a concentration cutoff concept in 
general and, in particular, on the use of 0.002 microcuries per gram 
(or 2,000 pCi/g) established by the Department of Transportation (DOT) 
for the purpose of defining radioactive material in hazardous material 
transport regulations (49 CFR parts 171-177). All commenters who 
addressed this issue (slightly over half of all commenters) favored a 
concentration cutoff. However, EPA decided not to pursue the issue 
further through the radionuclide RQ adjustment rulemaking primarily 
because: (1) There was not a pre-existing concentration threshold that 
was widely believed to be acceptable for all possible radionuclide 
release scenarios (the DOT level of 2,000 pCi/g was generally regarded 
as too high for many release and exposure situations); (2) EPA did not 
have a sufficient technical basis at that time for determining an 
appropriate concentration cutoff; and (3) an RQ adjustment regulation 
was not viewed as the appropriate forum for conducting the complex 
analysis needed to determine such a level (54 FR 22528, May 24, 1989). 

[[Page 40048]]

    Nevertheless, after reviewing public comments on the November 30, 
1992, NPRM on administrative reporting exemptions, EPA would like to 
revisit the idea of a concentration cutoff to be applied specifically 
to land disturbance and piles of diffuse naturally occurring 
radioactive material (rather than all possible radionuclide releases, 
as originally envisioned in the radionuclide RQ adjustment NPRM). In 
particular, EPA requests information and comment on two major issues 
associated with such an approach. First, what would be an appropriate 
concentration cutoff level (or levels)? EPA believes that such a level 
would best be expressed as some increment to natural background. 
Second, what would be the best way to determine natural background 
levels?
    With regard to the question of an appropriate level, 5 pCi/g of 
radium-226 above background is one possibility. This is EPA's standard 
in 40 CFR part 192 for the cleanup of surface soil contaminated with 
residual radioactive material from inactive uranium processing sites 
(i.e., uranium mill tailings). As stated in 40 CFR 192.12, remedial 
actions at such sites shall be conducted to provide reasonable 
assurance that the concentration of radium-226 in land averaged over 
any area of 100 square meters shall not exceed the background level by 
more than 5 pCi/g, averaged over the first 15 centimeters of soil below 
the surface. In promulgating this cleanup standard, the Agency stated:

    The purpose of this standard is to limit the risk from 
inhalation of radon decay products in houses built on land 
contaminated with tailings, and to limit gamma radiation exposure of 
people using contaminated land. * * * Because the risks from soils 
contaminated with radium-226 are potentially so great, the proposed 
standard was set at a level as close to background as we believed 
reasonable, taking into consideration the difficulties in measuring 
this level and distinguishing it from natural background. (48 FR 
600, January 5, 1983)

    EPA believes this underlying purpose and rationale make the 5 pCi/g 
standard a candidate for possible use as a lower-bound concentration 
cutoff for the purpose of reporting exemptions for land disturbance and 
piles of diffuse naturally occurring radioactive material, such as 
extraction, beneficiation, and mineral processing materials and wastes, 
as well as coal and coal ash.
    EPA recognizes, however, that this number would have some 
limitations if applied in this context. Most notably, the standard was 
developed based on conditions that represent an inactive uranium mill 
tailings site, which would not necessarily represent the conditions at 
other kinds of sites where naturally occurring radioactive materials 
are disturbed and handled (e.g., there may be differences in the 
physical properties and radionuclide concentrations of the materials 
being handled, as well as in potential human exposure scenarios). In 
addition, the 40 CFR part 192 standard was developed using risk 
assessment techniques and standards in place during the early 1980s. 
More recently, EPA has established guidelines for determining 
remediation goals for radioactively contaminated soils at Superfund 
sites.5 Depending on the particular conditions at a site, use of 
these more recent guidelines may result in a cleanup target that 
differs from 5 pCi/g of radium-226 above background.

    \5\ U.S. EPA, ``Risk Assessment Guidance for Superfund: Volume 
I--Human Health Evaluation Manual (Part B, Development of Risk-based 
Preliminary Remediation Goals),'' Interim, Office of Emergency and 
Remedial Response, Publication 9285.7-01B, December 1991.
    Nevertheless, these potential limitations may not seriously 
undermine the utility of 5 pCi/g above background as an administrative 
cutoff level for the purpose of establishing CERCLA section 103 and 
EPCRA section 304 reporting exemptions. If this approach is adopted, 
EPA could establish this level as an interim cutoff pending the 
development of a better value or set of values. As part of a separate 
rulemaking, the Agency is presently developing new cleanup levels for 
radioactively contaminated soil and ground water. Once these or other 
levels are finalized, and if they are considered appropriate for the 
purpose of CERCLA and EPCRA reporting exemptions, they could be adopted 
as updated concentration cutoffs.
    The Agency specifically requests information and comment on the 
appropriateness of using 5 pCi/g of radium-226 above background as a 
concentration cutoff for the purpose of establishing CERCLA section 103 
and EPCRA section 304 reporting exemptions for land disturbance and 
piles of diffuse naturally occurring radioactive material. EPA also 
requests proposals and supporting rationale for any alternative values. 
Major issues of interest that have a bearing on the appropriateness of 
any candidate value include its level of protectiveness, the ability to 
detect the value and distinguish it from natural background, and 
consistency with other existing regulations and controls.
    With regard to the question of determining background, EPA believes 
that it would be appropriate to use a concentration that represents 
undisturbed background radioactivity in surface rocks and soils (to 
which the public is already exposed). EPA presently is considering 
three alternatives, but invites information and comment on the 
practicality and appropriateness of any other possibilities. The three 
alternatives presently being considered are: (1) Using site-specific 
values; (2) establishing a single value for the nation as a whole to be 
used when site-specific data are not available, or (3) establishing 
regional or State-specific values to be used when site-specific data 
are not available.
    The first alternative, using site-specific values, recognizes the 
variability in background radioactivity that exists across different 
sites and the difficulties in determining representative, undisturbed 
background values. Under this alternative, reporting would depend on 
site-specific background levels of radionuclides in surface soils. 
Existing and emerging EPA guidance for determining background 
concentrations of radionuclides could be used to establish these 
levels. For example, EPA's Guidance for Data Useability in Risk 
Assessment 6 provides general guidance on how to discriminate 
radioactive site contamination from background. Chapter 10 of the 
Agency's Risk Assessment Guidance for Superfund 7 also discusses 
general issues concerning the determination of background 
concentrations of radionuclides. In cooperation with the Department of 
Energy, Department of Defense, and Nuclear Regulatory Commission, EPA 
is in the process of developing more specific guidelines for surveying 
radioactively contaminated sites and determining radiological 
background levels (as part of the Multi-Agency Manual for Environmental 
Radiological Surveys). Once completed, these guidelines could be 
adopted for use in determining background levels under the RQ program.

    \6\  U.S. EPA, ``Guidance for Data Useability in Risk 
Assessment,'' Part A (Publication 9285.7-09A, April 1992) and Part B 
(Publication 9285.7-09B, May 1992), Office of Emergency and Remedial 
Response. For example, see Section 6.2 of Part B.
    \7\  U.S. EPA, ``Risk Assessment Guidance for Superfund, Volume 
I--Human Health Evaluation Manual (Part A), Interim Final,'' Office 
of Emergency and Remedial Response, EPA/540/1-89/002, December 1989. 
For example, see Sections 10.3.4 and 10.3.7.
---------------------------------------------------------------------------

    Under the second and third alternatives, EPA would establish 
default values that site owners or operators would use in the absence 
of reliable site-specific data. If either of these alternatives were 
adopted, the Agency could use the background 

[[Page 40049]]
concentrations of radium-226 developed by Myrick et al. (1983), shown 
in Table 1. If a single default value were adopted for the nation as a 
whole, EPA could adopt either a central value (the arithmetic or 
geometric mean of approximately 1 pCi/g of radium-226) or the maximum 
value reported for all samples analyzed (4.2 pCi/g). Adding a 5 pCi/g 
concentration cutoff to these background values would result in an 
overall threshold for reporting purposes of either 6 pCi/g or 9.2 pCi/g 
of radium-226. Alternatively, site owners or operators could use the 
background values for their specific State (again, central or upper end 
values are candidates). If a site were located in a State not covered 
by the Myrick et al. data, background values could be estimated by 
averaging values reported for adjacent States.
    Compared to the proposal and the first alternative discussed above, 
this alternative would result in more uniform treatment of diffuse 
naturally occurring radioactive material. The distinction created above 
between land disturbance incidental to extraction and other activities 
that may occur at extraction, beneficiation, and/or mineral processing 
sites would be lost. Instead, the excavation, movement, dumping, 
stockpiling, and disposal of any kind of diffuse naturally occurring 
radioactive material handled at any kind of site would qualify for a 
reporting exemption if it was below the concentration cutoff.

                     Table 1.--State Background Concentrations of Radium-226 in Surface Soil                    
----------------------------------------------------------------------------------------------------------------
                                              # of Samples     Range of values      Arithmetic    Geometric mean
                   State                        analyzed           (pCi/g)         mean (pCi/g)       (pCi/g)   
----------------------------------------------------------------------------------------------------------------
Alabama....................................               8            0.47-1.4             0.82            0.77
Alaska.....................................               6            0.43-0.92            0.65            0.64
Arizona....................................               6            0.23-2.0             0.95            0.70
California.................................               3            0.24-1.3             0.77            0.62
Colorado...................................              32            0.48-3.4             1.4             1.3 
Delaware...................................               2            1.1-1.2              1.2             1.2 
Florida....................................              11            0.25-2.3             0.84            0.67
Georgia....................................               9            0.46-1.6             0.88            0.81
Idaho......................................              12            0.64-1.6             1.1             1.1 
Illinois...................................               7            0.65-1.2             0.97            0.95
Indiana....................................               2            1.0-1.1              1.1             1.1 
Kansas.....................................               6            0.34-1.4             0.97            0.86
Kentucky...................................              13            0.81-4.2             1.5             1.4 
Louisiana..................................               2            0.58-0.84            0.71            0.70
Maryland...................................               6            0.49-1.2             0.72            0.69
Michigan...................................              10            0.46-2.0             1.1             0.95
Mississippi................................               3            0.77-1.6             1.2             1.2 
Missouri...................................              10            0.31-1.4             1.1             1.0 
Nevada.....................................               6            0.89-2.0             1.5             1.5 
New Jersey.................................              24            0.24-1.4             0.87            0.78
New Mexico.................................              13            0.72-2.7             1.5             1.5 
New York...................................               6            0.48-1.2             0.85            0.81
North Carolina.............................               8            0.48-1.2             0.78            0.74
Ohio.......................................              12            0.81-2.5             1.5             1.4 
Oregon.....................................               8            0.24-2.1             0.82            0.68
Pennsylvania...............................              33            0.46-2.4             1.2             1.1 
Tennessee..................................              10            0.65-1.4             1.1             1.0 
Texas......................................              10            0.54-1.4             0.89            0.85
Utah.......................................              32            0.53-1.9             1.3             1.2 
Virginia...................................              13            0.60-1.1             0.85            0.83
West Virginia..............................              11            0.78-1.6             1.3             1.2 
Wyoming....................................              13            0.65-1.7             1.0             1.0 
U.S. Average...............................             327            0.23-4.2             1.1             1.0 
----------------------------------------------------------------------------------------------------------------
Source: Myrick, T.E., B.A. Berven, and F.F. Haywood, ``Determination of Concentrations of Selected Radionuclides
  in Surface Soil in the U.S.,'' Health Physics, Vol. 45, No. 3 (September), pp. 631-642, 1983.                 

    EPA also believes that the use of such a concentration cutoff would 
be more protective than the proposed exemptions. Under this approach, 
all sites excavating and/or handling diffuse naturally occurring 
radioactive materials (e.g., all mining, beneficiation, and mineral 
processing sites and all sites that handle coal and coal ash) would be 
required to evaluate the radionuclide concentration of those materials. 
Release reports then could be required not only from those sites in 
mining sectors that commonly extract and handle materials with elevated 
radionuclide concentrations, as in the proposed exemptions, but also 
other types of mining sites that happen to be extracting and handling 
raw materials with unusually high concentrations of radionuclides. At 
the same time, EPA recognizes that there may be instances when 
continued releases below some concentration cutoff (and thus exempt 
from CERCLA section 103 and EPCRA section 304 reporting requirements) 
could pose a threat, by resulting in the long-term build up of elevated 
levels of radioactivity in the environment.
    Finally, the Agency recognizes that this approach would impose a 
greater burden on individual site owners or operators than the proposed 
approach, since facilities would have to determine concentrations 
relative to background, as well as releases relative to the RQs if the 
concentration cutoff is exceeded. However, determining radionuclide 
concentrations of the materials being extracted and/or handled at a 
site should be much simpler than estimating total releases into the 
environment (concentrations likely would be determined anyway when 
estimating releases relative to the RQs), and burdens associated with 
determining background levels can be reduced 

[[Page 40050]]
substantially through the use of national or regional default values.

III. Regulatory Analyses

A. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether a regulatory action is ``significant'' 
and, therefore, subject to review by the Office of Management and 
Budget (OMB) 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.
    The Agency has determined that this proposed rule is not a 
``significant regulatory action'' under the terms of Executive Order 
12866 and is, therefore, not subject to OMB review.
    These proposed exemptions will result in an estimated net cost 
savings to the regulated community of $455,000 annually, as 
demonstrated by an economic analysis (Estimated Economic Effects of 
Administrative Reporting Exemptions for Certain Releases of 
Radionuclides) performed by the Agency, available for inspection in the 
U.S. EPA CERCLA Docket Office (Mail Code 5201G), Crystal Gateway #1, 
12th Floor, 1235 Jefferson Davis Highway, Arlington, VA 22202.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 requires that a Regulatory 
Flexibility Analysis be performed for all rules that are likely to have 
a ``significant impact on a substantial number of small entities.'' 
Because this proposed rule would grant reporting relief to certain 
sources of radionuclide releases, the rule would not result in a 
significant impact on a substantial number of small entities. EPA 
certifies that this proposed rule is not likely to have a significant 
impact on a substantial number of small entities and, therefore, that a 
Regulatory Flexibility Analysis is not necessary.

C. Paperwork Reduction Act

    Because this rule provides an exemption from CERCLA section 103 and 
EPCRA section 304 reporting requirements for certain radionuclide 
releases, there are no unique reporting or recordkeeping provisions 
that require approval from OMB under the Paperwork Reduction Act of 
1980, 44 U.S.C. 3501 et. seq.
    Approval has previously been granted by OMB for other release 
reporting requirements referenced in this rule: collection of 
information pursuant to CERCLA section 103 for releases of hazardous 
substances equal to or greater than their RQs (OMB control # 2050-
0046).

D. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995, 
signed into law on March 22, 1995, EPA must prepare a statement to 
accompany any rule in which the estimated costs to State, local, or 
tribal governments in the aggregate, or to the private sector, will be 
$100 million or more in any one year. Under section 205 of this Act, 
EPA must select the most cost-effective and least-burdensome 
alternative that achieves the objective of the rule and that is 
consistent with statutory requirements. Section 203 of the Act requires 
EPA to establish a plan for informing and advising any small 
governments that may be significantly impacted by the rule.
    EPA has determined that this rule does not include a Federal 
mandate that may result in estimated costs of $100 million or more to 
either State, local, or tribal governments in the aggregate, or to the 
private sector.

List of Subjects

40 CFR Part 302

    Environmental protection, Air pollution control, Chemicals, 
Emergency Planning and Community Right-to-Know Act, Extremely hazardous 
substances, Hazardous chemicals, Hazardous materials, Hazardous 
materials transportation, Hazardous substances, Hazardous wastes, 
Intergovernmental relations, Natural resources, Pesticides and pests, 
Reporting and recordkeeping requirements, Superfund, Waste treatment 
and disposal, Water pollution control, Water supply.

40 CFR Part 355

    Air pollution control, Chemical accident prevention, Chemical 
emergency preparedness, Chemicals, Community emergency response plan, 
Community right-to-know, Contingency planning, Disaster assistance, 
Emergency Planning and Community Right-to-Know Act, Extremely hazardous 
substances, Hazardous substances, Intergovernmental relations, Natural 
resources, Penalties, Reportable quantity, Reporting and recordkeeping 
requirements, Threshold planning quantity, Water pollution control, 
Water supply.

    Dated: July 25, 1995.
Carol M. Browner,
Administrator.

    For the reasons set out in the preamble, it is proposed to amend 
title 40, chapter I of the Code of Federal Regulations as follows:

PART 302--DESIGNATION, REPORTABLE QUANTITIES, AND NOTIFICATION

    1. The authority citation for part 302 continues to read as 
follows:

    Authority: 42 U.S.C. 9602, 9603, and 9604; 33 U.S.C. 1321 and 
1361.

    2. Section 302.6 is amended by revising paragraph (c) to read as 
follows:


Sec. 302.6  Notification requirements.

* * * * *
    (c) The following categories of releases are exempt from the 
notification requirements of this section:
    (1) Releases of those radionuclides that occur naturally in the 
soil from land holdings such as parks, golf courses, or other large 
tracts of land;
    (2) Releases of naturally occurring radionuclides from land 
disturbance activities, including farming, construction, and land 
disturbance incidental to extraction activities, except that which 
occurs at uranium, phosphate, tin, titanium, zirconium, hafnium, 
vanadium, and rare earth mines (including monazite mined for its 
thorium content);
    (3) Releases of radionuclides from the dumping of coal and coal 
ash; and
    (4) Releases of radionuclides from coal and coal ash piles.
* * * * *

PART 355--EMERGENCY PLANNING AND NOTIFICATION

    3. The authority citation for part 355 continues to read as 
follows:

    Authority: 42 U.S.C. 11002, 11004, and 11048.

    4. Section 355.40 is amended by revising paragraph (a)(2)(vi) to 
read as follows:


Sec. 355.40  Emergency release notification.

    (a) * * *
    (2) * * *

[[Page 40051]]

    (vi) Any radionuclide release which occurs:
    (A) Naturally in soil from land holdings such as parks, golf 
courses, or other large tracts of land;
    (B) Naturally from land disturbance activities, including farming, 
construction, and land disturbance incidental to extraction activities, 
except that which occurs at uranium, phosphate, tin, titanium, 
zirconium, hafnium, vanadium, and rare earth mines (including monazite 
mined for its thorium content);
    (C) From the dumping of coal and coal ash; and
    (D) From coal and coal ash piles.
* * * * *
[FR Doc. 95-19194 Filed 8-3-95; 8:45 am]
BILLING CODE 6560-50-P