[Federal Register Volume 63, Number 53 (Thursday, March 19, 1998)]
[Rules and Regulations]
[Pages 13460-13475]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-4822]



[[Page 13459]]

_______________________________________________________________________

Part II





Environmental Protection Agency





_______________________________________________________________________



40 CFR Parts 302 and 355



Administrative Reporting Exemptions for Certain Radionuclide Releases; 
Final Rule

  Federal Register / Vol. 63, No. 53 / Thursday, March 19, 1998 / Rules 
and Regulations  

[[Page 13460]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 302 and 355

[FRL-5970-8]
RIN 2050-AD46


Administrative Reporting Exemptions for Certain Radionuclide 
Releases

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

SUMMARY: The Environmental Protection Agency today is issuing a final 
rule that will reduce reporting burdens under the Comprehensive 
Environmental Response, Compensation, and Liability Act and the 
Emergency Planning and Community Right-to-Know Act. Reducing reporting 
burdens is one of the goals of the President's government-wide 
regulatory reform initiatives.
    Through this rule, EPA will broaden existing reporting exemptions 
for releases of naturally occurring radionuclides to include releases 
that result from: land disturbance incidental to extraction activities, 
except that which occurs at uranium, phosphate, tin, zircon, hafnium, 
vanadium, and rare earth mines; and coal and coal ash piles at all 
sites.
    Eliminating needless reporting burdens on persons responsible for 
certain mine sites and coal and coal ash piles will also allow EPA to 
better focus its resources on the most serious releases, resulting in 
more effective protection of public health and welfare and the 
environment.

EFFECTIVE DATE: April 20, 1998.

ADDRESSES: 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.
    Docket: Copies of materials relevant to this rulemaking are 
contained in the U.S. EPA CERCLA Docket Office, Crystal Gateway #1, 1st 
Floor, 1235 Jefferson Davis Highway, Arlington, VA 22202 [Docket Number 
102RQ-RN-2]. The docket is available for inspection, by appointment 
only, between the hours of 9 a.m. and 4 p.m., Monday through Friday, 
excluding Federal holidays. Appointments to review the docket can be 
made by calling 703/603-9232. 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 Office will mail copies of materials to requestors who are 
outside the Washington, DC metropolitan area. The docket for this 
rulemaking will be kept in paper form.

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 number is 800/553-7672 (in the Washington, DC metropolitan 
area, contact 703/486-3323); or the Office of Emergency and Remedial 
Response (5202G), U.S. Environmental Protection Agency, 401 M Street, 
SW., Washington, DC 20460 (contact Elizabeth Zeller 703/603-8744).

SUPPLEMENTARY INFORMATION: Potentially Affected Entities: Entities that 
may be affected by this final rule include: (1) Persons in charge of 
vessels or facilities that may have naturally occurring radionuclide 
releases into the environment that are among those granted an 
administrative reporting exemption; and (2) entities that plan for or 
respond to such releases.
    The table below lists potentially affected entities. This table is 
not intended to be exhaustive, but rather provides a guide for readers 
regarding entities likely to be affected by this action. Other entities 
not listed in the table could also be affected. To determine whether 
your organization is affected by this action, carefully examine the 
changes to 40 CFR parts 302 and 355. If you have questions regarding 
the applicability of this action to a particular entity, consult the 
contact names and phone numbers listed in the preceding FOR FURTHER 
INFORMATION CONTACT section of this preamble.

                      Potentially Affected Entities                     
------------------------------------------------------------------------
        Type of entity               Examples of affected entities      
------------------------------------------------------------------------
Industry.....................  Mines, coal ash landfills, coal          
                                preparation plants, coke plants, other  
                                industrial sites with coal piles, and   
                                coal transportation storage yards.      
State, Local, or Tribal        State Emergency Response Commissions,    
 Governments.                   Local Emergency Planning Committees.    
Federal Government...........  National Response Center, and any Federal
                                agency that may have radionuclide       
                                releases granted a reporting exemption. 
------------------------------------------------------------------------

    Outline of Today's Preamble: The contents of today's preamble are 
listed in the following outline:

I. Introduction
    A. Statutory Authority
    B. Background of This Rulemaking
    C. Final Reporting Exemptions
    D. Summary of Changes From the Proposed Rule
II. Response to Comments
    A. Support for and Opposition to Reporting Exemptions
    1. Proposed Exemptions
    2. Alternative 1 Proposed on August 4, 1995
    3. Alternative 2 Proposed on August 4, 1995
    B. Requests for Broader Exemptions for Extraction, 
Beneficiation, and Mineral Processing
    1. Similarities to Other Exemptions
    a. Extraction versus Farming and Construction
    b. Extraction versus Beneficiation and Processing
    2. Properties of Certain Ores and Materials
    3. Radiation Risk
    4. Radon Releases
    5. Feasibility of Response
    6. Controls Under Other Programs
    7. Site-Specific Exemptions
    C. Scope of Reporting Exemptions for Coal and Coal Ash
    1. Types of Ash
    2. Beneficial Uses of Ash
    3. Coal Preparation and Transportation
    D. Requests for Other Exemptions
    E. Interpretation of CERCLA Provisions
    1. Release Into the Environment
    2. Substantial Danger
III. Regulatory Analyses
    A. Executive Order 12866
    B. Regulatory Flexibility Act
    C. Paperwork Reduction Act
    D. Unfunded Mandates
    E. Small Business Regulatory Enforcement Fairness Act

I. Introduction

A. Statutory Authority

    The Comprehensive Environmental Response, Compensation, and 
Liability Act (CERCLA), 42 U.S.C. 9601 et seq., establishes broad 
Federal authority to respond to releases or substantial threats of 
releases of hazardous substances from vessels and facilities. Section 
101(14) of CERCLA defines the term ``hazardous

[[Page 13461]]

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 (EPCRA), 42 U.S.C. 11001 et seq. (see 40 
CFR 355.40). As established by EPA in an earlier 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 (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 merely 
establishes 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 or require a response in all circumstances. 
Government personnel assess each reported release on a case-by-case 
basis to determine the appropriate response action, if any.
    CERCLA sections 102(a), 103, and 115 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 would serve 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 RQs for radionuclides 
(52 FR 8172), with the comment period ending on May 15, 1987. Twenty-
eight comment letters, totaling about 150 pages, were received. The 
comments, together with the Agency's responses, are presented 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 5202G), Crystal 
Gateway #1, 1st 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 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 Circuit in 
TFI v. EPA 935 F.2d 1303 (1991). In the litigation, AMC and TFI argued, 
in part, that EPA violated the Administrative Procedure Act by failing 
to provide adequate 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 
extension of 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).
    Twenty-seven comment letters, totaling 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 could not 
resolve without additional information and analysis. Chief among these 
issues were:

--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

[[Page 13462]]

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 from coal and 
coal ash piles at non-boiler sites, and if so, what response 
realistically can be taken?

    After evaluating these issues, the Agency decided to issue a 
supplemental proposal requesting information and comment on expanded 
reporting exemptions for certain radionuclide releases. The 
supplemental proposal, published on August 4, 1995 (60 FR 40042), 
proposed to (1) broaden the land disturbance reporting exemption to 
include land disturbance incidental to extraction activities at all 
mines, with the exception of certain types of mines that are likely to 
handle materials with elevated levels of radionuclides, and (2) broaden 
the coal and coal ash pile exemptions to include radionuclide releases 
to and from such piles at all kinds of sites, not just sites with coal-
fired boilers. EPA also requested comments on two alternatives to these 
proposed broader reporting exemptions in the August 4, 1995, 
supplemental proposal. The first alternative would grant reporting 
exemptions for land disturbance activities incidental to extraction at 
all mines, as well as coal and coal ash piles at all sites. The second 
alternative would grant exemptions to all land disturbance activities 
incidental to extraction as well as to all releases of radionuclides to 
and from all piles of diffuse naturally occurring radioactive material 
(NORM) below a concentration cutoff. EPA originally requested that 
public comments on the supplemental proposal be submitted on or before 
October 3, 1995, but in response to requests submitted by a number of 
commenters, extended the close of the public comment period until 
December 4, 1995 (60 FR 51765).
    Twenty-nine comment letters were received on the August 4, 1995, 
supplemental proposal. Seven of these commenters had also submitted 
comment letters on the November 30, 1992, NPRM. This final rule was 
developed following careful consideration of all issues and concerns 
raised in public comments on both the November 30, 1992, NPRM and the 
August 4, 1995, supplemental proposal.

C. Final Reporting Exemptions

    In today's final rule, the reporting exemption for releases of 
naturally occurring radionuclides from large generally undisturbed land 
holdings, such as golf courses and parks, is being retained as 
promulgated in the 1989 final radionuclide RQ adjustment regulation and 
as re-proposed in the November 30, 1992, NPRM (57 FR 56726). EPA wishes 
to clarify that this reporting exemption applies to releases of 
naturally occurring radionuclides from generally undisturbed land 
containing ore reserves, including ores containing elevated 
concentrations of radionuclides, because those ore reserves would be 
generally undisturbed. Reporting of naturally occurring radionuclide 
releases from undisturbed land holdings is unnecessary because CERCLA 
section 104(a)(3) generally precludes removal or remedial actions in 
response to a release ``of a naturally occurring substance in its 
unaltered form or altered solely through naturally occurring processes 
or phenomena, from a location where it is naturally found.''
    EPA is broadening 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 (greater than 7.6 picocuries per gram or pCi/g of U-238, 
6.8 pCi/g of Th-232, or 8.4
pCi/g of Ra-226, which equal two times the upper end of the 
concentration range reported in the literature for typical surface 
soil). The types of mines that are not within the scope of the 
reporting exemption are uranium, phosphate, tin, zircon, hafnium, 
vanadium, monazite, and rare earth mines. For the purpose of this 
preamble, monazite is evaluated along with bastnasite as a rare earth 
ore, but it is listed separately in the rule as a non-exempt category 
of mines because monazite also may be extracted to recover other 
elements, such as thorium and titanium. Releases of naturally occurring 
radionuclides from land disturbance at all other types of mines are 
exempted from CERCLA section 103 and EPCRA section 304 reporting 
requirements. For the purpose of this rule, land disturbance incidental 
to extraction activities includes land clearing, overburden removal and 
stockpiling, and excavating, handling, transporting, and storing ores 
and other raw materials. Land disturbance incidental to extraction also 
includes replacing materials in mined-out areas as long as such 
materials have not been beneficiated or processed and do not contain 
elevated radionuclide concentrations, as defined above. Beneficiation 
and mineral processing activities, including the associated handling, 
transporting, and storing of bulk materials, are not included within 
the scope of the exemption.
    EPA also is broadening the existing exemptions for coal and coal 
ash piles to include radionuclide releases to and from coal and coal 
ash piles at all sites, not just sites where there is a coal-fired 
boiler.
    Each of the above exemptions apply only to CERCLA section 103 and 
EPCRA section 304 reporting requirements. The exemptions do not apply 
to the related response and liability provisions.
    EPA is promulgating these broader exemptions for three principal 
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 materials 
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 surface 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.

D. Summary of Changes From the Proposed Rule

    EPA has made one change from the August 4, 1995, supplemental 
proposal. Land disturbance incidental to extraction of the titanium-
bearing ores ilmenite and rutile, but not monazite, has been included 
within the scope of the reporting exemptions for land disturbance 
activities. As discussed in more detail in Section II.B.2 of today's 
preamble, additional data submitted by public commenters and assembled 
by

[[Page 13463]]

the Agency in response to comments are sufficient to support a finding 
that most unprocessed ilmenite and rutile from the U.S. contain 
radionuclides in concentrations that are generally within the range of 
typical background concentrations, like the raw materials handled at 
the other kinds of mines granted a reporting exemption. Monazite, which 
also may be extracted at mines recovering titanium, tends to have 
radionuclide concentrations well above typical background levels.

II. Response to Comments

    EPA's full responses to public comments related to this rule are 
contained in ``Responses to Comments on the November 30, 1992, and 
August 4, 1995, Notices of Proposed Rulemaking on Administrative 
Reporting Exemptions for Certain Radionuclide Releases'' (Responses to 
Comments), which is available for inspection in Docket Number 102RQ-RN-
2 located at the U.S. EPA CERCLA Docket Office (Mail Code 5202G), 
Crystal Gateway #1, 1st Floor, 1235 Jefferson Davis Highway, Arlington, 
VA 22202. Additional background information supporting the Agency's 
position and response to many of these comments is provided in 
``Technical Background Document Supporting Final Administrative 
Reporting Exemptions for Certain Releases of Radionuclides,'' also 
available for inspection in Docket Number 102RQ-RN-2. The following 
sections provide a summary of the major public comments and EPA's 
responses.

A. Support for and Opposition to Reporting Exemptions

1. Proposed Exemptions
    Of the 56 public comment letters submitted on the November 30, 
1992, NPRM and August 4, 1995, supplemental proposal, 32 expressed 
support for the proposed exemptions. As discussed in more detail in 
Section II.B below, these commenters' only objections were that the 
proposed reporting exemptions were not broad enough.
    Only three of the 56 public comment letters opposed the proposed 
exemptions. The main arguments made by these commenters were that the 
exemptions (1) will limit the government's ability to control naturally 
occurring radionuclide exposures and risks, including the risk 
associated with natural background radiation, indoor radon, and coal 
ash disposal, and (2) will limit the availability of public information 
regarding the sources and doses of radiation exposure in local 
communities.
    EPA does not believe either of these concerns is valid. With 
respect to the government's ability to control naturally occurring 
radionuclides, the Agency reiterates that CERCLA section 104(a)(3) 
already precludes actions in response to natural background radiation, 
unless certain conditions are met as specified in section 104(a)(4). 
This response limitation does not apply to the releases of naturally 
occurring radionuclides exempted by this rule, which are not natural 
background releases but rather releases from anthropogenic activities. 
The rule, however, only exempts the radionuclide releases from CERCLA 
section 103 and EPCRA section 304 reporting requirements, not from 
CERCLA response or liability provisions. Therefore, the government can 
still respond under CERCLA to the exempted releases, if a response is 
ever determined to be necessary.
    Eliminating the requirement to report the selected releases of 
naturally occurring radionuclides will not jeopardize the government's 
ability to respond to these releases, but rather will improve its 
ability to respond promptly to other releases that may be more serious. 
Moreover, these reporting exemptions under CERCLA in no way interfere 
with other government initiatives to address naturally occurring 
radionuclide releases, including EPA's ongoing programs to address 
indoor radon under the Indoor Radon Abatement Act, airborne emissions 
of naturally occurring radionuclides under the Clean Air Act (CAA), 
naturally occurring radionuclides in ``special wastes'' from mining and 
mineral processing under the Resource Conservation and Recovery Act 
(RCRA), and radiation exposures under the Federal Radiation Protection 
Guidance.
    With respect to the availability of public information regarding 
the sources and doses of radiation exposure in local communities, the 
purpose of the CERCLA section 103 and EPCRA section 304 reporting 
requirements is to notify government personnel of releases of hazardous 
substances so that a timely decision can be made regarding the need for 
a response action to protect public health or welfare or the 
environment. These reporting programs are not intended to serve as a 
source of public information on radiation sources and exposures. The 
community right-to-know reporting requirements, toxic release inventory 
requirements, and related provisions under EPCRA sections 311, 312, and 
313 remain in effect. Therefore, the reporting exemptions will not 
significantly impact a community's ability and right to know about 
hazardous substances.
2. Alternative 1 Proposed on August 4, 1995
    Eight commenters supported Alternative 1 proposed on August 4, 
1995, which would exempt land disturbance incidental to extraction at 
all mines. Of these eight commenters, three expressed support for 
Alternative 1 as a means to ensure that radionuclide releases to and 
from coal and coal ash piles at all sites were granted a reporting 
exemption. EPA would like to clarify that the final reporting 
exemptions include exemptions for coal and coal ash identical to the 
ones proposed in Alternative 1 (the proposed exemptions and Alternative 
1 differ only with respect to mining).
    Six of the eight commenters expressed support for an exemption for 
all kinds of mines but, in EPA's judgment, did not provide enough 
information to support such a broad exemption. Five of these six 
commenters either simply stated their preference for this regulatory 
approach without any technical justification or provided information in 
support of broadening the proposed exemptions to include certain mining 
sectors (zircon, bastnasite, and phosphorus), rather than all mining 
sectors as envisioned in Alternative 1. The sixth commenter made a 
number of arguments in favor of a broad reporting exemption for all 
kinds of mines, including: mining cannot be distinguished from the 
other exempted land disturbance activities (farming and construction); 
the radiation risks posed by mining are low; a CERCLA response is 
infeasible; and any potential problems associated with radionuclide 
releases from mines have already been addressed under other programs. 
The specific points raised by these commenters are addressed below in 
Section II.B of today's preamble.
    Only one commenter directly opposed Alternative 1. This commenter 
expressed concern about the radiation risk posed by phosphate mining 
and reclaimed phosphate land. Based on the elevated levels of 
radionuclides in phosphate mining materials, and considering the lack 
of information demonstrating that the radiation risks are low or that a 
CERCLA response is infeasible, EPA continues to believe that 
radionuclide releases from phosphate mining should not be exempted from 
the release reporting requirements of CERCLA section 103 and EPCRA 
section 304. Several of the commenters who supported exempting all 
mines objected that the scope of Alternative 1 was too narrow. These 
comments, which are addressed in Section II.B.1.b below, support the 
view that Alternative 1

[[Page 13464]]

should be broadened to include radionuclide releases from beneficiation 
and mineral processing in addition to releases from extraction.
3. Alternative 2 Proposed on August 4, 1995
    Only one commenter expressed support for Alternative 2, which would 
base the reporting threshold on concentration of radionuclides in 
materials. This commenter, however, was in favor of a dose-based rather 
than a concentration-based limit as proposed. The commenter suggested 
that EPA utilize a broader version of Alternative 2, which would exempt 
all releases of diffuse NORM if the release resulted in a dose lower 
than 500 millirem (mrem), or 5 millisieverts (mSv), above background, 
excluding radon. While the Agency recognizes some of the basic 
advantages of a dose-based cutoff, EPA decided against such an approach 
because among other reasons: (1) Many individuals and organizations 
that handle naturally occurring radionuclides do not have the 
capability to accurately estimate radiation doses; (2) the time and 
analysis required to estimate doses may delay reporting and, hence, 
impede timely response if necessary; and (3) without standardization, 
different releasers would be likely to estimate doses in different 
ways, resulting in inconsistent reporting.
    Five commenters opposed Alternative 2 altogether and seven others, 
though not entirely opposed to a concentration cut-off, provided 
information supporting their objections to the approach taken in the 
August 4, 1995, supplemental proposal. Many of these commenters 
highlighted the following potential difficulties with Alternative 2: 
(1) It would place a burden on the regulated community and government 
of planning and implementing such an approach; (2) the complex 
multiple-step task of determining radionuclide concentrations in a 
given material relative to background might jeopardize timely 
reporting; (3) uncertainties might lead to misinterpretations and abuse 
of the system; and (4) it would be difficult to establish a reasonable 
and scientifically sound cutoff level. For these reasons, EPA decided 
against Alternative 2 for the final rule.

B. Requests for Broader Exemptions for Extraction, Beneficiation, and 
Mineral Processing

    Eighteen of the 56 public comment letters received requested 
broader exemptions for radionuclide releases from extraction, 
beneficiation, and mineral processing. This includes nine comment 
letters (out of 27) in response to the November 30, 1992, proposal to 
continue to exclude all mining from the reporting exemptions, and nine 
comment letters (out of 29) in response to the August 4, 1995, 
supplemental proposal to broaden the exemptions to include land 
disturbance incidental to extraction at most kinds of mines. These 
commenters offered the following points in support of their requests: 
(1) The exempted activities cannot be distinguished from the non-
exempted activities; (2) the properties of certain ores and materials 
warrant a broader reporting exemption; (3) the radiation risk at non-
exempted sites is low; (4) radon releases from non-exempted sites pose 
little threat; (5) CERCLA responses at non-exempted sites are 
infeasible; and (6) releases of potential concern are already 
controlled under other programs. A few commenters also requested that 
EPA establish a process for granting site-specific reporting exemptions 
if broader categorical exemptions are not granted in the final rule. 
Each of these points is addressed in turn below.
1. Similarities to Other Exemptions
    a. Extraction versus Farming and Construction. Eight commenters, 
including seven addressing the November 30, 1992, proposal and one 
commenting on the August 4, 1995, supplemental proposal, asserted that 
EPA has not adequately distinguished land disturbance incidental to 
extraction during mining from that which occurs during farming and 
construction. Among other grounds for broadening the reporting 
exemptions to include extraction, these commenters pointed to 
similarities in the concentrations of radionuclides in the earthen 
materials being disturbed, and similarities in the level of radiation 
risk posed by the different activities.
    In response to such comments on the November 30, 1992, proposal, 
EPA issued the supplemental proposal on August 4, 1995, to expand the 
exemptions for land disturbance activities to include radionuclide 
releases from all mines except certain categories of mines that are 
likely to handle raw materials with elevated radionuclide 
concentrations. These broader exemptions were based on a recognition 
that, if radionuclide levels in the earthen materials handled within a 
given mining (mineral commodity) sector are at or near background, as 
at most farms and construction sites, it would be reasonable to treat 
such mining the same as other land disturbances for the purpose of the 
CERCLA and EPCRA reporting exemption. If, however, the materials 
handled in a given mining sector are likely to have elevated levels of 
radionuclides, then there might be a reasonable basis for treating the 
disturbance of those materials differently from land disturbance at the 
vast majority of farms and construction sites. In EPA's judgment, 
elevated levels would indicate that further evaluation would be 
required before it could be concluded with a sufficient degree of 
confidence that risks were low and that a government response would be 
unwarranted or infeasible.
    EPA followed a three-step approach to identify ``elevated'' 
radionuclide concentrations for the purpose of the supplemental 
proposal. First, based on a review of background concentrations 
reported in various publications for surface rocks and soils in 
different geographical areas, the Agency selected the ranges reported 
by Myrick et al.1 as representative of ``typical'' 
background levels (0.12-3.8 pCi/g of U-238, 0.1-3.4 pCi/g of Th-232, 
and 0.23-4.2 pCi/g of Ra-226). EPA also considered reported 
concentrations in recognized hot spot regions of the country, such as 
the Reading Prong area, as an additional benchmark for the purpose of 
defining background. Second, EPA compiled available secondary data on 
the radionuclide concentrations in ores and raw materials handled in 
different mining sectors. EPA reviewed these data for the purpose of 
defining ``typical'' radionuclide concentrations in the various mining 
materials, rather than overall ranges that would encompass high-end 
values. Third, EPA compared the typical background range with the 
typical values assumed for the different mining materials. If based on 
this comparison a mining material was found to have concentrations 
greater than two times the upper end of the range defined by Myrick et 
al. (greater than 7.6 pCi/g of U-238, 6.8 pCi/g of Th-232, and/or 8.4 
pCi/g of Ra-226), EPA concluded that concentrations in the material 
were elevated.2 If

[[Page 13465]]

concentrations in a mining material also exceeded the values reported 
in hot spot regions, EPA considered this comparison as further evidence 
that the concentrations were elevated.
---------------------------------------------------------------------------

    \1\ Myrick, T.E., B.A. Berven, and F.F. Haywood, 1983, 
``Determination of Concentrations of Selected Radionuclides in 
Surface Soil in the U.S.,'' Health Physics, Vol. 45, No. 3 
(September), pp. 631-642.
    \2\ In choosing background radionuclide values to define the 
concentration threshold for granting some categories of mines 
exemption from reporting requirements, the Agency recognizes that 
the primary purpose of notification is to ensure that releasers 
notify the government so that the government can assess the need to 
respond to the release. The exemption threshold levels, like RQ 
levels, do not reflect a determination that a release of a substance 
will be hazardous at the level chosen and not hazardous below that 
level. As in the case of RQ values, EPA is not attempting to make 
such a determination. (For information about levels that are 
considered protective of human health and the environment for 
response actions under CERCLA at radioactively contaminated sites 
see 40 CFR 300.430(e)2(i) and ``Establishment of Cleanup Levels for 
CERCLA Sites with Radioactive Contamination'' [OSWER No. 9200.4-18, 
August 22, 1997]).
---------------------------------------------------------------------------

    The Agency used the cutoff of two times the upper end of the range 
defined by Myrick et al., rather than some other multiple such as one 
or three times, in an effort to balance the need to be protective with 
the need to account for site-specific variability. On the one hand, a 
case could be made for using the upper end of the Myrick et al. range, 
because those values are themselves higher than the background 
concentrations reported for soils and rocks in most places in the U.S. 
On the other hand, background concentrations of radionuclides are 
highly site-specific and there are ample data showing that 
concentrations above the Myrick et al. range do exist in relatively 
isolated circumstances. In the Agency's judgment, two times the upper 
end of the Myrick et al. range prudently accounts for the possibility 
of ``higher-than-normal'' concentrations but is not so high as to be an 
extreme value likely to occur only in very rare instances. To account 
for those instances where higher background concentrations may occur, 
EPA also compared the concentrations in mining materials to 
representative concentrations reported for known hot spot regions of 
the country, which amount to roughly three to five times the upper end 
of the Myrick et al. range.
    The data and conclusions from this comparison are presented in 
detail in the Technical Background Document supporting this final rule 
(available in the docket). The following table summarizes these results 
for the non-exempt categories of mines. The table shows, for each type 
of material, the full range of reported concentrations and the Agency's 
best estimate of a typical concentration (either a geometric mean when 
many data points are available, or a commonly cited or other central 
value that best reflects available data in EPA's judgment). For the 
purpose of comparison, the table also shows the ratio of the typical 
concentration to (1) the upper end of the background range reported by 
Myrick et al. for surface soils (3.8 pCi/g of U-238, 3.4 pCi/g of Th-
232, and 4.2 pCi/g of Ra-226), and (2) selected background values 
reported for recognized hot spot regions (20
pCi/g of U-238 reported for the Reading Prong region and 9 pCi/g of Th-
232 reported for the Colorado Front Range).

                Summary of Radionuclide Concentrations in Materials in Non-Exempt Mining Sectors                
----------------------------------------------------------------------------------------------------------------
                                                                              Ratio of typical  Ratio of typical
                                              Th-232 a (pCi/  Ra-226 a (pCi/   value to upper       value to    
          Material             U-238 a (pCi/        g)              g)        end of Myrick et    selected hot  
                                    g)                                            al. range        spot value   
----------------------------------------------------------------------------------------------------------------
Uranium Ore.................         280-640           10-11            b NA  U: 121            U: 23           
                                       (460)          (10.5)  ..............  Th: 3.1           Th: 1.2         
Phosphate Rock..............         2.7-267          0.07-4            3-62  U: 11.8           U: 2.3          
                                        (45)          (1.05)            (45)  Th: 0.3           Th: 0.1         
                                                                              Ra: 10.7                          
Vanadium Ore................        0.18-340         0.18-58              NA  U: 7.9            U: 1.5          
                                        (30)                                                                    
Tin-Bearing Materials.......           17-43       2.9-8,830           1-480  U: 8              U: 1.5          
                                        (30)            (12)            (20)  Th: 3.5           Th: 1.3         
                                                                              Ra: 4.8                           
Zircon......................          5-<165              NA          13-100  U: 24.5           U: 4.7          
                                        (93)  ..............            (93)  Ra: 22.1          ................
Monazite c..................       600-3,000    2,900-80,000             620  U: 474            U: 90           
                                     (1,800)         (3,900)  ..............  Th: 1,147         Th: 433         
                                                                              Ra: 148                           
Bastnasite c................               7        25-2,330              NA  U: 1.8            U: 0.4          
                                                                              Th: 7.4-685       Th: 2.8-259     
----------------------------------------------------------------------------------------------------------------
a Where applicable, ranges are presented along with an estimated ``typical'' value, shown in parentheses.       
b NA = not available.                                                                                           
c Ores extracted principally for their rare-earth or thorium content.                                           

    As these data show, the materials handled and stockpiled at non-
exempt categories of mines are not ``essentially the same as the soil 
at farming or construction sites,'' as asserted by some public 
commenters. In every material, one radionuclide is likely to be present 
at a level that is at least 7.9 times the upper end of the background 
range reported by Myrick et al. for typical surface soils. Typical 
radionuclide concentrations in each material also exceed elevated 
levels commonly reported in hot spot regions. Therefore, although there 
are hot spots across the country where farming and construction will 
disturb natural soils and rocks with concentrations more than two times 
the upper end of the typical range reported by Myrick et al., EPA 
believes that the non-exempt materials are distinguished from the soils 
and rocks expected to be disturbed at the vast majority of farming and 
construction sites.
    Finally, commenters asserted that the distinction between 
extraction at non-exempt mines and farming and construction sites is 
unfounded because EPA has not demonstrated that extraction activities 
at non-exempt mines pose a greater risk than the exempt activities. EPA 
does not believe that risk analysis provides the only reasonable basis 
for distinguishing between the two sets of activities. As outlined in 
the supplemental proposal, EPA is distinguishing between the different 
activities on the basis of the likely radionuclide concentrations in 
the materials being disturbed relative to background. In the case of 
the exempt activities, EPA concluded that a CERCLA removal or remedial 
response would very rarely, if ever, be necessary because the 
activities result in low-level, diffuse releases of radionuclides at 
concentrations that are at or near background. EPA also questioned

[[Page 13466]]

whether it would be feasible or practical to mount a CERCLA response to 
such releases, since the materials in question already have 
radionuclide concentrations likely to be at or near background and 
CERCLA responses would not normally clean up to below background 
levels. In contrast, when the radionuclide concentrations are likely to 
be elevated as at non-exempt mines, EPA believes that further analysis 
is needed before concluding that a reporting exemption is warranted.
    As discussed in more detail in response to comments asserting that 
the radiation risk is low at the non-exempt categories of mines (see 
section II.B.3 below), EPA believes that currently available risk 
information and assessments do not provide enough of a basis for 
broadening the exemptions to include those mines. Therefore, the 
supplemental proposal requested that commenters wishing to support 
exemptions for the non-exempt mines provide data demonstrating that 
radionuclide concentrations in the mining materials are in fact at or 
near background concentrations, or, in the absence of such data, 
information showing that radiation exposures and risks are low despite 
the elevated concentrations in the materials handled. In EPA's 
judgment, only those commenters addressing titanium mining provided 
sufficient information to support broadening the exemptions beyond 
those proposed in the supplemental notice.
    b. Extraction versus Beneficiation and Processing. Five commenters 
on the August 4, 1995, supplemental proposal requested that the 
proposed broader reporting exemptions be broadened even further to 
include radionuclide releases from beneficiation and mineral 
processing. The primary argument made by these commenters was that EPA 
has not provided a valid basis for excluding beneficiation and 
processing from the scope of the exemptions.
    The scope of the administrative reporting exemption that pertains 
to mining activities is limited to releases from land disturbance. As 
proposed in the August 4, 1995, supplemental proposal, and as 
promulgated in today's final rule, the exempted land disturbance 
activities include farming, construction, and extraction activities at 
all mines except certain categories of mines where raw materials are 
likely to have elevated radionuclide concentrations. Land disturbance 
activities incidental to extraction include land clearing, overburden 
removal and stockpiling, and excavating, handling, replacing, 
transporting, and storing ores and other raw materials. These are earth 
moving activities involving natural materials and using technologically 
unsophisticated operations and equipment generally consistent across 
sites. The ``enhanced'' radionuclide releases that may occur as a 
result of these activities are low-level, diffuse, and difficult to 
control.
    Beneficiation and mineral processing activities are outside the 
scope of such land disturbance activities. As stated in the preamble to 
the supplemental proposal, the factors that distinguish beneficiation 
and processing from land disturbance incidental to extraction include 
the potential for beneficiation and processing to: (1) Concentrate 
radionuclides in waste streams or other materials well above natural 
background levels; and (2) cause substantially greater releases. These 
factors are discussed below.
    Radionuclides may become concentrated through beneficiation and 
processing activities relative to levels found in raw materials. Some 
ores and processing operations may yield a waste product, such as slag 
or tailings, with radionuclide concentrations higher than those in the 
ore. EPA's 1993 draft Diffuse NORM Waste report 3 summarizes 
the results of studies showing that some processes associated with the 
beneficiation and processing of certain minerals or metals appear to 
concentrate certain radionuclides and enhance their environmental 
mobility. Additional information showing how radionuclides can become 
concentrated in processing wastes was provided by comments on the 
supplemental proposal. For example, data referenced by one commenter 
show how the concentration of radium-226 can be increased in processing 
wastes relative to zircon sand.
---------------------------------------------------------------------------

    \3\ U.S. EPA, 1993, ``Diffuse NORM Wastes,'' DRAFT, RAE-9232/1-
2, Volume I, Office of Radiation and Indoor Air.
---------------------------------------------------------------------------

    The Agency acknowledges that other data show no increase in 
radionuclide concentration in certain products and wastes from the 
beneficiation and processing of certain minerals. However, there are 
numerous other wastes and by-products from these processing sectors 
that would have to be characterized before the Agency could conclude 
that concentrations are not being increased. For example, although 
available data from copper beneficiation and processing activities 
indicate no increase in radionuclide concentration in the tailings, 
copper concentrate, and leach materials, there are no data available on 
radionuclide concentrations for other wastes and by-products, including 
solvent extraction crude, spent bleed electrolyte, tankhouse slimes, 
acid plant blowdown, surface impoundment waste liquids, acid plant 
thickener sludge, and various process wastewaters, among others.
    A separate issue is the potential for beneficiation and mineral 
processing activities to result in releases greater than those from 
land disturbance incidental to extraction. Larger releases could be the 
result of an increase in radionuclide concentration, an operation that 
results in point source releases, or an increase in environmental 
mobility due to physical and chemical changes. Many beneficiation and 
processing activities use heat and chemicals, such as acids, to change 
the physical or chemical structure of raw ore and intermediate 
products. For example, the use of solvents in the beneficiation process 
known as solvent extraction, or acids in leaching processes, tend to 
increase the mobility of certain constituents. Wastes such as sludges, 
muds, and slurries have a very different physical structure from that 
of the original ore, and more detailed study would be needed to 
determine the effect of the change in radionuclide releasibility and 
mobility. In any case, the resulting material no longer resembles the 
natural earthen material envisioned within the scope of the land 
disturbance exemption.
    Additional evidence of the differences between land disturbance and 
beneficiation/processing is provided by 16 sites on the National 
Priorities List where radioactive contamination is an important health 
hazard, and where the primary source of contamination was a 
beneficiation or processing activity or waste.4 Though many 
of these sites are old and environmental protection practices have 
changed, others were in operation more recently. Among the more recent 
sites are the United Nuclear Corporation uranium mill in Churchrock, 
NM, where ground water, surface water, and soils are all contaminated 
with radionuclides, and the Teledyne Wah Chang Albany zirconium and 
hafnium processing site in Oregon, where residual on-site sludges are 
contaminated with high levels of thorium, uranium, and radium. In 
contrast, there are no documented cases of CERCLA removal or remedial 
actions being taken in response to radionuclide releases at mine sites

[[Page 13467]]

within those categories proposed to receive a reporting exemption.
---------------------------------------------------------------------------

    \4\ These sites are identified in a report included in the 
public docket for the November 30, 1992 rulemaking entitled 
``Radionuclide Releases from Mining Activities: Background 
Information Related to CERCLA Reporting Requirements,'' Office of 
Emergency and Remedial Response, U.S. EPA, October 15, 1992.
---------------------------------------------------------------------------

    Another issue raised by commenters is the practical difficulty of 
drawing the line between extraction and beneficiation/processing. As 
guidance, for the purpose of implementing the reporting exemptions, EPA 
reiterates that land disturbance incidental to extraction includes land 
clearing, overburden removal and stockpiling, and excavating, handling, 
replacing, transporting, and storing ores and raw materials. All of 
these are earth moving operations, and the materials handled are 
natural and unprocessed. Beneficiation starts at the onset of the first 
occurrence of any of the following activities that are typically 
characterized as beneficiation: Crushing, grinding, washing, 
dissolution, crystallization, filtration, sorting, sizing, drying, 
sintering, pelletizing, briquetting, calcining to remove water or 
carbon dioxide, roasting in preparation for leaching, gravity 
concentration, magnetic separation, flotation, ion exchange, solvent 
extraction, electrowinning, precipitation, amalgamation, and heap, 
dump, vat, tank, and in situ leaching. Each of these beneficiation 
activities is briefly described in the Technical Background Document 
supporting this final rule.
    EPA believes that it would be impossible to draw and effectively 
implement a line between (1) land disturbance that occurs during 
beneficiation and processing, and (2) other beneficiation and 
processing activities. For example, there is no precise demarkation 
between ``handling, transporting, and storing of materials,'' which is 
land disturbance, and certain operations characteristic of 
beneficiation, such as crushing, grinding, and leaching, which include 
more than just land disturbance. All extraction activities can be 
considered land disturbance as defined for this reporting exemption 
rule; however, because of the difficulty in segregating land 
disturbance from other activities at beneficiation/processing sites, 
the Agency has decided that it is not possible to broaden the exemption 
further to clearly include only land disturbance that occurs during 
beneficiation and processing.
2. Properties of Certain Ores and Materials
    Four commenters on the August 4, 1995, supplemental proposal agreed 
with the proposed broader exemptions, but asserted that the exemptions 
should be broadened further to include additional mining sectors based 
on the properties of ores and raw materials handled in those sectors.
    Two commenters said zircon extraction should be exempted because 
zircon contains low concentrations of radionuclides and has physical 
properties that inhibit radon emanation and radionuclide leaching. As 
shown in the above table of radionuclide concentrations, however, 
available data indicate that radionuclide levels in zircon sand can be 
quite elevated, including, on average, U-238 concentrations that are 
approximately 25 times the upper end of the range reported by Myrick et 
al. for surface soils and five times a higher background value (20 pCi/
g) cited for the Reading Prong. It is true that, despite these elevated 
concentrations, zircon sands have a low radon emanation rate and may 
also leach radionuclides to only a limited degree. While these 
properties may mitigate the radiological consequences of zircon sand 
extraction, other possible exposure pathways must be considered before 
concluding that the radiation risk is low. Potential direct radiation 
exposures are a particular concern. A study by Boothe et al. (1980) 
5 measured 170 R/hr at the surface of zircon and 15 
R/hr at a distance of 3 feet above the ore. For reference, 
background measurements cited in the same study were generally 8-10 
R/hr. These measurements indicate that zircon sands could pose 
an incremental direct radiation hazard if people are in close proximity 
for an extended period of time. Without further characterization of 
this hazard, EPA believes that it cannot include zircon extraction 
within the scope of the reporting exemptions.
---------------------------------------------------------------------------

    \5\ Boothe, G.F., Stewart-Smith, D., Wagstaff, D., and M. 
Diblee, 1980, ``The Radiological Aspects of Zircon Sand Use,'' 
Health Physics, Vol. 38, P. 393-398.
---------------------------------------------------------------------------

    One commenter objected to EPA's characterization of radionuclide 
concentrations in rare earth ores in the supplemental proposal, 
pointing out that the Agency did not adequately distinguish between 
bastnasite and monazite ores. This commenter also submitted data 
indicating that radionuclides are present at much lower levels in 
bastnasite than in monazite. EPA has attempted to characterize these 
ores more precisely in the Technical Background Document supporting 
this final rule. Data specific to bastnasite, however, indicate that 
these ores also contain elevated concentrations (see the above table). 
Accordingly, a reporting exemption for bastnasite extraction cannot be 
granted, as there is no basis for a determination that radionuclide 
concentrations in the ore are at or near background.
    One commenter submitted data indicating that the concentrations of 
radionuclides in titanium-bearing ores are lower than characterized by 
EPA for the supplemental proposal. In order to resolve this 
discrepancy, EPA obtained additional data on the radionuclide 
concentrations in titanium ores (principally rutile and ilmenite). All 
of the data collected are presented in the Technical Background 
Document supporting this final reporting exemption rule. In brief, 
these data indicate that radionuclide concentrations in foreign 
titanium ores can be slightly elevated over typical background 
concentrations; however, on average, concentrations are only 1.1 times 
the upper end of the background range reported by Myrick et al. for 
surface soils. Domestic rutile and ilmenite contain lower 
concentrations than foreign ores, with typical concentrations within 
the background range reported by Myrick et al. Based on these 
additional data, which show overall lower levels than available 
previously, EPA now concludes that most unprocessed rutile and ilmenite 
from the U.S. are likely to contain radionuclides at concentrations 
that are at or near background. Therefore, contrary to the position 
taken in the supplemental proposal, radionuclide releases from land 
disturbance incidental to rutile and ilmenite extraction are granted a 
reporting exemption in today's final rule. However, monazite 
extraction, including that which may occur at some mines recovering 
titanium, is not granted a reporting exemption because of the elevated 
concentrations of radionuclides found in monazite.
    One commenter said phosphate ore mining should be exempted because 
most radionuclide concentration data cited in the Technical Background 
Document for phosphate ore are at or under approximately five times 
background levels. As discussed above, EPA selected two times the upper 
end of the Myrick et al. range as a cutoff for this rule because, in 
the Agency's judgment, this value prudently accounts for the 
possibility of ``higher-than-normal'' concentrations but is not so high 
as to be an extreme value likely to occur only in very rare instances. 
EPA believes that five times background cannot reasonably be labeled 
``at or near background'' or ``generally within the range of typical 
background concentrations in surface rocks and soils in the U.S.,'' as 
EPA judges to be the case for the categories of mines included within 
the proposed reporting

[[Page 13468]]

exemptions. Five times the upper-end values determined by Myrick et al. 
equates to 19 pCi/g of U-238, 17 pCi/g of Th-232, and 21 pCi/g of Ra-
226. These values are approximately 20 times the mean background level 
of 1 pCi/g expected in most places in the U.S., and even above most of 
the elevated background levels reported for hot-spot regions of the 
country. Even if five times background were accepted as a threshold for 
defining elevated, 19 (76 percent) of the 25 U-238 concentrations in 
phosphate rock reported in the Technical Background Document exceed 
five times the upper limit reported by Myrick et al. These data 
adequately demonstrate that phosphate ore contains elevated levels of 
naturally occurring radionuclides and prevent the Agency from 
broadening the reporting exemptions to include phosphate ore mining.
3. Radiation Risk
    Ten commenters stated that the reporting exemptions should be 
broadened to include additional categories of mines as well as 
beneficiation and processing because available information and analyses 
show that the radiation risk associated with these activities is low. 
As noted above, beneficiation and processing are beyond the scope of 
the final exemptions; nevertheless, the Agency examined public comments 
regarding the radiation risks posed by these activities as they pertain 
to extraction.
    Several commenters asserted that previous EPA assessments under the 
CAA show that radionuclide releases from mining pose a low risk and do 
not warrant control under the National Emission Standard for Hazardous 
Air Pollutants (NESHAPs) program. These previous assessments include a 
1984 study 6 of various mining and smelting operations as 
well as a 1989 assessment 7 of surface uranium mines, which 
are theoretically worst-case mining activities according to commenters. 
EPA believes it is inappropriate to rely on the risk assessments 
conducted for the 1983 and 1984 NESHAP rulemakings, in which the Agency 
determined not to regulate ``other extraction facilities,'' as the 
basis for an administrative reporting exemption under CERCLA. The risk 
assessments supporting EPA's determination not to promulgate 
radionuclide NESHAPs for this source category are based on outdated 
information, exposure assessment methods, and risk characterization 
techniques. The Agency has not re-examined this source category under 
the NESHAPs program. The present lack of NESHAPs for certain mining 
sectors, therefore, does not necessarily indicate that EPA considers 
the current risk from radionuclide emissions from these sites to be 
insignificant.
---------------------------------------------------------------------------

    \6\ U.S. EPA, 1984, ``Radionuclides--Background Information 
Document for Final Rules, Volume II,'' Office of Radiation Programs, 
EPA 520/1-84-022-2, October.
    \7\ U.S. EPA, 1989, ``Risk Assessments, Environmental Impact 
Statement, NESHAP for Radionuclides, Background Information 
Document--Volume 2,'' Office of Radiation Programs, EPA/520/1-89-
006-1, September.
---------------------------------------------------------------------------

    EPA believes the scope of the 1989 NESHAP assessment is too narrow 
to support a CERCLA reporting exemption. In addition to covering only 
uranium mines, the assessment considers only the risks posed by 
airborne releases, not risks associated with other exposure pathways 
such as direct radiation, drinking water (both ground and surface 
water), and food consumption, all of which are of interest under 
CERCLA. Also, the 1989 assessment considers the risks to nearby 
residents but not workers, which are a concern under CERCLA.
    Other commenters stated that mining waste proceedings under RCRA 
confirm that radiation risks at mines are low. EPA disagrees. EPA's 
decision not to regulate some mining wastes as hazardous under Subtitle 
C of RCRA was not based on a finding that the risks (including the 
radiation risks) are low, but rather on a finding that Subtitle C may 
not provide sufficient flexibility to address mining-related risks in 
light of the unique conditions at mining sites (51 FR 24496, July 3, 
1986). Since issuing the mining waste regulatory determination, 
radioactivity has continued to be an important issue in EPA's 
development of the mining waste program under Subtitle D of RCRA.
    Several commenters stated that, like exempted land disturbance 
activities, radon releases from non-exempt mines disperse rapidly and 
quickly dissipate into background levels. The Agency agrees that radon 
disperses rapidly in the ambient air; but this by itself does not mean 
that radon risks to nearby receptors are necessarily low. Even the low 
radon risk estimates developed by the Agency in support of the 1989 
radionuclide NESHAP ruling for surface uranium mines (54 FR 51654, 
December 15, 1989), which are worst-case mine sites according to 
commenters, do not provide adequate basis for a CERCLA reporting 
exemption, because the 1989 assessment did not evaluate radon risks to 
workers or those associated with homes built on or around uranium-
mining materials with elevated radionuclide concentrations. Such 
scenarios could warrant response under CERCLA if an abandoned site in 
the non-exempt mining categories is not fully reclaimed and is then 
used for other purposes, or if materials from non-exempt mines are 
taken off-site and used as fill around homes.
    Commenters also stated that risks are low because mining occurs in 
remote locations. While the Agency acknowledges that many mines are 
located farther away from population centers than many construction and 
farming activities, this by itself does not provide sufficient basis 
for concluding that human exposures and risks around non-exempt mining 
sites are low. The distance to and exposures of maximally exposed 
individuals, including on-site workers and closest residents, are 
unrelated to population density around mining sites. Even if mining 
sites are located in less populated areas, it is still possible that 
such individuals may spend considerable time in close proximity to 
materials with substantially elevated concentrations of radionuclides, 
and thus experience significant risks.
    A few commenters referenced other reports as evidence that 
radiation risks associated with mining are low. After reviewing each of 
these references, EPA believes they do not support a reporting 
exemption for the non-exempt categories of mines. For example, some 
commenters pointed to a National Research Council report 8 
that states that ``the health risks posed by exposures to radon from 
uranium mill tailings piles are trivial for the average U.S. citizen,'' 
and that by ``virtually any measure, the risk for people living at 
distances beyond several kilometers from a pile is trivial.'' Without 
disputing these statements in the report, EPA notes that overall 
population risks or the potential to pose significant risks at great 
distances are not the most important factors in deciding whether a 
CERCLA response action may be needed at any individual site. An 
important determination of the need for response is the risk to 
reasonably maximally exposed individuals. Nothing in the Council's 
report enables EPA to conclude that risks to workers or nearby 
individuals from radon emissions are insignificant.
---------------------------------------------------------------------------

    \8\ ``Scientific Basis for Risk Assessment and Management of 
Uranium Mill Tailings,'' 1986.
---------------------------------------------------------------------------

    Commenters also pointed out that the total amount of radon released 
due to mining is but a small fraction of that released due to the 
exempted activities of farming and construction. The total amount of 
radon released across all sites in the country, however, is not 
relevant

[[Page 13469]]

for the purpose of determining whether a reporting exemption is 
appropriate for a given site or category of sites. Reports of releases 
are intended to alert government authorities to releases at individual 
sites so they may determine whether they pose risks warranting a 
response. A more meaningful measure, with a greater bearing on the 
potential for radon emissions to pose risks that may warrant a 
response, is the expected radon emission per site. When commenters' 
estimates of total annual radon releases from different categories of 
sources are divided by the number of sites in those categories, it 
appears that more radon is released from an average uranium or 
phosphate mine than from an average farm. The Agency recognizes that 
certain large farms emit more radon than certain mining sites, but this 
is due more to the relative sizes of the sites than to the rate of 
radon emission from the earthen materials being disturbed. Large farms 
emit radon at a low rate but over a large area, whereas certain uranium 
and phosphate mines emit radon at a higher rate but over a smaller 
area. The radon flux from uranium and phosphate mining materials is 
higher than that from most natural soils. This supports the Agency's 
decision to treat these materials differently from exempted materials 
in today's final rule.
    Some commenters contended that the recent scientific information 
casts doubt on EPA's underlying Linear Non-Threshold Hypothesis that 
all ionizing radiation is harmful, and that epidemiological studies of 
populations exposed to even high ambient radiation levels, such as 50 
to 100 times background, do not indicate significant adverse health 
effects. As EPA stated in the proposed Federal Radiation Protection 
Guidance for Exposure of the General Public (59 FR 66417, December 23, 
1994), the risks to health from exposure to low levels of ionizing 
radiation have been reviewed by the National Academy of Sciences in a 
series of reports over the past two decades, as well as by the 
International Commission on Radiological Protection, the United Nations 
Scientific Committee on the Effects of Atomic Radiation, and the 
National Radiological Protection Board of the United Kingdom. Based on 
these studies as well as extensive reevaluations completed over the 
last decade of atom bomb survivors, the Agency continues to believe 
that it is appropriate, for radiation protection purposes, to assume 
that at and just above the level of natural background the risk of 
cancer and most serious hereditary effects increases linearly with 
increasing radiation dose, without a threshold (59 FR 66417, December 
23, 1994). The Agency published its risk estimates for doses at or near 
background levels of exposure in a 1994 report,9 which was 
reviewed by EPA's Science Advisory Board. These risk estimates are 
based on the linear non-threshold model.
---------------------------------------------------------------------------

    \9\ U.S. EPA, 1994, ``Estimating Radiogenic Cancer Risks,'' EPA 
402-R-93-076, Office of Radiation and Indoor Air, Washington, D.C.
---------------------------------------------------------------------------

    Finally, one commenter stated that analyses of site-specific 
exposures at a facility in California shows that there is no 
significant radiation risk associated with bastnasite extraction and 
beneficiation, and that the State of California has accordingly 
declined to license the site for the purpose of radiation control. EPA 
discussed the matter with the California Department of Health Services 
(Radiologic Health Branch), which does not concur with the commenter's 
conclusions. The State is continuing to examine activities at the 
facility and is still evaluating the need to issue a nuclear materials 
license. A final decision will be based, in part, on a comprehensive 
Environmental Impact Report being prepared by San Bernardino County. 
Consequently, EPA cannot conclude that radiation risks at the subject 
facility are low and that a government response to radionuclide 
releases from the facility would be unwarranted. Also, the fact that 
one facility were well controlled would not support an exemption for an 
entire category of facilities.
4. Radon Releases
    Three commenters argued that radon exposure is responsible for most 
of the public health risk associated with naturally occurring 
radionuclides. These commenters also concluded that the risk of radon 
from mines is low, based on past risk assessments of uranium mill 
tailings sites and surface uranium mines, which would tend to have 
higher risks than other kinds of mines. The commenters reasoned that 
these points taken together show that risks from the worst-case 
exposure pathway from worst-case mining activities are not significant, 
and that therefore a broad reporting exemption for all radionuclide 
releases from all mines is justified.
    EPA does not agree with this reasoning. EPA recognizes that its 
Environmental Impact Statement (EIS) for Remedial Action Standards for 
Inactive Uranium Processing Sites, cited by commenters, shows that the 
risk at such sites from radon emissions dwarfs the risks associated 
with releases of other radionuclides and other pathways. Similarly, EPA 
acknowledges that the Nuclear Regulatory Commission's Generic EIS on 
Uranium Milling, also cited by commenters, concludes that ``* * * radon 
is the greatest single contributor to risk.'' However, EPA does not 
believe either of these references provides a basis for concluding that 
only radon is of concern. Both reports show other radionuclides and 
other exposure pathways also can pose considerable risk. Both reports 
show that direct gamma radiation is a big contributor to risk at 
uranium mill tailings piles, especially to on-site workers and 
residents who may live or spend considerable time close to the piles.
    This conclusion is supported by other documents placed in the 
public docket for this rule. For example, EPA's original risk 
assessment for coal and coal ash piles at boiler sites, which resemble 
piles of diffuse NORM at mine sites, found that the critical exposure 
pathway for workers was direct radiation.10 The estimated 
risk to nearby residents from exposure to direct radiation was of the 
same order of magnitude as that from exposure to radon emissions. 
Similarly, a report submitted in public comments on this rule estimates 
that direct radiation is the critical exposure pathway for workers 
exposed to either uranium overburden or metal mine wastes.11 
The report also estimates that direct radiation is the critical 
exposure pathway for nearby residents exposed to metal mining waste. 
Finally, EPA analyses at the Bluewater Uranium Mine Sites in Prewitt, 
New Mexico, estimates that exposure to external gamma radiation and 
radionuclides by the soil ingestion pathway results in a greater than 
10-4 lifetime cancer risk, which is a substantial 
risk.12
---------------------------------------------------------------------------

    \10\ U.S. EPA, 1989, ``Technical Background Supplement in 
Support of Rulemaking Adjustment Activities for Reportable 
Quantities (RQ) of Radionuclides,'' Office of Radiation Programs, 
March.
    \11\ SENES Consultants Limited, 1993, ``Review of Selected 
Issues Concerning EPA's Regulations: Reportable Quantities 
Adjustment--Radionuclides,'' Prepared for American Mining Congress 
and The Fertilizer Institute, January.
    \12\ U.S. EPA, 1992, ``Removal Fact Sheet 1, Bluewater Uranium 
Mine Sites,'' Prewitt, New Mexico, Navajo Nation, November.
---------------------------------------------------------------------------

    EPA does not believe, as commenters suggest, that previous risk 
assessment results for uranium mill tailings piles and surface uranium 
mines provide a basis for concluding that radon risks at all mines are 
low. Indeed, in enacting the Uranium Mill Tailings Radiation Control 
Act (UMTRCA), Congress found that uranium mill tailings may pose 
significant radiation health hazards to

[[Page 13470]]

the public, and that every reasonable effort should be made to provide 
for their stabilization, disposal, and control in a safe and 
environmentally sound manner to prevent or minimize radon diffusion 
into the environment. Regulatory initiatives to control radon releases 
from uranium mill tailings piles have since included UMTRCA standards 
under 40 CFR part 192 as well as CAA NESHAPs under 40 CFR part 61. For 
example, in the radon risk assessment supporting the NESHAP for 
operating uranium mill tailings piles, EPA estimated that the lifetime 
fatal cancer risk to the most exposed individual is 
3 x 10-5, so long as the piles are mostly wet or covered 
with clay. However, the risks from mill tailings piles can increase 
dramatically, to as high as 3 x 10-3, if the piles are 
allowed to be dry and uncovered. Based on this conclusion, EPA 
promulgated a standard limiting radon emissions to an average of 20 
pCi/m\2\-sec (54 FR 51680, December 15, 1989). The risk assessments 
supporting other regulations on radon emissions from uranium mill 
tailings piles yield similar conclusions. These conclusions do not 
support a determination that radon releases from the non-exempt 
categories of mines are insignificant and warrant a reporting 
exemption.
    EPA recognizes that its risk assessment for the 1989 NESHAP on 
surface uranium mines concluded that the maximum individual risk due to 
radon exposure is 5 x 10-5, which was below the benchmark of 
1 x 10-4 used to trigger the imposition of an emission 
limit. However, a risk of 5 x 10-5 is significant and might 
warrant response under CERCLA. Moreover, there is no technical basis 
for concluding that this risk estimate bounds the radon risk at other 
mine sites. Finally, as mentioned previously, the 1989 assessment did 
not consider radon risks to workers or radon risks associated with 
homes built on or around uranium-mining materials with elevated 
radionuclide concentrations. Therefore, even if the Agency were to 
accept the proposition that radon risks at other mines are lower than 
estimated for surface uranium mines, available risk results for surface 
uranium mines do not address all the potential exposure pathways and 
receptors that would have to be considered for a broader reporting 
exemption.
5. Feasibility of Response
    Two commenters stated that it is highly unlikely the government 
could or would respond to reported radionuclide releases from the non-
exempt mines. According to these commenters, there is little that could 
be done beyond covering radon-emitting ores and other materials with 
soil or water, which would defeat the purpose of mining.
    The Agency believes that CERCLA responses are possible and feasible 
for non-exempt mines where materials have elevated concentrations of 
radionuclides. For example, responses could include covering overburden 
or waste piles, fencing to prevent access, monitoring nearby areas for 
potential radiation exposure, and establishing administrative controls 
governing the disposal and use of materials and future land uses of the 
site after closure.
    In addition, it may be feasible or appropriate to take response 
action after mining operations cease. These could include actions to 
reclaim the land and prevent elevated radiation exposures in 
surrounding and encroaching communities. Examples of CERCLA responses 
targeted specifically to radiation exposures at abandoned mine sites 
include removal actions taken at the Bluewater Uranium Mine Sites in 
Prewitt, New Mexico.
6. Controls Under Other Programs
    Nine commenters asserted that EPA has previously evaluated 
radiation risks at non-exempt extraction, beneficiation, and processing 
sites under other regulatory initiatives and has chosen to regulate 
those risks identified as potentially significant. Therefore, according 
to the commenters, CERCLA and EPCRA reporting should not be required 
for releases at these sites either because they are federally permitted 
or because they have been shown to pose low risk that does not warrant 
regulation.
    As discussed in Section II.B.3 above, the two regulatory 
initiatives cited by the commenters as controlling radiation risks at 
mines--the radionuclide NESHAP under the CAA and the mining waste 
proceedings under RCRA--do not support a conclusion that the risks are 
necessarily low. Radiation risk at mines is still being evaluated as 
part of EPA's current study of diffuse NORM wastes, as well as under 
various state initiatives. In addition, at the request of Congress, the 
National Academy of Sciences is currently conducting a study for EPA on 
the scientific and technical basis of its radiation protection guidance 
for NORM; when that study is completed, EPA is to report to Congress 
its views on the need to revise guidelines for NORM in light of the 
Academy's report. Until these or other comparable studies are 
completed, and a regulatory change is warranted based on the results of 
such studies, the Agency will maintain the existing reporting 
requirements for non-exempt mines. Also, decisions whether to regulate 
releases under other programs do not always take adequate account of 
factors that are important in the CERCLA and EPCRA programs. For 
example, in making its decision not to regulate radionuclide emissions 
from mines under the CAA NESHAPs program in 1984, EPA considered a 
variety of factors, including cost and technological feasibility. These 
factors would be evaluated differently by government personnel deciding 
whether to take a response action under CERCLA.
    One commenter believed applicable operations and materials produced 
at a rare earth separations facility in California are adequately 
considered and controlled within existing regulations, and that the 
facility should therefore be exempted. Existing controls include a 
license issued by the California Radiologic Health Branch that requires 
a radiological monitoring and safety plan to include the treatment, 
storage and transport of a lead/iron filter cake generated from site 
operations.
    The fact that a facility is regulated by a State does not show that 
it or other facilities might not cause a release warranting a response. 
Also, EPA discussed this comment with the California Department of 
Health Services (Radiologic Health Branch), which clarified that the 
scope of the current nuclear materials license for this facility is 
limited to treatment and disposal of radioactively contaminated filter 
cake. The license currently does not address the separations process in 
general. The State is continuing to examine activities at the facility 
and is evaluating the need to issue a broad license to control other 
radioactive materials and wastes at the site. Therefore, EPA does not 
believe that this facility shows that the reporting exemptions should 
be broadened.
    More broadly, beneficiation and processing are beyond the scope of 
the reporting exemptions, as mentioned in section II.B.1.b above. 
Therefore, controls under other programs for beneficiation and 
processing activities are irrelevant for the purpose of this rule.
7. Site-Specific Exemptions
    Two commenters requested that EPA provide a means for facilities to 
seek a site-specific exemption based on radionuclide releases at the 
site, if land disturbance activities incidental to extraction 
activities at mines with elevated concentrations and beneficiation and 
processing operations are not included within the final reporting 
exemptions. In the interest of limiting burdens to both the regulated

[[Page 13471]]

community and the government, EPA decided to grant exemptions to 
categories of mines rather than site-specific exemptions. All of the 
facilities that would most likely seek a site-specific exemption would 
be eligible for the reduced reporting requirements under CERCLA for 
continuous releases. EPA believes that it would be much more burdensome 
for these facilities to prepare and submit information for a site-
specific exemption than to comply with existing reporting requirements 
for continuous releases. The economic analysis supporting today's final 
rule (``Estimated Economic Effects of Final Administrative Reporting 
Exemptions for Certain Releases of Radionuclides,'' available for 
inspection in the docket) estimates that each facility spends eight 
hours per year complying with the continuous release reporting 
requirements. It would take many more hours for each facility to 
prepare a scientifically sound, site-specific risk assessment to 
support a reporting exemption.

C. Scope of Reporting Exemptions for Coal and Coal Ash

    Four public commenters raised questions regarding the scope of the 
proposed reporting exemptions for coal and coal ash piles.
1. Types of Ash
    One commenter asked if the exemption for coal ash applies to coal 
fly ash. EPA interprets the term ``coal ash'' in the final reporting 
exemptions to apply to fly ash, bottom ash, and boiler slags, as 
clarified in the final regulatory language. The radionuclide 
concentration data presented and examined in the Technical Background 
Document supporting the exemptions are for all three of these 
materials. Based on these data, EPA concluded that these materials 
typically contain radionuclide levels very close to the upper end of 
the range reported by Myrick et al. for surface soils (3.8 pCi/g of 
uranium-238 and 3.4 pCi/g of thorium-232). Accordingly, these materials 
were judged to have radionuclide concentrations that are at or near 
background and they are included within the scope of the reporting 
exemptions.
2. Beneficial Uses of Ash
    Two commenters asked if the coal ash exemption applies to 
beneficial uses of the ash. Releases of radionuclides ``from the 
dumping of coal ash'' and ``from piles of coal ash'' at all sites--
including sites that beneficially use the ash--are included within the 
scope of the reporting exemptions. The rationale and regulatory 
language for the coal ash dumping exemption logically extends to such 
coal ash uses that involve the land application of coal ash that has 
not been otherwise processed or altered, typically as a substitute for 
natural materials.
    Other coal ash uses, however, are beyond the scope of the 
exemptions as proposed. They involve coal ash that has been placed into 
manufacturing operations and discrete product uses that are unlike the 
releases from diffuse sources contemplated for the exemptions. These 
include uses of coal ash as an ingredient in cement, concrete, asphalt, 
wallboard, blasting grits, roof granules, grouts, fire extinguishing 
slurries, and fillers in paints, undercoatings, and plastics. Because 
such uses were not originally part of the exemptions as proposed, but 
arose through commenters' suggestions, the Agency would need further 
study to determine whether the exemptions could properly be applied to 
manufactured product uses.
3. Coal Preparation and Transportation
    One commenter asked if the reporting exemption for coal piles 
applies to coal preparation activities and the transportation of coal 
in open top railcars and other vehicles. The Agency has determined that 
the exemptions do not apply to coal preparation activities but do apply 
to coal transportation.
    Today's rule exempts radionuclide releases to and from coal piles 
at all sites, including piles of raw and prepared coal at coal 
preparation plants. However, releases from coal preparation activities 
are outside the scope of the reporting exemptions for the same reasons 
advanced for beneficiation activities in the mining industry. 
Specifically, coal preparation involves processing operations and 
releases that are unlike diffuse releases to and from coal piles, as 
contemplated in the proposal. Coal preparation activities include, but 
are not limited to, size reduction, screening, cleaning, and 
dewatering.13
---------------------------------------------------------------------------

    \13\ The Technical Background Document supporting the final 
reporting exemption rule provides background information on the 
nature of coal preparation activities.
---------------------------------------------------------------------------

    In addition, EPA notes that the concentration of radionuclides in 
materials handled during coal preparation would have to be generally 
within the range of typical background, in order to meet the first 
criterion for exemption outlined in the proposed rule. The Agency, 
however, has no data on the concentration of radionuclides in wastes 
and by-products generated during the coal preparation process (e.g., 
slimes, sludges, air emissions, and discarded piping and processing 
equipment). The commenter asserts that it is unlikely that radionuclide 
concentrations would be increased as a result of preparation 
activities, but provides no data showing that the levels in various 
wastes and by-products are indeed at or near background, as they are in 
coal.
    The amount of waste generated during coal preparation has been 
estimated as roughly 30 tons for every 100 tons of raw 
coal.14 Although limited information is available on the 
composition of this waste, washability studies do provide some 
information regarding the fate of radionuclides in the preparation 
process. These studies identify the phase (i.e., mineral matter or 
coal) in which an element remains after cleaning, indicating whether an 
element can be ``washed out'' of a given sample of coal. Thorium 
appears to be associated with the mineral material, and uranium with 
the coal, although ``significant amounts of uranium may occur in 
accessory minerals and as secondary mineralization'' in some 
coals.15 Consequently, coal preparation waste might be lower 
in uranium, but higher in thorium than the raw coal. No quantitative 
data, however, are available to demonstrate the frequency and extent of 
these or any other differences, if they actually exist.
---------------------------------------------------------------------------

    \14\ U.S. Department of Energy, 1991, ``Coal Data: A 
Reference,'' Energy Information Administration, DOE/EIA-0064(90).
    \15\ U.S. EPA, 1995, ``Estimates of Health Risks Associated with 
Radionuclide Emissions from Fossil-Fueled Steam-Electric Generating 
Plants,'' Office of Radiation and Indoor Air, EPA 402/R-95-16.
---------------------------------------------------------------------------

    Preparation techniques and, therefore, the wastes generated during 
preparation may undergo significant changes in the near future. More 
stringent air pollution regulations are inducing industry to develop 
improved coal cleaning technologies which reduce impurities emitted 
when coal is burned. Based on the extremely limited data for the 
wastes, and the likelihood that their nature may change, EPA cannot 
prudently assume that they have, or will in the future have, 
radionuclide concentrations similar to typical background.
    Further, to satisfy the Agency's second criterion for exemption, a 
CERCLA response to releases of radionuclides from coal preparation 
activities would have to be highly unlikely, and possibly infeasible, 
because the materials being handled have radionuclide concentrations 
similar to background and the releases are expected to be continuously 
low,

[[Page 13472]]

spread over large areas, and widely dispersed in the environment. Coal 
preparation activities generally will not result in releases from a 
diffuse source like those exempted by today's final rule. On the 
contrary, a coal preparation plant is similar to an industrial facility 
which may have point source releases, as from an air vent. Responses to 
such releases would appear to be quite feasible. These responses could 
include the placement of emission controls, such as fabric filters, to 
capture particulates before they are released to the atmosphere.
    Finally, releases from coal preparation and treatment activities 
would have to satisfy the last exemption criterion identified in the 
Agency's supplemental proposal, that is, individual release 
notifications would not be necessary for the government to assess 
whether a response action is needed, since the releases should be 
similarly low across all sites. However, preparation plants appear to 
differ in design according to the properties and composition of the 
coal used and other factors. Therefore, processes and releases cannot 
be generally characterized, and individual release reports may be 
required for the government to assess the necessity of a response 
action for a particular facility.
    In summary, radionuclide releases from coal preparation and 
treatment are not analogous to those from coal piles. Like 
beneficiation in the mining industry, coal preparation activities are 
outside the scope of the reporting exemptions.
    EPA interprets releases from coal transportation as falling within 
the scope of today's broader exemptions, which apply to releases of 
radionuclides ``from the dumping of coal'' and ``from piles of coal'' 
at all sites. This includes releases to and from coal piles at 
transportation storage yards as well as coal held in transportation 
vehicles. Therefore, fugitive emissions of radionuclides from coal in a 
moving open top railcar would be exempt. This interpretation is 
consistent with the scope of the exemption for land disturbance 
incidental to extraction, which includes transporting ores and other 
raw materials from certain kinds of mines. Such radionuclide releases 
during coal transport meet all of the exemption criteria in that the 
concentrations of radionuclides in the coal are at or near background, 
the releases are diffuse, and the releases should be similarly low in 
every case.

D. Requests for Other Exemptions

    Two commenters requested that EPA consider other kinds of reporting 
exemptions. One asked EPA to consider an exemption for non-episodic 
releases of hazardous substances from waste sites already identified 
for remedial/corrective actions. The other asked EPA to consider an 
exemption for liquid or gaseous radionuclide releases from a nuclear 
power plant exceeding federally permitted release limits specified in 
the Nuclear Regulatory Commission's regulations in 10 CFR Part 50.
    EPA is not, as part of this final rule, including either of these 
reporting exemptions because they are beyond the scope of the proposed 
exemptions. The scope of the exemptions is limited to naturally 
occurring radionuclide releases from undisturbed land holdings, from 
certain land disturbance activities (construction, farming, and most 
types of mining), and to or from coal and coal ash piles.

E. Interpretation of CERCLA Provisions

    Nine commenters raised issues regarding the interpretation of two 
provisions of CERCLA as they pertain to the reporting exemptions: (1) 
The definition of ``release into the environment,'' and (2) the focus 
on ``substantial danger.''
1. Release Into the Environment
    All nine of these commenters addressed the ruling of the U.S. Court 
of Appeals for the District of Columbia in TFI v. EPA, 935 F.2d 1303 
(D.C. Cir. 1991) that the placement of hazardous substances into an 
``unenclosed containment structure'' does not necessarily constitute a 
release into the environment for the purpose of CERCLA reporting 
requirements. According to the commenters, placing radionuclides in 
stockpiles at mine sites, coal piles, or coal ash storage or disposal 
units qualifies as placement into an unenclosed containment structure 
under the court's ruling. As a consequence, they contend, such 
placement does not qualify as release into the environment and the 
reporting exemptions are not required.
    In making its decision, the court in the TFI case considered 
CERCLA's reporting requirement in the context of an ``unenclosed 
containment structure,'' defined by EPA as ``any surface impoundment, 
lagoon, tank, or other holding device that has an open side with the 
contained materials directly exposed to the ambient environment.'' TFI 
at p. 1309. With such a structure in mind, the court reasoned that ``a 
company could place a non-volatile substance into an open-air storage 
container and the consequences of the open-air storage would be no 
different from those that would occur if the company had placed the 
substance to a closed container.'' TFI at p. 1310. Therefore, according 
to the court, the company should not have to report the transfer of the 
substance to the container because the substance would merely be 
exposed to the environment, not released into the environment. Id.
    There may be significant differences, however, between an 
``unenclosed containment structure'' considered by the court in TFI, 
and the open-air stockpiles envisioned by the commenters. The court 
considered a container with an open side which nonetheless holds a 
substance. This may be different from a typical bulk-material storage 
or disposal pile. Placing a substance (e.g., radionuclides in coal) in 
a pile directly on the land surface clearly constitutes a release to 
the environment, as those terms are defined under CERCLA. EPA 
understands, however, that some units for storing or disposing of bulk 
materials, such as coal and coal ash, may qualify as unenclosed 
containment structures within the meaning of the court's ruling in the 
TFI case. Such a determination would have to be made on a case-by-case 
basis considering the actual level of containment provided by the 
storage or disposal unit.
2. Substantial Danger
    Two commenters asserted that CERCLA section 102(a) limits reporting 
requirements to releases that ``may present substantial danger to the 
public health or welfare or the environment. * * *'' The commenters 
added that the ``substantial danger'' standard is consistently applied 
across the remainder of the CERCLA response scheme triggered by a 
release exceeding an RQ (including CERCLA sections 103, 104, and 
105(a)). Considered as a whole, according to the commenters, these 
CERCLA provisions indicate that no relevant purpose is served by 
requiring reporting of releases not likely to pose the substantial 
danger at which CERCLA response action is aimed. This applies not only 
to the radionuclide releases EPA proposed to exempt but also to other 
radionuclide releases from mining and processing facilities.
    RQs are reporting triggers intended to give government officials an 
opportunity to mount a timely response, if necessary, based on a 
determination of possible or potential harm. They do not signal a 
determination that a release presents substantial danger; nor are they 
a determination that releases of a particular amount of a hazardous 
substance necessarily will harm the public health or welfare or the 
environment. The quantity released is just one factor considered by the

[[Page 13473]]

government when assessing the need to respond to such a release. Other 
factors include, but are not limited to, the location of the release, 
its proximity to drinking water supplies or other valuable resources, 
and the likelihood of exposure or injury to nearby populations.
    Contrary to the commenters' assertion, CERCLA section 102(a) does 
not limit reporting requirements to releases that ``may present 
substantial danger.'' Instead, section 102(a) authorizes EPA to 
designate as hazardous substances, in addition to those referred to in 
section 101(14), other substances that ``may present substantial 
danger'' when released.
    Today's administrative reporting exemption rulemaking is related to 
the release notification provisions of CERCLA section 103, not to the 
designation provisions of section 102, the response provisions of 
section 104, or the National Contingency Plan (NCP) provisions of 
section 105. EPA notes, however, that the commenters have incorrectly 
stated the role of ``substantial danger'' in the requirements of 
sections 104 and 105. Section 104(a)(1) authorizes a federal response 
to any release of a hazardous substance. In addition, the CERCLA 
section 105(a)(8)(A) requirement that the NCP consider risk at 
Superfund sites does not bear on the adjustment of RQs under section 
102 or on release notification under section 103.

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.
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review. It does not have an annual effect 
on the economy of $100 million or more; nor does it fall within the 
other definitional criteria for a significant regulatory action 
described above.
    This rule is deregulatory and the exemptions to reporting 
requirements will result in an estimated net cost savings to the 
regulated community of $489,000 annually, as demonstrated by an 
economic analysis (``Estimated Economic Effects of Final Administrative 
Reporting Exemptions for Certain Releases of Radionuclides'') performed 
by the Agency, available for inspection in the U.S. EPA CERCLA Docket 
Office, Crystal Gateway #1, 1st Floor, 1235 Jefferson Davis Highway, 
Arlington, VA 22202 [Docket Number 102RQ-RN-2].

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as amended 
by the Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA), generally requires an agency to prepare, and make available 
for public comment, a regulatory flexibility analysis that describes 
the impact of a proposed or final rule on small entities (i.e., small 
businesses, small organizations, and small governmental jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency certifies the rule will not have a significant adverse impact 
on a substantial number of small entities.
    SBREFA amended the Regulatory Flexibility Act to require Federal 
agencies to provide a statement of the factual basis for certifying 
that a rule will not have a significant economic impact on a 
substantial number of small entities. The following discussion explains 
EPA's determination.
    This rule does not impose any new burdens on small entities. Since 
it provides relief from reporting requirements to certain sources of 
radionuclide releases, the impact is solely a cost savings. Therefore, 
the Agency certifies that the rule will not have a significant economic 
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 reporting or recordkeeping provisions that 
require approval from OMB. The Office of Management and Budget (OMB) 
has previously approved the information collection requirements 
contained in 40 CFR 302 and 40 CFR 355 under the provisions of the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB 
control number 2050-0046.
    This rule reduces the existing regulatory burden. The exemptions to 
reporting requirements will result in an estimated net cost savings to 
the regulated community of $489,000 annually. The Agency estimates that 
1,785 facilities will benefit from the reporting exemptions included in 
this rule. This number includes mining sites engaged solely in 
extraction activities, as well as coal and coal ash sites and landfills 
that do not include industrial or utility coal-fired boilers, that 
might continuously release an RQ of nuclide. The Agency excluded those 
mining sites with reportable releases from adjoining beneficiation or 
processing facilities which must still meet CERCLA section 103 
reporting requirements, and those still subject to reporting due to 
adjoining activities releasing an RQ or more of radionuclides. Applying 
Department of Labor hourly compensation rates for the appropriate labor 
categories, the cost saving per facility is $274. This results in total 
savings of $489,000. This economic analysis is explained more fully in 
EPA's ``Estimated Economic Effects of Final Administrative Reporting 
Exemptions for Certain Releases of Radionuclides.''
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An Agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed

[[Page 13474]]

in 40 CFR Part 9 and 48 CFR Chapter 15.

D. Unfunded Mandates

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub 
.L. 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    EPA has determined that this rule does not include a Federal 
mandate that would result in estimated costs of $100 million or more to 
either State, local, or tribal governments in the aggregate, or to the 
private sector because the rule imposes no enforceable duty on any 
State, local or tribal governments or the private sector.

E. Small Business Regulatory Enforcement Fairness Act

    Under 5 U.S.C. 801(a)(1)(A), as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives and the Comptroller General of the 
General Accounting Office prior to publication of the rule in today's 
Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

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, Reporting and recordkeeping requirements, 
Superfund, Water pollution control, Water supply.

40 CFR Part 355

    Air pollution control, Chemicals, Disaster assistance, Hazardous 
substances, Hazardous waste, Intergovernmental relations, Natural 
resources, Penalties, Reporting and recordkeeping requirements, 
Superfund, Water pollution control, Water supply.

    Dated: February 19, 1998.
Carol M. Browner,
Administrator.


[[Page 13475]]


    For the reasons set out in the preamble, title 40, chapter I of the 
Code of Federal Regulations is amended 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 during mining activities, except 
that which occurs at uranium, phosphate, tin, zircon, hafnium, 
vanadium, monazite, and rare earth mines. Land disturbance incidental 
to extraction includes: land clearing; overburden removal and 
stockpiling; excavating, handling, transporting, and storing ores and 
other raw materials; and replacing materials in mined-out areas as long 
as such materials have not been beneficiated or processed and do not 
contain elevated radionuclide concentrations (greater than 7.6 
picocuries per gram or pCi/g of Uranium-238, 6.8 pCi/g of Thorium-232, 
or 8.4 pCi/g of Radium-226).
    (3) Releases of radionuclides from the dumping and transportation 
of coal and coal ash (including fly ash, bottom ash, and boiler slags), 
including the dumping and land spreading operations that occur during 
coal ash uses.
    (4) Releases of radionuclides from piles of coal and coal ash, 
including fly ash, bottom ash, and boiler slags.
* * * * *

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) * * *
    (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 during 
mining activities, except that which occurs at uranium, phosphate, tin, 
zircon, hafnium, vanadium, monazite, and rare earth mines. Land 
disturbance incidental to extraction includes: land clearing; 
overburden removal and stockpiling; excavating, handling, transporting, 
and storing ores and other raw materials; and replacing materials in 
mined-out areas as long as such materials have not been beneficiated or 
processed and do not contain elevated radionuclide concentrations 
(greater than 7.6 picocuries per gram or pCi/g of Uranium-238, 6.8 pCi/
g of Thorium-232, or 8.4 pCi/g of Radium-226).
    (C) From the dumping and transportation of coal and coal ash 
(including fly ash, bottom ash, and boiler slags), including the 
dumping and land spreading operations that occur during coal ash uses.
    (D) From piles of coal and coal ash, including fly ash, bottom ash, 
and boiler slags.
* * * * *
[FR Doc. 98-4822 Filed 3-18-98; 8:45 am]
BILLING CODE 6560-50-P