[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.
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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
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Type of entity Examples of affected entities
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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.
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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