[Federal Register Volume 68, Number 166 (Wednesday, August 27, 2003)]
[Proposed Rules]
[Pages 51516-51518]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-21884]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 68, No. 166 / Wednesday, August 27, 2003 /
Proposed Rules
[[Page 51516]]
NUCLEAR REGULATORY COMMISSION
10 CFR Part 40
State of Utah: NRC Staff Assessment of Utah's Proposed
Alternative Standard To Use Utah's Existing Groundwater Regulation in
Lieu of the Nuclear Regulatory Commission Regulations
AGENCY: Nuclear Regulatory Commission.
ACTION: Notice and opportunity for public hearing on Utah's proposal to
use alternative groundwater protection standards for uranium mills and
11e.(2) byproduct material disposal facilities.
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SUMMARY: By letter dated October 23, 2002, to Paul Lohaus, Director,
Office of State and Tribal Programs, U.S. Nuclear Regulatory Commission
(NRC), William J. Sinclair, Director, Division of Radiation Control
(the Division), State of Utah, submitted information on how the
Division proposes to regulate a portion of the groundwater aspects of
uranium milling in the State of Utah. Utah's proposed approach is to
use its existing groundwater protection regulations, based on
Environmental Protection Agency (EPA) drinking water limits, in lieu of
a portion of the specific groundwater requirements in Appendix A to 10
CFR part 40 (Appendix A). The Commission has determined that Utah's
proposed approach constitutes use of alternative standards. Under
section 274o of the Atomic Energy Act, as amended (Act), the Commission
must make a determination that such alternatives will achieve a level
of stabilization and containment of the sites concerned, and a level of
protection for public health, safety, and the environment from
radiological and non-radiological hazards associated with such sites,
after notice and opportunity for public hearing. Through this Federal
Register notice, the Commission intends to fulfill both the notice and
opportunity for public hearing provisions of section 274o of the Act.
DATES: The comment period expires September 26, 2003. Comments received
after this date will be considered if it is practical to do so, but the
Commission cannot assure consideration of comments received after the
expiration date.
ADDRESSES: Written comments may be submitted to Secretary, U.S. Nuclear
Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking
and Adjudications Staff.
E-mail comments to: [email protected]. If you do not receive a reply e-
mail confirming that we have received your comments, contact us
directly at (301) 415-1966.
Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland
20852, between 7:30 am and 4:15 p.m. Federal workdays. (Telephone (301)
415-1966.)
Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at
(301) 415-1101.
Publicly available documents created or received at the NRC after
November 1, 1999, are available electronically at the NRC's Electronic
Reading Room at http://www.nrc.gov/NRC/ADAMS/index.html. From this
site, the public can gain entry into the NRC's Agencywide Document
Access and Management System (ADAMS), which provides text and image
files of NRC's public documents. Copies of documents cited in this
section are available through ADAMS. If you do not have access to ADAMS
or if there are problems in accessing the documents located in ADAMS,
contact the NRC Public Document Room (PDR) Reference staff at 1-800-
397-4209, 301-415-4737 or by e-mail to [email protected].
The Division has posted documents related to its amendment
application including the alternative groundwater regulations on the
Division's Web site at: http://www.deq.state.ut.us/EQRAD/milllst.htm.
Copies of comments received by NRC may be examined at the NRC
Public Document Room, 11555 Rockville Pike, Public File Area O-1-F21,
Rockville, Maryland. Copies of the Division's submittal and copies of
the NRC Staff correspondence with the Division are also available for
public inspection in the NRC's Public Document Room. The ADAMS
Accession Numbers are presented with the first mention of each document
(i.e., ML.* * *).
FOR FURTHER INFORMATION CONTACT: Dennis M. Sollenberger, Office of
State and Tribal Programs, U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001. Telephone (301) 415-2819 or e-mail
[email protected].
SUPPLEMENTARY INFORMATION:
Background
Since section 274 of the Act was added in 1959, the Commission has
entered into Agreements with 33 States that authorize a State to
regulate the use of radioactive material within the State. NRC
periodically reviews the performance of the Agreement States to assure
compliance with the provisions of section 274. The Act was amended in
1983 to add the last paragraph of section 274o which requires the
Commission to make a determination, after notice and opportunity for
public hearing, that alternative standards will achieve a level of
stabilization and containment of the sites concerned, and a level of
protection for public health, safety, and the environment from
radiological and non-radiological hazards associated with such sites,
which is equivalent to, to the extent practicable, or more stringent
than the level which would be achieved by standards and requirements
adopted and enforced by the Commission for the same purpose and any
final standards promulgated by the Administrator of the Environmental
Protection Agency (EPA) in accordance with section 275.
The State of Utah Agreement became effective April 1, 1984, but did
not include authority for 11e.(2) byproduct material or the land
disposal of source, byproduct and special nuclear material received
from other persons. In 1990, Utah amended its Agreement to include land
disposal of source, byproduct and special nuclear material received
from other persons. In 1996, Utah returned its authority for the
evaluation of radiation safety information on sealed sources and
devices containing byproduct, source, or special nuclear materials and
the registration of the sealed sources or devices for distribution, as
provided for in regulations. The State of Utah initiated further
amendment of their current section 274b Agreement to add authority for
11e.(2) byproduct material by a letter of intent from Governor Michael
Leavitt dated June 26, 2001
[[Page 51517]]
(ML013250419). By letter dated November 19, 2001 from William J.
Sinclair, Director, Division of Radiation Control, Utah submitted a
draft application to amend its Agreement (ML013250578). NRC sent
comments on the draft application to Utah by letter dated February 21,
2002 (ML020530319). The draft application did not contain either draft
or final regulations for the control of 11e.(2) byproduct material.
Utah subsequently developed draft and final regulations on which the
NRC staff provided comments (ML021490340, ML021790511, ML022110416, and
ML023290240). Under the proposed amendment, four NRC licenses would
transfer to Utah.
In its review of Utah's draft regulations, the staff identified
that Utah proposed to use its existing groundwater protection standards
to protect the waters of the State from uranium milling operations, in
lieu of the groundwater protection requirements in Appendix A. Utah's
regulations are based on the EPA's hazardous waste program and differ
in several respects from the groundwater protection provisions in
Appendix A. Therefore, the Commission has determined that Utah's
proposed approach constitutes the use of alternative standards.
The NRC had not previously identified any instances in which an
Agreement State had proposed alternative standards under section 274o
and, therefore, the implementing process for this provision had not
been previously developed. Upon receiving the Utah request, the NRC
undertook development of an implementing process which included a
Commission determination that notice through the Federal Register and a
hearing process similar to the process in subpart H of 10 CFR part 2,
``Rulemaking,'' would fulfill the NRC's requirements in section 274o.
Additionally, as part of that process, the NRC staff requested that
Utah provide an analysis that compares the differences between the Utah
regulations and NRC's regulations, and demonstrates that,
notwithstanding these differences, the Utah groundwater regulations
meet the provisions in section 274o. Utah submitted its response
supporting the substitution of Utah's groundwater regulations for NRC's
regulations, by letter dated October 23, 2002 (ML022980335).
This notice is being published in fulfillment of the requirement to
notice and provide an opportunity for public hearing in this instance.
Discussion
In its application for the amended Agreement, Utah stated that the
Director, Division of Radiation Control, was designated, by the Water
Quality Board, as a Co-Executive Secretary of the Water Quality Board
(see Utah Code Annotated (UCA) 19-5-106 and 19-5-104(1)(k)). As Co-
Executive Secretary, the Director, Division of Radiation Control, has
legal authority to issue, administer, and enforce specific groundwater
permits under the Utah Water Quality Rule R317-6 as applied to the
current four 11e.(2) byproduct material facilities that would transfer
to Utah. The four current NRC licensed facilities are: Envirocare, Rio
Algom, International Uranium Corporation, and Plateau Resources
Limited. Therefore, the Division of Radiation Control has substituted
the Utah Administrative Code R317-6, Groundwater Quality Protection,
for certain of the groundwater standards provided in 10 CFR part 40,
Appendix A (specifically Criteria 5B(1) through 5H, 7A, and 13). In
addition, under State procedures, appeals of enforcement proceedings
and permit issues relating to groundwater would be administered through
the Water Quality Board.
NRC considers the substitution of R317-6 for the groundwater
protection regulations in 10 CFR part 40, Appendix A, Criteria 5B(1)
through 5H, 7A, and 13 to be the substitution of an alternative
standard. The substitution was proposed in Utah Administrative Code
R313-24-4(1)(b). On October 23, 2002, Utah provided a comparative
analysis of R317-6 to the Appendix A standards listed above
(ML022980335). Utah's analysis concludes that R317-6 provides an
equivalent level of protection of the groundwater as the NRC standards.
Implementation of R317-6 would be accomplished through issuance of a
separate groundwater discharge permit for the specific site in addition
to the radioactive materials license. Of the four current NRC licensed
facilities, two of the facilities (Envirocare and Plateau Resources
Limited) have existing Utah groundwater discharge permits,
International Uranium Corporation is in discussions with Utah for a
groundwater discharge permit, and Rio Algom is currently implementing a
groundwater remediation program.
NRC staff reviewed the Utah groundwater protection regulations
(R317-6), the Utah comparative analysis for R317-6, and the
administrative approach in the Utah groundwater protection permitting
process to determine if the resulting overall approach meets the
requirements for alternative standards in section 274o. The NRC staff
review focused on three major areas: the administrative procedure
including the permitting process, the specific numerical limits in the
regulations, and the hazardous constituents that must be considered in
setting standards at a specific site.
Utah's administrative process of issuing separate groundwater
discharge permits as well as the other procedural requirements in R317-
6 differ from the process in Criteria 5B(1) through 5H and 7A. However,
staff's review concluded that they accomplish the same regulatory
outcome of establishing a site-specific groundwater protection program
for both radiological and nonradiological hazards associated with
11e.(2) byproduct material that is consistent with the groundwater
protection regulations of the Commission.
The NRC staff review of the specific numerical limits in R317-6
determined that the specific values in R317-6 were based on the EPA
drinking water limits (primary and some secondary limits) and that Utah
had updated its groundwater protection regulations to reflect current
EPA drinking water regulations in 40 CFR parts 141 and 142. Although
the numerical limits in NRC regulations are also based on EPA drinking
water limits, they are based on EPA limits in effect in 1983 when EPA
issued its uranium milling regulations in 40 CFR part 192, subparts D
and E. Thus, Utah's rules reflect some differences, discussed further
below, that are included in the current issuances of EPA's drinking
water limits.
The Utah groundwater regulations apply to all facilities in the
State unless specifically exempted in the regulations, i.e., the effect
of using R317-6 is to apply consistent groundwater regulations to
uranium milling facilities as well as other industries in the State of
Utah. The NRC staff review identified the following differences between
the specific numerical limits in R617-6 and the NRC regulations: (1)
Four chemical constituents listed in R317-6 have higher (less
stringent) values than specified in NRC's regulations; (2) several
chemical constituents listed in R317-6 have lower (more stringent)
values than specified in NRC's regulations; and (3) R317-6 also
includes specific numerical values for chemical constituents that are
not listed in NRC regulations, but are listed in the EPA primary or
secondary drinking water standards (and thus may be more stringent than
NRC regulations). Given this, and as discussed further below, the NRC
staff concludes that the Utah regulation, R317-6, has the same
objective and basis as the NRC regulations, although the Utah
[[Page 51518]]
regulation has been updated as EPA has updated its drinking water
regulations in 40 CFR parts 141 and 142 to reflect current constituents
and limits.
Utah's specific constituents and limit values (higher, lower, and
not identified in NRC regulations) are based on the EPA maximum
concentration limits (MCLs) in its primary or secondary drinking water
standards as updated by EPA. As noted above, NRC standards are based on
the MCLs in effect in 1983 when EPA issued its uranium milling
regulations. Therefore, the different values for the MCLs are due to
EPA updating its MCLs in 40 CFR parts 141 and 142 based on newer
scientific information. NRC staff has used the newer values when NRC
licensees have proposed their use as part of an Alternate Concentration
Limit (ACL) proposal as permitted in Appendix A, to 10 CFR part 40.
Based on this information, NRC staff concludes that the Utah
groundwater protection regulation (R317-6) has the same objective as
NRC's regulations and is based on the same EPA standards that form the
basis for the NRC regulations even through the Utah regulation is based
on the more recent version of the EPA regulations. Thus, the
differences between the proposed Utah groundwater protection
regulations and the 10 CFR part 40, Appendix A groundwater protection
standards are essentially the differences between the two versions of
the EPA regulations. Because NRC regulations in this area must conform
to those in 40 CFR part 192, subparts D and E, until such time as EPA
updates these regulations, NRC is not able, by law, to update its
regulations. However, the public health, safety, and environmental
protection objectives are the same in both regulations.
The Utah regulation at R317-6-6.3.I.6 also includes a reference to
the EPA RCRA Groundwater Monitoring Technical Enforcement Guidance
Manual (1986) for use in selecting constituents for groundwater
monitoring and this document uses the current list of constituents in
40 CFR part 261, Appendix VIII, which has been updated by EPA since it
was used earlier as the basis for Criterion 13 of 10 CFR part 40,
Appendix A. The updated list drops certain chemicals listed in
Criterion 13 and includes other constituents not currently listed in
Criterion 13. Utah has stated that it will use Criterion 13 and the
list in 40 CFR part 261, Appendix VIII, as guidance in selecting the
constituents to be monitored at 11e.(2) byproduct materials facilities.
The constituents selected will be based on the feed material to the
facility and the process chemicals used at the facility. This selection
process is equivalent to the hazardous constituent selection process in
Criteria 5B(2) and 5B(3).
Therefore, the NRC staff conclusion is that the Utah Administrative
Code R317-6 provides a level of protection for public health, safety,
and the environment from radiological and nonradiological hazards
associated with such sites, which is equivalent to, to the extent
practicable, or more stringent than the level which would be achieved
by standards and requirements adopted and enforced by the Commission
for the same purpose.
Section 274o Hearing for Alternative Standards
The Commission has approved the use of a hearing process similar to
the provisions in subpart H of 10 CFR part 2 for the ``hearing''
component required by the last paragraph of section 274o. The proposed
alternative standards have been subject to the State of Utah rulemaking
process which includes opportunity for a public hearing. A hearing
process similar to the provisions in subpart H is not intended to
duplicate the State's process; rather, it will be used to provide
sufficient information for the Commission to make the determination
required in section 274o.
Pursuant to the hearing process set forth in subpart H of 10 CFR
part 2, the Commission is requesting information from interested
members of the public on the alternative standards proposed by the
State of Utah of substituting Utah Administrative Code R317-6 for the
groundwater protection standards in 10 CFR part 40, Appendix A,
Criteria 5B(1) through 5H, 7A, and 13. The NRC staff will evaluate the
information received and provide the information to the Commission for
a final determination. The issue under consideration is:
Does the Utah alternative standard achieve a level of stabilization
and containment of the sites concerned, and a level of protection for
public health, safety, and the environment from radiological and
nonradiological hazards associated with such sites, which is equivalent
to, to the extent practicable, or more stringent than the level which
would be achieved by standards and requirements adopted and enforced by
the Commission for the same purpose and any final standards promulgated
by the Administrator of the Environmental Protection Agency in
accordance with section 275?
Environmental Analysis
The environmental impact of a Commission determination that an
Agreement State's alternative standards that have been found to provide
a level of protection that is equivalent to, to the extent practicable,
or more stringent than standards promulgated by NRC or the
Administrator of EPA under section 275 are within the generic impact
analysis conducted by NRC and EPA in promulgating their standards and
requirements (NUREG-0706, ``Final Generic Environmental Impact
Statement on Uranium Milling,'' and EPA 520/1-83-008, ``Final
Environmental Impact Statement for Standards for the Control of
Byproduct Materials from Uranium Processing''). Any site-specific
application of alternative standards in Agreement States will be
evaluated under the State's environmental assessment required of the
State under the section 274o.
Dated at Rockville, Maryland, this 21st day of August, 2003.
For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 03-21884 Filed 8-26-03; 8:45 am]
BILLING CODE 7590-01-P