[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
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 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