82_FR_7412 82 FR 7400 - Health and Environmental Protection Standards for Uranium and Thorium Mill Tailings

82 FR 7400 - Health and Environmental Protection Standards for Uranium and Thorium Mill Tailings

ENVIRONMENTAL PROTECTION AGENCY

Federal Register Volume 82, Issue 12 (January 19, 2017)

Page Range7400-7430
FR Document2017-00573

The U.S. Environmental Protection Agency (EPA) is proposing new health and environmental protection standards under the Uranium Mill Tailings Radiation Control Act (UMTRCA) of 1978. The standards proposed in this action would be applicable to byproduct materials produced by uranium in-situ recovery (ISR) and would be implemented by the U.S. Nuclear Regulatory Commission (NRC) and NRC Agreement States. The EPA initially proposed new health and environmental protection standards for ISR facilities on January 26, 2015; however, the EPA has decided to re-propose the rule and seek additional public to comment on changes to the original proposal, including changes in the regulatory framework and approach, based on public comment and new information received from stakeholders. The first standards for uranium recovery were issued by the EPA in 1983 when conventional mining and milling were the predominant methods of uranium extraction, and were last amended in 1995. Since the early 1990s, ISR has mostly replaced conventional milling. This proposed rule would strengthen the existing regulations for uranium recovery by adopting new standards addressing groundwater hazards specific to ISR facilities. As with the original proposal, the primary focus of this proposal is groundwater protection, restoration and long-term stability. The most significant changes from the original proposal include: Removing the default 30-year long-term monitoring provision and shifting to a Resource Conservation and Recovery Act (RCRA) Subtitle C corrective action framework as a model rather than a RCRA Subtitle C landfill framework; adding specific criteria and procedures for approving termination of long-term stability monitoring; deleting gross alpha particle activity from proposed Table 1 to subpart F of 40 CFR part 192, and allowing more flexibility for the NRC or Agreement States to determine on a site-specific basis the constituents for which concentration based standards are set. The EPA has also sought to clarify how these standards under UMTRCA complement, and do not overlap with, the requirements of the Safe Drinking Water Act (SDWA). This action also proposes amendments to certain provisions of the existing rule to address a ruling of the Tenth Circuit Court of Appeals, to update a cross-reference to another environmental standard and to correct certain technical and typographical errors. The proposed rule has been informed by input from the NRC, the U.S. Department of Energy (DOE), states, tribes, industry, environmental groups and other stakeholders, and would promote public health and protect groundwater by reducing the potential for groundwater contamination after production has ceased, and in aquifers adjacent to ISR facilities during uranium recovery.

Federal Register, Volume 82 Issue 12 (Thursday, January 19, 2017)
[Federal Register Volume 82, Number 12 (Thursday, January 19, 2017)]
[Proposed Rules]
[Pages 7400-7430]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-00573]



[[Page 7399]]

Vol. 82

Thursday,

No. 12

January 19, 2017

Part XIII





 Environmental Protection Agency





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





40 CFR Part 192





 Health and Environmental Protection Standards for Uranium and Thorium 
Mill Tailings; Proposed Rule

Federal Register / Vol. 82 , No. 12 / Thursday, January 19, 2017 / 
Proposed Rules

[[Page 7400]]


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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 192

[EPA-HQ-OAR-2012-0788; FRL-9958-12-OAR]
RIN 2060-AP43


Health and Environmental Protection Standards for Uranium and 
Thorium Mill Tailings

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

SUMMARY: The U.S. Environmental Protection Agency (EPA) is proposing 
new health and environmental protection standards under the Uranium 
Mill Tailings Radiation Control Act (UMTRCA) of 1978. The standards 
proposed in this action would be applicable to byproduct materials 
produced by uranium in-situ recovery (ISR) and would be implemented by 
the U.S. Nuclear Regulatory Commission (NRC) and NRC Agreement States. 
The EPA initially proposed new health and environmental protection 
standards for ISR facilities on January 26, 2015; however, the EPA has 
decided to re-propose the rule and seek additional public to comment on 
changes to the original proposal, including changes in the regulatory 
framework and approach, based on public comment and new information 
received from stakeholders.
    The first standards for uranium recovery were issued by the EPA in 
1983 when conventional mining and milling were the predominant methods 
of uranium extraction, and were last amended in 1995. Since the early 
1990s, ISR has mostly replaced conventional milling. This proposed rule 
would strengthen the existing regulations for uranium recovery by 
adopting new standards addressing groundwater hazards specific to ISR 
facilities. As with the original proposal, the primary focus of this 
proposal is groundwater protection, restoration and long-term 
stability.
    The most significant changes from the original proposal include: 
Removing the default 30-year long-term monitoring provision and 
shifting to a Resource Conservation and Recovery Act (RCRA) Subtitle C 
corrective action framework as a model rather than a RCRA Subtitle C 
landfill framework; adding specific criteria and procedures for 
approving termination of long-term stability monitoring; deleting gross 
alpha particle activity from proposed Table 1 to subpart F of 40 CFR 
part 192, and allowing more flexibility for the NRC or Agreement States 
to determine on a site-specific basis the constituents for which 
concentration based standards are set. The EPA has also sought to 
clarify how these standards under UMTRCA complement, and do not overlap 
with, the requirements of the Safe Drinking Water Act (SDWA).
    This action also proposes amendments to certain provisions of the 
existing rule to address a ruling of the Tenth Circuit Court of 
Appeals, to update a cross-reference to another environmental standard 
and to correct certain technical and typographical errors. The proposed 
rule has been informed by input from the NRC, the U.S. Department of 
Energy (DOE), states, tribes, industry, environmental groups and other 
stakeholders, and would promote public health and protect groundwater 
by reducing the potential for groundwater contamination after 
production has ceased, and in aquifers adjacent to ISR facilities 
during uranium recovery.

DATES: Comments must be received on or before July 18, 2017.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2012-0788, by one of the following methods:
     www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     Email: [email protected].
     Fax: (202) 566-9744.
     Mail: Air and Radiation Docket, Environmental Protection 
Agency, Mailcode: 2822T, 1200 Pennsylvania Ave. NW., Washington, DC 
20460.
     Hand Delivery: EPA West Building, Room 3334, 1301 
Constitution Ave. NW., Washington, DC 20004. Such deliveries are only 
accepted during the Docket's normal hours of operation; special 
arrangements should be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2012-0788. The EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through www.regulations.gov 
or email. The www.regulations.gov Web site is an ``anonymous access'' 
system, which means the EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an email comment directly to the EPA without going through 
www.regulations.gov, your email address will be automatically captured 
and included as part of the comment that is placed in the public docket 
and made available on the Internet. If you submit an electronic 
comment, the EPA recommends that you include your name and other 
contact information in the body of your comment and with any disk or 
CD-ROM you submit. If the EPA cannot read your comment due to technical 
difficulties and cannot contact you for clarification, the EPA may not 
be able to consider your comment. Electronic files should avoid the use 
of special characters, any form of encryption, and be free of any 
defects or viruses. For additional information about the EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the Office of Air and 
Radiation Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave. 
NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 
4:30 p.m., Monday through Friday, excluding legal holidays. The 
telephone number for the Public Reading Room is (202) 566-1744, and the 
telephone number for the Air and Radiation Docket is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Ingrid Rosencrantz, Office of 
Radiation and Indoor Air, Radiation Protection Division, Mailcode 
6608T, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. 
NW., Washington, DC 20460; telephone number: (202) 343-9286; fax 
number: (202) 343-2304; email address: [email protected].

SUPPLEMENTARY INFORMATION: 

A. Does this action apply to me?

    The regulated categories and entities potentially affected by the 
proposed standards include:

[[Page 7401]]



----------------------------------------------------------------------------------------------------------------
                 Category                  NAICS code \1\              Examples of regulated entities
----------------------------------------------------------------------------------------------------------------
Industry:
    Uranium Ores Mining and/or                     212291  Facilities that extract or concentrate uranium from
     Beneficiating.                                         any ore processed primarily for its source material
                                                            content.
Leaching of Uranium, Radium or Vanadium            212291  Facilities that extract or concentrate uranium from
 Ores.                                                      any ore processed primarily for its source material
                                                            content.
----------------------------------------------------------------------------------------------------------------
\1\ North American Industry Classification System.

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be affected by this 
proposed action.

B. What should I consider as I prepare my comments to EPA?

    Submitting CBI. Do not submit CBI information to the EPA through 
www.regulations.gov or email. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information contained on 
a disk or CD ROM that you mail to the EPA, mark the outside of the disk 
or CD ROM as CBI and then identify electronically within the disk or CD 
ROM the specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information marked as CBI will not be disclosed except in accordance 
with procedures set forth in 40 CFR part 2.
    Tips for preparing your comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree, suggest alternatives, 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Submit your comments by the comment period deadline.

C. When would a public hearing occur?

    If anyone contacts the EPA requesting to speak at a public hearing 
concerning this proposed rule by February 21, 2017, the EPA will hold a 
public hearing. If you are interested in attending a public hearing, 
contact Mr. Anthony Nesky at (202) 343-9597. If a public hearing is 
held, the Agency will announce the date, time and venue on the EPA Web 
site at http://www.epa.gov/radiation/tenorm/40CFR192.html.

D. What documents are referenced in today's proposal?

    The EPA refers to a number of documents that provide supporting 
information for the Agency's proposed uranium and thorium mill tailings 
standards. All documents relied upon by the EPA in regulatory decision 
making may be found in the EPA docket (EPA-HQ-OAR-2012-0788) accessible 
via http://www.regulations.gov/. Other documents (e.g., statutes, 
regulations, and proposed rules) are readily available from public 
sources. The EPA documents listed below are referenced most frequently 
in today's proposal.
    EPA 402/D-14-001, ``Considerations Related to Post Closure 
Monitoring of Uranium In-Situ Leach/In-Situ Recovery (ISL/ISR) Sites,'' 
EPA, 2014.
    EPA 402/R-14-003, ``Economic Analysis: Proposed Revisions to the 
Health and Environmental Protection Standards for Uranium and Thorium 
Mill Tailings Rule (40 CFR part 192),'' EPA, 2016.
    EPA 530/R-09-007, ``Statistical Analysis of Groundwater Monitoring 
Data at RCRA Facilities--Unified Guidance,'' EPA, 2009.

E. Preamble Abbreviations

    The following abbreviations are used in this preamble:

ACL Alternate concentration limit
AEA Atomic Energy Act
BID Background information document
CFR Code of Federal Regulations
COOs Civilian owners and operators
DOE Department of Energy
EPA U.S. Environmental Protection Agency
FR Federal Register
ISR In-situ recovery, also known as in-situ leaching (ISL)
MCL Maximum contaminant level
NRC U.S. Nuclear Regulatory Commission
NUREG U.S. Nuclear Regulatory Commission Guides
OMB Office of Management and Budget
RAC Radiation Advisory Committee
RCRA Resource Conservation and Recovery Act
RFA Regulatory Flexibility Act
SAB Science Advisory Board
SDWA Safe Drinking Water Act
UCL Upper control limit
UIC Underground injection control
U.S. United States
UMRA Unfunded Mandates Reform Act of 1995
UMTRCA Uranium Mill Tailings Radiation Control Act of 1978
U.S.C. United States Code
USDW Underground source of drinking water

F. Organization of This Document

    The information presented in this preamble is organized as follows:

I. Executive Summary
    A. Background
    B. Purpose of the Regulatory Action
    C. Summary of the Major Provisions
    D. Summary of the Costs and Benefits
    E. Statutory Authority for This Action
II. Summary of the Proposed Rule
    A. Proposed Standards for Uranium ISR Operations
    B. Amendments to 40 CFR Part 192, Subparts C and D
III. Summary of Changes Made to the Original Proposal and Rationale 
for Those Changes
    A. Incorporation of the Initial and Long-Term Stability 
Standards in Proposed 40 CFR 192.52
    B. Groundwater Protection Standards
    C. Preoperational Monitoring Requirements
    D. Exempted Aquifers
    E. Excursions
    F. Initial and Long-Term Stability
    G. Corrective Action Program
    H. Costs and Economic Impacts
    I. Other Miscellaneous Changes
IV. Responses to Other Significant Comments That Did Not Result in 
Changes to the Original Proposal
    A. Authority To Set and Enforce Standards
    B. Need for New Standards for Uranium ISR Facilities
    C. Applicability
    D. The 95 Percent Confidence Level
V. Summary of Environmental, Cost and Economic Impacts
    A. Environmental Impacts of the Proposed Rule on Groundwater 
Quality
    B. Incremental Costs of Complying With the Proposed Rule
    C. Economic Impacts of the Proposed Rule on the Market for 
Uranium and the Uranium Industry

[[Page 7402]]

    D. Benefits of the Proposed Rule
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution or Use
    I. National Technology Transfer Advancement Act
    J. Executive Order 12898: Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations

I. Executive Summary

A. Background

    ISR is a method by which uranium is leached from underground ore 
bodies by the introduction of a solvent solution, called a lixiviant, 
through injection wells drilled into the ore zone. The process does not 
require excavation to extract the ore body from the ground or 
conventional milling to extract the uranium from the mined ore. After 
the lixiviant is injected underground, it passes through the ore zone 
and mobilizes the uranium. The uranium-bearing solution is then pumped 
to the surface via extraction wells, and the solution is processed to 
extract the uranium. During uranium production, the fluids injected to 
mobilize uranium change the chemistry of the aquifer from its original 
state, thereby mobilizing uranium and many other minerals and metals. 
Groundwater from the ISR production zone can migrate from the 
production zone and contaminate nearby groundwater with arsenic, 
barium, cadmium, chromium, lead, mercury, selenium, silver, nitrate, 
molybdenum, radium and uranium and other constituents. The standards 
proposed in this action would minimize the risk of undetected 
groundwater degradation and constituent migration during and after ISR 
operations have ceased.
    The EPA initially proposed new health and environmental protection 
standards for ISR facilities on January 26, 2015 (hereinafter 
``original proposal''), with the intention of finalizing the new 
standards in 2016.\1\ During the public comment period, the Agency 
received over 5,380 public comment letters from a wide range of 
stakeholders, with comments covering more than 80 different topics. In 
addition, during interagency review, more than 15 groups of 
stakeholders met with Office of Management and Budget (OMB) to voice 
comments on the original proposal. Commenters were particularly 
concerned about the default 30-year long-term monitoring requirement, 
felt that the optional method by which a licensee could request 
permission to cease long-term stability monitoring lacked sufficient 
specificity and believed the number of constituents required to be 
monitored was unreasonably burdensome. Several commenters thought the 
economic analysis underestimated the compliance costs and identified 
several additional categories of costs related to the long-term 
monitoring requirements they felt had been omitted from the analysis or 
were not representative of the actual costs incurred. Other commenters 
felt that several additional types of benefits should be included in 
the benefits analysis. After consulting with the NRC and other agencies 
and collecting additional information from industry, including 
participation in stakeholder meetings during interagency review with 
OMB, the EPA decided to make several changes to the original proposal 
and solicit additional public comment rather than finalize the rule 
with the changes. These changes are described in detail in section III 
of this preamble. The most significant changes include removing the 
default 30-year long-term monitoring provision and shifting to more of 
a RCRA Subtitle C corrective action framework as a model rather than a 
RCRA Subtitle C landfill framework, adding specific criteria and 
procedures for approving termination of long-term stability monitoring, 
deleting gross alpha particle activity from proposed Table 1 to subpart 
F, and allowing more flexibility for the NRC and Agreement States 
(hereinafter ``regulatory agency'') to determine on a site-specific 
basis the constituents for which concentration-based standards are set. 
The EPA has also sought to clarify how these standards under UMTRCA 
complement, and do not overlap with, the requirements of the SDWA. In 
addition to these more significant changes, the EPA has also made minor 
changes to the original proposal, such as moving the initial and long-
term monitoring standards to the proposed Sec.  192.52 and moving the 
requirements for alternate concentration limits (ACLs) to a separate 
section (see proposed Sec.  192.54). In addition to making changes to 
the rule text, the EPA also re-calculated the incremental compliance 
costs to incorporate estimated non-monitoring costs (e.g., licensing, 
leasing fees, continued surety, maintenance) and incorporated 
additional cost information provided by industry. The EPA re-evaluated 
the economic and energy impacts to both address the concerns raised by 
commenters and to incorporate the changes the Agency made to the 
standards since the original proposal was published. The revised costs 
and economic analysis for this proposal are discussed in section V of 
this preamble. While the majority of the changes to the original 
proposal are relatively minor, the EPA decided it was appropriate to 
re-propose the rule due to the high level of public interest in this 
rulemaking. This action provides the public an opportunity to review 
and provide comment on the changes made to the original proposal and 
allows the EPA to consider and make any additional changes based on 
those comments before finalizing the rule. The EPA is requesting 
comment on all aspects of this proposed action. Because this is a re-
proposal, and the EPA wishes to consider comments in context, please 
re-submit any relevant comments that may have been submitted on the 
original proposal.
---------------------------------------------------------------------------

    \1\ See 80 FR 4156, January 26, 2015.
---------------------------------------------------------------------------

    Several commenters also voiced concerns about information and data 
collection, including review of Agreement State regulatory programs 
that address ISRs. Although the EPA requested and collected data and 
information as outlined in section IV.B of this preamble, the Agency 
understands stakeholders concerns and are inviting stakeholders to 
submit additional data and analyses to further clarify the ISR process, 
including any additional monitoring results and analyses. The EPA will 
be collecting additional information on state regulatory programs, as 
recommended by several states.

B. Purpose of the Regulatory Action

    The EPA is proposing to add new health and environmental protection 
standards to regulations promulgated under UMTRCA. The proposed 
standards would regulate byproduct materials produced by ISR, including 
both surface and groundwater standards, with a primary focus on 
groundwater protection, restoration and stability. By explicitly 
addressing the most significant environmental and public health hazards 
presented by ISR activities, these proposed standards would address the 
shift toward ISR as the dominant form of uranium recovery that has 
occurred since the standards for

[[Page 7403]]

uranium and thorium mill tailings were promulgated in 1983.
    This rule would provide the necessary framework for consistent and 
sustainable protection of groundwater at ISR sites that will continue 
to have beneficial uses even if the aquifer has been exempted from 
protection under the SDWA.
    Groundwater is a scarce resource that is under increasing pressure, 
particularly in the arid West where groundwater has multiple uses, 
including for livestock production, crop irrigation, wildlife support, 
and human consumption. As groundwater resources are depleted, it 
becomes even more important to preserve those resources for future 
uses. Stakeholders in these areas are already finding a need to use 
groundwater that is of lower quality than desired.\2\ Groundwater that 
contains mineral resources, such as uranium, is not necessarily of such 
poor quality that it cannot be used for these purposes. By altering the 
chemical composition of groundwater, ISR creates reasons to be 
concerned about impacts to groundwater, which may be used for human 
drinking water, as well as for other purposes, such as livestock 
watering, crop irrigation and wildlife support.
---------------------------------------------------------------------------

    \2\ Application for Amendment of USNRC Source Materials License 
SUA-1601, Ross ISR Project, Kendrick Expansion Area, Crook County, 
Wyoming Docket #40-9091, 2015. pp. 3-100; USGS National Brackish 
Groundwater Information Sheet 2013; Advanced Treatment for 
Groundwater, Treating Low Quality Groundwater for Municipal Use, 
Water Engineering and Management, Nov. 2001.
---------------------------------------------------------------------------

    While an aquifer or portions of an aquifer may have been exempted 
from the protections of the SDWA, the aquifer may be needed in the 
future for human drinking water or other purposes. The standards 
proposed in this action do not require licensees to improve groundwater 
quality, only to provide confidence that: (1) In the area mined, the 
applicable constituent concentration standards (set at either 
background or health-based levels, whichever is higher), are met and 
remain stable; and (2) that uranium recovery operations will not 
endanger adjacent aquifers. EPA requests comment on whether 
groundwater, once it meets the constituent concentration standards, 
could or would potentially be used for drinking water or other 
purposes.
    UMTRCA directs the EPA to establish standards of general 
application, while the NRC is vested with implementing the EPA's 
standards under its licensing and enforcement authority. The EPA has 
previously promulgated general standards under UMTRCA for surface 
disposal of mill tailings from conventional uranium mining and milling, 
but ISR has become the dominant form of uranium extraction since the 
1990s. In 2006, an NRC commissioner observed that ISR-specific rules 
were needed to provide a national approach to bring predictability to 
the industry and state regulators. This view was not predicated on 
specific documented instances of groundwater contamination outside of 
the ISR production zone. The scope and level of protection of the SDWA 
differs from the UMTRCA. The purpose of the SDWA UIC program is to 
prevent endangerment of underground sources of drinking water. In 
determining whether an aquifer may be exempted from the protection of 
the SDWA, the EPA does not consider its use for purposes other than 
human drinking water (e.g. agriculture and other uses).
    As the highlighted portions of the SDWA regulations below show, 
there is no requirement to demonstrate poor water quality prior to 
issuing an aquifer exemption if the aquifer is or could be mineral 
producing. Under the SDWA's UIC regulations, aquifer exemptions are 
used to allow for mineral recovery in aquifers that would otherwise be 
protected as sources of drinking water when certain criteria are met. 
In the SDWA regulations, Sec.  146.4 provides that: ``An aquifer or a 
portion thereof which meets the criteria for an ``underground source of 
drinking water'' in Sec.  146.3 may be determined under Sec.  144.7 of 
this chapter to be an ``exempted aquifer'' for Class I-V wells if it 
meets the criteria in paragraphs (a) through (c) of this section. Class 
VI wells must meet the criteria under paragraph (d) of this section: 
(a) It does not currently serve as a source of drinking water; and (b) 
It cannot now and will not in the future serve as a source of drinking 
water because: (1) It is mineral, hydrocarbon or geothermal energy 
producing, or can be demonstrated by a permit applicant as part of a 
permit application for a Class II or III operation to contain minerals 
or hydrocarbons that considering their quantity and location are 
expected to be commercially producible; or (2) It is situated at a 
depth or location which makes recovery of water for drinking water 
purposes economically or technologically impractical; or (3) It is so 
contaminated that it would be economically or technologically 
impractical to render that water fit for human consumption; or (4) It 
is located over a Class III well mining area subject to subsidence or 
catastrophic collapse; or (5) The total dissolved solids content of the 
ground water is more than 3,000 and less than 10,000 mg/l and it is not 
reasonably expected to supply a public water system . . .''.
    In addition, although a portion of an aquifer may be exempted from 
the protections of the SDWA, there are no federal requirements 
preventing recovery and use of the water within exempted aquifers 
(including where ISR operations were previously conducted) for private 
drinking water supply, public water supply, or other uses.
    UMTRCA provides authority that can be used to protect aquifers 
during and after uranium recovery operations, regardless of whether the 
aquifer meets the definition of an underground source of drinking water 
(USDW) as defined in the EPA's UIC regulations or is exempted from the 
protections of the SDWA because it meets the existing regulatory 
criteria for exemption. UMTRCA directs the Administrator to promulgate 
``standards of general application for the protection of public health, 
safety, and the environment from radiological and non-radiological 
hazards associated with the processing, and possession, transfer, and 
disposal of byproduct material''.\3\ The statute further provides that 
``[i]n establishing such standards, the Administrator shall consider 
the risk to the public health, safety, and the environment, the 
economic costs of applying such standards, and such other factors as 
the administrator determines to be appropriate''.\4\
---------------------------------------------------------------------------

    \3\ See 42 U.S.C. 2022(b)(1).
    \4\ Ibid.
---------------------------------------------------------------------------

    In areas being mined for uranium, the SDWA does not require 
operators or regulators to collect the level of data needed to 
definitively confirm or disprove drinking water contamination or 
contamination of water for other purposes that may also impact humans, 
such as livestock watering and crop irrigation. Additionally, data that 
the EPA's UIC Program have received and evaluated at or near at least 
one ISR facility are consistent with an excursion beyond the boundary 
of the exempt aquifer (i.e., leading to elevated uranium levels outside 
the ISR facility area).
    The proposed 40 CFR part 192, subpart F would afford protections 
that do not currently exist under federal UIC regulations and would be 
complementary to existing regulations (e.g., UIC regulations) at 
uranium ISR facilities. For example, these new provisions proposed 
under the authority of UMTRCA would address corrective action, broad 
baseline development, monitoring well placement and aquifer 
restoration. The proposed provisions would also provide assurance that 
once

[[Page 7404]]

a facility decommissions a site, the water will meet the applicable 
constituent concentration standards in 40 CFR 192.52(c)(1) and will 
remain stable over time.
    The proposed 40 CFR part 192, subpart F also would ensure that 
industry maintains responsibility for protection of public health and 
the environment at uranium ISR facilities during and after uranium 
recovery operations.
    Since ISR alters the chemical composition of groundwater, it 
creates reasons to be concerned about risk to public health, safety and 
the environment from radiological and non-radiological hazards 
associated with the processing and disposal of byproduct material. 
Industry commenters and others say that there is no need for this rule 
because the EPA has not identified an instance in which an ISR 
operation has contaminated a source of drinking water. First, the 
Agency notes that this proposal addresses groundwater protection at ISR 
facilities both in and around the production zone and in surrounding 
aquifers. Focusing on the area of surrounding or adjacent aquifers, the 
EPA acknowledges that the Agency does not have sufficient information 
to document a specific instance of contamination of a public source of 
drinking water caused by an ISR. The Agency remains concerned, however, 
that the available data may not be capturing some instances of 
contamination that this proposed rule seeks to prevent. In other words, 
the Agency remains concerned that the lack of data does not demonstrate 
that no contamination is occurring, as industry commenters assert, but 
instead merely demonstrates the lack of data available to be able to 
make such a determination, especially where there has been limited 
post-restoration monitoring. The monitoring requirements in this 
proposal address the issue of lack of data.
    As explained in this preamble, in documents supporting this 
proposal, and as included in the docket for this proposal, there is 
ample evidence of excursions occurring as the result of ISR facilities. 
For example, data that the EPA's UIC Program have received and 
evaluated at or near at least one ISR facility are consistent with an 
excursion beyond the boundary of the exempt aquifer, leading to 
elevated uranium levels outside the ISR facility. In addition, there is 
data in the proposal's Background Information Document (BID) describing 
numerous excursions from several ISR facilities. Moreover, data in 
attachment 5 of the BID shows that several ISR facilities have not met 
background or health-based levels after restoration of the production 
zone. This data, when considered with the understanding that 
groundwater flow is often extremely slow, raises concerns that there 
has been insufficient monitoring conducted by these ISR facilities to 
identify the actual contamination that may be occurring or may occur in 
the future beyond the production zone and in sources of drinking water. 
The EPA solicits comment on industry's assertion that in no case have 
any excursions from ISR facilities resulted in contamination in 
aquifers being used as public sources of drinking water or for other 
uses. In addition, the EPA also requests comment on the kinds of data 
that would be needed to clearly link ISR operations with off-site 
contamination or that would support claims that there is no 
contamination of concern.
    The EPA notes that several NRC-regulated ISR facilities are 
continuing to work toward restoring groundwater, with restoration and 
monitoring being conducted for as long as 10 years after ceasing 
production. The Agency understands that restoration does not always 
meet original background levels as evidenced by the number of 
restoration goals exceeding background or the levels proposed in Table 
1 to subpart F. Additionally, the NRC acknowledges that efficiency 
could be gained by codifying its longstanding effective regulatory 
regime into regulations specific to ISR facilities. Historically, 
restoration and monitoring at ISR facilities are typically conducted 
for only a short period, and a longer period would provide more 
confidence to demonstrate that restoration of the affected groundwater 
is complete and that long-term stability is established with confidence 
before license termination. The initial and long-term stability 
monitoring and corrective action program included in this proposal 
would ensure that both of these requirements are met before ISR 
facilities can be decommissioned.
    At ISR facilities, the groundwater is directly impacted by the 
injection of lixiviant into the aquifer, which alters the geochemistry 
of the ore-bearing formation and increases the concentration of 
radionuclides and other metals in the water. Restoration activities 
attempt to restore the water quality for specific constituents to the 
applicable constituent concentration standards inside the production 
zone. Although subpart D to 40 CFR part 192 (hereinafter ``subpart D'') 
addresses contamination of aquifers, it explicitly addresses only 
contamination resulting from releases from uranium mill tailings 
impoundments used to store uranium byproduct material (e.g., 
conventional tailings impoundments, evaporation or holding ponds). 
Under the proposed subpart F, the licensee is required to restore 
groundwater in the production zone and surrounding aquifers to the 
applicable constituent concentration standards, to the extent possible, 
and to show some level of stability in the production zone prior to 
terminating the license. Because ISR changes the geochemistry of the 
groundwater, more rigorous stability-based standards together with 
corrective action programs are necessary to ensure that the production 
zone is restored and the applicable constituent concentration standards 
will continue to be met in the future.
    As described in the preamble to the 2015 proposal, the EPA 
solicited technical advice on key issues related to groundwater 
protection at ISR sites from the Radiation Advisory Committee (RAC) of 
the Agency's Science Advisory Board (SAB) (80 FR 156). The final report 
of the SAB/RAC, along with the EPA's response, can be found at: https://yosemite.epa.gov/sab/sabproduct.nsf/c91996cd39a82f648525742400690127/0314cef928df63cc8525775200482fa3!OpenDocument&TableRow=2.4#2.
    The SAB/RAC further considered this issue in 2015, and the Agency 
provided a detailed cross-walk to the 2015 proposed rule to show how 
the RAC's advice had been addressed. The SAB determined that no further 
action was needed on its part. See https://yosemite.epa.gov/sab/
sabproduct.nsf/02ad90b136fc21ef85256eba00436459/
8DA59AB1BE0EA14B85257E660071F2EF/$File/EPA-SAB-15-009+unsigned.pdf. In 
general, the BID addresses topics specifically addressed by the RAC as 
follows:
    The EPA has evaluated available data for all phases of ISR 
activities to address the SAB recommendations. Section 5 of the BID 
analyzes data and examines specific case studies for baseline and 
restoration, with particular attention given to establishment of 
baseline at the Dewey-Burdock site in South Dakota (Attachment A). 
Sections 6 and 7.8 and Attachment F provide extensive analysis of post-
restoration monitoring at the Crow Butte, Christensen, Highland, and 
Irigaray ISR sites, including regression analysis and statistical 
testing, and cumulative complementary distribution functions (CCDF). 
Results are presented by analyte, mine unit, and well.
    Section 6 addresses in detail SAB recommendations related to 
influences on groundwater chemistry and their effects on time frames 
for stability

[[Page 7405]]

monitoring, in particular fate and transport processes (speciation, 
including a case study of the Crow Butte facility, and solubility) and 
natural attenuation processes (adsorption, presence of secondary 
minerals, and biological mechanisms).
    This action also proposes amendments to certain provisions in the 
current rule, located at 40 CFR part 192. Specifically, this action 
addresses a ruling of the Tenth Circuit Court of Appeals, updates a 
cross-reference to another environmental standard and corrects other 
technical and typographical errors.

C. Summary of the Major Provisions

    The proposed rule includes a new subpart, subpart F, within 40 CFR 
part 192, which sets standards to protect groundwater at uranium ISR 
operations. Specifically, subpart F would set standards of general 
application to protect groundwater beyond the production zone during 
ISR operational and restoration phases and to ensure, once the 
wellfield is restored, that the restoration is complete and stable. The 
proposed rule includes three types of groundwater protection standards: 
(1) Constituent concentration standards, (2) initial stability 
standards, and (3) long-term stability standards. The proposed rule 
also includes monitoring requirements to establish statistically valid 
background water quality levels, excursion monitoring (for the 
operational and restoration phases), and monitoring to meet the initial 
and long-term stability standards. The proposed rule also includes a 
requirement to establish a corrective action program. Once finalized, 
these standards will be implemented by the regulatory agency. Once the 
regulatory agency incorporates the new standards into its regulations, 
or takes other appropriate steps to implement the new standards, this 
will provide a nationally consistent approach for the licensing process 
for ISR facilities.\5\
---------------------------------------------------------------------------

    \5\ Currently, the process used by the NRC for licensing ISR 
facilities is based on a combination of NRC regulations, site-
specific license conditions, and guidance. The process used by the 
Agreement States is based on regulations that vary by state for 
Agreement States that regulate ISR facilities. The NRC and many of 
the Agreement States have an established hearing process that allows 
for interested parties to request a hearing on the merits for the 
issuance and amendment of ISR facility licenses.
---------------------------------------------------------------------------

D. Summary of the Costs and Benefits

    The costs and benefits of this rulemaking are described briefly in 
Table 2 of this preamble. The costs reflect the difference in costs 
that would be incurred by ISR licensees under the proposed rule and 
costs that would be incurred by those facilities in the absence of the 
proposed rule. These incremental costs include added costs associated 
with monitoring and non-monitoring compliance actions under the 
proposed rule. For additional details on the incremental costs of the 
proposed rule, see section V.B of this preamble and section 3 of the 
document titled, ``Economic Analysis: Revisions to the Health and 
Environmental Protection Standards for Uranium and Thorium Mill 
Tailings Rule (40 CFR part 192),'' available in Docket ID No. EPA-HQ-
OAR-2012-0788.
    Complying with the proposed standards may require some existing ISR 
facilities to monitor groundwater for additional constituents that they 
are not currently monitoring. It would also require all ISR facilities 
to continue monitoring for a period of at least three years after the 
initial stability standard is met, and to conduct geochemical modeling 
and other analysis to demonstrate that the applicable constituent 
concentration standards will continue to be met in the future. The 
additional monitoring, modeling and analysis that would be required 
under this proposed rule could increase costs to ISR facilities. The 
additional years during which ISR facilities' license, surety, 
insurance, maintenance and other non-monitoring activities would have 
to be maintained would also increase costs. The EPA estimates the rule 
imposes annualized incremental costs on the ISR industry of 
approximately $11.9 million, including incremental monitoring costs and 
other non-monitoring costs.
    In its economic analysis, the EPA analyzed potential economic 
impacts of the rule on small entities (7 companies) using a range of 
assumptions about revenues of firms that own ISR facilities and costs 
of complying with the rule. The ``average revenue'' assumption is based 
on a market price of $55 per pound of U3O8e and production that is 25% 
of facility capacity. The ``low revenue'' assumption reflects revenues 
10% lower, and the high revenue assumption reflects revenues that would 
be 20% higher. With average costs, cost-to-sales ratios for small firms 
range from 0.7% to 3.1% for the low revenue scenario and from 0.5% to 
2.3% under the higher revenue scenario. These assumptions are intended 
to reflect the range of possible market conditions at the time when the 
rule would take effect (likely 2022 to 2025). Uranium market 
projections for the longer term are generally optimistic, reflecting 
growth in nuclear power in China and India and other countries; 57 new 
reactors are currently under construction with 65% of those projected 
to come online by 2020, and world-wide electricity consumption is 
projected to increase by 50% between 2013 and 2035 (only part of the 
increase is estimated to be met by nuclear energy) (Cameco, 2016). 
Outlook for the near term, however, is less positive, and the rate of 
recovery is uncertain.
    The EPA acknowledges that current uranium market conditions reflect 
depressed demand for uranium (due to lingering effects of the Fukushima 
incident, slow recovery of demand for electricity since the recession 
and low prices of substitute sources of energy) and some reliance on 
alternative (non-mine) sources of uranium. As a result, both the price 
and production of uranium have fallen. The long-term contract price of 
uranium has declined from around $60 per pound of U3O8e in 2012 to 
around $40 per pound in 2016. Spot prices have generally been 20% lower 
than contract prices. While market forces have driven the market price 
for uranium down by $20 to $30 dollars over the past 5 years, the rule 
is estimated to increase the cost of producing uranium using ISR 
methods by between $1.27 per pound U3O8e and $2.45 per pound of U3O8e, 
depending on the cost scenario.
    Because of these market conditions, several ISR facilities that are 
fully licensed and permitted are not currently producing uranium 
(including previously operational facilities that have been placed on 
standby and licensed and permitted facilities that have never gone into 
production), and development of new ISR facilities has largely been put 
on hold. Further, several ISR facilities have changed ownership in the 
past few years, as companies have been forced by market conditions to 
sell assets. In other words, some ISR firms currently are unable to 
profitably operate their facilities even in the absence of the rule. 
Several of the small firms report little or no revenue from sales of 
uranium. Even the relatively small incremental costs required to comply 
with the rule's provisions would not currently be affordable for such 
firms. This is not due to the magnitude of the rule's costs; it is due 
to current conditions in the world's economy generally and in the 
market for uranium in particular. The EPA considers that when the 
market for uranium recovers, as it is projected to do, ISR uranium 
production and price will increase; under those conditions, facilities 
that are currently unprofitable without the rule would likely be 
profitable with the rule's costs included. However, the EPA solicits 
public

[[Page 7406]]

comment on this rule's expected impact on the domestic ISR industry.
    The EPA compared these costs to the potential financial, ecological 
and human health benefits that would result from the proposed rule. 
Although the EPA is unable to quantify all the potential benefits, the 
EPA has identified several categories of benefits that can be 
attributable to the rule. The proposed rule would require groundwater 
at ISR facilities to be restored to the constituent concentration 
standards. Licensees would have to demonstrate stability of groundwater 
at those constituent concentration standards by completing at least 6 
years of monitoring (3 years to meet the initial stability standards 
plus 3 years to meet the long-term stability standards), and conduct 
modeling and analysis to demonstrate there is a reasonable assurance 
that the applicable constituent concentration standards will continue 
to be met in the future. This provision would minimize the risk of 
degradation of valuable groundwater resources and the potential 
exposure of human, domestic livestock or ecological receptors to 
radiological or other constituents. The proposed rule would also 
minimize the potential contamination of surface water and potential 
adverse health impacts resulting from such contamination. In addition, 
the proposed rule would avoid the potential costs associated with 
remediating contaminated aquifers; the cost of remediating a single 
plume of contamination could exceed the nationwide incremental costs 
associated with the proposed rule. The EPA estimated the cost savings 
due to avoided pump and treat remediation for hypothetical contaminant 
migration examples using the Conceptual Mine Unit, under three plume 
scenarios. For each scenario, the EPA computed the estimated cost 
savings by computing the difference in the cost of remediating a large 
plume (which might result if the plume were not detected for many 
years) and the cost of remediating a small plume discovered through 
monitoring prior to facility closure. The total estimated avoided costs 
over the entire remediation episode in this illustration, remediating 
three different sized plumes, ranged from $23.7 million to $608 
million, depending on the scenario. Annualized, these avoided costs 
range from $1.5 million to $11.1 million per year. To reflect the 
recognition that the proposed rule would reduce the likelihood of 
contamination relative to existing regulatory requirements, but not 
eliminate it entirely, the EPA further assumed a range of probability 
that the illustrative example contamination episode would be prevented 
by the proposed rule, but not identified under current requirements. 
The EPA assumed that the likelihood that the proposed rule would 
prevent the contamination, but current requirements would not, would 
range from 20% to 80%. Thus, the values shown in the table are 20% of 
the lower bound value ($0.3 million) to 80% of the upper bound value 
($8.9 million). However, because the EPA is unable to quantify the 
number or characteristics of contamination episodes that could occur in 
the absence of the proposed rule, the EPA is unable to estimate 
nationwide cost savings. Thus, the EPA has not compared these 
illustrative costs savings with the estimated national costs of the 
proposed rule or computed the net benefits.

 Table 2--Characterization of the Costs and Benefits of 40 CFR Part 192,
                                Subpart F
------------------------------------------------------------------------
   Incremental costs  (2015 dollars)                 Benefits
------------------------------------------------------------------------
Annualized costs of monitoring,          Protection of groundwater
 modeling and analysis ranging from       quality.
 $0.2 to $7.3 million.
Annual non-monitoring costs, including   Possible protection of surface
 license, surety, lease, maintenance:     water quality.
 $7.6 million.
                                         Potentially reduced risk of
                                          exposure of human or
                                          ecological receptors to
                                          radiological pollutants.
                                         Potentially reduced human
                                          health impacts, including
                                          cancer.
                                         Annualized avoided cost of
                                          single remediation effort
                                          would be between $0.3 million
                                          and $8.9 million.\1\
------------------------------------------------------------------------
\1\ The costs presented are not an estimate of the nationwide
  remediation cost savings. They are the estimated cost of remediation
  for a simplified example of a single wellfield, for three contaminant
  plume scenarios.

E. Statutory Authority for This Action

    The EPA is proposing the new standards and amendments under its 
authority in section 275 of the Atomic Energy Act (AEA), as added by 
section 206 of UMTRCA.\6\ Section 206 of UMTRCA authorizes the EPA to 
promulgate standards of general application for the protection of 
public health, safety, and the environment from radiological and non-
radiological hazards associated with (a) residual radioactive materials 
located at specifically listed inactive uranium milling sites, nearby 
contaminated ``vicinity properties,'' and depository sites for such 
materials selected by the Secretary of Energy (commonly referred to as 
Title I sites); and (b) the processing and the possession, transfer and 
disposal of byproduct material at sites that process ores primarily for 
their uranium and thorium source material content \7\ or disposal of 
such byproduct material (commonly known as Title II sites). See 42 
U.S.C. 2022.\8\ These public health, safety and environmental standards 
are contained in 40 CFR part 192 and are implemented by the NRC and its 
Agreement States, as well as the DOE.
---------------------------------------------------------------------------

    \6\ See 42 U.S.C. 2022.
    \7\ ``Source material'' is defined as ``(1) Uranium or thorium 
or any combination of uranium or thorium in any chemical or physical 
form; or (2) Ores that contain, by weight, one-twentieth of one 
percent (0.05 percent), or more, of uranium or thorium, or any 
combination of uranium or thorium.'' See 42 U.S.C. 2014(z), 10 CFR 
20.1003.
    \8\ Although the statute covers both uranium and thorium mill 
tailings sites, there are no existing thorium mill tailings sites.
---------------------------------------------------------------------------

    Title I of UMTRCA covers inactive uranium milling sites, nearby 
contaminated ``vicinity properties'' and depository sites. The EPA was 
directed to set general standards that are consistent with the 
requirements of the Solid Waste Disposal Act (later amended as the 
Resource Conservation and Recovery Act, or RCRA) to the maximum extent 
practicable. The Title I standards are located in EPA regulations at 40 
CFR part 192, subparts A-C.
    This proposed rule is based on Title II of the Act, which covers 
operating uranium processing or disposal facilities licensed by the NRC 
or NRC Agreement States. The EPA has authority to promulgate standards 
of general

[[Page 7407]]

application to protect public health, safety and the environment from 
hazards associated with processing, possession, transfer and disposal 
of byproduct material at such facilities. Such standards must address 
both radiological and non-radiological hazards; further, standards 
applicable to non-radiological hazards must be consistent with the 
standards required under Subtitle C of the Solid Waste Disposal Act 
(i.e., RCRA).\9\ The NRC is required to implement these standards at 
Title II sites. See 42 U.S.C. 2022(b), (d).
---------------------------------------------------------------------------

    \9\ With the restriction that the EPA not require any RCRA 
permit for the processing, possession, transfer or disposal of 
byproduct material at such facilities.
---------------------------------------------------------------------------

II. Summary of the Proposed Rule

A. Proposed Standards for Uranium ISR Operations

    In today's action, the EPA is proposing to add a new subpart, 
subpart F, to the EPA's existing regulations for uranium and thorium 
mill tailings in 40 CFR part 192. The proposed standards would apply 
only to ISR facilities and are designed to protect public health, 
safety and the environment from contamination associated with their 
uranium recovery operations. The proposed standards are summarized in 
the following sections.
1. Who is subject to the proposed standards?
    Subpart F would apply to new and existing ISR facilities, including 
facilities that have temporarily ceased uranium production (i.e., ISR 
facilities in standby). Subpart F would not apply to Title I sites, 
facilities that use only conventional or heap leach uranium production 
methods, or Title II ISR wellfields that have already begun or 
completed restoration within three years of the rule's effective date. 
The NRC and NRC Agreement States would develop regulations or take 
other appropriate steps to implement the new subpart F standards, once 
they are finalized.
2. What are the proposed surface and groundwater standards for ISR 
facilities?
    In the proposed new subpart, the EPA has cross-referenced subpart D 
to indicate that the existing standards for protecting surface waters 
and groundwater also apply to ISR facilities. The subpart D standards 
were initially written to address the handling, storing and disposal of 
byproduct material produced from the processing of uranium ore.
3. What are the proposed groundwater protection standards for ISR 
facilities?
    Consistent with the original proposal, this proposed rule includes 
the following three types of groundwater protection standards for ISR 
facilities: (1) Constituent concentration standards (including 
provisions for Alternate Concentration Limits (ACLs)); (2) initial 
stability standards; and (3) long-term stability standards.\10\ These 
standards of general application would apply to all ISR facilities and 
are intended to prevent the mobilization of uranium and other 
constituents beyond the production zone during the operational and 
restoration phases and to ensure, once the wellfield is restored, that 
the restoration is complete and stable, both immediately after 
restoration and into the foreseeable future.
---------------------------------------------------------------------------

    \10\ The initial stability standards and the long-term stability 
standards were originally included in the proposed monitoring 
programs section of the rule. The initial stability standards 
(called ``short-term stability'' in the proposal) was proposed in 40 
CFR 192.53(d)(2)(i) and the long-term stability standards were 
proposed in 40 CFR 192.53(e)(1)(iii). To improve clarity, the 
initial and long-term stability standards have been moved to 40 CFR 
192.52(c)(2) and (c)(3), respectively.
---------------------------------------------------------------------------

    Constituent Concentration Standards. The constituent concentration 
standards are numerical concentration limits for a set of groundwater 
constituents that are present in or affected by ISR operations. When 
corrective action is necessary after an excursion has occurred, the 
licensee would have to clean-up the groundwater to meet these proposed 
constituent concentration standards. In addition, during the 
restoration and stability monitoring phases, these proposed constituent 
concentration standards would be the levels to which restoration must 
be achieved and maintained.
    In this proposal, the appropriate constituent concentration 
standards for an ISR facility would be determined by the regulatory 
agency for each licensee. The constituent concentration standard for 
each constituent would be the highest level of the following values: 
(1) The lowest regulatory standard for that constituent found in 40 CFR 
141.62, 141.66, 141.80, 143.3, 264.94, and Table 1 to subpart A of 40 
CFR part 192; (2) that constituent's preoperational background level in 
the wellfield; or (3) an ACL for that constituent as approved by the 
regulatory agency. When setting the constituent concentration standards 
for a licensee, the regulatory agency would consider a minimum of 12 
constituents. The regulatory agency would not be required to set 
standards for all 12 constituents, but the regulatory agency would have 
to set a constituent concentration standard for each of the listed 
constituents that is present in or could be affected by the ISR 
operation. The regulatory agency would have to identify the 
constituents during the preoperational monitoring phase. The regulatory 
agency would need to consider the following 12 constituents when 
setting the constituent concentration standards for an ISR operation: 
Arsenic, barium, cadmium, chromium, lead, mercury, selenium, silver, 
nitrate (as N), molybdenum, combined radium-226 and radium-228, and 
uranium (total). The original proposal included gross alpha particle 
activity (excluding radon and uranium), however, this constituent was 
not included in this proposal for the reasons explained in section 
III.3.2. The EPA is specifically requesting comment on the deletion of 
gross alpha particle activity (excluding radon and uranium) from the 
list of constituents. The regulatory agency may also set constituent 
concentration standards for additional constituents beyond these 12 
constituents for situations where the regulatory agency considers 
concentration standards for other constituents necessary due to 
facility-specific conditions.
    Once these proposed standards are finalized and the regulatory 
agency implements the subpart F standards, the constituent 
concentration standards would have to be established in accordance with 
the provisions in Sec.  192.52 for all new wellfields and expansions to 
existing wellfields, and for all existing wellfields that are already 
operating, excluding those that are in and remain in the restoration 
and stability monitoring phases, as of the date three years after the 
effective date of this rule. Wellfields that begin and remain in 
restoration, initial stability monitoring or long-term stability 
monitoring at a licensed facility prior to the date three years after 
the effective date of the rule would need to meet the standards 
established when their license was issued or as otherwise specified by 
the regulatory agency.
    Alternate Concentration Limits. Consistent with the original 
proposal, this proposal would allow licensees the flexibility to 
request ACLs when the best practicable active restoration has taken 
place, as determined by the regulatory agency, and the licensee 
demonstrates one or more of the constituent concentration standards 
cannot be met through further groundwater restoration. The best 
practicable active restoration must be used before the licensee can 
apply to the regulatory agency for a provisional ACL. Under this 
proposal, once the regulatory

[[Page 7408]]

agency establishes a provisional ACL, and the licensee can demonstrate 
the ACL has been met for three consecutive years, the regulatory agency 
can consider finalizing the ACL.
    It must be understood that granting an ACL is an indication that 
restoration has not returned the affected groundwater to either 
preoperational background levels or other health-based levels. However, 
there are some overarching principles that must be considered when 
establishing ACLs. In general, as described in Sec.  192.54, any 
provisional or final ACL should not pose a substantial present or 
potential hazard to human health and the environment, as determined by 
the regulatory agency. Points of exposure are defined in the proposal 
as locations identified by the regulatory agency that represent 
possible future areas of exposure where the receptor can come into 
contact with groundwater (e.g., areas of recoverable groundwater). The 
groundwater at the point of exposure should be protective of the 
receptor. The EPA specifically requests comment on this approach, 
especially with regard to the overall regulatory model of how ACL 
application would work, the definition of points of exposure and the 
use of this term, and the overall environmental, human health and 
safety protection goals for setting and using ACLs. Commenters, 
including interagency commenters, raised questions concerning the 
integration of an aquifer exemption under the SDWA and point of 
exposure as it was defined in the EPA's original proposal and the 
differing jurisdictions of the SDWA and UMTRCA.
    Under this proposal, when considering setting an ACL, the 
regulatory agency would consider a list of factors, including potential 
adverse effects on groundwater quality, physical and chemical 
characteristics of the constituent, including the potential for 
migration, hydrogeological characteristics of the area, proximity and 
withdrawal rates of local groundwater users, current and anticipated 
future uses of the groundwater, existing quality of the groundwater, 
potential for health risks, potential to damage wildlife, crops, 
vegetation and physical structures, the persistence and permanence of 
the potential effects, adverse impacts on hydraulically connected 
surface water (including several factors) and the presence of any USDW.
    The EPA expects that setting a provisional and final ACL will 
require consideration of the hydrologic and other characteristics of 
the wellfield and surrounding area, any potential areas of groundwater 
withdrawal or discharge and be protective of human health into the 
foreseeable future.
    Consistent with UMTRCA, the Tenth Circuit Court of Appeals in the 
Environmental Defense Fund v. NRC decision,\11\ and current practice, 
the regulatory agency would be responsible for reviewing and approving 
ACL requests. Although not a proposed provision, the EPA considers it 
good practice for the regulatory agency to make public the information 
used for determining whether a provisional ACL is warranted and at what 
concentration before approving a provisional ACL. Although the NRC has 
not issued an ACL to date for an ISR wellfield, the NRC current 
practice would result in making such information publicly available and 
would support the EPA's effort to increase the effectiveness of the 
rule.
---------------------------------------------------------------------------

    \11\ 866 F.2d 1263 (10th Cir. 1989).
---------------------------------------------------------------------------

    Stability Standards. In addition to the constituent concentration 
standards discussed above, licensees would also need to meet initial 
and long-term stability standards. The initial stability standards 
would require three consecutive years of quarterly monitoring results 
showing no statistically significant increasing trends exceeding the 
ISR facility's constituent concentration standards at the 95 percent 
confidence level. The long-term stability standards would require an 
additional three consecutive years of quarterly monitoring results 
showing no statistically significant increasing trends exceeding the 
ISR facility's constituent concentration standards at the 95 percent 
confidence level and also would require the licensee to demonstrate 
through geochemical modeling and other analysis that the applicable 
constituent concentration standards will continue to be met in the 
future. Consistent with the original proposal, the regulatory agency 
issuing the license would be responsible for determining whether there 
is reasonable assurance that the applicable constituent concentration 
standards will continue to be met at the ISR facility in the future.
4. What are the proposed general and preoperational monitoring 
requirements?
    In order to understand the hydrogeology and geochemistry of the 
production zone and surrounding area and to set the preoperational 
background for the constituent concentration standards, licensees would 
develop a preoperational monitoring plan for the wellfield. The 
preoperational monitoring plan would characterize the hydrogeology and 
geochemistry of the area, support identification of any potential 
future excursions from the production zone during the operational and 
restoration phases, and support the monitoring, modeling and other 
analysis as determined by the regulatory agency to be necessary to meet 
the proposed initial and long-term stability standards.
    The preoperational monitoring determines the groundwater flow 
regime and the background groundwater concentrations of the 12 listed 
constituents and any additional constituents required by the regulatory 
agency. The data collected during this period would be used to select 
the indicator parameters and set the upper control limits (UCLs) for 
these parameters. The indicator parameters would be monitored during 
the operational and restoration phases and, when the UCL is exceeded, 
indicate that lixiviant or other constituents are migrating beyond the 
production zone. The preoperational monitoring would be conducted at 
wells within the production zone and in areas surrounding the 
production zone, including aquifers immediately above and below the 
production zone, and in areas laterally adjacent to the production 
zone, both up and down gradient. A sufficient number of wells would 
have to be installed and monitored so that the sampling data collected 
could be used to statistically determine appropriate background levels 
and support statistical tests, modeling and other analysis determined 
by the regulatory agency to be necessary during the operational, 
restoration, initial stability and long-term stability phases. The 
licensee would collect a sufficient number of sample sets per well over 
a time period sufficient to indicate a statistically valid background 
concentration that is not affected by well installation or temporal 
variations. In areas where temporal (e.g., seasonal) variation could 
occur (e.g., ore zones in unconfined aquifers), the preoperational 
monitoring would be conducted for at least one year in a sufficient 
number of wells to adequately represent the hydrologic system.
    In addition to monitoring the concentrations of the constituents 
required by the regulatory agency, the licensee would collect any other 
data necessary to establish background conditions to support future 
modeling and other analysis in preparation to meet the proposed long-
term stability standards in Sec.  192.52(c)(3).

[[Page 7409]]

5. What are the proposed monitoring requirements for the operational 
and restoration phases?
    To ensure that no lixiviant, uranium or other constituents are 
migrating outside of the production zone, the licensee would monitor 
groundwater for specified indicator parameters at a set of monitoring 
wells surrounding the production zone. These excursion monitoring wells 
would be located around the perimeter of the production zone and in any 
aquifers immediately above or below the production zone that may be 
impacted by ISR activities. That is, the excursion monitoring wells 
need to surround the production zone in three dimensions. The excursion 
monitoring wells would be of sufficient number, density, and placement 
to detect the possibility of an excursion from the production zone. The 
regulatory agency would be responsible for reviewing and, when 
appropriate, approving well placement and installation, indicator 
parameters, the UCLs for the indicator parameters, as well as 
background levels for constituents for which constituent concentration 
standards are set.
    Typical indicator parameters used to identify possible excursions 
include chloride, conductivity and total alkalinity. Other parameters 
may be appropriate as well. In the proposed rule, an excursion has 
occurred when either (1) two indicator parameters exceed their 
respective UCLs in any excursion monitoring well; or (2) as determined 
by the regulatory agency, one indicator parameter significantly exceeds 
its UCL in any excursion monitoring well. The EPA specifically requests 
comment on this proposed definition of an excursion and suggestions for 
other approaches for determining when an excursion has occurred. If an 
excursion occurs, the licensee would need to initiate corrective action 
in accordance with its facility-specific corrective action program and 
would be required to test for all constituents for which a constituent 
concentration standard was established. At a minimum, the constituents 
from Table 1 that are typically present and that warrant monitoring 
during an excursion are uranium, radium, arsenic and selenium. The 
regulatory agency would be allowed to identify additional constituents 
that are present in the groundwater and need to be monitored on a 
facility-specific basis.
    In some cases, a licensee may have temporarily stopped recovering 
uranium and the facility may be in a phase commonly called ``standby'' 
by the industry. In such instances, the EPA considers the facility to 
be in the operational phase and the licensee would be required under 
the proposed rule to continue monitoring and taking actions, such as 
maintaining an inward hydraulic gradient, to prevent excursions.
6. What monitoring is proposed for the initial stability standards?
    Once the licensee believes restoration is near completion and 
believes they can, over time, demonstrate that the proposed initial 
stability standards in Sec.  192.52(c)(2) can be met, the EPA expects 
that the licensee would begin monitoring the groundwater constituent 
concentrations throughout the wellfield to determine when the initial 
stability standards have been met. To meet the proposed initial 
stability standards, the licensee would need to demonstrate stability 
by providing three consecutive years of quarterly monitoring results 
showing no statistically significant increasing trend exceeding each 
established constituent concentration standard. For all monitored 
constituents, this trend would need to be demonstrated at the 95 
percent confidence level. The licensee would be required to develop and 
implement a compliance monitoring program approved by the regulatory 
agency that identifies compliance points encompassing the entire 
affected area of the wellfield.
    The purpose of the proposed stability monitoring is to determine 
whether constituent levels in the entire affected area of the 
wellfield, including the production zone, have returned to levels below 
the established constituent concentration standards and stable 
conditions are established. Hence, compliance wells must include wells 
previously used as excursion monitoring wells and those previously used 
as production related wells. The location of the compliance wells used 
to determine compliance with the initial stability standards would need 
to be approved by the regulatory agency and would need to be located in 
areas likely to be affected by ISR operations. Therefore, compliance 
well would be located within the production zone, adjacent to the 
production zone and in aquifers located immediately above and below the 
production zone, as approved by the regulatory agency. The number and 
location of compliance wells will vary depending on the size and 
characteristics of the wellfield, but should encompass the entire 
affected area of the wellfield.
    To meet the proposed initial stability standards of Sec.  
192.52(c)(2), measurements would need to be taken quarterly at each 
well. If one or more constituents exceed a constituent concentration 
standard during the initial stability monitoring, then the licensee 
would follow the corrective action program approved by the regulatory 
agency. When monitoring to assess whether the initial stability 
standards have been met, constituent concentrations may fluctuate above 
the respective standard. The corrective action program should address 
the possibility of and the regulatory agency should consider potential 
responses to an exceedance of the constituent concentration standards 
while the licensee is establishing a statistically adequate trend. The 
regulatory agency may allow continued monitoring, if appropriate, or 
require the licensee to undertake a remedy. Regardless of the action 
taken, the licensee would be required by the proposed standards to 
achieve three consecutive years of stable measurements. Furthermore, as 
in all phases, if lixiviant or other constituents escape the production 
zone, the licensee would be required to take the necessary actions to 
return the aquifer to below the constituent concentration standards.
    When the licensee demonstrates three consecutive years of quarterly 
monitoring results showing no statistically significant increasing 
trends exceeding the established constituent concentration standards at 
the 95 percent confidence level, then the facility has met the proposed 
initial stability standards and the licensee may, upon the 
determination of the regulating agency that the initial stability 
standards have been satisfied, begin long-term stability monitoring.
7. What are the proposed requirements for the long-term stability 
standards?
    During the proposed long-term stability monitoring, the licensee 
continues quarterly monitoring to demonstrate compliance with the 
constituent concentration standards using the compliance wells 
established for monitoring during the initial stability phase. To meet 
the proposed long-term stability standards in Sec.  192.52(c)(3), the 
licensee would need to first demonstrate quarterly monitoring results 
for a minimum of three consecutive years showing no statistically 
significant increasing trends exceeding the established constituent 
concentration standards (including any approved ACLs) at the 95 percent 
confidence level.
    To approve cessation of long-term stability monitoring, the 
regulatory agency would be responsible for determining whether there is 
reasonable

[[Page 7410]]

assurance that the applicable constituent concentration standards will 
continue to be met at the ISR facility in the future. To make this 
determination, an analysis of geochemical hydrologic and other 
conditions within and around the production zone should be prepared by 
the licensee and reviewed by the regulatory agency. The EPA requests 
comment on the specificity of the regulatory language for this final 
determination of stability and the elements to be considered. In 
general, the EPA expects that the review should examine various 
features within the production zone and use a combination of sample 
collection and analysis of the restored production zone, data review, 
geochemical modeling and analysis to integrate the various types of 
data and to assess groundwater conditions. Various types of geochemical 
models may be employed from saturation index calculations to reactive 
transport models that can evaluate changing hydrologic and geochemical 
conditions within the wellfield. The EPA believes the licensee's long-
term stability assessment should include the following elements:
    (i) Conceptual hydrogeochemical modeling for the mine unit/
production zone;
    (ii) Ground water and solid (core) data used for geochemical 
model(s), including field parameters;
    (iii) Incorporation of ground water data in an initial geochemical 
model (i.e., saturation indices calculations and assessment);
    (iv) Demonstration that stability (mainly reduction-oxidation or 
redox) conditions can be maintained in the production zone;
    (v) Demonstration that ground water migrating into the production 
zone will not significantly change the geochemical stability within the 
production zone;
    (vi) Demonstration of alternative geochemical conditions that 
demonstrate stability (uranium and other elements); and
    (vii) Inter-relationships and contradictory claims (unintended 
consequences) for these various elements need to be identified and 
assessed in the context of the conceptual hydrogeochemical model.
    The EPA requests comment on whether these seven elements should be 
required at all sites and thus included in the standards in 40 CFR part 
192, subpart F.
    The regulatory agency has the responsibility to establish the 
timeframe for long-term stability monitoring, based on facility-
specific conditions at the wellfield and the results of long-term 
stability monitoring, modeling and analysis. If one or more 
constituents exceed their concentration standard (or approved ACL) or 
show a statistically significant increasing trend during the long-term 
stability phase, the regulatory agency may require the licensee to take 
corrective action as specified in the facility's corrective action 
program.
8. What are the proposed corrective action requirements?
    Each licensee would be required to develop a corrective action 
program that addresses the actions it will take when an excursion is 
detected during the operational and restoration phases, or when 
monitoring during the stability phases shows a concentration higher 
than the established constituent concentration standard or a 
statistically significant increasing trend. Corrective action, as 
identified in the corrective action program and approved by the 
regulatory agency, would be initiated as soon as practicable and would 
begin within 60 days of the date the excursion or exceedance of a 
constituent concentration standard is detected. The corrective action 
program would consider a range of possibilities for action from the 
operational phase through the long-term stability monitoring phase. 
Corrective action may include removing or treating in place any 
constituents that exceed the constituent concentration standards (or 
approved ACL). If the concentration of one or more constituents exceeds 
the constituent concentration standard (or approved ACL) during long-
term stability monitoring, the licensee would be required to take 
corrective action to restore the groundwater to comply with the 
proposed constituent concentration standards; once restoration is 
complete, the licensee would begin again with initial stability 
monitoring.

B. Proposed Amendments to 40 CFR Part 192, Subparts C and D

    As part of this rulemaking, the EPA is also proposing several minor 
amendments to the provisions in 40 CFR part 192, subparts C and D. 
These amendments are described in this section and are not related to 
the new standards for ISR facilities added in 40 CFR part 192, subpart 
F.
1. What are the proposed revisions to Sec.  192.32(a)(2)(v)?
    This proposed rule deletes the requirement in Sec.  192.32(a)(2)(v) 
for the NRC to obtain concurrence from the EPA before the NRC may 
approve alternative requirements or proposals under AEA section 
84(c).\12\ As the EPA stated in the proposal, this portion of Sec.  
192.32(a)(2)(v) was effectively struck down by the Tenth Circuit Court 
of Appeals in Environmental Defense Fund vs. U.S. Nuclear Regulatory 
Commission, 866 F.2d 1263 (10th Cir. 1989). In its decision, the Court 
ruled that the NRC has authority under AEA section 84(c) to 
independently make these facility-specific determinations, and that the 
NRC has no duty to obtain the EPA's concurrence.
---------------------------------------------------------------------------

    \12\ See 42 U.S.C. 2114(c).
---------------------------------------------------------------------------

2. What are the proposed miscellaneous updates and corrections?
    The EPA is also proposing several minor amendments to subparts C 
and D to correct cross-references, typographical and punctuation 
errors. These amendments include the following:

------------------------------------------------------------------------
                                 Description of
          Section              proposed technical       Rationale for
                                   correction            correction
------------------------------------------------------------------------
                       40 CFR part 192, subpart C
------------------------------------------------------------------------
192.20(b)(3)...............  Delete reference to    The Grand Junction
                              ``Pub. L. 92-314 (10   Remedial Action
                              CFR part 712)''.       Criteria to which
                                                     this reference
                                                     applied no longer
                                                     exist in the CFR.
192.20(b)(3)...............  Delete language        Methods were found
                              referencing sealants   to be ineffective
                              and filtration.        and are no longer
                                                     recommended as
                                                     remedial options
                                                     for radon
                                                     mitigation.
------------------------------------------------------------------------
                       40 CFR part 192, subpart D
------------------------------------------------------------------------
Sec.   192.31(a)...........  Replace ``Uranium      Corrects a
                              Mill Tailings          typographical
                              Rediation Control      error.
                              Act'' with ``Uranium
                              Mill Tailings
                              Radiation Control
                              Act''.

[[Page 7411]]

 
Sec.   192.31(f)...........  Replace ``pile         Corrects a
                              containing uranium     typographical
                              by product             error.
                              materials'' with
                              ``pile containing
                              uranium byproduct
                              materials''.
Sec.   192.32(a)(2)(v).....  Replace ``laser        Corrects a
                              fusion, of soils,      punctuation error.
                              etc.'' with ``laser
                              fusion of soils,
                              etc.''.
------------------------------------------------------------------------

III. Summary of Changes Made to the Original Proposal and Rationale for 
Those Changes

    As previously indicated, the standards proposed in today's action 
differ from those standards proposed on January 26, 2015 (80 FR 4156). 
This section of the preamble describes the most significant changes 
made to the original proposal and the rationale for those changes. Many 
of the changes were made in response to public comments and additional 
information provided by stakeholders. In response to the original 
proposal, the EPA received over 5,380 public comment letters on the 
proposed amendments, of which 5,192 were duplicate letters. The 
comments covered more than 80 different topics and were submitted by a 
wide range of stakeholders, including private citizens, public interest 
groups, industry, Indian tribes, state agencies and other federal 
agencies. For the original proposal, the EPA also held public hearings 
in Corpus Christi, TX (April 14, 2015); Washington, DC (March 10, 
2015); Casper, WY (May 13 and 14, 2015); and Chadron, NE (May 12, 
2015), where 114 stakeholders provided comments.
    In addition to describing the changes made to the original 
proposal, this section also discusses and responds to the significant 
comments that resulted in many of those changes. The significant 
comments received that did not result in changes to the original 
proposal are discussed in section IV of the preamble.

A. Incorporation of the Initial and Long-Term Stability Standards in 
Proposed 40 CFR 192.52

    For clarity, the EPA has restructured the proposed rule to move the 
initial and long-term stability standards that were originally included 
with the monitoring requirements in Sec.  192.53 to the standards in 
Sec.  192.52. The initial stability standards (called ``stability'' or 
``short-term stability'' in the original proposal) were proposed in 
Sec.  192.53(d)(2)(i), and the long-term stability standards were 
proposed in Sec.  192.53(e)(1)(iii). In this proposal, the initial and 
long-term stability standards have been moved to Sec.  192.52(c)(2) and 
(c)(3), respectively.

B. Groundwater Protection Standards

1. Clarifications to Terminology
    The original January 2015 proposal listed 13 constituents for which 
a facility-specific concentration limit must be set for each 
constituent that is present in the groundwater. In the original 
proposal, the EPA referred to these facility-specific concentration 
limits as ``groundwater protection standards'' and ``restoration 
goals'' (see Sec.  192.52(c) of the original proposed rule). Since the 
use of these two terms may lead to confusion, the EPA is no longer 
using the term ``restoration goals'' but is instead using the term 
``constituent concentration standards'' throughout the proposed rule to 
refer to these facility-specific concentration limits.
    In the original proposed rule, the EPA also used the phrase 
``identified in the groundwater'' when referring to constituents for 
which constituent concentration standards should be established (see 
Sec.  192.52(c) of the original proposed rule). The EPA intended 
concentration standards to be set for any constituent that is present 
in groundwater before or after ISR activities have begun. Some 
constituents may not be initially present in the groundwater but may 
become soluble only after lixiviant is injected and groundwater 
chemistry has been altered. However, the phrase ``identified in the 
groundwater'' could be misinterpreted to mean only those that are 
present during preoperational monitoring. For clarification, the EPA 
has revised the original proposal to specify that constituent 
concentration standards must be established for all constituents that 
are ``identified as present or affected by operations in the 
groundwater.''
2. Gross Alpha Particle Activity
    In the original proposal, the list of constituents in Table 1 of 
subpart F included gross alpha particle activity.\13\ Several 
commenters opposed listing gross alpha particle activity, stating that 
it provided no useful information that could not be otherwise obtained 
from the required measurement of radionuclides, such as radium 226. In 
addition, commenters noted the wide uncertainty range for the 
radiochemistry analytical methodology currently used to measure gross 
alpha activity.
---------------------------------------------------------------------------

    \13\ The SDWA MCL of 15 pCi/L for gross alpha particle activity 
excludes alpha particle activity contributions from radon and 
uranium.
---------------------------------------------------------------------------

    The EPA tends to agree with commenters who suggested that gross 
alpha measurements are likely to be of limited value when other 
radionuclides of concern are also being sampled. The Agency also 
recognizes that the uncertainty associated with gross alpha 
measurements may be greater than those for other constituents, which 
may make the application of statistical tests especially complicated. 
However, gross alpha is specified as a constituent to be sampled in 
other subparts of 40 CFR part 192, and it does have a maximum 
contaminant level (MCL), which cannot be overlooked. Further, there may 
be instances where gross alpha measurements provide information 
regarding the presence of decay products such as lead and polonium. The 
EPA is specifically requesting comment on the deletion of gross alpha 
particle activity as one of the original proposal's 13 constituents, 
whether it provides useful information, and how measurement uncertainty 
might be addressed.

C. Preoperational Monitoring Requirements

    In the original proposal, the EPA included provisions for 
preoperational monitoring that were designed to characterize the 
groundwater flow regime, geology and geochemistry. The EPA originally 
proposed that preoperational monitoring would measure the background 
concentrations of radiological and non-radiological constituents, 
including all the constituents listed in Table 1 of subpart F, and any 
additional constituents or parameters specified by the regulatory 
agency or needed for calculations or groundwater modeling. The original 
proposal required preoperational monitoring be continued for a minimum 
of one year in order to account for any temporal changes occurring in 
the aquifer. The EPA also proposed some requirements for the location 
of the wells, requiring monitoring wells to be located in overlying 
aquifers, underlying aquifers, inside the exempted aquifer and outside 
the exempted aquifer, including areas that

[[Page 7412]]

are up- and downgradient from the future production zone. The original 
proposal specified standards for installing the monitoring wells, 
including requirements for casings and for sealing the wells to prevent 
contamination.
1. Duration of Preoperational Monitoring
    The EPA received a number of comments on the duration of the 
proposed preoperational monitoring requirements. Some commenters 
supported the one-year timeframe, while others recommended the time 
period be extended to up to two years. Many commenters cited the NRC 
Criterion 7 from 10 CFR part 40, Appendix A, which requires uranium 
mills to complete one or more years of preoperational monitoring before 
a company can submit a license application. Two commenters noted that 
some aquifers do not experience seasonal variations in groundwater 
constituents. For example, commenters asserted there may be no 
seasonally influenced fluctuation in the concentrations of groundwater 
constituents in deeper target ore production aquifers.
    Based on all of these comments, the EPA has refined the approach to 
preoperational monitoring. Instead, the Agency is proposing that 
preoperational monitoring of wells screened in areas where temporal 
variations are not expected to occur, such as in deep ore zones in 
confined aquifers, would be allowed to monitor for periods of less than 
one year. However, the licensee would collect several sets of samples 
over a time period sufficient to demonstrate seasonal variability does 
not occur. For example, in some cases, four sets of samples collected 
over several months would be adequate to determine the background for 
systems that do not exhibit seasonal changes. In this proposal, sample 
sets collected over a period of at least one year would still be 
necessary for facilities that operate in areas where constituent 
concentrations are expected to exhibit seasonal fluctuations. The 
regulatory agency would determine whether the licensee's preoperational 
monitoring is of sufficient duration and that sampling occurs at 
appropriate intervals to establish the background concentrations for 
all 12 constituents, as well other constituents identified by the 
regulatory agency and all indicator parameters. To provide flexibility 
where appropriate, the EPA did not propose an across-the-board two-year 
monitoring requirement, although the regulatory agency would be allowed 
to do what is necessary to reflect seasonal or other variation in 
background constituent concentrations or flow.
2. Changes to the Well Completion Requirements
    The Agency received several comments on the original proposed 
requirements for well completions. A general concern expressed by the 
commenters is that true baseline conditions of the groundwater 
constituents cannot be established if the well drilling and development 
methods introduce oxygen into the groundwater. The commenters explained 
that since oxygen may increase the solubility of uranium, elevated 
baseline concentrations will lead to artificially high restoration 
goals. Commenters suggested several methods to alleviate this concern, 
including air-rotary drilling with recirculated nitrogen gas instead of 
air and a foam surfactant that contains organic constituents to 
eliminate oxygen.
    After considering these comments, the EPA believes sufficient 
monitoring should be completed to ensure all perturbations associated 
with well construction are resolved prior to establishing the 
background concentrations. To achieve this goal, under this proposed 
action, the licensee would collect several sets of samples over a time 
period sufficient to demonstrate baseline conditions that are 
unaffected by monitoring well construction. In the proposal, the EPA 
requires the sampling frequency to be sufficient to ensure 
statistically valid background levels that are not influenced by well 
construction. The samples used for this purpose may be the same as 
those used for the temporal variability analyses, if technically 
feasible. The regulatory agency would determine whether the licensee's 
well construction follows appropriate protocols and that sampling 
occurs at appropriate intervals to establish accurate background 
concentrations.

D. Exempted Aquifers

    The EPA originally proposed that preoperational monitoring wells, 
excursion monitoring wells used during the operational and restoration 
phases, and compliance wells used during the initial and long-term 
stability monitoring phases (referred to as ``point(s) of compliance'') 
be located inside and outside of ``exempted aquifers'' (see the 
proposed definition for ``point(s) of compliance'' at 80 FR 4184). In 
the original proposal, the EPA also defined the term ``point(s) of 
exposure'' as the ``intersection of a vertical plane with the boundary 
of the exempted aquifer'' and the term ``adjacent aquifer'' as an 
aquifer or portion of an aquifer that ``shares a border or end point 
with the exempted aquifer or the exempted portion of an aquifer'' (see 
80 FR 4183-4184). As the EPA explained in the original proposal, the 
term ``exempted aquifer'' refers to aquifers that are exempted from the 
protections afforded by the SDWA (see 80 FR 4160).
    Under the SDWA, the EPA sets health-based standards for drinking 
water to protect against naturally occurring and anthropogenic 
contaminants that may be found in surface and groundwater sources of 
drinking water. Additionally, under SDWA authority, the EPA promulgated 
Underground Injection Control (UIC) Program regulations to ensure 
protection of USDWs,\14\ which may be consumed now or in the future, 
where injection activities are occurring. The UIC regulations at 40 CFR 
144.12 prohibit any injection activity that allows the movement of 
fluid containing any contaminant into USDWs if the presence of that 
contaminant may cause a violation of any primary drinking water 
standard or otherwise adversely affect the health of persons. Under UIC 
Program regulations, an aquifer or a portion of an aquifer may be 
exempted from the protections afforded USDWs, under the SDWA, if (a) it 
does not currently serve as a source of drinking water; and (b) it 
cannot now and will not in the future serve as a source of drinking 
water because one of four specified conditions is met, or (c) the total 
dissolved solids content of the groundwater is more than 3,000 mg/L and 
less than 10,000 mg/L and it is not reasonably expected to supply a 
public water system (see Sec.  146.4). The four conditions referenced 
above for the aquifer exemption criteria at 40 CFR 146.4(b) are:
---------------------------------------------------------------------------

    \14\ USDWs are defined, by regulation at 40 CFR 144.3, as: ``An 
aquifer or its portion: (a)(1) Which supplies any public water 
system; or (2) Which contains a sufficient quantity of ground water 
to supply a public water system; and (i) Currently supplies drinking 
water for human consumption; or (ii) Contains fewer than 10,000 mg/l 
total dissolved solids; and (b) Which is not an exempted aquifer.''
---------------------------------------------------------------------------

    (1) It is mineral, hydrocarbon or geothermal energy producing, or 
can be demonstrated by a permit applicant as part of a permit 
application for a Class II or III operation to contain minerals or 
hydrocarbons that considering their quantity and location are expected 
to be commercially producible.
    (2) It is situated at a depth or location which makes recovery of 
water for drinking water purposes economically or technologically 
impractical;

[[Page 7413]]

    (3) It is so contaminated that it would be economically or 
technologically impractical to render that water fit for human 
consumption; or
    (4) It is located over a Class III well mining area subject to 
subsidence or catastrophic collapse.
1. Removal of References to ``Exempted Aquifer''
    In this proposal, the EPA has removed references to ``exempted 
aquifers'', deleted the definitions of ``adjacent aquifer'' and 
``exempted aquifer'' from Sec.  192.51, and removed the phrase 
``exempted aquifer'' from the definition of ``background'' in Sec.  
192.51 and from the requirements specifying where monitoring wells must 
be located. This change to the original proposal was made to help 
clarify that these standards under UMTRCA complement, and do not 
overlap with, the requirements of the SDWA. As discussed in section 
I.B., the scope and level of protection of the SDWA differs from the 
UMTRCA as groundwater at uranium ISR sites could have beneficial uses 
even if the aquifer has been exempted from protection under the SDWA. 
Since UMTRCA provides authority that can be used to protect aquifers 
during and after uranium recovery operations, regardless of whether the 
aquifer meets the definition of an USDW as defined in EPA's UIC 
regulations or is exempted from the protections of the SDWA, the scope 
of UMTRCA's protection should be reflected in the regulatory text of 
these standards rather than relying on the SDWA UIC exemption 
regulations. Thus, the regulatory text proposed in this action does not 
depend on or use the term exempt aquifer. Also, although a remote 
possibility, because ISR facilities may be located in aquifers that are 
not designated as ``exempted aquifers'' under the SDWA, under the 
original proposal there would have been a lack of clarity on how a 
facility located in a non-exempt aquifer would comply with a rule using 
``exempt aquifer'' boundaries in the regulatory text.
    Aquifer Exemptions at ISR facilities. The EPA recognizes that 
almost all ISR facilities may be considering Class III injection into a 
formation that meets the UIC regulatory definition of a USDW and is 
afforded SDWA protection. In such scenarios, in addition to applying 
for a Class III permit, a Class III owner or operator must (1) apply to 
the appropriate UIC Program for an aquifer exemption pursuant to 
requirements at 40 CFR 144.7 and 146.4 (or applicable state 
requirements), or (2) ensure that the boundaries of an existing 
exemption are appropriately delineated for the proposed injection 
activity. While aquifer exemptions facilitate commercial production of 
minerals and hydrocarbons under specific conditions, the UIC Program 
requirements are intended to ensure protection of non-exempted portions 
of a formation which meet the definition of a USDW even where ACLs may 
be established at an ISR site located within an exempted portion of 
that aquifer.
    As stated above, this proposed rule is established under the UMTRCA 
and not under the SDWA; however, both the UMTRCA and the SDWA 
requirements may apply to ISR facilities. As discussed above and in 
section I.A., the requirements of these statutes are complementary and 
not overlapping or duplicative. The SDWA requirements provide for 
permits to inject lixiviant and recover uranium and possible exemption 
of the production zone from SDWA requirements. The proposed UMTRCA 
requirements protect adjacent aquifers that are not exempt from SDWA by 
requiring monitoring and corrective action, if necessary, during the 
operational and restoration phases in and around the ore zone after 
production ceases. The SDWA does not prevent recovery and use of the 
water within exempted aquifers (including where ISR operations were 
previously conducted) for private drinking water supply, public water 
supply, or other uses.
2. Changes to the Definition of ``Point(s) of Exposure''
    Points of exposure are defined in the proposal as locations 
identified by the regulatory agency that represent possible future 
areas of exposure where the receptor can come into contact with 
groundwater (e.g., areas of recoverable groundwater). The groundwater 
at the point of exposure should be protective of the receptor. As noted 
earlier in this preamble, commenters, including interagency commenters, 
raised questions concerning the integration of an aquifer exemption 
under the SDWA and point of exposure as it was defined in the EPA's 
original proposal and the differing jurisdictions of the SDWA and 
UMTRCA. The EPA specifically requests comment on this approach, 
especially with regard to the overall regulatory model of how ACL 
application would work, the definition of points of exposure and the 
use of this term, and the overall environmental, human health and 
safety protection goals for setting and using ACLs.

E. Excursions

    In the original proposal, the EPA defined an excursion as ``the 
movement of fluids containing uranium byproduct materials from an ISR 
production zone into surrounding groundwater'' and specified that an 
excursion has occurred when ``. . . any two indicator parameters . . . 
exceed their respective upper control limits'' (see 80 FR 4184).
1. Changes to the Definition
    Although the EPA generally considers that an excursion has occurred 
when any two parameters are above the UCL, in this proposal, the EPA 
provides flexibility for the regulatory agency to determine that an 
excursion has occurred when any single indicator parameter 
significantly exceeds its UCL. The EPA made this change to the proposed 
definition because in some situations a single parameter may be 
sufficiently high to indicate a possible excursion. The EPA emphasizes 
that this would be a judgement of the regulatory agency, and the 
Agency's understanding is that it is consistent with current NRC 
practice.
    In this proposal, the EPA also revised the definition of excursion 
to indicate that an excursion includes the movement of fluids 
containing lixiviant, as well as any fluids containing uranium 
byproduct material, because these fluids may migrate outside of the ISR 
production zone. The EPA replaced the reference to ``the ISR production 
zone'' with ``ISR wellfield'' to indicate a broader scope of 
consideration is necessary in order to ensure that background is 
appropriately addressed and to ensure that areas within and surrounding 
the production zone are stable.
2. Changes to the Constituents Required To Be Monitored During the 
Different Phases of Operation
    The EPA originally proposed that licensees would be required to 
monitor for all constituents listed in Table 1 of 40 CFR part 192, 
subpart F, during the different phases of operation at an ISR facility. 
In this proposal, the EPA changed this requirement such that facilities 
would be required only to monitor for those constituents that are 
expected to be present (e.g., uranium, radium, selenium and arsenic) 
based on the preoperational monitoring and any other constituents 
identified by the regulatory agency. The EPA made this change to the 
monitoring parameters to ensure monitoring requirements are established 
based on data indicating the expected contaminants. This change reduces 
the monitoring burden for ISR facilities compared to the original 
proposal. This proposed change also provides the regulatory agency 
flexibility to specify any other constituents not listed in Table 1 of 
40

[[Page 7414]]

CFR part 192, subpart F, that are expected to be present. Under this 
proposal, the EPA considers it unnecessary to monitor for constituents 
that are not present. Hence, facilities would be required to monitor 
only for those constituents that are likely to be present.

F. Initial and Long-Term Stability

    After restoration ends, ISR facilities must demonstrate compliance 
with the proposed constituent concentration standards, and also 
demonstrate those levels will persist and remain stable in the future. 
In the original proposal, to demonstrate stability, the EPA proposed 
three consecutive years of stability monitoring with stability 
demonstrated at the 95 percent confidence level followed by long-term 
monitoring for an additional period of 30-years. The originally 
proposed long-term stability monitoring would have allowed facilities 
to cease monitoring once they had completed monitoring for 30 years. 
However, the original proposal also allowed a licensee to shorten the 
30-year long-term stability monitoring period by demonstrating 
geochemical stability through monitoring and geochemical modeling.
1. Statutory Authority and 30-Year Long-Term Monitoring
    The EPA derived the 30-year long-term stability monitoring period 
in the original proposal based on consideration of the Agency's 
statutory mandate to be consistent with the requirements applied to 
managing hazardous waste under RCRA.
    Numerous commenters thought the proposed 30 years of long-term 
monitoring was not justified, and was excessive and unnecessary. The 
general positions of these commenters were that these very specific 
monitoring time frames were outside the EPA's statutory authority under 
the UMTRCA to promulgate ``standards of general application'' and that 
there is no evidence that ISR facilities have impacted offsite 
underground sources of drinking water. Commenters also thought the 
requirement would have a significant economic impact, including impacts 
on leasing and surety costs that would place a number of ISR companies 
out of business. Other commenters noted that ISR facilities are not 
equivalent to RCRA hazardous waste facilities and should not be 
similarly regulated. Some commenters were concerned the long-term 
monitoring requirements would increase radiologic dose to employees 
maintaining the processing plant and well fields, which would be 
inconsistent with the NRC's ALARA (As Low As Reasonably Achievable) 
regulations found in 10 CFR part 20. However, other commenters strongly 
supported the 30-year monitoring time frame or recommended a longer 
time frame. These commenters felt that 30 or more years of monitoring 
would provide sufficient time to detect instability and potential 
migration of constituents.
2. Proposed Requirements for Initial and Long-Term Stability
    Under UMTRCA, the EPA has authority to promulgate ``standards of 
general application'' for the protection of public health, safety and 
the environment from the radiological and non-radiological hazards 
associated with the processing and the possession, transfer and 
disposal of byproduct material at uranium ISR facilities. 42 U.S.C. 
2022(b). The Tenth Circuit Court of Appeals has clearly recognized that 
this authority encompasses the ability for the EPA to include 
monitoring as part of its ``standards of general application.'' 
American Mining Congress et al. v. Thomas, 772 F.2d 640, 644, 647-649 
(10th Cir. 1985) (``The regulations necessitate monitoring programs.'' 
). In the proposal, the EPA has retained the initial and long-term 
stability monitoring requirements but has removed the default 
requirement for 30 years of long-term monitoring. The initial stability 
monitoring period remains the same as in the original proposed rule 
(i.e., at least three years). Under this proposal, the duration of the 
long-term stability monitoring must be at least three years, and the 
regulatory agency would determine the appropriate length of any 
additional long-term stability monitoring based on criteria that will 
enable the licensee to demonstrate, as appropriate, that there is 
reasonable assurance that the applicable constituent concentration 
standards will continue to be met in the future. Similar performance 
criteria were part of the standards in the original proposed rule, 
where the EPA had proposed that licensees would be required to 
demonstrate three consecutive years of initial stability monitoring and 
then maintain long-term stability monitoring for an additional period 
of 30 years. The original proposal included an option that allowed a 
licensee to shorten the 30-year timeframe by demonstrating long-term 
geochemical stability through modeling. Under this proposal, modeling 
would no longer be optional. Consistent with the original proposal, the 
EPA is proposing that the regulatory agency would be responsible for 
reviewing the licensee's data and analysis, and making the 
determination of when the licensee could discontinue long-term 
stability monitoring and initiate decommissioning.
    While many commenters supported the 30-year monitoring requirement, 
and some even preferred a longer period, the proposal maintains the 
same performance-based standards for the long-term stability phase as 
the original proposal and hence ensures the same level of protection 
the EPA anticipated in the original proposal. The Agency emphasizes the 
role of modeling in achieving that objective. As explained in the 
original proposal, the Agency expected that licensees would make 
extensive efforts to develop robust models that would significantly 
shorten the long-term monitoring period. In fact, as presented in the 
proposal, it would have been possible for a licensee to submit modeling 
such that no (or minimal) long-term monitoring would be necessary. 
However, should licensees be unable to provide such modeling, or choose 
not to, the additional monitoring would have provided the level of 
confidence necessary for the regulatory agency to determine that long-
term stability had been demonstrated. This revised proposal relies on 
modeling and analysis to as an essential element in concluding that 
groundwater will continue to meet the applicable constituent 
concentration standards into the foreseeable future, leading to the 
Agency's judgment that the revised approach is comparable in 
protectiveness to the original proposal.
    As noted above, other commenters stated that 30 years of monitoring 
would not add value and would put many companies out of business. ISR 
facilities that disturb groundwater and mobilize constituents of 
concern are responsible for restoring disturbed groundwater to 
background or health-based conditions regardless of the time required 
to achieve this goal. However, the EPA also agrees with commenters who 
noted the time period necessary to establish stability at an ISR 
facility is variable due to differences in geology, hydrology and 
geochemistry. As reflected by one of the commenters, after 10 years of 
monitoring at the Kingsville Dome ISR facility, it appears that 
reducing conditions have not been re-established in the production 
zone. Restoration at Christensen Ranch has not been approved by the NRC 
because the NRC found that restoration was not complete and water 
quality was not stable after completion of uranium recovery in 
2005.\15\ Uranium concentrations also

[[Page 7415]]

increased in a production monitoring well at Smith Highlands Ranch 
after restoration was completed.
---------------------------------------------------------------------------

    \15\ NRC (2012), ``Technical Evaluation Report: Christensen 
Ranch Mine Units 2 through 6 Restoration Report, Uranium One USA, 
Inc. Willow Creek ISR Project.'' Available at http://www.nrc.gov/docs/ML1217/ML12174A048.pdf.
---------------------------------------------------------------------------

    This proposal defines the initial stability standards as ``three 
consecutive years of quarterly monitoring results with no statistically 
significant increasing trends exceeding the constituent concentration 
standards at the 95 percent confidence level.'' These performance-based 
standards would apply after the licensee completes restoration and, 
once met, would demonstrate that restoration was initially successful. 
The EPA requests comment on this approach and the wording of the 
regulatory text. Alternative language the EPA considered for this 
proposal for both initial and long term stability, included requiring 
the licensee to show `` . . . three consecutive years of quarterly 
monitoring results demonstrating a statistically significant non-
increasing trend at the 95 percent confidence level remaining below 
each constituent concentration standard.'' This alternative approach, 
which would require the licensee to demonstrate that the trend line is 
either horizontal or decreasing (``non-increasing''), has been applied 
in the Superfund program. It has the clear advantage of accepting only 
trend lines that are not increasing, which can provide some additional 
confidence that the trend is not in a direction that could (eventually) 
threaten to exceed the constituent concentration standards.
    However, based on discussions with the NRC, the agency responsible 
for implementing this rule after promulgation, it is clear that 
licensees may see increasing, but not statistically significant trends 
in constituent concentrations during stability monitoring. 
Consequently, the EPA opted to change the language to ``no 
statistically significant increasing trend'' to provide the NRC 
flexibility in addressing this specific scenario. Further, the EPA is 
concerned that specifying a non-increasing trend may introduce 
complications in applying statistical techniques, particularly when 
working from the hypothesis that there is no slope to the trend line. 
The level of natural variation present may itself forestall the ability 
to determine a non-increasing slope with the level of confidence the 
EPA believes necessary. The level of statistical significance 
associated with an increasing trend that would be unacceptable is left 
to the regulatory agency to determine based on site-specific 
conditions.
    The EPA requests public comment on the proposed approach as well as 
the alternatives. Specifically, the EPA would like to know whether this 
language is sufficiently protective and whether there are any other 
practical approaches the Agency should consider as possible 
alternatives.
    In this proposal, the EPA has defined the long-term stability 
standards as a two-part test, with the following elements: (1) The 
licensee must provide an additional three consecutive years of 
quarterly monitoring data demonstrating no statistically significant 
increasing trend exceeding the constituent concentration standard for 
each applicable constituent at the 95 percent confidence level; and (2) 
the licensee must provide geochemical modeling and other analysis to 
demonstrate that constituent concentrations within the production zone 
will be met in the future. The regulatory agency would evaluate the 
modeling and other analysis and make a determination as to whether 
there is reasonable assurance that the applicable constituent 
concentration standards will continue to be met in the future. In this 
proposal, only after this determination has been made by the regulatory 
agency would the licensee cease long-term monitoring.
    The three-year long-term monitoring period represents a different 
application of the RCRA paradigm than the 30-year post-closure 
monitoring. The three-year monitoring period is consistent with RCRA 
corrective action requirements, which can be seen as analogous with 
groundwater restoration at ISR sites. The Agency believes the three-
year performance standard for the long term is appropriate to provide 
additional confidence in restoration of these sites and provides 
sufficient time to conduct a trend analysis, as well as being 
consistent with RCRA requirements of three years of monitoring to 
demonstrate no exceedance associated with corrective action. The EPA 
finds that this alternative approach will provide the necessary 
protectiveness and is particularly responsive to industry comments 
regarding the potential costs associated with a 30-year monitoring 
period.

G. Corrective Action Program

    The EPA originally proposed that facilities be required to take 
corrective action as soon as practicable but no later than 90 days 
after an excursion or exceedance is detected. The original proposal 
also required that the concentrations of constituents be returned to 
the constituent concentration standards ``within the production zone 
and the maximum constituent level in adjacent aquifers'' (see Sec.  
192.54(a) of the proposed rule). Groundwater monitoring for a period of 
at least three years after corrective action had been terminated was 
proposed with reference to the proposed monitoring requirements for the 
initial and long-term stability phases.
    A few commenters supported the requirement to take corrective 
action as soon as practicable. However, most commenters disagreed with 
the original proposed requirement to require ISR facilities to 
implement a corrective action program within 90 days. One commenter was 
concerned the compliance costs would be high because the wellfield and 
associated equipment would have to be maintained at the ISR facility 
for many years in order for corrective action to be started within the 
required 90 days. Another commenter thought a longer time period was 
justified due to the low velocity of groundwater at ISR facilities. 
This commenter asserted that additional time may be needed for drilling 
wells and installing pump and treat equipment, particularly during the 
long-term stability period when equipment has been removed. This 
commenter recommended a period of two years be allowed for implementing 
a corrective action program and stated that groundwater may move only 
10 to 20 feet over this time period. Another commenter noted that the 
NRC already has regulations covering corrective action in 10 CFR part 
40, Appendix A, Criterion 5D, which specify that a licensee has up to 
18 months to implement a corrective action program. One commenter found 
the proposed requirements for groundwater monitoring confusing and 
questioned why the proposed rule referenced the initial and long-term 
stability monitoring requirements. This commenter thought the 
groundwater monitoring applied to excursions and questioned why 
additional monitoring was necessary for excursions occurring during the 
operational phase.
    The EPA has made several changes to the corrective action 
requirements in this proposal. First, the EPA would require ISR 
facilities to begin (but not necessarily complete) corrective action no 
later than 60 days after an excursion or exceedance is detected. The 
EPA made this change to be consistent with the NRC's current practice 
for excursions.\16\ Full implementation may

[[Page 7416]]

take additional time, as recognized by the NRC in 10 CFR Appendix A, 
Criterion 5D. The time for the initiation and completion of the 
corrective action in all phases of operation would be addressed in the 
corrective action program and approved by the regulatory agency.
---------------------------------------------------------------------------

    \16\ NRC (2003), ``Standard Review Plan for In-Situ Leach 
Uranium Extraction License Applications (NUREG-1569).'' Available at 
http://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/sr1569/.
---------------------------------------------------------------------------

    Second, the EPA is acknowledging that corrective action in the 
initial stability phase may be different than in the long-term 
stability phase, as during the initial stability phase data are being 
collected to show the initial trend and may be more subject to 
fluctuation. One exceedance may be acceptable during the initial 
stability phase, but not for the long-term stability phase, without 
taking corrective action. The EPA is proposing the regulatory agency 
would have the authority to determine whether an exceedance truly 
warrants action or continued monitoring while the licensee is trying to 
establish the data trend during the initial stability phase. The need 
for action or monitoring during each phase of operation would be 
anticipated and addressed in the corrective action program. Whether or 
not the regulatory agency has determined that corrective action is 
necessary does not negate or affect the proposed initial stability 
standards requiring three consecutive years of quarterly monitoring 
results with no statistically significant increasing trends exceeding 
the constituent concentration standards at the 95 percent confidence 
level. The corrective action program would have to return the 
constituent concentrations to levels below the constituent 
concentration standards established by the regulatory agency.
    Finally, the EPA is proposing to change the groundwater monitoring 
provisions proposed for Sec.  192.54(c) (80 FR 4187) to better reflect 
the requirements applicable to ISR facilities that experience 
exceedances of constituent concentration standards during the long-term 
stability phase. The EPA agrees with a commenter who stated that the 
proposed rule language for the groundwater monitoring requirements in 
Sec.  192.54(c) could easily be misinterpreted. The change to the 
original proposed rule makes it explicit that corrective action is 
followed by another round of initial stability monitoring followed by 
long-term stability monitoring. Under this proposal, the ISR facility 
would need to first meet the three-year initial stability standards, 
and then meet the long-term stability standards of Sec.  
192.53(c)(3)(i) and (ii), before it is eligible to apply to the 
regulatory agency for approval to cease long-term stability monitoring. 
These changes to Sec.  192.54(c) would not add any new requirements but 
simply clarify the requirements that were originally proposed.

H. Costs and Economic Impacts

1. Compliance Costs
    Commenters expressed concern that the EPA had not considered the 
entire spectrum of legal, regulatory and other costs required to hold 
and preserve the ISR facility, lands and wellfields during the 
stability monitoring periods. The EPA reviewed and updated the economic 
analysis to incorporate estimated non-monitoring costs (e.g., 
licensing, leasing fees, continued surety, maintenance) identified in 
the comments. Commenters also recommended that the EPA consult the ISR 
industry to better characterize costs, and the EPA requested additional 
information from some of the uranium recovery companies that had 
provided cost data during the public comment period to clarify the 
information provided. The additional cost information received from the 
uranium recovery companies was incorporated into the economic analysis. 
A listing of the non-monitoring costs that were identified in the 
comments and added to the revised analysis, along with a comparison of 
non-monitoring costs provided by industry and the average values used 
in the economic model, can be found in the economic analysis report 
(see sections 3.2 and 3.3). The addition of non-monitoring costs added 
$2,300 per acre to the modeled average facility costs excluding license 
and surety. The estimated total annualized incremental non-monitoring 
costs projected to be incurred by firms owning existing ISR facilities 
ranged between $0.1 million and $4.1 million, with total national non-
monitoring costs of $7.6 million for all firms. All costs in the 
economic analysis have been adjusted from 2011 to 2015 dollars, as 
suggested by commenters.
    Another concern expressed by commenters was that the EPA had not 
considered additional costs to self-funded regulatory programs, and 
that these costs would be passed along to the uranium recovery 
companies. The revised standards reflect the practices that have become 
more common between the NRC and ISR facilities; therefore, this 
proposal is not expected to add significant burden to regulatory 
programs.
    Compliance for existing ISR facilities also concerned commenters. 
As in the proposal, Sec.  192.52(a) of this proposal makes clear that 
these standards would not apply to wellfields that are currently in and 
remaining in restoration or stability monitoring.
    Commenters also expressed concern that the costs of monitoring were 
not adequately reflected due to inaccurate assumptions for current 
monitoring requirements. The EPA adjusted the monitoring costs in the 
economic analysis based on guidance received from the NRC regarding 
current monitoring practices and requirements, as opposed to historical 
practices that were noted by some commenters as common to more 
developed ISR facilities. Also, a commenter noted that the rule 
discussion in the proposal preamble at 80 CFR 4186 (Sec.  192.53(a)(3) 
of the original proposal) required monitoring well locations outside of 
the monitoring well ring and that these costs were not included in the 
economic analysis. The proposal maintains the requirement in the 
original proposal for down-gradient monitoring wells outside the 
monitoring well ring where needed, and at the discretion of the 
regulating agency, especially when an adjacent aquifer is present. 
Initially, the EPA's proposal required monitoring at locations down-
gradient from the wellfield in exempted aquifers. However, placement of 
down-gradient monitoring wells outside the well ring was not found to 
be common practice at existing sites and the EPA removed these wells 
from the cost model. The EPA also assumed in the proposal that 
monitoring and hydrogeologic and geochemical modeling requirements 
would allow most sites to demonstrate that groundwater conditions down-
gradient of the wellfield would trap any mobilized constituents, thus 
ensuring that groundwater quality is protected. Reference to the 
``exempted aquifer'' has also been removed from this proposal, as 
discussed in section III.D of this preamble.
    Comments were also received on the methodology used to extrapolate 
a cost per acre for operating ISR facilities based on a conceptual ISR 
unit, and while it was acknowledged that the method may be appropriate 
for fully developed ISR facilities, the commenters were concerned that 
this methodology may not capture the full costs of implementation for 
facilities in earlier stages of development. The EPA further reviewed 
and used available information from facility surety and license reports 
to estimate and account for the proposed and anticipated number of ISR 
units at each ISR facility that was included in the cost model.
    In light of the adjustments described above, the EPA considers the 
estimated

[[Page 7417]]

monitoring costs for existing ISR facilities that it developed for 
purposes of the proposal to be reasonable; however, the Agency 
continues to recognize that there are uncertainties inherent to the 
process used to extrapolate the monitoring costs associated with these 
standards as compared to actual costs to ISR facilities.
2. Energy Impacts Summary
    Several commenters noted the importance of nuclear power to shift 
the nation's reliance away from carbon-based energy resources and 
expressed concern that the proposed standards would reduce the 
viability of uranium recovery and continued development of nuclear 
energy. In response to these comments, the EPA reevaluated the 
incremental costs of the selected option to existing and planned ISR 
facilities, which further substantiated that this action is not a 
``significant energy action'' as defined in Executive Order 13211 (66 
FR 28355, May 22, 2001). The proposed standards, in large part, codify 
groundwater monitoring practices and requirements already being 
implemented at permitted operations; further, domestic uranium has 
historically provided less than 10 percent of total uranium supplied to 
civilian owners and operators (COOs) of nuclear power stations. Because 
the proposal would increase the costs of facilities that produce a 
relatively small share of uranium traded in U.S. markets, the EPA 
estimate that a $1.96 increase per pound in the cost of ISR uranium 
production would increase the price of uranium paid by COOs by only 
$0.11 per pound. Because nuclear generation provides a relatively small 
share of total domestic electricity, the $0.11 increase in the price of 
uranium would increase the price of electricity very little (less than 
0.1 percent). Although the proposal would slightly increase the costs 
of domestic uranium production relative to international sources, this 
rule is not expected to directly and adversely affect productivity, 
competition or prices in the energy sector. For more information, 
please see section VI.H of this preamble and sections 5.3 and 6.9 of 
the document titled, ``Economic Analysis: Revisions to the Health and 
Environmental Protection Standards for Uranium and Thorium Mill 
Tailings Rule (40 CFR part 192),'' available in Docket ID No. EPA-HQ-
OAR-2012-0788.
3. Groundwater Resource Impacts of Restoration
    Several commenters expressed concern that the proposed rule would 
cause an unnecessary waste of groundwater resources beyond diminishing 
returns, due to prolonged additional restoration to satisfy the 
proposed requirement for 95 percent statistical confidence of 
groundwater stability. The EPA disagrees and believes that the 95 
percent statistical confidence level is widely accepted and used in 
other environmental standards. For more information on the 95 percent 
confidence level, see section IV.D of the preamble.
    One commenter stated that the EPA ignored its authority under 
CERCLA that allows the Agency to require former operators and their 
successors to clean up post-license termination, thereby unnecessarily 
increasing monitoring costs for ISR facilities. The EPA does not 
believe it is appropriate to rely upon expectations of future cleanup 
rather than make reasonable efforts to prevent groundwater 
contamination in the first place. The intent of this rule is to protect 
groundwater and prevent its degradation, thereby eliminating the need 
for remedial actions under CERCLA that, by the time discovered, could 
be far costlier. This approach is fully consistent with the EPA's 
Groundwater Protection Strategy, which emphasizes pollution prevention 
over remediation. Also, commenters asserted that the groundwater 
modeling was inadequate, and flawed inputs were used to estimate the 
duration of remediation to clean up a plume after facility closure. The 
EPA understands that the contaminant transport models used to estimate 
costs of remediating a contaminant plume are simplistic, the inputs 
used are based on limited ISR facility data, and selected 
parameterizations are based on assumptions. Nevertheless, the flow 
model provides a reasonable estimate for the duration of an 
illustrative general pump and treat remediation scenario, based on the 
EPA's extensive pump and treat remediation experience under CERCLA and 
other remedial programs, and, upon review, the models and inputs were 
determined to be adequate to illustrate potential cost savings for 
purposes of the economic analysis.

I. Other Miscellaneous Changes

1. Clarification of ``Operational Phase''
    In the original proposal, the EPA defined the operational phase of 
an ISR facility as ``the time period during which uranium extraction by 
in-situ recovery occurs'' and noted that ``operations end when the 
operator permanently ceases injection of lixiviant and recovery of 
uranium-bearing solution for processing'' (see 80 FR 4160). However, 
the EPA notes there are periods when the ISR facility is not actively 
recovering uranium for various reasons (e.g., market conditions), but 
production is intended to resume when conditions are more favorable. 
These periods are sometimes referred to as ``standby'' by operators. In 
the original proposal, the EPA expressed the view that it would not be 
appropriate to allow a standby period for ISR facilities if the 
gradient within the wellfield is not being maintained, and that 
stopping the extraction cycle should require the operator to enter the 
restoration phase. Commenters acknowledged that ISR facilities can 
experience extended periods of standby and noted that active pumping 
during these periods is necessary to prevent contamination of 
groundwater in areas outside the production zone. One commenter 
recommended the EPA minimize the amount of time during which an ISR 
facility in standby is not pumping. Other commenters thought ISR 
facilities entering standby should be required to initiate restoration 
and recommended that the EPA require ISR facilities to commence 
restoration within a specified time period after ceasing active uranium 
recovery.
    The EPA agrees with the commenters who said ISR facilities must be 
responsible for ensuring that lixiviant and constituents do not migrate 
outside of the production zone during standby periods. The EPA 
disagrees with the commenter who suggested ISR facilities that 
temporarily cease operations should be required to commence 
restoration. The EPA agrees, however, that during standby periods the 
migration of constituents mobilized by the prior injection of lixiviant 
may continue even if the decision is made to stop extracting uranium. 
Excursions beyond the production zone are more likely to occur if the 
hydraulic gradient within the wellfield is not maintained. For this 
reason, the EPA considers standby to be part of the operational phase, 
and facilities should not cease pumping during standby periods since it 
is important that an inward hydraulic gradient is maintained during 
these periods. For this reason, the EPA is proposing that all 
requirements applicable to the operational phase remain in effect 
during these standby periods. Provided the licensee complies with the 
operational phase monitoring and corrective action requirements in the 
proposed rule, ISR facilities in standby would not need to enter 
restoration because groundwater in areas surrounding the production 
zone will be afforded the same level of

[[Page 7418]]

protection as required during restoration. In this proposal, the EPA 
has revised the definition of ``operational phase'' in original 
proposal to clarify that standby mode is considered part of the 
operational phase and that ISR facilities in standby must maintain 
appropriate groundwater controls to prevent constituents from leaving 
the production zone.
2. Changes to the Definition of ``Point(s) of Compliance''
    As stated in the original proposal, during the restoration phase, 
the definition of ``point(s) of compliance'' may include ``monitoring, 
injection, and extraction wells in the production zone'' (see 80 FR 
4184). Points of compliance during the initial stability and long-term 
stability phases should include locations within the former production 
zone, including existing monitoring, injection and extraction wells. To 
clarify these requirements, in this proposal, the EPA revised the 
definition of ``point(s) of compliance'' to indicate that excursion 
monitoring wells are considered points of compliance during all phases 
of ISR operation and that during the initial and long-term stability 
monitoring phases, points of compliance should also include locations, 
identified by the regulatory agency, where a potential receptor can 
come into contact with contaminated groundwater. The EPA is 
specifically requesting comment on the definition of ``point(s) of 
compliance'' and how it is applied. Again, the EPA is requesting 
comment on the definition of point of exposure and conceptual framework 
for establishing ACLs.

IV. Responses to Other Significant Comments That Did Not Result in 
Changes to the Original Proposal

    The EPA carefully reviewed and considered comments from a wide 
range of different groups in preparing this proposal. As discussed in 
section III of this preamble, the EPA modified and clarified various 
aspects of the proposed rule based on the information and views 
provided, including comments on the original proposal. However, not all 
comments resulted in modifications to the proposed rule. Those 
significant comments that did not result in changes, together with the 
EPA's responses, are summarized in this section of the preamble.

A. Authority To Set Generally Applicable Standards

    Some commenters thought the proposed rules were legally invalid and 
felt the EPA was overreaching its authority under UMTRCA by proposing 
standards that are too detailed and prescriptive. The commenters argued 
the EPA was redefining what UMTRCA established as the EPA's role to set 
general standards while making the NRC responsible for implementing 
those standards through its licensing process. These commenters believe 
that UMTRCA limits the EPA's authority to setting general standards 
that do not include any prescriptive implementation requirements. Some 
of these commenters cited a statement from the legislative history of 
UMTRCA in which a House Committee advised that ``[t]he EPA standards 
and criteria should not interject any detailed or site-specific 
requirements for management, technology, or engineering methods on 
licensees or the Department of Energy.''
    However, other commenters thought the proposal was an appropriate 
exercise of the EPA's authority under the UMTRCA because the proposed 
rule would not supplant the NRC's jurisdiction or impede its licensing 
authority. They cited the statutory provisions that assign the 
authority to set standards to the EPA and the authority to implement 
and enforce the standards to the NRC (See 42 U.S.C. 2022(b), (d)). The 
commenters thought the proposed standards were an appropriate 
application of the EPA's authority under the UMTRCA and felt that the 
EPA had correctly left implementation of the new standards to the NRC 
and Agreement States.
    The Agency disagrees with those commenters who believe the EPA has 
redefined its role or overreached its authority in developing the new 
standards for ISR facilities. Section 206 of the UMTRCA clearly 
authorizes the EPA to promulgate standards of general application for 
the protection of public health, safety and the environment from 
radiological and non-radiological hazards associated with the 
processing and the possession, transfer and disposal of byproduct 
material at uranium ISR facilities. See 42 U.S.C. 2022(b). The Tenth 
Circuit Court of Appeals affirmed EPA's authority to set such standards 
under UMTRCA in two companion cases challenging the original part 192 
rules. See American Mining Congress et al. v. Thomas, 772 F.2d 617 
(10th Cir. 1985) (``AMC I''); American Mining Congress e. al. v. 
Thomas, 772 F.2d 640 (10th Cir. 1985) (``AMC II''). Consistent with the 
reasoning of these opinions, the new standards proposed in this action 
would apply the same requirements to all ISR facilities and would 
establish general requirements to (1) meet constituent concentration 
standards and demonstrate groundwater conditions are stable with 95 
percent confidence; (2) conduct monitoring; and (3) develop and 
implement a corrective action program. Within the framework of these 
generally applicable standards, the regulatory agency would be 
responsible for implementing the proposed new standards on a site-
specific basis through the licensing process and would retain the 
authority to determine when an ISR license can be terminated. AMC II, 
772 F.2d at 647-648 (``General application standards that allow the 
Nuclear Regulatory Commission (NRC) to choose the means of 
implementation are consistent with the authority Congress vested in the 
EPA.'').
    The first of these three components of the proposed standards has 
two integral parts--numerical constituent concentration standards and 
groundwater stability standards. This proposal sets forth minimum 
requirements for the constituent concentration standards, but 
implementation of those standards on a site-specific basis remains the 
responsibility of the regulatory agency. However, a numerical 
concentration standard by itself is not sufficient to address ``the 
risk to public health, safety, and the environment'' that the EPA is 
required by statute to consider when setting general standards. 42 
U.S.C. 2022(b)(1). Since ISR facilities alter the natural groundwater 
flow, this risk includes the risk that constituent concentrations in 
the groundwater will not remain the same over time if the groundwater 
remains unstable. Thus, to address this risk, the proposed rule 
contains a general requirement to demonstrate that groundwater 
conditions are stable after production ends at a site. For example, to 
satisfy the proposed initial stability standards, ISR facilities would 
provide three consecutive years of quarterly monitoring results 
demonstrating no statistically significant increasing trends exceeding 
the constituent concentration standards at the 95 percent confidence 
level. This proposed requirement to demonstrate groundwater stability 
is an integral part of the standard. The proposed general standard for 
stability is defined by a level of statistical confidence that is 
applicable to all sites. EPA believes this level of statistical 
confidence is necessary at all sites to ensure that the stability 
standards are sufficiently stringent to address the risk that 
groundwater exceeding the applicable constituent concentration 
standards poses to public health, safety and the environment from ISR 
facilities that have ceased operation. Contrary to some commenters' 
remarks (see Section

[[Page 7419]]

IV.D below), the proposal does not include any ``detailed or site-
specific requirements'' regarding how an ISR facility must satisfy the 
95 percent confidence level. Hence, these proposed standards lack any 
``management, technology or engineering methods'' pertaining to this 
confidence level. The proposed stability standards do not prescribe 
what specific statistical methods, sampling methods, or monitoring 
equipment should be used to show 95 percent confidence. Such decisions 
are left to the regulatory agency through its licensing of each 
facility. The Tenth Circuit has recognized that other provisions with 
these characteristics are within EPA's standard-setting authority under 
UMTRCA. AMC I, 772 F.2d at 630 (``Furthermore, because the standards 
are general in nature--they apply to all sites--we do not view them as 
site-specific `management, technology or engineering methods.' ''); AMC 
II, 772 F.2d at 645-646 (``Most of the arguments by the various 
petitioners are substantially identical to those in the consolidated 
Inactive Sites Case decided this day. On the basis of the analysis in 
that opinion, we again hold . . . that the EPA's standards do not 
unlawfully impose management, design, and engineering require- ments. . 
. .'').
    Some commenters argued the long-term monitoring requirements in the 
original proposal were too prescriptive and that the EPA would be 
effectively dictating when a license could be terminated. As noted 
above, the Tenth Circuit has clearly recognized that the EPA's 
standard-setting authority under UMTRCA enables the EPA to include 
monitoring as part of its ``standards of general application.'' AMC II, 
772 F.2d at 644 (``The regulations necessitate monitoring programs.''). 
In affirming the monitoring provisions in the original part 192 rule 
(monitoring provisions that are very similar to those in this 
proposal), the Court in AMC II readily distinguished between monitoring 
that is properly included as part of a standard the EPA promulgates and 
more prescriptive monitoring requirements that should be left to the 
regulatory agency. AMC II, 772 F.2d at 647-648 (``The regulations 
require the industry to satisfy SWDA drinking water concentration 
standards at specified distances from the pile, but they do not dictate 
the kind of monitoring system that must be used or the method by which 
purity levels must be achieved. These decisions are left to the 
implementing agency, the NRC.''). The EPA has not included detailed 
monitoring requirements in these proposed standards (e.g. what kind of 
monitors to use), but has instead left those details up to the review 
and approval of the NRC or the Agreement State.
    Several comments were also critical of the EPA's authority to 
require corrective action programs. While the term ``standard'' 
includes numerical limitations, such as the concentration-based limits 
for the listed constituents in groundwater, the EPA has long 
interpreted this term to also encompass the actions a source must take 
to reduce, remediate or otherwise avoid release of pollutants. The EPA 
notes that the existing rule, in subpart D, includes similar non-
numerical standards to those included in this proposed rule. For 
example, 40 CFR 192.32(a)(2)(iii) requires affected sources to 
implement detection monitoring programs, while 40 CFR 192.32(a)(3)(i) 
requires uranium mill tailings piles or impoundments to have a 
permanent barrier.
    In sum, the regulatory agency must determine the constituent 
concentration standards applicable to each site, approve the number, 
location, and installation of all wells used for monitoring, and 
determine when the initial and long-term stability standards are 
satisfied. See AMC II, 772 F.2d at 647-648 (Court affirms standards 
because ``they do not dictate the kind of monitoring system that must 
be used or the method by which purity levels must be achieved. These 
decisions are left to the implementing agency, the NRC.'') The 
regulatory agency is also responsible for approving the licensee's 
corrective action program and, when an excursion has occurred, 
determining when corrective action should begin and when it can cease. 
The regulatory agency may also bring enforcement actions against any 
non-compliant ISR facility. Thus, as required by UMTRCA, and consistent 
with the case law affirming the EPA's previous part 192 rulemakings, 
the implementation and enforcement of the proposed new standards remain 
with the regulatory agency.

B. Need for New Standards for Uranium ISR Facilities

    Several commenters concurred with the EPA's assessment that new 
standards are necessary for ISR facilities. These commenters noted that 
environmental impacts from ISR are significantly different from the 
impacts of conventional mining and milling. Commenters supported the 
EPA's conclusion that a more rigorous approach is warranted for 
determining background groundwater concentrations. They considered the 
preoperational monitoring requirements as necessary to establish 
appropriate concentration-based standards for each ISR facility. They 
also supported the stability-phase monitoring, which they considered 
important for demonstrating groundwater stability after restoration and 
for providing assurance groundwater quality will not degrade over time 
and that constituent migration will not occur in the future. One 
commenter felt that more rigorous standards with detailed restoration 
and long-term stability demonstrations were necessary to bring 
``coherency and accountability'' to ISR facilities. However, other 
commenters thought the rule was unnecessary and provided a variety of 
reasons to support their contentions. Most commenters felt the 
standards were not justified because the industry was already 
regulated, arguing that the EPA had failed to provide or quantify 
sufficient evidence that ISR poses a risk, or had failed to consider 
relevant data. A number of commenters asserted that EPA had not 
adequately addressed recommendations of the Agency's SAB. Many 
commenters noted that ISR facilities are already regulated by the EPA, 
the NRC, and states, and that the success of the existing regulatory 
oversight over the last 40 years proved that further regulation was not 
needed. In support of their statements, these commenters stated that 
there were no documented cases of off-site contamination of drinking 
water supplies from ISR activities in the United States. Other 
commenters noted that the new standards were unnecessary because ISR 
facilities are located in exempted aquifers under the SDWA in 40 CFR 
146.4 and cannot serve as sources of drinking water because the EPA has 
already determined the water is unsafe for human consumption. One 
commenter stated that the SDWA UIC program has requirements prohibiting 
injection of fluids where production fluids could migrate into non-
exempt aquifers and stated that these existing requirements were 
sufficient to protect groundwater. Other commenters argued the 
regulations were unnecessary because ISR facilities already collect 
background water quality data, restore groundwater impacted during 
recovery, and monitor for stabilization after restoration under the 
existing regulations. Some commenters felt the migration of uranium 
from ISR facilities was unproven. These commenters cited papers they 
said showed uranium had

[[Page 7420]]

not migrated from ISR facilities.\17\ A few commenters recommended the 
EPA postpone promulgation of the rule until additional research could 
be completed and the health and environmental risks better understood.
---------------------------------------------------------------------------

    \17\ The commenter cited the following two papers: (1) Basu, 
Anirban, et al., ``Isotopic and Geochemical Tracers for 
U(VI)Reduction and U Mobility at an In Situ Recovery U Mine'', 
Environmental Science Technology, April 24, 2015, 49(10), pages 
5939-5947; and (2) Reimus, Paul, ``Field Evaluation of the 
Restorative Capacity of the Aquifer Down Gradient of a Uranium In 
Situ Recovery Mining Site'' presented at the ``2015 In situ Recovery 
of Uranium Research Symposium'' held at the University of Wyoming, 
Laramie, Wyoming, April 21, 2015.
---------------------------------------------------------------------------

    The EPA disagrees with commenters who contend that new standards 
are unnecessary. First, it is in the national interest to protect 
groundwater resources. Water is becoming a scarce resource, 
particularly in the arid regions where most ISR currently operate. 
Groundwater in this region is not exclusively used for human 
consumption, and has other uses such as livestock production, crop 
irrigation, and wildlife support. The best way to preserve groundwater 
for all such uses is to prevent contamination by addressing the source 
of contamination. The SDWA UIC program plays an important role in 
protecting underground sources of drinking water. However, as discussed 
in section I.A. above, the scope and level of protection of the SDWA 
differs from the UMTRCA. The SDWA does not prevent recovery and use of 
the water within exempted aquifers (including where ISR operations were 
previously conducted) for private drinking water supply, public water 
supply, or other uses. UMTRCA provides authority that can be used to 
require restoration of the groundwater in the production zone and to 
protect the groundwater outside the production zone aquifer, during and 
after uranium recovery operations, regardless of whether the aquifer 
has been exempted from the protections of the SDWA.
    Thus, this proposed rule under UMTRCA is needed to establish 
generally-applicable groundwater standards for ISR facility restoration 
and require more extensive monitoring, modeling and analysis to ensure 
that groundwater restoration will endure. ISR alters the chemical 
composition of groundwater and creates reasons to be concerned about 
risk of mobilization of constituents. The EPA notes that several NRC-
regulated sites are continuing to work toward restoring groundwater 
with restoration and monitoring being conducted for as long as 10 years 
after ceasing production.\18\ In addition, restoration does not always 
meet original background levels as evidenced by the number of 
restoration goals above background or Table 1 levels.\19\ In addition, 
the NRC acknowledges that efficiency could be gained by codifying its 
longstanding effective regulatory regime into regulations specific to 
ISRs. As described in the original proposal, this rulemaking was 
initially prompted by the NRC's conclusion that ISR-specific rules are 
needed to create a more workable and sustainable regulatory framework 
for this activity, and is not based on any specific instances of 
identified contamination.\20\ The EPA considers the approach to 
protecting groundwater in this proposal to be reasonable and 
responsible. The EPA further notes that remediation of contaminated 
groundwater is more expensive and difficult to achieve than for surface 
waters because it is not easily accessible. It is more cost-effective 
to prevent contamination by ISR facilities than to clean it up after 
wide-spread contamination occurs.
---------------------------------------------------------------------------

    \18\ EPA (2016), ``Considerations Related to Post Closure 
Monitoring of Uranium In-Situ Leach/In-Situ Recovery Sites'', 
available in Docket ID No. EPA-HQ-OAR-2012-0788.
    \19\ Ibid.
    \20\ NRC (2006), ``Regulation of Groundwater Protection at In-
Situ Leach Uranium Extraction Facilities,'' COMJSM-06-001, January 
17, 2006; http://www.nrc.gov/reading-rm/doc-collections/commission/comm-secy/2006/2006-0001comjsm.pdf.
---------------------------------------------------------------------------

    Second, the information the EPA has reviewed indicates that current 
industry practices for restoration and monitoring of the affected 
aquifer may not be adequate to prevent degradation of water quality at 
ISR facilities or the more widespread contamination of surrounding 
groundwater that is suitable for human consumption. Historically, once 
restoration is halted, stability demonstrations at ISR facilities are 
typically conducted for only a short period, which may not be adequate 
to determine that restoration is complete and long-term stability 
established. Several instances are noted in section III.F.2 where 
facilities have monitored for lengthy periods after restoration was 
deemed to be complete, but have not been able to demonstrate stability 
for even the more limited times typically required under current 
practice. The initial and long-term stability monitoring and corrective 
action program included in the new proposed rule would provide greater 
confidence that both of these requirements are met before ISR 
facilities can be decommissioned.
    Finally, the EPA considers the existing regulations at 40 CFR part 
192 to be inadequate for addressing groundwater contamination from ISR 
facilities. Subparts A, B and C of 40 CFR part 192 apply to inactive 
uranium milling facilities, vicinity properties, and depository sites 
(i.e., Title I sites). Only subpart D is applicable to active uranium 
processing and disposal sites; however, subpart D primarily targets 
conventional milling as it contains provisions for managing uranium 
byproduct materials during and following the processing of uranium ore 
and for the restoration of disposal sites. Although the standards in 
subpart D applied to ISR facilities, ISR was not the predominant 
uranium extraction method at the time the standards were promulgated. 
ISR differs significantly from conventional mining and milling and 
consequently presents different environmental concerns from those of 
conventional mining and milling operations. For example, ISR does not 
generate large volumes of solid waste materials or require permanent 
tailings impoundments as does conventional mining and milling. At ISR 
facilities, the groundwater is directly impacted by the injection of 
lixiviant into the aquifer, which alters the geochemistry of the ore-
bearing formation and increases the concentration of radionuclides and 
other metals in the water. The purpose of restoration activities is to 
restore the groundwater to the applicable constituent concentration 
standards. Although subpart D addresses contamination of aquifers, it 
explicitly addresses only contamination resulting from releases from 
uranium mill tailings impoundments used to store uranium byproduct 
material (e.g., conventional tailings impoundments, evaporation or 
holding ponds). Under subpart F, the operator would be required to 
restore the groundwater in the production zone aquifer and surrounding 
aquifers to the applicable constituent concentration standards, to the 
extent possible, and to show some level of stability in the production 
zone prior to terminating the license. Because ISR changes the 
geochemistry of the groundwater, more rigorous stability-based 
standards together with corrective action programs are necessary to 
ensure that the production zone is restored and that restoration will 
persist in the future.
    Regarding comments that the EPA did not request or collect data 
from industry, the Agency disagrees. The EPA has appropriately 
considered available data to support its proposed rules and requested 
additional data from industry. During the SAB's public teleconferences 
in 2011, industry stakeholders stated that additional data

[[Page 7421]]

was available beyond that contained in EPA's draft report. The EPA 
requested this information from the National Mining Association in 
January 2012; however, the EPA found that the data provided by NMA had 
already been considered by the EPA. The EPA also provided an additional 
60 days for public comment on the original proposal for industry 
stakeholders to provide additional data. While the data did in some 
cases appear to involve longer-term monitoring at some sites, the 
information was largely piecemeal and lacking in context. Consequently, 
the EPA did not find this information useful.
    The EPA further believes the commenters have misinterpreted the SAB 
recommendation to constructing a database to support modeling and build 
an evidence base for EPA's rulemaking. In section 3.2, page 8, the SAB 
discusses the development of such a database. However, in section 3.3, 
the SAB goes on to recommend that ``for the near term, until the needed 
large evidence base is accumulated and systematized, that the EPA 
[should] articulate a set of guiding principles and assumptions on 
which to base regulations. The proposed standards can be based on these 
assumptions during the next several years, and superseded if evidence 
of their unsuitability becomes available.'' (emphases added). The SAB 
clearly did not intend for EPA's rulemaking to be held in abeyance 
until all available data had been collected, systematized, and 
analyzed. Rather, the SAB viewed this as a longer-term effort in which 
EPA's standards could be modified should the underlying assumptions not 
be supported by additional data. Further, because of the limited long-
term data available for sites once they have been deemed ``stable,'' 
which the SAB members recognized during the July 2011 meetings, in 
EPA's view this necessarily involved a period during which EPA's 
standards would be effective and require collection of such longer-term 
data.
    However, as mentioned earlier, given the concern about data 
collection and the comments concerning lack of state data, the EPA will 
consider additional data collection and analysis, including review of 
affected state regulatory programs. The Agency also takes issue with 
some comments characterizing the UIC program requirements. An aquifer 
exemption is not a judgment that the water is unsafe for human 
consumption. In most, if not all, cases, an ISR facility is provided 
with an aquifer exemption solely because of the presence of uranium 
that is economically producible. Further, while the UIC program 
objective is to prevent endangerment of USDWs, it is the responsibility 
of the permittee to operate in a manner that does not allow production 
fluids to migrate into non-exempt aquifers. 40 CFR 144.12(a).

C. Applicability

    Consistent with the original proposal, this proposed rule does not 
apply to licensed ISR facilities that are engaged in restoration, 
initial stability monitoring, or long-term stability monitoring. 
However, some commenters stated that the original proposed rule should 
not apply to existing ISR facilities that are currently operating. 
These commenters noted that it was not clear how an existing ISR 
facility would comply with the proposed rule for ISR wellfields that 
are already in the operational, restoration or stability monitoring 
phase. Commenters stated that preoperational background water quality 
would have already been established for operational wellfields, but the 
methods used to establish the background concentrations may not be 
consistent with the requirements in the proposed rule. They noted that 
it would not be possible to resample for background water quality for 
operating wellfields since the aquifers have already been changed by 
uranium recovery operations.
    The EPA sees no need to omit existing ISR facilities from this rule 
due to preoperational considerations. The NRC already requires ISR 
facilities to establish background conditions prior to beginning 
operation under 10 CFR part 40, Appendix A, Criterion A. Under this NRC 
guideline, an ISR facility must implement a preoperational monitoring 
program that provides complete baseline data on the facility and its 
surrounding area. In addition to the NRC guidelines, ISR facilities 
conduct studies of the ore zone prior to beginning production to 
collect data necessary for designing the ISR facility. Although the 
most appropriate monitoring would consist of a statistically 
representative sample of wells spatially distributed throughout the 
wellfield, the EPA recognizes that operating facilities cannot collect 
unaffected background samples at ISR facilities that are already 
operating. However, facilities that are already operating, but have not 
yet entered the restoration phase, can use the background data they 
collected prior to operation to set their constituent concentration 
standards. Even with limited data, existing ISR facilities can analyze 
the preoperational data they collected and develop a statistically 
meaningful data set to use as the basis for the constituent 
concentration standards and also define other aspects of the system, 
such as the flow regime, that are necessary to develop site models. 
Selecting high or the highest values of the chemical monitoring data 
would not be considered an appropriate basis for establishing 
background conditions. Further the collection of data to demonstrate 
stability would be essentially the same for all facilities.

D. The 95 Percent Confidence Level

    The original proposed rule contained a requirement to gather 
monitoring data sufficient to demonstrate the stability of groundwater 
with 95 percent confidence. Some commenters thought the 95 percent 
confidence level was too restrictive. These commenters stated that the 
EPA did not address properly the cost, both in dollars and water 
resources, required to achieve a 95 percent confidence level. Some of 
these commenters misinterpreted the 95 percent confidence requirement 
as a restoration goal requiring the constituent concentrations to be 
reduced by 95 percent, rather than a level of confidence in the 
statistical tests used to assess stability. Most commenters thought the 
95 percent confidence level was too high, while a few thought it was 
too low. A few comments addressed the general requirements to 
demonstrate that the hydrogeological and geochemical properties have 
been returned to preoperational condition and expressed concern the 95 
percent confidence level would be required for the statistical tests. 
Many of these comments indicated a concern with the high variability of 
these properties at ISR facilities. Concerns were raised that many of 
the ionic species are reported in the parts per billion and parts per 
million concentrations and duplication of analysis on the same sample 
can vary a few parts per million when samples are rerun.
    Some commenters thought that the original proposed rule was not 
sufficiently prescriptive. Several commenters expressed concern with 
the statistical tests recommended for detecting trends and for the 
comparison with baseline values. These commenters noted that important 
details required to implement the statistical tests are not provided in 
the proposed rule, including whether the statistical analysis is 
conducted for the well field as a whole, within clusters or well-by-
well; what parameter should be tested; and what requirements there are 
for the tests, particularly for the trend test.
    This proposal retains a 95 percent confidence level but makes it 
clear that

[[Page 7422]]

this is part of the generally applicable stability standard in both the 
initial and long-term stability phases. The 95 percent confidence level 
is used to define stability, and EPA considers a confidence level a 
measure of stringency of the standard. This is one approach for 
defining stability, but not necessarily the only approach. However, the 
EPA is concerned that a stability standard that lacks any statistical 
criterion would provide insufficient assurances that full restoration 
has been achieved and allow stringency of the standard to vary from 
site-to-site, thus failing to fulfill EPA's obligation to produce 
standards of general application. See AMC I, 772 F.2d at 638-639 
(finding the EPA failed to specify generally applicable standards by 
directing the regulatory agency to determine standards that could vary 
on site-specific basis). The EPA requests comment on alternative 
approaches that would present a rigorous benchmark against which to 
measure and ensure stability.
    The 95 percent confidence criterion would apply for all 
constituents. The proposed standards to demonstrate initial and long-
term stability with 95 percent confidence would be applied after 
restoration has been completed to confirm that the restoration was 
successful and likely to persist. Again, the EPA requests that 
commenters share examples where the 95 percent confidence level cannot 
be used or met and the limitations of these examples and the Agency 
invites commenters to propose other options that would clearly 
represent a valid and explicit groundwater stability standard that 
includes a measure of stringency.
    The EPA understands that NRC staff has attempted to use the 95 
percent confidence level for at least one facility (see the NRC 
presentation in the BID) but has concerns about its use in every case. 
The Agency considered changing the level of confidence, however the 95 
percent confidence level is the standard used under other regulatory 
programs, including the EPA's hazardous waste program. It is a widely 
accepted standard used across many industries that must monitor 
groundwater. Again, the EPA requests comment on the use of the 95 
percent confidence level as part of the stability standard and whether 
there are better or more practical ways to word the standards such that 
they present a clear level of stringency.
    The costs of conducting the statistical tests are related largely 
to the number of wells monitored and the duration and frequency of 
baseline and post-restoration monitoring. These costs are not related 
to the dollar and resource costs of restoration. The EPA recognizes 
there is a trade-off between the cost of additional monitoring and the 
level of confidence achieved in the confirmatory statistical tests. Due 
to the high variability in hydrogeological and geochemical properties 
it may be necessary to do more monitoring to compensate for the higher 
variability.
    While the proposed initial and long-term stability standards define 
stability as attaining 95 percent confidence, the methods to be used to 
demonstrate compliance would be determined by the regulatory agency. 
The BID \21\ provides suggested sampling plans for stability monitoring 
that include instructions for applying the parametric and nonparametric 
statistical tests to detect trends and for comparing with baseline 
values. Each statistical test has its own set of parameters, null and 
alternative hypotheses, decision rules and underlying assumptions about 
the data. However, it was not the intention of the EPA to provide 
detailed instructions for conducting the statistical tests in the rule. 
The licensee would be responsible for selecting the specific 
statistical test to be used for stability monitoring and comparisons 
with the baseline values. EPA expects that the regulatory agency would 
provide additional guidance regarding the statistical analysis required 
and the reasons for using the statistical test, the concepts of Type 1 
and Type 2 errors, the calculations required to perform the test, and 
how test results are interpreted. Information about what parameter is 
tested, the null and alternative hypotheses, requirements for 
implementing the statistical tests and tables for interpreting test 
results is included in the BID. Decisions concerning whether the 
statistical analyses are conducted for the well field as a whole, 
within clusters, or well-by-well would remain a responsibility of the 
regulatory agency.
---------------------------------------------------------------------------

    \21\ EPA (2016), ``Considerations Related to Post Closure 
Monitoring of Uranium In-Situ Leach/In-Situ Recovery Sites'', 
available in in Docket ID No. EPA-HQ-OAR-2012-0788.
---------------------------------------------------------------------------

V. Summary of Environmental, Cost and Economic Impacts

A. Environmental Impacts of the Proposed Rule on Groundwater Quality

    This proposed action reduces the risk of undetected contamination 
of groundwater resources surrounding ISR facilities both during uranium 
production and after production has ceased. During uranium production, 
the fluids injected to mobilize uranium change the chemistry of the 
aquifer from its original state, thereby mobilizing uranium and many 
other minerals and metals. Groundwater from the ISR production zone can 
migrate from the production zone and contaminate nearby groundwater 
with arsenic, barium, cadmium, chromium, lead, mercury, selenium, 
silver, nitrate, molybdenum, radium and uranium and other constituents. 
The new standards proposed in this action would reduce the risk of 
groundwater degradation both during the ISR operational phase and after 
an ISR operator's license is terminated and the facility is closed. 
This would be achieved through provisions requiring characterization of 
groundwater prior to uranium recovery and standards set to protect 
groundwater from excursions during the operational phase and standards 
for restoration to pre-operating conditions and stability after the 
operational phase ends. These proposed requirements would significantly 
reduce the probability that groundwater down-gradient from an ISR 
facility will become contaminated by radiological and non-radiological 
constituents. Through monitoring and corrective action programs, the 
new proposed standards would ensure potential excursions are detected 
and remedied in a timely manner. The proposed initial and long-term 
stability standards would ensure the ISR aquifer is stable prior to 
closure, reducing the potential for contamination to occur after 
uranium recovery has ceased and the ISR facility's operating license 
has been terminated following closure.

B. Incremental Costs of Complying With the Proposed Rule

    Using information on the uranium extraction industry, the EPA 
estimated incremental costs resulting from this proposal. Under this 
proposal, ISR facilities would be required to complete the following 
additional activities: (1) A comprehensive preoperational 
characterization of the area (including characterization of geochemical 
conditions); (2) monitoring for excursions during the operational and 
restoration phases; (3) three years of initial stability monitoring; 
and (4) long-term stability assessment, with a minimum of three years 
of additional monitoring, with the total duration of the long-term 
stability monitoring determined by the regulatory agency based on 
modeling and monitoring of geochemical conditions.
    Incremental costs attributable to the proposal are costs that would 
be higher under the proposal than they would be if 40 CFR part 192 was 
not revised. If no revisions were made to 40 CFR part 192, ISR 
facilities would be required by the NRC or agreement states to 
characterize preoperational conditions,

[[Page 7423]]

monitor for excursions during operational and restoration phases, and 
monitor after restoration to show that conditions are stable. The EPA 
consulted with the NRC to ensure that its characterization of 
compliance requirements in the absence of the rule accurately reflected 
current trends in the NRC's permit requirements. To estimate 
incremental costs of complying with the proposed rule, the EPA 
estimated the costs of complying with the proposal and then subtracted 
the costs of complying with the NRC's requirements in the absence of 
the rule. EPA requests comment on this approach.
    Under the proposal, the EPA estimates that ISR facilities would 
incur higher costs, for several reasons: (1) More monitoring wells 
would be required under the proposal; (2) more constituents would be 
monitored under the proposal; and/or (3) monitoring during the 
preoperational and stability phases would be required to continue for a 
longer period of time under the proposal. In addition, because the 
overall duration of monitoring prior to closure and license termination 
would be longer under the proposal, other non-monitoring costs would be 
incurred for several additional years, compared to requirements in the 
absence of the proposal.
    To estimate the incremental costs for complying with these 
additional proposed requirements, the EPA used ISR operations listed by 
the U.S. Energy Information Administration as likely affected ISR 
operations and a projected 2017 ISR uranium production of 3.3 million 
pounds. From this analysis, the EPA estimated low, average and high 
incremental costs of complying with the proposal; average incremental 
costs of complying with the proposal at approximately $1.96 per pound 
of uranium and an annual cost of $181,000 to $6.4 million for firms 
owning ISR facilities, depending on the number and scale of the ISR 
facilities they own. Nationally, the EPA estimates the incremental 
total annual cost of the proposal to be approximately $11.9 million, 
including incremental annualized capital costs and monitoring costs 
($4.3 million) and incremental annual non-monitoring costs ($7.6 
million). The EPA's estimated national incremental annualized costs for 
the original proposed rule totaled $13.5 million for monitoring and 
capital costs alone. Since the original proposal, the EPA learned from 
discussions with the NRC that many of the monitoring requirements of 
the proposed rule (and also those of the proposal) would already be 
embodied in expected NRC license requirements in the absence of the 
proposal. In addition, the EPA revised some of the rule's requirements 
to increase flexibility and reduce burden. For these reasons, the 
difference between the monitoring requirements and costs for the 
proposal and those for current practice (the incremental monitoring 
costs of the proposal) are estimated to be considerably lower than the 
estimates for the proposed rule. This reduction in incremental 
monitoring costs is largely offset by including, in response to public 
comment, estimated incremental non-monitoring costs). Overall, the 
EPA's estimate of incremental annualized costs of complying with the 
proposed rule is slightly lower than the costs estimated for the 
original proposal. For additional information regarding the methodology 
used to estimate the costs, see the technical document titled, 
``Economic Analysis: Revisions to the Health and Environmental 
Protection Standards for Uranium and Thorium Mill Tailings Rule (40 CFR 
part 192)'' available in Docket ID No. EPA-HQ-OAR-2012-0788.

C. Economic Impacts of the Proposed Rule on the Market for Uranium and 
the Uranium Industry

    The EPA estimated the impact of the proposal on the market for 
uranium using a simplified model of the U.S. market for uranium in 
2017, using 2015 market quantities as a proxy for market quantities in 
2017. EPA requests comment on this approach. The partial equilibrium 
model of the U.S. uranium market estimated market impacts and revealed 
the following: (a) Changes in the quantity of uranium purchased by U.S. 
COOs of nuclear power plants; (b) changes in the sales of domestically 
produced uranium and imports; and (c) changes in the market price for 
uranium. Based on average incremental costs of complying with the 
proposal, the EPA found that the market quantity of uranium purchased 
for use in electric generation is expected to decline by less than 0.01 
percent and the market price to increase by approximately 0.2 percent. 
Domestic ISR facilities are projected to decrease their production by 
approximately 6.7 percent, and imports of uranium are expected to 
increase by 0.4 percent. Because the cost of uranium is a very small 
share of the cost of electricity, the EPA estimates that the cost of 
generating electricity will likely increase by less than 0.1 percent 
due to this action. Although the national total annual cost of the 
proposal (approximately $11.9 million, based on average costs) is well 
below the $100 million threshold that is one of the criteria used to 
identify a significant regulatory action, the industry has only a small 
number of companies operating a small number of ISR facilities.
    The EPA used existing and planned ISR operations and the companies 
that own them as models for the types of facilities and companies 
affected by the proposal. This proposal would affect approximately 15 
ISR facilities that are currently operating or may operate in the near 
future. The 15 ISR facilities are owned by 9 firms. This action would 
apply to the following ISR facilities identified by the Energy 
Information Administration in 2015 as either operating, permitted and 
licensed, developing, or partially permitted and licensed: (1) Crow 
Butte (Nebraska) and (2) Smith Ranch-Highland (Wyoming), both owned by 
Cameco Resources; (3) Alta Mesa (Texas), and (4) Nichols Ranch 
(Wyoming) both owned by Energy Fuels; (5) Willow Creek, (6) Jab and 
Antelope, and (7) Moore Ranch (Wyoming), all owned by Uranium One/
Rosatom; (8) Hobson-La Palangana and (9) Goliad (Texas), both owned by 
Uranium Energy Corp.; (10) Lost Creek (Wyoming), owned by Ur-Energy 
Inc.; (11) Church Rock and (12) Crownpoint (New Mexico), both owned by 
Laramide; (13) Reno Creek (Wyoming), owned by Bayswater; (14) Dewey 
Burdock (South Dakota), owned by Azarga Uranium Corp.; and (15) Ross 
(Wyoming), owned by Peninsula Energy. Three other ISR projects 
(Kingsville Dome, Rosita, and Vasquez, owned by Uranium Resources, 
Inc.) are out of scope for the analysis because they are undergoing 
restoration or reclamation as of 2015. Using the Small Business 
Administration size standard for NAICS code 212291 (i.e., fewer than 
250 employees) all the parent company firms except Cameco Resources and 
Rosatom/Uranium One Americas, Inc. qualify as small businesses. Thus, 
the majority of the firms in NAICS 212291 are small firms.
    To evaluate the magnitude of the economic impacts of the proposed 
revisions to 40 CFR part 192 on firms owning ISR facilities, the EPA 
estimated the incremental costs that would be incurred by affected 
facilities including both monitoring and non-monitoring costs, summed 
costs to the firm-level, and compared each firm's estimated costs to 
estimated or reported firm revenues. EPA requests comment on this 
approach.
    Compiling these estimated costs at the parent company level and 
comparing them to estimated sales or reported sales for the parent 
company, average estimated annualized costs would range from 0.66 
percent to 2.78 percent of

[[Page 7424]]

average company sales for the seven small businesses, and 0.2 percent 
and 2.6 percent for the two large businesses. Of the seven small 
businesses, one firm has cost-to-sales ratio below 1 percent, three 
firms have cost-to-sales ratios between 1 percent and 2 percent, and 
three have cost-to-sales ratios between 2 percent and 3 percent. The 
EPA's estimated costs may overstate actual annual costs, especially for 
ISR facilities with large acreage, because the cost estimates are 
scaled based on the entire wellfield acreage, while ISR facilities 
typically have some wellfields in the operational phase and others in 
various stages of development and restoration or reclamation. Average 
costs based on total acreage may overstate costs incurred at some times 
during the life of the project. Further, the EPA included costs 
associated with all phases of operation for all ISR facilities; this 
would overstate costs for all wellfields currently operating, because 
it includes costs for preoperational monitoring and assessment. In 
addition, the EPA assumed that all ISR facilities would monitor for all 
Table 1 constituents during all phases of monitoring; in fact, the 
regulatory agency may specify monitoring for only those constituents 
expected to be present based on preoperational monitoring, which would 
reduce costs. While some costs may have been over-estimated, the EPA 
considers that values for firm revenues may be under-estimated. For 
facilities for which the EPA estimated sales revenues, the EPA assumed 
that production equaled 25 percent of capacity (based on average levels 
of capacity utilization over the period 2011 to 2015, which is a period 
with relatively low production). The EPA multiplied these relatively 
low estimated production values times market price to estimate revenue. 
For firms for which the EPA used 2015 reported revenues, these revenues 
similarly represent a time period when both production and price are 
lower than usual. Thus, the EPA may have underestimated the revenues 
ISR firms may earn in the future. Because no small firms incur costs 
exceeding 3 percent of sales, and because the costs may be 
overestimated while the future revenues underestimated, the EPA 
concludes that the proposal will not result in a significant impact to 
a substantial number of small entities. In addition to the direct 
economic impacts on ISR producers, the proposal may have indirect 
impacts on businesses that supply inputs to ISR producers (supply chain 
impacts), businesses located in areas near ISR facilities (consumption 
impacts), and local governments in those areas (revenue impacts). Some 
businesses and governments potentially indirectly affected by the 
proposal may be small entities. EPA's analysis projects that the costs 
of the proposal and direct impacts on ISR producers will generally be 
small; indirect impacts are typically smaller than direct impacts. 
Thus, the EPA projects that indirect impacts of the proposal would 
generally be small. Details of the economic analysis are presented in 
the technical document titled, ``Economic Analysis: Revisions to the 
Health and Environmental Protection Standards for Uranium and Thorium 
Mill Tailings Rule (40 CFR part 192)'' available in the docket for this 
action. EPA requests comment on the economic analysis.

D. Benefits of the Proposed Rule

    The EPA has conducted a qualitative assessment of the benefits of 
the proposal and has identified three principal benefits. First, the 
proposed rule would reduce the potential human health risks associated 
with human exposure to radionuclides, metals and other constituents in 
well water used for drinking and agriculture. The EPA considers water 
contaminated with radionuclides to be a potential pathway for exposure 
to radiation that can cause cancer and other health effects (e.g., 
kidney damage). Likewise, heavy metals and other contaminants can cause 
cancer and/or non-cancer health effects. By reducing the potential for 
contaminants to migrate into aquifers adjacent to ISR facilities, the 
proposal would reduce the potential human exposure to radionuclides, 
heavy metals and other groundwater contaminants from ISR operations and 
thus reduces the potential human health risks from these contaminants.
    Second, the proposal would protect valuable groundwater resources 
for future generations. Groundwater provides a valuable resource that 
is increasingly threatened by population growth and technological 
advances that have significantly increased groundwater extraction. 
Declining groundwater resources, especially in arid regions where ISR 
operations are mostly located, are a growing concern. Although the EPA 
is unable to quantify the value of the groundwater resources that would 
be protected by the proposal, groundwater resources are likely to 
become more valuable over time. By reducing the potential for 
groundwater contamination and ensuring that any migration of 
constituents from ISR operations is detected early, the proposal would 
help protect groundwater from contamination. Rapid detection of 
constituent migration from an ISR operation reduces the overall amount 
of contamination that must be remediated; early detection can trigger 
corrective action before a contaminated plume migrates into overlying 
and underlying aquifers and in areas located down-gradient from ISR 
facilities, thus reducing the risk of exposure to hazardous 
constituents. Reducing the risk of contamination of groundwater also 
protects the surface water bodies to which affected aquifers discharge. 
By combining sufficient duration of stability monitoring with 
hydrogeological and geochemical modeling and other analyses to 
demonstrate that groundwater constituent concentration standards will 
continue to be met, the proposal would reduce the risk that such 
migration of constituents above constituent concentration standards 
might occur after the ISR site is decommissioned and its license 
terminated.
    Finally, the proposed standards would reduce or avoid the costs of 
remediating contaminated groundwater by reducing the potential for 
groundwater contamination to occur and by causing any contamination 
that does occur to be discovered and remedied sooner than would be the 
case if the new standards were not issued. The costs incurred for 
cleaning up a plume of contamination may be significant. To illustrate 
the potential magnitude of the benefits associated with reduced or 
avoided remediation costs, the EPA compared remediation costs for a 
model facility under two scenarios: One without the proposed rule and 
one with the proposed rule. The difference in the total pump and treat 
remediation under the two scenarios illustrates the cost savings that 
could result from the rule for this hypothetical contamination episode. 
Using this approach, the EPA was able to illustrate the benefits of the 
proposed rule to be between $23.7 million and $608 million in avoided 
remediation costs over the entire remediation period for a single 
plume, including capital/well development costs and annual costs. The 
EPA was unable to estimate the potential avoided costs of remediation 
that would result from the proposed rule on a national scale because 
the EPA could not predict the number of incidents of groundwater 
contamination that would require remediation with and without the rule, 
or how long it would take for the groundwater contamination to be 
detected. However, the avoided remediation costs of this rule at the 
national level could be substantial based

[[Page 7425]]

on the estimated avoided remediation costs for a single model plume. 
The EPA requests comment on this approach. For additional information 
regarding the methodology used to estimate avoided costs, see section 
4.2.3 in the document titled, ``Economic Analysis: Revisions to the 
Health and Environmental Protection Standards for Uranium and Thorium 
Mill Tailings Rule (40 CFR part 192).'' available in Docket ID No. EPA-
HQ-OAR-2012-0788.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is a significant regulatory action that was submitted 
to the OMB for review. This action is considered a significant 
regulatory action because it may ``raise novel legal or policy issues 
arising out of legal mandates, the President's priorities, or the 
principles set forth in the Executive Order.'' Accordingly, the EPA has 
described the need for the proposal, prepared an economic analysis of 
the potential costs and benefits associated with this action, 
considered non-regulatory approaches, and submitted the rule to OMB for 
review. The economic and benefits analysis is contained in the document 
``Economic Analysis: Final Revisions to the Health and Environmental 
Protection Standards for Uranium and Thorium Mill Tailings Rule (40 CFR 
part 192),'' December 2016, available in the docket for this action. 
Any changes made in response to OMB recommendations have been 
documented in the docket.

B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under 
the provisions of the PRA because it does not impose any reporting 
requirements on affected facilities.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. The 
small entities subject to the requirements of this action are small 
businesses with fewer than 250 employees that are primarily engaged in 
leaching or beneficiation of uranium, radium or vanadium ores as 
defined by NAICS code 212291. No small organizations or small 
governmental entities have been identified that would be impacted by 
this proposed rulemaking.
    The Agency has determined that the seven small firms owning ISR 
facilities may experience an impact to average estimated annualized 
costs of between 0.66 percent and 2.78 percent of average company 
sales, with one firm expected to have a cost-to-sales ratio of below 1 
percent, three firms between 1 percent and 2 percent, and three between 
2 percent and 3 percent. Details of this analysis are presented in the 
technical document titled, ``Economic Analysis: Revisions to the Health 
and Environmental Protection Standards for Uranium and Thorium Mill 
Tailings Rule (40 CFR part 192),'' December 2016, available in the 
docket for this action.

D. Unfunded Mandates Reform Act (UMRA)

    This proposed action does not contain an unfunded mandate of $100 
million or more as described in the UMRA, 2 U.S.C. 1531-1538, and does 
not significantly or uniquely affect small governments. The action 
imposes no enforceable duty on any state, local or tribal governments 
or the private sector. This action contains no regulatory requirements 
or obligations that apply to small governments.

E. Executive Order 13132: Federalism

    This proposed action does not have federalism implications. It will 
not have substantial direct effects on the states, on the relationship 
between the national government and the states, or on the distribution 
of power and responsibilities among the various levels of government.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This proposed action does not have tribal implications, as 
specified in Executive Order 13175 (65 FR 67249, November 9, 2000). The 
action imposes requirements on licensees of ISR facilities and not on 
tribal governments. Thus, Executive Order 13175 does not apply to this 
action.
    Consistent with the EPA Policy on Consultation and Coordination 
with Indian Tribes, the EPA solicited and considered information 
submitted by tribal officials during the development of this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    This proposed action is not subject to Executive Order 13045 
because it is not an economically significant regulatory action as 
defined by Executive Order 12866. This action's health and risk 
assessments are contained in the document titled ``Ground Water 
Modeling Studies at In-Situ Leaching Facilities and Evaluation of Doses 
and Risks to Off-Site Receptors from Contaminated Ground Water'' 
available in Docket EPA-HQ-OAR-2012-0788. The EPA evaluated several 
regulatory strategies for assuring groundwater restoration and 
stability at ISR facilities and selected the option providing greatest 
assurance that groundwater systems will remain in a chemically reduced 
state. By setting new groundwater standards, which include improved 
monitoring and requirements to plan for and implement corrective 
measures for excursions and exceedances, this proposed rule reduces 
children's risk of exposure to contaminated groundwater.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution or Use

    This proposed action is not a ``significant energy action'' because 
it is not likely to have a significant adverse effect on the supply, 
distribution or use of energy. This action proposes standards 
applicable for uranium ISR facilities that do not directly impact 
energy supply, distribution or use. The proposed rule would increase 
the costs of domestic uranium producers relative to foreign producers; 
however, because domestic-source uranium generally constitutes between 
10 percent and 15 percent of total uranium purchased by COOs of nuclear 
power plants, the EPA does not expect the proposed rule to have a 
significant impact on uranium quantities or prices available to nuclear 
power generators, and essentially no impact on the quantity or price of 
electricity. Thus, the EPA has concluded that this proposed action is 
not likely to have any adverse effects on productivity, competition, or 
prices in the energy sector.

I. National Technology Transfer and Advancement Act

    This proposed rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    The EPA believes that this proposed action does not have 
disproportionately high and adverse human health or environmental 
effects on minority populations, low-income populations or indigenous 
peoples, as specified in Executive Order 12898 (59 FR 7629, February 
16, 1994).

[[Page 7426]]

    The documentation for this decision in contained in the document 
titled ``Ground Water Modeling Studies at In-Situ Leaching Facilities 
and Evaluation of Doses and Risks to Off-Site Receptors from 
Contaminated Ground Water'' available in Docket EPA-HQ-OAR-2012-0788. 
The proposed rule will reduce exposure to all populations by setting 
new groundwater standards, which include improved monitoring and 
requirements for planning for and implementing corrective measures when 
excursions and exceedances occur at ISR facilities. By increasing the 
level of environmental protection for all affected populations, 
including minority and low-income populations, this action will have a 
positive impact on human health and the environment.

List of Subjects in 40 CFR Part 192

    Environmental protection, Hazardous substances, Radiation 
protection, Radioactive materials, Reclamation, Uranium, Waste 
treatment and disposal, Water resources.

    Dated: January 3, 2017.
Gina McCarthy,
Administrator.

    For the reasons stated in the preamble, title 40, Chapter I of the 
Code of Federal Regulations is proposed to be amended as set forth 
below:

PART 192--HEALTH AND ENVIRONMENTAL PROTECTION STANDARDS FOR URANIUM 
AND THORIUM MILL TAILINGS

0
1. The authority citation for 40 CFR part 192 continues to read as 
follows:

    Authority: Sec. 275 of the Atomic Energy Act of 1954, 42 U.S.C. 
2022, as added by the Uranium Mill Tailings Radiation Control Act of 
1978, Pub. L. 95-604, as amended.

Subpart C--Implementation

0
2. Section 192.20 is amended by revising paragraph (b)(3) as follows:


Sec.  192.20  Guidance for implementation.

* * * * *
    (b) * * *
    (3) Compliance with Sec.  192.12(b) may be demonstrated by methods 
that the Department of Energy has approved for use or methods that the 
implementing agencies determine are adequate. Residual radioactive 
materials should be removed from buildings exceeding 0.03 WL so that 
future replacement buildings will not pose a hazard [unless removal is 
not practical, see Sec.  192.21(c)]. However, ventilation devices and 
other radon mitigation methods recommended by the EPA may provide 
reasonable assurance of reductions from 0.03 WL to below 0.02 WL. In 
unusual cases, indoor radiation may exceed the levels specified in 
Sec.  192.12(b) due to sources other than residual radioactive 
materials. Remedial actions are not required in order to comply with 
the standard when there is reasonable assurance that residual 
radioactive materials are not the cause of such an excess.
* * * * *

Subpart D [Amended]

0
3. The heading for Subpart D is revised to read as set forth below.
0
4. Section 192.31 is amended by revising paragraphs (a), (f), and the 
second sentence of paragraph (m).
    The revisions read as follows:

Subpart D--Standards for the Management of Uranium Byproduct 
Materials

* * * * *


Sec.  192.31  Definitions and cross-references.

    (a) Unless otherwise indicated in this subpart, all terms shall 
have the same meaning as in Title II of the Uranium Mill Tailings 
Radiation Control Act of 1978, subparts A and B of this part, or parts 
190, 260, 261, and 264 of this chapter. For the purposes of this 
subpart, the terms ``waste,'' ``hazardous waste'' and related terms, as 
used in parts 260, 261, and 264 of this chapter, shall apply to 
byproduct material.
* * * * *
    (f) Disposal area means the region within the perimeter of an 
impoundment or pile containing uranium byproduct materials to which the 
post-closure requirements of Sec.  192.32(b)(1) apply.
* * * * *
    (m) * * * This term shall not be construed to include extraordinary 
measures or techniques that would impose costs that are grossly 
excessive as measured by practice within the industry or one that is 
reasonably analogous (such as, by way of illustration only, 
unreasonable overtime, staffing or transportation requirements, etc., 
considering normal practice in the industry; laser fusion of soils, 
etc.), provided there is reasonable progress toward emplacement of a 
permanent radon barrier. * * *
* * * * *
0
5. Section 192.32 is amended by revising paragraph (a)(2)(v) as 
follows:


Sec.  192.32  Standards.

    (a) * * *
    (2) * * *
    (v) The functions and responsibilities designated in part 264 of 
this chapter as those of the ``Regional Administrator'' with respect to 
``facility permits'' shall be carried out by the regulatory agency.
* * * * *
0
6. Part 192 is amended by adding subpart F to read as follows:
Subpart F--Public Health, Safety and Environmental Protection Standards 
for Byproduct Materials Produced by Uranium In-Situ Recovery
Sec.
192.50 Purpose and applicability.
192.51 Definitions and cross-references.
192.52 Standards.
192.53 Monitoring programs, modeling and other analysis.
192.54 Alternate concentration limits.
192.55 Corrective action program.
192.56 Effective date.

Subpart F--Public Health, Safety and Environmental Protection 
Standards for Byproduct Materials Produced by Uranium In-Situ 
Recovery


Sec.  192.50  Purpose and applicability.

    (a) This rule contains standards of general application that the 
regulatory agency will implement and enforce to protect groundwater at 
in-situ uranium recovery facilities.
    (b) This subpart applies to the management of uranium byproduct 
materials prior to, during and following the processing of uranium ores 
utilizing uranium in-situ recovery methods, and to the protection of 
groundwater at such facilities. Within three years of the effective 
date of this rule, the regulatory agency shall apply these standards of 
general application to ISR facilities licensed to process uranium 
byproduct material.


Sec.  192.51  Definitions and cross-references.

    (a) Unless otherwise indicated in this subpart, all terms shall 
have the same meaning as in Title II of the Uranium Mill Tailings 
Radiation Control Act of 1978, subparts A, B, and D of this part, or 
parts 190, 260, 261, and 264 of this chapter.
    (b) Agreement State. Any State with which the Nuclear Regulatory 
Commission (NRC) or the Atomic Energy Commission has entered into an 
effective agreement under subsection 274b of the Atomic Energy Act.
    (c) Alternate Concentration Limit (ACL). An alternate concentration 
limit approved by the regulatory agency for a groundwater constituent 
after the regulatory agency determines that best practicable 
restoration activities have been completed and that concentrations of 
the constituent cannot be restored to the applicable standards in 40 
CFR 192.52(c)(1)(i) or (c)(1)(ii), following the process prescribed in 
Sec.  192.54.

[[Page 7427]]

    (d) Aquifer. A geological formation, group of formations, or part 
of a formation that is capable of yielding a significant amount of 
water to a well or spring. See 40 CFR 144.3.
    (e) Background. The condition of groundwater, including the 
radiological and non-radiological constituent concentrations, prior to 
the beginning of ISR operations.
    (f) Constituent. A detectable component within the groundwater.
    (g) Constituent concentration standard. A concentration limit for a 
constituent in groundwater set according to Sec.  192.52(c)(1).
    (h) Exceedance of a constituent concentration standard. An 
exceedance has occurred when, during stability monitoring, a 
constituent concentration standard is exceeded at any point of 
compliance well, as determined by the regulatory agency.
    (i) Excursion. The movement of fluids containing lixiviant or 
uranium byproduct materials from the production zone into surrounding 
groundwater. An excursion is considered to have occurred when two 
indicator parameters (e.g., chloride, conductivity, total alkalinity) 
exceed their respective upper control limits in any excursion 
monitoring well, or, as determined by the regulatory agency, when one 
indicator parameter significantly exceeds its upper control limit in 
any excursion monitoring well.
    (j) Excursion Monitoring Wells. Wells located around the perimeter 
of the production zone, including in overlying and underlying aquifers, 
which are used to detect any excursions from the production zone. These 
wells may also be used to demonstrate compliance with stability 
standards once restoration has been completed.
    (k) Extraction Well. Well used to extract uranium enriched 
solutions from the ore-bearing aquifer; also known as a production 
well. Extraction and injection wells may be converted from one use to 
the other.
    (l) Indicator Parameter. A constituent, such as chloride, 
conductivity or total alkalinity, whose upper control limit is used to 
identify an excursion. Indicator parameters are not necessarily 
contaminants, but relate to geochemical conditions in groundwater.
    (m) Initial Stability Phase. The period immediately following the 
restoration phase when the wellfield is monitored to determine if and 
when the initial stability standards are met. This is the period in 
which provisional alternate concentration limits may be established and 
implemented, if necessary.
    (n) Injection Well. A well into which fluids are being injected. 
See 40 CFR 144.3.
    (o) In-Situ Recovery (ISR). A method by which uranium is leached 
from underground ore bodies by the introduction of a solvent solution, 
called a lixiviant, through injection wells drilled into the ore body. 
The process does not require the extraction of ore from the ground. The 
lixiviant is injected, passes through the ore body, and mobilizes the 
uranium; the uranium-bearing solution is pumped to the surface via 
extraction wells. The pregnant leach solution is processed to extract 
the uranium.
    (p) Listed Constituent. One of the twelve groundwater constituents 
specified in Table 1 to this subpart.
    (q) Lixiviant. A liquid medium used to recover uranium from 
underground ore bodies through in-situ recovery. This liquid medium 
typically contains native groundwater and an added oxidant, such as 
oxygen or hydrogen peroxide, as well as sodium carbonate, sodium 
bicarbonate or carbon dioxide.
    (r) Long-Term Stability Phase. The period after the constituent 
concentration standards have been met and initial stability has been 
demonstrated according to Sec.  192.52(c)(2), as determined by the 
regulatory agency. The regulatory agency sets the extent of time the 
facility remains in the long-term stability phase.
    (s) Maximum Constituent Concentration. The maximum permissible 
level of a constituent in groundwater, as established under Sec.  
192.52(c)(1).
    (t) Maximum Contaminant Level (MCL). The maximum permissible level 
of a contaminant in water delivered to any user of a community water 
system. See 40 CFR 141.2.
    (u) Monitoring Wells. Wells used to obtain groundwater levels and 
water samples for the purpose of determining the hydrogeological regime 
and the amounts, types and distribution of constituents in the 
groundwater. Wells are located in the production zone, around the 
perimeter of the production zone and in overlying and underlying 
aquifers.
    (v) Operational Phase. The time period during which uranium 
recovery occurs. Operation begins when extraction begins and lixiviant 
is injected. Operation ends when the operator permanently ceases 
injection of lixiviant and recovery of uranium-bearing solution for 
processing purposes. The operational phase includes periods during 
which the ISR temporarily ceases uranium recovery (i.e., when the ISR 
is in ``stand-by'' mode) but the ISR still needs to maintain 
appropriate groundwater controls to prevent contaminants from leaving 
the production zone.
    (w) Overlying Aquifer. An aquifer that is immediately vertically 
shallower than (i.e., directly above) the production zone aquifer.
    (x) Point(s) of Compliance. Locations where groundwater protection 
standards are generally applied. The regulatory agency reviews and 
approves the location of points of compliance for the wellfield. During 
all phases of ISR, points of compliance should include excursion 
monitoring well locations; during the initial and long-term stability 
phases, points of compliance should also include wells in the 
production zone.
    (y) Point(s) of Exposure. Used in setting ACLs, points of exposure 
are locations identified by the regulatory agency that represent 
possible future areas of exposure where the receptor can come into 
contact with groundwater (e.g., areas of recoverable groundwater). The 
groundwater at that point of exposure must be protective of the 
receptor.
    (z) Preoperational Monitoring. Measurement of groundwater 
conditions in the production zone, up and down gradient of the 
production zone and in overlying and underlying aquifers, when present. 
Preoperational monitoring plans are subject to approval by the 
regulatory agency prior to the operational phase.
    (aa) Production Zone. The portion of the aquifer in which in-situ 
recovery occurs. The production zone lies within the wellfield.
    (bb) Regulatory Agency. The NRC or an Agreement State.
    (cc) Restoration (Act of). The process of remediating groundwater 
to a state where it meets the constituent concentration standards 
listed in 40 CFR 192.52(c)(1).
    (dd) Restoration Phase. The period immediately after lixiviant 
injection permanently ceases, during which restoration activities 
occur.
    (ee) Underlying Aquifer. An aquifer that is immediately vertically 
deeper (i.e., directly below) than the production zone aquifer.
    (ff) Upper Control Limit (UCL). Upper control limits are maximum 
concentrations for excursion indicator parameters that, when exceeded, 
indicate lixiviant or other constituents are migrating beyond the 
production zone.
    (gg) Uranium Recovery Facility. A facility licensed to process 
uranium ores primarily for the purpose of recovering

[[Page 7428]]

uranium (and/or thorium) and to manage uranium (and/or thorium) 
byproduct materials that result from processing of ores. Common names 
for these facilities include, but are not limited to, the following: A 
conventional uranium mill, an in-situ recovery (or leach) facility, and 
a heap leach facility or pile.
    (hh) Wellfield. The area of an ISR operation that encompasses the 
array of injection, extraction and monitoring wells, ancillary 
equipment and interconnected piping employed in the uranium in-situ 
recovery process. The area of the wellfield exceeds that of the 
production zone.


Sec.  192.52  Standards.

    (a) No later than three years after the effective date of this 
rule, all operating wellfields, new wellfields and expansions of 
wellfields at ISR facilities must meet the standards in this section. 
These standards do not apply to those wellfields at licensed ISR 
facilities that, within three years of the effective date of this rule, 
are in and remain in the restoration, initial stability monitoring or 
long-term stability monitoring phases.
    (b) Surface impoundments. (1) Surface impoundments associated with 
ISR activities shall conform to the standards of Sec.  192.32.
    (2) Disposal of solid uranium byproduct materials produced by ISR 
activities shall conform to the standards in Sec.  192.32.
    (c) Groundwater protection standards. The constituent concentration 
standards, in paragraph (c)(1) of this section, must be met after 
restoration or corrective action and are also incorporated into the 
initial and long-term stability standards. The initial stability 
standards, in paragraph (c)(2) of this section, are a measure of the 
effectiveness of restoration and must be met prior to meeting the long-
term stability standards. The long-term stability standards, in 
paragraph (c)(3) of this section, must be met prior to decommissioning 
and termination of the ISR facility's license.
    (1) Constituent concentration standards. The licensee shall propose 
and the regulatory agency shall review and approve constituent 
concentration standards for each of the constituents listed in Table 1 
to this subpart that are identified by the licensee and approved by the 
regulatory agency as being present or affected by operations in the 
production zone. The limit for each constituent is the highest level of 
the following values:
    (i) That constituent's preoperational background level in and 
around the wellfield, as determined by preoperational monitoring 
conducted under Sec.  192.53(a); or
    (ii) the lowest regulatory standard for that constituent found in 
40 CFR 141.61, 141.62, 141.66, 141.80, 143.3, 264.94, or Table 1 of 
subpart A of this part. For any constituent not listed in Table 1 to 
this subpart, but designated by the regulatory agency for monitoring, a 
constituent concentration standard at or above the background level 
should be established from the values in 40 CFR parts 141, 143 or 264, 
if such values exist. For a constituent not found in 40 CFR parts 141, 
143 or 264, the constituent concentration standard above the background 
level should be established at a concentration level that represents a 
cumulative excess lifetime risk no greater than 10-\4\ to an 
average individual;
    (iii) an alternate concentration limit for that constituent as 
approved by the regulatory agency under Sec.  192.54.

     Table 1 to Subpart F--Maximum Concentration of Constituents for
              Groundwater Protection at ISR Facility Sites
------------------------------------------------------------------------
              Constituent                     Maximum concentration
------------------------------------------------------------------------
Arsenic, Barium, Cadmium, Chromium,      The constituent concentration
 Lead, Mercury, Selenium, Silver,         standard is the primary or
 Nitrate (as N), Molybdenum, Radium-226   secondary MCL listed in 40 CFR
 and radium-228 (combined), Uranium       141.61, 141.62, 141.66,
 (uranium-234, uranium-235 and uranium-   141.80, and 143.3, the maximum
 238 combined).                           concentration of hazardous
                                          constituents for groundwater
                                          protection under 40 CFR
                                          264.94, or the maximum
                                          constituent concentration
                                          specified in Table 1 to
                                          subpart A of this part,
                                          whichever value is the lowest.
                                         Where a background
                                          concentration is determined to
                                          be higher than the lowest
                                          value in the applicable
                                          regulations, the background
                                          concentration will serve as
                                          the constituent concentration
                                          standard.
------------------------------------------------------------------------

    (2) Initial Stability Standards. The licensee must demonstrate to 
the satisfaction of the regulatory agency that groundwater conditions 
are stable by showing three consecutive years of quarterly monitoring 
results with no statistically significant increasing trends that would 
exceed the constituent concentration standards at the 95 percent 
confidence level. This showing shall be based on monitoring data 
collected in accordance with Sec.  192.53(c).
    (3) Long-term Stability Standards. After meeting the initial 
stability standards in paragraph (c)(2) of this section, the licensee 
must demonstrate to the satisfaction of the regulatory agency that 
groundwater conditions will remain stable into the future by showing:
    (i) Three consecutive years of quarterly monitoring results 
demonstrating no statistically significant increasing trends that would 
exceed the constituent concentration standards at the 95 percent 
confidence level. This showing shall be based on monitoring data 
collected in accordance with the Sec.  192.53(d); and
    (ii) the applicable constituent concentration standards will 
continue to be met into the future. This showing shall be based on the 
information collected under Sec.  192.53(d), including monitoring data, 
geochemical modeling, and other analysis required by the regulatory 
agency.


Sec.  192.53  Monitoring programs, modeling and other analysis.

    Licensees subject to this subpart must conduct a groundwater 
monitoring program, subject to review and approval by the regulatory 
agency, at prospective and licensed ISR wellfields. The components of 
the program include pre-operational monitoring to determine 
statistically valid background levels, excursion monitoring to identify 
and correct excursions, and initial and long-term stability monitoring. 
This program shall address all phases of the uranium recovery 
activities and must be conducted as follows:
    (a) General monitoring program requirements and preoperational 
monitoring.
    (1) A sufficient number of wells, at appropriate locations and 
depths, shall

[[Page 7429]]

be installed in such a manner as to yield representative samples in 
order to define the groundwater flow regime and measure preoperational 
conditions and water quality during background determination, 
operations, restoration, initial stability and long-term stability.
    (2) All monitoring wells must be installed and developed as 
directed by the regulatory agency to maintain well integrity, allow for 
accurate sample collection and prevent contamination of samples.
    (3) The preoperational monitoring shall include the production zone 
and areas immediately surrounding the production zone, as identified by 
the regulatory agency, including up- and down-gradient areas outside of 
the production zone.
    (4) During the preoperational monitoring effort, relevant data 
documenting geology, hydrology and geochemistry for radiological and 
non-radiological constituents shall be collected as required by the 
regulatory agency, both in the production zone and in surrounding areas 
that may be affected by the ISR operations.
    (i) The monitoring effort shall be of sufficient scope and duration 
to adequately characterize temporal (e.g., no less than one year where 
seasonal variation is expected) and spatial variations in groundwater, 
using statistically valid approaches to evaluate groundwater quality 
trends and ensure adequate background characterization of the wellfield 
and adjacent areas. If monitoring is to be conducted for less than one 
year, it must be sufficient to demonstrate that the measured 
constituents do not reflect impacts associated with well construction.
    (ii) Preoperational monitoring shall be focused on determining 
background concentrations of constituents and indicator parameters in 
the following locations:
    (A) Points of compliance within the proposed production zone; and
    (B) Points of compliance outside the production zone including 
point of compliance screened in potentially affected overlying and 
underlying aquifers (when present); and points of compliance screened 
in upgradient and downgradient aquifers (when present).
    (5) The licensee shall employ appropriate statistical techniques to 
analyze background concentrations measured in individual wells within 
the wellfield and in any other wells identified by the regulatory 
agency for the purpose of determining constituent concentration 
standards. Background concentrations used to establish the constituent 
concentration standards may be representative of individual wells, 
multiple wells, or all wells within the proposed production zone and 
are subject to review and approval by the regulatory agency.
    (6) Radiological and non-radiological constituents to be monitored 
during the preoperational phase shall include:
    (i) All constituents listed in Table 1 of this subpart;
    (ii) Constituents and parameters as determined by the regulatory 
agency to be necessary to characterize the geochemistry of the 
groundwater and to demonstrate that the applicable constituent 
concentration standards have been met and will continue to be met into 
the future; and
    (iii) Any additional constituents or parameters required by the 
regulatory agency, such as metals potentially mobilized by the recovery 
process.
    (b) Excursion Monitoring.
    (1) Indicator parameters, as established by the regulatory agency, 
shall be monitored in excursion monitoring wells surrounding the 
production zone, including aquifers above and below the production 
zone, at a minimum throughout the operational and restoration phases of 
ISR activities.
    (2) If an excursion is detected as evidenced by indicator 
parameters exceeding established upper control limits, as determined by 
the regulatory agency, corrective action under Sec.  192.55 must be 
initiated and constituents listed in Table 1 of this subpart expected 
to be present (e.g., uranium, radium, arsenic, and selenium) and any 
other constituent identified by the regulating agency shall be 
monitored until the excursion is controlled.
    (c) Initial Stability Monitoring.
    (1) Once the regulatory agency determines restoration is complete, 
the licensee shall begin its initial stability monitoring as described 
in paragraphs (c)(2), (3), and (4) of this section to meet its initial 
stability standards as described in Sec.  192.52(c)(2).
    (2) The constituents to be monitored at the points of compliance 
shall include:
    (i) All constituents having a constituent concentration standard 
and expected to be present, as determined by the regulatory agency 
under Sec.  192.52(c)(1);
    (ii) Any additional constituents required by the regulatory agency, 
such as:
    (A) Constituents and parameters necessary to characterize the 
geochemistry of the groundwater and other analysis to demonstrate that 
the applicable constituent concentration standards have been met and 
will continue to be met into the future;
    (B) Components of the lixiviant fluids injected during uranium 
recovery and any fluids injected during restoration; or
    (C) Metals potentially mobilized by the uranium recovery process 
that could reasonably be expected to be found in the groundwater.
    (3) If the licensee finds that the initial stability standard in 
Sec.  192.52(c)(2) cannot be demonstrated for one or more constituents, 
the regulatory agency may:
    (i) Require the licensee to resume active restoration efforts; or
    (ii) After all best practicable active restoration activities have 
been completed, establish a provisional alternate concentration limit 
according to the requirements of Sec.  192.54. Once initial stability 
according to the standard in Sec.  192.52(c)(2) at the provisional 
alternate concentration limit has been documented, the regulatory 
agency may establish a final alternate concentration limit according to 
the requirements of Sec.  192.54.
    (4) If the regulatory agency determines that a constituent exceeds 
a constituent concentration standard in Sec.  192.52(c)(1) at a point 
of compliance, the licensee, as directed by the regulatory agency, must 
undertake corrective action under Sec.  192.55 until the regulatory 
agency determines that the exceedance of the constituent concentration 
standard is adequately remedied.
    (d) Long-term stability monitoring, modeling and other analysis.
    (1) Once the regulatory agency determines the initial stability 
standards have been met, the licensee shall begin conducting long-term 
stability monitoring as described in paragraph (d)(2) of this section 
to demonstrate it meets its long-term stability standards, established 
under Sec.  192.52(c)(3).
    (2) The constituents to be monitored at the points of compliance 
shall include:
    (i) All constituents having a constituent concentration standard 
expected to be present, as determined by the regulatory agency under 
Sec.  192.52(c)(1);
    (ii) Any additional constituents required by the regulatory agency, 
such as:
    (A) Constituents and parameters necessary to characterize the 
geochemistry of the groundwater and modeling and other analysis to 
demonstrate that the applicable constituent concentration standards 
have been met and will continue to be met into the future;
    (B) Components of the lixiviant fluids injected during uranium 
recovery and any fluids injected during restoration; or
    (C) Metals potentially mobilized by the uranium recovery process 
that could

[[Page 7430]]

reasonably be expected to be found in the groundwater.
    (3) If the regulatory agency finds that one or more constituents at 
a point of compliance within the wellfield exceeds a constituent 
concentration standard as defined in Sec.  192.52(c)(1) then, as 
directed by the regulatory agency, the licensee must undertake 
corrective action under Sec.  192.55 until the regulatory agency 
determines that the exceedance of the constituent concentration 
standard(s) is adequately remedied.
    (4) If the licensee finds that the long-term stability standard in 
Sec.  192.52(c)(3) cannot be demonstrated for one or more constituents, 
the regulatory agency may:
    (i) Require the licensee to resume active restoration efforts; or
    (ii) After all best practicable active restoration activities have 
been completed, establish an alternate concentration limit according to 
the requirements of Sec.  192.54.
    (5) In addition to the long-term stability monitoring requirements 
described in paragraph (d)(2) of this section, the licensee must 
provide to the regulatory agency geochemical modeling and other 
analysis sufficient to demonstrate that the long-term stability 
standard in Sec.  192.52(c)(3) has been met.
    (6) The licensee must continue its long-term stability monitoring 
until the regulatory agency determines that the long-term stability 
standard in Sec.  192.52(c)(3) has been met and releases the facility 
from monitoring.


Sec.  192.54  Alternate Concentration Limits.

    (a) Provisional Alternate Concentration Limits. The regulatory 
agency may establish a provisional alternate concentration limit within 
the production zone for any constituent that meets the following 
conditions:
    (1) The regulatory agency determines that all best practicable 
active restoration activities have been completed in accordance with 
the license, and that the previously approved constituent concentration 
standard under Sec.  192.52(c)(1)(i) or (ii) are not reasonably 
achievable; and
    (2) The constituent will not pose a substantial present or 
potential hazard to human health or the environment as long as the 
provisional alternate concentration limit is not exceeded; and
    (3) The constituent concentration standard, as determined under 
paragraph (c)(1) of this section, is satisfied at all points of 
exposure in the wellfield and in surrounding aquifers.
    (b) Final Alternate Concentration Limits. The regulatory agency may 
approve a final alternate concentration limit provided that the 
following conditions are met:
    (1) The licensee has demonstrated initial groundwater stability as 
defined in Sec.  192.52(c)(2); and (2) The constituent will not pose a 
substantial present or potential future hazard to human health or the 
environment as long as the final alternate concentration limit is not 
exceeded.
    (c) In deciding whether to approve a provisional or a final 
alternate concentration limit, the regulatory agency shall consider, at 
a minimum, the following factors:
    (1) Potential adverse effects on groundwater quality, considering:
    (i) The physical and chemical characteristics of constituents in 
the groundwater at the site, including their potential for migration;
    (ii) The hydrogeological characteristics (e.g., groundwater 
velocity) of the site and surrounding land;
    (iii) The quantity of groundwater and the direction of groundwater 
flow;
    (iv) The proximity and withdrawal rates of local groundwater users;
    (v) The current and anticipated future uses of groundwater in the 
region surrounding the site;
    (vi) The existing quality of groundwater, including other sources 
of contamination and their cumulative impact on groundwater quality;
    (vii) The potential for health risks caused by human exposure to 
constituents;
    (viii) The potential damage to wildlife, crops, vegetation, and 
physical structures caused by exposure to constituents; and
    (ix) The persistence and permanence of the potential adverse 
effects.
    (2) Potential adverse effects on hydraulically-connected surface-
water quality, considering:
    (i) The volume and physical and chemical characteristics of the 
groundwater at the site;
    (ii) The hydrogeological characteristics of the site and 
surrounding land;
    (iii) The quantity and quality of groundwater, and the direction of 
groundwater flow;
    (iv) The patterns of rainfall in the region;
    (v) The proximity of the site to surface waters;
    (vi) The current and future uses of surface waters in the region 
surrounding the site and any water quality standards established for 
those surface waters;
    (vii) The existing quality of hydraulically-connected surface 
water, including other sources of contamination and their cumulative 
impact on surface water quality;
    (viii) The potential for health risks caused by human exposure to 
constituents;
    (ix) The potential damage to wildlife, crops, vegetation, and 
physical structures caused by exposure to constituents; and
    (x) The persistence and permanence of the potential adverse 
effects.
    (3) The presence of any underground source of drinking water.


Sec.  192.55  Corrective action program.

    (a) A corrective action program shall be developed by the licensee 
and approved by the regulatory agency for each ISR site at the time of 
licensing. The plan shall address a range of possible scenarios (e.g., 
types and routes of potential excursions) and list options for 
corrective action for operational through long-term stability phases. 
If an excursion is detected at a licensed ISR facility at any time, a 
constituent concentration standard is exceeded during the initial or 
long-term stability phases, or the regulatory agency is concerned about 
an increasing trend in stability monitoring results, the applicable 
portions of the corrective action program shall be initiated as soon as 
is practicable, and in no event later than 60 days after such an 
occurrence. With the objective of returning constituent concentration 
levels in groundwater to the constituent concentration standards 
established under Sec.  192.52(c)(1), the corrective action program 
shall address removing constituents at the point of compliance or 
treating them in place.
    (b) The licensee shall continue corrective action measures to the 
extent necessary to achieve and maintain compliance with the 
constituent concentration standards in Sec.  192.52(c)(1). The 
regulatory agency will determine when the licensee may terminate 
corrective action measures based on data from the groundwater 
monitoring program and other information that provides reasonable 
assurance that the constituent concentration standards in Sec.  
192.52(c)(1) will not be exceeded.
    (c) Upon termination of any corrective action initiated during 
long-term stability monitoring, the licensee shall then be subject to 
the initial and long-term stability standards specified in Sec.  
192.53(c)(2) and (3).


Sec.  192.56  Effective date.

    Subpart F shall be effective on [60 DAYS AFTER DATE OF PUBLICATION 
OF FINAL RULE IN FEDERAL REGISTER].

[FR Doc. 2017-00573 Filed 1-18-17; 8:45 am]
 BILLING CODE 6560-50-P



                                                      7400                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules

                                                      ENVIRONMENTAL PROTECTION                                allowing more flexibility for the NRC or               your identity or contact information
                                                      AGENCY                                                  Agreement States to determine on a site-               unless you provide it in the body of
                                                                                                              specific basis the constituents for which              your comment. If you send an email
                                                      40 CFR Part 192                                         concentration based standards are set.                 comment directly to the EPA without
                                                      [EPA–HQ–OAR–2012–0788; FRL–9958–12–                     The EPA has also sought to clarify how                 going through www.regulations.gov,
                                                      OAR]                                                    these standards under UMTRCA                           your email address will be
                                                                                                              complement, and do not overlap with,                   automatically captured and included as
                                                      RIN 2060–AP43                                           the requirements of the Safe Drinking                  part of the comment that is placed in the
                                                                                                              Water Act (SDWA).                                      public docket and made available on the
                                                      Health and Environmental Protection                        This action also proposes
                                                      Standards for Uranium and Thorium                                                                              Internet. If you submit an electronic
                                                                                                              amendments to certain provisions of the                comment, the EPA recommends that
                                                      Mill Tailings                                           existing rule to address a ruling of the               you include your name and other
                                                      AGENCY:  Environmental Protection                       Tenth Circuit Court of Appeals, to                     contact information in the body of your
                                                      Agency (EPA).                                           update a cross-reference to another                    comment and with any disk or CD–ROM
                                                      ACTION: Proposed rule.                                  environmental standard and to correct                  you submit. If the EPA cannot read your
                                                                                                              certain technical and typographical                    comment due to technical difficulties
                                                      SUMMARY:    The U.S. Environmental                      errors. The proposed rule has been                     and cannot contact you for clarification,
                                                      Protection Agency (EPA) is proposing                    informed by input from the NRC, the                    the EPA may not be able to consider
                                                      new health and environmental                            U.S. Department of Energy (DOE), states,
                                                      protection standards under the Uranium                                                                         your comment. Electronic files should
                                                                                                              tribes, industry, environmental groups                 avoid the use of special characters, any
                                                      Mill Tailings Radiation Control Act                     and other stakeholders, and would
                                                      (UMTRCA) of 1978. The standards                                                                                form of encryption, and be free of any
                                                                                                              promote public health and protect
                                                      proposed in this action would be                                                                               defects or viruses. For additional
                                                                                                              groundwater by reducing the potential
                                                      applicable to byproduct materials                                                                              information about the EPA’s public
                                                                                                              for groundwater contamination after
                                                      produced by uranium in-situ recovery                                                                           docket visit the EPA Docket Center
                                                                                                              production has ceased, and in aquifers
                                                      (ISR) and would be implemented by the                   adjacent to ISR facilities during uranium              homepage at http://www.epa.gov/
                                                      U.S. Nuclear Regulatory Commission                      recovery.                                              epahome/dockets.htm.
                                                      (NRC) and NRC Agreement States. The                     DATES: Comments must be received on                      Docket: All documents in the docket
                                                      EPA initially proposed new health and                   or before July 18, 2017.                               are listed in the www.regulations.gov
                                                      environmental protection standards for                  ADDRESSES: Submit your comments,                       index. Although listed in the index,
                                                      ISR facilities on January 26, 2015;                     identified by Docket ID No. EPA–HQ–                    some information is not publicly
                                                      however, the EPA has decided to re-                     OAR–2012–0788, by one of the                           available, e.g., CBI or other information
                                                      propose the rule and seek additional                    following methods:                                     whose disclosure is restricted by statute.
                                                      public to comment on changes to the                        • www.regulations.gov: Follow the                   Certain other material, such as
                                                      original proposal, including changes in                 on-line instructions for submitting                    copyrighted material, will be publicly
                                                      the regulatory framework and approach,                  comments.                                              available only in hard copy. Publicly
                                                      based on public comment and new                            • Email: a-and-r-docket@epa.gov.                    available docket materials are available
                                                      information received from stakeholders.                    • Fax: (202) 566–9744.                              either electronically in
                                                         The first standards for uranium                         • Mail: Air and Radiation Docket,                   www.regulations.gov or in hard copy at
                                                      recovery were issued by the EPA in                      Environmental Protection Agency,                       the Office of Air and Radiation Docket,
                                                      1983 when conventional mining and                       Mailcode: 2822T, 1200 Pennsylvania                     EPA/DC, EPA West, Room 3334, 1301
                                                      milling were the predominant methods                    Ave. NW., Washington, DC 20460.                        Constitution Ave. NW., Washington,
                                                      of uranium extraction, and were last                       • Hand Delivery: EPA West Building,                 DC. The Public Reading Room is open
                                                      amended in 1995. Since the early 1990s,                 Room 3334, 1301 Constitution Ave.                      from 8:30 a.m. to 4:30 p.m., Monday
                                                      ISR has mostly replaced conventional                    NW., Washington, DC 20004. Such                        through Friday, excluding legal
                                                      milling. This proposed rule would                       deliveries are only accepted during the                holidays. The telephone number for the
                                                      strengthen the existing regulations for                 Docket’s normal hours of operation;                    Public Reading Room is (202) 566–1744,
                                                      uranium recovery by adopting new                        special arrangements should be made                    and the telephone number for the Air
                                                      standards addressing groundwater                        for deliveries of boxed information.                   and Radiation Docket is (202) 566–1742.
                                                      hazards specific to ISR facilities. As                     Instructions: Direct your comments to
                                                      with the original proposal, the primary                 Docket ID No. EPA–HQ–OAR–2012–                         FOR FURTHER INFORMATION CONTACT:
                                                      focus of this proposal is groundwater                   0788. The EPA’s policy is that all                     Ingrid Rosencrantz, Office of Radiation
                                                      protection, restoration and long-term                   comments received will be included in                  and Indoor Air, Radiation Protection
                                                      stability.                                              the public docket without change and                   Division, Mailcode 6608T, U.S.
                                                         The most significant changes from the                may be made available online at                        Environmental Protection Agency, 1200
                                                      original proposal include: Removing the                 www.regulations.gov, including any                     Pennsylvania Ave. NW., Washington,
                                                      default 30-year long-term monitoring                    personal information provided, unless                  DC 20460; telephone number: (202)
                                                      provision and shifting to a Resource                    the comment includes information                       343–9286; fax number: (202) 343–2304;
                                                      Conservation and Recovery Act (RCRA)                    claimed to be Confidential Business                    email address:
                                                      Subtitle C corrective action framework                  Information (CBI) or other information                 Rosencrantz.ingrid@epa.gov.
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      as a model rather than a RCRA Subtitle                  whose disclosure is restricted by statute.
                                                      C landfill framework; adding specific                   Do not submit information that you                     SUPPLEMENTARY INFORMATION:
                                                      criteria and procedures for approving                   consider to be CBI or otherwise                        A. Does this action apply to me?
                                                      termination of long-term stability                      protected through www.regulations.gov
                                                      monitoring; deleting gross alpha particle               or email. The www.regulations.gov Web                    The regulated categories and entities
                                                      activity from proposed Table 1 to                       site is an ‘‘anonymous access’’ system,                potentially affected by the proposed
                                                      subpart F of 40 CFR part 192, and                       which means the EPA will not know                      standards include:




                                                 VerDate Sep<11>2014   00:56 Jan 19, 2017   Jkt 241001   PO 00000   Frm 00002   Fmt 4701   Sfmt 4702   E:\FR\FM\19JAP6.SGM   19JAP6


                                                                              Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules                                               7401

                                                                         Category                          NAICS code 1                                      Examples of regulated entities

                                                      Industry:
                                                          Uranium      Ores Mining   and/or                          212291   Facilities that extract or concentrate uranium from any ore processed primarily for
                                                             Beneficiating.                                                     its source material content.
                                                      Leaching of Uranium, Radium or Vana-                           212291   Facilities that extract or concentrate uranium from any ore processed primarily for
                                                        dium Ores.                                                              its source material content.
                                                         1 North   American Industry Classification System.


                                                         This table is not intended to be                      C. When would a public hearing occur?                   NUREG U.S. Nuclear Regulatory
                                                      exhaustive, but rather provides a guide                                                                            Commission Guides
                                                                                                                  If anyone contacts the EPA requesting                OMB Office of Management and Budget
                                                      for readers regarding entities likely to be              to speak at a public hearing concerning                 RAC Radiation Advisory Committee
                                                      affected by this proposed action.                        this proposed rule by February 21, 2017,                RCRA Resource Conservation and Recovery
                                                      B. What should I consider as I prepare                   the EPA will hold a public hearing. If                    Act
                                                      my comments to EPA?                                      you are interested in attending a public                RFA Regulatory Flexibility Act
                                                                                                               hearing, contact Mr. Anthony Nesky at                   SAB Science Advisory Board
                                                         Submitting CBI. Do not submit CBI                                                                             SDWA Safe Drinking Water Act
                                                                                                               (202) 343–9597. If a public hearing is                  UCL Upper control limit
                                                      information to the EPA through                           held, the Agency will announce the
                                                      www.regulations.gov or email. Clearly                                                                            UIC Underground injection control
                                                                                                               date, time and venue on the EPA Web                     U.S. United States
                                                      mark the part or all of the information                  site at http://www.epa.gov/radiation/                   UMRA Unfunded Mandates Reform Act of
                                                      that you claim to be CBI. For CBI                        tenorm/40CFR192.html.                                     1995
                                                      information contained on a disk or CD                                                                            UMTRCA Uranium Mill Tailings Radiation
                                                      ROM that you mail to the EPA, mark the                   D. What documents are referenced in                       Control Act of 1978
                                                      outside of the disk or CD ROM as CBI                     today’s proposal?                                       U.S.C. United States Code
                                                      and then identify electronically within                                                                          USDW Underground source of drinking
                                                                                                                  The EPA refers to a number of                          water
                                                      the disk or CD ROM the specific                          documents that provide supporting
                                                      information that is claimed as CBI. In                   information for the Agency’s proposed
                                                      addition to one complete version of the                                                                          F. Organization of This Document
                                                                                                               uranium and thorium mill tailings
                                                      comment that includes information                        standards. All documents relied upon                      The information presented in this
                                                      claimed as CBI, a copy of the comment                    by the EPA in regulatory decision                           preamble is organized as follows:
                                                      that does not contain the information                    making may be found in the EPA docket                   I. Executive Summary
                                                      claimed as CBI must be submitted for                     (EPA–HQ–OAR–2012–0788) accessible                          A. Background
                                                      inclusion in the public docket.                          via http://www.regulations.gov/. Other                     B. Purpose of the Regulatory Action
                                                      Information marked as CBI will not be                                                                               C. Summary of the Major Provisions
                                                                                                               documents (e.g., statutes, regulations,                    D. Summary of the Costs and Benefits
                                                      disclosed except in accordance with                      and proposed rules) are readily                            E. Statutory Authority for This Action
                                                      procedures set forth in 40 CFR part 2.                   available from public sources. The EPA                  II. Summary of the Proposed Rule
                                                         Tips for preparing your comments.                     documents listed below are referenced                      A. Proposed Standards for Uranium ISR
                                                      When submitting comments, remember                       most frequently in today’s proposal.                          Operations
                                                      to:                                                         EPA 402/D–14–001, ‘‘Considerations                      B. Amendments to 40 CFR Part 192,
                                                         • Identify the rulemaking by docket                   Related to Post Closure Monitoring of                         Subparts C and D
                                                                                                                                                                       III. Summary of Changes Made to the
                                                      number and other identifying                             Uranium In-Situ Leach/In-Situ Recovery
                                                                                                                                                                             Original Proposal and Rationale for
                                                      information (subject heading, Federal                    (ISL/ISR) Sites,’’ EPA, 2014.                                 Those Changes
                                                      Register date and page number).                             EPA 402/R–14–003, ‘‘Economic                            A. Incorporation of the Initial and Long-
                                                         • Follow directions—The agency may                    Analysis: Proposed Revisions to the                           Term Stability Standards in Proposed 40
                                                      ask you to respond to specific questions                 Health and Environmental Protection                           CFR 192.52
                                                      or organize comments by referencing a                    Standards for Uranium and Thorium                          B. Groundwater Protection Standards
                                                                                                               Mill Tailings Rule (40 CFR part 192),’’                    C. Preoperational Monitoring Requirements
                                                      Code of Federal Regulations (CFR) part                                                                              D. Exempted Aquifers
                                                      or section number.                                       EPA, 2016.
                                                                                                                                                                          E. Excursions
                                                         • Explain why you agree or disagree,                     EPA 530/R–09–007, ‘‘Statistical                         F. Initial and Long-Term Stability
                                                      suggest alternatives, and substitute                     Analysis of Groundwater Monitoring                         G. Corrective Action Program
                                                      language for your requested changes.                     Data at RCRA Facilities—Unified                            H. Costs and Economic Impacts
                                                                                                               Guidance,’’ EPA, 2009.                                     I. Other Miscellaneous Changes
                                                         • Describe any assumptions and                                                                                IV. Responses to Other Significant Comments
                                                      provide any technical information and/                   E. Preamble Abbreviations                                     That Did Not Result in Changes to the
                                                      or data that you used.                                     The following abbreviations are used                        Original Proposal
                                                         • If you estimate potential costs or                  in this preamble:                                          A. Authority To Set and Enforce Standards
                                                      burdens, explain how you arrived at                                                                                 B. Need for New Standards for Uranium
                                                                                                               ACL Alternate concentration limit                             ISR Facilities
                                                      your estimate in sufficient detail to
                                                                                                               AEA Atomic Energy Act                                      C. Applicability
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      allow for it to be reproduced.                           BID Background information document                        D. The 95 Percent Confidence Level
                                                         • Provide specific examples to                        CFR Code of Federal Regulations                         V. Summary of Environmental, Cost and
                                                      illustrate your concerns, and suggest                    COOs Civilian owners and operators                            Economic Impacts
                                                      alternatives.                                            DOE Department of Energy                                   A. Environmental Impacts of the Proposed
                                                         • Explain your views as clearly as                    EPA U.S. Environmental Protection Agency                      Rule on Groundwater Quality
                                                                                                               FR Federal Register                                        B. Incremental Costs of Complying With
                                                      possible, avoiding the use of profanity
                                                                                                               ISR In-situ recovery, also known as in-situ                   the Proposed Rule
                                                      or personal threats.                                       leaching (ISL)                                           C. Economic Impacts of the Proposed Rule
                                                         • Submit your comments by the                         MCL Maximum contaminant level                                 on the Market for Uranium and the
                                                      comment period deadline.                                 NRC U.S. Nuclear Regulatory Commission                        Uranium Industry



                                                 VerDate Sep<11>2014    00:56 Jan 19, 2017   Jkt 241001   PO 00000    Frm 00003   Fmt 4701   Sfmt 4702   E:\FR\FM\19JAP6.SGM   19JAP6


                                                      7402                     Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules

                                                        D. Benefits of the Proposed Rule                        Agency received over 5,380 public                      rule text, the EPA also re-calculated the
                                                      VI. Statutory and Executive Order Reviews                 comment letters from a wide range of                   incremental compliance costs to
                                                        A. Executive Order 12866: Regulatory                    stakeholders, with comments covering                   incorporate estimated non-monitoring
                                                           Planning and Review and Executive
                                                                                                                more than 80 different topics. In                      costs (e.g., licensing, leasing fees,
                                                           Order 13563: Improving Regulation and
                                                           Regulatory Review                                    addition, during interagency review,                   continued surety, maintenance) and
                                                        B. Paperwork Reduction Act                              more than 15 groups of stakeholders met                incorporated additional cost
                                                        C. Regulatory Flexibility Act                           with Office of Management and Budget                   information provided by industry. The
                                                        D. Unfunded Mandates Reform Act                         (OMB) to voice comments on the                         EPA re-evaluated the economic and
                                                        E. Executive Order 13132: Federalism                    original proposal. Commenters were                     energy impacts to both address the
                                                        F. Executive Order 13175: Consultation                  particularly concerned about the default               concerns raised by commenters and to
                                                           and Coordination With Indian Tribal                                                                         incorporate the changes the Agency
                                                           Governments                                          30-year long-term monitoring
                                                                                                                requirement, felt that the optional                    made to the standards since the original
                                                        G. Executive Order 13045: Protection of
                                                           Children From Environmental Health                   method by which a licensee could                       proposal was published. The revised
                                                           and Safety Risks                                     request permission to cease long-term                  costs and economic analysis for this
                                                        H. Executive Order 13211: Actions                       stability monitoring lacked sufficient                 proposal are discussed in section V of
                                                           Concerning Regulations That                          specificity and believed the number of                 this preamble. While the majority of the
                                                           Significantly Affect Energy Supply,                                                                         changes to the original proposal are
                                                                                                                constituents required to be monitored
                                                           Distribution or Use                                                                                         relatively minor, the EPA decided it was
                                                        I. National Technology Transfer                         was unreasonably burdensome. Several
                                                                                                                commenters thought the economic                        appropriate to re-propose the rule due to
                                                           Advancement Act
                                                                                                                analysis underestimated the compliance                 the high level of public interest in this
                                                        J. Executive Order 12898: Federal Actions
                                                           to Address Environmental Justice in                  costs and identified several additional                rulemaking. This action provides the
                                                           Minority Populations and Low-Income                  categories of costs related to the long-               public an opportunity to review and
                                                           Populations                                          term monitoring requirements they felt                 provide comment on the changes made
                                                                                                                had been omitted from the analysis or                  to the original proposal and allows the
                                                      I. Executive Summary                                      were not representative of the actual                  EPA to consider and make any
                                                                                                                                                                       additional changes based on those
                                                      A. Background                                             costs incurred. Other commenters felt
                                                                                                                                                                       comments before finalizing the rule. The
                                                         ISR is a method by which uranium is                    that several additional types of benefits
                                                                                                                                                                       EPA is requesting comment on all
                                                      leached from underground ore bodies by                    should be included in the benefits
                                                                                                                                                                       aspects of this proposed action. Because
                                                      the introduction of a solvent solution,                   analysis. After consulting with the NRC
                                                                                                                                                                       this is a re-proposal, and the EPA
                                                      called a lixiviant, through injection                     and other agencies and collecting
                                                                                                                                                                       wishes to consider comments in
                                                      wells drilled into the ore zone. The                      additional information from industry,
                                                                                                                                                                       context, please re-submit any relevant
                                                      process does not require excavation to                    including participation in stakeholder
                                                                                                                                                                       comments that may have been
                                                      extract the ore body from the ground or                   meetings during interagency review
                                                                                                                                                                       submitted on the original proposal.
                                                      conventional milling to extract the                       with OMB, the EPA decided to make                        Several commenters also voiced
                                                      uranium from the mined ore. After the                     several changes to the original proposal               concerns about information and data
                                                      lixiviant is injected underground, it                     and solicit additional public comment                  collection, including review of
                                                      passes through the ore zone and                           rather than finalize the rule with the                 Agreement State regulatory programs
                                                      mobilizes the uranium. The uranium-                       changes. These changes are described in                that address ISRs. Although the EPA
                                                      bearing solution is then pumped to the                    detail in section III of this preamble.                requested and collected data and
                                                      surface via extraction wells, and the                     The most significant changes include                   information as outlined in section IV.B
                                                      solution is processed to extract the                      removing the default 30-year long-term                 of this preamble, the Agency
                                                      uranium. During uranium production,                       monitoring provision and shifting to                   understands stakeholders concerns and
                                                      the fluids injected to mobilize uranium                   more of a RCRA Subtitle C corrective                   are inviting stakeholders to submit
                                                      change the chemistry of the aquifer from                  action framework as a model rather than                additional data and analyses to further
                                                      its original state, thereby mobilizing                    a RCRA Subtitle C landfill framework,                  clarify the ISR process, including any
                                                      uranium and many other minerals and                       adding specific criteria and procedures                additional monitoring results and
                                                      metals. Groundwater from the ISR                          for approving termination of long-term                 analyses. The EPA will be collecting
                                                      production zone can migrate from the                      stability monitoring, deleting gross                   additional information on state
                                                      production zone and contaminate                           alpha particle activity from proposed                  regulatory programs, as recommended
                                                      nearby groundwater with arsenic,                          Table 1 to subpart F, and allowing more                by several states.
                                                      barium, cadmium, chromium, lead,                          flexibility for the NRC and Agreement
                                                      mercury, selenium, silver, nitrate,                       States (hereinafter ‘‘regulatory agency’’)             B. Purpose of the Regulatory Action
                                                      molybdenum, radium and uranium and                        to determine on a site-specific basis the                The EPA is proposing to add new
                                                      other constituents. The standards                         constituents for which concentration-                  health and environmental protection
                                                      proposed in this action would minimize                    based standards are set. The EPA has                   standards to regulations promulgated
                                                      the risk of undetected groundwater                        also sought to clarify how these                       under UMTRCA. The proposed
                                                      degradation and constituent migration                     standards under UMTRCA complement,                     standards would regulate byproduct
                                                      during and after ISR operations have                      and do not overlap with, the                           materials produced by ISR, including
                                                      ceased.                                                   requirements of the SDWA. In addition                  both surface and groundwater
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                         The EPA initially proposed new                         to these more significant changes, the                 standards, with a primary focus on
                                                      health and environmental protection                       EPA has also made minor changes to the                 groundwater protection, restoration and
                                                      standards for ISR facilities on January                   original proposal, such as moving the                  stability. By explicitly addressing the
                                                      26, 2015 (hereinafter ‘‘original                          initial and long-term monitoring                       most significant environmental and
                                                      proposal’’), with the intention of                        standards to the proposed § 192.52 and                 public health hazards presented by ISR
                                                      finalizing the new standards in 2016.1                    moving the requirements for alternate                  activities, these proposed standards
                                                      During the public comment period, the                     concentration limits (ACLs) to a                       would address the shift toward ISR as
                                                                                                                separate section (see proposed § 192.54).              the dominant form of uranium recovery
                                                        1 See   80 FR 4156, January 26, 2015.                   In addition to making changes to the                   that has occurred since the standards for


                                                 VerDate Sep<11>2014     00:56 Jan 19, 2017   Jkt 241001   PO 00000   Frm 00004   Fmt 4701   Sfmt 4702   E:\FR\FM\19JAP6.SGM   19JAP6


                                                                             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules                                           7403

                                                      uranium and thorium mill tailings were                  conventional uranium mining and                        and less than 10,000 mg/l and it is not
                                                      promulgated in 1983.                                    milling, but ISR has become the                        reasonably expected to supply a public
                                                         This rule would provide the necessary                dominant form of uranium extraction                    water system . . .’’.
                                                      framework for consistent and                            since the 1990s. In 2006, an NRC                          In addition, although a portion of an
                                                      sustainable protection of groundwater at                commissioner observed that ISR-specific                aquifer may be exempted from the
                                                      ISR sites that will continue to have                    rules were needed to provide a national                protections of the SDWA, there are no
                                                      beneficial uses even if the aquifer has                 approach to bring predictability to the                federal requirements preventing
                                                      been exempted from protection under                     industry and state regulators. This view               recovery and use of the water within
                                                      the SDWA.                                               was not predicated on specific                         exempted aquifers (including where ISR
                                                         Groundwater is a scarce resource that                documented instances of groundwater                    operations were previously conducted)
                                                      is under increasing pressure,                           contamination outside of the ISR                       for private drinking water supply,
                                                      particularly in the arid West where                     production zone. The scope and level of                public water supply, or other uses.
                                                      groundwater has multiple uses,                          protection of the SDWA differs from the                   UMTRCA provides authority that can
                                                      including for livestock production, crop                UMTRCA. The purpose of the SDWA                        be used to protect aquifers during and
                                                      irrigation, wildlife support, and human                 UIC program is to prevent                              after uranium recovery operations,
                                                      consumption. As groundwater resources                   endangerment of underground sources                    regardless of whether the aquifer meets
                                                      are depleted, it becomes even more                      of drinking water. In determining                      the definition of an underground source
                                                      important to preserve those resources                   whether an aquifer may be exempted                     of drinking water (USDW) as defined in
                                                      for future uses. Stakeholders in these                  from the protection of the SDWA, the                   the EPA’s UIC regulations or is
                                                      areas are already finding a need to use                 EPA does not consider its use for                      exempted from the protections of the
                                                      groundwater that is of lower quality                    purposes other than human drinking                     SDWA because it meets the existing
                                                      than desired.2 Groundwater that                         water (e.g. agriculture and other uses).               regulatory criteria for exemption.
                                                      contains mineral resources, such as                                                                            UMTRCA directs the Administrator to
                                                                                                                 As the highlighted portions of the                  promulgate ‘‘standards of general
                                                      uranium, is not necessarily of such poor                SDWA regulations below show, there is
                                                      quality that it cannot be used for these                                                                       application for the protection of public
                                                                                                              no requirement to demonstrate poor                     health, safety, and the environment
                                                      purposes. By altering the chemical                      water quality prior to issuing an aquifer
                                                      composition of groundwater, ISR creates                                                                        from radiological and non-radiological
                                                                                                              exemption if the aquifer is or could be                hazards associated with the processing,
                                                      reasons to be concerned about impacts                   mineral producing. Under the SDWA’s
                                                      to groundwater, which may be used for                                                                          and possession, transfer, and disposal of
                                                                                                              UIC regulations, aquifer exemptions are                byproduct material’’.3 The statute
                                                      human drinking water, as well as for                    used to allow for mineral recovery in
                                                      other purposes, such as livestock                                                                              further provides that ‘‘[i]n establishing
                                                                                                              aquifers that would otherwise be                       such standards, the Administrator shall
                                                      watering, crop irrigation and wildlife                  protected as sources of drinking water
                                                      support.                                                                                                       consider the risk to the public health,
                                                                                                              when certain criteria are met. In the                  safety, and the environment, the
                                                         While an aquifer or portions of an
                                                                                                              SDWA regulations, § 146.4 provides                     economic costs of applying such
                                                      aquifer may have been exempted from
                                                                                                              that: ‘‘An aquifer or a portion thereof                standards, and such other factors as the
                                                      the protections of the SDWA, the aquifer
                                                                                                              which meets the criteria for an                        administrator determines to be
                                                      may be needed in the future for human
                                                                                                              ‘‘underground source of drinking water’’               appropriate’’.4
                                                      drinking water or other purposes. The
                                                                                                              in § 146.3 may be determined under                        In areas being mined for uranium, the
                                                      standards proposed in this action do not
                                                                                                              § 144.7 of this chapter to be an                       SDWA does not require operators or
                                                      require licensees to improve
                                                                                                              ‘‘exempted aquifer’’ for Class I–V wells               regulators to collect the level of data
                                                      groundwater quality, only to provide
                                                                                                              if it meets the criteria in paragraphs (a)             needed to definitively confirm or
                                                      confidence that: (1) In the area mined,
                                                                                                              through (c) of this section. Class VI                  disprove drinking water contamination
                                                      the applicable constituent concentration
                                                                                                              wells must meet the criteria under                     or contamination of water for other
                                                      standards (set at either background or
                                                                                                              paragraph (d) of this section: (a) It does             purposes that may also impact humans,
                                                      health-based levels, whichever is
                                                                                                              not currently serve as a source of                     such as livestock watering and crop
                                                      higher), are met and remain stable; and
                                                                                                              drinking water; and (b) It cannot now                  irrigation. Additionally, data that the
                                                      (2) that uranium recovery operations
                                                                                                              and will not in the future serve as a                  EPA’s UIC Program have received and
                                                      will not endanger adjacent aquifers.
                                                                                                              source of drinking water because: (1) It               evaluated at or near at least one ISR
                                                      EPA requests comment on whether
                                                                                                              is mineral, hydrocarbon or geothermal                  facility are consistent with an excursion
                                                      groundwater, once it meets the
                                                                                                              energy producing, or can be                            beyond the boundary of the exempt
                                                      constituent concentration standards,
                                                                                                              demonstrated by a permit applicant as                  aquifer (i.e., leading to elevated uranium
                                                      could or would potentially be used for
                                                                                                              part of a permit application for a Class               levels outside the ISR facility area).
                                                      drinking water or other purposes.
                                                                                                              II or III operation to contain minerals or                The proposed 40 CFR part 192,
                                                         UMTRCA directs the EPA to establish
                                                                                                              hydrocarbons that considering their                    subpart F would afford protections that
                                                      standards of general application, while
                                                                                                              quantity and location are expected to be               do not currently exist under federal UIC
                                                      the NRC is vested with implementing
                                                                                                              commercially producible; or (2) It is                  regulations and would be
                                                      the EPA’s standards under its licensing
                                                                                                              situated at a depth or location which                  complementary to existing regulations
                                                      and enforcement authority. The EPA has
                                                                                                              makes recovery of water for drinking                   (e.g., UIC regulations) at uranium ISR
                                                      previously promulgated general
                                                                                                              water purposes economically or                         facilities. For example, these new
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      standards under UMTRCA for surface
                                                                                                              technologically impractical; or (3) It is              provisions proposed under the authority
                                                      disposal of mill tailings from
                                                                                                              so contaminated that it would be                       of UMTRCA would address corrective
                                                        2 Application for Amendment of USNRC Source           economically or technologically                        action, broad baseline development,
                                                      Materials License SUA–1601, Ross ISR Project,           impractical to render that water fit for               monitoring well placement and aquifer
                                                      Kendrick Expansion Area, Crook County, Wyoming          human consumption; or (4) It is located                restoration. The proposed provisions
                                                      Docket #40–9091, 2015. pp. 3–100; USGS National         over a Class III well mining area subject
                                                      Brackish Groundwater Information Sheet 2013;
                                                                                                                                                                     would also provide assurance that once
                                                      Advanced Treatment for Groundwater, Treating
                                                                                                              to subsidence or catastrophic collapse;
                                                      Low Quality Groundwater for Municipal Use, Water        or (5) The total dissolved solids content                3 See   42 U.S.C. 2022(b)(1).
                                                      Engineering and Management, Nov. 2001.                  of the ground water is more than 3,000                   4 Ibid.




                                                 VerDate Sep<11>2014   00:56 Jan 19, 2017   Jkt 241001   PO 00000   Frm 00005   Fmt 4701   Sfmt 4702   E:\FR\FM\19JAP6.SGM     19JAP6


                                                      7404                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules

                                                      a facility decommissions a site, the                    background or health-based levels after                impoundments used to store uranium
                                                      water will meet the applicable                          restoration of the production zone. This               byproduct material (e.g., conventional
                                                      constituent concentration standards in                  data, when considered with the                         tailings impoundments, evaporation or
                                                      40 CFR 192.52(c)(1) and will remain                     understanding that groundwater flow is                 holding ponds). Under the proposed
                                                      stable over time.                                       often extremely slow, raises concerns                  subpart F, the licensee is required to
                                                         The proposed 40 CFR part 192,                        that there has been insufficient                       restore groundwater in the production
                                                      subpart F also would ensure that                        monitoring conducted by these ISR                      zone and surrounding aquifers to the
                                                      industry maintains responsibility for                   facilities to identify the actual                      applicable constituent concentration
                                                      protection of public health and the                     contamination that may be occurring or                 standards, to the extent possible, and to
                                                      environment at uranium ISR facilities                   may occur in the future beyond the                     show some level of stability in the
                                                      during and after uranium recovery                       production zone and in sources of                      production zone prior to terminating the
                                                      operations.                                             drinking water. The EPA solicits                       license. Because ISR changes the
                                                         Since ISR alters the chemical                        comment on industry’s assertion that in                geochemistry of the groundwater, more
                                                      composition of groundwater, it creates                  no case have any excursions from ISR                   rigorous stability-based standards
                                                      reasons to be concerned about risk to                   facilities resulted in contamination in                together with corrective action programs
                                                      public health, safety and the                           aquifers being used as public sources of               are necessary to ensure that the
                                                      environment from radiological and non-                  drinking water or for other uses. In                   production zone is restored and the
                                                      radiological hazards associated with the                addition, the EPA also requests                        applicable constituent concentration
                                                      processing and disposal of byproduct                    comment on the kinds of data that                      standards will continue to be met in the
                                                      material. Industry commenters and                       would be needed to clearly link ISR                    future.
                                                      others say that there is no need for this               operations with off-site contamination                    As described in the preamble to the
                                                      rule because the EPA has not identified                 or that would support claims that there                2015 proposal, the EPA solicited
                                                      an instance in which an ISR operation                   is no contamination of concern.                        technical advice on key issues related to
                                                      has contaminated a source of drinking                      The EPA notes that several NRC-                     groundwater protection at ISR sites from
                                                      water. First, the Agency notes that this                regulated ISR facilities are continuing to             the Radiation Advisory Committee
                                                      proposal addresses groundwater                          work toward restoring groundwater,                     (RAC) of the Agency’s Science Advisory
                                                      protection at ISR facilities both in and                with restoration and monitoring being                  Board (SAB) (80 FR 156). The final
                                                      around the production zone and in                       conducted for as long as 10 years after                report of the SAB/RAC, along with the
                                                      surrounding aquifers. Focusing on the                   ceasing production. The Agency                         EPA’s response, can be found at: https://
                                                      area of surrounding or adjacent aquifers,               understands that restoration does not                  yosemite.epa.gov/sab/sabproduct.nsf/
                                                      the EPA acknowledges that the Agency                    always meet original background levels                 c91996cd39a82f648525742400690127/
                                                      does not have sufficient information to                 as evidenced by the number of                          0314cef928df63cc8525775200482fa3!
                                                      document a specific instance of                         restoration goals exceeding background                 OpenDocument&TableRow=2.4#2.
                                                      contamination of a public source of                     or the levels proposed in Table 1 to                      The SAB/RAC further considered this
                                                      drinking water caused by an ISR. The                    subpart F. Additionally, the NRC                       issue in 2015, and the Agency provided
                                                      Agency remains concerned, however,                      acknowledges that efficiency could be                  a detailed cross-walk to the 2015
                                                      that the available data may not be                      gained by codifying its longstanding                   proposed rule to show how the RAC’s
                                                      capturing some instances of                             effective regulatory regime into                       advice had been addressed. The SAB
                                                      contamination that this proposed rule                   regulations specific to ISR facilities.                determined that no further action was
                                                      seeks to prevent. In other words, the                   Historically, restoration and monitoring               needed on its part. See https://
                                                      Agency remains concerned that the lack                  at ISR facilities are typically conducted              yosemite.epa.gov/sab/sabproduct.nsf/
                                                      of data does not demonstrate that no                    for only a short period, and a longer                  02ad90b136fc21ef85256eba00436459/
                                                      contamination is occurring, as industry                 period would provide more confidence                   8DA59AB1BE0EA14B85257E6600
                                                      commenters assert, but instead merely                   to demonstrate that restoration of the                 71F2EF/$File/EPA-SAB-15-009+
                                                      demonstrates the lack of data available                 affected groundwater is complete and                   unsigned.pdf. In general, the BID
                                                      to be able to make such a determination,                that long-term stability is established                addresses topics specifically addressed
                                                      especially where there has been limited                 with confidence before license                         by the RAC as follows:
                                                      post-restoration monitoring. The                        termination. The initial and long-term                    The EPA has evaluated available data
                                                      monitoring requirements in this                         stability monitoring and corrective                    for all phases of ISR activities to address
                                                      proposal address the issue of lack of                   action program included in this                        the SAB recommendations. Section 5 of
                                                      data.                                                   proposal would ensure that both of                     the BID analyzes data and examines
                                                         As explained in this preamble, in                    these requirements are met before ISR                  specific case studies for baseline and
                                                      documents supporting this proposal,                     facilities can be decommissioned.                      restoration, with particular attention
                                                      and as included in the docket for this                     At ISR facilities, the groundwater is               given to establishment of baseline at the
                                                      proposal, there is ample evidence of                    directly impacted by the injection of                  Dewey-Burdock site in South Dakota
                                                      excursions occurring as the result of ISR               lixiviant into the aquifer, which alters               (Attachment A). Sections 6 and 7.8 and
                                                      facilities. For example, data that the                  the geochemistry of the ore-bearing                    Attachment F provide extensive
                                                      EPA’s UIC Program have received and                     formation and increases the                            analysis of post-restoration monitoring
                                                      evaluated at or near at least one ISR                   concentration of radionuclides and                     at the Crow Butte, Christensen,
                                                      facility are consistent with an excursion               other metals in the water. Restoration                 Highland, and Irigaray ISR sites,
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      beyond the boundary of the exempt                       activities attempt to restore the water                including regression analysis and
                                                      aquifer, leading to elevated uranium                    quality for specific constituents to the               statistical testing, and cumulative
                                                      levels outside the ISR facility. In                     applicable constituent concentration                   complementary distribution functions
                                                      addition, there is data in the proposal’s               standards inside the production zone.                  (CCDF). Results are presented by
                                                      Background Information Document                         Although subpart D to 40 CFR part 192                  analyte, mine unit, and well.
                                                      (BID) describing numerous excursions                    (hereinafter ‘‘subpart D’’) addresses                     Section 6 addresses in detail SAB
                                                      from several ISR facilities. Moreover,                  contamination of aquifers, it explicitly               recommendations related to influences
                                                      data in attachment 5 of the BID shows                   addresses only contamination resulting                 on groundwater chemistry and their
                                                      that several ISR facilities have not met                from releases from uranium mill tailings               effects on time frames for stability


                                                 VerDate Sep<11>2014   00:56 Jan 19, 2017   Jkt 241001   PO 00000   Frm 00006   Fmt 4701   Sfmt 4702   E:\FR\FM\19JAP6.SGM   19JAP6


                                                                             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules                                            7405

                                                      monitoring, in particular fate and                      proposed rule and costs that would be                  currently under construction with 65%
                                                      transport processes (speciation,                        incurred by those facilities in the                    of those projected to come online by
                                                      including a case study of the Crow Butte                absence of the proposed rule. These                    2020, and world-wide electricity
                                                      facility, and solubility) and natural                   incremental costs include added costs                  consumption is projected to increase by
                                                      attenuation processes (adsorption,                      associated with monitoring and non-                    50% between 2013 and 2035 (only part
                                                      presence of secondary minerals, and                     monitoring compliance actions under                    of the increase is estimated to be met by
                                                      biological mechanisms).                                 the proposed rule. For additional details              nuclear energy) (Cameco, 2016).
                                                         This action also proposes                            on the incremental costs of the proposed               Outlook for the near term, however, is
                                                      amendments to certain provisions in the                 rule, see section V.B of this preamble                 less positive, and the rate of recovery is
                                                      current rule, located at 40 CFR part 192.               and section 3 of the document titled,                  uncertain.
                                                      Specifically, this action addresses a                   ‘‘Economic Analysis: Revisions to the                     The EPA acknowledges that current
                                                      ruling of the Tenth Circuit Court of                    Health and Environmental Protection                    uranium market conditions reflect
                                                      Appeals, updates a cross-reference to                   Standards for Uranium and Thorium                      depressed demand for uranium (due to
                                                      another environmental standard and                      Mill Tailings Rule (40 CFR part 192),’’                lingering effects of the Fukushima
                                                      corrects other technical and                            available in Docket ID No. EPA–HQ–                     incident, slow recovery of demand for
                                                      typographical errors.                                   OAR–2012–0788.                                         electricity since the recession and low
                                                                                                                 Complying with the proposed                         prices of substitute sources of energy)
                                                      C. Summary of the Major Provisions
                                                                                                              standards may require some existing ISR                and some reliance on alternative (non-
                                                        The proposed rule includes a new                      facilities to monitor groundwater for                  mine) sources of uranium. As a result,
                                                      subpart, subpart F, within 40 CFR part                  additional constituents that they are not              both the price and production of
                                                      192, which sets standards to protect                    currently monitoring. It would also                    uranium have fallen. The long-term
                                                      groundwater at uranium ISR operations.                  require all ISR facilities to continue                 contract price of uranium has declined
                                                      Specifically, subpart F would set                       monitoring for a period of at least three              from around $60 per pound of U3O8e in
                                                      standards of general application to                     years after the initial stability standard             2012 to around $40 per pound in 2016.
                                                      protect groundwater beyond the                          is met, and to conduct geochemical                     Spot prices have generally been 20%
                                                      production zone during ISR operational                  modeling and other analysis to                         lower than contract prices. While
                                                      and restoration phases and to ensure,                   demonstrate that the applicable                        market forces have driven the market
                                                      once the wellfield is restored, that the                constituent concentration standards will               price for uranium down by $20 to $30
                                                      restoration is complete and stable. The                 continue to be met in the future. The                  dollars over the past 5 years, the rule is
                                                      proposed rule includes three types of                   additional monitoring, modeling and                    estimated to increase the cost of
                                                      groundwater protection standards: (1)                   analysis that would be required under                  producing uranium using ISR methods
                                                      Constituent concentration standards, (2)                this proposed rule could increase costs                by between $1.27 per pound U3O8e and
                                                      initial stability standards, and (3) long-              to ISR facilities. The additional years                $2.45 per pound of U3O8e, depending
                                                      term stability standards. The proposed                  during which ISR facilities’ license,                  on the cost scenario.
                                                      rule also includes monitoring                           surety, insurance, maintenance and                        Because of these market conditions,
                                                      requirements to establish statistically                 other non-monitoring activities would                  several ISR facilities that are fully
                                                      valid background water quality levels,                  have to be maintained would also                       licensed and permitted are not currently
                                                      excursion monitoring (for the                           increase costs. The EPA estimates the                  producing uranium (including
                                                      operational and restoration phases), and                rule imposes annualized incremental                    previously operational facilities that
                                                      monitoring to meet the initial and long-                costs on the ISR industry of                           have been placed on standby and
                                                      term stability standards. The proposed                  approximately $11.9 million, including                 licensed and permitted facilities that
                                                      rule also includes a requirement to                     incremental monitoring costs and other                 have never gone into production), and
                                                      establish a corrective action program.                  non-monitoring costs.                                  development of new ISR facilities has
                                                      Once finalized, these standards will be                    In its economic analysis, the EPA                   largely been put on hold. Further,
                                                      implemented by the regulatory agency.                   analyzed potential economic impacts of                 several ISR facilities have changed
                                                      Once the regulatory agency incorporates                 the rule on small entities (7 companies)               ownership in the past few years, as
                                                      the new standards into its regulations,                 using a range of assumptions about                     companies have been forced by market
                                                      or takes other appropriate steps to                     revenues of firms that own ISR facilities              conditions to sell assets. In other words,
                                                      implement the new standards, this will                  and costs of complying with the rule.                  some ISR firms currently are unable to
                                                      provide a nationally consistent                         The ‘‘average revenue’’ assumption is                  profitably operate their facilities even in
                                                      approach for the licensing process for                  based on a market price of $55 per                     the absence of the rule. Several of the
                                                      ISR facilities.5                                        pound of U3O8e and production that is                  small firms report little or no revenue
                                                                                                              25% of facility capacity. The ‘‘low                    from sales of uranium. Even the
                                                      D. Summary of the Costs and Benefits                    revenue’’ assumption reflects revenues                 relatively small incremental costs
                                                        The costs and benefits of this                        10% lower, and the high revenue                        required to comply with the rule’s
                                                      rulemaking are described briefly in                     assumption reflects revenues that would                provisions would not currently be
                                                      Table 2 of this preamble. The costs                     be 20% higher. With average costs, cost-               affordable for such firms. This is not
                                                      reflect the difference in costs that would              to-sales ratios for small firms range from             due to the magnitude of the rule’s costs;
                                                      be incurred by ISR licensees under the                  0.7% to 3.1% for the low revenue                       it is due to current conditions in the
                                                                                                              scenario and from 0.5% to 2.3% under                   world’s economy generally and in the
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                         5 Currently, the process used by the NRC for
                                                                                                              the higher revenue scenario. These                     market for uranium in particular. The
                                                      licensing ISR facilities is based on a combination of   assumptions are intended to reflect the                EPA considers that when the market for
                                                      NRC regulations, site-specific license conditions,
                                                      and guidance. The process used by the Agreement
                                                                                                              range of possible market conditions at                 uranium recovers, as it is projected to
                                                      States is based on regulations that vary by state for   the time when the rule would take effect               do, ISR uranium production and price
                                                      Agreement States that regulate ISR facilities. The      (likely 2022 to 2025). Uranium market                  will increase; under those conditions,
                                                      NRC and many of the Agreement States have an            projections for the longer term are                    facilities that are currently unprofitable
                                                      established hearing process that allows for
                                                      interested parties to request a hearing on the merits
                                                                                                              generally optimistic, reflecting growth                without the rule would likely be
                                                      for the issuance and amendment of ISR facility          in nuclear power in China and India                    profitable with the rule’s costs included.
                                                      licenses.                                               and other countries; 57 new reactors are               However, the EPA solicits public


                                                 VerDate Sep<11>2014   00:56 Jan 19, 2017   Jkt 241001   PO 00000   Frm 00007   Fmt 4701   Sfmt 4702   E:\FR\FM\19JAP6.SGM   19JAP6


                                                      7406                        Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules

                                                      comment on this rule’s expected impact                    constituents. The proposed rule would                    scenario. Annualized, these avoided
                                                      on the domestic ISR industry.                             also minimize the potential                              costs range from $1.5 million to $11.1
                                                         The EPA compared these costs to the                    contamination of surface water and                       million per year. To reflect the
                                                      potential financial, ecological and                       potential adverse health impacts                         recognition that the proposed rule
                                                      human health benefits that would result                   resulting from such contamination. In                    would reduce the likelihood of
                                                      from the proposed rule. Although the                      addition, the proposed rule would avoid                  contamination relative to existing
                                                      EPA is unable to quantify all the                         the potential costs associated with                      regulatory requirements, but not
                                                      potential benefits, the EPA has                           remediating contaminated aquifers; the                   eliminate it entirely, the EPA further
                                                      identified several categories of benefits                 cost of remediating a single plume of                    assumed a range of probability that the
                                                      that can be attributable to the rule. The                 contamination could exceed the                           illustrative example contamination
                                                      proposed rule would require                               nationwide incremental costs associated                  episode would be prevented by the
                                                      groundwater at ISR facilities to be                       with the proposed rule. The EPA                          proposed rule, but not identified under
                                                      restored to the constituent concentration                 estimated the cost savings due to                        current requirements. The EPA assumed
                                                      standards. Licensees would have to                        avoided pump and treat remediation for                   that the likelihood that the proposed
                                                      demonstrate stability of groundwater at                   hypothetical contaminant migration                       rule would prevent the contamination,
                                                      those constituent concentration                           examples using the Conceptual Mine                       but current requirements would not,
                                                      standards by completing at least 6 years                  Unit, under three plume scenarios. For                   would range from 20% to 80%. Thus,
                                                      of monitoring (3 years to meet the initial                each scenario, the EPA computed the                      the values shown in the table are 20%
                                                      stability standards plus 3 years to meet                  estimated cost savings by computing the                  of the lower bound value ($0.3 million)
                                                      the long-term stability standards), and                   difference in the cost of remediating a                  to 80% of the upper bound value ($8.9
                                                      conduct modeling and analysis to                          large plume (which might result if the                   million). However, because the EPA is
                                                      demonstrate there is a reasonable                         plume were not detected for many                         unable to quantify the number or
                                                      assurance that the applicable                             years) and the cost of remediating a                     characteristics of contamination
                                                      constituent concentration standards will                  small plume discovered through                           episodes that could occur in the absence
                                                      continue to be met in the future. This                    monitoring prior to facility closure. The                of the proposed rule, the EPA is unable
                                                      provision would minimize the risk of                      total estimated avoided costs over the                   to estimate nationwide cost savings.
                                                      degradation of valuable groundwater                       entire remediation episode in this                       Thus, the EPA has not compared these
                                                      resources and the potential exposure of                   illustration, remediating three different                illustrative costs savings with the
                                                      human, domestic livestock or ecological                   sized plumes, ranged from $23.7 million                  estimated national costs of the proposed
                                                      receptors to radiological or other                        to $608 million, depending on the                        rule or computed the net benefits.

                                                                         TABLE 2—CHARACTERIZATION OF THE COSTS AND BENEFITS OF 40 CFR PART 192, SUBPART F
                                                                                      Incremental costs                                                                        Benefits
                                                                                        (2015 dollars)

                                                      Annualized costs of monitoring, modeling and analysis ranging from                     Protection of groundwater quality.
                                                        $0.2 to $7.3 million.
                                                      Annual non-monitoring costs, including license, surety, lease, mainte-                 Possible protection of surface water quality.
                                                        nance: $7.6 million.
                                                                                                                                             Potentially reduced risk of exposure of human or ecological receptors
                                                                                                                                               to radiological pollutants.
                                                                                                                                             Potentially reduced human health impacts, including cancer.
                                                                                                                                             Annualized avoided cost of single remediation effort would be between
                                                                                                                                               $0.3 million and $8.9 million.1
                                                         1 The costs presented are not an estimate of the nationwide remediation cost savings. They are the estimated cost of remediation for a sim-
                                                      plified example of a single wellfield, for three contaminant plume scenarios.


                                                      E. Statutory Authority for This Action                    to as Title I sites); and (b) the processing             and its Agreement States, as well as the
                                                                                                                and the possession, transfer and                         DOE.
                                                         The EPA is proposing the new                           disposal of byproduct material at sites                     Title I of UMTRCA covers inactive
                                                      standards and amendments under its                                                                                 uranium milling sites, nearby
                                                                                                                that process ores primarily for their
                                                      authority in section 275 of the Atomic                                                                             contaminated ‘‘vicinity properties’’ and
                                                                                                                uranium and thorium source material
                                                      Energy Act (AEA), as added by section                                                                              depository sites. The EPA was directed
                                                                                                                content 7 or disposal of such byproduct
                                                      206 of UMTRCA.6 Section 206 of                                                                                     to set general standards that are
                                                      UMTRCA authorizes the EPA to                              material (commonly known as Title II
                                                                                                                sites). See 42 U.S.C. 2022.8 These public                consistent with the requirements of the
                                                      promulgate standards of general                                                                                    Solid Waste Disposal Act (later
                                                      application for the protection of public                  health, safety and environmental
                                                                                                                                                                         amended as the Resource Conservation
                                                      health, safety, and the environment                       standards are contained in 40 CFR part
                                                                                                                                                                         and Recovery Act, or RCRA) to the
                                                      from radiological and non-radiological                    192 and are implemented by the NRC
                                                                                                                                                                         maximum extent practicable. The Title
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      hazards associated with (a) residual                                                                               I standards are located in EPA
                                                                                                                  7 ‘‘Source material’’ is defined as ‘‘(1) Uranium or
                                                      radioactive materials located at                                                                                   regulations at 40 CFR part 192, subparts
                                                                                                                thorium or any combination of uranium or thorium
                                                      specifically listed inactive uranium                      in any chemical or physical form; or (2) Ores that       A–C.
                                                      milling sites, nearby contaminated                        contain, by weight, one-twentieth of one percent            This proposed rule is based on Title
                                                      ‘‘vicinity properties,’’ and depository                   (0.05 percent), or more, of uranium or thorium, or       II of the Act, which covers operating
                                                      sites for such materials selected by the                  any combination of uranium or thorium.’’ See 42          uranium processing or disposal facilities
                                                                                                                U.S.C. 2014(z), 10 CFR 20.1003.
                                                      Secretary of Energy (commonly referred                      8 Although the statute covers both uranium and         licensed by the NRC or NRC Agreement
                                                                                                                thorium mill tailings sites, there are no existing       States. The EPA has authority to
                                                        6 See   42 U.S.C. 2022.                                 thorium mill tailings sites.                             promulgate standards of general


                                                 VerDate Sep<11>2014     00:56 Jan 19, 2017   Jkt 241001   PO 00000   Frm 00008   Fmt 4701   Sfmt 4702   E:\FR\FM\19JAP6.SGM   19JAP6


                                                                             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules                                              7407

                                                      application to protect public health,                    3. What are the proposed groundwater                     constituent concentration standard for
                                                      safety and the environment from                          protection standards for ISR facilities?                 each of the listed constituents that is
                                                      hazards associated with processing,                         Consistent with the original proposal,                present in or could be affected by the
                                                      possession, transfer and disposal of                     this proposed rule includes the                          ISR operation. The regulatory agency
                                                      byproduct material at such facilities.                   following three types of groundwater                     would have to identify the constituents
                                                      Such standards must address both                         protection standards for ISR facilities:                 during the preoperational monitoring
                                                      radiological and non-radiological                        (1) Constituent concentration standards                  phase. The regulatory agency would
                                                      hazards; further, standards applicable to                (including provisions for Alternate                      need to consider the following 12
                                                      non-radiological hazards must be                         Concentration Limits (ACLs)); (2) initial                constituents when setting the
                                                      consistent with the standards required                   stability standards; and (3) long-term                   constituent concentration standards for
                                                      under Subtitle C of the Solid Waste                      stability standards.10 These standards of                an ISR operation: Arsenic, barium,
                                                      Disposal Act (i.e., RCRA).9 The NRC is                   general application would apply to all                   cadmium, chromium, lead, mercury,
                                                      required to implement these standards                    ISR facilities and are intended to                       selenium, silver, nitrate (as N),
                                                      at Title II sites. See 42 U.S.C. 2022(b),                prevent the mobilization of uranium                      molybdenum, combined radium-226
                                                      (d).                                                     and other constituents beyond the                        and radium-228, and uranium (total).
                                                                                                               production zone during the operational                   The original proposal included gross
                                                      II. Summary of the Proposed Rule                                                                                  alpha particle activity (excluding radon
                                                                                                               and restoration phases and to ensure,
                                                                                                               once the wellfield is restored, that the                 and uranium), however, this constituent
                                                      A. Proposed Standards for Uranium ISR
                                                                                                               restoration is complete and stable, both                 was not included in this proposal for
                                                      Operations
                                                                                                               immediately after restoration and into                   the reasons explained in section III.3.2.
                                                        In today’s action, the EPA is                          the foreseeable future.                                  The EPA is specifically requesting
                                                      proposing to add a new subpart, subpart                     Constituent Concentration Standards.                  comment on the deletion of gross alpha
                                                      F, to the EPA’s existing regulations for                 The constituent concentration standards                  particle activity (excluding radon and
                                                      uranium and thorium mill tailings in 40                  are numerical concentration limits for a                 uranium) from the list of constituents.
                                                      CFR part 192. The proposed standards                     set of groundwater constituents that are                 The regulatory agency may also set
                                                      would apply only to ISR facilities and                   present in or affected by ISR operations.                constituent concentration standards for
                                                      are designed to protect public health,                   When corrective action is necessary                      additional constituents beyond these 12
                                                      safety and the environment from                          after an excursion has occurred, the                     constituents for situations where the
                                                      contamination associated with their                      licensee would have to clean-up the                      regulatory agency considers
                                                      uranium recovery operations. The                         groundwater to meet these proposed                       concentration standards for other
                                                      proposed standards are summarized in                     constituent concentration standards. In                  constituents necessary due to facility-
                                                      the following sections.                                  addition, during the restoration and                     specific conditions.
                                                                                                                                                                           Once these proposed standards are
                                                                                                               stability monitoring phases, these
                                                      1. Who is subject to the proposed                                                                                 finalized and the regulatory agency
                                                                                                               proposed constituent concentration
                                                      standards?                                                                                                        implements the subpart F standards, the
                                                                                                               standards would be the levels to which                   constituent concentration standards
                                                        Subpart F would apply to new and                       restoration must be achieved and                         would have to be established in
                                                      existing ISR facilities, including                       maintained.                                              accordance with the provisions in
                                                      facilities that have temporarily ceased                     In this proposal, the appropriate
                                                                                                                                                                        § 192.52 for all new wellfields and
                                                      uranium production (i.e., ISR facilities                 constituent concentration standards for
                                                                                                                                                                        expansions to existing wellfields, and
                                                      in standby). Subpart F would not apply                   an ISR facility would be determined by
                                                                                                                                                                        for all existing wellfields that are
                                                      to Title I sites, facilities that use only               the regulatory agency for each licensee.
                                                                                                                                                                        already operating, excluding those that
                                                      conventional or heap leach uranium                       The constituent concentration standard
                                                                                                                                                                        are in and remain in the restoration and
                                                      production methods, or Title II ISR                      for each constituent would be the                        stability monitoring phases, as of the
                                                      wellfields that have already begun or                    highest level of the following values: (1)               date three years after the effective date
                                                      completed restoration within three years                 The lowest regulatory standard for that                  of this rule. Wellfields that begin and
                                                      of the rule’s effective date. The NRC and                constituent found in 40 CFR 141.62,                      remain in restoration, initial stability
                                                      NRC Agreement States would develop                       141.66, 141.80, 143.3, 264.94, and Table                 monitoring or long-term stability
                                                      regulations or take other appropriate                    1 to subpart A of 40 CFR part 192; (2)                   monitoring at a licensed facility prior to
                                                      steps to implement the new subpart F                     that constituent’s preoperational                        the date three years after the effective
                                                      standards, once they are finalized.                      background level in the wellfield; or (3)                date of the rule would need to meet the
                                                                                                               an ACL for that constituent as approved                  standards established when their license
                                                      2. What are the proposed surface and                     by the regulatory agency. When setting                   was issued or as otherwise specified by
                                                      groundwater standards for ISR facilities?                the constituent concentration standards                  the regulatory agency.
                                                                                                               for a licensee, the regulatory agency                       Alternate Concentration Limits.
                                                        In the proposed new subpart, the EPA                   would consider a minimum of 12
                                                      has cross-referenced subpart D to                                                                                 Consistent with the original proposal,
                                                                                                               constituents. The regulatory agency                      this proposal would allow licensees the
                                                      indicate that the existing standards for                 would not be required to set standards
                                                      protecting surface waters and                                                                                     flexibility to request ACLs when the
                                                                                                               for all 12 constituents, but the                         best practicable active restoration has
                                                      groundwater also apply to ISR facilities.                regulatory agency would have to set a                    taken place, as determined by the
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      The subpart D standards were initially
                                                      written to address the handling, storing                                                                          regulatory agency, and the licensee
                                                                                                                 10 The initial stability standards and the long-term
                                                                                                                                                                        demonstrates one or more of the
                                                      and disposal of byproduct material                       stability standards were originally included in the
                                                                                                                                                                        constituent concentration standards
                                                      produced from the processing of                          proposed monitoring programs section of the rule.
                                                                                                               The initial stability standards (called ‘‘short-term     cannot be met through further
                                                      uranium ore.
                                                                                                               stability’’ in the proposal) was proposed in 40 CFR      groundwater restoration. The best
                                                                                                               192.53(d)(2)(i) and the long-term stability standards    practicable active restoration must be
                                                         9 With the restriction that the EPA not require any   were proposed in 40 CFR 192.53(e)(1)(iii). To
                                                      RCRA permit for the processing, possession,              improve clarity, the initial and long-term stability
                                                                                                                                                                        used before the licensee can apply to the
                                                      transfer or disposal of byproduct material at such       standards have been moved to 40 CFR 192.52(c)(2)         regulatory agency for a provisional ACL.
                                                      facilities.                                              and (c)(3), respectively.                                Under this proposal, once the regulatory


                                                 VerDate Sep<11>2014   00:56 Jan 19, 2017   Jkt 241001   PO 00000   Frm 00009   Fmt 4701   Sfmt 4702   E:\FR\FM\19JAP6.SGM    19JAP6


                                                      7408                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules

                                                      agency establishes a provisional ACL,                   groundwater withdrawal or discharge                     characterize the hydrogeology and
                                                      and the licensee can demonstrate the                    and be protective of human health into                  geochemistry of the area, support
                                                      ACL has been met for three consecutive                  the foreseeable future.                                 identification of any potential future
                                                      years, the regulatory agency can                           Consistent with UMTRCA, the Tenth                    excursions from the production zone
                                                      consider finalizing the ACL.                            Circuit Court of Appeals in the                         during the operational and restoration
                                                         It must be understood that granting an               Environmental Defense Fund v. NRC                       phases, and support the monitoring,
                                                      ACL is an indication that restoration has               decision,11 and current practice, the                   modeling and other analysis as
                                                      not returned the affected groundwater to                regulatory agency would be responsible                  determined by the regulatory agency to
                                                      either preoperational background levels                 for reviewing and approving ACL                         be necessary to meet the proposed
                                                      or other health-based levels. However,                  requests. Although not a proposed                       initial and long-term stability standards.
                                                      there are some overarching principles                   provision, the EPA considers it good
                                                      that must be considered when                            practice for the regulatory agency to                      The preoperational monitoring
                                                      establishing ACLs. In general, as                       make public the information used for                    determines the groundwater flow regime
                                                      described in § 192.54, any provisional or               determining whether a provisional ACL                   and the background groundwater
                                                      final ACL should not pose a substantial                 is warranted and at what concentration                  concentrations of the 12 listed
                                                      present or potential hazard to human                    before approving a provisional ACL.                     constituents and any additional
                                                      health and the environment, as                          Although the NRC has not issued an                      constituents required by the regulatory
                                                      determined by the regulatory agency.                    ACL to date for an ISR wellfield, the                   agency. The data collected during this
                                                      Points of exposure are defined in the                   NRC current practice would result in                    period would be used to select the
                                                      proposal as locations identified by the                 making such information publicly                        indicator parameters and set the upper
                                                      regulatory agency that represent                        available and would support the EPA’s                   control limits (UCLs) for these
                                                      possible future areas of exposure where                 effort to increase the effectiveness of the             parameters. The indicator parameters
                                                      the receptor can come into contact with                 rule.                                                   would be monitored during the
                                                      groundwater (e.g., areas of recoverable                    Stability Standards. In addition to the              operational and restoration phases and,
                                                      groundwater). The groundwater at the                    constituent concentration standards                     when the UCL is exceeded, indicate that
                                                      point of exposure should be protective                  discussed above, licensees would also                   lixiviant or other constituents are
                                                      of the receptor. The EPA specifically                   need to meet initial and long-term                      migrating beyond the production zone.
                                                      requests comment on this approach,                      stability standards. The initial stability
                                                                                                                                                                      The preoperational monitoring would
                                                      especially with regard to the overall                   standards would require three
                                                                                                                                                                      be conducted at wells within the
                                                      regulatory model of how ACL                             consecutive years of quarterly
                                                                                                              monitoring results showing no                           production zone and in areas
                                                      application would work, the definition
                                                                                                              statistically significant increasing trends             surrounding the production zone,
                                                      of points of exposure and the use of this
                                                      term, and the overall environmental,                    exceeding the ISR facility’s constituent                including aquifers immediately above
                                                      human health and safety protection                      concentration standards at the 95                       and below the production zone, and in
                                                      goals for setting and using ACLs.                       percent confidence level. The long-term                 areas laterally adjacent to the
                                                      Commenters, including interagency                       stability standards would require an                    production zone, both up and down
                                                      commenters, raised questions                            additional three consecutive years of                   gradient. A sufficient number of wells
                                                      concerning the integration of an aquifer                quarterly monitoring results showing no                 would have to be installed and
                                                      exemption under the SDWA and point                      statistically significant increasing trends             monitored so that the sampling data
                                                      of exposure as it was defined in the                    exceeding the ISR facility’s constituent                collected could be used to statistically
                                                      EPA’s original proposal and the                         concentration standards at the 95                       determine appropriate background
                                                      differing jurisdictions of the SDWA and                 percent confidence level and also would                 levels and support statistical tests,
                                                      UMTRCA.                                                 require the licensee to demonstrate                     modeling and other analysis determined
                                                         Under this proposal, when                            through geochemical modeling and                        by the regulatory agency to be necessary
                                                      considering setting an ACL, the                         other analysis that the applicable                      during the operational, restoration,
                                                      regulatory agency would consider a list                 constituent concentration standards will                initial stability and long-term stability
                                                      of factors, including potential adverse                 continue to be met in the future.                       phases. The licensee would collect a
                                                      effects on groundwater quality, physical                Consistent with the original proposal,                  sufficient number of sample sets per
                                                      and chemical characteristics of the                     the regulatory agency issuing the license               well over a time period sufficient to
                                                      constituent, including the potential for                would be responsible for determining                    indicate a statistically valid background
                                                      migration, hydrogeological                              whether there is reasonable assurance                   concentration that is not affected by
                                                      characteristics of the area, proximity                  that the applicable constituent                         well installation or temporal variations.
                                                      and withdrawal rates of local                           concentration standards will continue to                In areas where temporal (e.g., seasonal)
                                                      groundwater users, current and                          be met at the ISR facility in the future.               variation could occur (e.g., ore zones in
                                                      anticipated future uses of the                                                                                  unconfined aquifers), the preoperational
                                                      groundwater, existing quality of the                    4. What are the proposed general and
                                                                                                              preoperational monitoring                               monitoring would be conducted for at
                                                      groundwater, potential for health risks,                                                                        least one year in a sufficient number of
                                                      potential to damage wildlife, crops,                    requirements?
                                                                                                                                                                      wells to adequately represent the
                                                      vegetation and physical structures, the                    In order to understand the
                                                                                                                                                                      hydrologic system.
                                                      persistence and permanence of the                       hydrogeology and geochemistry of the
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      potential effects, adverse impacts on                   production zone and surrounding area                       In addition to monitoring the
                                                      hydraulically connected surface water                   and to set the preoperational                           concentrations of the constituents
                                                      (including several factors) and the                     background for the constituent                          required by the regulatory agency, the
                                                      presence of any USDW.                                   concentration standards, licensees                      licensee would collect any other data
                                                         The EPA expects that setting a                       would develop a preoperational                          necessary to establish background
                                                      provisional and final ACL will require                  monitoring plan for the wellfield. The                  conditions to support future modeling
                                                      consideration of the hydrologic and                     preoperational monitoring plan would                    and other analysis in preparation to
                                                      other characteristics of the wellfield and                                                                      meet the proposed long-term stability
                                                      surrounding area, any potential areas of                  11 866   F.2d 1263 (10th Cir. 1989).                  standards in § 192.52(c)(3).


                                                 VerDate Sep<11>2014   00:56 Jan 19, 2017   Jkt 241001   PO 00000   Frm 00010    Fmt 4701   Sfmt 4702   E:\FR\FM\19JAP6.SGM   19JAP6


                                                                             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules                                            7409

                                                      5. What are the proposed monitoring                     industry. In such instances, the EPA                   measurements would need to be taken
                                                      requirements for the operational and                    considers the facility to be in the                    quarterly at each well. If one or more
                                                      restoration phases?                                     operational phase and the licensee                     constituents exceed a constituent
                                                         To ensure that no lixiviant, uranium                 would be required under the proposed                   concentration standard during the
                                                      or other constituents are migrating                     rule to continue monitoring and taking                 initial stability monitoring, then the
                                                      outside of the production zone, the                     actions, such as maintaining an inward                 licensee would follow the corrective
                                                      licensee would monitor groundwater for                  hydraulic gradient, to prevent                         action program approved by the
                                                      specified indicator parameters at a set of              excursions.                                            regulatory agency. When monitoring to
                                                      monitoring wells surrounding the                                                                               assess whether the initial stability
                                                                                                              6. What monitoring is proposed for the
                                                      production zone. These excursion                                                                               standards have been met, constituent
                                                                                                              initial stability standards?
                                                      monitoring wells would be located                                                                              concentrations may fluctuate above the
                                                                                                                 Once the licensee believes restoration              respective standard. The corrective
                                                      around the perimeter of the production                  is near completion and believes they                   action program should address the
                                                      zone and in any aquifers immediately                    can, over time, demonstrate that the                   possibility of and the regulatory agency
                                                      above or below the production zone that                 proposed initial stability standards in                should consider potential responses to
                                                      may be impacted by ISR activities. That                 § 192.52(c)(2) can be met, the EPA                     an exceedance of the constituent
                                                      is, the excursion monitoring wells need                 expects that the licensee would begin                  concentration standards while the
                                                      to surround the production zone in                      monitoring the groundwater constituent                 licensee is establishing a statistically
                                                      three dimensions. The excursion                         concentrations throughout the wellfield                adequate trend. The regulatory agency
                                                      monitoring wells would be of sufficient                 to determine when the initial stability                may allow continued monitoring, if
                                                      number, density, and placement to                       standards have been met. To meet the                   appropriate, or require the licensee to
                                                      detect the possibility of an excursion                  proposed initial stability standards, the              undertake a remedy. Regardless of the
                                                      from the production zone. The                           licensee would need to demonstrate                     action taken, the licensee would be
                                                      regulatory agency would be responsible                  stability by providing three consecutive               required by the proposed standards to
                                                      for reviewing and, when appropriate,                    years of quarterly monitoring results                  achieve three consecutive years of stable
                                                      approving well placement and                            showing no statistically significant                   measurements. Furthermore, as in all
                                                      installation, indicator parameters, the                 increasing trend exceeding each                        phases, if lixiviant or other constituents
                                                      UCLs for the indicator parameters, as                   established constituent concentration                  escape the production zone, the licensee
                                                      well as background levels for                           standard. For all monitored                            would be required to take the necessary
                                                      constituents for which constituent                      constituents, this trend would need to                 actions to return the aquifer to below
                                                      concentration standards are set.                        be demonstrated at the 95 percent                      the constituent concentration standards.
                                                         Typical indicator parameters used to                 confidence level. The licensee would be                   When the licensee demonstrates three
                                                      identify possible excursions include                    required to develop and implement a                    consecutive years of quarterly
                                                      chloride, conductivity and total                        compliance monitoring program                          monitoring results showing no
                                                      alkalinity. Other parameters may be                     approved by the regulatory agency that                 statistically significant increasing trends
                                                      appropriate as well. In the proposed                    identifies compliance points                           exceeding the established constituent
                                                      rule, an excursion has occurred when                    encompassing the entire affected area of               concentration standards at the 95
                                                      either (1) two indicator parameters                     the wellfield.                                         percent confidence level, then the
                                                      exceed their respective UCLs in any                        The purpose of the proposed stability               facility has met the proposed initial
                                                      excursion monitoring well; or (2) as                    monitoring is to determine whether                     stability standards and the licensee may,
                                                      determined by the regulatory agency,                    constituent levels in the entire affected              upon the determination of the regulating
                                                      one indicator parameter significantly                   area of the wellfield, including the                   agency that the initial stability
                                                      exceeds its UCL in any excursion                        production zone, have returned to levels               standards have been satisfied, begin
                                                      monitoring well. The EPA specifically                   below the established constituent                      long-term stability monitoring.
                                                      requests comment on this proposed                       concentration standards and stable
                                                      definition of an excursion and                          conditions are established. Hence,                     7. What are the proposed requirements
                                                      suggestions for other approaches for                    compliance wells must include wells                    for the long-term stability standards?
                                                      determining when an excursion has                       previously used as excursion                              During the proposed long-term
                                                      occurred. If an excursion occurs, the                   monitoring wells and those previously                  stability monitoring, the licensee
                                                      licensee would need to initiate                         used as production related wells. The                  continues quarterly monitoring to
                                                      corrective action in accordance with its                location of the compliance wells used to               demonstrate compliance with the
                                                      facility-specific corrective action                     determine compliance with the initial                  constituent concentration standards
                                                      program and would be required to test                   stability standards would need to be                   using the compliance wells established
                                                      for all constituents for which a                        approved by the regulatory agency and                  for monitoring during the initial
                                                      constituent concentration standard was                  would need to be located in areas likely               stability phase. To meet the proposed
                                                      established. At a minimum, the                          to be affected by ISR operations.                      long-term stability standards in
                                                      constituents from Table 1 that are                      Therefore, compliance well would be                    § 192.52(c)(3), the licensee would need
                                                      typically present and that warrant                      located within the production zone,                    to first demonstrate quarterly
                                                      monitoring during an excursion are                      adjacent to the production zone and in                 monitoring results for a minimum of
                                                      uranium, radium, arsenic and selenium.                  aquifers located immediately above and                 three consecutive years showing no
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      The regulatory agency would be allowed                  below the production zone, as approved                 statistically significant increasing trends
                                                      to identify additional constituents that                by the regulatory agency. The number                   exceeding the established constituent
                                                      are present in the groundwater and need                 and location of compliance wells will                  concentration standards (including any
                                                      to be monitored on a facility-specific                  vary depending on the size and                         approved ACLs) at the 95 percent
                                                      basis.                                                  characteristics of the wellfield, but                  confidence level.
                                                         In some cases, a licensee may have                   should encompass the entire affected                      To approve cessation of long-term
                                                      temporarily stopped recovering uranium                  area of the wellfield.                                 stability monitoring, the regulatory
                                                      and the facility may be in a phase                         To meet the proposed initial stability              agency would be responsible for
                                                      commonly called ‘‘standby’’ by the                      standards of § 192.52(c)(2),                           determining whether there is reasonable


                                                 VerDate Sep<11>2014   00:56 Jan 19, 2017   Jkt 241001   PO 00000   Frm 00011   Fmt 4701   Sfmt 4702   E:\FR\FM\19JAP6.SGM   19JAP6


                                                      7410                      Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules

                                                      assurance that the applicable                               (vii) Inter-relationships and                        approved ACL). If the concentration of
                                                      constituent concentration standards will                  contradictory claims (unintended                       one or more constituents exceeds the
                                                      continue to be met at the ISR facility in                 consequences) for these various                        constituent concentration standard (or
                                                      the future. To make this determination,                   elements need to be identified and                     approved ACL) during long-term
                                                      an analysis of geochemical hydrologic                     assessed in the context of the                         stability monitoring, the licensee would
                                                      and other conditions within and around                    conceptual hydrogeochemical model.                     be required to take corrective action to
                                                      the production zone should be prepared                      The EPA requests comment on                          restore the groundwater to comply with
                                                      by the licensee and reviewed by the                       whether these seven elements should be                 the proposed constituent concentration
                                                      regulatory agency. The EPA requests                       required at all sites and thus included                standards; once restoration is complete,
                                                      comment on the specificity of the                         in the standards in 40 CFR part 192,                   the licensee would begin again with
                                                      regulatory language for this final                        subpart F.                                             initial stability monitoring.
                                                      determination of stability and the                          The regulatory agency has the
                                                                                                                responsibility to establish the timeframe              B. Proposed Amendments to 40 CFR
                                                      elements to be considered. In general,
                                                                                                                for long-term stability monitoring, based              Part 192, Subparts C and D
                                                      the EPA expects that the review should
                                                      examine various features within the                       on facility-specific conditions at the                   As part of this rulemaking, the EPA is
                                                      production zone and use a combination                     wellfield and the results of long-term                 also proposing several minor
                                                      of sample collection and analysis of the                  stability monitoring, modeling and                     amendments to the provisions in 40
                                                      restored production zone, data review,                    analysis. If one or more constituents                  CFR part 192, subparts C and D. These
                                                      geochemical modeling and analysis to                      exceed their concentration standard (or                amendments are described in this
                                                      integrate the various types of data and                   approved ACL) or show a statistically                  section and are not related to the new
                                                      to assess groundwater conditions.                         significant increasing trend during the                standards for ISR facilities added in 40
                                                      Various types of geochemical models                       long-term stability phase, the regulatory              CFR part 192, subpart F.
                                                      may be employed from saturation index                     agency may require the licensee to take
                                                      calculations to reactive transport models                 corrective action as specified in the                  1. What are the proposed revisions to
                                                      that can evaluate changing hydrologic                     facility’s corrective action program.                  § 192.32(a)(2)(v)?
                                                      and geochemical conditions within the                     8. What are the proposed corrective                       This proposed rule deletes the
                                                      wellfield. The EPA believes the                           action requirements?                                   requirement in § 192.32(a)(2)(v) for the
                                                      licensee’s long-term stability assessment                    Each licensee would be required to                  NRC to obtain concurrence from the
                                                      should include the following elements:                    develop a corrective action program that               EPA before the NRC may approve
                                                         (i) Conceptual hydrogeochemical                        addresses the actions it will take when                alternative requirements or proposals
                                                      modeling for the mine unit/production                     an excursion is detected during the                    under AEA section 84(c).12 As the EPA
                                                      zone;                                                     operational and restoration phases, or                 stated in the proposal, this portion of
                                                         (ii) Ground water and solid (core) data                when monitoring during the stability                   § 192.32(a)(2)(v) was effectively struck
                                                      used for geochemical model(s),                            phases shows a concentration higher                    down by the Tenth Circuit Court of
                                                      including field parameters;                               than the established constituent                       Appeals in Environmental Defense Fund
                                                         (iii) Incorporation of ground water                    concentration standard or a statistically              vs. U.S. Nuclear Regulatory
                                                      data in an initial geochemical model                      significant increasing trend. Corrective               Commission, 866 F.2d 1263 (10th Cir.
                                                      (i.e., saturation indices calculations and                action, as identified in the corrective                1989). In its decision, the Court ruled
                                                      assessment);                                              action program and approved by the                     that the NRC has authority under AEA
                                                         (iv) Demonstration that stability                      regulatory agency, would be initiated as               section 84(c) to independently make
                                                      (mainly reduction-oxidation or redox)                     soon as practicable and would begin                    these facility-specific determinations,
                                                      conditions can be maintained in the                       within 60 days of the date the excursion               and that the NRC has no duty to obtain
                                                      production zone;                                          or exceedance of a constituent                         the EPA’s concurrence.
                                                         (v) Demonstration that ground water                    concentration standard is detected. The                2. What are the proposed miscellaneous
                                                      migrating into the production zone will                   corrective action program would                        updates and corrections?
                                                      not significantly change the                              consider a range of possibilities for
                                                      geochemical stability within the                          action from the operational phase                        The EPA is also proposing several
                                                      production zone;                                          through the long-term stability                        minor amendments to subparts C and D
                                                         (vi) Demonstration of alternative                      monitoring phase. Corrective action may                to correct cross-references,
                                                      geochemical conditions that                               include removing or treating in place                  typographical and punctuation errors.
                                                      demonstrate stability (uranium and                        any constituents that exceed the                       These amendments include the
                                                      other elements); and                                      constituent concentration standards (or                following:

                                                                 Section                       Description of proposed technical correction                                    Rationale for correction

                                                                                                                          40 CFR part 192, subpart C

                                                      192.20(b)(3) ................    Delete reference to ‘‘Pub. L. 92–314 (10 CFR part 712)’’ ..         The Grand Junction Remedial Action Criteria to which this
                                                                                                                                                             reference applied no longer exist in the CFR.
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      192.20(b)(3) ................    Delete language referencing sealants and filtration ............    Methods were found to be ineffective and are no longer
                                                                                                                                                             recommended as remedial options for radon mitigation.

                                                                                                                          40 CFR part 192, subpart D

                                                      § 192.31(a) ..................   Replace ‘‘Uranium Mill Tailings Rediation Control Act’’ with        Corrects a typographical error.
                                                                                        ‘‘Uranium Mill Tailings Radiation Control Act’’.



                                                        12 See   42 U.S.C. 2114(c).



                                                 VerDate Sep<11>2014     00:56 Jan 19, 2017   Jkt 241001   PO 00000   Frm 00012   Fmt 4701   Sfmt 4702   E:\FR\FM\19JAP6.SGM    19JAP6


                                                                                 Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules                                          7411

                                                                Section                        Description of proposed technical correction                                     Rationale for correction

                                                      § 192.31(f) ...................   Replace ‘‘pile containing uranium by product materials’’            Corrects a typographical error.
                                                                                         with ‘‘pile containing uranium byproduct materials’’.
                                                      § 192.32(a)(2)(v) ..........      Replace ‘‘laser fusion, of soils, etc.’’ with ‘‘laser fusion of     Corrects a punctuation error.
                                                                                         soils, etc.’’.



                                                      III. Summary of Changes Made to the                        B. Groundwater Protection Standards                    radionuclides, such as radium 226. In
                                                      Original Proposal and Rationale for                                                                               addition, commenters noted the wide
                                                                                                                 1. Clarifications to Terminology
                                                      Those Changes                                                                                                     uncertainty range for the radiochemistry
                                                                                                                    The original January 2015 proposal                  analytical methodology currently used
                                                        As previously indicated, the                             listed 13 constituents for which a                     to measure gross alpha activity.
                                                      standards proposed in today’s action                       facility-specific concentration limit                    The EPA tends to agree with
                                                      differ from those standards proposed on                    must be set for each constituent that is               commenters who suggested that gross
                                                      January 26, 2015 (80 FR 4156). This                        present in the groundwater. In the                     alpha measurements are likely to be of
                                                      section of the preamble describes the                      original proposal, the EPA referred to                 limited value when other radionuclides
                                                      most significant changes made to the                       these facility-specific concentration                  of concern are also being sampled. The
                                                      original proposal and the rationale for                    limits as ‘‘groundwater protection                     Agency also recognizes that the
                                                      those changes. Many of the changes                         standards’’ and ‘‘restoration goals’’ (see             uncertainty associated with gross alpha
                                                      were made in response to public                            § 192.52(c) of the original proposed                   measurements may be greater than those
                                                      comments and additional information                        rule). Since the use of these two terms                for other constituents, which may make
                                                      provided by stakeholders. In response to                   may lead to confusion, the EPA is no                   the application of statistical tests
                                                      the original proposal, the EPA received                    longer using the term ‘‘restoration                    especially complicated. However, gross
                                                      over 5,380 public comment letters on                       goals’’ but is instead using the term                  alpha is specified as a constituent to be
                                                      the proposed amendments, of which                          ‘‘constituent concentration standards’’                sampled in other subparts of 40 CFR
                                                      5,192 were duplicate letters. The                          throughout the proposed rule to refer to               part 192, and it does have a maximum
                                                      comments covered more than 80                              these facility-specific concentration                  contaminant level (MCL), which cannot
                                                      different topics and were submitted by                     limits.                                                be overlooked. Further, there may be
                                                      a wide range of stakeholders, including                       In the original proposed rule, the EPA              instances where gross alpha
                                                      private citizens, public interest groups,                  also used the phrase ‘‘identified in the               measurements provide information
                                                      industry, Indian tribes, state agencies                    groundwater’’ when referring to                        regarding the presence of decay
                                                      and other federal agencies. For the                        constituents for which constituent                     products such as lead and polonium.
                                                      original proposal, the EPA also held                       concentration standards should be                      The EPA is specifically requesting
                                                      public hearings in Corpus Christi, TX                      established (see § 192.52(c) of the                    comment on the deletion of gross alpha
                                                      (April 14, 2015); Washington, DC                           original proposed rule). The EPA                       particle activity as one of the original
                                                      (March 10, 2015); Casper, WY (May 13                       intended concentration standards to be                 proposal’s 13 constituents, whether it
                                                      and 14, 2015); and Chadron, NE (May                        set for any constituent that is present in             provides useful information, and how
                                                      12, 2015), where 114 stakeholders                          groundwater before or after ISR                        measurement uncertainty might be
                                                      provided comments.                                         activities have begun. Some constituents               addressed.
                                                        In addition to describing the changes                    may not be initially present in the                    C. Preoperational Monitoring
                                                      made to the original proposal, this                        groundwater but may become soluble                     Requirements
                                                      section also discusses and responds to                     only after lixiviant is injected and
                                                                                                                 groundwater chemistry has been altered.                  In the original proposal, the EPA
                                                      the significant comments that resulted                                                                            included provisions for preoperational
                                                      in many of those changes. The                              However, the phrase ‘‘identified in the
                                                                                                                 groundwater’’ could be misinterpreted                  monitoring that were designed to
                                                      significant comments received that did                                                                            characterize the groundwater flow
                                                      not result in changes to the original                      to mean only those that are present
                                                                                                                                                                        regime, geology and geochemistry. The
                                                      proposal are discussed in section IV of                    during preoperational monitoring. For
                                                                                                                                                                        EPA originally proposed that
                                                      the preamble.                                              clarification, the EPA has revised the
                                                                                                                                                                        preoperational monitoring would
                                                                                                                 original proposal to specify that
                                                      A. Incorporation of the Initial and Long-                                                                         measure the background concentrations
                                                                                                                 constituent concentration standards
                                                      Term Stability Standards in Proposed                                                                              of radiological and non-radiological
                                                                                                                 must be established for all constituents
                                                      40 CFR 192.52                                                                                                     constituents, including all the
                                                                                                                 that are ‘‘identified as present or
                                                                                                                                                                        constituents listed in Table 1 of subpart
                                                         For clarity, the EPA has restructured                   affected by operations in the
                                                                                                                                                                        F, and any additional constituents or
                                                      the proposed rule to move the initial                      groundwater.’’
                                                                                                                                                                        parameters specified by the regulatory
                                                      and long-term stability standards that                     2. Gross Alpha Particle Activity                       agency or needed for calculations or
                                                      were originally included with the                             In the original proposal, the list of               groundwater modeling. The original
                                                      monitoring requirements in § 192.53 to                     constituents in Table 1 of subpart F                   proposal required preoperational
                                                      the standards in § 192.52. The initial                                                                            monitoring be continued for a minimum
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                                                                                 included gross alpha particle activity.13
                                                      stability standards (called ‘‘stability’’ or                                                                      of one year in order to account for any
                                                                                                                 Several commenters opposed listing
                                                      ‘‘short-term stability’’ in the original                                                                          temporal changes occurring in the
                                                                                                                 gross alpha particle activity, stating that
                                                      proposal) were proposed in                                                                                        aquifer. The EPA also proposed some
                                                                                                                 it provided no useful information that
                                                      § 192.53(d)(2)(i), and the long-term                                                                              requirements for the location of the
                                                                                                                 could not be otherwise obtained from
                                                      stability standards were proposed in                                                                              wells, requiring monitoring wells to be
                                                                                                                 the required measurement of
                                                      § 192.53(e)(1)(iii). In this proposal, the                                                                        located in overlying aquifers,
                                                      initial and long-term stability standards                    13 The SDWA MCL of 15 pCi/L for gross alpha          underlying aquifers, inside the
                                                      have been moved to § 192.52(c)(2) and                      particle activity excludes alpha particle activity     exempted aquifer and outside the
                                                      (c)(3), respectively.                                      contributions from radon and uranium.                  exempted aquifer, including areas that


                                                 VerDate Sep<11>2014      00:56 Jan 19, 2017   Jkt 241001   PO 00000   Frm 00013   Fmt 4701   Sfmt 4702   E:\FR\FM\19JAP6.SGM    19JAP6


                                                      7412                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules

                                                      are up- and downgradient from the                       reflect seasonal or other variation in                 exempted aquifer’’ and the term
                                                      future production zone. The original                    background constituent concentrations                  ‘‘adjacent aquifer’’ as an aquifer or
                                                      proposal specified standards for                        or flow.                                               portion of an aquifer that ‘‘shares a
                                                      installing the monitoring wells,                                                                               border or end point with the exempted
                                                                                                              2. Changes to the Well Completion
                                                      including requirements for casings and                                                                         aquifer or the exempted portion of an
                                                                                                              Requirements
                                                      for sealing the wells to prevent                                                                               aquifer’’ (see 80 FR 4183–4184). As the
                                                      contamination.                                             The Agency received several                         EPA explained in the original proposal,
                                                                                                              comments on the original proposed                      the term ‘‘exempted aquifer’’ refers to
                                                      1. Duration of Preoperational                           requirements for well completions. A                   aquifers that are exempted from the
                                                      Monitoring                                              general concern expressed by the                       protections afforded by the SDWA (see
                                                         The EPA received a number of                         commenters is that true baseline                       80 FR 4160).
                                                      comments on the duration of the                         conditions of the groundwater                             Under the SDWA, the EPA sets
                                                      proposed preoperational monitoring                      constituents cannot be established if the              health-based standards for drinking
                                                      requirements. Some commenters                           well drilling and development methods                  water to protect against naturally
                                                      supported the one-year timeframe,                       introduce oxygen into the groundwater.                 occurring and anthropogenic
                                                      while others recommended the time                       The commenters explained that since                    contaminants that may be found in
                                                      period be extended to up to two years.                  oxygen may increase the solubility of                  surface and groundwater sources of
                                                      Many commenters cited the NRC                           uranium, elevated baseline                             drinking water. Additionally, under
                                                      Criterion 7 from 10 CFR part 40,                        concentrations will lead to artificially               SDWA authority, the EPA promulgated
                                                      Appendix A, which requires uranium                      high restoration goals. Commenters                     Underground Injection Control (UIC)
                                                      mills to complete one or more years of                  suggested several methods to alleviate                 Program regulations to ensure
                                                      preoperational monitoring before a                      this concern, including air-rotary                     protection of USDWs,14 which may be
                                                      company can submit a license                            drilling with recirculated nitrogen gas                consumed now or in the future, where
                                                      application. Two commenters noted that                  instead of air and a foam surfactant that              injection activities are occurring. The
                                                      some aquifers do not experience                         contains organic constituents to                       UIC regulations at 40 CFR 144.12
                                                      seasonal variations in groundwater                      eliminate oxygen.                                      prohibit any injection activity that
                                                      constituents. For example, commenters                      After considering these comments, the               allows the movement of fluid containing
                                                      asserted there may be no seasonally                     EPA believes sufficient monitoring                     any contaminant into USDWs if the
                                                      influenced fluctuation in the                           should be completed to ensure all                      presence of that contaminant may cause
                                                      concentrations of groundwater                           perturbations associated with well                     a violation of any primary drinking
                                                      constituents in deeper target ore                       construction are resolved prior to                     water standard or otherwise adversely
                                                      production aquifers.                                    establishing the background                            affect the health of persons. Under UIC
                                                         Based on all of these comments, the                  concentrations. To achieve this goal,                  Program regulations, an aquifer or a
                                                      EPA has refined the approach to                         under this proposed action, the licensee               portion of an aquifer may be exempted
                                                      preoperational monitoring. Instead, the                 would collect several sets of samples                  from the protections afforded USDWs,
                                                      Agency is proposing that preoperational                 over a time period sufficient to                       under the SDWA, if (a) it does not
                                                      monitoring of wells screened in areas                   demonstrate baseline conditions that are               currently serve as a source of drinking
                                                      where temporal variations are not                       unaffected by monitoring well                          water; and (b) it cannot now and will
                                                      expected to occur, such as in deep ore                  construction. In the proposal, the EPA                 not in the future serve as a source of
                                                      zones in confined aquifers, would be                    requires the sampling frequency to be                  drinking water because one of four
                                                      allowed to monitor for periods of less                  sufficient to ensure statistically valid               specified conditions is met, or (c) the
                                                      than one year. However, the licensee                    background levels that are not                         total dissolved solids content of the
                                                      would collect several sets of samples                   influenced by well construction. The                   groundwater is more than 3,000 mg/L
                                                      over a time period sufficient to                        samples used for this purpose may be                   and less than 10,000 mg/L and it is not
                                                      demonstrate seasonal variability does                   the same as those used for the temporal                reasonably expected to supply a public
                                                      not occur. For example, in some cases,                  variability analyses, if technically                   water system (see § 146.4). The four
                                                      four sets of samples collected over                     feasible. The regulatory agency would                  conditions referenced above for the
                                                      several months would be adequate to                     determine whether the licensee’s well                  aquifer exemption criteria at 40 CFR
                                                      determine the background for systems                    construction follows appropriate                       146.4(b) are:
                                                      that do not exhibit seasonal changes. In                protocols and that sampling occurs at                     (1) It is mineral, hydrocarbon or
                                                      this proposal, sample sets collected over               appropriate intervals to establish                     geothermal energy producing, or can be
                                                      a period of at least one year would still               accurate background concentrations.                    demonstrated by a permit applicant as
                                                      be necessary for facilities that operate in
                                                                                                              D. Exempted Aquifers                                   part of a permit application for a Class
                                                      areas where constituent concentrations
                                                                                                                                                                     II or III operation to contain minerals or
                                                      are expected to exhibit seasonal                           The EPA originally proposed that
                                                                                                                                                                     hydrocarbons that considering their
                                                      fluctuations. The regulatory agency                     preoperational monitoring wells,
                                                                                                                                                                     quantity and location are expected to be
                                                      would determine whether the licensee’s                  excursion monitoring wells used during
                                                                                                                                                                     commercially producible.
                                                      preoperational monitoring is of                         the operational and restoration phases,
                                                                                                                                                                        (2) It is situated at a depth or location
                                                      sufficient duration and that sampling                   and compliance wells used during the
                                                                                                                                                                     which makes recovery of water for
                                                      occurs at appropriate intervals to                      initial and long-term stability
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                                                                                                                                     drinking water purposes economically
                                                      establish the background concentrations                 monitoring phases (referred to as
                                                                                                                                                                     or technologically impractical;
                                                      for all 12 constituents, as well other                  ‘‘point(s) of compliance’’) be located
                                                      constituents identified by the regulatory               inside and outside of ‘‘exempted                          14 USDWs are defined, by regulation at 40 CFR
                                                      agency and all indicator parameters. To                 aquifers’’ (see the proposed definition                144.3, as: ‘‘An aquifer or its portion: (a)(1) Which
                                                      provide flexibility where appropriate,                  for ‘‘point(s) of compliance’’ at 80 FR                supplies any public water system; or (2) Which
                                                      the EPA did not propose an across-the-                  4184). In the original proposal, the EPA               contains a sufficient quantity of ground water to
                                                                                                                                                                     supply a public water system; and (i) Currently
                                                      board two-year monitoring requirement,                  also defined the term ‘‘point(s) of                    supplies drinking water for human consumption; or
                                                      although the regulatory agency would                    exposure’’ as the ‘‘intersection of a                  (ii) Contains fewer than 10,000 mg/l total dissolved
                                                      be allowed to do what is necessary to                   vertical plane with the boundary of the                solids; and (b) Which is not an exempted aquifer.’’



                                                 VerDate Sep<11>2014   00:56 Jan 19, 2017   Jkt 241001   PO 00000   Frm 00014   Fmt 4701   Sfmt 4702   E:\FR\FM\19JAP6.SGM   19JAP6


                                                                             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules                                           7413

                                                        (3) It is so contaminated that it would               aquifer exemptions facilitate                          materials from an ISR production zone
                                                      be economically or technologically                      commercial production of minerals and                  into surrounding groundwater’’ and
                                                      impractical to render that water fit for                hydrocarbons under specific conditions,                specified that an excursion has occurred
                                                      human consumption; or                                   the UIC Program requirements are                       when ‘‘. . . any two indicator
                                                        (4) It is located over a Class III well               intended to ensure protection of non-                  parameters . . . exceed their respective
                                                      mining area subject to subsidence or                    exempted portions of a formation which                 upper control limits’’ (see 80 FR 4184).
                                                      catastrophic collapse.                                  meet the definition of a USDW even
                                                                                                                                                                     1. Changes to the Definition
                                                      1. Removal of References to ‘‘Exempted                  where ACLs may be established at an
                                                                                                              ISR site located within an exempted                       Although the EPA generally considers
                                                      Aquifer’’                                                                                                      that an excursion has occurred when
                                                                                                              portion of that aquifer.
                                                         In this proposal, the EPA has removed                  As stated above, this proposed rule is               any two parameters are above the UCL,
                                                      references to ‘‘exempted aquifers’’,                    established under the UMTRCA and not                   in this proposal, the EPA provides
                                                      deleted the definitions of ‘‘adjacent                   under the SDWA; however, both the                      flexibility for the regulatory agency to
                                                      aquifer’’ and ‘‘exempted aquifer’’ from                 UMTRCA and the SDWA requirements                       determine that an excursion has
                                                      § 192.51, and removed the phrase                        may apply to ISR facilities. As discussed              occurred when any single indicator
                                                      ‘‘exempted aquifer’’ from the definition                above and in section I.A., the                         parameter significantly exceeds its UCL.
                                                      of ‘‘background’’ in § 192.51 and from                  requirements of these statutes are                     The EPA made this change to the
                                                      the requirements specifying where                       complementary and not overlapping or                   proposed definition because in some
                                                      monitoring wells must be located. This                  duplicative. The SDWA requirements                     situations a single parameter may be
                                                      change to the original proposal was                     provide for permits to inject lixiviant                sufficiently high to indicate a possible
                                                      made to help clarify that these standards               and recover uranium and possible                       excursion. The EPA emphasizes that
                                                      under UMTRCA complement, and do                         exemption of the production zone from                  this would be a judgement of the
                                                      not overlap with, the requirements of                   SDWA requirements. The proposed                        regulatory agency, and the Agency’s
                                                      the SDWA. As discussed in section I.B.,                 UMTRCA requirements protect adjacent                   understanding is that it is consistent
                                                      the scope and level of protection of the                aquifers that are not exempt from SDWA                 with current NRC practice.
                                                      SDWA differs from the UMTRCA as                         by requiring monitoring and corrective                    In this proposal, the EPA also revised
                                                      groundwater at uranium ISR sites could                  action, if necessary, during the                       the definition of excursion to indicate
                                                      have beneficial uses even if the aquifer                operational and restoration phases in                  that an excursion includes the
                                                      has been exempted from protection                       and around the ore zone after                          movement of fluids containing lixiviant,
                                                      under the SDWA. Since UMTRCA                            production ceases. The SDWA does not                   as well as any fluids containing
                                                      provides authority that can be used to                  prevent recovery and use of the water                  uranium byproduct material, because
                                                      protect aquifers during and after                       within exempted aquifers (including                    these fluids may migrate outside of the
                                                      uranium recovery operations, regardless                 where ISR operations were previously                   ISR production zone. The EPA replaced
                                                      of whether the aquifer meets the                        conducted) for private drinking water                  the reference to ‘‘the ISR production
                                                      definition of an USDW as defined in                     supply, public water supply, or other                  zone’’ with ‘‘ISR wellfield’’ to indicate
                                                      EPA’s UIC regulations or is exempted                    uses.                                                  a broader scope of consideration is
                                                      from the protections of the SDWA, the                                                                          necessary in order to ensure that
                                                      scope of UMTRCA’s protection should                     2. Changes to the Definition of ‘‘Point(s)             background is appropriately addressed
                                                      be reflected in the regulatory text of                  of Exposure’’                                          and to ensure that areas within and
                                                      these standards rather than relying on                     Points of exposure are defined in the               surrounding the production zone are
                                                      the SDWA UIC exemption regulations.                     proposal as locations identified by the                stable.
                                                      Thus, the regulatory text proposed in                   regulatory agency that represent
                                                                                                                                                                     2. Changes to the Constituents Required
                                                      this action does not depend on or use                   possible future areas of exposure where
                                                                                                                                                                     To Be Monitored During the Different
                                                      the term exempt aquifer. Also, although                 the receptor can come into contact with
                                                      a remote possibility, because ISR                                                                              Phases of Operation
                                                                                                              groundwater (e.g., areas of recoverable
                                                      facilities may be located in aquifers that              groundwater). The groundwater at the                      The EPA originally proposed that
                                                      are not designated as ‘‘exempted                        point of exposure should be protective                 licensees would be required to monitor
                                                      aquifers’’ under the SDWA, under the                    of the receptor. As noted earlier in this              for all constituents listed in Table 1 of
                                                      original proposal there would have been                 preamble, commenters, including                        40 CFR part 192, subpart F, during the
                                                      a lack of clarity on how a facility located             interagency commenters, raised                         different phases of operation at an ISR
                                                      in a non-exempt aquifer would comply                    questions concerning the integration of                facility. In this proposal, the EPA
                                                      with a rule using ‘‘exempt aquifer’’                    an aquifer exemption under the SDWA                    changed this requirement such that
                                                      boundaries in the regulatory text.                      and point of exposure as it was defined                facilities would be required only to
                                                         Aquifer Exemptions at ISR facilities.                in the EPA’s original proposal and the                 monitor for those constituents that are
                                                      The EPA recognizes that almost all ISR                  differing jurisdictions of the SDWA and                expected to be present (e.g., uranium,
                                                      facilities may be considering Class III                 UMTRCA. The EPA specifically                           radium, selenium and arsenic) based on
                                                      injection into a formation that meets the               requests comment on this approach,                     the preoperational monitoring and any
                                                      UIC regulatory definition of a USDW                     especially with regard to the overall                  other constituents identified by the
                                                      and is afforded SDWA protection. In                     regulatory model of how ACL                            regulatory agency. The EPA made this
                                                      such scenarios, in addition to applying                 application would work, the definition                 change to the monitoring parameters to
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      for a Class III permit, a Class III owner               of points of exposure and the use of this              ensure monitoring requirements are
                                                      or operator must (1) apply to the                       term, and the overall environmental,                   established based on data indicating the
                                                      appropriate UIC Program for an aquifer                  human health and safety protection                     expected contaminants. This change
                                                      exemption pursuant to requirements at                   goals for setting and using ACLs.                      reduces the monitoring burden for ISR
                                                      40 CFR 144.7 and 146.4 (or applicable                                                                          facilities compared to the original
                                                      state requirements), or (2) ensure that                 E. Excursions                                          proposal. This proposed change also
                                                      the boundaries of an existing exemption                   In the original proposal, the EPA                    provides the regulatory agency
                                                      are appropriately delineated for the                    defined an excursion as ‘‘the movement                 flexibility to specify any other
                                                      proposed injection activity. While                      of fluids containing uranium byproduct                 constituents not listed in Table 1 of 40


                                                 VerDate Sep<11>2014   00:56 Jan 19, 2017   Jkt 241001   PO 00000   Frm 00015   Fmt 4701   Sfmt 4702   E:\FR\FM\19JAP6.SGM   19JAP6


                                                      7414                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules

                                                      CFR part 192, subpart F, that are                       ALARA (As Low As Reasonably                            the determination of when the licensee
                                                      expected to be present. Under this                      Achievable) regulations found in 10                    could discontinue long-term stability
                                                      proposal, the EPA considers it                          CFR part 20. However, other                            monitoring and initiate
                                                      unnecessary to monitor for constituents                 commenters strongly supported the 30-                  decommissioning.
                                                      that are not present. Hence, facilities                 year monitoring time frame or                            While many commenters supported
                                                      would be required to monitor only for                   recommended a longer time frame.                       the 30-year monitoring requirement, and
                                                      those constituents that are likely to be                These commenters felt that 30 or more                  some even preferred a longer period, the
                                                      present.                                                years of monitoring would provide                      proposal maintains the same
                                                                                                              sufficient time to detect instability and              performance-based standards for the
                                                      F. Initial and Long-Term Stability                                                                             long-term stability phase as the original
                                                                                                              potential migration of constituents.
                                                         After restoration ends, ISR facilities                                                                      proposal and hence ensures the same
                                                      must demonstrate compliance with the                    2. Proposed Requirements for Initial and               level of protection the EPA anticipated
                                                      proposed constituent concentration                      Long-Term Stability                                    in the original proposal. The Agency
                                                      standards, and also demonstrate those                      Under UMTRCA, the EPA has                           emphasizes the role of modeling in
                                                      levels will persist and remain stable in                authority to promulgate ‘‘standards of                 achieving that objective. As explained
                                                      the future. In the original proposal, to                general application’’ for the protection               in the original proposal, the Agency
                                                      demonstrate stability, the EPA proposed                 of public health, safety and the                       expected that licensees would make
                                                      three consecutive years of stability                    environment from the radiological and                  extensive efforts to develop robust
                                                      monitoring with stability demonstrated                  non-radiological hazards associated                    models that would significantly shorten
                                                      at the 95 percent confidence level                      with the processing and the possession,                the long-term monitoring period. In fact,
                                                      followed by long-term monitoring for an                 transfer and disposal of byproduct                     as presented in the proposal, it would
                                                      additional period of 30-years. The                      material at uranium ISR facilities. 42                 have been possible for a licensee to
                                                      originally proposed long-term stability                 U.S.C. 2022(b). The Tenth Circuit Court                submit modeling such that no (or
                                                      monitoring would have allowed                           of Appeals has clearly recognized that                 minimal) long-term monitoring would
                                                      facilities to cease monitoring once they                this authority encompasses the ability                 be necessary. However, should licensees
                                                      had completed monitoring for 30 years.                  for the EPA to include monitoring as                   be unable to provide such modeling, or
                                                      However, the original proposal also                     part of its ‘‘standards of general                     choose not to, the additional monitoring
                                                      allowed a licensee to shorten the 30-                   application.’’ American Mining                         would have provided the level of
                                                      year long-term stability monitoring                     Congress et al. v. Thomas, 772 F.2d 640,               confidence necessary for the regulatory
                                                      period by demonstrating geochemical                     644, 647–649 (10th Cir. 1985) (‘‘The                   agency to determine that long-term
                                                      stability through monitoring and                        regulations necessitate monitoring                     stability had been demonstrated. This
                                                      geochemical modeling.                                   programs.’’ ). In the proposal, the EPA                revised proposal relies on modeling and
                                                                                                              has retained the initial and long-term                 analysis to as an essential element in
                                                      1. Statutory Authority and 30-Year
                                                                                                              stability monitoring requirements but                  concluding that groundwater will
                                                      Long-Term Monitoring
                                                                                                              has removed the default requirement for                continue to meet the applicable
                                                         The EPA derived the 30-year long-                    30 years of long-term monitoring. The                  constituent concentration standards into
                                                      term stability monitoring period in the                 initial stability monitoring period                    the foreseeable future, leading to the
                                                      original proposal based on                              remains the same as in the original                    Agency’s judgment that the revised
                                                      consideration of the Agency’s statutory                 proposed rule (i.e., at least three years).            approach is comparable in
                                                      mandate to be consistent with the                       Under this proposal, the duration of the               protectiveness to the original proposal.
                                                      requirements applied to managing                        long-term stability monitoring must be                   As noted above, other commenters
                                                      hazardous waste under RCRA.                             at least three years, and the regulatory               stated that 30 years of monitoring would
                                                         Numerous commenters thought the                      agency would determine the appropriate                 not add value and would put many
                                                      proposed 30 years of long-term                          length of any additional long-term                     companies out of business. ISR facilities
                                                      monitoring was not justified, and was                   stability monitoring based on criteria                 that disturb groundwater and mobilize
                                                      excessive and unnecessary. The general                  that will enable the licensee to                       constituents of concern are responsible
                                                      positions of these commenters were that                 demonstrate, as appropriate, that there                for restoring disturbed groundwater to
                                                      these very specific monitoring time                     is reasonable assurance that the                       background or health-based conditions
                                                      frames were outside the EPA’s statutory                 applicable constituent concentration                   regardless of the time required to
                                                      authority under the UMTRCA to                           standards will continue to be met in the               achieve this goal. However, the EPA
                                                      promulgate ‘‘standards of general                       future. Similar performance criteria                   also agrees with commenters who noted
                                                      application’’ and that there is no                      were part of the standards in the                      the time period necessary to establish
                                                      evidence that ISR facilities have                       original proposed rule, where the EPA                  stability at an ISR facility is variable due
                                                      impacted offsite underground sources of                 had proposed that licensees would be                   to differences in geology, hydrology and
                                                      drinking water. Commenters also                         required to demonstrate three                          geochemistry. As reflected by one of the
                                                      thought the requirement would have a                    consecutive years of initial stability                 commenters, after 10 years of
                                                      significant economic impact, including                  monitoring and then maintain long-term                 monitoring at the Kingsville Dome ISR
                                                      impacts on leasing and surety costs that                stability monitoring for an additional                 facility, it appears that reducing
                                                      would place a number of ISR companies                   period of 30 years. The original proposal              conditions have not been re-established
                                                      out of business. Other commenters                       included an option that allowed a
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                                                                                                                                     in the production zone. Restoration at
                                                      noted that ISR facilities are not                       licensee to shorten the 30-year                        Christensen Ranch has not been
                                                      equivalent to RCRA hazardous waste                      timeframe by demonstrating long-term                   approved by the NRC because the NRC
                                                      facilities and should not be similarly                  geochemical stability through modeling.                found that restoration was not complete
                                                      regulated. Some commenters were                         Under this proposal, modeling would                    and water quality was not stable after
                                                      concerned the long-term monitoring                      no longer be optional. Consistent with                 completion of uranium recovery in
                                                      requirements would increase radiologic                  the original proposal, the EPA is                      2005.15 Uranium concentrations also
                                                      dose to employees maintaining the                       proposing that the regulatory agency
                                                      processing plant and well fields, which                 would be responsible for reviewing the                   15 NRC (2012), ‘‘Technical Evaluation Report:

                                                      would be inconsistent with the NRC’s                    licensee’s data and analysis, and making               Christensen Ranch Mine Units 2 through 6



                                                 VerDate Sep<11>2014   00:56 Jan 19, 2017   Jkt 241001   PO 00000   Frm 00016   Fmt 4701   Sfmt 4702   E:\FR\FM\19JAP6.SGM   19JAP6


                                                                             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules                                                    7415

                                                      increased in a production monitoring                    regulatory agency to determine based on                concentration standards ‘‘within the
                                                      well at Smith Highlands Ranch after                     site-specific conditions.                              production zone and the maximum
                                                      restoration was completed.                                 The EPA requests public comment on                  constituent level in adjacent aquifers’’
                                                         This proposal defines the initial                    the proposed approach as well as the                   (see § 192.54(a) of the proposed rule).
                                                      stability standards as ‘‘three consecutive              alternatives. Specifically, the EPA                    Groundwater monitoring for a period of
                                                      years of quarterly monitoring results                   would like to know whether this                        at least three years after corrective
                                                      with no statistically significant                       language is sufficiently protective and                action had been terminated was
                                                      increasing trends exceeding the                         whether there are any other practical                  proposed with reference to the proposed
                                                      constituent concentration standards at                  approaches the Agency should consider                  monitoring requirements for the initial
                                                      the 95 percent confidence level.’’ These                as possible alternatives.                              and long-term stability phases.
                                                                                                                 In this proposal, the EPA has defined                  A few commenters supported the
                                                      performance-based standards would
                                                                                                              the long-term stability standards as a                 requirement to take corrective action as
                                                      apply after the licensee completes
                                                                                                              two-part test, with the following                      soon as practicable. However, most
                                                      restoration and, once met, would
                                                                                                              elements: (1) The licensee must provide                commenters disagreed with the original
                                                      demonstrate that restoration was
                                                                                                              an additional three consecutive years of               proposed requirement to require ISR
                                                      initially successful. The EPA requests
                                                                                                              quarterly monitoring data demonstrating                facilities to implement a corrective
                                                      comment on this approach and the                        no statistically significant increasing                action program within 90 days. One
                                                      wording of the regulatory text.                         trend exceeding the constituent                        commenter was concerned the
                                                      Alternative language the EPA                            concentration standard for each                        compliance costs would be high because
                                                      considered for this proposal for both                   applicable constituent at the 95 percent               the wellfield and associated equipment
                                                      initial and long term stability, included               confidence level; and (2) the licensee                 would have to be maintained at the ISR
                                                      requiring the licensee to show ‘‘ . . .                 must provide geochemical modeling                      facility for many years in order for
                                                      three consecutive years of quarterly                    and other analysis to demonstrate that                 corrective action to be started within the
                                                      monitoring results demonstrating a                      constituent concentrations within the                  required 90 days. Another commenter
                                                      statistically significant non-increasing                production zone will be met in the                     thought a longer time period was
                                                      trend at the 95 percent confidence level                future. The regulatory agency would                    justified due to the low velocity of
                                                      remaining below each constituent                        evaluate the modeling and other                        groundwater at ISR facilities. This
                                                      concentration standard.’’ This                          analysis and make a determination as to                commenter asserted that additional time
                                                      alternative approach, which would                       whether there is reasonable assurance                  may be needed for drilling wells and
                                                      require the licensee to demonstrate that                that the applicable constituent                        installing pump and treat equipment,
                                                      the trend line is either horizontal or                  concentration standards will continue to               particularly during the long-term
                                                      decreasing (‘‘non-increasing’’), has been               be met in the future. In this proposal,                stability period when equipment has
                                                      applied in the Superfund program. It                    only after this determination has been                 been removed. This commenter
                                                      has the clear advantage of accepting                    made by the regulatory agency would                    recommended a period of two years be
                                                      only trend lines that are not increasing,               the licensee cease long-term monitoring.               allowed for implementing a corrective
                                                      which can provide some additional                          The three-year long-term monitoring                 action program and stated that
                                                      confidence that the trend is not in a                   period represents a different application              groundwater may move only 10 to 20
                                                      direction that could (eventually)                       of the RCRA paradigm than the 30-year                  feet over this time period. Another
                                                      threaten to exceed the constituent                      post-closure monitoring. The three-year                commenter noted that the NRC already
                                                      concentration standards.                                monitoring period is consistent with                   has regulations covering corrective
                                                         However, based on discussions with                   RCRA corrective action requirements,                   action in 10 CFR part 40, Appendix A,
                                                      the NRC, the agency responsible for                     which can be seen as analogous with                    Criterion 5D, which specify that a
                                                      implementing this rule after                            groundwater restoration at ISR sites.                  licensee has up to 18 months to
                                                      promulgation, it is clear that licensees                The Agency believes the three-year                     implement a corrective action program.
                                                      may see increasing, but not statistically               performance standard for the long term                 One commenter found the proposed
                                                      significant trends in constituent                       is appropriate to provide additional                   requirements for groundwater
                                                      concentrations during stability                         confidence in restoration of these sites               monitoring confusing and questioned
                                                      monitoring. Consequently, the EPA                       and provides sufficient time to conduct                why the proposed rule referenced the
                                                      opted to change the language to ‘‘no                    a trend analysis, as well as being                     initial and long-term stability
                                                      statistically significant increasing trend’’            consistent with RCRA requirements of                   monitoring requirements. This
                                                      to provide the NRC flexibility in                       three years of monitoring to demonstrate               commenter thought the groundwater
                                                      addressing this specific scenario.                      no exceedance associated with                          monitoring applied to excursions and
                                                      Further, the EPA is concerned that                      corrective action. The EPA finds that                  questioned why additional monitoring
                                                      specifying a non-increasing trend may                   this alternative approach will provide                 was necessary for excursions occurring
                                                      introduce complications in applying                     the necessary protectiveness and is                    during the operational phase.
                                                      statistical techniques, particularly when               particularly responsive to industry                       The EPA has made several changes to
                                                      working from the hypothesis that there                  comments regarding the potential costs                 the corrective action requirements in
                                                      is no slope to the trend line. The level                associated with a 30-year monitoring                   this proposal. First, the EPA would
                                                      of natural variation present may itself                 period.                                                require ISR facilities to begin (but not
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      forestall the ability to determine a non-               G. Corrective Action Program                           necessarily complete) corrective action
                                                      increasing slope with the level of                                                                             no later than 60 days after an excursion
                                                      confidence the EPA believes necessary.                    The EPA originally proposed that
                                                                                                                                                                     or exceedance is detected. The EPA
                                                      The level of statistical significance                   facilities be required to take corrective
                                                                                                                                                                     made this change to be consistent with
                                                      associated with an increasing trend that                action as soon as practicable but no later
                                                                                                                                                                     the NRC’s current practice for
                                                      would be unacceptable is left to the                    than 90 days after an excursion or
                                                                                                                                                                     excursions.16 Full implementation may
                                                                                                              exceedance is detected. The original
                                                      Restoration Report, Uranium One USA, Inc. Willow
                                                                                                              proposal also required that the                          16 NRC (2003), ‘‘Standard Review Plan for In-Situ

                                                      Creek ISR Project.’’ Available at http://               concentrations of constituents be                      Leach Uranium Extraction License Applications
                                                      www.nrc.gov/docs/ML1217/ML12174A048.pdf.                returned to the constituent                                                                      Continued




                                                 VerDate Sep<11>2014   00:56 Jan 19, 2017   Jkt 241001   PO 00000   Frm 00017   Fmt 4701   Sfmt 4702   E:\FR\FM\19JAP6.SGM   19JAP6


                                                      7416                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules

                                                      take additional time, as recognized by                  the regulatory agency for approval to                  makes clear that these standards would
                                                      the NRC in 10 CFR Appendix A,                           cease long-term stability monitoring.                  not apply to wellfields that are currently
                                                      Criterion 5D. The time for the initiation               These changes to § 192.54(c) would not                 in and remaining in restoration or
                                                      and completion of the corrective action                 add any new requirements but simply                    stability monitoring.
                                                      in all phases of operation would be                     clarify the requirements that were                        Commenters also expressed concern
                                                      addressed in the corrective action                      originally proposed.                                   that the costs of monitoring were not
                                                      program and approved by the regulatory                                                                         adequately reflected due to inaccurate
                                                      agency.                                                 H. Costs and Economic Impacts                          assumptions for current monitoring
                                                         Second, the EPA is acknowledging                     1. Compliance Costs                                    requirements. The EPA adjusted the
                                                      that corrective action in the initial                                                                          monitoring costs in the economic
                                                                                                                 Commenters expressed concern that
                                                      stability phase may be different than in                                                                       analysis based on guidance received
                                                                                                              the EPA had not considered the entire
                                                      the long-term stability phase, as during                                                                       from the NRC regarding current
                                                                                                              spectrum of legal, regulatory and other
                                                      the initial stability phase data are being                                                                     monitoring practices and requirements,
                                                                                                              costs required to hold and preserve the
                                                      collected to show the initial trend and                                                                        as opposed to historical practices that
                                                                                                              ISR facility, lands and wellfields during
                                                      may be more subject to fluctuation. One                                                                        were noted by some commenters as
                                                                                                              the stability monitoring periods. The                  common to more developed ISR
                                                      exceedance may be acceptable during
                                                      the initial stability phase, but not for the            EPA reviewed and updated the                           facilities. Also, a commenter noted that
                                                      long-term stability phase, without taking               economic analysis to incorporate                       the rule discussion in the proposal
                                                      corrective action. The EPA is proposing                 estimated non-monitoring costs (e.g.,                  preamble at 80 CFR 4186 (§ 192.53(a)(3)
                                                      the regulatory agency would have the                    licensing, leasing fees, continued surety,             of the original proposal) required
                                                      authority to determine whether an                       maintenance) identified in the                         monitoring well locations outside of the
                                                      exceedance truly warrants action or                     comments. Commenters also                              monitoring well ring and that these
                                                      continued monitoring while the licensee                 recommended that the EPA consult the                   costs were not included in the economic
                                                      is trying to establish the data trend                   ISR industry to better characterize costs,             analysis. The proposal maintains the
                                                      during the initial stability phase. The                 and the EPA requested additional                       requirement in the original proposal for
                                                      need for action or monitoring during                    information from some of the uranium                   down-gradient monitoring wells outside
                                                      each phase of operation would be                        recovery companies that had provided                   the monitoring well ring where needed,
                                                      anticipated and addressed in the                        cost data during the public comment                    and at the discretion of the regulating
                                                      corrective action program. Whether or                   period to clarify the information                      agency, especially when an adjacent
                                                      not the regulatory agency has                           provided. The additional cost                          aquifer is present. Initially, the EPA’s
                                                      determined that corrective action is                    information received from the uranium                  proposal required monitoring at
                                                      necessary does not negate or affect the                 recovery companies was incorporated                    locations down-gradient from the
                                                      proposed initial stability standards                    into the economic analysis. A listing of               wellfield in exempted aquifers.
                                                      requiring three consecutive years of                    the non-monitoring costs that were                     However, placement of down-gradient
                                                      quarterly monitoring results with no                    identified in the comments and added                   monitoring wells outside the well ring
                                                      statistically significant increasing trends             to the revised analysis, along with a                  was not found to be common practice at
                                                      exceeding the constituent concentration                 comparison of non-monitoring costs                     existing sites and the EPA removed
                                                      standards at the 95 percent confidence                  provided by industry and the average                   these wells from the cost model. The
                                                      level. The corrective action program                    values used in the economic model, can                 EPA also assumed in the proposal that
                                                      would have to return the constituent                    be found in the economic analysis                      monitoring and hydrogeologic and
                                                      concentrations to levels below the                      report (see sections 3.2 and 3.3). The                 geochemical modeling requirements
                                                      constituent concentration standards                     addition of non-monitoring costs added                 would allow most sites to demonstrate
                                                      established by the regulatory agency.                   $2,300 per acre to the modeled average                 that groundwater conditions down-
                                                         Finally, the EPA is proposing to                     facility costs excluding license and                   gradient of the wellfield would trap any
                                                      change the groundwater monitoring                       surety. The estimated total annualized                 mobilized constituents, thus ensuring
                                                      provisions proposed for § 192.54(c) (80                 incremental non-monitoring costs                       that groundwater quality is protected.
                                                      FR 4187) to better reflect the                          projected to be incurred by firms                      Reference to the ‘‘exempted aquifer’’ has
                                                      requirements applicable to ISR facilities               owning existing ISR facilities ranged                  also been removed from this proposal,
                                                      that experience exceedances of                          between $0.1 million and $4.1 million,                 as discussed in section III.D of this
                                                      constituent concentration standards                     with total national non-monitoring costs               preamble.
                                                      during the long-term stability phase.                   of $7.6 million for all firms. All costs in               Comments were also received on the
                                                      The EPA agrees with a commenter who                     the economic analysis have been                        methodology used to extrapolate a cost
                                                      stated that the proposed rule language                  adjusted from 2011 to 2015 dollars, as                 per acre for operating ISR facilities
                                                      for the groundwater monitoring                          suggested by commenters.                               based on a conceptual ISR unit, and
                                                      requirements in § 192.54(c) could easily                   Another concern expressed by                        while it was acknowledged that the
                                                      be misinterpreted. The change to the                    commenters was that the EPA had not                    method may be appropriate for fully
                                                      original proposed rule makes it explicit                considered additional costs to self-                   developed ISR facilities, the
                                                      that corrective action is followed by                   funded regulatory programs, and that                   commenters were concerned that this
                                                      another round of initial stability                      these costs would be passed along to the               methodology may not capture the full
                                                                                                              uranium recovery companies. The                        costs of implementation for facilities in
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      monitoring followed by long-term
                                                      stability monitoring. Under this                        revised standards reflect the practices                earlier stages of development. The EPA
                                                      proposal, the ISR facility would need to                that have become more common                           further reviewed and used available
                                                      first meet the three-year initial stability             between the NRC and ISR facilities;                    information from facility surety and
                                                      standards, and then meet the long-term                  therefore, this proposal is not expected               license reports to estimate and account
                                                      stability standards of § 192.53(c)(3)(i)                to add significant burden to regulatory                for the proposed and anticipated
                                                      and (ii), before it is eligible to apply to             programs.                                              number of ISR units at each ISR facility
                                                                                                                 Compliance for existing ISR facilities              that was included in the cost model.
                                                      (NUREG–1569).’’ Available at http://www.nrc.gov/        also concerned commenters. As in the                      In light of the adjustments described
                                                      reading-rm/doc-collections/nuregs/staff/sr1569/.        proposal, § 192.52(a) of this proposal                 above, the EPA considers the estimated


                                                 VerDate Sep<11>2014   00:56 Jan 19, 2017   Jkt 241001   PO 00000   Frm 00018   Fmt 4701   Sfmt 4702   E:\FR\FM\19JAP6.SGM   19JAP6


                                                                             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules                                           7417

                                                      monitoring costs for existing ISR                       cause an unnecessary waste of                          4160). However, the EPA notes there are
                                                      facilities that it developed for purposes               groundwater resources beyond                           periods when the ISR facility is not
                                                      of the proposal to be reasonable;                       diminishing returns, due to prolonged                  actively recovering uranium for various
                                                      however, the Agency continues to                        additional restoration to satisfy the                  reasons (e.g., market conditions), but
                                                      recognize that there are uncertainties                  proposed requirement for 95 percent                    production is intended to resume when
                                                      inherent to the process used to                         statistical confidence of groundwater                  conditions are more favorable. These
                                                      extrapolate the monitoring costs                        stability. The EPA disagrees and                       periods are sometimes referred to as
                                                      associated with these standards as                      believes that the 95 percent statistical               ‘‘standby’’ by operators. In the original
                                                      compared to actual costs to ISR                         confidence level is widely accepted and                proposal, the EPA expressed the view
                                                      facilities.                                             used in other environmental standards.                 that it would not be appropriate to allow
                                                      2. Energy Impacts Summary                               For more information on the 95 percent                 a standby period for ISR facilities if the
                                                                                                              confidence level, see section IV.D of the              gradient within the wellfield is not
                                                         Several commenters noted the                         preamble.                                              being maintained, and that stopping the
                                                      importance of nuclear power to shift the                   One commenter stated that the EPA                   extraction cycle should require the
                                                      nation’s reliance away from carbon-                     ignored its authority under CERCLA                     operator to enter the restoration phase.
                                                      based energy resources and expressed                    that allows the Agency to require former               Commenters acknowledged that ISR
                                                      concern that the proposed standards                     operators and their successors to clean                facilities can experience extended
                                                      would reduce the viability of uranium                   up post-license termination, thereby                   periods of standby and noted that active
                                                      recovery and continued development of                   unnecessarily increasing monitoring                    pumping during these periods is
                                                      nuclear energy. In response to these                    costs for ISR facilities. The EPA does                 necessary to prevent contamination of
                                                      comments, the EPA reevaluated the                       not believe it is appropriate to rely upon             groundwater in areas outside the
                                                      incremental costs of the selected option                expectations of future cleanup rather                  production zone. One commenter
                                                      to existing and planned ISR facilities,                 than make reasonable efforts to prevent                recommended the EPA minimize the
                                                      which further substantiated that this                   groundwater contamination in the first                 amount of time during which an ISR
                                                      action is not a ‘‘significant energy                    place. The intent of this rule is to                   facility in standby is not pumping.
                                                      action’’ as defined in Executive Order                  protect groundwater and prevent its                    Other commenters thought ISR facilities
                                                      13211 (66 FR 28355, May 22, 2001). The                  degradation, thereby eliminating the                   entering standby should be required to
                                                      proposed standards, in large part, codify               need for remedial actions under                        initiate restoration and recommended
                                                      groundwater monitoring practices and                    CERCLA that, by the time discovered,                   that the EPA require ISR facilities to
                                                      requirements already being                              could be far costlier. This approach is                commence restoration within a
                                                      implemented at permitted operations;                    fully consistent with the EPA’s                        specified time period after ceasing
                                                      further, domestic uranium has                           Groundwater Protection Strategy, which                 active uranium recovery.
                                                      historically provided less than 10                      emphasizes pollution prevention over
                                                      percent of total uranium supplied to                                                                              The EPA agrees with the commenters
                                                                                                              remediation. Also, commenters asserted                 who said ISR facilities must be
                                                      civilian owners and operators (COOs) of                 that the groundwater modeling was
                                                      nuclear power stations. Because the                                                                            responsible for ensuring that lixiviant
                                                                                                              inadequate, and flawed inputs were                     and constituents do not migrate outside
                                                      proposal would increase the costs of                    used to estimate the duration of
                                                      facilities that produce a relatively small                                                                     of the production zone during standby
                                                                                                              remediation to clean up a plume after                  periods. The EPA disagrees with the
                                                      share of uranium traded in U.S. markets,
                                                                                                              facility closure. The EPA understands                  commenter who suggested ISR facilities
                                                      the EPA estimate that a $1.96 increase
                                                                                                              that the contaminant transport models                  that temporarily cease operations
                                                      per pound in the cost of ISR uranium
                                                                                                              used to estimate costs of remediating a                should be required to commence
                                                      production would increase the price of
                                                                                                              contaminant plume are simplistic, the                  restoration. The EPA agrees, however,
                                                      uranium paid by COOs by only $0.11
                                                                                                              inputs used are based on limited ISR                   that during standby periods the
                                                      per pound. Because nuclear generation
                                                                                                              facility data, and selected                            migration of constituents mobilized by
                                                      provides a relatively small share of total
                                                                                                              parameterizations are based on                         the prior injection of lixiviant may
                                                      domestic electricity, the $0.11 increase
                                                                                                              assumptions. Nevertheless, the flow                    continue even if the decision is made to
                                                      in the price of uranium would increase
                                                                                                              model provides a reasonable estimate                   stop extracting uranium. Excursions
                                                      the price of electricity very little (less
                                                                                                              for the duration of an illustrative general            beyond the production zone are more
                                                      than 0.1 percent). Although the proposal
                                                                                                              pump and treat remediation scenario,                   likely to occur if the hydraulic gradient
                                                      would slightly increase the costs of
                                                                                                              based on the EPA’s extensive pump and                  within the wellfield is not maintained.
                                                      domestic uranium production relative to
                                                                                                              treat remediation experience under                     For this reason, the EPA considers
                                                      international sources, this rule is not
                                                                                                              CERCLA and other remedial programs,                    standby to be part of the operational
                                                      expected to directly and adversely affect
                                                                                                              and, upon review, the models and                       phase, and facilities should not cease
                                                      productivity, competition or prices in
                                                                                                              inputs were determined to be adequate                  pumping during standby periods since
                                                      the energy sector. For more information,
                                                                                                              to illustrate potential cost savings for               it is important that an inward hydraulic
                                                      please see section VI.H of this preamble
                                                                                                              purposes of the economic analysis.                     gradient is maintained during these
                                                      and sections 5.3 and 6.9 of the
                                                      document titled, ‘‘Economic Analysis:                   I. Other Miscellaneous Changes                         periods. For this reason, the EPA is
                                                      Revisions to the Health and                                                                                    proposing that all requirements
                                                                                                              1. Clarification of ‘‘Operational Phase’’              applicable to the operational phase
                                                      Environmental Protection Standards for
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      Uranium and Thorium Mill Tailings                          In the original proposal, the EPA                   remain in effect during these standby
                                                      Rule (40 CFR part 192),’’ available in                  defined the operational phase of an ISR                periods. Provided the licensee complies
                                                      Docket ID No. EPA–HQ–OAR–2012–                          facility as ‘‘the time period during                   with the operational phase monitoring
                                                      0788.                                                   which uranium extraction by in-situ                    and corrective action requirements in
                                                                                                              recovery occurs’’ and noted that                       the proposed rule, ISR facilities in
                                                      3. Groundwater Resource Impacts of                      ‘‘operations end when the operator                     standby would not need to enter
                                                      Restoration                                             permanently ceases injection of lixiviant              restoration because groundwater in
                                                         Several commenters expressed                         and recovery of uranium-bearing                        areas surrounding the production zone
                                                      concern that the proposed rule would                    solution for processing’’ (see 80 FR                   will be afforded the same level of


                                                 VerDate Sep<11>2014   00:56 Jan 19, 2017   Jkt 241001   PO 00000   Frm 00019   Fmt 4701   Sfmt 4702   E:\FR\FM\19JAP6.SGM   19JAP6


                                                      7418                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules

                                                      protection as required during                           standards that are too detailed and                    stable with 95 percent confidence; (2)
                                                      restoration. In this proposal, the EPA                  prescriptive. The commenters argued                    conduct monitoring; and (3) develop
                                                      has revised the definition of                           the EPA was redefining what UMTRCA                     and implement a corrective action
                                                      ‘‘operational phase’’ in original proposal              established as the EPA’s role to set                   program. Within the framework of these
                                                      to clarify that standby mode is                         general standards while making the                     generally applicable standards, the
                                                      considered part of the operational phase                NRC responsible for implementing those                 regulatory agency would be responsible
                                                      and that ISR facilities in standby must                 standards through its licensing process.               for implementing the proposed new
                                                      maintain appropriate groundwater                        These commenters believe that                          standards on a site-specific basis
                                                      controls to prevent constituents from                   UMTRCA limits the EPA’s authority to                   through the licensing process and
                                                      leaving the production zone.                            setting general standards that do not                  would retain the authority to determine
                                                                                                              include any prescriptive                               when an ISR license can be terminated.
                                                      2. Changes to the Definition of ‘‘Point(s)
                                                                                                              implementation requirements. Some of                   AMC II, 772 F.2d at 647–648 (‘‘General
                                                      of Compliance’’
                                                                                                              these commenters cited a statement                     application standards that allow the
                                                         As stated in the original proposal,                  from the legislative history of UMTRCA                 Nuclear Regulatory Commission (NRC)
                                                      during the restoration phase, the                       in which a House Committee advised                     to choose the means of implementation
                                                      definition of ‘‘point(s) of compliance’’                that ‘‘[t]he EPA standards and criteria                are consistent with the authority
                                                      may include ‘‘monitoring, injection, and                should not interject any detailed or site-             Congress vested in the EPA.’’).
                                                      extraction wells in the production zone’’               specific requirements for management,                     The first of these three components of
                                                      (see 80 FR 4184). Points of compliance                  technology, or engineering methods on
                                                      during the initial stability and long-term                                                                     the proposed standards has two integral
                                                                                                              licensees or the Department of Energy.’’               parts—numerical constituent
                                                      stability phases should include                            However, other commenters thought
                                                      locations within the former production                                                                         concentration standards and
                                                                                                              the proposal was an appropriate
                                                      zone, including existing monitoring,                                                                           groundwater stability standards. This
                                                                                                              exercise of the EPA’s authority under
                                                      injection and extraction wells. To clarify                                                                     proposal sets forth minimum
                                                                                                              the UMTRCA because the proposed rule
                                                      these requirements, in this proposal, the                                                                      requirements for the constituent
                                                                                                              would not supplant the NRC’s
                                                      EPA revised the definition of ‘‘point(s)                                                                       concentration standards, but
                                                                                                              jurisdiction or impede its licensing
                                                      of compliance’’ to indicate that                                                                               implementation of those standards on a
                                                                                                              authority. They cited the statutory
                                                      excursion monitoring wells are                                                                                 site-specific basis remains the
                                                                                                              provisions that assign the authority to
                                                      considered points of compliance during                                                                         responsibility of the regulatory agency.
                                                                                                              set standards to the EPA and the
                                                      all phases of ISR operation and that                    authority to implement and enforce the                 However, a numerical concentration
                                                      during the initial and long-term stability              standards to the NRC (See 42 U.S.C.                    standard by itself is not sufficient to
                                                      monitoring phases, points of                            2022(b), (d)). The commenters thought                  address ‘‘the risk to public health,
                                                      compliance should also include                          the proposed standards were an                         safety, and the environment’’ that the
                                                      locations, identified by the regulatory                 appropriate application of the EPA’s                   EPA is required by statute to consider
                                                      agency, where a potential receptor can                  authority under the UMTRCA and felt                    when setting general standards. 42
                                                      come into contact with contaminated                     that the EPA had correctly left                        U.S.C. 2022(b)(1). Since ISR facilities
                                                      groundwater. The EPA is specifically                    implementation of the new standards to                 alter the natural groundwater flow, this
                                                      requesting comment on the definition of                 the NRC and Agreement States.                          risk includes the risk that constituent
                                                      ‘‘point(s) of compliance’’ and how it is                   The Agency disagrees with those                     concentrations in the groundwater will
                                                      applied. Again, the EPA is requesting                   commenters who believe the EPA has                     not remain the same over time if the
                                                      comment on the definition of point of                   redefined its role or overreached its                  groundwater remains unstable. Thus, to
                                                      exposure and conceptual framework for                   authority in developing the new                        address this risk, the proposed rule
                                                      establishing ACLs.                                      standards for ISR facilities. Section 206              contains a general requirement to
                                                                                                              of the UMTRCA clearly authorizes the                   demonstrate that groundwater
                                                      IV. Responses to Other Significant                      EPA to promulgate standards of general                 conditions are stable after production
                                                      Comments That Did Not Result in                         application for the protection of public               ends at a site. For example, to satisfy the
                                                      Changes to the Original Proposal                        health, safety and the environment from                proposed initial stability standards, ISR
                                                        The EPA carefully reviewed and                        radiological and non-radiological                      facilities would provide three
                                                      considered comments from a wide range                   hazards associated with the processing                 consecutive years of quarterly
                                                      of different groups in preparing this                   and the possession, transfer and                       monitoring results demonstrating no
                                                      proposal. As discussed in section III of                disposal of byproduct material at                      statistically significant increasing trends
                                                      this preamble, the EPA modified and                     uranium ISR facilities. See 42 U.S.C.                  exceeding the constituent concentration
                                                      clarified various aspects of the proposed               2022(b). The Tenth Circuit Court of                    standards at the 95 percent confidence
                                                      rule based on the information and views                 Appeals affirmed EPA’s authority to set                level. This proposed requirement to
                                                      provided, including comments on the                     such standards under UMTRCA in two                     demonstrate groundwater stability is an
                                                      original proposal. However, not all                     companion cases challenging the                        integral part of the standard. The
                                                      comments resulted in modifications to                   original part 192 rules. See American                  proposed general standard for stability
                                                      the proposed rule. Those significant                    Mining Congress et al. v. Thomas, 772                  is defined by a level of statistical
                                                      comments that did not result in                         F.2d 617 (10th Cir. 1985) (‘‘AMC I’’);                 confidence that is applicable to all sites.
                                                      changes, together with the EPA’s                        American Mining Congress e. al. v.                     EPA believes this level of statistical
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      responses, are summarized in this                       Thomas, 772 F.2d 640 (10th Cir. 1985)                  confidence is necessary at all sites to
                                                      section of the preamble.                                (‘‘AMC II’’). Consistent with the                      ensure that the stability standards are
                                                                                                              reasoning of these opinions, the new                   sufficiently stringent to address the risk
                                                      A. Authority To Set Generally                           standards proposed in this action would                that groundwater exceeding the
                                                      Applicable Standards                                    apply the same requirements to all ISR                 applicable constituent concentration
                                                         Some commenters thought the                          facilities and would establish general                 standards poses to public health, safety
                                                      proposed rules were legally invalid and                 requirements to (1) meet constituent                   and the environment from ISR facilities
                                                      felt the EPA was overreaching its                       concentration standards and                            that have ceased operation. Contrary to
                                                      authority under UMTRCA by proposing                     demonstrate groundwater conditions are                 some commenters’ remarks (see Section


                                                 VerDate Sep<11>2014   00:56 Jan 19, 2017   Jkt 241001   PO 00000   Frm 00020   Fmt 4701   Sfmt 4702   E:\FR\FM\19JAP6.SGM   19JAP6


                                                                             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules                                           7419

                                                      IV.D below), the proposal does not                      monitoring requirements in these                       concentrations. They considered the
                                                      include any ‘‘detailed or site-specific                 proposed standards (e.g. what kind of                  preoperational monitoring requirements
                                                      requirements’’ regarding how an ISR                     monitors to use), but has instead left                 as necessary to establish appropriate
                                                      facility must satisfy the 95 percent                    those details up to the review and                     concentration-based standards for each
                                                      confidence level. Hence, these proposed                 approval of the NRC or the Agreement                   ISR facility. They also supported the
                                                      standards lack any ‘‘management,                        State.                                                 stability-phase monitoring, which they
                                                      technology or engineering methods’’                        Several comments were also critical of              considered important for demonstrating
                                                      pertaining to this confidence level. The                the EPA’s authority to require corrective              groundwater stability after restoration
                                                      proposed stability standards do not                     action programs. While the term                        and for providing assurance
                                                      prescribe what specific statistical                     ‘‘standard’’ includes numerical
                                                                                                                                                                     groundwater quality will not degrade
                                                      methods, sampling methods, or                           limitations, such as the concentration-
                                                                                                                                                                     over time and that constituent migration
                                                      monitoring equipment should be used                     based limits for the listed constituents
                                                                                                              in groundwater, the EPA has long                       will not occur in the future. One
                                                      to show 95 percent confidence. Such                                                                            commenter felt that more rigorous
                                                      decisions are left to the regulatory                    interpreted this term to also encompass
                                                                                                              the actions a source must take to reduce,              standards with detailed restoration and
                                                      agency through its licensing of each
                                                                                                              remediate or otherwise avoid release of                long-term stability demonstrations were
                                                      facility. The Tenth Circuit has
                                                                                                              pollutants. The EPA notes that the                     necessary to bring ‘‘coherency and
                                                      recognized that other provisions with
                                                                                                              existing rule, in subpart D, includes                  accountability’’ to ISR facilities.
                                                      these characteristics are within EPA’s
                                                                                                              similar non-numerical standards to                     However, other commenters thought the
                                                      standard-setting authority under
                                                      UMTRCA. AMC I, 772 F.2d at 630                          those included in this proposed rule.                  rule was unnecessary and provided a
                                                      (‘‘Furthermore, because the standards                   For example, 40 CFR 192.32(a)(2)(iii)                  variety of reasons to support their
                                                      are general in nature—they apply to all                 requires affected sources to implement                 contentions. Most commenters felt the
                                                      sites—we do not view them as site-                      detection monitoring programs, while                   standards were not justified because the
                                                      specific ‘management, technology or                     40 CFR 192.32(a)(3)(i) requires uranium                industry was already regulated, arguing
                                                      engineering methods.’ ’’); AMC II, 772                  mill tailings piles or impoundments to                 that the EPA had failed to provide or
                                                      F.2d at 645–646 (‘‘Most of the                          have a permanent barrier.                              quantify sufficient evidence that ISR
                                                      arguments by the various petitioners are                   In sum, the regulatory agency must                  poses a risk, or had failed to consider
                                                      substantially identical to those in the                 determine the constituent concentration                relevant data. A number of commenters
                                                      consolidated Inactive Sites Case                        standards applicable to each site,                     asserted that EPA had not adequately
                                                      decided this day. On the basis of the                   approve the number, location, and                      addressed recommendations of the
                                                      analysis in that opinion, we again hold                 installation of all wells used for                     Agency’s SAB. Many commenters noted
                                                                                                              monitoring, and determine when the                     that ISR facilities are already regulated
                                                      . . . that the EPA’s standards do not
                                                                                                              initial and long-term stability standards              by the EPA, the NRC, and states, and
                                                      unlawfully impose management, design,
                                                                                                              are satisfied. See AMC II, 772 F.2d at
                                                      and engineering require-                                                                                       that the success of the existing
                                                                                                              647–648 (Court affirms standards
                                                      ments. . . .’’).                                                                                               regulatory oversight over the last 40
                                                                                                              because ‘‘they do not dictate the kind of
                                                         Some commenters argued the long-                     monitoring system that must be used or                 years proved that further regulation was
                                                      term monitoring requirements in the                     the method by which purity levels must                 not needed. In support of their
                                                      original proposal were too prescriptive                 be achieved. These decisions are left to               statements, these commenters stated
                                                      and that the EPA would be effectively                   the implementing agency, the NRC.’’)                   that there were no documented cases of
                                                      dictating when a license could be                       The regulatory agency is also                          off-site contamination of drinking water
                                                      terminated. As noted above, the Tenth                   responsible for approving the licensee’s               supplies from ISR activities in the
                                                      Circuit has clearly recognized that the                 corrective action program and, when an                 United States. Other commenters noted
                                                      EPA’s standard-setting authority under                  excursion has occurred, determining                    that the new standards were
                                                      UMTRCA enables the EPA to include                       when corrective action should begin                    unnecessary because ISR facilities are
                                                      monitoring as part of its ‘‘standards of                and when it can cease. The regulatory                  located in exempted aquifers under the
                                                      general application.’’ AMC II, 772 F.2d                 agency may also bring enforcement                      SDWA in 40 CFR 146.4 and cannot
                                                      at 644 (‘‘The regulations necessitate                   actions against any non-compliant ISR                  serve as sources of drinking water
                                                      monitoring programs.’’). In affirming the               facility. Thus, as required by UMTRCA,                 because the EPA has already determined
                                                      monitoring provisions in the original                   and consistent with the case law                       the water is unsafe for human
                                                      part 192 rule (monitoring provisions                    affirming the EPA’s previous part 192                  consumption. One commenter stated
                                                      that are very similar to those in this                  rulemakings, the implementation and                    that the SDWA UIC program has
                                                      proposal), the Court in AMC II readily                  enforcement of the proposed new                        requirements prohibiting injection of
                                                      distinguished between monitoring that                   standards remain with the regulatory                   fluids where production fluids could
                                                      is properly included as part of a                       agency.                                                migrate into non-exempt aquifers and
                                                      standard the EPA promulgates and more                                                                          stated that these existing requirements
                                                      prescriptive monitoring requirements                    B. Need for New Standards for Uranium
                                                                                                              ISR Facilities                                         were sufficient to protect groundwater.
                                                      that should be left to the regulatory
                                                                                                                                                                     Other commenters argued the
                                                      agency. AMC II, 772 F.2d at 647–648                       Several commenters concurred with
                                                                                                                                                                     regulations were unnecessary because
                                                      (‘‘The regulations require the industry to              the EPA’s assessment that new
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                                                                                                                                     ISR facilities already collect background
                                                      satisfy SWDA drinking water                             standards are necessary for ISR
                                                      concentration standards at specified                    facilities. These commenters noted that                water quality data, restore groundwater
                                                      distances from the pile, but they do not                environmental impacts from ISR are                     impacted during recovery, and monitor
                                                      dictate the kind of monitoring system                   significantly different from the impacts               for stabilization after restoration under
                                                      that must be used or the method by                      of conventional mining and milling.                    the existing regulations. Some
                                                      which purity levels must be achieved.                   Commenters supported the EPA’s                         commenters felt the migration of
                                                      These decisions are left to the                         conclusion that a more rigorous                        uranium from ISR facilities was
                                                      implementing agency, the NRC.’’). The                   approach is warranted for determining                  unproven. These commenters cited
                                                      EPA has not included detailed                           background groundwater                                 papers they said showed uranium had


                                                 VerDate Sep<11>2014   00:56 Jan 19, 2017   Jkt 241001   PO 00000   Frm 00021   Fmt 4701   Sfmt 4702   E:\FR\FM\19JAP6.SGM   19JAP6


                                                      7420                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules

                                                      not migrated from ISR facilities.17 A few               ceasing production.18 In addition,                     to be inadequate for addressing
                                                      commenters recommended the EPA                          restoration does not always meet                       groundwater contamination from ISR
                                                      postpone promulgation of the rule until                 original background levels as evidenced                facilities. Subparts A, B and C of 40 CFR
                                                      additional research could be completed                  by the number of restoration goals above               part 192 apply to inactive uranium
                                                      and the health and environmental risks                  background or Table 1 levels.19 In                     milling facilities, vicinity properties,
                                                      better understood.                                      addition, the NRC acknowledges that                    and depository sites (i.e., Title I sites).
                                                         The EPA disagrees with commenters                    efficiency could be gained by codifying                Only subpart D is applicable to active
                                                      who contend that new standards are                      its longstanding effective regulatory                  uranium processing and disposal sites;
                                                                                                              regime into regulations specific to ISRs.              however, subpart D primarily targets
                                                      unnecessary. First, it is in the national
                                                                                                              As described in the original proposal,                 conventional milling as it contains
                                                      interest to protect groundwater
                                                                                                              this rulemaking was initially prompted                 provisions for managing uranium
                                                      resources. Water is becoming a scarce
                                                                                                              by the NRC’s conclusion that ISR-                      byproduct materials during and
                                                      resource, particularly in the arid regions
                                                                                                              specific rules are needed to create a                  following the processing of uranium ore
                                                      where most ISR currently operate.                       more workable and sustainable
                                                      Groundwater in this region is not                                                                              and for the restoration of disposal sites.
                                                                                                              regulatory framework for this activity,                Although the standards in subpart D
                                                      exclusively used for human                              and is not based on any specific                       applied to ISR facilities, ISR was not the
                                                      consumption, and has other uses such                    instances of identified contamination.20               predominant uranium extraction
                                                      as livestock production, crop irrigation,               The EPA considers the approach to                      method at the time the standards were
                                                      and wildlife support. The best way to                   protecting groundwater in this proposal                promulgated. ISR differs significantly
                                                      preserve groundwater for all such uses                  to be reasonable and responsible. The                  from conventional mining and milling
                                                      is to prevent contamination by                          EPA further notes that remediation of                  and consequently presents different
                                                      addressing the source of contamination.                 contaminated groundwater is more                       environmental concerns from those of
                                                      The SDWA UIC program plays an                           expensive and difficult to achieve than                conventional mining and milling
                                                      important role in protecting                            for surface waters because it is not                   operations. For example, ISR does not
                                                      underground sources of drinking water.                  easily accessible. It is more cost-                    generate large volumes of solid waste
                                                      However, as discussed in section I.A.                   effective to prevent contamination by                  materials or require permanent tailings
                                                      above, the scope and level of protection                ISR facilities than to clean it up after               impoundments as does conventional
                                                      of the SDWA differs from the UMTRCA.                    wide-spread contamination occurs.                      mining and milling. At ISR facilities, the
                                                      The SDWA does not prevent recovery                         Second, the information the EPA has                 groundwater is directly impacted by the
                                                      and use of the water within exempted                    reviewed indicates that current industry               injection of lixiviant into the aquifer,
                                                      aquifers (including where ISR                           practices for restoration and monitoring               which alters the geochemistry of the
                                                      operations were previously conducted)                   of the affected aquifer may not be                     ore-bearing formation and increases the
                                                      for private drinking water supply,                      adequate to prevent degradation of                     concentration of radionuclides and
                                                      public water supply, or other uses.                     water quality at ISR facilities or the                 other metals in the water. The purpose
                                                      UMTRCA provides authority that can be                   more widespread contamination of                       of restoration activities is to restore the
                                                      used to require restoration of the                      surrounding groundwater that is                        groundwater to the applicable
                                                      groundwater in the production zone and                  suitable for human consumption.                        constituent concentration standards.
                                                      to protect the groundwater outside the                  Historically, once restoration is halted,              Although subpart D addresses
                                                      production zone aquifer, during and                     stability demonstrations at ISR facilities             contamination of aquifers, it explicitly
                                                      after uranium recovery operations,                      are typically conducted for only a short
                                                                                                                                                                     addresses only contamination resulting
                                                      regardless of whether the aquifer has                   period, which may not be adequate to
                                                                                                                                                                     from releases from uranium mill tailings
                                                      been exempted from the protections of                   determine that restoration is complete
                                                                                                                                                                     impoundments used to store uranium
                                                      the SDWA.                                               and long-term stability established.
                                                                                                                                                                     byproduct material (e.g., conventional
                                                                                                              Several instances are noted in section
                                                         Thus, this proposed rule under                                                                              tailings impoundments, evaporation or
                                                                                                              III.F.2 where facilities have monitored
                                                      UMTRCA is needed to establish                                                                                  holding ponds). Under subpart F, the
                                                                                                              for lengthy periods after restoration was
                                                      generally-applicable groundwater                                                                               operator would be required to restore
                                                                                                              deemed to be complete, but have not
                                                      standards for ISR facility restoration and                                                                     the groundwater in the production zone
                                                                                                              been able to demonstrate stability for
                                                      require more extensive monitoring,                                                                             aquifer and surrounding aquifers to the
                                                                                                              even the more limited times typically
                                                      modeling and analysis to ensure that                    required under current practice. The                   applicable constituent concentration
                                                      groundwater restoration will endure.                    initial and long-term stability                        standards, to the extent possible, and to
                                                      ISR alters the chemical composition of                  monitoring and corrective action                       show some level of stability in the
                                                      groundwater and creates reasons to be                   program included in the new proposed                   production zone prior to terminating the
                                                      concerned about risk of mobilization of                 rule would provide greater confidence                  license. Because ISR changes the
                                                      constituents. The EPA notes that several                that both of these requirements are met                geochemistry of the groundwater, more
                                                      NRC-regulated sites are continuing to                   before ISR facilities can be                           rigorous stability-based standards
                                                      work toward restoring groundwater with                  decommissioned.                                        together with corrective action programs
                                                      restoration and monitoring being                           Finally, the EPA considers the                      are necessary to ensure that the
                                                      conducted for as long as 10 years after                 existing regulations at 40 CFR part 192                production zone is restored and that
                                                                                                                                                                     restoration will persist in the future.
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                        17 The commenter cited the following two papers:        18 EPA (2016), ‘‘Considerations Related to Post         Regarding comments that the EPA did
                                                      (1) Basu, Anirban, et al., ‘‘Isotopic and Geochemical   Closure Monitoring of Uranium In-Situ Leach/In-        not request or collect data from
                                                      Tracers for U(VI)Reduction and U Mobility at an In      Situ Recovery Sites’’, available in Docket ID No.
                                                      Situ Recovery U Mine’’, Environmental Science           EPA–HQ–OAR–2012–0788.                                  industry, the Agency disagrees. The
                                                      Technology, April 24, 2015, 49(10), pages 5939–           19 Ibid.                                             EPA has appropriately considered
                                                      5947; and (2) Reimus, Paul, ‘‘Field Evaluation of the     20 NRC (2006), ‘‘Regulation of Groundwater           available data to support its proposed
                                                      Restorative Capacity of the Aquifer Down Gradient       Protection at In-Situ Leach Uranium Extraction         rules and requested additional data from
                                                      of a Uranium In Situ Recovery Mining Site’’             Facilities,’’ COMJSM–06–001, January 17, 2006;
                                                      presented at the ‘‘2015 In situ Recovery of Uranium     http://www.nrc.gov/reading-rm/doc-collections/
                                                                                                                                                                     industry. During the SAB’s public
                                                      Research Symposium’’ held at the University of          commission/comm-secy/2006/2006-                        teleconferences in 2011, industry
                                                      Wyoming, Laramie, Wyoming, April 21, 2015.              0001comjsm.pdf.                                        stakeholders stated that additional data


                                                 VerDate Sep<11>2014   00:56 Jan 19, 2017   Jkt 241001   PO 00000   Frm 00022   Fmt 4701   Sfmt 4702   E:\FR\FM\19JAP6.SGM   19JAP6


                                                                             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules                                             7421

                                                      was available beyond that contained in                  program objective is to prevent                        for the constituent concentration
                                                      EPA’s draft report. The EPA requested                   endangerment of USDWs, it is the                       standards and also define other aspects
                                                      this information from the National                      responsibility of the permittee to                     of the system, such as the flow regime,
                                                      Mining Association in January 2012;                     operate in a manner that does not allow                that are necessary to develop site
                                                      however, the EPA found that the data                    production fluids to migrate into non-                 models. Selecting high or the highest
                                                      provided by NMA had already been                        exempt aquifers. 40 CFR 144.12(a).                     values of the chemical monitoring data
                                                      considered by the EPA. The EPA also                                                                            would not be considered an appropriate
                                                                                                              C. Applicability
                                                      provided an additional 60 days for                                                                             basis for establishing background
                                                      public comment on the original                             Consistent with the original proposal,              conditions. Further the collection of
                                                      proposal for industry stakeholders to                   this proposed rule does not apply to                   data to demonstrate stability would be
                                                      provide additional data. While the data                 licensed ISR facilities that are engaged               essentially the same for all facilities.
                                                      did in some cases appear to involve                     in restoration, initial stability
                                                                                                              monitoring, or long-term stability                     D. The 95 Percent Confidence Level
                                                      longer-term monitoring at some sites,
                                                      the information was largely piecemeal                   monitoring. However, some commenters                      The original proposed rule contained
                                                      and lacking in context. Consequently,                   stated that the original proposed rule                 a requirement to gather monitoring data
                                                      the EPA did not find this information                   should not apply to existing ISR                       sufficient to demonstrate the stability of
                                                      useful.                                                 facilities that are currently operating.               groundwater with 95 percent
                                                         The EPA further believes the                         These commenters noted that it was not                 confidence. Some commenters thought
                                                      commenters have misinterpreted the                      clear how an existing ISR facility would               the 95 percent confidence level was too
                                                      SAB recommendation to constructing a                    comply with the proposed rule for ISR                  restrictive. These commenters stated
                                                      database to support modeling and build                  wellfields that are already in the                     that the EPA did not address properly
                                                      an evidence base for EPA’s rulemaking.                  operational, restoration or stability                  the cost, both in dollars and water
                                                      In section 3.2, page 8, the SAB discusses               monitoring phase. Commenters stated                    resources, required to achieve a 95
                                                      the development of such a database.                     that preoperational background water                   percent confidence level. Some of these
                                                      However, in section 3.3, the SAB goes                   quality would have already been                        commenters misinterpreted the 95
                                                      on to recommend that ‘‘for the near                     established for operational wellfields,                percent confidence requirement as a
                                                      term, until the needed large evidence                   but the methods used to establish the                  restoration goal requiring the
                                                      base is accumulated and systematized,                   background concentrations may not be                   constituent concentrations to be
                                                      that the EPA [should] articulate a set of               consistent with the requirements in the                reduced by 95 percent, rather than a
                                                      guiding principles and assumptions on                   proposed rule. They noted that it would                level of confidence in the statistical tests
                                                      which to base regulations. The proposed                 not be possible to resample for                        used to assess stability. Most
                                                      standards can be based on these                         background water quality for operating                 commenters thought the 95 percent
                                                      assumptions during the next several                     wellfields since the aquifers have                     confidence level was too high, while a
                                                      years, and superseded if evidence of                    already been changed by uranium                        few thought it was too low. A few
                                                      their unsuitability becomes available.’’                recovery operations.                                   comments addressed the general
                                                      (emphases added). The SAB clearly did                      The EPA sees no need to omit existing               requirements to demonstrate that the
                                                      not intend for EPA’s rulemaking to be                   ISR facilities from this rule due to                   hydrogeological and geochemical
                                                      held in abeyance until all available data               preoperational considerations. The NRC                 properties have been returned to
                                                      had been collected, systematized, and                   already requires ISR facilities to                     preoperational condition and expressed
                                                      analyzed. Rather, the SAB viewed this                   establish background conditions prior to               concern the 95 percent confidence level
                                                      as a longer-term effort in which EPA’s                  beginning operation under 10 CFR part                  would be required for the statistical
                                                      standards could be modified should the                  40, Appendix A, Criterion A. Under this                tests. Many of these comments indicated
                                                      underlying assumptions not be                           NRC guideline, an ISR facility must                    a concern with the high variability of
                                                      supported by additional data. Further,                  implement a preoperational monitoring                  these properties at ISR facilities.
                                                      because of the limited long-term data                   program that provides complete                         Concerns were raised that many of the
                                                      available for sites once they have been                 baseline data on the facility and its                  ionic species are reported in the parts
                                                      deemed ‘‘stable,’’ which the SAB                        surrounding area. In addition to the                   per billion and parts per million
                                                      members recognized during the July                      NRC guidelines, ISR facilities conduct                 concentrations and duplication of
                                                      2011 meetings, in EPA’s view this                       studies of the ore zone prior to                       analysis on the same sample can vary a
                                                      necessarily involved a period during                    beginning production to collect data                   few parts per million when samples are
                                                      which EPA’s standards would be                          necessary for designing the ISR facility.              rerun.
                                                      effective and require collection of such                Although the most appropriate                             Some commenters thought that the
                                                      longer-term data.                                       monitoring would consist of a                          original proposed rule was not
                                                         However, as mentioned earlier, given                 statistically representative sample of                 sufficiently prescriptive. Several
                                                      the concern about data collection and                   wells spatially distributed throughout                 commenters expressed concern with the
                                                      the comments concerning lack of state                   the wellfield, the EPA recognizes that                 statistical tests recommended for
                                                      data, the EPA will consider additional                  operating facilities cannot collect                    detecting trends and for the comparison
                                                      data collection and analysis, including                 unaffected background samples at ISR                   with baseline values. These commenters
                                                      review of affected state regulatory                     facilities that are already operating.                 noted that important details required to
                                                      programs. The Agency also takes issue                   However, facilities that are already                   implement the statistical tests are not
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      with some comments characterizing the                   operating, but have not yet entered the                provided in the proposed rule,
                                                      UIC program requirements. An aquifer                    restoration phase, can use the                         including whether the statistical
                                                      exemption is not a judgment that the                    background data they collected prior to                analysis is conducted for the well field
                                                      water is unsafe for human consumption.                  operation to set their constituent                     as a whole, within clusters or well-by-
                                                      In most, if not all, cases, an ISR facility             concentration standards. Even with                     well; what parameter should be tested;
                                                      is provided with an aquifer exemption                   limited data, existing ISR facilities can              and what requirements there are for the
                                                      solely because of the presence of                       analyze the preoperational data they                   tests, particularly for the trend test.
                                                      uranium that is economically                            collected and develop a statistically                     This proposal retains a 95 percent
                                                      producible. Further, while the UIC                      meaningful data set to use as the basis                confidence level but makes it clear that


                                                 VerDate Sep<11>2014   00:56 Jan 19, 2017   Jkt 241001   PO 00000   Frm 00023   Fmt 4701   Sfmt 4702   E:\FR\FM\19JAP6.SGM   19JAP6


                                                      7422                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules

                                                      this is part of the generally applicable                there is a trade-off between the cost of               production zone can migrate from the
                                                      stability standard in both the initial and              additional monitoring and the level of                 production zone and contaminate
                                                      long-term stability phases. The 95                      confidence achieved in the confirmatory                nearby groundwater with arsenic,
                                                      percent confidence level is used to                     statistical tests. Due to the high                     barium, cadmium, chromium, lead,
                                                      define stability, and EPA considers a                   variability in hydrogeological and                     mercury, selenium, silver, nitrate,
                                                      confidence level a measure of stringency                geochemical properties it may be                       molybdenum, radium and uranium and
                                                      of the standard. This is one approach for               necessary to do more monitoring to                     other constituents. The new standards
                                                      defining stability, but not necessarily                 compensate for the higher variability.                 proposed in this action would reduce
                                                      the only approach. However, the EPA is                     While the proposed initial and long-                the risk of groundwater degradation
                                                      concerned that a stability standard that                term stability standards define stability              both during the ISR operational phase
                                                      lacks any statistical criterion would                   as attaining 95 percent confidence, the                and after an ISR operator’s license is
                                                      provide insufficient assurances that full               methods to be used to demonstrate                      terminated and the facility is closed.
                                                      restoration has been achieved and allow                 compliance would be determined by the                  This would be achieved through
                                                      stringency of the standard to vary from                 regulatory agency. The BID 21 provides                 provisions requiring characterization of
                                                      site-to-site, thus failing to fulfill EPA’s             suggested sampling plans for stability                 groundwater prior to uranium recovery
                                                      obligation to produce standards of                      monitoring that include instructions for               and standards set to protect
                                                      general application. See AMC I, 772                     applying the parametric and                            groundwater from excursions during the
                                                      F.2d at 638–639 (finding the EPA failed                 nonparametric statistical tests to detect              operational phase and standards for
                                                      to specify generally applicable                         trends and for comparing with baseline                 restoration to pre-operating conditions
                                                      standards by directing the regulatory                   values. Each statistical test has its own              and stability after the operational phase
                                                      agency to determine standards that                      set of parameters, null and alternative                ends. These proposed requirements
                                                      could vary on site-specific basis). The                 hypotheses, decision rules and                         would significantly reduce the
                                                      EPA requests comment on alternative                     underlying assumptions about the data.                 probability that groundwater down-
                                                      approaches that would present a                         However, it was not the intention of the               gradient from an ISR facility will
                                                      rigorous benchmark against which to                     EPA to provide detailed instructions for               become contaminated by radiological
                                                      measure and ensure stability.                           conducting the statistical tests in the                and non-radiological constituents.
                                                         The 95 percent confidence criterion                  rule. The licensee would be responsible                Through monitoring and corrective
                                                      would apply for all constituents. The                   for selecting the specific statistical test            action programs, the new proposed
                                                      proposed standards to demonstrate                       to be used for stability monitoring and                standards would ensure potential
                                                      initial and long-term stability with 95                 comparisons with the baseline values.                  excursions are detected and remedied in
                                                      percent confidence would be applied                     EPA expects that the regulatory agency                 a timely manner. The proposed initial
                                                      after restoration has been completed to                 would provide additional guidance                      and long-term stability standards would
                                                      confirm that the restoration was                        regarding the statistical analysis                     ensure the ISR aquifer is stable prior to
                                                      successful and likely to persist. Again,                required and the reasons for using the                 closure, reducing the potential for
                                                      the EPA requests that commenters share                  statistical test, the concepts of Type 1               contamination to occur after uranium
                                                      examples where the 95 percent                           and Type 2 errors, the calculations                    recovery has ceased and the ISR
                                                      confidence level cannot be used or met                  required to perform the test, and how                  facility’s operating license has been
                                                      and the limitations of these examples                   test results are interpreted. Information              terminated following closure.
                                                      and the Agency invites commenters to                    about what parameter is tested, the null
                                                      propose other options that would                                                                               B. Incremental Costs of Complying With
                                                                                                              and alternative hypotheses,
                                                      clearly represent a valid and explicit                                                                         the Proposed Rule
                                                                                                              requirements for implementing the
                                                      groundwater stability standard that                     statistical tests and tables for                          Using information on the uranium
                                                      includes a measure of stringency.                       interpreting test results is included in               extraction industry, the EPA estimated
                                                         The EPA understands that NRC staff                   the BID. Decisions concerning whether                  incremental costs resulting from this
                                                      has attempted to use the 95 percent                     the statistical analyses are conducted for             proposal. Under this proposal, ISR
                                                      confidence level for at least one facility              the well field as a whole, within                      facilities would be required to complete
                                                      (see the NRC presentation in the BID)                   clusters, or well-by-well would remain                 the following additional activities: (1) A
                                                      but has concerns about its use in every                 a responsibility of the regulatory agency.             comprehensive preoperational
                                                      case. The Agency considered changing                                                                           characterization of the area (including
                                                      the level of confidence, however the 95                 V. Summary of Environmental, Cost                      characterization of geochemical
                                                      percent confidence level is the standard                and Economic Impacts                                   conditions); (2) monitoring for
                                                      used under other regulatory programs,                   A. Environmental Impacts of the                        excursions during the operational and
                                                      including the EPA’s hazardous waste                     Proposed Rule on Groundwater Quality                   restoration phases; (3) three years of
                                                      program. It is a widely accepted                                                                               initial stability monitoring; and (4) long-
                                                                                                                 This proposed action reduces the risk               term stability assessment, with a
                                                      standard used across many industries
                                                                                                              of undetected contamination of                         minimum of three years of additional
                                                      that must monitor groundwater. Again,
                                                                                                              groundwater resources surrounding ISR                  monitoring, with the total duration of
                                                      the EPA requests comment on the use of
                                                      the 95 percent confidence level as part                 facilities both during uranium                         the long-term stability monitoring
                                                      of the stability standard and whether                   production and after production has                    determined by the regulatory agency
                                                      there are better or more practical ways                 ceased. During uranium production, the                 based on modeling and monitoring of
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      to word the standards such that they                    fluids injected to mobilize uranium                    geochemical conditions.
                                                      present a clear level of stringency.                    change the chemistry of the aquifer from                  Incremental costs attributable to the
                                                         The costs of conducting the statistical              its original state, thereby mobilizing                 proposal are costs that would be higher
                                                      tests are related largely to the number of              uranium and many other minerals and                    under the proposal than they would be
                                                      wells monitored and the duration and                    metals. Groundwater from the ISR                       if 40 CFR part 192 was not revised. If
                                                      frequency of baseline and post-                           21 EPA (2016), ‘‘Considerations Related to Post
                                                                                                                                                                     no revisions were made to 40 CFR part
                                                      restoration monitoring. These costs are                 Closure Monitoring of Uranium In-Situ Leach/In-
                                                                                                                                                                     192, ISR facilities would be required by
                                                      not related to the dollar and resource                  Situ Recovery Sites’’, available in in Docket ID No.   the NRC or agreement states to
                                                      costs of restoration. The EPA recognizes                EPA–HQ–OAR–2012–0788.                                  characterize preoperational conditions,


                                                 VerDate Sep<11>2014   00:56 Jan 19, 2017   Jkt 241001   PO 00000   Frm 00024   Fmt 4701   Sfmt 4702   E:\FR\FM\19JAP6.SGM   19JAP6


                                                                             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules                                            7423

                                                      monitor for excursions during                           license requirements in the absence of                 the criteria used to identify a significant
                                                      operational and restoration phases, and                 the proposal. In addition, the EPA                     regulatory action, the industry has only
                                                      monitor after restoration to show that                  revised some of the rule’s requirements                a small number of companies operating
                                                      conditions are stable. The EPA                          to increase flexibility and reduce                     a small number of ISR facilities.
                                                      consulted with the NRC to ensure that                   burden. For these reasons, the difference                 The EPA used existing and planned
                                                      its characterization of compliance                      between the monitoring requirements                    ISR operations and the companies that
                                                      requirements in the absence of the rule                 and costs for the proposal and those for               own them as models for the types of
                                                      accurately reflected current trends in                  current practice (the incremental                      facilities and companies affected by the
                                                      the NRC’s permit requirements. To                       monitoring costs of the proposal) are                  proposal. This proposal would affect
                                                      estimate incremental costs of complying                 estimated to be considerably lower than                approximately 15 ISR facilities that are
                                                      with the proposed rule, the EPA                         the estimates for the proposed rule. This              currently operating or may operate in
                                                      estimated the costs of complying with                   reduction in incremental monitoring                    the near future. The 15 ISR facilities are
                                                      the proposal and then subtracted the                    costs is largely offset by including, in               owned by 9 firms. This action would
                                                      costs of complying with the NRC’s                       response to public comment, estimated                  apply to the following ISR facilities
                                                      requirements in the absence of the rule.                incremental non-monitoring costs).                     identified by the Energy Information
                                                      EPA requests comment on this                            Overall, the EPA’s estimate of                         Administration in 2015 as either
                                                      approach.                                               incremental annualized costs of                        operating, permitted and licensed,
                                                         Under the proposal, the EPA                          complying with the proposed rule is                    developing, or partially permitted and
                                                      estimates that ISR facilities would incur               slightly lower than the costs estimated                licensed: (1) Crow Butte (Nebraska) and
                                                      higher costs, for several reasons: (1)                  for the original proposal. For additional              (2) Smith Ranch-Highland (Wyoming),
                                                      More monitoring wells would be                          information regarding the methodology                  both owned by Cameco Resources; (3)
                                                      required under the proposal; (2) more                   used to estimate the costs, see the                    Alta Mesa (Texas), and (4) Nichols
                                                      constituents would be monitored under                   technical document titled, ‘‘Economic                  Ranch (Wyoming) both owned by
                                                      the proposal; and/or (3) monitoring                     Analysis: Revisions to the Health and                  Energy Fuels; (5) Willow Creek, (6) Jab
                                                      during the preoperational and stability                 Environmental Protection Standards for                 and Antelope, and (7) Moore Ranch
                                                      phases would be required to continue                    Uranium and Thorium Mill Tailings                      (Wyoming), all owned by Uranium One/
                                                      for a longer period of time under the                   Rule (40 CFR part 192)’’ available in                  Rosatom; (8) Hobson-La Palangana and
                                                      proposal. In addition, because the                      Docket ID No. EPA–HQ–OAR–2012–                         (9) Goliad (Texas), both owned by
                                                      overall duration of monitoring prior to                 0788.                                                  Uranium Energy Corp.; (10) Lost Creek
                                                      closure and license termination would                                                                          (Wyoming), owned by Ur-Energy Inc.;
                                                      be longer under the proposal, other non-                C. Economic Impacts of the Proposed                    (11) Church Rock and (12) Crownpoint
                                                      monitoring costs would be incurred for                  Rule on the Market for Uranium and the                 (New Mexico), both owned by
                                                      several additional years, compared to                   Uranium Industry                                       Laramide; (13) Reno Creek (Wyoming),
                                                      requirements in the absence of the                        The EPA estimated the impact of the                  owned by Bayswater; (14) Dewey
                                                      proposal.                                               proposal on the market for uranium                     Burdock (South Dakota), owned by
                                                         To estimate the incremental costs for                using a simplified model of the U.S.                   Azarga Uranium Corp.; and (15) Ross
                                                      complying with these additional                         market for uranium in 2017, using 2015                 (Wyoming), owned by Peninsula
                                                      proposed requirements, the EPA used                     market quantities as a proxy for market                Energy. Three other ISR projects
                                                      ISR operations listed by the U.S. Energy                quantities in 2017. EPA requests                       (Kingsville Dome, Rosita, and Vasquez,
                                                      Information Administration as likely                    comment on this approach. The partial                  owned by Uranium Resources, Inc.) are
                                                      affected ISR operations and a projected                 equilibrium model of the U.S. uranium                  out of scope for the analysis because
                                                      2017 ISR uranium production of 3.3                      market estimated market impacts and                    they are undergoing restoration or
                                                      million pounds. From this analysis, the                 revealed the following: (a) Changes in                 reclamation as of 2015. Using the Small
                                                      EPA estimated low, average and high                     the quantity of uranium purchased by                   Business Administration size standard
                                                      incremental costs of complying with the                 U.S. COOs of nuclear power plants; (b)                 for NAICS code 212291 (i.e., fewer than
                                                      proposal; average incremental costs of                  changes in the sales of domestically                   250 employees) all the parent company
                                                      complying with the proposal at                          produced uranium and imports; and (c)                  firms except Cameco Resources and
                                                      approximately $1.96 per pound of                        changes in the market price for                        Rosatom/Uranium One Americas, Inc.
                                                      uranium and an annual cost of $181,000                  uranium. Based on average incremental                  qualify as small businesses. Thus, the
                                                      to $6.4 million for firms owning ISR                    costs of complying with the proposal,                  majority of the firms in NAICS 212291
                                                      facilities, depending on the number and                 the EPA found that the market quantity                 are small firms.
                                                      scale of the ISR facilities they own.                   of uranium purchased for use in electric                  To evaluate the magnitude of the
                                                      Nationally, the EPA estimates the                       generation is expected to decline by less              economic impacts of the proposed
                                                      incremental total annual cost of the                    than 0.01 percent and the market price                 revisions to 40 CFR part 192 on firms
                                                      proposal to be approximately $11.9                      to increase by approximately 0.2                       owning ISR facilities, the EPA estimated
                                                      million, including incremental                          percent. Domestic ISR facilities are                   the incremental costs that would be
                                                      annualized capital costs and monitoring                 projected to decrease their production                 incurred by affected facilities including
                                                      costs ($4.3 million) and incremental                    by approximately 6.7 percent, and                      both monitoring and non-monitoring
                                                      annual non-monitoring costs ($7.6                       imports of uranium are expected to                     costs, summed costs to the firm-level,
                                                      million). The EPA’s estimated national                  increase by 0.4 percent. Because the cost              and compared each firm’s estimated
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      incremental annualized costs for the                    of uranium is a very small share of the                costs to estimated or reported firm
                                                      original proposed rule totaled $13.5                    cost of electricity, the EPA estimates                 revenues. EPA requests comment on
                                                      million for monitoring and capital costs                that the cost of generating electricity                this approach.
                                                      alone. Since the original proposal, the                 will likely increase by less than 0.1                     Compiling these estimated costs at the
                                                      EPA learned from discussions with the                   percent due to this action. Although the               parent company level and comparing
                                                      NRC that many of the monitoring                         national total annual cost of the                      them to estimated sales or reported sales
                                                      requirements of the proposed rule (and                  proposal (approximately $11.9 million,                 for the parent company, average
                                                      also those of the proposal) would                       based on average costs) is well below                  estimated annualized costs would range
                                                      already be embodied in expected NRC                     the $100 million threshold that is one of              from 0.66 percent to 2.78 percent of


                                                 VerDate Sep<11>2014   00:56 Jan 19, 2017   Jkt 241001   PO 00000   Frm 00025   Fmt 4701   Sfmt 4702   E:\FR\FM\19JAP6.SGM   19JAP6


                                                      7424                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules

                                                      average company sales for the seven                     impacts), and local governments in                     detection of constituent migration from
                                                      small businesses, and 0.2 percent and                   those areas (revenue impacts). Some                    an ISR operation reduces the overall
                                                      2.6 percent for the two large businesses.               businesses and governments potentially                 amount of contamination that must be
                                                      Of the seven small businesses, one firm                 indirectly affected by the proposal may                remediated; early detection can trigger
                                                      has cost-to-sales ratio below 1 percent,                be small entities. EPA’s analysis projects             corrective action before a contaminated
                                                      three firms have cost-to-sales ratios                   that the costs of the proposal and direct              plume migrates into overlying and
                                                      between 1 percent and 2 percent, and                    impacts on ISR producers will generally                underlying aquifers and in areas located
                                                      three have cost-to-sales ratios between 2               be small; indirect impacts are typically               down-gradient from ISR facilities, thus
                                                      percent and 3 percent. The EPA’s                        smaller than direct impacts. Thus, the                 reducing the risk of exposure to
                                                      estimated costs may overstate actual                    EPA projects that indirect impacts of the              hazardous constituents. Reducing the
                                                      annual costs, especially for ISR facilities             proposal would generally be small.                     risk of contamination of groundwater
                                                      with large acreage, because the cost                    Details of the economic analysis are                   also protects the surface water bodies to
                                                      estimates are scaled based on the entire                presented in the technical document                    which affected aquifers discharge. By
                                                      wellfield acreage, while ISR facilities                 titled, ‘‘Economic Analysis: Revisions to              combining sufficient duration of
                                                      typically have some wellfields in the                   the Health and Environmental                           stability monitoring with
                                                      operational phase and others in various                 Protection Standards for Uranium and                   hydrogeological and geochemical
                                                      stages of development and restoration or                Thorium Mill Tailings Rule (40 CFR                     modeling and other analyses to
                                                      reclamation. Average costs based on                     part 192)’’ available in the docket for                demonstrate that groundwater
                                                      total acreage may overstate costs                       this action. EPA requests comment on                   constituent concentration standards will
                                                      incurred at some times during the life of               the economic analysis.                                 continue to be met, the proposal would
                                                      the project. Further, the EPA included                  D. Benefits of the Proposed Rule                       reduce the risk that such migration of
                                                      costs associated with all phases of                                                                            constituents above constituent
                                                                                                                The EPA has conducted a qualitative                  concentration standards might occur
                                                      operation for all ISR facilities; this                  assessment of the benefits of the
                                                      would overstate costs for all wellfields                                                                       after the ISR site is decommissioned and
                                                                                                              proposal and has identified three                      its license terminated.
                                                      currently operating, because it includes                principal benefits. First, the proposed
                                                      costs for preoperational monitoring and                 rule would reduce the potential human                     Finally, the proposed standards
                                                      assessment. In addition, the EPA                        health risks associated with human                     would reduce or avoid the costs of
                                                      assumed that all ISR facilities would                   exposure to radionuclides, metals and                  remediating contaminated groundwater
                                                      monitor for all Table 1 constituents                    other constituents in well water used for              by reducing the potential for
                                                      during all phases of monitoring; in fact,               drinking and agriculture. The EPA                      groundwater contamination to occur
                                                      the regulatory agency may specify                       considers water contaminated with                      and by causing any contamination that
                                                      monitoring for only those constituents                  radionuclides to be a potential pathway                does occur to be discovered and
                                                      expected to be present based on                         for exposure to radiation that can cause               remedied sooner than would be the case
                                                      preoperational monitoring, which                        cancer and other health effects (e.g.,                 if the new standards were not issued.
                                                      would reduce costs. While some costs                    kidney damage). Likewise, heavy metals                 The costs incurred for cleaning up a
                                                      may have been over-estimated, the EPA                   and other contaminants can cause                       plume of contamination may be
                                                      considers that values for firm revenues                 cancer and/or non-cancer health effects.               significant. To illustrate the potential
                                                      may be under-estimated. For facilities                  By reducing the potential for                          magnitude of the benefits associated
                                                      for which the EPA estimated sales                       contaminants to migrate into aquifers                  with reduced or avoided remediation
                                                      revenues, the EPA assumed that                          adjacent to ISR facilities, the proposal               costs, the EPA compared remediation
                                                      production equaled 25 percent of                        would reduce the potential human                       costs for a model facility under two
                                                      capacity (based on average levels of                    exposure to radionuclides, heavy metals                scenarios: One without the proposed
                                                      capacity utilization over the period 2011               and other groundwater contaminants                     rule and one with the proposed rule.
                                                      to 2015, which is a period with                         from ISR operations and thus reduces                   The difference in the total pump and
                                                      relatively low production). The EPA                     the potential human health risks from                  treat remediation under the two
                                                      multiplied these relatively low                         these contaminants.                                    scenarios illustrates the cost savings that
                                                      estimated production values times                         Second, the proposal would protect                   could result from the rule for this
                                                      market price to estimate revenue. For                   valuable groundwater resources for                     hypothetical contamination episode.
                                                      firms for which the EPA used 2015                       future generations. Groundwater                        Using this approach, the EPA was able
                                                      reported revenues, these revenues                       provides a valuable resource that is                   to illustrate the benefits of the proposed
                                                      similarly represent a time period when                  increasingly threatened by population                  rule to be between $23.7 million and
                                                      both production and price are lower                     growth and technological advances that                 $608 million in avoided remediation
                                                      than usual. Thus, the EPA may have                      have significantly increased                           costs over the entire remediation period
                                                      underestimated the revenues ISR firms                   groundwater extraction. Declining                      for a single plume, including capital/
                                                      may earn in the future. Because no                      groundwater resources, especially in                   well development costs and annual
                                                      small firms incur costs exceeding 3                     arid regions where ISR operations are                  costs. The EPA was unable to estimate
                                                      percent of sales, and because the costs                 mostly located, are a growing concern.                 the potential avoided costs of
                                                      may be overestimated while the future                   Although the EPA is unable to quantify                 remediation that would result from the
                                                      revenues underestimated, the EPA                        the value of the groundwater resources                 proposed rule on a national scale
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      concludes that the proposal will not                    that would be protected by the proposal,               because the EPA could not predict the
                                                      result in a significant impact to a                     groundwater resources are likely to                    number of incidents of groundwater
                                                      substantial number of small entities. In                become more valuable over time. By                     contamination that would require
                                                      addition to the direct economic impacts                 reducing the potential for groundwater                 remediation with and without the rule,
                                                      on ISR producers, the proposal may                      contamination and ensuring that any                    or how long it would take for the
                                                      have indirect impacts on businesses that                migration of constituents from ISR                     groundwater contamination to be
                                                      supply inputs to ISR producers (supply                  operations is detected early, the                      detected. However, the avoided
                                                      chain impacts), businesses located in                   proposal would help protect                            remediation costs of this rule at the
                                                      areas near ISR facilities (consumption                  groundwater from contamination. Rapid                  national level could be substantial based


                                                 VerDate Sep<11>2014   00:56 Jan 19, 2017   Jkt 241001   PO 00000   Frm 00026   Fmt 4701   Sfmt 4702   E:\FR\FM\19JAP6.SGM   19JAP6


                                                                             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules                                             7425

                                                      on the estimated avoided remediation                      The Agency has determined that the                   assessments are contained in the
                                                      costs for a single model plume. The EPA                 seven small firms owning ISR facilities                document titled ‘‘Ground Water
                                                      requests comment on this approach. For                  may experience an impact to average                    Modeling Studies at In-Situ Leaching
                                                      additional information regarding the                    estimated annualized costs of between                  Facilities and Evaluation of Doses and
                                                      methodology used to estimate avoided                    0.66 percent and 2.78 percent of average               Risks to Off-Site Receptors from
                                                      costs, see section 4.2.3 in the document                company sales, with one firm expected                  Contaminated Ground Water’’ available
                                                      titled, ‘‘Economic Analysis: Revisions to               to have a cost-to-sales ratio of below 1               in Docket EPA–HQ–OAR–2012–0788.
                                                      the Health and Environmental                            percent, three firms between 1 percent                 The EPA evaluated several regulatory
                                                      Protection Standards for Uranium and                    and 2 percent, and three between 2                     strategies for assuring groundwater
                                                      Thorium Mill Tailings Rule (40 CFR                      percent and 3 percent. Details of this                 restoration and stability at ISR facilities
                                                      part 192).’’ available in Docket ID No.                 analysis are presented in the technical                and selected the option providing
                                                      EPA–HQ–OAR–2012–0788.                                   document titled, ‘‘Economic Analysis:                  greatest assurance that groundwater
                                                                                                              Revisions to the Health and                            systems will remain in a chemically
                                                      VI. Statutory and Executive Order                                                                              reduced state. By setting new
                                                                                                              Environmental Protection Standards for
                                                      Reviews                                                                                                        groundwater standards, which include
                                                                                                              Uranium and Thorium Mill Tailings
                                                      A. Executive Order 12866: Regulatory                    Rule (40 CFR part 192),’’ December                     improved monitoring and requirements
                                                      Planning and Review and Executive                       2016, available in the docket for this                 to plan for and implement corrective
                                                      Order 13563: Improving Regulation and                   action.                                                measures for excursions and
                                                      Regulatory Review                                                                                              exceedances, this proposed rule reduces
                                                                                                              D. Unfunded Mandates Reform Act                        children’s risk of exposure to
                                                         This action is a significant regulatory              (UMRA)                                                 contaminated groundwater.
                                                      action that was submitted to the OMB                       This proposed action does not contain
                                                                                                                                                                     H. Executive Order 13211: Actions
                                                      for review. This action is considered a                 an unfunded mandate of $100 million or
                                                                                                                                                                     Concerning Regulations That
                                                      significant regulatory action because it                more as described in the UMRA, 2
                                                                                                                                                                     Significantly Affect Energy Supply,
                                                      may ‘‘raise novel legal or policy issues                U.S.C. 1531–1538, and does not
                                                                                                                                                                     Distribution or Use
                                                      arising out of legal mandates, the                      significantly or uniquely affect small
                                                      President’s priorities, or the principles               governments. The action imposes no                        This proposed action is not a
                                                      set forth in the Executive Order.’’                     enforceable duty on any state, local or                ‘‘significant energy action’’ because it is
                                                      Accordingly, the EPA has described the                  tribal governments or the private sector.              not likely to have a significant adverse
                                                      need for the proposal, prepared an                      This action contains no regulatory                     effect on the supply, distribution or use
                                                      economic analysis of the potential costs                requirements or obligations that apply                 of energy. This action proposes
                                                      and benefits associated with this action,               to small governments.                                  standards applicable for uranium ISR
                                                      considered non-regulatory approaches,                                                                          facilities that do not directly impact
                                                      and submitted the rule to OMB for                       E. Executive Order 13132: Federalism                   energy supply, distribution or use. The
                                                      review. The economic and benefits                         This proposed action does not have                   proposed rule would increase the costs
                                                      analysis is contained in the document                   federalism implications. It will not have              of domestic uranium producers relative
                                                      ‘‘Economic Analysis: Final Revisions to                 substantial direct effects on the states,              to foreign producers; however, because
                                                      the Health and Environmental                            on the relationship between the national               domestic-source uranium generally
                                                      Protection Standards for Uranium and                    government and the states, or on the                   constitutes between 10 percent and 15
                                                      Thorium Mill Tailings Rule (40 CFR                      distribution of power and                              percent of total uranium purchased by
                                                      part 192),’’ December 2016, available in                responsibilities among the various                     COOs of nuclear power plants, the EPA
                                                      the docket for this action. Any changes                 levels of government.                                  does not expect the proposed rule to
                                                      made in response to OMB                                                                                        have a significant impact on uranium
                                                                                                              F. Executive Order 13175: Consultation
                                                      recommendations have been                                                                                      quantities or prices available to nuclear
                                                                                                              and Coordination With Indian Tribal
                                                      documented in the docket.                                                                                      power generators, and essentially no
                                                                                                              Governments
                                                                                                                                                                     impact on the quantity or price of
                                                      B. Paperwork Reduction Act (PRA)                           This proposed action does not have                  electricity. Thus, the EPA has
                                                                                                              tribal implications, as specified in                   concluded that this proposed action is
                                                        This action does not impose an
                                                                                                              Executive Order 13175 (65 FR 67249,                    not likely to have any adverse effects on
                                                      information collection burden under the
                                                                                                              November 9, 2000). The action imposes                  productivity, competition, or prices in
                                                      provisions of the PRA because it does
                                                                                                              requirements on licensees of ISR                       the energy sector.
                                                      not impose any reporting requirements
                                                                                                              facilities and not on tribal governments.
                                                      on affected facilities.                                                                                        I. National Technology Transfer and
                                                                                                              Thus, Executive Order 13175 does not
                                                      C. Regulatory Flexibility Act (RFA)                     apply to this action.                                  Advancement Act
                                                                                                                 Consistent with the EPA Policy on                      This proposed rulemaking does not
                                                         I certify that this action will not have             Consultation and Coordination with                     involve technical standards.
                                                      a significant economic impact on a                      Indian Tribes, the EPA solicited and
                                                      substantial number of small entities                                                                           J. Executive Order 12898: Federal
                                                                                                              considered information submitted by
                                                      under the RFA. The small entities                                                                              Actions To Address Environmental
                                                                                                              tribal officials during the development
                                                      subject to the requirements of this                                                                            Justice in Minority Populations and
                                                                                                              of this action.
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      action are small businesses with fewer                                                                         Low-Income Populations
                                                      than 250 employees that are primarily                   G. Executive Order 13045: Protection of                   The EPA believes that this proposed
                                                      engaged in leaching or beneficiation of                 Children From Environmental Health                     action does not have disproportionately
                                                      uranium, radium or vanadium ores as                     Risks and Safety Risks                                 high and adverse human health or
                                                      defined by NAICS code 212291. No                          This proposed action is not subject to               environmental effects on minority
                                                      small organizations or small                            Executive Order 13045 because it is not                populations, low-income populations or
                                                      governmental entities have been                         an economically significant regulatory                 indigenous peoples, as specified in
                                                      identified that would be impacted by                    action as defined by Executive Order                   Executive Order 12898 (59 FR 7629,
                                                      this proposed rulemaking.                               12866. This action’s health and risk                   February 16, 1994).


                                                 VerDate Sep<11>2014   00:56 Jan 19, 2017   Jkt 241001   PO 00000   Frm 00027   Fmt 4701   Sfmt 4702   E:\FR\FM\19JAP6.SGM   19JAP6


                                                      7426                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules

                                                         The documentation for this decision                  0.03 WL to below 0.02 WL. In unusual                   those of the ‘‘Regional Administrator’’
                                                      in contained in the document titled                     cases, indoor radiation may exceed the                 with respect to ‘‘facility permits’’ shall
                                                      ‘‘Ground Water Modeling Studies at In-                  levels specified in § 192.12(b) due to                 be carried out by the regulatory agency.
                                                      Situ Leaching Facilities and Evaluation                 sources other than residual radioactive                *     *     *     *     *
                                                      of Doses and Risks to Off-Site Receptors                materials. Remedial actions are not                    ■ 6. Part 192 is amended by adding
                                                      from Contaminated Ground Water’’                        required in order to comply with the                   subpart F to read as follows:
                                                      available in Docket EPA–HQ–OAR–                         standard when there is reasonable
                                                      2012–0788. The proposed rule will                       assurance that residual radioactive                    Subpart F—Public Health, Safety and
                                                                                                                                                                     Environmental Protection Standards for
                                                      reduce exposure to all populations by                   materials are not the cause of such an                 Byproduct Materials Produced by Uranium
                                                      setting new groundwater standards,                      excess.                                                In-Situ Recovery
                                                      which include improved monitoring                       *     *    *      *    *                               Sec.
                                                      and requirements for planning for and                                                                          192.50 Purpose and applicability.
                                                      implementing corrective measures when                   Subpart D [Amended]                                    192.51 Definitions and cross-references.
                                                      excursions and exceedances occur at                                                                            192.52 Standards.
                                                                                                              ■ 3. The heading for Subpart D is
                                                      ISR facilities. By increasing the level of                                                                     192.53 Monitoring programs, modeling and
                                                                                                              revised to read as set forth below.
                                                      environmental protection for all affected               ■ 4. Section 192.31 is amended by
                                                                                                                                                                          other analysis.
                                                      populations, including minority and                                                                            192.54 Alternate concentration limits.
                                                                                                              revising paragraphs (a), (f), and the                  192.55 Corrective action program.
                                                      low-income populations, this action                     second sentence of paragraph (m).
                                                      will have a positive impact on human                                                                           192.56 Effective date.
                                                                                                                The revisions read as follows:
                                                      health and the environment.
                                                                                                                                                                     Subpart F—Public Health, Safety and
                                                      List of Subjects in 40 CFR Part 192                     Subpart D—Standards for the                            Environmental Protection Standards
                                                                                                              Management of Uranium Byproduct                        for Byproduct Materials Produced by
                                                        Environmental protection, Hazardous                   Materials
                                                      substances, Radiation protection,                                                                              Uranium In-Situ Recovery
                                                      Radioactive materials, Reclamation,                     *      *      *       *      *
                                                                                                                                                                     § 192.50   Purpose and applicability.
                                                      Uranium, Waste treatment and disposal,                  § 192.31    Definitions and cross-references.             (a) This rule contains standards of
                                                      Water resources.
                                                                                                                 (a) Unless otherwise indicated in this              general application that the regulatory
                                                        Dated: January 3, 2017.                               subpart, all terms shall have the same                 agency will implement and enforce to
                                                      Gina McCarthy,                                          meaning as in Title II of the Uranium                  protect groundwater at in-situ uranium
                                                      Administrator.                                          Mill Tailings Radiation Control Act of                 recovery facilities.
                                                        For the reasons stated in the                         1978, subparts A and B of this part, or                   (b) This subpart applies to the
                                                      preamble, title 40, Chapter I of the Code               parts 190, 260, 261, and 264 of this                   management of uranium byproduct
                                                      of Federal Regulations is proposed to be                chapter. For the purposes of this                      materials prior to, during and following
                                                      amended as set forth below:                             subpart, the terms ‘‘waste,’’ ‘‘hazardous              the processing of uranium ores utilizing
                                                                                                              waste’’ and related terms, as used in                  uranium in-situ recovery methods, and
                                                      PART 192—HEALTH AND                                     parts 260, 261, and 264 of this chapter,               to the protection of groundwater at such
                                                      ENVIRONMENTAL PROTECTION                                shall apply to byproduct material.                     facilities. Within three years of the
                                                      STANDARDS FOR URANIUM AND                               *      *      *    *    *                              effective date of this rule, the regulatory
                                                      THORIUM MILL TAILINGS                                      (f) Disposal area means the region                  agency shall apply these standards of
                                                                                                              within the perimeter of an                             general application to ISR facilities
                                                      ■ 1. The authority citation for 40 CFR                  impoundment or pile containing                         licensed to process uranium byproduct
                                                      part 192 continues to read as follows:                  uranium byproduct materials to which                   material.
                                                        Authority: Sec. 275 of the Atomic Energy              the post-closure requirements of
                                                      Act of 1954, 42 U.S.C. 2022, as added by the                                                                   § 192.51   Definitions and cross-references.
                                                                                                              § 192.32(b)(1) apply.
                                                      Uranium Mill Tailings Radiation Control Act                                                                       (a) Unless otherwise indicated in this
                                                                                                              *      *      *    *    *
                                                      of 1978, Pub. L. 95–604, as amended.
                                                                                                                 (m) * * * This term shall not be                    subpart, all terms shall have the same
                                                                                                              construed to include extraordinary                     meaning as in Title II of the Uranium
                                                      Subpart C—Implementation                                                                                       Mill Tailings Radiation Control Act of
                                                                                                              measures or techniques that would
                                                      ■ 2. Section 192.20 is amended by                       impose costs that are grossly excessive                1978, subparts A, B, and D of this part,
                                                      revising paragraph (b)(3) as follows:                   as measured by practice within the                     or parts 190, 260, 261, and 264 of this
                                                                                                              industry or one that is reasonably                     chapter.
                                                      § 192.20   Guidance for implementation.
                                                                                                              analogous (such as, by way of                             (b) Agreement State. Any State with
                                                      *      *    *      *     *                              illustration only, unreasonable                        which the Nuclear Regulatory
                                                         (b) * * *                                            overtime, staffing or transportation                   Commission (NRC) or the Atomic
                                                         (3) Compliance with § 192.12(b) may                  requirements, etc., considering normal                 Energy Commission has entered into an
                                                      be demonstrated by methods that the                     practice in the industry; laser fusion of              effective agreement under subsection
                                                      Department of Energy has approved for                   soils, etc.), provided there is reasonable             274b of the Atomic Energy Act.
                                                      use or methods that the implementing                    progress toward emplacement of a                          (c) Alternate Concentration Limit
                                                      agencies determine are adequate.                                                                               (ACL). An alternate concentration limit
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                                                                              permanent radon barrier. * * *
                                                      Residual radioactive materials should be                                                                       approved by the regulatory agency for a
                                                                                                              *      *      *    *    *
                                                      removed from buildings exceeding 0.03                                                                          groundwater constituent after the
                                                                                                              ■ 5. Section 192.32 is amended by
                                                      WL so that future replacement buildings                                                                        regulatory agency determines that best
                                                                                                              revising paragraph (a)(2)(v) as follows:
                                                      will not pose a hazard [unless removal                                                                         practicable restoration activities have
                                                      is not practical, see § 192.21(c)].                     § 192.32    Standards.                                 been completed and that concentrations
                                                      However, ventilation devices and other                    (a) * * *                                            of the constituent cannot be restored to
                                                      radon mitigation methods                                  (2) * * *                                            the applicable standards in 40 CFR
                                                      recommended by the EPA may provide                        (v) The functions and responsibilities               192.52(c)(1)(i) or (c)(1)(ii), following the
                                                      reasonable assurance of reductions from                 designated in part 264 of this chapter as              process prescribed in § 192.54.


                                                 VerDate Sep<11>2014   00:56 Jan 19, 2017   Jkt 241001   PO 00000   Frm 00028   Fmt 4701   Sfmt 4702   E:\FR\FM\19JAP6.SGM   19JAP6


                                                                             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules                                           7427

                                                        (d) Aquifer. A geological formation,                     (n) Injection Well. A well into which               (i.e., when the ISR is in ‘‘stand-by’’
                                                      group of formations, or part of a                       fluids are being injected. See 40 CFR                  mode) but the ISR still needs to
                                                      formation that is capable of yielding a                 144.3.                                                 maintain appropriate groundwater
                                                      significant amount of water to a well or                   (o) In-Situ Recovery (ISR). A method                controls to prevent contaminants from
                                                      spring. See 40 CFR 144.3.                               by which uranium is leached from                       leaving the production zone.
                                                        (e) Background. The condition of                      underground ore bodies by the                             (w) Overlying Aquifer. An aquifer that
                                                      groundwater, including the radiological                 introduction of a solvent solution,                    is immediately vertically shallower than
                                                      and non-radiological constituent                        called a lixiviant, through injection                  (i.e., directly above) the production zone
                                                      concentrations, prior to the beginning of               wells drilled into the ore body. The                   aquifer.
                                                      ISR operations.                                         process does not require the extraction                   (x) Point(s) of Compliance. Locations
                                                                                                              of ore from the ground. The lixiviant is               where groundwater protection standards
                                                        (f) Constituent. A detectable
                                                                                                              injected, passes through the ore body,                 are generally applied. The regulatory
                                                      component within the groundwater.
                                                                                                              and mobilizes the uranium; the                         agency reviews and approves the
                                                        (g) Constituent concentration                         uranium-bearing solution is pumped to                  location of points of compliance for the
                                                      standard. A concentration limit for a                   the surface via extraction wells. The                  wellfield. During all phases of ISR,
                                                      constituent in groundwater set                          pregnant leach solution is processed to                points of compliance should include
                                                      according to § 192.52(c)(1).                            extract the uranium.                                   excursion monitoring well locations;
                                                        (h) Exceedance of a constituent                          (p) Listed Constituent. One of the                  during the initial and long-term stability
                                                      concentration standard. An exceedance                   twelve groundwater constituents                        phases, points of compliance should
                                                      has occurred when, during stability                     specified in Table 1 to this subpart.                  also include wells in the production
                                                      monitoring, a constituent concentration                    (q) Lixiviant. A liquid medium used to              zone.
                                                      standard is exceeded at any point of                    recover uranium from underground ore                      (y) Point(s) of Exposure. Used in
                                                      compliance well, as determined by the                   bodies through in-situ recovery. This                  setting ACLs, points of exposure are
                                                      regulatory agency.                                      liquid medium typically contains native                locations identified by the regulatory
                                                        (i) Excursion. The movement of fluids                 groundwater and an added oxidant,                      agency that represent possible future
                                                      containing lixiviant or uranium                         such as oxygen or hydrogen peroxide, as                areas of exposure where the receptor
                                                      byproduct materials from the                            well as sodium carbonate, sodium                       can come into contact with groundwater
                                                      production zone into surrounding                        bicarbonate or carbon dioxide.                         (e.g., areas of recoverable groundwater).
                                                      groundwater. An excursion is                               (r) Long-Term Stability Phase. The                  The groundwater at that point of
                                                      considered to have occurred when two                    period after the constituent                           exposure must be protective of the
                                                      indicator parameters (e.g., chloride,                   concentration standards have been met                  receptor.
                                                      conductivity, total alkalinity) exceed                  and initial stability has been                            (z) Preoperational Monitoring.
                                                      their respective upper control limits in                demonstrated according to                              Measurement of groundwater conditions
                                                      any excursion monitoring well, or, as                   § 192.52(c)(2), as determined by the                   in the production zone, up and down
                                                      determined by the regulatory agency,                    regulatory agency. The regulatory                      gradient of the production zone and in
                                                      when one indicator parameter                            agency sets the extent of time the                     overlying and underlying aquifers,
                                                      significantly exceeds its upper control                 facility remains in the long-term                      when present. Preoperational
                                                      limit in any excursion monitoring well.                 stability phase.                                       monitoring plans are subject to approval
                                                        (j) Excursion Monitoring Wells. Wells                    (s) Maximum Constituent                             by the regulatory agency prior to the
                                                      located around the perimeter of the                     Concentration. The maximum                             operational phase.
                                                      production zone, including in overlying                 permissible level of a constituent in                     (aa) Production Zone. The portion of
                                                      and underlying aquifers, which are used                 groundwater, as established under                      the aquifer in which in-situ recovery
                                                      to detect any excursions from the                       § 192.52(c)(1).                                        occurs. The production zone lies within
                                                                                                                 (t) Maximum Contaminant Level                       the wellfield.
                                                      production zone. These wells may also
                                                                                                              (MCL). The maximum permissible level                      (bb) Regulatory Agency. The NRC or
                                                      be used to demonstrate compliance with
                                                                                                              of a contaminant in water delivered to                 an Agreement State.
                                                      stability standards once restoration has
                                                                                                              any user of a community water system.                     (cc) Restoration (Act of). The process
                                                      been completed.
                                                                                                              See 40 CFR 141.2.                                      of remediating groundwater to a state
                                                        (k) Extraction Well. Well used to                        (u) Monitoring Wells. Wells used to                 where it meets the constituent
                                                      extract uranium enriched solutions from                 obtain groundwater levels and water                    concentration standards listed in 40
                                                      the ore-bearing aquifer; also known as a                samples for the purpose of determining                 CFR 192.52(c)(1).
                                                      production well. Extraction and                         the hydrogeological regime and the                        (dd) Restoration Phase. The period
                                                      injection wells may be converted from                   amounts, types and distribution of                     immediately after lixiviant injection
                                                      one use to the other.                                   constituents in the groundwater. Wells                 permanently ceases, during which
                                                        (l) Indicator Parameter. A constituent,               are located in the production zone,                    restoration activities occur.
                                                      such as chloride, conductivity or total                 around the perimeter of the production                    (ee) Underlying Aquifer. An aquifer
                                                      alkalinity, whose upper control limit is                zone and in overlying and underlying                   that is immediately vertically deeper
                                                      used to identify an excursion. Indicator                aquifers.                                              (i.e., directly below) than the production
                                                      parameters are not necessarily                             (v) Operational Phase. The time                     zone aquifer.
                                                      contaminants, but relate to geochemical                 period during which uranium recovery                      (ff) Upper Control Limit (UCL). Upper
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      conditions in groundwater.                              occurs. Operation begins when                          control limits are maximum
                                                        (m) Initial Stability Phase. The period               extraction begins and lixiviant is                     concentrations for excursion indicator
                                                      immediately following the restoration                   injected. Operation ends when the                      parameters that, when exceeded,
                                                      phase when the wellfield is monitored                   operator permanently ceases injection of               indicate lixiviant or other constituents
                                                      to determine if and when the initial                    lixiviant and recovery of uranium-                     are migrating beyond the production
                                                      stability standards are met. This is the                bearing solution for processing                        zone.
                                                      period in which provisional alternate                   purposes. The operational phase                           (gg) Uranium Recovery Facility. A
                                                      concentration limits may be established                 includes periods during which the ISR                  facility licensed to process uranium ores
                                                      and implemented, if necessary.                          temporarily ceases uranium recovery                    primarily for the purpose of recovering


                                                 VerDate Sep<11>2014   00:56 Jan 19, 2017   Jkt 241001   PO 00000   Frm 00029   Fmt 4701   Sfmt 4702   E:\FR\FM\19JAP6.SGM   19JAP6


                                                      7428                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules

                                                      uranium (and/or thorium) and to                            (b) Surface impoundments. (1)                       present or affected by operations in the
                                                      manage uranium (and/or thorium)                         Surface impoundments associated with                   production zone. The limit for each
                                                      byproduct materials that result from                    ISR activities shall conform to the                    constituent is the highest level of the
                                                      processing of ores. Common names for                    standards of § 192.32.                                 following values:
                                                      these facilities include, but are not                      (2) Disposal of solid uranium                          (i) That constituent’s preoperational
                                                      limited to, the following: A                            byproduct materials produced by ISR                    background level in and around the
                                                      conventional uranium mill, an in-situ                   activities shall conform to the standards              wellfield, as determined by
                                                      recovery (or leach) facility, and a heap                in § 192.32.                                           preoperational monitoring conducted
                                                      leach facility or pile.                                    (c) Groundwater protection standards.               under § 192.53(a); or
                                                                                                              The constituent concentration
                                                        (hh) Wellfield. The area of an ISR                    standards, in paragraph (c)(1) of this                    (ii) the lowest regulatory standard for
                                                      operation that encompasses the array of                 section, must be met after restoration or              that constituent found in 40 CFR 141.61,
                                                      injection, extraction and monitoring                    corrective action and are also                         141.62, 141.66, 141.80, 143.3, 264.94, or
                                                      wells, ancillary equipment and                          incorporated into the initial and long-                Table 1 of subpart A of this part. For any
                                                      interconnected piping employed in the                   term stability standards. The initial                  constituent not listed in Table 1 to this
                                                      uranium in-situ recovery process. The                   stability standards, in paragraph (c)(2) of            subpart, but designated by the
                                                      area of the wellfield exceeds that of the               this section, are a measure of the                     regulatory agency for monitoring, a
                                                      production zone.                                        effectiveness of restoration and must be               constituent concentration standard at or
                                                                                                              met prior to meeting the long-term                     above the background level should be
                                                      § 192.52   Standards.                                                                                          established from the values in 40 CFR
                                                                                                              stability standards. The long-term
                                                         (a) No later than three years after the              stability standards, in paragraph (c)(3) of            parts 141, 143 or 264, if such values
                                                      effective date of this rule, all operating              this section, must be met prior to                     exist. For a constituent not found in 40
                                                      wellfields, new wellfields and                          decommissioning and termination of the                 CFR parts 141, 143 or 264, the
                                                      expansions of wellfields at ISR facilities              ISR facility’s license.                                constituent concentration standard
                                                      must meet the standards in this section.                   (1) Constituent concentration                       above the background level should be
                                                      These standards do not apply to those                   standards. The licensee shall propose                  established at a concentration level that
                                                      wellfields at licensed ISR facilities that,             and the regulatory agency shall review                 represents a cumulative excess lifetime
                                                      within three years of the effective date                and approve constituent concentration                  risk no greater than 10¥4 to an average
                                                      of this rule, are in and remain in the                  standards for each of the constituents                 individual;
                                                      restoration, initial stability monitoring               listed in Table 1 to this subpart that are                (iii) an alternate concentration limit
                                                      or long-term stability monitoring                       identified by the licensee and approved                for that constituent as approved by the
                                                      phases.                                                 by the regulatory agency as being                      regulatory agency under § 192.54.

                                                           TABLE 1 TO SUBPART F—MAXIMUM CONCENTRATION OF CONSTITUENTS FOR GROUNDWATER PROTECTION AT ISR
                                                                                                  FACILITY SITES
                                                                                        Constituent                                                                 Maximum concentration

                                                      Arsenic, Barium, Cadmium, Chromium, Lead, Mercury, Selenium, Sil-                    The constituent concentration standard is the primary or secondary
                                                        ver, Nitrate (as N), Molybdenum, Radium-226 and radium-228 (com-                     MCL listed in 40 CFR 141.61, 141.62, 141.66, 141.80, and 143.3,
                                                        bined), Uranium (uranium-234, uranium-235 and uranium-238 com-                       the maximum concentration of hazardous constituents for ground-
                                                        bined).                                                                              water protection under 40 CFR 264.94, or the maximum constituent
                                                                                                                                             concentration specified in Table 1 to subpart A of this part, which-
                                                                                                                                             ever value is the lowest.
                                                                                                                                           Where a background concentration is determined to be higher than the
                                                                                                                                             lowest value in the applicable regulations, the background concentra-
                                                                                                                                             tion will serve as the constituent concentration standard.



                                                         (2) Initial Stability Standards. The                 remain stable into the future by                       § 192.53 Monitoring programs, modeling
                                                      licensee must demonstrate to the                        showing:                                               and other analysis.
                                                      satisfaction of the regulatory agency that                                                                       Licensees subject to this subpart must
                                                                                                                (i) Three consecutive years of
                                                      groundwater conditions are stable by                                                                           conduct a groundwater monitoring
                                                                                                              quarterly monitoring results
                                                      showing three consecutive years of                                                                             program, subject to review and approval
                                                                                                              demonstrating no statistically                         by the regulatory agency, at prospective
                                                      quarterly monitoring results with no                    significant increasing trends that would
                                                      statistically significant increasing trends                                                                    and licensed ISR wellfields. The
                                                                                                              exceed the constituent concentration                   components of the program include pre-
                                                      that would exceed the constituent                       standards at the 95 percent confidence                 operational monitoring to determine
                                                      concentration standards at the 95                       level. This showing shall be based on                  statistically valid background levels,
                                                      percent confidence level. This showing                  monitoring data collected in accordance                excursion monitoring to identify and
                                                      shall be based on monitoring data                       with the § 192.53(d); and                              correct excursions, and initial and long-
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      collected in accordance with                                                                                   term stability monitoring. This program
                                                                                                                (ii) the applicable constituent
                                                      § 192.53(c).                                                                                                   shall address all phases of the uranium
                                                                                                              concentration standards will continue to
                                                         (3) Long-term Stability Standards.                   be met into the future. This showing                   recovery activities and must be
                                                      After meeting the initial stability                     shall be based on the information                      conducted as follows:
                                                      standards in paragraph (c)(2) of this                   collected under § 192.53(d), including                   (a) General monitoring program
                                                      section, the licensee must demonstrate                                                                         requirements and preoperational
                                                                                                              monitoring data, geochemical modeling,
                                                      to the satisfaction of the regulatory                                                                          monitoring.
                                                                                                              and other analysis required by the                       (1) A sufficient number of wells, at
                                                      agency that groundwater conditions will                 regulatory agency.                                     appropriate locations and depths, shall


                                                 VerDate Sep<11>2014   00:56 Jan 19, 2017   Jkt 241001   PO 00000   Frm 00030   Fmt 4701   Sfmt 4702   E:\FR\FM\19JAP6.SGM   19JAP6


                                                                             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules                                              7429

                                                      be installed in such a manner as to yield               wells, multiple wells, or all wells within                (B) Components of the lixiviant fluids
                                                      representative samples in order to                      the proposed production zone and are                   injected during uranium recovery and
                                                      define the groundwater flow regime and                  subject to review and approval by the                  any fluids injected during restoration; or
                                                      measure preoperational conditions and                   regulatory agency.                                        (C) Metals potentially mobilized by
                                                      water quality during background                            (6) Radiological and non-radiological               the uranium recovery process that could
                                                      determination, operations, restoration,                 constituents to be monitored during the                reasonably be expected to be found in
                                                      initial stability and long-term stability.              preoperational phase shall include:                    the groundwater.
                                                         (2) All monitoring wells must be                        (i) All constituents listed in Table 1 of              (3) If the licensee finds that the initial
                                                      installed and developed as directed by                  this subpart;                                          stability standard in § 192.52(c)(2)
                                                      the regulatory agency to maintain well                     (ii) Constituents and parameters as                 cannot be demonstrated for one or more
                                                      integrity, allow for accurate sample                    determined by the regulatory agency to                 constituents, the regulatory agency may:
                                                      collection and prevent contamination of                 be necessary to characterize the                          (i) Require the licensee to resume
                                                      samples.                                                geochemistry of the groundwater and to                 active restoration efforts; or
                                                         (3) The preoperational monitoring                    demonstrate that the applicable                           (ii) After all best practicable active
                                                      shall include the production zone and                   constituent concentration standards                    restoration activities have been
                                                      areas immediately surrounding the                       have been met and will continue to be                  completed, establish a provisional
                                                      production zone, as identified by the                   met into the future; and                               alternate concentration limit according
                                                      regulatory agency, including up- and                       (iii) Any additional constituents or                to the requirements of § 192.54. Once
                                                      down-gradient areas outside of the                      parameters required by the regulatory                  initial stability according to the
                                                      production zone.                                        agency, such as metals potentially                     standard in § 192.52(c)(2) at the
                                                         (4) During the preoperational                                                                               provisional alternate concentration limit
                                                                                                              mobilized by the recovery process.
                                                      monitoring effort, relevant data                                                                               has been documented, the regulatory
                                                                                                                 (b) Excursion Monitoring.
                                                      documenting geology, hydrology and                                                                             agency may establish a final alternate
                                                                                                                 (1) Indicator parameters, as
                                                      geochemistry for radiological and non-                                                                         concentration limit according to the
                                                                                                              established by the regulatory agency,
                                                      radiological constituents shall be                                                                             requirements of § 192.54.
                                                                                                              shall be monitored in excursion
                                                      collected as required by the regulatory                                                                           (4) If the regulatory agency determines
                                                                                                              monitoring wells surrounding the
                                                      agency, both in the production zone and                                                                        that a constituent exceeds a constituent
                                                                                                              production zone, including aquifers
                                                      in surrounding areas that may be                                                                               concentration standard in § 192.52(c)(1)
                                                                                                              above and below the production zone, at
                                                      affected by the ISR operations.                                                                                at a point of compliance, the licensee,
                                                         (i) The monitoring effort shall be of                a minimum throughout the operational
                                                                                                              and restoration phases of ISR activities.              as directed by the regulatory agency,
                                                      sufficient scope and duration to                                                                               must undertake corrective action under
                                                      adequately characterize temporal (e.g.,                    (2) If an excursion is detected as
                                                                                                                                                                     § 192.55 until the regulatory agency
                                                      no less than one year where seasonal                    evidenced by indicator parameters
                                                                                                                                                                     determines that the exceedance of the
                                                      variation is expected) and spatial                      exceeding established upper control
                                                                                                                                                                     constituent concentration standard is
                                                      variations in groundwater, using                        limits, as determined by the regulatory
                                                                                                                                                                     adequately remedied.
                                                      statistically valid approaches to evaluate              agency, corrective action under § 192.55
                                                                                                                                                                        (d) Long-term stability monitoring,
                                                      groundwater quality trends and ensure                   must be initiated and constituents listed
                                                                                                                                                                     modeling and other analysis.
                                                      adequate background characterization of                 in Table 1 of this subpart expected to be                 (1) Once the regulatory agency
                                                      the wellfield and adjacent areas. If                    present (e.g., uranium, radium, arsenic,               determines the initial stability standards
                                                      monitoring is to be conducted for less                  and selenium) and any other constituent                have been met, the licensee shall begin
                                                      than one year, it must be sufficient to                 identified by the regulating agency shall              conducting long-term stability
                                                      demonstrate that the measured                           be monitored until the excursion is                    monitoring as described in paragraph
                                                      constituents do not reflect impacts                     controlled.                                            (d)(2) of this section to demonstrate it
                                                      associated with well construction.                         (c) Initial Stability Monitoring.                   meets its long-term stability standards,
                                                         (ii) Preoperational monitoring shall be                 (1) Once the regulatory agency                      established under § 192.52(c)(3).
                                                      focused on determining background                       determines restoration is complete, the                   (2) The constituents to be monitored
                                                      concentrations of constituents and                      licensee shall begin its initial stability             at the points of compliance shall
                                                      indicator parameters in the following                   monitoring as described in paragraphs                  include:
                                                      locations:                                              (c)(2), (3), and (4) of this section to meet              (i) All constituents having a
                                                         (A) Points of compliance within the                  its initial stability standards as                     constituent concentration standard
                                                      proposed production zone; and                           described in § 192.52(c)(2).                           expected to be present, as determined
                                                         (B) Points of compliance outside the                    (2) The constituents to be monitored                by the regulatory agency under
                                                      production zone including point of                      at the points of compliance shall                      § 192.52(c)(1);
                                                      compliance screened in potentially                      include:                                                  (ii) Any additional constituents
                                                      affected overlying and underlying                          (i) All constituents having a                       required by the regulatory agency, such
                                                      aquifers (when present); and points of                  constituent concentration standard and                 as:
                                                      compliance screened in upgradient and                   expected to be present, as determined                     (A) Constituents and parameters
                                                      downgradient aquifers (when present).                   by the regulatory agency under                         necessary to characterize the
                                                         (5) The licensee shall employ                        § 192.52(c)(1);                                        geochemistry of the groundwater and
                                                      appropriate statistical techniques to                      (ii) Any additional constituents                    modeling and other analysis to
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      analyze background concentrations                       required by the regulatory agency, such                demonstrate that the applicable
                                                      measured in individual wells within the                 as:                                                    constituent concentration standards
                                                      wellfield and in any other wells                           (A) Constituents and parameters                     have been met and will continue to be
                                                      identified by the regulatory agency for                 necessary to characterize the                          met into the future;
                                                      the purpose of determining constituent                  geochemistry of the groundwater and                       (B) Components of the lixiviant fluids
                                                      concentration standards. Background                     other analysis to demonstrate that the                 injected during uranium recovery and
                                                      concentrations used to establish the                    applicable constituent concentration                   any fluids injected during restoration; or
                                                      constituent concentration standards                     standards have been met and will                          (C) Metals potentially mobilized by
                                                      may be representative of individual                     continue to be met into the future;                    the uranium recovery process that could


                                                 VerDate Sep<11>2014   00:56 Jan 19, 2017   Jkt 241001   PO 00000   Frm 00031   Fmt 4701   Sfmt 4702   E:\FR\FM\19JAP6.SGM   19JAP6


                                                      7430                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules

                                                      reasonably be expected to be found in                   limit provided that the following                         (viii) The potential for health risks
                                                      the groundwater.                                        conditions are met:                                    caused by human exposure to
                                                         (3) If the regulatory agency finds that                 (1) The licensee has demonstrated                   constituents;
                                                      one or more constituents at a point of                  initial groundwater stability as defined                  (ix) The potential damage to wildlife,
                                                      compliance within the wellfield exceeds                 in § 192.52(c)(2); and (2) The constituent             crops, vegetation, and physical
                                                      a constituent concentration standard as                 will not pose a substantial present or                 structures caused by exposure to
                                                      defined in § 192.52(c)(1) then, as                      potential future hazard to human health                constituents; and
                                                      directed by the regulatory agency, the                  or the environment as long as the final                   (x) The persistence and permanence
                                                      licensee must undertake corrective                      alternate concentration limit is not                   of the potential adverse effects.
                                                      action under § 192.55 until the                         exceeded.                                                 (3) The presence of any underground
                                                      regulatory agency determines that the                      (c) In deciding whether to approve a                source of drinking water.
                                                      exceedance of the constituent                           provisional or a final alternate
                                                                                                              concentration limit, the regulatory                    § 192.55   Corrective action program.
                                                      concentration standard(s) is adequately
                                                                                                              agency shall consider, at a minimum,                     (a) A corrective action program shall
                                                      remedied.
                                                         (4) If the licensee finds that the long-             the following factors:                                 be developed by the licensee and
                                                      term stability standard in § 192.52(c)(3)                  (1) Potential adverse effects on                    approved by the regulatory agency for
                                                      cannot be demonstrated for one or more                  groundwater quality, considering:                      each ISR site at the time of licensing.
                                                      constituents, the regulatory agency may:                   (i) The physical and chemical                       The plan shall address a range of
                                                         (i) Require the licensee to resume                   characteristics of constituents in the                 possible scenarios (e.g., types and routes
                                                      active restoration efforts; or                          groundwater at the site, including their               of potential excursions) and list options
                                                         (ii) After all best practicable active               potential for migration;                               for corrective action for operational
                                                      restoration activities have been                           (ii) The hydrogeological                            through long-term stability phases. If an
                                                      completed, establish an alternate                       characteristics (e.g., groundwater                     excursion is detected at a licensed ISR
                                                      concentration limit according to the                    velocity) of the site and surrounding                  facility at any time, a constituent
                                                      requirements of § 192.54.                               land;                                                  concentration standard is exceeded
                                                         (5) In addition to the long-term                        (iii) The quantity of groundwater and               during the initial or long-term stability
                                                      stability monitoring requirements                       the direction of groundwater flow;                     phases, or the regulatory agency is
                                                                                                                 (iv) The proximity and withdrawal                   concerned about an increasing trend in
                                                      described in paragraph (d)(2) of this
                                                                                                              rates of local groundwater users;                      stability monitoring results, the
                                                      section, the licensee must provide to the
                                                                                                                 (v) The current and anticipated future              applicable portions of the corrective
                                                      regulatory agency geochemical
                                                                                                              uses of groundwater in the region                      action program shall be initiated as soon
                                                      modeling and other analysis sufficient
                                                                                                              surrounding the site;                                  as is practicable, and in no event later
                                                      to demonstrate that the long-term                          (vi) The existing quality of
                                                      stability standard in § 192.52(c)(3) has                                                                       than 60 days after such an occurrence.
                                                                                                              groundwater, including other sources of                With the objective of returning
                                                      been met.                                               contamination and their cumulative
                                                         (6) The licensee must continue its                                                                          constituent concentration levels in
                                                                                                              impact on groundwater quality;                         groundwater to the constituent
                                                      long-term stability monitoring until the                   (vii) The potential for health risks
                                                      regulatory agency determines that the                                                                          concentration standards established
                                                                                                              caused by human exposure to
                                                      long-term stability standard in                                                                                under § 192.52(c)(1), the corrective
                                                                                                              constituents;
                                                      § 192.52(c)(3) has been met and releases                                                                       action program shall address removing
                                                                                                                 (viii) The potential damage to
                                                      the facility from monitoring.                                                                                  constituents at the point of compliance
                                                                                                              wildlife, crops, vegetation, and physical
                                                                                                                                                                     or treating them in place.
                                                      § 192.54   Alternate Concentration Limits.              structures caused by exposure to
                                                                                                                                                                       (b) The licensee shall continue
                                                                                                              constituents; and
                                                         (a) Provisional Alternate                                                                                   corrective action measures to the extent
                                                                                                                 (ix) The persistence and permanence
                                                      Concentration Limits. The regulatory                                                                           necessary to achieve and maintain
                                                                                                              of the potential adverse effects.
                                                      agency may establish a provisional                         (2) Potential adverse effects on                    compliance with the constituent
                                                      alternate concentration limit within the                hydraulically-connected surface-water                  concentration standards in
                                                      production zone for any constituent that                quality, considering:                                  § 192.52(c)(1). The regulatory agency
                                                      meets the following conditions:                            (i) The volume and physical and                     will determine when the licensee may
                                                         (1) The regulatory agency determines                 chemical characteristics of the                        terminate corrective action measures
                                                      that all best practicable active                        groundwater at the site;                               based on data from the groundwater
                                                      restoration activities have been                           (ii) The hydrogeological                            monitoring program and other
                                                      completed in accordance with the                        characteristics of the site and                        information that provides reasonable
                                                      license, and that the previously                        surrounding land;                                      assurance that the constituent
                                                      approved constituent concentration                         (iii) The quantity and quality of                   concentration standards in
                                                      standard under § 192.52(c)(1)(i) or (ii)                groundwater, and the direction of                      § 192.52(c)(1) will not be exceeded.
                                                      are not reasonably achievable; and                      groundwater flow;                                        (c) Upon termination of any corrective
                                                         (2) The constituent will not pose a                     (iv) The patterns of rainfall in the                action initiated during long-term
                                                      substantial present or potential hazard                 region;                                                stability monitoring, the licensee shall
                                                      to human health or the environment as                      (v) The proximity of the site to surface            then be subject to the initial and long-
                                                      long as the provisional alternate                       waters;                                                term stability standards specified in
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      concentration limit is not exceeded; and                   (vi) The current and future uses of                 § 192.53(c)(2) and (3).
                                                         (3) The constituent concentration                    surface waters in the region surrounding
                                                      standard, as determined under                           the site and any water quality standards               § 192.56   Effective date.
                                                      paragraph (c)(1) of this section, is                    established for those surface waters;                   Subpart F shall be effective on [60
                                                      satisfied at all points of exposure in the                 (vii) The existing quality of                       DAYS AFTER DATE OF PUBLICATION
                                                      wellfield and in surrounding aquifers.                  hydraulically-connected surface water,                 OF FINAL RULE IN FEDERAL
                                                         (b) Final Alternate Concentration                    including other sources of                             REGISTER].
                                                      Limits. The regulatory agency may                       contamination and their cumulative                     [FR Doc. 2017–00573 Filed 1–18–17; 8:45 am]
                                                      approve a final alternate concentration                 impact on surface water quality;                       BILLING CODE 6560–50–P




                                                 VerDate Sep<11>2014   00:56 Jan 19, 2017   Jkt 241001   PO 00000   Frm 00032   Fmt 4701   Sfmt 9990   E:\FR\FM\19JAP6.SGM   19JAP6



Document Created: 2018-02-01 15:15:43
Document Modified: 2018-02-01 15:15:43
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionProposed Rules
ActionProposed rule.
DatesComments must be received on or before July 18, 2017.
ContactIngrid Rosencrantz, Office of Radiation and Indoor Air, Radiation Protection Division, Mailcode 6608T, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: (202) 343-9286; fax
FR Citation82 FR 7400 
RIN Number2060-AP43
CFR AssociatedEnvironmental Protection; Hazardous Substances; Radiation Protection; Radioactive Materials; Reclamation; Uranium; Waste Treatment and Disposal and Water Resources

2025 Federal Register | Disclaimer | Privacy Policy
USC | CFR | eCFR