83 FR 54543 - Health and Environmental Protection Standards for Uranium and Thorium Mill Tailings

ENVIRONMENTAL PROTECTION AGENCY

Federal Register Volume 83, Issue 210 (October 30, 2018)

Page Range		54543-54546
FR Document		2018-23583
The U.S. Environmental Protection Agency (EPA) is withdrawing its January 19, 2017, proposed rule addressing health and environmental protection standards under the Uranium Mill Tailings Radiation Control Act of 1978 (UMTRCA) that would have applied to byproduct materials produced by uranium in-situ recovery (ISR) and would have subsequently been implemented by the U.S. Nuclear Regulatory Commission and its Agreement States. The EPA is withdrawing the proposed rule for three reasons. First, the EPA, informed in part by feedback received on the proposal, has serious questions as to whether the proposed rule as written is within EPA's authority under UMTRCA. Second, the EPA no longer believes that a national rulemaking to promulgate standards is necessary at this time, as the EPA believes the existing regulatory structures are sufficient to ensure the targeted protection of public health and the environment at existing ISR facilities. Third, present market circumstances suggest that the influx of new ISR license applications that was once anticipated and that was an underlying motive for the proposal is not likely to materialize.
Federal Register, Volume 83 Issue 210 (Tuesday, October 30, 2018)
[Federal Register Volume 83, Number 210 (Tuesday, October 30, 2018)]
[Proposed Rules]
[Pages 54543-54546]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-23583]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 192

[EPA-HQ-OAR-2012-0788; FRL-9985-79-OAR]
RIN 2060-AP43


Health and Environmental Protection Standards for Uranium and 
Thorium Mill Tailings

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule; withdrawal.

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SUMMARY: The U.S. Environmental Protection Agency (EPA) is withdrawing 
its January 19, 2017, proposed rule addressing health and environmental 
protection standards under the Uranium Mill Tailings Radiation Control 
Act of 1978 (UMTRCA) that would have applied to byproduct materials 
produced by uranium in-situ recovery (ISR) and would have subsequently 
been implemented by the U.S. Nuclear Regulatory Commission and its 
Agreement States. The EPA is withdrawing the proposed rule for three 
reasons. First, the EPA, informed in part by feedback received on the 
proposal, has serious questions as to whether the proposed rule as 
written is within EPA's authority under UMTRCA. Second, the EPA no 
longer believes that a national rulemaking to promulgate standards is 
necessary at this time, as the EPA believes the existing regulatory 
structures are sufficient to ensure the targeted protection of public 
health and the environment at existing ISR facilities. Third, present 
market circumstances suggest that the influx of new ISR license 
applications that was once anticipated and that was an underlying 
motive for the proposal is not likely to materialize.

DATES: The proposed rule published on January 19, 2017 (82 FR 7400), 
entitled ``Health and Environmental Protection Standards for Uranium 
and Thorium Mill Tailings,'', is withdrawn as of October 30, 2018.

FOR FURTHER INFORMATION CONTACT: Ingrid Rosencrantz, Office of 
Radiation and Indoor Air, Radiation Protection Division, Mail Code 
6608T, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW, 
Washington, DC 20460; telephone number: 202-343-9290; fax number: 202-
343-2304; email address: radiation.questions@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

    On January 19, 2017, the U.S. Environmental Protection Agency (EPA) 
proposed new health and environmental protection standards under the 
Uranium Mill Tailings Radiation Control Act of 1978 (UMTRCA) (2017 
Proposal).\1\ The standards proposed in that action would have applied 
to byproduct materials produced by uranium in-situ recovery (ISR) 
facilities and would have subsequently been 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 (2015 Proposal).\2\ However, the 
EPA decided to re-propose the rule on January 19, 2017, and seek 
additional public 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 EPA 
has not finalized either of these proposals and is not doing so today. 
Instead, the EPA is withdrawing the 2017 Proposal, which superseded the 
2015 Proposal.
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    \1\ 82 FR 7400.
    \2\ 80 FR 4156.
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II. Why is the EPA withdrawing the 2017 Proposal?

    The EPA has decided to withdraw the 2017 Proposal for three 
reasons. First, stakeholders, including the NRC, raised significant 
concerns regarding the EPA's legal authority under UMTRCA to propose 
these standards. Based on those significant concerns, we now have 
serious questions concerning whether the EPA has the legal authority 
under UMTRCA to issue the regulations as developed in the 2017 
Proposal.
    Second, the EPA no longer believes that a national rulemaking to 
promulgate standards is currently necessary as the Agency believes the 
existing regulatory structures are sufficient to ensure the targeted 
protection of public health and the environment at existing ISR 
facilities. The NRC stated in its public comments that its ``current 
regulations, at 10 CFR part 40, Appendix A, and those of the various 
Agreement States, as supplemented by site-specific license conditions, 
guidance documents . . . and the operational experience and technical 
expertise of the regulatory agency staff, constitute a comprehensive 
and effective regulatory program for uranium in situ recovery 
operations (ISR) facilities.'' (emphasis added).
    Third, present market circumstances suggest that the influx of new 
ISR license applications that was once anticipated, and that was 
motivation for the proposal, is not likely to materialize. Therefore, 
there is less need for the rule, which was intended to provide a more 
workable and efficient approach for addressing these expected new 
applications, compared to existing mechanisms.

A. The EPA's Legal Authority

    In the 2015 Proposal, the EPA explained that it was ``proposing 
these new standards'' under its authority in section 206 of UMTRCA 
which ``authorizes EPA to promulgate general standards 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 sites at which ores are processed primarily for their 
uranium and thorium source material content or which are used for the 
disposal of such byproduct material.'' \3\ Many commenters stated that 
this provision does not provide authority for the type of standards 
that the EPA proposed. Other commenters agreed with the EPA's view that 
UMTRCA provides authority for proposing these standards. The EPA 
evaluated and responded to these comments in the 2017 Proposal.\4\ Many 
of these same commenters subsequently submitted comments on the 2017 
Proposal, arguing again that the proposed standards exceeded the EPA's 
authority to establish ``generally applicable standards.'' \5\ The NRC 
also submitted comments stating that it does not believe EPA has the 
authority to develop standards of the type contained in the 2017 
Proposal. Some of these commenters raised new arguments to support 
their position that the proposed standards exceed the EPA's authority 
under UMTRCA. In light of the comments provided on the various 
proposals, including by the NRC, the

[[Page 54544]]

EPA now has serious questions as to whether we have the legal authority 
to finalize the standards that were proposed in the 2017 Proposal.
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    \3\ 80 FR at 4163; See also 42 U.S.C. 2022(b)(1).
    \4\ 82 FR at 7418-7419, 7421-7422.
    \5\ 42 U.S.C. 2022(b)(1) uses the phrase ``standards of general 
application,'' while 42 U.S.C. 2022(b)(2) uses the term ``generally 
applicable standards.'' We use these terms interchangeably 
throughout the action.
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    Most of the commenters' objections to the EPA's application of its 
authority under UMTRCA in the 2015 Proposal centered around the meaning 
of the phrase ``standards of general application'' in the statutory 
provision. Commenters opposing the proposed standards stated, ``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.'' \6\ These commenters stated that the EPA ``was 
redefining what UMTRCA established as the EPA's role to set general 
standards'' since these commenters did not believe UMTRCA provided the 
EPA with the authority to set standards that included ``any 
prescriptive implementation requirements.'' \7\ Other commenters that 
supported the 2015 Proposal stated that ``the proposed standards were 
an appropriate application of the EPA's authority under the UMTRCA.'' 
\8\
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    \6\ 82 FR at 7418.
    \7\ Id.
    \8\ Id.
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    In its response to the many comments opposing the EPA's proposed 
application of its authority, the EPA in the 2017 Proposal indicated 
that it ``disagree[d] with those commenters who believe the EPA has 
redefined its role or overreached its authority in developing the new 
standards for ISR facilities.'' \9\ The EPA stated that ``the new 
standards proposed in this action would apply the same requirements to 
all ISR facilities and would establish general requirements . . . 
[that] the regulatory agency would be responsible for implementing. . 
.on a site-specific basis through the licensing process and would 
retain the authority to determine when an ISR license can be 
terminated.'' \10\
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    \9\ Id.
    \10\ Id.
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    Several stakeholders, including the NRC, subsequently submitted 
comments on the 2017 Proposal, again stating that the proposed 
standards could not be reasonably classified as ``generally applicable 
standards'' under UMTRCA and thus was outside EPA's authority. In the 
2017 Proposal, the EPA identified the proposed standards as falling 
into one of three different categories: (1) ``Constituent concentration 
standards;'' (2) ``initial stability standards;'' and (3) ``long-term 
stability standards.'' \11\ In its comments, the NRC asserted the 
initial and long-term stability standards ``are not generally 
applicable standards but are implementation criteria, and as such, 
encroach upon NRC's authority and impair the NRC's ability to 
effectively regulate its ISR licensees.'' \12\ The NRC also raised 
several new significant legal arguments in its comments to support its 
position that had not been previously raised with EPA.\13\ For example, 
the NRC argues that ``EPA's authority to promulgate generally 
applicable standards, at least for radiological material, is prescribed 
by what is essentially EPA's organic authority, namely, the 
Reorganization Plan No. 3 of 1970 (Reorganization Plan).'' \14\ The NRC 
asserts that ``the Reorganization Plan provided EPA with an express 
transfer of AEA authority to set generally applicable standards `for 
the protection of the general environment from radioactive material,''' 
and that the Reorganization Plan ``expressly prescribed this standard 
setting authority by defining the term `standards' to mean `limits on 
radiation exposures or levels, or concentrations or quantities of 
radioactive material'--essentially, numerical limits.'' \15\ NRC 
further asserts that UMTRCA's legislative history shows that ``Congress 
was aware of and considered [this standard-setting authority in the 
Reorganization Plan] when it enacted UMTRCA in 1978'' and that 
``Congress structured UMTRCA's grant of authority to the EPA 
Administrator upon this very provision.'' \16\ The NRC points to 
several excerpts from the legislative history to support its claim that 
Congress intended ``that EPA's generally applicable standards under 
UMTRCA, for both radiological and non-radiological materials, be in the 
form of numerical limits, namely, limits on concentrations of 
radiological and non-radiological material, quantities of such 
material, or allowable doses or levels to individuals from such 
material.'' \17\
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    \11\ 82 FR 7405.
    \12\ EPA-HQ-OAR-2012-0788-0312 (comments of the Nuclear 
Regulatory Commission) at 11.
    \13\ EPA-HQ-OAR-2012-0788-0312, pp. 8-21.
    \14\ Id. at pg. 12.
    \15\ Id.
    \16\ Id. at pg. 13.
    \17\ Id. at pg. 14.
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    Other commenters disputed the EPA's authority to adopt regulatory 
requirements that they alleged could not reasonably be considered 
``generally applicable standards.'' For example, the Uranium Producers 
of America (UPA) argued that the proposed standards ``exceed[s] EPA's 
jurisdictional authority as set forth by UMTRCA.'' \18\ UPA further 
criticized the ``new prescriptive post-operational monitoring time and 
data requirements and new prescriptive post-restoration requirements'' 
as an ``impermissible attempt by EPA to direct the compliance of ISR 
operations.'' \19\ The Texas Commission on Environmental Quality (TCEQ) 
raised the same objection, requesting that the EPA withdraw those 
particular requirements ``because they exceed EPA's authority to 
promulgate standards.'' \20\ TCEQ stated that UMTRCA ``confers the NRC 
and Agreement State programs . . . , not EPA, with authority to 
implement and enforce EPA's standards,'' and then asserted the EPA's 
``proposed rules . . . go beyond the promulgation of standards and 
address how those standards should be implemented and enforced.'' \21\
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    \18\ EPA-HQ-OAR-2012-0788-0380 (comments of Uranium Producers of 
America) at 7.
    \19\ Id.
    \20\ EPA-HQ-OAR-2012-0788-0302 (comments of the TCEQ) at 3.
    \21\ Id. at 3-4.
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    Other stakeholders submitted comments in support of the 2017 
Proposal, reiterating their position that they believe the EPA has the 
authority to propose these types of ``generally applicable standards'' 
under UMTRCA.
    Based on the discussion above, EPA now has serious questions 
concerning whether we have the legal authority to issue the regulations 
as proposed in the 2017 Proposal. In conjunction with the grounds for 
withdrawal discussed below, this uncertainty as to our authority weighs 
in favor of withdrawing the 2017 Proposal.

B. Health and Environmental Protection Justification for the Rule

    When EPA initiated this rulemaking, there was already an effective 
system in place providing environmental oversight of ISR operations. As 
we explained in the 2015 Proposal, ``in 1983, EPA originally 
promulgated regulations at 40 CFR part 192, Health and Environmental 
Protection Standards for Uranium and Thorium Mill Tailings, in response 
to the statutory requirements of the Atomic Energy Act [AEA] of 1954, 
as amended by the Uranium Mill Tailings Radiation Control Act of 1978 
(UMTRCA).'' \22\ The 2015 Proposal further stated: ``Requirements 
currently applicable to active uranium processing and disposal sites, 
including ISR sites (i.e., Title II sites) can be found in subpart D of 
40 CFR part 192 (hereafter ``subpart D''). Subpart D contains 
provisions for managing uranium byproduct materials during and 
following the processing of uranium ores, and restoration of

[[Page 54545]]

disposal sites following any such use of those sites.'' \23\
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    \22\ 80 FR 4161.
    \23\ 80 FR 4163.
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    In the 2015 Proposal, under the heading ``Why does EPA believe new 
standards are necessary?'' the Agency stated: ``We believe that ISR-
specific standards are necessary because uranium ISR operations are 
very different from conventional uranium mills and the existing 
standards do not adequately address their unique aspects. In 
particular, we believe it is necessary to take a longer view of 
groundwater protection than has been typical of current ISR industry 
practices. Although the presence of significant uranium deposits 
typically diminishes groundwater quality, current industry practices 
for restoration and monitoring of the affected aquifer may not be 
adequate to prevent either the further degradation of water quality or 
the more widespread contamination of groundwater that is suitable for 
human consumption.'' \24\
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    \24\ 80 FR 4164.
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    In response to both proposals, the EPA has received numerous 
comments questioning the need or benefits of the rule. For example, in 
the 2017 Proposal the EPA noted that ``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.'' \25\ In the 2017 Proposal, the EPA also 
said: ``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 . . . [however,] the Agency remains 
concerned that the lack of data does not demonstrate that no 
contamination is occurring . . . . The monitoring requirements in this 
proposal address the issue of lack of data.'' \26\ (emphasis added). In 
its comments on the 2017 Proposal, UPA refers to the above statement: 
``EPA acknowledges there is no evidence of harm. . . . The EPA provides 
no evidence to contradict [NRC's findings].'' By contrast, the Natural 
Resources Defense Council (NRDC) asserts that its comments 
``demonstrate impacts to ISL mined aquifers . . . such that the 
groundwater is substantially degraded and there will be long-term harm 
to crucial natural resources.'' \27\ As is evidenced by the comments, 
the debate is nuanced and complicated and reflects differing views on 
the available data.
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    \25\ 82 FR 7404.
    \26\ 82 FR 7404.
    \27\ EPA-HQ-OAR-2012-0788-0380 at 2; EPA-HQ-OAR-2012-0788-0390 
(comments of the NRDC) at 4.
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    In addition to the public stakeholder comments mentioned above, 
most importantly, the NRC, the agency tasked with implementing the 
program, weighed in on the debate, stating in its public comments that 
``the NRC staff has concluded that its application of the 10 CFR part 
40, Appendix A regulations to ISR facilities meets the AEA standard of 
`adequate protection' of public health and safety and the environment. 
. . .'' \28\
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    \28\ EPA-HQ-OAR-2012-0788-0312 at 1.
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    In considering these factors, as well as the presence of an 
existing program that the NRC (the implementing agency) believes is 
sufficient, and the lack of expected growth and status of the industry 
as described further in the next section of this withdrawal action, the 
EPA believes that the reasonably envisioned public health and 
environmental benefits of the proposed rulemaking are limited and do 
not warrant EPA proceeding with its proposed rulemaking. The existing 
regulatory structures, adequately address the current environmental 
concerns.

C. Current and Anticipated Market Conditions

    Finally, the EPA believes that market forces themselves have 
lessened the need for such a rule. Initially, several factors, 
including the expected growth in this industry, led the EPA and the NRC 
to believe that regulation of ISR activities could be more workable and 
efficient if the EPA issued standards of general application specific 
to the ISR facilities that the NRC would incorporate into its own 
regulations and implement through its licensing activities.\29\ When 
these efforts began, the NRC expected as many as 23 ISR license 
applications for new facilities, expansions, and restarts.\30\ This 
expected influx of ISR license applications is no longer anticipated.
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    \29\ EPA-HQ-OAR-2012-0788-0006 (``Regulation of Groundwater 
Protection at In Situ Leach Uranium Extraction Facilities,'' Nuclear 
Regulatory Commission Memorandum COMJSM-06-0001, January 17, 2006) 
at 2 (``. . . the recent rapid rise in uranium prices and mining 
claims would indicate a significant future potential for new ISL 
facilities.''); 80 FR at 4167 (``In recent years, NRC has recognized 
the desirability of ISR-specific regulations. . . . [T]he Commission 
determined in 2006 that the appropriate action was `initiation of a 
rulemaking effort specifically tailored to groundwater protection 
programs at in situ leach (ISL) uranium recovery facilities.' ''); 
82 FR at 7420 (``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.'').
    \30\ EPA-HQ-OAR-2012-0788-0405 (``Uranium Recovery Licensing 
Activities,'' Presentation of the Nuclear Regulatory Commission) at 
10.
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    The NRC is currently reviewing license applications for only three 
expansions of ISR facilities and, for the next five years, the NRC 
expects only one license application for an expansion of one ISR 
facility and one license application for one new ISR facility.\31\ 
Compared to the expected influx of ISR license applications, and the 15 
ISR facilities owned by 10 companies at the time of the 2017 Proposal, 
at the end of 2017 only approximately six ISR facilities were 
operating,\32\ with production down 17% compared to late 2016.\33\ 
According to the U.S. Energy Information Administration (EIA), 
``Domestic Uranium Production Report,'' 4th Quarter 2017, there are no 
ISR facilities reported as operating in Texas, with Alta Mesa, Hobson, 
La Palangana reported as on ``standby.'' Additional ISR facilities in 
New Mexico, Texas, and Wyoming have been licensed but have not operated 
and only one has undergone development.
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    \31\ Expectations for number of future licenses based on NRC/EPA 
telephone conversation on November 28, 2017.
    \32\ U.S. Energy Information Administration: ``Domestic Uranium 
Production Report.'' 4th Quarter 2017 (February 8, 2018). The 
operating facilities are Crow Butte in Nebraska and Lost Creek, 
Nichols Ranch, Ross, Smith Ranch-Highland and Willow Creek, all in 
Wyoming. Cameco subsequently curtailed production at the Crow Butte 
and Smith-Ranch Highland facilities (see http://www.cameco.com).
    \33\ World Nuclear News, 20 November 2017.
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    The proposal of generally applicable national standards by EPA was 
driven partly by the expectation of a significant number of new 
facilities (which would have also applied to operating wellfields at 
existing facilities), making these proposed ISR-specific standards a 
more immediate prerequisite to achieving the efficiency across all 
regulatory programs that the NRC acknowledged could be gained by a 
``regulatory regime . . . specific to ISRs.'' \34\ Today, the EPA 
questions whether this expected growth in operating ISR facilities is 
likely to be realized.
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    \34\ 82 FR 7420. See footnote 29 for a more complete citation.
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    Given this change in circumstances, completion of this rule is no 
longer expected to achieve the regulatory efficiency that was sought 
when this rulemaking effort began. The NRC and the NRC Agreement States 
currently regulate, through existing licenses, the limited number of 
operating ISR facilities and such an approach has been workable in 
practice for this number of

[[Page 54546]]

facilities. We do not see a need for the EPA to continue investing its 
resources to complete this rule to develop a ``more workable and 
sustainable regulatory framework'' as originally anticipated when we 
proposed these ISR-specific standards, especially where current 
production is reduced and little or no growth is expected in the near 
future. The statutory authorities providing for this ongoing regulatory 
and licensing function remain unchanged. Thus, the appropriate 
regulatory authorities may decide on a case-by-case basis to revise 
their own pre-existing regulations based on these authorities if they 
deem it necessary to assist with their management of ISR facilities in 
a particular state or local area.
    In addition, we find support for our decision to withdraw the 
proposed rule in the NRC's comments on the 2017 Proposal. As explained 
above, the EPA developed the proposed standards partly based on its 
understanding, after consultation with the NRC, that the anticipated 
growth in the number of ISR facilities highlighted a need for standards 
specific to ISR facilities, rather than continuing to apply standards 
that were originally written to address surface disposal of uranium 
mill tailings.\35\ However, the NRC expressed the following view in its 
public comments on the proposed rulemaking:
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    \35\ 82 FR at 7402-3; 80 FR 4164-7.

    The NRC's current regulations, at 10 CFR part 40, Appendix A, 
and those of the various Agreement States, as supplemented by site-
specific license conditions, guidance documents (e.g., NRC's 
``Standard Review Plan for In Situ Leach Uranium Extraction License 
Applications,'' NUREG-1569), and the operational experience and 
technical expertise of the regulatory agency staff, constitute a 
comprehensive and effective regulatory program for uranium in situ 
recovery operations (ISR) facilities.\36\
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    \36\ EPA-HQ-OAR-2012-0788-0312 at 1.

    Considering the prevailing economic conditions affecting current 
and projected production, which leads the NRC now to expect 
significantly fewer future license applications, as opposed to the 
large increase that it expected at the time the rulemaking process was 
initiated (which was motivation for the proposal), we conclude that 
withdrawing this proposal is appropriate.

III. Statutory Authority

    The statutory authority for this notice is provided by section 275 
of the Atomic Energy Act (AEA), as added by section 206 of UMTRCA (42 
U.S.C. 2022) and the Administrative Procedure Act (APA) (5 U.S.C. 551 
et seq.).

IV. Impact Analysis

    Because the EPA is not promulgating any regulatory requirements, 
there are no compliance costs or impacts associated with today's final 
action.

V. Statutory and Executive Order Reviews

    Today's action does not establish new regulatory requirements. 
Hence, the requirements of other regulatory statutes and Executive 
Orders that generally apply to rulemakings (e.g., the Unfunded Mandate 
Reform Act) do not apply to this action.

    Dated: October 18, 2018.
Andrew R. Wheeler,
Acting Administrator.
[FR Doc. 2018-23583 Filed 10-29-18; 8:45 am]
 BILLING CODE 6560-50-P
Federal Register / Vol. 83, No. 210 / Tuesday, October 30, 2018 / Proposed Rules 54543

Title V, New source performance FOR FURTHER INFORMATION CONTACT: various Agreement States, as
standards, National emission standards Ingrid Rosencrantz, Office of Radiation supplemented by site-specific license
for hazardous air pollutants, Maximum and Indoor Air, Radiation Protection conditions, guidance documents . . .
achievable control technology, Division, Mail Code 6608T, U.S. and the operational experience and
Delegation of authority. Environmental Protection Agency, 1200 technical expertise of the regulatory
Authority: 42 U.S.C. 7401 et seq. Pennsylvania Ave. NW, Washington, DC agency staff, constitute a comprehensive
20460; telephone number: 202–343– and effective regulatory program for
Dated: October 24, 2018. 9290; fax number: 202–343–2304; email uranium in situ recovery operations
Douglas Benevento, address: radiation.questions@epa.gov. (ISR) facilities.’’ (emphasis added).
Regional Administrator, EPA Region 8. SUPPLEMENTARY INFORMATION: Third, present market circumstances
[FR Doc. 2018–23631 Filed 10–29–18; 8:45 am] suggest that the influx of new ISR
I. Background license applications that was once
BILLING CODE 6560–50–P
On January 19, 2017, the U.S. anticipated, and that was motivation for
Environmental Protection Agency (EPA) the proposal, is not likely to materialize.
ENVIRONMENTAL PROTECTION proposed new health and environmental Therefore, there is less need for the rule,
AGENCY protection standards under the Uranium which was intended to provide a more
Mill Tailings Radiation Control Act of workable and efficient approach for
40 CFR Part 192 1978 (UMTRCA) (2017 Proposal).1 The addressing these expected new
standards proposed in that action would applications, compared to existing
[EPA–HQ–OAR–2012–0788; FRL–9985–79–
OAR] have applied to byproduct materials mechanisms.
produced by uranium in-situ recovery
A. The EPA’s Legal Authority
RIN 2060–AP43 (ISR) facilities and would have
subsequently been implemented by the In the 2015 Proposal, the EPA
Health and Environmental Protection U.S. Nuclear Regulatory Commission explained that it was ‘‘proposing these
Standards for Uranium and Thorium (NRC) and NRC Agreement States. The new standards’’ under its authority in
Mill Tailings EPA initially proposed new health and section 206 of UMTRCA which
environmental protection standards for ‘‘authorizes EPA to promulgate general
AGENCY: Environmental Protection standards for the protection of public
Agency (EPA). ISR facilities on January 26, 2015 (2015
Proposal).2 However, the EPA decided health, safety, and the environment
ACTION: Proposed rule; withdrawal. from radiological and non-radiological
to re-propose the rule on January 19,
2017, and seek additional public hazards associated with . . . the
SUMMARY: The U.S. Environmental processing and the possession, transfer,
Protection Agency (EPA) is withdrawing comment on changes to the original
proposal, including changes in the and disposal of byproduct material at
its January 19, 2017, proposed rule sites at which ores are processed
addressing health and environmental regulatory framework and approach,
based on public comment and new primarily for their uranium and thorium
protection standards under the Uranium source material content or which are
Mill Tailings Radiation Control Act of information received from stakeholders.
The EPA has not finalized either of used for the disposal of such byproduct
1978 (UMTRCA) that would have material.’’ 3 Many commenters stated
applied to byproduct materials these proposals and is not doing so
today. Instead, the EPA is withdrawing that this provision does not provide
produced by uranium in-situ recovery authority for the type of standards that
(ISR) and would have subsequently the 2017 Proposal, which superseded
the 2015 Proposal. the EPA proposed. Other commenters
been implemented by the U.S. Nuclear agreed with the EPA’s view that
Regulatory Commission and its II. Why is the EPA withdrawing the UMTRCA provides authority for
Agreement States. The EPA is 2017 Proposal? proposing these standards. The EPA
withdrawing the proposed rule for three The EPA has decided to withdraw the evaluated and responded to these
reasons. First, the EPA, informed in part 2017 Proposal for three reasons. First, comments in the 2017 Proposal.4 Many
by feedback received on the proposal, stakeholders, including the NRC, raised of these same commenters subsequently
has serious questions as to whether the significant concerns regarding the EPA’s submitted comments on the 2017
proposed rule as written is within EPA’s legal authority under UMTRCA to Proposal, arguing again that the
authority under UMTRCA. Second, the propose these standards. Based on those proposed standards exceeded the EPA’s
EPA no longer believes that a national significant concerns, we now have authority to establish ‘‘generally
rulemaking to promulgate standards is serious questions concerning whether applicable standards.’’ 5 The NRC also
necessary at this time, as the EPA the EPA has the legal authority under submitted comments stating that it does
believes the existing regulatory UMTRCA to issue the regulations as not believe EPA has the authority to
structures are sufficient to ensure the developed in the 2017 Proposal. develop standards of the type contained
targeted protection of public health and Second, the EPA no longer believes in the 2017 Proposal. Some of these
the environment at existing ISR that a national rulemaking to commenters raised new arguments to
facilities. Third, present market promulgate standards is currently support their position that the proposed
circumstances suggest that the influx of necessary as the Agency believes the standards exceed the EPA’s authority
new ISR license applications that was existing regulatory structures are under UMTRCA. In light of the
once anticipated and that was an sufficient to ensure the targeted comments provided on the various
khammond on DSK30JT082PROD with PROPOSAL

underlying motive for the proposal is protection of public health and the proposals, including by the NRC, the
not likely to materialize. environment at existing ISR facilities.
DATES: The proposed rule published on The NRC stated in its public comments 3 80 FR at 4163; See also 42 U.S.C. 2022(b)(1).
January 19, 2017 (82 FR 7400), entitled that its ‘‘current regulations, at 10 CFR 4 82 FR at 7418–7419, 7421–7422.
5 42 U.S.C. 2022(b)(1) uses the phrase ‘‘standards
‘‘Health and Environmental Protection part 40, Appendix A, and those of the of general application,’’ while 42 U.S.C. 2022(b)(2)
Standards for Uranium and Thorium uses the term ‘‘generally applicable standards.’’ We
Mill Tailings,’’, is withdrawn as of 1 82 FR 7400. use these terms interchangeably throughout the
October 30, 2018. 2 80 FR 4156. action.

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54544 Federal Register / Vol. 83, No. 210 / Tuesday, October 30, 2018 / Proposed Rules

EPA now has serious questions as to and long-term stability standards ‘‘are prescriptive post-operational monitoring
whether we have the legal authority to not generally applicable standards but time and data requirements and new
finalize the standards that were are implementation criteria, and as prescriptive post-restoration
proposed in the 2017 Proposal. such, encroach upon NRC’s authority requirements’’ as an ‘‘impermissible
Most of the commenters’ objections to and impair the NRC’s ability to attempt by EPA to direct the compliance
the EPA’s application of its authority effectively regulate its ISR licensees.’’ 12 of ISR operations.’’ 19 The Texas
under UMTRCA in the 2015 Proposal The NRC also raised several new Commission on Environmental Quality
centered around the meaning of the significant legal arguments in its (TCEQ) raised the same objection,
phrase ‘‘standards of general comments to support its position that requesting that the EPA withdraw those
application’’ in the statutory provision. had not been previously raised with particular requirements ‘‘because they
Commenters opposing the proposed EPA.13 For example, the NRC argues exceed EPA’s authority to promulgate
standards stated, ‘‘the proposed rules that ‘‘EPA’s authority to promulgate standards.’’ 20 TCEQ stated that
were legally invalid and felt the EPA generally applicable standards, at least UMTRCA ‘‘confers the NRC and
was overreaching its authority under for radiological material, is prescribed Agreement State programs . . . , not
UMTRCA by proposing standards that by what is essentially EPA’s organic EPA, with authority to implement and
are too detailed and prescriptive.’’ 6 authority, namely, the Reorganization enforce EPA’s standards,’’ and then
These commenters stated that the EPA Plan No. 3 of 1970 (Reorganization asserted the EPA’s ‘‘proposed rules . . .
‘‘was redefining what UMTRCA Plan).’’ 14 The NRC asserts that ‘‘the go beyond the promulgation of
established as the EPA’s role to set Reorganization Plan provided EPA with standards and address how those
general standards’’ since these an express transfer of AEA authority to standards should be implemented and
commenters did not believe UMTRCA set generally applicable standards ‘for enforced.’’ 21
provided the EPA with the authority to the protection of the general Other stakeholders submitted
set standards that included ‘‘any environment from radioactive comments in support of the 2017
prescriptive implementation material,’’’ and that the Reorganization Proposal, reiterating their position that
requirements.’’ 7 Other commenters that Plan ‘‘expressly prescribed this standard they believe the EPA has the authority
supported the 2015 Proposal stated that setting authority by defining the term to propose these types of ‘‘generally
‘‘the proposed standards were an ‘standards’ to mean ‘limits on radiation applicable standards’’ under UMTRCA.
appropriate application of the EPA’s exposures or levels, or concentrations or Based on the discussion above, EPA
authority under the UMTRCA.’’ 8 quantities of radioactive material’— now has serious questions concerning
In its response to the many comments essentially, numerical limits.’’ 15 NRC whether we have the legal authority to
opposing the EPA’s proposed further asserts that UMTRCA’s issue the regulations as proposed in the
application of its authority, the EPA in legislative history shows that ‘‘Congress 2017 Proposal. In conjunction with the
the 2017 Proposal indicated that it was aware of and considered [this grounds for withdrawal discussed
‘‘disagree[d] with those commenters standard-setting authority in the below, this uncertainty as to our
who believe the EPA has redefined its Reorganization Plan] when it enacted authority weighs in favor of
role or overreached its authority in UMTRCA in 1978’’ and that ‘‘Congress withdrawing the 2017 Proposal.
developing the new standards for ISR structured UMTRCA’s grant of authority
facilities.’’ 9 The EPA stated that ‘‘the to the EPA Administrator upon this very B. Health and Environmental Protection
new standards proposed in this action provision.’’ 16 The NRC points to several Justification for the Rule
would apply the same requirements to excerpts from the legislative history to When EPA initiated this rulemaking,
all ISR facilities and would establish support its claim that Congress intended there was already an effective system in
general requirements . . . [that] the ‘‘that EPA’s generally applicable place providing environmental
regulatory agency would be responsible standards under UMTRCA, for both oversight of ISR operations. As we
for implementing. . .on a site-specific radiological and non-radiological explained in the 2015 Proposal, ‘‘in
basis through the licensing process and materials, be in the form of numerical 1983, EPA originally promulgated
would retain the authority to determine limits, namely, limits on concentrations regulations at 40 CFR part 192, Health
when an ISR license can be of radiological and non-radiological and Environmental Protection
terminated.’’ 10 material, quantities of such material, or Standards for Uranium and Thorium
Several stakeholders, including the allowable doses or levels to individuals Mill Tailings, in response to the
NRC, subsequently submitted comments from such material.’’ 17 statutory requirements of the Atomic
on the 2017 Proposal, again stating that Other commenters disputed the EPA’s Energy Act [AEA] of 1954, as amended
the proposed standards could not be authority to adopt regulatory by the Uranium Mill Tailings Radiation
reasonably classified as ‘‘generally requirements that they alleged could not Control Act of 1978 (UMTRCA).’’ 22 The
applicable standards’’ under UMTRCA reasonably be considered ‘‘generally 2015 Proposal further stated:
and thus was outside EPA’s authority. applicable standards.’’ For example, the ‘‘Requirements currently applicable to
In the 2017 Proposal, the EPA identified Uranium Producers of America (UPA) active uranium processing and disposal
the proposed standards as falling into argued that the proposed standards sites, including ISR sites (i.e., Title II
one of three different categories: (1) ‘‘exceed[s] EPA’s jurisdictional sites) can be found in subpart D of 40
‘‘Constituent concentration standards;’’ authority as set forth by UMTRCA.’’ 18 CFR part 192 (hereafter ‘‘subpart D’’).
(2) ‘‘initial stability standards;’’ and (3) UPA further criticized the ‘‘new Subpart D contains provisions for
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‘‘long-term stability standards.’’ 11 In its 12 EPA–HQ–OAR–2012–0788–0312 (comments of
managing uranium byproduct materials
comments, the NRC asserted the initial the Nuclear Regulatory Commission) at 11. during and following the processing of
13 EPA–HQ–OAR–2012–0788–0312, pp. 8–21. uranium ores, and restoration of
6 82 FR at 7418. 14 Id. at pg. 12.
7 Id. 15 Id. 19 Id.
8 Id. 16 Id. at pg. 13. 20 EPA–HQ–OAR–2012–0788–0302 (comments of
9 Id. 17 Id. at pg. 14. the TCEQ) at 3.
10 Id. 18 EPA–HQ–OAR–2012–0788–0380 (comments of 21 Id. at 3–4.
11 82 FR 7405. Uranium Producers of America) at 7. 22 80 FR 4161.

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Federal Register / Vol. 83, No. 210 / Tuesday, October 30, 2018 / Proposed Rules 54545

disposal sites following any such use of complicated and reflects differing views expansions, and restarts.30 This
those sites.’’ 23 on the available data. expected influx of ISR license
In the 2015 Proposal, under the In addition to the public stakeholder applications is no longer anticipated.
heading ‘‘Why does EPA believe new comments mentioned above, most The NRC is currently reviewing
standards are necessary?’’ the Agency importantly, the NRC, the agency tasked license applications for only three
stated: ‘‘We believe that ISR-specific with implementing the program, expansions of ISR facilities and, for the
standards are necessary because weighed in on the debate, stating in its next five years, the NRC expects only
uranium ISR operations are very public comments that ‘‘the NRC staff one license application for an expansion
different from conventional uranium has concluded that its application of the of one ISR facility and one license
mills and the existing standards do not 10 CFR part 40, Appendix A regulations application for one new ISR facility.31
adequately address their unique aspects. to ISR facilities meets the AEA standard Compared to the expected influx of ISR
In particular, we believe it is necessary of ‘adequate protection’ of public health license applications, and the 15 ISR
to take a longer view of groundwater and safety and the facilities owned by 10 companies at the
protection than has been typical of environment. . . .’’ 28 time of the 2017 Proposal, at the end of
current ISR industry practices. Although In considering these factors, as well as 2017 only approximately six ISR
the presence of significant uranium the presence of an existing program that facilities were operating,32 with
deposits typically diminishes the NRC (the implementing agency) production down 17% compared to late
groundwater quality, current industry believes is sufficient, and the lack of 2016.33 According to the U.S. Energy
practices for restoration and monitoring expected growth and status of the Information Administration (EIA),
of the affected aquifer may not be industry as described further in the next ‘‘Domestic Uranium Production
adequate to prevent either the further section of this withdrawal action, the Report,’’ 4th Quarter 2017, there are no
degradation of water quality or the more EPA believes that the reasonably ISR facilities reported as operating in
widespread contamination of envisioned public health and Texas, with Alta Mesa, Hobson, La
groundwater that is suitable for human environmental benefits of the proposed Palangana reported as on ‘‘standby.’’
consumption.’’ 24 rulemaking are limited and do not Additional ISR facilities in New Mexico,
In response to both proposals, the warrant EPA proceeding with its Texas, and Wyoming have been licensed
EPA has received numerous comments proposed rulemaking. The existing but have not operated and only one has
questioning the need or benefits of the regulatory structures, adequately undergone development.
rule. For example, in the 2017 Proposal address the current environmental The proposal of generally applicable
the EPA noted that ‘‘Industry concerns. national standards by EPA was driven
commenters and others say that there is partly by the expectation of a significant
no need for this rule because the EPA C. Current and Anticipated Market number of new facilities (which would
has not identified an instance in which Conditions have also applied to operating wellfields
an ISR operation has contaminated a Finally, the EPA believes that market at existing facilities), making these
source of drinking water.’’ 25 In the 2017 forces themselves have lessened the proposed ISR-specific standards a more
Proposal, the EPA also said: ‘‘Focusing need for such a rule. Initially, several immediate prerequisite to achieving the
on the area of surrounding or adjacent factors, including the expected growth efficiency across all regulatory programs
aquifers, the EPA acknowledges that the in this industry, led the EPA and the that the NRC acknowledged could be
Agency does not have sufficient NRC to believe that regulation of ISR gained by a ‘‘regulatory regime . . .
information to document a specific activities could be more workable and specific to ISRs.’’ 34 Today, the EPA
instance of contamination of a public efficient if the EPA issued standards of questions whether this expected growth
source of drinking water caused by an general application specific to the ISR in operating ISR facilities is likely to be
ISR . . . [however,] the Agency remains facilities that the NRC would realized.
concerned that the lack of data does not incorporate into its own regulations and Given this change in circumstances,
demonstrate that no contamination is implement through its licensing completion of this rule is no longer
occurring . . . . The monitoring activities.29 When these efforts began, expected to achieve the regulatory
requirements in this proposal address the NRC expected as many as 23 ISR efficiency that was sought when this
the issue of lack of data.’’ 26 (emphasis license applications for new facilities, rulemaking effort began. The NRC and
added). In its comments on the 2017 the NRC Agreement States currently
Proposal, UPA refers to the above 28 EPA–HQ–OAR–2012–0788–0312 at 1.
regulate, through existing licenses, the
statement: ‘‘EPA acknowledges there is 29 EPA–HQ–OAR–2012–0788–0006 (‘‘Regulation limited number of operating ISR
no evidence of harm. . . . The EPA of Groundwater Protection at In Situ Leach facilities and such an approach has been
provides no evidence to contradict Uranium Extraction Facilities,’’ Nuclear Regulatory workable in practice for this number of
[NRC’s findings].’’ By contrast, the Commission Memorandum COMJSM–06–0001,
January 17, 2006) at 2 (‘‘. . . the recent rapid rise
Natural Resources Defense Council in uranium prices and mining claims would
30 EPA–HQ–OAR–2012–0788–0405 (‘‘Uranium

(NRDC) asserts that its comments Recovery Licensing Activities,’’ Presentation of the
indicate a significant future potential for new ISL
Nuclear Regulatory Commission) at 10.
‘‘demonstrate impacts to ISL mined facilities.’’); 80 FR at 4167 (‘‘In recent years, NRC 31 Expectations for number of future licenses
aquifers . . . such that the groundwater has recognized the desirability of ISR-specific
regulations. . . . [T]he Commission determined in based on NRC/EPA telephone conversation on
is substantially degraded and there will 2006 that the appropriate action was ‘initiation of November 28, 2017.
be long-term harm to crucial natural a rulemaking effort specifically tailored to
32 U.S. Energy Information Administration:

resources.’’ 27 As is evidenced by the groundwater protection programs at in situ leach ‘‘Domestic Uranium Production Report.’’ 4th
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(ISL) uranium recovery facilities.’ ’’); 82 FR at 7420 Quarter 2017 (February 8, 2018). The operating
comments, the debate is nuanced and facilities are Crow Butte in Nebraska and Lost
(‘‘In addition, the NRC acknowledges that efficiency
could be gained by codifying its longstanding Creek, Nichols Ranch, Ross, Smith Ranch-Highland
23 80FR 4163. effective regulatory regime into regulations specific and Willow Creek, all in Wyoming. Cameco
24 80FR 4164. subsequently curtailed production at the Crow
to ISRs. As described in the original proposal, this
25 82FR 7404. rulemaking was initially prompted by the NRC’s Butte and Smith-Ranch Highland facilities (see
26 82 FR 7404. conclusion that ISR-specific rules are needed to http://www.cameco.com).
33 World Nuclear News, 20 November 2017.
27 EPA–HQ–OAR–2012–0788–0380 at 2; EPA– create a more workable and sustainable regulatory
HQ–OAR–2012–0788–0390 (comments of the framework for this activity, and is not based on any 34 82 FR 7420. See footnote 29 for a more

NRDC) at 4. specific instances of identified contamination.’’). complete citation.

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Document Created: 2018-10-30 00:43:36
Document Modified: 2018-10-30 00:43:36
Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Proposed Rules
Action		Proposed rule; withdrawal.
Dates		The proposed rule published on January 19, 2017 (82 FR 7400), entitled ``Health and Environmental Protection Standards for Uranium and Thorium Mill Tailings,'', is withdrawn as of October 30, 2018.
Contact		Ingrid Rosencrantz, Office of Radiation and Indoor Air, Radiation Protection Division, Mail Code 6608T, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: 202-343-9290; fax number: 202-
FR Citation		83 FR 54543
RIN Number		2060-AP43