Association of State and Territorial Solid Waste Management Officials; Denial of Petition for Rulemaking, 76625-76628 [2011-31523]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 76, Number 236 (Thursday, December 8, 2011)]
[Proposed Rules]
[Pages 76625-76628]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-31523]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 76, No. 236 / Thursday, December 8, 2011 / 
Proposed Rules

[[Page 76625]]



NUCLEAR REGULATORY COMMISSION

10 CFR Part 32

[Docket No. PRM-32-6; NRC-2009-0547]


Association of State and Territorial Solid Waste Management 
Officials; Denial of Petition for Rulemaking

AGENCY: Nuclear Regulatory Commission.

ACTION: Petition for rulemaking; denial.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is denying a 
petition for rulemaking (PRM-32-6) submitted by the Association of 
State and Territorial Solid Waste Management Officials (ASTSWMO or the 
petitioner). The ASTSWMO requested that the NRC amend its regulations 
to improve the labeling and accountability of tritium exit signs. The 
ASTSWMO believes the majority of unaccounted tritium exit signs are 
disposed of in solid waste landfills where they become potential 
sources of groundwater and surface water contamination. The ASTSWMO 
requested that the NRC revise its regulations or guidance to require 
that: the labeling be in several locations on the sign and printed with 
larger font; an expiration date should be distinctly legible to a fire 
or building inspector without taking down the sign; and the radiation 
trefoil should be displayed on the front and back of advertisements. 
Although not a specific request for rulemaking, the petitioner 
recommended that a national collection effort with distinct milestones 
and goals be undertaken to consolidate all expired and disused tritium 
exit signs. The petitioner requested that the NRC organize a meeting 
with ASTSWMO and all interested stakeholders to set a new path forward 
on this issue. The NRC is denying PRM-32-6 for the reasons stated in 
this document.

DATES: The docket for PRM-32-6 is closed as of December 8, 2011.

ADDRESSES: You can access publicly available documents related to this 
petition for rulemaking using the following methods:
     NRC'S Public Document Room (PDR): The public may examine 
and have copied, for a fee, publicly available documents at the NRC's 
PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, 
Rockville, Maryland 20852.
     NRC's Agencywide Document Access and Management System 
(ADAMS): Publicly available documents created or received at the NRC 
are available online in the NRC Library at https://www.nrc.gov/reading-rm/adams.html. From this page, the public can gain entry into ADAMS, 
which provides text and image files of NRC's public documents. If you 
do not have access to ADAMS or if there are problems in accessing the 
documents located in ADAMS, contact the NRC's PDR reference staff at 1 
(800) 397-4209, (301) 415-4737, or by email to pdr.resource@nrc.gov.
     Federal Rulemaking Web Site: Public comments and 
supporting materials related to this document can be found at https://www.regulations.gov by searching on Docket ID NRC-2009-0547. Address 
questions about NRC dockets to Carol Gallagher, telephone: (301) 492-
3668; email: Carol.Gallagher@nrc.gov.

FOR FURTHER INFORMATION CONTACT: Gregory Trussell, Office of Federal 
and State Materials and Environmental Management Programs, U.S. Nuclear 
Regulatory Commission, Washington, DC 20555-0001, telephone: (301) 415-
6445, email: Gregory.Trussell@nrc.gov.

SUPPLEMENTARY INFORMATION:

The Petition

    More than 2 million tritium exit signs are estimated to have been 
sold in the United States. Tritium powered self luminous exit signs do 
not require electricity or batteries, and are commonly installed in 
areas where electrical power is not conveniently accessible or its use 
may be hazardous. The tritium exit sign remains lit during power 
outages and thus serve their intended purposes in emergencies. As 
tritium exit signs age, they do not glow as brightly and at some point 
will not meet the luminosity requirement of applicable building or fire 
safety codes and are replaced. A self-luminous exit sign is a non-
electrical product that uses radioactive tritium gas to produce light. 
Specifically, the signs contain light sources that consist of glass 
tubes, internally coated with phosphor, and filled with tritium gas. 
Tritium (H-3) is an isotope of hydrogen that emits low-energy beta 
radiation in the form of electrons. These electrons excite the 
phosphor, causing the glass tubes to continuously emit light. This low-
energy beta radiation cannot penetrate the glass tube. If the tubes in 
the exit signs are severely damaged, tritium may escape and disperse by 
diffusion in the air.
    On January 12, 2010 (75 FR 1559), the NRC published a notice of 
receipt of a petition for rulemaking filed by ASTSWMO. The ASTSWMO 
requested that the NRC amend its regulations to improve the labeling 
and accountability of tritium exit signs.
    The ASTSWMO believes the majority of unaccounted for tritium exit 
signs are disposed of in solid waste landfills where they become 
potential sources of groundwater and surface water contamination. The 
ASTSWMO specifically requested that the NRC revise its regulations or 
guidance to state that: The labeling should be in several locations on 
the sign and printed with larger font; an expiration date should be 
distinctly legible to a fire or building inspector without taking down 
the sign; and the radiation trefoil should be displayed on the front 
and back of advertisements. Also, the petitioner recommended that a 
national collection effort with distinct milestones and goals should be 
undertaken to consolidate all expired and disused tritium exit signs. 
The petitioner requested that the NRC organize a meeting with ASTSWMO 
and all interested stakeholders to set a new path forward on this 
issue. The petitioner stated that it would ideally like to see tritium 
exit sign technology immediately replaced by alternative technologies.
    The ASTSWMO, after an evaluation of a case history of landfill 
leachate sampling, asserted that the majority of unaccounted for 
tritium exit signs are disposed of in solid waste landfills where they 
become potential sources of groundwater and surface water 
contamination. The petitioner also claimed that a minority of tritium 
exit signs are returned to the manufacturer for recycling or disposed 
of as low-level radioactive waste.

[[Page 76626]]

    The ASTSWMO also made the assertion that advances in photo-
luminescent technology over the past decade have demonstrated that 
effective alternate technology exists for places without electricity, 
replacing the need for tritium self-luminescent exit signs.

Petitioner's Requests

    The petitioner made several requests for rulemaking that would 
require revision to Title 10 of the Code of Federal Regulations (10 
CFR) Part 32, as well as requests that are outside the rulemaking 
process. The petitioner requested the following:
    (1) Labeling should be in several locations on the sign with larger 
font. The basis for this request is the petitioner's belief that an 
increased number of labels on tritium exit signs will improve the 
ability to recognize the signs, which in turn will improve the 
accountability of the signs.
    (2) An expiration date should be distinctly legible to a fire or 
building inspector without taking down the sign. As with adding labels 
in several locations on the sign, the basis for this request is the 
petitioner's belief that an expiration date that is legible without the 
need to remove the sign from where it is installed will improve the 
ability to recognize tritium exit signs, which in turn, will improve 
the accountability of the signs.
    (3) The radiation trefoil should be displayed on the front and back 
of advertisements. The petitioner communicated several concerns as the 
basis for this request: (a) Manufacturers do not always demonstrate 
accountability in distributing tritium exit signs to the proper 
recipients; (b) recipients of signs are not informed of the proper 
ownership and regulatory requirements provided in NRC guidance 
documents and regulations (i.e., NUREG-1556, Vol. 16, Appendix L, and 
10 CFR 31.5); and (c) online vendors do not always highlight the fact 
that tritium is radioactive and has special general licensing 
requirements. The petitioner believes that requiring the display of the 
radiation trefoil in advertisements is a way to make potential 
customers fully aware that tritium in exit signs is radioactive 
material. The petitioner believes trefoils in advertisements would act 
as a safeguard against customers unknowingly acquiring exit signs that 
require regulatory controls.
    (4) Replacement of tritium exit signs with an alternative 
technology. The petitioner believes that the state of current photo-
luminescent technology and other alternatives can effectively replace 
tritium exit signs.
    (5) A national collection effort to prevent the improper disposal 
of tritium exit signs.
    (6) Organize a meeting with ASTSWMO and interested stakeholders 
outside of the rulemaking process. The petitioner offered to provide 
input to the NRC on approaches to cease this improper disposal of 
tritium exit signs.
    Because item 4 is outside the NRC's regulatory authority and 
mission, and items 5 and 6 are not specific requests to change NRC 
regulations, comments on these proposals are not being addressed 
further in this response. The NRC will respond to the petitioner on 
these issues via separate correspondence.

Public Comments on the Petition

    The notice of receipt of the petition for rulemaking (75 FR 1559) 
invited interested persons to submit comments. The petition was also 
shared with 37 Agreement States that regulate the manufacture and use 
of tritium exit signs within their States, under agreement with the 
NRC. The comment period closed on March 29, 2010. The NRC received 
responses from 13 commenters including 2 manufacturers, 6 Agreement 
States, 1 Federal agency, and other industry representatives. The 
following provides a summary of the comments received on the petition.

Public Comments on Petitioner Requests Involving Rulemaking

    The petitioner requested improving the labeling of tritium exit 
signs by requiring the placement of labels in several locations on the 
sign, in larger font to improve recognition, and thus accountability. 
The majority of commenters agreed that labeling should be improved and 
no commenter specifically disagreed with this request.
    The petitioner requested requiring the placement of an expiration 
date on tritium exit signs, and making the date distinctly legible to a 
fire or building inspector without the need to take down the sign. The 
rationale is that the fire or building inspector will be aware of an 
expired sign and request the replacement. Four commenters agreed. Two 
vendors commented that their exit signs already clearly show the 
expiration date and further noted this issue does not fall under the 
jurisdiction of the NRC.
    The petitioner requested placement of the radiation trefoil 
prominently on the front and back of advertisements for the exit signs 
to ensure that general licensees understand that these signs contain 
radioactive byproduct material and are subject to regulatory controls. 
Five commenters agreed with this request.
    One commenter who disagreed questioned, in general, the 
effectiveness of this action. Another commenter stated that the 
assertion that customers are not properly sensitized to the fact that 
the signs contain radioactive material is ``completely unwarranted.'' 
This commenter also stated that given that NRC regulations provide for 
the use of the trefoil where radioactive material is present, the 
placement of the trefoil in advertisements is inappropriate. Similarly, 
another commenter stated that placing the radiation trefoil on 
advertisements is not appropriate as advertisements do not contain 
radioactive material.

Public Comments on Petitioner's Claims Concerning Tritium Exit Signs in 
Landfills

    Three commenters disagreed with the petitioner's assertion that 
unaccounted for tritium exit signs disposed of in solid waste landfills 
are a potential source of groundwater and surface water contamination. 
One commenter stated it did not believe that the inadvertent disposal 
of tritium exit signs poses a significant public health and safety 
issue, even if the relatively large numbers suggested by ASTSWMO are 
accurate. Another commenter stated that while it is true that sampling 
of raw, untreated leachate from landfills in Pennsylvania and 
California confirmed above background levels of tritium, it has been 
determined that, considering the treatment, dilution, and discharge 
processes to which this leachate is subjected, there is currently no 
risk to drinking water supplies or possible human exposure.

Reasons for Denial

    After reviewing the information provided in the petition, and the 
comments received in response to the petition, the NRC has decided to 
deny PRM-32-6. In reaching this decision, the NRC reviewed the 
radiological risks presented by tritium exit signs and from the levels 
of tritium reported in landfill leachate and determined that there is a 
lack of significant radiological risk to the public health and safety 
related to the petitioner's assertions. The NRC determined that the 
existing NRC regulations adequately direct the proper methods of use, 
disposal, labeling, and information disclosure for tritium exit signs 
and that there is no significant risk to the public health and safety. 
However, the NRC believes that general licensee accountability may be 
strengthened by enhancing regulatory guidance and improving

[[Page 76627]]

communications between the NRC (and Agreement States) and 
manufacturers. The NRC periodically revises its licensing guidance and 
will evaluate the need for additional guidance in areas raised by the 
petitioner during this process.
    Users of tritium exit signs are regulated under the general license 
provisions in 10 CFR 31.5. The general license in 10 CFR 31.5 requires 
users: Not to remove the labeling from the sign; to follow instructions 
and precautions on the label; not to abandon a sign; to properly 
dispose of signs by transferring them to a distributor or radioactive 
waste broker specifically licensed by the NRC or an Agreement State; to 
report any lost, stolen or broken sign(s) to the NRC; and not to give 
away or sell the sign to another individual, company, or institution 
unless it is to remain in use at a particular location, e.g., in a 
transfer of ownership of a building. In this latter case, under 10 CFR 
31.5(c)(9)(i), the user of a tritium exit sign is required to provide a 
copy of the regulatory requirements governing the use of such signs to 
the new user and must notify the NRC of the transfer. The user is also 
required to inform the NRC of a company name change or change of 
address; and to make certain other reports to the NRC.
    The petitioner raised questions about the requirements placed on 
distributors related to whether users and others who come into contact 
with the sign are properly informed of the fact that the sign contains 
radioactive material and is subject to certain controls, in particular 
controls for disposal. Vendors of these products must obtain a license 
from the NRC or an Agreement State to distribute the signs to the 
general licensees, under 10 CFR 32.51 or equivalent provision of an 
Agreement State. The NRC and Agreement State regulations include 
requirements for labeling and safety instructions which require 
providing certain information to customers prior to transfer of the 
signs, including copies of applicable regulations and information on 
options for and estimated costs of disposal.
    The petitioner stated that there needs to be multiple labels in 
several locations and that the labels need to be printed in larger 
font. The petitioner also requested that the expiration date be 
distinctly legible to a fire or building inspector without taking down 
the sign. To obtain a license to distribute tritium exit signs, an 
applicant must submit sufficient information related to its labeling of 
the exit signs. Specifically, under 10 CFR 32.51(a)(3), the applicant 
for a license to distribute tritium exit signs must ensure that the 
label on the signs be durable, legible, clearly visible, and include 
certain information including that use of the sign is subject to a 
general license and the regulations of the NRC or equivalent provisions 
of an Agreement State and that the label must be maintained in legible 
condition. The NRC or an Agreement State must approve the applicant's 
proposed labeling when authorizing distribution to users, at which time 
the regulator can address the appropriateness of fonts and proper 
placement on the sign. The expiration date (i.e., the date the sign 
should be replaced in order to meet fire safety standards), is not a 
matter of NRC regulation because it focuses on the visibility of the 
sign, not the safe use of the radioactive material and is more 
appropriately addressed by other agencies responsible for fire safety.
    The petitioner requested that the radiation trefoil be displayed on 
the front and back of advertisements. The NRC agrees with some of the 
commenters that the use of the trefoil on advertisements is not 
appropriate since use of the trefoil is utilized where radioactive 
material is actually present. The NRC has emphasized the importance of 
notifying end users of requirements for the use of generally licensed 
devices. For example, in an earlier NRC action related to misleading 
advertising, the NRC issued Information Notice (IN) 99-26, ``Safety and 
Economic Consequences of Misleading Marketing Information,'' dated 
August 24, 1999. The IN 99-26 highlighted that misleading marketing 
information and inadequate explanation of end-user regulatory 
requirements can lead to mishandling of devices used under the general 
license and encouraged manufacturers and distributors to market to 
users of the general license in such a way that the radioactive nature 
of the product is clearly understood and the regulatory requirements 
associated with the product are clearly explained. Under 10 CFR 
32.51a(a)-(c) or equivalent Agreement State regulation, distributors 
are required to supply to customers prior to the actual transfer of the 
sign(s), copies of relevant regulations, information on acceptable 
disposal options including estimated costs of disposal, and indication 
of the NRC's policy of issuing high civil penalties for improper 
disposal.
    Prior to NRC receiving this petition, the State of Pennsylvania 
contacted the NRC in 2006, relaying its concerns regarding possible 
improper disposal of tritium exit signs. The Conference of Radiation 
Control Program Directors also brought this issue to the attention of 
the NRC, via a 2007 resolution.
    The NRC has previously implemented several measures to address this 
issue. The NRC implemented regulations to improve accountability of 
devices used under a 10 CFR 31.5 general license or an equivalent 
Agreement State provision (65 FR 79162; December 18, 2000, as amended 
at 65 FR 80991; December 22, 2000). Although disposal by transfer to a 
properly authorized specific licensee was always required, the previous 
regulatory framework did not require NRC or Agreement State 
notification of the transfer and disposal of tritium exit signs. Under 
current regulations, NRC and Agreement States users or general 
licensees are required to report transfer or disposal of devices 
containing byproduct material.
    The NRC, in an effort to improve compliance with the regulatory 
requirements for tritium exit signs, issued Regulatory Issue Summary 
(RIS) 2006-25, ``Requirements for the Distribution and Possession of 
Tritium Exit Signs and the Requirements in 10 CFR 31.5 and 32.51a,'' 
dated December 7, 2006, which reiterated the requirements that 
distributors of tritium exit signs must follow when transferring them 
to general licensees. These requirements deal primarily with 
information that must be provided to customers. In addition, the RIS 
2006-25 reiterated the requirements for general licensees regarding 
transfer and disposal of the tritium exit signs, with the intent of 
minimizing the chance that tritium exit signs will be disposed of 
incorrectly.
    The NRC issued a Demand for Information (DFI) on January 16, 2009, 
which required that general licensees who possessed at least 500 
tritium exit signs perform an inventory and report the results to the 
NRC. The results of the DFI demonstrated there is still some lack of 
awareness among users of tritium exit signs concerning their regulatory 
responsibilities which could, and in some cases did, result in the 
improper disposal of tritium exit signs. The NRC considered enforcement 
action against general licensees that were found not to have complied 
with the regulatory requirements. In one case in which one entity using 
the general licensee provisions failed to appoint an individual 
responsible for ensuring compliance with NRC requirements pertaining to 
tritium exit signs and improperly transferred signs, the NRC determined 
that a civil penalty of $369,300 could be appropriate for improper 
transfer or disposal of large numbers of tritium exit signs.
    In response to the DFI findings, the NRC contacted seven 
distributors of tritium exit signs in an effort to improve

[[Page 76628]]

compliance with the reporting requirements of 10 CFR 32.52 and 
equivalent Agreement State provisions. The NRC initiated this contact 
with the goal of assisting distributors in their efforts to 
consistently provide the NRC with information that satisfies the 
reporting requirements in 10 CFR 32.52. This information reported under 
10 CFR 32.52 pertains to the general licensees to whom distributors 
have transferred signs.
    The petitioner asserted that ``the majority'' of unaccounted for 
tritium exit signs are disposed of in solid waste landfills where they 
may become potential sources of groundwater and surface water 
contamination. The NRC concludes that the petitioner did not 
demonstrate that the excess tritium being found in landfill leachate, 
even if resulting from improper disposal of tritium exit signs, could 
result in hazardous levels of tritium in drinking water. Published 
reports such as ``Radiological Investigation Results for Pennsylvania 
Landfill Leachate: 2009 Tritium Update,'' Safety and Ecology 
Corporation, Knoxville, TN, March 31, 2010, support this conclusion. 
The study incorporated the use of site-specific dilution factors based 
on factors such as discharge rates and known distances between leachate 
effluent release points and downstream water supply intakes to convert 
observed leachate tritium concentrations into diluted tritium 
concentrations assumed to be available for human consumption. The 
report concluded not only that the resulting concentrations of tritium 
were well below the U.S. Environmental Protection Agency (EPA) maximum 
contaminant level (MCL) of 20,000 pCi/L for tritium in drinking water, 
but that ``average drinking water intake tritium concentrations * * * 
were more than 200 times less than the EPA 20,000 pCi/L MCL, ranging 
from 0-99 pCi/L.''
    The petitioner also expressed concern that samples collected from 
leachate collection systems exceeded 20,000 pCi/L. It should be noted 
that 20,000 pCi/L is the EPA's MCL for tritium in drinking water and 
not leachate. Landfill monitoring reports show that despite high 
tritium concentrations in leachate, drinking water samples collected 
downstream of landfills maintain tritium concentrations well below the 
EPA's MCL. For example, the ``Radiological Investigation Results for 
Pennsylvania Landfill Leachate: 2009 Tritium Update'' report, 
referenced above, shows that ``maximum drinking water [tritium] intake 
concentrations were over 100 times less than the EPA 20,000 pCi/L MCL 
ranging from 0 to 146 pCi/L.''
    While the NRC does not regulate solid waste landfills, the NRC 
staff also concluded that current landfill practices would mitigate the 
impacts from tritium released from any exit signs that may be disposed 
in landfills. These include: Cover systems that minimize rainfall 
penetration and limit the migration of tritium due to erosion or 
interaction with animals; cell liners that prevent leachate from 
leaking into the groundwater; gaseous extraction wells that remove 
gases building up within the landfill; and leachate collection systems 
that collect, process, and treat leachate.
    In addition to reviewing these previously published reports and 
comparing tritium concentrations measured in leachate and drinking 
water to regulatory standards, the NRC reviewed the possible risks to 
landfill workers and the general public from exposure to tritium 
associated with landfill disposals. The NRC determined that tritium 
contamination involves such low levels of tritium that it would not 
pose a health and safety threat to the landfill worker or the general 
public.

Conclusion

    The NRC is denying the petition for rulemaking because the NRC's 
current regulations in this area are adequate to protect public health 
and safety. In conclusion, the petitioner has not submitted any new 
information that indicates a health and safety issue that warrants 
rulemaking or calls into question the existing regulatory requirements. 
Existing NRC regulations provide reasonable assurance that public 
health and safety are adequately protected. For the reasons cited in 
this document, the NRC denies the petition.

    Dated at Rockville, Maryland this 2nd day of December, 2011.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 2011-31523 Filed 12-7-11; 8:45 am]
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