Health and Environmental Protection Standards for Uranium and Thorium Mill Tailings, 54543-54546 [2018-23583]
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Federal Register / Vol. 83, No. 210 / Tuesday, October 30, 2018 / Proposed Rules
Title V, New source performance
standards, National emission standards
for hazardous air pollutants, Maximum
achievable control technology,
Delegation of authority.
Authority: 42 U.S.C. 7401 et seq.
Dated: October 24, 2018.
Douglas Benevento,
Regional Administrator, EPA Region 8.
[FR Doc. 2018–23631 Filed 10–29–18; 8:45 am]
BILLING CODE 6560–50–P
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
Environmental Protection
Agency (EPA).
ACTION: Proposed rule; withdrawal.
AGENCY:
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Mill Tailings,’’, is withdrawn as of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.
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SUMMARY:
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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.
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
1 82
2 80
PO 00000
FR 7400.
FR 4156.
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54543
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
3 80
FR at 4163; See also 42 U.S.C. 2022(b)(1).
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.
4 82
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EPA now has serious questions as to
whether we have the legal authority to
finalize the standards that were
proposed in the 2017 Proposal.
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
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
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
6 82
FR at 7418.
7 Id.
8 Id.
9 Id.
10 Id.
11 82
FR 7405.
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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
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
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.
18 EPA–HQ–OAR–2012–0788–0380 (comments of
Uranium Producers of America) at 7.
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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
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
19 Id.
20 EPA–HQ–OAR–2012–0788–0302 (comments of
the TCEQ) at 3.
21 Id. at 3–4.
22 80 FR 4161.
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disposal sites following any such use of
those sites.’’ 23
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
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
23 80
FR 4163.
FR 4164.
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.
24 80
25 82
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complicated and reflects differing views
on the available data.
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
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,
28 EPA–HQ–OAR–2012–0788–0312
at 1.
(‘‘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.’’).
29 EPA–HQ–OAR–2012–0788–0006
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54545
expansions, and restarts.30 This
expected influx of ISR license
applications is no longer anticipated.
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.
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.
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
30 EPA–HQ–OAR–2012–0788–0405 (‘‘Uranium
Recovery Licensing Activities,’’ Presentation of the
Nuclear Regulatory Commission) at 10.
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
https://www.cameco.com).
33 World Nuclear News, 20 November 2017.
34 82 FR 7420. See footnote 29 for a more
complete citation.
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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:
The NRC’s current regulations, at 10 CFR
part 40, Appendix A, and those of the various
Agreement States, as supplemented by sitespecific 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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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
35 82
FR at 7402–3; 80 FR 4164–7.
36 EPA–HQ–OAR–2012–0788–0312
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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.).
drug costs translated into a set payment
amount, would lead to higher quality of
care for beneficiaries and reduced
expenditures to the Medicare program.
IV. Impact Analysis
DATES:
Because the EPA is not promulgating
any regulatory requirements, there are
no compliance costs or impacts
associated with today’s final action.
ADDRESSES:
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]
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DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Centers for Medicare & Medicaid
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E:\FR\FM\30OCP1.SGM
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]]>Agencies
[Federal Register Volume 83, Number 210 (Tuesday, October 30, 2018)]
[Proposed Rules]
[Pages 54543-54546]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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: [email protected].
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 https://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
