Preamble to Final Rule
10 CFR Part 765
(CITE AS: 59 FR 26714)
RULES and REGULATIONS
DEPARTMENT OF ENERGY
10 CFR PART 765
(1901-AA53)
Reimbursement for Costs of Remedial Action at Active Uranium and Thorium Processing Sites
Monday, May 23, 1994
AGENCY: Office of Environmental Management, Department of Energy.
ACTION: Final rule.
SUMMARY: The Department of Energy, Office of Environmental Management, is
promulgating this final rule to establish requirements governing reimbursement
for certain costs of decontamination, decommissioning, reclamation, and other
remedial action incurred by licensees at active uranium or thorium processing
sites to remediate byproduct material generated as an incident of sales to the
United States Government. The Energy Policy Act of 1992 requires the
Department of Energy to implement these requirements of Title X and establish
procedures for eligible licensees to submit claims for reimbursements.
EFFECTIVE DATE: June 22, 1994.
ADDRESSES: The official record for this rulemaking activity is available for
public review in the Department of Energy Freedom of Information Reading Room,
1000 Independence Avenue, SW., Washington, DC, from 9:30 a.m. to 4:30 p.m.,
Monday through Friday. The Department's standardized claims format guide and
annual report will be available upon written request to the Uranium Mill
Tailings Remedial Action Project Office, U.S. Department of Energy, 2155
Louisiana NE., suite 10000, Albuquerque, NM 87110.
FOR FURTHER INFORMATION CONTACT: David Mathes, Office of Environmental
Management (EM-45), U.S. Department of Energy, (301) 903-7223, or Steven Hamp,
Uranium Mill Tailings Remedial Action Project Office, U.S. Department of
Energy, (505) 845-4628.
SUPPLEMENTARY INFORMATION:
I. Introduction and Background
A. Statutory Authority
B. Background
1. Overview of Uranium Processing Activity Licensed Under the Atomic Energy Act
of 1954
2. Overview of Uranium Mill Tailings Radiation Control Act
3. Legislative Background
II. Response to Public Comments on the Proposed Rule
A. Eligibility for Reimbursement
B. Costs Eligible for Reimbursement
C. Determining the Federal Reimbursement Ratio
D. Definition of Byproduct Material and Dry Short Tons of Byproduct Material;
and Determination of Reimbursement Ceiling at Each Active Uranium Processing
Site
E. Documentation Requirements
F. NRC or Agreement State Concurrence
G. Reimbursement of Costs of Subsequent Remedial Action
H. Actions Subject to Appeals Procedures
I. Miscellaneous Comments
III. Section-By-Section Analysis
A. Subpart A--General
1. Section 765.1 Purpose
2. Section 765.2 Scope and Applicability
3. Section 765.3 Definitions
B. Subpart B--Reimbursement Criteria
1. Section 765.10 Eligibility for Reimbursement
2. Section 765.11 Reimbursable Costs
3. Section 765.12 Inflation Index Adjustment Procedures
C. Subpart C--Procedures for Submitting and Processing Reimbursement Claims
1. Section 765.20 Procedures for Submitting Reimbursement Claims
2. Section 765.21 Procedures for Processing Reimbursement Claims
3. Section 765.22 Appeals Procedures
4. Section 765.23 Annual Report
D. Subpart D--Additional Reimbursement Procedures
1. Section 765.30 Reimbursement of Costs Incurred in Accordance with a Plan for
Subsequent Remedial Action
2. Section 765.31 Designation of Funds Available for Subsequent Remedial Action
3. Section 765.32 Reimbursement of Excess Funds
IV. Review Under Executive Order 12866
V. Review Under the Regulatory Flexibility Act
VI. Review Under the Paperwork Reduction Act
VII. Review Under the National Environmental Policy Act
VIII. Review Under Executive Order 12612
IX. Review Under Executive Order 12778
I. Introduction and Background
A. Statutory Authority
Title X of the Energy Policy Act of 1992 (Sections 1001-1004 of Public Law
102-486, 42 U.S.C. 2296a et seq. (hereinafter "the Act")), enacted on October
24, 1992, requires the Department of Energy (hereinafter the "Department") to
reimburse eligible uranium and thorium licensees for certain costs of
decontamination, decommissioning, reclamation, and other remedial action at
active uranium or thorium processing sites, which also include vicinity
properties. Consistent with section 1002 of the Act (42 U.S.C. 2296a-1) the
Department is promulgating this final rule to implement the requirements of
Title X and to establish procedures for eligible applicants to submit claims
for reimbursement.
Title X provides that, with certain exceptions, remedial action costs at
active uranium or thorium processing sites shall be borne by persons licensed
under section 62 or 81 of the Atomic Energy Act of 1954, as amended (42 U.S.C.
2092, 2111) (hereinafter the "Atomic Energy Act"). Section 1001(b)(1)(B) of
the Act (42 U.S.C. 2296a(b)(1)(B)) requires the Department to reimburse
eligible licensees of an active processing site a portion of the costs
determined by the Department to be attributable to byproduct material generated
as an incident of sales to the United States and either (a) Incurred by such
licensee not later than December 31, 2002; or (b) placed in escrow not later
than December 31, 2002, and incurred by the licensee in accordance with a plan
for subsequent decontamination, decommissioning, reclamation, and other
remedial action approved by the Department.
In order to be reimbursable, such costs must be for work which is necessary to
comply with applicable requirements of the Uranium Mill Tailings Radiation
Control Act of 1978 (42 U.S.C. 7901 et seq.) (hereinafter "UMTRCA") or, where
appropriate, with requirements established by a state pursuant to a
discontinuance agreement under section 274 of the Atomic Energy Act (42 U.S.C.
2021), hereinafter "Agreement State". In addition, claims for reimbursement of
costs of remedial action must be supported by reasonable documentation as
determined by the Department.
Section 1001(b)(2) of the Act (42 U.S.C. 2296a(b)(2)) limits the amount
of reimbursement paid to any one licensee of an active uranium mill tailings
site to an amount not to exceed $5.50 multiplied by the dry short tons of
byproduct material located at the site on October 24, 1992, and generated as an
incident of sales to the United States. Total reimbursement, in the aggregate,
for work performed at active uranium sites shall not exceed $270 million.
Total reimbursement for work performed at the active thorium site shall not
exceed $40 million, and is limited to costs incurred for offsite disposal.
Under sections 1001(b)(2)(D) and 1003(a) of the Act (42 U.S.C. 2296a(b)(2)(D)
and 2296a-2(a)), the $5.50 per dry short ton limit on reimbursement to
individual uranium site licensees and aggregate ceilings shall be subject to
annual adjustment for inflation based upon an inflation index chosen by the
Department.
B. Background
1. Overview of Uranium Processing Activity Licensed Under the Atomic Energy Act
The U.S. Army's Manhattan Engineer District, from 1942 to 1946, and later the
Atomic Energy Commission (hereinafter "AEC"), from 1947 through 1970, entered
into several contracts for the purchase of uranium concentrate to support the
Nation's defense programs. Initially, four mills provided uranium for the Army,
primarily through reprocessing radium and vanadium mill tailings. Eventually a
total of 34 commercially operated mills produced uranium concentrate for sale
to the United States Government.
These contracts were for the purchase of an agreed-upon quantity of uranium
concentrate. Contract specifications addressed physical characteristics,
grade, and impurities but did not include provisions for mill decommissioning,
long-term management of the milling-process wastes, known as tailings, or
stabilization of tailings piles. When these contracts were executed, the
potential hazards of tailings were not fully recognized. Over the ensuing
decades, however, potential radiological and chemical hazards associated with
uranium and thorium mill tailings were identified and standards and
requirements were developed for the control and management of tailings.
Between 1975 and 1979, the Department and the Energy Research and Development
Administration, successor agencies to the AEC, completed studies of uranium
mill sites that had produced uranium concentrate for the AEC, had subsequently
ceased operations, and were considered inactive. These studies determined that
uranium mill tailings located at these inactive uranium milling sites posed
potentially significant health hazards to the public and that a program should
be developed to ensure proper stabilization or disposal of these tailings to
prevent or minimize radon diffusion into the environment and other related
hazards.
2. Overview of Uranium Mill Tailings Radiation Control Act
As a result of these studies, in November 1978, Congress enacted UMTRCA, which
authorizes the Department to undertake remedial action at "inactive" uranium
milling sites and at vicinity properties contaminated with residual radioactive
material super1 generated at a site. Inactive uranium milling sites are those
which were no longer licensed under the Atomic Energy Act on January 1, 1978,
and where all or substantially all of the uranium concentrate was produced for
the Federal Government. The Department conducts remedial action in
coordination with affected States and Indian tribes under cooperative
agreements at 24 inactive sites.
FN1 The term "residual radioactive material" is defined by Section 101(7) of
UMTRCA (42 U.S.C. 7911(7)) to mean: "(A) Waste (which the Secretary
determines to be radioactive) in the form of tailings resulting from the
processing of ores for the extraction of uranium and other valuable
constituents of the ores; and (B) other waste (which the Secretary
determines to be radioactive) at a processing site which relate to such
processing, including any residual stock or unprocessed ores or low-grade
materials."
In addition, UMTRCA established a program authorizing the United States
Nuclear Regulatory Commission (hereinafter "NRC") to regulate mill tailings
generated during processing operations at "active" processing sites (i.e.,
sites with active licenses under the Atomic Energy Act on or after January 1,
1978) to ensure sound management of tailings throughout the production,
reclamation and disposal phases.
3. Legislative Background
UMTRCA did not provide for payment of costs of remedial action incurred at
active uranium processing sites which were contaminated with uranium mill
tailings generated under Federal contract. Two reports prepared subsequently
for Congress, by the Department in January 1979 super2 and by the General
Accounting Office in February 1979, super3 concluded that Federal assistance
should be provided to licensees at these sites to address the cost of
remediating mill tailings that were generated under contracts with the United
States Government.
FN2 "Answers to Questions on Commingled Tailings at Currently Operating
Uranium Ore Processing Mills That Produced Uranium Under Atomic Energy
Commission Contracts" (Department of Energy, January 29, 1979).
FN3 "Cleaning Up Commingled Uranium Mill Tailings: Is Federal Assistance
Necessary" (General Accounting Office, EMD-79-29, U.S. Department of
Commerce, February 5, 1979).
Congress directed the Department, through section 213 of Public Law 96-540, to
develop a plan for establishing a cooperative program to provide Federal
assistance in the stabilization and management of uranium mill tailings
generated as an incident of sales to the United States Government which are
commingled with other tailings. The Department was directed to identify, among
other things, the amount of tailings generated under Federal contract at each
active site. This determination was to be used to calculate the percentage of
such tailings in relation to total tailings at each site, and the corresponding
share of Federal assistance appropriate to meet the costs of stabilizing and
managing tailings as required by Federal law.
Title X establishes the authority and framework for providing this Federal
assistance. The Department is required to issue regulations governing
reimbursement to licensees at active uranium and thorium processing sites for
certain costs of remedial action. This final rule establishes the requirements
and procedures under which the Department will implement this reimbursement
program.
II. Response to Public Comments on the Proposed Rule
The Department's proposed rule was published on August 9, 1993 (58 FR 42450).
A public hearing was held on September 14, 1993 in Denver, Colorado. A total
of 16 written comments were received, of which four identical comments were
also presented orally at the public hearing. Most of the comments concerned
eligibility for reimbursement, reimbursable costs, determination of the Federal
reimbursement ratio, definition of byproduct material, and claim documentation
requirements. These and all other comments to the proposed rule are discussed
below.
A. Eligibility for Reimbursement
Subject to certain specific limitations set forth in section 1001(b) of
the Act (42 U.S.C. 2296(a)(b)), Title X requires the Department to reimburse
licensees of active uranium or thorium processing sites for that portion of
remedial action costs that may be attributed to byproduct material generated as
an incident of sales to the United States. Parties eligible for reimbursement
must be, or have been, licensed under section 62 or 81 of the Atomic Energy
Act, and must have incurred costs of "decontamination, decommissioning,
reclamation, or other remedial action" at an "active uranium or thorium
processing site," as those terms are defined by Title X, sections 1004(3) and
1004(1), respectively (42 U.S.C. 2296a-3(3) and 2296a-3(1)). A number of
comments were received requesting clarification or revision of the proposed
rule's requirements concerning eligibility for reimbursement.
One commenter requested that the proposed rule's definition of "licensee" be
changed to specifically include entities licensed by an Agreement State.
Sections 1001(a) and (b) of the Act (42 U.S.C. 2296a(a) and (b)) require that
the Department reimburse "persons licensed under section 62 or 81 of the
Atomic Energy Act of 1954." Both section 62 and section 81 confer
licensing authority to AEC and its successor agency, the NRC.
However, NRC and a state may enter into an agreement pursuant to section 274
of the Atomic Energy Act which provides for discontinuance of the regulatory
authority of the NRC under Chapters 6, 7, and 8, and section 161 of the Atomic
Energy Act when the NRC finds, upon certification by the Governor, that the
state's program is in all respects compatible with the NRC's program for the
regulation of byproduct and source material. The discontinuance of NRC
authority is coupled with the Agreement State's issuance of licenses pursuant
to a counterpart to section 62 or 81 of the Atomic Energy Act, under state law.
If an Agreement State has received authority pursuant to a discontinuance
agreement to issue licenses under either section 62 or section 81 of the Atomic
Energy Act, recipients of an Agreement State-issued license, that was in effect
or pending on January 1, 1978, are eligible to apply for reimbursement under
Title X. In addition, some active site licensees have been subject to remedial
action requirements established both by NRC and an Agreement State.
Accordingly, the definition of "licensee" in the proposed rule has been revised
to clarify that a person licensed under the authority of either section 62 or
81 of the Atomic Energy Act, by NRC, or under state law by an Agreement State,
or both, is eligible to apply for reimbursement of costs of remedial action.
This approach is consistent with, and reflected by, the definition of "active
uranium or thorium processing site" in section 1004(1) of the Act (42 U.S.C.
2296a-3(1)), which specifies that the license for the production of uranium or
thorium derived from ore may be issued by NRC, AEC, or by an Agreement State.
Several comments were also received concerning the proposed eligibility
requirement that a licensee also be a "site owner" of an active processing
site. These commenters pointed out that land ownership was not intended by
Congress to be a requirement for reimbursement. One commenter indicated that
ownership of the property on which its processing site is located is divided
between private, Federal, and state parties. Other commenters were concerned
that the intent of Title X would be contravened if land ownership was a
condition of eligibility for reimbursement. These commenters suggested that
land ownership could also be difficult to define and determine.
While section 1002 of the Act (42 U.S.C. 2296a-1) appears to contemplate that
applications for reimbursements will be made by "a site owner," section
1001(b)(2)(A) of the Act (42 U.S.C. 2296a(b)(2)(A)) specifically refers to
reimbursements paid "to any licensee," and the remainder of Title X is also
drafted in terms of payments to licensees. The term site owner, as used in
section 1002 (42 U.S.C. 2296a-1), is not defined nor is there any legislative
history that sheds light on the single reference to "site owner" in section
1002. Consistent with apparent Congressional intent, the Department has
interpreted the term "site owner" to include any person that currently holds,
or held in the past, any interest in land, including but not limited to a fee
simple absolute, surface or subsurface ownership of mining claims, easements,
or a right of access for the purposes of remediation, or any other legal or
equitable interest. The Department has concluded that this definition will
encompass all eligible current and former licensees. To avoid unnecessary
confusion, the term "site owner" is not used in the rule and the term
"licensee" is used instead.
B. Costs Eligible for Reimbursement
Several commenters proposed changes to, or requested clarification of, the
language in s765.11(a) of the proposed rule concerning reimbursable costs and
the definition of "costs of remedial action." The proposed rule defined such
costs as those costs incurred by a licensee that were necessary to perform
"decontamination, decommissioning, reclamation, and other remedial action." The
phrase "decontamination, decommissioning, reclamation, and other remedial
action" is defined by section 1004(3) of the Act (42 U.S.C. 2296a-3(3)), as
well as the proposed rule, as work "necessary to comply with all applicable
requirements of" UMTRCA or, where appropriate, with requirements established by
an Agreement State.
Several commenters asked that the definition of "costs of remedial action"
specifically include a list of cost categories that are eligible for
reimbursement. Furthermore, some commenters suggested that this list should
specifically include the cost of capital, cost of equipment, and interest that
might have been earned over the period between the expenditure and
reimbursement; administrative costs; and costs in implementing other
environmental program requirements.
In response to these comments, the Department has revised the definition
of "costs of remedial action" to include those activities specified in the
Joint Explanatory Statement of the Committee of Conference that accompanied the
enactment of Title X which states:
Funds made available under this program are intended to be provided for all
costs that result from the disposition of by-product (sic) material at active
processing sites (subject to the limitations of sec. 1001(b)), including
groundwater remediation, treatment of contaminated soil, disposal of process
wastes, removal actions, air pollution studies, mill and equipment
decommissioning, site monitoring, administrative expenses, and additional
expenditures required by related standards and regulations." (H.R. CONF. REP.
NO. 102-1018, 102d Cong., 2d Sess. 392 (1992))
Rather than further attempt to enumerate more precise activities and
circumstances for which costs are reimbursable, the Department has determined
that this issue should be resolved on a case-by-case basis, consistent with the
statutory requirements. Section 1004(3) of the Act (42 U.S.C. 2296a-3(3))
limits reimbursement to costs for "work performed . . . which is necessary to
comply" with UMTRCA or, where appropriate, with applicable Agreement State
requirements. Therefore, whether work for which reimbursement is sought is
necessary to comply with UMTRCA or, where appropriate, with applicable
Agreement State requirements as required by section 1004(3) of the Act (42
U.S.C. 2296a-3(3)), will depend on specific circumstances that may vary from
one site to the next.
However, in the absence of specific statutory authority, the Department has
determined that the carrying cost of past expenditures or other costs of
capital or lost interest are not eligible for reimbursement. Costs incurred
for activities required by other Federal and state regulatory authorities may
only be considered reimbursable if the activity falls within the final rule's
definition of "decontamination, decommissioning, reclamation, and other
remedial action." For example, the United States Environmental Protection
Agency or a state regulatory authority may require a licensee to obtain a storm
water discharge permit pursuant to the Clean Water Act before the licensee is
able to conduct a remedial action. Therefore, a licensee may be able to
demonstrate that the cost in obtaining and maintaining the a discharge permit
is necessary to comply with UMTRCA or, where appropriate, with Agreement State
requirements.
Administrative costs and other costs associated with cleanup or restoration of
the site may be eligible for reimbursement provided that a licensee
can demonstrate that the costs were necessary to comply with the
requirements of UMTRCA or, where appropriate, with applicable requirements of
an Agreement State.
Several commenters construed the proposed rule to limit costs of remedial
action to activities required by an approved site reclamation plan. These
commenters requested that the rule be clarified to provide for reimbursement of
other activities required by other written authorization from NRC or an
Agreement State.
The final rule clarifies that costs for activities required by NRC or an
Agreement State and established by a license condition or other authorization
or directive may be eligible for reimbursement. The phrase "or other written
authorization" is used throughout the final rule to specify that the activity
may be authorized by the applicable regulatory authority by some mechanism
other than an approved reclamation plan.
Several commenters requested that the final rule specify that costs incurred
prior to the enactment of UMTRCA are reimbursable. This request is consistent
with section 1001(b)(1) of the Act (42 U.S.C. 2296a(b)(1)), which provides that
the Secretary shall reimburse a licensee for costs of decontamination,
decommissioning, reclamation, and other remedial action which are attributable
to byproduct material generated as an incident of sales to the United States
and incurred by the licensee not later than December 31, 2002. Furthermore,
section 1004(3) of the Act (42 U.S.C. 2296a-3(3)) specifies that the term
"decontamination, decommissioning, reclamation, and other remedial action"
means work performed that is necessary to comply with UMTRCA or, where
appropriate, requirements established by an Agreement State.
Therefore, the final rule states that pre- UMTRCA costs may be eligible for
reimbursement if the licensee can demonstrate and obtain the Department's
approval that the work was necessary to comply with UMTRCA. A licensee can
make this demonstration by providing a written authorization from the NRC or an
Agreement State which indicates that the work performed by the licensee prior
to the enactment of UMTRCA was necessary to comply with UMTRCA or, where
appropriate, with applicable Agreement State requirements.
Some commenters objected to s765.11(a) of the proposed rule, concerning the
requirement that reimbursable costs must be for activities "contributing to
final closure." These commenters were concerned that the applicable regulatory
authority may revise an approved reclamation plan, license condition, or other
directive for the remediation of the site. Under the proposed rule, a
licensee's previously incurred costs of remedial action would not be
reimbursable. The Department acknowledges this concern and has revised the
final rule by deleting this requirement.
In addition, commenters objected to s765.20 of the proposed rule which
required licensees to certify that remedial action work was completed as
required by a reclamation plan or other written authorization. These
commenters were concerned that licensees might not be reimbursed prior to
completion of remedial actions for individual tasks, as specified in an
approved reclamation plan or other written authorization, upon the licensees
completion of these tasks. The Department agrees with these commenters and
notes that it is the Department's intent to reimburse these costs upon
completion of the individual tasks instead of the entire remediation.
Finally, one commenter suggested that s765.2(d) of the proposed rule be
modified to clarify that expenses incurred as a result of an NRC directive, an
Agreement State directive, or both, are eligible for reimbursement. A mill may
have been regulated by both the NRC and an Agreement State during the mill's
history, and may have therefore incurred costs for activities required by
directives from both regulatory authorities. This commenter urged that
references to "NRC or Agreement State" be revised to read "NRC and/or an
Agreement State."
The Department has retained the proposed language but wishes to clarify that
use of the phrase "NRC or an Agreement State" refers to NRC, an Agreement
State, or both.
C. Determining the Federal Reimbursement Ratio
The proposed rule provided that the Department would establish a "Federal
reimbursement ratio" to determine the portion of costs of remedial action
attributable to byproduct material generated as an incident of sales to the
United States. Under the proposed rule, the Federal reimbursement ratio would
be the ratio of Federal- related dry short tons of byproduct material to total
dry short tons of byproduct material present at each site on the date of
enactment of Title X.
Some commenters suggested that the Department should allow licensees to use a
method other than the proposed rule's tonnage or quantity-based approach to
establish a site's Federal reimbursement ratio. These commenters argued that
at some sites the tonnage-based Federal reimbursement ratio may not accurately
reflect the true costs of remediation attributable to byproduct material
generated as an incident of sales to the United States. These commenters also
suggested that the rule allow greater flexibility in the methods available to
determine the Federal reimbursement ratio. In particular, these commenters
requested that the rule allow such ratio to be based on the acreage covered by
Federal-related dry short tons of byproduct material compared to the total
acreage covered by all dry short tons of byproduct material at the site.
Title X limits reimbursement to costs "attributable to" byproduct material
generated as an incident of sales to the United States, but does not require a
specific method for determining how to attribute costs to byproduct material
generated as an incident of sales to the United States. Section 1001(b)(2)(A)
of the Act (42 U.S.C. 2296a(b)(2)(A)) establishes a $5.50 per dry short ton of
byproduct material limit on reimbursement. This indicates that the tonnage
approach is an appropriate method for determining the Federal portion of
remedial action costs. However, the tonnage approach may not, in some cases,
most accurately reflect the portion of costs attributable to byproduct material
generated as an incident of sales to the United States. As the Department
recognized in the "Commingled Uranium Tailings Study, Volume II: Technical
Report," (Department of Energy, June 30, 1982) different approaches for
allocating costs attributable to byproduct material generated as an incident of
sales to the United States may be appropriate, depending on the unique
characteristics at each site.
Accordingly, the final rule has been revised to allow a licensee to
demonstrate that an alternative method for determining the Federal
reimbursement ratio, other than the tonnage approach, should be used. In order
to make this demonstration, the final rule requires the licensee to demonstrate
to the satisfaction of the Department that such alternative method is more
accurate than the tonnage-based approach in delineating between costs of
remedial action attributable to byproduct material generated as an incident of
sales to the United States and costs attributable to other byproduct material
at the site. Any licensee requesting that the Department consider an
alternative approach for establishing a site's Federal reimbursement
ratio, must submit the request in writing, together with any information the
licensee wants the Department to consider in support of the request. The
Department reserves the right to approve or reject the alternative method,
based on the Department's determination of whether such method may provide an
effective, accurate, and verifiable means of attributing costs of remedial
action for byproduct material generated as an incident of sales to the United
States. Regardless of the methodology used to establish the Federal
reimbursement ratio, the statutory ceiling on reimbursements to licensees will
not change.
D. Definition of Byproduct Material and Dry Short Tons of Byproduct Material;
and Determination of Reimbursement Ceiling at Each Active Uranium Processing
Site
One commenter disagreed with the proposed rule's definition of "dry short tons
of byproduct material." This commenter requested that the definition be
expanded to include other wastes as well as tailings. For the reasons stated
below, the Department has not adopted this approach.
Section 1001(b)(2)(A) of the Act (42 U.S.C. 2296(a)(b)(2)(A)) requires that
the ceiling for uranium mill tailings sites shall not exceed an amount equal
to $5.50 multiplied by the dry short tons of byproduct material onsite on the
date of Title X's enactment and generated as an incident of sales to the United
States. Although Title X incorporates by reference the Atomic Energy Act's
definition of "byproduct material," [FN4] the phrase "dry short ton of
byproduct material" is not defined in either Act. While the definition of
"byproduct material" could be read to suggest that the term includes wastes
other than tailings, section 1001(b)(2)(A) of the Act (42 U.S.C.
2296a(b)(2)(A)) appears to use the phrase "uranium mill tailings"
interchangeably in the same sentence with the phrase "byproduct material." The
apparent interchangeable use of these terms is further reflected by the fact
that House Bill 776 [FN5], which ultimately was enacted, established a
reimbursement limit of $5.50 per "dry short tons of byproduct material,"
(emphasis added) while the section-by-section analysis of the House Energy and
Commerce Report [FN6] accompanying the bill described the limit as "$5.50 per
dry ton for uranium tailings" (emphasis added).
FN4 Section 1004(2) of the Act (42 U.S.C. 2296a-3(2)) provides that the term
"byproduct material" has the meaning given that term in section 11e.(2) of
the Atomic Energy Act, which defines "byproduct material" as "the tailings
or wastes produced from the extraction or concentration of uranium or
thorium from any ore processed primarily for its source material content."
FN5 Section 1001(b)(2)(A) of H.R. 776, 102d Cong., 2d Sess. (1992).
FN6 See H.REP. NO. 474, 102 Cong., 2d Sess. pt 1, at 205 (1992), reprinted in
1992 U.S.C.C.A.N. 2028.
Consequently, for the purposes of this rule's maximum reimbursement
ceiling determination for active uranium processing site licensees and Federal
reimbursement ratio for uranium and thorium licensees, the Department is
defining the phrase "dry short ton of byproduct material" in the final rule to
mean "the quantity of tailings generated from the extraction and processing of
2,000 pounds of uranium or thorium ore-bearing rock."
One commenter requested that the proposed definition of "tailings" be revised
to conform to the definition established by section 101(8) of UMTRCA (42 U.S.C.
7911(8)). The Department agrees with this comment and has revised the
definition accordingly.
The following table establishes the Department's determination as to the
quantity of Federal-related dry short tons of byproduct material and total dry
short tons of byproduct material present at each active uranium or thorium
processing site as of October 24, 1992. The data from which these quantities
are derived were obtained from the reports entitled "Commingled Uranium Mill
Tailings Study, Volume II: Technical Report," (DOE, June 30, 1982) and
"Integrated Data Base for 1992: U.S. Spent Fuel and Radioactive Waste
Inventories, Projections, and Characteristics" (DOE/RW 0006, Rev. 8). In some
cases, this data was updated based on the Department's review of quantity
information provided by some licensees in response to the proposed rule. These
quantity reports are available in the Department's Freedom of Information
Reading Room indicated in the ADDRESSES section of this preamble. These
quantities shall be the basis for the Department's determination of the Federal
reimbursement ratio applicable to each active processing site, unless a
licensee requests and the Department agrees to use an alternative method for
computing the ratio. These quantities will also be the basis for the
Department's determination of the individual maximum reimbursement ceiling
applicable to each active uranium processing site.
Although Title X provides that the per dry short ton limit on reimbursement
for each eligible uranium licensee shall not exceed an amount equal to $5.50,
as adjusted for inflation, the Department is authorized to establish a lower
per dry short ton limit if necessary. Based on the total quantity of 56.231
million Federal-related dry short tons of byproduct material, the Department is
establishing an initial per dry short ton limit of $4.80. This is necessary
because the aggregate $270 million statutory ceiling will not support the
maximum allowable reimbursement of $5.50 per dry short ton, as established by
the Act, if remedial action costs at all of the eligible uranium processing
sites reach or approach this per dry short ton limit (i.e., $270 million
divided by 56.231 million Federal- related dry short tons of byproduct material
equals $4.80 per dry short ton). The Department will adjust the preliminary
limit on reimbursement accordingly when the $270 million statutory ceiling is
adjusted annually for inflation or if other circumstances, as determined by the
Department, enable the adjustment of the preliminary limit.
Dry Short Tons of Byproduct Material
-------------------------------------------------------------------------------
(Millions)
Licensee/active uranium site Federal Total Federal
related reimbursement
ratio
-------------------------------------------------------------------------------
American Nuclear Corp., Gas Hills Mill
Site, (Gas Hills, WY) ....................... 2.191 .... 6.0 .......... 0.365
Atlantic Richfield Company, Blue Water
Mill Site, (Grants, NM) ..................... 8.837 ... 23.9 ........... .370
Atlas Corp., Moab Mill Site, (Moab, UT) ....... 5.946 ... 10.6 ........... .561
Cotter Corp., Canon City Mill Site,
(Canon City, CO) ............................. .315 .... 2.2 ........... .143
Dawn Mining Company, Ford Mill Site,
(Ford, WA) .................................. 1.171 .... 3.1 ........... .378
Homestake Mining Company, Grants, Mill
Site, (Grants, NM) ......................... 11.411 ... 22.3 ........... .512
Pathfinder Mines Corp., Lucky McMine,
(Riverton, WY) .............................. 2.842 ... 11.7 ........... .243
Petrotomics Company, Shirley Basin Mill
Site, (Shirley Basin, WY) .................... .725 .... 6.3 ........... .115
Quivira Mining Company, Ambrosia Lake
Mill Site, (Grants, NM) .................... 10.017 ... 33.2 ........... .302
Tennessee Valley Authority, Edgemont
Mill Site, (Edgemont, SD) ................... 1.625 .... 2.0 ........... .813
UMETCO Mineral Corp., Uravan Mill Site,
(Nucla, CO) ................................. 5.701 ... 10.5 ........... .543
Union Carbide Corp., East Gas Hills Mill
Site, (Gas Hills Station, WY) ............... 2.103 .... 8.0 ........... .263
Western Nuclear, Inc., Split Rock Mill
Site, (Jeffrey City, WY) .................... 3.347 .... 7.7 ........... .435
Licensee/Active Thorium Site
Kerr-McGee Chemical, Corp., West
Chicago, Thorium Mill Site, (West
Chicago, IL) ................................ 0.032 ... .058 ........... .552
-------------------------------------------------------------------------------
E. Documentation Requirements
Section 765.20 of the proposed rule required that each claim for
reimbursement of costs of remedial action be supported by adequate
documentation. All costs for which reimbursement was sought and all supporting
documentation were to be organized and cross-referenced to specific
requirements or activities in an approved reclamation plan. Further, the
proposed rule expressed a preference for documentation that was prepared
contemporaneously to the time the costs were incurred.
A number of commenters questioned the use of the word "adequate" to describe
the documentation necessary to support a claim for reimbursement. Section 1002
of the Act (42 U.S.C. 2296a-1)) requires a licensee to submit a claim together
with "reasonable" documentation. In the final rule, the word "adequate" has
been replaced with "reasonable" in s765.20(a) to make the language of the rule
consistent with that of Title X.
The proposed rule also generated several comments concerning the amount and
type of documentation necessary. Many commenters contended that the
documentation requirements were unduly burdensome. Several commenters
recommended that the Department consider accepting a summary of the available
documentation, while reserving the right to audit the actual documentation at
the licensee's facility.
As a result of these comments, the Department has modified the documentation
requirements in the final rule to specifically permit the submission of claims
that summarize the supporting documentation, without requiring the submission
of all supporting documentation with the claim itself. Under the final rule,
licensees may submit a claim which outlines all costs of remedial action for
which reimbursement is sought and summarizes the documentation available to
support the claim. The Department may audit or may require the licensee to
audit, on a case-by-case basis, any documents used in support of a claim.
Under the final rule, licensees are still required to organize and cross-
reference summary documentation supporting a claim to the activity or
requirement established in the reclamation plan, or other written authorization
for both pre- and post-UMTRCA costs of remedial action, in order to facilitate
such an audit. These documents also must be retained by each licensee until 4
years after final payment of a claim is made by the Department, access to which
must be made available to the Department upon request.
In addition, many commenters indicated that contemporaneous documentation
might not be available to support claims. Various reasons, including the
passage of time since costs were incurred, were provided to support the request
that non-contemporaneous documentation be permitted to support the claim for
reimbursement.
The proposed rule did not prohibit the use of non-contemporaneous
documentation. Instead it established a preference, but not a requirement, for
contemporaneous documentation. The final rule has been clarified to indicate
that documentation prepared contemporaneous to the time the costs were incurred
should be used where available. To support a claim for reimbursement, the most
appropriate documentation, but not the only acceptable documentation, is
documentation that was prepared contemporaneous to the time the cost was
incurred. If contemporaneous documentation is not available, s765.20(d)(2)
provides that non-contemporaneous documentation may be submitted, provided that
the documentation is the only means available to document the costs for which
reimbursement is sought. This approach reflects the Department's understanding
that Title X establishes a test of reasonableness regarding the level of
documentation necessary to support a claim for reimbursement. The level of
documentation that reasonably can be expected will depend on the specific
circumstances involved in each claim, including the time that has elapsed since
the costs were incurred and the activity for which costs were incurred. The
Department intends to evaluate each claim on a case-by-case basis using this
standard of reasonableness.
Some commenters requested that s765.20(e) of the proposed rule be
revised to exclude the requirement that the licensee certify that a quality
assurance program was implemented. The Department has determined that this
certification is not required by the Act, but rather is a responsibility of NRC
or an Agreement State. Therefore, this requirement has been deleted from the
final rule.
Finally, one commenter encouraged the Department to provide a standardized
claims format guide so that guidance for preparing claims will be available to
licensees when the rule is finalized. The Department is preparing guidance to
aid licensees in claim submission procedures. This guide will be distributed
to eligible licensees shortly after publication of the final rule. In
addition, the guide will be made available to other interested parties upon
written request to the Uranium Mill Tailings Remedial Action Project Office,
U.S. Department of Energy, 2155 Louisiana NE., suite 10000, Albuquerque, NM
87110, or by visiting the Department of Energy's Freedom of Information Reading
Room, 1000 Independence Avenue SW., Washington, DC, from 9:30 a.m. to 4:30
p.m., Monday through Friday.
F. NRC or Agreement State Concurrence
Several commenters objected to the provision in s765.21(d) of the proposed
rule requiring NRC or Agreement State concurrence in the reimbursement claim
approval process. These commenters asserted that involving the NRC
or Agreement States in the process will cause undue delay. Furthermore,
commenters argued that the Department's review will be adequate because of the
Department's experience with UMTRCA Title I sites and because approved
reclamation plans, or other written authorization for both pre- and post-UMTRCA
costs, will be submitted to support claims for reimbursement. Some commenters
argued that NRC or Agreement State concurrence is unnecessary for those claims
that fall clearly within the scope of an approved plan or license condition.
However, another commenter strongly supported the requirement for written
certification from NRC or an Agreement State that claims be substantially in
conformance with NRC or Agreement State authorization.
As discussed elsewhere in this preamble, section 1004(3) of the Act (42 U.S.C.
2296a-3(3)) requires that remedial action costs for which reimbursement is
claimed must be for work "necessary to comply with all applicable requirements"
of UMTRCA or, where appropriate, with applicable requirements established by an
Agreement State. Whether work is necessary to comply with UMTRCA or Agreement
State requirements often may be determined, at least in part, by a review of a
site's approved reclamation plan or other written authorization. Licensees are
required to link each cost of remedial action for which reimbursement is
claimed to a specific element or activity contained in an approved reclamation
plan or other NRC or Agreement State authorization for both pre- and post-
UMTRCA costs. This will facilitate the Department's review of claims, and help
to ensure that reimbursement is made only for costs incurred for activities
necessary to comply with UMTRCA or, where appropriate, with applicable
Agreement State requirements.
There may be situations, nevertheless, where the Department's review of
the site's reclamation plan or other written authorization does not confirm
that an activity for which reimbursement is claimed was necessary to comply
with UMTRCA or, where appropriate, Agreement State requirements. To address
these situations, s765.21(d) of the proposed rule provided that before
approving a claim for reimbursement, the Department would request NRC or the
Agreement State to review the claim and provide written concurrence that the
activities for which reimbursement is claimed are "substantially in conformance
with the licensee's approved reclamation plan."
In response to the concerns raised by commenters, however, the Department has
revised the requirement for NRC or Agreement State written concurrence. When
it is not clear from a comparison of a claim and the approved site reclamation
plan or other written authorization that an activity for which reimbursement is
sought was necessary to comply with UMTRCA or, where appropriate, with
applicable Agreement State requirements, the Department will consult with the
appropriate regulatory authority to determine whether the activity was
necessary to comply with these requirements.
In addition, some commenters urged that s765.21(c) of the rule explicitly
provide licensees with a right to attend and participate in informal
conferences between Department and NRC or Agreement State personnel concerning
a claim for reimbursement. The Department has decided not to adopt this
approach. The claim submittal and review process provide a licensee with ample
opportunity to present any relevant information or clarification necessary for
the Department to be fully informed in reviewing and acting upon a claim. In
addition, the Department may, at its discretion, provide a licensee with
additional opportunities to clarify any issues which could arise with regard to
a claim prior to reaching a final decision. However, to conform with the above
revision to s765.21(d) the Department has deleted the reference to the informal
conference with NRC or an Agreement State in s765.20(c). Any informal
conference would be conducted as part of the Department's consultation with
these regulatory agencies pursuant to s765.21(d).
G. Reimbursement of Costs of Subsequent Remedial Action
Section 765.30 of the proposed rule required licensees seeking reimbursement
of costs after December 31, 2002 to submit a subsequent plan for remedial
action to the Department in accordance with section 1001(b)(1)(B)(ii) of the
Act. Specifically, reimbursement of costs incurred after December 31, 2002
would be subject to Department's approval of a plan containing: (1) Applicable
remedial action requirements established by NRC or an Agreement State pursuant
to UMTRCA that had not yet been satisfied by the licensee; and (2) the total
cost of remedial action required at the site, with supporting documentation,
segregated into actual costs incurred and anticipated future costs.
Several commenters indicated that the proposed rule provided inadequate
guidance on the criteria the Department will use in approving a subsequent plan
for remedial action. Specifically, these commenters construed proposed s
765.30(c) to mean that the Department would, if necessary, require a licensee
to make changes to a reclamation plan approved by NRC or an Agreement State.
In addition, some of these commenters claimed that the Department's review
should be limited to matters of schedule.
The Department did not intend the proposed rule to require a licensee to make
any changes to a reclamation plan approved by NRC or an Agreement State. On
the other hand, the statutory authority to review and approve such plans is by
no means limited to the scheduling of subsequent remedial action. To clarify
the scope and purpose of this review, s765.30(c) has been revised to state that
the intended purpose of the Department's review is to determine conformance
with an NRC- or Agreement State- approved reclamation plan, as well as the
reasonableness of anticipated future costs.
Several commenters requested that the Department clarify in s765.30(b) of the
proposed rule the time in which it would approve a subsequent plan for remedial
action which was previously rejected by the Department and modified by a
licensee.
The final rule has been revised to provide that a licensee may continue to
resubmit a subsequent plan for remedial action until the Department approves
the plan or September 30, 2002, whichever date is earlier. This deadline for
submission of plans provides sufficient time for a licensee to resubmit such a
plan. It also allows the Department sufficient time to review and approve the
plan and to designate by December 31, 2002 available amounts deposited in the
Uranium Enrichment Decontamination and Decommissioning Fund, an escrow account
established at the United States Treasury Department pursuant to section 1801
of the Act (42 U.S.C. 2297(g)), for reimbursement.
Some of these commenters requested that the Department allow for the
reimbursement of remedial action costs incurred after December 31, 2002 for
plans which have been submitted, but not yet approved by the Department, before
this date. The Department does not have statutory authority to reimburse
licensees for costs of remedial action after December 31, 2002 for which a plan
has not been approved. Therefore, the final rule does not allow for the
reimbursement of remedial costs incurred after December 31, 2002, for
those plans which have not been approved by this date.
One commenter questioned how the Department intends to address costs incurred
prior to December 31, 2002, but not yet approved by the Department at the time
the plan is submitted by the licensee.
To ensure that all incurred and future costs of remedial action are included
in a subsequent plan for remedial action, the Department has revised s
765.30(b)(2) to include a third category of costs: Those costs incurred or
expected to be incurred prior to December 31, 2002. This category includes
those costs incurred prior to December 31, 2002 but not yet submitted in a
claim for reimbursement, or approved by the Department.
Finally, many commenters requested that ss765.20(e) and 765.30(b)(2) of
the proposed rule eliminate the provision that claims for reimbursement will be
reviewed by the Department to assure that the costs are consistent with the
surety requirements provided by the licensees to NRC or an Agreement State.
These commenters argued that there are many significant differences between the
anticipated costs upon which the surety requirements are based and the
anticipated costs contained in plans for subsequent remedial action. These
commenters also noted that in some circumstances the surety may not take into
consideration all costs that may be reimbursed under Title X.
The Department acknowledges these concerns and has eliminated the surety
requirement in the final rule. To conform with this change, the Department has
deleted the definition of "surety requirements" contained in s765.3 of the
proposed rule.
H. Actions Subject to Appeals Procedures
Section 765.22 of the proposed rule provided procedures for appealing the
Department's determination concerning the total dry short tons of byproduct
material quantity and Federal-related dry short tons of byproduct material
quantity present at a site. Although proposed s765.22 provided licensees the
opportunity to appeal the Department's dry short tons of byproduct material
quantity determination, several commenters argued that proposed s765.10(b),
which required a licensee to either concur with the Department's determination
or waive or exhaust its right of appeal prior to submitting a claim for
reimbursement, effectively forced licensees to forego their right of appeal to
obtain timely reimbursement. These commenters expressed concern that licensees
would be unfairly penalized if denied reimbursement during the potentially
lengthy appeals period.
The Department agrees with these commenters and has eliminated the requirement
that a licensee waive its right of appeal with respect to a quantity
determination of dry short tons of byproduct material prior to submitting a
claim. However, in order to define the Federal reimbursement ratio that the
Department will use to calculate reimbursement, the Department must, prior to
providing any reimbursement to a licensee, make a determination concerning the
total and Federal-related dry short tons of byproduct material quantities
present at each site on October 24, 1992. Therefore, although under the final
rule a licensee may submit a claim for reimbursement while appealing the
Department's dry short tons of byproduct material quantity determination, the
appeal must be made within 45 days after receiving notice of such
determination. The 45-day limit provides a licensee with the right to appeal
without foregoing the right to timely reimbursement and helps ensure that the
Department is able to make the determinations necessary for orderly
administration of the reimbursement program.
Under s765.10(b), the Department's dry short tons of byproduct material
quantity determinations will be used to calculate that portion of an approved
claim that will be reimbursed. If the licensee's appeal of the Department's
initial determination is successful, the difference between the initial
quantity determination and that established by the appeals process will be paid
to the licensee.
Some commenters noted that the proposed rule did not provide a licensee
an opportunity to appeal the Department's decision concerning plans for
subsequent remedial action, as well as other determinations required by this
rule. This omission in the proposed rule was unintentional. Section 765.22
has been revised and streamlined in the final rule to allow appeals of any
Department determination required by this rule, including a decision to reject
or modify a plan for subsequent remedial action. While the decision to appeal
a Department determination associated with this rule lies in the discretion of
each eligible licensee, the rule requires that any appeal comply with the
appeals process specified in s765.22.
I. Miscellaneous Comments
Under s765.3 of the proposed rule, the definition of "offsite disposal" refers
to disposal of byproduct material from the sole existing thorium mill site
pursuant to a plan approved by, or written authorization from, the Illinois
Department of Nuclear Safety or other appropriate state agency. One commenter
urged that the specific reference to the Illinois Department of Nuclear Safety
be deleted from the definition in the event of a name change or revision of
responsibilities of that agency, and the definition also include approvals and
authorizations from the NRC. The Department has determined that the language
of Title X does not limit reimbursement for offsite disposal to activities
required by a specific state regulatory authority. Therefore, the definition
of "offsite disposal" in the final rule has been modified to include activities
required by the NRC or the State of Illinois.
Another commenter suggested that the Department consider making partial
provisional advance payments to licensees, subject to an audit of
expenditures. The Department does not have the statutory authority to make
partial provisional advance payments.
A number of commenters suggested that the Department clarify how available
funds will be disbursed if there are insufficient funds for full payment of all
claims. Language in the proposed rule did not explicitly specify the priority
for disbursement of funds among claims submitted by different review submission
deadlines established by the Department. The final rule has been revised to
specify that, if funds available are insufficient to make full payment in any
given review cycle, all outstanding approved claims will be reimbursed on a
prorated basis, regardless of when the claims were submitted or approved. This
approach is consistent with the requirement of Title X that reimbursements be
made to licensees at least annually.
Commenters also requested that claims be processed and paid twice a year.
Title X requires that licensees be reimbursed at least annually. Therefore,
the Department intends to provide payments to the licensees on at least an
annual basis, but the Department is not prepared to commit in the rule to a
more frequent reimbursement schedule.
The Department has modified s765.20(a) and (d) of the proposed rule to
clarify that the claim submission deadline(s) for a given year will be
announced in the Federal Register shortly after the annual appropriation of
funds by the Congress. To ensure an equitable distribution of annual
appropriations, DOE will make payments for approved costs of remedial
action from the Fund within one year of the claim submission
deadline.
Some commenters also urged the Department to modify the proposed rule's
application of the inflation index adjustment provided in s765.12 for claims
approved for reimbursement. Some commenters argued that claims for
reimbursement should be adjusted for inflation from the date the costs were
incurred until the date of reimbursement. Others thought that an inflation
adjustment should be made for the period between the submission or approval of
a claim and the date of reimbursement.
Section 1001(b)(2)(D) of the Act (42 U.S.C. 2296(a)(b)(2)(D)) specifies the
authority provided to the Department to adjust certain amounts for inflation.
While the Secretary is given discretion to determine the appropriate inflation
index to apply, this section dictates the amounts that are subject to
adjustment for inflation. Congress explicitly and unequivocally limited the
application of the inflation index to "the amounts in subparagraphs (A), (B),
and (C) of this paragraph (section 1001(b)(2) of the Act)" (42 U.S.C.
2296a(b)(2)(D)). The amounts in subparagraphs (A), (B), and (C) of paragraph
1001(b)(2) are $5.50, $270,000,000, and $40,000,000, respectively. The
Department is not authorized to adjust for inflation any claims for
reimbursement. As a result, the approach taken in the proposed rule has been
retained in the final rule.
In addition to the revisions discussed above, the Department also made minor
clarifying or editorial changes to the proposed rule which are not specifically
discussed in this preamble.
III. Section-By-Section Analysis
A. Subpart A--General
1. Section 765.1 Purpose
Section 765.1 specifies that the purpose of this rule is to establish
procedures and requirements governing the reimbursement of remedial action
costs authorized by Title X of the Act. The section confirms that the rule is
promulgated as required by section 1002 of the Act (42 U.S.C. 2296a-1).
2. Section 765.2 Scope and Applicability
Section 765.2 describes the general scope and applicability of the rule. In
particular, the section provides that reimbursements shall be made to a
licensee of an active uranium or thorium processing site for costs of
decontamination, decommissioning, reclamation, or other remedial action, which
are supported by reasonable documentation and determined by the Department to
be attributable to byproduct material generated as an incident of sales to the
United States. Costs of decontamination, decommissioning, reclamation, and
other remedial action must be for work that is necessary to comply with the
requirements of UMTRCA or, where appropriate, with applicable requirements
established by an Agreement State. Moreover, except as provided by s765.32,
reimbursement of a uranium site licensee shall be limited to $5.50, as adjusted
for inflation, per Federal-related dry short ton of byproduct material. The
total reimbursement paid to all uranium licensees shall not exceed $270
million, as adjusted for inflation. Reimbursement of the thorium site licensee
shall not exceed $40 million, as adjusted for inflation.
3. Section 765.3 Definitions
Section 765.3 defines the acronyms and key terms used in the rule.
Many of the definitions contained in s765.3 are taken verbatim, or with minor
changes, from Title X, UMTRCA, or the Atomic Energy Act. Additional
definitions, discussed below, were developed specifically for this rule.
The term "active uranium or thorium processing site" or "active processing
site" means:
(1) any uranium or thorium processing site, including the mill, containing
byproduct material for which a license, issued either by NRC or by an Agreement
State, for the production at such site of any uranium or thorium derived from
ore--
(i) was in effect on January 1, 1978;
(ii) was issued or renewed after January 1, 1978; or
(iii) for which an application for renewal or issuance was pending on, or
after January 1, 1978; and
(2) any other real property or improvement on such real property that is
determined by the Secretary or by an Agreement State to be:
(i) in the vicinity of the site; and
(ii) contaminated with residual byproduct material.
The term "Agreement State" means a State that is or has been a party to a
discontinuance agreement with NRC under section 274 of the Atomic Energy Act
(42 U.S.C. 2021) and thereafter issues licenses and establishes remedial action
requirements pursuant to a counterpart to section 62 or 81 of the Atomic Energy
Act under state law.
The term "Atomic Energy Act" means Atomic Energy Act of 1954, as amended, (42
U.S.C. 2011 et seq.).
The term "byproduct material" means the tailings or wastes produced by the
extraction or concentration of uranium or thorium from any ore processed
primarily for its source material content.
The term "claim for reimbursement" is defined as the submission of an
application for reimbursement in accordance with the requirements established
in subpart C of this rule.
The term "costs of remedial action" means costs incurred by a licensee prior
to or after enactment of UMTRCA to perform decontamination, decommissioning,
reclamation, or other remedial action. These costs must be substantiated by
documentation in accordance with the requirements of Subpart C of the rule.
Costs of remedial action may include, but are not limited to, ground water
remediation, treatment or containment of contaminated soil, disposal of process
wastes, removal actions, air pollution abatement measures, mill and equipment
decommissioning, site monitoring, administrative activities directly related to
remedial action, expenditures required to meet necessary regulatory standards,
and other costs for activities necessary to comply with the requirements of
UMTRCA or applicable requirements established by an Agreement State.
The term "decontamination, decommissioning, reclamation, and other remedial
action" means work performed which is necessary to comply with all applicable
requirements of UMTRCA or, where appropriate, with applicable requirements
established by an Agreement State.
The term "Department" means the United States Department of Energy or
its authorized agents.
The term "dry short ton of byproduct material" is defined as the quantity of
tailings generated from the extraction and processing of 2,000 pounds of
uranium or thorium ore-bearing rock.
The term "Federal reimbursement ratio" means the ratio of Federal-related dry
short tons of byproduct material to total dry short tons of byproduct material
present at an active uranium or thorium processing site on October 24, 1992.
The ratio shall be established by comparing Federal-related dry short tons of
byproduct material to dry short tons of total byproduct material present at the
site on October 24, 1992, or by another means of attributing costs of remedial
action to byproduct material generated as an incident of sales to the United
States which the Department determines is more accurate than a ratio
established using dry short tons.
The term "Federal-related dry short ton(s) of byproduct material" is defined
as the dry short ton(s) of byproduct material present at the site on October
24, 1992 that was generated as an incident of sales to the United
States.
The term "generally accepted accounting principles" means those principles
established by the Financial Accounting Standards Board which encompass the
conventions, rules, and procedures necessary to define accepted accounting
practice at a particular time.
The term "inflation index" is defined as the consumer price index for all
urban consumers (CPI-U) as published by the Department of Commerce's Bureau of
Labor Statistics.
The term "licensee" includes any site owner licensed under section 62 or 81 of
the Atomic Energy Act by either NRC, or an Agreement State.
The terms "maximum reimbursement amount or maximum reimbursement ceiling"
means the smaller of the following two quantities: (1) The amount obtained by
multiplying the total cost of remedial action at the site, as determined in the
approved plan for subsequent remedial action, by the Federal reimbursement
ratio established for the site; or (2) $5.50, as adjusted for inflation,
multiplied by the number of Federal-related dry short tons of byproduct
material.
The term "NRC" means the United States Nuclear Regulatory Commission or its
predecessor agency.
The term "offsite disposal" is defined as the decontamination,
decommissioning, reclamation and other remedial action associated with disposal
of byproduct material in a location not contiguous to the West Chicago Thorium
Mill Site. This includes activities required by the State of Illinois, or NRC
provided these activities are consistent with the ultimate removal of byproduct
material from the West Chicago Thorium Mill Site.
The term "plan for subsequent remedial action" is defined as a plan approved
by the Department, which includes an estimated total cost for remedial action
and all applicable requirements of remedial action established by NRC or an
Agreement State to be performed after December 31, 2002 at an active uranium or
thorium processing site.
The terms "reclamation plan" or "site reclamation plan" means a plan
approved by NRC or an Agreement State that establishes the work necessary to
comply with UMTRCA or where appropriate applicable Agreement State
requirements.
The term "remedial action" means decontamination, decommissioning,
reclamation, and other remedial action at an active uranium or thorium
processing site.
The term "Secretary" means the Secretary of Energy or her designees.
The term "site owner" is defined as a person that presently holds, or held in
the past, any interest in land, including but not limited to a fee simple
absolute, surface or subsurface ownership of mining claims, easements, and a
right of access for the purposes of cleanup, or any other legal or equitable
interest.
The term "tailings" is defined as the remaining portion of a metal-bearing ore
after some or all of the metal, such as uranium, has been extracted.
The term "the Fund" means the Uranium Enrichment Decontamination and
Decommissioning Fund established at the United States Department of Treasury
pursuant to section 1801 of the Atomic Energy Act (42 U.S.C. 2297g).
The term "Title X" or "the Act" means Subtitle A of Title X of the Energy
Policy Act of 1992, Pub. L. 102-486, 106 Stat. 2776 (42 U.S.C. 2296a-1 et
seq.).
The term "UMTRCA" means the Uranium Mill Tailings Radiation Control Act of
1978, as amended (42 U.S.C. 7901 et seq.).
The term "United States" means any executive department, commission, or
agency, or other establishment in the executive branch of the Federal
Government.
The term "written authorization" means a written statement from either the NRC
or an Agreement State that a licensee has performed in the past, or is
authorized to perform in the future, a remedial action that is necessary to
comply with the requirements of UMTRCA, or where appropriate with applicable
Agreement State requirements.
B. Subpart B--Reimbursement Criteria
1. Section 765.10 Eligibility for Reimbursement
Section 765.10 outlines the basic eligibility requirements governing
reimbursement. In particular, as required by section 1001 of the Act (42
U.S.C. 2296a), s765.10 specifies that licensees shall be eligible for
reimbursement of certain costs of remedial action, subject to the procedures
and limitations specified in this rule.
Section 765.10(a) of the rule provides that costs of remedial action
attributable to byproduct material generated as an incident of sales to the
United States are reimbursable. Section 765.10(b) states that prior to
reimbursement, the Department must determine the number of total dry short tons
of byproduct material present at the site on October 24, 1992 and Federal-
related dry short tons of byproduct material. This section provides that these
determinations are subject to the appeals procedures specified in the rule.
Provisions are made concerning reimbursement in the event of an appeal.
2. Section 765.11 Reimbursable Costs
Section 765.11 defines the requirements that a licensee must meet to be
reimbursed for costs of remedial action at its active uranium or thorium
processing site. Reimbursable costs of remedial action must be incurred prior
to December 31, 2002, or be in accordance with a plan for subsequent remedial
action approved by the Department. These costs of remedial action shall be
reimbursed only if supported by reasonable documentation and approved by the
Department in accordance with this rule. This documentation must demonstrate
that the costs of remedial action incurred by a licensee are necessary to
comply with applicable requirements of UMTRCA, or, where appropriate, with
requirements established by an Agreement State. These requirements are
contained in a reclamation plan, or other written authorization, issued or
approved by NRC or an Agreement State, for work performed prior to or after
enactment of UMTRCA. In addition, costs of remedial action are reimbursable
only if the Department determines that they are attributable to byproduct
material generated as an incident of sales to the United States and present at
the site on October 24, 1992. These costs are equal to the total costs of
remedial action at a site multiplied by the Federal reimbursement ratio
established for the site, and approved by the Department for reimbursement.
Section 765.11 limits the amount of reimbursement paid to any one licensee of
an active uranium processing site to an amount not to exceed $5.50, as adjusted
for inflation, multiplied by the number of Federal-related dry short tons of
byproduct material. Total reimbursement in the aggregate of uranium site
licensees is limited to $270 million, as adjusted for inflation. Reimbursement
of costs of remedial action at the eligible thorium processing site may only be
made for costs incurred for offsite disposal, and is limited to $40 million, as
adjusted for inflation.
3. Section 765.12 Inflation Index Adjustment Procedures
Title X directs the Department to determine an appropriate inflation index by
which to increase annually (1) The $5.50 per dry short ton of byproduct
material limit on reimbursement to individual uranium site
licensees, (2) the amount of $270 million authorized for payment to active
uranium processing site licensees, (3) the amount of $40 million authorized for
payment to the active thorium processing site licensee, and (4) the aggregate
amount of $310 million authorized for payment to all licensees by Title X. As
discussed elsewhere in this preamble, the Department intends to use the
Consumer Price Index-Urban (CPI-U) as the appropriate inflation index for these
adjustments. Section 765.12 of the rule provides that the CPI-U will be used
to adjust these amounts annually beginning in 1994, to account for inflation
that occurred in the previous calendar year.
C. Subpart C--Procedures for Filing and Processing Reimbursement Requests
Subpart C establishes the procedures for preparing and processing
reimbursement claims. These procedures are designed to ensure that all
information the Department needs to review a claim is made available to the
Department, that claims are evaluated on a consistent basis, and that claims
are processed in an efficient and equitable manner.
1. Section 765.20 Reimbursement Request Filing Procedures
Section 765.20 of the rule establishes the filing procedures, content,
and format that a licensee must follow when submitting a claim for
reimbursement. Each claim for reimbursement of remedial action costs must be
supported by reasonable documentation.
A copy of the licensee's approved reclamation plan or other written
authorization from NRC or an Agreement State must be submitted with the initial
claim. Any revisions to this plan or authorization by NRC or an Agreement
State must be submitted with the next claim prepared following approval of the
revision. Each claim must provide a summary of all costs of remedial action
for which reimbursement is claimed. The summary of costs must identify the
pre- and post-UMTRCA costs associated with each major activity or requirement
established by the site's reclamation plan or other written authorization.
The claim for reimbursement must also include a summary of the documentation
available to support the claim. All summary documentation used in support of a
claim must be cross-referenced to the relevant page and activity of the
licensee's reclamation plan or other written authorization for pre- and post-
UMTRCA costs. All documentation used in support of a claim must be made
accessible to the Department, and the documentation should demonstrate that
each cost for which reimbursement is claimed was incurred for a pre- or post-
UMTRCA specific activity included in a reclamation plan or other written
authorization, approved by NRC or an Agreement State. Where available,
invoices, payroll records, receipts, and other documents should be used by the
licensee to support claims for reimbursement. The rule requires licensees to
utilize documents that were prepared contemporaneous to the time the cost which
they support was incurred, whenever these documents are available. Documents
prepared substantially after the cost was incurred will be considered by the
Department in reviewing claims if that documentation is the only means
available to document costs for which reimbursement is sought. The Department
may audit, or require a licensee to audit, any documentation used to support a
claim on a case-by-case basis and will exercise its discretion in determining
the weight to accord to various supporting documents.
2. Section 765.21 Processing Reimbursement Requests
Section 765.21 outlines the procedures to be followed by the Department in
processing each claim for reimbursement.
Sections 765.21 (a)-(c) provide that the Department will conduct a preliminary
review of each claim within 60 days of the claim submittal deadline to
determine if additional information is necessary. The Department may audit
documentation used in support of the claim or request additional information or
clarification necessary to verify any information provided by the licensee in a
claim for reimbursement. In addition, the Department may request an informal
conference with the applicant and, if necessary, with NRC or an Agreement
State, to obtain information or clarification concerning any aspect of a
claim. While the applicant is not required to provide additional information
or clarification requested by the Department, a failure to do so may result in
the denial of that portion of the claim for which information is requested.
The Department will conduct a final review of all relevant information
to make a reimbursement decision. The Department will notify the claimant of
its decision regarding a claim within 10 days of completing the final review.
Sections 765.21 (f)-(g) discuss the timing for processing and for payment of
reimbursement requests. Reimbursements will be made on a prorated basis if
there are insufficient funds available to reimburse all claims in full.
Amounts not initially disbursed will be paid on a prorated basis, until
satisfied in full, as funds become available. All outstanding, approved claims
will be paid on the same prorated basis, regardless of when the claim was
submitted or approved. Payments will be provided from the Fund, as required by
the Act. Payment or obligation of funds shall be subject to the requirements
of the Anti-Deficiency Act (31 U.S.C. 1341) as specified by s765.21(g) of this
rule. Following each annual appropriation by Congress, the Department will
issue a Federal Register notice informing licensees of the availability of
funds for reimbursement and whether the Department anticipates that approved
claims for that year may be subject to prorated payment.
Section 765.21(h) requires an officer or other authorized official of a
licensee to certify the accuracy of a claim for reimbursement, and subjects the
individual making the certification to Federal statutes which provide civil and
criminal penalties for making false claims.
3. Section 765.22 Appeals Procedures
Section 765.22 requires a licensee to utilize the Department's administrative
appeals process (see 10 CFR part 205, subpart H) to appeal any Department
determination required by this rule, including decisions that: (1) Determine
tailings quantities of dry short tons of byproduct material or the Federal
reimbursement ratio; (2) deny, in whole or in part, any claim for
reimbursement; or (3) require modification of or reject a plan for subsequent
remedial action. Any appeal must be filed with the Department's Office of
Hearing and Appeals (hereinafter "OHA") within 45 days after the licensee
receives notice, actual or constructive, (i.e., by a publication in the Federal
Register) of the Department's determination. OHA is a quasi-judicial body that
reports to the Secretary of Energy and, except as otherwise provided by law, is
responsible for conducting informal adjudicative proceedings of the Department,
where there is a provision for separation of function. In connection with
these duties, OHA holds hearings, receives evidence, develops a record, and
issues a final determination, which is the Department's final decision, subject
to review in the federal courts. A licensee must file an appeal in order to
exhaust its administrative remedies, and the receipt of an OHA decision is a
prerequisite to seeking judicial review of any determination made
under this Part.
4. Section 765.23 Annual Report
The Department will prepare an annual report, available to the public,
summarizing pertinent information from the preceding year regarding the
reimbursement program. The information may include, but not be limited to,
individual and aggregate reimbursement claims approved and paid, approval of
plans for subsequent remedial action, completion of particular elements of
remedial action at active sites, total amounts paid and remaining for
reimbursement, and other information. Licensees should be aware that any
information submitted in a claim for reimbursement may be subject to public
disclosure, through the annual report as well as by specific request, in
accordance with the Freedom of Information Act (5 U.S.C. 552) and all other
applicable requirements.
Subpart D--Additional Reimbursement Procedures
1. Section 765.30 Reimbursement of Costs Incurred in Accordance with a Plan for
Subsequent Remedial Action
Section 765.30 of Subpart D establishes procedures for reimbursement of
costs incurred in accordance with a plan for subsequent remedial action
approved by the Department.
Reimbursement of costs incurred after December 31, 2002 shall be subject to
the submission by the licensee of a plan for subsequent remedial action and
approval of the plan by the Department. Each licensee seeking reimbursement of
costs of remedial action to be incurred after December 31, 2002 shall submit
their plan to the Department for its review and approval at any time between
January 1, 2000 and December 31, 2001. The plan must include an estimated
total cost and schedule for remedial action as well as all applicable
requirements of remedial action established by NRC or an Agreement State to be
performed after December 31, 2002 at an active uranium or thorium processing
site. Each licensee will be required to provide reasonable documentation or
other information to support its estimate of costs to be incurred.
The Department may approve, approve with modification, or reject any plan
submitted by a licensee. At any time following submittal of a plan, the
Department may request additional information from the licensee, and may
consult with NRC or an Agreement State concerning remaining remedial action
requirements contained in the site's approved reclamation plan. If the
Department rejects a plan, the licensee may file an appeal pursuant to s765.22
or submit revised plans for review by the Department, until a plan is approved,
or until September 30, 2002, whichever occurs first. The Department has
established September 30, 2002, as the deadline for submission of any potential
revised plans so that the Department will have sufficient time to review the
submittals and designate available amounts on deposit in the Fund for
reimbursement by December 31, 2002 consistent with section 1001(b)(1)(B)(ii) of
the Act (42 U.S.C. 2296a(b)(1)(B)(ii)). A failure by a licensee to receive
approval from the Department of a plan for subsequent remedial action prior to
December 31, 2002 will preclude that licensee from receiving any reimbursement
for costs incurred after that date. Costs incurred in accordance with the
requirements of a plan for subsequent remedial action, and approved by the
Department, will be reimbursed in an amount equal to the approved cost
multiplied by the site's Federal reimbursement ratio, until such time as the
Department determines that its obligation under Title X to reimburse the
licensee has been satisfied.
2. Section 765.31 Designation of Funds Available for Subsequent Remedial Action
Section 765.31 establishes procedures for reimbursement of costs incurred in
accordance with an approved plan(s) for subsequent remedial action.
Upon approval of each plan submitted by a licensee, and subject to the
availability of appropriated funds and the requirements of the Anti-Deficiency
Act (31 U.S.C. 1341), the Department will designate amounts deposited in the
Fund at the United States Department of Treasury, established pursuant to
section 1801 of the Atomic Energy Act (42 U.S.C. 2297g), to reimburse a
licensee for estimated costs of remedial action in implementing a Department-
approved plan for subsequent remedial action.
3. Section 765.32 Reimbursement of Excess Funds
Section 1001(b)(2)(E)(i) of the Act (42 U.S.C. 2296a(b)(2)(B)(i))
authorizes the Department to determine, as of July 31, 2005, whether the
aggregate amount authorized to be appropriated by section 1003 of the Act (42
U.S.C. 2296a-2) when considered with the $5.50 per dry short ton limit on
reimbursement, as adjusted for inflation, for active uranium processing site
licensees, exceeds the amount reimbursable to licensees under section
1001(b)(2) of the Act (42 U.S.C. 2296a(b)(2)). If any active uranium
processing site licensee incurs reimbursable costs in excess of $5.50 per dry
short ton limit on reimbursement, and the Department has determined that excess
funds exist as of July 31, 2005, section 1001(b)(2)(E)(ii) of the Act (42
U.S.C. 2296a(b)(2)(E)(ii)) authorizes the Department to provide reimbursement
of those costs on a prorated basis to the extent funds are available.
Section 765.32 outlines the procedures that would govern any additional
reimbursement.
IV. Review Under Executive Order 12866
Today's regulatory action has been determined not to be a "significant
regulatory action" under Executive Order 12866, "Regulatory Planning and
Review," (58 FR 51735, October 4, 1993). Accordingly, today's action was not
subject to review under the Executive Order by the Office of Information and
Regulatory Affairs.
V. Review Under the Regulatory Flexibility Act
This rule was reviewed under the Regulatory Flexibility Act, 5 U.S.C. 601 et
seq. The Regulatory Flexibility Act requires that a regulatory flexibility
analysis be performed for all rules that are likely to have "significant impact
on a substantial number of small entities." This rule involves reimbursement
for costs of remedial action at active uranium and thorium processing sites.
The number of potentially eligible applicants is very limited. Because this
rule provides for reimbursement of funds authorized by Title X, it does not
pose any adverse effect on the private sector economy or small entities, and in
fact may provide a benefit to small entities located near active processing
sites. The Department, therefore, certifies that this rule will not have a
significant impact on a substantial number of small entities.
VI. Review Under the Paperwork Reduction Act
The information collection requirements in this rule have been approved by the
Office of Management and Budget (OMB) under the Paperwork Reduction Act (44
U.S.C. 3501 et seq.) and have been assigned OMB control number 1910-1400.
VII. Review Under the National Environmental Policy Act
This rule establishes procedures for the reimbursement of eligible remedial
action costs incurred by licensees at active uranium or thorium
processing sites. Implementation of this rule will result in cost
reimbursement payments to eligible licensees, but will not affect the legally
required cleanup of the sites or result in any other environmental impacts.
The Department has therefore determined that this rule is covered under the
Categorical Exclusion found at paragraph A6. of Appendix A to subpart D, 10
CFR part 1021, which applies to the establishment of procedural rulemakings
such as procedures for the review and approval of applications for grants and
cooperative agreements. Accordingly, neither an environmental assessment nor
an environmental impact statement is required.
VIII. Review Under Executive Order 12612
This rule does not have a substantial direct effect on the States, the
relationship between the States and the Federal Government, or the distribution
of power and responsibilities among various levels of government. Therefore,
no federalism assessment under Executive Order 12612 is required.
IX. Review Under Executive Order 12778
Section 2 of Executive Order 12778 instructs agencies to adhere to certain
requirements in promulgating new regulations and reviewing existing
regulations. These requirements, set forth in sections 2(a) and (b), include
eliminating drafting errors and needless ambiguity, drafting the regulations to
minimize litigation, providing clear and certain legal standards for affected
conduct, and promoting simplification and burden reduction. Agencies are also
instructed to make every reasonable effort to ensure that the rule clearly
specifies any preemptive effect, effect on existing Federal law or regulation,
and retroactive effect; describes any administrative proceedings available
prior to judicial review; any provisions for the exhaustion of administrative
proceedings; and defines key terms. The Department certifies that today's rule
meets the requirements of sections 2(a) and (b) of Executive Order 12778.
List of Subjects in 10 CFR PART 765
Radioactive materials, Reclamation, Reporting and recordkeeping requirements,
Uranium.
Issued in Washington, DC, on this 10th day of May 1994.
Thomas P. Grumbly,
Assistant Secretary for Environmental Management.
For the reasons set out in the Preamble, Chapter III of Title 10 of the Code
of Federal Regulations is amended by adding a new PART 765 to read as follows: