DRC-2023-000565 - 0901a068811618c5

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 8
1595 Wynkoop Street
Denver, CO 80202-1129
Phone [phone]
www.epa.gov/region8
January 13, 2023
Ref: 8ENF-RO-R
SENT VIA EMAIL RECEIVED
DIGIT AL READ RECEIPT REQUESTED
AND BY CERTIFIED MAIL
By Division of Waste Management and Radiation Control at 5:20 pm, Jan 13, 2023
RETURN RECEIPT REQUESTED
Mr. Mark Chalmers
President and CEO
Energy Fuels Resources (USA), Inc.
225 Union Boulevard, Suite 600
Lakewood, Colorado 80228
[e-mail]
Re: Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA) Off-Site Rule-Verification of Continued Acceptability, White Mesa Mill
Dear Mr. Chalmers:
Consistent with the United States Environmental Protection Agency Region 8 Administrator KC
Becker's July 18, 2022, Reconsideration Decision, EPA Region 8 undertook a verification of CERCLA
Offsite Rule (OSR) continued acceptability for the units previously determined to be acceptable to
receive CERCLA waste, apart from Cell 4B, at th.e White Mesa Mill (the Mill). Those units are: (1) the
ore pad; (2) the ore processing mill; (3) tailings Cell 3; (4) tailings Cell 4A; (5) the alternate feed
processing circuit; and (6) related storage pads. 1 As detailed below, EPA has verified the CERCLA OSR
Acceptability of these six units. Cell 4B remains unacceptable to receive CERCLA waste until it returns
to compliance with 40 C.F.R. § 62.252(6).
1 The Mill received its first CERCLA OSR Acceptability Determination from Regi0n 8 for the ore pad, the ore processing
circuit, and tailings impoundment Cell 3 on April 20, 1999, see Letter from Wanda C. Taunton, Director of EPA Region 8
Solid and Hazardous Waste Program, to David C. Frydenlund, Vice-President and General Counsel, International Uranium
Corporation USA (Apr. 20, 1999); and received an OSR acceptability determination for tailings cells 4A and 48, the
alternate feed processing circuit, and related storage pads on June 11, 2019, see Letter from Suzanne J. Bohan, EPA Region 8
Director of Enforcement and Com pliance Assurance Division, to David C. Frydenlund, Senior Vice-President, General
Counsel, and Corporate Secretary, Energy Fuels Resources (USA), Inc (Jun. 11, 2019).
DRC-2023-000565
Procedural Background
On December 2, 2021, EPA Region 8 issued an Initial CERCLA OSR Unacceptability Notice for the
Mill to Energy Fuels ("Initial Unacceptability Notice"). Energy Fuels submitted comments and
requested an informal conference with EPA Region 8 to discuss the basis for the Mill's unacceptability
determination in accordance with 40 C.F.R. § 300.440(d)(4). The informal conference was held on
January 6, 2022, and on March 3, 2022, EPA Region 8 issued its Final CERCLA OSR Unacceptability
Notice. Energy Fuels then requested a reconsideration by the Regional Administrator pursuant to 40
C.F.R. § 300.440(d)(7).
Regional Administrator KC Becker, in accordance with 40 C.F.R. § 330.440(d)(7), conducted a
conference with the parties on April 14, 2022. Energy Fuels and the Region 8 Enforcement and
Compliance Assurance Division (ECAD) provided post-conference submissions on April 29, 2022, and
Energy Fuels provided a final submission on May 13, 2022. In reaching her decision, Regional
Administrator Becker relied on the following record: materials in the Administrative Record, compiled
as of June 2, 2022; statements made by the participants during the reconsideration conference, as
reflected in the transcript finalized on April 28, 2022; and the post-conference submissions of Energy
Fuels and the ECAD.
In her July 18, 2022, Reconsideration Decision, Regional Administrator Becker affirmed that the Mill is
currently not in compliance with the Clean Air Act's ("CAA") National Emission Standards for
Hazardous Air Pollutants, 42 USC § 7412, specifically the National Emission Standards for Radon
Emissions From Operating Mill Tailings at 40 C.F .R. Part 61, Subpart W ("Subpart W") regulations
because it has not maintained liquid levels in Cell 4B in accordance with 40 C.F.R. §_ 6l.252(b), and that
this failure to maintain liquid levels in a unit receiving CERCLA waste is a significant deviation from 40
C.F .R. § 6 l .252(b) and is, therefore, a relevant violation under the OSR.
Regional Administrator Becker also revised EPA's Determination of Unacceptability to apply to Cell 4B
only, once a verification of continued acceptability is made for the other units, previously determined to
be acceptable.
Verification of OSR Acceptability of White Mesa Mill Units
White Mesa Mill has several units for which it has requested and received prior EPA approval to receive
CERCLA waste: the ore pad, the ore processing mill, tailings Cells 3 and 4A, and non-conventional
impoundment Cell 4B, the altem�te feed processing circuit, and the alternate feed processing circuit's
related storage pads. Accordingly, this verification of acceptability applies to the aforementioned, except
for Cell 4B.
A verification of continued acceptability relies on the same two criteria as an OSR acceptability
determination: a facility will be deemed in compliance for the purpose of the OSR ifthere are (1) no
relevant violations at or affecting the unit or units receiving CERCLA waste; and (2) no uncontrolled
releases. 40 C.F.R. § 300.440(b)(l)-(2). For non-RCRA facilities such as the Mill, CERCLA wastes
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should not be sent to any unit if the EPA has information indicating an environmentally significant
release of hazardous substances has occurred at that facility, unless that release is controlled by an
enforceable agreement for corrective action under an applicable Federal or State authority. 40 C.F.R. §
300.440(b )(2)(0) ..
To make this determination, EPA reviewed compliance and release information from the Utah
Department of Environmental Quality's Division of Air Quality, conducted a September 8, 2022, video
conference with technical staff and the Director ofthe Utah Department of Environmental Quality's
Division of Waste Management and Radiation Control, and reviewed Groundwater Discharge Permit
No. UGW370004 ("Utah GW Permit") and the Mill's groundwater data in its monitoring report. EPA's
OSR evaluation revealed the following:
1.Radon monitoring reports from 2020 and 2021, reviewed by EPA Region 8, for Cell 3 and 4A do
not reveal any noncompliance with Subpart W requirements. The 2022 monitoring report is due
March 1, 2023, and therefore, is unavailable for assessment. 2
2.Rik Ombach, Utah Division of Air Quality Minor Source Compliance Manag·er, informed EPA
of Utah's position that Cells 3 and 4A are currently in compliance with Subpart W.
3.Groundwater data collected by the Mill from 2021-Q2 2022 and submitted to UDEQ
demonstrate over 300 instances of Ground Water Compliance Limit (GWCL) permit
exceedances in the Mill's Point of Compliance (POC) monitoring wells located throughout the
facility.3
4.Concentrations above GWCLs of multiple contaminants resulted in reported out of compliance
status for the following 11 point of compliance wells during the 202 l-Q2 2022 timeframe: MW-
11, MW-12, MW-24, MW-25, MW-26, MW-27, MW-28, MW-29, MW-30, MW-31, and MW-
32.
5.Despite the permit exceedances and out of compliance wells, UDEQ has indicated that there are
no current violations of the Utah GW Permit, because Energy Fuels is complying with the
additional notification, assessment, and corrective action permit requirements triggered by the
permit exceedances and out of compliance wells.
While the permit exceedances and out of compliance wells raise concerns that the current corrective
actions Energy Fuels is implementing to control known releases may not be adequate, UDEQ regulators
have determined that there are no uncontrolled releases at the facility. For this verification of
acceptability, EPA is relying on the State's determination to support our conclusion that there are no
uncontrolled releases from the facility. We will be working with UDEQ on further review and analysis
of monitoring well data and the protection of groundwater quality at the White Mesa Mill, and these actions will inform future CERCLA OSR acceptability determinations.
Conclusion
EPA has verified the CERCLA OSR Acceptability of the following units at the White Mesa Mill: (1) the
ore pad; (2) the ore processing mill; (3) tailings Cell 3; (4) tailings Cell 4A; (5) the alternate feed 2 Cells 3 and 4A are conventional impoundments subject to radon monitoring under 40 C.F .R. § 61.252( a)( I).
3 See Attachment 1. [Map]
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processing circuit, and (6) related storage pads. Cell 4B remains unacceptable to receive CERCLA waste
until it returns to compliance with 40 C.F.R. § 62.252(b). No other impoundment, cell, pad, or area of
the facility may receive CERCLA waste until Energy Fuels requests and is granted a CERCLA OSR
Acceptability Determination from the EPA.
This letter is being sent to you by both email with a read-receipt requested and by certified U.S. mail in
order to ensure that you receive it promptly. If you have any questions regarding this letter, you may
contact me at [phone] or [e-mail].
cc:
Doug Hansen, UDEQ
Bryce Bird, UDEQ
Shahid Mahmud, OMDP
Sincerely,
• Digitally signed by Pearson,Pearson Janice .Janice1 Date: 2023.01.13 14:00:27 -07'00'
Janice A. Pearson, Manager
RCRA & OPA Enforcement Branch
Enforcement and Compliance Assurance. Division
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