DRC-2020-019942 - 0901a06880dae81f

DRC-2020-019942 195 North 1950 West • Salt Lake City, UT Mailing Address: P.O. Box 144880 • Salt Lake City, UT 84114-4880 Telephone [phone] • Fax [phone] • T.D.D. [phone] www.deq.utah.gov Printed on 100% recycled paper
State of Utah
GARY R. HERBERT Governor SPENCER J. COX Lieutenant Governor
Department of Environmental Quality
L. Scott Baird Executive Director DIVISION OF WASTE MANAGEMENT AND RADIATION CONTROL Ty L. Howard Director

December 17, 2020

Sarah Fields, Program Director Uranium Watch
P.O. Box 1306
Monticello, UT 84535 RE: Response to Uranium Watch’s Objection to Receipt and Processing of Chemours’ Rare Earth Mineral Sands at the White Mesa Uranium Mill (RML UT 1900479)

Dear Ms. Fields: On December 7, 2020 you sent the Division of Waste Management and Radiation Control (Division) an email that contained a letter styled as “Objections” to certain Division determinations. Before
responding to the Objections, the Division would like to offer a few comments about the procedural
context for the Objections. As an initial matter, the Division will treat the Objections in substantially the same manner that the Nuclear Regulatory Commission (NRC) treats allegations under its Allegation Program,1 consistent with the Division’s internal guidance and the Division’s past practice as to allegations under the radiation control program.

Moreover, under Utah state administrative law matters raised in allegations generally, and in the Objections specifically, are reports of violations. Allegations generally and the Objections specifically amount to a direct or indirect request that the Division undertake an enforcement action, either to require additional permitting or licensing, or to enter appropriate administrative orders, or seek civil penalties to
prevent or stop a violation of the Radiation Control Act or the radiation control rules. After reviewing
the Objections in detail, the Division has determined that no violations of the Radiation Control Act have occurred and that the current License held by Energy Fuels Resources, Inc. (EFRI) is adequate to support receipt and processing of the Chemours’ Rare Earth Mineral Sands. As a result, no enforcement action is warranted based on the matters raised in the Objections. The Division appreciates that the
Objections raise issues involving complex regulatory, technical, and legal issues.
(Over)

1 The NRC’s website page describing its Allegation Program may be found here: https://www.nrc.gov/about-
nrc/regulatory/allegations-resp.html
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The following responses are intended to provide appropriate levels of regulatory detail and analysis to support the Division’s conclusions.
Agency Neglect
Allegation 1 “The Division conveniently withheld the June 25 and September 9, 2020, EFRI letters and the
Division’s July 21 RAI and September 11, 2020, letter from the public. The Division did not place this
correspondence on the Department of Environmental Quality’s (DEQ’s) Electronic Document
Management System6 (edocs) in a timely manner. The documents were not placed in edocs until November 20 and 23, after I made an inquiry to the Division staff….”
Division Response
The Department of Environmental Quality (DEQ) and the Division of Waste Management and Radiation Control are committed to transparency. The Division respectfully disagrees with the assertion that it intentionally failed to make certain documents available to the public. The documents in question
were available to you and all other members of the public through the Government Records Access and
Management Act (GRAMA), Utah Code § 63G-2-101 et seq, subject to applicable GRAMA classification schemes and other disclosure limitations relating to the Division’s radiation control program documents under federal law.
As a courtesy to the public that is not required by GRAMA, the DEQ provides a public database where
some but not all DEQ records are published. This database can be accessed through a process called EZ Search. The Division utilizes the EZ Search database to make many of its records available to the public without a GRAMA request. The Division does not guarantee access to all documents via the EZ search database. Internet service outages, the speed of an individual's internet service, power outages and other
causes that could limit access to the EZ Search database are outside the control of the Division.
DEQ is not under statutory requirement to make documents available on EZ Search and does not assert that documents available are comprehensive for any program or facility. The Division’s ability to upload documents to EZ Search is dependent upon staff capacity and technical functionality of the database.

It is a common practice by the Division to respond to requests for records by posting the records to the EZ Search database instead of transmitting the records to the requesting party through other means, which is how we responded to Uranium Watch’s GRAMA request. On November 19, 2020, Uranium Watch made a request by email for the letters dated July 21 and September 11, 2020. This was treated as
a request for records under GRAMA. Division staff responded by email and indicated that the requested
records would be made available to you through DEQ’s EZ Search program that same day. A follow-up email from Uranium Watch on November 19, 2020, in response to the Division staff member indicated that Uranium Watch found those requested letters on EZ Search. Therefore, the Division provided the requested documents to Uranium Watch in accordance with State of Utah law.

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Allegation 2 “…The public was not given an opportunity to conduct its own investigation into this proposal and
provide comments before the Chemours licensed rare earth mineral sands were shipped and test-
processed at the White Mesa Mill.” Division Response
It is reasonable to treat the matters raised in the Objections as a public report of alleged violations of the
Radiation Control Act, applicable rules, and the EFRI License. Public notice and comment do not apply to Division enforcement matters. Moreover, to the extent that the Objections suggest that the Division should have undertaken a licensing
action with respect to the Chemours ore, for the reasons described more fully in other parts of this letter,
no licensing action was required for the Chemours ore. Utah Admin. Code R313-17-2(1) does state that the Director shall give public notice and provide an opportunity to comment on proposed major licensing actions. However, the Division’s concurrence that any given feed material destined for the White Mesa Mill is a natural ore does not require licensing action under Utah Admin. Code R313-17-
2(1). Therefore, the Division is not required to provide an opportunity for public comment on the natural
uranium ore because receipt of this material is already allowed under the current License. Allegation 3 and Associated Questions
“EFRI conveniently failed to mention that the monazite sands that they intended to receive and process
at the White Mesa Mill were licensed under a State of Georgia Radioactive Materials License as
“source material.” NRC Regulation at 10 C.F.R. § 40.9, applicable to EFRI, requires that “(a) Information provided to the Commission by an applicant for a license or by a licensee or information required by statute or by the Commission's regulations, orders, or license conditions to be maintained
by the applicant or the licensee shall be complete and accurate in all material respects.”
Division Response As stated above in our response to Allegation #2, the material sent from Chemours facility in Georgia is
natural ore that contains uranium. Ore is not regulated under the Atomic Energy Act (AEA). The State
of Georgia issued a Naturally Occurring Radioactive Materials (NORM) License (GA 1678-1) to the Chemours facility under the State of Georgia’s regulatory framework. The license type category is documented at License Condition 13, which states:
“In accordance with DNR Board Policy adopted June 25, 2013 the fees associated with this license fee
category, Industrial (other) (NORM)(Gauge Service) (C.13.b), are: Nominal Annual Fee $5,513.00” This Georgia-specific NORM license is not a source material license under federal law. At the following link to the State of Georgia’s Radioactive Materials Licensing Guides it shows that NORM licenses
issued by the State of Georgia are not affiliated with the Nuclear Regulatory Commission (NRC).
(https://epd.georgia.gov/forms-permits/air-protection-branch-forms-permits/radioactive-materials-forms/apply-radioactive-2)
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Please see the discussion on the Georgia Radioactive Material License below for additional response. The Georgia NORM licensing program is more stringent than federal law, as discussed more below.
It is a state license that would not be required under Utah’s NRC-based program because it is more
stringent. The fact that Georgia licenses the Chemours ore under its state program does not change the legal status of the Chemours ore under Utah and the NRC-based federal law Utah is required to follow. 1. “The Division conveniently failed to ask EFRI an obvious question: Are the monazite sands
produced by the Chemours facilities in Georgia, which EFRI intends to receive and process,
materials licensed under the Atomic Energy Act?” Division Response
NORM facilities are not licensed under the AEA or the NRC. Therefore, the monazite sands are not
licensed material but are considered an ore because they contain uranium and thorium in concentration above 0.05% by weight. The full legal definition of source material in discussion on the White Mesa Mill is provided below. Ore is not regulated by NRC regulations and as stated in Uranium Watch’s letter dated December 7, 2020, ore is exempt from regulation by the AEA. Therefore, the monazite sands are
not a licensed material. Please see the discussion on the Georgia Radioactive Material License below for
additional response. 2. “It appears that the Division conveniently failed to contact a fellow Nuclear Regulatory Commission (NRC) Agreement State to inquire about a possible radioactive materials license associated with the
Chemours monazite sands operation in Georgia.”
Division Response The State of Georgia’s issued NORM license for the Chemours facility is not relevant in determining if
the monazite sands coming from Chemours is naturally occurring ore. Please see the discussion on the
Georgia Radioactive Material License and the White Mesa Mill below. In addition to these allegations Uranium Watch made additional assertions regarding EFRI’s White Mesa Uranium Mill for receiving and processing the Chemours Rare Earth Mineral Sands (Chemours
ore). The Division’s responses to those assertions are below. Georgia Radioactive Materials License The State of Georgia has issued a NORM License (GA 1678-1) for the approved use of “Mechanical
processing, packaging and storage pending transfer or disposal” for the Chemours ore which contain as
per the State of Georgia’s NORM license natural uranium and thorium. However, the licensing of NORM facilities (like mines) is a State of Georgia requirement, and licensing NORM facilities is not required under the Atomic Energy Act (AEA) or Nuclear Regulatory Commission (NRC) regulation.
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In other words, if the Chemours facility were located in Utah the Division would not require licensing of the operation generating the Chemours ore. The fact that Georgia has issued a NORM License is potentially confusing, but it is a state-specific requirement that does not arise from federal law. The
Georgia program appears to be more stringent than applicable federal law in this instance. By contrast,
the Utah Radiation Control Act does not allow the Waste Management and Radiation Control Board (Board) to adopt rules that are more stringent than federal law unless the Board makes a determination that the more stringent rule is necessary to protect human health or the environment. See Utah Code § 19-3-104(7)-(8). The Board has adopted no such rule requiring the licensing of NORM material in Utah.

Finally, even if NORM facilities were licensed under the AEA and NRC, EFRI could still accept and process the Chemours ore through a license-to-license transfer as per Utah Admin. Code R313-19-41(1)(d) (See also 10CFR40.51(c)) without any additional licensing action or approval from the Division. A license-to-license transfer is within the authority of the existing license. However, a license-
to-license transfer determination is not applicable or necessary here because the Chemours ore, being
NORM, is not a licensed material under Utah or applicable NRC-based federal law. Heritage Monazite Sands
Uranium Watch states that the Chemours ore is the same as the monazite sands that were approved as an
alternate feed by the NRC during the Heritage Mineral Inc. (HMI) application review (former License Condition 10.16) on December 29, 2000. This claim is not correct, although it is understandable that the Objection would raise the issue, as both matters involve a material described as monazite sand. The HMI application clearly states that the “Uranium Material” in the HMI application was previously processed
for the extraction of titanium and zircon. The prior processing for recovery of other minerals from the
HMI “Uranium Material” rendered the HMI material a federally licensed material. Hence, it was necessary to go through an alternate feed licensing action for the HMI Material. By contrast, the Chemours ore has not been processed for any other metal prior to being transferred to the White Mesa Uranium Mill. Any additional mineral recovery will be done at the White Mesa Uranium Mill along
with the uranium. Since the monazite sand is a naturally occurring uranium ore (see the legal definitions
in discussion on the White Mesa Mill below) there is no need to approve it through a licensing action by the Division. If the Chemours ore had been processed for recovery of metals prior to shipment to the White Mesa Mill, it would be necessary to go through an alternate feed licensing amendment just as the NRC did with the HMI Uranium Material.
White Mesa Mill As stated above, the State of Georgia’s NORM license is not relevant in determining if the Chemours ore is a naturally occurring ore or if the White Mesa Uranium Mill can accept and process the ore for its
uranium content. The Chemours ore is legally defined as unrefined and unprocessed ore, a form of
NORM, and can be processed by the White Mesa Uranium Mill without any NRC-based licensing action or approval by the Division. Please see the following for legal definitions.
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R313-12-3 Definitions: "Byproduct material" means: (b) the tailings or wastes produced by the extraction or concentration of
uranium or thorium from any ore processed primarily for its source material content, including discrete
surface wastes resulting from uranium solution extraction processes. …. (See also 10CFR40(4)) "Source material" means: (b) ores that contain by weight one-twentieth of one percent (0.05 percent), or more of, uranium, thorium, or any combination of uranium and thorium. …(See also 10CFR40(4))

"Source material milling" means: any activity that results in the production of byproduct material as defined by (b) of "byproduct material". "Unrefined and unprocessed ore" means: ore in its natural form prior to any processing, such as
grinding, roasting or beneficiating, or refining. Processing does not include sieving or encapsulation of
ore or preparation of samples for laboratory analysis. (See also 10CFR40(4)) These definitions are supported as being accurate under the State of Georgia’s NORM (GA 1678-1) in the “Authorized Use” section, where it states that the authorized use for the Chemours’ facility is
“Mechanical processing (aka sieving), packaging and storage pending transfer or disposal.” The
Chemours ore has not been processed by solution extraction, grinding, roasting or beneficiating, or refining because the Chemours facility is not licensed by the State of Georgia to process the ore for its source material.
From the information provided by EFRI in their letters dated July 21 and September 11, 2020 and
confirmed by the information in the State of Georgia’s NORM license provided by Uranium Watch’s submittal dated December 7, 2020, it is still the conclusion of the Division that the Chemours ore is a naturally occurring ore by legal definition and the White Mesa Uranium Mill can accept and process the Chemours ore without any licensing action or approval from the Division.
Conclusion
• Based on the foregoing, the Division has concluded that Uranium Watch’s Objections, while
understandable, are incorrect. To summarize: The Division disagrees that it purposely failed to
make certain letters publicly available as they were available through GRAMA.
• The Division disagrees with Uranium Watch that the Division was neglectful or erred when it concurred with EFRI that the Chemours material is a naturally occurring ore.
• The Chemours ore, by legal definition, is unrefined and unprocessed ore and can be processed by the White Mesa Uranium Mill without any licensing action. The Division has concluded that no enforcement actions are warranted based on the matters raised in the Objections. The Division also notes that enforcement matters are vested in the Director’s enforcement
discretion. See Utah Admin. Code R305-7-110 and R305-7-304.
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Finally, under the Division’s policy regarding allegations, allegations are confidential. However, the Objections suggest that the Objections and any Division response should be made public. The Division has declined to make these allegations public based on NRC and Division guidance regarding how
allegations are to be handled. However, this policy is designed to protect persons like Uranium Watch
that submit allegations, and Uranium Watch is free to release any correspondence to the public. If you have any questions, please contact Ryan Johnson by email at [e-mail] or by phone at [phone].

Sincerely,
Ty L. Howard, Director
Division of Waste Management and Radiation Control TLH/RMJ/as
c: Bret Randall, Utah Attorney General’s Office
David Frydenlund, Senior Vice President and General Counsel, Energy Fuels Resources, Inc. Logan Shumway, Plant Manager, White Mesa Uranium Mill, Energy Fuels Resources, Inc.