DRC-2004-001101 - 0901a068809b24cf

o**Qor**
Govemor
Lr'rg)\D,
GAYLEF. MCKEACHNIE
Lieutenant Govemor
State of Utah
Department of
Environmental QualitY
Dianne R. Nielson, Ph.D.
Executfue Drector
DIVISION OF WATER QUALITY
Walter L. Baker' P.E'
Acting Director
\ilater Quality Board
Ray M. Child, ActitgChair
Robert G. Adams
David F. Echols
Neil K. Kochenour
Dianne R' Nielson
JaY Ivan Olsen
Joe Piccolo
Ronald C' Sims
Douglas E. ThomPson
J. Ann Wechsler
Walter L. Baker
Ac ting Exe cutiv e Se cretary
August 6,2004
Mr. David C. FrYdenlund
International Uranium Corporation
Independen ce Plaza,Suite 950
1050 Seventeenth Street
Denver, CO 80265
SUBJECT: Ground water Quality Protection (R317-6) Rule changes
Associated with the Professional Geologist Licensing Act Rules (uAC Rl56-
76)
Dear Mr. Frydenlund:
The purpose of this letter is to inform you of recen_t-rule changes that have
been'made to the Administrative Rules for Ground Water Quality Protection'
section R3l7-6 of the Utah Administrative Code'
The water Quality Board adopted rule changes associated with the
Professional Geologist Licensing Act Rules (uAC R156-76) on July 8,2004'
The rule changes in-clude the definition of professional g-eologist and engine€r
(R317-6-1.31;d 1.32), and the requirement that the following submittals be
performed under the direction, and bear the seal, of a professional geologist
or engineer
o Petitions for aquifer classification or reclassification (R317-6'5'2'B)
oGroundwaterdischargepermitapplications(R317-6-6.3.R)
o Ground water discharge permit renewals with significant changes to
the original Permit (R317-6-6'7)
o Ground *ui., Contaminant Investigations and Corrective Action
Plans (R3 l7-6-6. I 5.D.3)
Please be aware of these new rule changes and comply with them for all
future submittals.
288Norttr1460West.PoBoxl4487o.Saltl.akeCity,UT84|14-4870.phone[phone].fax[phone]
T.D.D. (801 ) 5364414' www'deq'utah' gov
lltnh!
Where ideas connect^
Page2
If you have any questions regarding this letter, please contact our office at [phone]'
Thank you for your cooperation in this matter'
UTAH WATER QUALITY BOARD
k, Co-Executive Secretary
DLF/BH:bh
7/rytE/
Michael O. LeavittGovcmor
Dianne R. Nielson, Ph.D.Excutive Dirctor
William J. SinclairDir.cbr
DEPARTMENT OF ENVIRONMENTAL QUALITY
DIVISION OF RADIATION CONTROL
168 North 1950 West
P.O. Box 144850
salt Lake city, utah 84114-4850
(80l) s36-4250
[phone] Fax
(8or ) 536-4414 T.D.D.
www.deq.state.ut.us Web
March 16, 1999
EarlHoellen, CEO
International Uranium Corporation
Independen ce Plaza, Suite 950
I 050 Seventeenth Street
Denver, CO 80265
Dear Mr. Hoellen:
This correspondence is a follow-uP to -oyr m-eeting .of Y1*h '1,1???.1"f^t^1T]:,s^-th?-:
issue of a
ffi;ffiiii'iC."o;;;;;[:'in'tt;.M;i; ftm'.ATi-':l'-i1",11]:,1'::::::::*':T *['il;il ilr;;,tJir[-rCjp'"r"nted an option for consideratiol.lo resll_v:].1'^t^"1":g:f:f*ti::;
i'r['tu,6;."u;["1u1;;;;l';;rk';tth-i# t.su't'.nt to identifi areas or 9:ry:T with the current
n-^^ aL^-^;;i,#ffi;ilffi;;.e.u'n u"a.,-t-h,'^Nu'iiulneeul{g.c:lt','"X",-S:]i':"'i'r';.:L".:,::"::
ilr*;, ;.;; ij;;;til and resolved, IUC would req-uest that the NRC incorporate those issues as
enforceable conditions within the NRC license'
The Department counter proposed that IUC should submit the *!T11":i::::,:1?,::":oj::}:
Jil,',,Ioi,lii'il;,H#;;'i"it yitti" T.ls.:* ;r::.:'l'.T:P-IPP:TT::I^:::::,tii"o":*,1
ffiffi;;il;i;il;;ili;r";ih; wnii".u.'.Mirr rorrug::,T:TT:',T 9l'f311:,Y:i]:;11'":llil dffi;;#;:;"i;;;;;il;,r";;oiir,. irru.'discussedattf,rvrlll,_1f?:::ylf.o:::'"::1."1
;i n,#il;;;ffi.rlunJ*ut., dischargi permit for IU.c t"1II1.-Y: Ile Department and rUC agreed that
"Lirfr".pi.ty *ur-giuing up any legal rights as a result of this activity.
IUC agreed to send a draft letter to the Department which summarized the agreement and indicated a
proposed time frame ioiruUrirrion of infonnation. This would follow a review of the information needs
for a groundwater discharge permit uppticution Uy IUC. We look forward to the draft letter and towards
eventual resolution of this issue.
Fred Nelson,{Jtah Attorney General's Office
Dianne R. Nielson, Executive Director, UDEQ
Don Ostler, Director, Division of Water Quality
Larry Mize, Division of Water Quality
Rob Herbert, Division of Radiation Control
David Bird, Parsons, Behle, and Latimer
Charles HackneY, NRC Region IV
Milt Lammering, EPA Region VIII
lvtichael O. l.eevia
Govcrnttr
Dianne R. Nielson, Plt.D.
Erccutivc Dircct(lr
Williarn J. Sinclair
Dircct('r
DEPARTMENT OF ENVIRONMENTAL QUALITY
DTVISION OF RADTATION CONTROL
168 Nonh [950 West
P.O. Box 144850
Salt [.ake City, Utah 84t l4-4850
(80r) s364250
(801) 5334097 Frtx
(8ol) 5364414 T.D.D.
www.deq.state.ut.us Web
March 1999
Honorable Louis Caldera
Secretary of the ArmY
101 Army Pentagon
Washington, D.C. 203 10-0101
Dear Secretary Caldera:
The purpose of this colrespondence is- to notify you of an issue of concern to the State of Utah
regarding management of waste materials Uy ttre
"U. S' Army Corps of Engineers under the FUSRAP
program. Contracts have been awarded Ui the Corps to International Uranium Corporation (IUC)
which operates White Mesa Uranium MiU n"* Blanding, Utah' ruC applied for a license
amendment through the Nuclear Regulatory commission (NRC) to receive waste materials from
these sites as alternate feed materiai. Recently, the State received a copy of another amendment
request to the NRC which would allow IUC to receive, process, and dispose of over 1'000'000 cubic
yaras of waste from the St. Louis FUSRAP site'
The State of Utah has objected to.NRC amendments to the IUC White Mesa Radioactive Materials
License to receive, pro.""rr, and dispose of Ashland tr and Ashland I wastes from Tonawanda' New
york. The State has shown through its firings with the NRC that the recipient of alternate feed
materials may collect a disproportionate amount of revenue from disposing of the waste' while
failing to demonstrate thatihe material is being processed primarily for the recovery of source
material. The State believes that such action uv itre uranium mill constitutes commercial waste
disposal or sham recycling. rn9 \nc Guidance was intended to prevent this from occurring'
However, interpretation by the NRC staff has touted just the opposite, th.at processing of alternate
feed material irrespective of source material content ii a legitimate recycling activity' The State of
utah is appealing the NRC administrative ruling to the fuiltommission, so they wilr recognize and
act upon this major PolicY issue'
It should be noted that utah has supported processing by the uranium milt of material which could
be shown to be processed primarily for the recorery oi roor". material. ruc's processing of the
cotter concentrates (from the Manhattan project), while a controversial policy decision, is a good
example of the Utah's commitment to legitimate reprocessing. Recognize also that' in Utah'
operation of a commercial radioactive or hazardous waste disposal facility requires specific siting
March 15, 1999
Page 2
and licensing approvals, including county, legislative, and gubernatorial approval' The White Mesa
Mill is not licensed to operate as a commercial waste disposal facility'
Additionally, the State of Utah has requested a groundwater discharge permit from IUC' The State
and IUC are attempting to reach agreement on ground water sampling' However' to date' IUC has
refused to comply with the State's request for thi groundwater discharge permit. The State of Utah
believes a State groundwater permit is n"..rrury to provide an appropriate level of protection for
waters of the State, whether the facility operates as a uranium mill or a commercial waste disposal
facility.
I appreciate your recognition of these important regulatory
dircuss the implications of the Corps action in more detail,
EL
Charles A. HackneY, NRC Region fV
Milt Lammering, EPA Region VItr
Senator Lane Beattie
Representative MartY StePhens
Ted Stewart, Governor's Office
Dianne R. Nielson, Utah Dept.of Environmental Quality
Joanne Neumann, Governor's Washington Office
Earl Hoellen, International Uranium Corporation
and policy problems. If You wish to
please contact me.
cc:
William J. Sincl
ALSO SENT
Honorable Louis Caldera
Secretary of the ArmY
l0l Army Pentagon
Washington, D.C. 203 10-0101
Honorable William Richardson
Secretary of the Department of Energy
U.S. Department of Energy, Headquarters
Forrestal Building
I 000 Independence Avenue, S.W'
Washington, D.C.
John P. Cahill, Commissioner
NY Dept. of Environmental Conservation
50 Wolf Road
Albany, NY
Steve Mahfood, Director
MO Department of Natural Resources
205 Jefferson Street
Jefferson CitY, MO
David J. ConboY, P.E.
Environmental Engineer
Department of the ArmY
Buffalo District, Corps of Engineers
1776 Niagara Street
Buffalo, N.Y.
Jacelyn Y. Harris
Purchasing Manager, Baltimore TERC
ICF Kaiser
Environmental and Facilities Management Group
ICF Kaisers Engineers lnc
2601 Witlard Road, Suite 105
Richmond, VA
The Honorable Robert Bennett
United States Senate
431 Dirksen Senate Office Bldg
Washington, D.C.
The Honorable Orrin Hatch
United States Senate
131 Russell Bldg.
Washington, D.C.
The Honorable James V. Hansen
United States Representative
2466Rayburn Building
Washington, D.C.
The Honorable Merrill Cook
United States Representative
143 1 Longworth Building
Washington, D.C.
The Honorable Chris Cannon
United States Representative
118 Cannon House Office Bldg.
Washington, D.C.
Donald Mackenzie
U.S. Department of EnergY
Office of Environmental Restoration
Cloverleaf Building
19901 Germantown Road, FioomZlZ2
Germantown, MD
Mary E. Clark, Ph.D., Assistant Director
Office of Radiation and Indoor Air
Environmental Protection AgencY
401 M Street S.W.
Washington, D.C.
Paul H. Lohaus, Director
Office of State Programs
Nuclear Regulatory Commission
Washington, D.C.
8U8eq?8g8tlis
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PBINIE!]
oo7607t4qa
STATE OF UTAH
P.O. BOX - 16690
SALT LAKE CITY, UTAH
Ground Water Quality
In compliance wittr ttre provisions ofthe Utah Water Pollution
1953, as amended,
Plateau
Shootaring Ca
WaterQu,ality
N 110"4
b _, tggg.
Permit No.: UGWI70003
Chapter 5, Utatr Code Annotated
ing Canyon Uranium Processing Facility located
in accordance with conditions set forth herein.
I expire at midnight, March
DrvrsroN oF WATER QUALTTY
DEPARTMENT OF ENVIRONMENTAL QU
is granted a
at latitude 37o
This permit
This permit and
ty Board
It.
TABLE OF CONTENTS PAGE
I.CONSTRUCTIONPERMIT .......I
SPECIFICCONDITIONS.... ......4
A. GroundWaterClassification .......4
B. BackgroundGroundWaterQuality .......4
C. GroundWaterProtectionlevels .......4
1. Protection Levels for Compliance Monitoring Wells
Table I - Ground Water Compliance Monitoring W
f .... .......4
Protection Levels2. Compliance Determination Method . . .
D.Best Available Technology
l. BAT Construction Design
2. BAT Perforrnance Standards3. Leakage Detection Fluids . . . . . . . .4. SpillContainment .....
5. Future Construction . . .
E.Comoliance Monitorins Reouirements . . J. . . . :
l. Ground Water Monitoring
2- BAT Perforrnance
3. Hydrogeologic Monitori
F.Non-Comoliance Status . . . .l. Probable Out-of-of Ground Water
Protection Limi
Out-of-Complj Exceedance of Permit Ground :
Water
Out-of Failure To Maintain Best Available
T
Report ......12
ingReport: .......13
NotificationReport: ...14Refort ..... 14
and
6
,6
7
,7
,9
l0
l0
l0
ll
t2
t2
t4
7.
8.
9.
10.
DamCertification .......14
MonitoringPlan. ....14
of Additional Compliance Monitoring Wells . . .14
WaterMonitoringQualityAssurancePlan .......15
of Completion of Phases IA and IB Tailings Impoundment Construction
andCommencementofOperations... .......15
InfiltrationModelingReport .....15
AcceleratedBackgroundGroundWaterMonitoringReport ...... 15
FinalDecommissioningandReclamationPlan ......16
ExistingClayliner/TailingsStudy .....16
DutytoReapply ....16
III.MONITORING, RECORDING AND REPORTING REQUI REMENTSA. Representative Sanipling.'B. AnalyticalProcedures. .....17C. Penalties for Tampering.,17D. Reporting of Monitoring ResultsE. Compliance SchedulesF. Additional Monitoring b), the PermitteeG. Records ContentsH. Retention of RecordsI. Twenty-four Hour Notice of Noncompliance Reporting . . .
Other Noncompliance Reporting
IV.COMPLIANCE RESPONSIBILITIES
A. Dutv to Comolv
B.
C.
D.
E.
F.
Dutv to Mitipate
Proper Operation and Maintenance
Affirmative Defense
GENERAL REQUIREMENTS
A. Planned Changes
t7
t7
t7
t7
t7
t7
18
l8
l8
l8
20
20
20
20
20
20
20
22
22
22
22
22
22
22
22
22
23
23
24
24
24
24
24
V.
Transfers
State Laws
o
Part I
Permit No. UGWI70003
CONSTRUCTION PERMIT
The project manral, known as the "Tailings lr4anagement Plan", submitted and revised in insallrnents between
October l99TandDecember 1998,complywrththeUtahWaterQnlityRules, (R317-3, UtahAdministrative
Code). A Construction Permit is hereby issued, subject to the following condr_tions:
l. Any revisions or modifications to the approved engineering
I
ions must be
submitted to the Division of lVater Quality (the and approval, before
construction or implementation thereof,
2.The approvedfacilities must not be placed i hJinal
inspection, and has issuedwritten author servrce.
TIrc permittee will uecute the compliance
outlined in Part II.H of this permit.
with the compliance schedule
This construction permit will expire one year permit unless substantial
progress is made in constructing the and specifications will
have to be resubmitted and the does not relieve the permittee
in any way of the obligations to requirements, or those stated in
permits issued under applicable waffquali
Mill Process Summary
from sandstone ore ofthe Salt Wash Memberof
in stong sulfuric acid solutions and are leached
leach process. After the ore is ground to sand-sized particles, it is
bgrultiple-tank sulfuric acid teactring system. Afteileaching, the
(CCD) tanks wtrere most ofthe soluble uranium is recovered
I system, tlre solids are discharged as waste material to tlre tailings
liquid is pumped to the first-stage leaching tanks. A thickener
separates the uranium-bearing solution from the solids. The overflow
tluough a clarifier and sand filters to remove the suspended solids. The
iese two processes return to the leaching system and the filtered liquid is
fterosene) extraction system. In the solvent extaction system, the pregnant
a series of stages in which the uranium is tansfened from the aqueous phase to an
is stipped from the solvent by an ammonium sulfate solution. Ammonia is added to
lution to precipitate the uranium as yellowcake.
A series
the Mo{
fronffi
slurry is
withttre
fromthethi
Part I
PermitNo. UGWl70003
Tailings Impoundment Design
The tailings impoundment is located approximately 2,000 feet southwest of the uranium mill within a
nanyal driinagebasin enclosed on the downsfieam end by an engineered dam. The impoundment has been
designed for a net capacity of approximately 2,600 acre-feet which is sufficient to contain tailingst- ' .- --- ^^^^:--
geneiated during an estimated operating life of 15 years. Tailings from the ore processmg
operation will be discharged in a slurry form of about 45 percent ght to the tailings
4-inchpipe will beimpoundment through a 4-inch diameter high density
fromtlre4-inchrrpportta Uy an I 8-inchhalf-round HDPE pipe which will
pipe and will conduct the leaked liquids to the i
A five-part composite bottom liner system will be
consist of a compacted clay base overlain by two
system. The drainage net will bedetection drainage net, and topped by a process
leakage through the sYsteminstalled between the two HDPE liners, and it will have
leakage rate forthe toPat a flow rate of greater than 200 gallons per acre per
disposal cell; based uPonliner is that rate at which liquid may drain into any
cell area. Ifthatrate isthe gallons per day entering the sump *d dX
T) Performance Monitoringexceeded, the contingency plans detailed in
Plan will be implemented.
Thetailings depository will be di areas (Phases) by an existing cross
valley berm and a second cross tlre main tailings dam andthe existing
cross-valley berm. Each i 'Aria.a into individual zonesbythe floordrain
system arfd the size of onthe final grading ofthe existing surface.
membrane li
will
leak
There
tned
atotal ffiailingt impoundment. There will be three zones in
6. rnuin t"ilings dam and the new cross-valley bernL and
phase IC impoundment cells. The zones will be formed by the
Ur"to* the liner system at the boundaries between all cells (Seetwo
install
Section
zone'
betw,een the zones will force any drainage to remain within that
There will be atotal of seven leak detection sumps, one dedicated
[" a*i"ug" net between the HDPE liners will cover the entire liner
will conviy leakage into a drainage sump to be installed below the
liner of each
each zone withi
a
Part I
Permit No. UGWl70003
The design specifications for the five-part composite bottom liner system with leak detection will be as
follows from top to bottom:
slurried tailings waste;
a3-inchcomrgatedadvanceddrainagesystem(ADS)HDPEpipeleachatecollectionsysteminstalled
within a sand filter bed; .6
a 6Gmilimeter HDPE primary liner with a maximum allowable of200gallonsper
acre ofdisposal cell area, per day;
HDPE leak detection collection sumps for leak lond.
e.
f.
ob'
h.
a geonet leak detection layer;
a 60-millimeter HDPE secondary Iiner to be
at least 12 inches ofcompacted clay with a
native soil and/orbedrockwill be graded,
side slope will be 3H:lV.
oflxl
forthe basal
The leak detection collection sumps will be double tined encasedincompted
clay and filled with clean pea gravel ranging in {to protect against
loading. Access to tlre sumps will be provided , HDPE pipes. One oftlrese
pipes will be used forinsertionofapump will serve as a spare access
pipe. An additional four-inch diameter level contols for pump and
signal light operation. The bottom to protect the bottom liner of the
sumps fromdamage. Pumpswill switches and signal lights to ensure that
the primary HDPE liner is functi deeper than the maximum allowable
hydraulic head forthe sump, tffivi light will illuminate. Accumulated liquids
backto or to local evaporation ponds. Any evaporation
composite double HDPE liner system with leak
over the double HDPE liner system within a sand filter
bfcomrgated ADS piping attached together into one continuous
Stirgr water into sumps. There will be a separate sump for each of the
These srmps will be located wittrin each leak detection system sump
Any leakage from the leachate collection system will still be containd
The liquidwill bepumpedbackto the tailings cells, the plantmilling
pond located withinthe footprintofthe composite double-HDpE liner
built during operations. All new tailings facility sumps and tailings material
to be double-lined or are already equipped with secondary containment systems.
available for examination and inspections to be conducted by the Division, or for resolution of any
conflicts or discrepancies that may arise during construction or installation.
cells,
the fo
willbe
A leachatd
bed. The
SPECIFIC CONDITIONS
A. Ground Water Classification
defined in UAC R3t7-6-2.
B. Background Ground Water Ouality
Background ground water quality data are hble 1.
Table I are based on the statistical mean of ground
March 1998. Additional background forwell$lll be
monitoring report outlined in part II.H.7 of
Ground Water Protection Levels
As stipulated in UAC R317-64, Class nd wa
extent feasible from degradation by
to ground water such as the taili
l.GrourdWater
qualityat
PartII. The
t,,
Permit No. UGWI70003
to the maximum
ld probably discharge
Canyon uranium mill.
Monitoring Wells - ground water
the GWPLs provided in Table I of
ground waterand were defined as follows
In accordance with UAC R3l7-6-3, ground water at the existing monitoring wells isclassified as Class IA, Pristine Ground Water, based upon the grornd water standards as
C.
(uAC R3l7
FY not exceed the lesser of l.l times the background
per liter (mg/l);
minant present in a detectable amount as a background
not exceed the greater of l. I times ttre background condration
value ofthe ground water quality standard as specified in Table
Acbntaminantnotpresentinadetectable amountasabackground concenhationmay
not exceed the greater of 0.1 times the value of the ground water quality stundar4
or the limit of detection as specifred in Table l.
t,,
Permit No. UGWI70003
Table I
Site-Wide Groundwater Compliance Monitoring Well Background and Protection Levels
(c) FinatEPA 40 CFR 192 maximum contaminant level (MCL).
(d) Final EPA Secondary Drinking Water maximum contaminant level (MCL)
(e) Proposed EPA Drinking Water maximum contaminant level (MCL).
lD lnsuflicientdata
NA Not applicable
Water Quality Data
Site-Wide
Ground Water Background
Level
Paremeters
(mg/l)
Ground Water
Quality
Standard Mean Stanaaffiil.fu*4ffi
Arsenic 0.0s 0.005 d Y o.or*[o.oo6t'r 7
Barium 2.0 0.28 I pYx Btt'l
Cadmium 0.005 o.ool ffio_3flo.ooz x Y
Chromium 0.1 0.006 re Lo.olo T.-otoot
Copper 1.3 0.006 I N.0.130G)
Lead 0.015 0.002 v Kffiry 0.003(.)
Mercury 0.002 .sd x 0.0014(.)
Molybdenum 0.lc)G h.off 0.04(.)
Selenium 0.05 r 0.09'q ffos 0.0050)
Silver 0.1 I gpr 1 ffiP"o.ooz 0.0loci
Zinc s.o ^ffi 1ff0.0+ A 0.07 0.50(b)
Ammonia as N 3o.o ffi ffitD^#ID 3.0G)
Chloride A 2*.YlWz+
4.0 25.0(b)
Fluoridffi.-.%\0.15 0.400)
Nitrate%
NitraterNitrffi
l0.m.3.46 2.82 3.90(.)
10.0 \ID ID l.0G)
Sutfate *ffi. \sZ 22.3 30.3 50.0G)
TDS JPr I kr 237 128 261(.)
n$itsl 8.03 0.60 6.5-8.5
;ffdionuclides (pCifl)v
dium-226 D Iffi;-D-P
t5.o l.0l 4.10 NA
30.0G)2.81 3.90 NA
fiffiased on l.l times the mcan background conccnration.
Kvel based on 0.1 times the Ground Water quality Standard.
40 CFR 192 maximum contaminant level (MCL).
il,,
PermitNo. UGWI70003
2. Compliance Determination tUetfroa - Compliance with ground water protection levels shall be
accomplished using compliance monitoring wells. Iffunue monitoring data indicate an exceedance
ofprotection levels, compliance status will be determined in accordance with Part II.F, below,
and ifnecessary, reference to the mettrods described in the EPA Interim Final Guidance Document
tttledStatistical Analysis of Ground Water Monitoring Data at RCM Facilities (February 1989).
Subsequent updates of this document shall be utilized after Executive Secretary approval.
D. Best Available Technology (BAT)
l. BAT Construction Design Standards - the facili no-discharge
technology through the use of a clay liner and double-liner
with leak detection, and an overlying leachate and )BAT construction and operation standards of thi to the tai
The tailings impoundment shall be constructed with the a
Specifications and the conditions of the
2. BAT Performance Standards - the maximum for the primary HDPE
liner is 200 gallons per acre per day. The n45i ic head imposed on
the secondary HDPE liner is three
detection sump.
each individual leak
J.Leakage Detection Fluids -lected detection systems shall be
contained and recycled milli pumped to an active tailings cell or
an evaporation pond nthe composite double-HDPE bottom liner
system with leak detecti uid detection system shall be monitored
with 2 belo
for new construction, maintain and construct
ling facilities with a spill containment system that shall:
from any contact with the ground surface outside of the
of ground water; and
or leakage to the composite double-HDPE bottom lined tailings
come into contact with the ground surface or ground water that causes
the potential to cause pollution to waters of the state shall be reported in
with Pert III.I of this permit.
5. Future Construction - new construction of tailings impoundment cells shall be according to
the design and methods approved in this permit.
a) Authorized Construction - the tailings impoundment with a clay liner and composite
double-HDPE bottom liner system with leak detection is authorized to be constructed
#,,
'PermitNo. UGWI70003
in three phases for a total surface area of approximately 60 acres. Phase IA and Phase
IB of construction will be the impoundment area between the main dam and the cross-
valley berm, and Phase IC of construction will be the impoundment area above the
cross-valley berm. Any alteration of the approved plans and specifications for the
tailings impoundment will require a construction permit and ground water permit
modification and may be subject to additional ground water and BAT performance
monitoring requirements. Any alteration must also meet current BAffiquirements.
The construction of any alteration cannot commence wi by the
Executive Secretary.
b) Advance Notification of Seasonal bmit a
construction plan on a quarterly basis
quarter.
c) Monitoring Well Construction - new moni construction shall conform to
AGuide to the SelectionofMaterialsfor Monj (1983) andRCP,I
Groundwat er Monitoring Te chnic al (1986). PVCcasing,or
other suitable material when approved shall be required on
all new wells constructed for the
Compliance Monitoring Requirements
1. Ground Water Monitoring
a) Ground-Water M Plan - All water quality monitoring to
conducted in accordance with the general
t requirements of the Shootaring Canyon
Quality Assurance Plan required in Part
Executive Secretary approval, this plan will become an
it and will be contained in the Shootaring Canyon
Tailings Management Plan.
ng Wells - for the purposes of this permit, the permiuee shall
wells identified below. Piezometers (PZ wells) are for water
only.
in Upper Low-Permeability Entrada will include RMl0, RMI l, RMl2,
I 3, RM I 4, and piezometers PZ4, PZ5, and PZ6.
Wells in Lower Entrada will include RMl, RM2R, RM3, RM4, RM15, RM16
(to be installed adjacent to RMl l), and RM17 (to be installed adjacent to RMl3).
Well RM2 will be replaced with future well RM2R which will be monitored to
determine if groundwater is being impacted by the uranium ore stockpiles; the
rest of the wells will monitor potential impacts from the tailings impoundment.
.Water
t,,
Permit No. UGWI70003
c) Protection of Monitoring Well Network - all compliance monitoring wells must be
protected from damage due to surface vehicular traffic or contamination due to surface
spills. They shall be maintained in full operational condition for the life of this Permit.
Any well that becomes damaged beyond repair or is rendered unusable for any reason
will be replaced by the permittee within 90 days or as directed by the Executive
Secretary.
d) Ground Water Monitoring\Frequency Requirements
Ground Water Level Measurements -I be measured
quarterly for all existing monitoring
with accelerated or semi-annual
any collection of ground water
a permanent single reference point
surface casing. Measurements will
ated on the
nearest 0.01 foot.
well or
ii.Ground Water Quality Sampling conduct ground water
quality sampling for all compli with the
Ground-Water Monitoring been approved by the
Executive Secretary.
permittee will implement an
program to supplement the existing
ng and analyzing quarterly samples
- after completion of the accelerated
program, and subsequent approval by the Executive
water quality sampling will be rela:<ed to a semi-annual
iance monitoring.
uirements
ified Laboratories - analysis of any ground water sample shall
by laboratories certified by the Utah State Health Laboratory.
water Analytical Methods - methods used to anaryze ground water
must comply with the following:
Are methods cited in UAC R3l7-6-6.3.L; and
Have detection limits which are less than or equal to the ground water
standards shown in Table I of Part II.
A)
A)
B)
iii. AnalysisParameters
t,,
Permit No. UGWI70003
Field Parameters - pH, temperature, and specific conductance;
Laboratory Parameters
Accelerated Background Program - during the accelerated
monitoring program, grab samples will be collected from each
compliance monitoring well and analyzed for abof the non-
radiologic water quality pararneters listr$d in T of Part II of
this Permit.
compliance progrzrm,
parameters:
Ammonia as
Chloride,
Mol
Ni
Ni
2. BAT Performance permittee shall monitor all leakage
detection and collection ing devices in accordance with theBArequired in Part II.H.2. The plan must
requirements.
a specific maximum allowable leakage rate (ALR) for
on their individual collection areas and the BAT
gallons per acre per day. Sump-specific mocimum ALRs
standard in the BAT perfonnance monitoring plan.
have the total depth of each leak detection sump surveyed by a
al surveyor and these survey data will be included as ieference
BAT perfonnance monitoring plan.
detection sump will be instrrmented to measure the totalized flow rate from
ffia sump'*!i:h_!* specific drainage areas, and the total hydraulic head on top of
the secondary HDPE liner, measured as liquid depth in each individual leak detection
sump' as stipulated in Part II.D.2 of this permit. All sump level alarm events shall berecorded in a log book kept on site and reported as required in part rr.G.z.
d) Each leak detection sump will be inspected at least weekly to ensure that allcomponents are operating properly. Inspection findings will be recorded in a log book
A)
B)
l)
o
a
a
a
o
e)
t,,
Permit No. UGWI70003
kept on site.
The total volume of leakage will be measured at least weekly for each leak collection
sump and these data will be recorded in a log book kept on site.
If fluids are detected above the maximum ALR or hydraulic head stipulated in Part
Il.E.z, in any leak detection sump, a sample will be collected for pH,ivity. If
pH and conductivity data indicate tailings leachate, a wilHUH collected for
laboratory analysis for the non-radiologic of Part II of this
permit. Analytical results will be reported as
g)
h)
Any fluid detected in any leak detection ill be
sample has been collected as described in II.E.
If the hydraulic head on the secondary
performance standard stipulated in Part
sump exceeds the three feet
it, the permittee will
determine the flow rate for that sump or with the sump-specific
maximum allowable leakage rate.
All data recorded in shall be reported
in the BAT Monitoring Re
3.Hydrogeologic Monitoring will prepare an annual update of
rhe Ground-\4/ater Tailings Site report (t{ydro-Engineering,
water permit application. The updateLLC, 1998) that was ,as
ing and reporting requirements of Part II.G.4will be
hydrology report is to update the physical
of the Entrada aquifer beneath the site to determine
the last report submittal. Of particular interest is the
mound in the Upper Low-Permeability Entrada, the
aquifer, and vertical head gradients in the Enfrada
and Navajo aquifer. Also included into the annual report will be
background data base to determine if GWpLs should be
:of-compliance Based on Exceedance of Ground water protection Limits
shall evaluate the results of each round of ground water sampling and analysis
to determine any exceedance of the GWPLs. Upon determination by ttre permi6ee that the
data indicate a GWPL may have been exceeded at any compliance monitoring well, the
permittee shall:
a) Immediately resample the monitoring well(s) found to be in probable out-of-
i)
l0
b)
t,,
Permit No. UGWI70003
compliance for the protection level parameters that have been exceeded. Submit the
analytical results thereof, and noti$ the Executive Secretary of the probable out-of-
compliance status within 30 days of the initial detection.
Immediately implement an accelerated schedule of quarterly ground water sampling
and analysis of parameters that exceeded the GWPLs, consistent with the requirements
ofPan II.E.l, above. This quarterly accelerated compliance sampling qi$continue for
two quarters or until the compliance status can be Executive
Secretary. Reports of the results of this sampling will be to the Executive
Secretary as soon as they are available, but the date the
analytical data is received by the permittee.
2.Out-of-Compliance Status Based on
Protection Levels
a) Out of Compliance Status shall be defined
l) For parameters that have been background and forl.l times the meanwhich protection levels
background quality standard, out-of-
compliance shall be that:
exceed
plus two standard deviations.
Monitoring - upon determination by the
Secr&ry, in accordance with UAC R317-6-6.17, that an
ists, the permittee shall:
ive Secretary of the out-of-compliance status or
Secretary notice that such a status exists within 24 hours
: and
wiitten notice within 5 days of the determination; and
[inue an accelerated schedule of ground water monitoring for the pararneters
exceeded GWPLs for at least two quarters or until the facility is brought into
compliance.
(i)
(ii)
c)Source and Contamination Assessment Study Plan - within 30 days of the written
notice to the Executive Secretary required in Part II.F.2.b, above, the permittee shall
submit an assessment study plan and compliance schedure for:
1) Assessment of the source or cause of the contamination, and determination of
ll
,t',
Permit No. UGWl70003
steps necessary to correct the source.
2) Assessment of the extent of the ground water contamination.
will include: (a) conducting groundwater flow modeling
evaluation to determine appropriate locations, horizontal
vertical screened intervals for additional monitoring
piezometers; (b) installing additional monitoring wells and
to better define vertical and horizontal head gradients i
expanding the analyte list to include additi
in the tailings leachate in addition to
permit.
At a minimum, this
and a well-spacing
well spacing, and
wells and nested
aquifer; (c)
tuents contained
1.e.iii.B of this
3) Evaluation of potential remedial
quality, and insure that permit li
monitoring wells.
3. Out-of-Compliance Status Based Upon Fai vailable Technology
In the event that BAT performance of the construction
or performance standards outlined i permittee shall submit to
the Executive Secretary a notificati in accordance with PartIII.I of this permit.
4. Affirmative Defense Failures
that a the permittee for violation of permit
relati alternatively defend against that action in
with
is determined as per Part II.F.2 or Part II.F.3, and upon
Executive Secretary, the permittee shall immediately implement
in the Tailings Management Plan. The permittee will also
ination Assessment Study Plan in accordance with part II.F.2.c
to do so by the Executive Secretary.
-Water Monitoring Report:
a) Schedule - the semi-annual sampling and analysis required in Part II.E.l, above, shall
be reported according to the following schedule:
5. I
I
Contingency
submit a Source
above, ifrequi
t2
Half
lst (January through June)
2nd (July through December)
b) Sampling and Analysis Report -
#,,
Permit No. UGWI70003
Report Due On
August 30
February 28
will include:
l) Field Data Sheets - or copies thereof, including the field
in Part II.E.l.e.iii.A above, and other pertinent
name/number, date and time of sample cpllection sampling crew,
casing volume,sampling method and type of sampling
volume of water purged before sampli
2)Laboratory Reports and Tabulated ofG Water
date sampled, date received by the
results for each parameter, inc
ion balance,ytical
or concentration, units of
measurement, minimum detection li and the date of the
analysis.
3) Uranium Data - in addition permit, the permittee
shall report uranium semi-annually to
the Nuclear Re
Quarterly - water level measurements from
in both measured depth to groundground-water
water and mean sea level.
map shall illustrate the ground-water
aquifer beneath the mill facility for the semi-annual
must be superimposed on a topographic base map of
or other scale approved by the Executive Secretary and
the entire processing site. Known contours must be
froni estimated or infened contours. Other pertinent geologic,
made features, including wells, must be displayed.
iling Requirements - in addition to submittal of the hard copy data,i the permittee will electronically submit the required ground water
ing data including ground water quality and head data in Excel
format. The data may be sent by e-mail, floppy disc, modem or other
approved transmittal mechanism.
2. BAT Perforrnance Monitoring Report:
a) Routine Schedule - the BAT performance monitoring, sampling, and analysis required
under Part II.E.2 shall be summarized on a monthly basis and reported to the Executive
Secretary in Semi-Annual Reports.
4)
Part II
Permit No. UGWI70003
b) In the event that any of the performance standards of Part II.D.2 are exceeded the
permittee shall notiS the Executive Secretary in accordance with Part II.F.3.
c) Electronic Filing Requirements - in addition to submittal of the hard copy data, the
permittee shall electronically submit the required BAT performance monitoring data
in Excel spreadsheet format. The data may be sent by e-mail, floppy;S, modem or
other approved transmittal mechanism.
3. Seasonal Construction Notification Report:
a) Schedule - the advance notification of the
Part II.D.S.b, above, shall be submitted to Secretary
to construction activities. The permittee resubmit the
days of receipt of written Executive defrciencies or omissions.
4. Hydrogeologic Report
a) Schedule - thepermittee will 'ater Hydrologtof
the Sho o t ar ing C anyon Tail i 1998) by February 28 of
each year. The permittee within 60 days of receipt
ofwritten Executive or omissions. The first annual
report will be due Feho{ifl28,
H. Comoliance Schedule
tion
7
tailings impoundment liner construction, the
ofNatural Resources certification to the Division that
adequate for its intended purpose.
Plan - the permittee will submit a BAT performance
ion, and the Executive Secretary must approve the plan prior to
liner. The plan will comply with Part II.D and part
plan will also include contingency plans of procedures to follow
standards be exceeded. The contingency plans will include
ication of leakage, assessment of damage to the liner system, and the
will be followed in the event of a BAT failure for repair or other operational
liner system.
ffiStbllation of Additional Compliance Monitoring Wells - the permittee will install two
additional ground water compliance monitoring wells to monitor the hydraulic head and
water quality ofthe middle zone of the Entrada aquifer below the Upper Low permeability
zone. Well RMl6 will be installed adjacent to existing well RMl l and well RMlT will be
installed adjacent to existing well RMl3. In addition, existing well RM2 will be replaced
with future well RM2R which will be installed as close as possible to the downgradient side
ffiprior
ithin 60
II.E.2 of this
should BAT
protocols for
t4
4. Ground-Water Monitoring Quality Assurance Plan - a
handling and analysis plan shall be submitted by the
and
Part II
Permit No. UGWI70003
of the ore storage pad without inhibiting daily ore operations. All of these new compliance
monitoring wells will be installed prior to commencement of tailings impoundment liner
construction activities to allow time for inclusion in the accelerated background monitoring
program stipulated in Part II.H.7 below.
ground water sampling,
perml by the
Executive Secretary prior to construction of the tail system. This
plan must comply with the EPA publication titled ingTt
EnforcementGuidanceDocurnent(September1986).
will become an enforceable document to this
Plan.
5. Notice of Completion of Phase IA and Phase IB Construction and
Commencement of Operation - at least 30 days pf of the composite
double-HDPE bottom liner with leak detectio facilities for Phase
IA and Phase IB, the permittee shall 4gli in writing that
construction is nearly complete and initiation of milling
operations.
6.Infiltration Modeling Report - a1t a closed-cell scenario has been
submitted for Executive of milling operations. The
objectives ofthe i that the reclamation cover design is
compatiblewiththe build up of fluidwithinthe impoundment
The duration of the model simulations
steady state flow condition through the closed
of the submitted report is pending.
ater Monitoring Report - the perminee will submit an
itoring report after the two-year quarterly background
been completed. The objective of the accelerated monitoring
the existing water quality data base used for deriving GWPLs.
for the accelerated monitoring program will be collected in
following requirements:
ight (8) samples will be collected for each newly constructed compliance
ing well over a two-year period utilizing the procedures outlined in the Ground-
Monitoring Quality Assurance Plan required in Part II.H.4 above.
b) The sampling frequency shall be every quarter if only eight samples are collected over
a two-year period.
c) Each sampling event or episode will include independent grab samples for each
compliance monitoring well.
Ground water
accordance wi
l5
8. Final Decommissioning and Reclamation plan _
decommissioning and reclamation plan for Exc
d) Sampling parameters will include all
Part II of this permit.
commencement ofmilling operations. The plan
disposal, and long-term fluid management of
incorporate results from the infilhatio-n modelinr
make appropriate adjustments to the cover
within the closed impoundment after reclamatioff
9. Existing Clay Liner/Tailings Study _ within two
Phase IB composite double_UOip bottonr#f;
commencement of phase IC liner
Secretary approval, a detailed
contains tailings material fromjustifr why leaving the exi
ofthe new Iiner system in
will commence to rernove
five-
the
e) After Executive Secretary approval, sampling will befrequency for the abbreviated parameter list specified ipermit.
Part II
permit No. UGWI70003
non-radiologic parameters listed in Table I of
relaxed to a semi-annual
Part II.E.1.e.iii.B of this
submit a final
val prior
design,
closed
,and
buildup
of the Phase IA and
and before
submit, for Executive
in Part'
and ore
red
y liner system that presently
objective of the study is to
Yad to future structural instability
sahuated. Otherwise, the permittee
impoundment with the new liner systern
Part III
Permit No. UGWI70003
III. MONITORING, RECORDING AND REPORTING REQUIREMENTS
A' Representative Samolin& samples taken in compliance with the monitoring requirementsestablished under Part II shall be representative of the monitored activity.
procedures
ified in this
who
than $l
or by both.
ng each reporting period
Division of Water
ing the completed
B' Analytical Procedures. water sample analysis must be conducted according
;:Hfl:t
under UAC R3 t7-6-6'3'L, unless other test ;;;; ,6S"*
C. Penalties for Tampering. The Act provides that aknowingly renders inaccurate, *y rnonitoring devicethis permit shall, upon conviction, be punished by a fior by imprisonment for not more thansix months per
D. Reporting of Monitoring Results. Monitoring resuspecified in the permit, shall be submitted to [e pl
Quality at the following address no later than of thereporting period:
State of Utah
Department of Environmental
Division of Water euality
Salt Lake City, Utah g4l
Attention: Ground W
on in
tpman@r noncompliance with, or any progress reportsined in any Compliance Schedule of this permit shall beeach schedule date.
of monitoring information shall include:
place, and time of sampling or measurements:
3.
4.
5.
6.
t7
Part III
Permit No. UGWI70003
H' Retention of Records' The permittee shall retain records o_f all monitoring information, includingall calibration and maintenance records and copies of all reports *ouf,; by this permit, andrecords of all data used to complete the application for this permit, foi a period of at least threeyears from the date of the sample, measurement, report or application. ttris period may beextended by request of the Executive secretary at anyiime.
ithl. The permittee shall verbally report any noncompli
soon as possible, but no later than twenty-four (2{
became aware of the circumstances. The
AM - 5:00 PM Mountain Time.
Environmental euality 24 hournumber, (g0l j53
Ground Water Protection Section at (g0 I ) 53 g-6 I
lbe
3,q
fro
Divis
normal business
2. A written submission of any noncompliance
provided to the Executive Seoetary within fir6 of the
or limits shall be
permittee becomesaware of the circumstances. The wri I
A description of the
The period of
The estimated to continue if it has not been corrected;
:e, and prevent reoccurrence of the
Istimation of the quantity of material discharged or anmaterial released outside containment structures.
itted to the addresses in part III.D, Reporting of Monitoring
rrting. Instances of noncompliance not required to be reported withinat the time that monitoring reports for part III. D are sutmitted.
Entry' The permittee shall allow the Executive Secretary, or an authorizedupon the presentation of credentiars and other documents as may be required by
l' Enter upon the-permittee's premises_where a regulated facility or activity is located orconducted, or where records must be kept under tie condition, of th. p..rnit;
ritten reports
l8
3.
Part III
PermitNo. UGWI70003
Have access to and copy, at reasonable times, any records that must be kept under theconditions of this permit;
Inspect at reasonable times any facilities, equipment (including monitoring and controlequipment), practices, or operations regulatedoi required under ihis permit; Ino,
4. Sample or monitor at reasonable times, for the purpose ofotherwise authorized by the Act, any substances o. pa*i*
Part IV
PermitNo. UGW170003
COMPLIANCE RESPONSIBILITIES
A' Duty to Comply. The permittee must comply with all conditions of this permit. Any permitnoncompliance constitutes a violation of the Act and is grounds for enforcemint action; for permittermination, revocation and reissuance, or modification; or for denial of a permit renewalapplication. The permittee shall give advance notice to the Executive plannedchanges in the permitted facility or activity which may result in with permitrequirements.
The vides
permit condition implementing provisions of the Act ect to6W'civil
negl t
under Section l9-5-l l5(2) of the Act a second time
ation. Any icted
$10,000 per day of such violation. Any person v
conditions is subject to a fine not exceeding $25,000
S50,000 per day. Nothing in this permit shall be
criminal penalties for noncompliance.
enforcement action that it would have
order to maintain compliance with the
Duty to Mitieate. The perm
discharge in violation of this
human health or the envi
or used
operation
for a permittee in an
the permitted activity in
steps to minimize or prevent any
Iikelihood of adversely affecting
The shall at all times properly operate and maintain
and control (and related appurtenances) which are installed
by a fine not exceeding
permittee of the civil or
D.
pliance with the conditions of this permit. proper
adequate laboratory controls and quality assurance
operation of back-up or auxiliary facilities or similar
a permittee only when the operation is necessary to achieve
e permit.
r the event that a compliance action is initiated against the permittee for
itions relating to discharge minimization technology, the permittee may
3.
against that action by demonstrating the following:
ttee submitted notification according to Part II.F.3 and parts III.I.l and III.I.2;
The failure was not intentional or caused by the permittee's negligence, either in action or infailure to act;
The permittee has taken adequate measures to meet permit conditions in a timely manner orhas submitted to the Executive Secretary, for the Executive Secretary's approval, an adequate
20
Part IV
Permit No. UGWI70003
4.
plan and schedule for meeting permit conditions; and
The provisions of UAC 19-5-107 have not been violated.
Part V
PermitNo. UGWI70003
V. GENERAL REQUIREMENTS
A. Planned Changes. The permittee shall give notice to the Executive Secretary as soon as possible
of any planned physical alterations or additions to the permitted facility. Noiice is required whenthe alteration or addition could significantly change the nature of the facility or increase the
quantity of pollutants discharged.
Anticipated Noncompliance. The permittee shall give adv changes in
the permitted facility or activity which may result in no t requi
C.Spill Reporting. The Permittee shall immediately per U
Quality Act any spill that comes into contact with the
pollution or has the potential to cause pollution to wa state. This made
to the phone numbers given in Part III.I.I. A written required within 5 days of the
B.
occurrence and should address the requirements of
permit.
D.Permit Actions. This permit may be
filing of a request by the permittee for
termination, or a notification of
permit condition.
Duty to Reapply. If the
expiration date of this
perTnl
reasonable
cause exr
complj
req
l. All permit applications shall be signed as follows:
a. For a corporation: by a responsible corporate officer;
Parts III.I.2 and 3 of this
inated for cause. The
and reissuance, or
E.
does not stay any
regulated by this permit after the
y for and obtain a permit renewal or
180 days before the expiration date of this
shall fumish to the Executive Secretary, within a
Executive Secretary may request to determine whether
and reissuing, or terminating this permit, or to determine
permittee shall also fumish to the Executive Secretary, upon
to be kept by this permit.
the permiuee becomes aware that it failed to submit any relevant facts
or submitted incorrect information in a permit application or any report to
/, it shall promptly submit such facts or information.
All applications, reports or information submitted to the Executive
shall be signed and certified.
22
i*Y, No. UGWrTooo3
b' For a partnership or sole proprietorship: by a general partner or the proprietor,respectively.
c. For a municipality, State, Federal, or other public agency: by either a principal
executive offrcer or ranking elected official.
2. All reports required by the permit and other information
secretary shall be signed by a person described above m by a
of that person. A person is a duly authorized r"o."ffiiu"
The authorizationis made in writing by a
Executive Secretary, and,
b.The authorization specifies either an indiv
the overall operation of the regulated facil
manager, operator of a well or a well
responsibility, or an individual
environmental matters for the
be either a named individual
3.Changes to Authori zation.
because a different individ
facility, a new
the Executive
be si by an
a.
the Executive
representative
ion having responsibility for
as the position of plant
ition of equivalent
responsibility for
ftepresentative may thus
named position.)
V.H.2. is no longer accurate
ility for the overall operation of the
of Part V.H.2. must be submitted to
reports, information, or applications to
ng a document under this section shall make the following
this document and all attachments were prepared under
in accordance with a system designed to assuri that qualified
evaluate the information submitted. Based on my inquiry of
manage the system, or those persons directly responsible forion, the information submitted is, to the best of my knowledge and
and complete. I am aware that there are significant penalties forinformation, including the possibility of fine and irnprisorrn.nifo, knowing
Peil2ftES tbr Falsification of Reports. The Act provides that any person who knowingly makesany false statement, representation, or certification in any record or other document submitted orrequired to be maintained under this permit, including monitoring reports or reports of complianceor noncompliance shall, upon conviction be punished by a fine olnot more than $10,d00 perviolation, or by imprisonment for not more than six months per violation, or by both.
the person or
gathering the i
belief, true,
23
Part V
Permit No. UGWI70003
J' Availability of Rerorts' Except for data determined to be confidential by the permittee, all reportsprepared in accordance with the terms of this permit shall be available ro. puuri. inspection at theoffices of the Executive Secretary. As required uy tte ect, permit applications, permits, effluentdata, and ground water quality data shalr not be considered confidentiar.
K. Property Rights. The issuance of this permit does not convey any propertyany exclusive privileges, nor does it authorize any injury to pri*;;m;personal rights, nor any infringement of federat, ,iu," *io*l laws
L' severability. The provisions of this permit are severa
the application of any provision of this permit.;t;;
of such provision to other circumstancls, and thethereby.
M. Transfers. This permit may be automatically trans
l. The current permittee notifies the
proposed transfer date;
2. The notice includes a written
a specific date for transfer of
and,
3. The Executive
ofhis or
N.State Laws.
or relieve
appli
events occurs:
and liability between them;
Risting permittee and the proposed new
and reissue the permit. Ifthis nttice is not
3pecified in the agreement as described in part
construed to preclude the institution ofany legal actionities, liabilities, penalties established pursuant to anyunder authority preserved by Section l9-5-l l7 of the Act.
ffiermit may be reopened and modified pursuant to R3l7-6-6.6.B orthe appropriate limitations and compliance schedule, ifnecessary, if one
if any
any sort, or
invasion of
s in advance of the
new permittee containing
2.
3.
F1*l':.'standards are adopted by the. Board, the permit may be reopened and
::::t:11.t]39_s ortnepermit or to incrude poilutants .or"r.a by new standards.permittee may apply for a variance under the conditio", ;;;;;ili;; #:r.
when the Accelerated Background Monitoring Report has been approved by the ExecutiveSecretary' and if future changes have been determined in background ground water quality.
when sufficient data are available, protection levels for the new wells are established.
7-6-6.l0.Cto incl
24
4' when approval of any Compliance schedule Item, under part II.H, is considered, by theExecutive Secretary, to be a major modificatior,o ih. p"rmii.
5' Determination by the Fxecutive Secretary that changes are necessary in either the permit orthe facility to protect human hearth or the environment.
t':\rad\mon_wast\rherbert\wp\pl ateau\shoot2.per
i-t.
::!:i
':r'
::!
+
ii
tlItii
El::
StatO of Urah
DEPARTMENT OF ENYIRONMENTAL QUALITYOFFICE OF THE EXECUTTVE DIRECTOR
168 Nonh 1950 West
P.O. Bor l,l4El0
Salt [:kc City. Uah 84ll,L48tO
(801) 5364400
(801) 536{061 Far
[phone] T.D.D.
www.dcq.sarc.ut.us Wcb
Michacl O. LcavinComr
Diannc R. Niclson, Ph.D.
Erccurivc Dir6roa
Brcnt C. Bradfod
DcFry DirErof
February 10, 1999
Earl E. Hoellen, President
International Uranium Corporation
Independenc e Pl^ra,Suite 950
1050 Seventeenth SEeet
Denver, CO 80265
Dear Mr. Hoellen,
In consideration of your letter of February 4,lggg,I believe additional response is necessary, andI hope helpful to the ongoing discussion-
Firsq I consider it a courtesy as well as Ey reqponsibility, as Executive Director of the Departuentof Environnnental Quality, to respond to letters from the President of the Utah Senate, *d I did soin a factual and unbiased manner. I resent the insinuation that I responded to politicat pressure,
eitherbymy respoDse to the letterorthroughthe Departuent's requdent of compliance with Stati
Iaw.
Second, the specific poinb of discussion in yoru letter warrant further comment
l.
2.
It is not my intent to quibble about the term ore.'Iheunderlying,issues rcgarding material
accepted forprocessing at the white Mesa Mill are nnder "r"+
On December I l, 1998, in response to [UC's concern that submission, acceptance, and
compliance with a ltate groundwater permit would jeopardize the Departnent of Energy's(DOE) ability to take long terrr care and custody oCth. site, we indicated that we hadspecifically discussed this issue with DOE and been assured that regulation under a Stategroundwaterpermit would not preclude DOE's long term care and r*toay. We requestedthat IUC provide written documentation of a position to the contary. To date, we have
received nothing.
IUC and DEQ staffworkingtogether to jointly resolve questions and problems continues to
be preferred. However, in the December meeting and in my Janrury 8, 1999, summary, I
3 &4.
February 10, 1999
Page2
think I was quite cl11.abo-u1the process, including discussions with the Attorney General,soffice' which would be followid regarding ttre"apptication for a ground*ater dischargepermit.
If you would like to discuss these issues further, please cafl me.
Best regards, .M
Dianne R. Nielson, ph.D.
Executive Director
cc: Senator R. hne Beattie
SenatorRobert Bennett
David Bird, Esq.
Senator leonard B lackham
Congressman Christopher Cannon
Senator Mike Dmitich
Senator Orrin Hatch
Representative Keele Johnson
NRC - KingStablein
Ted Stewart, Esq.
Anthony Thompson, Esq.
StatOof Utah
DEPARTMENT OF ENVIRONMENTAL QUALITY
OFFICE OF THE EXECUTIVE DIRECTOR
fitr-
{ Lhq_ T\vcc,
Michael O. Leavitt
Govemor
Dianne R. Nielson, Ph.D.
Exmtivc Dirc-tor
Brent C. Bradford
DcPurY Dirctor
168 North 1950 West
P.O. Box 144810
Salt Lake City, Utah 84114-4810
(801) 5364400
(801) 536{061 Fax
(801) 53414 T.D.D.
www.deq.state.ut.us Web
January 29,1999
President Lane Beattie
Utah State Senate
319 State Capitol
Salt Lake City, UT 84114
Dear President Beattie :
This correspondence is in response to your letter of January 6, 1999 concerning the disposal of
radioactive waste at International Uranium Corporation's (IUC) White Mesa Mill. The Mill does
have a license from the U.S. Nuclear Regulatory Commission (NRC) to process conventional
uranium ores. Upon submission and approval by NRC of a license amendment, IUC may process
"alternate feed" materials. These altemate feed materials must meet certainNRC criteri4 including
(1) being ore-like, (2) not containing listed hazardous waste, and (3) being processed primarily for
recovery of source (uranium) material. We continue to contend that the material must contain
recoverable r.ranium of economic value suffrcient to justi& reprocessing. Intemational Uranium and
its predecessors, Energy Fuels and UMETCO Minerals have processed several shipments of altemate
feed material (See Attachment A). ruC has been aggressive in its search for alternate feed material
from throughout the United States. Currently, the State of Utatr is a parly to a NRC administative
hearing process to determine if such materials are being processed primarily for uranium recovery
or simply being disposed of as waste. If the latter is true, the White Mesa Mill is operating as a de
facto radioactive waste facility. As you zre aware, operation of a commercial waste facility requires
Legislative and Gubernatorial siting approval and a state permit.
In a separate actiorl IUC has been directed by DEQ to submit an application for a State Groundwater
Discharge Permit, but IUC has not done so. On December I l, 1998, DEQ representatives met with
IUC and discussed our concerns. (See Attachment B). Or:r request for the groundwater discharge
permit was based on our need to better monitor groundwater to ensure that a release from the tailings
lond did not occur to the waters of the State beneath the millsite. The receipt of alternate feed
materials, other than uranir:m ore, and the other constituents in such materials also raised concerns
about the appropriateness of groundwater parameters currently being monitored under the NRC
license.
Because IUC has indicated that it is not willing to apply for a State Groundwater Discharge Permit,
a meeting with the Attorney General's Offrce has been scheduled to assess a course of action.
:
January 29,1999
Page2
Options include further discussions with the company to convince them to voluntarily submit an
application, or an enforcement action by the Division to compel submission of the permit
application. I will keep you apprised of funre actions.
Thank you for your continued support regarding waste management issues.
Dianne R. Nielson, Ph.D.
Executive Director
Attachments
- ATTACIIMENT A
ALTERNATE FEEDS INT'ORMATION
INTERNATIONAL URANIUM CORPORATION/ENERGY F UEL S
ALTERNATE FEED AMENDMENT REQUESTS AND OTHER
P ETITI ON S/]VIEETING S RELATING TO ALTERNATE F EE D
prepared December 23, 1998
Utah Division of Radiation Control
Revision 1
Event Amendment
request
submitted to the
NRC
NRC Status Type of material Challenged by
the State (formal
action)
Allied Signal 9-20-96 Approved
1r-20-t996
Potassium
diurinate in a
potassium
hydroxide
solution.
Contains 7-10%
uranium
No
Cotter
concentrate
Approximately
tt-96 -
Approved
4-2-97
High uranium
content material
(10%+) at
Nevada Test
Site from
reprocessing of
Belgium Congo
ores
No
Cabot
Corporation
4-3-97 Approved
8-l 5-97
From
Pennsylvania,
contained
approximately
.05% uranium
and recoverable
tantalum and
niobium
No
Event Amendment
Request
Submitted to
NRC
NRC Status Type of Material Challenged by
the State (formal
action)
Ashland II 5-8-98 Approved
6-23-98
Tonawanda NY
FUSRAP site -
cleanup ofan
abandoned
waste site -
uranium content
of waste from
zero to 0.5Yo
Yes -
Stay Order
denied by NRC
Hearing request
- granted
standing and
testimony filed
tzl7l98
Petition for
Reconsideration
ofNRC "Final
Position and
Guidance on the
Use of Uranium
Feed Materials
Other Than
Natural Ores:
(submitted by
ruc)
s-l 3-98 I Pending N/A N/A
Amendment
Request
Submitted to
NRC
NRC Status Type of Material Challenged by
the State (formal
action)
Approved
I l-2-98
Canadian
uranium
producer: by
product waste
such as uranium
tetraflouride
filter ash,
calcined product
including
incinerator ash,
and regeneration
product,
uranium content
ranges from
.05Yo to 650/o
NRC meetings
on uranium,
thorium
regulation in
TX, NM, WY,
CO
8-24-n, l9gg Purpose to
gather input on
future uranium
regulation
including
altemate feed
Utah
participated in
Denver meeting
and provided
comments.
Ashland I 10-15-98 Pending
Notice of
amendment
request
published in FR
on 11-2-98
Tonawanda NY
FUSRAP site -
cleanup ofan
abandoned
waste site -
uranium content
of waste from
zero to 0.5Yo
Yes, petition for
hearing filed on'
December 2,
1998
- ATTACHMENT B
SUMMARY oF DECEMBER ll, 1998, MEETTNG wrrH ruc
lvlichael O. lravin
Grvcmtll
Dirnne R. Nielson. Ph.D.
Erccutivc Oircctlrr
Williarn J. Sinclair
Dircctrr
2
DEPARTMENT OF ENVIRONMENTAL QUALTTYDryISION OF RADI.ATION CONTROL
t68 Nonh 1950 West
P.O. Box 144E50
Salt Lake City. Utah g4 I l4-1S50
(80 1) 5164250
(E0l) 533a097 Fax
[phone] T.D.D.
www.deq.snte.ut.us Web
January 8, 1999
Earl Hoellen, CEO
International Uranium Corporation
Independence Plaza, Suite 950
I 050 Seventeenth Street
Denveq CO 80265
Dear Mr. Hoellen:
The purpose of this colrespondence is to summarize and follow-up on our meeting on December 11, lggg.During the meeting' several action items were identified. This correspondence will identify those action itemsand describe a process for moving fonvard to resolution, if possible. The action irems were as follows:
I ' DEQ was provided with a letter of December 9, 1998 from M. Lindsay Ford of parsons, Behte, and l-atimersetting forth a Proposed Protocol for determining listed hazardous waste in alrernate feed material. During themeeting, feedback was obtained from Don verbica of the Division of Solid and Hazardous waste regardingthe protocol
FOLLOW-UP ACTTVITIES:
lntemational Uranium corporation (IUC) will revise the protocoland resubmit it to the DepartmenlJoAnn Tischler and Michelle Rehmann rcprcsenting ruc, gitt sinclair of the Division of RadiationControl, and Don verbica of the Division of Solii and Hazardous waste will be responsible forworking together to finalize the protocol. The rcview and subsequent discussion(s) of the rcvised
Protocol can most likely be handled by conference catls. Bill Sinclair will take the lead forcoordinating this activity.
2' The issue of the'need for a Groundwater Discharge Permit was discussed at length during the meeting.luc indicated that it would prefer to work in the eiisting regulatory framework to satisfy state concernsregarding groundwater monitoring. It was indicated to ruc,-auring the meeting, that the State had previouslyattempted to work wilh the Nuclear Regulatory commission Oincl to allow licensees to suggest licenseconditions that could be incorporated into the existing license to satisfy state concerns. The position of theNRC would be that such conditionslould be incorpolted but NRC would nor enforce those conditions. Inthe case of groundwater monitoring conditions, thii would be unacceptable to the State.
It was alio indicated that the Potential problems of transfer of the site ro the Department of Energy (DoE) byvimre of having a state groundwater discharge permit needed to be clarirred by IUC. preliminary discussionswith DoE officials involved with the Title I program indicated it was common to have transferred facilities .
with state permits. If there is a groundwater conramination issue identified, by either the NRC license or state
January 8, 1999
Page 2
groundwater discharge permit' this contamination problem would have to be resolved prior to transfer of thesite for peqpetual care by DOE.
Bill sinclair outlined some of the State "o1..:n',: regarding the present groundwater monitoring system andexisting liner system and the ability to rapidly deteit "onititu.it, entering the groundwater. Rob Herbertpointed out that the uppermost aquifer, althtugit of poor quality, was currentty being used outside of the mill.Many of the state concerns were raised in t[_r1ent ,.rii*ony provided toii," vi.c regarding the Ashland2 amendment request on December 7, 1998. IUC indicatea tnai ii *as not opposed to independent monitoringby the state but wanted to better understand the purpose and protocols. IUC also indicated that consultantshad prepared an engine-ering rePort regarding ttre linei system which shorved that migration of constituenrs tothe groundwater is unlikely.
FOLLOW.T'P A CTTVITIES :
-Qruc agreed to solicit a letter from the DoE which would clarify any problems transferring of thewhite Mesa Mill to the DoE perpetual care if the Mill was under a State Groundwater Dischargererrnrt.
(B) ruC wants to understand the State's groundwater sampling protocol prior to an independentsampling event- The State is prepared to discuss the sampling in detail including paramerers to besampled, the laboratory to be used, qualiry assurancey'control lrovisions for both sampling and thelaboratory, and the opportunity for split sampting by IUC. A meeting or conference call wiil need tobe arranged. lartilrPants suggested are
-vtictreite
Rehmann of IUC, Rob Herbert of DRC, arepresentative of the Division of water Quality, and Bill Sinclair of DRc. Rob Herbert will take thelead for coordinating this activity.
(C) Prior to the meeting, ruc submined an engineering report on the existing liner system intendedto booster its contention that the liner system ut ruc is=protective of the groundwater. DRC agreedto review the report and provide comments on the conient and conclusions. At the meeting, Billsinclair indicated the Division needed jo!19* "assumptions" which were used in the report. RobHerbert will review the plan and provide IUC with "o**"nt, on the conclusions.
(D) The State will need to evaluate the concerns raised regarding the groundwater discharge permitissue' We apprcciate the information provided by IUC concerning state authority and eventualtransfer of the site to the DoE- we will 6alun"e these concerns in maling any final determination onthe status of the request for a groundwater discharge permit. Bill sinclair will coordinate with DianneNielson' the Utah Attorney General's office, ana ttre pivision of water eualiry and provide feedbackto IUC as soon as possible.
3' Some of the discussion was focused on how to better define the issue of "reprocessing primarily for therecovery of source material." It was agreed that both sides have expressed their respective opinions throughthe NRC administrative Process actions on the Ashland FUsRAp site. IUC indicated they would prepare adocument entitled "materials acceptance criteria" which coutd address the source material content issue as we[as demonstrating the risk associated with the receipt and processing of altemate feeds. Both sides expresseda desire to address the matter outside the litigation fo**'but recogirized a formal process was underway andit is advisable to wait until that process runs its course.
January 8, 1999
Page 3
(t)
(2)
(3)
(4)
Irf,:T3:i::'.""?l-*:'::::T:1th1t it appears-that Envirocare is unduty influencing the position orr.r erreqr urqL ^;ttyltuLzug 15 unquly lnDEQ in terms of challenge of alternate feed requests. He noted that both parties (t(the State and Envirocare)
H.":f x,*""1T:^T*T,::,T:*l111f matereedsberore,ilNR.."FJid;;"-hilr.;ffi;;I ure v4t rllturttgy
9"":"T'_1office indicated that all state briefs have b""n pr"purJ independent of and without consultationof Envirocare' Fred indicated that, probably because or trre higrr interest that Envirocare has in the event,aloutcome of the NRC administrative-.pr.ocess, they do call anioffer advice to the state. Mr. Nelson againstressed that this was a state of utatr issue for a variety of rcasons, not just limited to the economics associated
r. rv vt
:.::::::::li:l::.^':1,^"::.:ir-11l1.,srr1rs and krternational uranium inctuding Alried signar, cotrer
FOLLOW UP ACTIVITIES:
IUC may prepT materials acceptance criteria for review and comment. once received, Bill Sinclair
[:H""",,tlsil:::t appropriate Department reviews including coordinarion *ttr, *re utah Attorney
4' There were four areas identified by IUC and DEQ that could promote acceptance by the state ofperformance-based licensing. These inctuded:
Listed hazardous waste issue - establishment of a protocol acceptable to IUC and the State.Materials accePtance criteria - establishment of an information Lasis that satisfies the stateand IUC for all alternate feed requests.
Economics of reprocessing - this will probably be administratively resolved by rhe NRC,although there could be an agreement on the percentage of uranium in the waste, which wouldconstitute legitimate alternate feed material
Stakeholder involvement - there needs to be more and better stakeholder involvement in thediscussion of altemate feed material. There has been a great improre*ent in communication
-bfYc with the impacted community. Such activitio L *itt tours for the public, the recenrNRC public meetings, the IUC "Rumor Mill" publicution, *o.ting with the ute Mountaintribe to address the white Mesa Ute issues, and IUC's willingness to appear before theRadiation control Board and provide updates and answerquestion"s have contributed to bettercommunications. Bill further indicated that there is a communication gap with the Navajocommunity and certain citizens and citizen groups. Many of these individuals do not trustIUC or the federal government to run an enviionmentalty p.t."tir" operation. others do notwant the Mill to operate at all. There was a suggestion tirat a ..community group,,could beestablished to be a focal point to provide information or address issues of concern ofindividuals and communities.
FOLLOW UP ACTTVITIES:
Bill sinclair will work with-ruc in identifying concerns of individuals or group of citizens that couldbe addressed by a variety offorums. DEQ iiwilling to work with IUC in establishing a communitygroup to focus on mill activities and serve os a sounding board for citizens of the corimunity.
concentrate, cabot corporation, and camico, despite tr," ro.t ti,ui;#Til[H:"r:#:t"i rTh?Ji
January 8, 1999
Page 4
FOLLOW UP ACTIVITIES:
No follow up activities have been proposed.
Thank you for your willingness to come in and discuss these mafters with us.do not hesitate to contact me.
Sincerely,
Ifyou have any questions, please
E.Q;
ector
Fred Nelson, Utah Attomey Generals Office
Don Ostler, Direcror, Division of Water eualityDianne Nielson, Ph.D., Executive Director, Ufige
Charles Hackney, NRC Region tV
Milt Lammering, EpA Region VItr
David cunningham, R-N., B.s.N., Hearth officerrDirector, Sourheastem utahDistrict Health Department
. IJE,U - vrtr - =t,rl<Umt lNl
o
u{tArI MPl
o
PROPOSED
A GENDA
Mectiag bctween sate of_utah DeparEeut of Environmeutal euality (DEe,) and
Intpraational Uranium (USA) Corporation (.'ruSA").
Affice of DEQ Room 205,
Sslt Lafu W, Atuh
E:00 am, Friday, Decqnbq 11, lggg
8:00-8:O5 InEodustion of Pertier
8:05-8:30 Discussion of Objcctiva of DEe end IUSA
g:30-g:OO Thc Econoruic or.Sheu Disporelr lssuc
9:0&10:00 ctcnicel composition of Alteraatc Fccd Materials(a) Listed hazardous wastg rwiav protocol(b) l"faterid acccptsnce criteria
10:0O-ll:00 GroundwltcrDircherge pcrrnit(a) IUSA s lettcr ofbaobcr 3I, l99g(b) Kaightpi€sokiRcport
G) Comparison of GroundwaterDscharge Pcrmit requirenanr vs. part40
rcquiremerts(d) Transfer of custody to DOE(e) PEglr request for split sampliug ofgroundwatcr(0 DEe's requcstto ha.rc an inrrpcaor i wtitr MesaM[
I l:00-l I:30 Perforurencc'Brscd Liccosc Condition for rhc Acceptencc of Altcraetc FecdMeteriels
I l:3Gl?:00 Conclurion
G) Follow up activities
/,{From tlu Dcsk 4
Dianne R. Nielson
llb-- P/-cr* *atr*
'h;-A [fu*.o \#-Y"a'
>AJ
/1^
chronology of utah DEQ's Request for Groundwater Discharge pern,it
White Mesa Uranium Mill, Blanding, Utah
August 1989' After Utah Groundwater Protection Regulations were adopted, existing facilitiessuch as the white Mesa Mill were to be permitted based on a priority ranking as resources of theDivision of Water Quality allowed. However, some actions by UMETCO, former owner andoperator of the mill, initiated a State review of the need for a Groundwater Discharge permit forthe facility.
March 25r lgg4' In response to the filing of an NRC license amendment request by UMETCoto allow the receipt and disposal of 2.6 -illion cubic yards of radioactive materials from theDepartment of Energy's Monticello Tailings Project, it. utur, Department of EnvironmentalQuality (UDEQ) Division of water Quality (Dwo requested that uMETCo submit aGroundwater Discharge Permit application. At the'timl of the permit application request, thewhite Mesa Mill was on standby status and receipt of waste materials *u, un activity unrelatedto mill operations.
April 14,1995' In a letter from Michelle Rehmann, Environmental Manager of Energy FuelsNuclear (EFN), new owner of the white Mesa Mill, EFN requested an extension for thesubmittal of the Ground water Discharge permit application.
September 29,1995. EFN withdrew the Monticello tailings amendment request.
January 8, 1996' In a letter to Michelle Rehmann of EFN, the utah Dwe extended the
ffi:i'* for the submission of the Ground water Discharge permit applicaiion to December 31,
rlal.,1
i::.::i7I-'j,'9; 1ff:0,:*ssions.between the NRC and the Utah Division of Radiation
,:::::::(^?l:);p: y* 9:l:":i:1that theydo "ot r,u"" tr,e regar authority to enforce Staterequirements. Therefore, Utah Dwe issued a letter to EFN.;q;il;il"lri-]n, or"---1completed Groundwater Discharge permit apprication within sirn six months of the receiipt of theAugust 28,l996letter.
November 8, 1996' EFN representatives met with members of the utah DRC and DWe todiscuss the August 28,1996 DWe letter to EFN.
February 27,1997' In a letter from Michelle Rehmann of EFN to Don ostler of Utah Dwe,EFN requested a postpo-nement of the permitting process until the transfer of EFN,s assets toInternational Uranium corporation 6tic; has been finalized. closure of the sale was expected tooccur within the next 30 to 45 days of the date of the February 27, lggT letter.
April 29,1997' In a letter from Michelle Rehmann of EFN to Don ostler of Utah Dwe, EFNrequested another delay to the permitting process until closure of the sale which was expected tooccur within the next 30 days of the date of the April29,l9t97 1"n"r.
May 19, 1997' In a letter from Don ostler of Utah Dwe to Michelle Rehmann of EFN, theDwQ requested a meeting within the next 30 days to formulat;;;;;ilu] *r,i.r, a StateGroundwater Discharge permit application couli be provided.
June 20, 1997' In a letter from Michelle Rehmann of IUC to Don ostler of Utah Dwe, it wasstated that IUC had assumed ownership and became the NRC-licensed op"*,o, of the white
Y:t'#' effective Mav 10, lgg7. rtJcrequested a meeting with utah brq o, or about July
August 4,1998' In a letter from Bill sinclair of utah DRC to Michelle Rehmann of IUC, thestate requested a submission of a Groundwater Discharge permit application no later thanSeptember 15, 1998' This request was tempered with the statement: "If the permit application isnot submitted as requested, the State intends to take appropriate enforcement action (e.g., order)to ensure a timely submission,'.
September 14,1998' In a letter from Dave Frydenlund of IUC to Bill sinclair of Utah DRC,IUC requested an extension of the Groundwater Discharge permit application to october 31,1998 to enable IUC to prepare a proper presentation to the state.
September 15, 1998' In a letter from Bill sinclair of Utah DRC to Dave Frydenlund of IUC, theDRC granted an extension of the deadline for the submittal of the Groundwat". rir"ir*r""ri#1,application as requested in IUC's September 14,lgglletter. The DRC advised IUC that thiswould be the last extension for this permit application.
october 30, 1998. In a letter from Earl Hoellen of IUC to Dianne Nielson of UDEe, IUCrequested a meeting with UDEQ in the near future to discuss issues associated with the millincluding the request for a Groundwater Discharge permit apprication.
october 31, 1998' In a letter from Dave Frydenlund of IUC to Bill Sinclair of Utah DRC, IUCasserted that it is not required to obtain a Groundwater Discharge permit because: (l) applicationof the utah water Quality Act to an NRC-licensed facility is pre-empted by federal legislation,and assertion of State intervention could well result in the Department of Energy not taking long-term care and custod{9f th" mill; and (2) there is no probable cause to believe the mill willdischarge to waters of the State and therefore does noi fall within the requirements of the utahWater Quality Act.
December 11, 1998' UDEQ representatives met with IUC and discussed uDEe concerns.
January 8, 1999. In a letter from Bill Sinclair of Utah DRC to Earl Hoellen of IUC, theDecember 11' 1998 meeting between IUC and UDEQ was summarized and follow-up actionswere identified for moving forward toward resolutioi, if possible.
:1 ,.1,;lt"i *t*ii i 'l ''
iVlichael O. l"eavitt
Govcrnrrr
Dianne R. Nielson, Ph.D.Exccutivc Dircctor
Williarn J. Sinclair
Dircctor
January 8, 1999
Earl Hoellen, CEO
International Uranium Corporation
Independence Plaza, Suite 950
I 050 Seventeenth Street
Denver, CO 80265
Dear Mr. Hoellen:
The purpose of this correspondence is to summarize and follow-up on our meeting on December I l, 199g.During the meeting, several action items were identified. This correspondence will identify those action itemsand describe a process for moving forward to resolution, if possible. ft " ""ii", i;;;;"r" as follows:
I ' DEQ was provided with a letter of December 9, 1998 from M. Lindsay Ford of parsons, Behle, and Latimerqrtu Lqtltltvl
:::l: j"[::.T?T:^":^pJ.:-,:j"] Io'0":"n":ling.tisted !az1!ous wasre in arremare feed material. During themeeting, feedback was obtained from Don verbica of the Divisiision of Solid and Hazardous Waste regardingthe protocol.
FOLLOW.UP ACTIVITIES:
Intemational uranium corporation (IUC) will revise the protocor and resubmit it to the Department.JoAnn Tischler and Michelle Rehmann representing rui, nltt sinclair of the Division of Radiationcontrol, and Don verbica of the Division of so[J and Hazardous waste will be responsible forworking together to finalize the protocol. The review and subsequent discussion(s) of the revisedprotocol can most likely be handled by conference calls. Bili Sinclair will take the lead forcoordinating this activity.
2' The issue of the need for a Groundwater Discharge Permit was discussed at length during the meeting.IUC indicated that it would prefer to work-in the eiisting regulatory framework to satisfy state concernsregarding groundwater monitoring' It was indicated to ruc,-during the-meeting, that the state had previouslyattempted to work with the Nuclear Regulatory commission ffrcy to allo-w licensees to suggest licenseconditions that could be incorporated into the eiisting license to satisfy state concems. The position of theNRC would be that such conditions could be incoqpoiated but NRC would not enforce those conditions. Inthe case of groundwater monitoring conditions, thii would be unacceptable to the state.
It was also indicated that the potential problems of transfer of the site to the Department of Energy (DoE) byvirnre of having a state groundwater discharge permit needed to be clarified by IUC. preliminary discussionswith DoE officials involved with the Title I p.og.u* indicated it was common to have transferred facilitieswith state permits' If there is a groundwater contamination issue identified, by either the NRC license or state
o 31ii6o8reee Jw
DEPARTMENT OF ENVIRONMENTAL QUALITYDryISION OF RADIATION CONTROL
168 North 1950 West
P.O. Box 144850
Salt Lake City, Utah 841l4-4g50
[phone]
(801) 5334097 Fax
(80t) 536-4414 T.D.D.
www.deq.state.ut.us Web
January 8, 1999
Page 2
3i:'ffi:fi:fl}li1Tfff;8';this contamination problem wourd have to be resolved prior to transrer orthe
Bill Sinclair outlined some of the state "o1".:-: regarding the present groundwater monitoring system andexisting liner system and the ability to rapidly a"t"""t "onitiir"ro enrering the groundwater. Rob Herbertpointed out that the uppermost aquiier, artrroysir "f ;".;;;iry, was currentry being used ourside of the mirlMany of the state concerns were raised ,:,T::it ,.rii*.,iv provided to tt. uflc .egarding the Ashrand2 amendment request on Decembe t 7, 1998. IUC indicatea tt "iit was not opposed to independent monitoringby the state but wanted to better unierstand ,h..pr,?;;;;.oto"ol.. IUC also indicated rhat consulrantsl#ffXfri#.T-Jl*lireport regarding the i*;;il; ;;ich showeJ il"i *,er;,i"n orconsrituents ro
FOLLOW.UP ACTIVITIES:
(A) ruc agreed to solicit a letter from the DoE which would clarify any problems transferring of the
XHi.*"t" Mill to the DoE perpetual care if the Mitl was under a state Groundwater Discharge
(B) IUC wants to understand the State's groundwater sampling protocol prior to an independentsampling event' The state is prepared to d--iscuss the sampling in oetait iniuoing parameters to besampled' the laboratory to be usei, quality *ru.-."1*niror provision, ro. iott sampling and thelaboratory' and the opport,nity for split sampting il, rui. A meeting or conference call will need tobe arranged' Participants suggestea are
-trtiJtreil"
n"nrnunn ;iilbl"poi'u"ru"n of DRC, arepresentative of the Division of water Qualiry, -a giil iinclair of DRC. R; Herbert wi, take theIead for coordinating this activity.
(c) Prior to the meeting, ruc submitted an engineering report on the existing liner system intendedto booster its contention that the liner system at IUC is protective of the groundwater. DRC agreedto review the report and provide comments on the "ont"nt and conclustns. At the meeting, BillSinclair indicated the Division needed j"j::J't*rrpii*s,, which *... ur"a in the report. RobHerbert will review the plan and provide IUC with "orn'*"no on the conclusions.
(D) The state will need to evaluate the concems raised regarding the groundwater discharge permitissue' we appreciate the information provid; ilil;"oncerning state authority and eventualtransfer of the site to the DoE' we will tdrn"" tt "."1on.".s in making any finar determination onthe status of the request for a ground*I:j aisctrarge fermit. Bill Sinclair will coordinate with DianneNielson' the Utah Attorney Gineral's office, -d ;h" Di;irion of water euality and provide feedbackto IUC as soon as possible.
3 ' Some of the discussion was focused on how to better define the issue of ..reprocessing primarily for therecovery of source material"' It was agreed that both sioes trave expressed their respective opinions throughthe NRC administrative process actions on the Ashland ruinep site. IUC inaicaiJ iney wourd prepare adocument entitled "materials acceptance criteria" which coulduaar"r, the source material content issue as wellas demonstrating the risk associatia *itt, the receipt
^na pro""Jn-g of atternate feeds. gon ,ia", expressed
lf:,ii,',Til::';*:il1li";:H::"1X"ji','x,;".:i:f-[',..".#,,.a u ro,-uip-""r *u, underway and
FOLLOW UP ACTIVITIES:
IUC may prepar: materials acceptance criteria for review and comment. once received, Bill Sinclair
;:XJ.:i,tl[il"":* appropriatebepartment reviews incruding coordination *i,r, ,r," Utah Attorney
4' There were four areas identified by IUC and DEQ that courd promote acceptance by the state ofperformance-based licensing. These included:
January 8, 1999
Page 3
(l)
(2)
(3)
(4)
Listed hazardous waste issue - establishment of a protocol acceptable to IUC and the state.Materials acceptance criteria - establishment of an informationiasis that satisfies the stateand IUC for all alternate feed requests.
Economics of reprocessing - thii will probably be administratively resolved by the NRC,although there could be an agreement on the percentage of uranium in the waste, which wouldconstitute legitimate alternate feed material.
stakeholder involvement - there needs to be more and better stakeholder involvement in thediscussion of alternate feed material. There has been a great improvement in communicationby IUC with the impacted community. such activities L mill tours for the public, the recentNRC public meetings, the IUC "Rumor Mil" publication, working with the ute Mountaintribe to address the white Mesa Ute issues, and IUC's willingness to appear before theRadiation control BoTg and provide updates and answer questions have contributed to bettercommunications' Bill further indicated that there is a communication gap with the Navajocommunity and certain citizens and citizen groups. Many of these individuals do not trustIUC or the federal government to run an environmentally protective operation. others do notwant the Miil to operate at alr. There was a suggestion tirat a ..community group,, could beestablished to be a focal point to provide information or address issues of concern ofindividuals and communitiis.
FOLLOW UP ACTIVITIES:
Bill Sinclair will work with IUC in identifying concerns of individuars or group of citizens that couldbe addressed by a variety of forums. onQ iJwirring io ;o.t with IUC in'"rtuulirt ing a communitygroup to focus on mill activities and serve u, u ,ouridirg board for citizens of the community.
5' Earl Hoellen also addressed a concem that it appears that Envirocare is unduly influencing the position ofDEQ in terms of challenge of alternate feed requests. rt" not"a that both parties (the state and Envirocare)were making the same arguments regarding altemate feeds before ttre NRc. 'rrea Neton or,r," uot., AttorneyGeneral's office indicated that all State ulers have been p."p*a independent of and without consultationof Envirocare' Fred indicated that, probably because of th;high;terest that Envirocare has in the eventualoutcome of the NRC administrative p.o."rr, they do call anioffer advice to the State. Mr. Nerson againstressed that this was a state of utah issue for a variety of reasons, not just limited to the economics associatedwith competition for radioactive waste cleanups- Iiwas pointed out that the state had been supportive ofseveral alternate feed requests. of both Energy Fuels and tntemaiionat uranium including AIIied Signal, cotterConcentrate' cabot corporation, ana camlco, despite the fact tt ui t*o of which were very controversial.
January 8, 1999
Page 4
FOLLOW UP ACTIVITIES:
No follow up activities have been proposed.
Thank you for your willingness to come in and discuss these matters with us.do not hesitate to contact me.If you have any questions, please
Fred Nelson, Utah Attorney Generals OfficeDon Ostler, Director, Division of Water eualityDianne Nielson, ph.D., Executive Director, UDEeCharles Hackney, NRC Region IVMilt Lammering, EpA Region VItr
!1vio cunningham, R.N., B.s.N., Hearth officer/Director, Southeastern utahDistrict Health Department
-
O,,YTffi'a-eh-,*<-$*4rbrtu4F4
>OeVA'-'-
UTAH STATE SENATE
R. LANE BEATTIE
PRESIDENT3I9 STATE CAPITOL
SALT LAKE CITY, UTAH 84I14
January 6,1ggg
Dianne R. Nielson, ph.D.
Executive Director
Utah Dept. of Environmental euality168 North 1950 West
Salt Lake City, Utah 84114_4810
Dear Dr. Nielson:
believe that
RESIDENCE
I3I3 NORTH IIOO WEST
WEST BOUNTIFUL, UTAH A4Ot7
It has come to my attention that the federal government has allowed the white Mesamill' owned and operated by lnternationat "uranium
corporation (lUC) in san Juancounty, to dispose of radioactivewa3! withoutagroundwatlrdischarge pe*itfrom theUtah Department of Environmental Quality. I ,".J""t"nd that rUC h'as indicated theydo not plan to submit an application for, frornJ*rter discharge permit and intend tocontinue operating regardless of .the dEpartmenis request to comply with therequirement of obtaining this permit.
I believe that non-compliant behavior to this magnitude with potential impacts to thepublic health and the environment warrans action"by the aup.rtr"nt. 1,e departmentclearly has the authority to issue an orde.r p.nioitini'*ractivity which may resutt in thel::i*:::,:Tg,f:TjT".*." ,.," it t", including groundwater. Urahffi*, :::::l,l ?^'.1,9^. j:l (il_, l-,; t;il q;;il Jr,ffiHffi ff ,ffi
i"f, : ::,:: i ^T1^ "_1p_?.1 ll _1:,i l" t h e,e g, I a, r
"
. 6," Iffi ;,, p" #i i J:ffi ;r.'l;radioactive waste to the highest rever of piot"aion.
The Utah state Legislature has always been involved in setting policy for the commercialdisposal of hazardous and radioactive waste in Utah and gave the department theauthority to develop and implement siting criteria for.o*rercial waste disposal
Dianne R. Nielson
Page 2
January 6,1999
facilities' The legislature atso established the requirement that any new commercialhazardous or radioactive waste facility.or majo*o.Jiii..tion to an existing facility wouldrequire approval by the legislature and the governor. lt is through this legistation that thedepartment has been Bjven the responsibih:ty and author,,y;;:;f-."]n" prorection ofthe public health and the environment, and we insist upon full compliance within thestate of Utah.
I am very concerned that the federal government, once again, has ignored Utah,sconcerns over the protection of the pruti. health and the"environment. t wouldappreciate a response from the department on this issue.
Utah State Senate
O O--\_7DEPARTMENT OF ENVIRONMENTAL QUALITY
DIVISION OF RADIATION CONTROL
168 North 1950 West
P.O. Box 144850
Salt Lake City, Utah 841144850
(801) 5364250 Voice
(801) s334097 Fax
(80r) 5364414 T.D.D.
?/ /{/f (
('$
Michael O. Leavitt
Govcmor
: R. Nielson, Ph.D.
Exeutivc Dirwtor
William J. Sinclair
Dir*tor
September 15, 1998
David C. Frydenlund
Vice-President and General Counsel
International Uranium (JSA) Corporation
Independence Plaza, Suite 950
1 050 Seventeenth Street
Denver, CO 80265
SUBJECT: Extension for Ground Water Discharge Permit Application
White Mesa Uranium Mill
Dear Mr. Frydenlund:
The Utah Department of Environmental Quality, Division of Radiation Control PRC) has received
your letter dated September 14, 1998 requesting an extension for submitting a ground water
discharge permit application for the White Mesa Mill near Blanding, Utah. As requested by IUSA,
the DRC grants an extension of the deadline for this submittal from September 15, 1998 to October
31, 1998. Please be advised that this will be the last extension for this permit application.
If you have anl.questions, please call me or Rob Herbert at [phone].
WJS:MH:rh
cc: Don Ostler, P.E., Director, DEQ-DWQ
Sincerely,
William J. SinclAigDirector
Division of Radiation Control
F: R}GRBERT\WP\W}TTTE N,GSA\PMT. LTR
il
.ii
it::i
.!:
:*
.l:
ii
o
ALITY
Michael O. Leavin
Govcmor
Dianne R. Nielson, Ph.D.
Excotivc Dircqtor
Brcnt C. Bradford
Dcprty Dircaor
DEPARTMENT OF ENVIRONIVIENTAL QU
OFFICE OF THE EXECUTIVE DIRECTOR
168 Nonh 1950 West
P.O. Box 144810
Salt [:ke Ciry, Utah 841 14-4810
[phone]
(801) 5360061 Fax
[phone] T.D.D.
www.deq.sate.ut.us Web
June 10, 1998
Dr. Shirley A. Jackson, Chairman
Nuclear Regulatory Commission
Washington, D.C. 80555-000 1
Dear Chairman Jackson:
The purpose of this letter is to solicit your support for stakeholder involvement in the future ofregulation of uranium mill facilities by the Nuclear Regulatory Commission. We are in,...ip, "ia May 29, l99S letter from Joseph J. Holonich of your staffindicating that the Commission is inreceipt of a white Paper submitted by the National Mining Association ttut requests fi.ndamentalchanges to the regulation of uranium mills including modification of the cunent alternate feedguidance./ While the Association's views certainly deserve consideration, we b.[.;. th^;-;enhanced stakeholder process is the appropriate method to move forward to consider the complexissues ifivolved. This may require future rulemaking or modification of existing guidance.
Even though the State of Utah is not an Agreement State for uranium mill regulation, we continueto be very interested in the NRC regulatory process for the mills. Utah has an active mill that hasrecently been receiving alternaie feed materials. It appears that there is an enhanced interest to findfacilities that can receive and process waste materials especially from the Departnent of Energy..As uranium mills expand their operations to receive primarily alternate feed instead of ores, it isappropriate to consider a separate standard for such "reprocessing" facilities. Itzlr Holonich,s letteralludes to the establishment of a new part to 10 CFR part +O which would address uranium recoveryfacilities. This appears to be a correct course of action, which recognizes the difference betweenprocessing of traditional ores and reprocessing of waste materials that resemble ores such that afacility does not have to significantly modify the millworks.
We also concur that lrdr. Holonich has correctly identified the need to solicit public input by holdingmeetings later this sunmer in two Agreement Sktes (Colorado and Texas) and providing noticlwell in advance.
The Uranium Recovery Branch currently has a license amendment pending that would allow a Utahuranium mill to use performance based licensing to decide whether o. nol to accept alternate feedmaterials. Performance based licensing is a major policy change deserving of further discussion
among all stakeholders before any approval is issued. The State of Utah has met with representatives
From:
To:
Date:
Subject:
Robert Herbert
"[e-mail]. net,'@MNET. MAI LWed, Nov 12,1991 8:18 AM
Re: Request for Reports
Hi Michelle' Thanks for your timely response. The Reclamation pran sections of primary interest are theones for groundwater protection and monitoring. We can wait for the rest of the document after the NRCreview has been completed. My mailing address is:
Rob Herbert
Utah DEQ-Division of Radiation Control
168 North 1950 West 2nd Floor
Salt Lake City, UT 84114-4gSO
Thanks a lot. Rob.
>>> "Michelle R. Rehmann" <[e-mail]> 11t11g:31AM >>>Hi Rob,
I will ask that copies of the semi-annual effruent reports for 1g95 to thepresent be made and sent to you; please send me the exact address to whichwe should send the copies. As for the draft Recramation pil- it is a verylarge document, with about eight appendices; perhaps, if you courd remind meof the sections that we discussed that interested you, mig'ht it be an optionfor us to copy only those portions for you? As the Reclairation plan is, atpresent, still onry in draft form and is undergoing NRC review, I am a bithesitant to send the entire document, ,r *E kn6w that certain portions wittsurely undergo some modifications during the review pro""ir.'-
Best regards,
Michelle
At 01:03 PM 11t10t97 -O7OO, you wrote:>Hi Michelle. could you please send me the draft Reclamation pran and all>Monitoring Reports since the september 1g94 points or corpri"nce Report? rhave
>the Points ctf compliance Report and the Hydrogeologic Evaluation Report.Thanks
>a lot.
>Rob Herbert, p.G.
>Hydrogeologist
>Utah Division of Radiation Control>168 North 19S0 West
>Salt Lake City, UT B41144BSO
From: Robert HerbertTo: lnet:[e-mail]: Mon, Nov 11,1gg7 1:03 pMSubject: Request for Reports
HiMichelle'.9oyt9 you please send me the draft Reclamation Plan and all Monitoring Reports since theseptember 1994 Points of_compliance Report? I have the points of compliance Report and theHydrogeologic Evaluation Report. Thanksa lot.
Rob Herbert, P.G.
Hydrogeologist
Utah Division of Radiation Control
168 North 1950 West
Salt Lake City, UT 94114-4BSO
DATE: October 29, lgg7 TIME:
10:34am PAGES: 1
TO: Michelle Rehmann FROM: Rob Herbert
lnternational Uranium Corporation
FAX: [phone]
Utah Division of Radiation
Control
168 North 1950 West
Salt Lake City, Utah A4116
(801)5364250 VOX
9!18"1: November 6, 1gg7 white Mesa Uranium processing Facility Tour
Hi Michelle' The following Utah DEQ personnel will be present for the subject tour.
Division of Radiation Control
Rob Herbert, Hydrogeologist
Loren Morton, Hydrogeologist
Woody Campbell, Engineer
Division of Water Quality
Dennis Frederick, Engineer and Section Manager, Groundwater protection SectionKeith Eagan, Environmental Scientist, Groundwater protection SectionMark Novak, Environmental scientist, Groundwater protection SectionJohn Kennington, Engineer, Design Evaluation Section
we are looking forward to an interesting and informative tour.
Michael O. LeavittG)wmol
Diame R. Nielson. Ph.D.
Erc@tiE Dircctor
Don A. Ostler, P.E.
Dircctoi
DEPARTMENT OF EI.IVIRONMENTAL QU ALTTY
DIVISION OF WATER QUALITY
288 North l{60 West
P.O. Box l-11870
Salt [.ake Ciry. Utah 84 I l4-4870
(801) 538{l-16 Voice
(801) 538{016 Fax
(80r) 536-r{l1T.D.D.
Water Quality Board
Keith W. Welch
Chaimm
Lynn F. PettVieChai@
Robert G. Adans
R. Rex Ausbum. P.E.
David S. Bowles. Ph.D.. P.E.
Nan Bunker
Leonard Ferguson
Dianne R. Nielson. Ph.D.
K.C. Shaw. P-8.
J. Arur Wecisler
Lcroy H. Wullstein, Ph.D.
Don A. Ostler. P.E.
Erccutivc Se@64r
May 1997
Ms. Michelle Rehmann
Environmental Manager
Energy Fuels Nuclear, Inc.
Three Park Cenual, Suite 900
1515 Arapahoe Street
Denver, CO 80202
Dear Ms.
Subject:Febnuary 27 and April29, 1997 Energy Fuels Nuclear [rtters: Need for State Ground
Water Discharge Permit, Request for Meeting and Application Schedule.
The purpose of this letter is to respond to your submittals of February 27 and April 29, 1997 where
you sumftrized issues relevant to the need for Energy Fuels Nuclear to secure a State Ground Water
Quality Discharge Permit. We also appreciate the update provided regarding sale of the White Mesa
mill and the proposed schedule for regulatory coordination.
Both of your letters suggests that the State's concerns regarding groundwater quality protection at
the White Mesa mill can be resolved through the NRC license via implementation of a NRC proposed
Memorandum of Understanding (MOU). This NRC proposed MOU was provided to the Department
of Environmental Quality (DEQ in a December 13, 1996 letter from NRC Chairperson Jackson.
We are ctisappointed to inform you that the December 13, 1996 proposed NRC MOU has been found
unacceptable by DEQ. Several inadequacies have been identified in the proposed MOU and DEQ
is now in process of communicating these to the Commission.
Of the issues identified, one clearly stands out as unsurmountable; the NRC's inability to enforce
State requirements. Although Chairman Jackson's December 13, 1996 transmittal letter states that
a NRC licensee could voluntary commit to " ... report on actions or standards satisfying Utah.", she
also added that the NRC cannot "... enforce commitrnents that go beyond NRC regulatory authodty."
(ibid., p. 2). Further, the NRC staff added that such voluntary comrnitments " ... needed for
conpliance with State of Utah standards would be the responsibility of the State to enforce." (ibid.,
ttAY $g/
cr-i
Enclosure 4).
May 15, 1997
Page 2
on this basis' we have determined that if state ground water quarity protection requirements are tobe enforced at uranium mills in Utah, including the white Mesa facility, DEe has no other recoursebut to require EFN or the current owner to secure a State Ground water Discharge permit.
we recognize your need to conplete sale of the mill to the International Uranium corporation (IUC)and are *'illing to work with you and IUC to form a schedure by which a State Ground waterDischarge Permit application can be provided. we suggest that *e meet in the next 30 days toformulate a schedule acceptable to all panies concerned.
or concerns regarding this determination, or to schedule the meetingNovak at 538-6146- Thank you for your continued cooperation in this
O a 2,U*
Don A. Ostler, p.E.
Director
Utah Division of Water euality
LBM/DAO:lm:wlm
Enclosure
Lorer Morton, DRC (w/o enclosure)
Joe Holonich, NRC (w/o enclosre)
If you have any questions
suggested, please call Mark
rrultter.
Sincerely,
F:\efngwp.lr
File: EFNAVhire Mesa Groundwater permit
Uranium Mills Water euality Coordination TeamUtah Department of Enviionmental euality
The Department has established a uranium Mills coordination Team for the purpose of providing acomprehensive approach to protecting human health una i[" *ut"r quality "nriro'n*"nt. Bill Sinclair,Director of the Division of ttadiationtontrol*irrse*" usit" i"urn reader. The uranium ivriilscoordination Team:onr:t of aesieatea:"T.;ir3.d;;;;;, from the Division of Radiationcontrol (DRC) and the Division "iit;i;; qruriry-iowqiuniotn"r, as the n."J a"*unds (e.g.toxicologist)' A focal point of the coordinaiion "rrirt
,..iii u" u i.gururly scheduled meeting, as needed,bet*'een DRC and DwQ. rh" m"Jng;lrr ro,"t. ru.tr,i,", r*oings are held at both the cannonHealth Building and DEQ Building *i] rn" n"o oiririo, ;;ifu ,Irponriui" io,. ,lr.*irg a meetingroonl for the meeting' An agenda iill b"prouiaea rai enor;h;, advance t-o prepare for the meeting byDRC' The agenda 'iuv u' tioJii;;;;.." tn.*""iing';;"";;..*ber of the team. Representativesfrom DwQ are also invited to attend'the qrurterly
"onf"-r"n." Jull with ,r," Nr.t.*'Regrt"torycommission on uranium Mills at rt. ond officei. DR.;lll ,o,irv DWQ of the date and time of theconference calts as soon as the call is urr"ng"a.
while it is the intent of this MoA that the respective agencies coordinate on water quality issues ofmutual interests, it is acknowledged that each Ag:;.y E;;;i;;r-tiry,nuna"ted responsibitities.Therefore, it is understood that t[ir uf."*"nt w]il ";t pr;;i;J; "i,t", Agency from meeting theseresponsibilities' For groundwatet utiiu* mill issues, Lor"n rrronon will be the lead p.rroi f.o*DRC' Mark Novak oiowq tuitr .oo.Jii"te with r,or"orrrlrton on irru-", of groundwater dischargepermitting pertainine-to Platiau R..our..,
"nd.energy rr.r, ivr.r.r, white Mesa Mill. Loren Mortonwill coordinate withbwq o" DoE iiir. ia"ilirti"r"r'cr.* [J"r and vitro/clive) and ritte IIfacilities [Atlas, Envirocare I le.(2)].
Priorities' policy issues, resource decisions, and review tumaround times as a result of millactivities orNRC actions' will be discussed 'na a..tions:nade under the t.u. .on."pt. Significant meetings withany uranium Mills customer will be cooJinated to allow "n"na*.. by each oiiision. opportunity wilbe given for revierv of correspona"n.. lln.ruted by "itt ". oiririon ", u resurt of an action ar a uraniummill prior to it beine mailed to uranium-mill .rstorn..s. changes requested as a resurt of a reviewshould be done in itimelv *unn", *J';;r;;'i^;i,rriil, #irlr of the correspondence u.ho wi, beresponsible for informing and gaining concurrence of manag"*"nt io. the requested changes. staff andmanagement will be orovided with ai'due date" which r.t;;;; the needs oi,r.," "urrror in beingtimely to the uranium mill customer. ei*L"a .o.r"rpon?"n.. *irr be copied to the other Division.
y.Hi'#^?i,li,:Xm::r.:":'"::,1TT:,:i,h each respective Division as necessary o, inro.m t[[T::Ly'3:,::lf::l::i"Sll']*::j:::i;1",t "fi:',.#i{jll',iii,ii,l,.u".,Xt:y.:J,"1i"fr*:,,
1.":, ::' [f,::: : l?:] l " bas is, B i I I s i". r"i. * i r r ;;;;r;';;;;i*",,"ffi ,i'# ;ill issues with Donff:i';ffi :,"?il*il?i"r*::"_y1,.",11Tr;F"i'i;J:l'il:il::trtllllJ::,,1'Ji,3Il,l"".ildL ganncIevel will be elevated to the Depart..ni r"*r for discussion and resolution-
This agreement rvill be instituted as of 2 January I997.
,C^ CI 0U--
Don A. Ostler, p.E., Director
Division of Water euality
UM;e=iL6.dtu
De@te 3, t996
@
Michael O. Lravitt
Govmor
Danne R. Nielson, Ph.D.Ereutivc Diretor
Don A. Ostler, P.E.
Diretor
'i::..... .::" .:: :.
'rr..,itt * +..i,
. ::: :: .::. ...:i i ::: 'i. ii IALITY
.:::
n]:
288 Norrh 1460 Wost
P.O. Box 144870
Salt Lake City, Utah 84114*4870
[phone] Voice
[phone] Fax
(801) 53G4414 T.D.D.
Weter Quallty Board
Keith W. rffelch
Chaimo
Lynn F. Pett
Vice Chaimu
R. Rex Ausbum, p.E.
David S. Bowles, Ph.D., p.E.
Nan Bunker
l,eonard Fergusoo
Dianne R. Nielson, Ph.D.
Joc C. Nielsm
K.C. Shaw, P.E.
J. Ann Wechsler
Lrroy H. Wullstein, Ph.D.
Doo A. Ostler, p.E.
Ereutivo Sqaaor
August 28, 1996
Certified Mait
(return receipt requested)
Ms. Michelle Rehmann
Environmental Manager
Energy Fuels }..Iuciear, [nc.
Three Park Cennal, Suite 900
1515 Arapahoe St.
Denver, CO 80202
Dear Ms. Rehmann:
Subject: Call for Ground Water Discharge Permit Application for White Mesa Mill
As you know, the White Mesa Mill is considered under the Utah Ground water protectionRegulations to be an."existing facility",-and subject to the requfuement to apply for a groundwater discharge permit at the discretion of the Executive Secretary. Although the site is currentlyregulated by the u.s. Nuclear Regulatory Commission (NRC), there are seviral aspects of NRC,sregulatory program where matters of concern to the state are not addressed. Earlier, we hadhoped that NRC would address these state concerns in their regulatory program, and therefore,we.had temporarily stayed the permit application requirement After discussions between NRCand the utah Division of Radiation Controt over ^the Atlas mill site near Moab, NRC hasdetermined they do xot have the legal authority to enforce state requirements. Accordingly, wol no* requidng that you submit a ground water discharge permit application for the WhiteIt{esa N{ill vrithin six months of receipr of rhis retrer.
Upon our e:[lier review of your proposal for compliance monitoring to be done under your NRClicense, we concluded that the pioposed-monitoring progru* would be adequate for compliancemonitoring, under a ground watei discharge p".riii. i{o*"r.r, in the "uint that compliancemonitoring revealed a release of contaminants from the tailings cells, there would bediscrepancies between state and NRC regulatory programs. These include differences in whichbodies of underground water are protggted, *ii.[ parameters are regulated, and cleanupprocedures and standards. Compliance with the state progru. can only be insured through a stateground water discharge permit.
U
DEPARTMENT OF ENVIRONMENTAL QUALITYDIVISION OF WATER QUALITY
:i ri ,: . .,. ::i
':i... . i :: .:: ...:::.. :::
Michael O. l.eavitr
Govmor
Dianne R. Nielson, ph.D.
Ereutivs Dircctor
Don A. Ostler, p.E.
D iector
288 North 1460 West
P.O. Box 144870
Salt lake City, Utah 84t 144870
[phone] Voice
(8ot) 538-6016 Fax
(801) 5364414 T.D.D.
Water euality Board
Keith W. Welch
Chaimo
Lynn F. pen
Vicc Chaimu
R. Rex Ausbum, p.E.
David S. Bowles, ph.D.. p.E.
Nan Bunker
Lronard Ferguson
Dianne R. Nielson, ph.D.
Joe C. Nielson
K.C. Shaw, p.E.
teroy H. Wullstein, ph.D.
Don A. Ostler, p.E.
Exeutivc Socary
January 8, 1996
Michelle Rehmann
Environmental ManagerEnergy Fuels Nucleai, tnc.Thre_e Park Central, STE 9001515 Arapaho St.Denver, CO SOzoz
SUBJECT: Ground Water discharge permit for White
Dear Ms. Rehmann:
This lener is in response topermit application for the \lr ruJ rsr'r'Er rs III resDonse to your request foJ an extension of time_to submit your ground water discharsepermit application for the wfiii; Mffii"iri, i"itiiiffi;';tilil1rz-o.o or ne utafi Aiministrarive cod-e.
li'fffl:i,if,l,rilfkL1l p#"d0.',+iJi,l,['r,iJxx,:?J8i??lii;,]f.-i,yfii,ffT.or.Ji.l"'-T.r#lit"l?
your request.
Diarure R. NielsonBill Sinclair, DRC
Joseph Holonich
SE District Health Dept.
we had hoped' that by now, several issues rygardilg .your Nuclear Regulatory commission, NRC, license
iflJ..tH,*hy#fi1"-8lT;t[i::,:l'ji*u,se to-tirei*t.niiol,reqrest. rio;;G;rhis is not tre casi.
A:',:lr'nili?1,;,riltuffi B[r"1t::If[fl!!i,f#,1{ta;,.,,",:'f#;;ii.;E3;fr1;":131ffiyour remaining efforts and time to meiitrre -DeiliGi'ij:1ffi
deadrine.
we hope these terms are satisfactory to you and request that you keep us informed of your progress.
Sincerely,
Utah Water euality Board
,A- d, illl,*
Don A. Ostler, p.E.
Executive Secretary
DAO:MN:wfrn
Mesa Mill
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Independence Plaza, suite 950 o 1050 seventeenth street o Denver. co g026s o 303 628 7798 (main) . 303 389 aI25 (fax)
June 3, 2003
VIA FACSIMILE & FIRST CLASS MAIL
Mr. William von Till
U.S. Nuclear Regulatory Commission
Fuel Cycle Licensing Branch
Mail Stop T-8A33, 2 White Flint North
11545 Rockville Pike
Rockville, MD 20852 -2738
Dear Mr. von Till:
As per your discussions with Mr. David Frydenlund, we regret to inform you that Ms. Michelle
Rehmann is no longer with International uranium (usA) corporation.
As Ms. Rehmann was the primary contact person for correspondence with the U.S. Nuclear
Regulatory Commission ("NRC"), please be advised that Mr. David Frydenlund will replace
Michelle Rehmann as the primary contact for correspondence with the NRC, as David will be
assuming a majority ofMichelle's responsibilities with regard to affairs with the NRC. The address
will be unchanged.
If you have any further questions or require clarification on the above please feel free to contact me
at (303) 389-4rs3.
Sincerely,
Ron F. Hochstein
President & Chief Executive Officer
Intemational Uranium (USA) Corporation
William Sinclair- UDEQ
Tom Rice - Ute Mountain Ute Environmental Department
David Frydenlund
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Unexrurvr (usn)
Conponeuou
Independence Plaza, suite 950 . 1050 seventeenth street . Denver, co 80265 .
April 16,1999
303 628 7798 (main) r 303 389 .1125 (f.rx)
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VIA FACSIMILE: (801) 538-60t6
VIA FIRST CLASS MAIL
Mr. Don Ostler. Director
Division of Water Quality
State of Utah Department of Environmental Quality
168 North 1950 West
P.O. Box 144850
Salt Lake City, UT 8,il 14-4850
White Mesa
Dear Mr. Ostler:
As contemplated in our letter to you of March 19, 1999, this letter summarizes information
previously submitted by International Uranium (USA) Corporation ("lUSA") to the Utah
Department of Environmental Quality ("UDEQ"), which is the type of information that is
normally provided in an application for a Groundwater Discharge Permit ("GWDp").
For your ease of reference. the italicized sections below are ordered to correspond to selected
sections in the Utah Ground Water Discharge Permit Application lnformation format, with
each item followed by IUSA's description of the information which has been submitted
pertinent to the section.
DISCHARGE VOLUMES
Part B(3.) This section requires thot for each type of discharge checked in #2 above,
the applicant is to list the volumes of wastewater discharged to the ground or ground
water. Volumes of wastewater should be measured or calculatedfrom water usage.
As defined in this section. IUSA would check none of the discharges in #2, and would
respond that IUSA has no discharges of fluids to the ground or groundwater.
J. POTENTIAL DISCHARGE VOLUMES
Page B(1.) This section requests that .for eoch type of potentiol discharge checked in#2 above, the applicant is to list the maximum volume of /tuid that could be
discharged to the ground considering such factors as; liner hydraulic conductivity
and operating head conditions, leak detection system sensitivity, leachate collection
system fficiency, etc. Calculations and row data used to determine said potential
discharge should be attached.
Mr. Don Ostier
April 16.1999
Page 2 of4
The letter report from Knight-Piesold (Evaluation of Potential for Tailines Cetl Discharge-
White Mesa Mill, November 23, 1998) (''Knight-Piesold Report") evaluated the potential for
discharge of tailings fluid to the ground, considering the above factors. as well as liner
installation quality control. Calculations and data used to evaluate the potential for discharge
from the tailings impoundments were detailed in the section entitled Modeline of potentLl
Volumetric Flux in the Knight-Pidsold Report and February 12, 1999 responies to UDEe
questions.
8. HYDROGEOLOGIC REPORT
This section call.s .for a geologic description, with references used, that includes asappropriate: Structural Geolog,, (i.e., regional and local, particularly faults,
,fracture,g, joints and bedding plane -ioints, Stratigrapfui (i e . geologic formations and
thickne.ss, soil tvpes and thickness, depth to bedrock; Topographl, (i.e., a map which
identifies.facility boundaries, the 100 year flood ploin area and applicabte Jloodcontrol or drainage barriers, and surrounding land uses.
Section 1.0 of the H),drogeologic Evaluation of White Mesa Mill (Titan, 1994)(the ,,Titan
Report"), contains descriptions of structural geology, local geologic structure, hydrogeologic
setting, stratigraphy, and topography.
The section requests a Hydrologic Description, with references used, that includes;
Ground water depths, flow directions and gradients. Well logs should be inclttded iJ
available. Aquifer name and characteristics, including saturated thickness,flo* directions,
porosity, hydraulic conductivity, hydraulic communication with or isolation from other
aquifers or surface sources, recharge informotion, water in storage, usage, and the projected
aerial extent of the aquifer.
The Titan report; Points of Compliance. White Mesa Uranium Mill (Titan, lgg4xthe "pointof compliance report"); Hydrogeology of white Mesa Mill (Umetco, 1992); and Semi-
Annual Effluent Report(s), which have been provided to UDEQ, contain details including
groundwater depths, flow directions and gradients; well logs; flow characteristics including
aquifer name and saturated thickness. flow directions. porosity, hydraulic conductivity;
confining units preventing communication of the perched zone of groundwater with the
aquifer; recharge information; water usage: and aerial extent of the aquifer. These reports
demonstrate that no groundwater has been affected by potential discharge from the taiiingscells' Water elevations and piezometric surfaces for both the unconfined perched zone usedfor groundwater monitoring and the confined Entrada/Navajo aquifer, respectively, are
presented in these repofts. In particular, Section 1.0 of the Titan Report describes the
geologic, hydrogeologic, and climatological setting of the Mill. Section 2.0 of the Titan
report evaluates groundwater occurrence in the uppermost sandstone units, which hosts a
thin, discontinuous zone of poor-quality water used for monitoring; the aquitard properties ofthe underlying thick sequence of shales, mudstones, and claystones; and the aquifer
properties of the deep Entrada/Navajo aquifer, located more than 1,200 feet below the Mill.
The quality of the perched groundwater is described in Section 2.2 of the Titan Report and in
Section 2.2 of the Point of Compliance Report. Water quality data are contained in
Appendices of each report. The reports contain groundwater monitoring data collected since
Nfr. Don Ostler
April 16. 1999
Page 3 of4
as far back as I979' from collection points located both hydraulicallv upgradient anddowngradient, and within a one-mile radius of the tailings cells. These historlc data shouldmeet the requirements of Section 8.
I'lote on Protection Levels.
This note states that a.fter the applicant has defined the quality of the .fluid to be discharged(Ground lf/ater Discharge Permit Application, Pirt B), chiracterized the localhydrogeologic conditions and determined background ground water quatity (Hydrogeologic
Report), the Executive Secretarywill determine the appticable grouniwateir class, base4 on;l) the location o.f the discharge point within an area offormally classified ground water, thebackground value o.f total dissolved solids. Accordingly, the Exicutiie Secretary wildetermine applicable protection levels for each pollutani of concern, based on backgroundconcentrations ond in accordance with URC R3t7-6-1 hnd R317_6-6.1A(l).
As stated in Section 2.2 of the point of Compliance Report:
"The average total dissolved solids (TDS) concentrations for site wells in the perched
zone range froml,27l to 5,052 milligrams per liter (mg/L) and average sulfate
concentrations range from 656 to 2,956 mglL. These .anges of concentraiions also
have been documented in sandstone and shale units in other semi-arid regions withnatural poor water quality According to Utah Administrative Code R44g:6, ground
water with TDS of 3,000 to 10,000 mg/L is classified as Class III - Limited Use. Anumber of upgradient. transgradient and downgradient wells, including wellsWMMW-3. WMMW-44, WMMW-r2, WMMW-r4, WMMW-r5, WMMW:I 7 andWMMW-19. would fall into this classification, indicating the poor quality.of theperched water."
GROUND WATER DISCHARGE CONTROL PLAN
This section ask.s the applicant to select a compliance monitoring method todemonstrate an adequate discharge control system. Among the disctarge control
options is "no dischorge," meoning that the system preveil; any discharge ofJtuidsto ground or ground water by lining discharge point with multiple syntheiic ind ,toylinersI an earthen liner, which controls the volume and rate iy uyturnt seepage byli.ning the discharge point with a low permeability earthen ii"i| @.g. ciyll anridemonstration that the receiving ground woter, at a point as close as piaurcil to thedischarge point, does not or will not exceed the protiction levels. Thii demonstrationshould be based on numerical or analytical siturated or unsaturated ground water
.flow and contaminont tronsport simulations.
The Knight-Pidsold report and supplemental responses to UDEQ, described above, addressthe Mill's liner system and conclude that the liner system will serve to prevent discharge oftailings fluids to groundwater and will prevent an exceedance of proiection levels. Thisdemonstration was based on numerical saturated and unsatur;ted groundwater flowsimulations.
Mr. Don Ostler
April 16. 1999
Page 4 of4
C ompliance Monitoring P lan
The applicant is asked to demonstrate that the method of compliance monitoring
meets specilied criteria for groundwater monitoring, including well location,
construction, operation; sampling and analysis procedures,. and bockground w-ater
quality.
Section 3.0 of the Point of Compliance report details the detection monitoring program
approved by the U.S. NRC for the Mill. The report contains details regarding *"il io.uiion.
construction, and operation, and development of baseline water quality levels. Baseline is set
in accordance with methods recommended by the U.S. Environmental Protection agency, andare detailed in Section 3.3. Statistical Analysis of Monitoring Data, in the point of
Compliarrce report. Sample collection and preservation conforrns with EpA methods, and is
discussed in the White Mesa Mill Quality Assurance Project Plan, submitted to the UDEe in
I 998.
This concludes this summary of information that IUC has submitted to the UDEe, which
constitutes facts to be used to assess what, if any, meaningful differences exist between the
current groundwater regime applicable to the White Mesa Mill under NRC regulations and
the State of Utah's Groundwater Discharge Permit ("GWDP") program. On oi before May30, 1999, IUSA will submit a second package of additional information not previously
submitted. based upon the data and needs described in Appendix A, Permit Application
Information, of the Groundwater Water Quality Protection Permit lnformation Document(UDEQ, Division of Water Quality, January 1996).
/LiLr-{a L-----
MRR:smc
Dianne Nielson, UDEQ
William Sinclair, UDEQ
N. King Stablein, NRC
Mike Fliegel, NRC
Paul Lohaus, NRC
Charles Hackney, NRC
Fred Nelson, Utah Attorney General's Office
David Bird, Parson, Behle, and Latimer
Tony Thompson, Shaw, Pittman, Potts, and Trowbridge
Milt Lammering, EPA Region VIII
Earl H. Hoellen, IUSA
David Frydenlund, IUSA
, Sincerely.-)'b)L.Cu-
Michelle R. Rehmann
Environmental Manager
lt4AF-I g-89 10;00 From;ll{TERI|ATI0NAL URAiIIU}',|
INTnRN.fl'r'NAP
Unnxruna (usl)
ConronrttoN
30398E41 20 T-431 P.02/04 Jsb-959
IndependenCe Plqzg, SUte 9$0 . lO50 Scvuntsrrrllr Strect . perlveri CO 80EGd + COC 628 7708 (rr:ain) . 0(lA g"l0 afES {frur)
March 19, 1999
Vin Frccimilo: !P1:531-4097
Vie Feder0! Erpress
Don Ostler, Director, Division of Water Quality
$tatc of Utrh
Depanment of Environmental Quality
168 North 1950 West
P.O, Box 144850
Salt Lake City, UT 841144850
Re: White lvIesa Mill
Dear Mr, Ostler:
We appreciate the oppoilunity to meet with you and other members of the Utah Department of
Environmental Quality ("IJDEQ") on March 12, [999, to discuss the potential applicability of
the State of Utah Croundwatcr Dischargo Dermit ("GWDP") roquircmonts to IUSA's White
Mesn Mill (the *Mill"),
As we stated at the meeting. protection of the environment and public health is, has been and
always will be of paramount irnportance to IUSA in operating the Mill. The MiU is subjeot to a
oomprehorrsive regul*tory reginre adrninistered by the United State* Nuclear Regnlatory
Commission ("NRC'), which includes monitoring and other mea$ures to proteot groundwater.
We believe thet these rogularions are aE protective of the environnrerrl, irrcludirrg grouttdwater, as
any State rogulations. Indeed, the I-IRC regulations incorporate Environmental Proteo'tion
Agency ("EPA") Resource Conservation Recovery Act ("RCRA') hazardous waste coutrpl
requirements to addrecs the non+ndiologicaUhazardous constituents in uranium mill tailings,
which is why RCRA permits are not required for this facility. Furthermore, oontinuous data
uulleoted on poundwatcr quality at thc Mill over the last 20 ysar$ $upport this belief; Since the
Mill began operations in I979, there have been no discharges to groundwater from the Mill, nor
is there any data to suggest that there is probable oause to believe that thc activitie$ at the Mill
willresutt in such a diecharge in the future,
Ae you are a'ware, rusA beli+ves th*t the application of the l-Ttth weter Qrrality Ael to an NRC
liscnsed facility, such as the Mill, is preempted by federal legislation, and assertion of Stste
intervention could woll resull in the United Statcu Dcparhtrtrtl of Energy ("DOE') not taldng
lrlAR-19-9E 18,00 From;lNTERI{ATl OIIAL URANo IUM 30338941 20 T-131 P.03/01 Jcb-9E9
Mr. Don Ostler
Moroh 19, 1990
Pago 2 of3
long-rerm c,are and cu$ody-of the lvIill. For this rcason, ruSA believe$ that it is not required to
obtiin a GWDp. rrrrspi&ire of this faor, IUSA believes that it also would not bE required to
"ti"in a GWDp under fhe Utah Water Quality Act because, ss noted above' there is no proba.ble
caus6 to believe that the Mill will result in a discharge of pollutants to groundwater.
Neverthaless, IUSA dooE undcrstand that TJDEQ has a oonoern thet the NRC'p regulatory regime
may not protect the iroundwiler ar-rhe Mill to the Extent lhe Sute believes is rcquirod. We Erc
.o,i*ittdA tro worki-ng with UDEQ to determine what, if ,ary, meaning-fi.tl differences exist
herween the cuneni!-roundwater regime applicable to the Mill under NRC regulations and the
State'e GWDF progfr*, We hereby reeffiim thnt comrnitment, and intend to continue to work
*itf, Upne wiit iuiew to sxis$ing uDEQ's concem in a rnanner that is competible with the
federrl regulamry regime appliuublc tu tlreMill'
To this end. during our meeting on Much 12, UDEQ pronose{ that IUSA infolrnally submit
i;f#;tdivpiC*ilv *quired for a GWDP. After receiving this inforrnation, UDEQ would then
A*n o,"Sg#od f.ilof CWpp that would e*tieS UDEQ's requirement* P"t thet would also
oddross l[S*'s coneerna that were thoroughly discussed at the me.eting, including the DOE
transfer issue. tJDEe expressed the opinion that they believed this could be accomplished,
tusn and uDEQ will-trren ev&tuatff whither any meaningful rliffererpe; exist bctwccn tho two
giounawate, ,*gr*ut and, !f so, whether theyare more-*qr.0ry11t1{.resolved through the
iu__ruanoo of u Olmp, by adding dditionel oonditions to IUSA's NRC license (which was the
rpproach suggested by ILISA)' or hy some nther alternative'
As wo dircussprl, alry uur;rptable nrpthod of dtaling with thcsc issucs will hsve to address our
*oncern that the State will att*,npt to u$e the CWDP 4s a ffieans to regulate and control IUSA's
opor*ion, et the Mill. You snd Frod Nelson attempted to assure us that the State's only
objectives in terms of a GWDP were the protection of groundwater and enforcement of Utah's
la**. While we believe your thoughts were sinsere, you oen imagine how dismaycd wc wers
,"hon *" reoeivod n oopy of the ettiched letter from Bill Sincleir to the Ser,re;tary.of theArmy. I
t upu Vou no* undurstand our concern about the State's motives in requiring rulA to zubmit to a
AWUf This interference with IUSA's commercial activities suggests hostilc Stata motivet
which could be interpreted as tortious attempts by a non-Agreement State to indirectly rnd
illegally regulate our facilitY.
Irrespective of this unfofiunate event, which we wilt address separately, rySA intends to honor
its gommitmontr io continue to ux;rlure w*ys to worlr with UDEQ to rcsolvc our differences in o
mutually satisfactory manner, Thereforl, we would like to proceed with. the next step in
LIDia;; proposal afrd provide LJDEe with the intbrmation normally required in an apptication
for a GWDP. This information should allow UDEQ to understand.the carefirlly ohosen phyjical
*rtirioiirr. Miil ;;ehr iigulatory regime applicable to it, and to determine from UDEQ'S
point*of vicw whot, if any, m"eanirrgful aifferen"e* thare may be between NEC's groundwater
protection program and the State's GWDF progrsm'
IUSA has reviewed the information required, and commits to submit to UDEQ on or-befor.e
nprir- ral rggg a summary or inforrnatiorir previously submitted to tiDEQ. Ln addition, IUSA will
[lAR-19-99 10,0I Frsm;tfiTERl.lATt
Mr, Don O*ler
Maroh lq, lg99
Pege 3 of3
OI{ALo URAN i Ul'll 30E3BE4r e0 T-431 P.04/04 Joir-889
also submit, on or hefore May.30, l9?1, supplamcntat informstion rrot prcviously submittcd,bJ**d upon the_dsts end need$ dEscribed in A.|lendix d Fermir Applicati6n tnt'ormatiotl of th;Groundwater Water Quality Protection Pennit Informarion Doiriment fifOge, Oiriiion oiInttl Quality, January 1996). This would include information in the foliowing areas: facilitylocatiott, type ofl fluid at thc sita, volumes of fluid at the sitc, potential dischaigo of volumci,
me&ns. of porcndal dlscharge, water flp*g disuharge of fluid characrcristics,lrydrogeolosy,groundwrter discharge controls, compliance monitoling,_ clorure and post ctosure ptins, fficontingencv and conective afiion plans, If this schedulE-is not acceptaUtu to IJDEa, pi.ri. trius know is s6on as possible so that wE can discugs possible alternatives
After you have had a chance to review this information, UDEQ and IUSA will be in a betterposition to discuss any rneaningful differencrys bal.wcen- thc twu gluurrdwatur regulatoryprogrsms, and the most appropriate wey to address any such differenees,
IIJSA continues to believe that the comprehensive regulatory requirements oflthe NRC have andwill uontinuc to lt6surc.Protcction of publiu health and safety, inifrOinjlround*"ato isrucs, Wcrccognize the State'r differing view on this issuc, but oontlnuc to boilclc thrt rcsolution of thedifferences bdween I-USA and UDEQ through constructive negotiarion is preiera6le to litigation.Theretbre, ws are willing to uroceed with UDEQ's suggested approach as I demonstration of ourgood feith to assure protection of the environment to-tIDEQ;s satisfaction. tUSn appreciatJtIJIIEQ's willingness to consider all possiblc options avaiiablc t;;;; piotcotion of thcenvironment in r manner that is consistent with the regulatory regime applicable to the Mill,
EEH:rap
cc: Dianne Nielson, Executive Director, tIDEe
william $inclair, Director. uDEe Division of Redi$rion controlKing Stablein, Chiafl NRC Uranium Recovery Branch
Mikc Fllcgel, NRC Uraniurn Rocovery Brlnsh
Paul lohaus, NRC Oflice of State programs
Charles Hackney, NRC Region IV
Fred Nelson. Ilteh Attnrney General,c Office
David Bird, Pusons, Behls" and Luimer
Tony.Thompsorq Shaw, Pittmen, potts, aad Trowbridgo
Milt Lammering EPA Region MII
Ilavrcl !'rydentund, lUtiA
Michelle Rehmann, ruSA
Corrlially,
Prcsidcnt and Chicf Excoutivc Officcr
lllAR-Ig-gg l6:00 From: tNT URAllTUt{ C0Rp 3033891 I e5 T.832 P Joh-482
iffi',tffi".,f,;
CoRpoRerroN
Independence Plaza, suiie giO r 1050 sevenreenth $troet + Deflver, co g026s + 303 628 ?798 (main) I j()J 389 4l?j (rax)
FACSII{ILE TNANSMITTAI,
FAXNO:
PHONE NO:
DATE:
PAGE I OFr
{80}) 533-40S7
i801) 536-4?ss
FROM:
IFALL PA6ES AR,E NOT RECEIVED. PLEASE CALL;
3/Le/59
sharon Carrerll,ll,
PHONENo' , rso:r .eg-arrE - ,.-,
Bill I
ruc would like to reguest placenent o$ theepril 2. We will need about five mLnutes toto update on events at the MiII.
fhank you,.
agenda ef the RCe nreeting,present a summary reFort
IMPORTANTiCONFIDPN
IJH:fi::iJ:lr#:T,Tyf,::*HT-J::,",3ff:T:"T1,:ji1,i, i;*;#d.*r_ryliru;;il"$see shown above. prarco notito ourimmediotolv at anv of the telephon€ or Fax numbers.shown J"ri itv* .re rror fte addrcssee oi",l;H'#llrffiill:ffiJ,1,':fdT il
||fj:H','; ,il-,f,i:::::'Hl#::::ll:t:::"":*^"_"lyli"Thi.-ll p*i'iuit *y ir"i*rnutron, drsnrburron or copyins by or ro enythan the addressee. ouroffici willanange ror ie retu;ttrh;u;irHil;;;ililiH*ffioi'iy";H,ilffi-l'#lill-?H:l;:YJl;
IhrreRNnn$r
uRANruM (USA)
ConponATroN
Indcpcndcnce Plarn, suits 9s0 0 1050 scwnteenth $treet 0 Denver. co s026s t 303 628 7798 (rnain) I 303 389 4l2S (fax)
FACSIMILE TRAHSMITTAL
Don Ostler FAxNo: [phone]
State of Urah PFIOITIENO:
FROM: EarlE. Hoelten DATE: March 19, 1999
International Uranium Corporation PAGE I OF: 4
r ALL PAGES ARE NoT RECEIVED, FLEA$E CALL: Tonya R, PTioc
PTI0NENo: (303) 389-4lJl
From r I ITITERI{AT I OttAL URAi{ I U[{30338941 26 T-431 P.0l/04 Jsb-989
FEB-04-EE l4:52 From:lNTERI{ATI0|lAL URANIU},i 30338911 2B T-1 41 P.02/0a Job-291
Ir+rnnu.rrIoNALO
Unexruu (usa)
CoRponrrlon
lrrlependencePl'rza,surtegE0ot060seventeenthstrcutrDuttwr'Co80266
FebruarY 4, 1999
Yours trulv.
. IJ03 698 7708 (rntin). 303 380 4ISE (10rs)
Mr. Don Ostler
Dirsotor-Division of Water Qual ity
Dcpartment of Environmentel Quelity
Stare of Utah
P.O. Box 144850
salt Lake ciry, utah 841l4'E450
DearMr. Ostler:
vy'e undcrstand from & conv.rsation between our oouneer, David Bird, and Fred Nelsorr of the utah
Attomey Crenersl'e office, th*t you
"r"
.rolnJy t-rit*i^i thereri.tts materials IUSA has submitted
ro DEQ in reply to DEQ'5 r6guest that ILiiA Lbt"n . gioundw*er discharge permit for the White
Mesa Mill. Wp further underslu*cl rttut Vou *ift li ma[in* a.determination os to whether or not 4
ilr"ffiffii"i; ;*i;ih;lilii*i["ta Notice of violation" will be ta,ken asainst IUSA.
we request that you pleaso adv1sP rusA o.f Ty conseffE you rnay. have with roe.pect to the matoriEls
you ere reviewing, fJrii **f.ing any i*ition ee to aty tirrmsl actions' This will eive IUSA an
opportuniff to disc,uss your soncerns wittr-you and to proride further information to you if necessary'
or to otherwise address your concems'
we believe that IUSA and DEQ are capsle of sddressing DEe's gr.undwater con.Brns within the
existirrg reguluory tamework iithuut [,* ueerl for a erou;d*atir dlscharge porrnit' In kmping with
our discussions on D;;*# ii, rpgg, ;il;tilr in.t it is preferable ro resolve these issues in a
conciliatOfy mqnner, and Ortly where the issues gfe not cap*ie of being resolved in sush a rttuutsf
should formal actions be taken,
We tharrk you for yollr cftqleration in this maner'
Vice President u1d General Counsel
DCF:trpcc: David Bird. Esq'
Esrl Hoellen
Fred Nelsort, Esq,
Dimno Niolson,Ph'D.
Michelle Rehmann
HillSinclair
Ted Steward,Esq.
Anthony ThomPson, Esq'
.. FEB-04-gg l4:51 From: INTERI{ATl0ltlAL URAiIIUM 30338911 et T-141 P.l1/tZ Joh-Z91
IurnnNnrloll
unnxluM (usA)
ConpontrtoN
Inderrendpnce plazs. SuitE 9s0 I 1050 Sevcnterrrth Street 0 Denver, CO 80265 t 303 628 7?98 (mafur) 0 303 389 4125 (fox)
FACSIMILE TRANSMITTAL
Eill Sinoleir FA)TNO:
PHONENO:
(8or) 533-4097
Statc of Utrh
FRoM: David C. FrYdcnlund February 4, 1999
International Uranium Corporation PAGE I OF: ?
IF AIL PAGE$ ARF- NOT RECEI'GD' PLEASE C.,4LL: TONYA R' PTiCE
PHoNENoT [phone]
i than to the person tr whorn they are addnxsed as t r
equipnrent failure or hrmu ennr, This Comnruuicotion is intr5dnl soleiy for thc ;rrlrlresse€ showtt tbove. Pluse notify ors ofEce immedi
o, uny Jt rf,* Flephone or Fsx numbErs sho\r,n ahove if yon ere not 0rc sdrJresrrre or solncone responsible for dclivefing it to the uddressee. We r
.if ;[,fru *,0 privileg"'s or io irri* .o*m1ni91ti.ou .*14 ir"1iui1 any dissemination, dish'ibuti:y *..1y *t lf :T fY.:.lt otlrer tharr the addre
Our offise for i tlre United States or hv comnl€fcial carrit r [o us {t lro cost.to
FEB-04-gg 15:52 From: INTERNAII0NAL URAi'|IUM 3033894t 26 T-144 P.02/08 Job-300
INrrnruerloO
UnaNrurvr (USA)
Conronarlor.l
Independence Plaza, Suite 950 . 1050 Se'zenteenth Sbeet r Denver. (l() 80265 r 303 628 7798 (main) r 303 389 4125 (fax)
Febnrary 4, 1999
Ms. Dianae R. Nielsort Ph.D.
Executive Diredor
Ut*h Dopartment of Environmentel Quelity
168 North 1950 West
Solt Lake City, UtBh 84114
DearDr. Nielson:
I recently received copies of a letter datod Jnnuary 4 1999 from R Lane Beattie,
Presidcnt-Utalr Statc Senato, to you, and your response to him of ranuary zg, lggg,
Iegardiqg t!ro_-uta-h Department of Environmontnl Quality's ('DEQ) requert that
International Uranium (USA) Corporrtion ("IUSA") apply for'a St*6 Grdundwater
Discharge Permit (*GWDP'). Copies of those lettem are efieched. You rhould elco be
receiving s copy of a letter I wrote directly to hesident Besttie.
Qqite frankty, I was vory disappointed that you OiO not adviss Presiderrt Beanie of ssvoral
significant matters rolative to DEQ's request. This is particularly surprising to ms, given
the progress thst I believe DEQ and IUSA [nve mede in discrrssing the various
outstanding issues between us. I thought we had agrod upon offorts to be made by DEQ
and IUSA to futthar thoso nogotiationr with a vicw to aniving at ways to satis$ most, if
not all, of the Shte's concems, within the reErlatory fromarork ryplicable to the White
Mess Mill.
Specifically, you did not montion the following points in your letterto Mr. Beattie:
l. To b9 acceptable as sn alt€rnate feed, a materinl murt quali$ as "ore' as defined in
the alternate feed policy, being "...a natural or native matteithat may be mined and
trerted for the extraction of any of its constihrcntl ot eory other matter lrmt which
source material is extracted in a licerued urcmium mill." Thqe is no concept of "ore-likc' as you indicatc in your lettcr.
2. In response to the Stato of Utah's request that IUSA obtain s GWDP, ruSA wrote to
DEQ on I I pege letter detriling why IUSA eererts it ir not required to obtein r
GWDP, and furthermore indicating that the assertion of State intervention could well
FEB-04-9S From: II{TERNATI0IIAL URANI U}r,|30338941 26 l-144 P.03/08 iob-300
Dianne R. Nietson, Ph.D.
February 4,1999
Page 2 of3
result in the U.S. Deputment of Energy not tsking long term csre and cultody of theMill. As we stated to you in thrt letter. a prime concern of IUSA is that, as a
federally regulated facility, the request by the State for r GWDP, is not compatible
with ftdcral rcquircmcnts. By imposing requiremcnts different frorq and in addition
to, thoso imposod by NRC, Stete reErlation, of l1c.(2) by-producl meterial in
groundwater threatens to delay the closure of tailings sites ond impede their tranrfer
to DOE for long term custody. This is a verv important point for both IUSA and the
State. As you know, under the Uranium Mill Tailings Radiation Control Act, the Mill
must be transfened to DOE or the State for pe..rpetual care. However, it is likely that
DOE will not take long term caro and custody of the Mill site if the site is also subject
to a State pennit.
ruSA is committed to operaring the lVhite Mesa Mill in an environmentally sound
manner and to working with DEQ to ensure that DEQ has the information and data
necessary to reasonably satisfy itself that this is so. To that end, the December 11,
1998 meetirtg discusred in your letter was requested by IUSA for the purposes of
determining whether or not the difrerencee hetwe€n IUSA and DEQ, including the
GWDP, mey be cepable of resolution in a manner similar to the way DEQ and IUSA
rcsslvcd the isrue of potentiat RCRA listed ;waste in thc Ashland 2 matcrials. At that
meeting, we discussed the concerns of the State, as well as IUSA'g concetrnr as tojurisdictional issues, and the risk of impeding, the ultimate transfer of the site to the
DOE. We concluded that a working group comprised of mombers of DEQ and IUSA
be established to waluate possible methods of satis$ing the State's concerns within
thc oxieting rogulatory framcwork, without the ncsd ftr obtaining I GWDP. This
process is ongoing as I understurd that ruSA and DEQ have agreed on a meeting date
ofFebrurry 19, 1999 to further discurs these is$res. I am very surprised thst you are
considering formal action prior to dlowing the negotiations to take their course.
In discussing optionr associated with the GWnp issue, the fast ic th* ILISA and DEQ
are discussing o third optiorS that is, tryins to work out r mechanism other than r
GWDP that satisfies the State's eonoerns and is consistent with the regulatory regime
applicable to the White Mesa Mill.
Dianne, we are commiwed to working wlth DEQ ro try rc resolve all of the outstandlng
issues between DEQ and ruS.{, in a manner that satisfies DEQ's concerns, and is
consistent with the regulatory regime applicable to the Mill. We felt that we made good
Progress with DEQ st our meeting of December. I l, 1998, rnd in setting up a frrmework
for future discussions. The actions you are considering Bppear to be a etep bachmrds
from the Progre$l we have madc. I am aware thar considerrbte political pressure ir being
ptaced on DEQ, some of it through the efrorts of other commercial interests. However, I
would urg€ you to not dlow this presture to override E prooesa thot seeks to resolve
3.
4.
FEB-04-99 l5:53 From: INTERNA URAII I UM 30338941 26 P.04/08 Job-300
Dianne R. NielsorL Ph.D.
February 4, 1999
Page 3 of3
legitimato isrues, including statc vorsus federaljurisdictior\ between DEQ and IUSA in a
cooperativo, constrructive manner. Our efforts should not be dirested towrrds litigrtioU
but, rather, lowards rerolving the issues at hand in the manner that we algrerrA to otr
Decembcr I l, 1998.
Cordially,
-F EarlE. I{5ollen
President and Chief Executive Officer
EEH:trp
Enclosures
cc: SenrtorR. Iane Beattie
Senator Robert Bennett
David Bird, Esq.
Senator Leonard Blackham
Congresoman Christopher Cannon
SenatorMike Dmitrich
SenatorOnin Hatsh
Ropresontativo Keele lohnson
NRC -King Stabloin
Ted Stewerq E$q.
fuithony Thompsou Esq.
T IO[{ALo
FEB-04-S9 I 5:53 From: INTERtlAII0NAL URAN I Uli4 I-144 P.05/08 Job-300
! t -ll'ttlz ""n
t r, tL)xuail*U* ful*r.nlf*C>orw;
3033894t Z6
UTAH STATE SENATE
F, LANE AF^7?I?
P FCEIOfX I
o
5re STAfE CAPIYOL
trLY LA|(E Cl?Y. UYAI{ Salla
FESIDE'ICEIJt NOtrH ttoo tYttY
wssv soutltFul, ur^n 6.aa7
January 6, 1999
Dianne R, Nielson, Ph.D,
Executive Director
Uah Dept, of EnvironmentalQuality
168 North 1950 West
Salt Lake City, Utah 841I4-+B1o
Dear Dr. Nielson:
It has come to my attention that the fedenl gorlernment has allorarcd the White Mesa
mill, owned and operated hy lntemational Uranium Corporation (lUC) in San Juan
9.o,{n[, to dispose of radioactire wastewithoutagroundwatlrdhcharge permitfrom the
Utah Department of EnvlronmentalQuality. t iinrJerstand that IUC fias lndlcated they
do not plan to submit an application for a grourid*ater discharge permit and intend tocontinue opera$ng. rfBrlless of the department's requesi ti comply with the
requirement of obtaining this permit.
I belierrc that nontompliant behavior to this. magnltude with potential impaas 1o the
P.ubl ic lealth and the environ ment warrants e ctio ; q/ the department. ine iiepartme nt
*.ltv hasthe authorityto issue an order prohihit;nginyaaii,itywhich may reiutt in the
{iscfarge of contaminants into the waters o(rhe it#, induding groundwater, UtehCode Annotated. Sectlon 19-S-106 (E) (a). I am vBry supportive of-slch an action by thedepertment and €xpect lt 0o take the regulaqion ,rru, ih, dirpo.l of hazardous andradioactive waste to the hlghest level of piore.tirrn.
The Utah Statc Lcgielaturc hac alwap been in.rulved in ueuing policy forthe commercialdisposal of hazardous and radioactive waste in unh andJave ihu department theauthorlty to develop and implement siting criteria for cornmJrcial waste ilisposal
FEB-04-99 l5:53 From:INTERi|ATI0NAL URAllTU[l 30338s4126o T444 P.06/08 Job-300
Dianne R. Nielson
Page 2
January q 1999
facllitles. The leglslature also establlshed thg reqrrirement that any new commercial
hazardous or radioastlve wasle faciliry.or major rnorlification !o an exi*lng faclllry would
require apprgvalI the legislature and the goverrror. lt is through thls legillation that the
department has been given the responsibility anrl authority to inforce t-he protectlon ofthe publlc heahh and rhe envtronilent, and we tnsrsr updn full compliinie wtrhtn rhe
state of Utah.
I am rrery concerned that the fedenl Eoyernment, once again, has lgnored Utahtconcerns over the protection of the public health and thJenvironmEnt. I wouldappreciate a rcsponse from rhe department on this issue.
Utah State Senate
FEB-04-99 I 5:54
@
From: IllTERI,|AII0|lAL URAll IUM 3033894t 26 oX St# of Utatr
DEPARTMENT OF ENVIRONMENTAL QUALITY
OFFICE OF THE EXECUTIVE NTRECTOR
l6t Noni l9t0 w.r
l.O, Eor ll.lto
S.f r,rlc Cit , Urh talla-atl0
(iolr Jtt<.o
(t0tf 5!0{l6t lrr(ol) t3fl.1{?.D.D.rvr.&arn.ut,u Vqb
T-144 P.0l/05 Job-300
Michrel O, LcrrlaOcrarra,
Drrnm B, Niclpn, Ph'D,Ercrrlrt Dttr.,
Brsil C. BE{hdDryf qhrl
Jaarury 29' 1999
Presidmt Lane Bcattie
Ualr Stato Serute
319 Surc Cqpltol
SaltLake City, UT 84114
Dcar Prorident BGattior
This conerpondcose io in rcsporue !o ),otu tslpi of Jmuary 6,lggg concauiag trc disposat of
radioacdvc *urtc at Iutemationnl Uranium Corporation'3 (ruC) Whitc Mmc Mlll. Thc Mill docs
havo r liceurs &om the U.S. Nuclear Rcgulrtory Comrniscion (NRC) to psoccts convsutiooll
'uranirgo orcs, Upog;ubruission urd approvat by NRC of o liccnsc amandmrot, IUC may Proce*g
"alrcmato fecd" mataiqls, These altemate fccd m*e$nts must mect ccrrain NRC aiieria' insludiug
(l) being orc.likq (2) uot counining lbtld haza$lous wste, md (3) bcius procE$ecd prlmarlly fbr
tccovcry of sowcc (uroniuu) Eatcrld. We conrlnue to coutmd thlt tlrc Eatcsld uttst contaiu
recowrablo rrnnium of ccoaonic rnluc sufficictrt.rp irrstifi nproscosing. Intcmationrl Unniun and
its prrdecescon, Encrgr Fwls End IMETCO Minenls bwe proccsrcd scvuml chiymcnu ofaltameto
feed rrrtcrisl (See Atuchmcnt A). ruC bN been,rcnrtasil,sh fu 3€ersb for drrnrte fcsd metcrial
&om thmughoutthe Udtsd Shtcs. Cunenrly, rhe State of Utah is I puty to a NRC s&dnlstsative
heuing prooc,$t !o dctsnnilc if cuch morcridr org bciag pmcecsad primrrlly for rrrenirrm rtcovtty
or simpty bebg fispored of as wur. If thc lanct is tnrc, trc Whia Mesa MiU is opcmting rs s d€
fircto radloap{w rvasc f&ility. Ar you ue Bruarc, operation of c cornraosciat uradc &cility requirer
Legiclative rnd Cnbersatorid eithg epprovat ana
1
$ete pccmit,
Ia a scparntc lgtioq IUC hlc bcen dirEc&d by Orq ti grtbnit an apltcailon tbr a Snrc (hound*ater
Ditchrrse Pcnait, but IUC hrs not doac co. On Decembcr I l, 1998, DEQ rcpnmmivc$ mct witlr
IUC rnd disburscd our congcilrr. (Sec Atuchmcnt p). Our rgucst for thp gfounfimtlr dischrrgc
permit rws bared on our nced to hncr monitor Xxormtlnartcr h etsurr tbst r plcalc 8om thc tdlings
pond did turt occur to the wrtEr! of rhc Snrc benenh thc rnillcitc. Thc rrceipt of altcrrpe fced
matsriah otherthnn unniun ori,-rnd tha othcr co4stih&rrtt in such marcricls also nlsed conccrrrt
about the appropriltGaGcc of groundwaGr pilramcte?s currently behg monilowd undcr ttre NRC
liccruc,
Bccauc IUC brt irdicctEd that it is not *illing to npply for a Stnro (houndrmpr Disohrrgc Pennit'
a mccting wittr ths Attorncy Crencrd's OfEce has been gohcdulcd to s8$ess a courtc of rctiott"
From: I NTERNAII0I{AL URAN I UM 3033894t 26 o T-144 P.08/08 Job-300
January 29, 1999
Page2
Options include firttrer discussions wittr he company to convince thcm to voluntarily rubrnit art
application, or en mforcemcnt action by rhc Division to compcl srbmisrion of thc pcrmit
applicatlon. I will kccp you appriucd of future actiona.
Thrnk you for your conthued support regarding wostc mluugcmcnt issues.
Dirnnc RMclson, Ph,D,
Exccriiw Dlrecror
Attashmcmts
IxrrnxefNnr.
UnnNruna (UsA)
T-t44 P.0l Job-300
ConponATroN
Independence Plozs, Suite 950 I 1050 Seveuteentlr Stre* ) Denver.. co g0265 t 303 628 7798 (rnain) t 303 389 4125 (for)
TACSIMILE TRANSMITTAL
To; DianneNielson FAxNo: (801) s36-0061
State of Utah PHONENO:
FRoM: EarlE. Hoellen February 4,1999
FEB-04-99 l5:52 From: INTERNAII0tlAL URAI{IUll,l 30338941 26 o
International Uranium Corporation PAGE I OF: 8
IT AILPAGES ARE NOTRECEIVED. PI.EASE CALL: Tonya R. PTice
PHoNENo: (303) 3894151
b,ll'
frr,^D
/Li e 1*^--
IMPORTANI/CONFIDENTIAL: FAX mcsstges are sornetimesrrur( I Asl r/uuNrrL'EN I IAL: tAx mcsssgqs are sometimes receivrd hy prnons other lhan to thc pmron to whom they tre tddressed ss Iequipment failuro or human enor. This Commtnication is intended solei-v'for the oddressee shown above. plea.se notify orr ofrcc immecni.any.of thc telephonc orFax numbers shown above ifyou 11g not the addressee or sc.rmeone respoosible for delivering it t [n, addrpsee. Wenll rights and privilegcs os to 0tis comrnutication and prohibit any disseminatinn. disrriburion ir co,pyirre Uy or to onlone o&er than the ad&
for its rcturn hv thc Uniottlg&e wil! ?rranFe for its rcturo hv ftc Unitcd Sutes Postal Seflicg or b,y comfiercinl canier to irs a=t no cosr m
IxrrnxnrronO
Unexrurvr (usa)
ConponATroN
Independenc e Plaza, Suite 950 . 1050 Seventeenth Street .Denver, CO 80265 r
February 3, I
President Lane Beattie
Utah State Senate
319 State Capitol
Salt Lake city, uT g4lt4
Dear President Beattie:
\arrc\.l.eir'Uerrc(
e 1-q?
303 628 7798 (main) e 303 389
ea UHI< do !,
I am in receipt of your letter to Dr. Dianne Nielson, dated January 6, lggg, and Dr.Nielson's response to you, dated January 29, lggg. I thought t woutd write to provideyou with some additional information concerning thJ issues you raised aboutInternational Uranium (USA) Corporation ("IUSA"). imight note at tfie outset that someof the points you raised in your letter are the same misunde-rstandings contained in a letteryou wrote on behalf of Envirocare to the U.S. Nuclear Regulatory-Commission (..NRC")last July 17,1998. You will recall that I responded to you with a letter dated'Iuly 2i,1998, a copy of which is attached. Unfortunately, I nerlr received a reply from you orany indication that you were interested in discussing the matter further.
In your letter to Dr. Nielson, you state that you understand the federal government isallowing ruSA to dispose of radioactive waste without a groundwater diiharge permitfrom the Utah DEQ, and that you further understand IUSAhas indicated that iidois notplan to submit an application for a groundwater discharge permit and intends to continue
operating.
Dr. Nielson, in her response to you, correctly points out that IUSA's White Mesa Milldoes have a license. from the NRC to process conventional ores, and that upon approval
9v,!q NRC through a license amendment, IUSA may process "alternate feed" materials.Dr. Nielson then states that each alternate feed must meet certain NRC criteria. She notesthat the criteria include that the material must (l) be ore-like, (2) not contain listedhazardous waste, and (3) be processed primariiy for recovery-oi ,our". (uranium)
content.
The first criterion noted by Dr. Nielson, thai the alternate feed must be ,.oreJike,,, isincorrect. The NRC's alternate feed guidance states that the material must be ..ore,,; notore-like. The NRC staffhas adopted a definition of ore as "...a natural or native matterthat may be mined and treated for the extraction of any of its constituents or any other
matter from which source material is extracted in a licensed uranium or thorium mill.,,
jtah hpartmenr 0fLfr4rnn$,'riial . :i:::hr
^ !j::i-|,.- Il-!8
President I-un. e.uO
February 3,1999
Page2 ol4
In essence, the NRC wants to ensure that whatever material is processed through a
uranium mill does, in fact, contain uranium. The form of the material is irrelevant. You
should note that every alternate feed processed through the White Mesa Mill has
contained varying concentrations of uranium, and have met the NRC criteria of "being
ore." We do not understand why the DEQ continues to insist that the alternate feed be
"ore-like" but, in any event, this is incorrect.
Regarding the second criterion that the alternate feed "not contain any listed hazardous
waste," this is correct. IUSA has consistently ensured that every alternate feed processed
at White Mesa is free from any listed hazardous waste. We have developed specific
sampling procedures to ensure that we do not accept any such wastes. In fact, the DEQ
agreed with this procedure for use with the Ashland 2 materials which were recently
processed at White Mesa. We are also working jointly with the DEQ to develop a
comprehensive review protocol to be used with future alternate feeds to ensure that no
listed hazardous waste is ever brought to White Mesa in such alternate feeds. Finally,
again, every alternate feed received and processed at White Mesa has met this criterion.
The last criterion cited by Dr. Nielson, that the alternate feed must "be processed
primarily for recovery of source (uranium) material," is also correct. As Dr. Nielson
points out, IUSA does have a difference of opinion with the DEQ over the intent and
application of this criterion, particularly the phrase "processed primarily for its source
material content." The DEQ maintains that this phrase implies that there is some strict
economic test that must be satisfied, essentially that the economic value of any uranium
recovered through the processing of an alternate feed must exceed any other economic
benefit derived from such processing. ruSA believes, as does the NRC staff, that this
phrase and the criterion itself was intended to ensure that for any uranium-bearing
material processed in a uranium mill licensed as part of the nuclear fuel cycle, the
resulting tailings would qualify as I le.(2) by-product material under the Uranium Mill
Tailings Radiation Control Act ("UMTRCA"). As Dr. Nielson points out, this dispute is
presently before the Atomic Safety and Licensing Board for adjudication. For your
information, we enclose a copy of our brief on this issue, which provides a very
comprehensive review of the legislative history and congressional intent behind the
development of this criterion. So, as Dr. Nielson points out, if White Mesa was not
processing material primarily for its source material content, it would not be
unreasonable to presume it were operating as a de facto waste facility. However, this is
not the case. The White Mesa Mill is processing alternate feed materials primarily for
their source material content, in accordance with NRC's alternate feed guidance and all
applicable federal and state regulations, and is not operating as a radioactive waste
facility.
As to the matter of a groundwater discharge permit, there are two issues to be considered
here. The first is related to state versus federal jurisdiction. The second, and most
important, is related to the safety of the public health and the environment. As to the first
issue, as noted above, ruSA is licensed by the NRC to process conventional uranium ores
and, by amendment to its license, alternate feed materials. As such, ruSA is licensed to
President t-un" e""O
February 3, 1999
Page 3 of4
process uranium bearing materials and to dispose of the resulting tailings in its NRC
licensed tailings impoundments. IUSA has always been licensed to process ores for the
recovery of uranium and dispose of the resulting tailings since it began operation in 1980.
There is nothing new here. We are not, as you suggest, merely disposing of radioactive
waste. The application of the Utah Water Quality Act to an NRC licensed facility, such
as the White Mesa Mill, is pre-empted by federal legislation. Furthermore, the assertionof State intervention could well result in the U.S. Department of Energy not taking over
long term custody and care of the Mill after shutdown. For your further information on
this issue, I attach a copy of letter from David C. Frydenlund, of ruSA to William J.
Sinclair, UDEQ, dated October 31, 1998.
As to the matter of the safety of the public health and the environment, these are issues
that IUSA takes very seriously. In fact, by letter dated October 30, 1998, attached, IUSA
requested a meeting with DEQ to discuss and attempt to resolve the outstanding issues
between IUSA and DEQ, particularly those that could have implications to the
environment. As Dr. Nielson noted in her letter, IUSA did meet with the DEQ on
December I l, 1998 for several hours. During our discussion, IUSA explained to DEQ
that, while ruSA is very concerned that the environment be protected, due to the
federal/state jurisdictional issues, it would probably not be possible to satisfy DEQ's
request for jurisdiction over the Mill operations by virtue of a groundwater discharge
permit. However, we did advise DEQ that ruSA did not object to DEQ having access to
any information that ruSA had available as well as open access to the Mill in order to
assure DEQ that the Mill was operating in an environmentally sound manner. Dr.
Nielson states that the DEQ "need(s) to better monitor groundwater to ensure that a
release from (IUSA's) tailings ponds" does not occur. If this is the true goal, i.e. to
satisfy themselves that the Mill is operating in an environmentally sound manner, it can
be accomplished without a groundwater discharge permit. However, if the real goal is
simply to gain regulatory authority over the Mill's operations irrespective of any real
environmental implications, then the State of Utah will have to become an Agreement
State with the NRC over uranium milling operations. Anything else would be a violation
of federal law.
While I am on the topic of public health and the environment, as I mentioned above, this
is of paramount importance to IUSA. As such, to satisfy ourselves that there are no
concerns relating to the integrity of our tailings systems, ruSA retained Knight Pi6sold,
an engineering firm specializing in the design, construction, and operation of tailings
systems, to conduct an evaluation of White Mesa's tailing cells. Knight Pi6sold
concluded that there have been no indications that the tailing cells were or are
discharging tailings liquid to either the leak detection systems or the underlying
formation. Furthermore, Knight Pi6sold concluded that if undetected leakage were to
occur, it would take approximately 1,300 years to reach the perched water zone beneath
the tailings cells (which is not a usable aquifer - the closest usable aquifer being 1,000
feet below the perched water zone through impermeable rock), and even then, due to
natural filtration effects, it is unlikely that any pollutants would be introduced to even that
perched water zone.
President Lun. e""ttJ
February 3,1999
Page 4 of 4
Finally, you mention.that the Utah legislature has always been involved in setting policyfor the commercial disposal of hazardous and radioactive waste in Utah. As noteJ uUouithe White Mesa Mill has been licensed since 1980 for the processing of uranium ores andthe disposal of the -resulting tailings. The State of Utair has noi been overseeing theoperations of White Mesa, nor should it have, because the State does not have jurisdiction
as an Agreement State over the processing of ores at a uranium mill and the disposal ofth_e.resllting tailings. Therefore, the legislation you referred to does not apply to theWhite Mesa Mill. The fRg.hut been given the reiponsibility and authority to ensure theprotection of the public health and environment with respect to the White Mesa Mill. Inthis regard, White Mesa Mill's environmental record is unimpeachable. IUSA isdedicated to ensuring that it remains so.
Before closing, you should atso be aware that the local Blanding and San Juancommunity has been very supportive of IUSA's efforts to keep the W-hite Mesa Mill aviable employer. I enclose for your information copies of letteis from the Blanding CityCouncil, the San Juan County Commission, and p"iitiorr signed by many citizens of thearea, some of whom are also ruSA employees.
I hope this letter clarifies some of the misconceptions you appear to have in this area. AsI have said to you before, I would be happy to meet with you at any time to have furtherdiscussions about our operations.
EEH:trp
Enclosures
cc: Mayor Calvin Balch
Senator Robert Bennett
David Bird, Esq.
Senator Leonard Blackham
Representative Christopher Cannon
Senator Mike Dmitrich
Senator Orrin Hatch
Representative Keele Johnson
Dianne Nielson, PhD
Commissioner Bill Redd
Ted Stewart, Esq.
Anthony Thompson, Esq.
Cordially,
President and Chief Executive Officer
Ixrrnx-qrroN r!
URnxrul,r (use)
CoRponerlox
IndependencePlaza, Suite g50 . 1050 Seventeenth Street o
Mr. William I. Sinclair
Division of Radiation Control
Departnent of Environmental Quality
State of Utah
168 North 1950 West
P.O. Box 144850
Saltlake City, Utah 841144850
Dear I\dr. Sinclair:
RE: Confirmation of December ll, 1998 Meeting
Tinnk you for your cooperation in this matter.
productive meeting.
DCF/dm
Ead E. Hoellen
Michelle R. Rehmann
Tony Thompson
David Bird
Lindsay Ford
Jo Ann Tischler
Further to our discussion-of today, I would like to confirm that representatives from InternationalUranium (UsA) Corporation ("IUSA") 9t !: meeting with membirs of the Utah Departrnent ofEnvironmental Quality ("DEQ',) at the DEQ office in satt rate city from g:00 a.m. to 12:00 p.m. onFriday, December ll, 1998.
I confirm that in attendance at the meeting from DEQ will be yourself, Dr. Nielson, Dane Finerfrockand/or Rob Herbert from your stafr Don Ostler (Dirictor of iVater QuAity), Fred Nelson, and DonVerbica.
In attendance from IUSA will be myself, Earl Hoellen, Michelle Rehmann, as well as Tony Thompson
!!hry' Pithnan), David Bird and Lindsay Ford (Parsonr, B.hl.;, and our engineering consultant, Jo AnnTischler.
I confirm that I will be sending to you this week a draft agenda for that meeting, so that we can assure thatthe various issues to be discussed are each allotted a rea.ionable amount of time. I confirm that you aoJDr. Nielson will attenddre entire meeting and that the other members of DEe mentioned above would bein attendance for those inquiries that require their input.
Denver, CO 80265 . 303 628 7798 (main) . 303 3g9 a125 (f:u)
November 30, 1998
We lcok fonvard to rvhat we hope will be a very
Sincerely,
Vice President and General Coun
Q**, orz4
DEC-0I-9B l0rl8 From; tNT URAiilU[{ C0Rp 3033894r 2
hrrrnr.Lq,utAI,
Unemru (usA)
Conpon*rroN
!t T-240 p.0i/B?, Joh-I?4
trd+endenccPlnz*Suitess0 trl05oScvantmnthsma trDenver,coE026i trro:6?tTtfi(Eair) E ror3gg4l2s(fu0
for
DIVISION OF RADIATION CONTROL
MB. WILLIAI}I J. EINCT-AIR FA)(No: (801)s33-4097
.Division ol Rrdiation Control PHONENo: (801)s36-4ZSs
FBOM: IIAYID C. tr'RYIIEITILUND DATE: December Z, lgg8
Inlarrutioral Urmium Carporatian PAGEIOF: 2
IT ALt PAGES ANE NOT REffiTVED, PIEASE CALL:lw*ia Duby
PH0NENo: (303)389-4r36
Attsnhed herswith is a contspondcnce ttry nlui{fry_denlund confirming the December I l, lggg. please
respond at vour earlleet convenience . artgindl wiafillaw uaan wpiu7 ;;;;.
Thank you.
Iackie
WIr!,0**r
\
UTA}I DEPARTMENT OF ENVIRONMEHTAL QUALITY
nEc-0t-$E 10;22 From;lNT URANIUlrl C0RP
INTEnru,rTIoNO
Un trututvt (USAI
Conron.trtox
30830E41 aE T-241 P.0A/0e Job-7?1
1050 $eve,rtaenth Street o Denver. CO ti0165 ' ;]i)B 61ts ?7gB (nrain) r 30ll l]8S {115 (ftu)
htdepetuleuee Fhua, Suite 050 '
Novombar 30, 1998
Mr" Ifilllrm J' Sinclafu'
Divialon of Battathn Csnffil
Ueeamemt of Environmenul QuditY
Stde of lJirh
16$North 1950Wcst
P.O. Box I44t50i* ure city, uuh B4Il4485o
Dclrltft. Sinolshl
RE: ConfirmrtionofDoccmbg Il, 1998 !'Icstins
Furdror to our discus'ion of todgy, I would likc to confrm thrt *pr*enhtivos. &sm lurcrnction*l
Uranium (UsA) Cordmior. (qUge-) diib;-;;t"g Ynh membirs of the Utah Dqrartrrcnt of
Enviroumcntrl a*Iiil6;ai; ti;'ugq offf*u in sJt Lqk6 cirv from Br00 E,m. to [2100 p.ur on
Fddry, Ileecmber I l. l9gt.
t confrrm frnt in attendance at ths meetiug from QEQ wilr be. yrrurscrf, Dr. NiCkol, D$rc Finerfrock
and/or Bob l{orbert fiom y61tr staff, Don"Gi;i (D-Gtd of Warsr Qualit'v)' Frcd Nolgon' ard Don
Verbica"
ln arendmce from IusA willbe $yself, Earl Hoetle& Miohe[s REhnanlt, a5 woll as Tony Thompron
{Shrw, pifim'n}, p*fi iirJ *a Lildray i"tO ip-i*t , Behle). and our engineering consilt,nt' Jo Atu
Tischlsr.
I coufrrm that I will bo geildiry t0 y0, this u,eck a draft agenqior *tflt rneeting, so that w6 csa as'ure th&r
tbc vuioru ,..u* to-b, aircoir"a "r, "rrlr""itottsd a rcJon$rs emognt of time. I-eonlirm thst you end
Dr, Nietssr *iu arsio tr,s uoti* *iuting *d tt* e" ottru *t*uirt of DEQ meotiornd above wortld he
i";ffida# for thoeeinqurncs ts$ rupirc $etr inp[t.
Thd6 ygu fOf yOrr cOoperctron in this tttdtEr' Wc look forward to what we hopr will l)G a vely
pmductivo meeting.
DCF/dn
0s: Earl E. ttroellm
Mis[olle R. Rehmann
TonyThomPeonDrfi Bird
Lh&ayford
Io fuurTirchlcr
|l0v-05-38 5,
o
Isdrysd.no* PL**' $iit& sso . l0S0 $cvsrtea#h Stsd + Demwr, CO t0255 I 303 628 ??98 (meif,) * 303 3BS 4l2s (thxl
SdCSIMtr,B TNA!{ffMITTAT
Willirm Sinclnir FAxHo: (soi) 53I-4097
PHSNENO; (E0t) 536-{2$5
FP.oMI EsrlE.Ilodhn DATE: Novembcr 5, 1998
Ir*wnstionel I Irerdum Coryor$ion PAGEI OF: 6
IF AI"I.fASES i{RE NoT RECEIVED.FIEASE CALL: Tonya Price
Pt{ot'IE }'lo: (303} 3t9'/4151
ll,1fi Frem;lHT URAIIIUH C0RP 303$E94r t T-$18 F.0l/00 iob-0$E
lnrrrnsrtr}ru-
Un*wruu (usA)
Conronnrrou
IMT'ORT t rA;gril{rag"srr etimesmceivdb5rp**ongothErtlrmblhepssff}towhottrtmyueul&ess0dBcrtt
of eguipnent frihge or huuan emor, Tlrig Cunmunicdion ie intrmdd solcly for the addrtfis€f &own above^ Ple*es notiS otu offis€ imsodio
atu"l.&&re.tryurporFoxnu*rbryeBhsrsn*boveifyo**r*nnttherd&iesltrorsuneonererAcngiblcfix&livtriugittothcd&esEffi' [lcffi
r;g6ts Erd priv*ups rs h ihie c(rrn$triuetion and prohibit *uy diaranilution, diribution rx sop$$g hy w to sryuE otkr ttfrl tlr addren
l mcc wilt onenrc for its rehrn bv llu Utrited *trteE Fo*aL Struiee nr h1qa64tao-i@
|l0v-0$-38 I 1 ; l0 F rom: lllT iinAH IiJtr{ C0RF
INrEnldArior{J
IJn*rututor (usa)
CoRroRarron
!055894r t!T-S00 P.02100 Joh-C90
hulcpr*udcrrr;c Plua*, Suite 950 , IilSfi Scvcnte*rrth Stroct r Hcnvc[ C(} 80965 ' 30S 6$8 77S8 (nrniu) . 3O3 38S 4i*5 ifirx)
Novenrbsr 4, l99B
Chetrman $hirley Ann las,kson
U, $. F{uclesr Xryulfitory Comrnission
Orm Whitp Flint Ho*h
11555 Roclcville Fikc
Roslvlllg, MB 208$3-273 S
Dgrr Chtirman Xackflsn;
I m writing to Brovido yon wlth Intsrnetifrnal Urafiium {tJSAi Corporation's (IIJSA e)
thoughts rsserding r l6tt€r to you ftom Diannc R tfielmn, Executive Direotor, Tltrh
D*F*rtnrcnt ofEnvirsnmontal Quality on Augutt 7l I$SB (copy ofwhiclr ie $trchsd)"
In hor lattar, whish foeisee on tffiC's nltsrnetivo feed policy, Mr. Nieloon quotes you
from thc hsfficript nf a Comrnirnlon brleflngby fis Nrtionnl Mininu Asuorlistiort (NMA)
aE follorre: "et ths lrsut of it, you sofifii t0 be errggeuing that we adopt a policy th$
rrould de fgoto *llow you to creele a Iow level waate diopusal sits",," She then goes on to
ssggert tlut the elterfiate *bed policy ie under *atrtack" and thst if it is not $rictly followtd
nsw low-hvcl wcffo dlEpoaaX faeilitics will be meated, Shs sugge$t* thst lf a urrniunr
mill wichcs to be€ome e whata dispos*l fioility, then it *'uaust follow more rtringent
rcquiremcnir wlrEther it be r higher-level Falt 40 standard or nppropriete parts of Prt
61^* Sh6 firrthsr stAiss thrt I{'RC'u ground w*tar requirtnrantn rt urnniurn miltr crc "rr:t
protesive of Utuh'e sltronm$nt' rnd thet Utah h$ "spocific siting re,quirements
resnrding waets dirpo*rl ferilities," Ms. Nielson then urgeo thrt f"mC rueperd all
altornste fcsd reryso*t approwle psnding polisy or nrlern*king debrte or, *B sn eltsnrative,
tlut futurc slternete feod requertE be handled with "specifie ovaluntion of the orp atd
oconfluic focov$ry valuE of the ureniurn/vnnsdiunt sontent of mxtori*I.'n
Sirst, thc quot6 refercnced frorn the NMA'* Eornnnission brlcflng wr* not put tn the
Fropsr context in Ms. Hielsnn'r letter. Ar I understand, at that point in ths briefing- the
discussion wer rxlt ebout tlrc alternffrc fesd policy but rather about NRC's policy on tlrc
dircct.firy"fifl, of nom-lle.(t) rn*tcrials, Witk reupest to ths l*ttr policy, NMA h*e
mrggoctd thflt HRC roneid€r developing more flexible gerreric pdrry witertil reguding
rllrect di*poenl ot'l!pll-ttc.(z) matertals, glven ffie llmirod wa,sts diryoral c*plrity
nv*il$lo for hish vohtmc, low-level ndiondivity uarte materinls. NI{A har urggerted
thst it wotrld be wiae to consider ueing the $rflste disposal cspacity available rt I te.(2)
fooilities for non-lle,(t) mEteri*ls if thay ere similnr rrdlologicnlly, chernicnlly ttd
[0V-05-SE 1l:li Frurn;lNT URANIU[t C0RP
ctffiirmsn shidey,o?**ron
November4, 1998
Prge X of3
T-9C0 P 03/00 inb-0$0
ptry*lcrlly to ltr,(Q *r*terialn. l,{MA hss urggooted that NRC ehould prrcue n thorough
eorsidcr,rtion of ruch lEzuss by atl interectcd sh[e.hold$ra. At the point ln thc hrist"tng
refarmod rhove, you did misc n quostion ahout whether or not tte.(?) ftcilitiss meking
to dircctly dispose of xrrr-11e,(2) matrinlc xyould want to basomc low levetr wru[E
disponl frcilitiro *rd tfus bosome aubject to the rogulotory requironmr*e applicebls to
srroh flcititic* llks ritlng crfter{a. NMA'r porition ie that any rd*utt Pirt 6l
roquirrmrnts should pop€rly be considersd iu thr development of eny generic oriterlr br
dirac't diepont of rwt-lte"(2) meteri&ls. There ie prec€dent for thie as thr Comrnimion
incorporrtad raver*l m*nifeeting requirementa frorn Part 61 i$ Envirocare's 1lo"(?)
f{sility liceng+. }"IMA hrs eho nuggerted that siting critorh for exi*tirrg *itee cen be
wrhd belod on eitc-spocific fa$s, jurt as Uta,tr rvaivd t fwfuoewtal Part 61
requiremont at ths Euvinxinle low-lavpl wsstc dispoml f*sility-tlrrt ia, the roquiramc,nt
thrt b+fore wB$tE can bo diryo$ed of at ths facility there murt be c comffiltmem procured
from oithpr the Stam or fidsral gilvffnment to take titlc to ud rustody of *m sitp flnd
ureste afrsr it tns bscn prop€rb' deconnmissioned and lts licprue tenninrrcd, AII of thece
ard rnany otlrr quro*tio$s Brpsumably would bc thoroughly coneidered in tho avsnt of r
publio stolcpholder dehate about whot sitoriE would be xppropriste for direcr di*porrl of
nan"tle"{2) in existing tailinga fqsifities. As I thinh you know, and for tlrc rerord,IUSA
agrEEB with ths NMA rWudiru the foregoins.
$cconq thr rltcrililts flxd polioy is not und*r "&ttsclC' ss Me. Nielson't lottw zuggest*.
In xcftrd pnctiee, Nf,,C's curremt interpretetion *nd adminidration of ite eltcrnflto fcod
polisy ir rtrnoEt erastly wlrcre NMA arul IUSA Nre utggosting h sltould bc. FIlvlA rtd
ruSA ur rnerrely ruggesting that thoro b* * mere explioit et*tornsnt that ths primrry focus
of N&C's regul*ory cotworil is publio health and raf*ty snd that tha ocorpmic v*lus of
the sr$$iuill, by itrold ie nst the determinirrg frctor in dacinionc to greil *ppllcrttons br
altcrnate feed prsosseing. $uch a slsrifiEotion would eliminrte inconsisont
irrtuprdrtians by r*trers which have to date re$ulred ln unnsceessry and cn*ly herringo,
Third, Es fsr ss we kncw, there i* no mor€ Frptpctivc Fert 4,0 stsndsrd in exirtence gt tltis
tinns. Atrl Ptrt 40 urd Appendix A requlrem$nts appliceb,lo to IU$A arr npplir,nblu to all
othcr uraniurn tdlings op€r&tors, including EnvlrocarE ut'Utah. kd$s4 rs rrt hnve
pointd out or c numhg of occasions, the Envirocgre $lte iB in sovrrel rcspcxfi* loec
stringenily regul*ted and lem prntective nf public haalth rnd usfllty than iE th€ ru$A
tffhita Mesr frcility. The Envirocaro facility does not have a liner as the Whitr MosE
f*Eil,ty doc* ffid ir not aub,ieot to tho 40 C,F"B- F*rt 61, Suhpart W' Clen Air Act
*ardrrds for rirbonne radionuslide emissiCIns ae ttw IIISA fasility in. Also, the phydcat
chuastsri.rtiqs sl the whit& Ivlesa fssility (up to 1,100 fce* of low perma&ilhy rock
tretrvmn tlrc diupossl fasilitisa and tlm t!6srest usablc aquifer] plus an oporating hi*ory
cin6s l9$0 thut demon$trst€s there has hcem no conte{fiinstion sf ground wttor ruggeet
th*t Me. t{idnon': e$rtnerne c,re not only bnmd clr f, p66r underetendiqg of tlt* rppliceble
reguletory *amewodg but aleo are noffElevant to public health and safety.
Finalty, reitwnting e pornt made above, the econ$mics of uraniurn by itselq ie not
supporgble ss r bssis fsr determinationn about th* acceptlhility of altclnuc feed
,093894r 35o
qfi\r-0$-98 I 1 : 13 F rsm r li'{T URAlil IJlj C,IRP
ch*innen $hirtey Jt**n
Nave"rnbar 4, lSSg
Prgn 3 of3
30EtE941 ?5
o
T-$i0 F 04/00 Jc[-09!
applicatbna, Indsrd, Me. Niclson'r lettpr itrelf offostivdy re+ognruss this by including
#i*utn@irrp aE rn s06nomic marhs for evalu*tin6 cuch applicrtion*. Tlt€
econcrnic desision ufr licsffiso and a pa*y ssntracting wlth the licensc& proFcrly mey bE
bns€d on r6covery of ur*niunq viludiunl, or pther ruetels (*rch rs niobium or trnt*lum)
sr on a racyeling fee to fiEcovor valuabls ur*niunr and to elitniffits * pflrtyrs long term
corrtifigcnt iirUitity for largc volumea of low radioastive wast€ maisrialo whioh efter
prouerling ere puf firm r secure I le.(Z) byproduw rnetsrifll ditpoqll ftcility. E;ourre tht
Wtrite ldesa facility ir by rleflnitiom both s prCIcc.ffmg md a rfl,ryawt ffciltty, it cttt
ascosnplish both urskg foirnin &c krtosded scope of thc applissble_ strtutory flItd
regulrrory rcquirements while providing public henlth and sifety bcneflts, (ftrter rnd
mlrs Eosi.€ff;61ivc wrgtr dispoisl), rocyCling hencfits (recovul of valurblc mehld, rnd
econouriE hncfita to ths prtim to tlre tran*r'tlon (rcoov*y of vsluabtro rmtaie nn#or
recycling f6es end more so*+ffestive wrut#disposat wlth long remr corxlngent llabllttler
virtxlly eliminued).
IUSA hm oU*mptd $n rutmorous occasionff, to dimuee the *nrne lr*u+r ni*ed in her letter
with Ms. Nielsoil urd other mambern of the Utsh nEQ strfr For eome relfrln, wB lre
unrhle to communiaate to them thrt some of those as*urnptions they mske are not
rplpvrnt ard inascur$t,
Thrnk you for your time and conrideration.
Eul E. lloellen
Prosident rnd Chirf Excuutivc Ofifr osr
BEtf,:trp
Enclosure
cs: Cornrnissionsl Grott Dlcus
CCImnnissionor Nils L Dirz
Courrninrioapr Edwsrd l*fcGaffrgatl' Ir-
Siama Niclaolu DEQ
Chsrles HackncY, I.[RC R;giott tV
&ichnrd Bangsrt,}{RC Office of $t*e Frograrns
Ioeeph Holoniolq l'lRC Ur*niurn Recsvery Eranch
E'rcdNelsoil, Utrh Attorney $ienarals Ofrice
lilitliam $inclniq IJDEQfi&C
Cordially,
. N0rr-05-98 l1;1t F rosr; I NT URAN I Uhl C0RP
L{ishsl G'-tpwlfiElltqtilIA
Diunc ft NLlsd$' Ph-D'- Ei'.rltl* t tlfiIll
BrcntC" Ersdfcd
SiFE$ Il0lsttr
t0tB€941 t$o T-30r P 0$/08 Joh-05[
DEpARTMENT SF ENvlRoNIt{E}flrAI" QUAtffY
OFFICT, OF TI{E E.IECUTTVE DIRECTOK
168 North lPS0 w.$t
P.O,8sr l{*tlt}
Solt ljs! CitY. U.rh tcl lHBt$
{801} sls^llfl}
{x0t} t16t06l Fhr
60r) Sle44l4T,o.D,
ww*.dq.**"urua Ylb
Auguat 7, 199S
Shirtey A. Jsskson, Chairnrsil
Nucleer E^cauletory Coxnnris*ion
lVarhingun, D.C. 20555-000 I
DcrrDr. Jacksonl
Uty uraff r*cfnrly made ma avr,nre of abricfing by ths l{arionsl Mitdng AssCIciatiua on Rcgularion
,i*rr U*rium ilecovpry hdustry by the Nuctcnr Regutrtory comnissisn. Tho issuffi rddresscd
to qh* Cornnrisnion whict erg of iffertst ts thc Btfltr CIf Utnh includad jruiedictiott of non*gucrnent
srrt6* over nonrediologicelcompuunu of 11e.2 hypr0*I6trnslrrial sndl'IRC$ altcmat6 fecdpolicy"
l$e have cxprossgd our oplnien in thc pfiltt etr both ef thtt* irru*"
Thc dtcraatc feed poiicy wu devtlopcd to Ey to tddilsr 8u lrlrrpGtYd iuEuc where a uranium mill
oriifrna to aEc-cFt uia prfot*r mn$BriA othcr rig[ csnvrntioq6l w. Ws $14 now tryrng to dcal qrith
trre unyriaa of regulaiory std policy issucs as t rwult 0f tbf,t bosic prtmisc.- .You st*ad at the
Un*nrig, in rmpinsc to th; Nitlonat Ufrning fusoci&tieni . . " "it tbr trsrn of it' yor seam to \
uuggorilng thar Lc ado6r a policy that would dc fectu allo$ yott to crffit! a low level wasrc disposel
siil. ," ir is Utah,s posiriin, as strtcd in our rtccnt ptition to th6 IIIRC, that unlass t& alrcrna,tp
Imi poficy,-wfrich if undff at*aek, ir ctotcly followcd, ncn, lour.lstsl wosto f*ailitiw would be
or"urid. $ * uranium mitt wishcs to bccoillc B wslitt facility, they rruet fallow mom stringcnt
rrqui"r*nti, whethcr it bc a highcr-levet Part {0 sesdffd or approprists Patlr of Put 61. we
brti+vr rhor rh6 surrEnr FIRC rcq!:irrruEnrs re}*ing to Eoundrrreter prct*tion ftSPliGd U mills arB ltot
protective of Utah's envkoffi[pnu Surtlmrmom, UHh has spccifis siting requirtrncnu regarding
wfl.$tc ditposal facfi idcc'
Due to the recent cogmvcny and rugulatuy issr.rcs rai$cd &t Mt tha Sencratin$ state tt'lEw Ysrk)
anfl rhg rccciving *arc (Uidr) rurroundling thc nppruvrl by the I\mC Saff, whish allows thc
hrternationrl UraniounCorplrttionWhftcMe*aMill ti ncpiwmd nilRAP wastc Inarrisl
fror* tire Army C*r!,g of Eil$rrcrs in F{aw TorH, s'q urEG you to ru*ptnd ait dtennnts ford rcqucst
approv*le on*it ttn* i*tueJcffi ha fullv dcbated and a-dersi[tA poli*V or rulemaldllg flsll,b€
implcmcnnd, following eppropriatc strlcholder inFut" As 8n almtuativo, rcqucstS tor proceruiug,
sjtErrrflt8 fcc{ rnarEriuf-coufO fo U*at.4 rs thcy-heve b6tn in the past in UEIL wi$r spccifltc
ii0|j-05-sB From: ll{T URANlU[{ C0HP t0s3E94r 2Eo T-g0E F.00/00 Jqh-0Bi
August 7, t998
Page l,
avaluarion of the ore and scCInomic recovcry value of $m umniunlvanadium EontEnt of the matenfll.
H you have questirlns, do not hegitnts to eoiltAst ffle'
Catnrniesioner Gffi ta Dicur
Cornmlssioncr Nils J. Dirc
Commissioner Edward MoGaf'figan' Ir,
Chulee HackrcY, NRC Region [V
Richryd Bengnrt,ItrC 0ffica sf $tate hotrsrns
Joseph J. Ilolonieh, FIAC Urrnium Recovry Breuch
Uichctte Rshtrlsm, krtarnatioral Uranirrm Corporuion
Frad Nclsrn, Utatt Attorney Gcuerdls Otrtce
Bill sinst*ir. tlDEQ/DnC
pzul I- Mcrgcsn Ncw York Dept of EnvirosroEntal conr*rratiprt
R. Nielson, Fh.D.
IurpnNarro*O
UnnNruvr (use)
ConponATroN
Independence Plaza, Suite g50 . 1050 Seventeenth Street .Denver, CO 80265 . 30S 628 7798 (main) o 303 389 4125 (fax)
November 3, 1998
Mr. Williams J. Sinclair
Division of Radiation Control
Department of Environmental euality
State ofUtah
168 North 1950 West
P.O. Box 144850
Salt Lake City, Utah 84114-4850
Dear Mr. Sinclair:
I am writing in reference to the letter
31, 1998, and noticed that Affachment
copy of Attachment 3 for your review.
Enclosure
I sent you signed by David C. Frydenlund dated October
3 is not legible, therefore, I am enclosing a more legibleI apologize for any inconvenience this may have caused.
,*f.
*Yi,f"
Yours truly,
INTERNATIONAL URANIUM (USA)
RATION
ueline L. Darby
to David C. Frydenlund
NOV-E'z-EEI I? ,2@ FROM = I NTERNATI ONAL URANI UM l o = saeses
iffi'tril"ffi
Conponerrou
tn'0EP$tdcndaPlaea' $uite 950 tr 1050 sev€nteenttr street E Denver, co g0i6i n J03 62g ?7gg (uain) tr 303 3g9 4l2s (fsx)
FACSIMILE TRANSMITTAI
PLEASE I}ELIVER UPON RECEIPT OF TRANSMISSION.
Mr. William I, Sinclair FAXN0; [phone]
PHoNENo: (801)59d4255
FROM: David C" Frydenlund, Esg,DATEI November 2, lggg
PAGE I OF: 44
IFATI. PAGES AF$NOT RECEI\{ED, PI"EASE CALL:Jackie Dorby
FHoNENo; [phone]
Attachod herewith is oorrespondence and attachmerrts from David c. Frydenlund. ptease notfy the above-refererrceperson if you do not reoeive the complete transmission. Thank you.
Jackie
IMPoRTANT/cohrrDElmAt-Ax mGffi6 srt somEiniesffi
;lff"Tffil#ffi:*Hfl,ffiLff..?"H::,::::T:Tid:g il_ry?;,,h;;;__* ;oi* abo'e prease uotiry oru office immec0tanyof thetelqhn*emF*.ntrmbrssh6wnabow ifvouur"nnru.'"oa*oroorso*€orier.+"rstil?olJ;u'rllrtffi;HffiftroTj:lfl
all rights and privileges ss to this cmrr,unication and prohibit any dissernination, distribution or copying by rr to anyone other thsfl t'e sddresseJo* ffiof I4I-{IEF* frt iE t*t*rr bv the united $tstes Pottsl service o, uy co.*.rr*ia "lrder to us ar ns cosr to vou
NOV-E'z-slE} 77 , ?I FROM = I NTERNAT I ONAL URAN I UM
Iurgnru"trrcl-1,[
Umuruu (us,t)
Conronerroru
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PAGE 2/i
Irrdel:errdenoe FIua, Suite $50 r 1050 Severrteenth Street r Denver, CO &)965 . $03 618 7?OB (rnain) . 803:3gg 4ll5 (frjn)
October 31" 1998
1{IA FACSIMILE - (t0r)$}40e7and FEDEX
William J. Sinclair, Director
Division of Radiation Control
State of Utah Depanure,nt of Environmental Qualiry
168 Nonh 1950 West
P.O, Box 144850
Salt Lake City, IJT 84lt4-48S0
Dear Mr. Sinclair:
This letter responds, in part, to your letter to Intemational Uranium (USA) Coqporatioa (..IUSA')
of August 4, 1998, in which you request that IUSA submit an application for a-State grourdwate,
disoharge permit for the White Mesa Mill (the "Mill"),
In this letter, IUSA asserts that it is not required to obtain a Groundwater Disctprge Permit beoause:first, the application of the Utah Water Quality Act to a United States Nuclear Regulatory
Commission ('NRC") liEensed facility, such as the Mill, is pre-empted by federal legislatlon, ana
assertion of State intervention could welt result in rhe United States Department ofEn&ry q..ObE-;
not taking long term care and custody of the Mill; and seoondly, in any event, there is nt probeble
cause to believe the Mill will discharge to waters of the State and therefore the Mill doei not fallwithin the requirunents of the Utah Water Qualiry Act. We also address your reque$ for access tothe Mll for purposes ofgroundwater sampling,
FEDERAL PREEMPTTON
The requiremen-ts of the Utah Water Quality Act regardirrg groundwater dissharge pennits do notapply to the Mill because they are preempted by federal law. In addition. the appttation of Stategroundwater regulatioru would threaten to delay the clozure of the Mill's tailings impourrdrnents andpreclude or impede their trander to DoE for perpetual care and custody.
The issue offederal preemption is addressed in detail in the NlvfA White Paper, '.Recomm.ndationsfor a Coordinated Approach to Regulating the Uranium Recovery Industry',, pagcs 52-96, Thefollowing summarizes why the fedsralpreernption argurnent applies to the SLte;, request that IUCobtain a groundwater discharge permit for non-radioactive discharges ftom lfe.(Z) Uypr"auctmaterial,
\TABOR\S Yb\USERS\&t40DAVE\LErTE R$\Sinclrt .doo
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William I Sinclair October 31, 1998
In the past, the State sought to require IUC to submit a groundwuer discharge permit application fornon-radioactive dischrrges but uot for radioactive disoharges. The State relied on section ?74ft) of
the Atomic Enerry Act (the "AEA") and cases oonstruing this section for its assertion ofjurisdiotion
over non-radioactive discharges from I le.(2) rnaterials,r Section 274(k) provides:
Nothing in this smtion shall be construed to affect the authority of any
state or local agency to regulate activities for purposes other than
protection against radiation haeards.
42 U.S,C. $ 2021(k). Seve,ral cases have construed this sestion in the sontud of federal versus stats
authority over I le.(Z) materiaf but norre has addressed the issue of whether a state rfiay ass$rt
jurisdiotion over non-radioactive discharges to groundwater. Moreover, the line of cases that the
State appears to have relied upon in the past to $upport its assertion ofjurisdiction is equivocal on
the issue of preemption. Indeed, more recent case law suggests that a fundamental prernise
underlying that oarlier line of cases wa$ incorrect. When one loolcs et the relevant statutes and
lqgislative history it is plain that state regulation of I ie.(Z) byproduct rnaterial is preempted by federallaw. This is trus for all components of lle.(Z) material wherever they appear - including
components found in groundwater, Thus, it is IU$A's position that srate r*gulation of any discharge,
of l le,(2) blryroduot material, radioactive or non-radioactive, is preempted by the AEA,
The line of oases the $tate hae relied uport to support its assertion of jurisdiction arises from the
planned disposal of 11e.(2) material at the Kerr-McGee Chemical Corporation's Rare Earth Facility,
located pa,rtly within the coqporate limits of the City of West Chicago. There ire three pertinent
r Illinoisv.,#s$-IvIcceeChem, Cory,677Fzd 571(7il Cir. 1982), addresseswtrethertheCitycan
regulate public nuisances unrelated to the NRC-regulated tailings impoundment, The court oited
to the legislative history of section 27a(k):
lt is not intended to leave any room for the exercise of duar or
concuffent jurisdiction by states to control radiation hazards by
regulating blryroduct, source, or speoial nuclear rnaterials. The intent
I Fot ex+mplc, thc Slatcmcnt of Basie for Errvirocere'$ groundwatcr dischargo permit includce tho follovring st&tcmenl:
BE0EUEE thc state hau not rcpcived dclegation of authority for I lc.(2) Wasir from rho NRC, IJtah h6s no diroot authority ovrrthe mdiosctivc contaminanls in I I a.(?) wf,ste nqterisls, Howwcr, fadsral coutt deciubnr havc allorrvcd the srattr to rciulatcthe.4$+udiohgic Ftrfion of l la(?) matcrials, so l6ng {-B such rcgulation doos flot Fru$trnto thc underlyirrg purpo*
"f if,r f]L*flegislation.
Similar{y, thc state hs.s s8*rtcd in thc Private Fuel Storugc liocnring rnatter that thc NRC,s authority under thc AEA docs not prrempt
rtato-rrgulatbn ofEoundwarcr, citing to 43 U.S.C. $ tO2l(k), Eerril{dicc Chnn. Corp. v,Citv oflVc$rChhagq gli Fil il6[!"4;,199{} and Paci4c €eg& Eltct'is y, Encrgy tu +e t ttS tCO Org3xrt.rr rr.tra, pia,ri*orttortuur hw hcld flotto !.nra4rtdty tro AEA beause statr* rehin thcir ardrority to rcgul*b thc coonomic arpects of clcctic gtc&c;on1 E=ft.otPivstEFucl StortEc, ]JJE,NRC DocketNo. ??-?3-lsFSI, "StaEofUtah's Contentionuon thc Co,rstrietion*A ffiffiffiEAppl;c*tifi by Priwtc Fuol $tongq t LC for an Indopcndenr ,spert Frrcl storagc Faoiliry.,'
\T4BOR\SYS\USER S\EXECIDA\iE\IETTE R$\sinch t,doc
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William I. Sinolair 0ctober 31, 1998
is to have the rnaterial regulated and licensed either by the
comrnission, or by the $ete and local governments, but not by both,
The court elso recognized that states were to retain their a*hority to regulete rron-radiation
hazards under soction 214(k) and held that:
- the City has the authority to regulate dangerous conditions
con$tituting a public nuisancg zuch as open pits filled with refuse and
c'hemioals in a factory area and insufficient fencing and lighting; and
the Cfty has the authority to require Kerr-McGee to clean up
off-site contamination.
r In Brown v. Kerr-McGee Chem. Corp. ,767 F 2d l?14, (7e Cir. 1985), tho court held that the
AEA preempted a request for a state-law irrjunction to move non-radioactive wastes to another
looation when the nou-radioactive and radioaotive wastes were intermixed and inseparable. The
coult's rationale was that a state injunction requiring Kerr-McGee to remove the byproduct
material would restrict NRC's authority to regulate the radiological haaards associated with the
material.
r [n Ken-McGqs Q."hpm. Co{p. v, City of West Chicago. 9I4 F.zd 820 (7d' Cir, tg90), rhe court
hsld that the AEA did not preernpt a city ordinance concerning erosion and sedirnerrtation
requirements beoause the requiremCIflts did not conflict with triRC regulations.
All tluee of theee sases are premised oil the notion that under AEA secrions 274(c) and Z7a(k)
jurisdiction over I le.(2) material is divided along radiologioalversus non-radiological lines, with the
federal government exercising exclusive jurisdiction over the "radiological" aspects of l le.(?)
rnare,tial and states retaining authority over the "non*radiologrcal" aspects. This "divisiorr" of I f e.iZi
malerial into radiological and non-radiological cornponents for jurisdictionat purpose$ is inoonsisteflt
with the intent of Congress. When Corrgress enacteti UMTRCA in 1978 itcreated a ilew class of
AEA'regulated malerial, This new olass of material - I I e,(2) byproduct material - was (and remains)
unique under the AEA beoause it was expressly defined by Congress to inclu de all waste -encompassing all radiological and non-radiological components - produced as a result of uranium
extraction operations. This ftndamental aspect of 1te.(z) byproduct material, which was emphasized
in the legislative history ofIMTRCA2, cannot be ignored by artificially dividing t1e.(?) matirial into
"radiological" and "noil-radiologioal" a$pects for purposos of apportioning jurisdiotion between the
statc$ and the federal goverffnent,
RNA
o
3ggtdt l2E
O
-3-
2 Sryr p, !.' 124 Cong. Rcc. 29,776 (ddly ed. Sept 18, tg78) (sta*ment of Scn. Dornenici), Serraror Domenici
explained:
A basic principlc of the arnen'lmerrt is the creation of a unified rcgime for
mill tailings so that various distinct matsrials which make up a single mill
tailingspilo need not be subject to liagmerrted, duplicarivc urd potenti4ty
conflicting rcgulatory activities by different GoverrrmErrt ugo.irr.
\TAEOR\$ Y S\USERSBI(EC\DAVE J-ETTERS\lSinc lrt .doc
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William J, Sinclair Ootober 31, 1998
The fallacy of aftempting to divide jurisdiotion over l1e.(2) material along radiological versus ilon-
radiological lines was driven home recently by the U.S, Court of Appeals for the Ninth Cirorit, in the
case of rflaste Action Project v. Dawn Midng CorB- 137 F.3d 1426 (9t Cir, l998).t In that case,
the hrinth Circuit Court ruled that the EPA lacked authority to regulate the discharge of lIe,(Z)
byproduot material unde,r the Clean Water Act, because
-11e,(2i
byproduct material is not a*pollutant" for purposes ofthat Act. Slnce Utah's groundwater program is independent of ths Clean
Water Afi and is not an EPA delegated prograrn, the court's primary holding in Waste Actionprqjea
is not direotly applicable to Uta.h's assertion of regulatory authority. The more pertinent aspect of
the W-aute Action Proiect cese is the district court's recognitiorr that the radiologicat comporents of
I le.(2) byproduct material caffIot be segrqgatEd from the ncrn-radiological oomporerts for purposes
of asserting regulatory jurisdiction. Specifioally, the plaintiffin the case had alleged that discharges
of oertain non-radiological constituents from a uranium mill tailings facitity (e,g., silica, heavy metals,
sulfates, phosphates, chlorides and other chemicals) required an NPDES permit. The district court
disagreed, noting that uranium mill tailings " are regulated solely by the I*IRC pursuani to the AEd
as amended by UMTRCA,'d Aocordingly, the district court rejeotcd the plaintiffs assertion that the
non-radiological discharges were subject to the Clean Water Act.
Finally, the courts have made clear that in circumstances where the operation of stare law would
frustrate the purposes and objectives of Congress, or where $tate lavr and fideral law conflict, statc
law will be preemptod.t Congress, when it enacted LJMTRC,{ created a coordinated federal regime
for the comprehonsive regulation of 1te.(z) byproduct material, Under this regime, three federal
agencies share responsibility for regulating all aspects of I le,(z) material. It is evident from the
Iegislative history, and from the statute itself that Congress' purpose in creating this comprelrensive
and pervasive fedsal scheme of regulation was twofold: first, Congress wanted ro ensure that
uranium mill tailings (and l1e"(2) byproduct material generalty) would be regulared according to
unifonn national standards, Thus, as Congress explained when it enacted UMTRCA:
Without the authorities included in H.R, 13650 [which would
eventually be erracted into law as UMTRCAI, the conditione
addressed by the remedial prograffi would be teft without
remedy, artd the authority of the Commission ta esteblish
uniform national snnfurds tor waste disposal trom uranium
mills wouM not be clear.6
Congress' second puryCI$e in enacting UMTRCA was to ensure lhat uranium mill tailings would be
3 Copies of thc circuit murt and district court opinions are attashed as Attaphmentsl flnd 2.
4 District corut opinion at 12,
5 Englt.sh v.Geooral Elccnic Co,, 496 U.S,. 7?,78-79 (1990)
6IIR'Rtp.No,95.l4E0,PartIat12(19?8)(emph*tisaddsd). Thehgialativuhistoryisrcplotewithsgtemcnrsindigstingtr*tCorgrcss
inbndcd to orcatc a udform-ilstio_nd systfn of rcgulation lbr l l +,(3) metcriEl. See Id. fsIl IJ *t 45; Itrcaring on H.R. BSg2, H,n t:gt$,
HX'- 12535, ffid H.R, 13049 Bdhs tha Subconrrr. on Encrry and thc Environmerrl of thc Housc Co**. (]n Intcrior and Insulrlattirc.g5h Cong, 95-30 at I30 (I9?S[sut€rn6nt of Joscph M. Ilerrorie, Cheinnan).
\\TASOR\8YS\US EAS\E$clDAvE\LETTER$\tirctrt. doc
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William J. Sinclair October 31, 1998
stabilized, disposed ot, and controlled in a safe, timely, and enviroflmentally sound martrcr.T State
efrorts trg regulate various componeflts of I te.(Z) byproduct material, including state attemPts to
regulate blproduct material components in groundwater, underrni[e$ thc systern of uniforrq national
'standa.rds that Congress iutended to create under IJMTRCA. Similarly, by imposing requirements
difrerent from, and in addition to, those imposed by h{RC, state regulation of lle.(Z) byproduct
material in groundwater threatens to delay the closure of tailings sites and impede their transfer to
DOE for long term custody. This is a very important point for both IUSA and the State. Under
IJMTRCA the Mrll must be transfened to DOE or the State for perpetual ca.re. However, it is likely
thet DOE will not take long term care and custody of the Mill site if the site is also subiect to a State
permits.
The conflict created by the State's assertioil of authority to regulate 11e.(2) byproduct material in
groundwater is evident here, in Utah's effort to require a groundwater discharge permit. The NRC
iogulates both radioectivs and non-radioactive discharges to groundwatere. NRC has defined
byproduct ffiatenal to include allwastes-both radioactive arrd non-radioactive-produced from thE
mllling process" 57 Fed.Reg, 20,525, 20,525 (1992), The State and NRC have both aoknowledged
the potential conflicts if both the State and l.lRC regulate groundwater discharges from the IUC
tailings impoundment. For example, the State acknowledges in its letter dated August 28, 1996 to
IUC's predecessor (Attachment 4) as follows:
Upon our earlier review of your proposal for cornpliance monitoring
to be done under your NRC licensg we corrcluded that the proposed
monitoring program would be adequate for compliance monitoring,
under a groundwater diecharge permit. However, in the event that
compliance monitorirrg revealed a release of sontaminants from the
tailings cells, there would be discrepancies betwEen $tate and NRC
regulatory programs. These include differences in which bsdies of
underground water are protected, which par{rmeters are regulated, and
cleanup procedures and standards
7 Sce" c.g"- 42 U"S. C, $ 7901(a).
E For cxrmplc, undcr thc rccqrtty cornplctrd Liccnsc Tsnninatiorv$its Tr&stLr Prplocol bqtu'ccn DOL' and NRC (Atlachmcnt 3), DOE
will not tak title to a tailingp ,tirpo*l ritc. and I{RC wi.ll uot termiuute thc lic+n,sc for a sitc, if thcre are my outstandirE "issues" wilh
rmpoct to sta,tc regutrtot authoritiw, Simil*rly. in situations wherc lhcrc is pvcn s porsibitity that t state might scck to impox eddition*l
rsmrdiation ruquiremtrrts on top of thorc rcquircd by MtC, DOE might fccl oompcllcd rlot to coecpt titlc. rinca to do so would trc
inconei$ont with drs stahltor'y dircctivs in AXA Scction 83 that such trcn$fcn to DOE art to be tccomplirhcd at no cosr to the govwnmcnt
This rcluchrre oar thc pert ofDOE would lilicly bc compounded by lhc conccms naiscd hy thc Eedgr*! FacilitisE Conrpliarrcc Act" which
rcquircs that fad&rl facilitie* comply with all statc requirerrtnts "respccling tht conffol strd sbslrrmcnt of solid w*stt dispotd artd
msnigcmcnt." 42 U.S.C. $ 696t(r).
9 UMIRCA rcguird EPA to promulgatc cnvironm+nlal standarda for radiologic.rl and nonradiologh*l h*zsr& associetsd with byproduct
mclari4l, 43 U.S.C. $ 2O?Eb). EPA promulgatcd such $lcndards, which include gmundw*tcr protcctiorr st+ndards. 40 C.tr'.R.
g 190.32(aX2). Thc NRC (or agrecmont statc) is charged wilh lhc rcsponsibiLlry for imflunrrrrting and cnfotcirtg tho $*nd*rds- 42 U.S.C.
$ 2022(d).
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William J. Sinclair October 31, 1998
A letter dated December 13, 1996 ftom the NRC to the State (Attachment 5) also acknowledges the
differences between the State groundwater disoharge program and the IrIRC program.
In zummary, Utah's effons to regulate I te.(z) byproduct material in groundwfl,ter threatens to
undermine the system of uniform, national standards established under IJMTRCA, and to impede
tailings impoundrnent clozure and transfer to th€ federal govemment. In addition, the imposition of
state groundwater standards would lead to direot oonflicts with federal requirements- Consequently,
undu the prinoiples ofpreemption established by the Suprome Coufi, Utah's asse,nion of regulatory
authority is preernpted.
Z. TIIE WEIIT MESA MILL DOES NOT ITAVE TEE POTENTIAL TO ITEICEANGE TO
WATERS OF IEE STATE AND EENCE DOES NOT FALL WITHTN THE
NEQI]IREMENTS OF TIIE UTAH WATER QUALITY ACT.
2.1 Stetutory Frovirious
The statutory authodty for the State to promulgate the groundwater discharge reguluions is the Utah
Water Quality Act, which provides that:
it is unlaufiil for any person to discharge a pollutant into waters of the state
or to cause pollutiorr which oonstitutes a menace to public health and
welfarg or is harmful to wildlife, fish or aquatic life, or impairs domestic,
agricultural, indugtrial, reoreational, or other beneficial uses of,water, or to
place or causa to be placed aily wastes in a location where there is probable
cause to believe it will oause pollutiorr,
unles* authorized under the Aut or regulations. Utah Code Ann. Section I9-5-I07(i). "Waters of
the Statd':
a) meims all stream$, lakes, porrds, ,, and all other bodies or ascumulations ofwater, srdace
and underground, natural or artifrcial, public or pri\iate, whioh are oontained within, flow
throug[ or border upon the state or eny pofliofl ofthe state; end
b) does not include bodies of water confined to and retained within the limits of private
property, and which do not develop into or sonstitute a nuisance, a public health hazard,
or I msnace to fish or wildlife,
Utah Co,de tuin. Sestion 19-5-102(18),
IUSA is rrot required to obtain a groundwater discharge permit, for the following reaEons:
a) The Mllshould be permitted by..rule, ruSA and its predecessors have conducred
groundwater monitoring at the MII for a number ofyears, and there is no evidence that the
tailings impoundments arc impacting groundwater. The existing groundwater data
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Williem I. Sinclair October 31, 1998
demonstratc thet the Mill will have, at most, a de minimrrs potefltial effect on groundwater
quality, so IUSA should be entitled to a permit by nrle. EES UAC R3t7-6-6.2.A.1 and 25.
b) There is no,poJentiat for disch+rge to waters, gf the ,!tatg, The State requires a groundwater
discharge permit for facilities which discharge or would probably result in a diseharge of
pollufitnts that may move directly or indirectly into groundwater, There have been no
discharges to groundwater ftom the Mill, nor is there probable cause to believe that the
activities at the Mill will result in such a disclrarge,
2.2 Dst* Dcmoffitrete No Dischargc to Groundwater
Data on groundwater quality and occurrence at the Mill have been collected from up to 23 wells
drilled sinoe 1979.
Tha Mll's Point of Compliance (?OC") proposal, which has been accepted by NRC as the basis for
the MII's ongoing detestion monitoring prog"ram? was developed based on a reevaluation (the
' Hydrogeologic Evaluation") of all of the existing groundwater data reviewed as of the Spring of
1995, and incorporated ItIRC's co$unents ftom a meeting of August ll, 1994, and site visit of
Septernbm 20, 1994. The proposal package included copies ofnro EPASuidance docurnerts whictq
in addition to NRC gurdance, were used to develop the monitoring and statistical approaohes
presented in the POC proposal,
The purpose of groundwater monitoring is to provide timely deteotion of potential releases to the
uppermost aquifer. The uppermost usable aquifer beneath the Mill is the Entrada/tlavajo sandstone.
Thp Burro Canyon Formation is approximately 1,200 feet above the aquifor, at depths of 9l to l+l
feet below land zurface, and hosts small volumes of popr-qualiry perched water. The POC
monitoring wells are completed in the perched groundwater zone of the Burro Canyorr Forrnation.
In terms of detection monitoring, the perched groundwater zone provides the earliest horizon for
detection of tailings cell leakage relative to ths Entrada./1.{avajo aquifer.
As sumflrarieed in the POC proposal and in Section 1.3 of the Hydrogeologic Evaluation, this
uppermost, discontirruous zon€ of water encountered berreath the tailing disposal areas at the Mill
does not constitute an aquifer, due to poor water quality and minimal ro zero field, Although the
perched zone transmits insufficient water to be arr aquifer, this zone is usable for very early d*mion
of any potential releases ftom the tailings disposal cells at the Mll, Indeed, any release detected in
this zone would be identified irr arr area separated from the EntradaNavajo aquifer by approximately
1,200 feet ofvery low-permeability, bentonitio mudsrones and claystones.
Downgradient of the Mill, (i,e,, between the Mill and dissecting canyons), the groundwaier in the
perched zone cannot be used for irrigation or domestic consumptiorr because of the natural poor
quality of the water and low yield rates. Documented pumping rates from monitoring wells
completed in the Burro Canyon Formation are less than 0,5 gallons per rninute (gpm); even at this
low rate, the wells are tlryically pumpod dry in a period of mirrutes to less than two hours.
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At the Mll site, the tailings cells are located within the unsaturated Dakota Sandstonq which overliesthe Burro Canyon Formation. If leakage were to occur from the tailinls ."ll*, 'r"ilings-relateJ
oonstituents would have to migrate vertically through approximately I l0 feeiof unsaturflted materialbefore reaching the perched groundwater zone,
The findings of the Hydrogeologic Evaluation were that the tailings located in the oristing disposalcells are not impacting groundwater at the site. In addirion, it did-not appear that future fu;; ilgroundwater would be ucpected as a result of continuing operations. rhese conclusions were basedon chemical and hydrologic data which showed that;
a) The chemistry of perched groundwater encountered below the site does not showconsontrations or irtcreasing trends in concentratiorrs of constituents that would indicate
seepag€ from the existing disposal cells;
b) The usable aquifer at the site is separated from the facility by approxirnately 1,200 feet of
unsaturated, low-permeability rock;
The usable aquifer is under artesian pres$ure and, therefore, ha$ an upward prsssure
gradient which would inhibit downward migration of constituents into the aquifer; and
At the time of the analysis in 1994 the facility had operated for a period of 15 years and had
caused no impacts to groundwater during this period.
Continued POC monitoring at the site is performed ro verify that past, current and future operationswill not impact groundwater.
2'3 No probablc cause to believe the White Mesa Mill will discharge pollut*nts togroundwater
Dwingthe last two mont$, a.Jeam of licensed profe,ssional engineers ftom Knight pi6sotd performed
]j*^e-f^r*^r:::* ?:ceil construction for ceils r, ? .19.s, as welt "* u,f updated analysis oiperf,ormancc of those cells, CeU 4 was not reviewed in detail bv Knighr pi6sold, ilr..u* it is not iusa. A thorough evaluation of that cell will be completed prioi to itibeing put into use.
with resp6ct to the construction of those cells currently in use, Knight piisold found that:
cells I, z and 3 were designed and corrstructed with emphasis
on eontainment of liquid, The corrstruction of eash component
of the cell erructures and lining systems was well documented,
with a level of detail in QC of the liner that was exceptional aithe time the cclls were constructed, There are no defects
wident in the records ofdesign or construetiory as evidenced byboth [Knight piisold'sj review and the inspections made by theNRC at *re time of construction, Thereforl, there is no sufpon
\TAEOR\E YS\USEBS\E)$C\DAVEUJTTER$\$Indr l. doc
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NOV-42-EIB l'? t 2? FEOM : I N TItrNAL URANIUMTERNA
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for any,claim that design or construction of the cells was in any
way substandard.
Knight Pi&old also reviewed the perforrnance of the Leak Detection System ('LDS,,), and corrcludedthat there are *no indicatiotls that tailings cells are discharging tailingsiiquid io either rhe LDS or theunderllng formation".
FoUowing the review of cell construction, Knight Piesold conducted a detaited review of theperformance ofthe oells, including modeling of cell3, The oell3 modeling results were extrapolatedto cells 1 and 2, The following is a summary ofKnight pidsold's concluiions:
ID=3El3 3rEr4
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William J. Sinclair October 31, 1998
Since the cells were constructed in the early 80's there has been no indioations that tailing
cells were or are discharying tailings liquid to either the I,DS or the underlying formation;
Water observed in the Cell 2 LDS sump has been thoroughly analyzed and deteffiined not to
be a component of the tailings water;
c) Recent modifications to the operating permit are based on sound engineering principles urd
are more likely to detect leakage tlrrough a damaged liner than consideratiorr of chemical
analysis alorre;
Modeling of potentially occurring volumetric flux through the Cell 3 pVC liner during the
period between January 1983 and Oetober 1998 may have reachEd an average rate of S0
n3la IO.ZS gpm). This rate is coruidere d,"de minim#' and inherent for pVC tiners Uv thc EpA
Based on our modeling, the total volumetric flux sinc,e beginning of cell use would represent
only 4 Percent of the speciflc retention (i.e,, permanent pore storage) in the underlying
sand$one, Hence, 96 percent of the permenent pore $torage would be available for futuri
rnoisture, if any, of which rnay rnigrate below the sell,s liner.
Cessatiorr of the discharge of any liquids upon termination of ce1 operating life andreclamation oftailings will result in the gradually diminishing rate ofvolumetric flux during
the post-operatioil period,
Hthe status quo were to continue, the volumffric flux through the cell3 liner, based ofl our
modeling might require at least 400 years after closure to fill the remaining sandstone pores
such that uasaturated flow downward toward the perched water zone could cor*n.nce.
Unsaturated flow, ifit were to exist, based or our modelirrg, would require an additiond g00
yeBr$ to travel the ll0 vertical feet to the perched wrter-bearing zone after sandstonemoistr.re is raised to a degree faoilituing downward movsffieflt of moisture. In other words,
a total of 1,300 years would be required before any potential volumetric flw from a reclairned
oell oould reach the perched warer zone below the site.
a)
b)
d)
e)
8)
\TAEOR\S YS\USESS\g}eC\DA\IEUJTTER$\SIncIr l. doc
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William L Sinclair October 3I, 1998
h) Dissolved metals in tailings water are unlikely to be transponed through the l lO-ft vadose
zone due to significant attecruation from a number of potential processes documented to exist
when moisture moves at a very slow rate tlrough a vcry low permeability media. These
proce$ses include a combination of microfiltration through the PVC liner, adsorption to soil
particles, cation E(change, horizontal and vefiical dispersion due to heterogeneities of roclq
and oxidation-reduction processes.
r) Since Cells Nos. I and 2 are smaller and the hydraulic hrads of liquids present in those
oells are also lower, estimated flux rates from Cells I and 2 will be conespondingly lower
than those which may occur for Cell3.
2.4 Conclusiou
As is ev'idenced by the volumes of groundwater data provided to the State of Utah Division of
Radiation Control ('DRC*) by IUSA and its predecessor licensees at the Mill, and reinforced by a
review by independent regirtered professional engineers, there is absolutely no evidence that the Mill
has ever caused a discharge of pollutants to groundwatar" nor that there is prohable cau$e to believe
that the Mill will di*harge pollutarrts to the waters of the State. The groundwater conditions at the
Mll are monitored closely under NRC regulations.
3. ACMSS TO TEE WHITE MESA IVILL TO CONI}UCT GROUNDWATER SA}IPLING
The DRC has asked that it have aocess to the Mill to conduct groundwater sampling Irr a letter to
Dianne Nielson dated October 30, 1998, IUSA indicated that it encourages discussiou between DRC
and IUSA on a broad range of matterq including this request. IUSA looks fonrard to disanssing this
issue with DRC in due fiorrse, a$ part of its broader discussions with DRC" However, we would like
to take this opponurrity to briefly state a few poirrts on this particular request,
As the DRC is aware, all groundwater data collected for the Mill monitoring program are publicly
available; and, to facilitate DRC's access to these data, IUSA and its predecessor licensees have
routinely provided copies of repofis containing groundwater data to the Division In addition, within
the past few years, the Mll licensee provided the State with the opportunity to sample IUSA's deep
wells, which are completed in the Entrada.{tlavajo sandstoile, the regional aquifer, at the same time
that the State sampled the wells in the same aquifer, located at the White Mesa Ute cornmunity. It
is our understanding that the results ofthis particular sampling eveflt indic+ted thar rhe operation of
the Mill has had no effect on water quality in the regional aquifer.
Although ruSA is pleased to provide the State with aocess to our groundwater monitoring data,
which are collected under the terms of a detailed sampling program, and include sampling procedures,
quality controUquality assurance, and data quality objectives, we would need to know more about
the State's proposed sampling program before we comment on the appropriateness ofthe proposed
sampling. As explained in the State'$ brief request, the objeotives of the proposed additional sampling
\TAEOR\SYE\U$ERS\EIGC\DAVRLEf ltRS\Binclr I, dor
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NOV-a2-BA 1?=zsl FROM: INTE TIONAL URANIUMTNA
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William J. Sinclair -l l-October 31, 1998
a,re nil cleu. Although the State indicates that the purposes ofthis additional groundwater sampling
would be "to €trsure that alternate feed rnaterials have not rezulted in arr environmental impact tA thc
groundwater *rrd to gather data to be used in formrlation of a groundwater discharge permit for the
ltrhite Mesa facility", ruSA believes that our existing database affiply demonstrates that operations
at the Mill, including altemate feed processing have resulted in no impact to groundwater. Indeed,
the construction of our tailings cells, coupled with site hydrogeologic conditions, and other
consideruions coruisfierrt with l0 CFR Pan 40, Appendix 4 oombire to support the position that our
operations are extremely protective of groundwater, and that the site poses virtually no risk to
groundwatu resources in the area. In additiorL the existing monitoring program has been detennin€d
by the NRC to be adequ*te to detect any potential releases to groundwater, should they occur.
In view of these conside'rations, IUSA would ask that the State please provide e rnore detailed
desoription of the proposed data quality objectives, sarnpling and analysis plan, urd quality
controUquality assurance measuros associated with ths proposed sampling program, to enable us to
fully evaluate your request.
4. STIMMARY
In summary, ruSA would be pleased to rneet with UDEQ to discuss the remairring iszues raised in
your letter of August 4, as well as a possible means of providing IJDEQ with any data that may
further confirm that the colls at the Mill do rtot discharge to groundwater. Howevu, for the reasons
cited above we feel it is not appropriate for IUSA to apply for a Utah groundwater discharge permit.
Vice President and General Counsel
DCF/tay
Enclosures
oc (#encls.):Dianne Nielson, Executive Director, UDEQ
Don Ostlcr, Director,IJDEQ Division of Water Quality
Ioseph Holonich, Chiefi NRC Uranium Recovery Branoh
Jim Park, }IRC Uranium Reoovery Branch
Richard Bangart NRC OfEoe of State Programs
Charles Hackney, I.IRC Region IV
Fred Nelsorl Utah Attorney Generals Offioe
David Bird, Parsons, Behle, and Latimer
Tony Thompsoq Shaw, Pittman, Potts, and Trowbridge
PAGE L2/3i1 2Ei3BB4
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Yours truly,
\TABOHSYS\IJSER,S\EI(EC\DAVEU.ETTER$\$iocIr I. doc
1?' 3B FROM= INTERNATIONAL URANIUM
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Attachment I
[I.S. DISTRICT COURT
Waste Action Project
PAGE 13/3"
Ilawn Mining Company
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WASfE ACTION PR&TECT,
v,
DAIIN UTNIIIG COIIPAIIY, NEtf!{oNr
coLD CO!{PA}IY, and NEW!{ONT
I.TINING COIIFA}IY,
3Es'4IeE
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FILED IN THE
U,S. DIgTBICT COUHr
EASTERN DISTRICT OF IVASHINGTON
sEP - 3 lggfi
IINITED stAfEs DIsrRIcr couRr JAM+& IAFSEN, CLERK
EASTERI-I DI$IBICtr OE' wAsHINGToN
-l{/-
-. SEPUTy
Flaintiff,No. CS-96*0106-AAI-I
OBDEE GRAIITINO
XOEIOIT PORsurollat iruDGl{EHr
Defendants. )
_)
On Auqnrgt g, 1996, this Court heard oral argument on
itefendantsr Motion for Suumary Judgnent and Award of Attorney Fees'
Jef,frey t{. Leppo and Karen M, McGaffey of Bogle & GateE, Eeattle,
Washington, appeared on behalf defendants. Richard A. Smith and
NnoII D. L,Owney of Suith & Lowney, Seattle, Hashington, repre$ented
plaintiff.
Defendants uove this Court for an order granting their motion
for summar1f Judguent and disnissing pLaintiffIs couplaint'
Defendant claiuE that the clean Water Act, under trhich plaintiff
fi1ed this action, is inapplicable to the inetant case because the
trpollutanttr at issue, uraniuro uil} tailings, is beyortd the scope of
the C1ean lilater Act.
OADES GR.ITTEIHG I{OTIOII
FOR Bgl-0[e.By iIuDGldEl{T - I
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In 1981, DaBrn congtratcted
area, TDA*4, tith the caPacity
ERNA
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I. UITDIAPU'IED F}CT81
Dawn uining Company (Dawn) began tuilling uraniurn at the Ford
urilt site at issue in 1957. Until 1965, Dawn operated the site
pursuant to a Source trlaterial License granted by the Atonie Energy
conmission. In 1959, Daun resumed uraniuu proceesing under a
Radioactive Haterials License iseued by the State of t{aehington.
Dawn ceased uilling operatione in 19s2.
MiIIing uraniurn concentrates the ore to produee material rcith
substantially higher concentrates of uraniwq than that contained by
the originat unproceseed ore,Thie Frocess aleo generates
significant auountE of byproduct uaterials, known as tailings,
which contain residual levele of uranlurn. Dawn has disposed of
tailings from the uilling process at tailings dispoeal areaE (TDAs)
at the nillsite, Four TDAs are currently at the Eite. From 1957
to 1955, Dawn disposed tailings at, trDAs I and 2, and frou 1969 to
I-981, Dawn diepoeed of tailings at TDA-3. TDAs 1-3 are above-
ground unlined diepoeal areas. AB a result, contamination frou the
ni}l tailings dieposed at theEe TDAs have uigrated into the
gtroundwater and nearby Chanoltane creelc-
a
to
Iined below-ground iupoundnent
store up to forty-four million
lthe factE are taken fron DefendantEt Statenent of Facts in
Support of suamary Judgrnent. Aacording to LR. 56(c), rthe court uay
aEsuue that the facts as claiued by the uoving party are aduittedto exlst without controverEy exc{apt as and to the extent that Euchfactg are controverted by the record Eet forth hy [the opposingpartyts statement of factsl. rt Plaintiffs did not submit astateuent of factE; therefore, the Court may accept the factselaimed by defendante ag true.
ONDER GNAITTING UOTTOII
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cubic feet of hiII tailings. TDA-4 was the subject of an
Environruental lupact Etatement (EIS) prePared by the Washington
Department of, Social. and Hea1th Ser:trices (DSHS) ' By 1982, r*hen
Dawn eeased nlllinge operations, approxiuately four million cubic
feet of, tailinqrs had been stored at tDA-4. According to Dawn,
tailings disposed of, at TDe-4 have not lealted or otherwise been
releaeed.
Since 198?, Dawn has worked with federal and atate agencies to
develop a Closure Plan for the uillslte. the Closure Flan includes
a conprehensive reuredial progralt that addresEes the surface and
groundwater contauination reeulting frou leakaEe at TD.Le 1-3 and
requires Dahrri to remove contauinated groundwater. Dawn has
cCInstructed a system of lined evaporatlon ponds on top of tDAs I-3.
The ponds are intended to Eerrre as partial caps and reduce further
infiltrat,ion of water into the tailings naterial underneath. Dawn
will puup contaminated groundwater from the agrrifer into the lined
evaporation ponde. When punping grounduater is no longer neceEsarT
and the evaporation ie complete, Dawn intends to cloEe the ponds
and construct a reclauation cover over the TDAg.
Dawnrs e!.osure plan has undergone extensive regulator? revietf .
The Departnent. of Health establi.shect a Technical AdviEory Couuittee
to analyze the closure proposal, which includEd Eepresentatives
fron state and federal agencies, the Spekane Indian Tribe and loca}
citJ,zenE. The Departnrent of Health also held nuuer$us publie
hearinge regarding the PIan, and prepared a lengthy EIs and
Suppleuental EIs (SEIS) in connection with its review of the
oaDEn GnlltIxHc ldo[roH
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Closure PIan. Copies of the EIE and SEfg were made available
the public, and the Departtrent of Health hetd public hearings
accepted couments from the public.In February 1995,
Departrrent of Health approved the Closure PLan and issued Dawn an
anended radioactive material license authorizing closure of the
roitLsite.
In 1994, Greg wingard and Richard Snith for:ued tfaete Action
ProJect (wAP), the plaintiff in this aet,ion. l'[r. Wingard ie the
president and executive director of WAP, and IrIr. Snith terveE aE
the secretary and treasuEeE, ttr. Euith also BeflreE as oounsel for
wAP, as in the instant lltigation'
}IAP fil-ed this C1ean water Act suit on Fehruary 20, 1996. wAP
Iater auended the couplaint and joined Newuont r.rining Company and
Newmont cold Company aE defendants.HAPre anended conplaint
all.eges that Daryn ls discharging pollutante into Chanolcane Creek
vithout a National Pollutant Di.echarge Elinination Systen permit
(HPDES pernit) in violation of the Clean l{ater Act (cI{A) . WAP
claims that wasteE eontaining uranium, silica, heavy uetals,
Eulfates, phoephates, chloridee, and other cheuicalE leaked fron
[DAs 1-4 into the groundwater and eventually to ehauokane Creek,
Thus, I{AP alleges, the dlscharge of these wastes into Chanokane
Creelc conEtitutes a violation of the CwA hecause Dasn does not
possess a l{ational Pollutant Discharge EX.ittination Syete[l (NPDES)
peruit authorieing such diEcharges.
Defendants now uove for sumnary judgrunent disuissal of TIAP| E
complaint, They uaintal-n that the uranium ulII tailinge and
ORDEN CRAITSXNg I.TOBIOUfon EIrI.lHtrBY itUDGt{Eil[ - 4
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and
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associated BIasteE identified by WAp are rtbyproduct material" as
defined in Eection 11(e) (2) of the Atonic Energy Act (AEA) . 42
u.S.C. $ eo14(e) (e), Defendants f,urther state that the legielative
history of the CWA and AEA clearly Bhorrs that Congress did not
intend for uranium mill tailings to be regulated by the EpA
pursuant to the CWA, wAP countere that uranium rni}l tailings are
subJect to regulatory control urrder the EPA and offers its ottt
interpretation of the legielative hietory in support. Finally,
def,endants seek attorneyrs feeE againet WAP, claiming that I{APts
etaiu l.s frivolous.
Ir. sullu,naY irgpcltErvE Eril[DlnD
The purpqee of Eumtrary judgrment is to avoid unnacesaary triald
when there iE no diepute as to the facts before the court, ztueiq
v. HeatstjgrE--, 5-2I F.2d 1129 (gth Cir'), oeft' deniedt 423 U.S.
I0AS (1975). under Federal RuIe of Civil Procedure 56,
a party iE entitled to sunmary judgnent, where the docunentary
evidence produced hy the parties permits only one concluEion.
., 4?7 U.S. 242, 106 (1986); ECUSgen
-rr. weidner, 78O F.zd 727 (gth Cir. 1985). EuuarJf judguent is
precluded if there exists a genuine diepute over a f,act that night
affect the outcoroe of the sui.t under the governing law. And.erFp,n,
477 U.g, at 248.
The noving party hae the initial burden to prove that no
genuine issue of uaterial fact exists. Uatsush*la EIEc-. Induet,f,*flI
eo. v. Eenith Eqf,iS Corp. , 475 U,S. 574, 586 (1986). Once the
noving patty has carried itE burden under RuIe 55, rtite opponent
ORDUE G&ATTAIilG HOTTON
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EOne meta
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must do more than sinply shot*t that there is physical doubt
aE to the naterial facts. tr rtl. The party opposing suuuary
Juclgmerrt Bust go beyond the pleadinge to designate specific factE
establishing a genuine issue for trial. Celotex $orp.- v" eat,r#qH,
477 v.g. 3L7, 3aS (19S6). Evidence based on inadrnisEible hearsay
and Epeculation cannot defeat a uotion for sr:rumary judgment. Rule
55(e); wlth.erow v-.-loff , 52 F.3d Z64t 266 (gth Cir. 1995).
In rruling on a rnotion for aurnilary judguent, aII inferences
draun from the underlylng facts must be viewed in the light uost
favorable to the nonnovant. Matsushlta | 475 [I.S. at 587,
NonethelesE, sunsary Judquent is reqrired against a party nho fails
to make a showing Eufficient tp establiEh an eseential element of
a claiu, even if there are genuine factual disputes regarding other
elementg of, the clai&. Celotex, 47V at 322-23-
III. DISCU8BIOH elID lI{tr^TJYgXE
$. AeEligf,ble Statutee.,*nd Reqt'rlgEions
1*, lthe Atomi* Energlr Act
The Atoaio Energy ^&,ct (AEe) coaprehensively regrrlates the
praduction, possesEion and use of radioact,ive naterlals categorized
as rrsource uateriale, n "special nuclear saterials, rr and ttbyproduct
traterials,rt 4.2 U.S,e, S 2011, €t, seq. At the tiue the AEit was
enacted, uranir.rm nill tailings vere not includsd in the definition
of source, speai.al nucleflr, or byproduct materials' fn 1978,
Congreee passed the Uranium Uill tailings Radiation Control Act
(UMTRCA) which anended the AEA and included uraniun niIl tailinqs,/
waste in the definition of rbyproducts uaterial.r' 42 u.s.c.
ORDER GREIITX}Id TOBIOU
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A0l-4 (e) (2) .e Additionally, IIMTRCA provided the EpA nith authority
to prouulgate
stsEndards of general application for the Frotection ofthe public hEa1th, saf,Ety, and the environEent from
radiologieal and nonradiological hazardE associated withthe processing and with the posseesiorr, transfer, and
dispoeal of byproduet uaterial, 69 ctefined in Eection 11
3. (Z) of thie Aet [42 u.s.c, 2014(e) ], at Eites at uhich
ores are procesEed prinarily for their source uaterialcontent or which are used for the disposal of such
byproduct rnaterlal.
42 U.s.C, $ 202? (b) tAE,[ S 11(e) (2) J . However, the Nuclear
Begulatorl commission (NRC) posEesses the authority to impleuent
and enforce thoee EtandardE. rd. g 2022(d) (rrluplementation and
enforcement of the Etandards prouulgated pursuant to aubsection b.
of thiE section Eha1t be the responeibility of the cdumission in
the conduct of itE licensing activities under thie Act. i') '
2. lthe C1ean Water Act
The Clean l{ater Act was prouulgated in L9'12. 33 U.S.C. S$
1251, €t, Eeq. fts purpoEe is to abate, and eventually cease, the
diecharge of pollutantE into surface waterE" Under the clIA, it is
iIIegaI to discharge trpollutantsrt into water, except as authorized
esection 2014(e) tAEt s 11(e) (2)l reads in fuII:
The term trbyproduct aaterialr' seans (1) any radi.oactivenaterial (except special nuelear naterial) yielded in or
uade radioactive by exposure to the radiation ineident tothe procees of produeing utiLiaing speclal nuclearuaterl.al, and (2) the tailings or uagtee produced by theextraetion or coneentration of uraniun or thorirrm frouany ore processed priuarily for its source materialcontent.
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under various F3ovisione of the Act seEting effluent standards.s
tPollutantrr is defined ae
dredged spoil, solid waste, incinerator residue, Eewage,garbage. sewage sludge, nunitions, chemical waete,biologrlcal materials, radioactive uateriale, heat,
wrecked or dissarded eEripoent, roclt, sand, cellar dirtand industrial, uunicipal, and agricultural wastedischarged into water.
33 U.S.e, $ 1362(6).
Although pollutant includeE radioactive waste, the EPA
prouulgated regulations, excluding 11,(e) (2) materiale, Eource,
blryroduct, and special nuclear ruaterials, frou the definLtion of
pollutant, g.E 40 c.F.R. g L22.2i 38 Fed, Reg, 13528, 13530 (Hay
22, 1973). Further, the regutation provides that "[rJadl.oaatl-ve
uat,eriaL covered hy the Atonic Energy Aet are those encompassed ln
its definition of sourse, hyproduct, or speeial nuclear materials,rl
40 c. F,R. $ I_22.2.
C. Analysis
Defendante argue that the statutea, Iegislative historl and a
$upreme Court ruling show that its actions at the nill Eite are not
eubject to regrulation under the Ct{A, becauser 1) Dawn is dieposing
of uraniuu uill tailingsi 2) urani.um uill tatltngt are defined as
rrbyproductgrr of radioactive materials ln section 11(e) (2) of the
AEAt and 3) EPA regulations exclude ttblrllroduct uaterialstr aB
defined in section 11(e) (z) fron the ctefinition of pollutant under
342 u.s,c. s 13tl (a) providesl
Except aE in coupliance with eection305, 3A7 t 318, 4A2t 404 of, thiE Actof any pollutant by any person ehall
OBDER GNIIIITIIItr ITOtrIOIIron gUl,IltARf iIUDGIIENI - I
and secti.ons 3O2,the dischargebe unlawf,ul.
rD.3et3 3ElSr4
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the CWA, Plaintiff, counterE that the CWA always contenplated EPA
regulation of uraniun niIl tailings and, thus, uraniun IriII
tailinge are conEidered a "pollutantrr urrder the CWA.
In light of the plain langruage of the statutes and
regulations, the Court agrees that uraniuu ui}l tailinge are not
within the 6cope of EPA regulataEy authority as provided under the
cWA. Neverthelesgr plalntiff reliea uFon E rather convoluted view
of legislative hietory to argue that the AEit, as amended by [nfifBCA'
npreserv€Br EpA regulatory authority over uranl,un uill tailinge
under the CISA" Plainttff argues that the EpA attained regulatory
control over uraniuu rnill tailings pureuant to enactuent of the
ewA, beqause euch tailinga were not explieitly tncluded in the AE.f,
at the tirne the CWA f,Ias enacted. Although the AEA waE subseguently
aurended to include uraniuu nill tailings in the definition of
rbyproduct uaterialr!r plaintiff naintains that the anend,uents of
the A5A expressly resenred EPA authority over uraniun nilI
tailings.
plaintiff dirests the Court's attentlon to section 206(e) of
UlftRCA, tthich statee:
Hothing in this Act applioable to blproduct uaterial, aE
defined in Eectlon tI €n (2) of this Act, shall affect
the authority of the Ad^uinietrator [of, the EPA] under the
Clean Air'Aet of 1970 or the [CLean l{ater ActJ.x
42 U"s.c, e0?2 (e)Flaintiff claims that the only reaeonable
lnterpretation of thie Eection ie that Congress intended to
prese1rrre EPArs exietsinE authority to regulate discharges fron uill
tailinge into surface waters under the Clean Water Act. Plaintiff
offers legislative history in support of this interpretation.
OEDEN ENTIMING tTOTIOtr
FOR SITI{I{,ARY dTgDEUEbIT . 9
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According to Legislative historY, Eection 206
$ 20221:
ln{TRcA [{2 U,S.C.
require8 the EnvironBental Protect,ion Agency to set
gerieral standarde and criteria for the protec-tion of the
Errri.ott ent outeide the boundariee of the uiII tailings
clisposal siteg. . . , AuthoritieE of the EPA under other
laws would not be aUridged by the new req\lirements,
H, Rep. NO, L480, 95th Cong,, retrrinted in 1978 U'S.E.C.A.N. 7444.
Additionallyn plaintiff points to Part If of the Eame report
stating that the biLI does not affect the Clean Air Act or the
Clean Water Act, "specifically, rror is it intended to do Eo hy
inpliCation or otherrrise,rr If,' at 7473. The Court does not find
these provJ.sione supportive of plaintiff ts position.
firEt, Eestion 206(e) of UIIIRCA [{X U"S,Cr g 2022(e) ] relateE
to the authority Elven te the EpA to develop standardE for the
disposal of uraniun uriII tailings shich are funplemented and
enf,orced by the NRC' See 42 U.S.C. eO22 (b) . This eection uerely
states that, the standaIflE pronulgated by EPA under this aection
will not affect EPATE regulatory authority under other standards.
fn other words, standards that the EPA develops for uranir.ru nill
tailings or other source or blryroduct uaterial rill not affect EPA
deciEions in other areas or bind theu to certain Etandards for
other types of wastee. Additionally, AEA section 2O6(e) and the
legislative hietor1r p1aintif,f, offers coul.d sinply be read as an
indication that EPA prouulgation of standards iuplemented in the
regulation of uaterials under the AEA and IIUIIRCA is coupletely
separate frou EPA regulator-lr aUthority under other statutes.
Furthermore, plaintlff does not include portlons of the Battre
ORDEN GNEilIIINC }IOTIOII
FOR gul[ldaBY irgDGl,lEllr - 10
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llouse Report that refute iLe interpretation. First, the report
states:
Th€ EpA etandards and criteria should not' interject anyd€tailed or site-specific requirenentE Eanageroent,
technology, or engineering uethode on lioenEees or the
Departrnent of Energy. Nor Ehould EPA incorporate any
regrrirernentE for pertits or Iicenses for activities
concerning uranium nill tailings which t ould duplicate
NRC regulatory authority over the tailings sites.
H. Rep, Ho. 1480, 95th congt,, E:eprinted lU L978 U"S.s.c.A.H. 7439.
The report contj.nueai
tritle II (of UI{TRCA) reinforcee the authority of theNuclear Regulatory coililigEf.t to regulate the uranirrnnllr process and uiII tailings diepoeal . r .
Section e0l anends the definition of nblproduct
fd. at 7i42. These portions of the legielative clearly rebut any
eontention that the EPA has alrrays been and still iE authorized to
regulate urani,,rn nill Lailings under the CWA,.a l{oreover, the EFA
has coneiEtently detemined that Nbyproduct u,aterial, il whlch
includeE uranlun uill tailings, is not a trpollutantrr and is
therefore beyond the paraueters of the eWA. 40 C.F.R' $ 122,?.5
4Defenilants provided additional provisione of legLelativehistory supportlng their argunent that congress nerrer lntended EFAto regulate radioactive hlproducts, including uraniuu rnil}tailings. #g Declaration of l(aren U. tlcGaffey, Exltibit c.
strhen Erestl.oned about thts reqrulation during oral argiunent,plaintiff's counsel responded that the regulation wae f,irrelevanttl
because it wac pronulgated prior to the enaetnent of IJI.fTBCA and theaddition of uranir.u uill tailings as byproduets. Howaver, the EpA
has chosen not, to change this regulation since the AEiA was atrended.
onDEB ERh!$$ING uollrotr
FOn ssuilAay JUDcttEt{T - r.r.
PAGE 24/3312Ei3E}E'4
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ruaterialrt in the Atonie Energy Act to include uraniusuill tailings.
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flrral,ly, in 1976, a unaninous Supreue Court held that' t'Uhe
rpollutanter subjects to regulation under th€ tCTgA] do not include
source, byproduct, and special nuclear uraterial, and that the EFA
Adruinietrator haE acted in aecordance with hiE Etatutoff uandate in
declining to regulate the discharge of these uaterials.rt Trai-nJ.*
Col-o!;Fdo Publig fnterest -B$seareh-Grouo, 426 U,S. L, 25 (1976) '
Although the Supreme Courtrs decision predateE the AEA anendments
inoluding uraniurn uiII taili.ngs as hyproduct materialr the EPA
oontinues to refer to Train in its reqiulation that excludes
blproduct materials frou the def,inition of pollutant. See 40
c.r.R. g L22.2.
fn sutr, the plain language of the Clean Water let and the
Atqmic Energy Act derronstrate that uranlurn uiII tallinger Es
byproducts of rad,ioactive toaterial, arE not regulated under the
Clean water Act through the EPA, E4 42 U.$.C. 5 201d(e)(z); 40
c.trn.R, LZZ.Z. fnstead, such rEaterials are regnrlated solely by the
NRC pureuant to the AEjt, ae amended hy ul,ltrRcA. The EPA doeE play
a role in regutation uranium uill tailingsl it develope standards
for storage and diEposal of taiti.ngs. Bee 42 U.S.C. S e022(b).
However, the NRC is e),plicitly granted the authority to lnpleuent'
those Etandards. I&, $ e0e2(d).
plaintiff relies on one section of UMTRCA and a strained
interpretation of legielative history to argue that the AEA
reserveE EpA authority to regulate uraniun uill taitr lngs under the
CIIA. $ee 42 U,S.C. $ 2022(e), In light of the statutory echeue
encluding xI(e) (2) naterials fron the CWA, ptaintiffst argruuent ie
ORDEB GEIIITIilC IMTIOItos guuulRY JgDGliEmr - L2
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unconvincing.6
1., othqr wastes
Alternat!.vely, plaintif f stateE that Err.truary judgnent is
inappropriate hecauEe, even if the Court deteruines uranium uiII
tailings and 11(e) (2) naterialE are not subject to the gWA, a
genuine iEEue of raterial fact exietE as to whether Dawn Ls
discharging non-Il(e) {2) Daterials at the uill. eite. In resPon$e
to that assertion, defendants naintain that all discharges are
blryroducts of the tailings and, therefore, the CWA ls still
6nep offere other evidence, includlng the fact that NPDES
permits have been reErired at other uranirtln uillsites. However,
Ltre uaterials do not indicate what type of waste is being
discharged at those sites. Plaintiff could not - identlfy aparticular uranir:u rnill that reguires a NPDES for di.scharges ofuiff tailings. ThuE, the faet that some uilling operatlone possess
NpDEs perruits in eonnectl.on sith dieposal of wastse frou uraniu.uuilIs is not relevant to the discharge of only 11(e) (2) uraniumulII tailinga.
Purther, plaintiff claius to pasEeEE letter f,rom the EPAstating that the dlecharges fron Dawnts gite are subject to the CI{A
and re{utre a HFDEE perruit. That etateuent, is siuply untrtre. The
Ietter-epeciflcally refers to Midnite lline and states that EPA hasauthority to regulate discharges under certain conditlons"Finallyr-plaintiff refers to uaterlalE ttrat indicate a I{PDES petmit
sould be ieeuired for Etorm or treatnent water dl,scharges, l.f Daundecided to treat the tailinge with sther uaterials and then
clischarged the rrastee directly lnto ChamokanE, These naterials areirrelevant, Bhe uasteg at lEEue are untreated uraniun uilltailings ancl Ehey are not being d.lecharged into Chauolcane Creek.
Additionally, plaintiff argues thEt nonradioactive uaterials
are being discharged by defendant and those uaterials are aubjectto the CWA, Plaintiffs offer no suppcrt for thIE argunent other
than excerpts from the legislatlve history above that EPA Etandardspreaulgated under UlNfReA apply ts iboth radiological andnonradiological hazardg, tr ltrosevBr, ttreee Etandards are thoeediecussed above and lend no support whatsoever that uraninu nilltailingsr oF any portion thereof, are aubject to the cllA or thereguireuent f,or NPDES EremitE. FinaIIy, plaintiff !s discuEeion of
RCR.L is ent,irely nisplaced and has no bearing on this iseue.
ONDEN CBTNIIINGI IiOTXOIIFon Suulff,Ry druDGitdEN[ - 13
PAGE 28,/33t2E3BE4
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inapPl icable.
Flaintsiff off,ers uproofrr that Dawn has admitted: 1) locating
a traEh dnmp on the eite uhere TDA-3 was later placed and that the
dgnp uas covered with tailings disposed of at 1[Dl,-3; 2) discharging
Iarge amounts of ceuent kiln dust into the TDAsi and 3) adding
pestieides and fertilizers, of unknown tlpe and quantity, to the
TDAg.
If plaint,if,f offered factual $upport for this argument, the
Court night agree that FumrarT Juclgruent is not aPpropriate.
Houever, plaintiffrE evidence doeE not eetablish a genuine lssue of
naterial fact. First, although defendantE aduitted at oral
arguuent that a trash duup previously exieted vhere TDA-3 is nor
Iocated, plaintiff offers no evidence whatsoever that pollutants
nigrated from the dunp into the groundwater. Indeed, Plaintiffs
offer no evidence that the trash duurp even corrtained [po]]utantErr
as defined by the cwA.
Next, def,endants maintain that only uranium tailings are at
issue with reepect to TDAs 1-3, Defendants adnit that Dawrt hae
added ceuent kiln dust to the tailings in TDA-4 as a neutralizing
agent, but naintain that TDA-4 iE not leaking, Declaration of
lthornas Sheperd., f 7, Plaintiff prof fers l1o credible evidence in
reeponse. Indeed, plaintiff presents no evidence that TDA-4 is
IeaHing and does not Ehos that any uateriala other than nill
tailings have been disposed in fDAs I-3. Additionally, Gary
Robertson, head of the Waste lrlanageuent Section of the Divisl-on of
the Badiation Protection of the l{ashington Departrnent of Health,
ONDER GNtllEINO HOTTOUFoa SUtdlttBY itUDGl{Elf,F * 1"4
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NOV-82-BEl l7 z 4l FROM. I TIONAL URANIUM
Richard A. Suith, Exltibite o-R.
Euggest that Dawn sprayed fertilizer
rather than in the TDAs.
3EIEt4
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declared that only 11(e) (2) materials hava been disposed of at TDls
1-4. Declaration of Gary Roberteon, f 3. Further, l,[r. Robertson
states that the Departuent of Health hae conaonly referred to
nateriale at tnas I-4 as |tll(e)(2)n uaterialE and considerE the
waste suhject to regulatory control under the AEA. f+.
zurtherruore, the evidence pfaintiff offers to ahow that,
fertiliaere and other uaterials have been added to the TDAE appear
without foundation and highly unreliable. See DecLaration of
NTERNA
o
ID.3A3 12Ei PAGE 2,8/33
fn
on
any event, the docunente
weeds eHqroundlncr the ponds
Finally, plaintiff offerE nothinE nore than conclusorli'
allegationE that fDA-4 is leal<ing.A nonnoving party canrtot
manufacture a genuine iseue of faet Dere1y by nafing assertions in
ite legal memorandum,s-A. EmEreza de Viacao Aerea Rio Grandens v.
Walter-Xidde &- 4o-,690 F.2d 1235, 1238 (gth Cir. 1982). Ho
evidence even renotely suggests that tDA-4 is teaking'
In light of the evidenoe defendants present and the lack of
evidenee that WAP offers, aunsaL1r Judgnuent ln favor of defendants
is appropriate. llhe clear language of, the statutes indieate that
uranium uiII tailings are outside tne paraneters of the Clean Water
Act, and plaintiff haa, thus far, offered no credible evidence that
non-lI(e) (e) uaterials are or have been diEcharged frou the TDAs.
D- Attornevts Feeg
In addition to uoving for Eurnmary judgTment, defendants requeet
attorneyrs feee. Eee 33 U.S.C. S 1355(d). Although plalntiff ts
OADER GIBTilEING }TOTIO}I
8OR BSl4trEY i'UDEUEilT . 1$
NOV-62-SlEl l7:QQ FROM= I TIONAL URANIU}!NTERNA
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clain is nob one that is eognizable under the C1ean water Act, the
court finds attorneyra fees inappropriate. Novel or creative
interpretations of lav, although incorrect, rlo not uandate an award
of attorneyrE fees.
Defendante Eaintain that plaintiff iE wharassl.ngtr then and
brought a frivolous lassuit in order to delay the Closure Plan of
the Billelte. PLaintiff is obviouely of the opinion that the
closure Flan violateE the larr and ie availing itself of p66gible
legal solutions" The Court, although nindful of defendantEt
argrument to the contrarT, does not find that plaintiff, brought this
aetion for an iuproper purpose. Finally, caselaw regarding this
precise isEue ie virtually non-existent,' thug, dif fering
interpretations of the statutory language are not atlryical
Accordinglyr the Court is not inelined to award defendants
attorneyre fees.
Ccnclusl,oa
The plain language of the CWA and SPA regulations stateE the
materials regulated by the AE"B,, including rrhyproductu nateriale,
are not trithin the paranetere of tlre 6TYA. The AEiL defines uranium
niII tailings as a rtblryroduct' of radloaetive naterial. Thus,
Darmrs disposal of Euch taillnge iE uot suhject to the regulator'lr
standards or requirenentE of the clean $Iater Act. 'FinaIIy,
plaintiff offere nothing but ooncluEory al.legationa that materiale
other than uranium roill tailings have ever lealted into the
groundwater. Accordinglyr
/
oRDEB GBI$rI}|C DTOtrIOlI
FOn EIIUlttBX JUDgnE$r - 16
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IT fB EEREBY ORDERED that defendants t Ir{otion for Sunnary
Judgrunent iE GR]AIITED. Ho\deve,r, aach Farty shalr bear its own
attorneyrs f,eeE.
Itr fE PEBTEER oaDgnED that plaintiffts conplaint ie DIgXfggED
rTTE PB&TUDtrCE.
IE IS FIIBIEEB O*DERED that defendants shall subuit a bill of
cogtg within ten days of receipt of this order, for hearing
purEuant to LR 54. Plaintiff nay f,ite objections uithin five days
of Eervice of the bill. The Court will determine costs uithout
or&1 argument after receipt of the objections or the deadllne for
saue"
IT I8 80 ORDEBED. The Clerk iE direeted to enter this Order
and forsard copiee to counsel The elerk is further directed to
enter an order of Judqanent and fomard coplee to couneer.
DIIED this lr*tuav r{ Augrust, lep6t[\
I
United Statee DlEtriet Judge
ORDE& €AtlTTIDItr UOf,trON
FOR EUIOI}FY .IIEDEUEHE - L7
FROM,INTERNI\TIONAL URAHIUM ID.3O33BE|4t2Eoo
Attachmentz
IJ.S. DISTRICT COURT
OF APPEALS
(Ninth Circuit)
Waste Action Project
V.
Dawn Mining Company
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Attachment 3
NRt PROTOCOT
for
I,ONG-TERM TICH,IYSING
of
COMMERCIAL
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PAGE EI,/ 13
Attachrnent 4
August 28, 1996
LETTERFROM
UDEQ
to
EhIERGY FUETS
hIIJCIEAR, rNC.
DEPAR#N' oF E.IVTR,NMENTAL auALO
DrvrsroN oF WATER quAtITY
ttt Ho.tl lld0 llrcrr
P.O ld r{.E o
Srlt lrtc Cky. Uuf ilI lil4tTu
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HOV-42-SlEl 17 t 57:gMilfElO L*rvufu-t
fruec R laiGlro. It D.CrsrDux
DaA. Od:t PEDi-.r
I]POM' INTERNATIONAL LJRANI UM ID.3cl33ElE4ttzEi PAGE A/ 13
'r'*f,6Pg,Y*
l(cili w. Wddr€trrrs
brJH
R Ar* Alrbs!- P.E.
Ihvrd S. EorlGr, PrhO., P.E,
Nrl BcrtrrLmld FaqurmDtsR.Hicbil,FLOI* C. NidrefE $rr. P,E' l. Arll|$rbf
[.nst I{. Y[I**r B.D,
Dc A. O*lrr. P.E.lrHr.lF
F:ECEiVED
sEP 0 $ 1996
i:r*enra t rUELS
Auguet 28, 1995
&rifia4I{ril(ttnrn rcccipt rEqucstEd)
Ms. Michcllc Rchmarut
Environmcual lltrmScr
EncrEy Frpls Ntrchrr, hc,
ThltG Pa* Ccntrrl Srdtc 900
I5l5 Aapahoc St
DoilvGE, CO 80202
Derr tt{s RGhmriD:
Subjoc* Crn for Ground Watrr Disctrrge Pcilttit Applisuion for Srhic Itissa Mill
As you lnow, tlc Whic Mcsa MiU ir considasd urdcr tre Utrh Cilourd Warcr hotcction
Rcgulilions to bG ra'exfutirrg faciligf, and subjcct to &c requirumrnt to Epply fot a ground
wilGr dischrrge pcnrrit st tc dissr*ion of frc Exccutive Stct!ilryy. Alhough tlu sitr is crutatly
rsgrrhred by ilrc U.S. Nuclcar ncsuhbry Commision (ItlRC), trgc arc scvcml afiperts of NRC's
rttx{atory protlam whcrt mafiErE of cmccta to 6G sutu flrE rcr addrcrscd. Errlicr, rc had
hWGd tlw mC would iddtcss tlrrt $rE emfiEilE ir trEir rtgutfiEl, trogrrru' and trcrtfut'
wu had Efirpgrdl,' seytd ttc prmit ryliedon rtquinrrmt Afu dfutusri@t benrcm I'IRC
rnd $G Utrh Dividoo of Rrdirdsn Coogot ovcr 6c Adff mill EiE rcu Morb, IIRC hrs
dacrmincd they do not hrw tc lGgtl .ffioiry n cnftrcc sE rt$Iiramti. Aocurdingly, wr
EtG now rcquiring &rt rcu $ubfiilit r 3romd rflEr dischargc pcilnis apliretion fq 6c Whitr
trviera Mill tri&h rix rrcntis of recdtr of Ufu lffi.
Upon ou carlfur ruiri,* of your popocd for corplirncc monitoring o bc donc undcr your NRC
licqrsc, rvc consludod frrt thE psopoccd tuottitoriug prugrun vsuld bc adcqurn for conpliansc
monituingr u[dcr a grould w.Er dirchargc paudt Howcv(r, in t[G Eycilt trat compliarpe
monitoring nrvcalcd a rGlflsc of soatamiurnti ftom ttc t'il'r8r cGtl& thae rrorrld bc
discrcpancicc bctwccn silE Erd I{RC rcaulatory Frogrrms ThGsG itrchdc diffitne* in whieh
bodiEt of rrndcngnrM srtEr arc prorcacd which prnrflEtcrc rre rcgnlarcd, and clcauup
and *andads. Cottplirncc witr Sc ffarc program can only bc insurod through I stttE
ground wa&r dischuge pcnnit
NOV-€12-BB 17,5Sl FROM.IHTERI.{ATIONAL URANIUM ID' 3633EISI4 l2Ei, o o
PAGE IA/13
Ms. Michcllc Rehmann
Augpst 2t, t996
Pagc 2
. Wc would lilt ttl ttlGct Ei& yotI" or othem,isc proyidc guidancc, on infonnetion noedcd for the
pcrtnit application or odlcr aspasrs of Utrlt's Elorrnd wflrGr regulrrry yropm. [f you nccd, dditionel tirp to prcparc the permit Eplicatim, hrt rcqucst could also bc considcscd. PlGasG
t connct Me* Hovat of this office if you hrvc rny qucstions,
:t' sinccrelg
Utah wau Qualiry Eosd
-il, o' il{'* 'Don A. Ostl6, P.E
Exccrtivc Scffit ry
DAftMN:rnN !
o$ Soufrcrst UEh ttrErlfr Dept
David Ariod, Dirukt Eogrc*
Dirnnc R Nichon
Bill SirEIrb, DnC
Josqh Holonifi, I{RC
Auorncy Gcilril
ffiEEEI?lrlrsIIE&
FROM: INTERNATIONAL
o
rD'303sErEt4t2E
o
PAGE I I/ 13
Attachment 5
UDEQ
December 13, 1996
LETTERTROM
U.S FTRC
to
NOV-02-9E} 1B= 6t
attrr t'€vq..
rl\iW O * r.rE oH F JirlTr'#'lo, *,ri *
w^sHrrYc?ol(, D.e. w5t+e0 I
Decen':ber 11. i995
Dr. Dienne R. N'ielson, Executive 0irector
0epartment of Environmentai Qual ity
State of Utah
168 North 1950 llest
Post Office Box 144810
Sa]t Lake CitY, Utah 841i4-4810
[)ear 0r. lli e'lson:
I am responding to your September- I6, 1995 letter describing recent
oi i.usiiini *i[ir -irt'" lru.iiir Regul atiry Conrnissiorr strff regarding lheeiirinition of-ouit-regulation it uranium mill sites in utah. The commissi0n
aoorecietes your-inte"Eit-in sirnplifying the regulelory ovErsight of uranium
;iii-;il-iiiiiigs ircil ities in lttah- rni in recinci ] ins regulltgfv differences
Uet*een the ilRC-inO-ipp'l icable Utah ground end surfrce urter qual ity
rii,iiiii;;;. in-iitilipect, there siems to hrve been considerable
oiiunairirinding on itri-piri of both the llRC staff and the strie of utrh' I
f,avi enctosed siecific rlsponses to the six arsrs of concern that you
iOentiii.a-i. ylui ieiter iEnctosure l). l{evertheless, i-Uelieve it is
irloit.ni-to ciaiify-*try UiC wes not able to undertrke all tha actions the
siiie of utah be'lieved were necessrry for eliminating durl regulation rnd to
iigi*ri .iieiniiir. ipp.oeihes in addressing the conierns you have rrised.
As you ere ar,Ire, the stlndat'ds contrined in t{RC lggutations
iiairarrOs promullated by the Environmentrl-Protection,Agency
iirii*s-by'a Fiairel Colrt found that the EPA standrrds rnet
legislative mrndate for proteetion-of. groundwlter
Ihirus, 771 F.tnd 64Q (10!!-!if ' le85);Effiind 78t (l0th Cir. 1990)1. Becruse
EPA standards,:tne NRC requirements also neet
ind, therefori, provide rdequrte protection of
the meaning of the Atomic Energy Act.
puring the past year of interretions,-it hecaura rpparent that^the State of
utah ianted the ifii ts impose State of Utah r:quirements on NRC licensees. As
irr* Hni staff not*A in ttri meetings betueerr tha State of Utah and the HRE,
.uhere are meny asnects of the Sta[e of Utah raquirements, $uch as surface
*iie. itanoarls,-*here the t{RC does not hrve statutory responsibilityr In--
addition, there'aie-rany other are.s of groundvater piotection xhere t,he NRC
nii not need to inpilmiirt requirements ai restrictive as thosr imposed by the
S.r.rte of Utah to piovide adeduate protection of publ ic healt! a1d srfety- -
nitfrougtt ttri Hni *"s riit ing'to consider implenreirting some of ':.he State oi
FROM, INTERNATIONAL URANIUtTt I D. 3033E}sI4 1zEi PAGE I2/I3
,":,.
4'
05[ i9$$l*etr
cHAlfrttAf{
cpnform to
(EPA). Judici al
ths Federal
the Federal lcgislative mrndate
publ ic herlth rnd srfetY Yithin
NOV-tl2-BE 1El . El3 FROM , I NTE TIONAL URANIUMENA
o
Stete of Utah to resolve these issues. I hope I hrve clerified l{RC'i positi
In closing, I nant to assure you that the NRC s
I
condiritted to working *ith the
JLELE t r Yr,srr LU .EsulYs LIrE)ts l55ue). I noPE r nave C, ltf If leO NHL'S pOSltl0n
on these matters and that you will consider bne or ftore of the alternetivesthat tr:._r. proposed. If you heve further guestions, please contact rne.
Sincerely,
Shlrley Ann Jackson
Encl osures;L Response t0 State of Utah, detEd 9/16lg62. ltenorandum of Understandtng
Don 0st1er, U0UQ
Lrrry Hize, UDI{QBill- Sinclitr, tiDRc,/
Peter lleancyf 6rrnd County Council
PAGE I3./13tD"3E3 3AS4 I 2E
o
/4 z-'F-,-
IurBnNerro*O
UnnNluu (use)
ConponarroN
o
Independence Plaza,suite 950 o 1050 Seventeenth Street o Denver, CO 80265 . 303 628 7798 (main) . 303 389 at21 (f,ax)
October 31, 1998
VIA FACSIMILE - (s01)533-4097and FEDEX
William J. Sinclair, Director
Division of Radiation Control
State ofUtah Department of Environmental euality
168 North 1950 West
P.O. Box 144850
Salt Lake city, uT 84114-4850
DearMr.
This letter responds, in part, to your letter to International Uranium (USA) Corporation (..IUS,{,)
of August 4, 1998, in which you request that IUSA submit an application for u
-Stut"
groundwater
discharge permit for the White Mesa Mill (the ,,Milf,).
In this letter, ruSA asserts that it is not required to obtain a Groundwater Discharge permit because:first, the application of the Utah Water Quality Act to a United States Nuclear Regulatory
Commission ("NRC") licensed facility, such as the Mill, is pre-empted by federal legislattn, and
assertion of State intervention could well result in the United States Department ofEnergy 1,.n6f,ynot taking long term care and custody of the Mill; and secondly, in any event, there is nt probable
cause to believe the Mill will discharge to waters of the State and theiefore the Mill does not fallwithin the requirements of the Utah Water Quality Act. We also address your request for access tothe Mill for purposes of groundwater sampling.
1. FEDERAL PREEMPTION
The requirements of the Utah Water Quality Act regarding groundwater discharge permits do notapply to the Mill because they are preempted by federal law. In addition, the appliiation of Stategroundwater regulations would threaten to delay the closure of the Mill's tailings impoundments andpreclude or impede their transfer to DoE for perpetual care and custody.
The issue of federal preemption is addressed in detail in the NMA White paper, "Recommendationsfor a Coordinated Approach to Regulating the Uranium Recovery Industry", pages 52-96. Thefollowing summarizes why the federal preemption argument applies to the Siat";s request that IUC
obtain a groundwater discharge permit for non-radioactive discharges from lfe.(Z; byproduct
material.
, ",@ nr
,ir:*r(-
\TABOR\SYS\USERS\8,\OC\DAVE\LETTERS\S iNCIr 1. dOC
William J. Sinclair October 31, 1998
In the past, the State sought to require IUC to submit a groundwater discharge permit application fornon-radioactive discharges but not for radioactive discharges. The State r.li.d on ,..tio, Z7a(k) otthe Atomic Energy Act (the "AE,{') and cases construingthis section for its assertion ofjurisdiciionover non-radioactive discharges from 11e.(2) materials.r Section 274(k) provides:
Nothing in this section shall be construed to affect the authority of any
state or local agency to regulate activities for purposes other than
protection against radiation hazards.
42 U.S.C. $ 2021(k). Several cases have construed this section in the context of federal versus stateauthority over 11e.(2) material, but none has addressed the issue of whether a state may assertjurisdiction over non-radioactive discharges to groundwater. Moreover, the line of cases that the
State appears to have relied upon in the past to support its assertion ofjurisdiction is equivocal onthe issue of preemption. Indeed, more recent case law suggests that a fundamental premiseunderlying that earlier line of cases was incorrect. When one looks at the relevant statutes and
legislative history it is plain that state regulation of 11e.(2) byproduct material is preempted by federallaw. This is true for all components of lle.(z) material wherever they appear - including
components found in groundwater. Thus, it is IUSA's position that state regulatiorrof any dischargelof 11e.(2) byproduct material, radioactive or non-radioactive, is preemptelcl by the AEA.
The line of cases the State has relied upon to support its assertion of jurisdiction arises from theplanned disposal of 11e.(2) material at the Kerr-McGee Chemical Corpoiation's Rare Earth Facility,located partly within the corporate limits of the City of West Chicago. There are three pertineni
cases:
o Illinois v. Kerr-McGee Chem. Corp,677 Fzd 5T Qth Cir. 1982), addresses whether the City can
regulate public nuisances unrelated to the NRC-regulated tailings impoundment. The court citedto the legislative history of section 27a(k).
It is not intended to leave any room for the exercise of dual or
concurrent jurisdiction by states to control radiation hazards by
regulating byproduct, source, or special nuclear materials. The intent
I For example, the Statement of Basis for Envirocare's groundwater discharge permit includes the following statement:
Because the State has not received delegation of authority for I le.(2) Waste from the NRC, Utah has no direct authority overthe radioactive contaminants in l1e.(2) Waste materials. However, iederal court decisions have allowed the states to regulatethe non-radiologrc portion of I le'(2) materials, so long as such regulation does not frustrate the underlying purpose ofthe federallegislation.
Similarly, the State has asserted in the Private Fuel storage licensing matter that the NRC's authority under the AEA does not preemptstate regulation of groundwater,cilngta 42U.S.C. $ 2021(k), Kerr-McGee Chem. Coro. v Citv ofWest Chicaeo;iiF Ni)Oi7;i;;1990), and Pacific Gas & Elgctric v. Enerq.v Resources commission,46ius. 190- luba; lrt t n,.r."r prunt moratorium law held notto be preempted by the AEA because states retain their auttrority to regulate tre economic aspects of elechic generation). See In the MatterofPrivate Fuel Storaee- LLC, NRC DocketNo .72-22-ISFSI, "State ofUtah's Contentions on the constriction and operating LicenseApplication by Private Fuel storage, LLC for an Independent spent Fuel storage Facility.',
MABOR\SYS\USERS\EXEC\DAVE\LETTERS\SinoIr l doc
-2-
William J. Sinclair October 31, 1998
is to have the material regulated and licensed either by the
Commission, or by the state and local governments, but not byboth.
The court also recognizedthat states were to retain their authority to regulate non-radiation
hazards under section 274(k) and held that:
- the City has the authority to regulate dangerous conditions
constituting a public nuisance, such as open pits filled with refuse and
chemicals in a factory area and insufficient fencing and lighting; and
- the City has the authority to require Kerr-McGee to clean up
off-site contamination.
o In Brown v. Kerr-McGee Chem. Corp. ,767 F 2d,1234, (2ft Cir. 1985), the court held that theAEA preempted a request for a state-law injunction to move non-radioactive wastes to another
location when the non-radioactive and radioactive wastes were intermixed and inseparable. Thecourt's rationale was that a state iniunction requiring Kerr-McGee to remove the byproductmaterial would restrict NRC's authoiity to regulate th"e radiolo gicalhazards associated with thematerial.
o InKerr-McGee Chem. Corp. v. City of West Chicago. gl4E.zdBzo e& Cir, 1990), the courtheld that the AEA did not preempt a city ordinance concerning erosion and sedimentation
requirements because the requirements did not conflict with NRCiegulations.
All three of these cases are premised on the notion that under AEA sections 274(c) and 27a(k)jurisdiction over I le.Q) material is divided along radiological versus non-radiologicai lines, *itn tf,efederal government exercising exclusive jurisdiction over the "radiological" ispects of 1le.(2)material and states retaining authority overthe "non-radiological" aspects.1hi, "dMrion,, of f f e iZjmaterial into radiological and non-radiological components for jurisdictional purposes is inconsistent
with the intent of Congress. When Congress enacted UMTRCA in 1978 iicreated a new class ofAEA-regulated material. This new class of material - I le.(2) byproduct material - was (and remains)unique under the AEA because it was expressly defined by Congress to inclu de ail waste -encompassing all radiological and non-radiological components - p.odu"ed as a result of uraniumextraction operations. This fundamental aspect of 11e.(2) byproducimaterial, which was emphasized
in the legislative history of UMTRCA2, cannot be ignored by artificially dividing lle.(2)material into"radiological" and "non-radiological" aspects for purposes of apportioning juiisdiction between thestates and the federal government.
-3-
2 Sqe' e.g.. 124 Cong.Rec.29,776 (daily ed. Sept 18, 1978) (statement of Sen. Domenici). Senator Domeniciexplained:
A basic principle of the amendment is the creation of a unified regime for
mill tailings so that various distinct materials which make up a single mill
tailings pile need not be subject to fragmented, duplicative and potentially
conflicting regulatory activities by different Government agenciis.
\TABOR\SYS\USERS\EXEC\DAVE\LETTERS\Sinclrl. doc
William J. Sinclair October 31, 1998
The fallacy of attempting to divide jurisdiction over 1 Te.(z) material along radiological versus non-radiological lines was driven home recently by the U.S. Court of Appeals ior the Ninth Circuit, in the
case of Waste Action Project v. Dawn Mining Corp., 137 F.3d, ruiA ph Cir. 1998).3 In that case,
the Ninth Circuit Court ruled that the EPA lacked authority to reguiate the discharge of 1 te.(Z)byproduct material under the Clean Water Act, because lle.(2) byproduct material is not a"pollutant" for purposes ofthat Act. Since Utah's groundwater p.ogr* is independent ofthe CleanWater Act and is not an EPA delegated prograrq the court's primaryholding in \izaste Action project
is not directly applicable to Utah's assertion of regulatory authoriiy. rheLore p"rtin"rt urp.J ofthe Waste Action Project case is the district court's recognition that the radiological componlnts of11e.(2) byproduct material cannot be segregated from the non-radiological comp-onents for purposes
of asserting regulatory jurisdiction. Specifically, the plaintiffin the case had alleged that dischargesof certain non-radiological constituents from a uranium mill tailings facility (e.g., s-ilica, heavy metfls,
sulfates, phosphates, chlorides and other chemicals) required u, tWpBS pir-it The district court
disagreed, noting that uranium mill tailings " are regulated solely by the liRC p.r.ruant to the AEd
as amended by UMTRCA."a Accordingly, the distiict court reject"A tn plaintiffs assertion that thenon-radiological discharges were subject to the clean water Act.
Finally, the courts have made clear that in circumstances where the operation of state law wouldfrustrate the purposes and objectives of Congress, or where state law and federal law conflict, state
l-aw will be preempted.s Congress, when it enacted UMTRCA, created a coordinated federal regimefor the comprehensive regulation of 11e.(2) byproduct material. Under this regime, three federal
agencies share responsibility for regulating all aspects of 11e.(2) material. It i-s evident from thelegislative history, and from the statute itself, that Congress' purpose in creating this comprehensive
and pervasive federal scheme of regulation was twofold: first, Congress winted to ensure thaturanium mill tailings (and I le.(2) byproduct material generally) *ould be regulated according touniform national standards. Thus, as Congress explained when it enacted UlAlnCe:
without the authorities included in H.R. 13650 [which would
eventually be enacted into law as UMTRCAI, the conditions
addressed by the remedial program would be left without
remedy, and the authority of the commission to estoblish
uniform nqtional standords for waste disposal from uranium
mills would not be clear.6
Congress' second purpose in enacting UMTRCA was to ensure that uranium mill tailings would be
3 Copies of the circuit court and district court opinions are attached as Attachmentsl and 2.
4 District court opinion at 12.
5 English v. General Electric Co., 496 U.S.. 72,78-79 (1990)
6H'R'Rep.No.95-1480,PartIat12(1978)(emphasisadded). ThelegislativehistoryisrepletewithstatementsindicatingthatCongress
intended to create a uniform national system of regulation for I le.(2) material. see Id. part tr at 45; Hearing on H.R. 133g2, H.R. 12g3g,HR' 12535, and H.R. 13049 Before the Subcomm. on Energy and the Environment of ttre House Con1 .
-on Int"rior and krsularAffairs,95ft Cong. 95-30 at 130 (1978)(statement of Joseph M. Hendrie, Chairman).
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William I. Sinclair October 31, 1998
stabilized, disposed of, and controlled in a safe, timely, and environmentally sound manner., Stateefforts to regulate various components of I le.(z) byproduct material, including state attempts toregulate byproduct material components in groundwater, undermines the system of ,rnifor.r,, national'standards that Congress intended to create under UMTRCA. Similarly, by imposing requirements
different from, and in addition to, those imposed by NRC, state regulation oi tte.(Z) |yproduct
material in groundwater threatens to delay the closure of tailings sites and impede their transfer toDOE for long term custody. This is a very important point for both IUSA and the State. Under
IIMTRCA5 the Mill must be transferred to DOE or the State for perpetual care. However, it is likelythat DOE will not take long term care and custody of the Mill site ifihe site is also subject to a Statlpermits.
The conflict created by the State's assertion of authority to regulate lle.(z) byproduct material ingroundwater is evident here, in Utah's effort to require a groundwater dischargl^permit. The NRC
regulates both radioactive and non-radioactive discharges to groundwaterl NRC has defined
byproduct material to include all wastes-both radioactive and n&-radioactive.-produced from themilling process. 57 Fed.Reg.20,525,20,525 (1992). The State and NRC have btth acknowledged
the potential conflicts if both the State and NRC regulate groundwater discharges from the ruCtailings impoundment. For example, the State acknowledges in its letter dated August 2g, 1996 toIUC's predecessor (Attachment 4) as follows:
Upon our earlier review of your proposal for compriance monitoring
to be done under your NRC license, we concluded that the proposed
monitoring program would be adequate for compliance monitoring,
under a groundwater discharge permit. However, in the event that
compliance monitoring revealed a release of contaminants from the
tailings cells, there would be discrepancies between state and NRC
regulatory programs. These include differences in which bodies of
underground water are protected, which parameters are regulated, and
cleanup procedures and standards.
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7 See. e.c..42 U.S. C. g 7901(a).
8 For example, under the recently mmpleted License Terminatior/Site Transfer Protocol between DoE and NRc (Attachment 3), DoEwill not take tifle to a tailings disposal site, and NRC will not terminate the license for a site, if there are any outstanding ..issues,, withrespect to state regulator authorities. Similarly, in situations where there is even a possibility that a state mig'ht seek to imlose additionalremediation requirements on top of those required by NRC, DoE might feel compelled not to accept ti-tle, sin"e to do so would beinconsistent with the statutory directive in AEA Section 83 that such transfers to DoE are to be accomplished at no cost to the governmortThis reluctance on the part of DoE would likely be compounded by the concems raised by the Fedeial Facilities compliance Act, whichrequires that federal facilities comply with all state requirements "respecting the control and abatement of solid waste disposal andmanagement." 42 U.S.C. g 6961(a).
9 UMTRCA required EPA to promulgate environmental standards for radiological and nonradiological hazards associated with byproductmaterial' 42 U's'C. 52022(b). EPA promulgated such standards, which include groundwa-ter protection standards. 40 C.F.R.$ 190'32(a[2)' The NRC (or agreement state) is charged with the responsibility for implJmenting and enforcing the standards. 42 U.S.c.
5 2022(d).
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William J. Sinclair October 31, 1998
A letter dated December 13, 1996 from the NRC to the State (Attachment 5) also acknowledges the
differences between the State groundwater discharge program and the NRC program.
In summary, IJtah's efforts to regulate I le.(2) byproduct material in groundwater threatens to
undermine the system of uniform, national standards established under f-n41'nCa, and to impede
tailings impoundment closure and transfer to the federal government. In additiorq the imposition ofstate groundwater standards would lead to direct conflicts with federal requirements. Consequently,
under the principles of preemption established by the Supreme Court, Utai's assertion of regulatory
authority is preempted.
2. IHE WtrIE MESA MILL DOES NOT HAVE THE POTENTIAL TO DTSCHARGE TOWATERS OF THE STATE AND HENCE DOES NOT FALL WITHIN THEREQUIREMENTS OF THE UTAH WATER QUALITY ACT.
2.1 Statutory Provisions
The statutory authority for the State to promulgate the groundwater discharge regulations is the UtahWater Quality Act, which provides that:
it is unlawful for any person to discharge a pollutant into waters of the state
or to cause pollution which constitutes a menace to public health and
welfare, or is harmfi.rl to wildlife, fish or aquatic life, or impairs domestic,
agricultural, industrial, recreational, or other beneficial uses of water, or to
place or cause to be placed any wastes in a location where there is probable
cause to believe it will cause pollution,
unless authorized under the Act or regulations. Utah Code Ann. Section 19-5-107(l). ,.Waters ofthe State":
a) means all streams, lakes, ponds. . . and all other bodies or accumulations of water, surface
and underground, natural or artificial, public or private, which are contained within, flow
through, or border upon the state or any portion ofthe state; and
b) does not include bodies of water confined to and retained within the limits of private
property, and which do not develop into or constitute a nuisance, a public health iazard,
or a menace to fish or wildlife.
Utah Code Ann. Section 19-5-102(18)
ruSA is not required to obtain a groundwater discharge permit, for the following reasons:
a) The Mill should be permitted by rule. IUSA and its predecessors have conducted
groundwater monitoring at the Mill for a number of years, and there is no evidence that thetailings impoundments are impacting groundwater. The existing groundw ater data
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William J. Sinclair October 31, 1998
demonstrate that the Mill will have, at most, a de minimars potential effect on groundwater
quality, so IUSA should be entitled to a permit by rule. See UAC F.3l7-6-6.2.A.1 and 25.
b) There is no potential for discharge to waters of the State. The State requires a groundwater
discharge permit for facilities which discharge or would probably ,.r.rlt in a discharge of
pollutants that may move directly or indirectly into groundwater. There have been no
discharges to groundwater from the Mill, nor is there probable cause to believe that the
activities at the Mill will result in such a discharge.
2.2 Data Demonstrate No Discharge to Groundwater
Data on groundwater quality and occurrence at the Mill have been collected from up to 23 wells
drilled since 1979.
The Mill's Point of Compliance ('?OC") proposal, which has been accepted by NRC as the basis forthe Mill's ongoing detection monitoring program, was developed based on a reevaluation (the"Hydrogeologic Evaluation") of all of the existing groundwater data reviewed as of the Spring of1995, and incorporatedNRC's comments from a meeting of August II, 1994, and site visii of
September 20, 1994. The proposal package included copies of trvo EPA guidance documents whiclqin addition to NRC guidance, were used to develop the monitoring and statistical approaches
presented in the POC proposal.
The purpose of groundwater monitoring is to provide timely detection of potential releases to theuppermost aquifer. The uppermost usable aquifer beneath the Mill is the EntradaA{avajo sandstone.
The Burro Canyon Formation is approximately 1,200 feet above the aquifer, at depths of 9l to 14lfeet below land surface, and hosts small volumes of poor-quality perched water. The pOC
monitoring wells are completed in the perched groundwater zone of the Burro Canyon Formation.
In terms of detection monitoring, the perched groundwater zone provides the earliest horizon for
detection of tailings cell leakage relative to the Entrada,t{avajo aquifer
As summarizedin the POC proposal and in Section 1.3 of the Hydrogeologic Evaluation, this
uppermost, discontinuous zone of water encountered beneath the tailing disposal areas at the Mill
does not constitute an aquifer, due to poor water quality and minimal to zero yield. Although the
perched zone transmits insufficient water to be an aquifer, this zone is usable foivery early detection
of any potential releases from the tailings disposal cells at the Mill. Indeed, any release detected in
this zone would be identified in an area separated from the EntradaA.{avajo aquifer by approximately
1,200 feet of very low-permeability, bentonitic mudstones and claystones.
Downgradient of the Mill, (i.e., between the Mill and dissecting canyons), the groundwater in theperched zone cannot be used for irrigation or domestic consumption becaur" of th. natural poorquality of the water and low yield rates. Documented pumping rates from monitoring wells
completed in the Burro Canyon Formation are less than 0.5 gallons per minute (gpm); everiat thislow rate, the wells are typically pumped dry in a period of minutes to less than two hours.
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William J. Sinclair October 31, 1998
At the Mill site, the tailings cells are located within the unsaturated Dakota Sandstone, which overlies
the Burro Canyon Formation. If leakage were to occur from the tailings cells, tailings-related
constituents would have to migrate vertically through approximately I l0 feet of unsaturated material
before reaching the perched groundwater zone.
The findings of the Hydrogeologic Evaluation were that the tailings located in the existing disposal
cells are not impacting groundwater at the site. In addition, it did not appear that future ilp""tr togroundwater would be expected as a result of continuing operations. These conclusions weie based
on chemical and hydrologic data which showed that:
a) The chemistry of perched groundwater encountered below the site does not show
concentrations or increasing trends in concentrations of constituents that would indicate
seepage from the existing disposal cells;
b) The usable aquifer at the site is separated from the facility by approximately I,ZOO feet of
unsaturated, low-permeability rock;
c) The usable aquifer is under artesian pressure and, therefore, has an upward pressure
gradient which would inhibit downward migration of constituents into the aquifer; and
d) At the time of the analysis in 1994 the facility had operated for a period of 15 years and had
caused no impacts to groundwater during this period.
Continued POC monitoring at the site is performed to veri$r that past, current and future operationswill not impact groundwater.
2.3 No probable cause to believe the White Mesa Mill will discharge pollutants togroundwater
During the last two months, a team of licensed professional engineers from Knight Pi6sold performed
an independent review of cell construction for cells T,2 and 3, as well as an updated analysis ofperformance of those cells. Cell 4 was not reviewed in detail by Knight Pi6sold, b""aur" it is not inuse. A thorough evaluation of that cell will be completed prior to its being put into use.
With respect to the construction of those cells currently in use, Knight pi6sold found that.
cells l, 2 and 3 were designed and constructed with emphasis
on containment of liquid. The construction of each component
of the cell structures and lining systems was welr documented,
with a level of detail in QC of the liner that was exceptional at
the time the cells were constructed. There are no defects
evident in the records of design or constructioq as evidenced by
both [Knight Pi6sold's] review and the inspections made by the
NRC at the time of construction. Therefore, there is no support
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William J. Sinclair October 31, 1998
for any claim that design or construction of the cells was in any
way substandard.
Knight Pi6sold also reviewed the performance of the Leak Detection System ("LDS"), and concluded
that there are "no indications that tailings cells are discharging tailings liquid to either the LDS or the
underlying formation".
Following the review of cell construction, Knight Pi6sold conducted a detailed review of the
performance of the cells, including modeling of cell3. The cell3 modeling results were extrapolated
to cells I and2. The following is a summary of Knight pi6sold's conclusions:
a) Since the cells were constructed in the early 80's there has been no indications that tailing
cells were or are discharging tailings liquid to either the LDS or the underlying formation;
b) Water observed in the Cell2 LDS sump has been thoroughly analyzedand determined not to
be a component of the tailings water;
c) Recent modifications to the operating permit are based on sound engineering principles and
are more likely to detect leakage through a damaged liner than consideration of chemical
analysis alone;
Modeling of potentially occurring volumetric flux through the Cell 3 PVC liner during the
period between January 1983 and October 1998 may have reached an average rate of 50
ft3 td 1O .ZS gpm) This rate is considere d "de minimrs" and inherent for pVC liners by the EpA.
Based on our modeling, the total volumetric flux since beginning of cell use would represent
only4 percent of the specific retention (i.e., permanent pore storage) inthe underlying
sandstone. Hence, 96 percent of the permanent pore storage would be available for future
moisture, if any, of which may migrate below the cell's liner.
Cessation of the discharge of any liquids upon termination of cell operating life and
reclamation of tailings will result in the gradually diminishing rate of volumetric flux during
the post-operation period.
D If the status quo were to continue, the volumetric flux through the Cell 3 lineq based on our
modeling might require at least 400 years after closure to fill the remaining sandstone pores
such that unsaturated flow downward toward the perched water zone could commence.
g) Unsaturated flow, if it were to exist, based on our modeling, would require an additional 900
years to travel the 110 vertical feet to the perched water-bearing zone after sandstone
moisture is raised to a degree facilitating downward movement of moisture. In other words,
a total of 1,300 years would be required before any potential volumetric flux from a reclaimed
cell could reach the perched water zone below the site.
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d)
e)
William J. Sinclair October 31, 1998
h) Dissolved metals in tailings water are unlikely to be transported through the 110-ft vadose
zone due to significant attenuation from a number of potential processes documented to exist
when moisture moves at a very slow rate through a very low permeability media. These
processes include a combination of microfiltration tkough the PVC liner, adsorption to soil
particles, cation exchange, horizontal and vertical dispersion due to heterogeneities of rock,
and oxidation-reduction processes.
D Since Cells Nos. I and 2 are smaller and the hydraulic heads of liquids present in those
cells are also lower, estimated flux rates from Cells t and 2 will be correspondingly lower
than those which may occur for Cell 3.
2.4 Conclusion
As is evidenced by the volumes of groundwater data provided to the State of Utah Division of
Radiation Control ("DRC") by IUSA and its predecessor licensees at the Mill, and reinforced by a
review by independent registered professional engineers, there is absolutely no evidence that the Mill
has ever caused a discharge of pollutants to groundwater, nor that there is probable cause to believe
that the Mill will discharge pollutants to the waters of the State. The groundwater conditions at theMill are monitored closely under NRC regulations.
3. ACCESS TO IHE WHITE MESA MILL TO CONDUCT GROT]NDWATER SAMPLING
The DRC has asked that it have access to the Mill to conduct groundwater sampling. In a letter to
Dianne Nelson dated October 30, 1998, ruSA indicated that it encourages discussion between DRC
and IUSA on a broad range of matters, including this request. IUSA looks fonvard to discussing this
issue with DRC in due course, as part of its broader discussions with DRC. However, we would like
to take this opportunity to briefly state a few points on this particular request.
As the DRC is aware, all groundwater data collected for the Mill monitoring program are publicly
available; and, to facilitate DRC's access to these data, IUSA and its predecessor licensees have
routinely provided copies of reports containing groundwater datato the Division. In addition, within
the past few years, the Mill licensee provided the State with the opportunity to sample IUSA s deep
wells, which are completed in the Entrada./Navajo sandstone, the regional aquifer, at the same timl
that the State sampled the wells in the same aquifer, located at the White Mesa Ute community. It
is our understanding that the results of this particular sampling event indicated that the operation of
the Mill has had no effect on water quality in the regional aquifer.
Although ruSA is pleased to provide the State with access to our groundwater monitoring data,
which are collected under the terms of a detailed sampling program, and include sampling pro".dr..r,
quality controUquality assurance, and data quality objectives, we would need to know more about
the State's proposed sampling program before we comment on the appropriateness of the proposed
sampling. As explained in the State's brief request, the objectives of the proposed additional sampling
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are not clear. Although the State indicates that the purposes of this additional groundwater sampling
would be "to ensure that alternate feed materials have not resulted in an environmental impact to ttre
groundwater and to gather data to be used in formulation of a groundwater discharge permit for the
White Mesa facility'', ruSA believes that our existing database amply demonstrat.. tnut operations
at the Mill, including alternate feed processing, have resulted in no impact to groundwater. Indeed,the construction of our tailings cells, coupled with site hydrogeologic conditions, and othei
considerations consistent with 10 CFR Part 40, Appendix A, combine to support the position that our
operations are extremely protective of groundwater, and that the site poses virtually no risk togroundwater resources in the area. In additiorq the existing monitoring program has been determined
by the NRC to be adequate to detect any potential releases to groundwater, should they occur.
In view of these considerations, IUSA would ask that the State please provide a more detailed
description of the proposed data quality objectives, sampling and anilysis plan, and quality
controUquality assurance measures associated with the proposed sampling program, to enable us tofully evaluate your request.
4. SUMMARY
In summary, ruSA would be pleased to meet with UDEQ to discuss the remaining issues raised inyour letter of August 4, as well as a possible means of providing UDEQ with any data that may
further confirm that the cells at the Mill do not discharge to groundwater. However, for the reasons
cited above we feel it is not appropriate for IUSA to apply for a Utah groundwater discharge permit.
und
Vice President and General Counsel
DCF/tay
Enclosures
cc (dencls.):Dianne Nielson, Executive Director, UDEe
Don Ostler, Director, UDEQ Division of Water euality
foseph Holonich, Chiel NRC Uranium Recovery Branch
Jim Park, NRC Uranium Recovery Branch
Richard Bangart, NRC Ofiice of State programs
Charles Hackney, NRC Region IV
Fred Nelson, Utah Attorney Generals Office
David Bird, Parsons, Behle, and Latimer
Tony Thompson, Shaw, Pittman, Potts, and Trowbridge
Yours truly,
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Attachment I
U.S. DTSTRICT COURT
Waste Action Project
V.
Dawn Mining Company
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UNITED
EASTERN
WASTE ACTTON PROJECT,
Plaintiff,
v.
DAWN MINTNG COMPANY, NEWI4ONT
GOLD COMPANY, and NEI.JI,IONT
MINING COMPANY,
STATES DISTRTCT COURT
DISTRICT OF WASHINGTON
FILED IN THE
U.S, DISTRICT COURI
EASTERN DISTRICT OF IVASHINGTON
stP - 3 t996
DEPUTY
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No. CS-96-0L06-AAM
ORDER GRAIITINC
}TOTION FOR
sI'UI.TARY iIUDGI{EIII
Defendants.
On August 9, 1996, this Court heard oral argument on
defendantsr Motion for Summary Judgrment and Award of Attorney Fees.
Jeffrey W. Leppo and Karen M. McGaffey of Bogle & Gates, Seattle,
Washington, appeared on behalf defendants. Richard A. Smith and
Knoll D. Lowney of Srnith & Lowney, Seattle, Washington, represented
plaintiff.
Defendants move this Court for an order granting their motion
for sunmary .judgment and disnissing plaintiffts complaint.
Defendant claims that the Clean Water Act, under which plaintiff
filed this action, is inapplicable to the instant case because the
trpollutanttr at issue, uraniun nill tailings, is beyond the scope of
the Clean Water Act.
ORDER GRAIITING I,IOTION
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I. I'}TDISPUTED FACTA1
Dawn Mining Company (Dawn) began milling uranium at the Ford
mill site at issue in L957. Until 1965, Dawn operated the site
pursuant to a Source Material License granted by the Atomic Energy
Commission. fn L969, Dawn resumed uranium processing under a
Radioactive Materials License issued by the State of Washington.
Dawn ceased milling operations in L982.
Milling uranium concentrates the ore to produce material with
substantially higher concentrates of uranium than that contained by
the original unprocessed ore.This process also generates
significant amounts of byproduct materials, known as tailings,
which contain residual levels of uranium. Dawn has disposed of
tailings from the nilling process at tailings disposal areas (TDAs)
at the nillsite. Four TDAs are currently at the site. From 1957
to 1965, Dawn disposed tailings at TDAs l- and 2, and from 1969 to
1981", Dawn disposed of tailings at TDA-3. TDAs l--3 are above-
ground unlined disposal areas. As a result, contamination from the
nilI tailings disposed at these TDAs have nigrated into the
groundwater and nearby Chamokane Creek.
In 1981, Dawn constructed a lined below-ground impoundment
area, TDA-4, with the capacity to store up to forty-four million
lThe facts are taken from Defendantst Statement of Facts in
Support of Summary Judgment. According to LR 55(c), trthe Court may
assume that the facts as claimed by the moving party are adnittedto exist without controversy except as and to the extent that suchfacts are controverted by the record set forth by [the opposingparty I s statement of factsl . rr Plaintiffs did not subnit astatement of facts; therefore, the Court may accept the factsclaimed by defendants as true.
ORDER GREIITTNG }TOTION
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cubic feet of mill tailings. TDA-4 was the subject of an
Environmental fmpact Statement (EIS) prepared by the Washington
Departrnent of Social and Health Services (DSHS). By L982, when
Dawn ceased nillings operations, approximately four million cubic
feet of tailings had been stored at TDA-4. According to Dawn,
tailings disposed of at TDA-4 have not leaked or otherwise been
released.
Since L982, Dawn has worked with federal and state agencies to
develop a Closure Plan for the millsite. The Closure Plan includes
a comprehensive remedial program that addresses the surface and
groundwater contamination resulting frorn leakage at TDAs 1-3 and
reguires Dawn to remove contaminated groundwater. Dawn has
constructed a system of lined evaporation ponds on top of TDAs 1-3.
The ponds are intended to serrre as partial caps and reduce further
infiltration of water into the tailings material underneath. Dawn
will pump contaminated groundwater from the aquifer into the lined
evaporation ponds. When punping groundwater is no longer necessary
and the evaporation is complete, Dawn intends to close the ponds
and construct a reclamation cover over the TDAs.
Dawnts closure plan has undergone extensive regulatory review.
The Department.of Health established a Technical Advisory Conmittee
to analyze the closure proposal, which included representatives
from state and federal agencies, the Spokane Indian Tribe and local
citizens. The Department of Health also held numerous public
hearings regarding the Plan, and prepared a lengthy EIS and
Suppleruental EIS (sEIS) in connection with its review of the
ORDER GRAIITING I,TOTIOII
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Closure P1an. Copies of the EIS and SEIS were made available to
the public, and the Department of Health held public hearings and
accepted conments from the public. fn February 1995, the
Department of Health approved the Closure PIan and issued Dawn an
amended radioactive material license authorizing closure of the
nillsite.
In L994, Greg Wingard and Richard Snith forned Waste Action
Project (t{AP) , the plaintiff in this action. Mr. Wingard is the
president and executive director of WAP, and Mr. Smith serves as
the secretary and treasurer. Mr. Snith also serves as counsel for
WAP, as in the instant litigation.
WAP filed this C1ean Water Act suit on February 20, L996. WAP
Iater amended the complaint and joined Newmont Mining Company and
Newmont GoId Company as defendants. WAPrs anended complaint
alleges that Dawn is discharging pollutants into Chamokane Creek
without a National Po1lutant Discharge Elinination System permit
(NPDES pennit) in violation of the Ctean Water Act (CWA). WAP
claims that nastes containing uranium, silica, heavy metals,
sulfates, phosphates, chlorides, and other chemicals leaked from
TDAs 1-4 into the groundwater and eventually to Chanokane Creek.
Thus, WAP alleges, the discharge of these wastes into Chamokane
Creek constitutes a violation of the CWA because Dawn does not
possess a National Pollutant Discharge Elimination Systern (NPDES)
perrnit authorizing such discharges.
Defendants now move for sunmary judgrment disnissal of WAPrs
conplaint. They naintain that the uranium nill tailings and
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associated wastes identified by WAP are trbyproduct materialtr as
defined in section LL(e) (2) of the Atonic Energy Act (AEA) . 42
U.S.C. S 2OL4(e) (2). Defendants further state that the legislative
history of the CWA and AEA clearly shows that Congress did not
intend for uranium mill tailings to be regulated by the EpA
pursuant to the CWA. WAP counters that uranj-um nill tailings are
subject to regulatory control under the EPA and offers its own
interpretation of the legislative history in support. Finally,
defendants seek attorneyrs fees against WAP, claiming that WAP|s
claim is frivolous.
II. 8I'I{I.IARY'IUDGIIENI STANDARD
The purpose of sunmary judgrment is to avoid unnecessary trials
when there is no dispute as to the facts before the court. Zweiq
v. Hearst Corp., 52L F.2d LL29 (9th Cir.), cert. denied, 423 U.S.
LO25 (1975). Under Federal Rule of Civil Procedure 56,
a party is entitled to summary judgment where the documentary
evidence produced by the parties permits only one conclusion.
Anderson v. Liberty Lobby, Inc., 477 V.S. 242, 105 (1985) i Semegen
v. Weidner, '78O F.2d 727 (9th Cir. 1985). Sunmary judgrment is
precluded if there exists a genuine dispute over a fact that night
affect the outcome of the suit under the governing law. Anderson,
477 V.S. at 248.
The moving party has the initial burden to prove that no
genuine issue of material fact exists. Matsushita EIec. Industrial
Co. v. Zenith Radio Corp., 475 U.S. 574,585 (1986). Once the
moving party has carried its burden under Rule 56, rfits opponent
ORDER GRAIEING UOTION
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must do more than simply show that there is some netaphysical doubt
as to the material facts. rr f d.The party opposing summary
judgi'nent must go beyond the pleadings to designate specific facts
establishing a genuine issue for trial. Celotex Corp. v. Catrett,
477 V.S. 3L7, 325 (1985). Evidence based on inadmissible hearsay
and speculation cannot defeat a motion for summary judg:ment. Rule
56(e); Witherow v. Poff, 52 F.3d 264, 266 (9th Cir. L995).
fn ruling on a motion for sunmary judgrrnent, all inferences
drawn from the underlying facts must be viewed in the light most
favorable to the nonmovant. Matsushita, 475 U.S. at 587.
Nonetheless, sunmary judgrment is required against a party who fails
to make a showing sufficient to establish an essential element of
a claim, even if there are genuine factual disputes regarding other
elements of the claim. Celotex, 477 at 322-23.
IIT. DISCUSSION AITD INALYSIS
A. Apnlicable Statutes and Requlations
1. The Atornic Energv Act
The Atonic Energy Act (AEA) comprehensively regulates the
production, possession and use of radioactive materials categorized
as rrsource materialsrtr rrspecial nuclear materialsrrr and rrbyproduct
materials.rr 42 U.S.C. S 2011, €t. seq. At the tine the AEA was
enacted, uranium nill tailings were not included in the definition
of source, special nuclear, or byproduct materials. In L978,
Congress passed the Uranium I*{ilI Tailings Radiation Control Act
(t l,tTRCA) which amended the AEA and included uranium mill tailings,/
waste in the definition of [byproducts material.rr 42 U.S.C.
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2oL4(e) (2).2 Additionally, UltTRcA provided the EPA with authority
to promulgate
standards of general application for the protection ofthe public health, safety, and the environment fromradiological and nonradiological hazards associated withthe processing and with the possession, transfer, anddisposal of byproduct material, dS defined in section 113.(2) of this Act 142 tJ.s.C. 2OL4 (e) l, at sites at whichores are processed prinarily for their source materialcontent or which are used for the disposal of such
byproduct material.
42 U.S.c. S 2022 (b) IAEA S 11(e) (2) ]. However, the Nuclear
Regulatory Commission (NRC) possesses the authority to implement
and enforce those standards. fd. S 2022(d) (rrlmplementation and
enforcement of the standards promulgated pursuant to subsection b.
of this section sha1l be the responsibility of the commission in
the conduct of its licensing activities under this Act. tt) .
2. The Clean Water Act
The Clean Water Act was pronulgated in
L25L, €t. seq. Its purpose is to abate, and
discharge of pollutants into surface waters.
illega1 to discharge ttpollutantstt into water,
I972. 33 U.S.C. SS
eventually cease, the
Under the CWA, it is
except as authorized
zsection 2014(e) IAEA S 11(e) (z) ] reads in full:
The tern ttbyproduct materialtt means (1) any radioactivematerial (except special nuclear uaterial) yielded in or
made radioactive by exposure to the radiation incident tothe process of producing utilizing special nuclearmaterial, and (21 the tailings or wastes produced by theextraction or concentration of uranium or thorium fromany ore processed prinarily for its source materialcontent.
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under various provisions of the Act setting effluent standards.3
rrPollutantrr is defined as
dredged spoil, solid waste, incinerator residue, sewage,garbage, se$/age sludge, munitions, chemical waste,biological naterials, radioactj.ve materials, heat,wrecked or discarded equipment, rock, sand, cellar dirtand industrial, municipal, and agricultural wastedischarged into water.
33 U.S.C. S r.352(5).
Although pollutant includes radioactive waste, the EpA
pronulgated regulations, excluding 11(e) (2) mat,erials, source,
byproduct, and special nuclear materials, from the definition of
pollutant. See 40 C.F.R. S L22.2i 38 Fed. Reg. L3S2A, 13530 (l{ay
22, L973r. Further, the regulation provides that ttlr]adioactive
material covered by the Atomic Energy Act are those encompassed in
its definition of source, byproduct, or special nuclear materials.rl
40 C.F.R. S L22.2.
C. Analysis
Defendants argue that the statutes, legislative history and a
Supreme Court ruling show that its actions at the nill site are not
subject to regulation under the CWA, because: 1) Dawn is disposing
of uraniun nill tailings; 2) uranium niII tailings are defined as
I'byproducts'r of radioactive materials in section 11(e) (2) of the
AEA, and 3) EPA regulations exclude rrbyproduct materialstr as
defined in section 11(e) (2) fron the definition of pollutant under
342 v.s.c. S 1311(a) provides:
Except as in compliance with section305, 3O7, 3L8, 4O2, 404 of this Actof any pollutant by any person shall
ORDER GRANTING UOIION
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and sections 3O2,the dischargebe unlawful.
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the CWA. Plaintiff counters that the CWA always contemplated EPA
regulation of uranium mil1 tailings and, thus, uranium nilI
tailings are considered a ttpollutant'r under the CWA.
In light of the plain language of the statutes and
regulations, the Court agrees that uranium milI tailings are not
within the scope of EPA regulatory authority as provided under the
cWA. Nevertheless, plaintiff relies upon a rather convoluted view
of legislative history to argue that the AEA, as amended by UMTRCA,
rrpreservesrr EPA regulatory authority over uranium nill tailings
under the CWA. Plaintiff argues that the EPA attained regulatory
control over uranium rnill tailings pursuant to enactment of the
cwA, because such tailings were not explicitly included in the AEA
at the time the CWA was enacted. Although the AEA was subseguently
amended to include uranium mill tailings in the definition of
I'byproduct material, rr plaintif f maintains that the amendments of
the AEA expressly reserved EPA authority over uranium mil1
tailings.
Plaintiff directs the Court's attention to section 206(e) of
ITMTRCA, which states:
Nothing in this Act applicable to byproduct materialr ds
defined in section Ll e. (21 of this Act, shall affectthe authority of the Adninistrator [of the EPA] under the
Clean Air' Act of L97O or the [C1ean Water Act] . rl
42 U.s.c. 2022(el Plaintiff claims that the only reasonable
interpretation of this section is that congress intended to
preserve EPAts existing authority to regulate discharges frorn ni11
tailings into surface waters under the Clean Water Act. Plaintiff
offers legislative history in support of this interpretation.
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According to legislative history, section 206 of WTRCA 142 V.s.C.
5 2o22)z
requires the Environmental Protection Agency to setgeneral standards and criteria for the protection of the
environment outside the boundaries of the nill tailingsdisposal sites. . Authorities of the EPA under otherlaws would not be abridged by the new reqluirements.
H. Rep. No. 1480, 95th Cong., reprinted in l-978 U.S.S.C.A.N. 7444.
Additionally, plaintiff points to Part If of the same report
stating that the bill does not affect the Clean Air Act or the
Clean Water Act rrspecifically, nor is it intended to do so by
irnplication or other:sise.rr fd. at 7473. The Court does not find
these provisions supportive of plaintiffrs position.
First, section 2O6(e) of UMTRCA 142 U.S.C. S 2022(e) I relates
to the authority given to the EPA to develop standards for the
disposal of uranium ni11 tailings which are implemented and
enforced by the NRC. See 42 U.S.C. 2O22(b). This section merely
states that the standards promulgated by EPA under this section
will not affect EPArs regulatory authority under other standards.
fn other words, standards that the EPA develops for uraniun nill
tailings or other source or byproduct material will not affect EPA
decisions in other areas or bind them to certain standards for
other types of wastes. Additionally, AEA section 205(e) and the
Iegislative history plaintiff offers could sinply be read as an
indication that EPA promulgation of standards inplernented in the
regulation of materials under the AEA and TMTRCA is courpletely
separate from EPA regulatory authority under other statutes.
Furthermore, plaintiff does not include portions of the same
ORDER GRANEING I,iOrION
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House Report that refute its interpretatj.on.
states:
First, the report
The EPA standards and criteria should not interject anydetailed or site-specific requirements management,technology, or engineering methods on licensees or theDepartment of Energy. Nor should EPA incorporate anyrequirements for permits or licenses for activitiesconcerning uranium miII tailings which nould duplicate
NRC regulatory authority over the tailings sites.
H. Rep. No. l-480, 95th Cong., reprinted in L978 U.S.S.C.A.N. 7439.
The report continues:
Title II (of UIrITRCA) reinforces the authority of theNuclear Regulatory Commission to regulate the uraniummill process and niII tailings disposal. .
Section zOL amends the definition of rrbyproduct
material'r in the Atomic Energy Act to include uraniumnilI tailings. Previously. tailinqs have been controlledthrouoh the licensing process for uranium mills. This
amendment would subiect tailings to specific licensingauthoritv
fd. at 7442. These portions of the legislative clearly rebut any
contention that the EPA has always been and still is authorized to
under the CWA.a Moreover, the EPA
that |tbyproduct material, rt which
includes uranium mil1 tailings, is not a trpollutanttr and is
therefore beyond the parameters of the CWA. 40 C.F.R. g L22.2.5
aDefendants provided additional provisions of legislativehistory supporting their argr.rment that Congress never intended EPAto regulate radioactive byproducts, including uranium milltailings. See Declaration of Karen M. McGaffey, Exhibit C.
5when questioned about this regulation during oral argrument,plaintiff rs counsel responded that the regulation nas rrirrelevanttl
because it was promulgated prior to the enactment of IJMTRCA and theaddition of uraniurn urill tailings as byproducts. However, the EPAhas chosen not to change this regulation since the AEA rras amended.
ORDER GRANTING UOTION
FOR sT'UUARY iIUDGUENT - ].].
regulate uranium nill tailings
has consistently determined
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Final1y, in L976, a unanimous Supreme Court held that I'the
rpollutantsr subject to regulation under the [CWA] do not include
source, byproduct, and special nuclear uraterial, and that the EPA
Adninistrator has acted in accordance with his statutory mandate in
declining to regulate the discharge of these materials.rr Train v.
Colorado Public fnterest Research Group, 426 U.S. 1, 25 (L976).
Although the Supreme Courtrs decision predates the AEA amendments
including uranium miII tailings as byproduct uaterial, the EPA
continues to refer to Train in its regulation that excludes
blproduct materials from the definition of pollutant. See 40
c. F.R. E L22.2.
fn sum, the plain language of the Clean Water Act and the
Atomic Energy Act denonstrate that uranium niIl tailingsr dS
byproducts of radioactive material, are not regrulated under the
Clean Water Act through the EPA. See 42 U.S.C. S 2014(e)(2); 40
C.f.R. L22.2. Instead, such materials are regulated solely by the
NRc pursuant to the AEA, as amended by WTRCA. The EPA does play
a role in regulation uranium niII tailings: it develops standards
for storage and disposal of tailings. See 42 U.S.C. S 2022(b).
However, the NRC is explicitly granted the authority to impleuent
those standards. fd. 5 2O22(d),
Plaintif f relies on one section of t I'{TRCA and a strained
interpretation of legislative history to argue that the AEA
reserves EPA authority to regulate uraniun nill tailings under the
CWA. See 42 U.S.C. S 2022(e). fn light of the statutory scheme
excluding 11(e) (2) naterials from the CWA, plaintiffst argrument is
ORDER GR.ANTING UOTION
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unconvincing.6
1. Other Wastes
Alternatively, plaintiff
inappropriate because, even if
states that sunmary judgrnent is
the Court determines uranium mill
tailings and l-l(e) (2) materials are not subject to the CWA,
genuine issue of naterial fact exists as to whether Dalrn
discharging non-ll(e) (2) materials at the rnill site. In response
to that assertion, defendants maintain that all discharges are
blproducts of the tailings and, therefore, the cI,{A is still
tvap offers other evidence, including the fact that NPDESpermits have been reguired at other uranium millsites. However,the materials do not indicate what type of waste is beingdischarged at those sites.Plaintiff could not identify aparticular uranium niII that reguires a NPDES for discharges ofniII tailings. Thus, the fact that some milling operations possess
NPDES perrnits in connection with disposal of waste fron uraniumnills is not relevant to the discharge of only 11(e) (2) uraniumniII tailings.
Further, plaintiff claims to possess letter from the EPAstating that the discharges from Dawnrs site are subject to the CWA
and reguire a NPDES pennit. That statement is siurply untrue. TheIetter specifically refers to Midnite Mine and states that EPA hasauthority to regulate discharges under certain conditions.Finally, plaintiff refers to materials that indicate a NPDES pemit
would be required for stom or treatment water discharg€s, if Dawndecided to treat the tailings with other materials and then
discharged the wastes directly into Chamokane. These materials areirrelevant. The wastes at issue are untreated uranium nilItaitings and they are not being discharged into Chamokane Creek.
Additionally, plaintiff argues that nonradioactive materialsare being discharged by defendant and those materials are subjectto the CWA. Plaintiffs offer no support for this argrument otherthan excerpts from the legislative history above that EPA standardspronulgated under UI,ITRCA apply to rrboth radiological andnonradiological hazards. tl However, these standards are those
discussed above and lend no support whatsoever that uranium niIItailingsr or any portion thereof, are subject to the cWA or the
reguirement for NPDES permits. Finally, plaintiff ts discussion of
RCRA is entirely nisplaced and has no bearing on this issue.
ORDER GRAIITING I,TOTION
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inapplicable.
Plaintiff offers rrprooftr
a trash dump on the site where
dunp was covered with tailings
large amounts of cement kiln
that Das/n has admitted: 1) locating
TDA-3 was later placed and that the
disposed of at TDA-3; 2) discharging
dust into the TDAs; and 3) adding
pesticides and fertilizers, of unknown type and guantity, to the
TDAS.
If plaintiff offered factual support for this argument, the
Court night agree that summary judgrment is not appropriate.
However, plaintiffrs evidence does not establish a genuine issue of
naterial fact. First, although defendants admitted at oral
argument that a trash dunp previously existed where TDA-3 is now
located, plaintiff offers no evidence whatsoever that pollutants
rnigrated from the dump into the groundwater. Indeed, plaintiffs
offer no evidence that the trash duurp even contained [pollutantstl
as defined by the CWA.
Next, defendants maintain that only uranium tailings are at
issue with respect to TDAs 1-3. Defendants adnit that Dawn has
added cement kiln dust to the tailings in TDA-4 as a neutralizLng
agent, but naintain that TDA-4 is not leaking. Declaration of
Thomas Sheperd, f 7. Plaintiff proffers no credible evidence in
response. Indeed, plaintiff presents no evidence that TDA-4 is
leaking and does not show that any materials other than milI
tailings have been disposed in TDAs 1-3. Additionally, Gary
Robertson, head of the l{aste Management Section of the Division of
the Radiation Protection of the Washington Department of Health,
ORDER GR}IIIIING UOTTOII
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declared that only 11(e) (2) materials have been disposed of at TDAs
l--4. Declaration of Gary Robertson, I 3. Further, Mr. Robertson
states that the Department of Health has commonly referred to
naterials at TDAs L-4 as 'r1L(e) (2)" materials and considers the
waste subject to regulatory control under the AEA. Id.
Furthermore, the evidence plaintiff offers to show that
fertilizers and other materials have been added to the TDAs appear
without foundation and highly unreliable. See Declaration of
Richard A. Smith, Exhibits O-R.fn any event, the documents
suggest that Dawn sprayed fertilizer on weeds surrounding the ponds
rather than in the TDAs.
FinalIy, plaintiff offers nothing more than conclusori
allegations that TDA-4 is leaking.A nonmoving party cannot
manufacture a genuine issue of fact merely by naking assertions in
its legal memorandum. S.A. Empreza de Viacao Aerea Rio Grandens v.
Walter Kidde & Co. , 690 F.2d 1235 , L238 (9th Cir. Lg82). No
evidence even remotely suggests that TDA-4 is leaking.
fn light of the evidence defendants present and the lack of
evidence that I{AP offers, summary judgrment in favor of defendants
is appropriate. The clear langruage of the statutes indicate that
uranium nill tailings are outside the parameters of the Clean Water
Act, and plaintiff has, thus far, offered no credible evidence that
non-Ll(e) (Z) materials are or have been discharged from the TDAs.
D. Attornevrs Fees
rn addition to moving for summary judgrment, defendants request
attorney's fees. See 33 U.S.C. S 1355(d). Although plaintiffts
ORDER GRAIIITING UOTTON
FOR SI,UIIT.ARY iIUDGI{ENT - 15
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claim is not one that is cognizable under the
court finds attorneyts fees inappropriate.
interpretations of Iaw, although incorrect, do
of attorneyrs fees.
Clean Water Act, the
Novel or creative
not mandate an award
Defendants maintain that plaintiff is rtharassingrr then and
brought a frivolous lawsuit in order to delay the Closure Plan of
the nillsite. Plaintiff is obviously of the opinion that the
Closure Plan violates the law and is availing itself of possible
lega1 solutions. The Court, although mindful of defendantst
argument to the contrary, does not find that plaintj.ff brought this
action for an improper purpose. FinaIIy, caselaw regarding this
precise issue is virtually non-existenti thus, differing
interpretations of the statutory language are not atypical.
Accordingly, the Court is not inclined to award defendants
attorneyrs fees.
Conclusion
The plain language of the CWA and EPA regulations states the
materials regulated by the AEA, including trbyproductrt materials,
are not within the paraneters of the C!{A. The AEA defines uranium
nill tailings as a rrbyproducttr of radioactive rnaterial. Thus,
Dawnrs disposal of such taitings is not subject to the regulatory
standards or reguirements of the Clean Water Act. - Fina1ly,
plaintiff offers nothing but conclusory allegations that materials
other than uranj.um nil1 tailings have ever leaked into the
groundwater. Accordingly,
ORDER GRAIITING UOTION
FOR 8t lll(ARy iruDcltElm - L5
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If Ig EEREBY ORDERED that defendantst Motion for Summary
Judgment is GRAIIEED. However, each party shall bear its own
attorneyrs fees.
Ir rg FURTEER ORDERED that plaintiffrs complaint is Dr8UI88ED
rITE PREi'UDICE.
IT I8 FURTEER ORDERBD that defendants shall subrnit a bill of
costs within ten days of receipt of this order, for hearing
pursuant to LR 54. Plaintiff may file objections within five days
of senrice of the bill. The Court will determine costs without
oral argument after receipt of the objections or the deadline for
same.
If I8 So ORDERED. The Clerk is directed to enter this Order
and fortrard copies to counsel. The Clerk is further directed to
enter an Order of Judqment and fomard copies to counsel.
DAEED this 3,1 'day.of August, lrp".I I 1 ln I i':\ .1 r , //,-' , t"ltL(,(,1* ( ,, / llt'^'. Dn""- L'1r'
AI,AN A. McDONALDUnited States District Judge
ORDER GRAIIIING UOAION
FOR 8U}II,TARY .,UDGITENT - 17
o:r1;#"?*&",":.ii 1.-) r.
Attachment2
U.S. DISTRICT COURT
OF APPEALS
(Ninth Circuit)
Waste Action Project
v.
Dawn Mining Company
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Attachment 4
August 28 r 1996
LETTERFROM
UDEQ
to
ENERGYFUELS
NUCLEAR, INC.
f r H\L|L l*1q, ' ZJ or(-e Pnr> rw'a-R-
'( waryY7'xtu-
DEPARTMENT OF E}WIRONMENTAL QU
DTVISION OF WATER QUALITY
2tt Nor6 14@ Wcrr
P.O. Bor l,l4t70
Srlr Lelc City. Ul.h tlll4-4t70
(t0l) 53t51{5 Voicc
@)l) 53t{Ol5 Fu(tol) 536441a T.D.D.
o
ALITY
Mi.ir.l O. Lrrvi!Gqoc
Diruc R. !{iclrm. PlrD.grGrin DirGt
Do A. O*lcr. P.E.Diut
FiEL:EiVED
sEP 0 3 1996
i:ttr:nu: r rL!ELSAugust 28, 1996
Certified Mail
(rcnrn rcceipt rcqucstcd)
Ms. Michelle Rehmann
Environmenal Manager
Encrgy Fuels Nuclcar, Inc.
Thrcc Park Central Suirc 900
l5l5 Arapahoc St
Denv6, CO t0202
Dear Ms. Rchrnarin:
Subject Call for Ground Watcr Discharge Pennit Apptication for Whirc Mesa MiIl
As you know, the Whia Mesa MiII is considered under the Uah Ground Watcr Protcction
Regulations !o be an "existing facility", and subject to thc rcquirqncnt to apply for a ground
watcr discharge perrnit at the discrction of thc Executive Socretary. Although thc sirc is currentty
rcgulatcd by the U.S. Nuclear Rcgulatory Commission (NRC), thcre arc scveral aspocr of NRC's
rcgulaory Program where mattcrs of conccrn to thc surtc arE not addresscd. Earlier, wc had
hopcd that NRC would addrpss tlrcsc stac oonccms in ttrcir regulatory progra4 and thereforc,
we had tcryoradly staycd tttc pcrnrit application rcquircmcnt Aftcr discussions bctween NRC
and thc Uah Division of Radiation Control ovcr thc Atlss milt sir ncar Moab, NRC has
dctcrrnincd thcy do not havc the lcgal auttrority o enforcc stac raquircrrstt& Accordingly, we
are now requiring that you submit a ground watcr dischargc pernrit application for the Whirc
Mesa MiU within six rnonths of receipt of this lettcr.
Upon our earlier rcriew of your proposal for compliance monioring o be donc under yoru NRC
license, wc concludcd that the proposcd monitoring Fogram would be adcquatc for conpliancc
monioring, undcr a ground watcr dischargc pcrmit Howeyer, in thc svent that compliance
moniOring rerrealed a releasc of contaminants from thc tailings cclls, there would be
discrepancies bctween starc and NRC reguluory progams. Thesc include diftrrsnces in which
bodics of rurderground watcr are protcctcd, which pammctctrs are regulatcd, ortd cleanup
procedures and standards. Compliance with the statc program can only be insured through a statc
ground watcr discharge permit
Kcirh W. WeldrCtrmu
Lynn F. Peu
Vrcc Chrmu
R. Rcr Ausbm. P.E.
Drvid S. Bowlcr. PhD.. P.E.
Nu Bunlcr
Lcord Rryurcr
Dirac R" Nicbm. Ph.D.Ic C. Nidro
KC.9res. P.E.
I. Aaa Wodrrlcr
tctoy H. Wullrtcin. Ph.D.
Do A. Orthr. P.E.Erarm$rccy
Ms. Michellc Rehmann
August 28, 1996
Page 2
We would like to meet with you, or othsrurise providc guidance, on information needed for theperrnit application or other aspccs of Utah's ground watcr regulatory prognm. tf you necdadditional tirnc o prepare the permit ap,plication, that rcqucst could atso-beionsiderei. please
conurct Mark Novak of this office if you havc any questions.
Sincerely,
Uah Watcr Quality Board
Don A. Ostler, P.E.
Execrrtivc Sccrctary
DAO:MN:mtn :
Mml:&{WlllrlE^nI.
^e
CI, ilk
Southcast Utah Hcaldr Depr
David Ariotr" District Engineer
Diannc R Nielson
Bill Sinclair, DRC
Jose,ph Holonich, NRC
Attorney General
.,:i'q@, t"
rr? " 'i.?.r...'
"1:ir':
Lttachment 5
December 13,l99G
LETTERFROM
[r.S NRC
UDEQ
o
slo
,rtel r{cL,
UNITEO STAT:S
NUCLEAR REGULATORY COMMIS
wAsHtNcToN. O.C. 2C55t@t
0ecember .l3. i996
Llin loocsiU,lr'\,\,1
-:--i-;:, _-.-.. (-,
Dr. 0ianne R. Nielson, Executive Director
0epartment of Envjronmental Qual ityState of Utah
158 North 1950 Uest
Post Office Box 144810Salt Lake City, Utah 84114-4810
Oear Dr. i'{ielson:
I am responding to your september 15, 1996 letter describing recentdiscussions with the Nuclear Regu'latory Conrnission staff regarding theelimination of dual regulation it uranjum mil'l s'ites in Utah. The Conunissionappreciates yourinterest in simpl ifying the regulatory oversight of uraniumrnil'l and tailings facil'ities in Utah and in reconciling regula[ory differences
between the NRC and applicab'le utah ground and surface watar qualityregulations. In retrospect, there seems to have been considerab'le -
mjsunderstanding on the part of both the NRC staff and the Stat,e of Utah. Ihave enclosed specific responses to the six areas of concern that youidentified in your letter (Enc'losure l). Nevertheless, I bel ieve it isimportant to clarify why NRC was not able to undertake all the actions theState of Uiah believed grere necessary for elininating dual regulation and tosuggest alternative approaches in addressing the concerns you have raised.
As you are aware, the standards contained in NRC regulations conform tostandards promulgated by the Environmental Protection Agency (EPA). Judicialreviews by a Federal Court found that the EPA standards met the Federal
]egislative mandate for protection of groundwater IAmerican l.lininq Conqress v.
Thomas, 772 F.2nd 640 (lOth Cir. 1985); American l',lininq conoress v. NRc-
902 F.Znd 781 (lOth Cir. 1990)1. Because NRC's requirements conform to the
EPA standards, the NRC requirements also meet the Federal legislative mandateand, therefore, provide adequate protection of public health and safety withinthe meaning of the Atomic Energy Act.
Ouring the past year of interactions, it hecame apparent that'.he State of
Utah wanted the NRC to impose State of Utah requirements on NP.C licensees. As
t,he NRC staff noted in the meetings between the State of Utah and the NRC,'uhere are many asnects of the State of Utah r:quirements, such as surfacewater standards, where the NRC does not have statutory responsibility. Inaddition, there are many other areas of groundwater protection where the NRC
nay not need to implement requirements as restrictive as thosa imposed by theState of Utah to provide adequate protection of pubiic health and safety.Although the NRC was will ing to considelimplenrent'ing some of '.he State of
r
?
Utah requests, it could do so only if it bel ieved that taking the action wasnecessary tb protect the public health and safety, and it could provjde asound techn i cal and regu) atory bas i s for such acl i on .
One example of the difficulties encountered in trying to resolve the problemsis the different approach that NRC and the State of 0tan take to contaminatedgroundwater. In inrplementing its regulatory program, NRC takes into accountthe ultimate use of contaminited groindwatei.' Ii some Cir.i,--groundwater maynot be.drinking-water quality, and as such, NRC may exercise'rigu).io.ydiscretion regarding what ctLanup actions iicenseei need to taki to meet theregulations. The State of Utah, on the other hand, views ifi-gioundwater aspotential drinking-water, and occasionally may require regulat6ry actions thatgo beyond NRC regulat,ions. This differeni viiw of the uliimate use ofgroundwater is one of the major differences between NRC and State of Utahprograms. The agreenent being advocated by the State of Utah would have NRCimp'lement all the State of Ut;h requirements. This approach would requi.. Hncto revise. its groundwater program, inc'luding changes tb ttre NRC regulations.Eecause the present-{RC progrim provides adiquate protection of puSlic healthand safety, the staff informed the State of tjtatr tirat NRC did not plan toundertake any regulatory actions beyond those current'ty in the iederalprogram. NRC encouraged the State of Utah to review the requirements beingimplemented as part of the Federal program to see if the Stjte could-.ii.p[thi s program.
Nevertheless, there are alternative ways that we can work together toeliminate dual regulation. For examplL, the State of Utah c6uld considerbgcol!ng an Agreement State for uranium recovery facilities, This would allowthe State of Utah to implement the NRC program is well as any additional Stateauthorized requirements it believed were nicessary to regulaie groundwaterqual ity. t'le also have signed ilemoranda of Undersianding (HOUs) with severalStates to facil itate inteiactions. Enclosure 2, fci' yoir'consideration, is anHOU between NRC and the ullt Department of Environmenial Quality (DEQ) i,hat *.have drafted that would elirninate dual regulation in Utah. tf lou would liketo pursue this approach, the NRC would be-pleased to work with you toimp'lement such an fiOU. Another approach tb tretp reduce aual ieiulation wouldhave Utah licensees voluntarily commit to reporl on actions or standardssatisfying Utah. The NRC could inc'lude those vo'luntary conmitments to reportin the license. -The response to item 5 of your letter (see enc)osure l)discusses some- of the considerations NRC usls to determine the-appropriitenessof including a commitment in the license. In order to inc'lrJa;;irri.rycornmitments, the license condition would have to be worded careful)y to ensurethat NRC would not enforce commitments that go beyond NRC regulatoryauthority. There also may be an additional issue-relating t6 Statereimbursement for NRC imp'lementation of Utah requirements-depending on theextent of our involvenent relating to the reporting requirements and need forany direct NRC 'licensing review aisistance. Under current Commission pol.icyre'lating to fees and technical assistance to Agreement States, directI i cens i ng_ rev i ew as s j stance woul d be subject t5 State reimburiement. The NRCstaff could work with your staff if you want to pursue this approach.
3
In closing, I want to_assure you that the NRC is conmitted to working with theState of Utah to resolve these issues. I hope I have clarified NRC'i poritionon these maiters and that you will consider bne or more of the alternativesthat I have proposed. If you have further questions, p)ease contact me.
Sincerely,
/1 d*,F,--
Shir'ley Ann Jackson
Encl osures:l. Response to State of Utah, dated 9/16/902. ilemorandum of Understanding
Don 0stler, UDI'IQ
Larry tl'ize, UD}{QBill Sinclair, UDRC /
Peter Heaney, Grand County Council
IxrsnNerro*O
UneNrurvr (use)
ConponeuoN
lndependence Plaza, Suite 950 r 1050 Seventeenth Street . Denver, CO 80265 o 303 628 77g8 (main) . 303 3gg4125 (l&\)
October 30, 1998
Diane R. Nielson, Ph.D.
Executive Director
Deparhnent of Environmental Quality
State of Utah
P.O. Box 144810
168 North 1950 West
Salt Lake City, Utah 84114-4810
Dear Dr. Nielson:
Overthe last severalmonths, ttre State ofUtah DeparEnent of Environmental Quality ("DEQ') and International
Uranim (USA) Corporation ("IUSA') have been discussing, formally and informally, their differences of opinion
onmatters relating to the operation and regulation of IUSA's White Mesa Mill. In particular, these differences
are fairly acute regarding IUSA's acceptance and processing of alternate feed materials under NRC's alternate
feed policy.
As we have informed you, the ability to process altemate feeds and recycle those alternate feeds for uranium at
the White Mesa Mill is an important business for IUSA. We are committed to aggressively pursuing this
business. In doing so, however, we are also committed to complying firlly with all applicable laws and
regulations, and ensuring that public health, safety and the environment is never compromised.
We are also aware of your concems regarding the processing of alternate feeds at the White Mesa Mill. Through
our discussions with you and your staff as well as through your letters to Chairman Jackson of the NRC, we
understand the areas where we have disagreements.
While our differences are notable, however, there are some areas where our interests are aligned, such as the
desire to ensrne that no alt€mate feed materials containing listed hazardous wastes are ever processed at the White
Mesa Mll. In this regard, I think that IUSA and the DEQ have recently made very good progress in resolving
the listed hazardous waste questions relating to the Ashland 2 materials. We are very pleased with the results
to date and would like to acknowledge the DEQ's good faith in its efforts to resolve these issues in a reasonable
and cooperative manner. We also hope IUSA has demonsfiated that we take tle concerns of the DEQ very
setiorsly and set as our highest priority the operation of the White Mesa Mill in compliance with all applicabf
laws and regulations.
In an attempt to take this area of progress to the next level, we have suggested to Bill Sinclair and Denise
Chancellor that IUSA work with the DEQ to develop a "protocol" that would dictate procedures to be followed
by IUSA in determining whether or not any listed hazardous wastes are contained in any future alternate feeds
thatmaybe processed at the White Mesa Mill. We think that the ability to negotiate such a protocol regarding
listed hazardou wastes will allow the DEQ to be satisfied that all environmental and safety issues associated with
this issue are being addressed, while not unnecessarily restricting IUSA from pursuing this business.
We also believe that many, if not all, of the other differences between IUSA and the DEQ may be capable of
resolution in a similar manner. Therefore, we are requesting that a meeting be arranged in Salt Lake City |etrveen
r$
Diane R. Nielson, Ph.D.
October 30, 1998
Page 2
IUSA andtheDEQ to consider all of the issues that maybe of contention between us. we are prepared to meetat arry mutually convenient time; however, we would hope that such a meeting could be arranged within the next30 days.
Among the issues we think should be discussed are the following:
a) DEQ's request that the white Mesa Mill apply for a State of Utah groundwater discharge permit.we have addressed this issue in a separate letter from David Fryiedund to gilt Sinclair, whichhe should receive by November 2;
b) DEQ's request that IUSA allow DEQ to perform split sampling of groundwater;
c) DEQ's desire to have an inspector present at the White Mesa Mill on a regular basis;
d) The listed hazardous waste protocol discussed above;
e) The economic (i.e. "sham disposal") issue associated with processing alternate fbeds;
0 IUSA's application for a performance-based license condition relating to the acceptance ofalternate feeds; and
g) Material acceptance
futtre.
to be used by IUSA in accepting alternate feed materiars in the
President and Chief Executive Oflicer
Mr. David Bird
Mr. David Frydenlund
Mr. Fred Nelson
Ms. Michelle Rehmann
Mr. Harold Roberts
Mr. William Sinclair
Mr. Anthony Thompson
we would ask that you, Bill Sinclair, your counsel and any other required technical personnel be in attendanceat that meeting and that we plan for at least half a day of uninterrupted meeting time, such that these issues canbe discussed fully.
while the differences between our positions on these matters are not insignificant, I am confident that we canwork out reasonable solutions to most, if not alr, of these issues.
I look fonr:ard to your response, anrr to setting up a meeting in the near future.
Cordially,
INrBnNArroNef
UneNrur,r (use)
ConponauoN
Independence Plaza, Suite 950 . 1050 Seventeenth Street . Denver, CO 80265 . 303 628 77g8 (main) . 303 3gg 4125 (fax)
September 14,l99B
The Department of Environmental eualityDivision of Radiation Control
168 North 1950 West
P.O. Box 144850
Salt Lake City, Utah 84114-4850
,qi a
.0 iO
l'*,Psrp rsst
Receiv:r-l
Sivliron 0lt
.fladiation
control
Dear
Mr. William J. Sinclair, Director
Sirs:
RE: Ground Water Discharge permit Application
We refer to your letter dated August 4,1998, in which you have requested, among otherthings, that International Uranium (USA) Corporatior, ("IUS.N') suLmit a ground waterdischarge permit application to the State no later than September 15, l99g:
As you know, certain technical aspects relating to the tailings impoundment at IUSA,sWhite Mesa Mill are currently in dispute between ruSA and the State of UtahDepartment ofEnvironmental euality ("uDEe-), in the context of IUSA,s license
amendment to process the Ashland 2 materials.
ruSA is currently compiling relevant information and seeking expert technical analysesrelating to groundwater at the mill's 1le.(2) impoundment. Piarticularlg since some
i-ssue1 are currently in dispute between the Stati and IUSd ruSA needs more time todevelop the necessary information and expert analyses to meaningfully discuss UDEe,sconcerns. Also, IUSA'S Environmental Manager, Michelle Rehmannls on vacation untilthe last week of September. Accordingly, we iequest an extension of the deadline ofSeptember 15, 1998 to October 31, 1998, so that IUSA may be able to preoare a properpresentation to the State.
We look forward to your favorable response to this request. If you have any questions orconcerns please do not hesitate to contact the undersigned.
Yours truly,
International U (USA) Corporation
Vice-President and General Counsel
{r,h:lt J. Thompson, Shaw, Pittman, potts & Trowbridge
David R. Bird, Parsons, Behle & Latimer
iggs6T;
lrrER\ \Tr(,!
Un.l-r ru\r r L'S.\ )
CoRpoR-rrtor
Inrlependence plaza. Suite 950 . 1050 Ser.elteelth Street . Delrer. CO 50265 . ;l0rl 625 i79,S inrainr r ;10:l .l\9 -ll15 i.Lr
Iuly 27,1998
Senator R. Lane Beattie
President of the Senate
l3l3 North ll00 West
West Bountiful, Utah 84087
Re: July 17, 1998 Letter to Nuclear Regulatory Commission
Dear Mr. President:
I was very disappointed to read your July 17, 1998 letter to Joseph I. Holonictr, Chief of
the Uranium Recovery Branch of the Nuclear Regulatory Commission on behalf of
Envirocare. It is obvious from the contents of the letter that you have been given
incorrect urd misleading information. I would like to take an opportunity to address
some of your conc€rns now and would like an oppornrnity to discuss the matter with you
directly at your convenience.
The most important misunderstanding is your assertion that the NRC amendment to
International Uranium Corporation's ('IUC") source Material License "would essentially
allow White Mesa to become an unlicensed disposal facility for radioactive contaminated
soil and debris..." The amendment does nothing ofthe sort.
The Amendment allows the White Mesa mill to process as ore material essentially similar
to the ores it mines and processes. IUC has calculated that it will recover 25,000 pounds
of ururiurq enough to provide nuclear-generated electrical power for a city of 40,000 t0
50,000 people for a year. The tailings from the reprocessing will be essentially similar to
the tailings now generated from the processing of mined ores, and will be deposited in the
NRC licensed and regulated tailings pond where they will be fully and safely contained.
The suggestion that public health and safety could be put at risk is absolutely wrong.
Envirocare opposes reprocessing of uranium bearing ores because it deprives the
company of the money to be made by dumping $l6h materials at their facility without
treatment. It makes absolutely no sense to forigo reprocessing of uranium bearing
materials from which uranium values can be derived and the resulting tailings made less
dangerous just so Envirocare can make more money. As I have said before, the fact that
Envirocare may dispose of as waste what IUC can process as ore for the recovery of
valuable uranium does not justify State intervention to benefit Envirocare.
Senator R. Lane t.O
luly 27, 1998
Prye2 of 2
The White Mesa mill is not licensed by the State as a facility for disposal of radioactive
waste because it is not a disposal facility. It is fully licensed by the federal government,
which h8s jurisdiction, as a uranium milling facility with associated tailings
impoundment. In approving the IUC license amendment request, the NRC correctly
concluded the materials in question met the definition of ore and are being processed
primarily for the source material content.
As the largest employer in San Juan County, our recycling service enables IUC to
maintain jobs for more than 100 people. Therefore, it is vitally important to us, our
employees, and the citizens of San Juan County, that elected offrcials have accurate
information. We are concerned that inaccurate communications can lead to public
statements that could have the effect of harming one Utatr business for the benefit of
another Utah business, not to mention unnecessarily raising heath and safety concerns in
the minds of the public, particulady when quite the contrary is true.
I look forward to discussing this matter further with you at your earliest convenience.
Sincerely,
President and Chief Executive Officer
EEH:trp
cc: Governor Michacl Leavitt
Ms. Dianne Nielson, Ph.D.
U.S. Army Corps ofEngineers
Senator Robert Bennett
Senator Onin tluch
Congressman lames V. Husen
Congressman Chris Cannon
Congressman Merrill Cook
David Bird, Esq.
From:
To:
Date:
Subject:
Hi Rob,
"Michelle R. Rehmann" <[e-mail]>
Robert Herbert <rherbert@deq. state. ut. us>
Tue, Nov 11,1997 9:31 AM
Re: Request for Reports
I will ask that copies of the semi-annual effluent reports for 1995 to the
present be made and sent to you; please send me the exact address to which
we should send the copies. As for the draft Reclamation Plan - it is a very
large document, with about eight appendices; perhaps, if you could remind me
of the sections that we discussed that interested you, might it be an option
for us to copy only those portions for you? As the Reclamation Plan is, at
present, still only in draft form and is undergoing NRC review, I am a bit
hesitant to send the entire document, as we know that certain portions will
surely undergo some modifications during the review process.
Best regards,
Michelle
At 01:03 PM 11110197 -0700, you wrote:
>Hi Michelle. Could you please send me the draft Reclamation Plan and all
>Monitoring Reports since the September 1994 Points of Compliance Report?
have
>the Points of Compliance Report and the Hydrogeologic Evaluation Report.
Thanks
>a lot.
>Rob Herbert, P.G.
>Hydrogeologist
>Utah Division of Radiation Control
>168 North 1950 West
>Salt Lake City, UT 841144850
M NET. MAI L("hrr9 1 851 @aol.com","[e-mail]")
t-
Uzur.xrurr (us.r)
CoRpon.trrox
lrlcleirerrcir:rce Pl .,:r. Suite 9.10 . l0.j() Sererrteentlr Sireet . Denver. CO 5016.5 . :j0:l 61S;;t)S
June 20. 1997
\1A O\IERNIGHT MAIL
\lr. Don A. Ostler, P.E.
Execudve Secretary
State oiUtah Department of Environmental Qualiry
Division of Water Quality
288 Nonh 1460 West
Salt Lake City, UT 841 i4-4870
Utah Department of Environmental Qualiry Letter of May 19, Dn:regarding a Meering
io discuss a Groundw'ater Discharge Permir for White Mesa Mill
Dear \1r. Ostler:
Thepurpose of this letter is to r.rpond to your letter of May 19, 1997, regarding a meering
concerning a groundwater discharge permit for the White Mesa Uranium Mill. We understand rhai
recenr activities with regard ro the mafter have included:
On November 8, 1996, Energy Fuels Nuclear, Inc. ("EFN") representatives met w-ith
members of the Utah Department of Environmental Quality ("[IDEQ") Divisions of Water
Quality and Radiation Control to discuss the TIDEQ lener to EFN dated August 2& 1996.
kr that letter, tiDEQ had offered to provide gdidarrce to EFN in preparing an application for
a Groundwater Discharge Permit (GWDP") for the White Mesa Mill in Blanding, Utah.
Letters from EFN to LIDEQ dated February 27,1997, and April 29, 1997 (l) summarized
rhe issues discussed in the November 8 meeting, which EFN believed should be considered
in developing a form of groundu'ater monitoring which will address the ttDEQ concerns,,*'hiie maintaining compatibility *ith requiremerlts imposed on the Miil by the U.S. Nuclear
Regulatory Commission ("NRC"); and (2) followed up on the November 8 meeting byproposing a timeline for developing such a groundwater monitoring approach. The leners
also provided updates on the transfer of EF-lrl assets to the International Uranium qroup of
companies as it relared to the G\\DP.
As stated in the February 27 and April 29 letters, Energy Fuels was in the process offrnaiizing a sale of its uranium properties to a new company. Energy Fuels '*.as obligaredio transfer its permits to International Uranium (USA) Corporation ("fUC"). Further, in
anticipation of the closing of the sale and rransfer of the permits, Energy Fuels had agreed
./, .,, ' ;
x uscrs El- \&?win6OVllcs'mnrlcncrs osrlcr I 8. ltr
/rt
'u#*
energy fuels nuclear, inc,
thre€ pgk centrgl ' sultH gclo
t st s irapatroo strest' dqnver, colorado 80"?82
April 29, 1997
Via Qvcmieht UPS
Mr. Don A. Ostler, P.E.
Executivc BecrctuY
itate nf Utah Deparrnent of Environmental Qr'rality
Division of ,Water Quality
288 North 1460 West
salt Lake city, uT 84114-4870
Re: Utah Deputment of Environrrental Quality Letter of August 28, 19191 Regarclrng a Call
ioi " Giu"A",ater Disulralgc Permit'Applicetiou for White Mesa MilI
Dear Mr. Ostlet:
On November 8, 1995, Energy Fuels Nuolear, Inc' ("EFN)-rePlesontatives met wittt
members of the Ut lt ;rp*lrucnt # pn iiorr*t,t t Q"'ttty ("lIDEgT Divisions of Water
euality and Radiation Conirol to discuss the Unge tetteito.EFN ilated Aug*st 28' 1996' Inthat
letter, TJDEQ offered to provide guiOance to nfm io prepariuE, an appligtion for a Gfou$dwater
bir"torg* pimit 1oWnr"1 for ttre White Mesa Mill in Blanding, Utah
oa Febnrary 27, 1gg7,I wrote a letter to you (1) to summarize the issues discussed in the
Novctnbet g meeting, tl,mtf, we believe EFN and Uniq wifl need to consider in developing a
form of grounawatii *""it*,"g which wiU addreuu tlre UDEQ concerns, while maint'Biflitrg
comprrtibility with re.ryrirements i*po*rJoi tfrt UiU by the U'S' Nuclear Regulatory Commission
(,,NRC"); and (2) il i;iffi;ton tne nlorembs
-8
meeting by plgp.osing 1 timu linc for
developing such a groundwatcr monitoring *ppmac! -The. Fedruary 27 letter also provided an
updare orr the t*siu, of EFN assets to iritu*i.tioral uranirrm goup of companies as it relates
to the 0WDP.
As stated in orII Febtuary 2? letta, E*rgy Fuels is in thE pfocess of fi$alieing a snle of
its uranir.gg propertioe to a new *o*p*l'' W6 ;'; attaching " oopy of an Addendum to Pemrit
Transfer Request *tiri * *t p*t'ia1ti to t5e vanoq tegulatory agorcies ftom which Energy
Fuels has obtained licenseVpermits. e*-a.roibcd in the Aaattfft-, F'netgy Fuels is obligated
to rranr*fer it perjts to lnternationat Uraairrm (UsA) Corporation ('IUC.)'
*rrrruo#P
000/e00 E
{r\UiERIMRRVITTEBS 9?1OSllS43?'LtA
.,t I T IEnu JA lErilrl(Iill sT00 8fs T08 xYd Ir:80 IB,/60/90
Iv{r. Don A. Ostler' P.E'
April 29, 1997
Page 2
Hi\UEERStdRru'EilEns r11O$I.Eh419'LIn'
s00/S00 E .tlTIBnDralBA^Clrl
Further, in anticipatiOu oi'the olOsing O{the d" -d tansfor of the permits' Ene'rgr Frrels
hae *greed to maintain'Ji nqmilg, prt Ufi Ato ,g*td not to change permits or obtain new
perrnits without frli;*id i t*t"iGa pt.**t. dt*ifri;d to allor* tUC a sigrrifrcant rulc i' the
permining Pruaess'
WhilebothEnergyFuelsandlUCalccourmittcdtoworkingcloselywirhI]DEQto
resolve the issues O-*ritla fur or5 rruruury zz t.tier, ryither Energy Fuels nor IUC are in a
position" pending .d#;;f th. sale, to bind the other party to permit obligarions' Ir urlrw aPP€a$
ilrar cloring wi.II rrot bc eompleteq by th- *d of Aptil, o_*tlrin*rea iu oru Feb'ruary 27 lettnr;
rather, it is expected to orari, rrrithin rh" ** fO a yJ We remairt concsrned that submiftal ot
detailed proposals ut tni, timc could *-r,rtliiuprci storrtime and effort beirrg expended to no
avail if IIIC does not adopt the Energy iuels approac\ to the groundwater petmit issue' We
thereforc again suggestthat consideratiooorttu tfrrng of detailed proposals bc tablsd rrntil a dete
shurtly after *rc closing of the sde'
Summary and Proposed Schedule
Aswehavedemonstatedttuoughsubmittalofqror.ldwaterurunitoringrcportsallddata
cotlectcd from 197P to lhe Fresent, t#;dfi.ry -t.+t White Mesa Mill have produced no
oontamination of go,ndwater. The *.*u-rrpor* also discuss why it is reasonable to expect that
there will be rro ,eL.r, ur su$ramisation to gror,rudw"to uoppti*s.at trrg trF' y* havo ensured
that rtre State has ttco'Es to atl availabl;;tff;-t" m3nilirin* data for the White Mesa Mill'
and feer that significant progress is ueiffi;;; in aevetopi"g a-rcgrrlatory approach which will
cil'ure thst the state,s cnn"r"rrs wiu ue-aaarcssed, while avoiding *'*ce'sary dual regulatiou'
Given rtnr [ruNRC has thc rbility-to erpand the li-ct.of constiuqlED regtrlated and can al$o A
incrude voruntary ."*ritn*!, ig-g fclnse, ii *av be desirable to pnrsue these approashes as
meaiiro enrrmc; #:ffillfiffiCfuI'to' il-Jd.ho*. rJDEe troncem.s. EFNiruc worrld
tike to meet wirh the State to discuss the *"*1, application of thut" options to the FIesEnt
GWDP situatiorr- To that .nd, r"u ilff; ih; fir-tto*itrg schedtrle, wtricrr alss i,cludcs
considetation uf tlrc closing of tha pe*ding sale:
Jrrne.3o.lggTlvleotingbEtwecnUDEQarrr.iIUC-todiscusskeystatsisiueeforpossible
voluutary IicEtsE condiions, and State position orl.NR€ MO..U
n$Eus-f-XO. 199? Meeting between tInF.Q *d Iy9 to review draft voluntary license
*onditiint; begin revision of draft Statement of Basis'
9I0S 88S I08 NVd 8?:80 L6/80/90
Mr. Don A, Ostler,
April 29, 1997
Page 3
Ouobqr-30-ggz
Iiovember 30
MRF/pl
Attachment
H.L,.
Propose voluntary license conditions to I.[RC, with request to amend the
'NRb U"enso to add thcsc conditions'
Issuance of revised Staternent of Basis'
Weregretthisunavoidableclelay;pleasobeassrrredthatbothEnergyFuelsandlUClook
forward to working with UDEQ io a*ui*iig a grourrdwater-monitoring program which satisfies
both I{Rc and state-requiremoirts. I can bu reached at (303) 899'5647'
SincerelY,
Michelle R. Rehmanr
Euviroumerrtal Managu
0T09900,'?00 E
HruEERi$fi .Ru.EiIBSg'\081r.sn d29'LTf',
,{1T TEnEJalEila(Itr/l 8fs T08 xvd 0r:80 LB/ts0/90
ADDENDU\ I TC PER\TtT TR\STiFER REQL EST
Tlus A,jrlerrtlum to Permit Transler Requcst riescnE€s-(i) rhe cUfient SUTUS o[ the bur]Uttptcl'
oroceeriings rn *t'*n iiiii",JJ -i eridd),-ffiir N;r;;: r'ni remii'i) rrar" bccn inrot'u4 *41ri)
iire impenrring sare of the minins. o-lop.ni.liip;*?ffi1'EiTh:-55"p'3ii:iousli' repred bt' EFhii'
Energ! Fuers. Ltd. (;EiL;,iEl eni.rp F*G';ipr;;-*r comoa,r t"Er-ry) rilai 'orunrarl'
netitrons frrr ban$flrprcv in rhe uni_teci-srar;H.ffi;;i a_gil}H;fre'Drstnct ot coloralo (the
r.Bu,rkrupt"1 court,,) in'r"f#;;tr9gs:T'da;r.r[pd]" r,rincr *".i parr or o rarger banknrptcv'
ccse intotr ing Oren il'l#;t;: g;,sf ,fi*;;, tifi -.$$*qfi p"r'Ubn and has marnutned is
oqeadons iiuring the bank{P,..r' p1*.uil';i'i;-EFEX *..r-Ef$fi asc collecu'el1- refeneil to
i!r*,n as the "F-nergy Fr-lels Compuues-"
rn ree6, the minirrg assets.or EFL an! Effi-Y.fjllg'f lT,ftl3'[ilH{fl"].tffffiFif tLH;'l-,Xli[#ff :'Etft .T.:-*iliiafi iolr.5.^i-:y..Ti'i*g1g-#T;'""#'*fl
Alrcr an estended due diligence a$q etHHnrlil'il;*1.-'t;;; co*p**.* md lnternauonal
fi'ffi f",nff'"t;,ffit1ilt,',iiirTnl,,:-:S#;g,5[i"#l#iffi 'tr'ffi;*ilUranium Floldings Coroorauon (-lun )' Er^rr r, 6 ,,HL-I * ','io'luH.-Ttrehrms ard conditions
acted as the op€rator;iffi ffitirp'#**..tlflS;t^F**ft3. ,r* Eanrmrorcv court (the "sale
ffi'ff.i$:r:r5-rsJ,l;*1Tlf,J[.%'ffiffiu0*fr .ilau;'orln' nu,,r*'prcv courr (the "sare
Order'),
fturcuarrt to rhe rerm$ of nhe purchase agmcrnent and $e fu9" EFNI is obligared to initiarc the
transfer of rhe ,**ffi't '.iie-iilfiil'iili6rur m rnternuidnEl ui*i"m iusel corporauorr
(*tuc). tLic ir ^ J#ili;il"r;t* *i#&i;ilh;Gi;' ilJn tuc will oPerate thc rurung
orooerties for IIJH ''r"Tlffr"ruii'iiilIii--.na in ,nc-cour'e;t r*.ri opcrario,u wilr be rhe
lcriniuecnicensee. #L-uril i,rr;-il"dn;ffiid;iic-ii-itiiuo.a i,t'ttt" neces'"ry transfer
fonns.
under the urms o[ the pruchase aglryfr€nt' IUH has cqlnn'-If to otfcr ernploymcnt rvith IUC to
ail curent emproyees*oi'FFi$r:- fri ur. P*,dEE_,h. s"r* tr*s"iton u"ti.*. rf,ar this will greadv"
ililffi iil ii#iti* ifoperauoiis *ni'een EFlr"t ard tUC'
*:i'-Tts,'Jurtrh$htH'sJl-,tTJ#;8,$-mrp6'xl-l$iffi ff rufi'
;;]i,y * ruH and rti;;;r "*'r*gi['ii.' eoiriu'on'r,t,,lF;*;ffLilff'' creditors
comirrinee cnd a uaneli;;-*;[bts m,,.t rcsoivc certairr claims
As a port qf rt1. closin& pnrmits and licc-nses for rhe e']PlgtBfgn ard mining activities o[ the Energ't
Fuels corapanio *.'EE'd;a'Hd-ffif ii=hr'-d'r'frE.-.tt'" uming or-rhe rranrlbr is imporent
srncc [r..,-H ob*io*sry_ ffi ilffiili* d;ii"; tii-p*.t* gnii un:rlt n has reccived Beccssarv
aoorovalsfromthevariursregrrlaror-v.eu#G*-o*#trrefipenrcsandtlrcscllcrsdonotwant
r.iLnO up wtth thc permis and no ptopcrty'
'iL'li*'H'#H,ffit#-H.rff$H.,ffi":L[ffi':i['1iHl"ff*'lJ"trr's'H's
Frnariang a bonding tH ;iil;;-4F [rHil#H;-ffiAi"i ciil;"v; ]n rtre eveni the t-rnd
iilrans€m€nu lrave not been madc ri'ith,riJ'ffiffiy{v-1t911E iu+i*iir tit'* a maior nadorul
bank-ro iss,e retren of cnr<lit ro s*ppo.rr rhe pniiuingre.rrm"fii1uiffi;-t *t*iaid with the
ilil; p.*itli"o licensee n is acq-uiring'
As the crosing is now srrucrurd" y" T#&Tt[f ,85"fffi'off,il",ll*t$ifiFfffiryliid; t*riio under theit normai pS - - --,-....^i rlrs rffFinr hv t5c,rcncv of replacemert
nl;[nffi H*ffi *i#n:ffik#"ffi lliir:lriu;u"t'1"*ili:nr:ffi ix"
000/s00 E ,txT IEnbJaIEAA(IIII 8tg T08 xvd B?:80 16,,80/90
,{,.lJcr:'.ium
Page 1
,.,f this c.ndruon. the pennis and ricenses oan be erfecti'etf iransfened u rhe clostng b1' delit'er]
Ii,iiJtiq*tiic irrpnsial :rwtics to thc appropri*te agencies'
we understand that lvc must td(e rhe qcdons necessar)' p imuarc thp permit and ltcense transters
ami algo pror.rde ro ths-proper-diuisions;f ;i; fiut{.tgencv rhi propos€d linancial suret}
rorms. H rhey *o.po*'[ 5#$j u"'riJlir*i".r nf*.oir wJarxiunceistaird thar EFNI and IUC
mufl comph- with all other appropriate d;fi*;iliIJ*n ageidtfor Eu$ter of the permiui a*rl
liccnses.
ffi [yl'Tlttrffi*,ff ,lll3l],f#fi]1iti"L--Xsffiim#fii'itfli.:S,qTtil
e:rlErtslvelv over the ne:tt rlucc wcctss'. wl'tilHi;la it *-gty teleptionic conErct rvith he Dent'er
and iield dffices, other individruls ar tt. t'il-ouilin us of EoitEy Frcts are avatlable for quesiions
or c0mm6nE.
Cootact Poirrts at EFNI (Dtrrvcr):
[phone]
(303) EJe-5647
(303) 899-56'49
(303) 89e-s63'l
Rich A. Muruon
Michelle R Rehmann
Ten;r V. Wee
Viciti L. Hoffsee
The ecneral Phorre number al EFlii
is (36J) 595-830,
Coroor*te Counsel
Envi ronrneual lvlanager
Project Managsr
Land Adrnintstrator
(Denver) is (3ffi) 6?.?#l? and the facstmrle number
(801) 67&2:11
Contact Pornt at EFM (Bla,ndirrg - Vfhitc Mese h/rll):
\Villiam N. D€al Mill Superinrcndent
The facsimile nurnbrr at ErNI (Btanding) is (8ol) 67S2:14'
Contact polnt at EFI.{I (Gralni Junction}:
Msna*er - Mine oPemdons
Colorido Plarcau
[phone].Riclc A. Van Horn
ThefassimilenumberaiGrandJunctiortis(970)143.19R|.
Contact poins at EFNI (Fredonia):
Roger B. Smith
The tacsimile number ar Frc'donia is t510) #3-7l?f-
,Cl T IEnB Ja 18,1[]t(Iil1
lv{anager - Mine Operariors (520) 643-732I
AnzorraStriP
900/s00 E 0I0s 88s I08 xvd Er:80 t6l80/90
NSMITTAL
STATE OiF UTAI{
DIYIS{ON OF W.{TER QUALITY
DEPARTMEI\iT OF ENVIRONMT]N IAL QUALII'Y
?88 NORTH 1460 WEST
P.o. Eox t44870
SAI.T I,AKE CITY, UTAH ${II4-4S70
orRA
Facsimilc: (801) 538'fi016Talepltone: (801)$38-6146
tr
td
MAIL
rAx
DATF.:
FIIOIVl:
FHONE #:
Lo rem M o-*o*f1n k N",z,,r(
PHONE #:
We arc plenscd to providc tlrc foliorvirlg to you:
ITEI\I:
F.rX +:No. ol P:rgcs Includirtg Cover Shcct;
jEIE
trtr
tr
For your action
Frrr yorrr inforrttation
Per previorrs conversllion on
Per youriour cqrrespondence dated
Otircr'
0T09 8fs I08 xvd 0tr:80 L8/80/90.c1T IBnDJslBli^0ill
a
energy fu
Wee pafi c€ntral . suite 900 . :..:".;:.----\-
1515 arapahoe street . oenver, corbEUdS02OZ i;)
303-623-83'17
twx 910-931-2561
fax 3G3-595-0930
Via Overnisht UPS
Mr. Don A. Ostler, P.E.
Executive Secretary
l\fL
ttB^..*,.1\
Rc'..,.,"n]Is\i' C\'Jc'
\i?..el -
els nuclear, inc.
J
CD(s
o
Division of Water Quality
288 North 144870
Salr Lake City, UT 84114-4870
Utah Department of Environmental Quality Letter of August 28,1996, Regarding a Call
for a Groundwater Discharge Permit Application for White Mesa Mill
Dear Mr. Ostler:
On November 8, 1996, Energy Fuels Nuclear, Inc. ("EFN") representatives met with
members of the Utah Department of Environmental Quality ("UDEQ") Divisions of Water
Quality and Radiation Control to discuss the UDEQ letter to EFN dated August 28, L996. In that
letter, UDEQ offered to provide guidance to EFN in preparing an application for a Groundwater
Discharge Permit (GWDP") for the White Mesa Mill in Blanding, Utah.
The purposes of this letter are (l) to summarize the issues discussed in the November 8
meeting, which we believe EFN and TIDEQ will need to consider in developing a form of
gror:ndwater monitoring which will address the LIDEQ concerns, while maintaining compatibility
with requirements imposed on the Mill by the U.S. Nuclear Regulatory Commission ("NRC");
and (2) to follow up on the November 8 meeting by proposing a time line for developing such
a groundwater monitoring approach. Finally, this letter provides an update on the transfer of
EFN assets to International Uranium group of companies as it relates to the GWDP.
Issues
Issues affecting the ability of EFN to comply with both Federal and State requirements
identified during the meeting of November 8. As we recall, meeting participants agreed
issues should be considered and resolved. They included:
Options to meet State concerns through the NRC license;
The extent to which current NRC license requirements address State concems; and
Revisions of the UDEQ Draft Statement of Basis.
Fe$ruary
,:,'./99/
were
these
HlUSERS\MRR'IITTERS.9NOSTLER.227. LT?,
IWr. Don A. Ostler, P.E.
February 27,1997
Page 2
These issues are discussed below.
l- options to meet state concerns through the NRC License
In a letter to the Executive Director of UDEQ dated December 13, 1996, the NRC
transmitted a draft Memorandum of Understanding ("MoU"). This Mou would eliminate dual
regulation of those hazardous constituents regulated by both the NRC and UDEe. In the same
letter, the NRC also suggests that the l.lRC could include voluntary commitrnents to report in thelicense. This letter was sent to UDEQ from NRC after our meeting of November 8.
2- The extent to which NRC license requirements address State concerns
As we have discussed, the NRC has the ability to regulate other constituents beyond thoselisted in I0CFR40 Appendix A, Criterion 13. In addition, the NRC has agreed tirat it mavinclude voluntary reporting commihents in a license. As you note, LIDEe h* reviewed theWhite Mesa lvlill groundwater monitoring pro$am, and found that it would be adequate forcompliance monitoring under a GWDP. We understand your letter to further ruy thut "discrepancy between the State and NRC regulatory programs would really only exist in the eventthat a release was detected by the monitoring program.
3. Revision of the UDEQ draft statement of basis
In a draft Statement of Basis dated November 30, 1995, UDEQ expressed an interest in
addressing the State's concerns regarding the White Mesa Mill site through the NRC license, and
stated that "lf the State's concerns at White Mesa Mill can be satisfactorifu addressed through theNRC license, a groundwater discharge permit may not be required". Indeed, we believed thatsubstantial progress towards this goal was made in our meeting with UDEQ on January 31, 1996.It now apPears that NRC has conceded that voluntary commitnents rluy b" added to the NRC
license, which would enable the State's concenr to be satisfactorily addiessed through the NRClicense. Therefore, it now seeurs timely for EFN to meet with UfEQ to reinitiate revision andcompletion of the Statement of Basis.
As you know, Energy Fuels is in the process of finalizing a sale of its uanium propertiesto a new company. We are attaching a copy of an Addendum to Permit Transfer Requist whichwe are providing to the various regulatory agencies from which Energy Fuels has obtained
licenses/permits. As described in the Addendum, Energy Fuels is obligateJto transfer its permitsto International Uranium (USA) Corporation ("IUC,).
H:\USER5\MRR\LETIER5.97OSTLER227.LTR
Furthcr' in anticipation of the closing of the sale and nansfer of the permits, Energy Fuelshas agreed to maintain all permits, but has also agreed not to change pirmits or obtain newpermits without following a detailed process designed to allow IUC a significant role in thepermining process.
While both Energy Fuels and IUC are committed to working closely with UDEe toresolve the issues identified in this letter, neither Energy Fuels nor IUC are in a position, pendiingclosing of the sale, to bind the other party to permit obligations. Given that closing is."ipe.t.ito occur within the next 30 to 45 days, we are concerned that submittal of detaileJproposals atthis time could result in UDEQ staff time and effort being expended to no avail if IUC does notadopt the Energy Fuels approach to the groundwater p..*it issue. We suggest that considerationof the timing of detailed proposals be tabled until a date shortly after thi'closing of the sale.
Summarv and Proposed Schedule
As we have demonstrated through submittal of groundwater monitoring reports and datacollected from 1979 to the present, the operations at the White Mesa Mill i'ave produced nocontamination of groundwater. The same reports also discuss why it is reasonable to expect thatthere will be no release of contamination to groundwater supplies at the site. We have ensuredthat the State has access to all available groundwater monitoring data for the white Mesa Mill,and feel that significant Progress is being made in developing aiegulatory approach which willensure that the State's concerns will be addressed, while uroidiog-,rno...r*ry dual regulation.
Given that the NRC has the ability to expand the list of constituents regulated and can alsoinclude voluntary commitnents in a license, ii may be desirable to pursue ih"r" upproaches asmeans to enhance the existing program such that it addresses IIDEQ "on...nr. EFN/IUC wouldlike to meet with the State to discuss the possible applicatioo of th.r. options to the presentGWDP situation. To that end, we propose ttre fottowing schedule, *hi.h also includesconsideration of the closing of the pending sale:
lv{r. Don
February
Page 3
Ostler,
t997
Aoril 30. 1997
June 30. 1997
August 30. 1997
Meeting between UDEQ and IUC to discuss key state issues for possible
voluntary license conditions, and State position on NRC Mou.
Meeting between LIDEQ and IUC to review draft voluntary licenseconditions; begin revision of draft Statement of Basis.
Propose voluntary license conditions to NRC, with request to amend the
NRC license to add these conditions.
H: \USERS\MRR\LETTERS. 971OSTLER227 LTn
Mr, Don A. Ostler,
February 27, 1997
Page 4
October 30. 1997 Issuance of revised Statement of Basis.
Please be assured that both Energy Fuels and IUC look forward to working with LrDEein achieving a groundw-ater-monitoring program which satisfies both NRC and State requirements.I can be reached at [phone].
, Sincerely,Lr&-tu/.Zfu
lvfichelle R. Rehmann
Environmental Manager
H:\USERS\\,IRR\TETTEITS, 9AoSTLER227-LTR
ADDENDITII\I TO PER.V{IT TRANSFER REeUEST
3:"11*:1:T,t:^.P^.,Pi:.IT.{"_l Reqrest descnbes -(i) the current srarus o[ the bankruprc]
t_.:;:.*f:l:::11.L134,-:iil,si'#i,;i;r;;,,!1[lEitii,Ti,"'TH.X',,iii,,ffirt,',j-$:"::.rSS:li:*j-:.t:* F;i ?i':iil:i"Jiliil';t),'Ei*l,"tl'o|.11:i,T:[['s}'3rtil]ilEner-ey' Fuels., Ltd. ("EFL"), and Enirgl. ruets e.rptorird co*poi,v t;.erLx.;) fiI.,i volunran,petitions for banlcnrptcf in the United Stut.r Bankruntcv corrrr tnr rhe Disrrir.r ;i];r;;;';:.ry1tigns b, Fnfry.pFill rhe United Bankruptcy Court tor the District oi Colorad. tit6r vvrvt (e\J \ ltlg
.r"1"1*L[i-:"*j in Fe^bruary "jt?r, it;G;kdily iiiing, ,u.r" port oi o r".-r., bankruprcl,
:T:_iTl:l'lns ore,] L. Benton. EFr.ri Jio'"",TiiilGiikdi:),p.i-i[ilffi"#"ft;:ffi[T,:
:rygi-oT, dY.T,.s the_Pankruptcy process. EFL, EFEX ani EFNr-';;;';iilreh. referred roherein as the "Energy.Fuels Comianies"
In 1996, the minins assets of EFL and EFLY were offered for sale 1n the bankruprcy proceedings.After an extended'due diligence *J uioarg ;r*;;;,-u ,-u...rrrul bidder was selecred an6 agyrclase -a-Sreement rras en-tered into benldn'the Energ,r- Fuers ao;p;.;Lo In,.*arronalUranium.Holdings Corporation (..lUH'). EFNI is u pu.nlio the ourchase asreemenr since ir haspary' to the purchase agreement since it has
1:t-tj * the operator of'the mining properties ttrat are H"il r"r,i'LiUri.-rrc"o-i,, and condirionso[ the purchase asreement have Hen approved uy an ci?er or in" suntrupi.l' aoun (the ..sale
Order").
R'rrsuant to the terms of the.purchase aSreement and sale order, EFNI is obligared to initiate thetransfer of the various. permi's and liceises it holds to Intema_tiqnal Uranium (USA) Co.p"."ti""("lUC*)' IUC is a subsidiary o{ qr-". purchaser of the asse;, iUH. Iu&iii bp..,. the miningproperties lor IUH and its- subsidiiries and in the course of suctr- operaiions will be theperminee/licensee. Relevant information concerning IUC is included in itre necessary transferforms.
Under the terms of the P:.:lrS" agreement, IUH has committed to offer employment rvith IUC to
**i,T,t^"j,:T4:.tfj "[.EFM .eI gre parties to rhe *l;; r-*"tion believl rfiar rhis will greatlyracurlare tne tErnsrtron ol operations ben*,een EFNI and IUC.
*,i::::q1t-::tff.19._gryce1 of "closing- the..sales transaction is very complicated given rhe5t r vra Lrr!requirement that all acdoni necessav to t.urir.iotat;rri;:, permits anit ortrei assers from qrchentir-r" to I{-'H and IUC occur simuitaneously. Adai;';;a;, it" u*r,*pt ,il-.r*,.r. Creditors,entin' ro lt-r-Fl and IUC occur
comm i nee *d ;'"";; "ffi:hil[tlff :#i;" *Hlffi#* i[r:U*3f,Lfifl"' c redi tors'
As a part of the closing permits and licenser Es" e1n_l9ratr9n and mining activities of the Energ,vFuels Co-ryPanies are io'be transferred from EFN to IUC. The timing of the transt-er is importantsince IUH obviously does not want to delirer til-p;.h; price un'iii it tras receir.ed necessarvappro'als from the vanous regulatory agencies t" rr[*G rt" properties and the r.iil;.;;il;ito end up rvirh the permis and no propeiy.
At,the closing' IUH. lt ob!g:r190 !g post substitute or replacement surery bonds for those permitsand licenses now held.bl' EFNI which reguile tinancial;Git; InH *JruE'L in rhe process oft-rnalizing a bonding lini rvith a.maj91 ivbnti fi;;-Gfting "b*p*,j; l;rh. event the finalarrangemenc have not been made *ith this compan.v- b,v- closin!, ruri wiil c;; a major nationalbank to issue letters,o[ cred.it t9 support tt. penriinii,gTi..iluion ou6goiio.,s ossociured rvith thevarious permits and licenses it is ac'quinng.
f:-ll: :-P_.lll,t lo11' structured. we are requesting regularorv agencies ro approve permit andtlcense transters under their normal procedurbs, buI add a co,idition to the approval 'of transt'ertvhich states that the transt'er shall be Lflective ontf ,pon the-receipt U.,- ttre ag;;cv of replac.r.nrtlnancial assurance in rhe lorm pre'iouslv ugr.;a*u$" ty,'iuc *a tt. og"n?1:. with the addition
Addendum
Page 2
of this condition' the permia and licenses r:an be effectivell, rransferred ar rhe closing b1. delir.eryof the requisite financial sureries ro the appropriare ug.n.i.i
we undersand that lve must take the actions necess<1n'to initiate the permit and license transfersand also provide to the Proper divisions oi tt.."p"",irtrr agencv the proposed trnancial sureq-fo"lt: be thel' 99rp9raq iurdry bonds or letters of credit. We also understand that EFNI and IUCmust comPll' with all other appropriate requiremens of each agency ro. tranirer;iG p;L';;licenses.
Energy Fuels personnel are involve<I in a vanel)^of task associated rvith the closing and transitionto IUC' ttarbto Robers. is assisting ILl{/lU'C * tur-tr *i,ich. require Harold to be travelingextensively' over the next three weeks.- while Harold is in aaity teleptionic ;;;;i rvith the Denr.erand field offices' other indi-'-iduals at the various officei oi er,.rgy Fuels are availabli-it;qr;.u;;or comments.
Contact points at EFNI (Denr.er):
Corporate Counsel [phone]
Environmental Manager (303) 899-5e17
Project Manager [phone]
[.and Administrator [phone]
(Denver) is (303) 6?3-8f17 and the facsimile number
Rich A. Munson
Michelle R. Rehmann
Terry V. WeE
Vicki L. Hoffseu
The general phone number ar EFN
is (303) 5940930.
Contact poinr at EFM (Blanding - White ivlesa Mill):
Ivlill SuperinrendenrWilliam N. Deal
The lacsimile number ar EFM (Brandin_e) is (g0l) 67g2??4.
Contact point at EFM (Grand Junction):
Rick A. Van Horn
[phone]
(e70) ?43-1968.Manager - lvline Operations
Colorado Plateau
The lacsimile number at Grand Junction is (g0) 243-ryl3.
Conncr poina at EFNI (Fredonia):
Roger B. Smirh lvlanager - lvline Operations (520) &3-73?l
Arizona Stnp
The lacsimile number ar Fredonia is (520) &+3-732g.