DRC-2002-001126 - 0901a06880adec6d

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Michael O. Leavin
Govemor
Dianne R. Nielson, Ph.D.
Executive Director
William J. Sinclair
Director
DEPARTMENT OF ENVIRON},/MNTAL QUALIT
DTVISION OF RADIATION CONTROL
168 Noflh 1950 West
P.O. Box 144850
Salt lake City, Utah 84114-4850
[phone]
(801) 5334097 Fax
(801) 536-,1414 T.D.D.
www.deq.state.ut.us Web
July 12,2O02
William E. Love
2871F,. Bench Road
Moab, W 84532
Dear Mr. Love:
Governor kavitt has asked me to respond to your letter of June 26,2002 concerning
transportation of lowJevel and high-level radioactive waste. The Governor shares your concern
that shipments of radioactive waste must be accomplished in a safe manner and is working with
the Western Governor's Association and other state representatives to ensure this happens.
Thank you for your interest in this issue. If you have further questions, please do not hesitate to
contact me.
Sincerely,ffi*
Covernor Ieavitt
June 26,2002
Michael O. Leavitt
Governor of Utah
210 State Capitol
Salt Lake City, UT 84114
Subject: Transportation of Nuclear Wastes through Utah
Colorado and Nevada have strongly opposed the movement and
processing of nuclear waste in their states and have been far more
effective than Utah in protecting their citizens. Utah is becoming the
preferred state for moving millions of tons of both high and low level
nuclear wastes. Colorado opposed the processing of the Maywood, New
Jersey, waste at Canon City, and the waste was transported to Envirocare
in Utah. Nevada opposed the transportation of the Oak Ridge material
through Las Vegas (Aftachment A), and the material will be transported to
Milford, Utah, by rail, and then loaded onto trucks for delivery to the
Nevada Test Site via a route that will avoid Las Vegas, a two-step process
that significantly increases the hazard to Utah citizens.
Grand County, Utah, Moab City, Utah, and Nevada have all expressed
concerns to the Nuclear Regulatory Commission (NRC) about the
shipment of the Molycorp, California, wastes to Blanding, Utah. The three
letters are attached (Attachments B, C, D). The Nevada letter is from the
State Division of Environmental Protection and strongly opposes the
shipment of the Molycorp waste through Las Vegas, Nevada. Utah's
concerns abut the health and safety of its citizens were far less than
Nevada's concerns. I believe Moab's citizens and tourist-oriented
economy need the same protection as Nevada's citizens and tourist
oriented economy.
The DOE and the NRC will continue to move more waste and higher levels
of waste through Utah unless the State shows concerns for the safety of its
citizens. Attachment E is a mqp showing the cunent preferred routes for
transporting high-level nuclear waste through Utah. High-level waste will
deliver a lethal dose of radiation to a person standing one yard away in
less than three minutes. Up to 80 percent of Utah's population lives within
5 miles of one of these transportation routes. The preferred easUwest
route is l-70 or l-80 and the nearby railroads. The Colorado River along
this route is vulnerable to a spill; a trainload of waste similar to the
Molycorp or Maywood material would effectively poison the river.
, : -' .:,ii E' '::'r-.,;' i,t F- R,i
The State of Utah needs to require an Environmental lmpact Study from
the U.S. Nuclear Regulatory Commission for all major waste transportation
corridors through Utah.
Sincerely,
/-*4-- t/-*
William E. Love
2871 E. Bench Road
Moab, Utah 84532
cc:
Dianne R. Nielson, PHD, Executive Director
Department of Environmental Quality
Dennis R. Downs, Director
Division of Solid and Hazardous Waste
William Sinclair, Division of Radiation Control
Department of Environmental Quality
Moab City
Grand County
Times lndependent
Salt Lake Tribune
Deseret News
Letter from Bob Loux to Leah
KEIINYC. GUII\N
Gqemr
Devero, DOE/Oak Ridge, Regarding Proposed Low-Level ... Page I of 3) "/4
OTFICE OtrTHE GOYERNOR
AGENCT FOR IruCLEAR PROJECTS
lEO2 N. Carson Street, Suite 252
Cerson City, Ncvada 89701
Telephonc: (n$ ffl-374 . Ftl: Q75) 687-5277
E-rneil: [e-mail]
Apnl 4,2001
Ms. Leah Dever, Manager
U.S. DeparEnent of Energy
Oak Ridge Operations Offrce
200 Administration Road
Oak Ridge, TN 37831
DearMs. Dever:
It has come to my attention that a DOUOak Ridge contractoq British Nuclear Fuels (B}.IF), is proposing
to ship low-level radioactive waste (LLW) from clean-up activities at the K-25 Plant to the Nevada Test
Site (NIS) for disposal. The BNF plan apparently calls for the LLW to be tansported by train to
Calientq Nevadq where it would be off-loaded onto trucks for shipment to NTS. I am requesting that
you reconsider this transportation plan and look for alternative methods of transporting the waste to NTS.
As you may know, in Nevada we are very cmcemed about aoy actions contemplated by DOE involving
the intermodal transfer of radioactive waste within Nevada.
Over the past few years DOEs Nevada Operations Otrice @OE/I.{V) and the State of Nevada have made
significaut progress in addressing LLW transportation issues and cmcerns. This has resulted in
substantial improvernents in the way LLW stripmeirts are managed including a more responsive
understanding by DOE of the rmique circumstances involving radioactive waste transportation in
Nevada. Please be aware that establishing an intermodal trmsfer waste operation in Caliente, will do
serious hum to the productive State-DOE relationship that has evolved with respect to NTS LLW
shipme,nt and disposal activities. l
Over the past two years, Govemor Guinn has met personally with former Energy Secretary Richardson
and his staff and received assuranoes that intermodal operations in Nevada would not be used to transport
LLW or Mixed LLW to the NTS. We would hope that DOE intends to continue to honor these
assuraoces.
In recent yearq the State of Nevada expressed serious conoem over a prior proposal for LLW shipments
to NTS that would have included intermodal operations in Nwada. In fact, it was a pro,posal by Fluor
Daniels on behalf of DOE's Fe,mald facility that resulted in the Govemo/s discussions with Secretary
Richardson. In commeirts on the Feinald proposal the State asserted the following:
ROBf,RT R. I-O{IX
Ere@tive Direclar
STATE OFNEVADA
http://www. state.nv.uJnucwaste,/news200 l/nn I I l24.htm 318/2002
Leuer from Bob Loux to , DOE/Oak Ridge, Regarding Page2 of 3
"lt is the State's view that any action by DOE that either directly or indrectly leads to the development of
an intermodal LLW facility on lands not owned or controlled by the federal government would constitute
a major federal action under National Environmental Policy Act (NEPA - per Council of Environmental
Quality [CEQ] regulations 1508.18(4). At a minimum, we contend that a NEPA analysis must ad&ess
the potential environmental, public health and safety, aud econornic impacts that may be caused by siting
an intermodal LLW tansfer faciiity in Nevada. Siting nuclear facilities can, uader certain conditions,
have significant negative effects by suppressing business activities, lowering property valuc, and
causing potential new residents, tourists, and businesses to avoid areas associated with things nuclear."
We also said that if DOE propos€s an action that is connecto4 closely related, or would automatically
trigger other actious associated with an intermodal waste tansfer facility, their all these actions must be
analyzed together in a single NEPA document (see 40 CFR 1508.25). This is significant when
considering that NTS hosts more ttran l5 offsite waste geaerators, and any one of these might take
advantage of a intermodal LLW transfer facility to ship waste to Nevada for disposal. Hence, allowing
developnent of such a facility would likely trigger other actions which would cause cumulative impacts
to the human and natural environm€nt (e.g., expauded use of an intennodal facility with associated
tansportatiou and added risks). To address such impacts, DOE s NEPA impleinenting regulations require
that such actious be assessed together to address cumulative e,ffect, and DOE is prohibited from
categorically excluding these actions in cases where a giveir proposal is 'connected' to other actions or
would otherwise result in cumulative effects to the environment (see 1021.410(2).
We also said that 'because of the unique hazards associated with handliDg radioactive waste, State
officials believe that a regulatory analysis, conducted as psrt of the requted NEPA analysis, must be
rmdertaken tv address DOE oversight and/or licensing under NRC regulations of an lntermodal LLW
tansfer facility. " ln other words, the State of Nevada $ilI mntends that any facility that handles and
stores defense low-level radioactive waste (as m intermodal facility would necessarily do), must be
liceirsed by NRC .. where zuch a facility is not located on withdrawn federal lmds or lands otherwise
owned/controlled ry the DOE/DoD. We contend lhat such liceirsing is mmdatory to insure full
protection of public health and the environment.
Please note that Nevda will exercise whatever legal md other prerogatives it has to assure that these
concen$ are addressed if DOE Oak Ridge and BNF cootinue to pursre using intermodal tansportation
from Caliente or elsewhere in Nevada for LLW shipments to NTS.
Relationship to Yucca Mountain
Asyou know from your tenure here in Nevada, it is very difFrcult to odecorple" NTS LLW issues from
the proposed Yucca Mountain higtr-level waste repository md &e highly charged atmosphere that has
been created here as a result of the repository program. The fact that DOE/OCRWM's Yucca Mountain
&aft Environmental knpact Statement (DEIS) proposes to site and use m intermodal facility for the
transport of spent nuclear fuel to the proposed repository creates a situation where any proposal for
intffmodsl facilities involving radioactive materials, even LLW, is untenable because of the preoedent
that would be set and the perce'Sims of risk involved. (Ihe refenenced DEIS contains an alternative that
sites an intermodal facility at Caliente^Nevada - see DEIS transportation map at
htQ :/!ucc amountain. org/s -27 . gD
While it is my understmding that there are readily available alteinatives to tanshipping the BNF LLW at
Caliente, if BNF is pemitted to move ahead with plans for intermodal trander of LLW in Calieirte, or
elsewhere in Nevada, we will take whatwer legal action required to oppose such shipments. Such action
would also undermine the cooperative and productive working relationship developed between the State
and DOE/NV with respeot to ongoing LLW and Mixed LLW shipping md disposal activities at NTS.
Thanli you for you a$ention to this important matter. If you would like to discuss the issue fluther, please
Leah Devero Proposed
o
hup ://www. state.nv.uVnucwaste/news200 l/nnl 1 124.hfir 3/8l2AO2
., Iretter from Bob Loux to
contact me at (77 5) 687 -37 44.
Sincerely,
-lsl-
Robert R. Loux
Executive Director
, DOE/Oak Ridge Regarding Low-Level ... Page 3 of 3
Return to the
Nuclear Waste Project Office
Horre Page
State of Nevada
Nrclear Waste Projoct Office
1802 No(h Carson Suite 252
Carson City, NV 89701
075)687-3744 voice
Q75)687-s277 fax
[e-mail] e-mail
Leah Devero Proposedo
http:/lwww.state.nv.uVnucwaste/news200 l/nnl I l24.htn 318/2002
t
!i
a
. ALLENBlAcCl,Atlministratur
1775t 687-4670
TDD 687-4678
-ldministration
Facsimile 687-5856
\\?ter Pollution Control
Focsimile 687-4684
Mining Regulation and
Reclamatirrn
lhcsimile 6lt4-5259
STATE OF NEVADA
KENT.IY C. GUINN
Gouemor
DEPARTMENT OF CONSERVATION AND NATURAL RESOURCES
DIVISION OF ENVIRONMENTAL
333 W. Nye Lane, Room 138
Carson City, Nevada 89706
May 31,2002
Administrative Judge Alan Rosenthal
Atomic Safety and Licensing Board Panel
Mail Stop T-3F23
U. S. Nuclear Regulatory Commission
Washington DC 20555-0001
Re: Docket No. 40-8681-MLA-I1
Dear Judge Rosenthal
In reference to the docket number listed above, it has come to our attention that
the Nuclear Regulatory Commission (NRC) is contemplating a license amendment action
that would result in the shipment of 17,000 tons of radioactive sludge from Molycorp's
mine at Mountain Pass, California to the White Mesa Uranium Mill south of Blanding,
Utah. Since these shipments would traverse southern Nevada, we contend the NRC must
conduct a risk analysis to assess threats to human health and environment associated with
a transportation accident involving these materials/wastes within the Las Vegas Valley.
Please note that Nevada Officials havc w'orked to eliminate radioactive rvaste
shipments in southern Nevada. We now have an informal agreement with the U.S.
Department of Energy that prohibits radioactive waste shipments -- destined for disposal
at the Nevada Test Site -- from traversing Hoover Dam and the Las Vegas Valley.
Although many govemment officials believe that transport of radioactive wastes
and materials poses little risk to public health and safety, officials in Nevada contend that
moving such hazardous materials through Las Vegas presents a significant risk that could
adversely affect the State's tourist-based economy. The fact remains that Las Vegas is
among the fastest growing metropolitan areas in the country, and when considering the
unprecedented volume of tourists who visit the city each year (now estimated at forty
million), a transportation accident involving radioactive materials/waste could cause
significant "stigmatizing" impacts to the State's economy. The gaming, hotel, and
\!'aste ltlanagement
Correctiye Actions
Federal Facilitics
Air Qualitv
\tbter Quality Planning
l'acsrmrle ti87-ti39ti
PROTECTION
DOCKETED
USNRC
June 1 1,2OO2 (2:12PM)
OFFICE OF SECRETARY
RULEMAKINGS AND
ADJUDICATIONS STAFF
SERVED June 11 ,2002
recreation sectors in Nevada remain the State's principle employer, generating millions of
dollars in private and public revenues. Just one transportation accident involving a spill
of radioactive materials/waste would have a devastating impact on this key sector of the
State's economy.
Accordingly, we urge the Commission to ensure that a complete risk analysis be
undertaken regarding a federal decision that would result in the shipment of radioactive
sludge from Molycorp's mine at Mountain Pass, California to the White Mesa Uranium
Mill near Blanding, Utah. Such an analysis, moreover, must be undertaken per the
requirements of the National Environmental Policy Act (NEPA). Specifically, we
contend that a set of alternatives be developed to evaluate varying risks to human health
and the environment associated with alternative shipping containers and highway routes
including routes that avoid the Las Vegas Valley.
Thank you for consideration of these comments.
.. Sincerelv(.Uk{p^'X1\
Administrator (\
Governor Kenny Guinn
Vicky Oldenburg, Legal and Policy Analyst, Office of the Governor
Mike Pieper, Director, State Washington D.C. Office
Paul Liebendorfer, Chie[ Bureau of Federal Facilities
Robert R. Loux, NWPO
Allen Tinney, State Health
Frank Siracusa, DEM
Victoria Woodard, Siena Club
UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION
ln the Matter of )
)
INTERNATIONAL URANTUM (USA) ) oocket No.40-8681-MLA-11CoRPoRATION )WHITE MESA URANIUM MILL )
)(Source Material License Amendment) )
CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing LETTER FROM ALLEN BIAGGI TO PRESIDING
OFFICER ALAN ROSENTHAL DATED MAY 31 ,2002 have been serued upon the following
persons by U.S. mail, first class, or through NRC internal distribution.
Office of Commission Appellate Administrative JudgeAdjudication Alan s. Rosenthal, Presiding officer
U.S. Nuclear Begulatory Commission Atomic Safety and Licensing Board Panel
Washington, DC 20555-0001 Mail Stop - T-3 F23
U.S. Nuclear Regulatory Commission
Washington, DC 20555-0001
Administrative Judge Dennis C. Dambly, Esq.
Richard F. Cole, SpecialAssistant Lisa B. Clark, Esq.
Atomic Safety and Licensing Board Panel Office of the General Counsel
Mail Stop - T-3 F23 Mail Stop - O-1S D21
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission
Washington, DC 20555-0001 Washington, DC 20SS5-OOO1
William E. Love Michelle Rehmann
2871 E. Bench Road lnternational Uranium (USA) Corp.
Moab, UT 84532 lndependence Plaza, Suite 9S0
1050 Seventeenth Street
Denver, CO 80265
victoria woodard Judy Treichel, Executive Director
Nuclear Waste Chair, Conseruation Chair Nevada Nuclear Waste Task Force
Sierra Club Glen Canyon Group 4SS0 W. Oakey Blvd., Suite 111
P.O. Box 652 Las Vegas, NV 89102
Escalante, UT 84726
)
Docket No. 40-8681 -MLA-1 1
LETTER FROM ALLEN BIAGGI TO
PRESIDING OFFICER ALAN ROSENTHAL
DATED MAY 31 ,2002
John Weisheit, Chair
Sierra Club Glen Canyon Group
P.O. Box 622
Moab, UT 84532
Tom Rice
P.O. Box 448
Towaoc, CO 81334
Dated at Rockville, Maryland,
this 11h day of June 2002
Anthony J. Thompson, Esq.
Law Offices of Anthony J. Thompson, P.C.
122519h Street, NW, 2nd Floor
Washington, DC 20036
o
Clrv or Moas
115 Wesr 200 Sourn
Moes, Urxn84532-2534
MerN NuunEn (a35) 259-5121
Fex Nur'rsen [phone]
Jwre 4,2002
Administrative Judge AIan S. Rosenthal
Atomic Safety and Licensing Board Panel
Mail Stop T-3 F23
U.S.Nuclear Regulatory Commission
Washington D.C. 20555-01I I
-l'lLA- ll
Mevon:
CouNcrr-:
Devro L. SexnrsoN
Kyr:Bnluy
JerrneyA. Davrs
KrnsrrN PerensoN
Gnecc W Srucru
Ros SwEETEN
DOCKETED
USNRC
June 19,2002(11:21AM)
OFFICE OF SECBETARY
RULEMAKINGS AND
ADJUDICATIONS STAFF
SERVED June 19,2002
Dear Judge Rosenthal:
The City of Moab would like to provide a status report on Intemational Uranium Corporation's
flUC) response to the Crty's request for written emergency response agreements for
transportation ofthe Molycorp material through Moab.
l. City representatives have met with representatives of IUC and the transportation
company for the Motycorp project to discuss efirergency response procedures and
material and transportation-related information.
2. As requestd Ron Hochstein of IUC provided an initial training information session for
Grand County emergency response agencies at our Local Emergency Planning
Conrrnittee Meeting. Further training for on-site response (table-top exercise) is to be
scheduled.
3. We do not yet have a written emergency response agrecment with the transportation
provider for the Molycorp material. We anticipate such an agreenrent and further
agreements with other providers to follow the anticipated table top exercise. Although a
written agreement is not yet in place, the City has found IUC to be responsive to all
requests for information and training.
I hope this information is helpful
Sincerely,\"C#
Donna Metzler L)
City Manager
ADM.LTR424ffiOI
cc: William Love
2871E,. Bench Rd.
Moab, UT 84532
Doug Squires
Grand County Emergency Menagement
125 E. Center St.
Moab, UT 84532
Michelle Rehmann
Intrernational Uranium Corporation
Independen ce Plaza Suite 950
1050 Seventeenth Street
Denver, CO 80265
Mayor and City Council
115 West 200 South
Moab, UT 84532
ADM.LTR42{ffiOI
@{4o '-'
GRAND COTINTY COI]NCIL MEMBERS
Bart Leavitt (Chair). Joette Langianese (Vice Chair). AI Mcleod
Jerry McNeely. Jim Lewis' Susanne Mayberry' Kimberly Schappert
June 13,2002
Administrative Judge Alan Rosenthal
Atomic Safety and Licensing Board Panel
Mail Stop T-3 F23
U.S. Nuclear Regulatory Commission
Washington, D.C. 20555-0111
RE: Docket No. 40-8681-MLA-1 l,ALSBP No. 02-795-02-MLA
Dear Judge Rosenthal:
On behalf of Grand County Council, I am writing this letter as a follow-up to
Mr. Doug Squire's letter dated May 20, 200,2.
As per Mr. Squire's letter, an emergency response plan is in place and the
working relationship between Grand County and lntemational Uranium
Corporation (lUC) has been very open and productive.
We have asked IUC to fumish Grand County with a specific list of the materials
that will be transported from Molycorp. When the transport company is selected,
a copy of the agreement between the emergency clean up contractor and the
transport company will be provided to Grand County. A table-top exercise will be
conducted between the transpod company and the local responders, allof which
IUC has agreed to facilitate.
cc: Michelle Rehmann (lntemational Uranimum Corporation)
William Love
Sincerely,
-B"-+l
'Bart Leavift
Chairman
?ltal
125 E. Center Streef Moab, UT 84532. [phone]. [phone] Fax. [e-mail]
Atomic Atlas Detalls Page I ot J
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Atomic Atlas Project
The Facts:
A person standing one yard away from an unshielded, I0 year old fuel assembly, would
receive a lethal dose of radiation (500 rem) in less than three minutes. A thirty-second
exposure (100 rem) at the same distance, would significantly increase the risk of cancer or
genetic damage.
A scenario involving a high speed impactr long duration fire, and fuel oxidation would
contaminate a 42 square mile area, require 462 days to clean up, and cost $620 million.
Hazardous material releases in a ten year period caused over $300 million in damages, over
4000 minor injuries, over'350 major injuries, and over a staggering 100 deaths.
Detailed Route Descriptions for Utah
Utah will receive 8,179 Total Rail Casks and 6,173 Total Highway Casks over 30 years.
Route Description
70 from Grand
COto Cove
Fort; Interstate-l5 fiom
Fort to Mesquite,
Golleges
Route
Name Waste From
I
rf
Caske
Transport Vla Route Decriptlon
t{t
vlichigan, New
forlq Nebraska,
lonnecticut,
tVisconsirl
Vlinnesota
Vlassachusetts,
Vermont
Highway
tate-8O from
xoo, WYto Salt
CiU; Interstate-I5
Salt Lake Cityto
uite-NV
Sample City l.lospttals Schools Colleges
HI Lake City 168+
Sample City
Route
Name Waste From
t
of
Casks
Transport Via Route Deecrlptlon
AK PA" AL.NC,Pacific Rail Lines
http://www.citizen.orglcmep/atomicatlas/Atlas_l.lDCT/o5BState7o5D-Utah&Arkansas:D... 611812002
frtullllu Atlas lJEtallS ragc /- ot )
Route Descrlption
ion Pacific Raii Lines
from McCammon, ID to
to Salt Lake City
Lynndyl to Caliente,
Colleges
The schools, colleges end hospitels are withln e 20 mile redius of the Semple City.
An * (astricks) indicates that the fecilitieg within less than e five mile radius.
A + (plus sign) indicetcs that more then 2fi) facilites were found within less then a five mile radius.
lnstructions:
1. Below, you can enter your city and state to receive a.1ea maps of local schools, colleges and hospitals.
2. On the map page itself click on "search results" which ie locating on the left side listed under "Yellow Pages" to
get a complete listing of the schools, colleges, or hospitals
3. At the bottom of this page is a link to take action and Btop unnecessary radioactive waste transport.
http://www.citizen.orglcmep/atomicatlaVAtlas_l.IDC?o/o5Bstate%5D=Utah&Arkansas=D... 611812002
RT2
IL, MD, SC, MI,
NE, OH,IAb MS,
GA, WI, ME. CT.
NY, VA, NJ, MN-.
LA, NH, TN,'TX,
,757
from Granger,.WY to
Ogdert to Salt Lake City
to Lynndyl to Caliente,
Sample City Hoepitals Schools Colleges
RT2 Lynndyl I
Route
Name Waste From
E
0f
Caeks
Transport Via Route Descrlprffon
RT3 Illinois t80 Rail
outhem Pacific Rail
ines from Grand
mction, CO to Thistle to
pringville to Provo;
nion Pacific Rail Lines
om Provo to Lynndyl to
aliente. NV
Sample City Hospitals Schools Colleges
T3 River
Sample City
uuur{,rr urzur
efrlaleeCit!
* The numbers on the mqlt indicate Congressional Distrias.
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htp ://www.citi zen. orglcmep/atomicatlas/StatePages/ut.hffn 6fi8t2002
- To Paul Lohaus
1
Paul Lohaus
Jane26,2002
Iune26,2002
Paul Lohaus, Director
Office of Tribal and State Programs
Mail Stop o-3 c10
U.S. Nuclear Regulatory Commission
Washington, D. C. 20555-0001
REQUEST FOR IMMEDIATE ACTION
Dear Mr. Lohaus:
This request pertains to an intent to transfer approximately 17, 000 tons of source
material from the Molycorp, Inc., Mountain Pass, Califomia, facility to the International
Uranium (USA) Corporation (ruSA) White Mesa Uranium Mill near Blanding, Utah
(Docket No. 40-8681). The subject material is lead sludge containing licensable amounts
of thorium-232 and uranium-23S, which is currently located in three processing-waste
containment ponds at Mountain Pass. The material stored in ponds P-24,P-I1, and P-8
was generated from 1967 to 1984.
IUSA has received an amendment to their license to receive and process the
Molycorp lead sludge wastes for the uranium content. IUSA estimates that the average
uranium content is0.l5%o. IUSA's amendment to License No. SUA-1358 is currently the
subject of a proceeding before the Atomic Safety and Licensing Board Panel (Docket No.
40-8681-MLA-11).
The ponded material has never been licensed by the State of California,
Department of Health Services, Radiologic Health Branch (RI{B). Apparently, for the
past couple of years the RIIB has been reviewing an application from Molycorp for a
license for their whole facility at Mountain Pass. Radioactive lanthanide material from
Molycorp's York, Pennsylvania, facility (Docket No. 40-8794) containing up to 0.25
percent source material, has been shipped to Mountain Pass for processing.
The Atomic Energy Act of 1954, as amended, and 10 C.F.R. Part 40 makes clear
that the transfer of source material that is not exempt from regulation under the AEA
cannot occur unless authorized by a source material license. 10 C.R.R. $ 40.3, "License
requirements," states:
A person subject to the regulations in this part may not receive
title to, own, receive, possess, use, transfer, provide for long-term
care, deliver or dispose ofbyproduct material or residual radioactive
material as defined in this part or any source material after removal
from its place of deposit in nature, unless authorized in a specific or
general license issued by the Commission under the regulations in this
2
Paul Lohaus
June26,2002
part.
Molycorp intends to violate this regulation by transferring source material, subject
to the regulations of Part 40, without authorization in a specific source material license
issued by the State of California, as a Nuclear Regulatory Commission (NRC) Agreement
State. Moreover, the decommissioning and decontamination of the ponds is not
occurring under an approved RIIB decommissioning plan, pursuant the requirements of
Part 40. Therefore, the public has never had the opportunity to evaluate the
decommissioning plan that had been developed according to the requirements of the
Atomic Energy Act of 1954, as amended, and compatible State of California regulations.
The Molycorp ponded sludge contains characteristic hazardous waste, pursuant
the Resource Conservation and Recovery Act (RCRA), therefore it is also a low-level
mixed waste.
Additionally, there are other Part 40 regulations that should be complied with.
10 C.R.R. $ 40.51, "Transfer of source or byproduct material states in pertinent part:
(a) No licensee shall transfer source or byproduct material except
as authorized pursuant to this section.
{c**
(c) Before transferring source or byproduct material to a specific
licensee of the Commission or an Agreement State or to a general
licensee who is required to register with the Commission or with an
Agreement State prior to receipt of the source or byproduct material,
the licensee transferring the material shall verify that the
transferee's license authorizes receipt of the type, form, and quantity
of source or byproduct material to be transferred.***
Not only is Molycorp required to have a license to transfer the source material
content of the ponded lead sludge, but the type, form, and quantity of the source material
must be identified in the license. Then Molycorp and the RHB must make a
determination whether IUSA has a license to receive the same type, form, and quantity of
source material that is identified in the Molycorp license. This determination should be
made prior to the transfer of the Molycorp ponded waste, not after. It has been the intent
of Congress since the inception of the Atomic Energy Act or 1954 that licensable
quantities of source material (i.e., material containing uranium and/or thorium of 0.057o
by weight) not be transferred unless authorized under a source material license.
The RHB is aware that Molycorp is not authorized under a specific source
material license to transfer the ponded lead sludge. I have brought this matter to the
attention of the RIIB, but they have not been responsive to my concerns.
- To Paul Lohaus
J
Paul Lohaus
Jlune26,2002
The State of Nevada has requested that the NRC not permit the transfer of the
ponded sludges until a risk analysis of the shipment of the Molycorp wastes be
conducted, pursuant the provisions of the National Environmental Policy Act (NEPA).
They requested that "a set of altemative be developed to evaluate varying risks to human
health and the environment associated with alternative shipping containers and highway
routes including routes that avoid the Las Vegas Valley." See attached letter from Allen
Biaggi, Administrator, Division of Environmental Protection, Department of
Conservation and Natural Resources, State of Nevada.
Therefore, I request the Office of State Programs take immediate action, as
authorized by the Atomic Energy Act, to protect the health and safety of the public and
take regulatory responsibility for the Molycorp wastes out of the hands of the State of
California Radiologic Health Branch. I request that the NRC put an immediate stop to
the transfer of the Molycorp ponded sludges until 1) Molycorp is authorized under a
specific source material license to transfer the material; 2) a determination is made under
$ 40.51, that IUSA is authorized to receive the same type, form, and quantity of source
material as is licensed by Molycorp's source material license, 3) the concerns of the State
of Nevada regarding the transfer of the Molycorp waste are addressed.
Sincerely,
Sarah M. Fields
P.O. Box 143
Moab, Utah84532
Enclosure: As stated
cc: William D.Travers
Carl J. Paperiello
Watson Gin, CA HWMP
Edgar D. Bailey, CA RI{B
Allen Biaggi, NV DEP w/o attachment
cc: (E-mail)
Josie Piccone
Melvin Leach
Linda Mclean, NRC Region IV
Vivian H. Campbell, Region IV
William Maier, NRC Region IV
Frieda Y. Taylor, CA RFIB
SmRnnCrun Glen Canyon GrouPFOUNDED 1E92
' eryWe, aloy ana Protnt tne {ir*t P.O. Box 622,Moab UT 84532
June24,2002
Dianne R. Nielson, Ph.D.
Executive Director
Department of Environmental Quality
State of Utah
P.O. Box 144810
Salt Lake City, Utah 84114-4810
Dear Dr. Nielson:
Thank you for your letter of June 10,2002. We are sending a paper copy of the
Sierra Club's pieadings of June 14,2002,in the proceeding before the Nuclear Regulatory
Commission (NRC1,-Atomic Safety Licensing Board Panel, to William J. Sinclair-
We are sending an e-mail version ofthe pleading to you'
The Sierra Club wishes to bring to your attention an'elror of frct in yotlr June 10
letter. The June l0 states:
In terms of the Supplemental EIS, NRC, as a matter of procedure,
has been providing an Environmental Assessment for each alternative feed
request at the White Mesa Mill.
Unfortunately this is not so. The NRC has !A[ bee-n providing an Environmental
Assessment for each alternative feed request at the White Mesa Milt. The Environmental
Assessment for the recerpt and processing of the lead sludge from the Molycorp, Inc.,
Mountain Pass, California, Acitity was the very first Environmental Assessment that was
conducted by the NRC for a request to process an alternate feed material at the White
Mesa Mill.
From 1993 through 2000 the Technical Evaluation Reports (TERs) acgompanying
the license amendments for the receipt and prccessing of alternate feed material
document the frct that no environmJntal reviews were conducted and the arnendments
were categorically excluded under 10 C.F.R. 5l-22(c[ll).
The list of ul,icense Amendments to Receive Materials Other than Ore at the
International Uranium (USA) Corporation's White Mesa Mitl," Appendix 1 to the Second
Supplement to Sierra CluUs Written PresentatiorU April l4,2}O2,provides information
rrg*ai"g each licensing action related to the receipt and processing of materials other
tnt ot"-ut the White Mesa Mill.
NRC regulations regarding the implementation ofthe National Environmental
policy Acr (NEpA) at 10 CIF.R. it.2t,indicate that licensing actions identified as
$ Sl.zzcategoricai exclusions do not require Environmental Assessments. From 1993 to
iOOO, Sesti; g51.22(c) categorical exclusions were grante{ by the.{Rc.fut-Jif*i"g
actions related to the i"""ip, ind processing of ahernate feed material at the White Mesa
Uranium Mill. Thus, the NRC was not required to develop Envhonmental Assessments
and the NRC did not develoP anY.
Sincerely,
ilrb*-?^M--'-L
Victoria Woodard
Nuclear Waste Chair
Glen Canyon GrouP, Sierra Club
P.O.Box622
Moab, Utah 84532
t/
cc: William J. Sinclair
Loren Morton (e-mail)
o
UNIED STATES OF AMERICA \,,'-\1NUCLEAR REGULATORY COMMISSION '..'. "_\'
ATOMIC SAFETY AND LICENSING BOARD PANEL
Before Administrati ve Judges:
Alan S. Rosenthal, Presiding Officer
Dr. Richard Cole, Special Assistant
IN THE MATTER OF:
INTERNATIONAL URAMUM (USA)
CORPORATION
(Source Material License Amendment
License No. SUA-1358)
Docket No. 40-868 I -MLA- I I
ASLBP NO. 02.795-02-MLA
lune l4,2OO2
PART II
SIERRA CLUB REPLY TO NRC STAFF'S
MAy 2O,?MRESPONSE TO WRTTTEN PRESENTATIONS FILED BY
INTBRVENORS SIERRA CLUB AND WILLIAM LOVB
I. INTRODUCTION
The U.S. Nuclear Regulatory Commission ('NRC') Stafffiled their May 20,
2W\ NRC Saff's Response To Written Presentations Filed By Intervenors Sierra Club
And William [-ove ("NRC Staffs May 20 Responsen). International Uranium (USA)
Corporation (nIUSAn or'Licensee") also filed a May 20, 20[i2, Response of International
Uranium (USA) Corporation To Written hesentations of Mr. William E. [-ove and the
Glen Canyon Group of the Sierra Club ('IUSA's May 20 Resporrse").
2
NRC Staffls and IUSA's May 20 Responses were in response to Petitioner Sierra
Club's l0 C.F.R. g 2.1233 Written Presentation Requesting Suspension, Modification, Or
Revocation Of Amendment 20 To License SUA-I358 of April 1,2N2, as supplemented
on April 10, 14 and 15, 2OO2 and Petitioner William E. [.ove's l0 CFR 2.1233 Written
Presentation for Suspension and or Revocation of Amendment 20 to License SUA-1358
and License SUA-1358, April 1,2002.
The Presiding Officer, upon receipt of IUSA's and NRC Staffs May 2O filings,
issued a Memorandum and Order (Authorizing Additional Hlings), dated May 21,2W2.
The Presiding OfFrcer granted permission to the Sierra Club and other parties to the
present proceeding to file replies to IUSA's and NRC Staffls May 20 Responses, on or
before June 14 ?N2. The following is responsive to that allowance. Sierra Club's Reply
to the IUSA's May 2O Response will be presented in a separate document of this date as
Part I. Sierra Club's Reply to the NRC StaffMay 2O Response will be presented in this
document as Part II.
For some inexplicable reason the NRC Staff, in its May 20 Response, does not
refer to any particular date, page, or section of Siera Club's April I written presentation,
as supplemented on April 10, 14, and 15, 2W2.
II. ISSUANCE OF TIIE AMENDMENT
A. NRC Regulation
NRC Staff introduces their background discussion with the following statement:
The amendment at issue permits IUSA to receive and process at the Mill
material from the Molycorp facility as alternate feed material under Fart
4O of the NRC's regulations. . . . The license amendment was granted
pursuant to Part 4O of the Commission's regulations, which provide the
provisions for "the issuance of licenses to receive title to, receive, possess,
use, transfer, or deliver source and byproduct materials, as defined in this
pa4 and establish and provide for the terms and conditions upon which
the Commission wil! issue such licenses." l0 C.F.R. $ 40.1. The term
"byproduct material" is defined as" . . . the tailings or wastes produced by
the extraction or concentration of uranium or thorium from any ore
processed primarily for its source material contenL . . and the term "source
material" is defined to mean "(l) uranium or thorium, or any combination
thereof, in any physical or chemical form or (2) ores which contain by
weight one-twentieth of one percent (O.05Vo) or more of: (I) uranium, (ii)
thorium or (iii) any combination thereof. . . ." l0 C.F. R. $ 40.t4l.
[Footnotes omitted.]
NRC StaffMay 20 Response at 6.
Here the NRC Staff does not indicate where within l0 C.F.R. Part 4O the NRC is
authorized to permit the receipt and processing of various wastes from mineral extraction
operations at licensed uranium recovery facilities, such as the White Mesa Mill, and
dispose of the resulting wastes as I le.(2) byproduct material. NRC quotes the definition
of "source materialn but does not say why the Molycorp material would meet one or the
other statutory or regulatory definitions of source material that were established pursuant
the Atomic Energy Act of 1954 and AEC regulation in 1961.
The NRC Staff does not reveal, when considering the definition of source
material ore in 42 U.S.C. Sec. 2014(z)(2) and I0 C.F.R. S4O.4, that neither Congress, nor
the AEC, contemplated the inclusion of the wastes from various mineral extraction
operations (including commingled contaminated materials and wastes from other
sources) in their use of the word nore.n As discussed in Part I of this June 14 filing at 4 to
13, the clear intent of Congress in 1946, 1954, and 1978, was that the word nore" only
means "a naturally occurring solid material from which metal or other valuable minerals
may be extracted."
4
The enabling legislation did not in any manner contemplate the processing of the
wastes from various mineral extraction operations (including various commingled
contaminated materials and wastes from other sources) at uranium recovery facilities.
The use of the term "oren for wastes from other mineral processing operations that
are proposed to be processed in a uranium mill flies in the face of the clear intent of
Congress when it passed the Atomic Energy Act of l954,and the clear intent of the AEC
when it established the definition of nsource material."
Therefore, there is no statutory or regulatory authorization that would allow the
processing of the Molycorp material nunder Part 4O of the NRC's Regulations,* and
deposit of the resultant tailings as I le.(2) byproduct material in the tailings
impoundment, because the Molycorp material is not noren and the wastes pncduced from
the processing of the Molycorp material is not lle.(Z) byproduct material.
Contrary to NRC Staffs assertion, the issuance of the amendment permitting the
processing of Molycorp material was net proper and not within the NRC's jurisdiction as
set forth in the Atomic Energy Act of 1954, as amended, and NRC regulation.
B. RCRA Authority
NRC saffputs forttr an explanation as to why the Molycorp material would not
fall within RCRA jurisdiction:
RCRA is an environmental statute under which EPA is granted
authority to regulate solid and hazardous wastes. RCRA includes two
major parts. One deals with non-hazardous solid waste management and
the other with hazardous waste managemenl Because the term
"hazardous waste" is defined as a subset of *solid waste," 42 U.S.C.
$ 6903(5), the scope of EPA's jurisdiction is limited to materials that
constitute *solid waste." Thus, materials that are not solid wastes are not
regulated as hazardous wastes under RCRA.
By definition, RCRA provides that "source, special nuclear or
byproduct material as defined by the Atomic Energy Act of 1954, as
amended" is excluded from the definition of "solid waste." 42. U.S.C.
$ 6903(27). As noted above, the term "source material" means ores that
contain uranium and/or thorium. The term 'bre" means matter from
which source material is extracted in a licensed uranium or thorium mill.
Therefore, the alternate feed material subject to this amendment which
contains uranium in a concentration of O.l5% and which will be extracted
at the mill, is not subject to EPA jurisdiction under RCRA. lFootnotes
omitted.l
NRC Staff May 2O Response at 7.
NRC StafPs assertion and reasoning is without merit
Congress in passing the Resource Conservation and Recovery Act of 1976
('RCRA'), which provided that source, special nuclear or byproduct material as defined
by the Atomic Energy Act ("AEA') of 1954, as amended be excluded from the definition
of nsolid waste,n contemplated the definition of 'source materialn and the definition of
"byproduct materialn as they appear in the AEA. These definitions have not been
amended, and cannot be amended by either an NRC policy guidance or an NRC Staff
licensing action.
As thoroughly discussed by Petitioner in Part I, Congress when passing the AEA
of 1954, only intended that the term "ore" meant nore.' There is no evidence whatsoever
that Congress meant the term noren to mean "non-natural ore,n oalternate feed material,"
"materials other than natural ore,n or nany matter from which source material is extracted
in a licensed uranium or thorium mill." There is nothing that would lead a reasonable
person to conclude that the Atomic Energy Commission ('AEC'), when establishing the
6
definitions and limitations on the definitions of nsource material" meant the term "ore" to
mean or include anything that was not "ore."
NRC's 1995 Hnal nPosition and Guidance on the Use of Uranium Mill Feed
Materials Other than Natural Ore,n ('Final Position and Guidancen) in creating a
definition for nmaterials other than natural oren (i.e., defining them as noren) never stated
or implied that that definition extended to the statutory and regulatory definition of
"source material.n Hearing File 10, Attachment C and M. For the Commission to claim
that non-natural materials (such as the Molycorp material) are nore,n as contemplated by
the 1954 statute (42 U.S.C. ?-Ol(z)Q)), is tantamount to giving the Commission the
power to override the clear intent of Congress. The Molycorp material is not "oren in
accordance with the statutory and rcgulatory definition of nsource material." Therefore,
because only the thorium and/or uranium content of the Molycorp material are 'source
material,n the balance of the Molycorp material is solid waste and subject to regulation
under RCRA. This issue is more thoroughly addressed below at 14to2l.
N. AUTHORIZATION OF IUSA TO RECEIYE THORIT]M
A. 10 C.F.R. S$ 4{)51 and 40.3.
The NRC Staff attempts to explain why the Licensee is authorized to receive the
Molycorp wastes. The NRC Staff states:
Section 4O.51 of the Commission's regulations concerns the transfer of
source material. Specifically, it provides in subpart (a) that no licensee
shall fansfer source or byproduct material except as authorized by that
regulation. Further, subpart OX5) provides that, except as otherwise
provided in his license, any licensee may transfer source or byproduct
material to any person authorized to receive such source or byprcduct
material under terms of a specific license or a general license issued by the
Commission.
NRC StafPs May 20 Response at9 to 10.
Here NRC Staffs assertion is without bases.
First of all, the NRC regulations state that no licensee shall transfer source or
byproduct material except as authorized by Section 40.51. Additionally, l0 C.F.R.$ 210.3
states:
Sec. 4O.3 License requirements.
A person subject to the regulations in this part may not receive
title to, own, rcceive, possess, use, transfer, provide for long-term
care, deliver or dispose of byproduct material or rcsidual radioactive
material as defined in this part or any source material after removal
from its place of deposit in nature, unless authorized in a specific or
general license issued by the Commission under the regulations in this
part
Second, l0 C.F.R a0.5l(c) requires that:
(c) Before transfening source or byproduct material to a specific licensee
of the Commission or an Agreement State or to a general licensee who is
required to register with the Commission or with an Agreement State prior
to receipt of the source or byproduct material, the licensee transferring the
material shall verify that the transferee's license authorizes receipt of the
type, form, and quantity of source or byproduct material to be transferred
According to l0 C.F.R. Part 40, two things must happen before source material,
that is not exempted from the regulatory requirements of Part 4O can be transferred.
First, the person transferring the source material must have a source material license that
authorizes the licensee to possess and transfer the grpe, form, and quantity of the subject
source material. Second, the transferee must have a license that authorizes the licensee to
receive and possess the same Qrpe, form, and quantity of the subject source material.
At this time there is no indication in IUSA's application, or in any of the
documents submitted by IUSA or the NRC within this proceeding, that Molycorp is in
fact licensed to possess and transfer the bulk of the source material at issue in the present
proceeding (i.e., the source material stored in the three sludge ponds at the Molycorp
facility. IUSA submitted a copy of Molycorp's license for the drummed material in their
October lT,z00l,application. Hearing File 9, Attachment 2. However, they have not
submitted a similar license for the ponded material. In fact, according to the Radiologic
Health Branch ('RHB"), of the Department of Hedth, of the State of California, the three
sludge ponds do nof as yet, fall under a RHB source material license. The State of
California as an NRC Agreement State, is authorized to issue source material licenses
and the ponded material falls under the regulations of l0 C.F.R. Part 40 or equivalent
State of California regulation as licensable nsource material.'
Additionally, as discussed in Part I of this June 14 filing, at 36 to 39, IUSA, as
required by Section 40.51, has not requested, nor has it received, a license amendment
that permits them to receive the same type, form, and quantity of all the source material
that Molycorp is licensed to possess (i.e., the source material uranium and thorium in the
drummed material). ruSA has not applied for or received authorization to receive the
amount, source, and kind of all of the source material in the ponded Molycorp material
that is subject to regulation under 10 C.F.R. Part 40. In fact, the form and quantity of
source material thorium (and uranium) that is contained in the ponded sludge has not
been specifically established. The type, form, and quantity of source material that a
licensee (e.g.,IUSA and Molycorp) is authorized to receive, possess, and transfer is set
forth in each specific source material license in License Conditions 6,7, and 8.
As Sierra Club alleged in the April l,zW2,Written hesentation, and has shown
here and in Part I of this June 14 filing at 36 to 39, the requirements of l0 C.F.R. S 4O.51
for the transfer of source material, have not been met with respect the transfer of the
Molycorp material to the White Mesa Mill. Therefore the transfer of the Molycorp
material, as currently contemplated, would take place without proper authorization and is
contrary to NRC regulafion and the law.
B. NRC Regulatory Authority
Within their discussion of the transfer of source material, the NRC Staff brings
forth information that clearly illustrates that the legal and regulatory confusion that
pervades the licensing action at issue in the present proceeding. The NRC states:
As discussed above, the license issued for the mill contemplated
the processing of ores originating from independent mines, or natural ore.
Sierra CIub is correct that the general license issued to IUSA does not
authorize the mill to receive and process the Molycorp material. That is
the reason that IUSA was required to obtain an amendment to receive
alternate feed material, and the reason for this hearing. Only after the
NRC has reviewed and approved the amendment does IUSA have
authorization to take receipt of and process material from the Molycorp
site.
It is clear that the NRC can authorize the mill to receive and
process materials that contain thorium. l0 C.F.R. $ 40.1 provides that the
purpose of the regulations in Part 4O is to establish the criteria for the
issuance of licenses regarding source materials. Source material is in turn
defined in l0 C.F.R. $ 4O.4 as "uranium or thorium, or any combination
thereof, in any physical or chemical form." Sierra Club's claim that the
Staff improperly allowed a uranium mill to accept material containing
thorium must therefore be rejected.
NRC Staffs May 20 Response at l0
As discussed in Part I of this June 14 filing, the AEA of l954and l0 C.F.R. Part
4O, provides two definitions of 'source material.n The first definition applies to just the
source material content of the subject material. The second definition, which applies
only to ore that contains O.ASVo uranium and/or thorium, applies to all the material, not
just the radiological contenl Further, l0 C.F.R. $ 40.13 establishes unimportant
quantities of source material. Section 4O.13(a) says that source material under the first
l0
definition that is less than O.OSVo by weight is exempt from Part 4O regulations. Section
40.13(b) says that any ore containing source material, whether or not it meets the
definition of source material (i.e., contains uranium and/or thorium of O.O57o by weight)
is exempt from regulation under Part 40.
However, as NRC clearly indicates, and which is borne out by the numerous
license amendments to tUSA's source material license, the receipg possession, and use of
the source material that is contained in the various processing wastes (so-called nalternate
feed material') requires authorization by the NRC. If the Molycorp material and other
"alternate feed materialsn were in fact "oren (as contemplated by 42 U.S. C. Section
2U {z)(2), the l0 C.F. R. $ 4O.4 definition of nsource material," and the l0 C.F.R.
40.13(b) exemption of source material ore) there would be no need for the Licensee to
seek permission from the NRC to receive these materials. Additionally, if the Molycorp
material were in fact "oreo( as contemplated by the same statute and regulations) then it
would not need to be regulated by the State of California. Such is not the case in either of
these situations.
III. TIIE DEFIMIION OF TI{E TERM'ORE'' AND THE MOLYCORP
MATBRIAL
A. Meeting the Definition of "Ore"
l. NRC Staff, apparently in response to assertions put forth in the April l4Second
Supplement to Sierra Club's Written Presentation, at 4 to 5 and 27 to 30, discusses how
the Molycorp lead sludge meets the definition of nore.'
ll
NRC Staff states:
The Sierra Club argues that the Molycorp material cannot meet the
definition of "ore." Furthermore, they claim that the NRC's guidance on
the definition of "ore" is unreasonable and inconsistent with the definition
of I le(2) source material. [Emphasis added.l
NRC Staffs May 20 Response at 10.
This is a confusing statement, because there is no such thing as a "definition of
lle.(Z) source material." In l0 C.F.R. $4O.4 there is a definition of '[11e.(2)l byproduct
material" and a definition of 'source material.' Although these definitions are certainly
related, there is no definition of ul le.(Z) source material.n
NRC Staff states further:
As explained above, ore is defined tobe eitlur natural or native
matter that may be mined and treated for the extraction of any of its
constituents or any other mafier from which source material is exfracted in
a licensed uranium orthorium mill. The Molycorp material, which as
Mr. I-ove notes has already been processed, fits the latter part of this
definition. [Emphasis added.l
NRC Staffls May 20 Response at 10 to I l.
Here NRC Staffindicates the definition of noren as established in NRC policy
guidance. Hearing Hle 10, Attachments C, D, and M. In reality this is a new definition
of "feed materials other than natural ores.n NRC is claiming that'feed materials other
than natural ores' are *ore.n This definition is not found in NRC regulation or the
Atomic Energy Act of 1954, as amended. As discussed in Part I of this June 14 filing at
4 to 19, there is no statutory or regrilatory basis for this new definition and it directly
conflicts with the statutory authority of the Environmental Protection Agency ("EPA*).
t2
The NRC Staffthen concludes that, as Mr. [.ove notes, the Molycorp material has
already been processed, and therefore fits the latter part of this definition.
Here the facts would confiadict this assertion. First of all, as plainly put forth by
IUSA's application, and documented by Mr. [-ove, the Molycorp material that IUSA
proposes to receive, process, and dispose of consists of wastes from a mineral extraction
operation at the Molycorp facility, Mountain Pass, California. See Hearing File at 8 to 14
and Petitioner William Love's April 1 Written Presentation, Attachment M.
In other words, the Molycorp material is material that has already been processed
at Molycorp's Mountain Pass facility. However, that material was not processed at the
Molycorp facility for either its uranium or thorium content (i.e., source material content).
The Molycorp facility is not a licensed uranium or thorium mill. Therefore, no
processing has aken place at the Molycorp facility that would fit the Molycorp material
into NRCs Final Position and Guidanc second definition of nore.n Therefore, the wastes
from the processing that took place at the Molycorp facility would not meet the statutory
definition of 'l le.(2) byproduct material."
Further, the Molycorp wastes have not been processed at the White Mesa facility.
Therefore no processing has taken place at the White Mesa Mill that would fit the
Molycorp material into NRC's second definition of nore."
2. NRC's second definition of noren states that oore" is 'any other matter from
which source material is exhacted in a licensed uranium or thorium mill.' Until "source
material' is exhacted from the Molycorp material in a licensed uranium or thorium mill,
the Molycorp material cannot meet the NRC policy guidance's second definition of nore."
l3
At that point, according to the NRC, the material then becomes I le.(2)byproduct
material.
As asserted by Petitioner in the Wriuen hesentation, NRC Staffs new definition
of "oren is a retroactive definition. According to NRC guidance, the "new" definition of
nore,n cannot be applied to the material @I to processing at a uranium or thorium mill,
because that material would not meet the definition prior to processing. In fact, until the
material is actually processed, there is no legal guarantee that the processing will take
place. April 14 Second Supplement to Sierra Club's Written hesentation at 4 to 5 and.21
to 30.
According to NRC guidance, once the material is processed for its source material
content it then becomes noren no matter what statutory and regulatory definition that
material met prior to such processing, for example, as 'mixed-waste.n Such a definition,
based only upon agency guidance, cannot be used to retroactively shift a waste material
from one regulatory regime to another, as is proposed by IUSA and the NRC in the
Molycorp licensing action.
B. Germaneness
NRC Staff claims that the questions related to NRC Staffs definition of "ore" are
not germane to the prcsent proceeding. NRC Staff states:
While the Sierra Club takes issue with this definition, and the guidance
that implements it, this is not an appropriate matter to be considered in this
hearing. The only issues appropriate for consideration here are those that
relate specifically to the amendment authorizing the mill to receive and
process Molycorp material. NRC policy and guidance on alternate feed
processing in uranium mills in general are not an appropriate subject for
review in this license amendment proceeding.
l4
NRC's May 20 Response at l0 to I l.
The NRC Staffs assertion is without basis. NRC Staff gives no compelling
reason as to why NRC policy and guidance on alternate feed processing are not an
appropriate subject for the present proceeding. The NRC policy guidance, used by the
NRC Staff in their review of the amendment at issue in the present proceeding and as set
forth in the November 2000Interim Position and Guidance is not an NRC regulation, nor
is such guidance based upon any specific statutory mandate. Hearing File l0 at D. The
Interim Position and Guidance was never put before the public in a notice and comment
proceeding,let alone in a rulemaking proceeding. Therefore, this proceeding seems to be
the qdy forum in which the public can provide comments on the guidance.
The September 1995 Enal Position and Guidance was put before the public in a
notice and comment proceeding, but not in a rulemaking proceeding. Hearing Hle l0 at
C and M. Petitioner, in challenging these guidances, is not challenging NRC regulation.
The question of the NRC Staff use of and interpretation of the Interim Guidance
was the subject of a lengthy legal brief submitted by the Counsel for IUSA as a
supplement to the original amendment request at issue in the present proceeding.
Hearing File at 10. The Interim Position and Guidance and the Final Position and
Guidance relate directly and specifically to the license amendment at issue in the present
proceeding. Additionally, the question of whether a waste material after processing at the
White Mesa Mill meets the statutory definition of I le.(2) byproduct material was the
subject of a proceeding (Docket No. 4O-8681-MLA-4).
o
Thus any issues related to the nalternate feed" guidances are gerrnane to the
present proceeding and are appropriate issues to be considered within present proceeding.
IV. TrrE MOLYCORP MATERIAL AND TrrE QUESTION OF HAZARDOUS
WASTE IJNDER RCRA OR MD(ED WASTE
A. NRC Staffpresents an argument as to why the Molycorp material, by
definition, cannot be considered a hazardous or mixed waste under RCRA. NRC StafPs
argument is erroneous and without merit in a couple of respects. Unfortunately, the NRC
Staff did not provide, in either the Environmental Assessment ("EA*) (Hearing File 6),
the Technical Evaluation Report ("TER') (Hearing File 4), or the May 20 Response, a
straightforward explanation of the regulatory convolutions involved in such a
determination.
NRC Staff states:
In a situation such as this, where the licensee shows that the material
subject to the amendment request is source material and therefore exempt
from RCRA this issue is indeed resolved since it cannot contain hazardous
waste within the meaning of that statute. Therefore, the guidance is in fact
consistent with the Staffs determination that the Molycorp material does
not contain hazardous waste.
As explained above, RCRA jurisdiction only extends to solid wastes and,
by definition, source and byproduct material is not considered solid waste
under RCRA. Thus, regulations of source material lies solely with the
NRC. Because souroe material, such as the Molycorp material, is not
hazardous waste under RCRA, it cannot be considered "mixed waste."
Mr. [-ove's claim that it must be considered low level waste because it
contains a listed hazardous waste under RCRA also fails.
NRC StaffMay 20 Response at I l.
l5
o
NRC Statr, essentially, concludes that because source material, such as the
Molycorp material, is not a solid waste, and therefore cannot be considered a hazardous
waste, it cannot be considered a nmixed waste.n
First, the NRC Staff misconstrues, or fails to adequately explain, the RCRA solid
waste exclusions as setforth in 40 C.F.R. $ 261. (aXa). Section 261.4, states in pertinent
part:
(a) Muerials which are not solid wastes. The following materials are not
solid wastes for the purpose of this part:**.r(
(4) Source, special nuclear or byproduct material as defined by the Atomic
Energy Act of 1954, as amended,42 U.S.C. 201I et seq.
This regulation, as it relates to the subject at hand, means that only the source
material content (as defined by the AEA) of a particular material is exempted from
regulation from RCRA. However, NRC Staff states that any source material is totally
exempt from RCRA regulation. This is just not the case. The source material portion of
a solid waste is exemptfrom RCRA and subject to NRC or NRC Agreement State
Regulation, but that portion of the material that is not source material may be a solid
waste and, thus, may be a hazardous waste. If a portion of material contains source
material and another portion is a solid waste with either listed or characteristic hazardous
waste, the material is considered to be "mixed waste.n Thereforc, if a material is just
"source material,'as NRC claims the Molycorp material to be, then there is the
possibility that the material could be a "mixed waste."
The exemption in 4O C.F.R. $ 261.a{aXa), does not necessarily exempt all of the
material from the 'solid waste" definition. It all depends on what kind of nsource
l6
t7
material" you are talking abouL The $ 261. {d@) exemption refercnces the definition of
"source material" as set forth in the AEA of 1954, as amended. That statutory definition
puts forth two definitions of nsource material.' One definition, at 42 U.S.C. Sec.
20l4{z)(l), refers only to the radiological component (i.e., uranium and/or thorium) of a
material. The other definition, at 42 U.S.C. Sec. 2014(zXl), refers to ore that contains a
certain percentage of uranium and/or thorium.
Therefore, if a material is $ 2014(z)(l) source material, then only the uranium
and/or thorium content of that material would fall within the definition of source material,
and thus would be exempt from RCRA, because the radiological content would not be
considered a nsolid waste.n However, the balance of the material would be considered
solid waste and be subject to RCRA.
However, if a material is $ 2014(z)(2) source material, then all of the material is
considered to be nsource material,n not just the radiological contenl Therefore, since all
of the material meets the Sec. 2O1,4{z)(2) statutory definition of source material, then all
of the material, not just the radiological componenf would be exempted under RCRA.
Therefore, whether or not all of a material (that is considered to be "source
material") is exempt under RCRA depends upon which statutory definition of "source
materialn is being used. NRC's explanation as to why the Molycorp material is exempted
under RCRA does not consider this aspect of such a nsource material' exemption.
This is explained rather thoroughly in the EPA 'Guidance on the Definition and
Identification of Commercial Mixed l,ow-Level Radioactive and Hazardous Wasten
l8
developed by the NRC and the EPA. Petitioner William Love's April I Written
Presentation, Affachment O. The EPA/NRC Guidance states:
Except for certain ores containing source material, which are defined as
source material in l0 CFR 4O.4(h), and uranium and thorium mill tailings
or wastes, NRC and EPA inrcrpret the definitions of source, special
nuclear, and byproduct materials to include only the radioactive elements
themselves.
ld. atZ.
Therefore, if the whole of the Molycorp material is to be exempted from
regulation under RCRA, as IUSA and NRC Staffpropose, then the Molycorp lead sludge
must meet the Sec. 2O14(zX2) statutory definition of nsource material.' NRC Staff in the
Environmental Assessment and the Technical Evaluation Report (Hearing File 6 at 7 and
Hearing File 5, TER, at 4) and IUSA, in their August 15, 2(X)I, supplement to their
application (Hearing Hle l0) claim that the Molycorp is nsource material ore." In other
words, NRC claims that the Molycorp material is "source material" according to the
statutory definition contained in the Atomic Energy Act of 1954, as codified in 42 U.S.C.
Sec. 2014(zX2) and as set forth in 10 C.F.R. $ 4O.4, and exempted from regulation in
$ 40.13(b) (26 Fed. Reg. 284, January 14,1961.
This is the first time that Petitioner is aware of, that the NRC Staff has claimed
that a waste material from another mineral extraction operation that IUSA proposed to
process at the White Mesa Mill is indeed, nsource material ore.' This is the first time that
NRC Staff, by the use of their policy guidance's nnew' definition of the word notp" (i.e.,
noren is nany other matter from which source material is extracted in a licensed uranium
or thorium mill"), claims that the new definition of noren also applies to the statutory and
l9
regulatory definition of nsource materialn and by implication to another federal agency's
statutory authority.
This is the first time that the NRC Staff has used the new policy guidance
definition of the word 'ore" to slip a 'source materialn that might be considered a nmixed
waste' out from under the rcgulatory authority of the Resource Conservation and
Recovery Act In other words, the NRC is claiming that, based on a policy guidance that
has no statutory or regulatory basis, they can override an EPA regulation that is based
upon the statutory authority of RCRA.
This subterfuge is not authorized by law. Petitioner requests that the Presiding
Officer call a haltto this illegal activity on the part of the NRC.
B. Through a single licensing action, the NRC Staffis actually amending the
Atomic Energy Act's definition of "source material.n
There are a few considerations related to this new turn of events. First is a
question of timing. NRC Staff documents the fact that the State of California considers
the Molycorp material (pits and drummed material) to be "source material," which is not
surprising because the drummed material is licensed by a source material license and
both the lead sludge ponds and the drummed material contain thorium and uranium.
NRC May 20 Response, Affidavit of William von Till at 3. But, the Sate of California
was not asked if the Molycorp material is nore.n The Molycorp material fits the
Sec.20l4(zXl) definition of 'jsource materialn because of its uranium and thorium
content and is licensed, or an application has been submined for a license.
20
How has it happened that a waste material, some of which is still sitting in lead
sludge ponds in Mountain Pass, that fits the first definition of source material has been
turned (according to the NRC and IUSA) into the material that fits the second definition
of source material by becoming nsource material ore?n When did that transformation
occur?
NRC Staffdoes not explain when. NRC Staffjust issued authorization for IUSA
to receive and process the Molycorp material and stated that the Molycorp material was
"source material oren and because it was nsource materid oren no longer met the
definition of 'solid wasten under RCRA. Hearing File 4.
Moreover, as put forth in Part I of this June 14 filing at 4 to 29, the NRC policy
guidance's second definition of noren is not contemplated by, or sanctioned by the Atomic
Energy Act of lgil,as amended or by the regulations promulgated by the NRC and the
EPA. Such a definition is without statutory or regulatory backbone. It directly
contravenes the clear intent of Congress when Congress passed the Atomic Energy Act of
1954 and the Uranium Mill Tailings Radiation Control Act of 1978. It directly
contravenes the AEC's and NRC's definition of nsource material" (10 C.F.R. $4O.4) and
the pertinent exemptions to the regulation of nsource material' (10 C.F.R.4O.l3(a) and
(b)). These regulatory definitions and exemptions have been non the books'for over
forty years and the AEC and the NRC have been implementing these regulations for over
forty years.
Petitioner finds no evidence that at any time when making determinations with
respect either the AEC's or the NRC's regulatory responsibility over nsource material"
2l
(pursuant $$ 4O.4 and 40.13), that either of these agencies imagined that the wastes from
other mineral processing operations fit their Section 2O1H{z)(2) definition of "source
material ore."
For the NRC to use its definition of 'ore" to subvert the use of the term "ore" in
the statutory definition of osource materialn amounts to giving the NRC Staff the
authority and the power to override the clear will of Congtess. This action by the NRC
Staff does not fatl within the discretionary functions of the NRC. Therefore, this action
and the license amendment that it authorized must be suspended or revoked.
C. NRC Staffs May 20 Response includes a March 2l letterfrom the State of
Utah to Victoria Woodard of the Glen Canyon Group of the Sierra Club as Attachment A.
That letter provides a completely different justification as to why the Molycorp
material does not meet the definition of a solid waste. It is unclear whether the NRC
Staff agrees or disagrees with the rather vague reasoning exhibited by the letter.
V. SIGNIT{CAIYT I{EW CIRCT]MSTANCES
A. 1980 Generic Environmental Impact Statement for Uranium Milling
NRC Staff discuses the 1980 GEIS:
Subsequently, in September, 1980, the NRC issued the Final Generic
Environmental Impact Statement on Uranium Milling (GEIS). See
NUREG-0706. In preparing this GEIS, the Staffevaluated a wide range
of issues, with the primary purpose of the Statement being "[t]o assess the
nature and extent of the environmental impacts of conventional uranium
milling in the United States from local, regional, and national perspectives
on both short- and long-term bases, to determine what regulatory actions
are needed..." NUREG{706, pg. 2. This GEIS provided the NRC with
an opportunity to examine, in detail, the generic environmental issues
associated with uranium milling.
22
NRC Staffs May 20 Response at 12 to 13.
As discussed in Part I of this June 14 filing at l6 to 19, the GEIS did not assess in
any manner any of the environmental impacts related to the processing of wastes from
other mineral processing operations (including commingled contaminated soils and
wastes from othersources) at licensed uranium or thorium mills. Nor did the NRC, in
developing the GEIS, consider such wastes to be nore.n The GEIS did not assess the
environmental impacts of using uranium mills as 'recycling/disposal sites'r for such
wastes. The wastes from other mineral extraction operations are different from uranium
ore in their physical, chemical, and radiological characteristics. The transportation routes
and methods used to hansport such wastes to mill sites are different from those evaluated
in the GEIS for uranium ore. The reasonable alternatives to processing such wastes at
uranium mills are completely different from those assessed in the GEIS.
Therefore the 1980 GEIS did not provided the NRC with an opportunity to
examine, in any manner, the generic environmental issues associated with the milling of
wastes at uranium or thorium processing facilities. The GEIS does not provide any bases
for any environmental determinations related to the processing and disposal of the
Molycorp material.
I Comments by International Uranium (USA) Corporation on 66 Fed. Reg. 55604
(November 23,2[1),Mining Association petition for rulemaking (January 16,2W2),
Appendix 8.
23
B The 1979 Environmental Statement for the White Mesa Mill and Other
Environmental Assessments
The NRC Staff refers to the May 1979 Environmental Statement ('FES") related
to Operation of White Mesa Uranium Projectforthe White Mesa Mill (Hearing File l9),
the 1985 Environmental Assessment Prepared by the Uranium Recovery Field Offrce in
Consideration of the Renewal Source Material License SUA-1358 (Hearing File l8), the
February 1997 Environmental Assessment for the Renewal of Source Material License
No. SUA-1358 (Hearing File 16 and l7), and the February 2000 Environmental
Assessment for the Approval of the hoposed Reclamation Plan (Hearing File l5). NRC
Staffthen concludes:
Consequently, the White Mesa mill has undergone several environmental
reviews which evaluated the potential environmental impacts associated
with its operation.
NRC's May 2O Response at 13.
Upon reviewing those environmental reviews, Petitioner can find no evidence that
the NRC ever reviewed, either vaguely or with specificity and particularity, the unique
environmental impacts associated with the processing of wastes from other mineral
processing operations (including commingled contaminated soils and wastes from other
sources) at the White Mesa Mitl. Petitioner can find no evidence that the NRC ever
reviewed the unique environmental impacts associated with the use of the White Mesa
Mill as a 'recycling/disposal' facility for nother types of generators.' This new and
significantly different operational program at the White Mesa Mill, of which the
24
processing of the Molycorp material is just one increment, has never been addressed in
either a generic or site-specific Environmental Impact Statement
The NRC has improperly segmented this individual licensing action from a full
NEPA consideration of the new regulatory program currently being conducted at the
White Mesa Mill.
C. Non-Natural Ore
NRC Staff agrees with the Petitioner that tlre processing of so-called nalternate
feed" was not considered in the original license issuance. The NRC Staff also brings in
the idea of nnon-natural ore.n The NRC Staff states:
The licensee was required to seek amendment of its source material
license because alternate feed material is non-natural ore and therefore,
was not a material identified in White Mesa's original source material
license. Bmphasis added.l
NRC's May 20 Response at 13.
As shown in Part I of this June 14 filing at 6, noren is a natural or native material.
There is no such thing as a type of ore that is "non-natural ore." If a material is "non-
naturaln it is not "ore."
lf "alternate feed material' is a "non-natural ore,n what exactly is the process that
turns this non-natural material into a material that, by common definition and usage, is a
natural or native material?" The NRC Staff does not satisfactorily explain this process.
The NRC Staffis improperly taking liberties with the English language, not to
mention federal laws and regulations.
As shown above, neither the Atomic Energ5r Act of l%, as amended in 1954 and
I9?8, nor the AEC, NRC and the EPA in promulgating regulations responsive to those
25
Acts, ever considered 'non-natural oren (i.e. wastes from other mineral extraction
operations, such as the Molycorp wastes) to be "ore.' These entities did not consider the
processing of such wastes as part of the nuranium fuel+yclen program that they were
attempting to regulate.
NRC Staffls new definition of the term noren is unreasonable, arbitrary, and
without a factual, historical, or legal basis. Therefore, any licensing action based on the
use of this new definition is unreasonable, arbitrary, and without a factual, historical, or
legal basis and should not be condoned by the Presiding Officer-
VI. SPECIFIC CLAIMS BY INTERVENORS
A. Supplementof the Originat FES
The NRC SAff argues that the Petitioner errs in asserting that a supplement to the
original FES is required in accordance with l0 C.F.R. $51.92{a). The NRC Staff states:
The purpose of the original 1979 FES pertaining to White Mesa
Mill was to evaluate the potential environmental impacts from
construction and operation of the mill. The action upon which this
original FES was based has clearly already been taken - the White Mesa
facility has been constructed and operational for over twenty years.
Therefore, the regulation cited by Intervenors does not apply to completed
actions such as the original granting of the source material license in 1979
upon which the original FES was based.
NRC's May 2,0 Response at14.
NRC Staffs argument is without meriL The FES contemplated the operation of
the White Mesa Mill. The Mill is still in operation, therefore the proposed action is not
complete. Currently, the sole operational activity at the White Mesa Mill consists of the
receipt, processing, and disposal of various wastes from other mineral extraction
26
operations, such as the Molycorp material. The current operation of the Mill as a
recycling/disposal facility for wastes from other operations is a proposed action that is
materially different from the proposed action contemplatedin 1979. The environmental
impacts that are related to the current operation of the Mill are significantly different
from and in addition to the environmental impacts related to the operation of the Mill as a
uranium ore prccessing facility. The operation of the White Mesa Mill as a
recycling/disposal facility for other operations warrants a supplement to the original FES
under the provisions of l0 C.F.R. $51.!I2(a).
The public has never been allowed to access and comment upon a full decision-
makers document related to the new operational program at the Mill that was instituted
beginning with the noticing of the Pnoposed Guidance in 1992. 57 Fed. Rleg.?.OSA (May
13,lW2) (Hearing File 10, Attachment M). (Although the NRC Staff announced in the
1992 Federal Register Notice that they would not approve the processing of nalternate
feed material' until the Guidance was finalized, on May 13,19y2, NRC Staff gave the
White Mesa Mill Licensee permission to process nalternate feed materialn that had been
received at the Mill-without NRC authorization-about three years earlier.)
The processing of the Molycorp material is an incremental part of that new
operational program at the Mill. This new operational program has been improperly
segmented, through a series of separate, segmented, licensing actions. See list of
licensing actions related to the receipt of "alternate feed material' at the White Mesa Mill,
April ld 2W2, Second Supplement to Sierra Club's Writren Presentation, Attachment A.
27
The processing of wastes from other mineral processing operations has never
been the subject of a comprehensive environmental review (or any environmental review
at all until the Molycorp proposal Environmental Assessment).
The Atomic Safety and Licensing Board ("ASLB') has stated:
Where a proposed action is part of a broader plan or program, the
proper scope of an environmental analysis under NEPA must be as
extensive as the broader plan or Program itself.
Dul<c Power cornpany (oconee/McGuire), LBP-8G.28. 12 NRC 459 (1980).
The ASLB went on to state:
NEPA further provides that dl agencies of the Federal
Government shall "@) study, develop and describe appropriate
alternatives to recommend courses of action in any proposal which
involves unresolved conflicts concerning alternative uses of available
resources....n This Section E has been held to complement the provisions
of Section 102(2[c[iii) above, and to require Federal agencies to consider
alternatives without regard to the necessity of filing an environmental
impact statement under the latter section. [Footnotes omitted.l
rd.
The NRC Staff has never, within the present licensing action or previous NEPA
determinations, described and evaluated the reasonable alternatives to the processing and
disposal of wastes from other operations (including the Molycorp waste) at White Mesa.
The NRC has never identified and evaluated the reasonable alternatives to using the
White Mesa Mill as a recycling/disposal facility for other mineral processing operations.
Further the ASLB has concluded:
If NRC is to take the "hard lookn that NEPA is designed to require of
Federal decision-makers, then it must at some point look at the entire
program together with its necessary ramifications. The NRC should not
28
frus8ate a fair NEPA review in reasonable depth by permitting any
licensee to truncate or fragment the area of inquiry by a crabbed definition
of the proposed action. [Footnotes omitted.]
Id.
With flagrant disregard for this ASLB ruling, the NRC Staff has permitted IUSA
to fragment a proper NEPA inquiry with regard to the alternate feed program and has
thus illegally frustrated a fair NEPA review on said alternate feed program that included a
full allowance of pubiic consideration and comment.
B. Programmatic EIS Regarding an "Alternate Feed Material Program"
NRC Staffasserts that a programmatic EIS is not warranted. NRC Staffs
argument is without basis. NRC Staff states:
NEPA mandates the preparation of an environmental impact statement on
any major Federal action "significantly affecting the quality of the human
environmenL" 42 U.S.C. g 4332(2XC). Additionally, "[w]hen there is a
regional plan or when multiple federal prrgrams will have a 'cumulative
or synergistic environmental impact upon a region,' the relevant agency
must prepare a programmatic environmental impact statement ("PEIS") on
the regional plan or on the programs' combineci impact." Churchill Counry
v. Babbitt,l50 F.3d 1W2,1ffi6 (9th Cir. 1998); citing Kleppe v. Sierra
Club,427 U.5.39O, M-U & 410 (ty76) and 42 U.S.C. $ 4332(2XC).
In this instance, Intervenors have presented no information
suggesting that the receipt and processing of the Molycorp material is part
of a larger, regional alternate feed program. Nor is there any information
accompanying this license amendment request which evidences any larger
program.
NRC's May 20 Response at 18.
Here the NRC Staff gives no information that would lead to the conclusion that
the preparation of a PEIS is limited to a regional plan or multiple federal programs.
The program that was established by the NRC when they issued the 1995 Hnal
Position and Guidance and the 2000 Interim Guidance was, and is, part of a plan to open
29
up the cell storage capacity at licensed uranium mills for materials other than the tailings
from the processing of uranium ore.
In order to facilitate that plan, the NRC developed two guidances: nThe 'Final
Position and Guidance for the Processing of Materials other than Natural Ores" and the
"Revised Guidance on Disposal of Non-Atomic Energy Act of 1954, Section I le.(2)
Byproduct Material in Tailings Impoundments.n Hearing File 10, Attachment C. The
Final Position and Cuidance was amended by the Interim Position and Cuidance in 2000
to permit licensees to process and dispose of materials containing hazardous waste under
certain circumstances. Hearing File 10, Attachment D. This amendment was granted at
the behest of the National Mining Association and was never run by the public. These
guidances apply to all licensed uranium and thorium recovery facilities and sanction the
receipt of wastes from mineral processing operations throughout the country and Canada
at those mills.
In issuing the lnterim Position and Guidance the Commission indicated that the
new criteria would be incorporated into Commission regulations at some future time.
In 1996 the NRC developed a paper that discussed various strategies related to tlre
decommissioning of non-reactor facilities. See Strategic Assessment Issue: 9.
Decommissicning-Non-reactor facilities (September 16, 1996). Appendix 7 hereto.
At Issue 9, Option 7: nTake an Aggressive Position to Develop Regulatory
Frameworks for l,ower Cost Decommissioning Waste Disposal," the NRC states:
Under this option, NRC would seek solutions for obtaining lower
cost disposal methods (e.g., providing a regulatory framewor* for using
uranium mill tailings sites for the disposal of uranium and thorium
decommissioning wastes and developing a regulatory framework for using
30
the provisions of the NWPA lNational Waste Policy Actl, Sections l5l(b)
and (c).
Thus, there is no doubt that the processing of the Molycorp material as nalternate
feed materialsn at the White Mesa Mill is part of a larger NRC program.
IUSA has put forth information on their web site informing industry of their
program for the processing and disposal of wastes from other mineral processing
operations. April l, 20fl2, Petitioner William L,ove's Written Presentation, Attachment A.
IUSA's statements in support of the NMA petition for rulemaking (65 Fed. Reg.
55604) clearly indicate that the processing of the Molycorp material is part of a larger
operational program at the White Mesa Mill. See Appendix 8.
VII. ACCTJRATE AND ST'PPORTABLE DOCT'MENTATION
As shown in Parts I and II of the present filing and in Petitioner's Written
Presentation, much of the infoimation that was presented by the Licensee in support of
it's amendment request was not supported with any factual evidence. NRC staff errs in
concluding that unsupported and unsubstantiated material statements of fact by the
Licensee are not really required and that the Licensee can refer to documents without
giving a clear and specific reference to the information contained in those documents.
VI[. CONCLUSION
As shown above, NRC Staff has not effectively challenged the assertions made by
the Sierra CIub in the April I Written Presentation, as supplemented on April 10, 14, and
15,2002. Therefore, Petitioner requests that the Presiding Officer suspend, modify,
revoke, AND reconsider staying the effectiveness of Amendment 20 to License SUA-
r 358.
Respectrul ly submitted,
fur*-*a7.1Hr-.4
Victoria Woodard
Nuclear Waste Chair, Conservation Chair
Glen Canyon Group,
Utah Chapter, Sierra Club
P.O. Box 652
Escalante, UtAh8/-726
435-82647780
I, Victoria Woodard, declare under penalty of perjury that the foregoing is true and
correct
Dated at Moab, Utah
This 14tr day of June 2flI2
Victoria Woodard
32
TABLE OF CONTENTS
I. INTRODUCTION - Pages I to 2
III. ISSUANCE OF THE AMENDMENT - pages 2 to 6
A. NRC Regulation -Pages 2to 4
B. RCRA Authority - pages 4to 6
II. ALTTHORIZATION oF rusA To RECETVE THORIITM - pages 6 to l0
A. l0 C.F.R. $$ 4O.51 and 4O.3 - pages 6 to 9B. NRC Regulatory Authority - pages 9 to I0
III. THE DEFINITION OFTHE TERM "ORE'' AND THE MOLYCORP
MATERIAL - Pages l0 to 15
A. Meeting the Definition of "Ore" - pages l0 to 12
B. Germaneness - Pages 13 to 15
rV. THE MOLYCORP MATERIAL AND THE QUESTION OF HAZARDOUS
WASTE UNDER RCRA OR MIXED WASTE - pages t5 TO 2l
V. SIGNIFICANT NEW CIRCUMSTANCES - pages 2t to2i
A. 1980 Generic Environmental Impact Statement for Uranium Milling -Pages 2l to22
B. Thelg?9 Environmental Statement for the White Mesa Mill and Other
Environmental Assessments - pages 23 to 25
C. Non-Natural Ore - 24to25
VI. SPECIFIC CI-AIMS BY INTERVENORS - pages 25 to 30
A. Supplement of the Original FES - pages ZS to}g
B. Programmatic EIS Regarding an "Alternate Feed Material Prograln" -Pages 28 to 30
vII. ACCLJRATE AND SUPPORTABLE DOCUMENTATION - page 30
VUI. CONCLUSION - Page 30
TABLE OF CONTENTENTS - Page 32
,.]\
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I.JNTTED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION
ATOMIC SAFETY AND LICENSING BOARD PANEL
Before Administrative Judges:
Alan S. Rosenthal, Presiding Officer
Dr. Richard Cole, Special Assistant
IN TIIE MATTER OF:
INTERNATIONAL URANITJM (USA)
CORPORATION
(Source Material License Amendment,
License No. SUA-1358)
Docket No. 4G8681-MLA-I I
ASLBP NO. 02-795 -O2-MLA
Jwrc 14,20ff2
PART I
SIERRA CLUB'S REPLY TO INTERNATIONAL URAMUM (USA)
CORPORATION'S MAY 20, 2W2, RESPONSE TO WRITTEN PRESENTATION
OF GLEN CA}.IYON GROUP OF TI{E SIERRA CLUB
I.INTRODUCTION
International Uranium (USA) Corporation ("IUSA'or "Licensee") filed a May
20,20ff2, Response of International Uranium (USA) Corporation To Written
Presentations of Mr. William E. Love and the Glen Canyon Group of the Sierra Club
("IUSA's May 20 Responsen). Additionally, the Nuclear Regulatory Commission
('NRC') Stafffiled their May 2O,2W2, NRC StafPs Response To Written Presentations
Hled By Intervenors Sierra Club And William Love ('NRC Staffs May 2O Response").
IUSA and NRC Staffs May 20 Responses were in response to Petitioner Sierra
Club's l0 C.F.R. I2.1233 Written Presentation Requesting Suspension, Modification, or
2
Revocation of Amendment 20 to License SUA-1358 of April 1,2W2, as supplemented
on April lO, 14, and 15, 20O2 and Petitioner William E. Love's 10 CFR 2.1233 written
Presentation for Suspension and or Revocation of Amendment}Oto License SUA-1358
and License SUA-1358, April 1,2W2.
The Presiding Officer, upon receipt of IUSA's and NRC Stalfs May 20 filings,
issued a Memorandum and Order (Authorizing Additional Hlings), dated }y'ray 2l,2WZ.
The Presiding Officer granted permission to the Sierra CIub and other parties to the
present proceeding to file replies to IUSA's and NRC Staffls May 2O Responses, on or
before June 14, 2N2. The following is responsive to that allowance. Sierra Club's Reply
to the IUSA's May 2O Response will be presented in this document as Part I. Sierra
Club's Reply to the NRC Staff May 2O Response will be presented in another document
of this date as Part II.
II. STAhIDARD OF REVIEW
A. IUSA states, '"They have sought extensions of time and opposed such requests
by the licensee." IUSA's May 2O Response at 6. This statement is incorrect. Petitioner
did not oppose IUSA's request for extension of time. Sierra Club's response to IUSA's
request was:
[A]s we indicated to IUSA's counsel, we believe that because the
Sierra club requested and received a two-week extension, it would
only be fair for IUSA to receive a two-week extension. However,
the sierra club objects to IUSA receiving a 30-day extension
unless IUSA agrces to a temporary stay through the end of the
proceeding (including an appeal if necessary).
sierra club's Response to IUSA's Requestfor Extension of rime at l.
3
B. IUSA asserts:
Further, with regard to Petitioners' challenges to NRC's regulatory
program in general, l0 c.F.R. g 2.1239(a) entitled consideration of
Commission rules and regulations in informal adjudications states:
Except as provided in paragraph (b) of this section, any regulation of the
Commission issued in its program for the licensing and regulation of
Production and utilization facilities, source material, special nuclear material,
or byproduct material may not be challenged in any odjudication subject to this
subpart [subpan LJ
A petitioner may not collaterally attack Commission regulations on the
grounds that they fail to protect public health and safety when such
regulations have been subject to full public comment proceedings.
Bmphasis in original.l
IUSA's May 20 Response at 9.
This argument by IUSA is irrelevant. Petitioner has not challenged a Commission
regulation. Petitioner has challenged an NRC Staff policy guidance and an interim
guidance that has never been subject to pubtic comment proceedings, neither of which are
Commission regulations. Hearing File 10, Attachments C and D.
c. IUSA's Response regarding the standards for review asserts:
with respect to matters that are within the proper scope of this
proceeding (i.e., the Molycorp license amendment), petitioners must
"sho\il a harm that [is] distinct and apart from that caused by the initial
licensing and continued operation of the facility." lnternational l1ranium(usA) corp- (white Mesa Mill), LBp-99-g, 49 N.R.c. t3t, (February 19,
1999). The commission has adopted the maxim that, where a faciliry's
ongoing operations are involved, "a petitioner's challenge must show that
the [proposed license'lamendment will cause a 'distinct new harm or
threat apart from the activities already licensed.' International Uranium(usA) corp. (Receipt of Material from Maywood, New Jersey), 2002
N.R.c. LExIs 9, *11 (January 16,2w2), quoting,lnternotional granium
(USA) Corp. (White Mesa Miil) 54 N.R.C. 27,*7-B (Juty 30, 2001).
IUSA's May 2O Response at 10.
4
Here IUSA errs in applying the standards for the establishment of standing in the
present proceeding to the proceeding itself. The Presiding officer in granting the
Petitioner's January 9,2CfJ1, Hearing Request, made that finding in the January 3o,zw2,
Memorandum and Order (Granting Two Hearing Requests and Denying a Third Such
Request)' The hesiding officer ruled that Sierra Club's Request for Hearing showed that
the proposed license amendment "will cause a risk of 'distinct new harm or threat apart
from the activities already licensed."'
Petitioner can find no requirement that states that the Sierra Club is required to
make such an additional showing within the present proceeding. petitioner can find no
requirement that states that the matters that are within the scope of the present proceeding
are limited to a showing that the proposed license amendment "will cause a .distinct new
harm or threat apart from the activities already licensed."'
III. APPLICABLE STATUTES AND REGI]LATIONS
The following discussion is direcfly related to assertions and issues presented in
the April 14,2w2, Second Supplement to Petitioner Sierra Club's Written hesentation,
sec. I. A. 5, at 4 to 5 and Sec. II. B., c., and D., at ?.4to io. Those assertions are
gerrnane to the present proceeding.
A. Statutes
1. uranium MiIl railings Radiation contror Act of r97E
IUSA's May 2O Response, at 1l-15, brings forth a discussion of the Uranium
Mill railings Radiation Control Act of l9z8 ('UMTRCA,) (public I.aw 95604,92 stat.
3o33 et seq.), that amended the Atomic Energy Act ("AEA,) of 1954 (public L^aw
83-703, 68 Stat. 919 et.seq.). The AEA of 1954 was an amendment to the Atomic
Energy Act of 1946 (Public Law 79-385,60 Stat. 755 et seq.). IUSA asserts that such a
discussion is relevant in order to understand the guidance used by the NRC in reviewing
the proposed amendment. See Final Position and Guidance on the Use of Uranium Mill
Feed Materials Other than Natural Ores ("Final Position and Guidance"), 60 Fed. Reg.
4y296 (September 25, 19P5) (Hearing File 10, Attachment C) and Interim position and
Guidance on the Use of Uranium Mill Feed Material Other than Natural Ores ("Interim
Position and Guidance"), Regulatory Issue Summary (RIS) 2wo-23 (November 30,
2000) (Hearing File 10, Attachment D).
Petitioner would assert that certain other facts related to the AEA of 1954 and
1946 and' UMTRCA are also relevant to this discussion and directly bear on the present
proceeding.
IUSA states:
There are two basic purposes of UMTRCA: (l) to provide a remedial
action program at inactive mill tailings sites and (2) to provide a program
for the regulation of "mill tailings during uranium or thorium ori
processing at active mill operations and after termination of such
operations." Title II of UMTRCA establishes a comprehensive program
for EPA and NRC regulation at active (licensed) mill tailings sites, such as
the Mill, of all wastes including uranium or thorium mill tailings created
by processing ore to recover its source material (i.e., uranium or thorium)
content. UMTRCA defines such wastes as l1e.(2) byproduct material.
UMTRCA also added sections 83, 84, andZ7i and amended sections 16l
and274 of the AEA to provide EPA and NRC with the broad authority to
regulate all aspects of mill tailings sites. fFootnotes omitted.l
IUSA's May 20 Response at ll to lZ.
6
IUSA distorts the intent of the Atomic Energy Act of 1954, as amended by the
Uranium Mill Tailings Radiation Control Act, by implying that the statute permits the
proposed licensing action at issue herein. IUSA assertion is incorrect.
As will be shown below, the AEA, as amended by UMTRCA, does not sanction
the processing of feed materials other than natural oresr and the disposal of wastes from
such processing at licensed uranium and thorium processing facilities and does not give
the NRC the broad authority to authorize the processing of feed materials other than
natural ores as "ore," or the disposal of wastes from such processing at licensed uranium
and thorium processing facilities as "l le.(2) byproduct materiar.
I The word, or term, nore,' as defined in several sources:
' Ore-a naturally occurring solid material from which metal or other valuable
minerals may be extracted. MUonaly, DK pub. l9%.1
' Ore-A native mineral containing a precious or useful metal in such quantity
and in such chernical combination as to make its extraction profitable. Also
applied to minerals mined for their content of non-metals. IIhe_egmpaet
Oxford English Dctionary, Second Edition, Oxford University hess,2000,p. l2?t4:915-916.I
' Ore-a A natural mineral compound of the elements of which one at least is
a metal. Applied more loosely to all metaliferous rock, though it contains the
metal in afoee state, and occasionally to the cornpounds of normeAllic
substances, as sulfur ore. . . . Fay b. A mineral of sufficient varue as to
quality and quantity that may be mined for p,rofiL fay. tA DidiOuarysf
Mining. Minenal- and Related Terms, compiled and edit€d by Faul W Thrush
and Staff of the Bureau of Mines, U.S. Dept of Interior, 196g.l
The Oxford English Dictionary pornts out that the current usage of the word noe" goes back
several hundred years. A Dctionary of Mining. Mineral. and Related Terms lists over 65
compound words using the word 'ore," such as ore bin, ore body, ore deposig ore district, oregeology, ore grader, ore mineral, ore reserye, ore zone. All of these terms incorporate the wordnoren as it relates to the mining of a native mineral. The term nore,n without explanation, has for
many years been used in thousands, if not millions, of insances in thousands of mining, milling,
geologtcal, mineralogical, radiochemical, engineering, environmental, and regulatory
publications. 'Oren like the word 'water,' is a word of common and extensive usage with a clear
and accepted meaning.
7
The regulatory history of UMTRCA, found in the two Congressional reports,
provide information with respect "uranium mill tailings" and "ore." The Congressional
Reports clearly state what was contemplated by Congress (i.e., the intent of Congress)
when Congress established a program for the conffol of "uranium mill tailings" from the
processing of "uranium ore" at inactive (Iitle I of UMTRCA) and active (Title II of
UMTRCA) uranium and thorium processing facilities. See House Report (Interior and
Insular Affairs commiffee) No. 95-1480 (I), August 11, ly78,and House Report
(Interstate and Foreign Commerce Committee) No. 95-1480 (ID, September 30, 1978.
Under "Background and Need," HR No. 95-1480 (I) states:
Uranium mill tailings are the sandy waste produced by the uranium
ore milling process. Because only I to 5 pounds of useable uranium is
extracted from each 2,000 pounds of ore, tremendous quantities of waste
are produced as a result of milling operations. These tailings contain
many naturally-occurring hazardous substances, both radioacti ve and
nonradioactive. . . . As a result of being for all practical purposes, a
perpetual hazard, uranium mill tailings present the major threat of the
nuclear fuel cycle.
In its early years, the uranium milling indusfy was under the
dominant control of the Federal Government. At that time, uranium was
being produced under Federal Contracts for the Government's Manhattan
Engineering District and Atomic Energy Commission program. . . .
The Atomic Energy Commission and its successor, the Nuclear
Regulatory Commission, have retained authority for licensing uranium
mills under the Atomic Energy Act since 1954.
HR No. 95-1480 (1) at 11.
The second House Report, under "Need for a Remedial Action hogram" states:
Uranium mills are a part of the nuclear fuel cycle. They extract uranium
from ore for eventual use in nuclear weapons and power-plants, leaving
radioacti ve sandl i ke waste - commonly cal led urani um mi ll tai li ngs - in
generally unattended piles.
HR No. 95-1480 (2) at25,
2. Atomic Energ5r Commission and the AEA of 1945
As indicated above, the domestic uranium mining and milling industry was
established at the behest of the Manhattan Engineer District and the Atomic Energy
Commission ("AEC"). The AEC regulated uranium mines and uranium processing
facilities, established ore buying stations, and bought ore. Mining and milling of uranium
ore was done under contract to the AEC. AEC purchased uranium ore under the
Domestic Uranium Program. Regulations related to the AEC's uranium procurement
program were set forth in l0 C.F.R. Part 60. Part 6O was deleted from l0 C.F.R. on
March 3,1875, after the establishment of the NRC.
The AEC published a number of circulars related to their Domestic Uranium
hogram. The Domestic Uranium Program-Circular No. 3-Guaranteed Three year
Minimum Price-Uranium-Bearing Carnotite-Type or Roscoelite-Type Ores of the
colorado Plateau Area" (April 9,1948),an amendment to l0 c.F.R. part 60, states:
$ 60.3 Guaranteed three years minimum pricefor uranium-
bearing carnotite-type or roscoelite-type ores of ihe coloradoPlateau-(a) Guarantee. To stimulate domestic production of uranium-
bearing ores of the Colorado Plateau area, commonly known as carnotite-
type or roscoelite-type ores, and in the interest of the common defense andsecurity the United States Atomic Energy Commission hereby establishes
the guaranteed minimum prices specified in Schedule 1 of this section, for
the delivery of such ores to the commission, at Monticello, utah, and
Durango, Colorado, in accordance with the terms of this section during the
three calendar years following its effective date.
Note: In gg 60.1 and6o.2(Domestic uranium hogram, circulars
No. 1 and 2),the Commission has established guaranteed prices for other
domestic uranium-bearing ores, and mechanical concentrates, and refineduranium products.
Note: The term "domestic" in this section, referring to uranium,
uranium-bearing ores and mechanical concentrates, means such uranium,
ores, and concentrates produced from deposits within the United States, itsterritories, possessions and the Canal Zane.
9
l0 c.F.R. Part 60-Domestic uranium program at g 60.5(c) states"
Definitions. As used in this section and in g 60.5(a), the term
"buyer'refers to the U.S. Atomic Energy Commission, or its authorized
purchasing agent. The term "ore" does not include mill tailings or other
mill products. . . . lEmphasis added.l
Circular 5, l4 Fed. Reg. 731 (February lB,1949).
It is plain that the AEC was the primary mover in the domestic uranium mining
and milling program. It is plain that under the Atomic Energy Act of 1946 and 1954, the
AEC regulated uranium mining and milling and established a uranium ore-buying
program. It is clear that from the l!XO's to lTl5, the regulations in t0 C.F.R. part 60
clearly stated that "ore" does not include mill tailings or other mill products.
3. Statutory Definition of Source Material
The AEA of 191f., under "contror of Materials," Sec. 5 (b), ,,Source Materials,,,
(1), "Definition," provides the definition of "source material." Section 5(bxl) states:
Definition. - As used in this Act, the term "source material,'
means uranium, thorium, or any other material which is determined by the
Commission, with the approval of the President, to be peculiarly essential
to the production of fissionable materials; but includes ores only if they
contain one or more of the foregoing materials in such concentration ai the
Commission may by regulation determine from time to time.
The AEA of 1954, Chapter 2, Section I l, "Definitions," sets forth the current
statutory definition of "source material , at Sec. l l(s):"
The term "source material" means (l) uranium, thorium, or any
other material which is determined by the Commission pursuant to th;
provisions of section 6l to be source material; or (2) ores containing one
or more of the foregoing materials, in such concentrations as the
commission may by regulation determine from time to time.
l0
42 U.S.C. Sec. 2014(z).
Responsive to this statutory definition, in 1961 the AEC established the following
regulatory definition at 10 C.F.R. g 4O.4:
source Material means: (l) uranium or thorium, or any combination
thereof, in any physical or chemical form or (2) ores which contain by
weight one-twentieth of one percent (0.o5%o) or more of: (i) Uranium,
(ii) thorium or (iii) any combination thereof. Source material does not
include special nuclear material.
26Fed. Reg. 284 (Jan. 14, 1961).
Therefore, the AEC made a determination, in accordance with the mandate of the
AEA of 1954, that ores containing O.OSVo thorium and/or uranium would meet the
statutory definition of source material. At the same time that they made that
determination, the AEC had a regulation that clearly stated that "ore" does not include
mill tailings or other mill products. Surely, the AEC, as the administrator of a uranium
ore procurement program and the developer of the uranium mining and milling industry
knew what they were talking about when they used the term "ore."
Additionally, the AEC set forth certain exemptions to the regulations in 10 C.F.R.
Part 40. The proposed rule that was later finalized in January l9til states, in pertinent
part:
The following proposed amendment to Part 40 constitutes an over-
all revision of I0 cFR Part 4o, "Control of source Materiar."
With certain specified exceptions, the proposed amendment
requires a Iicense for the receipt of title to, and the receipt, possession, use,
transfer, import, or export of source material. . . .
Under the proposed amendment, the definition of the term "source
material": is revised to bring it into closer conformance with that
contained in the Atomic Energy Act of 1954. nsource Material" is defined
as (l) uranium or thorium, or any combination thereof, in any physical or
chemical form, but does not include special nuclear material, or (2) ores
ll
which contain by weight one-twentieth of one percent (0.05 percent) or
more of (a) uranium, (b) thorium or (c) any combination thereof. The
amendment would exempt from the licensing requirements chemical
mixtures, compounds, solutions or alloys containing less than 0.05 percent
source material by weight. As a result of this exemption, the change in the
definition of source material is not expected to have any effect on the
licensingprogram....
Section 62 of the Act prohibits the conduct of certain activities
relating to source material "after removal from its place of deposit in
nature" unless such activities are authorized by license issued by the
Atomic Energy Commission. The Act does not, however, require a
license for the mining of source material, and the proposed regulations, as
in the case of the current regulations, do not require a license for the
conduct of mining activities. Under the present regulation, miners are
required to have a license to transfer the source material after it is mined.
Under the proposed regulation below, the possession and transfer of
unrefined and unprocessed ores containing source material would be
exempted.
47 Fed. Reg. 8619 (September 7, 196O).
Therefore, the AEC established, via a rulemaking, exemptions for source material
as defined in Sec. 201.4{z)(l) related to mixtures, compounds, solutions, or alloys
containing uranium and/or thorium:
(a) Any person is exempt from the regulations in this part and from
the requirements for a license set forth in section 62 of the Act to the
extent that such person receives, possesses, uses, ffansfers or delivers
source material in any chemical mixture, compound, solution, or alloy in
which the source material is by weight less than one-twentieth of 1 percent
(0.05 percent) of the mixture, compound, solution or alloy. The
exemption contained in this paragraph does not include byproduct material
as defined in this part.
l0 C.F.R. $ 4O.13(a), 26Fed. Reg. 284 (Jan. 14, l96l).
The AEC also established, via a rulemaking, exemptions for source material as
defined in Sec. 201 {z)(2) related to "ore":
b) Any person is exempt from the regulations in this part and from
the requirements for a license set forth in section 62 of the act to the
t2
extent that such person receives, possesses, uses, or transfers
unrefined and unprocessed ore containing source material; provided,
that, except as authorized in a specific license, such person shall not'refine or process such ore.
l0 C.F.R.40.13(b), Z6Fed. Reg. 2M (Jan. t4,196l).
The definition of "source material " and the exemptions that are related to those
definitions stand today, over forty years later. These regulatory definitions and
exemptions did not change when the NRC was established in lg75 and took on the
regulatory responsibility for "source material." These regulatory definitions and
exemptions did not change when the AEA was amended by UMTRCA in l9Zg. These
regulations and definitions did not change when the NRC developed their policy
guidances related to the processing of wastes from various mineral processing operations
(including the commingled soils and wastes from other sources) at licensed uranium
recovery operations.
4. Definition of 1le.(2) byproduct material.
UMTRCA, among other things, amended the AEA of l954by adding a new
definition, the definition of lle.(2) byproduct material:
Sec- 20r. section ile. of the Atomic Energy Act of r954, isamended to read as follows:
"e- The term'byproduct material means (r) any radioactive
material (except special nuclear material) yielded in or made radioactiveby exposure to the radiation incident to the process of producing orutilizing special nuclear material, and (2) thl tailings or wastes produced
by the extraction or concentration of uranium or thorium from any oreprocessed primarily for its source material content."
42 U.S.C. Sec. 2014 (e).
l3
There is no evidence in the regulatory history of UMTRCA that Congress, in
defining "lle.(2) byproduct material" intended to also amend the statutory definition of
"source material." There is no evidence in the regulatory history of UMTRCA that the
term "any ore" does not mean "any type of uranium ore" (e.g., ore containing less than
.O5Vo uranium and/or thorium and the numerous types of natural uraniurn-bearing
minerals that are mined at uranium mines and milled at uranium mills). There is no
evidence in the regulatory history of UMTRCA that Congress intended the term "any
ore" to mean anything that the NRC or IUSA wants it to mean (e.g., the wastes from
mineral processing operations, including wastes mixed with soils and commingled with
the wastes from other sources, even if those wastes are processed for their source material
content at a uranium or thorium mill).
B. NRC REGULATIONS
1. Mandate of IIMTRCA
IUSA's May 20 Response, at 15-20, continues with a discussion of the
regulations that were promulgated by the NRC and the Environmental Protection Agency
("EPA') responsive to the directives of Title II of UMTRCA. IUSA states
Thus, it is indisputable that the regulatory program developed and
promulgated by EPA and NRC for uranium milling and mill tailings
impoundments specifi cally contemplates licensees processing ores for
their natural uranium content regardless of the presence of potential
radiological or non-radiological hazards and provides a flexible, site-
specific framework within which licensees may continue operations
without posing a significanr threat to public health and safety or the
environment.
Petitioner would assert thaf although both the EPA and the NRC established a
regulatory program for uranium milling and the processing of ores, as will shown below,
neither the EPA nor the NRC contemplated the processing of materials that were not
"ore." Neither the EPA nor the NRC considered wastes from other mineral processing
operations (including contaminated soils and wastes from other sources) in their concept
of "ore" and they did not address in any manner the processing of such wastes when
promulgating their regulatory regimes for active uranium processing facilities. Further,
during the various rulemaking proceedings, the public was never informed that wastes
from other mineral processing operations (including commingled contaminated soils and
wastes from other sources), no matter how they were defined, would be processed at
licensed uranium or thorium mills. Therefore the public was given no reasonable
opportunity to comment on such processing activities at uranium mills.
2. NRC Regulatory program, f0 C.F.R. part 40
Responsive to UMTRCA, the NRC incorporated the UMTRCA definition of
lle.(Z) byproduct material (with clarification) into their regulations at
r0 c.F.R. $ 4o.4:
"Byproduct Material" means the tailings or wastes produced by theextraction or concenfiation of uranium or thorium from any orl processed
primarily for is source material content, including discrete surface wastesresulting from uranium solution extraction processes. Underground ore
bodies depleted by such solution extraction operations do noiconstitute
"byproduct material,' within this definition.
4Fed. Reg. 50012-50014 (August 24,1979).
The NRC also explained the need for the new definition:
Section 4o.4 of l0 cFR part 4o is amended to include a new
definition of 'byproduct material." This amendment, which included
uranium and thorium mill tailings as byproduct material licensable by the
l5
Commission, is required by the recently enacted Uranium Mill Tailings
Radiation Control Act.
Id.
The NRC promulgated further regulations amending Part 4O, in 1980, 45 Fed.
Reg. 6552165538 (October 3, 1980). In the summary, the NRC states:
The U.S. Nuclear Regulatory Commission is amending its regulations to
specify licensing requirements for uranium and thorium milling activities,
including tailings and wastes generated from these activities. The
amendments to parts 4O and 150 take into account the conclusions reached
in a final generic environmental impact statement on uranium milling and
the requirements mandated in the Uranium Mill Tailings Radiation
Control Act of 1978, as amended, public comments received on a draft
generic environmental impact statement on uranium milling, and public
comments received on proposed rules published in the Federal Register.
fFootnotes omiued.l
There is no statement in any of the NRC regulations in l0 C.F.R. Part 4O or in any
of rulemaking proceedings promulgating those regulations that wastes from other mineral
processing operations (including commingled contaminated soils and wastes from other
sources) is "ore," under any circumstances, or that, under any circumstances, such wastes
would be processed at licensed uranium or thorium mills and the tailings or wastes would
be disposed of as I le.(2) byproduct material in the mill tailings impoundments. The
regulations promulgated by the NRC and the EPA did not contemplate this kind of
activity. The National Environmental Policy Act ("NEPA") document in support of the
promulgation of the NRC regulatory program for uranium mills did not contemplate this
kind of activity. In the rulemaking proceedings and NEPA proceeding, the public did not
have an opportunity to contemplate and comment on this kind of activity.
l6
3. The Final Generic Environmental Impact Statement on Uranium Milling
IUSA's May 20 Response, at 15 to 17, discusses the Final Generic Environmental
Impact Statement on Uranium Milling (*GEISU), NUREG-0706, September 1980. IUSA
sets forth various aspects of the GEIS under the assumption that the GEIS in some way or
another applies to the amendment request at issue in the present proceeding.
Petitioner would assert that there is no basis for that assumption.
The GEIS makes a clear statement regarding the scope of the GEIS and its
understanding of what uranium milling entails:
As stated in the NRC Federal Register Notice (42 FR 13g74) on
the proposed scope and outline for this study, conventional uranium
milling operations in both Agreement and Non-Agreement States, are
evaluated up to the year 2000. Conventional uranium milling as used
herein refers to the milling of ore mined primarily for the recovery of
uranium. [t involves the processes of crushing, grinding, and leaching of
the ore, followed by chemical separation and concentration of uranium.
Nonconventional recovery processes include in situ extraction or ore
bodies, leaching of uranium-rich tailings piles, and extraction of uranium
from mine water and wet-process phosphoric acid. These processes are
described to a limited extent, for completeness.
GEIS, Volume I, at 3.
IUSA's May 2O Response, at 16 to 17, footnote 30, states:
NRC provides a summary of its assessment of non-radiologicalhazards
associated with uranium milling and mill tailings impoundments in section
3.3 & 4.6 of the GEIS, as well as a more detailed description in sections
6.2.1 & 6.3.1. This generic assessment, which addresses typicar mill
tailings constituents such as heavy metals, specifically includes lead.
This footnote contains erroneous information. Section 3.3 of the GEIS is entitled
"Prospects for Unconventional Methods of Uranium Production.' GEIS at 3-8. In the
discussion of unconventional methods of uranium production, Petitioner can find no
t7
discussion of the non-radiological hazards associated with uranium milling and mill
tailings impoundments, nor is the processing of lead sludges or other types of materials
that have been processed at the White Mesa Mill as "alternate feed materials" discussed
as one of the types of "unconventional methods of uranium production."
Section 4.6 of the GEIS is a discussion of "Mineral Resources and Usen and does
not discuss non-radiological hazards. GEIS at+6to 4-7.
Sections 6.2.1 and 6.3.1 of the GEIS, both entitled "On Air Quality," provide brief
information related to three air-borne effluents from "model mills.' The effluents
mentioned do not include lead in any form. Additionally, the processing of wastes from
mineral processing operations (i.e., the processing of feed material other than ore as that
term is used in the GEIS) are not included within the scope of the GEIS.
The GEIS is very clear about what it considers "ore" to be and gives no indication
whatsoever that materials other than ore, such as the tailings or waste from mineral
processing operations (including commingled contaminated soils and waste materials
from other sources) are considered to be ',ore."
The GEIS includes a discussion of "Past hoduction Methods." That discussion
makes reference to nore," "ore exploration," "pitchblende ore," "crude ore milling
processes," "lower-grade ores," "uranium-bearing gold ores," "high-grade ores," "ore-
buying stations," and "ore reserves." GEIS, volume I, Chapter 2, at}-l to z-2. There is
a lengthy discussion of "Uranium Mining and Milling Operations" that provides a
description of the commonly and less-commonly "used methods of mining uranium
ores." GEIS, Volume II, at B-1 to B-2. Appendix l.
r8
In Chapter 6, "Environmental Impacts," there is a discussion of "Exposure to
Uranium Ore Dust," which states, in part:
Uranium ore dust in crushing and grinding areas of mills contains
natural urani um (u-23 8, u -235, thori um-230, radi um-2 26, read-210, and
pol oni um-2 I 0) as the important radionucl ides.
GEIS, Volume l,at64l.
There is also a table giving the "Average Occupational Internal Dose due to
Inhalation of Ore Dust." GEIS at64l, Table 6.16. Further, the GEIS discusses
"Shipment of Ore to the Mill'' (GEIS at 7-l I ), nsprinkling or Wetting of Ore Stockpile"
(GEIS at8-2), "ore storage" and "ore crushing and Grinding" (GEIS at g6), ,ore pad
and Grinding" (GEIS, vol. 3, atG-2), "ore warehouse (GEIS, vol. 3, at K-3) and
"Alternatives to Control Dust from Ore Handling, Crushing, and Grinding Operations
(GEIS, Vol. III, at K-3 to K-3). In the NRC responses to comments there are discussions
of "Average ore Grade, uranium Recoveryn (GEIS, vol. II, at A-rzto A-13).
The GEIS did not consider the processing of wastes from mineral processing
operations (including commingled soils and waste materials from other sources) at
uranium or thorium mills. The GEIS gives no indication whatsoever that such wastes are
"ore," even if they were processed at a uranium or thorium recovery facility for their
"source material content." Clearly, the GEIS did not consider that the wastes from the
processing of such wastes would meet the definition of I 1e.(2) byproduct material.
Therefore, the GEIS did not evaluate, and the public did not have an opportunity
to comment upon, any of the possible health, safet5r, and environmental impacts of the
processing of other mineral processing wastes at uranium or thorium processing facilities.
l9
There was no evaluation of the transportation issues related to the transportation of such
wastes, nor were reasonable alternatives to the transportation, receipt, processing, and
disposal of such wastes at uranium or thorium mills ever evaluated.
C. EPA Regulatory Standards
1. The May 2O Response discusses the generally applicable standards
promulgated by the EPA for commercial uranium mill sites. Again, IUSA assumes that,
when establishing these standards, the EPA contemplated the processing of wastes from
other mineral processing operations (such as the Molycorp material) at uranium or
thorium mills. There is no basis for such as assumption.
UMTRCA directed the EPA to establish standards for uranium mill tailings and
directed the NRC to implement those standards. That statute, as codifiedin 42 U.S.C.
2022, states in pertinent paft:
Sec.2022. Health and environmental standards for uranium mill
tailings
(b) Promulgation and revision of rules for protection from hazards at
processing or disposal site.
(l) As soon as practicable, but not later than October 31, 1982, the
Administrator shall, by rule, propose, and within l l months thereafter
promulgate in final form, standards of general application for the
protection of the public health, safety, and the environment from
radiological and nonradiological hazards associated with the processing
and with the possession, transfer, and disposal of byproduct material, as
defined in section 20l4e)(2) of this title, at sites at which ores are
processed primarily for their source material content or which are used for
the disposal of such byproduct material. . . . [Emphasis added.]
Requirements established by the Commission under this chapter
with respect to byproduct material as defined in section 2oH(e)(2) of this
title shall conform to such standards. Any requirements adopted by the
Commission respecting such byproduct material before promulgation by
the Commission of such standards shall be amended as the commission
deems necessary to conform to such standards in the same manner as
20
provided in subsection (0(3) of this section. Nothing in this subsection
shall be construed to prohibit or suspend the imprementation or
enforcement by the Commission of any requirement of the Commission
respecting byproduct material as defined in section 2OA(e)(2) of this title
pending promulgation by the Commission of any such standard of general
application. In establishing such standards, the Administrator shall
consider the risk to the public health, safety, and the environment, the
environmental and economic costs of applying such standards, and such
other factors as the Administrator determines to be appropriate.**r.
(d) Federal and State implementation and enforcement of the standards
promulgated pursuant to subsection (b) of this section shall be the
responsibility of the Commission in the conduct of its licensing activities
under this chapter. states exercising authority pursuant to section
202l(b)(2) of this title shall implement and enforce such standards in
accordance with subsection (o) of such section.
42 U.S.C. 2U22(b) and (d).
Congress directed the EPA only to establish standards for "sites at which ores are
processed primarily for their source material." The EPA, as mandated by UMTRCA,
finalized the "Environmental Standards for Uranium and Thorium Mill Tailings at
Licensed Commercial hocessing Sites" in 1983. 48 Fed. Reg. 45925 45947, October 7,
1983. In the "Summary of Background Information" the EPA provides a discussion of
"The Uranium Industry" (i.e., the industry that the regulations apply to):
The major deposits of high-grade uranium ores in ttre United States
are located in the colorado Plateau, the wyoming Basins, and the Gulf
Coast Plain of Texas. Most ore is mined by either underground or open-
pit methods. At the mill the ore is first crushed, blended, and ground to
proper size for the leaching process which extracts uranium. . . . After
uranium is leached from the ore it is concentrated . . . . The depleted ore,
in the form of tailings, is pumped to a tailings pile as a srurry mixed with
water.
Since the uranium content of ore averages only about 0.15 percent,
essentially all the bulk or ore mined and processed is contained in the
tailings.
48 Fed. Reg.459?5,45yn, October 7,1983.
21
Clearly, when the EPA developed its standards for uranium and thorium mills,
they stated, with specificity and particularity, what uranium ore was, what uranium
milling consisted ol and what uranium mill tailings consisted of. EPA clearly stated that
the standards applied to the processing of uranium and thorium ores at uranium and
thorium mills. There is no reasonable evidence that would indicate that the standards
promulgated by the EPA applied to the processing of wastes from other mineral
processing operations at uranium and thorium mills.
Additionally, the EPA incorporated UMTRCA's definition of 1le.(2) byproduct
material, as clarified by the NRC in l0 C.F.R. 4O.4, into their standards at 40 C.F.R.
Subpart D, S l!D.31(b). Since that time the EPA has not amended their definition of
I le.(2) byproduct material in a rulemaking proceeding, nor have they amended their
definition via policy guidance. The EPA has not, in any manner, widened the use of the
words "any ore" to include mineral processing wastes such as the Molycorp material. As
will be discussed below, the EPA did not sanction the NRC's policy guidance with
respect new definitions of "ore" and lle.(2) byproduct material.
Clearly, the EPA, as directed by Congress, has not in any manner contemplated
the processing of wastes from other mineral extraction operations at uranium or thorium
mills when establishing the "Environmental Standards for Uranium and Thorium Mill
Tailings at Ucensed Commercial Processing Sites."
2. IUSA refers to EPA's hazardous constituent lists. IUSA's May 20 Response at
19. However, as shown above, when compiling that list and incorporating that list into
40 C.F.R. Part 192, the EPA did not in any manner contemplate the processing of wastes
22
(such as the Molycorp material) from other mineral extraction operations (including
commingled soils and waste materials from other sources) at the mills for which they
were establishing standards. The EPA did not address in any manner efFluents that might
result from the processing of feed materials that were the tailings and other processing
wastes from other mineral extraction facilities (such as the Molycorp facility).
In the various rulemaking proceedings that have taken place in the establishment
of the EPA standards, the public was given no opportunity to consider or comment on the
possibility that the EPA standards would also apply to the processing of wastes from
other mineral processing operations (including commingled soils and waste materials
from other sources) at uranium and thorium mills.
It is true that the EPA and the NRC, in establishing their regulatory program,
contemplated the processing of ores at uranium and thorium mills. However, as shown
above, processing of wastes (such as the Molycorp material) from other mineral
processing operations (including commingled soils and waste materials from other
sources) at uranium and thorium mills is beyond the scope of the regulatory program
established by the NRC and the EPA in response to UMTRCA
3. Furthermore, l0 C.F.R. Part40, Appendix A, Criterion 8, states in part:
Uranium and thorium byproduct materials must be managed so as to
conform to the applicable provisions of Title 4O of the Code of
Federal Regulations, Part 44O,ttote Mining and Dressing Point Source
Category: Effluent Limitations Guidelines and New Source
Performance Standards, Subpart C, Uranium, Radium, and Vanadium
Ores Subcategory," as codified on January l, 1983.
23
There is no indication that this NRC regulation and the regulation in 4O C.F.R.
pall!'{Q (and the enabling statute) have in any manner been amended or altered by
subsequent NRC policy guidance. Therefore, any shift in the usage of the word ,'ore,,
would conflict with these statutory and regulatory authorities with respect this regulation.
D. Regulatory History of NRC's Alternate Feed Guidance
1. The Licensee provides a discussion of the development of the NRC's
"Alternate Feed Guidance." IUSA's May 2O Response at20 to 23. IUSA's discussion is
actually a discussion of the NRC's development of the 1995 Final position and Guidance
Hearing File 10, Attachment C. IUSA does not specifically mention and only vaguely
discusses the 2000Interim Position and Guidance that the NRC used in its review of
IUSA's request to process the Molycorp material. Hearing File 10, Attachment D.
Additional information regarding the development of these two guidances is
warranted and provided here.
In the late 1980's the NRC was faced with a few requests to process material other
than ore. At that time, and today, there are two statutes or regulations (implementing
those statues) that are pertinent. First is the statutory definition of "source material"
established in 1954 by the AEA, found at 42 U.S.C. Sec. 2014{z),and in the NRC
regulatory definition of "source material" (established in l96l pursuant Sec. 2014(z)),
found at l0 C.F.R.4O.4:
Source Material means: (l) uranium or thorium, or any combination
thereof, in any physical or chemical form or (2) ores which contain by
weight one-twentieth of one percent(o.o|vo) or more of. (i) uranium,(ii) thorium or (iii) any combination thereof. Source material does not
include special nuclear material.
The second is the definition of "byproduct material" in Section I l(eX2) of the
Atomic Energy Act of l954,as amended, (42 U.S. C Sec. 2OU{e)(2)) and the regulatory
definition of "byproduct material" found in l0 C.F.R.40.4:
Byproduct Material means the tailings or wastes produced by the
extraction or concentration of uranium or thorium from any ore processed
primarily for its sourcs material content, including discrete surface wastes
resulting from uranium solution extraction processes. Underground ore
bodies depleted by such solution extraction operations do not constitute
"byproduct material" within this definition.
The NRC had several options, including the denial of the amendment requests.
One option would have been to go to Congress and request that Congress change the
definition of I Ie.(2) byproduct material to read nthe tailings or wastes produced by the
extraction or concentration of any er€ material processed primarily for its source material
content." NRC Staff made a determination that they would not go to Congress to seek an
amendment to the AEA of 1954.
Instead, what the NRC did was to manipulate the use of the word noren as it is
used in the definition of I le.(2) byproduct material. NRC proposed in a notice and
comment proceeding, that a policy guidance be established for the purpose of interpreting
the term "ore," as it is used in the definition of l le.(2) byproduct material. 57 Fed. Reg.
?fi525 (May 13,l9y2), Hearing File 10, Attachment M. The NRC did not institute a
rulemaking proceeding to amend l0 C.F.R. Part4o..
The Final Position and Guidance gave a new definition of ore:
Ore is a natural or native matter that may be mined and treated for
the extraction or any of its constituents or any other maffer from which
source material is extracted in a licensed uranium on thorium mill.
60 Fed Reg. at 49296 (September 22,1995), Hearing File 10, Attachment C.
25
Based on the new use of the term "ore" as put forth in ttre proposed guidance, not
only would the definition of 1le.(2) byproduct material apply to "any ore processed
primarily for its source material contentn in a licensed uranium or thorium mill, but the
definition of I le.(2) byproduct material would also apply to any material (particularly
wastes from various mineral extraction operations and various commingled wastes and
materials) processed primarily for its source material content in a licensed uranium or
thorium mill. In o&er words, NRC altered the accepted meaning of the word "ore" as
that word ore was used in a statutory definitions.
2. On May 14, lW2, NRC Statr, sent a letter to the Environmental hotection
Agency, enclosing a copy of the May 13 proposed rules and requested EPA comment on
two proposed guidance documents and their associated staff analyses. I-etter from Robert
M. Bernero, Drector, Office of Nuclear Material Safety and Safeguards, NRC, to Sylvia
K. Lowrance, Director, Office of Solid Waste, EPA, May 14, 19g2. Appndix 2.
The EPA did not submit comments on the proposed policy guidances. The only
documentation of EPA's response to that request for comment is quoted below and is
found in the Commission Paper that forwarded the finalized guidances to the
Commission for their approval:
There was an issue that delayed finalization of the guidance
documents. In an october lw2, mixed waste rneeting between the NRC,
the EPA, and DOE staff, EPA identified potential inconsistencies in
NRCs interpretation of the definition of source material in conjunction
with the exclusion of source material from the definition of solid waste in
the Resource conservation and Rec-overy Act (RCRA). In making its
pornt, EPA cited the May 13,1992, Federal Register notice on the disposal
of non-l le.(2) byproduct material. The staffhad delayed finalization of
the uranium recoyery policy guidance documents, pending resolution of
the source material definition issue. However, the staff has now decided
26
that these two policy guidance documents can be finalized, independent ofthe source material issue, because the guidance is not dependent on theinterpretation of the definition of source material.
"Final 'Revised Guidance on Disposal of Non-Atomic Energy Act of lgs4,Section
lle.(2) Byproduct Material in Tailings Impoundments'and Final 'Position and Guidance
on the Use of Uranium Mill Feed Materials Other Than Natural Ores,," SECY-95-221,
August 15,1995.
The hoposed Position and Guidance and the Final Position and Guidance gave no
indication that the NRC was amending, interpreting, or in any manner adjusting the
accepted meaning of the term "ore" as that word is used in the statutory and regulatory
definition of "source material." Hearing File, Attachments C and M. Nor was there any
discussion in the various guidances related to the processing of material other than
natural ore (i.e., material that is not ore at all) of how the exemptions set forth in
l0 C.F.R. $aO.l3(a) and (b) would be impacted by guidance's new definition of ,,ore,,
There is no indication that the "source material definition issue" has ever been
appropriately addressed or resolved. It is an issue that has lain in some pretty murky
regulatory waters for quite some time.
Now, within a specific licensing action, the NRC has proposed to partially resolve
what has never before been put before the public in either a notice and comment
proceeding, a rulemaking proceeding, or via Congressional legislation. That question is:
Does the new use of the term "ore," put forth in the Hnal Position and Guidance, affect in
any manner the definition of "source material" established in the Atomic Energy Act of
1954 or affect the exemptions set forth in $ aO. l3(a) and (b)? NRC Staff and IUSA have
27
brought forth this issue by calling the Molycorp material "source material ore," as
contemplated by 42 U.S.C. Sec 2014(z)(2) and the second definition of "source material"
in l0 C.F.R. $ 4O.4.
It is plain from the Atomic Energy Act of 1946 andthe legislative history of the
AEA of 1954 and the Uranium Mill Tailings Radiation Control Act of t9?8 and the
regulatory history of the AEC, EPA, and NRC rules promulgated responsive to those
laws, that the Policy Guidance's new use of the term "ore" goes far beyond the accepted
meaning of that term and the clear intent of Congress. Therefore, NRC cannot make use
of the new definition of "ore" to claim that the Molycorp material is "source material ore"
or to claim that the wastes produced from the processing of that material meets the
statutory definition of "l le.(2) byproduct material."
The applicability of various environmental regulations to a great degree depends
upon definitions. Congress, in their legislative function, often specifically defines words
or phrases related to the application of a statute to a particular material or
circumstances-when there is a need for explanation. However, when using words or
terms with a common and long accepted meaning, such as groundwater, mill, tailings, or
"ore," no explanation or definition is necessary.
The NRC is not authorized to shift these accepted definitions at will as an
expression of their "regulatory flexibility." This is especially so when such shifts result
in direct conflicts with NRC's own enabling statutes and regulations, as is the case with
the use of the newly defined term "ore." Additionally, NRC is not authorized to shift
28
definitions at will when such shifrts directly conflict with the statutory authority and
regulations of another federal agency, in this case, the EPA.
3. Environmental Considerations
IUSA asserts:
It is important to note that the AFG was not and is not primarily focused
on potential health and safety concerns of processing alternate feed. This
is not to suggest that health and safety analyses associated with processing
any given alternate feed are not required. Indeed, the AFG expressly
states that a licensee must demonstrate that any alternate feed can be
processed in compliance with NRC's l0 C.F.R. part 4O, Appendix A
requirements. However, assuming that such compliance can be
demonstrated, the primary concern is a policy concern-avoidance of the
potential impacts of dual jurisdiction.
IUSA's May 29 Response at 21
The NRC issued the 1995 Final Position and Guidance and the 2000Interim
Position and Guidance without conducting any assessment of any of the health, safety, or
environmental effects of establishing the new and substantively different regulatory
program that resulted from the issuance of the Final Position and Guidance. At the White
Mesa Mill, this new recovery program-a program that started with the processing of a
few small batches of wastes from other mineral processing operations to supplement the
processing of uranium ore-has grown to be the only mineral recovery program and
entails the receipt and processing of hundreds of thousands of tons of wastes from other
mineral processing operations (mixed with contaminated soils and wastes from other
sources) from across the country.
The adverse environmental effects (including cumulative effects) of this new
program have notbeen adequately identified and evaluated. Therefore, there has been no
29
opportunity to mitigate any of the adverse environmental effects. Further, no NEPA
document has ever considered the reasonable alternatives to the proeessing of wastes
from other mineral processing operations at uranium and thorium recovery facilities.
E. UMTRCA and the AEA
IUSA states:
Although UMTRCA, as it amends the AEA, does not specificaily
define what constitutes any ore,the commission has deveroped the
following definition . . . .
Petitioner would assert that, UMTRCA, as it amends the AEA, clearly specified
what constitutes "any ore." What constitutes "any ore" is "any ore." The plain language
of the Act and the history of the implementation of the Atomic Energy Act of l!X6, as
amended by the Atomic Energy Act of 1954 and the Uranium Mill Tailings Act of lyl1,
is all that is needed to determine what "ore" or "any ore" is. As discussed above, clearly
the legislative and regulatory history of the AEA and Tifle l0 of the Code of Federal
Regulations make plan the meaning of the term "ore" and the term "any ore."
Petitioner would also assert, as put forth in the April 14 Second Supplement to
Sierra Club's Written Presentation, that the NRC's use of the word "ore" for waste
materials from mineral processing operations is unreasonable, and not permitted under
the plain language of the AEA. No federal agency can use a licensing action or a policy
guidance to expand upon and substantively alter the explicit will of Congress when that
will is explicitly set forth in a statute or statutes. The NRC does not have the discretion
to use this licensing action or a policy guidance to substantively alter the statutory
definition of nsource material" or the statutory definition of I le.(2) byproduct material.
30
IV. PETITIOI\IER'S ISSUES
A. Lead Content of the Molycorp material.
l. IUSA discusses the lead content of the Molycorp material and draws certain
conclusions. IUSA May 2O Response at 36 to 53. The Licensee states:
First, EPA's and NRC's regulatory programs specifically
contemplated that heavy metals, including, specifically lead, would,be
present in conventional natural uranium ores and that the tailings from
processing such ores would be disposed of in uranium mill tailings
impoundments.
IUSA May 20 Response at 38.
Further, IUSA discusses the EPA Final Environmental Impact Statement for
Standards for the Control of Byproduct Materials from Uranium Ore Processing,
EPA520/-I-83-08, ('FEIS"). (Upon receipt of IUSA's May 20 Response, Petitioner
requested a copy of the FEIS from the EPA, but, apparently, due to the length of time it
takes to copy that document from numerous microfiche, the FEIS has not arrived.)
As quoted above at20, the EPA (in promulgating the "Standards for Uranium and
Thorium Mill Tailings at Licensed Commercial Processing Sites) clearly stated what
"uranium ore processing" consists of. 48 Fed. Reg. 45926 (October 7, 1983). That
quoted statement was also included in the proposed rule, as it was put forth for public
comment, including public hearings. 48 Fed. Reg. 19584 (April 29,1983).
EPA's regulatory program did not contemplate the mixing of the various non-
radiological wastes contained in the Molycorp lead sludge with the various other non-
radiological wastes that are contained in numerous other "alternate feed materials" that
have been processed and disposed of at the White Mesa Mill. Such non-radiological
3l
wastes as are found in the wastes from other mineral processing operations (some of
which have been mixed with various other wastes not associated with the operation but
are contaminates that became mixed with the processing wastes over time because there
was no regulatory control over those processing wastes) are not materials that are
normally found in uranium "ore."
Clearly, the processing and disposal of the Molycorp material at the White Mesa
Mill is an activity that was never contemplated by the EPA when it promulgated
standards for uranium and thorium mills. Therefore the processing of the Molycorp lead
sludge does not fall within EPA's regulatory program as set forth in 40 C.F.R. Part lT2.
Since the EPA's standards did not contemplate the processing of wastes from
other mineral processing operations, then the NRC regulations that were promulgated to
conform to those standards could not have contemplated such activities. As discussed
above at 9 to 19, neither UMTRCA, the GEIS, nor 10 C.F.R. Part 4O Appendix A
contemplated the processing of wastes from other mineral processing operations at
uranium and thorium mills. Therefore, the processing of the Molycorp lead sludge does
not fall within NRC's regulatory program as set forth in 10 C.F.R. Part 4O.
2. IUSA discusses the lead in the tailings impoundment and the lead in the
Molycorp material. IUSA Response at 39 to 40.
However,IUSA has given no comparison between the chemical characteristics of
the lead compounds that are present in the tailings impoundment because they are the
natural decay products of uranium -238 and uranium-235, and the chemical characteristics
of the various lead compounds of the Molycorp material that are not the natural decay
32
products of uranium. Therefore, there is no basis for the assumption that the lead
compounds already in the tailings are the same as the lead compounds in the Molycorp
material, and therefore will not cause any incremental harm. The disposal of the 17, 000
tons of the Molycorp material will either approximately double or triple the parts per
million of lead in the tailings impoundment. That is certainly an incremental increase in
the lead contained in the tailings impoundment.
The NRC's regulatory program did not specifically address the effect the acidity
of the tailings impoundment would have on the transport or bioavailability of the lead
compounds (whether from the decay of uranium or elsewhere) in the tailings
impoundment. GEIS ^t6-9.
Additionally, when the NRC developed the GEIS they did not have available the
data from the last twenty years regarding the transport of various radiological and non-
radiological constituents from tailings impoundments through groundwater at the mill
sites.
3. IUSA asserts that the amount of lead that can be in solution in the tailings
ponds is limited due to solubility constraints. IUSA quotes Mr. Roman Z.\ih,and
draws conclusions:
"Based on a recent sample taken in April 20[12,leadwas measured at 17
mglU'in the Mill's tailings cells. In addition, "[o]ther recent samples
ffirom the tailings cells'l indicated iron and sulfate measurements of up to
10,000 mglL and up to 289,000 mE[L, respectively." Based on these
measurements, Dr. forih concludes: "The levels of these and other
constituents limit the amount of lead that can be in solution to
approximately 20 mglL, regardless of the total inventory of lead in the
tailings."
33
Despite the fact that the Molycorp material contains elevated
concentrations of lead,this lead content will not be a constituent that is
not already contained in the Mill's tailings cells nor will the introduction
of the Molycorp material increase the concentration of lead in the tailings
cells or solution in any significaru way. Bmphasis in original.l
ryrih Affidavit at2 and IUSA's May 20 Response at4O.
Based on IUSA's own data and experts, the Molycorp material will increase the
soluble lead in the tailings ponds from 17 to20 mdL. This is an l87o increase. Eighteen
percent is statistically significant. Therefore, IUSA erred in concluding that the
Molycorp material will not increase the concentration of lead in the tailings cells or
solution in any significant way.
IUSA expert Ms. Jo Ann Tischler states that:
"With the exception of lanthanum oxide, every one of the components reported
by Molycorp in the radioactive Material Profile record and characterization
data for the pond and drum materials have already been identified in reported
analytical data for ores processed at the Mill or their resulting tailings." Bootnote
omitted.l
Tischler Affidavit at 3.
IUSA concludes:
This information led Ms. Tischler to conclude that, "processing of
Molycorp material would introduce no new compounds to the Mill process
circuit or tailings system."
IUSA's May 2O Response at 40 to 41.
Ms. Tischler erred in concluding that the Molycorp material would introduce no
new compounds to the Mill process circuit or tailings system. As she herself stated, the
lanthanum oxide in the Molycorp material is a new compound. Neither IUSA nor the
34
NRC Staff has evaluated how this material will interact with other compounds in the
Mill's tailings cells. Ms. Tischler states:
Because lanthanum oxidizes so readily in ambient air, lanthanum in
natural ores in reduced form would have been converted to lanthanium
oxides while stored in open piles, which are exposed to air on the Mill ore
pad prior to Processing.
Tischler Affidavit at 3.
However, elsewhere we are assured that the Molycorp material is moist and will
be kept moist (or covered) during storage at the Mill. Tischler Affidavit at l0
IUSA asserts that there are no lead oxides in the Molycorp material and that
processing the lead sulfide in the Molycorp material will yield lead sulfate. IUSA's May
20 Response at 43 to 4. Ms. Tischler states that lead sulfate is of lower toxicity and
reactivity than lead sulfide. IUSA's May 20 Response at46..
Petitioner's expert Dr. Paul Grossl disagrees with Ms. Tischler:
[f]his doesn't make the lead safer. Lead sulfate is more soluble and will
therefore render lead more bioavailable than lead sulfide.
Grossl Declaration at l. Appendix 4 hereto.
The fact that processing will convert the lead sulfide in the Molycorp material to
lead sulfate does not answer Petitioner's concerns about the toxicity, mobility and
bioavailability of the lead in the sludge. Instead, this fact only strengthens our argument
that this material poses a significant, new, incremental threat to public health and safety
and the environment.
35
Furthermore, Dr. Grossl explains that the solid form of the Molycorp lead,
whether lead oxide, lead sulfide or lead sulfate, becomes irrelevant once the lead is
dissolved in the tailings solution:
Once lead is soluble as the free lead ion, which is the case in the acidic
environment of the tailings waste, it is a highly mobile toxin and the solid
form in which it may reside (i.e., lead oxide,lead sulfide or lead sulfate)
becomes irrelevant.
Id.
IUSA's expert Dr. Douglas Chambers states:
Since lead was present in ores such as those from the Arizona Strip which
have already been processed at the Mill, the processing of the Molycorp
feed materials...do not represent any new or potentially significant
incremental hazards to workers.
IUSA's May 20 Response at49.
Petitioner takes issue with this conclusion, since the concentration of tead in the
Molycorp ore is 153 times greater than the amount of lead in the ore from the Arizona
St ip. (this figure is derived from Attachment 3 to Ms. Tischler's Affidavit, entitled
"Mill Tailings Inventory 5l3lW, Lead Content Average Case". According to this chart,
there were 863 parts per million (ppm) lead in the Arizona Strip ore and there are
131,977 ppm lead in the Molycorp pond mateial. 131,977 divided by 863 equals 153.)
Certainly a factor of 153 is statistically significant. One hundred fifty-three times more
ppm of lead, processed into a water-soluble form (lead sulfate), will indeed pose new and
significant, incremental hazards to workers.
36
B. The Thorium Content of the Molycorp Material
In their discussion entitled "The Thorium Content of the Molycorp Material"
(IUSA May 20 Response at 54 to 60), IUSA states that .IUSA May Process Ores
Containing Concenffations of Thorium Under Its NRC License." IUSA May 20
Response at 54. In the discussion that follows, without specifically referring to
Petitioner's April 1 ,z}}z,Initial hesentation or the specific section of NRC regulation
that the issue is related to (i.e., 10 C.F.R. $ 4O.51), IUSA appears to address the question
of whether Source Material License SUA-I358, as the transferee's license, authorizes "the
receipt of the type, form, and quantity of source material to be transferred."
IUSA's argument is without merit.
As shown above, the Molycorp material is not "ore" as contemplated by the
Atomic Energy Acts of 1946 and 1954, as amended; the 1980 GEIS; 10 C.F.R. Part 4O;
and 40 C.F.R. Part192.
Most of IUSA's discussion revolves around that fact the thorium-Z30 and
thorium-232 are found in natural uranium ores, and thus, it would be unreasonable to
restrict IUSA from receiving these materials "when they contain even a trace of thorium."
Here presence of thorium-230 is not applicable to the discussion, as thorium-230
is a product of the decay of uranium and is not an issue in the present proceeding. The
NRC does not specifically license thorium-23O. There are no thorium-23O processing
facilities that have been licensed by the NRC.
Nor are we here talking about thorium-232 in fiace amounts. Here we are talking
about thorium-23Z, aradioactive material with its own decay chain that is licensed by the
37
NRC and NRC Agreements States pursuant to 10 C.F.R. Part 4O under a source material
license. We are talking about the NRC regulations at l0 C.F.R. $ 40.51 that regulate the
transfer of licensable "source material."
The NRC or Agreement States, pursuant l0 C.F.R. 40.13(b), do not license ore
that contains uranium and/ore thorium. The Molycorp material does not fall under that
exemption because the Molycorp material is not "ore" as contemplated by the statutory
definition of "source material" and the exemptions to regulation under that statute.
The Notice of Proposed Rule Making for l0 C.F.R. Part 4O, implementing the
Atomic Energy Act of 1954, clearly states:
With certain specified exceptions, the proposed amendment requires a
license for the receipt of title to, and the receipt, possession, use, transfer,
import or export of source material.
25 Fed. Reg. 8619 (September 7 , l%O).
The relevant exemptions to that rule have not changed in forty years.
The AEC, the NRC, and Agreement States for a period of almost fifty years have
issued licenses that specifically stated the type, form, and quantity of (licensable) source
material that a licensee was authorized to receive, possess, use, transfer, import, or
export. It was the intent of Congress in passing the AEA of 1954 to strictly regulate the
possession, use, and transfer of source material.
Information regarding the type, form, and quantity of source material that a
licensee was authori zed to possess, use, or transfer is specifically set forth in License
Conditions 6,7, and 8 in any source material license whether issued by the NRC or an
Agreement State. Additional license conditions set forth the terms of the receipt,
38
possession, use, possession, transfer, import, or export of the subject licensable source
material. For example, License Conditions 6,7, and 8, Heritage Mineral, Inc., License
No. SMB-1541, permitted the licensee to possess thorium and uranium; Stepan Co.
(Maywood, New Jersey) License No. STC-I333 permits the licensee to possess thorium;
and IUSA License No. SUA-1358 permits the licensee to possess uranium. Note that the
NRC issues different types of licenses, depending on the type of source material licensed
at the facility. The Molycorp License for the drummed material permits the licensee to
possess and transfer source material uranium and thorium in License Conditions 6, 7,
and 8. Therefore, License Conditions 6, 7, and 8 of IUSA's License SUA-1358 must
state that IUSA is authorized to receive and possess both source material uranium and
thorium. IUSA is improperly avoiding requesting an amendment to these conditions.
Molycorp has proffered an application to cover the possession of the ponded
source material, but the State of California has not yet granted Molycorp a license to
possess and transfer the source material uranium and thorium contents of the ponded
material at Mountain Pass. Therefore, Molycorp is not authorized by applicable law to
transfer the ponded material to IUSA.
IUSA has not requested, and the NRC has not granted, an amendment to license
conditions 6,7, and 8 for the authorization to receive, possess, use, or transfer source
material thorium. Therefore, IUSA is not authorized to receive, possess, or use any of the
Molycorp material. IUSA did not even discuss the presence of licensed or licensable
amounts of source material thorium in the Molycorp material in their December 19,20fJ-7,
license amendment request.
39
If IUSA desires authorization to possess the type, form, and quantity of source
material thorium contained in the Molycorp material (which IUSA proposes to receive,
possess, and use at the White Mesa Mill), IUSA must request such specific authorization,
and the NRC must amend License Conditions 6,'7, and 8 to SUA-I358. To do otherwise,
would be to circumvent the AEA of 1954 and 10 C.F.R. $ 4O.51. NRC guidance, which
is neither a statute nor a regulation, cannot be used as a justification to violate a statue
and a regulation of long standing.
C. Source Material Thorium
IUSA discusses various aspects of thorium-Z32 and progeny and pays specific
attention to the presence of thorium-232in uranium ore and the EPA's generally
applicable standards set forth in 4O C.F.R. ly2.4l. This discussion leaves out certain
pertinent information.
IUSA has not provided any information that would document the presence (and
the amount) of thorium-232 in any of the ore processed at the White Mesa Mill. IUSA
has not provided any information documenting the presence of thorium-Z3? and thorium
minerals in any of the ores of the Colorado Plateau or other areas from which the White
Mesa Mill received ore.
D. Hazards of Thorium
l. IUSA states:
EPA also recognizes the presence of thorium in natural uranium ores and
alternate feed materials. In its gencrally applicahle stondards relating to
management of byproduct material, EPA has stated that "provisions
applicable to the element uranium shall also apply to the element
thorium." See4O C.F.R. 9192.41.
q
IUSA Response at 56.
Neither 40 C.F.R. Paft 192, nor its regulatory history, supports such an assertion.
IUSA misconstrues EPA's regulation. As discussed above, when promulgating 40 C.F.R.
Part 192, the EPA in no manner considered the processing of wastes from other mineral
extraction operations (including wastes not associated with such operations that are
commingled with those processing wastes). EPA did not, and does not today, consider
such wastes to be "ore," even when they are processed primarily for their uranium content
at a licensed uranium mill. l0 C.F.R. Subpart E, which established standards for
exposure to thorium, is entitled "Standards for Management of Thorium Byproduct
Materials Pursuant to Section 84 of the Atomic Energy Act of 1954, as Amended."
Section lyz.q (Applicability) states:
This subpart applies to the management of thorium byproduct materials
under section M of the Atomic Energy Act of 1954, as amended, during
and following processing of thorium ores, and to restoration of disposal
sites following any use of such sites under section 83(bXlXB) of the Act.
l0 C.F.R. Paftq, Appendix A, Criterion 8 (in part), which is based on the standards in
40 C.F.R. $ 192.41 for management of thorium, requires:
Milling operations producing or involving thorium byproduct material
must be conducted in such a manner as to provide reasonable assurance
that the annual dose equivalent does not exceed 25 millirems to the whole
body,75 millirems to the thyroid, and25 millirems to any other organ of
any member of the public as a result of exposures to the planned discharge
of radioactive materials, radon-220 and its daughters excepted, to the
general environment.
IUSA provides no information as to how it intends to meet the requirements of 4O
C.F.R. S ly2.4l and 10 C.F.R. Pafi4D, Appendix A, Criterion 8 at the White Mesa Mill.
EPA does not make any statement that indicates recognition of "the presence of
thorium in natural uranium ores." Nor does Subpart E, or its regulatory history, contain
any statement that indicates a recognition that the "processing of thorium ores" includes
the processing of wastes (containing source material thorium) from other mineral
extraction operations. There is no indication that the EPA ever considered the processing
of any source material thorium (whether or not the thorium was removed in that
processing) at a licensed uranium mill when they promulgated 10 C.F.R. Patt 192. There
is no indication that the EPA ever considered the processing of a waste material
containing source material uranium and source material thorium for just its source
material uranium content, then disposing of the source material thorium content in the
uranium mill tailings impoundment.
2. IUSA states:
While thorium-232 can pose a potential occupational hazard due to
increased gamma radiation . . . .
IUSA's May 2O Response at 56.
However, as shown in Sierra Club's initial written presentation, thorium-232 and
progeny are also alpha and beta emitters. April 1 ,2W2, Sierra Club Written hesentation
atl2. Radi um-228, a progeny to thorium-Z3Z, unlike Radium-226 of the uranium decay
chain, is a beta emitter. Radon-220 (thoron), another progeny of thorium-232is a short
lived alpha emitter that breaks down to particles before it has a chance to be exhaled from
the lungs. Ftadon-Z2} the progeny of uranium, has a longer half life of 3.8 days. The
42
radiotoxic progeny of thorium -232 have shorter half lives than the progeny of uranium
and, thus, are hotter. Thorium-2}8, aprogeny of thorium-232, with a half life of 1.9
years, is a beta emitter.
As discussed in the April 10, 2W2, Supplement to Sierra Club's Written
Presentation at22to 25,IUSA has established Standard Operating Procedures (SOPs) for
the handling of materials containing thorium-Z3? and, progeny. The SOPs established
"special procedures to be followed, which are over and above those required for
conventional ores or other alternate feed materials." "Standard Operating Procedures for
High Thorium Content Ore Management,n IUSA, December 18,2000. Such SOPs
include the use of special protective equipment by the personnel at the White Mesa Mill.
These procedures are necessary because, as recognized by the NRC and IUSA,
thorium-232 and, progeny present additional radiological risks not encountered in most
uranium bearing materials. The SOPs also require IUSA to handle the wastes from the
processing of materials containing thorium-232 and progeny in a manner that is more
protective of the health and safety of the public, the workers, and the environment.
Neither IUSA, nor the NRC, has given an adequate risk based explanation as to
why the SOPs for the handling of thorium materials should not apply to the Molycorp
material.
E. Molycorp Material Poses Threat to Wildlife
l. IUSA asserts, "First and foremost, IUSA's tailings cells are not leaking."
IUSA's May 20 Response at7l.
43
Petitioner responds that IUSA has presented no evidence that the tailings cells are
not leaking, while Petitioner has presented a great deal of evidence that they are leaking.
IUSA asserts:
The fact that the Mill's tailings cells are not leaking is further evidenced
by the fact that the tailings cell is inspected annually and have [sicl been
approved by EPA.
IUSA's May 20 Response at 86 (Footnote I l5).
Petitioner responds that a visual inspection will not detect leaks.
IUSA asserts:
Dr. Chambers concludes that, "birds or wildlife living around the Mill
would not be exposed to any new or potentially significant, incremental
hazard from lead."
IUSA's May 20 Response at 51.
Petitioner responds that an 187o inqease (from 17 to 2O mg/L) of dissolved lead
in the tailings ponds is a statistically significant increment. This increment becomes
substantially more significant when applied to the California condor, because there are
only 189 California condors in the world. If only one California condor died from lead
poisoning from eating a waterfowl contaminated with Molycorp lead, it would be
statistically significant -- not to mention a tragedy.
IUSA asserts that "the mallard represents l47o of the eagles [sicl total diet."
IUSA's May 20 Response at52.
Petitioner's expert Mr. Timothy Chervick, a professional wildlife biologist and
specialist in raptor monitoring and Threatened and Endangered Species, explains that in
4
winter (which is when bald eagles frequent the White Mesa vicinity), mallards comprise
SOVo of the eagle's diet. Chervick Declaration at 2. Appendix 5 hereto.
Thus, the bald eagle's risk of lead poisoning from the Molycorp lead is greater
than Dr. Chambers predicts.
Dr. Chambers estimates that:
tTlhe concentration of leodin the tailings cell water would need to
approach 6O0 mg/L, (well above the level of lead anticipated in the
tailings ponds about 20 mg/L), before an eagle would experience toxicity
from the intake of lead arising from the ingestion of mallards which drink
from the tailings cells.
IUSA's May 20 Response at52.
Mr. Chervick responds that bald eagles preferentially eat the viscera of mallards
during cold months. Additionally, in winter mallards reduce circulation to their skin and
extremities in order to increase blood flow to visceral organs. Thus:
Any ingested tailings pond water containing dissolved lead would
concentrate in the increased blood flow to the viscera of the mallard
during cold stress winter months. Since birds of prey such as eagles feed
on internal organs of the prey, they could receive a more concentrated
dose of dissolved lead within the visceral blood and organs of the mallard
duck due to vasoconstriction of the extremities.
Chervick Declaration at 2.
In addition, Dr. Chambers never addresses Petitioner's concern that lead on the
feathers of a mallard that landed on a White Mesa Mill tailings pond would contaminate
any bald eagle, California condor, or other raptor or scavenger that might attempt to eat
it.
Because bald eagles in the vicinity of the Mill would preferentially eat mallard
viscera, which would contain a more concentrated dose of dissolved lead, and because
45
the eagles would have to tear through a contaminated mallard's feathers in order to eat it,
the eagles' risk of lead poisoning from the Molycorp lead is much greater than Dr.
Chambers predicts.
Dr. Chambers assefts:
It is likely, in my opinion, that waterfowl and other wildlife would find
this source of water unpalatable and therefore tend to avoid it.
IUSA May 2O Response at 53.
As Mr. Chervick points out, IUSA did not provide any data or studies showing the
palatability of tailings pond water to waterfowl, so this opinion is merely a theory without
scientific facts to support it. Chervick Declaration at2.
IUSA also asserts that "the effect on eagles of the consumption of mallards is an
appropriate example of similar effects of lsic'l other raptors and wildlife." IUSA's May
20 Response at 52, Footnote 79.
This assertion is wrong. The eating habits of California condors are completely
different from those of bald eagles. As stated in the Third Supplement to Petitioner's
Presentation in this hearing, condors are not predators; they are scavengers. They
would be drawn to eat a mallard that died from landing on one of IUSA's tailings ponds.
3. IUSA asserts:
IUSA has implemented additional mitigation measures to discourage
wildlife from landing in the tailings cells and being harmed by the tailings
solutions. These measures include the use of propane cannons and raptor
decoys to scare the waterfowl away and the development of freshwater
ponds which provide a more attractive habitat for wildlife to attract them
away from the tailings cells during migratory seasons.
IUSA's l4av 20 Response at 53.
M
This comment does not address the evidence provided by Petitioner that IUSA
does not appear to be using its propane cannons, and that waterfowl become accustomed
to propane cannons and raptor decoys. In addition, Mr. Chervick believes waterfowl will
be atffacted to the un-netted tailings ponds in winter when the fresh water ponds are
frozen:
Due to the heavy metal salt concentrations within the tailing cells which
would lower the freezing point of this water, these tailing cells would then
become the a4blopen water available to waterfowl in the mill area, and
could increase the probability of these birds landing on these water bodies
that are exposed and un-netted. Bmphasis in original.l
Chervick Declaration at 3.
In conclusion, the responses of IUSA's experts to Petitioner's concerns that
wildlife will be harmed by the addition of the Molycorp material to the White Mesa Mill
tailings ponds are conjectural, lack scientific rigor, were not prepared by wildlife experts,
and should be summarily dismissed.
F. IUSA's Defense-In-Depth Tailings Containment System
IUSA states that the Mill's tailings containment system is a "defense-in-depth"
system "based first on the hydrogeological conditions of the site, second, on the design
and construction of the tailings cells, and, third, on the NRC POC groundwater
monitoring program." IUSA's May 20 Response at 60.
Petitioner responds that it is improper for IUSA to rely first on the
hydrogeological conditions of the site rather than on properly engineered tailings ponds,
and it is improper, unethical, and probably illegal for IUSA to consider the perched
aquifer a disposable component in their containment strategy. Mr. Ivan Weber,
engineering specifier/contracts manager and environmental planner for Kennecott Utah
47
Copper Corporation's source control, remediation and contaminated water management
projects for ten years, unequivocally condemns the "defense-in-depth" approach:
The "intent" for this site, we must conclude, assumed that the liner would
leak, that contaminated waters would travel through underlying soils and
bedrock attenuated to whatever degree would happen, but that distance
and time of travel would provide sufficient delay before discovery of these
occulrences, thereby qualifying the plan as "prudent engineering design'"
We must reject any engineering concept so accepting of containment
failure, especially of waters as acidic and loaded with metals as these
process waters.
Weber Declaration at2. Appendix 3 hereto.
The choice should never have been considered, to use the vadose zone for
"natural aftenuation" or the perched aquifer for dilution, as an aggregate
excuse for investing minimally in a poor liner containment system.
Id. at 7.
Below are specific comments related to IUSA's "defense-in-depth"
approach. The comments are divided into five categories: Deficiencies in
Tailings Pond Construction, Interactions Between the Tailings Solution and the
Underlying Rock, the Perched Aquifer, the Regional Aquifer, and Monitoring'
G. Deficiencies in the Tailings Ponds
l. IUSA states:
The Mill's tailings cells were designed and constructed in
accordance with NRC standards, and NRC approved boththe design and
the construction of the cells. The Mill's original operating license
required that the tailings cells be designed to protect groundwater from
radionuclides and non-radiological (hazardous) wastes. As noted
previously, conventional uranium ores and alternate feed materials contain
heavy metats, and organic and inorganic chemicals are added in the
milling process. As a result, the tailings cells, including tailings liners,
were intentionally designed to be protective as both a radioactive waste
containment system and a non-radioactive hazardous waste disposal
sYstem.
IUSA's May 20 ResPonse at24.
48
Here IUSA does not document which NRC standards were used in the
construction of the White Mesa cells. The current Criterion 5,A in l0 C.F.R. Part 4O
pertaining to the construction of tailings cells were not promulgated by the NRC until
after the beginning of the construction of the White Mesa tailings cells. See 50 Fed. Reg.
41862, Oct 16, 1985.
There is no indication that the "NRC standards" that were used in the
construction of the White Mesa cells were established giving consideration to the
processing of wastes from other mineral recovery operations, such as the Molycorp
facility. There is no indication that the "NRC standards" as applied at the White Mesa
Mill during the construction of the tailings cells were applied considering that the
processing of wastes from other mineral recovery operations and the disposal of the
resulting wastes in the tailings impoundment would take place anytime during the
operation of the Mill.
There is no indication that when Criterion 5A or other Criteria in Appendix A of
Part 4O were promulgated, or amended, the processing of wastes from other operations at
any uranium recovery facility was considered in the rulemakings. Therefore, the public
had no opportunity to comment on whether or not the Criteria in Appendix A would be
protective of the health and safety of the public when a uranium mill, such as White
Mesa, instituted a new kind of uranium recovery operation (i.e., the processing of wastes
from other mineral recovery operations such as the wastes from the Molycorp facility).
When the tailings cells were constructed they were not consfructed contemplating
the processing of wastes at White Mesa from other mineral recovery operations. The
49
public, in commenting on the Draft Environmental Sstatement for the White Mesa Mill
was not provided an opportunity to comment on the construction of the mill tailings
impoundments considering that the processing wastes from other operations, such as the
wastes from the Molycorp facility in Mt. Pass, would be disposed of in the tailings
impoundment. Hearing File 19.
IUSA provides no information as to how the specific chemical constituents in the
Molycorp materials were specifically taken into consideration during the design and
construction of the White Mesa tailings impoundments.
2. Specifically, IUSA claims:
A porous bedding layer was installed beneath the synthetic liner to assist
in transport of massive leakage to a seepage collection system at the toe of
the cell embankments. . . . A drain system on top of the liner was designed
to assist in reducing hydraulic pressure on the liner. . . .
IUSA's May 20 Response at28.
Petitioner responds that consffucting a porous bedding layer beneath the synthetic
liner and a drain system on top of the liner was not in accordance with either NRC
guidance OR best engineering practices. In its 1979 Final Environmental Statement
(,FES*), the NRC required placing a clayey-silt soil both over and under the tailings cell
liners. Hearing File 19 at 10-9. If porous materials were used instead, either the tailings
ponds were not constructed in accordance with NRC guidance or NRC lied to the public
in the FES.
Further evidence that NRC expected the Mill to use clay as a de facto second liner
is the Staff's response to a question from the Department of the Interior, "What is the
permeability or estimated life of the liner for the tailings ponds?" NRC responded, "If
50
properly installed, permeabilities less that [sicl l0eare expected." Hearing File 19 at A7-
A8. In the Declaration of Ivan Weber, Appendix 3 hereto, Mr. Weber notes that
hydraulic permeability of l0-eis extremely resistant to flow:
It would describe a very high-quality, carefully selected, rigorously
conditioned and installed clay, with very highly disciplined quality
assurance / quality conffol in the form of laboratory moisture verification
testing, backed up by field permeability testing at frequent intervals
(single-rin g or double-ring i nfi ltrometer methods).
Weber Declaration at4.
3. IUSA asserts:
The Mill's tailings cell liner system was designed taking into
consideration the scenario of liner leakage, including the potential for both
massive and small 'pinhole' leaks.
IUSA's May 20 Response at28.
This assertion in no way answers Petitioner's contention that the liners probably
already leak because of 1) punctures from crushed rock both under and on top of the
liners, 2) rips caused by heavy machinery during placement of crushed rock on top of the
liners, and 3) liner embrittlement due to aglng, acid degradation, and decomposition from
exposure to hydrocarbons. All of these forms of leaks range in size somewhere between
"pinhole" and "massive".
Mr. Michael Taylor, who designed the tailings ponds,lists only three examples of
"what-if' scenarios that he considered: pinhole leaks (IUSA's May 20 Response,
Appendix 4 at6), massive leaks (Id.) and slope stability (Id. at 5). He does not describe
"what-if'scenarios involving leaks from holes between pinhole-size and massive-size.
He seems to have a better memory of "what-if' scenarios for bridge construction; he lists
51
norrnal trafFrc loading, weather conditions, excessive wind, earthquake loading,
vibrations from unusual traffic, and impact by boat traffic under the bridge. ld. at2-3.
This leaves Petitioner with the distinct impression that the "what-if'scenarios that are of
the most concern to us - those that were likely to cause moderate-sized leaks -- were not
considered.
Mr. Taylor describes how the liners were installed:
First a bedding layer was placed in the areas to be lined. The bedding
layer materials were obtained by crushing the weathered rock and soils at
the site with a self-propelled Caterpillar 825 sheeps-foot compactor to
obtain materials with the grain size distribution of coarse sand. . . . The
placed bedding material was compacted with a smooth drum vibratory
roller. The surface was inspected by on-site engineering personnel to see
if any large particles still existed and if they did, these particles were
removed by hand or the area recompacted.
IUSA's May 20 Response, Appendix 4 at 10.
Mr. Weber is sharply critical of this construction method:
Contrary to Mr. Taylor's contentions, sheeps-foot compactors and smooth-
drum rollers don't produce sandJike particles, and they don't screen
materials against the occurrence of sharp, angular particles; indeed, they
don't even break down larger particles very well, but rather tend only to
force them together crudely below an approximate plane of equipment
operation. Visual inspection of acres and acres by "on-site engineering
personnel" offers little chance of preventing enough sharp particles to
remain that the FML will not be perforated at intervals. Subsequent
loading and movement during liner placement and during soil covering
operations, and then during loading with fluids and tailings, are bound to
cause differential settling, additional penetrations, and enlargement of
some of these openings.
Weber Declaration at 3.
52
After reviewing this description of the actual construction by Mr. Taylor, Mr.
Weber concluded that the construction of the tailings cells was fatally flawed,
necessitating their closure, dewatering and replacement:
In sum, the system was inadequately conceptualized and poorly
constructed, as we contended in our previous comments. Mr. Taylor
provides no new evidence otherwise. The only remedy to these
deficiencies is closure, dewatering and either replacement or facility
decommissioning.
Id.
Mr. Taylor says slimes accumulate in the drain system on top of the liner, creating
a self-sealing "tight layer of relatively impermeable materials" that "provides another
barrier to the escape of tailings fluid from the solids retention cells". IUSA's May 20
Response, Appendix 4 at 8. This suggests that IUSA is counting on slimes among the
crushed rock on top of the liner to serve the same function as the clay layer that was
specified by NRC.
As Mr. Weber points out, IUSA can't have it both ways. If this drain layer on top
of the liner is working, then fluids can move through it to be drained off. On the other
hand, if the slimes that have accumulated in the drain layer provide a tight, relatively
impermeable barrier for fluids, fluids cannot move through it. "Compaction of fines must
still allow flow pathways to exist or the piping system would cease to work. . . . Pumps
evacuating the fluids from the cells would cavitate and be ruined." Weber Declaration at
5. Since Mr. Taylor says these drains are periodically emptied (IUSA's May 2O
Response, Appendix 4 at 8), the drain layer cannot possibly be serving as a "tight layer"
that "provides another barrier to the escape of tailings fluid." Id.
53
4. On November 28,2AO1, the State of Utah, Department of Environmental
Quality, Division of Radiation Control (.DRC') sent IUSA a Request for Additional
Information regarding the "December 31, 1998 Knight Piesold Report on Seepage Flux
from Tailing Cell 3 Liner, White Mesa Mill.. Petitioner Bill Love's April 1 Written
Presentation, Attachment K. The DRC asked IUSA specific, detailed technical questions
regarding the liner in Cell 3 and the construction of Cell 3,including questions regarding
a claim that a "composite liner exists under Cell 3," the liner bedding permeability on the
sideslopes and cell floor, assumptions regarding the seepage flux, the assumed flaw rate
of the linern destructive testing of the liner, limitations of tests using "air lancing,"
puncture potential during installation, apparent lack of quality control for wrinkles at
liner seams , aging of the liner, chemical resistence effects, bedding thickness, and
extrapolation to Cells I and 2. All very important questions related to the ability of
Cell 3 to work as IUSA assumes it will work. Thus far, according to the DRC, USA has
not responded to the November RAI. Moreover, IUSA has not provided any answers to
those questions in the May 20 Response.
IUSA's responses to the DRC's RAI is information is needed before a
determination can be made that the design and construction of Cell 3 conforms with
applicable regulations and is protective of the health and safety of the public and the
environment.
The Molycorp material should not be processed before these questions have been
resolved within the context of the issuance of a State of Utah Ground W'ater Discharge
Permit for the White Mesa Mill.
54
H. Interactions Between the Tailings Solution and the Underlying Rock
ruSA asserts:
fif tailings solutions were to penetrate the Mill's tailings cells' synthetic
liners and migrate into the subsurface at the site, they would encounter
geochemical reactions that would prevent any further migration to the
perched groundwater zone, much less the regional aquifer. As Dr. ryrih
states in his analysis: 'The foundation of the cells consists of soils and
bedrock that are calcareous in composition, that is, the soils and bedrock
contain calcium carbonate minerals similar in composition to limestone.
The carbonate minerals would immediately react with seepage,
neutralizing the acidic pH of the tailings solution."
IUSA's May 2O Response at66.
Petitioner's response is that IUSA has not presented any data confirming that the
calcareous component of shallow underlying rock, which is classified as sandstones,
mudstones, siltstones and conglomerates of the Burro Canyon Formation, characterized
primarily by silica compounds, would be quantitatively sufficient to neutralize the
extremely acidic tailings solution. We should not be Ieft with the impression that
bedrock is calcareous enough to neutralize IUSA's potential leakage, even if that were an
acceptable strategy. Neither IUSA's May 2O Response nor the affidavits of its experts
present any data on the acid neutralization potential of the rock under the Mill.
Furthermore, the hearing file, which is comprised of thousands of pages, mentions
the interaction of the tailings solution with the calcareous rock only once: '"The effect of
acidic tailing effluent on the caliche (calcitic) soils has not been investigated." Hearing
File 20, Appendix H at 16.
This cursory remark echoes our concern that the tailings solution will dissolve the
calcite in the underlying sandstone, creating preferential pathways for lead and other
55
toxic compounds in solution from the Molycorp sludge to reach the regional aquifer. It
does not suggest that the people who designed the tailings ponds considered the opposite:
that the calcite will neutralize the tailings solution. Thus, the hearing file offers
absolutely no evidence that the tailings containment system was intended to rely on the
underlying calcareous rock, that the public was notified, in any way of any such reliance
or given a chance to comment on it, or that the engineers who built the Mill investigated
exactly what would happen if tailings solution came into contact with the underlying
rock.
Dr. Grossl found that IUSA's response did not adequately address his contention
that:
"[N]atural attenuation of dissolved metals, specifically lead, through the
vadose zone below the liner in Cell 3 will not occur, since subsoil particle
surfaces (i.e., iron oxide coatings and calcium carbonate) that act as
adsorption sites for metals dissolve under low pH conditions."
Third Supplement to Sierra Club's Written Presentation at 9.
After reviewing IUSA's May 20 Response and the Affidavits of IUSA's experts,
Dr. Grossl concluded:
IUSA's response did not adequately address my concern that dissolution
of calcite could enhance the porosity of the sandstone, which would
facilitate the downward mobility of lead through the strata underlying the
tailings cell. . . . If not enough calcium carbonate is present then lead
would remain soluble ("geochemically mobile", as stated by Dr.$rih in
his affidavit).
Grossl Declaration at l.
Next IUSA offers an even more speculative theory when it quotes from Mr.
forih's Affidavit:
56
Calcium would be released when the calcareous soils and bedrock react
with the tailings solution. This calcium would immediately react with the
abundant sulfate present in the tailings solution to form insoluble calcium
sulfate (gypsum) that has been demonstrated to plug seepage pathways,
thus making these soils and bedrock self-healing and even more
impermeable to seepage."
IUSA's May 20 Response at67.
First of all, Mr. $rih's assertion that calcium sulfate (gypsum) is insoluble is just
plain wrong. Gypsum is soluble in water and is even more soluble in an acidic solution.
Any homeowner who has accidentally Ieft gypsum board (also known as "drywall")
outside in the rain knows that gypsum dissolves.
Mr. $rih's Affidavit goes on to say:
Similarly, any iron that may be present in tailings solution would also act
to plug solution pathways in the soils and bedrock beneath the tailings
cells. As the pH of tailings solution is partially neutralized to above pH 3,
the iron would begin to precipitate as a very insoluble, iron hydrous-oxide
gel that would seal-off seepage pathways.
Id., Appendix 5 at 3.
Petitioner emphatically disagrees with this "self-healing" theory. Our experts do
not find that it has any merit. Dr. Grossl sys," l-Ilhere is not enough evidence to
ascertain that gypsum and iron oxide plugs would form upon acid neutralization and that
these plugs would act to restrict flow of the liquid tailings." Grossl Declaration at 1.
Mr. Weber's criticism is even more strenuous:
The assertion that contamination seals bedrock against further
contamination is imaginary and misleading. . . . It is imagined, in this
school of "natural attenuation," that a kind of "rind" of these viscous gels
forms around a parcel of highly-contaminated ground water, encapsulating
it and preventing further spread. It just doesn't seem to happen that way,
however. The "self-sealing" vision has never been substantiated
57
scientifically, to our knowledge, either in local cases or in geochemical,
biogeochemical and hydrological peer-reviewed literature.
Weber Declaration at7.
This is not to say that gelatinous deposits do not form. They have been
documented several feet thick in tunnels and shafts, but they "never seem to stop suface
flows." Id.
If such gels were to form under the White Mesa Uranium Mill's tailings ponds,
they would be subject to biogeochemical cycles. In these cycles, calcium, iron and
possibly other materials holding the sandstone together would precipitate out upon
contact with the extremely acidic tailings solution and form gels, as products of local
(microscopic-scale) neutralization reactions. Parts of the gels would re-dissolve if they
came into contact with more acid, often enhanced by bacteria in ground water, or that
was in the form of another trickle from the tailings pond. Cycles of precipitation and re-
solution, combined with oxidizing bacteria and ion exchange on the dilution front, would
prevent the gels from forming a homogenous barrier to the downward flow of leaking
tailings solution with its load of dissolved lead. Id.
Thus, Mr. forih's statements regarding the ability of hydroxide and
hydroxysulfate gels to serve as barriers in IUSA's tailings containment system are shown
to be naive, simplistic, and just plain wrong.
Finally, Mr. [rih's Affidavit claims, "fN]umerous studies conducted for NRC
and industry have demonstrated [thatl . . . the percolation of acidic uranium tailings
solutions through naturally calcareous strata makes the strata more impermeable to
seepage." IUSA's May 20 Response, Affidavit 5 at 3.
58
Petitioner's response is simply that there are just as many studies that would
challenge this statement by Mr. lyrih. We note that he did not provide any references for
this statement, and the Presiding Officer has proscribed us from providing additional
evidence in the form of references to refute his statement.
H. The Perched Aquifer
IUSA states:
l-t'lhe extensive shallow perched water zone . . . provides an ideal early
warning system . . . [which] assist[s] in the containment of all constituents,
radiological and non-radiological, present in the Mill's tailings cells for
the 1,000 year period as prescribed by Appendix A Criteria. [Emphases in
ori ginal ; footnote omitted.]
IUSA's May 20 Response at73.
Petitioner responds that it is not legitimate to sacrifice the perched aquifer by
using it as an early warning system. The perched aquifer is used for culinary water, stock
watering, and inigation north of the Mill. It is used by recreationists and wildlife -
including endangered and threatened species -- south of the Mill. Therefore it is
protected by Utah State Code, and IUSA is obligated by law to protect it.
IUSA asserts that "significant evidence" from the chloroform plume in the
perched aquifer under the Mill suggests that lead from the Molycorp material would not
reach springs and seeps where the aquifer breaks through the surface. IUSA's Response
at 64. There is no such evidence. The chloroform is still moving toward the springs;
IUSA has not cleaned it up; it has not gone away on its own. On the contrary, the
advance of the chloroform plume shows that mobile contaminants such as chloroform
59
and dissolved Iead may travel freely through the perched aquifer faster than groundwater
flows in the aquifer. IUSA's May 20 Response, Affidavit 3 at 3.
IUSA asserts that lead is less mobile than chloroform. Id. This is not frue when
lead is dissolved in acid. IUSA asserts that dissolved lead from the Molycorp material
would have to travel "great distances" to reach the springs and seeps. Id. The springs are
only two miles away, which is not a "great distance."
IUSA asserts that there would be ample time to remediate contamination if it were
to escape the Mill's tailings cells. /d. However,IUSA presents no evidence that there
would be ample time. Their only evidence is how fast chloroform travels horizontally in
the perched aquifer. They do not know how fast the chloroform is traveling vertically, or
how fast lead in a highly acidic solution would travel vertically. They will not know if
dissolved lead is heading toward the regional aquifer until it gets there, at which time it
will be too late. There are no assurances as to when or if "escaped" contamination would
be detected.
Furthermore, the amount of time available to remediate is irrelevant if IUSA does
not remediate or stalls when it is asked to remediate, as it has done with regard to the
chloroform plume. Until IUSA cleans up the chloroform plume and replaces the faulty
liners and leak detection systems on the Mill's tailings ponds, Petitioner is impatient with
references to "ample time".
IUSA's expert Mr. Stewart Smith says the chloroform plume "is moving very
slowly" at "a rate of approximately 90 feet/year." Id. ln the context of the Mill site, 90
feet per year cannot be considered slow, since the perched aquifer is only 70 feet below
60
the tailings ponds and the regional aquifer is only 1,100 feet down. If the extremely
acidic, lead-bearing tailings solution were to travel vertically at 90 feet p€r year, it would
reach the regional aquifer in only a little over 12 years. This is a far cry from the 1,000
years of protection required by regulation. It is not unreasonable to expect the tailings
solution leak to travel lZfeet a year; laboratory tests on the natural soils under the Mill
indicated permeabilities ranging from 3.9 to l44feet per year. Hearing File, Appendix H
at 16.
Mr. Smith characteizes the perched aquifer as "naturally poor and of very limited
usable quantity." IUSA's May 20 Response, Appendix 3 at l. Petitioner would like to
point out that if there is little water in the perched aquifer, it is that much more vulnerable
to contamination. As Mr. Weber states:
[Al given quantity of contamination will more quickly and exaggeratedly
contaminate a small volume of water than it would a larger quantity.
Weber Declaration at7.
I. The Regional Aquifer
IUSA asserts:
fR]egional aquifer water is present under artesian pressure which will
cause this water to rise into the above-mentioned low permeabitity
formations rather than allow water to move downward from these
formations into the regional aquifer.
IUSA's May 20 Response at?il and at6l-62.
As can be seen by watching a drop of dye spread through a glass of still water,
water does not need to move in order for contamination to spread. Thus, if gravity pulls
contaminated water down to the level of the regional aquifer, artesian pressure will not
prevent the contamination from spreading into the regional aquifer. (Parenthetically, this
principle explains why the chloroform in the perched aquifer has spread faster than the
flow of the water in the perched aquifer.)
J. Monitoring
Mr. Taylor lists as one of the main components of the tailings confinement
system:
A drain system under the liner along the face and toe of the embankments
to (l) prevent hydrostatic head build up on the upstream face of the
embankment and (2) detect major leakage from the cells.
IUSA's May 20 Response, Appendix 4at4.
IUSA admits that the primary benefit of this drainage layer is to prevent build-up
of fluids against the embankment fill, not to detect leaks. IUSA's May 20 Response at
75. IUSA offers no evidence to allay Petitioner's concern that leaks frorn the tailings
ponds will not report to this drain system. Mr. Smith says, "The drain layer located
beneath the liner in Cell #3, which has a high permeability relative to bedrock, would
tend to spread any seepage passing through the liner laterally" (IUSA's Vlay 2O
Response, Affidavit 3 at2), but he does not risk his reputation by claiming that the
seepage will report to the perforated pipe.
IUSA asserts:
The design of the groundwater monitoring pro$am provides a final
mitigation measure so that IUSA may have an "early warning" prior to the
escape of any tailings seepage to the perched groundwater zone, rnuch less
the regional aquifer.
IUSA's May 20 Response at79.
62
This assertion makes no sense. By definition, the groundwater-monitoring
program consists solely of wells completed in aquifers, so it cannot provide an early
warning before tailings seep into the perched aquifer. Next IUSA contradicts itself by
stating that the monitoring wells were designed to detect impacts to the groundwater:
These monitoring wells, as stated by Mr. Taylor, were designed "to detect
impacts to the groundwater and not to detect small amounts of leakage
from pinholes in the liner."
rd.
This reinforces our point that the monitoring wells cannot provide an early
warning before tailings seepage reaches the perched aquifer.
IUSA asserts:
IUSA has implemented an NRC-approved groundwater monitoring
program designed to prevent any potential contamination from breaching
the Mill's POC. lFootnote omitted.l
Id. at69.
ln response, Petitioner concurs with Mr. Weber:
Neither the leak detection system nor the ground water monitoring wells
are configured for early liner system leak detection. We simply have no
way of knowing how the system is performing, and may well not know
until an aquifer-ruining contamination occurrence becomes evident. This
may be long after IUSA's use of the site has ceased, along with the
company's liabilities.
Weber Declaration at 6.
K. Transportation of the Molycorp Material
IUSA asserts that the "transportation of the Molycorp material to the
White and beyond that of previously licensed activities." IUSA's May 2O
Response at87.
63
Petitioner would request permission to submit as an exhibit a May 31,
2OOl, statement by Allen Biaggi, Administrator, Department of Conservation and
Natural Resources, Division of Environmental Protection, State of Nevada.
Appendix 6 hereto.
Mr. Biaggi states:
Accordingly, we urge the Commission to ensure that a complete risk
analysis be undertaken regarding a federal decision that would result in the
shipment of radioactive sludge from Molycorp's min at Mountain Pass, California
to it e White Mesa Uranium Mill near Blanding, Utah. Such an analysis,
moreover, must be undertaken per the requirements of the National
Environmental Policy Act (NEPA). Specifically, we content that a set of
alternatives be developed to evaluate varying risks to human health and the
environment associated with alternative shipping containers and highway routes
including routes that avoid Las Vegas Valley.
Petitioner requests that the hesiding Officer take official notice of Mr.
Biaggi's request and address the State of Nevada's concerns.
VII. NATIONAL E}I-VIRONMENTAL POLICY ACT AND 10 C.F.R. PART 51
A. Implementation of NEPA
IUSA addresses several questions related to the implementation the National
Environmental Policy Act ("NEPA") and compliance with 10 C.F.R. Part 51. IUSA May
20 Response at 95 to 109. IUSA introduces their discussion of the implementation of
NEPA by stating:
Thus, in order to issue a source material license, NRC Staff must weigh
the environmental, economic, technical and other benefits of issuing the
license against the environmental costs and consider available alternatives
based on information and evaluations made pursuant to subpart A of Part
51.
IUSA May 20 Response at 98
&
B. The Influence of NEPA on NRC Regulations
l. IUSA first addresses the scope of thel980 Generic Environmental Impact
Statement on Uranium Milling:
In the broadest sense, NRC began its NEPA analysis of uranium mills and
mill tailings impoundments in 1980 with the GEIS. As noted above, the
GEIS provided a generic assessment of potential environmental and public
health issues involving potential radiological and non-radiological hazards
associated with uranium mills during operations, mill decommissioning,
and after site closure. The GEIS, however, specifically indicated that
evaluations for activities at any given mill site could require site-specific
analysis.
However, as discussed above at l6 to 19, the GEIS did not in any manner
contemplate the processing of materials such as the Molycorp material (i.e., the wastes
from other mineral extraction operations, including commingled wastes from other
sources). Therefore, the GEIS did not assess any of the "potential environmental and
public health issues involving potential radiological and non-radiological hazards"
associated with the receipt, processing, and disposal of wastes from other mineral
extraction operafions at uranium mills. Nor did the public have an opportunity to assess
the legal, regulatory, environmental, health, and safety issues associated with the
processing of such wastes (often commingled with other contaminated materials).
The 1980 GEIS is not sufficient to support the proposed licensing action.
2. With respect site-specific NEPA review IUSA states:
As a result, NRC Staff has conducted several NEPA analyses for
the White Mesa Mill including the 1979 Environmental Statement,
subsequent EAs in 1985 and lW7, and the current EA specifically
addressing the receipt, processing, and disposal of the Molycorp material.
fFootnote omitted.l
IUSA May 2O Response at 100.
The 1979 Environmental Statement for the White Mesa Mill is the basic site-
specific NEPA document for the White Mesa Mill. Hearing File 19. However, as
discussed in the April 15, 2W2, Second Supplement to Sierra Club's Written
hesentation, the 1979 FES did not in any manner contemplate the processing of
materials such as the Molycorp material (i.e., the wastes from other mineral extraction
operations, including commingled wastes from other sources). Therefore, the FES did
not assess any of the "potential environmental and public health issues involving
potential radiological and non-radiological hazards" associated with the receipt,
processing, and disposal of wastes from other mineral extraction operations at the White
Mesa. Nor did the public have an opportunity to assess and comment upon the legal,
regulatory, environmental, health, and safety issues associated with the processing of
such mineral extraction wastes (which often include commingled wastes from other
sources) at the White Mesa Mill.
Neither the NRC, nor the public, was able to assess various aspects of the receipt,
processing, and disposal of such wastes that are significantly different the aspects of the
processing of uranium ore at the White Mesa Mill. For example, the alternatives to the
processing of such wastes; the transportation of such wastes to the mill; the physical,
chemical, radiological characteristics of such wastes; the regulatory implications; costs
and benefits; environmentaljustice implications; the cumulative effects of the disposal of
such wastes; the potential for offsite and onsite contamination; the storage of such
wastes; the health, safety, environmental effects of the receipt, processing, and disposal
6
of such wastes; and the risks involved are significantly different enough to warrant a
complete evaluation in an Environmental Impact Statement. The operation of the White
Mesa Mill as a uranium ore processing facility is not the same as, or equivalent to, the
operation of the Mill to process wastes from other extractive mineral processes.
Neither the FES, nor the Environmental Assessments in 1985 and 1997, addressed
the operation of the White Mesa Mill as a mill engaged in a new type of operation (that
is, processing wastes from the processing of other, distant, mineral extraction
enterprises). Before IUSA can process and dispose of the Molycorp material, NEPA
requires that the NRC Staff must weigh the environmental, economic, technical and other
benefits of establishing a whole new regulatory program against the environmental costs
and consider available alternatives based on information and evaluations made pursuant
to subpart A of Part 51. The processing of the Molycorp material is one increment in the
development of a whole new operational program at the White Mesa Mill. For years
each increment of the new operation has been given a categorical exclusion, despite the
fact that the NRC, as required by l0 C.F.R. Part 51, did not evaluate the cumulative
effects of each of the incremental parts of that whole new operational program.
As discussed directly above, the initial licensing decision based on the 1979 FES
in no manner considered the processing of wastes from other mineral extraction
operations at the White Mesa Mill. One example of an issue that was never considered,
but should be considered, is the alternatives to the processing of wastes from other
mineral extraction operations. NEPA demands a comprehensive consideration of the
alternatives to the basic types of activities contemplated in the operation of a uranium
67
mill. The alternatives to the processing of the Molycorp material at the White Mesa Mill
were never considered, nor has there been a fundamental consideration, in the context of
a comprehensive generic or site-specific NEPA document, of the alternatives to ransport,
receipt, processing, and disposal of wastes from other mineral processing operations at
the White Mesa Mill. Calling such wastes 'ore" does not change the situation.
The 1979 FES is not sufficient to support the proposed licensing action.
C. NRC Staffs Decision Not to Perform an EIS
IUSA asserts that NRC Staffs decision not to perform an Environmental Impact
Statement (,EIS.) was warranted. IUSA errs in this conclusion.
As variously set forth in Petitioner's April I Written Presentation, as
supplemented, there are a number of reasons that the Staffs decision not to perform an
EIS was not warranted. Petitioner will review some of those reasons below.
When making a determination as to whether to issue a finding of No Significant
Impact, NRC Staff improperly relied upon past NEPA reviews that never addressed the
processing of wastes from other mineral processing operations at the White Mesa Mill.
The NRC Staff did not reference the prior environmental reviews with specificity and
particularity, nor did they explain how those previous environmental reviews were
applicable to the processing of the Molycorp wastes. Hearing File 4 and 6.
There is much additional new information and new circumstances related to the
environmental impacts of the processing of so-called 'alternate feed material" (including
the Molycorp material), that were brought forth in Petitioner's Written Presentation that
would warrant further investigation in an EIS. The previous generic and site-specific
68
NEPA documents are not sufficient to support the proposed incremental licensing action
that is part of a larger, previously unexamined, mineral recovery program at the Mill.
NRC relied upon numerous unsubstantiated material statements of fact that IUSA
brought forth in their amendment request. Hearing File 8 to 14. Sierra Club's April I
Written Presentation, as supplemented. NRC Staff exceeded their statutory authority in
making a determination that the Molycorp material was "source material ore," failed to
properly ascertain whether the Molycorp material was a "mixed waste," failed to conduct
a cost/benefit analysis, failed to consider the cumulative effects of the processing and
disposal of wastes from other mineral processing operations, failed to investigate the
actual chemical and radiological constituents of the Molycorp wastes and the hazards
related to those constituents, and failed to determine whether the transfer of the Molycorp
wastes was authorized under the requirement of 10 C.F.R. $ 40.51.
The NRC, as documented by the letter from the State of Nevada, never consulted
with the State of Nevada, or took into consideration the risks associated with the
transportation of the Molycorp wastes through Nevada, nor considered alternate modes of
packaging, methods of transportation, or transportation routes that might mitigate such
risks. See Appendix 6.
YIil. CONCLUSION
As shown above, IUSA has not effectively challenged the assertions made by the
Sierra Club in the April I Written Presentation, as supplemented on April 10, 14, and 15,
2OO2. Therefore, Petitioner requests that the Presiding Officer suspend, modify, revoke,
AND reconsider staying the effectiveness of Amendment 20 to License SUA-I358.
Respectfully submitted,
il:r*-r7.,fod,,,c
Victoria Woodard
Nuclear'Waste Chair, Conservation Chair
Glen Canyon Group,
Utah Chapter, Sierra CIub
P.O. Box 652
Escalante, Utah84726
435-82647780
I, Victoria Woodard, declare under penalty of perjury that the foregoing is true and
correct.
Dated at Moab, Utah
This l4'h day of June 2002
Victoria Woodard
70
TABLE OF CONTENTS
I. INTRODUCTfON - Pages I to 2
II. STANDARD OF REVIEW - Pages 2to 4
III. APPLICABLE STATUTES AND REGULATIONS - Pages 4 to 30
A. Statutes - Pages4to 13
B. NRC Regulations - Pages 13 to 19
C. EPA Regulatory Standards - Pages 19 to23
D. Regulatory History of NRC's Alternate Feed Guidance - Pages 23 to29
E. UMTRCA and the AEA -- Page 29
IV. PEIITIONER'S ISSUES -Pages 30 to 63
A. Lead Content of the Molycorp material - Pages 30 to 35
B. The Thorium Content of the Molycorp Material - Pages 36 to 39
C. Source Material Thorium - Page 39
D. Hazards of Thorium - Pages39 to 42
E. Molycorp Material Poses Threat to Wildlife - Pages 42to 46
F. IUSA's Defense-In-Depth Tailings Containment System - Pages 45to 47
G. Deficiencies in the Tailings Ponds - Pages 47 to 53
H. Interactions Between the Tailings Solution and the Underlying Rock -
Pages 54to60
I. The Regional Aquifer - Pages 60 to 6l
J. Monitoring - Pages 6l to 62
K. Transportation of the Molycorp Material - Pages 62to63
VII. NATIONAL E}.TVIRONMENTAL POLICY ACT AND IO C.F.R. PART 51 -
Pages 63 to 68
A. Implementation of NEPA - Page 63 to 64
B. The Influence of NEPA on NRC Regulations - Pages 64to 67
C. NRC Staff's Decision Not to Perform an EIS - Pages 67 to 68
VIII. CONCLUSION - Page 68
TABLE OF CONTENTS - Page 70
LIST OF APPENDICES - PageTl
APPENDICES to Part I and II
70
TABLE OF CONTENTS
I. INTRODUCTION - Pages 1 to 2
II. STANDARD OF REVIEW - Pages 2 to 4
III. APPLICABLE STATU"IES AND REGULATIONS - Pages 4 to 30
A. Statutes - Pages4to 13
B. NRC Regulations - Pages 13 to 19
C. EPA Regulatory Standards - Pages l9to23
D. Regulatory History of NRC's Alternate Feed Guidance - Pages 23 to29
E. UMTRCA and the AEA -- Page 29
fV. PETITIONER'S ISSUES -Pages 30 to 63
A. I-ead Content of the Molycorp material - Pages 30 to 35
B. The Thorium Content of the Molycorp Material - Pages 36 to 39
C. Source Material Thorium - Page 39
D. Hazards of Thorium - Pages 39 to 42
E. Molycorp Material Poses Threat to Wildlife - Pages 42to 6
F. IUSA's Defense-In-Depth Tailings Containment System - Pages 46to 47
G. Deficiencies in the Tailings Ponds - Pages 47 to 53
H. Interactions Between the Tailings Solution and the Underlying Rock -Pages 54to60
I. The Regional Aquifer - Pages 60 to 61
J. Monitoring - Pages 6l to 62
K. Transportation of the Molycorp Material - Pages 62 to 63
VII. NATIONAL E}WIRONMENTAL POLICY ACT AND IO C.F.R. PART 5I _
Pages 63 to 69
A. Implementation of NEPA - Pages 63
B. The Influence of NEPA on NRC Regulations - Pages 64 to 68
C. NRC Staff's Decision Not to Perform an EIS - Pages 68 to 69
VIII. CONCLUSTON - Page 69
TABLE OF CONTENTS - Page 7l
LIST OF APPENDICES - Page12
APPENDICES to Part I and II.
LIST OF APPENDICES
to
PART I - SIERRA CLUB'S REPLY TO INTERNATIONAL URANIUM (USA)
CORPORATION'S MAY 20, 2002, RESPONSE TO WRITTEN
PRESENTATION OF GLEN CANYON GROUP OF THE SIERRA CLUB
and
PART II - SIERRA CLUB REPLY TO NRC STAIF'S
MAY 2O,^OOL,RESPONSE TO WRITTEN PRESENTATIONS FILED BY
INTERVENORS SIERRA CLUB AND WILLIAM LOVE
Appendix 1 - Final Generic Environmental Impact Statement on Uranium Milling
('GEIS'), NUREG-0706, September 1980, Volume II, at B-1 to B-2.
Appendix 2 - l*tter from Robert M. Bernero, Director, Office of Nuclear Material
Safety and Safeguards, NRC, to Sylvia K. l.owrance, Director, Office of
Solid Waste, EPA' MaY 14, lWz.
Appendix 3 - Declaration of Ivan Weber
Appendix 4 - Declaration of Dr. Paul Grossl
Appendix 5 - Declaration of Mr. Timothy Chervick
Appendix 6 - Statement of Allen Biaggi, Administrator, Department of Conservation
and Natural Resources Division of Environmental Protection, State of
Nevada (May 31,2001)
Appendix 7 - Strategic Assessment Issue: 9. Decommissioning-Non-reactor facilities
(September 16, 1996)
Appendix 8 - Comments by International Uranium (USA) Corporation on 66 Fed. Reg
55ffi (November 23,zDl),Mining Association petition for rulemaking
(January 16,2002)
Appendix I
Final Generic Environmental Impact Statement on Uranium Milling
NUREG-0706, September 1980, Volume II, at B-1 to B-4
NUREG4TS
Vol. ll
Final Genoric
Envircrumontd Impactffi
on uranium milling
Project M-25
Appendices A-F
September 1980
Office of Nuclear Materia!
Safety and Safeguardt
U.S. Nuclear Regulatory Gommirion
GRAND COUNTY PUBLIC LIBBARY
25 S0Uftllst EASI
MC}AB, UTAH 84582
(435)2!S5421
APPENDIX B. URANIUI'I MINING AND MILLING OPERATIONS
I. DESCRIPTION OF MINING OPERATIONS
Uranium mining and resource development is estimated to account for about 40% of the production
cost or uranjum concentrates.l The two most common'ly used methods of mining uranium ores are
surface or open-pit mining and underground mining. A third method, solution or in situ mining,
finds limiteb application. The choice of mining method basically depends on the relatjve mining
costs for a given output and is influenced by such factors as the size, shape, grade, depth, and
thickness of the ore dePosits.
'l.l Open-Pit Mining
0pen-pit mining is used where deposits are shallow and where the overburden consjsts of loosely
cbnsoiidated soil or detritus. It is usually the preferred method for ore deposits covered with
overburdens no thicker than 90 m (300 ft) although some ore deposits have been surface mjned to
depths of more than .l50 m (500 ft).1 Equipment used for stripping overburden includes tractors
with rippers, rubber-tired scrapers and tractor-pushers, diesel power shovels, and large truck
fleets.2' For the removal of ore and waste from the ore zone, bulldozers, front-end loaders,
djesel shovels, draglines, and backhoes are used. Drilljng and blasting often are not necessary
and shal'low ores are mined in single-bench pits. In larger operations using high-capacity
equipment, min'ing is conducted in multiple-bench pits. Compared with the mining of other types
of minerais,^the ratio of overburden to ore in uranium mining is unusually large, ranging from8:l to 35:.l.3
To contro'l intrusion of groundwater during open-pit mining, a trench several feet deep may be
dug around the periphery of the pit floor. The groundwater drains into the ditch and then can
be-pumped from the mjne. The trench is dug deeper as the ore is removed to the original level
of the'ditch. The water may be used for the milling process or discharged to the surface.
In 1975, surface mining contrjbuted about 5lXa of the 8 million MT (9 milljon ST) of uranium ore
produced in the United States.s .However, because of their relatively lower grade, surface-mined
ores accounted for only about 40%a of the total annual uranium concentrate production, estimated
at 12,000 to 12,200 MT (13,000 to 13,500 ST) of Ug0e.s
1.2 Underground Mining
Deeper ore deposits reguire underground mining. A variety of techniques are used because of
difterences ih ttre shape, size, altitude, and grade of the ore bodies.l For sma'll-ore deposits,
a number of mines emplby simple adits or inclined entries driven into a canyon wa1l or glopilg
ground. Mining is dbne-by open-cast methods supported or unsupportgd by roof boltjng; in.w'ider
ip"."r, pillar-supports rnay be used. Ore is recovered by hand mucking and tramming and with the
uie of'sirch equipinent as fiont-end loaders and mucking machines. For larger deposits, most
mines require'a vertical shaft entry sunk to ore-bearing formations at depths of.from'185 to
+SO m (SdO to'1400 ft). Typicaliy,-the shaft'is circulir, compartmented,-concrete-1ined, and up
to 4.3 m (-14 ft) in diametLr.2 From the shaft, stoping, or the driving of various levels or
tunnels, is periormed to gain access to the ore deposits. The mining techni.ques used include
the room-and:pil1ar,'longwa11 retreat, and panel methods. The mining-method selected for each
ore body depehds on the itaUitity of the ground, the size and shape of-the ore body, and_the
cost ofextractjon. Depending on ground itaOitity or the permanency of the_tunnel,.steel-plltes,
timber, or concrete is used to support tunnels extending from the shaft.o Ihe ore ls drllled,
Ulasiei, and often transported by'slushers to the ore pass. Underground haulage.may be ejther
Uy traci, electric or d'ibsel locomotive, or trackless rubber-tired equipment.z New tunnels are
driven until the ore deposit is depleted.
Groundwater intrusion is a problem with underground mining and dewateriqg-it often-required..
The volume of water pumped ?rom mines may range from 0.75 to 1l mslmin (200 to 3000 gpm). The
water is usual]y used as process water in the mill.
Mines are required to have proper ventilation to prevent the bui'ld-up of radon-222 gas (a uranium
daughter product) to concentraiions hazardous to the miners' health.s Ventj'lation holes,
ivoiiaftv'0.9 to 1.8 m (3 to 6 ft) in diameter, are drilled to connect with the underground
*-oifingr. A large fan installed at the top of the hole on the surface exhausts the mine air
which enters the shaft.
B-l
B-2
In,i975, underground mining contributed roughly 49X of the total uranium ore produced in theUnited States. However,. underground-mined ores on the average were of a highlr grade thansurface mined ores and their m'iilinq accounted for about 57%-of the total ainual concentrate(Ug0e) production.4 '
1.3 Solutio! Mining
Soiution, or in situ,.mining (FiS. 9.1) is employed to recover uranium from lowgrade ores noteconomically recoverabie by conventional mining methods.2 Essentially, the proiess consists ofintroducing suitable leaching solutions into the underground ore body-{,o sotLui'lize the uraniumminerals and then recovering the enriched solution by flumping it to ihe surface for furtherprocessing.s Advantages of-this method include ttre ilimihation of hazards associated withnormal underground I!linS and elimination of t.he need for handling large quantities of materialand disposing of solid waste products. Possible objections to uniesirible open pits and struc-tures are also eliminated, a consideration of speciil importance when the mihe i! near populatedareas.
A number of requirements must be satisfied before solut'ion mining can be app'lied:6
l. The uranium ore must lie in a generally horizontal bed underlain by a relativelyimpermeable stratum instead of badly fractured or channeled struct'ures. This ciln-dition will avojd serious losses of leaching solutions.
2. The ore must be located below the static water table.
3. The direction and speed of regional water flow must be knowri.
4. The uranium minerals in the ore must be amenab'le to the proposed leaching process.
5. The ore deposit must be extensive enough to justify the cost or uranium recovery.
Solution mining is usually carried out by drilling inflow wells into the ore body upstream of aproduction well based on the direction of groundwiter flow. Salt solutions of ibns, such assuifate, bicarbonate, carbonate, and amonium known to form stable aqueous complexes with hex-avalent uranium, are pumped to the inflow weli, and simultaneously, there is h withdrawal of aslightiy greater volume of water from the production we11. A soliriion of oxidant (NaCl0s) maybe added to increase leaching efficiency. The inflow of solution is continued until the-ieacirzone is depleted, as indicated by a decrease in lran'ium concentration in the leach solution.The selected locationend spacing of wells is based on the fact that interflow between wells andan aquifer having legional flow can be controlled by varying inflow-effluent rates, by thespacing between we11s, and by properly aligning welis aCspicific angles to the diieciion otgroundwater flow.3
In I975, solution mining accounted for around Z of the total uranium concentrate (U30s) pro-duction in the United States.a
Discussions of potential environmental impacts, primarily those to groundwater, from solutionmining may be found in References 7-9.
2. OESCRIPTION OF MILLING OPERATIONS
During the mjlling process the uranium values are recovered from the crude ore and concentratedto yield an intermediate, semirefined product called yellowcake [Us0a, (NH+)z U207, or Na2U207].
T!: rjl1ing process.involves the following basic stepi: (l) ore triniiing ind pieiiration; - -
(2) mjll concentration, and (3) product recovery.l bre handl'ing and prefaratibn inc'lude suchprocesses as ore blending, crushing, fine ore storage, grinding, and possibly drying or roastingto-improve_handling or solubility properties. In newer-mi11s,-use of wet, sLmi-iut6genousgrinding eliminates the need for dry crushing operations. Ore handling and preparation utjl-'izing dry crushing operations are described in Section 2..l; semi-autogenous lrihOing is evalu-ated as an alternative to the dry crushing process and is described in Chapter 8. filttconcentration consists of,hydrometallurgical extraction or Ieaching techn'iques, using eitherdilute sulfuric acid or alkaline carbonate solutionsl as lixiviants, followed by furiher con-centration of leached uranium by ion exchange or solvgnt extraction. The prodult is recoveredfrom solution by chemical precipitation, fo1'lowed by drying and packaging for shipment.3
2.1 Ore Handling and Preparation
2.1.1 Ore Blending
For most uranium mills in the United States the ore must be blended either at the mine or at thenrili to ensure that the feed has uniform physical and chemical characteristics. A uniform feed
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2.1.2 0re Crushing
The ore is moved from the mi1l stockpiles to the crushing plant feed by means of front-endloaders, bulldozers, or by.trucks to receiving bins which are vented to the atmosphere throughdust collect'ion equipment (e.g.r orifice dust collector). Jaw crushers, used as primary uniis,range in size from 38 by 61 cm (15 by 24 inches) to 76 by 155 cm (30 by 40 inches). Fine oresor undersized material bypasses the grinding circuit through the use of a scalping grizzly (barscreen) and are sent to storage bins. For effective dust control, air exhaust hooUi are locatedon the crusher, at the screens, and at each ore transfer point. The exhaust air passes througha dust collector before discharge to the atmosphere through a roof vent. Depending on orehardness, two crushing stages may be required, employing impact-type and cone or gyratorycrushers. There are w'ide varjations in crushing plant capacity, with ranges from 70 to 320 MT(75 to 350 ST) per hour, depending on ore characteristics. Mine-run ores are reduced to a size
betweeh minus .l.9 and minus 3.8 cm (minus 3/4 and minus l-1,/2 inches).
Excessive moisture content in the ore can have adverse effects on ore handlingin the crushing plants and in fine ore storage. Natural drying or kiln dryingto reduce the moisture content to 5% or less during wjnter months or to 10% orother seasons of the year.3
2.1.3 Fine Ore Storage
characteri sti cs
may be required
less during the
Mills us0ally have fine ore storage capacities equal to or up to double the rated daily mi11capacity. Flexibility in ore blending is provided by extra, multiple-bin storage capacity. Thelargest problem associated with the operation of ore storage facilities is that of moist orsticky ore hanging up or freezing in the bins during winter, resulting in large decreases inlive storage volume. This operational problem can be alleviated by improved bin design, pro-viding heated enc'losures for ore bins or placing stearn coils around the bin bottoms, andpreheating ore in dryers.
2.1.4 Ore Roasting
In a fev cases, uranium ores may undergo roasting to increase the solubility of valuable con-stituents and to improve the physical characteristics of the ore. As examples, ores are roastedto enhance vanadium extraction, to improve the ore settling and filtration characteristics byalteration of clay minerals in the ore and to remove organic carbon which can cause prob'lems inthe leaching circuits.
Ore from the crushing circuit is fed through a rotary kiln operating at a termperature not
exceeding 340oC (550oF) and thereafter neturns to the grinding circuit. When not needed, theroasting circuit is bypassed and the ore goes directly from the crushing to the grinding circu'it.
2-1.5 Ore Grinding
Ore characteristics and the leaching process used dictate the degree to which ore must beground. For the acid leaching of sandstone ores, the ore is ground to'liberate the naturalgrain size. Alkaline leaching is nore selective and much finer grinding is required to exposethe uranium vaiues. From the crushing circuit, the ore is conveyed to the grinding circuit bybelt-type feeders at the desired feed rate. Samples are taken at points betvreen the crushing
and grinding cjrcuit for routine laboratory analys'is. Rod and ball mills are usually employedto effect a size reduction of the ore to approximately 28 mesh for the acid leach process or to
200 mesh for the alkaline leach process. The ores are wet ground (water added), resulting'in apulp density of 50 to 65% soljds with the aid of classifiers. thickeners, cyclones, or screens
which size the ore and return coarser particles for further grinding. Water consumption is
reduced by recirculating mill solutions or recycling the clarified effluent from the grindingcircuit thickener. As noted above, where a semi-autogenous grinding mil'l is utilized, ore
siz'ing, normally done by crushing operations (Sec. 2.1.2), is done in the grinder.
2.2 Mill Concentration and Product Recovery
The uranium content of ores that have been crushed and ground is recovered by hydrometallurgical
leaching techniques coupled with concentration and purification steps such as ion exchange,solvent extraction, or the Eiuex process. Low-grade ore can a'lso be subjected to heap leaching.
Various processes commonly employed are described in detail below.
Appendix 2
Leffer from Robert M. Bernero, Director, OfFtce of Nuclear Material
Safety and Safeguards, NRC, to Sylvia K. Lowrance, Director,
Office of Solid Waste, Environmental Protection Agency, May 14,|Wz
Enclosed is a copy of a Federal Eggj:ler notice that was published Hay 13,.19?2'
The notlc. ."qr*iis publie coffient-6n-tio proposed guidance documents and thelr
associated staff analyses by June 12, 1992.
The ftrst guldance document concerns criteria for disposal^of rnterlal other
than that defined ln Section 1le.(2) of the Atomic Energy Act of 1954' as
aurended, in a ,"inirr-riit t.ilinds lmpoundnent- The second guidance
docusrent concerns the use of uraniur rill feed nnterial other than natural
ores. lle would appreclate your revlew and corsrents on these proposed guldance
docurcnts.
'sylvia K. Loxrance, Director
Office of Solid l{aste
U.S. Environmental Protection Agency
l{ai I Stop 05-300
401 H Street Sl{
llashlngton, DC 20460
Dear l{s. Loxrance:
Enclosure: As stated
cc: Ann Norton Hiller, EPA
Partial NHSS 9?-252 (rOO Xtrs l9l001ll)
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SUBJECT ABSTRACT: NRC REQU#S REYIET{ 0F GUIDANCE DoCS BY EPA "rtri'j'V
Appendix 3
De.claration of Ivan Weber
Response of Ivan Weber (on behalf of petitioner Sierra Club Glen Canyon Group) to
lnternationul Urunir* IUSA) Corporation's response to written presentations of Mr. William E.
Love and the Glen Canyon Group of the Utah Chapter of the Sierra Club (Docket No. 40-8681-
MLA-I1)
My name is Ivan Weber, Owner/Proprietor of Weber Sustainability Consulting. I have worked
in environmental construction, construction management and construction quality
assurance/quality control for more than twenty-five years. For the last ten years, I was a
construction *urrug"r, engineering specifier/ contracts manager and environmental planner for
Kennecott Utah Copper Corporation's Environmental Engineering Projects Group, which
performed nearly $lOO mittion of source control, remediation and contaminated water
management projects down gradient of the Bingham Canyon Copper Mine, including
investigations of ground water contamination and remedial technology alternatives.
The purpose of this declaration is to critique comments submitted by IUSA's consultants in
."rpor." to previous comments of the Glen Canyon Group of the Utah Chapter Sierra Club.
Spicifically, t a* limiting these comments to the disputing of specific ruSA consultant
assertions iertaining to White Mesa facility tailings ponds liner system integrity and their
implications for ground water and environmental protection.
These comments will address, in general, 1) the lack of quantitative documentation supporting
claims of liner conceptualization, engineering and installation; 2) inappropriateness of
dependence on "natural attenuation" and unquantified, alleged geochemical barriers to
"orrtu1;1ir*t release to environment; and 3) IUSA's rationalization of "defense-in-depth
protection," in lieu of use of appropriate environmental engineering containment systems.
We respond here to specific statements made on behalf of the Licensee by Mr. Smith, Mr. Taylor
and Mi. Pyrih, in the order of their occurrence in their comments contained in the IUSA
response.
Affidavit of Stewart J. Smith on behalf of IUSA:
" tpug" 1) We note that Mr. Smith characterizes the shallow, perched aquifer as "naturally
poor and of very limited usable quantity due to generally low permeability and low saturated
thickness at the site, resulting in low yields to wells completed in this zone." This is
important in that it defines a major component of the denominator in the ratio of
contamination to release potential, underlining the significance of liner integrity and of
quantification of "natural attenuation" claims made by Mr. Pynh and others. If there is little
water in the perched aquifer, it is that much more vulnerable to contamination.
b. (page 2) Mr. Smith argu"s, in asserting the adequacy of monitoring wells, that the layer
beneath the liner in Cell #3 is not clay, but rather a "drain layer...which has a high
permeability relative to bedrock, would tend to spread any seepage passing througlr the liner
iaterally." -ontrary to statements in the construction documents cited in our original
comments, there is not only no impervious clay layer, but rather it is argued that leakage
offers the advantage of helping leak detection in a general sense. "The adequacy of the
existing monitoring well nitrvork is enhanced by features of the tailings cells which would
tend to make *y ri"puge that might occur diffuse, that is, spread over an areal extent-"
While this may encourage detection, it is a perverse argument in favor of distributed liner
failure.
c. (page 4) Mr. Smith's closing paragraph states that perched zone monitoring beneath the site
will provide sufficient waming of ground water contamination to allow mitigation. We are
compelled to ask whether the aquifer is construed to be part of "the site," and to assert
instead that the aquifer is, rather, public property. It is, as such, improper to be included as a
disposable component in a containment strategy. We are concerned, further, that remedial
steps to "mitigate the problem" (Mr. Smith's phrase) will inevitably cost vastly more than
would adequate initial containment. We cite Kennecott's ground water plume, which could
have been prevented for about one million dollars by proper reservoir lining, but which has
been estimated to promise up to one billion dollars in future remediation costs.
Affrdavit of Michael J. Taylor onbehalf of IUSA:
a. (page 3, item 9, "Precept Il-Construction") Mr. Taylor states, "The conclusion by all parties
involved was that the various components of the facility were constructed as designed or
within the intent of the design." No adequate documentary evidence is presented in Mr.
Taylor's statement in rebuttal of, or in credible answer to, any of our previous assertions and
questions. We are left with the question of what was "the intent of the design." Was the
intent for leakage to be allowable? If so, then how much? Was the intent to allow leakage,
on the wager that the earth would fix the problem?
b. (page 4, item 11) Mr. Taylor states that, "In summary, the design of the system was based on
prudent engineering design principles for the constructed portions of the site as well as
consideration of the natural features of the site in order to meet all regulatory standards and
criteria." These "natural features" leading to siting included "(a) the natural swales in which
the cells werg located; (b) the calcareous nature of the underlying soils and bedrock which
would attenuate the transport of radionuclides and elements that may leak from the cells; the
extensive shallow perched water zone which provides an ideal early warning system; (d) the
aquitard between the perched groundwater and the regional aquifer which minimizes the
potential of any impact on the regional aquifer; and (e) the distance the cells are from the
downgradient springs and the slow moving nature of the perched water, which minimizes the
possibilities of any potential leakage from the cells affecting surface water." The "intent" for
this site, we must conclude, assumed that the liner would leak, that contaminated waters
would travel through underlying soils and bedrock attenuated to whatever degree would
happen, but that distance and time of travel would provide sufficient delaybefore discovery
of these occurrences, thereby qualifying the plan as "prudent engineering design." We must
reject any engineering concept so accepting of containment failure, especially of waters as
acidic and loaded with metals as these process waters.
c. (pages 5-7) item 12c Cell Liners:
o Mr. Taylor justifies choice of PVC flexible sheet membrane material, based on
"resistance to inorganic acids and alkalis." Despite granting this particular propertY, we
carurot accept Mr. Taylor's rationale for PVC liner selection or claims of its ongoing
competence due to the many other faults and limitations of the material, described at
length in our previous comments. No additional, persuasive documentation or evidence
is presented by Mr. Taylor, moreover, that the PVC liner was adequately protected from
perforation during construction. We stand by our previous concerns about probable liner
deficiencies on completion of construction, and about probable subsequent failure. These
previous conclusions were based on the construction reports' descriptions of bedding and
cover preparation using large machinery incapable of producing "coarse sand"
appropriate for contact with a very soft, vulnerable FML; and on photographs submitted
as part of those reports, showing the abundance of large particles in bedding and cover
materials. When Mr. Taylor returns to the topic (p. 10, b. Liners), the argument is no
more persuasive nor more adequately documented than in the original construction
reports. Contrary to Mr. Taylor's contentions, sheeps-foot compactors and smooth-drum
rollers don't produce sand-like particles, and they don't screen materials against the
occurrence of sharp, angular particles; indeed, they don't even break down larger
particles very well, but rather tend only to force them together crudely below an
approximate plane of equipment operation. Visual inspection of acres and acres by "on-
site engineering personnel" offers little chance of preventing enough sharp particles to
remain that the FML will not be perforated at intervals. Subsequent loading and
movement during liner placement and during soil covering operations, and then during
loading with fluids and tailings, are bound to cause differential settling, additional
penetrations, and enlargement of some of these openings. In sum, the system was
inadequately conceptualized and poorly constructed, as we contended in our previous
comments. Mr. Taylor provides no new evidence otherwise. The only remedy to these
deficiencies is closure, dewatering and either replacement or facility decommissioning.o A further concern pertains to Mr. Taylor's apparent departure from what was described in
design and construction documents as clay or "silty," low-permeability soils under and
over the FML, changed in IUSA's responses to a rationalization of a "drainage layer"
under the liner, as well as a strategically permeable soil cover over the liner in order to
draw tailings fluids back to the process through circulation piping. Two citations from
the hearing files come to mind, describing extremely fine-grain and low-permeability as
critical design variables for these underlying and covering soils:
i) "To prevent puncturing of the synthetic liner, a smooth (projection
free) subliner of locally obtained clayey-silt soil would be placed over
the excavated rock surfaces of each cell floor. The entire synthetic
liner surface (including the liner on the upstream portion of the dikes)
would be overlain with 30.5 cm (12 in.) of clayey-silt soil to minimize
liner deterioration caused by winds, sunlight, and the tailings
materials and also for protection from operating equipment." Hearing
File 19 at 10-9.
ii) The Department of the Interior asked, "What is the permeability or
estimated life of the liner for the tailings ponds?" NRC responded, "No
long-term data on service life is [sic] available. No deterioration
during the mill operating lifetime is expected, and because final
reclamation is under drained conditions, no long-term problem should
occur. If properly installed, permeabilities less that [sic] 104
are expected." Hearing File 19 at A7-A8.
The significance of these statements lies in the following observations:
1) Concern for possible puncturing of the FML sheet was on the minds of those
who designed and reviewed the project. A very fine-grained material was
recognized as necessary to assure liner integrity. By all indications, neither the
"subliner" nor FML covering soils were of this extremely fine-grained nature,
belying characterizations in the ruSA response affidavits, especially statements of
Mr. Taylor.
2) The revelation of design reliance on clay as an additional barrier to release of
contaminated fluids --- a second liner, in effect. Hydraulic permeability of 10r is
extreme in its resistance to flow. It would describe a very high-quality, carefully
selected, rigorously conditioned and installed clay, with very highly disciplined
quality assurance / quality control in the form of laboratory moisture verification
testing, backed up by field permeability testing at frequent intervals (single-ring
or double-ring infiltrometer methods). We take the latter statement (DOI-NRC
exchange) to characterize the FML and underlying soils, in combination. Given
the nearly complete lack of resistance to flow in what we are now told is a
"drainage layer" beneath the FML, and the very likely compromised FML, itself,
the permeability of the assemblage cannot possibly approach levels of 10i.
, Mr. Taylor states that "design for the Tailings Management System assumed that if
massive liner failure occurred in Cell 1, the cell would be emptied and the liner repaired
before reuse. For Cells 2 and 3 that would be filled with solids, it was assumed that if
massive liner failure occurred, the liner would be repaired or the cells would no longer be
used, and all fluids would be removed." The "...potential for small minor leaks from
pinholes..." is a "'what-if scenario" not warranting emptying or cessation of cell use.
No quantification is provided of the meaning either of "massive liner failure" or of "small
minor leaks," so we can only speculate on the possible range of failures between these
two proposed classifications, in the absence of numerical models. We suggest that this
range is, with a high degree of probability, very large, very significant, and cause for
rejection of the proposed license amendment.r The rationale for the "design intent" is fuither justified (p. 7) by observations that
uranium tailings fluids are of "very low (1 to 2)" pH; when pH is elevated above 4 or 5,
fluids can no longer transport toxic metals; and finally that "At many Westem uranium
tailings sites, the subsurface natural earth is chemically basic with high pH." This
assertion is repeated, not only in Mr. Taylor's affidavit, but throughout those of others
commenting on IUSA's behalf. Nowhere is there quantification provided, however, of
the acid neutralization potential of underlying strata, or the dilution potential of the
perched aquifer, relative to the quantities of acidic fluids released in the range between
"massive liner failure" and "small minor leaks." Underlying bedrock to the perched
aquifer depth, described as sandstones, siltstones and claystones (Mr. Pyrih's affidavit),
may possess widely varying acid neutralization capacity (base chemistry), including very
little. We cannot accept the presumption, without documentation, that acid neutralization
capacity is sufficient, even if we were to set aside our concerns about the liner
competence as first line of environmental defense.o Mr. Taylor states, "This system of primary barriers with a backup mechanism is prudent
engineering design for the Tailings Management System at the White Mesa Facility and,
4
d.
in essence, consists of a defense-in-depth protection system." We find the logic inherent
in this rationalization to be unacceptably perverse, if not regulatorily impermissible. The
design documents and construction reports consistently emphasize the need for a
functional liner that we can characterize as "zero-emissions." For this to be interpreted
after the fact as "defense-in-depth" is glaringly inconsistent and should not be allowed in
the face of the overwhelming toxicity of waters contained. How toxic? Sufficiently so
that Douglas Chambers, fUSA's risk-assessment specialist providing one of the
affidavits, argues that exposures to wildlife are actually low because any waterfowl that
land in the water will quickly die due to low pH, therefore toxic metals bioaccumulation
in the next trophic level (e.g., eagles as top-carnivores) will not be significant. Is this not
sophistry, demanding that we selectively suspend our critical thinking, and our mandate
to act appropriately, along with it?
(page 8 Fluids Control and Handling System): Mr. Taylor's contention that the drain system
over the liner creates a self-sealing "tight layer of relatively impermeable materials," thereby
preventing fluids from contacting the membrane, is utterly implausible. Were it so, pumps
evacuating the fluids from the cells would cavitate and be ruined. Any lowering of
hydrostatic pressure (head) must be localized to the immediate vicinity of the drain lines,
which are few and far apart. Compaction of fines must still allow flow pathways to exist or
the piping system would cease to work.
(page 8 Groundwater Monitoring Wells): Mr. Taylor describes the wells' purpose as "...to
detect impacts to the groundwater and not to detect small amounts of leakage from pinholes
in the liner....the probability that such small leakage could ever impact the groundwater is
very small and detection of that leakage at the point of leakage is not important. It is the
impact of massive leakage, were it to occur, on the groundwater that is important to
regulatory agencies and is the basis of the monitoring system designed for this system.'o
Again, we are very concerned that there is a magnitude of problem greater than "very small"
but less than "massive," that is more highly probable than indicated in these affidavits, which
may not be "attenuated" by the anecdotal neutralization capacity of the earth. "Depth" may
hide, but it almost never "protects," especially against water as predatory as White Mesa's
tailings solutions. Acidic ground water contamination is unfortunately common, in fact,
among metals mining and processing facilities, contrary to the statement made by Mr. Taylor
(bottom of p. 7), as evidenced again by Kennecott's enormous acidic, metals-bearing ground
water contamination plume, which was not contained, and which has been only fractionally
neutralized ("naturally attenuated") in its greater than 1,000 feet of depth penetration and
four square miles of horizontal extent, surrounded by another 75 or so square miles of highly-
contaminated sulfate-rich waters, in an irremedially ruined aquifer. The "defense-in-depth
protection" strategy is scientifically unsubstantiable, economically disastrous in case after
case of ground water contamination from mining and minerals processinB, and socially .
unacceptable in the extreme. It is emphatically against the public interest, and ururecessary
for a responsible corporation to resort to such a spurious rationale'
(page 10, Construction Considerations, b. Liners, continued): The statement is made by Mr.
Taylor that the sub-liner layer, described in design and construction documents as clay or
low-permeability (referenced repeatedly in our previous comments) "...1/as never designed
to be a low permeability barrier. ln fact, it was intended to be a more penneable layer zone
between the PVC liner and the underlying much less permeable natural rock. This
characteristic would allow any leakage to be directed to the toe of the embankments of the
e.
ob.
cells where the fluid drain/leak detection system is located. In addition, the layer was a
geochemical barrier to the movement of radionuclides and metals for any leakage that might
enter the layer." We must point out that this presents a serious contradiction among IUSA's
key documents. We can only know authoritatively, in retrospect, what we are told in primary
documents. The point stands as we brought it up in our initial declaration, that leakage
through the liner is very unlikely to report to the "leak detection system" (if that's what it is),
but rather has no barrier to percolating downward through the vadose zone and into the
perched aquifer, eventually emerging or possibly moving on to the primary aquifer. Neither
the leak detection system nor the ground water monitoring wells are configured for early
liner system leak detection. We simply have no way of knowing how the system is
performing, and may well not know until an aquifer-ruining contamination occulrence
becomes evident. This may be long after IUSA's use of the site has ceased, along with the
company's liabilities.
(page 11, item 14. Performance Observations): Mr. Taylor draws the conclusion that "...the
system as constructed and operated has performed for nearly 20 years as designed," based on
his observations that tailings (solids) have been stored to capacity in Cell 2; Cell I has been
used to store the low-pH fluids "with no evidence of leakage;" ground water monitoring
systems have not detected leaked tailings fluids; drains inside cell embankments (identified
in construction documents as "leak detection pipes") have helped to keep dikes stable; and
slimes drains have performed as intended to consolidate tailings. He contends, in summary,
that the system has been "found to be as designed. This then is considered a successfully
engineered and operated facility by any applied engineering standards."
Whatever the accuracy or inaccuracy of each of the elements of Mr. Taylor's statement, we
dispute the conclusion vigorously. Have the right questions been asked, and answered? We
suggest not. What of the concerns we have stated herein and in our previous comments, that
tailings fluids have most probably leaked in significant quantities, and that they are so acidic
that they are fated to emerge somewhere eventually, and/or to impact critical water resources
very severely, perhaps outside the timeframes of "applied engineering standards."
Engineering standards decades ago may have allowed such uncertainties to remain
unaddressed, relative to the very large magnitudes of impacts of a problem such as White
Mesa's, but this cannot be allowed any more, in our growing state of knowledge and our
maturing state of engineering ethics.
Affidavit of Roman Z. Pyrih on behalf of IUSA:
Aside from contradictions among IUSA's consultants in their comments, perhaps most
importantly regarding the question of whether lead may remain dissolved as "water soluble
cation" (Mr. Pyrih , p. 2) or will precipitate as a sulfide or sulfate (Ms. Tischler, throughout
her affidavit), Mr. Pyrih's comments focus on the geochemical mechanisms by which he
asserts that potentially hazardous compounds in solution will be neutralized and precipitated
in the event of liner leakage.
o (page 3, item 1l). Mr. Pyrih characterizes underlying soils and bedrock as ". . )"self-
healing'and even more impermeable to seepage" [Mr.Pyrih's italics] due to
precipitation of insoluble products of neutralization. However incontrovertible the
general principles summarized by Mr. Pyrih, we must challenge his assumption on basic
grounds:
b.
No quantification has been provided of soils or bedrock acid neutralization potential
relative to potentially leaked quantities of hyper-acidic tailings fluids (whether "small
and minor" or "massive" liner failure). Again, the Kennecott example stands (a
matter of public record) to illustrate what happens when vadose zone and aquifer
materials lack sufficient neutralization capacity vis-i-vis contaminated water inflows.
The assertion that contamination seals bedrock against further contamination is
imaginary and misleading. Geochemical cycling (precipitation, re-dissolving,
transport, more precipitation, etc.) of the "gel" hydroxide and hydroxysulfate
compounds, which are postulated to form barriers against further contaminant
transport, are sometimes mediated by microbiological communities (bacteria), and
therefore characterized as biogeochemical. What happens in the vadose zone and
aquifer isn't as simple as inorganic chemical processes, alone (which are hardly
simple). Viscous, gelatinous compounds, often carrying extremely high quantities of
dissolved aluminum, iron and other metals, are familiar sights where acidified leach
waters flow into circumneutral waters. It is imagined, in this school of "natural
attenuation," that a kind of "rind" of these viscous gels forms around a parcel of
highly-contaminated ground water, encapsulating it and preventing further spread. It
just doesn't seem to happen that way, however. The "self-sealing" vision has never
been substantiated scientifically, to our knowledge, either in local cases or in
geochemical, biogeochemical and hydrological peer-reviewed literature. Just as these
gelatinous deposits never seem to stop surface flows (despite documented
accumulations several feet thick in tunnels and shafts, e.g., Kennecott Old Bingham
Tunnel), acidic waters continue to find an infinite number of altemate flow pathways.
Apparently, cycles of precipitation and re-solution, with ongoing ion exchange on the
dilution front, prevent such a homogeneous response to sudden pH increase.
Oxidizing bacteria, moreover, play a sufficiently significant role in this complex set
of cycles as to be regarded as a tool for economic metals leaching in some ore bodies,
and even in waste rock dumps (e.g., again, Kennecott Utah Copper's dumps, leached
from the early 1920s to late last year). Acidic waters flow and contaminant transport
always seem to progress, no matter how aggressively some theorists argue for the
existence of these gelatinous barriers, as though these deposits could be manipulated
as strategic slurry curtains, another valuable service of nature. On the contrary, we
contend that there is nothing about these gelatinous deposits to keep them from being
dissolved again, transported and penetrated by fresh inflows of acidic waters.
Neither the aquifer nor the ground water (perched or primary) are IUSA's property.
There is, and has always been, an obligation for ruSA to protect all aquifers and the
ground water in them. The choice should never have been considered, to use the
vadose zone for "natural attenuation" or the perched aquifer for dilution, as an
aggregate excuse for investing minimally in a poor liner containment system. And
yet, that is what was done. The IUSA contention that the perched aquifer is of low
quality and little quantity is also spurious, since a given quantity of contamination
will more quickly and exaggeratedly contaminate a small volume of water than it
would a larger quantity. It is also not legitimate to argue that the perched aquifer is
appropriately sacrificial, to be dedicated to the White Mesa Mill's need for
geochemical buffering. Aquifer protection is an obligation, without compromise.
c.
We respectfully submit these comments on the IUSA responses, along with the strenuous
recorlmendation that the assertions of IUSA's consultants pertaining to the tailings and fluid
ponds liner systems be rejected. We further urge rejection of the proposed License Amendment.
I declare under penalty of perjury that the foregoing is true and correct to the best of my
knowledge. Executed on this 10th day of June, 2002.
Sincerely, n ),9^2"'-W
Ivan Weber
PrincipaUOwner
Weber Sustainability Consulting
953 First Avenue
Salt Lake City, Utah 84103
[phone] / (801)6s 1 -8841 cellular
[e-mail]
Appendix 4
Declaration of Dr. Paul Grossl
Response of paul R. Grossl (on behalf of petitioner Sierra Club Glen Canyon Group) to
ht"rrrtir".l Ur"ri* Co.poration's r"sp-orse to written presentations of Mr. William E'
Love and the Glen Canyon Group of the sierra club (DocketNo. 40-8681-MLA-11)'
My response to the assertion that the acidity of the tailings will be neutalizedby calcium
carbonate in the material underlying the tailings cell, which will also attenuate lead (page
65 to 68), is that not enough hara evidence is provided to substantiate that this would be
the case. Also, there is no-t enough evidence to ascertiain that gypsum and iron oxide
plugs would form upon acid neutralizationand that these plugs would act to restrict flow
if t[. fiquid tailings. These assertions are based on the affidavit of Dr. Roman P]T ih,
which is speculative and does not provide supportive information from which definitive
conclusions can be derived. For example, was an acid neutralization potential test
conducted on the subsurface materials to truly determine if enough calcium carbonate is
present to neutralize the acidity of tailings that may leak from Cetl3? If not enough
calcium carbonate is present then lead would remain soluble ("geochemically mobile", as
stated by Dr. p,.1ih inhis affidavit). A simple acid neutralization potential test is the least
that should have been done to assess natural attenuation of lead by the materials
underlying the tailings cell. Also, IUSA asserts that processing the lead sulfide will
convert itL lead sdlate, which "has an even lower toxicity and reactivity than the
orilina lead sulfideo'(rage 46). However, this doesn't make the lead safer. Lead sulfate
is riore soluble and wilt therefore render lead more bioavailable than lead sulfide. once
lead is soluble as the free lead ion, which is the case in the acidic environment of the
tailings waste, it is a highly mobile toxin and the solid form in which it may preside (i.e.,
lead oxide, lead sulfide or lead sulfate) becomes irrelevant.
Based on the January 30,lgTs,Environmental Report prepared by Dames & Moore, the
material underlying the liner of the cells consists of "dense, relatively incompressible
materials (pakota Sandstone)" and this Dakota Sandstone is "composed predominately of
pale yellowish-brown to light gray, massive, inhicately cross-bedde4 fine'to coarse-
grained quartzose sandstorie lo"ully well-cemented with silica and calcite; elsewhere it is
iu"u.U, cemented and friable" (Hearing File 20 at 2-103). Although this material does
contain some calcite (calcium carbonate) again it is not known how much is available for
acid neutralizattot. Also, since calcite is acting as a cementing agent holding the
sandstone partictes together, it is not known what happens to the physical nature of the
sandstone after calcite is dissolved via acid neutralization. In conclusion,IUSA's
response did not adequately address my concern that dissolution of calcite could enhance
the porosity of the sandstone, which would facilitate the downward mobility of lead
through the strata underlying the tailings cell.
Page2 of2
I declare lnder penalty of perjury that the foregoing is true and correct. Executed on this
lOsday ofJune, 2002.
Paul R. Grossl, Associate Professor
Utatr State University
367 Lauralin Drive
Logan, Utah 84321
Phone: [phone]
Appendix 5
Declaration of Mr. Timothv Chervick
Response of Timothy M. Chervick (on behalf of petitioner Sierra Club Glen Canyon
Gr""p) t" International Uranium Corporation's response to written presentations of Mr.
William E. Love and the Glen Canyon Group of the Sierra Club (Docket No. 40-8681-
MLA-ll).
I am a professional wildlife biologist who has resided within the state of Utah for over 20
years. During my Z9-year professional career, I have worked as an environmental and
water quality scientisi for ihe State of Wyoming, Department of Environmental Quality,
and Water Quality Division located in Cheyenne, WY and also as a water quality
specialist foi ttre Utatr Oepartment of Environmental Quality, Division of Water Quality,
in Salt Lake City, Utah. I have also owned and operated a small environmental and
wildlife-co6rlt-ing firm in Vernal, UT, specializing in raptor monitoring and Threatened
and Endangered Species mitigation for both private industry and the government.
I(JC asserts, " That the mallard represents 14% of the eagles total diet (EPA 198j for
Arizona). " Page 52.
My response to that assertion is:
The figure 14 o/o of the total eagles diet would be mallard is a low figure for
wintering bald eagles in Southern Utah but may be correct for Arizona, which has a
lower eagle population than Utah.
Food habitats vary depending on region and season, but diet eagles feed most often
on fish, water birds, and carrion (Swenson, Alt, and Eng 1986; Mabie, Merendino,
and Reid f995). While fish and waterfowl make up the major portion of eagle diets
(Todd et al. 1982; Dugoni and Furman 1986; Swensen, Alt, and Eng 1986)' bald
eagles are opportunistic feeders and may take any vertebrate PreY, either alive or as
cairion. As winter progresses and lakes and streams freeze overr eagles switch from
fish to waterfowl ( Duncan and Harper 1975). Avian prey species are more
important in bald eagle diets during the winter when fish are less available to them.
Bald eagles will capture live, healthy birds but probably feed more on weakened,
dying, or dead birds, especially waterfowl (Todd, Youngr Owen, and Gramlich
1932). This would make dead or dying mallards that ingested tailings pond water
available as prey to wintering bald and golden eagles.
Waterfowl such as mallards do make up a larger percentage of prey consumed by
bald eagles per day when this prey is available to them. Dr. Mark Stalmaster, a
world ,rttofity on bald eagles in the lower 48 states, conducted a study to identi$
the food and energy requirements of wintering bald eagles using captive bald eagles
conditioned in winter months (Stalmaster and Gessaman 1982). He found that wet
metabolizable prey is a composite measure of the quantity of dry matter present, the
energy contained within this matter, and the physiologic ability of eagles to use that
"o".gy (energy assimilation elliciency) and is the best indicator of the energy quality
of natural diets. Wet metabolizable energy was lowest for salmon (0.6751 kcaVg),
intermediate for jack rabbit (0,9232 kcaVg) and highest for mallard (1.6706 kcaUg)
(p< 0.001). He found that these data demonstrate the poor quality of salmon, and
2
alternately rich quality of ducks. Using this information, Dr. Stalmaster developed
an equation to predict daily prey consumption (PC) of captive bald eagles in winter.
His study predicted the number of prey consumed per day would be highest for
mallard ducks, intermediate for jackrabbits, and lowest for salmon. During a 90 -
day wintering period at 5 C, a 4.5-kg eagle would require 13 salmon, 20 rabbits, and
32 mallards to meet gross energy requirements. Thus, mallards constitute 507o, not
l4o/o, of the bald eagle's diet in the winter, which is the time of year that they live in
southeastern Utah. Winter food, energy, and prey consumption by free-living bald
eagles is approximately lLoh greater than captive existence due to wind, long-wave
.udi"tion, precipitation, and flight activity (Stalmaster 1981). When ponds and
rivers freeze over in the uranium mill area, wintering eagles will seek out mallards
and jackrabbits as preyr since bald eagles are suspected to be food-limited ( Sherrod
et il.1977).
I(JC asserts, "The concentration of lead in the tailings cell water would need to
approach 600 mg/L, (well above the level of lead anticipated in the tailings ponds about
i0 mg/L), before an eagle would experience toxicityfrom the intake of lead arisingfrom
the iigestion af mallards which drinkfrom the tailings cells." Page 52.
My response to that assertion is:
A mode of heat conservation in birds involves reducing blood circulation to the skin
and extremities by vasoconstriction (Calder and King 1974) consequently increasing
blood flow to visceral organs. Any ingested tailings pond water containing dissolved
lead would concentrate in the increased blood flow to the viscera of the mallard
during cold stress winter months. Since birds of prey such as eagles feed on internal
organi of the prey, they could receive a more concentrated dose of dissolved lead
wiinin the visceral blood and organs of the mallard duck due to vasoconstriction of
the extremities. Falconers and raptor rehabilitatorc have noted for years that birds
of prey during winter months consume viscera and internal organS lirst when
.feeding on fresh killed birds in both captivity and in the wild.
I(JC asserts, "h is lilrely, in my opinion, that waterfowl and other wildlife wouldfind this
source of water unpalatable and therefore tend to avoid it." Page 53.
My response to that assertion is:
Xo Oata or studies were shown by IUSA to show the palatability of tailings pond
water to waterfowl and so this assumption is a theory without scientilic facts to
support this claim.
I(JC asserts " In response to any potential threat to wildlife from the tailings cells, IUSA
has implemented additional mitigation methods such as propane cannons and raptor
decoyi to scare away waterfowl and the development offresh water ponds which attract
wildtife awayfrom tailings cells during migratory seasons." Page 53.
My response to that assertion is:
a€ilr?t2ao2 18:G3 1435826477U IL,I<I lrJLlJlJt$(u Fla\rc: cr{
3
Propuc clntoD! clr ctltc birdr fo.llHt rtt lo thah urc if thGto rlltr rrt not orod
1 nrdom irrcrvrb ;d ".,trard & dlficrorl en., of tio rellhgr cdlr IUSA her
provilod ro drtr ou iin rA*tf"nc' of thc croront or ttc frcqr:rcy oI cllaoa qto'
Anc tDry opctrrd *;;;t*rltric csllr rod rct to opG1a1 rt nndo'a tltorvrh or
doce thc crBDor rFJ;; ;tor ,ootior r3rror ocrogrtor dr:vhc? IUSA docr not
eddrcs rbc prcblca ;i;h;i-[.ppe, ro oc mlgntirS wrtcrftrrtrf,cl fro fhrh
u.t r ponds 1t**o"""J"rligtf1t"" molt1rr ird ttc Poidl rrc no brgcr
rwllrblc to rvrtcr{osi Oo. t it" bervy.metel 31lt colocntntlolr wltlb t1c telllng
rcllr rrhich woop lorcr tho freozin3 poirt oi nb wllcr, tbcrc irlhg calle *onld - .,
rh0o bcco'" th. @E;;; ,rr.i"Jtibhlr to tttGt{otl in tlc ntll rrcq' rud corH
incnrrc the probrbffioittcro btrdrlandi-.ng or llcT.:rfrtodier tlrt rrr
crpmcd end ur-rnjtJ. TLb rcduccr rhc gilii3 cctt oitigrtbn to ntgntlog
rv.trfo*'t to onS 2 mctbodr - PloprDG orDDoi! 'od rtptordccoya
I dDctrc urdct pcoatry of perjury thr oF frcgoing is truo and conecr'Exocrrted on this
t2h dzy oflur 2002-
Tirmthy M. Chcrvick
wildlra gbbsidPrinchcl
Swii Crcck C.onsuhitg
P.O. Box lll
222F*ra" 1500 sornh
Ycrnal, Uldl t407t
Phor: (S0l) 652-7212
:l.trtli{ J 2 :fit ;!FAe-a i-i.li-lf'
Literature Cited
Calder, W.A., and King, J.R. 1974. "Thermal and caloric relations of birds." Pages 259-
413 inFarmer, D.S. and Kiog, J.R., eds., Avian Biology, Vol. 4., Academic Press,
New York, N.Y.
Dugoni, J. A.,Zwank, P.J., and Furman, G.C. l986. "Foods of nesting bald eagles in
Louisianna." Journal of Raptor Research 20,124-127.
Mabie, D.W., Merendino, M.T., and Reid, D.H. "Prey of nesting bald eagles in Texas."
Journal of Raptor Research 29,213'219.
Sherrod, S.K., C.M.White, and Williamson, F.S.L. 1977."Biology of the bald eagle on
Amchitka Island, Alaska." Living Bird 15:143-182.
Stalmaster,M.V., 1981. "Ecological energetics and foraging behavior of wintering bald
eagles." Ph.D. Thesis. Utah State University, Logan. l57pp.
Stalmaster, M.V., and Gessaman, J.A. 1982.
"Food Consumption and Energy Requirements of Captive Bald Eagles."
Journal of Wildlife Management. a6(3): 646'654.
Swenson, J.E., Alt, K.L., and Eng, R.E. 1986. "Ecology of bald eagles in the Greater
Yellowstone Ecosystem." Wildlife Monographs No. 95.
Todd, C.S., Young, L.S., Owne, R.B., and Gramlich, F.L. 1982. "Food habits of bald
eagles in Maine." Journal of Wildlife Management.46: 636-645.
Appendix 6
Statement of Allen Biaggi, Administrator, Department of
Conservation and Natural Resources Division of
Environmental hotection, State of Nevada, May 31,2W2
ALLEN BLACGI, A&ninistrator
(7751 687-4670
TDD 6E7-4678
Administration
Facsimile 687-5856
Water Pollution Control
Focsimile 687'4684
Mining Regulation and
Reclamation
Facsimile 684-5259
STATE OF NEVADA
KENI.IY C. GUINN
Gouemor
DEPARTMENT OF CONSERVATION AND NATUML RESOURCES
DIvIsIoNoFENVIRoNMENTALPRoTEcTIoN
333 W. NYe Lane, Room 138
Carson CitY, Nevada 89706
May 31 ,2002
R. MICHAEL TURNIPSEDD, Dt'recfor
Waste Management
Corrective Actions
Federal Pacilities
Air Quality
Water Quality Plannind
Facsimile 687-6396
Administrative Judge Alan Rosenthal
Atomic Safety and Licensing Board Panel
Mail Stop T-3F23
U. S. Nuclear Regulatory Commission
Washington DC 20555-0001
Re: Docket No. 40-8681-MLA-11
Dear Judge Rosenthal
Inreferencetothedocketnumberlistedabove,ithascometoourattentionthat
the Nuclear Regulatoi Commission (NRC) is contemplating a license amelgment action
that would result i" ifrl shipment of 17,000 tons of radioactive sludge from Molycorp's
mine at Mountain pu.r, Cuiifornia to the White Mesa Uranium Mill south of Blanding'
Utah. Since ttrese stripments would traverse southern Nevada' we contend the NRC must
conduct a risk *urvri, to assess threats to human health and environment associated with
a transportation acJident involving these materials/wastes within the Las Vegas Valley'
Please note that Nevada officials have worked te el:rninate ra'die
shipments in southern Nevada. We now have an informal agreement with the U'S'
Department of Energy that prohibits radioactive waste shipments -- destined for disposal
at the Nevada test Jite -- from traversing Hoover Dam and the Las vegas valley'
Althoughmanygovenrmentofficialsbelievethattransportofradioactivewastes
and materiur, por.r-iiitt! rist to public health and safety, officials in Nevada contend that
moving such hazardous materials through Las Vegas presents a significant risk that could
adversely affect the State's tourist-bas"i""oro*y. ft t fact remains that Las Vegas is
among the fastest gro*irrg *.t opolitan aleas in the country, and when considering the
unprecedented volirme of'tourists who visit the city each year (now estimated at forty
million), a transportation accident involving radioactive materials/waste could cause
significant "stigmatizing" impacts to the State's economy' The gaming, hotel' and
recreation sectors in Nevada remain the State's principle ernployer, generating millions of
dollars in private and public revenues. Just one transportation accident involving a spill
of radioactive materiais/waste would have a devastating impact on this key sector of the
State's economy.
Accordingly, we urge the commission to ensure that a complete risk analysis be
undertaken regarding a fedlral decision that wourd result in the shipment of radioactive
sludge from Molycorp's mine at Mountain Pass, California to the White Mesa Uranium
Mill near Blanding, utah. Such an analysis, moreover, must be undertaken per the
,.qoir.*.rts of theNational Environmental Policy Act (NEPA)' Specifically' we
contend that a set of alternatives be developed to evaluate varying risks to human health
and the environment associated with alternative shipping containers and highway routes
including routes that avoid the Las Vegas Valley'
Thank you for consideration of these comments'
^ SincerelY '
ulk6p^trh
Administrator (\
cc: Governor KennY Guinn
Vicky Oldenbuig,Legaland Policy Analyst, Offi9-e of the Governor
Mike fieper, Diiector, State Washington D,C, O!!9e
Paul Liebendorfer, chiei Bureau of Federal Facilities
Robert R. Loux, NWPO
Allen TinneY, State Health
Frank Siracusa, DEM
Victoria Woodard, Siena Club
Appendix 7
Strate gic A ssessment Issue : 9. Decommi ssi ontn g -
Non-reactor facilities, September 16, 1996
,#
:aL
Stratggic
,,4-ssessment trssue:
9.;
Decommissionin;; :
- Non-reactor
tclcilities
Reiease Date: September 16. 1996
Contents
c i.:ilii)i-)l' f i(:',
o I. SIilvllvtAiil'
:fjsrF'. m. DISCLiSSIO];S. F.'. oPll()\::;. V. R-EL.A'fIli) lslii;l'lsr vI. t'.o\zf,,{S sI(-)}.1'S1 I'R.-[ L.L\,fl).] - 1-P-]' \.'IF- I1"S
. ACRONI}IS, : ',,
5t1i.rf
lil1,j98 2:04 PM
INTRODUCTION
In AugUst 1995, the Nuciear Regulaton' Commission (\RLl) stalf initi:rtcti rt l,ii;:i';'gic ,-\sscssrnent
ancl Ribaselining project. 'l-his p'oiecr rvas intenclecl to take a nelv look at th* \,Il i.. ir1' conducrino
a reassessmcnt of \iRC actir,irir:s in orcier ro rericfine the b;uic naiure of thc ivorit o-t' tite agencl'
and the means h), which that rvor!<. is :rccomplisheci. arcl to apolv to the-*e retiefinerl activities a
rigorous scr,:cning proocss tr-, proiiu;c iur'ichasclin,;) a noir.'s;t of'lss;-iirll:liiirts, gu:lis. ltnd
stiategies lbr the NRCI. ['he rusults iri rhis projcut arc intcndetl to ltrorrtrl\, i1n aguncv-rvidc Strirtegic
Plan w'lrich can l're tle',elopec] rnti iill'ricirtentecl tri allrJl\: ilre )JRC io tticci ilt.i ;urrcnt and futurs
challenges.
.'ra(h*r"
1,, ,, _, _:jr
lr-tfi..:r*r,i .: -,r! i.ii '
understan<lhg G,IOU) rvouid bc thc rL:uuiiijlilniici uiuciterrisill lo csiijllhsii t,l'Ic pr'occoures irl. 5rt'-
tr*f iliffi :gJf ,i'fr i:';'.i:}3ffffi 1il::Xl.:J*,tllllll,?,lIrsi'leshave
Severai staff,l-.ga15lr<.ruici ire required t() notroliatc an \'IOU with [,PA- lo tiocumenl thu need ibr
tlre transfer of'sitcs ic lll,.i. ;ii:il 1o cr-rit:'ilifi:ri- ihc ;iilnriai:'ii'::;ii; r':';,:''1:!1';;','1 .l;'ans1r'i o! llti"t
courfex-.1ites wouki irc exuccllti t<t sa!'e tnot'c titatt i t) lil i:s r;r thc sDl'ii' i)i'osr.irl'n'
Clltion 7: Take 2Ln Agqressile Posirion To Bcvcitip Rcguiaiorv
Frameu,orks for Lorl'cr Cost Dcconrmissiorring trVast' Dispasai
Options
1. Option
Under this option, NRC rvoulcl take a more agressi,uc role in ilevclopitig rcgulaton'framervoilis
for lower cost decommissioning waste disposaialternatives ancl rT'ottld assign high piorities to
license application leviervs for these ahenlalivcs'
2. Background
The NRC usualh, takes a ncutral position on manv issues that aft'ec.t license decommissioning
alternatives. NRC fias nol ,".o*o"nded or gil'en preference to specific deconunissioning or
disposal options as long as thev can be perftrrmed 'safelv' Howevef' NRC could more agrossivd
suggest solutions anri cl-evelop regulatoD,fi'amervorl;s for lorver cost decommissioning nraste
disposal options because .n.i i* rrre primaru ihcror used in licensee decisionl on remediation
methods. under this option, NRC would seck solutions fbr obtaining lorver cost disposal methods
(e.g., providing a regiatol,v framework for using uranium mill tailings sites for the disposal of
uranium and thoriui decornmissioning rvastes and developing a regulatory framework for using
the prorisions of the N\l'"Ab Sestions 151(b) and (c))'
Several of the sD\,Ip sites have very large quantities of wastes, with concentratioru that exceed
NiRC limits for unrestricted use. In some caies, the waste volumes exceed 10 million cubic feet'
The cost to dispose of these large quantities of waste at offsite licensed low-level waste disposal
sites can exceed hundreds of millions of dollars, costs that licensees cannot aftord. In sel'eral cases,
licensees have proposed to use onsite disposai. applylng restrictive covenants on propertv deeds to
control future uses of the site.. These proposals are resource-intensive to review and include the
One common feature of tlre clisposal of highlevel. lorv-level. an<l uranium mill tailings waste is that
instirutional controls are ernbodied in the r":quirements. These institutional conllols are maintained
b.v Federal or State entities to restrict future uses of the site so that intruder health and safety
impacts can be rninimized. For decomrnissionirg wastes n'ith actiliq'levels that exceed NRC limits
for unrestricted use.. institutional control becomes a factor in reriewing onsite disposal requests'
Several institutionai control alternatives are possible for clecommissioning wastes' These options
inclucle rr.ansfer of t1e disposal site to DoE under either Section 151(b) or Section 151(c) of the
N\\"A, or use of a uraniurn mill tailings site that n'ill be transfered to DOE under the LiMTRCA'
In the fnst altcrnativr. N\\?A" Section 151(h),'authorizes DoE to take custody of a.low-lerrl
rvasre clisposal site. proridecl NRC requirements hale been mel This provision was intended to
allow DoE to take custody of commercial lon level waste disposal sites. but it could be applied to
onsitti'disposal of decommissioning waste' .'
In the second alternative. N\\,-lpAr section 1 5l (c), requires D()E to take custod.v upon the request
of the o\ryTrer of the sitc of low-lwel wastc gcneratcd as a resuh of processes used to extract
zirconiunu t atr;om, ancl rare earth,s from *Iource matetial' This provision was recentty usecl when
.
,Irc,"*An il;rilood Counry, \Vesl Virginia. was transferred to DOE after it was stabilizsd
and a funding account was esJshed to cover future surveillance and lriroring coss.
In the third altemative, disposal of uranium mill tailings is regulated under 10 CFR Part 40.
Appendl.t A, which requires groundwater protection, provisions to minimize release of airborne
radon, and stabilization of the taitings piles for a 200-to-1,000-year period. LInder the LIMTRC.\
the DOE or a State, at its option, rvould accept custodv of the site to provide long-term protection
of the public health and safety. Because several SDMP sites haffe large quantities of uranium: and
thorium-coniiminated waste with characteristics similar to those of mill tailings, it ma.v be
cost-effective to clispose of decommissioning rvaste containing source material at existing nrill ;
railings sites or onsite unrler provisions similar to those in 10 CFR Part 40, Appendix A.
Reclamation costs at uranium mill tailings sites arerage about $0.97 per ton (about 50.05 per ft3)-
This cost is substantially less than disposal costs at licensed low-level waste disposal sites, which
charge, as a minimum, about $20 to $30 per ft3 for decornmissioning-type wastes at the
Envirocare disposal site in Utah.'If other low-level waste sites are used, the costs would be
substantially higher. Legislation rvould not be required to effect the appropriate DOE or State
institutional control provisions needed to ensure restrictions on long-term site use but rnay be' needed to clarfi these pror.isions. \'Vithout legislation. DOE or the States. on a case'br'-case l-'esis.
woulcl neecl to cornmit to accept title to source rnaterial *a-sies. Thc use of tlfs alteiruti"e is
dlscussed in detail in SECY-95-211. General guidance on approving license applications for
disposal of source material at uranium mill tailinp sites was published in the FederalRegister on
September 22,1995.
3. fmpacts
By taking a more aggressive posture for developing regulatory frameworks for lower cost
decommissioning waste disposal options, NRC could improve the timeliness of decommissioning
.inseveral of the more complex decommissioning &lries.
No legislation would be needed to implernent NW"& Sections 151(b) and (c). Dwelopment of
regulatory guidance documcnts and possibly'changes to NRC regulations may be needed to
provide a clear set of procedures for implementing this option-
Rer,'ising regulatory ancl legil framervorks for using uranium mill tailings disposal sites for uranitm
ancl thorium decommissiorring wastes could result in requests for legislation and ameridments to
NRC regulations. Cgrrentfv. the UIvIIRCA applies explicitt-v to uranium mill tailings, but disposal
of other ,{E,\ materials, such as source materiaf is not precluded. Howeler, legislation may be
neecled to c,learh' assign DOE as the Govemment enti$ with responsibility for establishing
institutional control for other raciioactir,'c matcrial that may also be disposed of at a uranium mill
tailings disposal tacilif-v*. Arnenclments to lt) CFR Part 40 would not be needed to broadsn the
scope of 10 CFR Part 40, .\ppendir A" to also apptv to the disposal of wastes other than those
from uranium milling. Flowever, more detailed guidance lbr the review of license applications
would be nesded.
Approximately 5 staFyears rvouicl bo required to make the changes needed to implement these
alternatives. If the availabilit-v of'lower cost clisposal options results in a decommissioning project
involving large quantities of thorium oontarnirration, choosing offsite disposal rather than on-site
disposal. could save up to 1 statt-vcar and tiorn .55()0.00() to Sl million could be saved in the
rer,icrv oi eaoh dccor-nrrils:;ioning pian ;irtri in pr,.:i:rring an cnrironmentai assessment rather than an
EIS for tfte onsitc ilispgsair-rrrtign. ii'or ortsitc rii:'posal .rprions uniier N\\'PA. Scctions t5l(b) and
(c). or i0 CfR Pan -10. .\ppcncllr; .',. \.Il-(' l'r;cr::'.r.1 reciuircmcnts tbr d.ecommis:;icninl plan
revicrvs wouid be similar to the ourTdnt rcr,'icrv tteccls.
ii'.'it<(l takcs a mol'e asrgr.Jssrvc roiu rn tl.;v",jopiitg liturt.,works fbr morc cost-efl'ective
clecornmissioning lvasts disposal altematir,'cs, it i,iill bc ablc to act more quickly on
clecommissioning plan reviervs. Il uranium mill tailings sites can be wed fbr decommissioning
waste disposa[ more licensees and responsible parties may choose offsite eg.o-$l-rather than .'
on-site disrrosal. Onsite disposal options require r,ore de;ilecl anatyses cf raffigical impacts and,
,jl:"t .-,t
i. solrrc casss, tits il,.:tsioiJliiuit( i;i ait r:,iS. i iiis vt.iurov oi iivtlr.-rtt wi-luiii rudui;c1-ii{C l"Usourc€s
fr ff iJ;ff;,l;:,",ilffi ::;txH'":i];li'J:'H::,'"ffi :.:;:T'".U":::'ffi "ii?#'
anJ ic.,). or 1() (-'I:i?. ])at1 .l{) .,.11,tc,rlir: ,\. rr,t'iriri iuqrrlr,'c !r151!1111i.nlri r-'r)ttlrrll issttcs anrl c:nabic
).liC :o lliol'c iiuitl.j'' :,'r iir" 1..-i,i-,1;:;i:sii'1r'' - '-
C gi t icn 8 : Eevcltr S; ui ;q:t t'r;g1 g i- l i i *:i i ;t ii^t !;( i'';ii t* ;\
1. Option
..{t rrr'si siles unclergoing clccornnrissioning. il-,:::'e i-t nr; iittt:rc.cli;lle thrcal to 1:ulllic health and
sa{ely. iincier tlus riprioi. NR.C woulcl r'.rr,'ie.., riie iirigatir,e risks ibr taking cnlorcemsnl aclions in
these cases and- if neccssrn-. st:'encthcn reguleliorls -\o that clecorn:nissioning slandards can be
agpressil'cly cn{brcecl.
2. Background
During l1e l()S9 lc,arirrqs'hei?trc the Housc of )lei:reseittalive'-s Sriirio;';ltrtillf(' on Energr'.
iinnr'nnrenr. an<l Naturai Rescrurc.cs. thc lil((- (.icneral Counsci sralcci tilar NRC has suf{icient
authodf.uncler the ,^.EA 1o r:onrpcl parilr-:s lc 1.r;'t-:1:r:t11'dec.omnrission sifes. The NT{C stafi
however. could be challengeil p'hen it takes enforcsmenl actions in the decommissioning area.
especialll-sincc most <lecommjssioning giis;s irlnl.,'c silr:elions :r r',''hiclt lhere is no immecliate
riueat to public heahh alrd saIeil'.
3. Impacts
If weaknesses in NRC's regulations, rvhich prori<le the basis for enforoemcnt actions, are
identified- NRC would arnend its regulations to srrengtlien its enforcement basis. It is expected that
nb r.g;rrrtir= changes woulcl be necessaq.. ,\rr]'r-ulomaking found 1o be needed would be expected
to re{uire several s-taf[:.y..ears of efforr to pr<irriulgate. Strengthening the basis of NRC'g
enforcement authoritf ior site remediation coulcl improve the timeliness of remediation actions.
Licensees rvould be expected to rnove more quickl.v in completing decornmissioning proj'ects,
thereb-v reducing NRC reviett' costs.
Option 9: Seek Superfuntl Authoritl'
1. Option
Congtes-s could cive NrR('the same Superfuncl rurhonties that are provided to EI'A. These
pr*irio* coddinclude joint and seveial liabiiin requirements and authoriry- for seeking triple
d"rnug". from responsibie parties. These prorrisions could provide a strong incentive for licensees
ancl rJsponsil:le pariies to decommission siters in :r tirnell'lllaruler, pror'ide an enforcement
atrthoritl,'if licensees do not decommission tfie sites. and provide access to funding from
responsible parties other than the licensee
2. Bacliground
Cb,RCLA is designecl to remedv the mistakes in hazardous naste management made in the past.
The act authorizes a number of Goverunenl aclions to remedv the conclition that coUld result in a
release or the effects of a release of lrazarclous constiluents and also has provisions to make the
padies responsitrle for the releases pa.v for the rernecliation aclions. CERCLA can be used to' '
require potentially responsible parties (PRPs) to perlbrm rcmedial work. or the Government and
priiate iarties can perform the remerlial u,ork- n'ith EPA seeking reimbursement from the PRPs.
i";"e1.i"e reimbursemen! EPA san obtain triple damages liom the PRPs. Under CERCLA PRPs
are al$o f.g"fb 'Jointty and ser,era$ liable fbr cleanup costs. Under these "-ioint and several"
liability prori.io*, u rir,gl" pRP could be forced to pay for the enlire site cleanup even if it is not
Appendix 8
Comments by International Uranium (USA) Corporation on
65 Fed. Reg 556O4 (Novembet23,2CfJ-l). Mining Association
Petition for Rulemaking, January 16,20[12
9EQ*Y---M--A-EuleFiIuO[.orm-SUbmlqQ oDmgltrm}THEIE
NRC RuleForum Form Submission: comments on PRM
Association petition for rulemaking
Who: Michelle Rehmann (for Ron Hochstein)
Organization: I nte mational U raniu m Corporation
Email: mrehmann @ intluranium.com
Re: comments on PRM-170-5, NationalMining Association petition for rulemaking
Comments:
January 16,2002
Submitted electronically to NRC rule forum on January 16,2OO2
Secretary
U.S. Nuclear Regulatory Commission
Washington, DC 2855S001
Reference: NationalMiningAssociation; PetitionforRulemaking
Docket No. PRM-170-5
This letter serves as lnternational Uranium (USA) Corporation's (lUC's) comments on the National Mining
Association's (NMA's) Petition for Rulemaking to Exempt Uranium Recovery Licensees from Nuclear
Regulatory Commission (NRC) Part 170 and 171 fees.
IUC supports the NMA's Petition to exempt uranium recovery (UR) licensees from NRC Part 17O and 171
fees. Specifically, NMA petitioned the NRC to conduct a rulemaking to establish the basis and timeframe
lor waiving the assessment ol all annual and periodic inspection and licensing lees ol NHC UR licensees
or, in the alternative, to establish the basis lor waiving fees associated with a 10 CFR Part 41 rulemaking
proceeding. IUC agrees with NMA's assertion that maintenance ol a viable domestic UR industry,
including specifically maintenance of its substantial waste disposal capacity, as an important component
of a viable domestic nuclear luel cycle is demonstrably'in the public interest" of the United States of
America.
It is important to note at the outset that assuring the luture viability of lhe dwindling number of domestic
UR operations (and associated disposal capacity) over lhe short term until uranium prices sufficiently
recover, and lor NRC regulatory policy initiatives to make the use ol such resources ever more viable, will
not result in an unreasonable burden shift to other fuel cycle licensees. lt is probable that many such
licensees will benefit substantially from acoess to more cost-eflective disposal optbns and from the
stability of having viable domestb partners and customers. This is especially true given that since NFIC
rules require timely decommissioning and decontamination of inactive facilities, significant volumes of low
level radioactive waste will be created by such activilies. The disposal capacity for such wastes is either
disappearing, or can be procured only at exorbitant prices. Therefore, waiver ol NRC licensee fees and
aggressive actions to expand the use !
!
of existing UR recycling/disposal capacity are what is called for now.
The domestic UR industrt's conventional mills, such as IUC's White Mesa Mill near Blanding, Utah,
provide the necessary repositories for in situ leach (lSL) production and now, restoration wastes. They
can offer recycling/disposal options to other types of generators whose wastes contain recoverable
uranium and the potential in the future of direct disposal of large volume, low activity radioactive wastes.
Supporting and maintaining access lo such valuable resources lor fuelcych licensees (including
DOCKETED
USNHC
January 17, 2OOZ (1 1 :53AM)
OFFICE OF SECRETARY
RULEMAKINGS AND
ADJUDICATIONS STAFF
From:
To:
Date:
Subiect:
<mrehmann @ intluranium.coln>
<[e-mail]>
Wed, Jan 16,2OO2 6:02 PM Ws@q\-170-5, National Mining
c nuieFqry.n F*n.grrpglgeienCrymgil['Si[4Jn-.q,N3tip"*d$Lgr',qifggflt!-oJ-n*llonleugL?.s3*!*gJ.39s*l'
potentially reactors) and other radioactive waste generators in the lace of disappearing disposal options, is
in the nationalPublic interest.
with regard to timing of the waivers, luc notes that any laiv-e-r-ol annual and periodic inspection and
licensing tees should be made retroactive toinr "i"rr of ry-zooz (January 1,2m2), forthe lollowing
reasons. First, annuar and periodic inspectlon'anJii""nsing tees are carcurated over a fiscal year period
and assessed to ricensees accordingry. Th;;: ne rcense"-is assessed the requ'site fees using recovery
rates impremented over a singre tiscar year!-Jri; ,"ittr no overlap into the qreceolls or forrrcwing fiscal
year. As a result, ruC uelievJs that il rinc i! to *"ive annualanb periodic-inspection and licensing tees
ror UB ricensees beginning in Fy-20o2, "ny*"i* must be made ietroactive io the beginning of FY-2oo2"
so that there is consistency with the policy Li.""r""ing fees.based on a single fiscal,year' Making this
waiver retroactive to *re beginning or Fy-2&twirlrroi, un ricensees to adjust their FY-20o2 budgets
accorOingty and also allow the FY-20O3 budget !
!
io be adjusted according to the recovery rate prescribed by congress.
ln summary, in this time of increased international uncertainty regarding energy supplies' the united
States needs to be able to produce its valuable nuclear energy t6sources and to continue to utilize them
for our energy inOepenAenie and our nationatsecurity' For eiample' a stable souye of domestic uranium
is important to our ruuc[ar rrrary- Fairure i" ""i "t* ind lor the relatively short period necessarylor the
industryto stabilize would be a grave "ttoi if it f".ds to the loss of such valuable resources' Therefore'
IUC supports NMAs petition to.exempt rt"nir, t"""r"rv tunt licensees lrom NRG Part 170 and 171
fees, and requests that any waiver of annuaiand periodic inspection and licensing fees be made
retroaclive to the start of FY-20O2'
SincerelY,
Ron F. Hochstein
President
mr