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Home My WebLink AboutDRC-2002-001122 - 0901a06880adeb90\ e t"'"'""*Di"t#3,l:18#" ard @ Winston H. Hickox Secretary for Environmental Protection October 31,2002 Sarah M. Fields P.O. Box 143 Moab, utah84532 LEAD/IRON PRECIPITATE, PONDS P-8, P-11 AI\[D P-24 MOLYCORP'S MOUNTAIN PASS MINE AI{D MILL SITE (MOUNTAIN PASS FACILITY), SAII BERNARDINO COUNTY By this letter, we are responding to your three most recent letters (September 26, October 1 and October 28,2002letters). You have also sent correspondence to other agencies including the California Department of Health Services, Radiological Health Branch (DHS) and the California Department of Toxic Substances Control (DTSC). Your letters express your concerns with decisions by the DHS and Nuclear Regulatory Commission (NRC) regarding the removal, transport, reprocessing and disposal of the lead./iron precipitate. You also expressed concern about solids shipped to the Mountain Pass Facility from out-of-state facilities. Your September 26letter transmits 12 documents that pertain to Molycorp shipments of solids from its York, Pennsylvania Facility (York Facility) to its Mountain Pass Facility for mineral processing. The NRC and Molycorp authored the documents. The document dates range from October 23,198L through October 6,1992 and do not indicate that the NRC or Molycorp sent copies to the Regional Board. The NRC has classified the lead/iron precipitate and the solids from the York Facility as ore/product The Regional Board has limited authority over materials that are not waste. Most of the issues raised by your letters do not pertain to a waste and therefore are not within the jurisdiction of the Regional Board. Under the California Water Code, the Regional Board has authority to issue Waste Discharge Requirements (WDRs) to regulate discharges ofwaste to protect water quality. This includes authority to issue WDRs to regulate the discharge of waste generated by processing of orelproduct. Processing of the York Facility ore/product at the Mountain Pass Facility (hereafter referred to as the "activity") would constitute a violation of WDRs if it: (1) caused a material change in the character, location or volume of the waste discharge; and (2) Molycorp did not include the activity in a Report of Waste Discharge (application) on which the WDRs are based. Molycorp staffhas indicated to Regional Board staffthat it does not believe the activity constituted a material change in the discharge. Regional Board staff will soon request specific information from Molycorp to determine whether we agree with this position. We will keep you informed of the results of our investigation as they become available. C alifu rnia E nviro nm ental Prote ctio n Ag e n cy The energy challenge facing California is real, Every Californian needs to take immediate action to reduce energy consumption. tr'or a list of simple ways you can reduce demand and cut your energy costs, see our Web-site at http://www.swrcb.cr.gov Recycletl Paper Victorville Office Intemet Address: htp://www.swrcb.ca.gov/rwqcb6 15428 Civic Drive, Suite 100, Victorville, Califomia 92392 Phone (760) 241-6583. FAX (760) 241-7308 Gray Davis Governor atq, October 3I,2002 Your September 26letter requests that the Regional Board delay decommissioning of the ponds until certain actions occur (i.e, DHS licensing of the Mountain Pass Facility and DTSC's investigation of whether the precipitate must be classified hazardous waste). As we stated in our September 25,ZO0Z letter to you, both agencies (DHS and DTSC) have independent authority to determine whether it (the agency) needs to take such action. You request that we keep you informed of the status of the lead/iron precipitate in Ponds p-8, p-I1 andP-24. Since DHS is the lead agency for oversight of the removal and containeizationof the precipitate for transport, we suggest that you contact DHS staff directly for the status. The work may be underway. Your October I letter states that our September 25letter incorrectly indicates the NRC has authority over removal and transportation of the precipitate. You indicate the NRC does not have authoritJr. We would like to point out that the portion of our September 25letter that you are referring to did not use the word authorit],. In addition, the NR.C staff report, which supports the NRC decision, does address removal and transportation. Your October 1 letter asks what our Septembet 25letter was referring to by the statement "workplan for the proposal." Our letter was referring to the document(s) that Molycorp sent to the NRC and DHS before those agencies issued their decisions. The term "workplan" originated from a DHS staff member who referred to the document(s) as a "workplan" during a telephone conversation with Regional Board staff. Your September 26leffer requested that we inform you of any activities at the Mine Site, for which the Regional Board has oversight. We have added you to our Molycorp mailing list. You will receive copies of all correspondence and notices of Regional Board Meetings, which pertain to the Mine Site. We would like to send copies of our letters to the same persons receiving your letters. Please provide us with the addresses of the people receiving your letters, with the exception of those that are State of California employees. We have addresses for those employees. If you should need further information regarding this matter, please telephone me at (760) 241-7325 or Curt Shifrer of our staff at (760) 241-7376. Sincerely, Enclosures: Mailing List cc: ilencls: Attached Mailing List cs/rclltr_to_Fields_10_3 I 2002 C alifornia Enviro nm e nt al P rote ctio n Agen cy The energy challenge facing California is real. Every Californian needs to take immediate action to reduce energy consumption. For a list ofsimple ways you can reduce demand and cut your enerry costs, see our Web-site at htto://www.iwrcb.ca.qovrD Recvcled PaoerEJ Ms. Fields -2- Mail List Page I of 2 lFffi"rp"rse to Ms. Fields' September 26, October I and Octobe r 28,2002letters to Mr. Singer Regarding Molycorp Lead/Iron Precipitate) ALLEN RANDLE MOLYCORPINC 67750 BAILY ROAD MOUNTAIN PASS CA 92366 TIM SALT US DEPT OF INTERIOR BUREAU OF'LAND MGMT 622IBOX SPRINGS BLYD RIVERSIDE CA 92507 -07 14 LOUISE LAMPARA US FISH & WILDLIFE SBRVICE 2493 PORTOLA RD STE B VENTURA CA 93003 DONNA DAVIS CALIF DEPT OF FISH & GAME PO BOX 401602 HESPERIA CA9234O EDWARD BAILY CA DEPT OF HEALTH SERYICES RADIOLOGICAL HEALTH BRANCII POBOX 942732 SACRAMENTO CA 95814 PETERBRIERTY FIRE DEPT IIAZMAT CO OF SAN BERNARDINO 385 N ARROWHEAD AYE 2ND FLOOR SAN BERNARDINO CA 92415.0160 MOLLYBRADY BUREAU OF LAND MGMT NEEDLES RESOURCE OFFICE lOI WEST SPIKES ROAD NEEDLES CA92363 RANDY SCOTT CO OF'SAN BERNARDINO OFFICE OF PLANNING 385 N ARROWHEAD AVE 2ND FLOOR SAN BERNARDINO CA 92415-0160 LARRYWHALON, CHIEF of RESOURCES MOJAVE NAT'L PRESERVE 222 E MAIN ST SUITE 202 BARSTOW CA923I1 BRENDA POHLMAN DEPT OF ENV PROTECTION 555 E WASHTNGTON AVE SUITE 43OO LAS VEGAS NV 89101 MARYMARTIN US DEPT OF INTERIOR BUREAU OF LAND MGMT 222 E MAIN ST STE 202 BARSTOW CA923II COLIN MOY ECOLOGY AND ENYIRONMENT 350 SANSOME ST STIITE 3OO SAN FRANCISCO CA 94104 TOM GRIEB TETRA TECH 3746MT DIABLO BLVD STE 3OO LAFAYETTE CA94549 DANIEL GREGORY ENSR 1601 PROSPECT PARKWAY FORT COLLINS CO 80525 BARBARA HAMRICK CALIFORNIA DHS -RIIB 18OO E LAMBERT RD, SUITE 125 BREA, CA9282t BOBDOYER THE DYNAMAC BLDG 2275 RESEARCH BLYT) ROCKYILLE MD 20850 STEYE FISCHENICH ASSOC ENGINEERING GEOLOGIST RWQCB 15428 CIVIC DR SUITE 1OO VICTORVILLE CA92392 KARL PALMER DTSC PO BOX 806 SACRAMENTO CA 95812.0806 CURT SHIFRER, ASSOC WRCE RWQCB 15428 CIWC DR SUITE lOO VICTORVILLE CA92392 JERRY FREEMAN HOTEL NIPTON HCR# I BOX 357 NITPON CA92364 RUTHLOPEZ PEOPLE AGAINST RADIOACTIYE DUMPING(PARD) 420 E STREET NEEDLES CA92363 DENNIS BENSON MOJAYE DESERTRESOURCE SRVCS HCR# 1 BOX 364 NIPTON CA92364 ROXAI\N LANG IICR I, BOX 357 NIPTON CA92364 AI\IN BELLIS PO BOX 1064 CEDARGLENN CA9232I MARJORIE MIKELS 2Ol NORTH FIRSTAVENUE UPLAND CA 91786 SARAII M. FIELDS P.O. BOX 143 MOAB, UTAH 84532 ROBERT GREGER CA DEPT OF ITEALTH SERVICES RADIOLOGICAL HEALTH BRANCII POBOX 942732 SACRAMENTO CA 95814 Mail List Page2 of2 (For Response to Ms. Fields' September 26, october I and october 28,2002letters to Mr. Singer Regarding Molycorp Lead,/konPrecipitate) BARRY E. COf,'ER wsr-3 USEPAREGION 9 75 HAWTHORNE ST sAN FRANCTSCO, CA 94105 CHERYL NELSON WST-1 USEPAREGION 9 75 HAWTHORNE ST SAIY F',RANCISCO, CA 94105 WATSON GIN DTSC PO BOX 806 SACRAMENTO CA 95812-0806 WILLIAM SINCLAIR DEPT OF ENV QUALITY, DIV OF RADIATION CONTROL 168 NORTH 1950 WEST SALT LAKE CITY, UT 84114-4850 LOREN MORTEN DEPT OF'ENV QUALITY, DIV OF RADIATION CONTROL 168 NORTII l95O WEST SALT LAKE CrTY, UT 84114-4850 DENNIS DOWNS DEPT OF ENV QUALITY, DIV OF SOLID &HAZ WASTE 288 NORTH 1460 WEST, 4rH FLOOR SALT LAI(E CITY, UT 841T4-4880 DON VERBICA DEPT OFENV QUALITY, DIV OF SOLID &HAZ WASTE 288 NORTH 1460 WEST,4TH FLOOR SALT LAr(E CITY, UT 84114-4880 ALLEN BIAGGI, ADMINISTRATOR DIVISION OF' ENVIRONMENTAL PROTECTION 333 W NYE LANE, ROOM 138 CARSON CITY, NV 89706 PAUL LOHAUS, DIRECTOR Of,'FICE OF TRIBAL A}[D STATE PROGRAMS MAIL STOP O-3 ClO US NUCLBAR REG COMMISSION WASHTNGTON, D.C. 20555-0001 STEVEN BLIIM, OCC, SWRCB I Mail List MC Precipitate e t"""'"t'*3i'"*x3,l:18#" ard Winston IL Hickox Secrelaryfor Environmental Protection October 31,2002 Sarah M. Fields P.O. Box 143 Victorville OIIice Internet Address: http://www.swrcb.ca.gov/rwqcb6 15428 Civic Drive, Suite 100, Victorville, Califomia 92392 Phone (760) 241-6583 . FAX (760)241-7308 Grry Davis Governor --.--afJi ,,.. , -. t :i Moab, Utah84532 ''..:'. ,l ), "'-'l-'-t ,.a"z{f"/ LEAD/IRON PRECTPTTATE, POIIDS p-8, p-11 AND p-24 MOLyCOni'SrVitfffuTArN PASS MINE AND MILL SITE (MOT]NTAIN PASS FACILITY), SAN BERNARDINO COUNTY By this letter, we are responding to your three most recent letters (September 26, October 1 and October 28,2002letters). You have also sent correspondence to other agencies including the California Department of Health Services, Radiological Health Branch (DHS) and the California Deparhnent of Toxic Substances Control (DTSC). Your letters express your concerns with decisions by the DHS and Nuclear Regulatory Commission (NRC) regarding the removal, transport, reprocessing and disposal of the lead/iron precipitate. You also expressed concern about solids shipped to the Mountain Pass Facility from out-otstate facilities. Your September 26letter transmits 12 documents that pertain to Molycorp shipments of solids from its York, Pennsylvania Facility (York Facility) to its Mountain Pass Facility for mineral processing. The NRC and Molycorp authored the documents. The document dates range from October 23, 1981 through October 6, 1992 and do not indicate that the NRC or Molycorp sent copies to the Regional Board. The NRC has classified the lead/iron precipitate and the solids from the York Facility as ore/product. The Regional Board has limited authority over materials that are not waste. Most of the issues raised by your letters do not pertain to a waste and therefore are not within the jurisdiction of the Regional Board. Under the California Water Code, the Regional Board has authority to issue Waste Discharge Requirements (WDRs) to regulate discharges ofwaste to protect water quality. This includes authority to issue \\IDRs to regulate the discharge of waste generated by processing of ore/product. Processing of the York Facility ore/product at the Mountain Pass Facility (hereafter referred to as the "activity") would constitute a violation of WDRs if it: (1) caused a material change in the character, location or volume of the waste discharge; and (2) Molycorp did not include the activity in a Report of Waste Discharge (application) on which the WDRs are based. Molycorp staffhas indicated to Regional Board staffthat it does not believe the activity constituted a material change in the discharge. Regional Board staff will soon request specific information from Molycorp to determine whether we agree with this position. We will keep you informed of the results of our investigation as they become available. C alifornia E nvironm ental Protection Agency The energr challenge facing California is real. Every Californian needs to take immediate rction to reduce energy consumption. For a listof simple ways you can reduce demand and cut your energy costs, see our Web-site at http://www.swrcb.ca.gov Recycled Paper tDe, Ms. Fields -2-October 31,2002 Your September 26letter requests that the Regional Board delay decommissioning of the ponds until certain actions occur (i.e, DHS licensing of the Mountain Pass Facility and DTSC's investigation of whether the precipitate must be classified hazardous waste). As we stated in our September 25,2002 letter to you, both agencies (DHS and DTSC) have independent authority to determine whether it (the agency) needs to take such action. You request that we keep you informed of the status of the lead/iron precipitate in Ponds P-8, P-11 andP-Z4. Since DHS is the lead agency for oversight of the removal and containeizatronof the precipitate for transport, we suggest that you contact DHS staffdirectly for the status. The work may be underway. Your October 1 letter states that our September 25letter incorrectly indicates the NRC has authority over removal and transportation of the precipitate. You indicate the NRC does not have authority. We would like to point out that the portion of our September 25letter that you are referring to did not use the word authority. In addition, the NRC staffreport, which supports the NRC decision, does address removal and transportation. Your October 1 leffer asks what our September 25 letter was referring to by the statement "workplan for the proposal." Our letter was referring to the document(s) that Molycorp sent to the NRC and DHS before those agencies issued their decisions. The term "workplan" originated from a DHS staff member who referred to the document(s) as a "workplan" during a telephone conversation with Regional Board staff Your September 26letter requested that we inform you of any activities at the Mine Site, for which the Regional Board has oversight. We have added you to our Molycorp mailing list. You will receive copies of all correspondence and notices of Regional Board Meetings, which pertain to the Mine Site. We would like to send copies of our letters to the same persons receiving your leffers. Please provide us with the addresses of the people receiving your letters, with the exception of those that are State of California employees. We have addresses for those employees. If you should need further information regarding this matter, please telephone me at (760) 241-7325 or Curt Shifrer of our staffat (760) 241-7376. Sincerely, ffi_"% Enclosures: Mailing List cc: dencls: Attached Mailing List CShc/Ltr_to_Fields_l 0_3 I 2002 Califurnia E nvironmental Protection Agency The energy challenge facing California is real, Every Californian needs to take immediate action to reduce energ/ consumption. For a list ofsimple ways you cln reduce demand and cut your enerry costs, see our Web-site at http://www.swrcb.ca.qov ,D Recvcled Papert, rUa!!.L!s! | Page 1 of 2 F*"rp""se to Ms. Fields' September 26, October I and Octobe r 28,2002letters to Mr. Singer Regarding Molycorp Leadllron Precipitate) ALLEN RANDLE MOLYCORP INC 67750BAILY ROAD MOUNTAIN PASS CA 92366 TIM SALT US DEPT OFINTERIOR BUREAU OFLANDMGMT 622IBOX SPRINGS BLVD RIYERSIDE C A 92507 -07 I 4 LOUISE LAMPARA US FISH & WILDLIFE SERVICE 2493 PORTOLA RD STE B VENTURA CA 93003 DONNA DAYIS CALIF DEPT OF FISH & GAME PO BOX 401602 HESPERIA CA9234O EDWARD BAILY CA DEPT OF HEALTH SERYICES RADIOLOGICAL HEALTH BRANCH POBOX 942732 SACRAMENTO CA 95814 PETERBRIERTY FIRE DEPT HAZMAT CO OF SAN BERNARDINO 385 N ARROWHEAD AVE 2ND FLOOR SAN BERNARDINO CA 92415-0160 MOLLY BRADY BUREAU OF LAND MGMT NEEDLES RESOURCE OFFICE 101 WEST SPIKES ROAD NEEDLES CA 92363 RANDY SCOTT CO OF SAN BERNARDINO OFFICE OF PLANNING 385 N ARROWHEAD AYE 2ND FLOOR SAN BERNARDINO CA 92415-0160 LARRYWHALON, CHIEF ofRESOURCES MOJA\TE NAT'L PRESERVE 222 E MAIN ST SUITE 202 BARSTOW CA9231I BRENDA POHLMAN DEPT OF ENV PROTECTION 555 E WASHINGTON AVE SUITE 43OO LAS VEGAS NV 8910I MARYMARTIN US DEPT OF INTERIOR BUREAU OF LAND MGMT 222 E MAIN ST STE 202 BARSTOW CA923II COLINMOY ECOLOGY AND ENYTRONMENT 350 SANSOME ST SUITE 3OO SAN FRANCISCO CA 94104 TOM GRIEB TETRA TECH 3746l0{"T DIABLO BLYD STE 3OO LAFAYETTE CA94549 DANIEL GREGORY ENSR 1601 PROSPECT PARI(WAY FORT COLLINS CO 80525 BARBARA HAMRICK CALIFORNIA DHS -RHB 1800 E LAMBERT RD, SUITE 125 BREA, CL9282l BOBDOVER THE DYNAMAC BLDG 2275 RESEARCHBLYD ROCKYILLE MD 20850 STEVE FTSCHENICH ASSOC ENGINEERING GEOLOGIST RWQCB 15428 CTVIC DR SUITE lOO VICTORVILLE CA92392 KARL PALMER DTSC PO BOX 806 SACRAMENTO CA 95812-0806 CURT SHIFRER, ASSOC WRCE RWQCB 15428 CTVIC DR SUITE lOO VICTORVILLECA92392 JERRY FREEMAN HOTEL NIPTON HCR# I BOX 357 NITPON C492364 RUTHLOPEZ PEOPLE AGAINST RADIOACTIVE DUMPING(PARD) 420 E STREET NEEDLES CA92363 DENNIS BENSON MOJAVE DESERT RESOURCE SRVCS HCR# I BOX 364 NIPTON CA92364 ROXANNLANG HCR 1, BOX357 NIPTON C492364 ANN BELLIS PO BOX 1064 CEDARGLENN CA9232I MARJORIE MIKELS 201 NORTH FIRST AVENUE UPLAND CA9I786 SARAH M. FIELDS P.O. BOX 143 MOAB, UTAH 84532 ROBERT GREGER CA DEPT OF HEALTH SERVICES RADIOLOGICAL ITEALTH BRANCII PO BOX 942732 SACRAMENTO CA 95814 BARRY E. COFf,R wsT-3 USEPAREGION 9 75 HAWTHORNE ST sAN FRANCISCO, CA 94105 CHERYL NELSON wsT-1 USEPAREGION 9 75 HAWTHORNE ST sAN FRANCTSCO, CA 94105 WATSON GIN DTSC PO BOX 806 SACRAMENTO CA 95812-0806 WILLIAM SINCLAIR DEPT OFENVQUALITY, DIV OF RADIATION CONTROL 168 NORTH 1950 WEST SALT LAI(E CITY, UT 84114-4850 LOREN MORTEN DEPT OF ENVQUALTTY, DIV OF RADIATION CONTROL 168 NORTH T95O WEST SALT LAKE CITY, UT 84114-4850 DENNIS DOW}IS DEPT OF ENV QUALITY, DIV OF SOLID &HAZ WASTE 288 NoRTH 1460 wnsr,4rH FLooR SALT LAKE CITY, UT 84114-4880 DON VERBICA DEPT OF ENV QUALITY, DIV OF SOLID &HAZ WASTE 288 NoRTH 1460 wEST,4rH FLooR SALT LAr(E CITY, UT 84114-4880 ALLEN BIAGGI, ADMINISTRATOR DIYISION OF EN\TIROI\MENTAL PROTECTION 333 W NYE LANE, ROOM 138 CARSON CITY, NV 89706 Mail List Page 2 of2 (For Response to Ms. Fields' September 26, October I and October 28,2002letters to Mr. Singer Regarding Molycorp Lead./Iron Precipitate) PAUL LOHAUS, DIRECTOR OFFICE OF TRIBAL AND STATE PROGRAMS MAIL STOP O.3 ClO US NUCLEAR REG COMMISSION WASHINGTON, D.C. 20555-0001 STEyEN BLUM, OCC, SWRCB I Mail List MC Precipitate I ElsjgEL: ]qll quqr, 1 0:-28-02 "e-- October 28.2002 Mr. Hisam A. Baqai Supervising Engineer California Regional Water Quality Control Board Lahontan Region Victorville Office 15428 Civic Drive, Suite 100 Victorville, California 92392 RE: October 1,2002, Reply to RWQCB September 25,2o02,LetterRegarding "Lead/Iron Precipitate Currently Located in Ponds P-8, P-11 andP-24 at the Molycorp Inc. (Molycorp) Mountain Pass Mine, San Bernardino County Dear Mr. Baqai: On October 1,2002,I wrote you a letter addressing your letter of September 25, 2002. Your September 25 letter was in response to my Augu st 22, 2O\2,letter regarding the Molycorp, Inc., (Molycorp) Mountain Pass mineral processing facility. In the October 1, I discussed the fact that the granting by the Nuclear Regulatory Commission (NRC) of a license amendment to authorize the receipt of the ponded lead/iron precipitate by the Intemational Uranium (USA) Corporation did not also authorize the decommissioning and transfer of the ponded materials by Molycorp. I discussed the fact that the transfer of the materials, which contain source material as defined in the Atomic Energy Act and NRC regulation, can only be authorized via a license issued to Molycorp by the state of california, as an NRC Agreement state. Hopefully, you have not just taken my word for it and have consulted with appropriate state and federal agencies. I have not received an acknowledgement of, or a response to, my October 1 letter. Therefore, I would respectfully request an acknowledgement of my october I letter and a reply to that letter. Additionally, I would like to be kept currently and timely informed as to the status of the three lead/iron precipitate ponds at Mountain Pass and the status of my August 22 and October I requests for remedy. Bill Sinclair - To H Hisam A. Baqai October 28.2002 Sincerely, Sarah M. Fields P. O. Box 143 Moab, Utah84532 smfields@moci.net 435-259-4734 (E-mail) Edgar D. Bailey, DHS RHB Steve Fischenich, RWQCB Harold Singer, RWQCB Karl Palmer, DTSC Curt Shifrer, RWQCB Paul Lohaus, OSTP, NRC Barry E. Cofer, EPA Region 9 Cheryl Nelson, EPA Region 9 Watson Gin, DTSC John Low, DTSC William J. Sinclair, UT DRC Loren Morton, UT DRC Dennis Downs, UT DSHW, Don Verbica, UT DSHW Allen Biaggi, NV DEP Barbara Hamrick, DHS, RIIB Robert Greger, DHS, RIIB Daniel M. Gillen, NRC Paoe 1 I Sierra Club Glen Canyon Group P.O. Box 622,MoabUT 84532 October 3,2002 Dennis R. Downs, Executive Secretary Utah Solid and Hazardous Waste Control Board Department of Environmental Quality P.O. Box 144880 Salt Lake City, Utah 84114-4880 Dear Mr. Downs: After talking at length with your staff about the Molycorp material that International Uranium Corporation wishes to receive at the White Mesa Mill, the Sierra Club does not feel that it would be productive for us to pursue a hearing about the material at this time. Therefore, please remove our request for a hearing from the agenda of the Solid and Hazardous Waste Control Board. We anticipate continuing to have informal discussions with your staff regarding the Division of Solid and Hazardous Waste's oversight over the transfer of hazardous waste from off site to the White Mesa Uranium Mill. Sincerely, Victoria Woodard Conservation Chair Sierra Club Glen Canyon Group Cc (by e-mail): Scott Anderson, DSHW Raymond Wixom, DSHW Don Verbica, DSIIW Blake Robertson, DSHW William Sinclair, DRC Loren Morton, DRC Michelle Rehmann,IUC October 1,2002 Mr. Hisam A Baqai Supervising Engineer California Regional Water Quality Control Board Lahontan Region Victorville Office 15428 Civic Drive, Suite 100 Victorville, California 92392 RE: September 25,2002, Letter Regarding "Leadflron Precipitate Currently Located in Ponds P-8, P-l1 andP-24 at the Molycorp Inc. (Molycorp) Mountain Pass Mine, San Bemardino County Dear Mr. Baqai: Thank you for your letter of September 25, 2002, addressing my August 22, 2W2, concerns regarding the Molycorp, Inc., (Molycorp) Mountain Pass mineral processing facility. Your September 25 letter contains some misunderstandings regarding the Atomic Energy Act of 1954 (AEA), as amended, and Nuclear Regulatory Commission (NRC) regulations, which I would like to address. The AEA and NRC regulation, as incorporated into California State regulation, are applicable to Molycorp. Your September 25 states: Regional Water Quality Control Board staff (Board staff) has been in contact with the California Department of Health Services, Radiological Health Branch (DHS) and has investigated licenses issued by the Nuclear Regulatory Commission (NRC) for the proposed cleanup of the three referenced ponds. The DHS has reviewed the workplan for the proposal and issued a letter to Molycorp approving of removal and transport of the precipitate to the White Mesa Mill. The NRC also reviewed the workplan and issued an amended license to the White Mesa Mill that allows the; o Removal and transport of the precipitate to the White Mesa Mill; o Reprocessing of the precipitate at the Mill; and o Disposal of waste generated by processing to the Mill's tailings ponds. The statement above contains a misunderstanding of the NRC's authority over the materials at the Molycorp site. The NRC has not issued licenses "for the proposed clean Bill SinClair - To H Baqai 10-1-02 Hisam A Baqai October 1,2002 up of the three referenced ponds." The NRC has not issued an amended license to International Uranium (USA) Corporation (ruSA) allowing "the removal and transport of the precipitate." At this time, the NRC does not have the authority to issue a decision approving any activities at Mountain Pass, including the clean up, removal, and transfer of source material from Mountain Pass. The NRC only has the authority to authorize activities at ruSA's White Mesa Uranium Mill and other facilities under their jurisdiction. The DHS, not the NRC, has regulatory authority over the receipt, possession, and transfer of source material (as defined in 10 C.F.R. 40.4) at Mountain Pass. The State of California is an NRC Agreement State under the AEA (42 U.S.C. Sec. 2021). Even if the NRC had regulatory responsibility for the Molycorp site, the transfer of source material from Molycorp could not be authorized via an amendment to IUSA's license. The NRC has the authority under 42 U.S.C. Section 2021Q) to reassert its licensing and regulatory authority over the Molycorp site. However, the NRC has not asserted such authority. However, the NRC has oversight over the regulatory authority granted to the DHS under the AEA. It is unclear what "workplan for the proposal" you are referring to in the quote above. Please provide me with the date and title of the workplan or plans, reviewed by the RIIB and the NRC, which you are referring to. Again, the NRC staff that has regulatory authority over the White Mesa Uranium Mill has no authority to approve of any "workplan" for activities conducted at Mountain Pass. On December 11, 2001, the NRC granted IUSA an amendment to their source material license (License No. SUA-1358) to receive and process the ponded lead/iron precipitate from Molycorp (Ponds P-8, P-l1, andP-Z4). IUSA's license only authorizes IUSA to conduct activities at the White Uranium Mill, San Juan County, Utah (License Condition 9). IUSA's license does not authorize Molycorp to possess, clean up, remove, or transfer materials from the three referenced ponds. Using IUSA's license to authorize activity by another person at another site, would amount to a transfer, or an assignment, of IUSA's license to another person, without authorization by the Commission. This is in violation of NRC regulation at 10 C.F.R. $ 40.46 (Inalienability of licenses), which states: No license issued or granted pursuant to the regulations in this part shall be transferred, assigned or in any manner disposed of, either voluntarily or involuntarily, directly or indirectly, through transfer of control of any license to any person, unless the Commission shall after securing full information, find that the transfer is in accordance with the provisions of this act, and shall give its consent in writing. Additional NRC regulations applicable to the situation are found at 10 C.F.R. $ 40.41 (Terms and conditions of licenses) which states in part: Bill Sinclair - To H Baqai 10-1-02 Pegg 3 i Hisam A Baqai October 1,2002 (a) Each license issued pursuant to the regulations in this part shall be subject to all the provisions ofthe act, now or hereafter in effect, and to all rules, regulations and orders of the Commission. (b) Neither the license nor any right under the license shall be assigned or otherwise transferred in violation of the provisions of the Act. (c) Each person licensed by the Commission pursuant to the regulations in this part shall confine his possession and use of source or byproduct material to the locations and purposes authorized in the license. Except as otherwise provided in the license, a license issued pursuant to the regulations in this part shall carry with it the right to receive, possess, and use source or byproduct material. Preparation for shipment and transport of source or byproduct material shall be in accordance with the provisions of part 7l of this chapter. The Atomic Energy Act and NRC regulation stipulate that the possession, use, and transfer of source material cannot take place, except as authorized under a specific or general or license issued by the Commission, or an NRC Agreement State. Molycorp is subject to the AEA, as codified in Title 42 of the United States Code. 42 U.S.C. Sec. 2092 states: Sec.2092. - License requirements for transfers Unless authorized by a general or specific license issued by the Commission which the Commission is authorized to issue, no person may transfer or receive in interstate comnerce, transfer, deliver, receive possession of or title to, or import into or export from the United States any source material after removal from its place of deposit in nature, except that licenses shall not be required for quantities of source material which, in the opinion of the Commission. are unimportant. This statute in reiterated in NRC regulation in10 C.F.R. $ 40.3 (License requirements). 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 ofdeposit in nature, unless authorized in a specific or general license issued by the Commission under the regulations in this part. [55 FR 45598, Oct. 30, 1990] f Bill Sinclair - To H Baqai Hisam A Baqai October 1,2002 Therefore, the Department of Health Services needs to do more than just review the "workplan" for the proposal and issue a letter to Molycorp approving of removal and transport of the precipitate to the White Mesa Mill. A radioactive materials license must be issued. Molycorp intends to transfer source material from Mountain Pass. Therefore, in accordance with the requirements of the AEA and NRC regulation, Molycorp must have a radioactive materials license issued by the DHS, not just an approval letter from the DHS. Thus far, Molycorp has not received a specific source material license from the DHS that authorizes it to possess and transfer the ponded lead/iron sludges. Additionally, since the transfer of the source material in Ponds P-8, P-l1, and P-24 is part of a plan to decommission the lead/iron precipitate ponds, there should be a decommissioning plan that is developed in conformance with NRC and State of California regulation, meets NRC, EPA, and State of California decontamination and decommissioning standards, is noticed for public cornment, and approved by the DHS. Molycorp must comply with the regulations in 10 C.F.R. * 40.42 with respect "expiration and termination of licenses and decommissioning of sites and separate buildings or outdoor areas." Additionally, among other regulations, Molycorp must comply with 10 C.F.R. $ 40.36 with respect "financial assurance and recordkeeping for decommissioning." Molycorp must also comply with 10 C.F.R. $ 40.51, which sets forth regulations regarding the transfer of source or byproduct material. By letter dated August9,2N2,I was informed by Edgar D. Bailey, Chiel Radiologic Health Branch, Department of Health Services, that: Currently, Molycorp is in the process of resubmitting their California Radioactive Materials license application. Ponds P-8, P-11, and P-24 will be included in that application. Although licensing of the Molycorp site is not complete, RIIB has been involved in providing regulatory oversight of the reclamation of the P-8, P-l l, andP-Z4 ponds. The material in the ponds is source material pursuant to the definition of source material in title l0 of the Code of Federal Regulations, Part 40 (10 CFR 40). Molycorp has not requested an exemption from state or federal regulations for these materials. RIIB has authority over the radioactive constituents in waste identified as mixed waste (having radioactive and hazardous constituents). The DHS August 9 and my September 19 letter requesting additional information from the DHS are attached hereto. Since the materials in the lead/iron sludge ponds are mixed waste, then I would Bill Sinclair - To H Baqai Hisam A Baqai October 1,2002 expect that the California Department of Toxic Substances Control (DTSC) has a responsibility for the hazardous lead (D008) and barium (D005) content. The ponded lead/iron precipitate contains high levels of both of the characteristic hazardous wastes lead and barium (40 C.F.R. $ 261, Subpart C). It is unclear to me how the DTSC has assumed responsibility for this aspect of the mixed waste in the precipitate ponds. I understand that the California Regional Water Quality Control Board (RWQCB) wishes to see the precipitate ponds cleaned up as soon as possible. However, I do not understand how, after all these years (apparently, the ponds closed in 1984), the RWQCB has not taken into consideration the fact that the DHS has regulatory responsibility under the Atomic Energy Act for the source material at the Mountain Pass facility and seen to it that the DHS properly assumed such responsibility. The DHS was aware as early as 1986 that the Molycorp facility should have a radioactive materials license. This is documented by the October 6, 1986, letter from Donald A. Nussbaumer, Office of State Programs, NRC, to Joseph O. Ward, Radiological Health Branch, Califomia. The October 1986 letter is included as an attachment to the September 26,20O2,letter that I submitted to your office, addressed to Mr. Singer. That submittal discusses the shipment of radioactive water-treatment wastes from Pennsylvania to Mountain Pass. The DHS was aware that Molycorp was receiving radioactive wastes from off-site and should have required Molycorp to obtain a radioactive materials license to receive those materials. (Attachment I I to my September 29 is not legible-being a copy of a copy from a microfiche-therefore, I am also attaching a typed copy of that letter.) The citizens of Grand County and San Juan County, IJtah, such as myself, were never provided an opportunity to comment on any of Molycorp or California's plans for decommissioning the subject ponds and transferring the ponded materials off-site. In sum, because the Atomic Energy Act does not allow the transfer of the ponded leadl/iron sludges (because their source material content is more than 0.05 percent, by weight) except under a license issued pursuant the Act, I respectfully request that the transfer of the material in P-8, P-11, and P-24 not take place until properly authorized under a source material license and as part of an approved reclamation plan. I respectfully request that the transfer of the material in P-8, P-l1, and P-24 not take place until all applicable State of Califomia and NRC regulations with respect the licensing and decommissioning of the ponded material are complied with. Further, I respectfully request that the ponded material not be transferred until a determination is made as to whether any of radioactive wastes that were transferred to Mountain Pass from any of Molycorp's other facilities, or any other off-site location, were disposed of in any of the lead/iron sludge ponds. If you have any questions regarding this letter, please feel free to contact me. Hisam A Baqai October I,zNz Sincerely, Sarah M. Fields P. O. Box 143 Moab, utah84532 smfields@moci.net 435-259-4734 Attachments: As stated cc: (E-Mail) Edgar D. Bailey, DHS RHB Steve Fischenich, RWQCB Harold Singer, RWQCB Karl Palmer, DTSC Curt Shifrer, RWQCB Paul Lohaus, OSTP, NRC Barry E. Cofer, EPA Region 9 Cheryl Nelson, EPA Region 9 Watson Gin, DTSC John Low, DTSC William J. Sinclair, Ll-I DRC Loren Morton, UT DRC Dennis Downs, UT DSIIW, Don Verbica, UT DSIIW Allen Biaggi, NV DEP Barbara Hamrick, DHS, RFIB Robert Greger, DHS, RHB cc: (First Class Mail) Allen Randle, Molycorp Louise Lampara, USFWS Peter Brierty, CO of SB Molly Brady, BLM Randy Scott, CO of SB Larry Wahlon, MNP Brenda Pohlman, NV DEP Mary Martin, BLM Colin Moy Tom Grieb Daniel Gregory Bob Dover Jerry Freeman Ruth Lopez, PARD Dennis Benson Hisam A Baqai October 1,2002 Roxann Lang Ann Bellis Marjorie Mikels iir!!-s:mlfr=: 050042 9210070056 920929 PDR ADOCK 04008778 -EeeI [A typed copy of an NRC record. Typed by Sarah Fields. NRC notes in italics.l UNOCAL 76 MOLYCORP Molycorp, Inc., 350 N. Sherman St. York, Pa. 17403 (7I7) 845-2624 40-8778 September 29,1992 Mr. YawarH.Faraz United States Nuclear Regulatory Commission Washington, D. C. 20555 Dear Mr. Faraz: I would like to take the opportunity to thank you for your expediting handling of our recent request concerning the reworking of our cerium flouride/lead material. At this time the Molycorp, York, PA facility would like to excavate and package the low-level radioactive lanthanide material we have on site and return this material to the Molycorp, Mt. Pass, CA facility for reprocessing. This material is the solids from our waste water treatment, from lanthanide processing in the 1970's. It was put in the landfill years ago before we had an NRC license and is the same type material we recycled to Mt. Pass earlier this year from our waste water treatment operation under the terms of our NRC license amendment. The volume of this landfill is estimated at approximately 3,600 cubic feet of material with an LnO content of 50Vo and a ThOz content of 0.07Vo on a dry basis. We will soon have some more of our current 5321 by-product material to ship to Mt. Pass and we would like to do all of this by the end of 1992. With your concurrance [sic] and that of the California authorities we would like to start working on this project as soon as possible. Thank you for your time and consideration. Sincerely, MOLYCORP,INC. Isigned] Robert B. Brown Plant Manager A Subsidiary of Unocal Company i Bill Sinclair - To H Singer RWQCB 9-26-02 Lqg€_ l September 26,2002 Mr. Harold Singer, Executive Officer California Regional Water Quality Control Board Lahontan Region, Victorville Office 15428 Civic Dr., Suite 100 Victorville, California 92392 RE: Molycorp,Inc., Mountain Pass, California, Facility. Dear Mr. Singer: I wish to call to your attention the fact that the Molycorp, Inc., Mountain Pass, California, facility received radioactive wastes from off-site for processing and disposal or direct disposal at Mountain Pass. A review of the Environmental Protection Agency (EPA) description of the activities at Mountain Pass contained in the 1998 EPA Resource Conservation and Recovery Act (RCRA) Compliance Report (without all the attachments) and Department of Toxic Substances Control (DTSC) and Molycorp documents related to activities at Mountain Pass do not reveal that the Mountain Pass facility was engaged in activities other than the processing of ore from Molycorp's Mountain Pass mines. Therefore, I do not know if the California Regional Water Quality Control Board (CRWQCB), the EPA, and the DTSC are aware that Molycorp was shipping radioactive wastes from its rare- earth chemical plant in York, Pennsylvania, facility to Mountain Pass. The California Radiologic Health Branch was aware of at least some of the shipments of processing wastes from York to Mountain Pass, as is documented in the attachments hereto. The fact that processing waste and wastes from water treatment were shipped to Mountain Pass is documented in Nuclear Regulatory Commission (I.IRC) records pertaining to the York facility, which is licensed by the NRC (Docket No. 40-8794, License No. SMB-1408). Enclosed are several NRC records that document the transfer of wastes from York to Mountain Pass. Shipments to Mountain Pass were approved by the NRC in 1987 and 1992 and might have also occurred earlier as a result of the 1982 issuance of Amendment I to Molycorp's license (License Condition 9.B.). Shipments also might have occurred before the NRC took regulatory responsibility for the York site. The enclosed records are not the complete record with respect the radioactive wastes transferred from York to Mountain Pass. Although Molycorp has claimed that the wastes to be shipped were not hazardous. there is neither documentation of any State of Pennsylvania or EPA RCRA determination with respect the waste shipped to Mountain Pass, nor documentation of the radiological I Billsinclair - To H Singer RWQCB 9-26-02o- Harold Singer September 26.2002 or nonradiological characteristics of the materials. Molycorp is somewhat vague, particularly in the September 29, 1992,letter, about where the wastes originated at York and what exactly would be shipped. Moreover, there is little information as to what exactly happened to the waste once it arrived at Molycorp. There is no way from these records to determine whether or not wastes from the York facility ended up in Processing Ponds P-8, P-l1, andP-Z4. There is a question as to whether the radioactive wastes shipped from York should have been exempted from regulation as source material, as indicated by the December 14, 1982, NRC legal opinion. There is also the question as whether Molycorp should have had a California radioactive materials license in order to receive the York waste, as indicated by the NRC letter to the Califomia Radiological Health Branch, dated October 6. 1986. Additionally, it is possible that Molycorp shipped radioactive wastes from their Louviers, Colorado, facility to Mountain Pass. The State of Colorado, as an NRC Agreement State, has regulatory responsibility for that facility and (hopefully) would have records related to any shipments from Louviers to Mountain Pass. Therefore, I request that the CRWQCB investigate the receipt of radioactive wastes and other materials at Mountain Pass from Molycorp's York and Louviers facilities and any other off-site facility. I request that no material contained in Processing Ponds P-8, P-11, andP-24be shipped from Mountain Pass until a complete investigation is completed to determine whether the lead/iron sludge or tailings in the ponds contain any materials that were the result of processing and disposal or direct disposal of radioactive wastes that were shipped to Mountain Pass from York, Pennsylvania; Louviers, Colorado; or any other off- site facility. I request that no material be shipped from Mountain Pass until Processing Ponds P-8, P-11, andP-24, are properly licensed by the California Radiologic Health Branch, a proper Decommissioning Plan is submitted to the Radiologic Health Branch by Molycorp, the plan is noticed for public cornment, and the plan is approved by the Radiologic Health Branch, in accordance with the regulations in 10 C.F.R. Part 40, and the State of California conforming regulations. I request to kept currently and timely informed with respect any activities at the Mountain Pass facility which the CRWQCB has oversight over. Please send me an acknowledgement of this letter and an indication as to when I should expect a response. If you have any questions regarding this letter please feel free to contact me. Jagg 3. Harold Singer September 26,2002 Sincerely, Sarah M. Fields P.O. Box 143 Moab, utah84532-O143 smfields@moci.net 435-259-4734 cc: (E-mail, ilo attachments) Waston Gin, DTSC John Low, DTSC Barry Cofer, EPA Region 9 Cheryl Nelson, EPA Region 9 Curt Shifrer, RWQCB Steve Fishenich, RWQCB William J. Sinclair, UT DRC Loren Morton, UT DRC Dennis Downs, UTDHSW Don Verbica, UT DHSW Alan Biaggi,I{V DEP Paul Lohaus, NRC Williamvon Till, NRC EdgarD. Bailey, RCB l lill j5g_lsir - IoJl_Sinoer RWQCB e-26-02 ' ' ..Y ''''- --fespj.i Harold Singer September 26,2002 l. LIST OF ATTACHED DOCUMENTS Cover letter and Portion of Attachment 1 (Radioactive Waste Generation, Transportation and Disposal) to Molycorp's application for an NRC license, September 15, 1981. (For some reason the NRC date on Attachment 1 is October 23, r 98 r.) NRC legal opinion regarding Application of 10 CFR 40.13(c)(1)(vi) with respect Molycorp, December L4, 1982. Letter from Molycorp to John D. Kinneman, NRC, regarding Waste Management Practices at York and Drum Storage Inventory, May 28, 1986. Letter from Donald A. Nussbaumer, NRC, to Joseph O. Ward, Chief Radiological Health Branch, Califomia, regarding need for a radioactive materials license at Mountain Pass, October 6, 1986. NRC Inspection of York site, July 17 , 1986, inspection. Letter from Edmund C. Barnum, Molycorp, to Leland C. Rouse, NRC, application for a license amendment to blend materials for shipment from York to Mountain Pass, May 7, 1981. NRC internal memorandum referencing Molycorp's proposal to blend "rare earth residues with soda ash" for shipment to Mountain Pass, May 28, 1987. NRC Meeting Report, "Discusses Proposed Amendment Request re Blending of Process Residues with Soda Ash to Form Rare Earth Products," July 22, 1981. NRC issuance of Amendment 6 to License No. SMB-1408, authorizing the blending of rare earth residues with soda ash, July 30, 1987. Letter from Edmund C. Bamum, Molycorp, to John H. Hickman, California Radiologic Health Branch, August 12, 1987. Letter from Robert B. Brown, Molycop, to Yawar H. Faraz, NRC, regarding shipment of York processing waste and waste-water treatment waste to Mountain Pass, September 29,1992. 2. 3. 4. 5. 6. 8. 9. 10. 11. -ToH RWOCB Harold Singer September 26,2002 lZ.Letter from Yawar H. Faraz, NRC, to Robert B. Brown, Molycorp, October 16,1992. i BillSinclair - To W Gin 9-26-02 Page 1 ;'] September 26,2002 Mr. Watson Gin Deputy Director, Hazardous Waste Management Program Department of Toxic Substances Control P.O. Box 806 Sacramento, Califomia 958 1 2-0806 RE: Molycorp, Inc., Mountain Pass, California, Facility Dear Mr. Gin: I wish to call to your attention the fact that the Molycorp, Inc., Mountain Pass, California, facility received radioactive wastes from off-site for processing and disposal or direct disposal at Mountain Pass. A review of the Environmental Protection Agency (EPA) description of the activities at Mountain Pass contained in the 1998 EPA Resource Conservation and Recovery Act (RCRA) Compliance Report (without all the attachments) and Department of Toxic Substances Control (DTSC) and Molycorp documents related to activities at Mountain Pass do not reveal that the Mountain Pass facility was engaged in activities other than the processing of ore from Molycorp's Mountain Pass mines. Therefore, I do not know if the DTSC, the EPA, and the Califomia Regional Water Quality Control Board are aware that Molycorp was shipping radioactive wastes from its rare-earth chemical plant in York, Pennsylvania, to Mountain Pass. The California Radiologic Health Branch was aware of at least some of the shipments of processing wastes from York to Mountain Pass, as is documented in the attachments hereto. The fact that processing waste and wastes from water treatment were shipped to Mountain Pass is documented in Nuclear Regulatory Commission (NRC) records pertaining to the York facility, which is licensed by the NRC (Docket No. 40-8794, License No. SMB-1408). Enclosed are several NRC records that document the transfer of wastes from York to Mountain Pass. Shipments to Mountain Pass were approved by the NRC in 1987 and 1992, and shipments might have also occurred earlier as a result of the 1982 issuance of Amendment I to Molycorp's license (License Condition 9.B.). Shipments also might have occurred before the NRC took regulatory responsibility for the York site. The enclosed records are not the complete record with respect the radioactive wastes transferred from York to Mountain Pass. Although Molycorp has claimed that the wastes to be shipped were not hazardous, there is neither documentation of any State of Pennsylvania or EPA RCRA determination with respect the waste shipped to Mountain Pass, nor documentation of the radiological Bill Sinclair -To W Gin 9-26-02 t Watson Gin September 26,2002 or nonradiological characteristics of the materials. Molycorp is somewhat vague, particularly in the September 29,1992,letter, about where the wastes originated at York and what exactly would be shipped. Moreover, there is little information as to what exactly happened to the waste once it arrived at Molycorp. There is no way from these records to determine whether or not wastes from the York facility ended up in Processing Ponds P-8, P-l1, andP-24. There is a question as to whether the radioactive wastes shipped from York should have been exempted from regulation as source material, as indicated by the December 14, 1982, NRC legal opinion. There is also the question as whether Molycorp should have had a California radioactive materials license in order to receive the York waste, as indicated by the NRC letter to the California Radiological Health Branch, dated October 6, 1986. Additionally, it is possible that Molycorp shipped radioactive wastes from their Louviers, Colorado, facility to Mountain Pass. The State of Colorado, as an NRC Agreement State, has regulatory responsibility for that facility and (hopefully) would have records related to any shipments from Louviers to Mountain Pass. Therefore, I request that the DTSC investigate the receipt of radioactive wastes and other materials at Mountain Pass from Molycorp's York and Louviers facilities and any other off-site facility. Such an investigation should include a determination as to what materials were received from off-site, when, and from where; an investigation of the source, industrial process, and characteristics of the materials received; a determination regarding whether the materials contained listed or characteristic RCRA wastes; a determination regarding the ultimate disposition of the wastes at the Molycorp site; and a determination as to whether was properly authorized to receive the materials in accordance with the requirements of 10 C.F.R. Part 40 and the Atomic Energy Act. I request that no material contained in Processing Ponds P-8, P-l1, and P-24 be shipped from Mountain Pass until a complete investigation is completed to determine whether the lead/iron sludge or tailings in the ponds contain any materials that were the result of processing and disposal or direct disposal of radioactive wastes that were shipped to Mountain Pass from York, Pennsylvania; Louviers, Colorado; or any other off- site facility. I request that no material be shipped from Mountain Pass until Processing Ponds P-8, P-l1, andP-24, are properly licensed by the California Radiologic Health Branch, a proper Decommissioning Plan is submitted to the Radiologic Health Branch by Molycorp, the plan is noticed for public comment, and the plan is approved by the Radiologic Health Branch, in accordance with the regulations in l0 C.F.R. Part 40, and the State of California conforming regulations. I request to kept currently and timely informed with respect any activities at the Mountain Pass facility which the DTSC has oversight over. Please send me an acknowledgement of this letter and an indication as to when I Watson Gin September 26,2002 should expect a response. If you have any questions regarding this letter please feel free to contact Sincerely, Sarah M. Fields P.O. Box 143 Moab, Utah84532-O143 smfields@moci.net 435-259-4734 (E-mail, w/o attachments) John Low, DTSC Barry Cofer, EPA Region 9 Cheryl Nelson, EPA Region 9 Harold Singer, CRWQCB Curt Shifrer, RWQCB Steve Fishenich, RWQCB William J. Sinclair, UT DRC Loren Morton, UT DRC Dennis Downs, UT DHSW Don Verbica, UT DHSW Alan Biaggi,I{\i DEP Paul Lohaus, NRC William von Till, NRC EdgarD. Bailey, RCB i Bill Sinclair - To W Gin 9-26-02 irsel,! Watson Gin September 26,2002 LIST OF ATTACHED DOCUMENTS 1. Cover letter and Portion of Attachment I (Radioactive Waste Generation, Transportation and Disposal) to Molycorp's application for an NRC license, September 15, 1981. (For some reason the NRC date on Attachment 1 is October 23, 1981.) NRC legal opinion regarding Application of 10 CFR a0.13(c)(1Xvi) with respect Molycorp, December 14, 1982. Letter from Molycorp to John D. Kinneman, NRC, regarding Waste Management Practices at York and Drum Storage Inventory, May 28, 1986. Letter from Donald A. Nussbaumer, NRC, to Joseph O. Ward, Chief Radiological Health Branch, Califomia, regarding need for a radioactive materials license at Mountain Pass, October 6, 1986. NRC Inspection of York site, July 17, 1986, inspection. Letter from Edmund C. Barnum, Molycorp, to Leland C. Rouse, NRC, application for a license amendment to blend materials for shipment from York to Mountain Pass, May 7,1981. NRC internal memorandum referencing Molycorp's proposal to blend "rare earth residues with soda ash" for shipment to Mountain Pass, May 28, 1987. NRC Meeting Report, "Discusses Proposed Amendment Request re Blending of Process Residues with Soda Ash to Form Rare Earth Products," July 22, 1987. NRC issuance of Amendment 6 to License No. SMB-1408, authorizing the blending of rare earth residues with soda ash, July 30, 1987. 10. Letter from Edmund C. Bamum, Molycorp, to John H. Hickman, California Radiologic Health Branch, August 12,1987. 11. Letter from Robert B. Brown, Molycop, to Yawar H.Faraz, NRC, regarding shipment of York processing waste and waste-water treatment waste to Mountain Pass, September 29,1992. 2. J. 4. 5. 6. 7. 8. 9. Biil - to Watson Gin September 26,20[.2 lZ.Letter from Yawar H. Faraz, NRC, to Robert B. Brown, Molycorp, October 16,1992. lBfir Sinclair - To B Cofer EPA 9-26-02 September 26,2002 Mr. Barry E. Cofer WST-I U.S. Environmental Protection Agency Region 9 75 Hawthorne Street San Francisco, Calfornia 94105 RE: Molycorp. Inc., Mountain Pass, Califomia, Facility US EPA ID Number: CAD009539321 Dear Mr. Cofer: I wish to call to your attention the fact that the Molycorp, Inc., Mountain Pass, California, facility received radioactive wastes from off-site for processing and disposal or direct disposal at Mountain Pass. A review of the Environmental Protection Agency (EPA) description of the activities at Mountain Pass contained in the 1998 EPA Resource Conservation and Recovery Act (RCRA) Compliance Report (without all the attachments) and Department of Toxic Substances Control (DTSC) and Molycorp documents related to activities at Mountain Pass do not reveal that the Mountain Pass facility was engaged in activities other than the processing of ore from Molycorp's Mountain Pass mines. Therefore, I do not know if the EPA, the DTSC, and the Califomia Regional Water Quality Control Board are aware that Molycorp was shipping radioactive wastes from its rare-earth chemical plant in York, Pennsylvania, facility to Mountain Pass. The California Radiologic Health Branch was aware of at least some of the shipments of processing wastes from York to Mountain Pass, as is documented in the attachments hereto. The fact that processing waste and wastes from water treatment were shipped to Mountain Pass is documented in Nuclear Regulatory Commission (NRC) records pertaining to the York facility, which is licensed by the NRC (Docket No. 40-8794, License No. SMB-1408). Enclosed are several NRC records that document the transfer of wastes from York to Mountain Pass. Shipments to Mountain Pass were approved by the NRC in 1987 and 1992 and might have also occurred earlier as a result of the 1982 issuance of Amendment I to Molycorp's license (License Condition 9.B.). Shipments also might have occurred before the NRC took regulatory responsibility for the York site. The enclosed records are not the complete record with respect the radioactive wastes transferred from York to Mountain Pass. Although Molycorp has claimed that the wastes to be shipped were not hazardous, there is neither documentation of any State of Pennsylvania or EPA RCRA determination with respect the waste shipped to Mountain Pass, nor documentation of the radiological l: Bill.Sjnc-lair - To B Cofer EPA 9-26:02 -_. .. ., . ,. ... . ...eeg_e.? i Barry Cofer September 26,2002 or nonradiological characteristics of the materials. Molycorp is somewhat vague, particularly in the September 29, 1992,letter, about where the wastes originated at York and what exactly would be shipped. Moreover, there is little information as to what exactly happened to the waste once it arrived at Molycorp. There is no way from these records to determine whether or not wastes from the York facility ended up in Processing Ponds P-8, P-l1, andP-24. There is a question as to whether the radioactive wastes shipped from York should have been exempted from regulation as source material, as indicated by the December 14, 1982, NRC legal opinion. There is also the question as whether Molycorp should have had a California radioactive materials license in order to receive the York waste, as indicated by the 1982legal opinion and the NRC letter to the California Radiological Health Branch, dated October 6, 1986. Additionally, it is possible that Molycorp shipped radioactive wastes from their Louviers, Colorado, facility to Mountain Pass. The State of Colorado, as an NRC Agreement State, has regulatory responsibility for that facility and (hopefully) would have records related to any shipments from Louviers to Mountain Pass. Therefore, I request that the DTSC investigate the receipt of radioactive wastes and other materials at Mountain Pass from Molycorp's York and Louviers facilities and any other off-site facility. Such an investigation should include a determination as to what materials were received from off-site, when, and from where; an investigation of the source, industrial process, and characteristics of the materials received; a determination regarding whether the materials contained listed or characteristic RCRA wastes; a determination regarding the ultimate disposition of the wastes at the Molycorp site; and a determination as to whether was properly authorized to receive the materials in accordance with the requirements of 10 C.F.R. Part 40 and the Atomic Energy Act. I request that no material contained in Processing Ponds P-8, P-11, andP-24be shipped from Mountain Pass until a complete investigation is completed to determine whether the lead/iron sludge or tailings in the ponds contain any materials that were the result of processing and disposal or direct disposal of radioactive wastes that were shipped to Mountain Pass from York, Pennsylvania; Louviers, Colorado; or any other off- site facility. I request that no material be shipped from Mountain Pass until Processing Ponds P-8, P- 1 1, andP-24, are properly licensed by the California Radiologic Health Branch, a proper Decommissioning Plan is submitted to the Radiologic Health Branch by Molycorp, the plan is noticed for public comment, and the plan is approved by the Radiologic Health Branch, in accordance with the regulations in 10 C.F.R. Part 40, and the State of California conforming regulations. I request to kept currently and timely informed with respect any activities at the Mountain Pass facility which the EPA has oversight over. Please send me an acknowledgement of this letter and an indication as to when I - To B Cofer EPA 9-26-02 Barry Cofer September 26,2002 should expect a response. If you have any questions regarding this letter please feel free to contact me. Sincerely, Sarah M. Fields P.O. Box 143 Moab, urah84532-0143 smfields@moci.net 435-259-4734 (E-mail, w/o attachments) John Low, DTSC Watson Gin, DTSC Cheryl Nelson, EPA Region 9 Harold Singer, CRWQCB Curt Shifrer, RWQCB Steve Fishenich, RWQCB William J. Sinclair, IJT DRC Loren Morton, UT DRC Dennis Downs, UT DHSW Don Verbica, UT DHSW Alan Biaggi, NV DEP Paul Lohaus, NRC Williamvon Till, NRC Edgar D. Bailey, RCB Michael Bandrowski, EPA Region 9 Frank Marcinowski, EPA Loren Setlow, EPA Page 4 il_Etllsil"lgrr -ro B cqfer EP_Ae ?a" 9,:? 1. Barry Cofer September 26,2002 LIST OF ATTACHED DOCUMENTS Cover letter and Portion of Attachment I (Radioactive Waste Generation, Transportation and Disposal) to Molycorp's application for an NRC license, September 15, 1981. (For some reason the NRC date on Attachment 1 is October 23, 1981.) NRC legal opinion regarding Application of 10 CFR a0.13(c)(1)(vi) with respect Molycorp, December 14, 1982. Letter from Molycorp to John D. Kinneman, NRC, regarding Waste Management Practices at York and Drum Storage Inventory, May 28, 1986. Letter from Donald A. Nussbaumer, NRC, to Joseph O. Ward, Chief Radiological Health Branch, Califomia, regarding need for a radioactive materials license at Mountain Pass, October 6, 1986. NRC Inspection of York site, July I7 , 1986, inspection. Letter from Edmund C. Barnum, Molycorp, to Leland C. Rouse, NRC, application for a license amendment to blend materials for shipment from York to Mountain Pass, }l{.ay 7,1987. 7. NRC internal memorandum referencing Molycorp's proposal to blend "rare earth residues with soda ash" for shipment to Mountain Pass, May 28,1987. 8. NRC Meeting Report, "Discusses Proposed Amendment Request re Blending of Process Residues with Soda Ash to Form Rare Earth Products," July 22, 198'7. 9. NRC issuance of Amendment 6 to License No. SMB-1408, authorizing the blending of rare earth residues with soda ash, July 30, 1987. 10. Letter from Edmund C. Bamum, Molycorp, to John H. Hickman, California Radiologic Health Branch, August 12,1987. 11. Letter from Robert B. Brown, Molycop, to Yawar H. Faraz, NRC, regarding shipment of York processing waste and waste-water treatment waste to Mountain Pass, September 29,1992. 2. 3. 4. 5. 6. - lo Barry Cofer September 26,2W2 Lz.I-ettrr from Yawar H. Faraz, NRC, to Robert B. Brown, Molycorp, October 16,1992. I )e ."r,"'"r"a,rrt,HLffi,r* ard ffi Winston II. Hickox Secrenry for Environmental Protection Victorville OIIIce Intcmet Address: htp://www.swrcb.ca.gov/rwqcb6 15428 Civic Drive, Suite 100, Victorville, Califonia 92392 Phone (760) 241-6583 . FAX (760) 241-7308 September 25,2002 Sarah M. Fields P.O. Box 143 Moab, Utah 84532 LEAD/rRON PRECIPITATE CURRENTLY LOCATED IN PONDS p-8, p-11 AttD P-24 AT THE MOLYCORP INC. (MOLYCORP) MOUNTAIN PASS l\dII\tB, SAtl BERNARDINO COUNTY This is in response to your August 22,2}O2letter that expressed your concerns with a proposal to remove, transport, reprocess and dispose of the lead/iron precipitate in three ponds at the Molycorp Mountain Pass Mine facility. Molycorp is proposing to remove the lead/iron precipitate (precipitate) from Ponds P-8, 11 and 24, and fransport the precipitate to the White Mesa Uranium Mill, which is located in Blanding, Utatr and owned by the International Uranium (USA) Corporation (IUSA). Molycorp generated the precipitate through beneficiation of ore to remove lanthanide metals for sale. ruSA proposes to process the precipitate as alternate feed material to remove uranium for sale as a product. Waste generated by the White Mesa Mill is disposed to onsite tailings ponds, which are lined and include monitoring for detection of releases. Molycorp estimates that it will ship up to 17,750 tons of material by truck to the White Mesa Mill. Regional Water Quality Control Board staff(Board staff) has been in contact with the Califomia Department of Health Services, Radiological Health Branch (DHS) and has investigated licenses issued by the Nuclear Regulatory Commission (NRC) for the proposed cleanup of the three referenced ponds. The DHS has reviewed the workplan for the proposal and issued a letter to Molycorp approving of removal and hansport of the precipitate to the White Mesa Mill. The NRC also reviewed the workplan and issued an amended license to the White Mesa Mill that allows the: o Removal and transport of the precipitate to the White Mesa Mill;. Reprocessing of the precipitate at the Mill; ando Disposal of waste generated by processing to the Mill's tailings ponds. The NRC's letter and amended license are public information. The amended license is available on the NRC's website. In your letter, you request that the Regional Board delay the decommissioning of the three ponds until DHS takes regulatory responsibility for the remediation of the ponds, and ask why the Board is considering the cleanup before the DHS has licensed the Mountain Pass Mine facility. Califu rnia E nvironm ental Protection Agen qt The energr chrllenge fecing Crllfornh ls reel. Every Cellfornlen nccdr to tekc immcdirtc rctlon to reduce energr consumptlon. For e list of simple weys you crn rcducc demrnd rnd cut your ctrcrg/ costs, ree our Websitc rt http://wwrvswrcb.cr.gov {g nwaaeaner Gray Devis Govenor Ms. Fields -2-September 25,2002 Board staffdesires to see the ponds cleaned up as soon as possible as a water quahty protection measure. Any approval by the Regional Board of Molycorp's plan for cleanup of the ponds would not supersede the requirernents of any other agencies. The DHS has independent authority to determine whether it needs to license the facility. Your concerns with DHS decisions shoirld be addressed to that agency. You also reque\{Od information on the amount of any contaminated soil beneath the ponds that would be excavfiiid and whetherthe excavated material would be kansported offsiti. That information is not yet aveilable. Following completion of the Precipitate Rernoval Proposal, Molycorp will conduct additional work to address remaining soil contaminants within the footprint of Ponds P-8, I I and,24. A plan for disposal of any contaminated soils has not yet been submitted to the Board. Your letter expressed your concern that a number of agencies are unaware that wastes from other Molycorp facilities were shipped to the Molycorp Mountain Pass facility for processing and or disposal. You add that you are assembling documelrts related to shipments of such material that occurred in 1987 and 1992 and that you will forward those documents to us. The Regional Board regulates wastes to protect water quality. We do not regulate shipment of material, including shipment of source material or ores to the Mountain Pass facility forbeneficiation. We will, however, review any documents you send us to determine if theyprovide evidence of violation of the Board's waste Discharge Requirements for the facility. If you should need firther information regarding this matter, please telephone me at (760)241- 6583 or Curt Shifrer of our staff at (760) 241-7376. Sincerely,W:#Hisam A. Baqai I Superrising Engineer cc: Attached Mailing List CS\rc\Lead_Precip_Ltr_02 C alifo r n ia E nv ir o n m e nt al P rot e ctio n A g e n cy Thc energt chlllenge frclng Crllfornh ls rel. Every Ctllfornirn necds to trke immedlrte ecdon to reducc energr consumptlon. For r lictof clmple weys you crn reduce demend rnd cut your energr costs, see our Webclte rt http://www.Jircb.ce.gov{l naxut rwu Mail List (For Response to Ms. Fields' August 22,2002 Letter to Mr. Singer Regarding Molycorp Lead/Iron Precipitate) ALLEN RANDLE MOLYCORPINC 67750 BAILY ROAI) MOT'NTAIN PASS CA 92366 TIM SALT US DEPT OF INTERIOR BT]REAU OF LAI\ID MGMT 622IBOX SPRINGS BLYI) RTyERSIDE C A 92507 -07 t4 LOUISE LAMPARA US FISH & WILDLIFE SERYICE 2493 PORTOLA RD STE B YENTIJRA CA 93003 DONNA DAVIS CALIF DEPT OF FISH & GAME PO BOX 401602 HESPERIA CA9234O EDWARDBAILY CA DEPT OF HEALTH SERYICES RADIOLOGICAL HEALTH BRANCH POBOX 942732 SACRAMENTO CA 95814 PETERBRIERTY FIRE DEPT HAZMAT CO OT'SAN BERNARDINO 385 N ARROWIIEAD AVE 2ND FLOOR SAN BERNARDINO CA 92415.0T60 MOLLYBRADY BT'REAU OF LAI\ID MGMT NEEDLES RESOT'RCE OF'FICE 101 WEST SPIKES ROAD NEEDLES CA92363 RANDY SCOTT CO OF SAN BERNARDINO OFT'ICE OF PLANNING 385 N ARROWHEAD AYE 2ND FLOOR SAI\ BERNARDINO CA 92415.0160 LARRYWHALON, CHIEF ofRESOURCES MOJAYE NAT'L PRESERVE 222 E MAIN ST SUITE 202 BARSTOW CA923tt Page I of2 BRENDA POIILMAN DEPT OF ENV PROTECTION 555 E WASHINGTON AVE SUITE 43OO LAS YEGAS NV 89101 MARYMARTIN US DEPT OF INTERIOR BI]REAU OF LAND MGMT 222 E MAIN ST STE 202 BARSTOW CA 92311 COLIN MOY ECOLOGY AND ENYIRONMENT 350 SANSOME ST SUITE 3OO SAN FRANCISCO CA 94104 TOM GRIEB TETRA TECH 3746 MT DIABLO BLVD STE 3OO LAFAYETTE CA94549 DANIEL GR"EGORY ENSR 1601 PROSPECT PARKWAY FORT COLLINS CO 80525 BARBARA HAMRICK CALIFORNIA DHS-RHB 1800 E LAMBERT RD, SUITE 125 BREA, CA9282t BOB DOYER THEDYNAMACBLDG 2275 RESEARCH BLVI) ROCKVILLE MD 20850 STEYE FISCHENICH ASSOC ENGINEERING GEOLOGIST RWQCB 15428 CIVIC DR SUITE 100 VICTORYILLE,CA92392 KARL PALMER DTSC PO BOX 806 SACRAMENTO CA 95812.0806 cuRT SHIFRE& ASSOC WRCE RWQCB 15428 CTVIC DR SUITE 1OO VICTORVILLE CA92392 JERRY FREEMAN HOTELNIPTON HCR# I BOX357 NITPON CA923,A| RUTHLOPEZ PEOPLE AGAINST RADIOACTTYE DUMPING(PARD) 420 E STREET NEEDLES C492363 DENNIS BENSON MOJAYE DESERT RESOTIRCE SRVCS HCR# 1 BOX 364 NTPTON CL92364 ROXAI\N LAITG HCR 1, BOX357 NIPTON CA92364 ANN BELLIS PO BOX 1064 CEDARGLENN CA9232I MARIORIEMIKELS 201 NORTII FIRST AYENT'E UPLAND CA 91786 PAUL LOITAUS, DTRECTOR OTFICE OF TRIBAL AND STATE PROGRAMS MAIL STOP O.3 CIO US NUCLEAR REGTJLATORY COMMISSION WASHINGTON, D.C. 20555-0001 ROBERT GREGER CA DEPT OF HEALTII SERVICES RADIOLOGICAL HEALTH BRANCII POBOX 942732 SACRAMENTO CA 95814 Mail List (For Response to Ms. Fields'August 22,2002 Letter to Mr. Singer Regarding Molycorp Lead./Iron Precipitate) BARRY E. COFER wsT-3 USEPA REGION 9 75 HAWTHORNE ST sAI\t FRANCISCO, CA 94105 CHERYL NELSON wsT-1 USEPAREGION9 75 HAWTHORNE ST sAn FRANCISCq CA 9410s WATSON GIN DTSC PO BOX 806 SACRAMENTO CA 95812.0806 WILLIAM SINCLAIR DEPT OF EIIV QUALITY, DIV OF RADIATION CONTROL I6E NORTH 1950 WEST SALT LAKE CITY, UT 8411,1-4850 LOREN MORTEN DEPT OF ENV QUALITY, DtV OF RADIATION CONTROL 168NORTH 1950WEST SALT LAKE CITY, UT 841I+4850 DENNIS DOWNS DEPT OF ENV QUALITY, DTVOFSOLD&HAZWASTE 2E8 NORTH 1460 WEST, 4m FLOOR SALT LAKE CITY, UT 84114-4880 DONYERBICA DEPT OF'ENV QUALITY,DIVOFSOLD&HAZWASTE 288 NORTH 1460 WEST,4mFLOOR SALT LAKE CITY, UT 84U4-4880 ALLEN BIAC.GI, N)MINISTRATOR DTYISION OF ENYIRONMENTAL PROTECTION 333 W IYYE LA|{B, ROOM 13E CARSON CITY, NV89706 Mail List MC Precipitete 9t25t02 Page2 of2 e .',,".","4trr1.Y1jffi,,* ard ffip Winston H. Hickor Secrenry for Environmental Protection Victorville OlIIce Internct Address: htQ:/iwww.swrcb.ca.gov/rwqcb6 15428 Civic Drive, Suite 100, Victorville, Califomia 92392 Phorc (760) 241-6583 . FAX Q60)241-7308 September 25,2002 Sarah M. Fields P.O. Box 143 Moab, Utah 84532 LEAD/IRON PRECIPITATE CURRENTLY LOCATED IN PONDS P-8, P-11 Ai\tD P-24 AT TIIE MOLYCORP INC. (MOLYCORP) MOUNTAIN PASS n[II\tE, SAI\I BERNARDINO COI]NTY This is in response to your August 22,z}O2letter that expressed your concerns with a proposal to remove, transport, reprocess and dispose of the lead/iron precipitate in three ponds at the Molycorp Mountain Pass Mine facility. Molycorp is proposing to remove the lead/iron precipitate (precipitate) from Ponds P-8, 11 and 24, arrd, transport the precipitate to the White Mesa Uranium Mill, which is located in Blanding, Utah and owned by the International Uranium (USA) Corporation (IUSA). Molycorp generated the precipitate through beneficiation of ore to remove lanthanide metals for sale. IUSA proposes to process the precipitate as alternate feed material to remove uranium for sale as a product. Waste generated by the White Mesa Mill is disposed to onsite tailings ponds, which are lined and include monitoring for detection of releases. Molycorp estimates that it will ship up to 17,750 tons of material by truck to the White Mesa Mill. Regional Water Quality Conhol Board staff(Board staff) has been in contact with the California Deparfrnent of Health Services, Radiological Health Branch (DHS) and has investigated licenses issued by the Nuclear Regulatory Commission (NRC) for the proposed cleanup of the three referenced ponds. The DHS has reviewed the workplan for the proposal and issued a letter to Molycorp approving of removal and transport of the precipitate to the White Mesa Mill. The NRC also reviewed the workplan and issued an amended license to the White Mesa Mill that allows the: o Removal and transport of the precipitate to the White Mesa Mill;o Reprocessing of the precipitate at the Mill; ando Disposal of waste generated by processing to the Mill's tailings ponds. The NRC's letter and amended license are public information. The amended license is available on the NRC's website. In your letter, you request that the Regional Board delay the decommissioning of the three ponds until DHS takes regulatory responsibility for the remediation of the ponds, and ask why the Board is considering the cleanup before the DHS has licensed the Mountain Pass Mine facility. California Environmental Protec'tian Agenqt The energr challenge frcing Callfornie ls rcrl. Every Crllfornlrn necdr to trke lmmediete ectlon to rcduce energr consumption. f,'or r llat of simple wrys you crn reduce demend end cut your GtrGrW costq gee our WeFsite et http://www.cwrcb.ce.gov $ ne4Aa raper Grey Devis Govenpr f,":'|h - - .i- , .a l]1 \H n:* ':,;',',i ri)tA "'3t''" -' -,7\q, ,;,,\'<A ,')u.,\oe. . , ;o;\ -- ic"2' September 25,2002 Board staffdesires to see the ponds cleaned up as soon as possible as a water quality protection measure. Any approval by the Regional Board of Molycorp's plan for cleanup of the ponds would not supersede the requirernents of any other agencies. The DHS has independent authority to determine whether it needs to license the facility. Your concems with DHS decisions should be addressed to that agency. You also requested information on the amount of any contaminated soil beneath the ponds that would be excavated and whether the excavated material would be hansported offsite. That information is not yet available. Following completion of the Precipitate Removal Proposal, Molycorp will conduct additional work to address remaining soil contaminants within the footprint of Ponds P-8, I I and24. A plan for disposal of any contaminated soils has not yet been submiued to the Board. Your letter expressed your concern that a number of agencies are unaware that wastes from other Molycorp facilities were shipped to the Molycorp Mountain Pass facility for processing and or disposal. You add that you are assembling documents related to shipments of such material that occurred in 1987 and 1992 and that you will forward those documents to us. The Regional Board regulates wastes to protect water quality. We do not regulate shipment of material, including shipment of source material or ores to the Mountain Pass facility forbeneficiation. We will, however, review any documents you send us to determine if they provide evidence of violation of the Board's waste Discharge Requirements for the facility. If you should need further information regarding this matter, please telephone me at (760)241- 6583 or Curt Shifrer of our staffat (760)241-7376. Sincerely,W:#Hisam A. Baqai / Supenrising Engineer cc: Attached Mailing List CS\rc\Lead_Precip_Ltr_O2 California Environmental Protection Agen cy The energr chrllenge fecing Celifornla lr reel. Evcry Cellfornlen nccdr to trkc lmmcdirte rctlon to reduce energr consumption. For r llgtof simple wryr you cen reduce demend end cut your cncrgr cortq sec our Webgltc et http://rvww.swrcb.cr.gov {l nutcurawr Ms. Fields -2- Mail List (For Response to Ms. Fields' August 22,2002 Letter to Mr. Singer Regarding Molycorp kad,{ron Precipitate) ALLENRANDLE MOLYCORPINC 57750 BAILY ROAI) MOI]NTAIN PASS CA 92366 TIM SALT US DEPT OFINTERIOR BUREAU OF LAITDMGMT 622IBOX SPRINGS BLVI) RTVERSTDE CL925W-WI4 LOUISE LAMPARA US FISH & WILDLIIIE SERYICE 2493 PORTOLA RD STE B YENTTJRA CA 93003 DONNA DAYIS CALIF DEPT OF FISH & GAME PO BOX 40t602 HESPERIA CA 92340 EDWARD BAILY CA DEPT OF HEALTH SERYICES RADIOLOGICAL IIEALTH BRANCH POBOX 942732 SACRAMENTO CA 95814 PETERBRIERTY FIRE DEPT HAZMAT CO OF SAN BERNARDINO 385 N ARROWHEAD AYE 2ND FLOOR SAI\I BERNARDINO CA 924I*0160 MOLLYBRADY BT'REAU OF LAND MGMT NEEDLES RESOURCE OFFICE 101 WEST SPIKES ROAI) NEEDLES CA 92363 RANDY SCOTT CO OF SAII BERNARDINO OFFICE OF PLANNING 385 N ARROWHEAD AYE 2M FLOOR SAN BERNARDINO CA 924T5-0160 LARRYWHALON, CHIEF of RESOURCES MOJAVE NAT'L PRESERVE 222 E MAIN ST SUITE 202 BARSTOW CA 9231I Page 7 of2 BRENDA POIILMAN DEPT OF'ENV PROTECTION 555 E WASHINGTON AYE SUITE 43OO LAS YEGAS NV 89107 MARY MARTIN US DEPT OF INTERIOR BURDAU OF LAND MGMT 222 E MAIN ST STE 202 BARSTOW CA923tl COLINMOY ECOLOGY AND ENYIRONMENT 350 SAI\ISOME ST SUITE 3OO SAI\ FRANCISCO CA 94104 TOM GRIEB TETRA TECH 3746 MT DIABLO BLVD STE 3OO LAFAYETTE CA 94549 DANIEL GREGORY ENSR 1601 PROSPECT PARKWAY FORT COLLINS CO 80525 BARBARA HAMRICK CALIFORNIA DIIS-RIIB 18OO E LAMBERT RD, SUITE 125 BREA, CA9282t BOBDOYER THEDYNAMACBLDG 2275 RESEARCH BLYI) ROCKVILLE MD 20850 STEYE FISCHENICH ASSOC ENGINEERING GEOLOGIST RWQCB 15428 CIyIC DR SUITE 1OO YICTORVILLECA92392 KARLPALMER DTSC PO BOX 806 SACRAMENTO CA 958I2-OEO6 CURT SHIFRE& ASSOC WRCE RWQCB 15428 CIVIC DR SUITE 1OO YICTORVILLECA92392 JERRY F'REEMAN HOTELNIPTON IICR# I BOX 357 NITPON CA92364 RUTHLOPEZ PEOPLE AGAINST RADIOACTIYE DUMPING(PARD) 420 E STREET NEEDLES CA 92363 DENNIS BENSON MOJAYE DESERT RESOTJRCE SRVCS HCR# I BOX 354 NIPTON C492364 ROXANN LANG HCR l, BOX 357 NIPTON C492364 ANN BELLIS PO BOX 1064 CEDARGLENN CA92321 MARJORIEMIKELS 2OI NORTH FIRST AYENUE UPLAI\ID CA 91786 PAUL LOHAUS, DIRECTOR OTFICE OF TRIBAL A,I\ID STATE PROGRAMS MAIL STOP O.3 ClO US NUCLEAR REGT'LATORY COMMISSION WASHINGTON, D.C. 20555-0001 ROBERT GREGER CA DEPT OF IIEALTH SERYICES RADIOLOGICAL HEALTH BRANCE POBOX 942732 SACRAMENTO C.A 95814 MaiI List (For Response to Ms. Fields'August 22,2002 Letter to Mr. Singer Regarding Molycorp Leadlkon Precipitate) BARRY E. COFER wsT-3 USEPA REGION 9 75 HAWTIIORNE ST sAN FRANCISCO, CA 94105 CHERYL NELSON wsT-l USEPAREGION9 75 HAWTHORNE ST SAI\I FRANCISCO, CA 94105 WATSON GIN DTSC POBOXE06 SACRAMENTO CA 95E12.0E06 WILLIAM SINCLAIR DEPT OF EI\[V QUALITY, DIV OF RADIATION CONTROL 168 NORTH 1950 WEST SALT LAKE CITY, UT E411+4E50 LORENMORTEN DEPT OF EI\TV QUALITY,DryOF RADIATION CONTROL 168 NORTII 1950 WEST SALT LAKE CITY, UT 84114-4850 DENNISDOWNS DEPT OFEIYVQUALITY, DIVOFSOLD&HAZWASTE 288 NORTE 1460 WEST, 4u trLOOR SALT LAKE CIIY, UT 8411,1-4880 DON YERBICA DEPT OF EI\TV QUALITY, DTVOFSOLD &HAZWASTE 288 NORTH 1460 WEST,4lrr FLOOR SALT LAKE CITY, UT E4114-{E8O ALLEN BIAGGI, ADMINISTRATOR DTYISION OF ENVIRONMENTAL PROTECTION 333 W I\[YE LAITE, ROOM 13E CARSON CITY,NY89706 Mail List MC Precipitate 9t25t02 Page2 of? ,BJ! Silc_lai, - To E3ailey RHB 9-17-02 September L7,2002 Edgar D. Bailey, C.H.P., Chief Radiologic Health Branch Division of Food, Drugs, and Radiation Safety California Department of Health Services P.O. Box 942732 Sacramento, CA 94234-7 32O via first class & electronic mail Re: August 9,2002, Letter Regarding the Molycorp, Inc., Mountain Pass, California, Facility. Dear Mr. Bailey: I received your August 9,2002,letter in response to my June 3 and July 26, 2002, Request for Records and Request for Information Related to the Molycorp, Inc., Mountain Pass, California, Facility. In your August 9 letter you state: Currently, Molycorp is in the process of submitting their California Radioactive Materials license application. Ponds P-8, P-l1, and P-24 will be included in that application. 1. With respect the licensing of the ponds, please provide information in response to the following questions: A. Has Molycorp submitted its Radioactive Materials License application? If so, when? If so, what is the current status of the application as it relates to the ponds? B. Will the Radiologic Health Branch permit the removal and shipment of the material from Ponds P-8, P-l1, andP-24 prior to the receipt of a Radioactive Materials License by Molycorp for the ponds? C. What is the status of the reclamation of Ponds P-8, P-l1, and P-24 at this time? i qil s[qls[JeE HelkLF.lB- 9:119? Edgar D. Bailey September L7,2002 2. The August 9 also states: The material in the ponds is source material pursuant to the definition of source material in title 10 to the Code of Federal Regulations, Part 40 (10 CFR 40). 10 C.F.R. $ 40.4 ("Definitions") defines source material: Source Material means: (1) 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 (0.057o) or more of: (i) Uranium. (ii) thorium or (iii) any combination thereof. Source material does not include special nuclear material. Your statement in the August 9 did not explicitly state which part of the $ 40.4 definition of "source material" you were referring to. When you state that "the material in the ponds is source material pursuant to the definition of source material in [10 C.F.R. Part 40]," are you referring to the definition of source material in the first definition (i.e., Uranium or thorium, or any combination thereof, in any physical or chemical form), or the second definition (i.e., ores which contain by weight one-twentieth of one percent (O.05Vo) or more of: (i) Uranium, (ii) thorium or (iii) any combination thereof)? Please provide a timely response to this inquiry. If you have any questions regarding this request, please feel free to contact me. Sincerely, Sarah M. Fields P. O. Box 143 Moab, Utah84532 smfields@moci.net 435-259-4734 - To D Downs re Hearinq 9-1 Sierra Club Glen Canyon Group P.O. Box 622, Moab, Utah 84532 September 10,2002 Dennis R. Downs, Executive Secretary Utah Solid and Hazardous Waste Control Board Department of Environmental Quality P.O. Box l,+4880 Salt Lake Ciry, Utah 84114-4880 RE: August 29,2N2, Sierra Club Request for Hearing Dear Mr. Downs: Siena Club has been engaged in discussion with the staff of the Utah Division of Solid and Hazardous Waste (DSHW) regarding various determinations made by the DSHW with respect the Molycorp material. At this time Sierra Club requests that the Solid and Hazardous Waste Control Board table any discussion of Sierra Clubs concerns and request for a hearing until the October Board meeting. Sierra Club will not appear at the September 12,2002, Board meeting. Sincerely, Victoria Woodard Nuclear Waste Chair Sierra Club Glen Canyon Group P.O.Box622 Moab, Utah84532 Home phone/fax: 4351826-477 I E-mail: toriwoodard@ scintemet.net cc: (e-mail) Don Verbica, DSFIW William J. Sinclair, DRC Ron Hochstein, IUSA Michelle R. Rehmann, ruSA StTRRACrus Glen Canyon GrouP FOUNDED 1892 P.O. Box 622,Moab UT 84532 Explorq enloY and Ptffict tht Planet. August 29,2002 Dennis R. Downs, Executive Secretary Utah Solid and Hazardous Waste Control Board Department of Euvironmental Quality P.O. Box 144880 Sah Lake lrU Utan 84114-4E80 RE: Request for Hearing: Molycorp, Inc., Mountain Pass Facility Material Dear Mr. Downs: on lvlarch l4,2ooz,the sieffa club wrote to the Division of Solid and Hazardous waste @sHw) regardrng a Resot[ce conservation and Recovery Act (',RCRA") determination by the State ofUtah with respect to the drummed and ponded materials G'onds P-8, P-l1' and P-24) that International Uranium (uSA) Corporation (.IUSA"1 Pryposes to shiq -fr9m the Molycorp' Inc., Mormrain por, Cufifoinia, facilirty to IUSA's WUiti irt"* Uranium Mill near Blanding, Utah. You responded to that letter on ldarch 21,2002' On June z4,Zxf)Z,the Sierra Club requested further inforrnation because we were not satisfied withttre March 21 response. You reJponded to that letter on July 31, 2002' The Sierra Club still does not believe that tho question of whether the Molycorp material is a solid waste, and thereby a hazardous waste, frs U"." satisfrctorily resolved. Therefore, the Sierra Club requests a hearing regarding: 1. Whether the Molycorp material (drummed and ponded) is solid waste' 2. Whether the Molycorp materia Oonded) contains a RCRA listed waste (i.e., barium) in anrounts requiring regulatory oversight. The Sierra Club requests a hearing as soon as possible on these two iszues. We reserve the right to bring forth other iszues relevani to the DSIIW's regulatory responsibilrty for the Molycorp material in the heanng. I would like to bring to your attention the following staiternent in your March 2l letter: *If the DSHW receives information that listed wastes were disposed at Molycorp, . then it will reevaluate its position.' The Sierra Club has new information, in the form of official Nuclear Regulatory Commission ('NRC,) records, doctrmenting that Molycorp received radioactive waste material from at least ? two off-sile sources and processed and disposed of, or directly disposed o{, those materials at Mountain Pass. Previously, Sierra Club had been led to believe by Environmental Protection Agercy records and records submiued to the NRC by IUSA that the only activity at the Molycorp site was the processing of bastnasite ore from Molycorp's mines. Further, Siena Ctub can find no reason why the DSHW does not consider the barium contained in ponds P-8, P-l1, and P-24,to be a RCRA listed hazardous waste. Sierra Club is at a loss to understaod why the DSHW did not consider the barium content ofthe Molycorp material when making its RCRA detenninations, Therefore, in accordance with its March 2l commitnrent and based on new information that the Sierra Club wishes to bring forth in a hearing, the DSHW should reconsider its RCRA The Sierra Club requests a hearing that will air all issues and information regarding the RCRA ileterminations related to the Molycorp material. The Sierra Club will fully cooperate so that a prompt hearing cau take place. Additionally, Sierra Club requests that the DSHW not permit the ponded Molycorp rnaterial to be transport€d within the State of Utah for receipt and storage at the White Mesa Uranium Mill until these issues are thorougbly aired and resolved. If you have any questions regarding this request, please feel free to contact me. Sincerely, 1/-?*1^,M.a-,-(- Victoria Woodard Nuclear Waste Chah Sierra Club Glen Canyon Group P.O. Box 622 Moab, utah 84532 Hore phone/fa"r 435 1826-4778 E-mail toriwoodard@scintemet.net cc: DonVerbica, DSHW ,/wittiam J. Sinclair, DRC ln the Matter of TNTERNATTONAL URANTUM (USA) CORPORATION LBP-02-19 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: Alan S. Rosenthal, Presiding Officer Dr. Richard F. Cole, SpecialAssistant Docket No. 40-8681-MLA-1 1 ASLBP No. 02-795-02-MLA August 28,2002 hite Mesa Uranium Mi INITIAL DECISION (Upholding lssuance of License Amendment) This proceeding involves challenges to the issuance of an amendment to an outstanding source materials license. As such, it is subject to the informal hearing procedures set forth in Subpart L of the Commission's Rules of Practice, 10 C.F.R. S 2.1201 et seq. ln accordance with the provisions of that Subpart, written presentations were submitted by each of the participants in the proceeding. On the basis of a full consideration of the content of those submissions, and for the reasons set forth in this decision, in consultation with Judge Cole ! have determined that the challenges to the license amendment in question have not been shown to be meritorious.r lWhile the ultimate decisional responsibility in Subpart L proceedings may lie with the Presiding Officer, the Rules of Practice also contemplate that a member of the Licensing Board Panel with technical expertise will participate actively in the adjudication of any proceeding to which assigned as a SpecialAssistant. See 10 C.F.R. $2.722. ln this instance, Judge Cole played an important role in the assessment of the record pertaining to the several presented environmental issues. Each of the determinations reached in this decision on those issues has his endorsement. I conclude therefore that there is no reason in either law or fact why the issuance of the license amendment should now be ordered withdrawn. I. BACKGROUND The lnternational Uranium (USA) Corporation (Licensee) is the owner of the White Mesa Mill (Mill), a uranium recovery facility located near Blanding, Utah. For over 20 years, it has operated the Mill under the aegis of a source material license (SUA-1358) that was issued in 1980 and then renewed in 1985 and again in 1997. Because the basic license covers only the receipt and processing of natural ores, whenever the Licensee has desired authority to receive and process alternate feed materials it has been required to apply for a license amendment. ln recent years, a substantial number of license amendment applications have been filed in connection with the receipt and processing at the Mill of alternate feed materials having their origin in locations across the country from New Jersey to California. Several of those applications have drawn requests for a hearing in response to Federal Reqister notices providing an opportunity to seek such relief. With the exception of the hearing requests hereinvolved, all were denied on the principal ground that the requestor lacked standing to challenge the proposed activity.t The hearing requests at bar are addressed to the proposed shipment to the Mill of alternate feed material originating at the Molycorp site in Mountain Pass, California. The proposalfirst came to public attention in a Federal Reqister hearing opportunity notice published on January 9, 2001. 66 Fed. Reg. 1702. As described therein, the Molycorp material is the result of the extraction of lanthanides and other rare earth metals from bastnasite ores and, at the time of the publication of the notice, was stored in ponds as lead sludge, with an estimated uranium content of approximately 0.15"h or better. According to the license amendment application, the Licensee proposed to process the material for its uranium content by the 'See e.0.. LBP-01-8,53 NRC 204 (2001), affirmed. CLI-01-18,54 NRC 27 (2001); LBP-99-24, 49 NRC 495 (1999); LBP-99-20,49 NRC 429 (1999); LBP-99-8,49 NRC 131 (1999); LBP-99-5, 49 NRC 107 (1e99). -3- utilization of an acid leach that would serve to dissolve the uranium. The byproduct material would then be stored in the Mill's tailings cells. The January 2001 Federal Reqister notice produced a hearing request on the part of the Glen Canyon Group of the Utah Sierra Club (Group). That request received, however, the same fate that had befallen previous such requests in connection with this license. On a determination that the Group had not asserted an injury-in-fact beyond that associated with the previously authorized Mill activities, the request was denied for lack of standing. LBP-01-15, 53 NRC 344 (2001), affirmed, CLI-01 -21, 54 NRC 247 (2001). Although customarily a second opportunity to seek a hearing is not afforded by it relative to a particular license amendment request, in this instance the NRC Staff provided such an opportunity. Upon the completion of its appraisal of the environmental impacts associated with the proposed activity, the Staff recorded in a Federal Reoister notice published on December 11,2001, its determination on that score in the form of a Finding of No Significant lmpact (FONSI).'? The notice went on to extend a new "opportunity for a hearing on the license amendment." As it happened, on the same date that the notice was published, the Staff issued the license amendment. ln response to this second opportunity to seek a hearing, three separate hearing requests were filed. ln LBP-02-06, 55 NRC 147 (2002), those of William E. Love and the Utah Sierra Club (Sierra) (collectively Petitioners) were granted and the third rejected. The grant of the two requests rested on a determination that, unlike the hearing request denied almost ayeat earlier, they adequately alleged the injury-in-fact requisite to a finding of standing. More specifically, both requests focused on the alleged fact that, because of its significant lead content, the Molycorp material posed an environmentalthreat above and beyond that associated with the receipt, processing, and storage of the materials covered by the previous '66 Fed. Reg. 64,064. The significance of a FONSI is that it relieves the Staff of the obligation to prepare an environmental impact statement. See 10 C.F.R. S 51.32(aX2). -4- license amendments and thus posed a threat of incremental harm. On the Licensee's appeal, the Commission affirmed this outcome in CLI-02-10, 55 NRC 251 (2002).3 Pursuant to a schedule established in the wake of the grant of their hearing requests, written presentations were filed by the Petitioners, as well as by the Ute Mountain Ute Tribe, a Federally-recognized lndian Tribe that was given non-party participational status pursuant to 10 C.F.R. S 2.1211(b). See March 18,2002 memorandum (unpublished). For its part, the Tribe's March 28,2002 submission raised principally a claim that the license amendment had been issued in violation of two Executive Orders and, therefore, should be immediately ordered withdrawn. I elected to single out this narrow, purely legal and possible dispositive, issue for expedited consideration and disposition prior to addressing the other issues presented by the various presentations. After receipt of the responses of the Licensee and NRC Staff,a the Tribe's claim was rejected in LBP-02-11, 55 NRC 301 (2002) on the ground that neither of the cited Executive Orders had the effect that the Tribe attributed to it. The responsive submissions of the Licensee and Staff are now in hand, as are the replies thereto that were authorized in an May 21 ,2002 order (unpublished). Examination of the totality of the filings by the respective participants has disclosed that the numerous issues presented by the Petitioners and the Tribe have been thoroughly and satisfactorily ventilated. As a consequence, I have concluded (and Judge Cole agrees) that there is no need to call for supplemental oral presentations as authorized (but not required) by 10 C.F.R. S 2.1235. Rather, we deem the existing record to be adequate to allow an informed decision on the matters in controversy. Accordingly, in the next portion of this decision, those matters will be explored. 3 ln CLI-02-10, the Commission also upheld the denial in LBP-02-09, 55 NRC 227, of the endeavor of Petitioners to obtain a stay pendente lite of the effectiveness of the issued license amendment. 4The Staff initially exercised its option under 10 C.F.R. S 2.1213 to remain on the sideline. By an April 1 ,2002 order (unpublished), however, and as authorized by the same section of the Rules of Practice, I directed that it become a full party to the proceeding. -5- II. ANALYSIS The starting point of any appraisal of the record developed in this proceeding through the various written submissions and supporting documentation must be a recognition that the Petitioners (along with the Tribe) were not confronted with a tabula rasa in mounting their challenge to the Molycorp license amendment. To the contrary, as seen, the source material license in question was issued over two decades ago and, under one or another of several amendments, in recent years the Mill has received and processed alternate feed material of differing compositions originating in various locations. lt is true that, because the hearing requestors were found to lack standing, the "merits" of the various challenges to those amendments were not placed under adjudicatory scrutiny. lt is also true that the grant of a hearing to these Petitioners was founded upon assertions that, because of its lead content, the Molycorp material differs significantly in composition from that of the alternate feed materials previously received and processed. Neither of those considerations can detract, however, from the fact that it is at least relevant, albeit not dispositive, whether (and if so to what extent) the prior Mill activities involving the receipt and processing of alternate feed materials in actuality have given rise to environmental harm such as Petitioners fear will be occasioned if the license amendment in issue is allowed to stand. ln the totality of circumstances, three broad lines of inquiry appear to be warranted in the course of the appraisal of the adduced record: 1. Have the Petitioners (including the Tribe) established (without compelling refutation by the Licensee and NRC Staff) the existence of a decisive legal impediment to the issuance of the license amendment in issue; i.e., that that issuance was in direct violation of the provisions of an applicable statute or NRC regulation? 2. Have the Petitioners established (without compelling refutation by the Licensee and Staff) that either (a) prior activities under this license have resulted in -6- significant environmental harm that is essentially the same as that which might be expected also to occur in the receipt, processing, and residue storage of the Molycorp material; or (b) the monitoring of the effects of the prior activities was so deficient as to make it impossible to determine whether such harm has been experienced? 3. Have the Petitioners established (without compelling refutation by the Licensee and Staff) that, irrespective of what might have occurred with regard to the handling and disposition of prior alternate feed materials received at the Mill, because of the particular composition of the Molycorp material (specifically its lead content), there is cause to believe that its receipt, processing, and residue storage present a significant threat of environmental harm? lf any one or more of these questions should require an affirmative answer, it would follow that the license amendment would have either to be ordered withdrawn or to be subjected to the imposition of conditions designed to combat the disclosed environmentalthreat.t A. Leqal issues Although neither Sierra nor Mr. Love is represented by counsel in this proceeding, both insist that there are several reasons why the issuance of the Molycorp license amendment must be deemed to have been in violation of either a statute or a Commission regulation. lndeed, were the Petitioners correct in their assertions in this regard, it would necessarily follow that not only was the issuance of this amendment unlawful, but also, none of the prior amendments involving the receipt and processing at the Mill of alternate feed material could withstand legal muster. 'ln its May 20 written presentation, the Staff sets forth the limitations it believes to exist with respect to the permissible inquiry in this proceeding. Although not in entire agreement with the claimed limitations (which do not appear to enjoy in full the support of the precedent cited for them), I do not pause to discuss them here. ln all events, I am satisfied that the inquiry outlined in the text above is well within the bounds of the authority and responsibility conferred upon Presiding Officers by the Rules of Practice and the Commission's jurisprudence. -7- A review of the various challenges on this score has led to the conclusion that five of them merit discussion. They will be considered seriatim. 1. Mr. Love asserts that, because the Licensee is wholly owned by a holding company incorporated in the State of Delaware, which holding company is in turn wholly owned by a foreign (i.e., Canadian) corporation, the issuance of its basic license (and therefore of the amendments thereto) was in direct violation of 10 C.F.R. S 40.38.'z That regulation provides in relevant part that a source material license "may not be issued to the Corporation" if the Commission determines that: (a) The Corporation is owned, controlled or dominated by . . . a foreign corporation. Undergirding Mr. Love's claim is the premise that the Licensee comes within the ambit of the term "Corporation" as that term is employed in section 40.38. That premise is, however, wide of the mark. For the purposes of Part 40 of the Commission's regulations concerned with the domestic licensing of source material, the definitional section of the Part makes clear that "Corporation" embraces exclusively the United States Enrichment Corporation or a successor thereto. See 10 C.F.R. S 40.4. ln short, section 40.38 has no applicability whatever to corporations such as this Licensee. Nor does there appear to be any other regulatory provision that broadly confines the issuance of source material licenses to entities that are totally free of foreign ownership or control. 2. Sierra contends that the Atomic Energy Act of 1954, Pub. L. No. 83-703, 68 Stat. 919 (1954) (AEA), as amended by the Uranium Mill Tailings Radiation Control Act of 1978, Pub. L. No. 95-604, 92 Stat. 3021 (1978) (UMTRCA), does not authorize the NRC to license uranium 2Petitioner William Love's 10 C.F.R. S 2.1233 Written Presentation for Suspension and or Revocation of Amendment 20 to License SUA-1358 and License SUA-1358 (Apr. 1,2002) al24 [hereinafter Love Petition]. mills to process and dispose of alternate feed materials such as the Molycorp material.3 Specifically, according to Sierra, the Act permits the processing and disposition at such mills of natural ores alone.a The AEA places the responsibility for regulation of byproduct material in the hands of this Commission.s As amended by the UMTRCA, that Act defines byproduct material to include "(2) the tailings or waste produced by the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content."6 ln 1995, due to concerns about potential confusion regarding the regulation of byproduct tailings piles created by the processing of alternate feed material in NRC-licensed uranium mills, the Commission promulgated a guidance document to clarify its jurisdiction and to guide potential licensees respecting this matter.T ln it, the Commission defined "ore" as "matter from which source material is extracted in a licensed uranium or thorium mill."8 This new guidance document was intended to put to rest any uncertainty concerning Commission jurisdiction over the byproduct tailings piles produced from the processing of the alternate feed material.e ln attacking this guidance, Sierra maintains that the legislative history of the UMTRCA demonstrates that Congress intended the term "ore," as employed in that Act, to include only 3Sierra Club's Reply to lnternational Uranium (USA) Corporation's May 20,2002, Response to Written Presentation of Glen Canyon Group of the Sierra Club (Jun. 14,2002) at 8-32 [hereinafter Sierra Reply]. a.!g!. at 6. 542 U.S.C. S 2111 (2000). 6.!4 S 2014(e) (2000). TThose concerns were first ventilated in 1992. See Position and Guidance on the Use of Uranium Mill Feed Materials Other Than Natural Ores, 57 Fed. Reg. 20,525, 20,531 (May 13, 1992) [hereinafter Draft Guidance]. 8Final Position and Guidance on the Use of Uranium Mill Feed Materials Other than Natural Ores, 60 Fed. Reg. 49,296 (Sept. 22,1995). eDraft Guidance at 20,531. -9- natural ores.r0 Sierra also claims that, historically, the Commission and its predecessor (the Atomic Energy Commission) have adopted similar positions in the regulation of the uranium milling process." Moreover, Sierra asserts, neither the Commission nor the Environmental Protection Agency (EPA) considered the processing of alternate feed materials for their source material content when promulgating rules to regulate milltailings piles pursuant to the UMTRCA.'2 A review of the legislative history of both the AEA and the UMTRCA reveals little about Congressional intent concerning the term "ore" as used in the context of uranium milling. That history does, however, disclose a clear purpose to leave the NRC as'the lead agency in regulation, oversight and management of uranium mill tailings-related activities."r3 ln these circumstances, a court clearly would give considerable deference to the Commission's interpretation of the Act.t4 Given that its reading of the term "ore" can hardly be dismissed as unreasonable, the same result should obtain here.15 There is an equal lack of merit with regard to Sierra's other attacks upon the guidance. It is entirely irrelevant whether or not the Commission or the EPA considered the processing of alternate feed material when promulgating regulations for mill tailings piles. At the time that rosierra Reply at 13, 29-31. "ld. at 10-13. r'?lg!. at 20. '3 H.R. Rep. No. 95-1480-Part I at 15 (1978), reprinted in 1978 U.S.C.C.A.N. 7433, 7438. taSee Chevron U.S.A. Inc.. v. Natural Resources Defense Council,467 U.S. 837,842-43 (198a); SEC v. Chenerv Corp., 318 U.S. 190 (1943). rsWhen reviewing a prior Commission interpretation of the AEA's definition of byproduct material, the Court of Appeals for the District of Columbia Circuit found that the term "ore" could have more than one meaning and that there was clear implication in the UMTRCA that residual radioactive material bearing source material could be treated as "ore." See Kerr-McGee Chemical Corp. v. NRC, 903 F.2d 1 (D.C. Cir. 1990). a _ 10 _ those regulations were promulgated, the processing of alternate feed materials was not an issue.16 When it became an issue, the guidance in question was forthcoming.rT 3. Mr. Love contends that the EPA has concurrent jurisdiction over the "non- radionuclide lead component'of the Molycorp material and, therefore, the receipt and processing of the material was subject to that agency's regulations promulgated under the Resource Conservation and Recovery Act of 1976, Pub. L. No. 94-580, 90 Stat. 2795 (1976) (RCRA).'8 ln support of that assertion, he points to what he represents to be the provisions of the Low-Level Radioactive Waste Policy Amendments Act of 1985, Pub. L. No. 99-240, 99 Stat. 1842 (1986) (LLRWAA), which provide a means for states to establish general disposal facilities for low-level radioactive waste.re ln actuality, the document that he cites is not the statute to which he alludes but, rather, appears to be a joint policy guidance issued by the NRC and EPA.20 Moreover, apart from the fact that it, in terms, states that it is without binding effect, it has no application here. lnstead, it was created to provide guidance to "generators of commercial flow-level waste]" and has no ascertainable application to the uranium milling process.'' Therefore, this document provides no support for the assertions put forth by Mr. Love with regard to EPA jurisdiction.22 t6Draft Guidance at 20,531. "!bic!. On August 19,2002, Sierra requested that an August 9,2002letter sent by Edgar D. Bailey, an official of the California Department of Health Services, to Sarah M. Fields be made a part of the record of the proceeding. Among other things, the letter is said by Sierra to bolster its claim that the Molycorp material is not "ore" for present purposes. ln fact, however, the letter has no such effect. Although (at p. 2) it characterizes the material as "source material pursuant to the definition of [such] material" contained in the Commission's regulations, that characterization scarcely goes to the question of the material's status as "ore." r8love Petition at 38. telg!= at 37. 'See id., Attach. O. 2tlbid. 22On Augusl5,2OO2, the NRC Staff supplied a copy of a July 9,z}Ozletter sent to Mr. Love by Sonya S. Pennock of EPA's Office of Public Affairs and lnvolvement. Responding to his request - 11 - 4. Sierra points to the provisions of 10 C.F.R. S 40.51 (bxs) to the effect that source material may not be transferred to a facility other than one "authorized to receive such source . . . material under terms of a specific license . . . issued by the Commission or an Agreement State." lnsisting that the Mill is not such a facility, Sierra maintains that it is not authorized to receive the Molycorp material hereinvolved.23 That argument might have had some substance had not the Licensee sought the amendment in issue. That is because the basic license issued in 1980 authorized the Mill's receipt and processing of natural ores alone. The specific purpose of this license amendment application, however, was to obtain the necessary authority to be a possessor of the thorium material. A grant of the application, and the issuance of the sought amendment, had the necessary effect of qualifying the Mill as an authorized recipient within the meaning of section 40.51. Therefore, absent a showing that, for some other reason, the issuance of the amendment violated a statutory or regulatory provision, section 40.51 is of no assistance to Petitioners.2a that EPA require the NRC and the Licensee to prepare a supplemental environmental impact statement prior to the shipment of the Molycorp material to the Mill, the letter observed that such a requirement could not be imposed because responsibility for regulating the receipt of the materialwas vested in the NRC. The letter also pointed out that EPA had authorized California and Utah to implement state RCRA programs in lieu of the federal RCRA program, making them primarily responsible for oversight within their state, and it is EPA's understanding that both states have concluded that the Molycorp material is not a solid or hazardous waste under its program. 23Petitioner Sierra Club's 10 C.F.R. S 2.1233 Written Presentation Requesting Suspension, Modification, or Revocation of Amendment 20 to License SUA-1358 (Apr. 1, 2002) at 6 [hereinafter Sierra Written Presentation]. zaSierra seems to deem it of significance that, as the August 9,2OO2letter from the California Department of Health Services (see fn. 22, suora) confirms, the Molycorp material has not as yet been licensed in that State. That consideration is, however, entirely irrelevant here. Once again, it is enough for section 40.51(bxs) purposes that the Mill has been licensed by this Commission to receive the material. ln that connection, Sierra has pointed to no statutory or regulatory provision requiring the Commission to withhold the grant of such authority unless the material has acquired a license in the state of origin. -12- 5. Both Petitioners insist that 10 C.F.R. S 51 .20 and 40 C.F.R. $ 1502.9(c)(ii) require a supplemental environmental impact statement (ElS) if there "are significant new circumstances or information relevant to environmental concerns bearing on the proposed action."25 According to them, the license amendment in issue will produce significant new circumstances, and the potential environmental impact of these new circumstances were not addressed in either the original EIS prepared for the White Mesa facility in 1979 or any subsequent environmental reviews. Further, Sierra asserts that the processing of alternate feed material as ore requires an EIS to address its cumulative environmental impacts. According to Sierra, the original materials license issued to the White Mesa Mill in 1979 was to process natural uranium ore from the Colorado plateau region. Since that time, Sierra continues, the Licensee has received roughly 18 license amendments allowing the Licensee to process alternate feed material that would otherwise require disposal as waste.26 These 18 prior amendments, however, did not require an environmental review, because they were exempted pursuant to 10 C.F.R. S 51 .22(c)(1 1). The cumulative impacts of each of these amendments, Sierra contends, therefore have not been considered. Thus, Sierra reasons that an EIS is now necessary to address the cumulative impacts upon the environment of processing alternate feed material at the Mill.2? Finally, both Sierra and Mr. Love argue that the NRC Staff has incorrectly relied upon policy guidance, namely the lnterim Position and Guidance on the Use of Uranium Mill Feed Material Other Than Natural Ores (lnterim Guidance), rather than Commission regulations or the AEA to guide their review of the Licensee's amendment application.28 ln their view, the Staff 25Second Supplement to Petitioner Sierra Club's 10 C.F.R. 521.1233 Written Presentation Requesting Suspension, Modification, or Revocation of Amendment 20 to License SUA-1358 (Apr. 1 4, 2002) at 12 [hereinafter Sierra Second Supplement]. See also Love Petition at 16-17 (asserting that the Staff must conduct an EIS). 26Sierra Second Supplement at 23. '!bic!. 281d. at 24-26; Love Petition at 16-17. _13- relied upon the lnterim Guidance to "avoid doing the in-depth environmental review" mandated by the National Environmental Policy Act (NEPA) and reliance upon this lnterim Guidance to avoid these requirements "is contrary to law."2e Thus, they insist that the Staff must prepare an EIS as required by NEPA to address the environmental impacts of the proposed license amendment. None of these claims is meritorious. To begin with, 10 C.F.R. S 51.21 makes it quite clear that an environmental assessment (such as that done here) will suffice unless the licensing action in question is one "identified in $ 51.20(b) as requiring an environmental impact statement."3o Turning to section 51.20(b), the license amendment at bar plainly does not come within the list of specified licensing actions that must receive an ElS. Thus, an EIS was mandated by that section if, but only if, the grant of this license amendment were determined by the Commission to be a "major" action on its part "significantly affecting the quality of the human environment."3r As reflected by its issuance last December of its FONSI, the Staff determined that the grant of the proposed license amendment would not significantly affect the quality of the human environment with the consequence that an EIS was unnecessary. Although the Petitioners challenge that conclusion, as will be later seen they have not provided credible evidence establishing that the proposed activity might have such an effect. Sierra's cause is not advanced by its insistence that, because the Licensee has been exempted from environmental reviews of its previous requests to process alternate feed material at White Mesa, the cumulative environmental impacts of this process have not been adequately considered. ln presenting this claim, Sierra provides no evidence of adverse impacts resulting from the processing of alternate feed material under the previous license 2elove Petition at 16. See Sierra Second Supplement at 26. 3010 c.F.R. S 51 .21. "ld. s 51.20(bx14). -14- amendments. Further, as previously noted, we do not write upon a clean slate: consistent with Commission regulations, absent a demonstration that prior Mill activities have resulted in a significant harm that might be expected to occur again with, or be exacerbated by, the processing of the Molycorp material, the NRC Staff review is limited to the impact of the processing of the Molycorp material. Although the Staff has not reviewed the potential impacts of each of the previous license amendments, its latest EA examined the potential impacts of the processing of the Molycorp material. ln doing so, the Staff assessed the impact of the Molycorp material upon the present environment, an environment that includes the cumulative impacts of all of the previous material that has been processed at the White Mesa facility. Although Sierra objects to this approach, it has provided nothing to refute the Staff's claim that its review was sufficient. Finally, there is a lack of substance to the Petitioners' claim that the Staff improperly substituted its lnterim Guidance for NEPA requirements in concluding that an EIS was not required here. Although the Staff used the lnterim Guidance in its evaluation of the Licensee's application, the decision to grant the requested license amendment was based upon an application of the Commission regulations in 10 C.F.R. Part 40 that govern materials licenses. ln addition, as previously discussed, the Staff's decision to perform an EA instead of an EIS was clearly founded upon 10 C.F.R. SS 51.20-.21. B. Environmental lssues 1. As earlier noted, Petitioners' hearing requests were granted on the strength of their allegation that, because of its significant lead content, the Molycorp material posed an environmentalthreat above and beyond that associated with the receipt, processing, and storage of the materials covered by the previous license amendment. Although, at that preliminary stage of the proceeding, the mere assertion of the claim was enough, once the claim passed to the next stage -- namely, the consideration of it on the merits -- the Petitioners assumed a much more substantial responsibility. Particularly given the twenty-year history of the processing at the Mill of, first, natural ores and, more recently, alternate feed materials, -15_ Petitioners had the initial burden of establishing that the claim had a solid footing. As outlined above, the discharge of that burden required a credible showing (a) that the prior activities under the license in question produced significant environmental harm that would likely be exacerbated by the activity here under scrutiny; (b) that the monitoring of the effects of those activities was so deficient as to preclude an informed determination as to the existence of such harm; and/or (c) that the particular composition of the Molycorp material presents a threat of harm not associated with the prior Mill activities. The voluminous written presentations and supplementalfilings submitted by Petitioners are rife with assertions, speculation, and conjecture on each of those issues. Totally absent, however, from the wealth of paper placed before Judge Cole and me for consideration is any concrete demonstration that might lend support to one facet or another of Petitioners'assault upon the license amendment. A few examples of the failure to provide some evidentiary foundation for broad speculative assertions should suffice. To begin with, Sierra maintains that the tailings cellthat will be used to store the Molycorp material residue is improperly constructed and, as a result, "may be leaking now, and will certainly leak in the future."32 Sierra points to nothing, however, to support its conjecture as to past leakage from that cell. Nor does it offer any evidentiary basis for its further speculation that, should it escape the tailings cell, the Molycorp residue will "eat its way through the underlying strata to the groundwater."33 No greater footing can be discerned for Sierra's hypothesis that the Molycorp residue stored in an above-ground tailings cellwill become "an immediate source of lead poisoning to both resident and migratory waterfowl."3a Sierra would have it that the birds will land upon the 32Third Supplement to Petitioner Sierra Club's 10 C.F.R. S 2.1233 Written Presentation Requesting Suspension, Modification or Revocation of Amendment 20 to SUA-1358 (Apr. 15, 2002) at 5 [hereinafter Sierra Third Supplement]. 33lbid. 3old. at 20. _16_ cell and either ingest or absorb lead through their feathers. Thereafter, according to this scenario, the infected birds might be eaten by one of the many species of endangered predatory birds that reside in the White Mesa area, which might in turn occasion the death of the predator as a consequence of lead poisoning.35 Were the Milljust now commencing operation, this supposition might possibly have been worthy of exploration. Given, however, that both natural ores and alternate feed materials of various composition have been stored in the Mill's tailings cells for a number of years without (insofar as this record reflects) the occurrence of any avian activity such as that which Sierra now visualizes, there is little reason why further consideration of it might be warranted. This is certainly so given that, as will later be seen, there is currently a considerable amount of lead in the Mill's tailings cells as a result of prior processing activities. Thus, in any event, the addition of the Molycorp residue would not pose a threat of harm to birds that is not already present. 10 C.F.R. S 40.9 requires that all information provided to the Commission by licensees such as that at bar be "complete and accurate in all material respects." Both Sierra and Mr. Love claim broadly that the Licensee's amendment application hereinvolved did not comply with this requirement.36 The principal difficulty with this assertion is that it fails to take into account that the application was addressed to the NRC Staff, and the section 40.9 requirement obviously was imposed for the Staff's benefit in its appraisal of the proposed amendment. !nasmuch as it has issued the requested license amendment, the Staff apparently did not perceive any lack of section 40.9 compliance that might call for a rejection of the application. That being so, there is scarcely room for reaching a different result here simply because these Petitioners would have preferred the application to have said more than it did on what they deem to be the environmental threat presented by the proposed activity. 35lg! at 13. 365upplement to Petitioner Sierra Club's S 2.1233 Written Presentation Requesting Suspension, Modification, or Revocation of Amendment 20 to License SUA-1358 (Apr. 10,2002) at 8-33; Love Petition at 28-35. -17 - For his part, Mr. Love advances several arguments based upon the asserted high lead content of the Molycorp material, but supports none of them with more than the same conjecture that undergirds the Sierra assertions. One of his complaints goes to the asserted failure of the Licensee's application to address the likelihood of an adverse chemical reaction between the stored Molycorp material and the components already contained in the tailings cells.37 An insufficient basis is provided, however, for the premise that such a likelihood exists. Mr. Love also makes much of the Licensee's asserted failure to have taken corrective measures in connection with a chloroform plume that was discovered in the groundwater below the Mill. Believing that the plume was associated with Mill activity, more specifically the result of a leak in one of the tailings cells, he maintains that the Licensee was obliged both to clean up the plume and to address the leak before being allowed to proceed with the processing of the Molycorp material.3s Not only, however, is there nothing in Mr. Love's presentation that might tie the discovered plume to Mill activity but, as will be seen later in this decision, there is a solid basis for concluding that the plume was entirely unrelated to any such activity.3e 2. The short of the matter is that neither Petitioner has come close to fulfilling its or his burden of demonstrating in the first instance that there is reason for concern that the receipt and processing of the Molycorp material poses a genuine incremental environmentalthreat. To be sure, petitioners in Subpart L adjudicatory proceedings do not have the benefit of formal discovery (see 10 C.F.R. S 2.1231 (d)). Nonetheless, these Petitioners had not only the advantage of the extensive hearing file maintained by the NRC Staff, but also presumably could 37Love Petition at 9-10. ".!4 at 35-37. 'See p.41, infra. ln common with Mr. Love, the Tribe is concerned with the chloroform plume. It thus, likewise, requests that measures be taken to ascertain the "travel of pollutants in the perched aquife/' prior to permitting activity under the granted license amendment. Ute Mountain Ute Tribe lnitial Presentation in lnformal Hearing and Request for Withdrawl of License Amendment #20 (Mar. 20,2002) at 2. As with Mr. Love, however, the Tribe fails to tie the discovered plume activity to Mill activity. _18_ have obtained access through other means to records pertaining to the prior operation of the Mill. This being so, it is not without significance that they seemingly have been unable to offer more than speculation and conjecture with regard to the effect upon the environment that the activity authorized by the license amendment in question might have. ln this connection, despite the heavy emphasis that both Petitioners place throughout their submissions on the asserted exceptional toxicity of the Molycorp material, the fact remains that, as noted above (tn.27), the States of both California and Utah have concluded that the material is not a solid or hazardous waste under their RCRA programs. ln light of these considerations, the adjudicatory inquiry might appropriately stop here. The Licensee's presentation (and to a lesser extent that of the NRC Staff) contain, however, considerable factual information bearing directly upon the ultimate issue of whether the receipt and processing of the Molycorp material poses an undue environmental threat. ln the interest of completeness, that information will now be summarized.ao Specifically, what will be covered includes (a) the lead content of both the Molycorp material and what is now to be found in the Mill's tailings cells; (b) the transport, receipt, and storage of the Molycorp material prior to processing; (c) the processing activity itself; (d) the storage of the residue in a tailings cell; (e) the relevant features of the geology and groundwater hydrology of the Mill site; (f) the likely behavior of the Molycorp tailings liquid in the event of cell liner leakage; (g) the Mill's ongoing detection monitoring program; (h) the present relevance of the detected chloroform that is of particular concern to the Petitioners; and, lastly, (i) the cooperative studies with the State of Utah. Although set forth in memorandum form, what follows on these several subjects is intended to constitute findings of fact going to the ultimate issue of whether the activities contemplated by the grant of the Molycorp license amendment pose a serious threat of incremental harm to the environment. {lt bears emphasis that, although provided with an opportunity to respond to each of the Licensee and NRC Staff submissions, the Petitioners failed to controvert the factual representations contained in those submissions. _ 19 _ a. The Lead Content and Chemical Form Of Lead The total amount of lead in the Molycorp material is considerable. As stored in the Mountain Pass Pond, the material has an estimated lead content of 132,000 parts per million (13.2 weight%). Assuming that the maximum projected amount of that stored material (17,750 tons) is processed at the Mill, 2343 tons of lead would be added to the tailings system.ar That system already contains approximately 1400 tons of lead based upon the average lead concentrations of materials already processed at the Mill.a2 According to affiant Jo Ann S. Tischler, and contrary to the Petitioners'claim, the Molycorp material has never contained lead oxide.a3 Rather, the lead present in the material initially took the form of lead sulfide and, if the material is exposed to atmospheric oxygen, the lead sulfide converts to lead sulfate. ln the tailings cell, following processing through the Mill for removal of the uranium content, the ovenryhelming bulk of the lead will remain water soluble but in undissolved form. Owing to the high dissolved solids content of the current cell liquid, solubility considerations limit the amount of lead that could be dissolved in solution to about 20 milligrams per liter (mg/L). The current lead content of tailings solution is approximately 17 mglL, so that almost none of the Molycorp lead added to cell #3 will go into solution.aa Any migration from the cellthrough the polyvinyl chloride (PVC) liner would be via tailings solution liquids. ln short, even were there to 'rResponse of lnternational Uranium (USA) Corporation to Written Presentations of Mr. William E. Love and the Glenn Canyon Group of the Sierra Club (Docket No. 40-8681-MLA-1 1) (May 20,2002) [hereinafter IUSA Response], Ex. 1, Aff. of Jo Ann S. Tischler at 4-5 [hereinafter Tischler Aff.l. a'?lg!. at 5. 431d. at 5-6. Ms. Tischler is a chemical engineer who has performed process engineering design, hazardous waste status evaluations, and waste management planning, under the regulatory frameworks of 28 states and six foreign countries. 44|USA Response, Ex. 5, Aff. of Roman Z. Pyrih at 2 [hereinafter Pyrih Aff.]. Dr. Pyrih holds a doctorate in geochemistry with in excess of 25 years of industry experience in managing mining and industrial waste, and in dealing with soils and groundwater contaminated by heavy metals and radionuclides. _20 _ be the leak in the cell liner postulated by the Petitioners, the presence of the Molycorp residue in the cell would have little effect upon the toxicity of the released liquid. This is because there does not appear to be an appreciable difference, in terms of possible environmental impact, between 17 mglL and 20 mg/L of lead.as b. Transoort. Receipt and Storaoe Prior to Processinq As previously noted, the Molycorp material consists essentially of 17,750 tons of lead sulfide sludge currently stored in ponds at Molycorp's Mountain Pass, California facility. ln addition, a relatively insignificant amount of similar material is contained in 35 drums.a6 (The material in the drums originated after the lead sulfide storage ponds were taken out of service but is from the same uranium-bearing lead sulfide stream that had previously been transferred to the ponds.) The average uranium content is approximately 0.15"/o or greater.aT The transportation of the material involves the use of a transportation contractor who will be responsible for utilizing appropriate transportation containers in accordance with the U.S. Department of Transportation and state regulatory requirements and for the safe and effective remediation of any potential spills that may occur as a result of an accident during transport. The employed transportation contractor will be equipped with fully trained emergency response personnel capable of handling a spill of radioactive or hazardous material within a short period asln promulgating the national primary drinking water regulations for lead, EPA has established an action level for water systems containing concentrations of lead greater than 0.015 mg/L. See 40 C.F.R. S 141.80 et seq. Water systems that exceed the established level are required to take additional steps to reduce the lead in their system. lbid. Because the solution contained in the tailings cells already contains 17 mglL (more than 1 100 times greater than the drinking water action level), increasing the amount in solution by 3 mg/L will have little effect on the solution's overall toxicity. 46NRC Staff's Response to Written Presentations Filed by lntervenors Sierra Club and William Love [hereinafter Staff Response], Aff. of William Von Till at 3 [hereinafter Von Till Aff.]. Mr. Von Till is the NRC project manager responsible for managing the safety and environmental reviews for the White Mesa Mill. His academic degrees are in geology. aTEnvironmental Assessment for lnternational Uranium (USA) Corporation's Uranium Mill Site White Mesa, San Juan County, Utah, in Consideration of an Amendment to Source Material License SUA-1358 for the Receipt and Processing of the Molycorp Alternate Feed (Nov. 30, 2001) at 2 [hereinafter EA]. -21 - of time and without leaving residual or hazardous material at a spill site.a8 The material will be shipped by truck in closed, sealed containers and, as shipped, will contain no free liquids that could leak or flow out of the transport containers.ae As to traffic volume, it is estimated that there will be an increase of 10 trucks (2.0%) per day for three months. The environmental impact of this small increase in traffic is deemed by the NRC Staff to be negligible.so Licensee affiants Chambers and Tischler looked at potential radiological and non- radiological impacts that might result from an accidental spill and each concluded that the worst case transportation spill (the overturning and loss of the contents of a full truckload, 23 tons, on the highway in or near Moab) would not be a significant issue.5r Their conclusion in this regard was based upon their knowledge and familiarity with the transportation contractor's response teams and the characteristics of the Molycorp material. That material is a moist solid with no free liquid. ln the event of a truck spill, there would be: no windborne dust; no emitted gases; and no free liquid flow from the spill site. The cleanup of 23 tons of soil-like solid material (a full truckload) could be accomplished within several hours.52 The potential spill of Molycorp material would not present any significantly different potential for closure of the highway than would be presented by a spill of any other licensed alternate feed materials. lndeed, the risk might be lower than that associated with a possible spill of many of the chemicals that are currently transported by others along the Highway 191 corridor.53 *See IUSA Response at 88-93. aeTischler Att. at2. 5oEA at 4. s'Tischler Aff. at 10; IUSA Response, Ex.2, Atf. of Douglas Chambers al6-7 [hereinafter Chambers Aff.l. Dr. Chambers holds a doctorate in physics and is the Director, Risk and Radioactive Studies, for a Canadian consulting firm. He has worked in the area of environmental radioactivity and risk assessment for more than 25 years. 52Tischler Aff at 10. 53lbid. -22- The prime responsibility for response and cleanup lies with the transportation contractor, not the City of Moab, as Petitioners appear to believe. Once again, the contractor will have fully trained emergency response personnel and equipment capable of fully remediating a spill of radioactive or hazardous material in a timely manner.'o Moreover, Moab is located in Grand County and the county's emergency response personnel are familiar with the characteristics of the Molycorp material and other alternate feed material, as well as with the emergency response plans of transportation contractors with whom they will collaborate in the event of an emergency.ss Doug Squire, the county's emergency manager, is also Chief Deputy of the Office of the Grand County Sheriff. The resources of that office are part of the emergency response capability that is available to provide assistance to the transportation contractor, if necessary, to protect citizens (including Petitioners)from any effects of an accidental spill of the Molycorp material within the City of Moab's or Grand County's boundaries.56 The Licensee and Molycorp's transportation contractor are currently planning a'lable top" transportation exercise with members of Grand County's Emergency Response Committee during the month of August 2002.57 The EA and Technical Evaluation Report also addressed the transportation aspects of the activity.5s !n the EA, the NRC Staff announced its determination that there were no 54|USA Response at 93. 55See IUSA Response, Ex. 6, Letter from Doug Squire, Grand County Emergency Manager to Ron Hochstein, President and Chief Executive Officer of IUSA (May 20, 2002). 56|USA Response at 93-94. sTlnternational Uranium (USA) Corporation's Status Report to the Presiding Officer Regarding Activities Under lts Molycorp License Amendment (Docket No. 40-8681-MLA-1 1) (Aug. 2, 2002). 58Technical Evaluation Report Request to Receive and Process Molycorp Site Material (Dec. 3, 2001) at 4-5 [hereinafter TER]; EA at 4-5. -23_ significant environmental impacts associated with the movement of the Molycorp material to the Mill.se At the Mill site, material received in the sealed drums will remain in those drums until processed. The pond materialwill be stored on a bermed concrete pad until processing so there is virtually no chance of any Molycorp material leaching through the concrete pad to the ground below. The Licensee will utilize water sprays, as required, to minimize dusting during dumping operations and storage piles will be inspected and, if necessary, kept moist by water sprays to eliminate windborne dust creation.@ c. Processino throuqh the Mill The materialwill be processed in existing Mill equipment utilizing an acid leach (sulfuric acid) system. Because the material is processed as an aqueous stream, there will be no opportunity for generation of airborne dust (including lead dust).61 lf sulfuric acid is added to a lead sulfide sludge in a non-oxidizing (reducing) environment, hydrogen sulfide gas can be generated. ln the acid-leach process, oxidants are added with the sulfuric acid, thus creating an oxidizing environment that improves the solubility and leaching efficiency of uranium and minimizes the possibility of hydrogen sulfide gas generation.62 lndependent laboratory tests confirmed that the Molycorp material does not generate hydrogen sulfide gas.u' Further, in an oxidizing environment, metal sulfides (such as the lead and iron sulfides present in the Molycorp material) are oxidized to metal sulfates. The conversion to the sulfate form that is currently occurring in the Mountain Pass ponds will seEA at 4. oEA at 5. 6tTischler Att. al2. 6'z.!g[ at 6-7. 631d. at 7. -24 - continue during storage at White Mesa, both prior to processing and through the Mill process.uo Lead sulfate is a less toxic and less environmentally hazardous lead compound than lead sulfide and lead oxides.6s ln passage through the Mill process, which involves oxidizing the uranium so as to put the uranium product back into solution, the lead sulfide sludge will be converted into lead and sulfate ions, which are water soluble. After extracting the uranium, the spent leachate with the water soluble iron, lead sulfate, and any residual lead sulfide will be discharged to tailings cell #3 as an acidic, spent-leachate solution. According to Tischler's uncontroverted testimony, there is no lead oxide in the Molycorp material and, thus, Mr. Love's assertion that the reaction of lead oxide with chlorine to form halides will pose a processinghazard is irrelevant. Additionally, as Tischler goes on to point out, no chlorine or fluorine is used in the Mill process, so there is no mechanism for contact with either chemical.66 The Mill is a zero discharge facility and must evaporate all of the liquids used during processing. ln addition to natural evaporation, spray systems are used at various times to enhance evaporation rates and for dust control.6T Rainfall in the area is approximately 12 inches per yeafs while evapotranspiration rates have been estimated to be over 60 inches per year.6e *!bic!. 65lbid. uu.!{ at 6. Nonetheless, sodium chlorate may be used as an oxidizing agent in the Mill process and might or might not be a source of chlorine. See Environmental Assessment for Renewal of Source Material License No. SUA-1358 (Feb. 1997) at 12 [hereinafter EA for Renewal]. Because there are no lead oxides in the Molycorp material, even were chlorine to be produced it would be of no practical significance. 6TGround Water lnformation Report White Mesa Uranium Mill Blanding, Utah (May 1999) at A-13 [hereinafter GW! Report]. 68Final Environmental Statement related to the operation of White Mesa Uranium Project, Energy Fuels Nuclear, lnc., NUREG-0556 (May 1979) at2-1. 6elUSA Response a|34. _25_ d. Storaoe in Tailinqs Cell #3 Waste from the processing of the Molycorp material will be placed in existing cell #3, a 70-acre lined tailings cell equipped with a leak detection system and groundwater monitoring.To ln the cell, the residual sulfide will be oxidized to sulfate in a short time. No additional reaction between the spent leachate and the material already in the cell is likely to occur. The acidic tailings already in cells contain elevated concentrations of iron, lead, and sulfate, and recent sampling of the tailings solution showed concentrations of up to 10,000 mg/L iron, up to 289,000 mg/L sulfate, and 17 mglL lead. The high level of iron and sulfate concentration along with other dissolved constituents limits the amount of additional materials that can be dissolved in solution. As mentioned previously, it is estimated that the amount of lead that can be in solution is limited to about 20 mglL or just slightly higher than the amount presently in solution (17 mg/L) regardless of the total inventory of lead in the tailings cell.Tt Cell #3 has a 6-inch compacted sandstone bedding layer, an overlying 30 mm layer of PVC, and a leak detection system (LDS) consisting of: (a) a 12-inch thick compacted sand layer on the upstream face of the downstream retention dike; and (b) a 3-inch diameter perforated pipe at the toe of the sand layer; connected to (c) a 12-inch diameter access riser pipe." The LDS serves the dual purpose of preventing hydrostatic head buildup on the upstream face of the embankment and detecting major leakage from the cells. There is also a process for removing fluids from the cell itself that consists of a drain system on top of the PVC liner that (a) assists in tailings consolidation by drawing tailings fluids down through the tailings; (b) creates a low permeability area of tight fine particles over the liner; and (c) minimizes the hydrostatic head directly on top of the liner. The system also removes free liquids from the top 70Von Till Aff. at 2. See also IUSA Response, Ex.4, Aff. of Michael J. Taylor, Taylor Aff.1, for a complete description of the Tailings Management System. registered professional engineer with academic degrees in civil engineering. TtPyrih Att. at2. 72EA for Renewal at 15. P.E. [hereinafter Mr. Taylor is a -26 _ of the cells and, along with the liquid from the drain system, pumps them to cell #1, the evaporation cell.73 The LDS and the cell drain system are checked daily for liquid level and observations are required to be recorded on a weekly basis (or more frequently if a sudden change occurs). The LDS and cell drain system monitoring and chemical testing requirements are detailed in Condition 11.3 of the basic license issued by the Commission. e. Geoloov and Groundwater Hvdrolooy of the Mill Site There are three separate and identifiable sections of interest in the geologic soil column underlying the Mill site: (1) an upper section of limited permeability containing perched water; (2) a middle section aquitard (extremely low permeability) that would block the downward passage of fluids; and (3) a lower section of high permeability that contains a major aquifer of quality water. The uppermost of the three sections is 125 to 150 feet thick and consists of sandstone with discontinuous shale layers. The section is made up of the Dakota and Burro Canyon Sandstone Formations, with the underlying Burro Canyon Formation being approximately 75 feet thick. The tailings cells are located in the Dakota Sandstone Formation.Ta The Dakota and Burro Canyon Formations are similar in composition and consist of very fine to coarse-grained sandstones with discontinuous random shales. At its interface with the aquitard below (a section with extremely low permeability), the Burro Canyon material becomes argillaceous (claylike) owing to the bentonitic mudstones and claystones of the next lower formation. The Burro Canyon Formation -- not generally considered an aquifer because of its very low productivity, low permeability and discontinuous nature - does contain a perched water zone that occurs at depths of 22 to 33 meters (73 to 109 feet) below the surface. The top of the perched water zone is approximately 70 feet below the bottom of tailings cell #3.7s The T3Taylor Aff. at 4,8. TaEA for Renewal at 7-8. 75|USA Response a|26. -27 - thickness of the water lens varies from 17 meters (55 feet) in the northern section to less than 1.5 meters (5 feet) in the southern area. The predominant direction of groundwater flow is to the south-southwest.76 The quality of the Burro Canyon perched water beneath and downgradient from the Mill site is poor and highly variable with total dissolved solids (TDS) ranging between 1000 and 5000 mg/L. Sulfate concentrations in three upgradient wells varied between 670 and 1740 mglL. Virtually all of the users of the Burro Canyon Formation water are upgradient of the Mill site and the uses are limited owing to the relatively poor quality of the water and the low productivity, with most wells producing less than 8 gallons per minute. Aside from the monitoring wells used by the Mill, there are no wells within the perched groundwater of the Burro Canyon Formation within 5 miles downgradient of the Site.77 Groundwater in the perched zone appears in outcroppings in the Canyons to the south southwest.Ts Beneath the Burro Canyon Formation are the Morrison and Summerville Formations, 1 100 to 1200 feet of unsaturated, low permeability layers with numerous clay zones including one 300 foot section consisting of 80 percent clay. The permeability characteristics of this section are responsible for the perched water layer in the Burro Canyon Formation. The bottom of that water layer is at the interface of the Burro Canyon Formation and the uppermost member of the Morrison Formation, the Brushy Basin Member. That member (200 to 450 feet thick) is the first section of the aquitard and consists of variegated bentonitic mudstone and claystone that prevents the downward percolation of groundwater. The entire 1 100 to 1200 foot thick section, particularly the Brushy Basin portion, constitute an effective barrier (aquiclude or 76EA for Renewal at 9. 77EA at 3. "!bjd.; EA for Renewal at 9. _28 _ aquitard) to the passage of fluid between the Dakota/ Burro Canyon Sandstones and any layers beneath the Morrison and Somerville Formations.Te _lmmediately beneath the Summerville Formation are the Entrada and Navajo Sandstones that form one of the most permeable aquifers in the region and are separated from the Burro Canyon Formation by at least 1100 feet of very low permeability formations. The Entrada/Navajo Aquifer is artesian and rises in the well pipes some 800 to 900 feet. The aquifer is capable of producing domestic quality water at rates of 1501o225 g.p.m.and serves as the source of water for the Mill. Two domestic water supply wells drawing from the Entrada/Navajo Aquifer are located 4.5 miles southeast of the Mill site on the Ute lndian Reservation.so Recharge of the Entrada/Navajo Aquifer occurs many miles from the Mill site and does not occur from infiltration of rainfall on the surface of the Mill site.8r f. Behavior of Molvcorp Tailinqs Liquid lf Cell Liner Leaks Under the acidic pH conditions (pH< 1.5-2.0) that exist in the tailings cells solutions, the constituents are geochemically mobile. Given, however, the geochemical conditions that exist at the Mill, Pyrih concludes that the constituents dissolved in the tailings solution are physically isolated and geochemically contained.82 According to Pyrih, the soil and bedrock underlaying the cell is calcareous in composition containing calcium carbonate minerals similar to Iimestone. Any seepage or leakage from the cell or cell liner would react with the carbonate minerals neutralizing the acidic pH of the tailings solution. Calcium would be released and would immediately react with the abundant sulfate in the tailings solution and form insoluble calcium sulfate (gypsum). The gypsum would tend to plug seepage pathways, thus making the soils and bedrock more 7el USA Response al 26-27 . 8oEA for Renewal at 9. stlUSA Response a|27. s2Pyrih Aff. at 3. -29 _ impermeable to seepage and in effect self-healing the cell area. Additionally, the iron present (estimated at 10,000 mg/L) in the tailings solution would also tend to plug solution pathways in the soil and bedrock. As the tailings solution reacts with the alkaline soil and the pH is raised above 3, the iron forms a very insoluble iron hydrous-oxide gel that would seal off seepage pathways.83 The presence of calcareous soils and bedrock beneath the cell is an additional safeguard in that geochemical reactions promote natural attenuation of the seepage constituents. Natural attenuation is the ability of earthen materials to interact with potential groundwater contaminants and to remove such constituents before the solutions enter groundwater.so According to Pyrih, natural attenuation of heavy metals (including lead) and radionuclides is well known to this Commission and is well documented by laboratory and field investigations at various uranium tailings sites.85 ln Pyrih's experience, the neutralization of the acidic tailings solutions, the formation of self-healing precipitates and the processes of natural attenuation occur within a space of a few inches in naturally calcareous formations.86 ln a report dated November 23,1998, the Knight Piesold consulting firm summarized its modeling studies of infiltration and groundwater flow between tailings cell #3 and the perched water zone. Based on its modeling of potentially occurring flow through the cell #3 PVC liner and other assumptions, its time estimate for commencement of downward flow toward the perched zone was 400 years, with another 900 years needed to travel 1 10 feet through the vadose zone to the perched water bearing zone, meaning that a total of 1300 years would be necessary for infiltration to reach the perched zone.87 Obviously using different assumptions 831d. at 2-3. 8a[! at 3-4. 8tld. at 4. 86![ at 3. 87GWl Report, Attach. 5, Knight Piesold Report and Correspondence (Nov. 23 1998) at 10. ln actuality the distance that should have been considered, the distance from the bottom of the -30- than Knight Piesold had employed, Energy Fuels Nuclear estimated it would take 50 to 150 years for moisture to travel from the bottom of a tailings cell to the perched water zone.88 After entering the perched zone in the Burro Canyon Formation, the travel time for seepage from a tailings cell to the downgradient edge of the mesa has been estimated by Energy Fuels Nuclear to be at 8,900 to 13,000 years.8e ln sum, the Entrada/Navajo regional aquifer is separated from the perched water by at least 1 100 feet of impermeable material that effectively blocks the passage of any fluids. Unless passage to the Entrada/Navajo Formation is assisted by man-made error such as an ill- engineered or open-drilled well shaft that might provide an open conduit through the aquiclude barrier, there is virtually no chance of contaminating this major aquifer with tailings cell constituents. q. Monitorinq and the Use of lndicators Groundwater has been monitored at the White Mesa Site for almost 25 years. Pre- operational groundwater sampling began in 1977 and continued until Mill startup in 1980. Since startup, the Mill has collected and reported quarterly water quality data to the Commission. The Mill's current detection monitoring system, which is called the Point of Compliance (POC) program, was initiated in 1997 and has been accepted by NRC as the basis for the Mill's ongoing detection monitoring program.m The POC program involves quarterly sampling of six selected wells located in the Burro Canyon perched water zone (screened in the perched groundwater zone) and hydraulically downgradient and adjacent to the tailings cells. The wells are sampled for four key indicator tailings cell, is 70 feet. Based on this updated distance, however, it would still take roughly 970 years to reach the perched water zone. See IUSA Response a|26. 88EA for Renewal at 16. '!bic!-. eolUSA Response at 29-30. -31 - chemicals: chloride; nickel; potassium; and natural uranium. These chemicals were specifically selected because of their relative abundance in the tailings cells and their relatively low concentration in the perched groundwater.el By showing a high mobility in groundwater, properly selected chemical parameters can serve as early warning indicators for the potential arrival of other slower moving potential groundwater contaminants such as lead.e2 Nickel, one of the selected indicator parameters, is not affected by the geochemical processes that attenuate the movement of most heavy metals in groundwater and is much more mobile than lead. As such, because of its relative abundance in the tailings liquid compared to its concentration in either the perched water of the Burro Canyon Formation or the groundwater in the Entrada/Navajo Formation (a ratio of approximately 800 to 1), nickel serves as an early indicator of the approach of seepage that might contain other heavy metals including lead.e3 Uranium, another of the key indicator parameters, is much less affected by the geochemical processes that attenuate the movement of natural radionuclides and is much more mobile than thorium. Uranium therefore serves as an early warning of the approach of seepage that may contain thorium.ea The concentrations of the indicator parameters vary considerably not only from one test well to another but within the same well. The poor quality of the perched water is generally attributable to its dissolving minerals from the Brushy Basin that serves as the confining formation for the perched water. The average TDS for the well sites in the perched zone varied erSee IUSA Response at 30 for a detailed listing of the criteria for selection of POC indicator parameters, which includes the characteristics of travel at or near the speed of groundwater and of not being significantly retarded by natural attenuation. 'lbic!. e3Pyrih Aff. at 4. See Summary of Groundwater Background Water Quality and Other Water Quality Studies for the White Mesa Mill (Sept. 15, 2000), Attach. 1 1, Points of Compliance White Mesa Uranium Mill (Sept. 1994). eaPyrih Aff. at 4-5. -32- from 1200 to 5000 mg/L and average sulfate concentrations range from 600 to 3000 mg/L.e5 The variability within individual wells and between the various wells in the perched groundwater is attributable to severalfactors including: - the slow groundwater velocities that allow water to equilibrate with local mineralogy; - the mineralogical variability of the host rock unit; - changes in the saturated thickness of the aquifer; and - the partial penetration of some wells into the Brushy Basin Member.e6 Sampling techniques and sample handling particularly for trace elements might also be considered to contribute to the variability of analyses results of groundwater sampling.eT Because of this variability of the groundwater chemistry, comparison of individual well groundwater chemistry data to a single background groundwater well was not deemed an appropriate method of monitoring potential cell leakage or groundwater impacts. Baselines for comparison with future samples were established on a well-by-well basis with a separate control chart for each well and for each of the indicator parameters. lf the established limits on the control charts are exceeded for a parameter at a POC well, a program of confirmatory sampling is required. This would involve monthly sampling for six months and a separate analysis of the variance to determine whether there is a significant difference between these samples and those collected prior to the confirmatory sampling program. lf the data are significantly different, a corrective action plan will be developed. This intra-well approach for assessing water quality *!bic!= e6Response of lnternational Uranium (USA) Corporation to Ute Mountain Ute Tribe's Written Presentation (Docket No. 40-8681-MLA-1 1) (Apr. 9,2002) [hereinafter IUSA Response to Ute Tribel, Ex. 3 Evaluation of Eight Other Parameters (Nov. 29, 1999) at 8. eTlUSA Response to Ute Tribe, Ex. 1. Aff. of Samuel J. Billin, P.E. at 3. Mr. Billin is a registered professional engineer with academic degrees in civil engineering. -33- trends was approved by the NRC for the POC program and has been utilized by the Licensee since 1997.e8 Table A that follows shows (1) the relative concentrations of chlorides, potassium, and nickel in the slimes drain water of Cell No. 2, which are abstracted from Table 1 'AVERAGE CONCENTRATIONS OF INDICATOR PARAMETERS" of the Titan Report; and (2) the average concentrations of indicator chemicals in five of the six selected POC wells. The well data summarizes the results of chemical analyses dating from October 1979 to November 1992, and so can be considered as baseline concentrations of indicator parameters for comparison with future measurements. The chemical concentration data in Table A, even though the values shown are averages of many samples, demonstrate the variability of the indicator parameters from well to well.ee The ratio of the concentration of indicator parameters in the slimes water to the concentration in the various test wells tends to verify their selection as good indicator parameters. Table B summarizes the data collected under the POC program during the period March 1997 through November 2001 . Table A e8Staff Response al25-26; Von TillAff. at 8-9; Response of International Uranium (USA) Corporation to Presiding Officer's Request for Additional lnformation (Docket No. 40-8681-MLA- 1 1) (Jul. 15,2002) at 2 [hereinafter IUSA Response to RAI]. 'See ilp.[3, p. 35 for a discussion of variability. A Location Chloride Potassium Nickel Cell #2 slimes drainwater -May 1991 3191 251 7.2 Cell #2 slimes drain water -Sept 1991 2573 286 12.0 well #5 55 9 0.007 well#11 35 8 0.008 well #12 66 14 0.016 well #14 20 13 0.016 well #15 40 11 0.016 Ratio of Average Slimes Concentration To Averaqe Well Concentration 66.7 to 1 24.4to 1 800 to 1 -35- Table B Averaqe Concentrations and Ranoe of lndicator Parameters Found in POC Wells (mg/L) (Fifteen (15) Quarterly samples March 1997 to November 2001). *Except for Potassium in well #14, where sampling began on September 30, 1999. As comparison of the average concentration values and range of values for chloride and potassium in each of the listed wells in Table B with the average concentration values for chloride and potassium in Table A (shown in parentheses in Table B) clearly indicates, the perched water has not been significantly impacted by liquids from the storage cells. For three of the five test wells (wells #5, #11, and #12), the pre-1993 average values of chloride and potassium from Table A exceeded the average values for those parameters measured during the period March 1997 to November 2001 . For well #14, the average of the earlier data for potassium exceeded the average concentration for the 1997-2001 POC data. The value for chloride in wells #14 and #15 were slightly higher in the POC program data, but the average value of the earlier data was well within the. range of the POC values. ln test well #15, the average value for potassium was essentially identical (1 1 .03 mg/L versus 1 1 mg/L). Ultimately, in7 of 10 comparisons made between the most recent data (1997-2001 POC data) and average chloride and potassium data collected earlier (1992 and earlier), the most recent data showed a lower value. Moreover, in those cases where the values contained in ith values for chloride and from Table A in Location Chloride Potassium Nickel Well #5 52.5 (55) ranqe = 45 to 70 mq/L 7.76 (e) ranqe = 6.7 to 11.9mq/L range = .049 to <.05m9/L Well #11 33.7 (35) ranqe = 28 to 44 mqlL 6.73 (8) ranqe = 5.6 to 11.9 mq/L <0.05 Well #12 53.3 (66) ranqe = 28 to 73 mqlL 11 .54 (14) ranqe = 5.8 to 13.1 mq/L <0.05 Well #14 21.6 (20) ranoe = 9 to 27 molL 11.38 (13) ranoe = 10.2 to 13 mo/L <0.05 Well #15 42 (40) ranoe =271o 54 mo/L 11.03 (11) ranoe - 9.3 to 23.0 mo/L <0.05 Well #17 32.81 ranqe =271o 45 121.57 ranqe = 9.6 to 23 molL <0.05 -36- more recent data exceeded those in the earlier data, the differences were not significant. These results and comparisons thus clearly indicate that the quality of the perched water has not been impacted by any discharges from the tailings cells.r00 Appendix B of the Titan Report, which is entitled'Water Quality Data" contains, among other things, chronological lists of test results for 35 chemical parameters dating from October 1979 to November 1992.101 An examination of these chronological chemical data does not show any significant trend or increase in any of the parameters that might migrate from the tailings cells. ln fact, the data generally show a trend of relatively uniform concentration or a modest reduction over time, thus confirming that the perched water some 70 feet below the tailings cells is not receiving any chemical-laden liquids from the Mill's tailings cells. 'mA like comparison could not be made for nickel because the POC values were presented as being less than a value of 0.05 mg/L. Nonetheless, because this value is less than the established limit on the nickel parameter control chart, there is no evidence that the perched water is being impacted by the chemical constituent nickel, indeed, or any other constituent of the tailings cells. 'o'IUSA Response to RAl, Attach. 3, Titan Report App. B. -37 - h. Chloroform Plume The NRC Staff notes that the only documented evidence of groundwater pollution above background levels provided by Petitioners concerns the chloroform that has been detected in monitoring wells at the site.ro2 The State of Utah is conducting an ongoing investigation to ascertain the source of the contamination. While not as yet confirmed, the most likely source of the detected chloroform appears to be an abandoned scale house leach field that received laboratory waste containing chloroform more than 20 years ago, prior to Mill operations.l03 That the leach field indeed is the origin of this chloroform is supported by severalfactors, including (1) the general distribution of the chloroform plume in the perched water; (2) the location of the scale house leach field upgradient of the detected chloroform; (3) the correlation between elevated nitrate concentrations (likely waste discharged to the leach field) and elevated chloroform concentrations in the monitoring wells with elevated chloroform levels; and (4) the absence of any known continuing chloroform source, indicating that when the abandoned scale house ceased operations the source of chloroform was eliminated.roa ln any event, the Petitioners pointed to nothing that indicated a likely association between the chloroform plume and Millactivity. 'o2Staff Response at 30. t03lUSA Response, Ex. 3, Aff. of Stewart J. Smith at 3. Mr. Smith is a hydrologist with an academic degree also in geoscience. t04!bid. -38- i. Cooperative Studies with the State of Utah The Licensee has voluntarily agreed with the request of the State of Utah's Department of Environmental Quality (UDEQ) that the Mill obtain a Utah Groundwater Discharge Permit (GWDP) and implement supplementary groundwater monitoring measures, which include monitoring for additional parameters. The Licensee and UDEQ are currently working on the form and details of the GWDP. ln a report to UDEQ submitted on October 3, 2001, the Licensee provided an evaluation of additional constituents that may be used as further parameters for monitoring purposes and serve as bases for assigning compliance limits to those monitoring parameters for the GWDP. ln fact, since May 1999, the Licensee has voluntarily sampled for additional parameters in cooperation with UDEQ. The cooperative program with UDEQ involves split sampling of up to 17 monitoring wells, including the POC wells and any other wells that are not dry at the time of sampling, for additional UDEQ-selected parameters, including major ions; physical properties; total metals (phosphorous and total uranium); dissolved metals (including lead); nitrogen (ammonia as nitrogen and nitrate+nitrite as nitrogen); gross alpha; and semi-volatile and volatile organic compounds.r05 !il. coNcLUSroN ln the final analysis, the venerable adage to the effect that the proof of the pudding is in the eating applies in full measure here. Notwithstanding its relative magnitude, there is nothing in the record at hand that permits, let alone compels, a finding that the Mill activities over the course of the past two decades might have occasioned significant harm to the environment. Thus, the sole question becomes whether there is the required record support for the proposition that was at the root of the grant of the Petitioners' hearing requests: namely, that, because of the high lead content of the Molycorp material, the activity hereinvolved nonetheless does pose such a threat. 'o5lUSA Response al 23-34. -39- On this score as well, no evidentiary foundation has been provided that would enable an affirmative answer. To the contrary, the information supplied by the Licensee and the NRC Staff, as outlined above, has persuaded me (and Judge Cole as well), that the processing of this material does not appear to present an environmental threat above and beyond that associated with the Mill activities conducted over the years under the aegis of the basic license and the numerous amendments thereto. ln the end, Petitioners'claims to the contrary rest on little more than mere conjecture given that what has been placed before us in their written presentations and other submissions fails totally to support their assertions. Accordingly, based upon a full consideration of the entire record in this proceeding, the NRC Staff's December 11,2001 issuance of the challenged license amendment hereby is, as it must be, upheld. lf so inclined, the Petitioners and the Ute Mountain Ute Tribe may seek Commission review of this decision within fifteen (15) days in the manner prescribed in 10 C.F.R. SS 2.1253 and2.786. ln addition, because it has now achieved finality, the Tribe is free at this time to seek review, as well, of the rejection several months ago in LBP-02-11, glpl3, of its assertion that the issuance of the Molycorp license amendment violated certain cited Executive Orders. It is so ORDERED. BY THE PRESIDING OFFICER'06 [Original Signed] Alan S. Rosenthal ADMINISTRATIVE JUDGE Rockville, Maryland August 28,2002 tffiCopies of this initial decision were sent this date by e-mail transmission to the counsel or other representative of all of the participants in this proceeding.