DRC-2005-001222 - 0901a068809be209

t
HI,NTSMAN,
Govemor
State of Utah
Departrnent of
Environmental QualitY
Dianne R. Nielsm, Ph'D'
Executive Drector
DIVISION OFRADIATION
CONIROL
Dane L. Ftnerfrock
Director
JONM.
GARY HERBERT
Licutetunt Govemor
March 8,2005
CERTIFIED MAIL
RETTIRN RECEIPT REOIIESTED
The Division of Radiation control (DRC) has received antl resolved the public comments for the'Draft
Ground Water euality Discharge Permit No. UGW370004, White Mesa Uranium.Mill Blanding, Utah. There
;;;;; puUti" "-o**"nrc that resulted in a change in the Permit. Resolution of these comments is
documenied in the attached public Participation Summary. The Executive Secretary has signed the Permit
and it is now in force.
We request that you carefully read the Permit to ensure compliance. If y-ou have any questions regarding the
permit, please contact Dean ilenderson at (801) 5364046. Thank you for your cooperation in this rnatter.
UTAH WATER QUALITY BOARD
Mr. David C. Frydenlund
lntemational Uranium Corporation
Independen ce Plaza, Suite 950
1050 l7h Street
Denver, Colorado 80265
Subjecfi Ground Water euality Discharge Permit No. UGW37OOO4 (Permit), White Mesa Uranium Mill
Blanding, Utah.
DearMr. Frydenlund:
Dane L. Finerfrock,#o Executive Secretary
DLF/DH:dh
Enclosures:March 8,2005 Ground water Quality Discharge Permit No. uGW370004
March 8,2005 Pubic Participation Summary
Harold R. Ro.berts, IUC (w/enclosures)
Walt Baker, DWQ (w/enclosures)
Rob Herbert, DWQ (ilenclosures)
F/. Jcovcdettcr-IUC.doc
168 Norrh 1950 West. pO Box 1,14850. Salt kkc CiU, UT 84114.4850 ' ptuone [phone]'fax (S0l) 533'{097
T.D.D. (E0l ) 536,4414. www.dcq.uuh. gov
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Public Participation Summary
For the
IUC White Mesa
Draft Groundwater Discharge Permit
No. UGW37O0O4
Introduction
The purpose of this document is to summarize public comments received by the Utah Division of
Radiation Control (DRC) regarding the International Uranium (USA) Corporation (hereafter
IUC) uranium mill facility at White Mesa, Utah. Three sets of comments were received from the
public during the comment period that ended on Friday, January 7,2005. Each of these
comments is listed below in italics, followed by a DRC response.
Comments From Envirocare of Utph,Inc. (see Attachment l)
1. Condition LA Groundwater Classiftcation
The Permit lists two data sets for the purpose of classifying groundwater at the IUC
facility. What is the purpose of providing both data sets?
DRC Response: Substantive Comment. They were presented to disclose the differences
in the split sampling total dissolved solids (TDS) data (see Statement of Basis (SOB), p.
5). As explained in the SOB, the Executive Secretary used the lowest values from either
set of data to classify shallow groundwater at the site (ibid). This approach is protective
of the groundwater quality resource.
2. Table 2.
Based on the information provided in Table 2, the only radiologic parameter the
Permittee is required to analyze rs Gross Alpha. Envirocare is required to analyze for
Radium-226, Radium-228, Thorium-230, and Thorium-232 at is l1e.(2) disposal cell.
UAC R313-6-2.1 identifies a combined Groundwater Quality Standardfor Radium 226 +
228 at 5 uCi/L (sic). Will these parameters also be evaluated at the IUC facility?
DRC Response: Substantive Comment. We acknowledge that significant concentrations
of radium and thorium are found in the tailings material. Elevated concentration of total
radium and thorium-230 are also found in tailings wastewaters at levels that about 188
and 1,208 times their respective State Ground Water Quality Standards (GWQS, see
SOB, Table 5). We recognize that the DRC process used to select the GWPL parameters
focused on contaminants that had tailings wastewater concentrations that were equal to or
greater than 50-times their respective GWQS (SOB, p. l4). It is important to note that
this selection process also relied on a review of each contaminant's soil-water
partitioning (IQ) coefficient, as defined by the lowest available value found in the
technical literature (SOB, p. l5). Additional review shows that radium was omitted from
consideration in the IQ table found in Attachment 7 of the SOB. This oversight has been
corrected, and the revised table is found below in Attachment2 of this document. From
this information, the lowest literature IQ values for radium and thorium are 57 and 100
UKg, respectively. These values indicate that radium and thorium tend to partition to
soils and rock and not travel far in groundwater environments. As a result, other
contaminants are expected to be the leading edge of.a contaminant plume, if it occurs,
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and thereby arrive at nearby monitoring wells much earlier than radium and thorium.
This finding reinforces the original decision not to include them in the Permit as GWPL
parameters.
The situation at Envirocare is different, in that a high chloride environment exists in the
shallow groundwater there. Also, radium has been found to be mobile in saline
groundwater environments, as illustrated by the accumulation of radium pipe scale
deposits in oil field pipelines in Texas. Under these circumstances radium should be
considered as an important groundwater monitoring parameter.
This decision about not using radium as an indicator parameter at the IUC facility can be
changed in the future. If at sometime, the Executive Secretary discovers the tailings cells
have released contaminants to the shallow groundwater system, the Permit can be re-
opened and additional groundwater contaminants required for monitoring and GWPL
established pursuant to Part IV.N.3.
3. Condition 1.D.1 DMT Design Standards for Existing Tailings Cells
Has an evaluation been performed to demonstrate liner compatibility of the Flexible
Membrane Liner with the 11e.(2) materials being disposed of in the cells?
DRC Response: Substantive Comment. With respect to existing IUC Tailings Cells 1,2,
and 3 this evaluation has not been made. Evaluations of this kind are mandated by the
NRC regulations found in l0 CFR 40, Appendix A, Criterion 58. Unfortunately, these
NRC rules were not established until 1987, long after the IUC tailings cells were
constructed.'
Under the State Ground Water Quality Protection (GWQP) Rules, discharge
minimization technology (DMT) has to consider existing process design capability [UAC
F.3l7-6-6.4(C)1. As explained in the SOB, the Executive Secretary decided to focus on
operational changes, and design and construction improvements for the cover system,
which has yet to be built at Tailings Cells 1,2, and 3. This is appropriate in that these
tailings cells have been in existence for more than 20 years and their liners long covered
by many tons of tailings.
For Tailings Cell 4A, the Permit requires it to be re-constructed in order to meet BAT
mandates (Parts I.H.14 and l5). During design review and approval for this new
construction, the DRC will evaluate this issue to ensure that the BAT requirements of the
State GWQP Rules are met [see UAC R317-6-6.4(A)].
4. Condition 1.D.3.b.1. Discharge Minimization Technology Standard
The average wastewater head in the slimes drain access pipe is to be "as low as
reasonably achievable" in each tailings disposal cell. How will state inspectors make a
determination on this criteria?
DRC Response: Substantive Comment. The exact criteria will be worked out during the
Executive Secretary review and approval process for the DMT Monitoring Plan (Part
I.H.l3). It is anticipated that this criteria will be established by the Executive Secretary
after IUC provides information on historic water levels at this access pipe, explains what
kind of pumping and control equipment has and is currently used, and evaluates what
type of pumping and control technology is available and can be readily deployed. After
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approval of this plan, compliance criteria can be determined for IUC to operate by, and
DRC staff to inspect against.
5. Condition LD.3.c. Roberts Pond
An as-built is required as Condition H.H.l8 of this GWQDP. How is this pond
constructed? For consistency with ponds used at Envirocare, this wastewater pond
should have a minimum of two FMLs and a leak detection system. In addition, what
system is in place to confirm compliance with the two foot freeboard required in this
condition?
DRC Response: Substantive Comment. As for a compliance confirmation system, that is
to be proposed by IUC and approved at a future date by the Executive Secretary during
development of the DMT Monitoring Plan required under Part I.H.l3 of the Permit.
Regarding the requirements for double flexible membrane liner (FML) and leak detection
systems, this pond has existed at the facility since the early 1980's and was clearly an
existing facility under the GWQP rules (UAC R317-6-1.14), which were not promulgated
until 1989. IUC's decision to replace the liner in2002 with another single membrane
constitutes modification of the existing pond, and therefore should have been done under
the authority of a Permit (ibid.). Unfortunately, IUC did not notify the DRC of this
construction activity until 2004, well after it was re-lined (SOB, p. 30). Upon receipt of
this information the Executive Secretary determined that it was more important secure a
Permit for the tailings cells. Several other factors were considered to support the decision
to use enforcement discretion and consider the pond as an existing facility, as explained
in the SOB (pp. 29-30), namely that it is small in size (0.4 acres), is used for intermittent
wastewater storage, and that the existing Reclamation Plan required under the
Radioactive Materials License (License) mandates that any contaminated subsoils
beneath the liner be excavated and moved to disposal in the tailings cells at the time of
facility reclamation (ibid.). No change will be made to the IUC Permit
6. Condition 1.D.3.d. Feedstock Storage Area
The introductory paragraphs of this GWQDP state that the permit is for a uranium
milling and tailings disposal facility, not a storage facility. How is the feedstock area
constructed? How long can stored materials remain in this area? Is therb a stormwater
management planfor water that accumulates in this area? Is there a DMT criteriafor
this area? Except in the dig (sic) cell, open air storage is prohibited at Envirocare.
DRC Response: Substantive Comments. Again, the IUC facility, including the open air
feedstock storage area at the eastern margin of the mill site, pre-existed the GWQP rules,
and is consequently an existing facility under UAC R3l7 -6-1.14. To avoid proliferation
of possible contamination from such storage, the Permit limited this activity to only the
historic area defined by the survey coordinates in Table 4. As for construction details,
this area is underlined by a compacted native soil surface, however, no reliable
information is available regarding the permeability of the compacted soils in this area.
Storage in containers is also allowed elsewhere at the facility under the Permit Part
I.D.3(d). No time limits are stipulated in the Permit for any feedstock storage. However,
performance criteria are mandated for this containeized storage, in that the containers
must be maintained closed and water-tight (ibid.).
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Summary
7.
As for a stormwater management plan, Part I.H.17 requires that IUC submit one and
secure Executive Secretary approval. Stormwater that accumulates on the historic
feedstock pad drains to Tailings Cell l, along with other mill site stormwater. The only
DMT performance criteria for this area, is that all open-air feedstock storage be restricted
to only the historic pad location, as defined by Table 4 of the Permit [Part I.D.3(d)], as a
means of preventing proliferation of possible contamination. No change will be made to
the ruC Permit.
Condition 1.E.2. Groundwater Head Monitoring
Total Dissolved Solids (TDS) range from 1,276 to 5,200 mg/L. Will the groundwater
elevations be adjusted to afreshwater equivalent head to account for an almost S-fold
variation in salinity? In addition, Envirocare is required to conduct monthly
groundwater elevations due to a groundwater mound, much like the mound beneath the
IUC facility. For consistency, groundwater elevations, freshwater correction, contour
mapg etc., should be performed on a monthly basis.
DRC Response: Substantive Comment. The TDS or salinity contrast between
groundwater in the shallow aquifer and the source of the groundwater mound at the IUC
facility is expected to be relatively low. The range of the TDS in IUC's shallow
groundwater is as stated, and when averaged across all monitoring wells at the facility the
combined average is about 3,000 mg/I. As a result, we anticipate the contrast between
this average TDS and the average water quality expected in the eastern wildlife ponds,
which recharge the IUC groundwater mound (see SOB, p. 4), is closer to about 3-fold.
Higher TDS contrasts are expected in stormwater induced groundwater mounds at
Envirocare, in that natural TDS found in the shallow aquifer ranges from 20,000 to over
70,000, with an average of more than 40,000 mg/l.
As for the suggested need for monthly groundwater head monitoring at IUC, the
Executive Secretary agrees it is necessary in those wells where transient conditions exist
or could exist. Such is the case in all the IUC wells related to the chloroform
investigation and pump and treat system, where an appropriate frequency will be set in
the future as a part of an approved Groundwater Corrective Action Plan. That frequency
and all other necessary monitoring requirements will also be exposed to a public
comment period sometime in the future. For purposes of this Permit, the baseline
groundwater head monitoring frequency will continue as quarterly (Part I.8.2). If non-
compliance with GWPLs is detected, more frequent head monitoring will be conducted in
accordance with the requirements of Part I.G.l.
Condition 1.H.1. Installation of New Groundwater Monitoring Wells
How were the locations of the new monitoring wells determined? Monitoring wells at
Envirocare were located using a computer model to demonstrate that should a release
occur, the groundwater monitoring well network would detect that release. Will a well
spacing evaluation be required by the Permittee?
DRC Response: Substantive Comment. The number and location of wells was arrived at
after consideration of site hydrogeologic conditions and after negotiation with IUC.
Unique hydrogeologic conditions exist at the White Mesa in that the shallow aquifer is a
perched system found about 100 feet below the tailings cells, and located in a
8.
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consolidated geologic formation deposited by an ancient fluvial environment. In contrast
the aquifer at Envirocare is found l5 feet below the disposal cell in unconsolidated lake
deposited sediments.
Despite these differences new wells are to be added at the IUC facility, including two
new wells south of Tailings Cell I (NNV-24 and MW-28) and the three new wells south
of Tailings Cell2 (Ivtw-29, Mw-30, and MW-31). These were spaced in a similar
manner as the three existing wells found south of Tailings Cell 3 (see SOB, Attachment
l l). Because there is a strong East-West groundwater flow direction near Cell l,
additional wells were required upgradient (NNV-27) and downgradient (MW-24) on the
Northeast and Southwest corners respectively. For Cell2, two upgradient wells MW-26
and MW-32 (formerly TW4-15 and TW4-17) already existed and were included under
the Permit. A new downgradient well for both Cells 2 and 3 will also be installed off the
Southwest corner of Cell 3 (IvtW-23). For Tailings Cell 3, it is anticipated that the three
new wells proposed on the northern dike will also serve as upgradient wells. The existing
Cell 3 downgradient wells, MW-5, MW-I1, and MW-12 have been in place on the south
dike since October, 1982 or earlier. A new upgradient well will also be installed off the
Northeast corner of Cell 4A (MW-25).
No computer modeling was done by IUC to justify the spacing intervals selected. Such
models estimate the required well spacing interval from several hydrogeologic
assumptions, including but not limited to: local groundwater velocity and flow
directions, existence of isotropic and homogeneous aquifer conditions (including aquifer
dispersivity and permeability), and a presumed minimum footprint or size of a leak from
the embankment. The Executive Secretary acknowledges that such models are useful
tools to determine the minimum well spacing for a facility, but believes it premature to
perform such modeling at the IUC facility until after local hydrogeologic conditions are
better established in the immediate vicinity of the tailings cells. This evaluation will need
to consider several factors, including, but not limited to local:
1) Elevation and configuration of the upper geologic contact of the Brushy Basin
Member of the Morrison Formation, which perches the shallow groundwater system.
2) Distribution and spatial trends of shallow aquifer permeability that could provide
preferred groundwater flow paths.
3) Distribution of shallow groundwater head and flow directions.
4) Distribution and spatial trends of groundwater quality in the shallow aquifer.
For this reason, the Permit requires IUC to submit a Revised Hydrogeologic Report for
Executive Secretary approval (see Part 1.H.2). In the event that the Executive Secretary
determines that additional information is needed, including additional borings,
monitoring wells, or any other pertinent data needed to characterize the local
groundwater system, IUC will be requested to provide this information (SOB , p. 23). lf
at that point the Executive Secretary determines the characterization is complete, a well
spacing model may be required to evaluate the need for additional wells. If additional
monitoring wells are needed, and after the Executive Secretary has determined the
proposed monitoring well network is satisfactory, the Permit can be re-opened and these
new wells established as point-of-compliance wells under Part IV.N.3 of the Permit.
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9. Condition 1.H.11. Infiltration and Contamination Transport Modeling Work plan and
Report.
This condition requires an infiltration and contaminant transport model. Since the
proposed Permit does not have a cover design, it is assumed that a designwill come fromthe required modeling. For consistency with Envirocare, even though the cover will need
to incorporate an FML to prevent the bathtub effect (See Condition I.D.6.b), the
Permittee should not be able to take credit for either the upper or lower FMLs in the
modeling effort. In addition, it is unclear if the Modeling Work Plan is part of the Report
or a separate submittal whichwill require Executive Secretary approval.
To evaluate the assumptionfound in the model, will the Permittee be required to prepare
a Post-Model Audit Plan?
DRC Response: Substantive Comment. Because the tailings cell cover design has
already been approved by the NRC as a part of the Reclamation Plan under the License
(SOB, p. 35), the purpose of the modeling report is to evaluate if any design changes are
needed to ensure the tailings cells meet the long-term performance standards set in part
I.D.6 of the Permit.
As for the need for a FML in the cover system to prevent a bathtub effect, such a
membrane would appear to be in order; but the Executive Secretary will await the
outcome of the modeling report before making any decision in this matter. With regards
to any credit given to the longterm performance of FMLs in the infiltration and transport
modeling report, the Execuiive Secretary will take this suggestion under advisement.
Holever, it is important to note that the NRC policy referred to applies only to Low-
Level Radioactive Waste facilities (see l0 CFR Part 61), and not to uranium mill
operations. In fact, no performance assessment modeling is required by NRC for any '
lle.(2) facility (see l0 CFR 40, Appendix A). Instead, at IUC, and other uranium mill
operations in Utah, this performance assessment is mandated as a means to establish BAT
or DMT under the State GWQP rules. Precedence has been set at other Utah uranium
mill operations that utilize FMLs as a means to meet the BAT design standards. One
example is Plateau Resources' facility near Ticaboo, where a new tailings cell facility
was proposed with double FMLs and leak detection systems were as a means to meet the
BAT design standard during the operational phase of the project (see 12t28198 DRC
Draft GWQD Permit No. UGWI70003 and related SOB [pp. 5-7] for Plateau Resources).
Consistency with the Envirocare I le.(2) facility has been provided in the IUC permit in
that a 200 year performance standard has been established (Part I.D.6), and an infiltration
and contaminant transport performance model required.
As stipulated in the Permit, the work plan and the modeling report are two separate
documents, with two separate 180-day deadlines mandated (Part I.H.l l). For the first
deadline, IUC is given 180 days after issuance of the Permit to prepare and submit a work
plan for the performance modeling for Executive Secretary approval. Thereafter, when
the Executive Secretary approves this work plan, a second 180-day deadline is set for
IUC to complete the modeling effort, write a report, and submit it for Executive Secretary
approval.
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As for any post-model audit plan, no specific compliance schedule requirement is
currently mandated in the Permit. However, existing language at the end of Part I.H.11
allows the Executive Secretary to require one if found necessary, as follows:
"...IJpon Executive Secretary approval of the final infiltration and contaminant
transport report, the Reclamation Plan may be modified to accommodate
necessary changes to protect public health and the environment."
The changes to the Reclamation Plan could include not only cover design and
construction specifications, put also plans to monitor the tailings cover system and/or
groundwater quality to confirm the modeling assumptions.
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Comments from Ms. Sarah Fields (see Attachment l)
1. Draft Groundwater Discharge Permit (Permit), page l:...
The facility is also (sic) includes IUC land in Sections 21, 22, 27, Township 37 South,
Range 22 East, that are up-gradient from the mill and tailings cells. It also includes
down-gradient land in Sections 4, 5, 6, 8,9, and 16, Township 38 South, Range 22 East,
Salt Lake Base (sic) and Meridian, San Juan County, IJtah. An explicit "legal"
description of the mill property must be included in the permit.
DRC Response: Nonsubstantive Comment. The Permit's description list those sections
currently disturbed by construction and occupied by the mill site and tailings disposal
cells. While it is true that IUC owns or controls other nearby tracts of land, the Executive
Secretary will not authorize or imply any approval for disposal activities outside the
bounds of lands currently disturbed.
2. Part I, page 8: D. Discharge Minimization Technology Standard - ...
This section is vague regarding the actual design and construction information that the
Division of Radiation Control (DRC) is relying on. There is no mention of the December
31, 1998 Knight Piesold Report on the Seepage Flux from Tailings Cetl 3 Liner submitted
to the DRC by the Permittee. There is no mention of the numerous questions that the
DRC had about the actual design and construction of Cell 3, as expressed in the
(apparently) unanswered November 28, 2001, DRC Requestfor Additional Information
(P'/,I).
The DRC must not rely on cell design and construction information that it has already
found questionable. This section must include more detailed cell design and construction
date (sic). This section must also be amended based on the Permittee's reply to the
November 28,2001, MI whichwas part of the permit process.
DRC Response: Substantive Comments. The Permit references all design and
construction information that has been made available to DRC. We acknowledge that
DRC has had major concerns about the infiltration modeling found in the December 31,
1998 Knight-Piesold Report. DRC omission of any discussion in the SOB regarding this
modeling report was intentional for the following reasons:
l) The report is a infiltration and seepage simulation of the open cell conditions for
Tailings Cell 3 only. It does not represent infiltration or seepage conditions for Cell I
or Cell 4,{ which have different engineering design and construction characteristics.
Further, the report does not simulate contaminant transport which is essential to an
assessment of tailings system performance. Simply said the Knight-Piesold report is
incomplete.
2) Any open cell infiltration modeling would be based on a series of assumptions, many
of which would be difficult to verify given the age of the construction and the lack of
ability to sample and confirm certain construction details that are now covered by
tailings. As a result, the model predictions would be subjective to interpretation.
Direct and discrete groundwater monitoring of each disposal cell is a much more
effective means to determine if the tailings system has or will discharge contaminants
to groundwater.
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3) Should groundwater monitoring find that the tailing cells have leaked, active means
can be taken to intercept and control this leakage thru various groundwater
remediation technologies that are available.
4) Design and construction of an improved cover system is the most practical means ofpreventing and controlling possible future tailings cell leakage. It is not practical, nor
feasible to require IUC to move the existing tailings wastes into new tailings cells.
As a result, neither the Permit or the SOB relied in any way upon the Knight-piesold
report referenced. Instead, the Permit outlined a new path of activities to provide an
objective evaluation of the future cover system design, and opportunities for
improvement to said design in order that local groundwater resources be protected.
3. Part I, page 1: D.z(d) Feedstock Storage Area - ...
There is no indication in the Permit as to how the Permittee will monitor the
groundwater underneath and in the vicinity of the Feedstock Storage Area to guarantee
that the materials stored there will not contaminate ground and surface water. The
feedstock is sometimes stored for years out in the open where it is subject to dispersion
and leaching by wind andwater, and surface water.
This must be corrected.
DRC Response: Substantive Comments. The IUC facility, including the open air
feedstock storage area at the eastern margin of the mill site, pre-existed the GWep rules,
and is consequently an existing facility under UAC R3t7 -6-1.14. As a result, ruC is heldto a DMT standard instead of the more rigorous BAT standard [see UAC R31T-6-6.a(c)].
In addition, the facility reclamation requirements (see Part I.D.7) would require
rcclamation of the Feedstock Storage Area. DRC will evaluate the Reclamation plan at
the time of the next License renewal scheduled on or around March, ZOO7. For other
relevant details, see the DRC response to Envirocare Comment No. 6, above.
4. Part I, page 20: G. Out of Comptiance Status, a.k) - ...
The DRC does not define "feasible." Does feasibitity include economic feasibility? Who
decides if a ground water corrective action plan is ,,unfeasible,,?
There is no mention of the standards that must be met by the Permittee when proposing
alternative concentration limits (ACLs). Are the standards for establishing iCfi
outlined in 10 C.F.R. Part 40, Appendix A, applicable here? What criteriawill the
Executive use in reviewing applications for the establishment of ACLs?
The term "feasible" must be defined. The standards for the establishment of ACLs must
be spelled out in the Permit.
There is no mention in the Permit of any necessity for the Permittee to increase the
reclamation surety to cover ground water remediation when the Permittee is out of
compliance. NRC and State regulations require a surety to cover the costs of
reclamation, including any ground water remediation. This requirement must be included
in the permit.
DRC Response: Substantive Comments. The Permit Part 1.G.4.(e) corresponds to UACR3l7-6-6.17(AX5), in which the term "infeasible" is used. DMT is implemented instead
of BAT because the IUC facility pre-existed the GWQP rules (UAC njtZ-O-t.t4). In
addition, Part 1.G.4(e) of the Permit applies to DMT and not groundwater corrective
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action. The Executive Sectary decides on feasibility issues, which could include
economic feasibility issues.
As for ACLs, these are approved only by the Utah Water Quality Board (Board) as per
UAC R317-6-6.15 (A) thru (G). The NRC ACL process is not applicable. In the State
ACL process the Board considers factors, including but not limited to protection of
human health and the environment, permanent effect, cost effectiveness, etc. For details
refer to R317-6-6.15(G). Under the State regulatory process, Permits are issued first with
their respective Ground Water Compliance Limits (GWCL) established. Then if the
GWCLs are exceeded the Executive Secretary initiates a compliance action against the
permittee. In this process an ACL may be considered, but it is only the Board that can
approve it.
The reclamation surety to cover ground water remediation is not an issue of a Ground
Water Discharge Permit, but instead is managed under the Radioactive Materials License.
At this point it is premature to conclude if non-caused pollution has occurred at this site.
This is one of the reasons for the Background Groundwater Monitoring Report required
in Part LH.3 & 4. If later we determine that groundwater pollution has occurred,
Executive Sectary well take appropriate action to protect the groundwater resources.
This would include development of a groundwater corrective action plan for the facility
under the auspices of UAC R3l7-6-F-6.15.
5. Part I, page 20: H. Compliance Schedule Requirements ...
Nowhere in the extensive lisi of Compliance Schedule Requirements is there any
requirement for the Permittee to respond to the 8-page November 28, 2001, DRC Request
for Additional Information, regarding December 31, 1998, Knight Piesold Report on
Seepage Fluxfrom Tailings Cell 3 Liner, White Mesa Mill.
Has the Permittee responded to this MI? If not, has the DRC notified the Permittee that
they don't have to respond?
It was definitely my understanding, based on correspondence with the DRC, that a
schedule for the Permittee's long-delayed response to the 2001 request would be part of
the Permit requiremenfs. Is this no longer the case? If so, why?
There must be afull explanation of this situation.
In addition, the DRC must review all previous requests for information and make a
determination that they have all been fully responded to or a schedule for response has
been established in the context of the Permit.
DRC Response: Substantive Comments. See DRC response given for, Comments from
Ms. Sarah Fields, Comment 2,pages 8 and 9 of this Public Participation Summary.
6. There is no discussion in the Permit of other types of contamination to ground and
surface water by activities on the land owned by the Permittee at the facility. .Ihe
Permittee currently allows cattle to graze on some of the mill propefi. These cattle can
and do access Ruin Spring. Ruin Spring is on U.S. Department of Inteior, Bureau of
l,and Management, property that abuts the mill property. The Ruin Spring area is
trampled and contaminated by wastes from the cattle. The spill-overfrom a tank below
the spring (which has not been cleaned in years) feeds a desert iparian area. The spring
is used by wildlife.
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March 7,2005
Does the Permittee have any responsibility for the ruin of Ruin Spring by the cattle that
graze on its mill facility property?
DRC Response: Nonsubstantive Comments. ruC owns neither the cattle or Ruin Spring.
Hence they have no responsibility for damage the cattle may pose to the spring of its
riparian habitat. Possible contamination to Ruin Springs from cattle wastes is not a
Permit issue. Concerns in this regard need to be directed to the cattle owners and/or the
Bureau of Land Management.
7. Part I, page 12: D.5. Definition of I le.(2) Waste - ...
There is absolutely no statutory or regulatory basis for the State of Utah to authorize the
processing of "alternate feed material" at the IUC mill. There is no statutory or
regulatory basis for the State of Utah to include the "process related wastes and waste
streams" from the processing of materials other than natural ore ("alternate feed
material") in the statutory and regulatory definition of 11e.(2) byproduct mateial.
The Ground Water Discharge Permit must not authorize the processing of "alternate
feed material." The Ground Water Discharge Permit must not authorize the disposal of
waste streams from the processing of "alternate feed material" as 11e.(2) byproduct
material. Such authorization is not permitted by any statute or regulation.
Any request by the Permittee for such authorization must be denied.
The following (including Attachment A) are comments that support these statements.
A. The March 7,2003, NRC letterfrom Paul H. Lohaus to William J. Sinclair is not" an NRC legal opinion and has no legal effect. Seel) C.F.R.Part 40, Sec. 40.6,
Inte rp ret ations,' which stat e s :
Except as specifically authorized by the Commission in writing, no interpretation
of the meaning of the regulations in this part by any fficer or employee of the
Commission other than a written interpretation by the General Counsel will be
recognized to be binding upon the Commission.
B. There is no legal basis under and Atomic Energy Act of 1954 (AEA), as amended,
to consider so called "alternate feed material" and various debris accompanying
such material (at times constituting 40Vo of the "alternate feed material") as
"ore," as the term "ore" is used in the definition of 11e.(2) byproduct mateial.
The Permit must not include any statement that would imply processing of feed
material other than natural ore ("alternate feed material" ) is the same as the
processing of "any ore," and that the debris, tailings, or wastes from such
processing constitute I Ie.(2) byproduct material.
The State of Utah cannot and must not include any reference to the letterfrom the
March 7, 2003, NRC in the Permit.
See Attachment A hereto for a full discussion and comments on this matter.
C. The Permit does not define so-called "alternate feed material." There is no
indication in the Permit that "alternate feed mateial" is made up of processing
wastes from other mineral processing operations that are commingled with
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March 7,2005
contaminated debris and soils. Why is there no definition of "alternate feed
material" in the Permit.
D. The State of Utah must only rely on the common, historical meaning of the word
"ore."
Wat does "ore" mean? The word, or tenn, "ore," as deftned in several sources:c "Qvg-s naturally occurring solid material from which metal or other
valuabe minerals may be extracted." [Illustrated Oxford Dictionary,
DK Pub. 1998.1
o "Ore-A nativ? mineral containing a precious or useful metal in such
quantity and in such chemical combination as to make its extraction
profitable. Also applied to minerals minedfor their content of non-
metals." [The Compact Oxford English Dictionary, Second Edition,
Oxford Unive rsity P res s, 2000, p. I 224 : 9 I 5 -9 I 6. lo "Q7s-s. A natural mineral compound of the elements of which one at
least is a metal. Applied more loosely to all metalifurous rock, though
it contains the metal in afree state, and occasionally to the compounds
of nonmetallic substances, as sulfur ore. . . . Fay b. A mineral of
sfficient value as to quality and quantity that may be minedfor profit.
Fay." IA Dictionary of Mining, Mineral, and RelatedTerms,
compiled and edited by Paul W. Thrush and Staff of the Bureau of
Mines, U.S. Dept. of Interior, 1968.1
The Oxford English Dictionary points out that the current usage of the word.
"ore" goes back several hundred years. A Dictionary of Mining, Mineral, and
Related Terms lists over 65 compound words using the word "ore," such as ore
bin, ore body, ore deposit, ore district, ore geology, ore grader, ore mineral, ore
reserve, ore zone. All of these terms incorporate the word "ore" as it relates to
the mining of anative mineral. The term "ore," without explanation, hasfor
many years been used in millions of instances in thousands of mining, milling,
g e ol o g i c al, mine ral o g i c al, r adi o c he mi c al, e n g ine e in g, e nv i r onme nt al, and
regulatory publications. "Ore" like the word "water," is a word of common and
extensive usage with a clear and accepted meaning.
The State of Utah must explain what the statutory and regulatory basis is for
calling wastes from other mineral processing operations "ore." A policy, whether
federal or state, is not a statutory or legal basis.
E. In the past, debris associated with the processing of "alternate feed material" has
been received at the IUC mill. Thousands of tons of such debris have been
disposed of at the mill. IUC was paid to receive and dispose of this material.
Some of the material was apparently washed (i.e., decontaminated), and the wash
water was subsequently processed for its minimal source mateial content.
The debris that sometimes accompanies natural ore when it is processed at a
licensed uranium or thorium mill has no economic value to the licensee of a
uranium or thorium mill. A mill owner would not pay for or be paid to receive
such debris and, in fact, would pay less for ore contaminated with a lot of debris.
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Public Participation
March 7,2005
o
Summary
However, the licensee will be paid to receive and dispose of debris accompanying
"alternate feed material." What is really occurring is that the licensee is getting
paid to directly dispose of contaminated (or decontaminated) low level
radioactive waste.
There are no similaities between the debris associated with ore mined from the
ground and debris accompanying wastes and contaminated materials from other
mine ral pro c e s sin g op e rations.
This debris must have been separatedfrom any material that was going to be
processed at the mill pior to shipping to the mill. This could have been easily
accomplished, but was not because it was in the interest of originator of the waste
to get rid of it, and it was in the interest in the mill operator to get paid for
accepting it.
The State of Utah is in no way obligated to agree with the NRC on this question.
F. The March 7 NRC letter states that "the alternate feed material is regulated in
mass as ore." There is conJlict, confusion, and inconsistency in this statement.
Who, exactly, regulates alternate feed material as "ore," and what is the basis of
such regulation?
The AEA does not mention "alternate feed material" and it's regulation. I can
find no NRC or EPA regulations related to the regulation of "alternate feed
nruterial." There are no NRC generic or site speciftc environmental impacts
statements related to the regulation of " alternate feed material" or feed
materials other than natural ore.
How can the NRC regulate alternate feed material "in mass as ore" when the
NRC has no statutory or regulatory jurisdiction over "alternate feed material" or
uranium and thorium "ore" ?
NRC regulation at 10 C.F.R. S 40.13 establishes unimpofiant quantities of source
material that are outside of regulatory concern under the AEA. NRC regulation
at Section 40.4 states that "Source Material means: (1) Uranium or thorium, or
any combination thereof, in any physical or chemicalform or (2) ores which
contain by weight one-twentieth of one percent (0.05Vo) or more of: (i) Uranium,
(ii) thorium or (iii) any combination thereof "
Section 40.1i(b) says that any "ore" containing source material, whether or not
it meets the definition of source material (i.e., contains uranium and/or thoium of
0.057o by weight) is exempt from regulation under Part 40. Section 40.13(b)
states:
(b) Any person is exempt from the regulations in this part andfrom
the requirements for a license set forth in section 62 of the act to
the extent that such person receives, possesses, uses, or transfers
unrefined and unprocessed ore containing source material;
provided, that, except as authorized in a specific license, such
person shall not refine or process such ore
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March 7,2005
The NRC has exempted "ore," either source material ore (over.05Vo uranium or
thorium by weight) or non-source material ore (less than .05 Vo uranium and/or
thorium by weight). The NRC regulates facilities that process and refine "ore,"
under its regulation of 11e.(2) byproduct material, but it does not regulate "ore"
as such.
There is nothing in the AEA that authorizes the transfer to the State of Utah of
regulatory responsibility over uranium or thorium "ore."
DRC Response: Nonsubstantive Comments. Issues regarding "alternate feed material"
at the IUC facility are regulated by the Radioactive Materials License and not the Ground
Water Discharge Permit.
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Public Participation Summary
March 7,2005
Comments from Mr. Ivan Weber (see Attachment 1)
1. May I please echo the critique submitted by Ms Sarah Fields, and incorporate it by
reference into my own reJlections. In particular:
I share her apprehension, expressed in her questioning of the meaning of "infeasible"
DMT as rationale for IUC submittal of "alternative DMT" to the Executive Secretary of
DRC (page 20 of draft Permit, 4. "Facility Out of Compliance Status...," e. "Where it is
infeasible to reestablish DMT..." ). This appears to be a loophole of magnitude
proportional to the holes we suspect to exist in the cells liner systems. Please tighten this
allowance by defining terms rigorously, if not by eliminating 4.e altogether.
DRC Response: Substantive Comments. See DRC response to Ms. Sarah Field's
Comment No. 4, above.
2 Also on page 20, under H. "Compliance Schedule Requirements," I ioin Ms. Fields in
incredulity that ItlC has not been allowed not to respond to the November 28, 2001 DRC
Request for Additionat Information. At the time, the RAI was reasonable, legitimate and
completely necessary. It remains reasonable, legitimate and completely necessary in
order to proceed with State of Utah regulatory authority. Whether neglect, inadvertent
oversight or strategic contempt for authority, this IUC failure is an outrage, warranting
draconian response at the outset of State assertion of control over waters of the US
delegated to State administration. Eitlrcr IUC must respond seriously to the 2001 RAI
according to stipulated schedule, or I(JC should suspend operations. This point alone is
grounds for aformal request for a hearing, which I hereby submit.
DRC Response: Substantive Comments. See DRC response to Ms. Sarah Field's
Comment No. 2, above.
3. As a point of inquiry, we wonder what and when will be the implications of recent State
Implementation of SWAP," the Source Water Assessment and Protection" Plan, pursuant
to Safe Drinking Water Act Amendments of 1996, and subsequent adaptation into Utah
Code. As a member of the SWAP Advisory Committee in 1998-99,1became aware of the
comprehensive nature of SWAP's simultaneous protection of wellheads, surface water
and emerging ground water. It seems obvious to this observer that there are inevitable
effects of past IUC groundwater contamination, most of which could easily escape (and
probabty has done) the rather pathetic monitoring of the facility heretofore- For the sake
of neighboring communities and isolated native populations, as well as for area wildlife,
all that can be done to answer the question. "Wat can 80 wrong?" and to see to it that
these faults are investigated, characterized and remediated scientifically, should be done
without delay.
DRC Response: Substantive Comments. The Permit addresses ground water compliance
limits, ground water compliance, monitoring, and reporting requirements that DRC will
use to protect local ground water resources. Many significant improvements to the
ground water protection have been made thru the Permit that the Executive Secretary
considers sufficient. These include but not limited to requiring: The installation of
additional monitoring wells at the tailing cells, new hydrogeologic evaluations,
development and application of a ground water monitoring quality assurance plan,
Page 15
Public Participation SummarY
March 7,2005
submittal of a ground water performance assessment model, application of a ground
water performance standard, addition of many new ground water quality monitoring
parameters, improvement in format and content of ground water monitoring reports,
periodic monitoring of ground water seeps and springs of the edge of the mesa, and
reporting thereof, etc.
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March 7,2005
References
Envirocare of Utah,Inc., JanuaryT,2OO5, "Comments on International Uranium Corporation
Proposed Groundwater Quality Discharge Permit (Permit No. UGW3'700U)", unpublished
company comments,2 pp.
Utah Division of Radiation Control, December 28,1998, "Ground Water Quality Discharge
Permit No. UGW170003 Statement of Basis", 8 pp.
Page 17
Public Comments Received from Three Paties:
January 7 ,2005 Envirocare of Utah, Inc. Comments (Received January 7 ,2005)
January 7 , 2OOS Glen Canyon Group / Sierra Club Comments (Received January I I , 2005)
January 7,z}Oslvan Weber Comments (Received via email on January 7,2005)
ENVI RO CARE OF UTA.H, INC.
THE SAFE ALTERNATIVE
January 7,2005
Dane Finerfrock
Co-Executive Secretary
Uuh Water Qualit:- Board
168 North l9-s0 West
P.O. Box 144850
Salt I-ake City, UT 841 l4-4850
Subject:
cD05-0015
Comments on Iniemational Uranium Cotporatiort Proposed Groundwater
Quality Discharge Perntit (Pen:rit No. I.1GW370001)
Dear Mr. F'inerfrock:
En'irocare of Utah, lnc. (Envirocare) provides the I'crllorvin-e comments on the Internalional
Uranium Ctorporation proposed Groundrvarer Quality Discharge Permit (AWQDP) (Pcnnit
No. UGW370004).
Condition I.A Groundn'atcr Classilication
The permit lists two data sels tbr the puq)ose of classiff ing gnrurtdwatel at lhc ttJC l'aciiitr'.
\\rhat is the purptrse of providing both data sets?
Tablc 2
Basecl on thc inf'oniration provicled in Tablc 2, the crnty radiokrgic paranleter the Pern'littcc is
requir-ed to analyze is Cr,>:'rs Alpha. Envirocare [5 vgrquired to analyze for Radium-225,
Raiium-228, Tlioriurn-23o. and Thorium-232 at its 1le.(2) disposal cell' UAC-'R3l3-6-2'1
idenrifies a combinect (irtruntlwater Quality Startdard ftrr Raditrm 226 + 228 at 5 prCir'L. Will
these parameters atso be evaluatecl at the IUC facility?
condition I.D.l. DI\IT f)esign Standards for lixisting Tnilings cells
Has an cvalualion 6een perfonrred to <lenronstrale liner r:ontpatibiiit;"'of the Flexible
Membrane 1,i1er (Fir.{Lj rviih thc I I e.(2) r-nateriais br:in-u disl:'c.sed in the cells?
concliti0n I.D.3.b.1. Disr:harge Ilininsization Tcehnolog]' standard
.l'tre irveragc wastc$,atcr hcaci in the slirnes clrairr access il:pe is to be "'as low as reasonabl;-
achievable":n eactr tailrngs disposal cell. I'lorv will state inspectors make a detemrination crn
this criteria?
Condition I.D.3.c. Roberts Pond
An as-built is requirecl as Condition I.FI.l E t;l'tltis CWQDP. [Iow is this pond construued?
For consistqrcy with lnnds used al Envirocare. this was:e.u'ater pond should have a minimum
of t*,. FMI-s ancl a ieuk ciuieclion syste.m. Irr addition. ivirat systcln is irr place to confinu
coprpliance with the 1$.,6 [6ot frceboard required in this condition?
Condition l.D.3.cl. Feedstock Storage Area
The irrtroductory paragraphs of this CWqOn shte that the Pennit is tbr a uranium nrilling
and tailings.lispoial faciiity, not a storage l'acility. How is the ft'edstock area c'onstructed?
605 N)RTH 5600 ]yyEST . SALT IAKE CITY, IJTAH 84776 . TELEPHONE (801.) 532.7330
$l$sELllHttt
J[tt
D$l 0r
INVIROCARE
Page 2 of 2
January 7,2005
How long can stored materials renrain in this area? Is there a stormwater management plan
for wateithat accumulates in lhis area? Is there a DMT criteria for this area? Except in the
dig cell. open air storage is prohibited at Envirocare.
Condition 1.8.2. Groundwater Head I\{onitoring
Total Dissolved Solids (TDS) range from 1,276 mglL to 5,200 mg/L. Will the groundwater
elevatiorrs be adjusted to a freshwater equivalent head to account for an almost 5 fold
variation in salinity? In addition, Envirocare is required to conduct monthly groundwater
elevations due to a groundwater mound, much like the mound beneath the tUC facilily. For
colSistency, grOrrd*rter elevations. freshwater correction, contour maps, eto., ShOuld be
perfomred on a rltonthlY basis.
condition I.H.1. Installation of Nen'Groundrvater Monitoring wells
I{ow were the locations of the new monitoring wells determined? Monitoring wells at
Envirocare were located usirrg a computer nrodel to demt'rnstrate that should a release occur,
the groundwater nronitoring network would detect that release. Will a well spacing
evaluation be required by the Permittee?
Condition I.H.1t. Infiltration and Contamination Transport I\lodeting Work Plan and
Report
l'his conttition requires an infiltration and contaminattt transport model. Since the proposed
permit does not have a cover design, it is assumed that a design will conle frorn the required
modcling. For censistency with Envirocare, evett though the cover will need to incorporate
an FN{Lio prevent the bathtub effect (See Condition LD.6.b.), tlre Permittee should not be
able ro rakecredit for either the upper or lower FIvlI.s in the modeling effort. In addition, it is
unclear if the Modeling Work Plan is part of the Report or a separate submittal which will
require Executive Secretary Approval.
To eyaluate the assumptions found in the model, rvill the Permittee be required to prepare a
Post-Model Audit Plan?
Please contact me at [phone] with any questions regardirrg this issue.
Sincergly, ,a
"i,"yAr-
I';*ffi:Ii"n,lr.ornrliance and permitting
I ccrtiry unde.r pcnalty of law that this tlocurnenl and all attachmcnts were prepart{ under rny.dirction or supcwision in
accordan.e *it'h a syste,n dcsigne6 to assunj rhat qualificr.l pcruonnel pmperly gather and cvaluatc the information submitted.
gur"d on my inquiry ol'th. p.ion or p"oons whq rnanagc lhc systL'm: or dtuse pcnons directly responsible for Sathering the
inlbnnation. the'inlbnnation subrnittcd is, lo rhr. besr of my knorvledge and bcliel'. lruc, accutate. and cornplete. I am aware that
it.r. ur. significanr penallics for sutimiuirrg lals: intbrrnarion. inclucling the possibility ol'line and imprisonmenl for knowing
violations.
Glen Canyon Grou P/sierra Club
P.O. Box 622
Moab, Utah 84532
Mr. Dane Finerfrock, Director
Division of Radiation Contnol
Utah Deparrnent of Environmental Quality
P.O. Box lffis0
salt take city, utah 84114-4850.
Subject Comments on Draft Ground Water Discharge Permit No. UGW3](XXN'
Inte-rnational uranium (usA) corporation (IUC) uranium Mill, white Mesa, utah.
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Q."'Y.T*fi
Below please find the comments of the Glen Canyon Group of the Sierra Club on
No. UGW370004. !
l. Draft Ground \ilater Disclarge Permit (Permit), page 1: fhelacility is located on
a tract of-land in Sections 28, 29, i2, orra 33, Towruhip 37 South, Range 22 East, Salt
I-al<c Base and Meridian, San Jum County, Utah,
Comment: The facility is also includes IUC land in Sections 2l,22,and27,Township
37 South, Range 22East that are up-gradient from the mill and tailings cells. It also
includes 6or,rnlgradient land in Sections 4,5,6,8,9, and 16, Township 38 South, Range
Z2fust sat ulr Base and Meridian, San Juan County, utah. An explicit "legal"
description of the mill property must be included in the Permit
2. Part I, page E: D. DISCHARGE MINIMITATION TECHNOLOGY STAI'.{DARD - tlw
tailings Aipi"ty"cility must be built ond operated according to tlufollowing Discharye
Minimizption Technolo gy ( DIvIT) standards :
I . DMT Design itandards for Existing Tailings Cells I, 2, and 3 ' slall be based
on existing ,o^t uriirn as described by design and cowtruction inforuntion provided by
the Permittee, as sulnrnorized inTabte 3 belowfor Tailings Cells 1,2, and 3:
Comment: This section is vague regarding the actual design and construction
information that the Division of Rrdiatioo of Control (DRC) is relying on. There is no
mention of the December 31, 1998, Knight Piesold Report on the Seepage Flux from
i"itingr Cell3 Liner submitted to the DRC by the Permittee. There is no mention of the
,ur"ri* questions that the DRC had about the actual design and construction of Cell 3,
Division of Radiation *,
January 7,20015
as expressed in the (apparently) unanswered November 28,2001,DRC Request for
Additi onal Information (RAI).
The DRC must not rely on cell desigu and construction information that it has
already found questionable. This section must include more detailed cell design and
construction date. This section must also be amended based on the Permitee's reply to
the November 28,2001, RAI, which was part of the Permit process.
3. Part I, page 11: D. 2(d) Feedstock Storage Area<pen-air or bulk storage of all
feedstock'ialerials at thc facility awqitrng mill processing shaV be limited. to tlu eastern
-portion of thc mill site area described inTable 4, below'
Comment: There is no indication in the Permit as to how the Permittee will monitorthe
groundwater underneath and in the vicinity of the Feedstock Storage Area to guarantee
ihut th. materials stored there will not contaminate ground and surface water. The
feedstock is sometimes stored for years out in the open where it is subject to dispersion
and leaching by wind and water, and surface water'
This must be corrected.
4. part I, page Z0z G. OUT OF COMPUAI,ICE STATUS,4. (e), Wlure it is infeasible to
reestablish DMT as defincd in tlu permit, thc Perminee may propose an alternative DMT
for approval by tlu Executive Secretory.
Comment The DRC does not define'Teasible." Does feasibility include economic
feasibility? Who decides if a ground water corrective action plan i-s "unfeasible"?
There is no mention of the standards that must be met by the Permitrce when proposing
alternative concentration limits (ACI-s). Are the standards for establishing ACI-s
outlined in l0 C.F.R. Part 4O, Appendix A, applicable here? What criteria will the
Executive use in reviewing applications for the establishment of ACI-S?
The term'Teasiblei must be defined. The standards for the establishment of
ACL^s must be spelled out in the Permit
There is no mention in the Permit of any necessity for the Permitrce to increase
the reclamation surety to cover ground water remediation when the Permittee is out of
compliance. NRC and State regulations require a surety to cover the costs of
reclamation, including any ground water remediation. This requirement must be included
in the permit
5. Part I, page ?,02 H. 71MPUANCE SCHEDULE RESUIREMENTS. Tlu Permittee
will compiy ii* ttn schedules as described and sumtnarized below:
Commenh Nowhere in the extensive list of Compliance Schedule Requirements is there
*y irquir"ment for the Permittee to respond to the 8-page-November 28, 2001, DRC
neqr".t for Additional Information, regarding December 31, 1998, Knight Piesold
Report on Seepage Flux from Tailings Cell3 Liner, White Mesa Mill.
Division of Radiatio" Jotl
January 7,?frOs
Has the Perminee responded to this RAI? If not, has the DRC notified the
Permittee that they don't have to respond?
It was definitely my understanding, based on colrespondence with the DRC, that a
schedute for the permittee;s longdelayed response to the 2001 request would be part of
the Permit requirements. Is this no longer the case? If so, why?
There must be a full explanation of this situation'
In addition, the DRC must review all previous requests for information and make
a determination that they have all been fully responded to or a schedule for response has
been established in the context of the Permit
6. There is no discussion in the Permit of other types of contamination to ground and
surface water by activities on the land owned by the Permittee at the facility. The
permittee
"oo.rtly allows cattle to graze on some of the mill property. These cattle can
and do access nuin Spring. Ruin Spring is on U.S. Departrnent of Interior, Bureau of
I-and Managemen! p-p"rty that abuts the mill property. The Ruin Spring area is
trampled an-rt contamirut"d by wastes from the c1tle. The spill-overfrom a tank below
the spring (which has not been cleaned in years) feeds a desert riparian area. The spring
is used by wildlife
Does the Permittee have any responsibility for the ruin of Ruin Spring by the
cattle that graze on its mill facility ProPerty?
7. Part I, page 12: D. 5. Definition of I1e.(2) Waste -for purposes of this Permit,
I Ie.(2) wast; is defined as: "... nilings or wcntes Produced by thc extraction or
concentration of uranium or tlwriumfrom any ore processed primari$ for its source
material contert", as defincd in Sec:tion I 1e.(2) ol the U.S. Atomic Energy Act of 1954, as
amended; which irrclud,es othcr process related wastes attd waste slTearns dcscribed fo a
Morch 7,2003 NRC letterlrom Paul H. Lailnus to william J. sinclair.
The March 7,2OO3,NRC letter from Paul H. Iohaus, Director, Office of State
and Tribal Programs, Nuclear Regulatory Commission (NRC) to William J. Sinclair'
Director, Divis'ion of Radiation Cbntrol, (in response to questions in the January 14
z}O3,letter from William Sinclair) states in part
Question4: As alternatefeed rnaterial arrives at tlg White Mesa
facility, it can be soil co-mingled with debris such as concrete,
plastic, a,nd bricls. Tlwse malerials maybe non-uranium bearing-and are "alongfor the ridc' as a result of atry particular
remediation project. Thise materials may be separated at tlu time
of introduction into tle uranium recovery process and eventually
ttisposed of in the tailings impoundments. WouA ilrcse materials be
classified as IIe.(2) byproduct material?
Response: Yes. Thb alternate feed material is regulUed in mass as
ore-; therefore, the material not amenablc to processing, i.e., dcbris
Division "r*t conhol
January 1,2OO5
o 4
associoted with it ilwt must be separated at tlu tirue of uraniwn
,"rou"ry, is a waste fro^ ore pricesstng tlat meets tlw definition
of t Ie-(2) bYProduct maerial
Comment:
There is absolutely no statutory or regulatory basis for the Starc of Utah to
authorize tne processirj of "at rnateieed material'at the IUC mill' There is no
statutory or regulatory basis for the ltate of Utah to include the "process related wastes
and waste ,t "u,,,r" fiom the processing of materials otherttran natural ore ('dternate
feed material') in the statutory and regulatory definition o.f lle'(2) byproduct material'
The Ground watcr Discharge Permit must not authorize the processilg of
..alternate feed material.t' The Ground watcr Discharge Permit must not authorize
the disposal of waste streams from the procelsing of "alternate feed matcrial" as
11e.(2) byproduct material. such authorization is not permitted by any statute or
regulation" ^r- --!-^.Any request by the Permittee for such authorization must be denied'
The following (including Attachment A) are comments that supPort these
statements.
A.TheMarchT,zoo3,NRCletterfromPaulH.t,ohaustoWilliamJ.Sinclairis
not an NRC legal "pirir, *a'h", no legal effect Seelo c.F.R'Part4O' Sec' 40'6'
Interpretations, which states:
Except as specifically authorized by the commissio.n in writing, no
interpretation of the meaning of the regulations in this part by any
officer or employee of the commission other than a written
interpretatio;by tnt C"o"ral Counsel will be recognized to be binding
uPon the Commission'
B. There is no legal basis under and Atomic Energy Act of 1954 (AEA)' as
amended, to consider ro i"tt"d "alternate feed material'and various debris
accompanying ,u.n *terial (at times constitutin g40% of the "alternate feed material")
as "ore," as the term "ore" is used in the definition of l le'(2) byproduct material'
The permit must not include any statement that would imply processing of feed
material other than i"tora ore ("alternate feed material') is the same as the processing of
..any ore," and that the debris, tailings, or wastes from such processing constituJe lle'(2)
byproduct material.
The State of Utah cannot and must not include any reference to the letter from the
March 7,ilOO3,NRC in the Permit
See Attachrnent A hereto for a full discussion and comments on this mater'
C. The permit does not define so-called "alternate feed material." There is no
indication in the Permit that "alternate feed material" is made up of processing wastes
Division of Radiatio, t
January 7,2005
from other mineral processing operations that are commingled with contaminated debris
and soils. Why is there no definition of "alternate feed material" in the Permit.
D. The State of Utah must only rely on the common, historical meaning of the
word "ol€"'
lrd' or tem"'ore"'as defined in several sources:What does "ore" mean? The w<
. "Ore-a naturally occurring solid material from which metal or
other valuabe minerals may be extracted." fillustrated Odord
ry,DKPub'1998'I
. "Ore-A native mineral containing a precious or useful metal in
such quantity and in such chemical combination as to make its
extraction profitable. Also applied to minerals mined for their
content of non-metals." iory,
Second Rlition, oxford university Press, 20(x), p. L22/l:915-916.I
. "Ore-a. A natural mineral compound of the elements of which
one at least is a metal. Applied more loosely to all metaliferous
rock, though it contains the metal in a free state, and occasionally
to the compounds of nonmetallic substances, as sulfur or€. . . . Fay
b. A mineril of sufficient value as to quality and quantity that may
be mined for profit Fay." ta Oictionary of tvtining'
Related Terms, compiled and edited by Paul W. Thrush and Staff
of the Bureau of Mines, U-S. Dept of Interior, 1968'l
The Oxford English Dictionary points out that the current usage of the word 'bre"
go", bu"k ro,.rul t*d[-y""rs. A Iiictionary of Mining. Mineral. and Related Terms
Iirtr or"r 65 compound words using the word "ore," such as ore bin, ore body, ore
deposit, ore distritt, ore geology, ore qrader, ore mineral, ore reserve, ore zotre. All of
thise terms incorporate the word "ore" as it relates to the mining of a native mineral. The
term..ore," without explanation, has for many yearc been used in millions of instances in
thousands of mining, milling, geological, mineralogical, radiochemical, engineering,
environmental, and regulatory publications. "Ore" like the word "water," is a word of
corlmon and extensive usage with a clear and accepted meaning.
The State of Utah must explain what the statutory and regulatory basis is for
calling wastes from other mineral processing operations "ore." A policy, whether federal
or state, is not a statutory or legal basis.
E. In the past, debris associated with the processing oJ "alternate feed material"
has been received at the IUC mill. Thousands of tons of such debris have been disposed
of at the mill. ruC was paid to receive and dispose of this material. Some of the material
was apparently washed (i.e., decontaminated), and the wash water was subsequently
processed for its minimal source material content"
5
Division of Radiation
January 7,2W5
The debris that sometimes accompanies natural ore when it is processed at a
licensed uranium or thorium mill has no economic value to the Iicensee of a uranium or
thorium mill. A mill owner would not pay for or be paid to receive such debris and, in
fact, would pay less for ore contaminated with a lot of debris. However, the licensee will
be paid to receive and dispose of debris accompanying "alternate feed material.' What is
really occurring is that the licensee is getting paid to directly dispose of contaminated (or
decontaminated) low level radioactive waste
There are no similarities between the debris associated with ore mined from the
ground and debris accompanying wastes and contaminated materials from other mineral
processi ng operations.
This debris must have been separated from any material that was going to be
processed at the mill prior to shipping to the mill. This could have been easily
accomplished, but was not because it was in the interest of originator of the waste to get
rid of it, and it was in the interest in the mill operator to get paid for accepting it
The State of Utah is in no way obligated to agree with the NRC on this questiol.
F. The March 7 NRC letter states that "the alternate feed material is regulated in
mass as ore." There is conflicg confusion, and inconsistency in this statement
Who, exactly, regulates alternate feed material as "ore," and what is the basis of
such regulation?
The AEA does not mention "alternate feed material" and it's regulation. I can
find no NRC or EPA regulations related to the regulation of "alternate feed material."
There are no NRC generic or site specific environmental impacts statements related to the
regulation of "alternate feed material" or feed materials other than natural ore.
How can the NRC regulate alternate feed material "in mass as ore" when the NRC
has no statutory or regulatory jurisdiction over "alternate feed material" or uranium and
thorium "orc"?
NRC regulation at l0 C.F.R. $ 40.13 establishes unimportant quantities of source
material that are outside of regulatory concern under the AEA. NRC regulation at
Section 4O.4 states that "source Material mealls: (l) Uranium or thorium, or any
combination thereof, in any physical or chemical form or (2) ores which contain by
weight one-twentieth of one percent (0.05%) or more of: (i) Uranium, (ii) thorium or (iii)
any combination thereof."
Section zl0.l3(b) says that any "ore?'containing source material, whether or not it
meets the definition of source material (i.e., contains uranium and/or thorium of O.O5%
by weight) is exempt from regulation under Part 4O. Section 40.13(b) states:
(b) Any person is exempt from the regulations in this part and from
the requirements for a license set forth in section 62 of the act to the extent
that Such persgn roceives, PosseSSeS, useg, Or tranSferS unrefined and
unprocessed ore containing source material; provided, that except as
authorized in a specific license, such person shall not refine or Process
such ore
6
Division of Radiatio" t
January 7,20015
1
The NRC has exempted "ore," either source material ore (over.05% uranium or
thorium by weight) or non-source material ore (less than.05 7o uranium and/or thorium
by weighti. Th; NRC regulates facilities that process and refine llot":l: under-its
,.gdutlooof 11e.(2) bypioduct material, but it does not regulate "ore" as such'
There is nottring-in the AEA that authorizes the transfer to the State of Utah of
regulatory responsibility over uranium or thorium "ole"'
Thank you for providing this oppornrnity to present comments.
Sincerely,
S*,^/ /7,{*/rU
Sarah M. Fields, Chair
Nuclear Waste Committee
GIen Canyon Group/Sierra CIub
Enclosure: Attachment A
,
Comments on Draft Ground lVater Discharge Permit No. UGVY3700M,
International Uranium (USA) Corporation (IUC) Uranium Mill,
White Mesq Utah.
Attachment A
There is absolutely no statutory or regulatory basis for the State of Utah to
authorize the processing of "alternate feed material" at the IUC mill. There is no
statutory or regulatory basis for the State of Utah to include the "process related wastes
and waste streims,'fiom the processing of materials other than natural ore ("alternate
f""a ,."rial,) in the statutory and regulatory definition of l le.Q) byproduct material.
The Ground Water bischarge Permit must not authorize the processing of
..alternate feed matcrial.r' The Ground Water Discharge Permit must not-allhorize
tn. airporal of waste streams from the processing of "alternate feed materialtt as
11e.(2) byproduct material Such authorization is not permitted by statute or
regulation
Any request by the Permittee for such authorization must be denied-
The followirt-air.6rion of the history of the statutes and regulations applicable
to the processing of ores for their source material content at licensed uranium and
thorium mills will support these statements.
1. Ststutes
A. Uranium Mill Tailings Radiation Control Act of 197E
Uranium Mill Tailings Radiation Control Act of l9?8 (UMTRCA) (Pubtic I-aw
g5-ffi,!,2 Star 3033 et t"q.1,amended the Atomic Energy Act (AEA) of 1954 @ublic
Law g3-703,68 Stat 919 el.seq.). The AEA of 1954 was an amendment to the Atomic
Energy Act of 1946 (Public Law 79-385,60 Star 755 et seq')'
There is no evidence that the AEA, asramended by UMTRCA, anticipated and
sanctioned the processing of feed materials other than natural ores and the disposal of
wastes from such pro".sing at licensed uranium and thorium processing_facilities. There
is no evidence that the AEA gave the Nuclear Regulatory Commission (NRC) or NRC
Agreement States the broad authority to authorize the processing of feed materials other,
than natural ores as nore.' There is no evidence that the AEA gave the NRC and NRC '
Alreement States the broad authority to authorize the disposal of wastes from such
prfuessing at licensed uranium and thorium processing facilities as nl le.(2) byproduct
material."
So-called "alternate feed material" is the wastes, contaminated debris, and
contaminated soils from other mineral processing operations. This material has been
deemed .Teed material other than natural ore." It is not "natural ore." It is not "a[y ore."
aoa, it is not "ore." There is no evidence that UMTRCA sanctioned the processing of
..alternate feed material," as " any ore," at licensed uranium or thorium extraction
t 2Division of Radiation
AttachmentA
January 7,2005
facilities. There is no evidence that under UMTRCA materials other than natural ore
were ever considered to be "ore." There is no evidence that UMTRCA gave any federal
or state agency the discretion alter the definition of "ore" to include materials that are not
natural oie. There is no evidence that UMTRCA gave any federal or state agency the
discretion to alter the definition of "any ore" as that term is used in the definition of
" 1 1e.(2) byproduct material.'
In fact, ttrere is specific evidence that Congress, the Atomic EnergyCommission
(AEC), the NRC, and thi Environmental Protection Agency (EPA) explicitly determined
tnat tt e processing feed material other than natural ore was not sanctioned by applicable
,statute or regulation.
The regulatory history of UMTRCA, found in the two Congressional reports,
provides inforiration rvith respect'uranium mill tailingsn and "ore.! The Congressional
ireports clearly stated what was contemplated by Congress (known as the intent of
Congress) whin Congress established a progftrm for th9 cgntrol of "uranium mill tailings"
fronithe processing Jf "uranium oren at inactive (title I of LIMTRCA) and active (fitle
u of uvri.nCA) uianium and thorium processing facilities. House_Report (Interior and
Insular Affairs Committee) No. 95-1480 (), August 11, ln8, and House Report
(Interstate and Foreign commerce committee) No.95-1480 (ID, september 30, 1978.
Under "Background and Need," HR No. 95-1480 O) states:
Uranium mill tailings are the sandy waste produced by the uranium
ore milling Process. Because only 1 to 5 pounds of useable uranium is
extracted from each 2,000 pounds of ore, tremendous quantities of wastc
are produced as a result of milling operations. These tailings contain
many naturally-occuning hazardous substances, both radioactive and
nonradioactive. . . . As a result of being for all practical Purposes, a
perpetual hazard, uranium mill tailings present the major threat of the
nuclear fuel cYcle.
In its early years, the uranium milling industry was under the
dominant "ont oioithe Federal Government. At that time, uranium was
being produced under Federal Contracts for the Government's Manhattan
Enginiering District and Atomic Energy Commission Program. . . .
The Atomic Energy Commission and its successor, the Nuclear
Regulatory Commission, have retained authority for licensing uranium
mills under the Atomic Energy Act since 1954. [HR No. 95-1480 (l) at
t 1.I
The second House ReporL under "Need for a Remedial Action Program' states:
Uranium mills are a part of the nuclear fuel cycle. They exhact
uranium from ore for eventual use in nuclear weapons and power-pJants,
leaving radioactive sand-like waste-commonly called uranium mill
tailingi-in generally unattended piles. [HR No. 95-1480 Q) at25.l
Division of Radiation tt
Attachment A
January 7,2OOs
B. Atomic Energr Qsmmission and the AEA of 1945
As indicated above, the domestic uranium mining and milling industry was
established at the behest of the Manhattan Engineer District and the AEC. The AEC
regulated uranium mines and uranium processing facilities, established ore buying
,titiorr, and bought ore. Mining and milling of uranium ore was done under contract to
the AEC. AEC purchased uranium ore under the Domestic Uranium Progran
negutations retated to the AEC's uranium procllem_en!qrogram wgry s-etf9$ in
ro-C.f.n. part 60. part @ was deleted from Titlel0 of the Code of Federal Regulations
on March 3,lns,after the establishment of the NRC'
The AEC published a number of circulars related to their Domestic Uranium
hogram that discuss the various types of uranium ores. The Domestic Uranium
nofru. - Ci rcular No. 3 - G uararteed Three Y ear Mini mum Price - Uranium-Bearing
Cariotite-Typ or Roscoelite-Type Ores of the Colorado Plateau Arean (April 9- l%8)
amended 10 C.F.R. Part 60). The Circular states:
.
$ 60.3 Guaranteed three years minimum price for uranium'beuing
carnotite-type or roscoetite-type ores of tle Colorado Plateau-(a)
Guarantee. To stimulate domestic production of uranium-bearing ores of
the Colorado Plateau area, commonly known as carnotite-type or
roscoelite-tyPe ores, and in the interest of the coillmon defense and
security ttre iJnited States Atomic Energy Commission hereby establishes
the guaranteed minimum prices specified in Sch_edule I of this section, for
the delivery of such ores to the Commission, at Monticello, Utah, and
Durango, iolorado, in accordance with the terms of this section during the
three calendar years following its effective data
Note: In $$ 60.1 and60.2(Domestic Uranium Program, Ci-rculap No. I
and 2), the Commission has established guaranteed prices for othgr _
Oomestic uranium.bearing ores, and mechanical concentates, and refined
uranium Products.
Notl'; The term ndomesticn in this section, referring to uranium, uranium-
bearing ores and mechanical concentrates, means such uranium, ores, and
concentrates produced from deposits within the United States, its
territories, possessions and the Canal 7ane.
l0 c.F.R. Part 60-Domestic Uranium Program at $ 60.5(c) states:
Definitions. As used in this section and in $ 60.5(a), the term'buyer'
refers to the U.S. Atomic Energy Commission, or its authorized '
purchasing agent The term 'oren does not include mill tailings or other
mill products. . . . [circular 5, 14 Fed. Reg. 731 (February 18, 1%9).]
Bmphasis added.I
3
Division of Radiation #t,ol
AttachmentA
January 1,20015
It is clear that the AEC was the primary mover il-tt domestic uranium mining
and milling prog*. uro., the Atomic energy Acts of 1946 and lgs4,the AEC
regulated uranium rining and milling ana estaUlished a uranium ore-buying Program'
From the 194O's to f q75,-me regulations in l0 C'F R' Part 60- clearJy discus::d.'oh"'
uranium ore was -J** not ai'd crearry statgd th{ "9ry" did not incrude mill tailings or
other mill products. In other words, "oie" did not incrude materials that had already gone
ilil-h;iinerat proc".sing operation. It did not include materials other than natural
ore.
FromtheverybeginningoftheAEA,theAECwasexplicitaboutwhaturanium
ore was. Ore specifi'c"llil;J;; include tailings, wastes, and productsfrom-mineral
pro."rring opriutiont, Nothing has changed in the use-of the term "ore" in the statutes or
[;ffiffi p"rtuining ro ,t " prLessing oi uranium and thorium ore since that time.
C. Statutory Definition of Source Material
The AEA of lg46,under ,control of Materials," sec. 5 (b), nSource-Materials,n
(1), "Definition,n p-riO$ the definition of "source material.o Section 5(bX1) states:
Definition. - As used in this Act' the term "source materialn means
uranium, thorium, or any other material which is determined by the
Commissio;:;i,li tr," ufiptoral of the President, to be peculiarly essential
to the production of fissionable materials; but includes ores only if they
contain oo" o, more of the foregoing materials in- such concentration as the
Commissionmaybyregulationdeterminefromtimetotime.
TheAEAoflg54,Chapter2,sectionll,"Definitions,nsetsforththecurrent
,tututo.ya.Rnition of "source material n at Sec' ll(s):'
The term ,source materialn means (l) uranium, thorium, or any other
material which is determined by the commission pursuant to the
provisions of section 6l to be source material; or (2) ores containing one
or more ortne foregoing materials, in such concentrations as the
commissio;"y u] r.irrution determine from time to time.
t42 U.S.C- Sec. 2014(z)'I
Responsive to this statutory definition, in llXl the AEC established the following
regulatory definition at l0 C'F R' $ 4O'4:
SourceMaterialmeans:(1)Uraniumorthorium'oranycombination
thereof, in uriprryrical or chemical form or (2) ores which contain by
weight ooe-t*n"nti"th of one percent (O.05?o) or more of: (i) Uranium,
(ii) thorium or (iii) any comblnation thereof. Source material does not
include ,p""iair4ear materi al.126 Fed. Reg. 284 (lan.14, l!)61).J
4
Division of Radiatio, t
AttachmentA
January 7,2005
Therefore, the AEC made a determination, in accordance with the mandate of the
AEA of lgs4,that ores containing O.05Vo thorium and/or uranium would meet the
statutory definition of source material. For materials other than natural ore, only the
uranium and or thorium content (no matter what the concentration) met the statutory
definition of source material. There was a clear differentiation between the two types of
source material.
At the same time that they made that determination, the AEC had a regulation that
clearly stated that noren does notrinclude mill tailings or other mill products. Surely, the
erc, ur the administrator of a uranium ore procurement program-and the developer of
the uianium mining and milling industry knew what they were referring to when they
used the term "ore.-' There was no need to define "org" in the statute or regulations
;;r;;; that term had an unquestionable commonly accepted meaning within the mining
-a *illing industry. It was not part of the new regulatory terminolory' On the other
hand,..sorice material" and "speiial nuclear material" were defined because they were
new regulatory tenns.
The AEC set forth certain exemptions to the regulations in l0 C.F.R. Part 40. The
proposed rule, which was later finalized in January 1961, states in pertinent part:
The following proposed amendment to Part 40 constitutes an over-
all revision of l0 cFR Part 4O, nControl of source Material.n
with certain specified exceptions, the proposed amendment
requires a license for the receipt of title to, and the receip! possession, use,
transfer, import" or export of source material. . . .
Under the proposed amendment, the definition of the term "source
material": is revisid to Uring it into closer conformance with that
contained in the Atomic Energy Act of 1954. nsource Material' is defined
as (l) uranium or thorium, ot "ny combination thereof, in any physical or
ctremicA form, but does not include special nuclear material, or (2) ores
which contain by weight one-twentieth of one percent (0.05 percent) or
more of (a) uranlum, (b) thorium or (c) any combination thereof. The
amendment would exempt from the licensing requirements chemical
mixtures, compounds, solutions or alloys containing less than 9.OS pttt"-+t
source material by weight As a result of this exemption, the change in the
definition of source material is not expected to have any effect on the
licensing program. .. .
Sr.tio, 62 of the Act prohibits the conduct of certain activities
relating to source material 'after removal from its place of deposit in
natureiunless such activities are authorized by license issued by the
Atomic Energy Commission. The Act does not" however, require a
license for the mining of source material, and the proposed regulations, as
in the case of the current regulations, do not require a license for the
conduct of mining activities. Under the present regulation, mingrs are
required to have a license to transfer the source material after it is mined.
Unter the proposed regulation below, the possession and transfer of
Division "r** control
Attachment A
January 7,20015
6
unrefined and unprocessed ores containing source material would be
exempted. [47 Fed. Reg. 8619 (September7,1960)'l
Here, the regulation makes clear that "source material ore" is something that has
been removed from its place of deposit in nature." It is something that is mined from the
ground by miners.
T-herefore, the AEC established, via a rulemaking, exemptions for source material,
as defined in Sec. 2}la{40), related to mixtures, compounds, solutions, or alloys
containing uranium and/or thorium:
(a) Any person is exempt from the regulations in this part and from
ttre requirements for a license set forth in section 62 of the Act to the
extent that such person receives, possesses, uses, transfers or delivers
source material in any chemical mixture, compound, solution, or alloy in
which the source material is by weight less than one-twentieth of L percent
(0.05 percent) of the mixture, compound, solutiol,ot alloy' The
"*r-ptio, contained in this paragraph does not include byproduct materid
as defined in this part. [10 c.F.R. $ 4O.13(a), 26Fed. Reg.284 (Jan. 14
1%l).I
The AEC also established, via a rulemaking, exemptions for source material, as
defined in Sec. z0{a{z)@). related to nore':
(b) Any person is exempt from the regulations in this part and from
the requirements for a license set forth in section 62 of the act to the
extent that Such person receives, pgssesseg, uses, Or tranSferS
unrefined and unprocessed ore containing source material; provided,
that, except as authorized in a specific license, such person shall not
refine or process such ore. tlo c.F.R. 40.13(b), ?.6Fed. Reg. 284 (Jan. 14
l%1).I
The definition of nsource material" and the exemptions that are relarcd to those
definitions stand today, over forty years later. These regulatory definitions and
exemptions did not change when the NRC was esublished in 1Il5 and took on the
regulatory responsibility for'source material.' These regulatory definitions and
exlmptions dih not change when the AEA was amended by UMTRCA in 198. These
regulations and definitions did not change when the NRC developed their policy
g,idun""r related to the processing of feed material other than natural ore at licensed
iranium recovery oPerations.
Alternate feed material that contains uranium and thorium contains "source
material" under the first definition of "source material." However, it is not "source
material" under the second definition, because it is not "ore" under the applicable statuGs
and regulations.
Division of Radiation #ot
Attachment A
January 7,2N5 .
D. Definition of lle.Q) byproduct material.
UMTRCA, among other things, amended the AEA of 1954 by adding a new
definition-the definition of l1e.(2) byproduct material:
Sec. 201. Section l le. of the Atomic Energy Act of 1954, is
amended to read as follows:
ne. The term'byproduct material'means (1) any radioactive
material (except special nuclear material) yielded in or made radioactive
by exposure to tne radiation incident to the Process of producing or-
uiiliring special nuclear material, and (2) the tailings or wastes produced
by the extraction or concentration of uranium or thorium from any ore
pio.essed primarily for its source material content" [42 U.S.C. Sec- 2014
(e).I
There is no evidence in the regulatory history of UMTRCA that Congress, in
defining ,l le.(2) byproduct material' intended to also amend the statutory definition of
nsource-material.n -th.
"uny ore" in the definition of l1e.(2) byproduct material is 1)
ores which contain by weight one-twentieth of one percent (0.05%) or more of: (i)
uranium,(ii) thoriumtr (iii) any combination thereof (source material); and 2) ores which
contain less than by weight one-twentieth of one percent (O.O5%) or more of: (i)
uranium,(ii) thorium or (iii) any combination thereof. If the term "any or€" was meant to
include materials other than "ore" in the definition of "any ore," the result would be an
amendment to the definition of "source material." There was no such amendment to the
statutory definition of "source material."
There is no evidence in the regulatory history of UMTRCA that the term nany
ore" does not mean "any Upe of uranium ore" (i.e., ore corrtaining less than .05%
uranium and/or thorium ana tne numerous types of natural uranium-bearing minerals that
are mined at uranium mines and milled at uranium mills)'
There is no evidence in the regulatory history of UMTRCA that Congress
intended the term 'any oren to mean anything that the NRC or an Agreement State
wanted it to mean. There is no evidence that UMTRCA intended that "ore" included
wastes from mineraiprocessing operations mixed with wastes and debris fiom other
sources, even if those wastes were processed for their source material content at a
Iicensed uranium or thorium mill.
2. NRC Regulations
A. Mandate of UMTRCA
UMTRCA required that the EPA and the NRC promulgate rules and regulations
implementing the statute.
Bothihe EpA and the NRC established a regulatory program for uranium milling
and the processing of ores. Neither the EPA nor the NRC contemplated the processing of
Division of Radiation t*oo
Attachment A
January 7,2005
materials that were not 'natural ore" when they developed and promulgated their
regulations , -^-^^- 4-^- ^+L^- -i-o-l nr.----:--
Neither the EpA nor the NRC considered wastes from other mineral processing
operations in their .o*.p, of "ore,n and they did not address in any manner the
processing of such;d when promulgating their regulatory regimes for active uranium
processing facilities.
Further,duringthevariousrulemakingproceedings,thepublicwTnevef
informed that wastes irom other mineral processing operations, no matter how they were
defined, would U" p*".tJui trc"nt"O uranium oi thoriu. mills' Therefore the public
was given aUsotutety no opporturrity to coilrment on such processing activities at licensed
uranium or thorium facilities'
The public t urn"r", been given this opportunity in any NRC, EPA, or State of
Utah rulemaking Proceeding'
B. NRC Regulatory Prograq, 10 C'F R' Part 40
Responsive to UMTRCA'the !'{RC incorporated the UMTRCA definition of
lte.(2) byproduct -""ri[f*ith clarification) inio their regulations at 10 C'F R $ 4O'4:
,,Byproduct Materialn means the tailings or wastes produced by the
extraction or concentration of uranium or thorium from any ore processed
primarity f* iJtorr"e material content' including disg-etg surface:vastes
resulting from uranium solution extraction Processes' Underground ore
bodies d"pl;;Jt, such solution extraction operations do not constitute
;UVpLJr[, -"t"ria, within this definiti on. 144 Fed. Reg. 50012-50014
(August 24,lng)]
TheNRCalsoexplainedtheneedforthenewdefinition:
section 40.4 0f l0 cFR Part 40 is amended to include a new
I definition oi:'UyptoOo"i material." This amendment, which included
uraniumandthoriummilltailingsasbyproductmateriallicensablebythe
Commissioi, ir i"luit"d by theiecently enacted Uranium Mill Tailings
Radiation C;;"i L"t tU p"d. Reg. SOO t Z-SOO 14 (August 24, 197 9'l
The NRC promulgated further regulationsamending Part 40' in 1980' In the
Federal Register Notice fEnU sunrmary' the NRC states:
TheU.S.NuclearRegulatoryCommissionisamendingia
,rgutudo;, to rft"ify licensiig requirements for uranium and thorium
milling u.tir-itiJt, inctuaing taitingi and wastes generated from these
activities. The amendments to puttt 4O and 150 take intO account the
conclusions reached in a final generic environmental impact statem€nt on
uranium ,1iinJ ura the requirements mandated in the Uranium Mill
_o
Division or n"froo Control
AttachmentA
January 7,2fr05
Tailings Radiation Control Act of lnl,as amendelp,!1,^.."1Y:'11
receivid on a draft generic environmental impact stalement on urailum
milling,andpubliccommentsreceivedoop'oposedrulespuutrglg!inthe
FederalRegister.[Footnotesomitted.]1+srea.Reg.6552165538
(Octotrer 3, 1980)'I
There is no statement in any of the NRC regulations in 10 C'F R Part 40 or in any
of rulemaking pr*t.airg, proruigating those regulations that, under any circumstances'
wastes from other.io"tuf pro""tting oi"rutioot ian be considered to be 'ore'' There is
no statement that, under any circumstances, such wastes would be processedat licensed
uranium or thorium-rrffft .ia the tailings or wastes o'otq be disposed of as llc'(2)
byproduct material i;;; mill tailings iirpoundm.rF.- The regulations promulgated by
the NRC and the gPA aia not conte.irplaie this kind of mill processing activity'
The National Environmental policy Act ('NEPA'!) document in support of the
promulgation of the NRC regulatory progi"* for uraniummills did not contemplate this
kind of uranium or ,t orirrn irilling "itiri-ty. lr-ttt" rulemaking proceedings and NEPA
proceeding the public did not have an opportunity to contemplate and comment on this
kind of mineral pr*"tting activity at liiinsed uranium or thorium mills'
C. Thc Final Generic Environmental Impact Statement on Uranil6lltilling
In developing and adopting Part 4O regulations, th9. NRC relied upon the Final
Generic Environmental Impact Statement on iJranium Milling ('GEIS*), NUREC;{}706'
September 1980. fl;GEI'S makes a.c.lear statement regarding the scope of the GEIS and
itr unO"ttt^rding of what uranium milling entails:
As stated in the NRC Federal Register Notice (42 FR 13874) on
tt " propor"d ,.op. una outline for this study' conventional uranium
milling operations in both Agreement and Non-Agreement States, are
evaluated op a,rrt year 2000. conventional uranium milling as used
herein ,.r"rl ;; ,h; irittirg of ore mined primarily for the recovery of
uranium. It involves the processes of crushing, grindin$, and leaching of
the ore, roriotn"Juy chemical separation and concentration of uranium'
NonconventionalrecoveryProcessesincludeinsituextractionorol€
L"ii"r, f"r"t ing ofuonium-ricn tailings piles, and extraction of uranium
from mine water and wet-process ptroslpnbric acid. These Processes arc
described to u tirrrit"A extent, for compieteness. [GEIS, Volume I, at 3']
The GEIS is very clear about what it considers ]-9re'to be and gives no indication
whatsoever that materials other than ore, such as the tailings or waste from mineral
;;;;;ilopr*ti"rr iincluding debris, commingled contaminated soils and waste
materials from ott eitourt"t) aie considered to be nore'n The processing of 'talternate
9
Division of Radiation
Attachment A
January 7,20[15
feed material" was not mentioned in the discussion of "nonconventional recovery
proceses" in the GEIS.
The GEIS includes a discussion of "Past Production Methods.n That discussion
makes reference tO "ore,n "ore exploration,' "pitchblende ore," "crude Ore milling
processes," "lower-grade ores,n "uraniUm-bearing gold oreS," "high-grade Or€S,n ttore-
[uying stations,n and "ore reserves.n GEIS, Volume I, Chapter 2, at}-l to 2-2. There is
a lingthy discussion of "Uranium Mining and Milling Operationsn that provides a
aesciption of the commonly and less-commonly "used methods of mining uranium
ores." GEIS, Volume II, at B-l to B-2. Appendix l.
In Chapter 6, "Environmental Impacts," there is a discussion of nExposure to
Uranium Ore Dus!" which states, in part
Uranium ore dust in crushing and grinding areas of mitls contains natural
u rani um (lJ -238, lJ -23 5, thori u m-23 0, rad i u m- 226, lead-2| 0, and
polonium-2|0) as the important radionuclides. [GEIS, Volume I, at 641.]
There is also a table giving the'Average Occupational Internal Dose due to
Inhalation of Ore Dust.n GEIS at64l,Table 6.16. Further, the GEIS discusses
"shipment of Ore to the Mill'(GEIS at7-ll), "Sprinkling or Wening of Ore Stockpilen
(GEiS at82), "Ore Storagen and "Ore Crushing and Grinding" (GEIS at 86), 'Ore Pad
and Grinding, (GEIS, Voi. 3, atG-2), nOre Warehouse (GEIS, Vol. 3, at K-3) and
"Alternatives to Conffol Dust from Ore Handling, Crushing, and Grinding Operations
(GEIS, Vol. III, at K-3 to K-3). In the NRC responses to commenB there are discussions
of nAverage ore Grade, uranium Recovery." GEIS, Vol. IL atA-12 to A-13.
Nowhere in these discussions of "ore" was it stated that materials other than
natural ore were thought to be a type of "ore" and the processing of such materials would
be addressed in the environmental review
The GEIS did not consider the processing of alternate feed material, of whatever
source and kind. The GEIS gives no indication whatsoever that such wastes are noIE,"
even if they were processed at a uranium or thorium recovery facility for their "source
material contenL" Clearly, the GEIS did not contemplate a situation where wastes from
the processing of feed material other than natural ore would meet the definition of 1le.(2)
byproduct material.
Therefore, the GEIS did not evaluate, and the public did not have an opPorftnity
to comment upon, any of the possible health, safety, and environmental impacts of the
processing of other mineral processing wastes at uranium or thorium processing facilities.
ihrrr tnas no evaluation of the transportation issues related to the transportation of such
wastes, nor were reasonable alternatives to the transportation, receipt, processing, and
disposal of such wastes at uranium or thorium mills ever evaluated.
The NRC has never supplemented the GEIS to include an environmental
assessment of the processing of alternate feed materials. The NRC has never required a
site-specific Environmental Impact Statement for any uranium mill, including the
permittee's mill, that evaluated the environmental impacts associated with the processing
of "alternate feed material" at the mill. Most of the "alternate feed material" (including
10
Division of Radiation #trd
Attachment A
January 1,2005
large amounts of debris) processed at the Permittee's uranium mill was received,
fr&"*ra, and disposrj il tnitlrort ury t * of trritor.trtul tt,itto *hutto""t'
3. EPA RegulatorY Standards
A. Mandate of IIMTRCA
LJMTRCA directed the EPA to establish standards for uranium mill tailings and
directed the NRC to implement those standards. That statute, as codifiedin42 U'S'C'
z\zz,states in Pertinent Part
Sec.Zo2L.Health and environmental standards for uranium mill tailings
(b) Promulgation andrevision of rules for protection from hazards at
(l) As rooo u, practicable, but not later than october 31, 1982, the
Administrat- tnat, by rule, propose, and within ll months thereafter
promulgate in final form, standards of general application for the
protection of the public health, safety, and the environment from
iadiological and nonradiological hazards associated with the processing
and with the possession, transfer, and disposal of byprodyct material, as
defined in section 2}la{d2) of this title, at sites at which ores are
Eocessed primarily for iheir source material content or which are used for
ifr" airpor4 of ru"i, byproduct material. . . . [Ernphasis added.]
Requirementslstablished by the Coqrlission under this chapter
with respect to byproduct material as defined in-section ?-Ol(eXz) of this
title shall conform to such standards. Any requirements adopted -tJ th:
Commission respecting such byproduct material before promulgation by
the Commission of rr.h rtund*ds shall be amended as the Commission
deems necessary to conform to such standards in the same manner as
provided in subiection (fX3) of this section. Nothing in this subsection
shall be construed to prohibit or suspend the implementation or
,Jor"r.rrt by the Cbmmission of any requirement of the Commission
respecting byproduct material as defined in section ?.O,4(eXZ) of this title
prnaiog promutgation by the Commission of any such standard of general
application. tn JstaUtist iog such standards, the Admidstrator shall
consider the risk to the puUlic health, safety, and the environment, the
environmental and economic costs of applying such standards, and such
other factors as the Administrator determines to be appropriate'
**tr
(d) Federal and State implementation and enforcement of thg standards
promulgated pursuant to subsection (b) of this seclon shall be the
i.rponrlUitityof the Commission in the conduct of its licensing activities
under this chapter. States exercising authority Pursuant to section
z}Zl(b)(Z)of tllis title shall implement and enforce such standards in
11
t2
AttachmentA
January 7,2C[l5
accordance with subsection (o) of such section. [42 U.S.C' 2O22(b) ail
(d).I
Congress directed the EpA only to establish standards for "sites at which ores are
processed pimarily for their source material." The EPA, as mandated by LJMTRCA'
hndized the "Environmental Standards for Uranium and Thorium Mill Tailings at
Licensed Commercial hocessing Sites'in 1983.48 Fed. Reg.45925459/f,,Oclrober7^,
19g3. In the "Summury of Back-ground Information" the EPA provides a discussion of
"The Uranium Industry" (i.e., the industry that the regulations apply tQ:
Themajordepositsofhigh-gradeuraniumoresinjteunij{sgT::*
located in the
^Colorado Plateau, the Wyoming Basins, and the Gulf Coast
Plain of Texas. Most ore is mined by either undergrgund,or onen;n_ tt
methods. At the mill the ore is first crushed, blended, and ground to
proper size for the leaching process which extracts uraniutn ' ' ' After
uruniu, is leached from thaore it is concentrated ' ' ' ' The depleted orc,
in the form of tailings, is pumped to a tailings pile as a slurry mixed with
water.
Since the uranium content of ore averages only about 0'15 percent,
essentially all the bulk or ore mined and processed is contained in the
tailings. i+S ftJ. Reg. 45925 ,45yn ,October 7,1983]
Clearly, when the EPA developed its standards for uranium and thorium mills,
they stated, *rlth specificity and particutarity, what uranirlm ore was, what uranium
miiting consisted 6r, "na
ihat uranium mili tailings consisted of. The EPA clearly stat*
that the standards applied to the processing of uranium and thorium ores at uranium and
thorium mills. Th# is no reasoiable eviJ'ence that would indicate that the standards
fromulgated by the EPA applied to tfre_ processing_ of.wastes from other mineral
iro".rrlng operations at ur'anium and thorium mills (i.e., alternate feed material).' eaaitionally, the EPA incorporated UMTRCA's definition of 11e.(2) byproduct
material, as clarifi#by the NRC in10 C.F.R.40.4, into their standards at40 C-F.R
Subpart b, $ f g2.f ioi. Since thar timg the EPA has not amended their definition of
t f eiZ) bypioduct ,nupri4 in a rulemaking proceeding, nor have they amended their
definition via policy guidance. The EpA hal not, in any manoer, widened the use of the
words nany orl', toirlorar any type of mineral processing wastes that is currently termed
"alternate feed material."
As will be discussed below, the EPA did not sanction the NRC's policy guidance
with respect new definitions of "oren and I le.(2) byproduct material'
tlearly, the EPA, as directed by Congress, has not in any manner contemplated
the processini of wastes from other mineral extraction operations at uranium or ttrorium
mills when establishing the "Environmental Standards for Uranium and Thorium Mill
Tailings at Licensed Commercial Processing Sites'n
*,13Division of Radiation
Attachment A
January 7,2005
B. EPA Regutations
When compiling that list of hazardous materials and incorporating that list into
40 C.F.R. partli,the-EpA did not in any manner contemplate the processin-8 of wastes
fr;;;h;.mir"ral'e*taction operations at the mills for which they were establishing
standards. The EpA did not address in any manner effluents that might result from the
processing of feed materials that were the tailings and other processing wastes from other
mineral extraction facilities .
In the various rulemaking proceedings that have taken place for the establishment
of the EpA standards, the public was given no opportunity to consider or corlment on the
possibility that the EPA standards would also apply to the processing of wastes from
ittrer mineral processing operations (including commingled debris, soils, and waste
materials from other sources) at uranium and thorium mills.
It is true that the EPA and the NRC, in establishing their regulatory program'
contemplated the processing of ores at uranium and thorium mills. However, as shown
above, irocessing of wastes from other mineral processing operatiglt I uranium and
thorium mills was beyond the scope of the regulatory program established by the NRC
and the EPA in resPonse to UMTRCA'
Furthermorr, iO C-f-n. Part 40, Appendix A, Criterion 8, states in part
Uranium and thorium byproduct materials must be managed s9 xs !o
conform to the applicabii provisions of Title 40 of the Code of Federal
Regulations, Part 44O, 'Ore Mining and Dressing Point Source Category:
Effluent Limitations Guidelines and New Source Performance Standards,
subpart c, uranium, Radium, and vanadium ores Subcategory,tr as
codified on JanuarY l, 1983'
There is no indication that these regulations applying to "ore" also apaly to
.,alternate feed material." There is no evidence that "alternate feed material" was
considered to be some new type of "ore"'------ iil is no indication that this NRC regulation and the regulation in 40 C.F.R.
part44Liuna,fr. enabling statute) have in any manner bien amended or alrcred by
,r6r"qrrrt NRC poticy g-ria*"t. Tt"rtfot", any shift in the usage of the wold 'ot€n
would confli.t roittr tt.rJ rt totory and regulatory authorities with respect this regulation.
3. Regulatory History of NRC's Atternate Feed Guidance
A. In the larc l9g0's the NRC was faced with a few requests to Process material other
than ore. At that time, and today, there are two statutes or regulations (implementing
those statues) that are pertinent. First is the statutory definition of nsource materialT
established in l954Uy ttre AEA, found at 42 U.S.C. Sec. 2014(z), and in the NRC
,.lotutory definition Lf "rorr.. materialn (established in l!)61 pursuant Sec. 2014(z))'
found at 10 C.F.R 4O.4:
Division "r*t control
Attachment A
January 7,2005
Source Materiat means: (l) Uranium or thorium' or any combination
thereof, in any physical or chemical form or (2) ores which contain by
weight one-twentieth of one percent (0.05Vo) or more of: (i) Uranium,
(ii) thorium or (iii) any combination thereof. Source material does not
include special nuclear material.
The second is the definition of 'byproduct material" in Section l1(e)(2) of the
Atomic Energy Actof lgs4,as amended, (42 U.S. C Sec. z}la{dp)) and the regulatory
definition of 'byproduct materialn found in 10 C.F.R.4O.4:
Byproduct Material means the tailings or wastes produce.d by the
extaction or concentration of uranium or thorium from any ore processed
primarily for its source material content, including discrete surface wastes
iesulting from uranium solution extraction processes. Underground ore
bodies depleted by such solution extraction operations do not constitute
"byproduct material" within this definition.
The NRC had several options, including the denial of the amendment requests.
One option would have been to go to Congress and request that Congfess change the
definition of 1le.(2) byproduct material. NRC Staff made a determination that they
would not go to Congress to seek an amendment to the AEA of 1954.
Inslead, what the NRC did was to manipulate the use of the word " any oren as it
is used in the definition of lle.(2) byproduct material. NRC proposed in a notice and
comment proceeding, that a policy guidance be established for the purpose of interpreting
the term nore,n as itis used in the definition of lle.(2) byproduct material. "Revised
Guidance on Disposal of Non-Atomic Energy Act of 1954, Section l1e.(2) Byproduct
Material in Tailings Impoundments" and "Position and Guidance on the Use of Uranium
Mill Feed Materials Other Than Natural Ores," 57 Fed. Reg. 2055 (May 13,1992).
The NRC did not institute a rulemaking proceeding to amend 10 C.F.R Part 40.
The Final Position and Guidance gave a new definition of ore. "Final Position
and Guidance on the Use of Uranium Mill Feed Materials Other than Natural Ores." 60
Fed. Reg. 4g2g6(September Xi,lD5). "Interim Position and Guidanoe on the Use of
Uraniuri Mill Feed Material Other than Natural Ores," Regulatory Issue Summary (RIS)
2A0O-23 (November 30,2000). The new definition states:
Ore is a natural or native matter that may be mined and treated for the
extraction or any of its constituents or any other matter from which source
material is extracted in a licensed uranium or thorium mill. [60 Fed Reg.
at 49,296 (SePtembe r 22, 1995).7
Based on the new use of tbe term "ore' as put forth in the proposed guidance, not
only would the definition of lle.(2) byproduct material apply to nany ore processed
primarily for its source material content" in a licensed uranium or thorium mill, but the
t4
Division of Radiatio, t
Attachment A
January 7,2OO5
definition of 1le.(2) byproduct material would also apply to any materiAl (particularly
wastes from vario6 #n.ra extraction operations and various commingled wastes and
J"Urirl processed primarily for itslor.ce material content in a licensed uranium or
;;ffi"fu[. In "ih";*oidr, NRc altered the accepted meaning of the word 'oren as
that word ore was used in statutory definitions
B. On May 14, \W2,NRC Statr, s-ent a letterto the EPA, enclosing a copyof the May
il propor.a rules ani requested EPA comment on two proPosed guidance documents
and their associated.t"f *ufyses. Irtter from Robert M' Bernero' Director' Office of
N;;il Material sJ"ry *o dafgelaras, NRC, to Sylvia K' Lowrance, Drector' office
of Solid Waste, EPA, MaY 14, lWL
The EPA did not submit comments on the proposed po|icy glidP"::. The only
documentation of fp,q;t rrrporr" to that request for comment is quoted lefow and is
found in the Co*rrlir.ioo fup"t that forwaiied the finalized guidances to the
Commission for their aPProvaln
There was an issue that delayed finalization of the guidance - - -
documents. t, * october lgg2,mixed waste meeting between the NRC,
the EPA, and DOE staff, EPA identified potential inconsistencies in
NRC's int"tpt"tution of the definition of source material in conjunction
with the exclusion of source material from the definition of solid waste in
the Resource conservation and Recovery Act (RCRA)- In making its
;;il;pA .i6a ,n. May 13, lry2,Fediral Registpr roti:9 on ttredisposal
of non-l1e.121 Uyproauct material. The staff had delayed finalization of
the uranium;;;J",y policy guidance documents, pending resolutionof
the source material ith*tio, issue. However, the staff has now decided
that these two policy guidance documents can be finalized, independent of
the source maierial itJr", because the guidance is'not dependent ol the
ir,"rp*",ion of the definition of source material. ["Final 'Revised - -
Guidance "n OitpotA of Non-Atomic Energy Act 9f 1954, Section lle'(2)
ByproductMaterialinTailingslmpoundm:lE'*gFinal'Positionand
Guidance on ,h" Use of Uranium tr{ill feea Materials Other Than Natural
Ores,'n SECY-95-221, Artgrtst 15' 1995'I
The proposed position and Guidance and the Final Position and Guidance gave no
indication that the NRC rnm amending, interpreting, or-i1 any manner adjusting the
".".p"4 meaning of the term 'ore" asthat wbrd is used in the statutory and regulatory
definition of ,,source material." Nor was there any discussion in the various guidances
related to the processing of material other than natural 9re.(i'e,, material- $lt it not ore at
all) of how the rr".ptiirs set forth in l0 C.F.R. $ao.l3(a) and (b) would be impacted by
gri*"*er n"rn O.f,nitionof "ore.] There is no. indication that the "source material
definition issuen has ever been appropriatery addressed or resorved. It is an issue that has
Iaininsomeprettymurkyregulatorywatersforquitesometime.
15
Division of Radiation #trol
Attachment A
January 1,2005
That question is: Does the new use of the term nore," putforth inttre Enal
Position and Guidance, affect in any manner the definition of nsource material"
established in the Atomic Energy Act of 1954 or affect the exemptions set forth in
$ O.l3(a) and (b)? 6 <^t, -)It is plain from the Atomic Energy Aclo{.1?t6 and the legislative history of the
AEA of 1954 andthe Uranium Mill rail-ings Radiation control Act of 1978 and the
regulatory history of the AEC, EPA, and N-RC rules promulgated responsive to those
laws, that the Policy Guidance's new use of the termioren goes far beyond the accepted
meaning of that t # unO the clear intent of Congress. Therefore, rypC and the State of
Utah cannot make o* of the new definition of n6re' to claim that any alternate feed
material is "ore" oii.orrrc material ore* or to claim that the wastel groduryd from the
processingofthatmaterialmeetsthestatutorydefinitionof,lle.(2)byproductmaterial.n
The applicability of various eavironriental regulations to a great degree depends
upon definitions. C"rgtttt, in their l"'gislative function, often specifically defines words
;ilr"*. related ;;h; application of a statute to a particular material or
circumstan""r-rnn4 th# is a need for explanation' -However, when using words or
tenns with a common and long accept; *"*ing, such as groundwater' mill' tailings' or
"ore," no explanation or definition is necessary
TheNRCandtheStateofUtahisnotauthorizedtoshifttheseaccepted
definitions at witl ". * "*pttssion
of their "regulatory flexibiliu'' lrjs js especially so
when such shifts r*Jii, airect conflicts with NRC'S own enabling statutes and
regulations, as is the case with the use of the newly defined term "ore'* Additionally'
NRC and State of U"h it not authorized to shift dlfiniti.ons at will when such shifts
directly conflict *itt, ,t " statutory authority and regulations of another federal agency' in
this case, the EPA.
4. LMTRCA and the AEA
UMTRCA,asitamendstheAEA,clearlyspecifiedwhatconstitutesnanyore.n
what constitutes nany oren is ,,any ore.n it does noi incrude material "other than natural
ore." The plain language of the Act and the history of th: implementation of the Atomic
Energy Act of l*;;;;endedty the Atomic Energy Act of 1954 and the Uranium
Mill Tailings Act oi tg?g, is all that is needed to determine what nore'or'any oren is'
As discussea uUove, "i"JV the legislative and regulatory history of the AEA and Title 10
of the code of Federal Regulationi make plan the meaning of the term 'oren and the term
nany ore.tt
5. Conclusion
No federal agency or state agency can !s: a permit or a policy Suidance to expand
upon and ,rurturtiiEly ,i*,1r9 explicit will of Congress when that will is explicitly set
forth in stature. rtre State of utah
-does not have the,discretion to use this Ground water
Discharge permit io *Urtuntively alter the statutory definition of "source materialn or the
roiu,o.i aefinition of I le'(2) byproduct material'
16
Division of Radiation t
Attachment A
January 7,20fJl5
None of the federal and State of Utah statutes and regulations pertairung to the
regulation of ground and surface water at the Permitteels uranium recovery facility were
primulgated Jontemplating the disposal of debris and wastes from the processing of feed
materiJs other than nut*J ore. The receipt, processing, and disposal of these materials
,n", nrr", addressed in the original White Mesa Mill Environmental Statement or any
subsequent EIS suPPlement
There is no ividence that the Permittee' mill tailings impoundments were
designed and constructed to receive the debris and wastes from the processing of feed
matJrials other than natural ore.
Therefore, the Ground Water Discharge Permit must not in any manner authorize
the acceptance, processing, and disposal of materials other than natural ore at the facility
coveredby the iermit Such authorization is outside the scope of the enabling statutes
and regulations for licensed uranium recovery facilities.
l7
Sarah M. Fields, Chair
Nuclear Waste Committee
Glen Canyon GrouP/Sierra Club
From: l'lvan Weber" <ivan@webersustain'com>
To: <lmorton@utah'gov>
Date:
Subiect:
Dear Mr; Morton:
1nrci 4:59PM
OiounO water discharge permit, IUC White Mesa Mill
please forgive the last-minute nature of my attempt to comment,.however briefly, on the draft GWP lor
IUGAA/hite Mesa, n""iEi"nOing, Ut"n. n i-s important, howevet,.for citizens of Utah to note the
signiricance or DRC,s a-s*rpii6n=oi reguratgrr'primacy'- over ruc operations and facilities, and for us to
observe the thoroughness attempted in tne stltiment or Basis, supporting documents and in the draft
Ground water oiscnaii! peimit, itserr. ns onl *no n"r particpated in earlier rounds of proceedings and
reviews in IUC ,rqr"riiiorlatternate teed' ffiitJ uno.ei NRG'in lormer years, I am very gratified that the
state ol utah has embraced this task serioJsty, as evidenced by the substance and detail of the draft
May I please echo the critique submitted by Ms. Sarah Fields, and incorporate it by relerence into my own
reflections. ln Particular:
a.. I share ner appretnsion, expressed in herquestioning.of the meaning ol "infeasible' DMT as
rationale lor rUc suomittaroi ialternative DMi td the Exec'utive secretary of DRc.(page 20 0f draft
permit, 4. ,,Facility oriol-corfiian." statuJ...," e. "where it.is in easible to reestablish DMT"'")' This
appears to be a foopntfe ot mignituOe proportional to the holes we suspect to exist in the cells' liner
systems. please tignien this alr;wance'oybltining terms rigorously, il not by eliminating 4'e altogether'
b.. Also on page zo,-unoei-n. ,compliance-scne-oure neqJirements," t join Ms. Fields in incredulity that
luc has been alowed not to respond to the l.iovember 28, 2001 DBc Request for Additional lnformation'
At the time, the nnl was rearoniotr, legitimate and compietely necessary. lt remains reasonable,
legitimate ano comppiJy;;.rG"ry in-oroeito froceed witn State ol Utah regulatory authority' whether
negtect, inadvertent;;;"ighi;i "t"ltnt" "ont"rpt for authority, this IUC failure is an outrage' warranting
draconian response "iin"-ortr"t of stite "ri"rtidn ol control over waters of the US delegated to state
administration. eitnei ti]c rr.t respond.seiiously to the 200'l RAI according to a stipulated schedule, or
ruc shourd suspend ;;"ii";;. inis poini@is grounds for a formar request for a hearing, which I
herebysubmit."'"-^:-.^.^..,::^\i;;l;'r^d ;etretably cursory review ol the, Statement of Basis atlords considerable co
permit,s comprehens[-n oiih" *oeful inadequ"tY of pio""ss. cell liner technology' relative to :
,best-available,tiners riow. tni".t, the originil liners were not'BAT'in the early'80s when the cells were
built, though tn"y *"r"ln'ine tn"oieticar ringe of common practice. As indicated in my previous review ol
liner design, .onrtrr.iion "nO
On,OC (or lacl thereof), submitted with Sierra Club Glen Canyon Group
comments in mid-2002, it is my considered view as an environmental technology professional that the
careless nature or rub-tonstruction procedures, particularly.choice of bedding and cover soil materials ..'
which were anything Ori;."n0,'as 6viOenceO ny pnotog.rains taXen during construction and included in
luc and consultanuclnir"Joil"forts in tne onb'recori -- doomed allol these liners to failure before
they were "r"n "orpirteO.
penitrations ol relatively weak liner membranes by angular rocks was
inevitabre, and has probabry resurted in progreisive ieakage through tears of varying size and orientation.
It is encouraging to ,"aotnit HDpE rinei mlterial technoldgy are reaching lUC, and especially that DRC is
imposing u*"r"n"rr?ii"i"-or-tnr-"rt rineis on the white-Mesa Mill lacility. The sooner these cells are
shut down and reptacid w1h redundant, caretuty designed, constructed, field-tested, and QA/QC
documented riner systems, compremented by stiategidhead reduction and monitoring systems, the better'
For this lacility to r,urr-L'"-"n in r'.ir", a[owint such ex-tremely aggressive and highly contaminated process
lluids to circulate and reside in these potori cells, is unconicionable' Continued use ol these
anachronistic cels must stop as quickry m-por.i6rr, parsing or "inreasibre" notwithstanding. This, too, is
cause for requesting a hearing'
As a poinl of inquiry, we wonder what and when will be the implications ol recent state implementation of
,swAP,u the source water Assessment and Protection' Plan, pursuant to safe Drinking water Act
Amendments of 1996, and subsequent adaftation into. Utah Code. As a member ol the SWAP Advisory
committee in 19gg-9i,];ffi;l*"r" ot t'ne comprehensive nature ol swAP's simultaneous protection
ol wellheads, surlace water and emerging ground watqr. lt seems obvious to.this observer that there are
inevitable effects or pasi IUC ground frater-contamination, most of which could easily escape (and
;;6Jth* oone) ine ratneiparhetic. moniroring on the facility heretofore. For the sake ol neighboring
Eo,,...mr'nities and iiolateJ native populations, as well as lor area wildlife, allthat can be done to answer
tne tuestion, ,what r- go;ronlzi ano to see to it that these laults are investigated, characterized and
remediated scientifically, should be done without delay'
Alltold, congratulations are due to Executive Director Nielson, DRC and particularly to.You, Mr. Morton, for
in, intdnt aid effect or tniJp.rrit. lt is a very positive step, desperately needed for-a long, long time.
Now it's time to foilow through, firmly and resbiutely. we hope that you will indulge [y{!9r_comments as
opportunity presents to reviiw'the complex, exteniive and generally thorough Permit, SOB and supporting
ob[rr"nti *itnin ,p.o1ninj oryr. As you inow, we ordinary citizens struggle to make time and create
information access. rnJ ohc websiteis preseniation of keydocuments here has been exremely helpfut.
ih;k y;, sincerely lor the great competence, responsible eflort and clear sense of DRC mission that
these d-ocuments rePresent.
Gratelully yours,
lr"n W"O,it, PrinciPaUOwner
Weber SustainabilitY Consulting
953 1st Avenue
S"ft f-rf" CitY, Utah 84103
(801 )355-680S I (gOt )OS1 -8841 cellular
ivan @ webersustain.com
www.webersustain.com (under construction)
CC: 'Sarah Fields" <sarahmfields@earthlink'neb
Attachment 2
Revised IQ Spreadsheet
To Replace
December 1, 2004 DRC
Statement of Basis, Attachment 7
DRC Spreadsheet I lE2KdSum.xls, tabsheet Metals
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I
HTJNTSMAN
Governor
, JR.
State of Utah
Department of
Environmental Quality
Dianne R. Nielson, Ph.D.
Executive Director
DIVISION OFRADIATION
CONTROL
Dane L. Finerfrock
Director
JONM.
GARY HERBERT
Ueutenant Goventor
March 8,2005
CERTIFIED MAIL
RETURNED RECEIPT REOI'ESTED
Ivan Weber
PrincipaUowner
Weber Sustainability Consulting
953 l't Avenue
Salt Lake City, UT 84103
SUBJECT: Public Participation Summar.v for the IUC White Mesa Draft Ground Water Discharge Permit No.
uGw370004
Dear Mr. Weber:
The Division of Radiation Control (DRC) received your comments concerning the Draft Ground Water Discharge
Permit (Permit), UGW370004, for the International Uranium (USA) Corporation facility in an e-mail dated January 7,
2004. The DRC response to your comments is included in the Public Particioation Summary, which is attached to .
this letter.
If you have any questions concerning DRC responses to your comments please contact Loren Morton or Dean
Henderson at [phone] with any questions.
Utah Division of Radiation Control
DLF/DCH:dh
Attachment: Public Participation Summary for the IUC White Mesa Draft Ground Water Discharge Permit No.
ucw370004
F/../coverlenerlW.doc
168 Nortlr t95O West . FO Box 144850 . Salt Lake City, UT 841 14-4850 . phone [phone]O'fax [phone]
T.D.D. (801) 5364414. www.deq.utah.gov
Public ParticiPation SummarY
March 7,2005
Public Participation Summary
For the
IUC White Mesa
Draft Groundwater Discharge Permit
No. UGW370004
Introduction
Tl* pr.p"* of this document is to summarize public comments received by the Utah Division of
Radiation control (DRC) regarding the Intemaiional Uranium (uSA) Corporation (hereafter
IUC) uranium mill faciliiy ulwniti Mesa, Utah. Three sets of comments were received from the
puUiic during the comment p".iod thatended on Friday, January 7,2005' Each of these
comments iJtisted below in italics, followed by a DRC response.
Comments From Envirocare of Utah.Inc. (see Attachment 1)
1. Condition I.A Groundwater Classiftcation
The Perunit lists two data sets fo, ih, purpose of classifying groundwater at the IUC
faciliry.Watisthepurposeofprovidingbothdatasets?
DRC Response: Substantive Comment. They were presented to disclose the differences
in the split sarnpling total dissolved solids (TDS) data (see Statement of Basis (SOB), p'
5). As Lxplained in-tfre SOB, the Executive Secretary used the lowest values from either
set of data to classify shallow groundwater at the site (ibid). This approach is protective
of the groundwater. quality resource'
2. Table 2.
Based on the information provided in Table 2, thelnU radiologic paranrcter the
permittee is reiuired to aialyze is Gross Alpha. Envirocare is required to analyze for
Radium-226, Radium-228, Thorium-23l, andThorium-232 at is 1le.(2) disposal cell.
UAC R3l3-i-Z.l identifies a combined Groundwater Quality Standardfor Radium 226 +
22g at 5 uCilL 1sic1. Will these parameters also be evaluated at the IUC facility?
DRC Response: Substantive Comment. We acknowledge that significant concentrations
of radium und thoriu- are found in the tailings material. Elevated concentration of total
radium and thorium -230 are also found in tailings wastewaters at levels that about 188
and 1,208 times their respective State Ground Water Quality Standards (GWQS, see
SOB, Table 5). We recognize that the DRC process used to select the GWPL parameters
focused on contaminants that had tailings wastewater concentrations that were equal to or
greater than Sg-times their respective GWQS (SOB, p. 14). It is important to note that
this selection process also relied on a review of each contaminant's soil-water
partitioning (Ie) coefficient, as defined by the lowest available value found in the
technical hl.iature (soB, p. 15). Additional review shows that radium was omitted from
consideration in the Ie table found in Attachment 7 of the SOB. This oversight has been
corrected, and the revised table is found below in Attachment2 of this document. From
this information, the lowest literature I(6 values for radium and thorium are 57 and 100
IJKg,respectively. These values indicate that radium and thorium tend to partition to
soils-and ioct and not travel far in groundwater environments. As a result, other
contaminants are expected to be the leading edge of a contaminant plume, if it occurs,
Page 1
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SummaryPublic Participation
March 7,2005
and thereby arrive at nearby monitoring wells much earlier than radium and thorium.
This finding reinforces the original decision not to include them in the Permit as GWPL
parameters.
The situation at Envirocare is different, in that a high chloride environment exists in the
shallow groundwater there. Also, radium has been found to be mobile in saline
groundwater environments, as illustrated by the accumulation of radium pipe scale
Ieposits in oil field pipelines in Texas. Under these circumstances radium should be
considered as an important groundwater monitoring parameter.
This decision about not using radium as an indicator parameter at the ruC facility can be
changed in the future. If at sometime, the Executive Secretary discovers the tailings cells
have released contaminants to the shallow groundwater system, the Permit can be re-
opened and additional groundwater contaminants required for monitoring and GWPL
established pursuant to Part IV.N.3-
3. Condition 1.D.1 DMT Design Standards for Existing Tailings Cells
Has an evaluation been performed to demonstrate liner compatibility of the Flexible
Membrane Liner with the 1te.(2) materials being disposed of in the cells?
DRC Response: Substantive Comment. With respect to existing IUC Tailings Cells 1,2,
and 3 this evaluation has not been made. Evaluations of this kind are mandated by the
NRC regulations found in 10 CFR 40, Appendix A, Criterion 5E. Unfortunately, these
NRC rules were not established until 1987, long after the ruC tailings cells were
lirJj#l;ate Ground warer euality Protection (GwQP) Rules, discharge
minimization technology (DMT) has to consider existing process design capability [uAC
p13L7-6-6.4(C)1. As exptained in the SOB, the Executive Secretary decided to focus on
operational changes, and design and construction improvements for the cover system,
which has yet to-be built at T;ilings Cells 1,2, and 3. This is appropriate in that these
tailings celis have been in existence for more than 20 years and their liners long covered
by many tons of tailings.
For Tailings Cell 4A, the Permit requires it to be re-constructed in order to meet BAT
mandat"r (purt. I.H.14 and 15). During design review and approval for this new
construction, the DRC will evaluate this issue to ensure that the BAT requirements of the
State GWQP Rules are met [see UAC R317-6-6'4(A)]'
4. Condition 1.D.3.b.1. Discharge MinimizationTechnology Standard
The average wastewater head in the slimes drain access pipe is to be "as low as
reasonably achievable" in each tailings disposal cell. How will state inspectors make a
determination on this criteia?
DRC Response: Substantive Comment. The exact criteria will be worked out during the
Executive S-cretary review and approval process for the DMT Monitoring Plan (Pat
I.H.13). It is anticipated that this criteria will be established by the Executive Secretary
after IUC provides information on historic water levels at this access pipe, explains what
kind of pumping and control equipment has and is currently used, and evaluates what
type of pu.pirl and control te-hnology is available and can be readily deployed. After
Page 2
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SummaryPublic ParticiPation
March 7,2005
approval of this plan, compliance criteria can be determined for IUC to operate by, and
DRC staff to insPect against.
5. Condition 1.D.3.c. Roberts Pond
An as-built is required as Condition H.H.l8 of this GWQDP. How is this pond
constructed? For consistency with ponds used at Envirocare, this wastewater pond
should have a minimum of two FMLr and a leak detection system. In addition, what
system is in place to confirm compliance with the two foot freeboard required in this
condition?
DRC Response: Substantive Comment. As for a compliance confirmation system, that is
to be proposed by IUC and approved at a future date by the Executive Secretary during
development of the DMT Monitoring Plan required under Part I.H.13 of the Permit.
Regarding the requirements for double flexible membrane liner (FML) and leak detection
,yJ".r, it ir pona has existed at the facility since the early 1980's and was clearly an
eiisting facilily under the GWQP rules (UAC R3l7-6-1.14), which were not promulgated
until 1989. IUC's decision to replace the liner in2o02 with another single membrane
constitutes modification of the existing pond, and therefore should have been done under
the authority of a Permit (ibid.). Unfortunately, IUC did not notify the DRC of this
construction activity until 2004, well after it was re-lined (SOB, p. 30). Upon receipt of
this information the Executive Secretary determined that it was more important secure a
permit for the tailings cells. Several other factors were considered to support the decision
to use enforcement discretion and consider the pond as an existing facility, as explained
in the SOB (pp. 2g-30),namely that it is small in size (0.4 acres), is used for intermittent
wastewater slorage, and that the existing Reclamation Plan required under the
Radioactive Materials License (License) mandates that any contaminated subsoils
beneath the liner be excavated and moved to disposal in the tailings cells at the time of
facility reclamation (ibid.). No change will be made to the IUC Permit
6. Condition 1.D.3.d. Feedstock Storage Area
The introductory paragraphs of this GWQDP state that the permit is for a uranium
milling and tailings disposal facility, not a storage facility. How is the feedstock area
constructed? How long can stored mateials remain in this area? Is there a stofinwater
management planfor water that accumulates in this area? Is there a DMT citeiafor
this area? Except in the di7 (sic) cell, open air storage is prohibited at Envirocare.
DRC Response: Substantive Comments. Again, the IUC facility, including the open air
feedstock storage area atthe eastern margin of the mill site, pre-existed the GWQP rules,
and is cons"quertly an existing facility under UAC R317 -6-1.14. To avoid proliferation
of possible contamination from such storage, the Permit limited this activity to only the
historic area defined by the survey coordinates in Table 4. As for construction details,
this area is underlined by a compacted native soil surface, however, no reliable
information is available regarding the permeability of the compacted soils in this area.
Storage in containers is also allowed elsewhere at the facility under the Permit Part
I.D.3(d). No time limits are stipulated in the Permit for any feedstock storage. However,
performance criteria are mandated for this containeized storage, in that the containers
must be maintained closed and water-tight (ibid')'
Page 3
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ummaryPublic Participation S
March 7,2005
As for a stormwater management plan, Part I.H.l7 requires that IUC submit one and
secure Executive Secretary approval. Stormwater that accumulates on the historic
feedstock pad drains to Tailings Cell 1, along with other mill site stormwater. The only
DMT performance criteria for this area, is that all open-air feedstock storage be restricted
to only the historic pad location, as defined by Table 4 of the Permit [Part I.D.3(d)], as a
means of preventing proliferation of possible contamination. No change will be made to
the IUC Permit.
7. Condition 1.E.2. Groundwater Head Monitoing
Total Dissolved Solids GDS) range from 1,276 to 5,200 mg/L. Will the groundwater
elevations be adjusted to afreshwater equivalent head to account for an almost S-fold
variation in salinity? In addition, Envirocare is required to conduct monthly
groundwater elevations due to a groundwater mound, much like the mound beneath the
IUC facility. For consistency, groundwater elevations, freshwater correction, contour
mapg etc., should be performed on a monthly basis.
DRC Response: Substantive Comment. The TDS or salinity contrast between
groundwater in the shallow aquifer and the source of the groundwater mound at the IUC
facility is expected to be relatively low. The range of the TDS in IUC's shallow
groundwater is as stated, and when averaged across all monitoring wells at the facility the
combined average is about 3,000 mg/l. As a result, we anticipate the contrast between
this average TDS and the average water quality expected in the eastern wildlife ponds,' which recharge the IUC groundwater mound (see SOB, p. 4), is closer to about 3-fold.
Higher TDS contrasts are expected in stormwater induced groundwuter mounds at
Envirocare, in that natural.TDS found.in the shallow aquifer ranges from 20,000 to over
70,000, with an average of more than 40,000 mg/I.
As for the suggested need for monthly groundwater head monitoring at IUC, the
Executive Secretary agrees it is necessary in those wells where transient conditions exist
or cor;ld exist. Such is the case in all the IUC wells related to the chloroform
investigation and pump and treat system, where an appropriate frequency will be set in
the future as a part of an approved Groundwater Corrective Action Plan. That frequency
and all other necessary monitoring requirements will also be exposed to a public
comment period sometime in the future. For purposes of this Permit, the baseline
groundwater head monitoring frequency will continue as quarterly (Part I.8.2). If non-
compliance with GWPLs is detected, more frequent head monitoring will be conducted in
accordance with the requirements of Part I.G.1.
8. Condition I.H.I. Installation of New Groundwater Monitoring Wells
How were the locations of the new monitoing wells determined? Monitoing wells at
Envirocare were located using a computer model to demonstrate that should a release
occur, the groundwater monitoring well networkwould detect that release. Will a well
spacing evaluation be required by the Permittee?
DRC Response: Substantive Comment. The number and location of wells was arrived at
after consideration of site hydrogeologic conditions and after negotiation with IUC.
Unique hydrogeologic conditions exist at the White Mesa in that the shallow aquifer is a
perched system found about 100 feet below the tailings cells, and located in a
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Public Participation SummarY
March 7,2OO5
consolidated geologic formation deposited by an ancient fluvial environment. In contrast
the aquifer at Envirocare is found 15 feet below the disposal cell in unconsolidated lake
deposited sediments.
Despite these differences new wells are to be added at the IUC facility, including two
newwells south of Tailings Cell 1 (l\dw-24 and MW-28) and the three new wells south
of Tailings Cell2 (tvtw-29, MW-30, and MW-31). These were spaced in a similar
manner as the three existing wells found south of Tailings Cell 3 (see SOB, Attachment
I l). Because there is a strong East-West groundwater flow direction near Cell 1,
additional wells were required upgradient (IvfW-27) and downgradient (MW-24) on the
Northeast and Southwest corners respectively. For Cell2,two upgradient wells MW-26
and MW-32 (formerly TW4-15 and TW4-17) already existed and were included under
the Permit. A new downgradient well for both Cells 2 and 3 will also be installed off the
Southwest corner of Cell 3 (IvIW-23). For Tailings Cell 3, it is anticipated that the three
new wells proposed on the northern dike will also serve as upgradient wells. The existing
Cell 3 downgradient wells, MW-5, MW-I1, and IvIW-I2 have been in place on the south
dike since October, 1982 or earlier. A new upgradient well will also be installed off the
Northeast corner of Cell 4A (MW-25).
No computer modeling was done by IUC to justify the spacing intervals selected. Such
models estimate the required well spacing interval from several hydrogeologic
assumptions, including but not limited to: local groundwater velocity and flow
directions, existence of isotropic and homogeneous aquifer conditions (including aquifer
dispersivity and permeability), and a presumed minimum footprint or size of a leak from
the-embankment. The Executive'secretary acknowledges that such models are useful
tools to determine the minimum well spacing for a facility, but believes it premature to
perform such modeling at the IUC facility until after local hydrogeologic conditions are
better established in the imniediate vicinity of the tailings cells. This evaluation will need
to consider several factors, including, but not limited to local:
1) Elevation and configuration of the upper geologic contact of the Brushy Basin
Member of the Morrison Formation, which perches the shallow groundwater system.
2) Distribution and spatial trends of shallow aquifer permeability that could provide
preferred groundwater flow Paths.
3) Distribution of shallow groundwater head and flow directions. -
4) Distribution and spatial trends of groundwater quality in the shallow aquifer.
For this reason, the Permit requires IUC to submit a Revised Hydrogeologic Report for
Executive Secretary approval (see Part I.H.2). In the event that the Executive Secretary
determines that additional information is needed, including additional borings,
monitoring wells, or any other pertinent data needed to characterize the local
groundwater system, IUC will be requested to provide this information (SOB , p.23). lf
at that point the Executive Secretary determines the characterization is complete, a well
spacing model may be required to evaluate the need for additional wells. If additional
monitoring wells are needed, and after the Executive Secretary has determined the
proposed monitoring well network is satisfactory, the Permit can be re-opened and these
new wells established as point-of-compliance wells under Part IV.N.3 of the Permit.
Page 5
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SummaryPublic Participation
March 7,2005
9. Condition 1.H.11. Infiltration and Contamination Transport Modeling Work Plan and
Repon.
This condition requires an ffiltration and contaminant transport model. Since the
proposed Permit does not have a cover design, it is assumed that a design will come from
the required modeling. For consistency with Envirocare, even though the cover will need
to incorporate an FML to prevent the bathtub ffict (See Condition I.D.6.b), the
Permittee should not be able to take credit for either the upper or lower FMLs in the
modeling effort. In addition, it is unclear if the Modeling Work Plan is part of the Report
or a separate submittal whichwill require Executive Secretary approval.
To evaluate the assumptionfound in the model, will the Permittee be required to prepare
a Post-Model Audit Plan?
DRC Response: Substantive Comment. Because the tailings cell cover design has
already been approved by the NRC as a part of the Reclamation Plan under the License
(SOB, p. 35), the purpose of the modeling report is to evaluate if any design changes are
needed to ensure the tailings cells meet the long-term performance standards set in Pat
I.D.6 of the Permit.
As for the need for a FML in the cover system to prevent a bathtub effect, such a
membrane would appear to be in order; but the Executive Secretary will await the
outcome of the modeling report before making any decision in this matter. With regards
to any credit given to the long-term performance of FMLs in the infiltration and transport
modeling report, the Executive Secretary will take this suggestion under advisement.
However, it is important to note that the NRC policy referred to applies only to Low-
kvel Radioactive Waste facilities (see'10 CFR Part 61), and not to uranium mill
operations. In fact, no performance assessment modeling is required by NRC for any
lle.(Z) facility (see 10 CFR 40, Appendix A). Instead, at IUC, and other uranium mill
operations in Utah, this performance assessment is mandated as a means to establish BAT
or DMT under the State GWQP rules. Precedence has been set at other Utah uranium .
mill operations that utilize FMLs as a means to meet the BAT design standards. One
example is Plateau Resources' facility near Ticaboo, where a new tailings cell facility
was proposed with double FMLs and leak detection systems were as a means to meet the
BAT design standard during the operational phase of the project (see 12128198 DRC
Draft GWQD Permit No. UGWI70003 and related SOB [pp. 5-7] for Plateau Resources).
Consistency with the Envirocare I le.(2) facility has been provided in the IUC Permit in
that a 20O year performance standard has been established (Part I.D.6), and an infiltration
and contaminant transport performance model required.
As stipulated in the Permit, the work plan and the modeling report are two separate
documents, with two separate 180-day deadlines mandated (Part I.H.l1). For the first
deadline, IUC is given 180 days after issuance of the Permit to prepare and submit a work
plan for the performance modeling for Executive Secretary approval. Thereafter, when
the Executive Secretary approves this work plan, a second 180-day deadline is set for
IUC to complete the modeling effort, write a report, and submit it for Executive Secretary
approval.
Page 6
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SummaryPublic Participation
March 7,2005
As for any post-model audit plan, no specific compliance schedule requirement is
currently mandated in the Permit. However, existing language at the end of Paft I.H.11
allows the Executive Secretary to require one if found necessary, as follows:
"...fJpon Executive Secretary approval of the final infiltration and contaminant
transport report, the Reclamation PIan may be modified to accommodate
necessary changes to protect public health and the environment'"
The changes to the Reclamation Plan could include not only cover design and
construction specifications, put also plans to monitor the tailings cover system and/or
groundwater quality to confirm the modeling assumptions.
PageT
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atyPublic Panicipation Summ
March 7,2005
Comments from Ms. Sarah Fields (see Attachment l)
1. Draft Groundwater Discharge Permit (Permit), page l:...
The facility is also (sic) includes IUC land in Sections 21, 22, 27, Township 37 South,
Range 22 East, that are up-gradient from the mill and tailings cells. It also includes
down-gradient land in Sections 4, 5,6,8,9, and 16, Township 38 South, Range 22 East,
Salt Lake Base (sic) and Meridian, San Juan County, Utah. An explicit "legal"
desciption of the mill property must be included in the permit-
DRC Response: Nonsubstantive Comment. The Permit's description list those sections
currently disturbed by construction and occupied by the mill site and tailings disposal
cells. While it is true that IUC owns or controls other nearby tracts of land, the Executive
Secretary will not authorize or imply any approval for disposal activities outside the
bounds of lands currently disturbed.
2. Part I, page 8: D. Discharge MinimizationTechnology Standard - ..-
This section is vague regarding the actual design and construction information that the
Division of Radiation Control (DRC) is relying on. There is no mention of the December
3l, 1998 Knight Piesold Report on the Seepage Flux from Tailings Cell i Liner submitted
to the DRC by the Permittee. There is no mention of the numerous questions that the
DRC had about the actual design and construction of Cell 3, as expressed in the
(apparently) unanswered November 28, 2001, DRC Request for Additional Information
(RAI).
The DRC must not rely on cell design and construction information that it has already
found questionable. This section must include more detailed cell design and construction
date (sic). This section must also be amended based on the Permittee's reply to the
November 28, 2001, RAI which was part of the Permit process.
DRC Response: Substantive Comments. The Permit references all design and
construction information that has been made available to DRC. We acknowledge that
DRC has had major concerns about the infiltration modeling found in the December 31,
1998 Knight-Piesold Report. DRC omission of any discussion in the SOB regarding this
modeling report was intentional for the following reasons:
1) The report is a infiltration and seepage simulation of the open cell conditions for
Tailings Cell 3 only. It does not represent infiltration or seepage conditions for Cell 1
or Cell44 which have different engineering design and construction characteristics.
Further, the report does not simulate contaminant transport which is essential to an
assessment of tailings system performance. Simply said the Knight-Piesold report is
incomplete.
2) Any open cell infiltration modeling would be based on a series of assumptions, many
of which would be difficult to verify given the age of the construction and the lack of
ability to sample and confirm certain construction details that are now covered by
tailings. As a result, the model predictions would be subjective to interpretation.
Direct and discrete groundwater monitoring of each disposal cell is a much more
effective means to determine if the tailings system has or will discharge contaminants
to groundwater.
Page 8
Public Participation SummarY
March 7,2005
3) Should groundwater monitoring find that the tailing cells have leaked, active means
can be taken to intercept and control this leakage thru various groundwater
remediation technologies that are available.
4) Design and construction of an improved cover system is the most practical means of
preventing and controlling possible future tailings cell leakage. It is not practical, nor
ieasible to require IUC to move the existing tailings wastes into new tailings cells.
As a result, neither the Permit or the SOB relied in any way upon the Knight-Piesold
report referenced. Instead, the Permit outlined a new path of activities to provide an
objective evaluation of the future cover system design, and opportunities for
improvement to said design in order that local groundwater resources be protected.
3. Part I, page 1: D.2(d) Feedstock Storage Area - ...
There is no indication in the Permit as to how the Permittee will monitor the
groundwater underneath and in the vicinity of the Feedstock Storage Area to guarantee
that the materials stored there will not contaminate ground and surface water. The
feedstock is sometimes stored for years out in the open where it is subiect to dispersion
and leaching by wind and water, and surface water.
This must be coruected.
DRC Response: Substantive Comments. The IUC facility, including the open air
feedstock storage area at the eastern margin of the mill site, pre-existed the GWQP rules,
and is consequently an existing facility under UAC R317 -6-1.14. As a result, ruC is held
to a DMT standard instead of the more rigorous BAT standard [see UAC R317-6-6.4(c)].
In addition, the facility reclamation requirernents (see Part I.D.7) would require
reclamation of the Feedstock Storage Area. DRC will evaluate the Reclamation.Plan at
the time of the next License renewal scheduled on or around March, 2007 . For other
relevant details, see the DRC response to Envirocare Comment No. 6, above.
4. Part I, page 20: G. Out of Compliance Status,4.(e) - ...
The DRC does not define "feasible." Does feasibility include economic feasibility? Who
decides if a ground water corrective action plan is "unfeasible" ?
There is no mention of the standards that must be met by the Permittee when proposing
alternative concentration limits (ACLs). Are the standards for establishing ACLI
outlined in 10 C.F.R. Part 40, Appendix A, applicable hereT What citeria will the
Executive use in reviewing applications for the establishment of ACLs?
The term "feasible" must be defined. The standards for the establishment of ACLs must
be spelled out in the Permit.
There is no mention in the Permit of any necessity for the Permittee to increase the
reclamation surety to cover ground water remediation when the Permittee is out of
compliance. NRC and State regulations require a surety to cover the costs of
reclamation, including any ground water remediation. This requirement must be included
in the permit.
DRC Response: Substantive Comments. The Permit Part 1.G.4.(e) corresponds to UAC
R317-6-6.17(A)(5), in which the term "infeasible" is used. DMT is implemented instead
of BAT because the IUC facility pre-existed the GWQP rules (UAC R317-6-1.14). In
addition, Part 1.G.4(e) of the Permit applies to DMT and not groundwater corrective
Page9
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action. The Executive Sectary decides on feasibility issues, which could include
economic feasibility issues.
As for ACLs, these are approved only by the Utah Water Quality Board (Board) as per
UAC R317-6-6.15 (A) thru (G). The NRC ACL process is not applicable. In the State
ACL process the Board considers factors, including but not limited to protection of
human health and the environment, permanent effect, cost effectiveness, etc. For details
refer to R317-6-6.15(G). Under the State regulatory process, Permits are issued first with
their respective Ground Water Compliance Limits (GWCL) established. Then if the
GWCLs are exceeded the Executive Secretary initiates a compliance action against the
permittee. In this process an ACL may be considered, but it is only the Board that can
approve it.
The reclamation surety to cover ground water remediation is not an issue of a Ground
Water Discharge Permit, but instead is managed under the Radioactive Materials License.
At this point it is premature to conclude if non-caused pollution has occurred at thi's site.
This is one of the reasons for the Background Groundwater Monitoring Report required
.in Part I.H.3 & 4. If later we determine that groundwater pollution has occurred,
Executive Sectary well take appropriate action to protect the groundwater resources.
This would include development of a groundwater corrective action plan for the facility
under the auspices of UAC R317-6-F-6.15.
5. Part I, page 20: H. Compliance Schedule Requirements ...
Nowhere in the extensive list of Compliance Schedule Requirements is there any. requirement for the Permittee to respond to the ]-page November 28, 2001, DRC Request
for Additional Information, regarding December 31, 1998, Knight Piesold Report on
Seepage FluxfromTailings Cell 3 Liner, White Mesa Mill.
Has the Permittee responded to this RAI? If not, has the DRC notified the Permittee that
they don't have to respond?
It was definitely my understanding, based on correspondence with the DRC, that a
schedule for the Permittee's long-delayed response to the 2001 request would be pan of
the Permit requirements. Is this no longer the case? If so, why?
There must be afull explanation of this situation.
In addition, the DRC must review all previous requests for information and make a
determination that they have all been fully responded to or a schedule for response has
been established in the context of the Permit.
DRC Response: Substantive Comments. See DRC response given for, Comments from
Ms. Sarah Fields, Comment 2,pages 8 and 9 of this Public Participation Summary.
6. There is no discussion in the Permit of other types of contamination to ground and
surface water by activities on the land owned by the Permittee at the facility. The
Permittee currently allows cattle to graze on some of the mill property. These cattle can
and do access Ruin Spring. Ruin Spring is on U.S. Department of Interior, Bureau of
Land Management, property that abuts the mill property. The Ruin Spring area is
trampled and contaminated by wastes from the cattle. The spill-overfrom a tank below
the spring (which has not been cleaned in years) feeds a desert riparian area. The sping
is used by wildlife.
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Does the Permittee have any responsibility for the ruin of Ruin Sping by the cattle that
graze on its mill facility property?
DRC Response: Nonsubstantive Comments. ruC owns neither the cattle or Ruin Spring.
Hence they have no responsibility for damage the cattle may pose to the spring of its
riparian habitat. Possible contamination to Ruin Springs from cattle wastes is not a
, Permit issue. Concerns in this regard need to be directed to the cattle owners and/or the
Bureau of Land Management.
7. Part I, page 12: D.5. Deftnition of 11e.(2) Waste - ...
There is absolutely no statutory or regulatory basis for the State of Utah to authorize the
processing of "alternate feed material" at the IUC mill. There is no statutory or
regulatory basis for the State of (ltah to include the "process related wastes and waste
streams" from the processing of materials other than natural ore ("alternate feed
mateial") in the statutory and regulatory deftnition of 11e.(2) byproduct mateial.
The Ground Water Discharge Permit must not authorize the processing of "alternate
feed material." The Ground Water Discharge Permit must not authoize the disposal of
waste streams from the processing of "alternate feed material" as 11e.(2) byproduct
material. Such authorization is not permitted by any statute or regulation.
Any request by the Permittee for such authorization must be denied.
Thefollowing (including Attachment A) are comments that support these statements.
A. The March 7, 2003, NRC letterfrom Paul H. Lohaus to William J. Sinclair is not
an NRC legal opinion and has no legal effect. Seel0 C.F.R.Part 40, Sec. 40.6,
Interpretalions, which state s :
Except as specifically authorized by the Commission inwriting, no interpretation
of the meaning of the regulations in this part by any fficer or employee of the
Commission other than a written interpretation by the General Counsel will be
recognized to be binding upon the Commission.
B. There is no legal basis under and Atomic Energy Act of 1954 (AEA), as amended,
to consider so called "alternate feed material" and vaious debis accompanying
such material (at times constituting 40Vo of the " alternate feed mateial" ) as
"ore," as the term "ore" is used in the definition of 11e.(2) byproduct material.
The Permit must not include any statement that would imply processing of feed
material other than natural ore ("alternate feed material" ) is the same as the
processing of " any ore," and that the debris, tailings, or wastes from such
proce s sing constitute I 1 e.( 2 ) byproduct mat eial.
The State of Utah cannot and must not include any reference to the letter from the
March 7, 2003, NRC in the Permit.
See Attachment A hereto for a full discussion and comments on this matter.
C. The Permit does not define so-called "alternate feed material." There is no
indication in the Permit that "alternate feed material" is made up of processing
wastes from other mineral processing operations that are commingled with
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contaminated debis and soils. Why is there no definition of "alternate feed
mateial" in the Permit.
D. The State of (ttah must only rely on the common, historical meaning of the word
"ore."
What does "ore" mean? The word, or term, "ore," as deftned in several sources:
o " Q7s-s naturally occurring solid material from which metal or other
valuabe minerals may be extracted." fillustrated Oxford Dictionary,
DK Pub. 1998.1
o "Ore-A native mineral containing a precious or useful metal in such
quantity and in such chemical combination as to make its ertraction
profitable. Also applied to minerals minedfor their content of non'
metals." [The Compact Oxford English Dictionary, Second Edition,
Oxford (Jniversity Press, 2000, p. 1224:915-916.1
o "Q7s-a. A natural mineral compound of the elements of which one at
least is a metal. Applied more loosely to all metaliferous rock, though
it contains the metal in afree state, and occasionally to the compounds
of nonmetallic substances, as sulfur ore. . . . Fay b- A mineral of
sfficient value as to quality and quantity that may be minedfor profit.
Fay." [A Dictionary of Mining, Mineral, and RelatedTerms,
compiled and edited by Paul W. Thrush and Staff of the Bureau of
Mines, U.S. Dept. of Interior, 1968.1
The Oxford English Dictionary points out that the current usage of the word
"ore" goes back several hundred years. A Dictionary of Mining, Mineral, and
Related Terms lists over 65 compound words using the word " ore," such as ore
bin, ore body, ore deposit, ore distict, ore geology, ore grader, ore mineral, ore
reserve, ore zone. All of these terms incorporate the word " ore" as it relates to
the mining of a native mineral. The term "ore," without explanation, has for
many years been used in millions of instances in thousands of mining, milling,
geological, mineralogical, radiochemical, engineering, environmental, and
regulatory publications. "Ore" like the word "water," is aword of common and
extensive usage with a clear and accepted meaning.
The State of utah must explain what the statutory and regulatory basis is for
calling wastes from other mineral processing operations " ore." A policy, whether
federal or state, is not a statutory or legal basis.
E. In the past, debris associated with the processing of "alternate feed material" has
been received at the IUC mill. Thousands of tons of such debris have begn
disposed of at the mill. IUC was paid to receive and dispose of this mateial.
Some of the material was apparently washed (i.e., decontaminated), and the wash
water was subsequently processedfor its minimal source mateial content.
The debris that sometimes accompanies natural ore when it is processed at a
licensed uranium or thorium mill has no economic value to the licensee of a
uranium or thoium mill. A mill owner would not pay for or be paid to receive
such debris and, in fact, would pay less for ore contaminated with a lot of debis.
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However, the licensee will be paid to receive and dispose of debis accompanying
"alternate feed mateial." Wat is really occurring is that the licensee is getting
paid to directly dispose of contaminated (or decontaminated) low level
radioactive waste.
There are no similarities between the debris associated with ore mined from the
ground and debris accompanying wastes and contaminated mateials from other
mine ral p ro c e s sing op e rations.
This debris must have been separatedfrom any material that was going to be
processed at the mill prior to shipping to the mill. This could have been easily
accomplished, but was not because it was in the interest of oiginator of the waste
to get rid of it, and it was in the interest in the mill operator to get paidfor
accepting it.
The State of Utah is in no way obligated to agree with the NRC on this question.
F. The March 7 NRC letter states that "the alternate feed material is regulated in
mass as ore." There is conflict, confusion, and inconsistency in this statement.
Who, exactly, regulates alternate feed mateial as "ore," and what is the basis of
such regulation?
The AEA does not mention "alternate feed material" and it's regulation. I can
find no NRC or EPA regulations related to the regulation of "alternate feed
material." There are no NRC generic or site specific environmental impacts
Staternents related to the regulation of " alternate feed material" or feed 'l
materials other than natural ore.
How can the NRC regulate alternate feed mateial "in mass as ore" when the
NRC has no statutory or regulatory jurisdiction over "alternate feed material" or
uranium and thorium "ore" ?
NRC regulation at 10 C.F.R. S 40.13 establishes unimportant quantities of source
material that are outside of regulatory concern under the AEA. NRC regulation
at Section 40.4 states that "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."
Section 40.13(b) says that arry "ore" containing source material, whether or not
it meets the definition of source mateial (i.e., contains uranium and.lor thoium of
0.05Vo by weight) is exempt from regulation under Part 40. Section 40.13(b)
states:
(b) Any person is exempt from the regulations in this part andfrom
the requirements for a license set forth in section 62 of the act to
the extent that such person receives, possesses, uses, or transfers
unrefined and unprocessed ore containing source material;
provided, that, except as authorized in a specific license, such
person shall not refine or process such ore
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The NRC has exempted "ore," either source material ore (over .057o uranium or
thoium by weight) or non-source material ore (less than .05 7o uranium and/or
thorium by weight). The NRC regulates facilities that process and reftne "ore,"
under its regulation of 11e.(2) byproduct material, but it does not regulate "ore"
as such.
There is nothing in the AEAthat authorizes the transfer to the State of Utah of
regulatory responsibility over uranium or thoium "ore."
DRC Response: Nonsubstantive Comments. Issues regarding "alternate feed material"
at the IUC facility are regulated by the Radioactive Materials License and not the Ground
Water Discharge Permit.
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Comments from Mr.Ivan Weber (see Attachment 1)
l. May I please echo the critique submitted by Ms. Sarah Fields, and incorporate it by
reference into my own reflections. In particular:
I share her apprehension, expressed in her questioning of the meaning of "infeasible"
DMT as rationale for IUC submittal of "alternative DMT" to the Executive Secretary of
DRC (page 20 of drafi Permit, 4. "Facility Out of Compliance Status...," e. "Where it is
infeasible to reestablish DMT..."). This appears to be a loophole of magnitude
propbrtional to the holes we suspect to exist in the cells liner systems. Please tighten this
allowance by defining terms rigorously, if not by eliminating 4.e altogether.
DRC Response: Substantive Comments. See DRC response to Ms. Sarah Field's
Comment No.4, above.
2 Also on page 20, under H. "Compliance Schedule Requirements," I join Ms. Fields in
incredulity that IUC has not been allowed not to respond to the November 28, 2001 DRC
Request for Additional Information. At the time, the RAI was reasonable, legitimate and
completely necessary. It remains reasonable, legitimate and completely necessary in
order to proceed with State of Utah regulatory authority. Whether neglect, inadvertent
oversight or strategic contempt for authoity, this IUC failure is an outrage, warranting
draconian response at the outset of State assertion of control over waters of the US
delegated to State administration. Either IUC must respond seriously to the 2001 RAI
according to stipulated schedule, or IUC should suspend operations. This point alone is .
grounds for aformal request for a heaing, which I hereby submit.
DRC Response: Substantive Comments. See DRC response to Ms. Sarah Field's
Comment No. 2, above.
3. As a point of inquiry, we wonder what and when will be the implications of recent State
Implementation of SWAP," the Source Water Assessment and Protection" Plan, pursuant
to Safe Drinking Water Act Amendments of 1996, and subsequent adaptation into Utah
Code. As a member of the SWAP Advisory Committee in 1998-99, I became aware of the
comprehensive nature of SWAP's simultaneous protection of wellheads, surface water
and emerging ground water. It seems obvious to this observer that there are inevitable
fficts of past IUC ground water contamination, most of which could easily escape (and
probably has done) the rather pathetic monitoring of the facility heretofore. For the sake
of neighboring communities and isolated native populations, as well as for areawildlife,
all that can be done to answer the question. "What can go wrong?" and to see to it that
these faults are investigated, characteized and remediated scientiftcally, should be done
without delay.
DRC Response: Substantive Comments. The Permit addresses ground water compliance
limits, ground water compliance, monitoring, and reporting requirements that DRC will
use to protect local ground water resources. Many significant improvements to the
ground water protection have been made thru the Permit that the Executive Secretary
considers sufficient. These include but not limited to requiring: The installation of
additional monitoring wells at the tailing cells, new hydrogeologic evaluations,
development and application of a ground water monitoring quality assurance plan,
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submittal of a ground water performance assessment model, application of a ground
water performance standard, addition of many new ground water quality monitoring
parameters, improvement in format and content of ground water monitoring reports,
periodic monitoring of ground water seeps and springs of the edge of the mesa, and
reporting thereof, etc.
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References
Envirocare of Utah, Inc., January 7 ,2005, "Comments on International Uranium Corporation
Proposed Groundwater Quality Discharge Permit (Permit No. UGW370004)", unpublished
company comments,2pp.
Utah Division of Radiation Control, December 28,1998, "Ground Water Quality Discharge
Permit No. UGW170003 Statement of Basis", 8 pp.
Page 17
Attachment L
Public Comments Received from Three Parties:
January 7 ,2005 Envirocare of Utah, Inc. Comments (Received January 7 ,2005)
January 7 , ZOO5 Glen Canyon Group / Sierra Club Comments (Received January 11, 2005)
January 7,2OO5Ivan Weber Comments (Received via email on January 7,2005)
ENVIRO CARE OF UTA,H, INC.
THE SAFE ALTERNATIVE
January 7,2005
Dane Finerfrock
Co-Executive Secretary
Utah Water QualitY' Board
168 North l9-s0 West
P.O. Box 144850
Salt I-ake CitY, UT 841 l4-4850
Subjcct:
cD05-0015
comments on Inlemational uranium corporation Proposed Grourrdwater
Qual ity Discha rge Pernti t (Penrrit No. I'l GW3 70004 )
Dear Mr. F'incrfrock:
Envirocare of Ufah, lnc. (Envirocare) provicles the ltrllorving comments on the Inrernalional
Uiruiu* C:orporation fropo.*a Groundrvater Quality Discharge Permit (GWQDP) (Pcmtit
No. UGW370004)'
Condition I.A Ground$'ater Classilication
'l'he Pernrit li:;ts two clata sets tbr the ptll'Poss of classiff ing gnrurrdwater at the ILJC iaciiity'
\\ihat is the purpose of providing both data sets?
Tablc 2
Basecl on thc inf'onnatiotl provided in Table 2, the onty radiologic paranleter the Pe$ritlcc is
,.qrir.a to unrlyr. i, Cnr,*t Alpha. Envirocare is rcquired to. analyze for Radium-226'
Radium-228, Thoriurn-2-10, an.l Thorium-232 irt its 1le.t2) disposal cell' UACR3-13-6-2'l
identifies a conrbinecl Grtruntlwater Quality starrclarcl ftrr Radirrm ??6 + 2?8 at 5 pCiiL' will
these pammeters also be evaluatecl at the IUC facility?
condition I.D.l. DIIIT Design stantlards f,:r lixisting Taitings cells .
H* un cvaluation been perfoirred to <Jenronstrale liner r:ontpatibilit;"'of the Flexible
Membrane l.,iner (Fh'ILj rvirh thc I I e.(2) materials bcing riislrosed in the cells?
ConclitionI.D.3.b.l.Disr:hargelfinirr:izationTcehnologyStandartt
'['he irveragc u,astc]\,atcr hcaci in the slirnes clrain access pipe is to be "as low as reasorxrbll-
achievable,,:n cactr ,riting, disposal cell. I'lo}r,will state inspectors make a determination on
ilris criteria?
Condition t'D.3.c. Roberts Pond
An as-built is requirecl as Contlition I.H.l 8 of rhis CWQDP' IIow is this pond construt:ted?
For consistqrcy nriitr ponds use.d al En'irocare.l5is was:e*'ater pond should have a minimunr
of trvo FMI.s and a leuk cir:'iec'lic'n system. In addition. iryilat systcm is in place to confirnr
"uu,lprirn..
with the two frrot freeboard required in this cnndition?
Condition 1.D.3.d. Feedstock Storage Area
The introductory paragraphs of this cwQpp state that rlre pennit is tbr a uranium nrilling
aud tailir:gs disposal facility, not a storagi t .itity. How is the feedstock area constructed?
605 NORTH 5600 WEST ' SALT IAKE CITY, UTAH 84176 ' TELEPHONE (8O7) 532'7330
Page2 of2
January 7.2005
NVIROCARE
How long can stored materials renrain in this area? Is there a stormwater management plan
for water that accumulates in this area? Is thete a DMT criteria for this area? Except in the
aig ."tt, open air storage is prohibited at Envirocare'
Condition 1.E.2. Groundwater Head I\Ionitoring
Total Dissolved Soliis Ootj range from 1,276 mglLto 5,200 mglL' Will the grouttdwater
elevations be adjusteJti a fresnwlter equivalent head to account for an almost 5 fold
variation in salinity? In addition, Envirocare is required to corduct moltLry qrgund.water
elevations due to a groundwater mound, much likethe nround beneath the IUC facility' For
cOlsiStency, ground*Ut", elevatiOns. freshwater correction, contour maps' etC" shOUld be
perfonned-oria nronthlY basis'
ConrlitionI.H.1.InstallationofNeu,GroundrvaterMonitoringWells
IIow were the locationr oi,t " new monitoring wells determined? Monitoring wells at
Envirocare were located using a computer model to demonstrate that should a release occur'
the groundwut", n1onii-ing ti"t*o.t would detect that release' Will a well spacing
evaluation be required by the Pemrittee?
condition I.H.tl. Infittration and contamination Transport l\{odeling work Plan and
Report
'l'his contlition requires an infiltration and contaminattt transport model' Since the proposed
Perntit does trot have a cover clesign, it is assumed that a design will come fiorn the required
;;;1"g. For consistency with dtv'irocare, evett though the cover will need to incorporate
;rifN{al" prevent the baihtub effect (See Condition l.D'6'b'), the Permittee should not be
able ro takc credit lbr either the upper or lower FIVII-s in the modeling effort' ln addition' it is
unclear if the Modeling Work ptari is part of the Report or a separate submittal which will
require Executive Secretary Approval'
To evaluate the assumptions found in the model, rvill the Permittee be required to prepare a
Post-Model Audit Plan?
please contact me at [phone] with any questions regarding this issue'
Sincerelllr-. ,.t'i'vLr
l;*1*ffi "nlJ, .o.olianc e and Permitt ing
I ccrrify undcr pcnalty ol'law that this docurncnt and atl attachnrents wert preparut uncler my dircction or supcrvision in
accordancc with a systcrn a*,gr.i'; rtt*.* rr,ar quurin"*f p""t'nnif p,pi.rly: gather and.cvaluatc the infomution submitted'
Based on my inquiry ol-rh. p.ion o, p"oons wh<i nranag" it. iv*,"tr, ui tSrsJ pcnons dircctly rcspnnsible for gathering the
inf'ormation. the inlbnnation ,rl,niir.J i*, lo !ht' br'sl nf *y t'it*ttagt and bclief'.truc' accuratc' and cornplAe' I am aware that
there are sigrrilican penulti"s loiirtrliii,U lhls intbnnaiioi. in"t,jing the p'ossibility ol'line and imprisonmcnt for knowing
violations.
Glen Canyon Grou p/sierra CIub
P.O. Box 622
Moab, Utah 84532
Mr. Dane Finerfroch Director
Division of Radiation Control
Utah Department of Environmental Quality
P.O. Box 144850
Salt I^ake city, utah 84ll+4850.
Subject Comments on Draft Ground Water Discharge Permit No. UGW37(XX)4,
International Uranium (USA) Corporation (IUC) Uranium Mill, Whirc Mesa, Utah.
Below please find the comments of the Glen Canyon Group of the Sierra Club on
#t*".fga+Bl"t-i@ it
No. UGW37W.
1. Draft Ground Water Disc[arge Permit (Permit), page 1: fhefacility is locoted on
a tract of lond in Sections 28, 29, 32, and 33, Towwhip 37 South, Range 22 Fast, Salt
I-ale Base and Meridian, San luan County, Utah.
Comment: The facility is also includes IUC land in Sections 21,22, arrdTl,Township
37 South, Range 22hst,that are up-gradient from the mill and tailings cells. It also
includes down-gradient land in Sections 4,5,6,8,9, and 16, Township 38 South, Range
22hst, Salt Lake Base and Meridian, San Juan County, Utah. An explicit "legal"
description of the mill property must be included in the Permit
2. Partl, pagc 8:, D. DISCHARGE MINIMITATION TECHNOLOGY STANDARD - ttu
tailings disposatfrcility must be built and operated according to tlufollowing Disclwrge
Minimization Techrwlogy (DMT) standards :
I. DMT Design Standards for F-xisting Tailings Cells I, 2, and 3 - slwll be based
on existing construction as descrtbed by design and construction information providcd by
tlrc Perminee, as surnnutrized in Table j below lor Tailings Cells I, 2, and 3:
Comment: This section is vague regarding the actual design and construction
information that the Division of Radiation of Control (DRC) is relyingon. There is no
mention of the December 31, 1998, Knight Piesold Report on the Seepage Flux from
Tailings Cell 3 Liner submitted to the DRC by the Permittee. There is no mentiol of the
numerous questions that the DRC had about the actual design and constnrction of Cell3,
6tz'3?+f \
E$;;,/
:l '*tito zsol ts? "' ' -r..r, ij\ i\,
r \ !ill:J'i'o* .&-/
Division of Radiation t,
January 7,2006
as expressed in the (apparently) unanswered November ?8,2NL,DRC Request for
Additional Information (RAI).
The DRC rnuri*t 1jy o, cell design and consruction information that it has
already found questionablt. tt it section must include more detailed cell design and
construction date. itit t".tion must also be amended based on the Permitee's reply to
the November 28, aNL,RAI, which was part of the Permit process'
3. Part I, page llt D.2(d) Feedstock Storage Area<pen-air or bulk storage of all
jr"a"n"*'ioierials at thcfacility 7wliting mill processW slwll be limitedto tltc eastern
"portionofthcmillsiteareadescribedinTable4,below.
Comment: There is no indication in the Permit as to how the Permittee will monitor the
groundwate, unar-"uth and in the vicinity of the Feedstock Storage Area to guarantee
that the materials stored there will not contaminate ground and surface water' The
feedstock is sometimes stored for years out in the open where it is subject to dispersion
and leaching by wind and water, and surface water'
TniJmust be corrected
4. Part I, page 202 G. O(1T OF COMPUANCE STATUS,4. (e), Wlere it is infeasible to
reestablish DMT as ctefirud in the permit, thc Permittee may proPose an alternative DMT
for approval by the Executive Secretuy'
Comment: The DRC does not define "feasible." Does feasibility include economic
feasibility? Wto aeciaes if a ground lvater corrective action plan i-s "uofeasible"?
There is no mentioo of tt" staidards that must be met by the Permittee when proposing
alternative concentration limits (ACLS). Are the standards for establishing ACI-s
outlined in l0 C.F.R.-p"Jao, Appendix A, applicable here? What criteria will the
Executive use in *i.rning applications for tiri establishrnent of ACIs?
The term.Teasiblei must Ue defined. The standards for the establishment of
ACIs must be spelled out in the Perrrit
There is no mention in the Permit of any necessity for the Permitrce to increase
the reclamatio, rur.ry io cover ground water rimediation when the Permittee is out of
.o*pti*.r. NRC *a St ,. ,tfril.tiont require a surety to cover the costs of
-
reclamation, including any groind water remediation. This requirement must be included
in the permit
5. Part I, page 2tl: H. COMPUANCE SCHEDUIE, REQUIREMENTS' Tlu Permittee
irtt ro*piy ii**" sched.ules as described aild summarizedbelow:
comment: Nowhere in the extensive list of compliance schedule n"gyryrynts is there
*y ,rqrir.ment for the Permittee to respond to ttre 8-Pug: November 28, 2001' DRC
nrqr".t for Additional Inform.ti9l, regarding December 31, 1998, Knight Piesold
Report on Seepage Ftut from Tailings cell 3 Liner, white Mesa Mill'
Division of Radiatio, tl
January 7,2ffi5
Has the permittee responded to this RAI? If not, has the DRC notified the
Permittee that they don't have to respond?
It was definitely my understanding, based on colrespondence with thc PRC, that a
schedule for the permittee;s long-delayed response to the 2001 request would be part of
the Permit requirements. Is this no longer the case? If so, why?
There must be a full explanation of this situation'
In addition, the DRC must review all previous requests for information and make
a determination that they have all been fully responded to or a schedule for response has
been established in the context of the Permit
6. There is no discussion in the Permit of other types of contamination to gfound and
surface water by activities on the land owned by the Fermittee at the facility. The
permittee
"ulr.otly allows cattle to Etazeon some of the mitl property. They cattle can
and do access Ruin Spring. Ruin Spring is on U.S. Departrnent of Interiol Bureau of
Land Managemen! piop"rty that abuts the mill property. The Ruin Spring area is
trampled an-rt contamiout"d-by wastes from the cattle. The spill-over from a tqnk below
it " .priog (which has not been cleaned in years) feeds a desert riparian area The spring
is used by wildlife
Does the Permiuee have any responsibility for the ruin of Ruin Spring by the
cattle that graze on its mill facility proPerty?
7. Part I, page 12: D. 5. Definition of 1Ie.(2) Waste -for purposes of this Permit,
I Ie.(2) *^i * defircd as: "... tailings or wastes produced W thc ertroction or
cotrcentrotion of u-ranium or tlwriumlrom any ore processed prbnatily for its source
material content", as defircd in Secition 11e.(2) of tlu IJ.S. Atomic Ercrgy Act of 1954, os
amendcd; which irrcludis othcr process related wastes a.nd waste streams dcscribed by a
Morch 7, 2rtr,3 NRC letter lrom-Paul H. Loihaus to Willian J. Sinclair.
The March 7,20f,3,NRC letter from Paul H. Lohaus, Director, Office of State
and Tribal Programs, Nuclear Regulatory Commission (NRC) to William J. Sinclair,
Director, Divis'ion of Radiation Control, (in response to questions in the January 14
z}O3,letterfrom William Sinclair) states in part
Question 4: As alternate feed material arrives ot the White Mesa
facifity, it can be soil co-mingled with debris such as corrcrete,-plastic, and brict<s. Tluse materials maybe rwn'uranium bearing-and are l'along for tlu ride" as a result of arry particular
remediation project.Tluse materials may be separated at tlw titru
of introduction into the uronium recovery process and eventrul$
tlisposed of in the tailings impoundments. Would thcse ntaterials be
ckssified as IIe.(2) byproduct material?
Response: Yes. Th.b alternate feed material is regulUed in tnass as
ore-; thcrefore, the material not ameffile to processing, i.e., dcbris
Division of nuaton Control
January 1,2005
aJJociatedwithittlwtrnustbeseparatedo!thetitncofuranium
,rrouli,-r, awe$tefro* or" proressing tlwt meets tlu definition
of t teiil bYProduci maeriai'
"r-tiTf:re is absolutely no statutory or regulatory basis for the State of uah to
authorize tn" pro""ffiiilAr"-*ieeO marcriali'at the IUC mill' There is no
statutory or regulatory basis for the State of utah to include the "process related wastes
and waste ,t ""*r- iiorn ,h, pr*"rring of materlI1 other than natural ore ('alternate
feed material,,) in tr,, ,tutoto.y and regilatory definition of 11e.(2) byproduct material'
The Ground wfu. bionurg" permit must not authorize the processilg of
..alternate feeA mJrial." The Ground lVater Discharge Perm! m-ust not authorize
the disposal of rr"f,rt L-tI.P the processing of "alternate feed matcrial" as
11e.(2) byproduct material. Such authirization is not permitted by any statute or
..g"f"tir".
Any request by the Permittce for such authorization must be denied'
The following (including Attachment A) are comments that support these
statements.
A. The March 7,Ioo3,NRC letter from Paul H. I..ohaus to willi1m J. Sinclair is
not an NRC legal .piiit, *J'h* ,o legal effect. Seel0 C'F R'Part 4O' Sec' 4p.'6'
Interpretations, which states:
ExceptasspecificallyauthorizedbytheCommissioninwriting,no
interpretati;; of the ineaning of the regulations in this part by any
officer o, "rnpioy",
of the c-ommission other than a writtcn
interpr"tutioffirn, C.r"*l Counsel will be recognized to be binding
uPon the Commission'
B.ThereisnolegalbasisunderandAtomicEnergyAct-of1954(AEA)'as
amended, to consider ro fdl"d "alternate feed material'and various debris
accompanying ,u;-"t"rial (at times constitutin g40% of the "alternate feed material')
as ..ore," as the t rmLore' is used in the definition of l le'(2) byproduct material'
The Permit murinot include any statement that.would imply processing of feed
material other than naturar ore (..arternate feed material') is the same as the processing of
..any ore,,, and thai,l" arUrir, tailings, or wastes from such processing constitute lle'(2)
uip'toau.t material. ^ , -^ :-^t--r^ --r,ThestateofUtahcannotandmustnotincludeanyreferencetotheletterfromthe
March 7,IC/|/3,NRC in the Permir
See AttachmentA hereto for a full discussion and comments on this matter'
C.ThePermitdoesnotdefineso.called..alternatefeedmaterial.,'Thereisno
indication in the Permit that ..alternate feed material,, is made up of processing wastes
4
o
'*
Division of Radiation
JanuarY 7,2W
from other mineral processing operations that are commingled with contaminated debris
and soils. Why is ,tirr, ,o Oehnition of "alternate feed material" in the Pcrmit
D. The State of utah must only rely on the common, historical meaning of the
word "ore."
what does "ore" mean? The word, or term, "ore," as defined in several sources:
. "Ore-a naturally occurring solid material from which metal or
other valuabe minerals may be extracted.,, tlllustrated oxford
Dr*T*, DK Pub. 1998'I
...ore_Anativemineralcontainingapreciousorusefulmetalin
rrJn q*r-,iry *a i, such chemicat iomUination as to make its
;;,t.; prontuutt- Also applied to mineralt To*.fo:F"to
content of non-metals-'
Second Edition' OJord Uoi'"ttitlPress' 2000' p' l2Vt:915-9l6'I
. "Ore-a. A natural mineral compound of the elements of which
one at least is a metal. Applied mbre loosely to all metaliferous
rock, though it contain, tii *et l in a free state, and occasionally
;;,h; comlpounds of nonmetallic substances, as sulfur or€. . . . Fcy
L. e rnin"ri.f of sufficient value as to quality ryA.q'q{p th{ rnay
[L-*irJru proRt rrv.' tA Dictiolary ofrYini-ng' Mineral' and
Related Terms, compil-ed "na "aitta !1Paul W' Thrush and Staff
;f th" **, of Mines, U.S' DeP' of Interior' 1968'I
l,t;;"ilH;Jili['"* geology, oi, grud",, ore rnineral' ore reserve' ore zone' All of
these terms incorpor"ie fi, *Jid..orei as it relates to the mining of a native minerar. The
term ..ore,,' without tipi"ruti"o, has for many years been used in millions of inshnces in
thousands of miningl;illi"g, geological, mireilogrcal,radiochemical' engineering'
environmental, and t"grl".ihblilations. "Ore'ilike the word "water"'is a word of
common and extensirE ur"g. *ith a clear and accepted meaning.
rheoxfordEnslishDictionary.ryints""*?l-Yl1,:5lt1s-"r{:*}T::I"
goes back several hundred years. A l]lcfionary Or lvllulttg' rvrtuo'o" o"* -'-'*'-'
lists over 65 compouna *otat using the rvord:'ore," such as ore bin' ore body' or.e
A
The State of Utah must explain what the statutory and regulatory basis.is for
-
calling wastes rro, ott ", .i-ntt{ -prTessing operations "ore'" A policy' whether federal
or stale, is not a statutory or legal basis'
E.Inthepast"debrisassociatedwiththeprocessingof|.{tgryatefeedmaterial,'
has been received ui,L" IUC mil. Thousands ofions of suih debris have been disposed
of at the mill. ruC was paid to receive and dispose of this material' Some of the material
was apparently washJ(i.r., d".ontaminated), and the wash water was subsequently
pr*tti"a for its minimal source material contenL
t 6Division of Radiation
January 7,Z,nos
The debris that sometimes accompanies natural ore when it is processed at a
licensed uranium or thorium mill has no iconomic value to the licensee of a uranium or
thorium mill. A mill owner would not pay for or be paid to receive such debris and, in
fact, would pay less for ore contaminated with a lot of debris' However' the licensee will
be paid to receive *Jlirp.re of debris accompanying "alternate feed material-" what is
,r"ft, occuning i, tnut tnJ ricensee is getting paa io directry dispose of contaminated (or
decontaminated) low level radioactive waste'
There are no similarities between the debris associated with ore mined from the
ground and debris accompanying wastes and contaminated materials from other mineral
processing oPerations.
This debris must have been separated from any material that was going to be
processed at the mill prior to shipping to the mill. This could have been easily
accomptished, but *rut not because iiwas in the interest of originator of th9 waste to get
rid of it, and it was in the interest in the mill operator to get paid fgSlepting it
The State of Utah is in no way obligated to agree with the NRC on this questioa'
F. The March 7 NRC leffer states that "the alternate feed material is regulated in
mass as ore." There is conRict" confusion, and inconsistency in this stlter-ne*
Who, "*""Uy, ,"gulates alternate feed material as "ore," and what is the basis Of
suchregulation? ..,
The AEA does not mention "alternate feed material" and it's regulation. I can
find no NRC or ern regulations related to the regulation of "alternate feed material."
There are no NRC g;;;;* site spe-cific 9n*onme.nlal imnacts statemelts related to the
,rgulutio, of .,Ateriaie feed materih" or feed materials other than natural ore'
How can tfre NnC regulate alternate feed material "in mass as ore" when the NRC
has no statutory o, irgJu,o.i;orira.tion over "alternate feed material" or uranium and
thorium "ote"?*---
NRC regulation at l0 C.F.R. $ 40.13 establishes unimportant quantities of source
material that are outside of regulatory concern under the AEA' NRC regulation at
Section 4O.4 states that "sourie Material means: (1) Uranium or thorium' or any
combinatioo tfr"r"of, in any physical or chemical form or (2) ores which-conAin by
""igf,t one-rwentieth of or"'p"rtent (0.05%) or more of: (i) Uranium, (ii) thorium or (iii)
any combination thereof."
Section qO.iiiUi r.ys that any "ore" containing source material, whether or not it
meets the definitioo oiroGa. material (i.e., contains uranium and/or thorium of o-o5%
by weight) is exempt from regulation under Part 40. Section 40'13(b) states:
(b)AnyPersonisexemptfromtheregulationsltr'partandfrom
tf," ,"qrir!*trtt for a license sit forth in section 62 of the act to the extent
that such person roceives, possesses, uses, or transfers unrefined and
unpro."rrlrd ore containing source material; provided, th_at, except as
authorized in a specific license, such person shall not refine or Process
such ore
Division of Radiation [tt
January 7,zOOs
7
The NRC has exempted"Ore," either source material ore (over .us%,uranium or
thorium by weight) or non-source material ore (less than .05 7o uranium and/or thorium
bv weieht). The NRC iegulates facilities that process and refine "ore,ll under its
;Jfi;iilrr r r"lil iypi.,aott material, but ii does not regulate "ore" as such'
There i, notf,ing inthe AEA thatauthorizes the transfer to the State of Utah of
regutatory responsibilifi over uranium or thorium "oIE."
Thank you for providing this opportunlty to present comments'
Sincerely,
S*,-/ /7,{,rll*
Sarah M. Fields, Chair
Nuclear Waste Committee
GIen Canyon GrouP/Sierra Cllub
Enclosure: Attachment A
Comments on Draft Ground lVater Discharge Permit No. UGW370fi)4,
International Uranium (usA) corporation (IUC) Uranium Mill'
White Mesq Utah.
Attachment A
There is absolutely no statutory or regulatory basis for the State of Utah to
authorize the processing of "alternate feed material" at the IUC mill. There is no
statutory or regulatory basis for the State of Utah to include the "process related wastes
and waste streims,, fiom the processing of materials other than natural ore (i'dternate
ieed material,) in the statutory and regulatory definition of l laQ) bypoduct material.
The Ground Watcr biscnarge Permit must not authorize the processing of
..alternate feed material.t, The Ground Water Discharge Permit mrlst not authorize
tn. airp6uf of waste streams from the processing of "alternate fecd materialt'as
lle.(2lbyproduct material. Such authorization is not permitted by statute or
regulation r !
Any request by the Permittee for such a1|horization must be denied-
Th; foliowing discussion of the history of the statutes and regulations applicable
to the processing of oies for their source material content at licensed uranium and
thorium mills will support these statements'
1. Stahrtcs
A. Uranium Mill Tailings Radiation Confol Act of l97E
Uranium Mill Tailings Radiation Control Act of 19?8 (LJMTRCA) (Public Law
g5-M,/2Stat3O33 et t"q.1,amended the Atomic Energ5r Act (AEA) of 1954 (Public
I-aw g3-703, 6g Stat 9t9 it.seq.). The AEA of 1954 was an amendment to the Atomic
Energy Act of 1946 (Public I-aw 79-385,60 Stat 755 et seq')'
There is no evidence that the AEA, as amended by I,JMTRCA, anticipated and
sanctioned the processing of feed materials other than ry{ral ores and the disposal of
wastes from such pro".riirg at licensed uranium and thorium processing_facilities. There
is no evidence that the AEA gave the Nuclear Regulatory Commission (NRC) or NRC
Agreement States the broad authority to authorize the processing of feed materials other:
than natural ores as "ore.n There is no evidence that the AEA gave the NRC and NRC '
,tjr*rrrt States the broad authority to authorize the disposal of wastes from such
pricessing at licensed uranium and thorium processing facilities as '11e.(2) byproduct
material."
So-called..alternate feed material" is the wastes, contaminated debris, and
contaminated soils from other mineral processing operations. This material has been
deemed .Teed material other than natural ore." It is not "natural otc." It is not "any ore."
Ana, it is not..ore." There is no evidence that UMTRCA sanctioned the processing of
..alternate feed material," as " any ore," at licensed uranium or thorium extraction
o
#*,2Division of Radiation
AttachmentA
January 7,2OO5
facitities. There is no evidence that under UMTRCA materials other than natural ore
were ever consideJ to be..ore." There is no evidence that UMTRCA gave any federal
or state agency the discretion alter the definition of "ore" to include materials that are not
natural ore. There is no evidence that UMTRCA gave any federal or state agency the
discretion to alter the definition of "any ore" as that term is used in the definition of
" 1 1e.(2) byProduct material."
In fact, tfrrr. it specific evidence that Congress, the Atomic Energy Commission
(AEC), the NRC, and the Environmental ProtectiJn Agency (EPA) explicitly determined
that the processing feed material other than natural ore was not sanctioned by applicable
statute or regulation.
The regulatory history of uMTRCA, found in the two congressional reports,
provides infoination with respect'uranium mill tailingsn and 'ore'! The Congressional
Reports clearly stated what was contemplated by longress (known as the intent of
Congress) when Cot gt".t established " ptogln f:l F"- cgntrol of "uranium mill tailings'
fioiltt " pro"rrrirjJf *uranium ore" atinactive (fitle I of LIMTRCA) and active Critle
II of LJMTRCA) uranium and thorium processing facilitigl' House-Report (Interior and
Insular Affairs committee) No. g5-l4gb (I), August ll,lnS,and House Report
(Interstate and Foreign corn*"t 9 cgmmitee) No.95-1480 (II), September 30' 1978'
under "Background and Need," HR No.95-1480 (I) states:
Uranium mill tailings are the sandy waste produced by the uranium
ore milling process. Becauie only I to 5 pounds of useable uranium is
extracted from each 2,000 pounds of ore, tremendous quantities of yasrc
are produc"d u, " r"trlt of milling operations. These tailings contaiq
manynaturally-occurringrrazaragys.substances,bo+radioactiveand
nonradioactive. . . . As a result of being for all practic{ purposes' a.
perpetual hazard, uranium mill tailings present the major threst of the
nuclear fuel cYcle.
In its early years, the uranium milling industry was under the
dominant controfoithe Federal Government. At that time, uranium was
being produced under Federal Conracts for the Government's Manhattan
Engi-neering Disrict and Atomic Energy commission Program' ' ' '
The Atomic Energy commission and its successor, the Nuclear
Regulatory Comilssion, have retained authority for licensing uqnium
mills under the Atomic Energy Act since 1954. [HR No.95-1480 (l) at
I 1.I
The second House Report, under "Need for a Remedial Action hogram' states:
uranium mills are a part of the nuclear fuel cycle. They exract
uranium from ore for eventual use in nuclear weaPons and power-PfPtt,
leaving radioactive sand-like waste-commonly called uranium mill
tailingi-inlenera[y unattended piles. [HR No. 95-1480 (2) at25.l
3Division of Radiation
AttachmentA
January 7,200ls
B. Atomic Energr Commission and the AEA of 1946
As indicated above, the domestic uranium mining and milling industry was
established at the behest of the Manhattan Engineer District and the AEC' The AEC
ieguratea uranium mines and uranium processing facilities, established ore buying
,rritionr, and bought ore. Mining and milling of uranium ore was done under cotrtract to
the AEC. AEC plurchased uranium ore under the Domestic uranium Program'
n.gul",ioos related to the AEC's uranium Procurem_enlP-rograT,'9ry Yforth in
10 c.F.R. part 60. part 60 was deleted from Titlel0 0f the code of Federal Regulations
on March 3,lg7s,after the establishment of the NRC'
The AEC published a number of circulars related to their Domestic Uranium
Program that discuss the various tyPes of uranium ores. The Domestic Uranium
il;;;- Circular No. 3 - Guaranteed Three Year Minilym Price- Uranium-Bearing
bariotlte-fype or Roscoelite-Type Ores of the Colorado Plateau Arean (April 9,194)
amended l0 C.F.R. Part 60). The Circular states:
$ 60.3 Guaranteed three years minimum price for uranium-betring
carnotite-type or roscoelite-type ores of tlu Colorado Plateau-(a)
Guorartee. To stimulate domlstic production of uranium-bearing ores of
the Colorado Plateau area, cofllmonly known as carnotite-tyPe or
,or.o.lite-type ores, and in the interest of the common defense and
security the tlnited States Atomic Energy Commission hereby establishes
the guaranteed minimum prices specified- in Sch-edule I of this section, for
the Ielivery of such orts io the Commission, at Monticello, Utah, and
Durango, iolorado, in accordance with the terms of this section during the
Note: In $$ eO.t a11d6}.2(Domestic Uranium Program, Circulars No' I
and2),the Commission has established guaranteed prices for other -' domestic uranium.bearing ores, and mechanical concenEates, and refined
uranium ProducB.
Note: The term ndomesticn in this section, referring to uranium, uranium-
bearing oreS and mechanical concentrates, means such uranium, o!Bs, nnd
concentrates produced from deposits within the United States, its
territories, possessions and the Canal Tarre'
10 C.F.R. Part 60-Domestic Uranium Program at $ 60.5(c) states:
Definitions. As used in this section and in $ 60.5(a), the term "buyer'
refers to the U.S. Atomic Energy Commission, or its authorized
purchasing agent The term 'ioie'i does not include mill taili[gs-gr.gfher
mill productsl . . . [Circular 5, 14 Fed. Reg. ?31 (February 18, l%9).]
BmPhasis added.l
t 4Division of Radiation
Attachment A
January 7,200is
It is clear that the AEC was the primary mover in the domestic uranium mining
and milling program. Under the Atomii Energy Acts of 1946 and 1ry4, the AEC
regulated uranium mining and milling ana estautished a uranium ore-buying program' l
From the lg40,s to 1g75,-the regulations in 10 c.F.R. part 60 clearlydiscussed.what
uranium ore was and was not aid clearly staled th1'9r9" did not include mill tailings or
other mill products. In other words, "oie" did not include materials that had already gone
trrrougr, a ininerar processing operation. It did not include materials other than natural
'
ore.
From the very beginning of the AEA, the AEC was explicit about what uranium
ore was. Ore specifi'cuiff alA n6t include tailings, wastes, and productsfrom-mineral
pi*"5iog op.*tionr. Nothing has changed in the use of the term "ore" in-the statutes or
Lgrf"tior"r pertaining to the pricessing oi uranium and thorium ore since that time'
C. Statutory Delinition of Source Material
The AEA of l946,under ncontrol of Materials,n Sec. 5 (b), 'source-Materials,'
(l), ,,Definition,n provides the definition of I'source material.'! Section s(bxl) stat€s:
Definition. - As used in this Act, the term "source material' means
uranium, thorium, or any other material which is determined by the
Commission, with the approval of the President, to be peculiarly esscntial
to the production of fissionable materials; but includes ores only if they
contain one or more of the foregoing materials in such concentration as the
Commissior--"y by regulatiotiattJttnine from time to time.
The AEA of 1g54, Chapter 2, Section 11, "Definitions,n sets forth the current
statutory definition of "source material n at Sec' ll(s):'
The term nsource material" means (1) uranium, thorium, or any other
material which is determined by the Commission pursuant to the
provisions of section 61 to be source material; or (2) ores containing one
or rop of the foregoing materials, in such concentrations as the
Commission may U:y r"grtution determine from time to time.
t42 U.S.C. Sec. 2014(z).I
Responsive to this statutory definition, in 196l the AEC established the following
regulatory definition at l0 C.FR $ 4O'4:
source Material means: (1) Uranium or thorium, or any combination
thereof, in any physical or chemical form or (2) ores which contain by
weight on"-ttn"rtitth of one percent (0.O5?o) or more of: (i) Uraniunr'
(ii) Ihorium or (iii) any combination thereof. Source material does not
include special nuclear material. [26Fed. Reg. 284 (Jan. 14, l%l).]
o
0*'Division of Radiation
Attachment A
January 1,z00ls
Therefore, the AEC made a determination, in accordance with the mandate of the
AEA of lgs4,that ores containing o.}S%othorium and/or uranium would meet the
statutory definition oir"rr"t,n.tlriul. For materials other than natural ore, only the
;il; and or thorium content (no maffer what the concentration) met the statutory
definition of source material. There was a clear differentiation berween the rwo types of
source material.
At ttre same time that they made that determination, the AEC had a regulation that
clearly stated that -orc does not-include mill tailings or other mill products. Surely, the
AEC, as the aaminist ato, of a uranium ore procurement program and the developer of
the uranium mining'anJ ,,,ltting industry knew_wh-1t they were refening to when they
used the term nore.n There was no r""i to define"ore" in the statute or regulations
because that term n"J* roquestionable commonly accepted meaning within the mining
and milling ioAort f. ilfi; P{ of the new ttgt'tatoty terminology' On the other
hand,.'source ru,"riui; and "special nuclear material'were defined because they were
new regulatory terms.
TheAECsetforthcertainexemptionstotheregulationsinl0C.F.RPalt40.The
p.opor#iri;;hfi-;tater irnatized in Junuuty 1961, states in pertinent Part:
The following proposed amendment to Part 4O constitutes an over-
all revision of l0 CFfr-Part 40, "Control of Source Material'n
witlrcertainspecifiedexceptions,theproposedamendment
requires u fi"rnr" for ihe receipiofide to, *i tt " receipL possession' use'
transfer, import, or export of source material' ' ' '
Unali tt r proiosed amendment, the definition of the term "soulce
material,': J;*,tJ; tf Uriog it into closer conformance with that
containedintheAtomicEnergyActoflgs4'"sourceMaterialnisdefined
as (1) uranium or thorium, or any combination thereof, in any physical or
chemical form, Lut does not inctude special nuclear material, or (2) ores
which contain'by weight one-twentieth of one percent (0'05 percent) or
,"["f trt *"n"ir., [u; tt oriu. or (c) any combination thereof. The
amendment ,"oufO tit*pt from the licensing requirements chemical
mixtures,.Lrnpoorat, solutions or alloys containi:ng less than !'05 ne.rce-1t
source ..d;i ti ,ntigfrt As a result-of tnis exemption, the change in the
definition J ro*lr ma:terial is not expected to have any effect on the
licensingprogram'"' . F --!---r--:r:^^Section 62 ofthe Act prohibits the conduct of certain activities
relating to ,oui". material 'after removal from its place of dePosit in
nature,' untess such activities are authorized by license issued by the
Atomic gn.rgi Commission. The Act does not, however, require a
license ro, ttZ"rnioing of source material, and the proposed regulations, as
in the case ;f ,h. .rri"ot regulations, do not require a license for the
conduct of mining activitieJ. Under the present regulation, mi-n9rs ay
required to have u li..n*" to transfer the source material after it is mined'
Under trre p,opo,ed regulation betow, the possession and transfer of
Division r*ot?"**'
Attachment A
January 7,z0[ls
unrefined and unprocessed ores containing sourcematerid would be
exempted. 147 Fed' Reg' 8619 (September 7' 1960)'I
Here, the regulation makes clear that "source material 9r.e" is. something-tlat ha1
been removed fromffiu." or deposit in nature." It is something that is mined from the
ground bY miners.
Therefore, the AEC established, via a rulemaking, exemptions for sour-ce material'
as defined in sec. z[la(z)(l), related to mixtures, compounds, solutions' or alloys
containing uranium and/or thorium:
(a)Anypersonisexemptfromtheregulationsinthispartandfrol
the requirements for a license set forth in section 62 of the Act to the
extent tr,"t .o"t, Person receives, possesses' uses, tranders or delivers
source -u,"riuiilr-any chemical mixture, compound, solution, or alloy in'
which the source maierial is by weight less than one-twentieth of I percent
(0.05 perceng of the mixture, tompound, solutio.n or alloy. The
exemption contained in this paragraph doT PJiTlude byproduct material
as defined i;A;;fu. t10 i.F.R-. g 4o.13(a), 26FeA' Reg' 284 (Jan' 14 ' ,
l%l).1
The AEC also established, via a rulemaking, exemptions for souroe material' as'
defined in Sec. 2}la{z)Q), related to'ore":
(b)Anypersonisexemptfromtheregulationsinthispartandfrom
therequirementsforalicensesetforthinsection62oftheacttothe
extentthatsuchpersonreceives,Possesses'uses,ortransfers
unrefined urJrrproressed ore containing source material; provided,'
that, exceptas authorized in a specific !'":ry:: such persgo thlll.ogj
refineo,p*,,suchore.[10C.F.R.40.13(b),26Fd.Reg.284(Jan.14'
le61).1
The definition of ,'source materialn and the exemptions that are related to those
definitions stand today, over forty years later. These regulatory definitions and
exemptions aia not ciange *nt en tfie NRC was established in 1975 and took on the
;;;;d;tiesponsibilitylor'source material.n These regulatory definitions and
exemptions aia not cnange when the AEA was amended by UMTRCA in 19/8' These
;;;ilfi"* ura A.nottiois did not change when th9 N-RC developed their policy
g;;a*.", related a ,t " pi*essing of fe--ed materiar other than natural ore at licensed
uranium recovery oPerations'
Alternate feed material that contains uranium and thorium contains "sour@
material" under me frrst definition of "source material"' However' it iS not "s,urCe
material,, under the second definition, because it is not "ore" under the applicable statutes
and regulations.
6
Division of Radiation *t :
Attachment A
January 7,zOOs
D. Definition of 11e.(2) byproduct material'
7
ulvITRCA, among other things, amended the AEA of 1954 by adding a new
definition-the definition of 11e.(2) byproduct material:
sec. 201. section lle. of the Atomic Energxr Act of 1954, is
amended to read as follows:
"e. The term'byproduct material'means (l) any radioactive
material (except speciafnuclear material) yielded in or made radioactive
by exposure to ne radiation incident to the process of producing or-
utilizing special nuclear material, and (2) the tailings or wastes produced
by the Cxtraction or concentration of uranium or thorium from any ore
pr*essed primarily for its source material content" t42 U'S'C' Sec' 2014
(e).I
There is no evidence in the regulatory history of UMTRCA that congr-ess, in
defining ;ii"iiityprJr", material;intenold to also amend the statutory definition of
nsource materiar.* 'fh"..*y ore', in the definition of ile.(2) byproduct material is l)
ores which contain by weight one-twentieth of one percent (O'OSVo) or more-of: (i)
uranium,(iil thoriumtr (iii) any combination ttrereof (source material); and 2) ores which
contain less than Uy weiili oni-twentieth of one percent-(0'O5%) or more of: (i)
,*riu.,tii) thoriuh ot [iii) any combination thereof' If the term "any oI€" was meant to
include materials other tiran ..oirr" in the definition of "any ore," the result would be an
;;;d#io ,n" definition of "source material." There was no such amendment to the
;il; d"finitioo oi "rorr." material''
There is no evidence in the regulatory history of UMTRCA thatthe t"13'*y
oreo does not mean "*y ayp" of uranlum otiu 1i.e., ore containing less than '057o
uranium and/or thorium ana the numerous types of n11uyl uranium-bearing minerals that
"r".lr"a at uranium mines and milled at uranium dil:):-
There is no evidence in the regulatory history of LJMTRCA that Congress
intended the term nany oren to mean anythini tfrat tfrelryC or an Agreement State
wanted it to mean. Tf,ere is no evider.L tt uiumRCA intended that "ore" included
wastes from mineraiil;hg operations mixed with wastes and debris from other
sources, even if those wastes were processed for their source material content at a
licensed uranium or thorium mill'
2. NRC Regulations
A. Mandate of UMTRCA
UMTRCA required that the EPA and the NRC promulgate rules and regulations
implementing the statute. - r^-.,--i,
Both the EPA and the NRC established a regulatory program for uranium milling
and the processing "i ortt. Neither the EPA nor thi NRC contemplated the processing of
tDivision of Radiation
Attachment A
January 7,2005
materials that were not "natural oren when they developed and promulgated their
regulations o
Neither the EpA nor the NRC considered wastes from other mineral processing'
operations in their concept of nore," and they did not address in any manner the
pior.rriog of such *ourt* when promulgating their regulatory regimes for active uranium
processing facilities.
Further, during the various rulemaking proceedings, the public was never
:
informed that wastes irom other mineral proclssing operations, no matter how they were
defined, would u, pro"mr"d at licensed uranium oi thorium mills. Therefore the public
;;;gi;;, absolutely no opportunity to corffnent on such processing activities at licensed '
uranium or thorium facilities.
The public has never been given this opportunity in any NRC, EPA, or Starc of
Utah rulemaking Proceeding
B. NRC Regulatory Progrsm, 10 C'F R' Part 40
ResponsivetoUMTRCA,theNR!in99+or.aqdtheUMTRCAdefinitionof
lle.(2)byproductmaterial (with clarification) inio their regulations at l0 C'F R $ 4O4:
,,Byproduct Material" means the tailings ol w.astes-Produced by the
extractionorconcentrationofuraniumorthoriumfromanyore'processed
primarily for its source material content" including discrete surface:vastes
iesulting from uranium solution extraction processes. Underground ore
bodies Jepleted by such solution extraction operations do not constitute
;UypioArit *ut"tiA' within this definiti on. l}4Fed' Reg' 50012-50014
(August 2A,ln9)-7
The NRC also explained the need for the new definition:
section 40.4 0f 10 cFR Part 40 is amended to include a new
defi nitioi oi;;Uyproduct material.' This amendment, which included
uranium and thorium mill tailings as byproduct material licensable by the
Commission, is required by theiecently enacted Uranium Mill Tailings
Radiation control Act f4Fed. Reg. 50012-50014 (August 24,1n9'7
The NRC promulgated further regulations amending Part 40, in 1980' In the
Federal Register Notice (FRN) summary, the NRC states:
TheU.S.NuclearRegulatoryCommissionisamendingia
regulations to specify licensing requirements for uranium and thorium
,nltling activities, including tailings and wastes generated from these
activities. The amend.tnfu to parts 4O and 150 take into accountthe
conclusions reached in a final generic environmental impact statem€xt on
uranium milling and the requirements mandated in the Uranium Mll
Division.r*#" Conrol
AtachmentA
January 7,2005
Tailings Radiation Control Act of lnSl,as amended, public comments
receivid on a draft generic environmental impac! statement on uranium
milling, and public comments received on proposed rules published in the
Federal Register. [Footnotes omitted.] ffi Fed. Reg.65521-65538
(October 3, 1980).I
There is no statement in any of the NRC regulations in l0 C.F.R Part 40 or in any
of rulemaking proceedings promutgating those regulations that, under any circumstances,
wastes from ot-her mineral processing operations can be considered to be ooren. There is
no statement that, under any circumstances, such wastes would be processed at licensed
uranium or thorium mills and the thilings or wastes would be disposed of as 11e.(2)
byproduct material in the mill tailings impoundments. The regulations promulgated by
tfre NnC and the EPA did not contemplate this kind of mill processing activity.
The National Environmental Policy Act ("NEPA'!) document in support of the
promulgation of the NRC regulatory program for uranium mills did not contemplate this
iind of uranium or thorium milling activity. In the rulemaking proceedings and NEPA
proceeding the public did not have an opportunity to contemplate and comment on this
irind of mineral-processing activity at licensed uranium or thorium mills.
C. The Final Generic Environmental Impact Statement on Uranium Milling
In developing and adopting Part 4O regulations, the NRC relied upon the Final
Generic Environmental Impact Statement on Uranium Milling ('GEIS'), NUREC}-0706,
September 1980. The GEIS makes a clear statement regarding the scope of the GEIS and
its understanding of what uranium milling entails:
As stated in the NRC Federal Register Notice (42 FR 13874) on
the proposed scope and outline for this study, conventional uranium
milling operations in both Agreement and Non-Agreement States, are
evaluated up to the year 2000. Conventional uranium milling as used
herein refers to the milling of ore mined primarily for the recovery of
uranium. It involves the processes of crushing, grinding, and leaching of
the ore, followed by chemical separation and concentration of uranium.
Nonconventional recovery processes include in situ extraction or ore
bodies, leaching of uranium-rich tailings piles, and extaction of uranium
from mine watJr and wet-process phosphoric acid. These processes arc
described to a limited extent, for completeness. IGEIS, Volume I, at 3.]
The GEIS is very clear about what it considers nore'to be and gives no indication
whatsoever that materiais other than ore, such as the tailings or waste from mineral
processing operations (including debris, commingled contaminated soils and waste
materials irom other sources) are considered to be 'ore.' The processing of 'qalternate
9
Division of Radiation *'
Attachment A
January 7,2005
feed material,, was not mentioned in the discussion of "nonconventional recovery
proceses" in the GEIS. r a: -_The GEIS includes a discussion of "Past hoduction Methods.n That discussion
makeS referenCe tO nOre," "Ore explOration,n "pitchblende Ore,' ncrude Ore milling
processes,,, ',lower-gradl ores;" "itllrl1_-!"glg gold ores,n "high-grade or€s,' nore-
buying stations,,, uJd "or. reserves.n GEIS, Volume I, Chapter 2, at}'l to2'2' There is
;i;rdhy discussion of "Uranium Mining and Milling operations'that provides a
description of the.ornrnonty and less-co"mmonly "usid methods of mining uranium
ores."'GEIS, Volume II, at B-l toB'2' Appendix 1'
-
In Chapter C, i'ioriroo.ental Impacts," thete is a discussion of nExposure to
Uranium Ore Dusln which states, in part
uranium ore dust in crushing and grinding areas of mills contains natural
urani um (U-23 8, lJ -235,ttrorium-i30, rad] um- m' lld?l 0t *9
polonium-2lO) as the important radionuclides. [GEIS, Volume I, at64l']
There is also a table giving the'Average occupational Internal Dose due to
Inhalation of Ore Dusln CdlS ^{64l,Table 6.16. Further, the GEIS discusses
,,shipment of Ore to the Mill' (GEIS ai Z-t 1), "Sprinkling or Wetting of Ore Stockpile'
(GEIS at8-2),"OrcStorage" and "!1e Crushing and Grinding" (GEIS at 86)' 'O.re Pad
*a Crinaini; (CglS, Voi. 3, atc-2'), nOre Warehouse (GEIS, Vol' 3, at K-3) and
,,Alternatives to Control Dust from Ore Handling, Crushing, and Grinding Operations
tbiiS, vol. III, at K-3 to K-3). In the NRC responses to comments there are discussions
ii;nrrr"ge Ore Grade, Uranium Recovery." GEIq, Vol. IL at A-12 to A-13'
Nowhere in these discussions of "ore" was it stated that materials other than
natural ore were thought to be a type of "ore" and the processing of such materials would
be addressed in the environmental review
The GEIS did not consider the processing of alternate feed material, of whatever
source and kind. ft " CelS gives no indication whatsoever that such wastes are noIE"'
even if they were processed it a uranium or thorium recovery facility for their nsource
material content." ciearly, the GEIS did not contemplate a situation where wastes from
it, p.o.*ring of feed material other than natural ore would meet the definition of 11e'(2)
byproduct material.
Therefore, the GEIS did not evatuate, and the public did not have an opportunity
to comment uPon, any of the possible health, safety, and environmental impacts of the
processing of otf,er #neral piocessing wastes at uranium or thorium processing facilities'
There was no evaluation of the transportation issues related to the transportation of such
wastes, nor were reasonable alternatives to the transportation, receipt, processing, and
Jisposal of such wastes at uranium or thorium mills ever evaluated'
The NRC has never supplemented the GEIS to include an environmental
assessment of the processing of alternate feed materials' The NRC has neyer required a
rit"-rp..inc Enviionmental Impact Statement for any uranium mill' including the
permittee,s mill, that evaluated-the environmental impacts associated with the processing
of ..alternate feed material" at the milt. Most of the "alternate feed material" (including
t0
Division of Radiation t
,
Attachment A
January 7,2N5
1l
large amounts of debris) processed at the Permittee's uranium mill was received,
processed, and disposed of without any type of environmental review whatsoever.
3. EPA RegulatorY Standards
A. Mandate of IJMTRCA
LJMTRCA directed the EPA to establish standards for uranium mill tailings and
directed the NRC to implement those standards. That statute, as codifiedia42 U.S.C.
2022, states in Pertinent Part:
Sec.2O22. Health and environmental standards for uranium mill tailings
(b) Promulgation and revision of rules for protection from hazards at
processing or disPosal site.-tt),Lt,oo,
as practicable, but not later than October 31, 1982, the
Administrator shall, by rule, ProPose, and within ll months thereafter
promulgate in final form, standards of general application for the
protecti-on of the pubJic health, safety, and the environment from
iadiological and nonradiological hazards associated with the processing
and with the possession, transf.er, and disposal of byproduct rnaterial, as
defined in section 2uaG)Q) of this title, at sites at which ores are
processed primarily for their source material content or which are used for
ihe disposal of such byproduct material. - . . [Emphasis added.]
Requirements established by the Commission under this chapter
with respect to byproduct material as defined in section z0la(s)@) of this
title shall conform to such standards. Any requirements adopted by the
Commission respecting such byproduct material before promulgation by
the Commission of such standards shall be amended as the Commission
deems necessary to conform to such standardS in the same manner as
provided in subsection (fX3) of this section. Nothing in this subsection
it utl b" construed to prohibit or suspend the implemetrtation or
enforcement by the Commission of any requirement of the Commission
respecting byproduct material as defined in section 20A(eW) of this title
prrairg promulgation by the Commission of any such standard of general
application. In establishing such standards, the Administrator shall
consider the risk to the public health, safety, and the environment, the
environmental and economic costs of applying such standards, and such
other factors as the Administrator determines to be appropriate.
*:**
(d) Federal and State implementation and enforcement of the standards
promulgated pursuant to subsection (b) of this section shall be the
i"sponsibility of the Commission in the conduct of its licensing activities
,ndrr this chapter. States exercising authority Pursuant to section
2OZl(b)(2) of this title shall implement and enforce such standards in
Division ", *"#" Control
AttachmentA
January 7,20015
accordance with subsection (o) of such section.\4TU.S.C. 2O22(b) and
(d).I
Congress directed the EPA only to establish standards for''sites-at which ores are
processed plmarily for their source material." The EPA, as mandated by LJMTRCA'
finalized the "Environmental Standards for uranium and rhorium Mill railings at
Licensed Commercial Processing Sites" in 1983. 48 Fed' Reg' 459?545ry-'Oc'9ber7-'
19g3. In the ,,sumrnary of Backiround Information" the EPA provides a discussion of
,,The Uranium Industry" (i.e., the industry that the regulations apply to):
Themajordepositsofhigh-gradeuraniumoresinjteunilejssT.':*
located in the ^Colorado Plateau, the Wyoming Basins, and the Gulf Coast
Plain of Texas. Most ore is mined by either underground or open-pit
methods. at trr" mill the ore is first irushed, blended, and ground to
proper size for the leaching process which extracts uranium. . . . After
uruniu- is leached from the ore it is concentrated . . . . The depleted ore,
in the form of tailings, is pumped to a tailings pile as a slurry mixed with
water.
Since the uranium content of ore averages only about 0.15 percenl
essentially all the bulk or ore mined and processedjs contained in thc
tailings. t+t n"a. Reg- 45/25,4\yn,OctoUer 7'1983j
Clearly, when the EPA developed its standards for uranium and thorium mills,
they stated, with ,p""iti"iry and particularity, what uranium ore was, what uranium
milling consisted oi,"rA wnat uianium milltailings consisted of. The EPA clearly stag
that the standards applied to the processing of uranium and thorium ores at uranium and
thorium mills. Th# is no reasoiable eviience that would indicate tfat tf standards
prolnulgutrd by the EPA applied to tfrl processing of.wastes from other mineral
ffi;;J;toperationsat ur'anium and thorium mils (i.e., arternate feed material).
Additionally,lthe EpA incorporated UMTRCA's definition of 1le.(2) byproduct
material, as clarifi# [y tne NRC in- 10 C.F.R. 40.4, into their standards at 40 C'F R
Subpart D, S lJD.3i(Ui. Since that time the EPA has not amended their definition of
I le.(2) byproduct ,u,"tiut in a rulemaking proceeding, nor have they amended their
a"fioitioo ri" poricy guidance. The EPA U"s rot, in any manner' widened the use of the
words ,,any ore,,oif"roa" any type of mineral processing wastes that is currently rcrmed
"alternate feed material. "
As will be discussed below, the EPA did not sanction the NRC's policy guidance
with respect new definitions of "ore' and l1e.(2) byproduct material'
Clearly, tUe,iP,q, as directed by Congress, has not in any manner contemplated
the processini of ,nurt", fro, other mineral ixtraction operations at uranium or thorium
mills when establishint the "Environmental standards for uranium and Thorium Mill
Tailings at Licensed Commercial Processing Sites''
12
Division of Radiation tt
Attachment A :
January7,z00s ,
, ,
B. EPA Regulations
When compiling that list of hazardous materials and incorporating that list into
40 C.F.R. Ptrtlff2,the EPA did not in any manner contemplate the processing of wastes
from other mineral extraction operations at the mills for which they were establishing
standards. The EPA did not address in any manner effIuents that might result from the
processing of feed materials that were the tailings and other processing wastes from other
mineral extraction facilities .
In the various rulemaking proceedings that have taken place for the establishment
of the EPA standards, the public was given no opportunity to consider or comment on the
possibility that the EPA standards would also apply to the processing of wastes from
other mineral processing operations (including commingled debris, soils, and waste
materials from other sources) at uranium and thorium mills-
It is true that the EPA and the NRC, in establishing their regulatory Program,
contemplated the processing of ores at uranium and thorium mills. However, as shown
above, processing of wastes from other mineral processing operations at uranium and
thorium mills was beyond the scope of the regulatory program established by the NRC
and the EPA in resPonse to UMTRCA.
Furthermore, l0 C.F.R. Paftq,Appendix A, Criterion 8, states in parfi
Uranium and thorium byproduct materials must be managed so as to
conform to the appticable provisions of Title 40 of the Code of Federal
Regulations, Part 440, nOre Mining and Dressing Point Source Category:
EffIuent Limitations Guidelines and New Source Performance Standards,
Subpart C, Uranium, Radium, and Vanadium Ores Subcategory,n as
codified on JanuarY 1, 1983.
There is no indication that these regulations applying to "ore" also apply to
.,alternate feed material." There is no evidence that "alternate feed material" was
considered to be some new tyPe of "ore."
There is no indication that this NRC regulation and the regulation in 40 C.F.R.
paft#0 (and the enabling statute) have in any manner been amended or altered by
subsequent NRC policy guidance. Therefore, any shift in the usage of the word noren
wouldconllict with thise statutory and regulatory authorities with respect this regulation.
3, Regulatory History of llRC's Alternate Feed Guidance
A. In the late 1980's the NRC was faced with a few requests to Process material other
than ore. At that time, and today, there are two statutes or regulations (implementing
those statues) that are pertinent. First is the statutory definition of nsource materiall
established in l954by the AEA, found at 42 U.S.C. Sec. 2ol4(z), and in the NRC
regulatory definition of "source material' (established in l!)61 Pursuant Sec. 2014(z)),
found at io C.r.n aO.+:
13
Division ", *o* control
AttachmentA
JanuarY 7,2005
Source Material means: (1) Uranium or thorium, or any combination
thereof, in any physical or chemical form or (2) ores which contain by
weighto,"-t,n,nti"thofonepercent(0.o5c/o)ormoreof:(r)Uranium,
(ii) Ihorium or (iii) any combination thereof. Source material does not
include special nuclear material'
The second is the definition of 'byproduct material' in Section 1l(eX2) of the
Atomic Energy Act of lgs4,as amende i,i+ZU.S. C Sec. 2014(e)(2)) and the regulatory
definition of -.Lyproduct materialn found in 10 C'F R' 4O'4:
Byproduct Material means the tailings or wastes ploduced by the
extraction or concentration of uranium or thoriurnfrom any ore processed
primarily for its source material content, including discrete surface wastes
iesutting from uranium solution extraction processes. Underground ore
bodies depleted by such sotution extraction operations do not constitute
nbyproduct material" within this definition'
The NRC had several options, including the denial of the amendment requests:
One option would have been togo to Congress and request that Congress change the
definition of I le.(2) byproduct material. NRC Staff made a determination that they
would not go to Congiess to seek an amendment to the AEA of 1954.
Inslead, whaithe NRC did was to manipulate the use of the word ' any oren as it
is used in the definition of 1le.(2) byproduct material. NRC proposed in a notice and
tomment proceeding, that a policy gria*"" be established for the purpose of interpreting
the term ,,ire,, as itls used in me a&inition of lle.(Z) byproduct material. "Revised
CriO"n"" on birpo.ul of Non-Atomic Energy Act of l9 !, Section l1e'(2) Byproduct
Material in Tailings Impoundments" and "Position and Guidance on the Use of Uranium
Mill Feed Materials Oti"tThan Natural Ores," 57 Fed' Reg' 20525 CeQll: l99z)'
The NRC did not institute a rulemaking proceeding to amend l0 C.F.R. Part40.
The Final position and Guidance gave a new definition of ore. "Final Position
ara Cuiaance on the Use of Uranium Mill Feed Materials Other than Natural Ores." 60
f"A. n.g. 4g}g'(Septembe r ?5, 1995). "Interim Position and Guidance on the Use of
uranium Mill Feed Material other than Natural ores," Regulatory Issue Summary (RIS)
2AAO-23 (November 30,2000). The new definition states:
Ore is a natural or native mafier that may be mined and treated for the
extraction or any of its constituents or any other matter from which souroe
material is exracted in a licensed uranium or thorium mill. [60 Fed Reg.
at 49,296 (SePtembe t 22, 1995)'7
Based on the new use of the term "ore" as put forth in the proposed guidance, not
only would the definition of lle.(Z) byproduct material apply to nany ore processed
primarily for its source material content" in a licensed uranium or thorium mill, but the
t4
Division of Radiation t
Attachment A
January 1,20015
definition of 11e.(2) byproduct material would also apply to any materiAl (particularly
wastes from various mineral extraction operations and various commingled wastes and
J"urirl processed primarily for its source material content in a licensed uranium or
trrorium mill. In othr,,noids, NRc altered the accepted meaning of the word "oren as
that word ore was used in statutory definitions
B. On May 14, Lgy2,NRC Staff, sent a letter to the EPA, enclosing a copy of the May
13 proposed rules and requested EPA comment on two proposed guidance documents
*a'tnri, associated staff analyses. Letter from Robert M. Bernero, Director, office of
N;;il Material Safety and Safeguards, NRC, to Sylvia K. Lowrance, Director, office
of Solid Waste, EPA, MaY 14, lWL
The EpA did not submit comments on the proposed policy guidances. The only
documentation of EPA's response to that request for comment is quoted below and is
found in the Commission Paper that forwarded the finalized guidances to the
Commission for their aPProvaln
There was an issue that delayed finalization of the guidance
documents. l, * October lggz,mixed waste meeting between the NRC,
the EPA, and DOE staff, EPA identified potential inconsistencies in
NRC's interpretation of the definition of source material in conjunction
with the exclusion of source material from the definition of solid waste in
the Resource Conservation and Recovery Act (RCRA)' In making its
point, EpA cited the May 13,lW2,Federal Register notice on the disposal
of non-l le.(Z)byproduct material. The staff had delayed finalization of
the uranium r""or"ry policy guidance documents, pending resolution of
the source material drfioitlor issue. However, the staff has now decided
that these two policy guidance documents can be finalized, independent of
th. ,our"" material
-itJu",
because the guidance is not dependent on the
interpretation of the definition of source material. ["[iinal 'Revised
Guidance on Disposal of Non-Atomic Energy Act of 1954, Section lle.Q)
Byproduct Material in Tailings Impoundm?l9'*9 Final'Position and
Guidance on the Use of Uranium Mill Feed Materials OtherThan Natural
Ores,'n SECY-95-221, August 15' 1995'I
The proposed Position and Guidance and the Final Position and Guidance gave no
indication that the NnC was amending, interpreting, or-in any manner adjusting the
,..rf"A meaning of the term no1e" as that word is used in the statutory and regulatory
aefinition of "source material.n Nor was there any discussion in the various guidances
related to the processing of material other than natur-al ore.(i.e., material 1!at is not ore at
alt) of how thi exemptiins set forthin l0 C.F.R. $10.1:(a) and (b) would be impacted by
guia"n""', new definition of "ore." There is no indication that the "source material
iefinition issue" has ever been appropriately addressed or resolved. It is an issue that has
Iain in some pretty murky regulatory waters for quite some time.
15
Division of Radiatio" tt,ol
Attachment A
January 1,2OO5
That question is: Does the new use of the term "ore,n put forth in the Final
Position and Guidance, affect in any manner the definition of "source materialn
established in the Atomic Energy Act of 1954 or affect the exemptions set forth in
$ a0.13(a) and (b)? ^ t -r a.\AZ ^-aIt is plain from the Atomic Energy eclo{.r}+e and the legislative history of the
AEA of 1954 and tt e uranirm Mill raiiings Radiation control Act of 198 and the
regulatory history of the AEC, EPA, and N-RC rules promulgated responsive to those
laws, that the policy Guidance,s new use of the termioren goes far beyond the accepted
meaning of that te# and the clear ioteni of congress. lrererore, NRC and the State of
Utah cannot make;;;ithe new definition of nire'to claim that any alernate feed
material is "ore" or nsource material orC o, to claim that the was111 groaulea from the
processing of that ,n#rur *""F the statutory definition of "11e.(2) byproduct material'n
The applicability of various environniental regulations to a great degree depends
upon definitions. c;;;;,; their legislative functi-on,.often specifically defines words
;ilr;;r, related io,t""uplrication gla sutute to a particular material or
circumstan""r-rrn", ifr"ii is a need for explanation' -Ho'n"'er' when using w91!s or
terms with a common and long accepted -.*ing, such as groundwater, mill, tailings' or
;;;;,; no ,*plunution or definition iJ necessary
The NRC and the State of Utah is not luthorized to shift these aceprcd
definitions at wil as an expression of tt eir 'reguratory flexibility.' This is especially so
when such shifts r*J, i, airect conflicts with NRC'S own enabling statutes and
regulations, as is the case with the u," of the newly defined term "otG.'' Additionally'
NRC and State of iiot it not authori zedto strit alfinitions at will when such shifts
directly conflict *nitr, trr" ,tutoto.y "utrrority
and regulations of another federal agency' in
this case, the EPA'
4. LMTRCA and the AEA
UMTRCA, as it amends the AEA, clearly specified what constitutes 'any ore'"
what constitutes ,any ore,' is ,,any ore.n it does noi incrude material "other than natural
ore.,, The plain language of ttre -{ct 1nd the history of th: implementation of the Atomic
Energy Act of l9d;;;endedty the Atomic Energy Act of 1954 and the Uranium
Mill railings Act "f irg, is alr that is nleded to dete-rhine what "ore'or nany ore'is.
Asdiscussedabove,clearlythelegislativeandregulatoryhistoryoftheAEAandTitlel0
of the Code of Federal Regulations make plan the meaning of the term noren and the term
nany ore.tt
5. Conclusion
Nofederalagencyorstateagency!a,T:apermitorapolicyguidancetoexpand
upon and ,rUrtuntiiEfy "i-119 oxfricit will of Congress when that will is explicitly set
forth in stature. fir, stut" of utah does not have ttre discretion to use this Ground water
Discharge permit io ,uuronrively alter th. ,tu*to.y definition of "source materialn or the
statutory defi nition olJ t"'fzlbyproduct material'
16
Division of Radiation t
Attachment A
January 7,20f,l5
None of the federal and State of Utah statutes and regulations pertaining to the
regulation of ground and surface water at the Permittee's uranium recovery facility were
primulgated iontemplating the disposal of debris and wastes from the processing of feed
materiJs other than ,ut*ut ore. The receipt, processing, and disposal of these materials
,ni. nrr", addressed in the original White Mesa Mill Environmental Statement or any
subsequent EIS suPPlement
There is no ividence that the Permittee' mill tailings impoundments lYere
designed and constructed to receive the debris and wastes from the processing of feed
mat;rials other than natural ore.
Therefore, the Ground Water Discharge p:Tqt must not in any manner authorize
the acceptance, processing, and disposal of materials other than natural ore at the facility
covered by the permit Such authorization is outside the scope of the enabling statutes
and regulations for licensed uranium recovery facilities.
t7
Sarah M. Fields, Chair
Nuclear Waste Committee
Glen Canyon GrouP/Sierra Club
From:
To:
Date:
Subiect:
Dear Mr;
"lvan Weber" <ivan @webersustain'com>
<[e-mail]>
fi105 4:59PM
Ground water discharge permit' IUC White Mesa Mill
Morton:
Pleaseforgivethelast-minutenatureofmyattempttocomment,,howeverbriefly,onthedraftGWPfor
lUoivVhite Mesa, near Blanding, Utqh. ft S impo[ant, howevet' lor citizens of Utah to note the
sionificance or DRC,s assumption of regutatori'lrirrgr- over rUc operations and facilities' and for us to
oiserre the thoroughness attempted.in tn" siltJr"nt ol Basis, supporting documents and in the dratt
Ground water oiscnaiil peimit, itsert. n, on" *no n". n_q1,g'gatii in eirrier rounds of proceedings and
reviews in ruc ,"qr"ii!io,:;i#d; i;;d;;eili; ,no"r *n,c-in rormer vears' I am very sratified that the
state ol utah has "r"ui"t-"oiiii;
t"rk .*l",lJv, "r evidenced by the substance and detail ol the dratt
permit and the SOB.
Mav I please echo the critique submitted by Ms. sarah Fields, and incorporate it by relerence into my own
ierr6ctions. ln Particular:
a.. I share n", uppr"'#nsion, expressed in her questioning ol the meaning of "infeasible' DMT as
rationare ror ruc suomiiiaiJi ;"iiJrnatiye ort,ti td the Exec-utive secretary ot onc (page 20 ol draft
permit, 4. ,,Facirity ori "r corpiianc" status.'.,;;.
''wfuie
it is infeasibreio reestablish DMT"")' This
aooears to be a roophore or magnitud" prop-oriion"rlo tne hores we suspect to exist in the cells' liner
svstems. prease tignil;this a-il-owan"e'uyf,eiining terms rigorousry, ir not by eliminating 4.e altogether'
6.. Rtso on page 20, under H. ,'Comp1ian." Sln"-Ort" n"qJit"rents,' I join-Ms' Fields in incredulity that
rUc has been arowebili; ;.pond'to tne r.rwem.oe r 28,'2oo1DRc R6quest tor Additional lnformation'
.At the time, the nnf ri"r-t*roni'f", fegitimaie and compietely necessary' lt remains reasonable'
resitimate ano .o.peii;;-.;.;rry in "oroelii il*"d;itn state of utah reguratory authoritv. whether
neglecr, inadverrenr;;;;"ighi;; r1r.rl"o1" ";"r#ptlgr authority, this IUC failure is an outrage' warranting
draconian response "iin"iirti"t of stite ".i"rti.in of control over waters of the US delegated to state
administration. eitnei rij6 rr.i,"rpono.seli;irvio rnr 2001 RAr according to a stipurated schedule, or
luc should suspend'opl;ri;;;. inl"noini*(is giounos lor a formal request for a hearing, which I
[Tr",3Lt'J[X;","0y cursory review or rhe sratement of Basis arfords considerabre comtort with the
permit,s comprehensil;ii'h" *"erur inadequacy or process. ce, riner technorooy,relative to
,best-avairabre,tiners iowl' inl"ri, tn, origffiiinlri were not'BAT* in the earty'80s when the cells were
buirt, though tney werein ine tneor"ticur ,inG oi "or.on practice. As indicatbd in my previous review of
riner design, ,onr,rurron il.,0-oe,,oc (or raci-tnereor), submitted with sierra crub Gren canyon Group
comments in mid-2002, it is my considereJ view as an environmental technology professional that the
careless nature of lUCconstruction pro."irrJr, p"rti.rl"rrv thoice of bedding ind cover soil materials -'
which were anything but *sand,u as evioenclJ uylnotog.r"pns taken during construction and incruded in
rUc and consurtanvconiru.Ioii"ports in tn" onb?"corl --- doomed ar or these liners to failure before
they were "r"n .ornpi"t"O. Fen6tration. oi i"irtirety weak liner membranes by angular rocks was
inevitabre, and has #""#iy'r;'r"ri;'i; ;rft;;.rv" i""x"ge rhrough rears of virying size and orientation'
rt is encouraging ro i""uin6t HDPE rinei mlteriar technordgy are r6aching ruc, and especially that DRc is
imposing ,*ur"n".r-Jii.G-or:tn"ort riners on ihe whire'Mesa Miil raciiity. The sooner these cetls are
shut down and repracld with redundant, car"tutiy designed, constructed, fibrd-tested, and QA/QC
documented riner systems, compreme"t.o Lv sii.Llidn""'o reduction and monitoring systems, the better'
For this facility to nuJ.-flZn in ,i.r, arrowinJ'sucn eitremety aggressive and highly contaminated process
lluids to circulate andieside in these pororE ""fft, it unconici5nable' Continued use of these
anachronistic ceils must stop as quickry "r po.ri-tir", p;*ilg or "infeasible" notwithstanding' This, too, is
cause for requesting a hearing'
As a point of inquiry, w9 won-der whar Llwhen wi, be the imprications of recent state imprementation of
,swAp,, the sourcJ wui"i Ar$ssment and Protection" Plan, pursuant to sale Drinking water Act
Amendments or 1996, and subsequ"nt uo'uit"ti"n Nio ut.r', id,o". As a member of the swAp Advisory
committee in 199g-99, lbecame aware oit[;;hprehensive nature of swAP's simultaneous protection
or werheads, surface water and emerging ground water. rt seems obvious to. this observer that there are
inevitabre erfects or past ruc ground water"contamination, most of which could easily escape (and
probably has done) tn" irtn"ipathetic. ronitorint on the-facility heretofore' For the sake ol neighboring
communities and isolat"J niti,l" popurations, as-wellas for area wildlife, allthat can be done to answer
the question, ,,whatcli'il;;g1izi ano to rL" to it that these faults are investigated, characterized and
;;;lil;d icientificallv,lhould be done without delay'
All told, congratulations are due to Executive Director Nielson, DBC and particularly to you, Mr. Morton, for
the intent and elfect oilnit p"trit. lt is a very positive.ste.p, desperatelV n99d9d. for.a long' long time'
Now it,s time to rorrow'tniourbrr, tirmry and restiutery. we hope that you wi[ indurge further comments as
opportunity presents to iev-iiw'tne ci,mplex,LiGndir" and g'enerally thorough Permit, SoB and supporting
documents witnin upcimid ar^ As you ino*, we ordinaly citizens struggre- to make time and.create .
information access. in" ohc websiteb preseniation of keydocuments here has been extremely helpful'
Thank you sinceref, foiin" gLaicompet'enc,e, responsible ellort and clear sense of DRC mission that
these documents rePresent.'
GratefullY Yours,
lr"n W"o.it, PrinciPaUOwner
Weber SustainabilitY Consulting
953 lst Avenue
Salt Lake CitY, Utah 84109
taoi iCss-oaos I (sot )esl'8841 cellular
ivan b weUersustain.com
vffi .weuersustain.coir' iunder construction)
CC: "Sarah Fields" <sarahmfields@earthlink'neb
Attachment 2
Revised IQ Spreadsheet
To Replace
December l, 2004 DRC
Statement of Basis, Attachment 7
DRC Spreadsheet 1 lE2KdSum.xls, tabsheet Metals
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EE EE EEEEEooo,i ,l
o
HIJNTSMAN,
Governor
State of Utah
Department of
Environmental Quality
Dianne R. Nielson, Ph.D.
Executive Director
DTVISION OFRADIATION
CONTROL
Dane L. Flnerfrock
Director
JON M.
GARY HERBERT
Lieutenant Governor
March 8,2005
CERTIFIEDMAIL
RETURNED RECEIPT REOIJESTED
Ms. Sarah Fields
P.O. Box 143
Moab, W 84532
SUBJECT: Public Participation Summary for the IUC White Mesa Draft Ground Water Discharge Permit No.
ucw370004
Dear Ms. Fields:
The Division of Radiation Control (DRC) received your comments concerning the Draft Cnound Water Discharge
Permit (Permit), UGW370004, for the International Uranium (USA) Corporation facility in a letter dated January 7,
20M. The DRC response to your comments is included in the Public Participation Surnmarv, which is attached to
this letter.
If you have any questions concerning DRC responses to your comments please contact Loren Morton or Dean
Henderson at(801) 536-4250 with any questions.
Utah Division of Radiation Control
DLF/DCH:dh
Attachment Public Participation Summary for the IUC White Mesa Draft Ground Water Discharge Permit No.
ucw370004
F/../coverletterSF.doc
168 Norrh 1950 West. PO Box 1114850. Salt Lake City, UT 841 14-4850. phone [phone]. fax (E0l) 533-4097
T.D.D. (801) 5364414 . www.deq.utah.gov
Dane L. Finerfrock, Birector
o
SummaryPublic Participation
March 7,2005
Public Participation Summary
For the
IUC White Mesa
Draft Groundwater Discharge Permit
No. UGW370004
Introduction
Th" pu.pore of this document is to summarize public comments received by the Utah Division of
Radiation Control (DRC) regarding the International Uranium (USA) Corporation (hereafter
IUC) uranium mill facility at White Mesa, Utah. Three sets of comments were received from the
pubtic during the comment period that ended on Friday, January 7 ,2005. Each of these
comments is listed below in italics, followed by a DRC response.
Comments From Envirocare of Utah.Inc. (see Attachment l)
1. Condition I.A Groundwater Classification
The Permit lists two data sets for the purpose of classifying groundwater at the IUC
facility. Wat is the purpose of providing both data sets?
DRC Response: Substantive Comment. They were presented to disclose the differences
in the split sampling total dissolved solids (TDS) data (see Statement of Basis (SOB), p.
5). As explained in the SOB, the Executive Secretary used the lowest values from either
set of data to classify shallow groundwater at the site (ibid). This approach is protective
of the groundwater quality resource. !l
2. Table 2.
Based on the information provided in Table 2, the only radiologic parameter the
Permittee is required to analyze is Gross Alpha. Envirocare is required to analyze for
Radium-226, Radium-228, Thorium-23l, and Thorium-232 at is 11e.(2) disposal cell.
UAC R3t3-6-2.1 identifiis a combined Groundwater Quality Standardfor Radium 226 +
228 at 5 uCi/L (sic). Will these parameters also be evaluated at the IUC facility?
DRC Response: Substantive Comment. We acknowledge that significant concentrations
of radium and thorium are found in the tailings material. Elevated concentration of total
radium and thorium-230 are also found in tailings wastewaters at levels that about 188
and 1,208 times their respective State Ground Water Quality Standards (GWQS, see
SOB, Table 5). We recognize that the DRC process used to select the GWPL parameters
focused on contaminants that had tailings wastewater concentrations that were equal to or
greater than 50-times their respective GWQS (SOB, p. 14). It is important to note that
this selection process also relied on a review of each contaminant's soil-water
. partitioning (IQ) coefficient, as defined by the lowest available value found in the
iechnical literature (SOB, p. l5). Additional review shows that radium was omitted from
consideration in the IQ table found in Attachment 7 of the SOB. This oversight has been
corrected, and the revised table is found below in Attachment 2 of this document. From
this information, the lowest literature I(a values for radium and thorium are 57 and 100
IJKg,respectively. These values indicate that radium and thorium tend to partition to
soils and rock and not travel far in groundwater environments.- As a result, other
contaminants are expected to be the leading edge of a contaminant plume, if it occurs,
Page I
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ummaryPublic ParticiPation S
March 7,2005
and thereby arrive at nearby monitoring wells much earlier than radium and thorium.
This finding reinforces the original decision not to include them in the Permit as GWPL
parameters.
The situation at Envirocare is different, in that a high chloride environment exists in the
shallow groundwater there. Also, radium has been found to be mobile in saline
groundwiter environments, as illustrated by the accumulation of radium pipe scale
Ieposits in oil field pipelines in Texas. Under these circumstances radium should be
considered as an important groundwater monitoring parameter.
This decision about not using radium as an indicator parameter at the IUC facility can be
changed in the future. If at sometime, the Executive Secretary discovers the tailings cells
haveieleased contaminants to the shallow groundwater system, the Permit can be re-
opened and additional groundwater contaminants required for monitoring and GWPL
established pursuant to Part ry.N.3.
3. Condition 1.D.1 DMT Design Standards for Existing Tailings Cells
Has an evaluation been performed to demonstrate liner compatibility of the Flexible
Membrane Liner with the 11e.(2) materials being disposed of in the cells?
DRC Response: Substantive Comment. With respect to existing IUC Tailings Cells 1,2,
and 3 this evaluation has not been made. Evaluations of this kind are mandated by the
NRC regulations found in 10 CFR 40, Appendix A, Criterion 5E. Unfortrinately, these
NRC rules were not established until 1987, long after the ruC tailings cells were
:constructed.
Under the State Ground Water Quality Protection (GWQP) Rules, discharge
, minimization technology (DMT) has to consider existing process design capability [UAC
R317-6-6.4(C)1. ,ts exptained in the SOB, the Executive Secretary decided to focus on
operational changes, and design and construction improvements for the cover system,
*ii"t has yet to be built at Tailings Cells 1,2, and ]. This is appropriate in that these
tailings celis have been in existence for more than 20 years and their liners long covered
by manY tons of tailings.
For Tailings Cell 4A, the Permit requires it to be re-constructed in order to meet BAT
mandares (pu.tr I.H.14 and l5). During design review and approval for this new
construction, the DRC will evaluate this issue to ensure that the BAT requirements of the
State GWQP Rules are met [see UAC R317-6-6'4(A)]'
4. Condition 1.D.3.b.1. Discharge Minimization Technology Standard
The average wastewater head in the slimes drain access pipe is to be "as low as
reasorably achievable" in each tailings disposal cell. How will state inspectors make a
determination on this criteia?
DRC Response: Substantive Comment. The exact criteria will be worked out during the
gxecutive Sicretary review and approval process for the DMT Monitoring Plan (Part
I.H.13). It is anticipated that this criteria will be established by the Executive Secretary
after IUC provides information on historic water levels at this access pipe, explains what
kind of pumping and control equipment has and is currently used, and evaluates what
type of pu*pirg and control technology is available and can be readily deployed. After
PageZ
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March 7,20Os
approval of this plan, compliance criteria can be determined for IUC to operate by, and
DRC staff to inspect against.
5. Condition 1.D.3.c. Roberts Pond
An as-built is required as Condition H.H.18 of this GWQDP. How is this pond
constructed? For consistency with ponds used at Envirocare, this wastewater pond
should have a minimum of two FMLs and a leak detection system. In addition, what
system is in place to conftrm compliance with the two foot freeboard required in this
condition?
DRC Response: Substantive Comment. As for a compliance confirmation system, that is
to be proposed by IUC and approved at a future date by the Executive Secretary during
development of the DMT Monitoring Plan required under Part I.H.13 of the Permit.
Regarding the requirements for double flexible membrane liner (FML) and leak detection
systems, this pond has existed at the facility since the early 1980's and was clearly an
existing facility under the GWQP rules (UAC R317-6-1.14), which were not promulgated
until 1989. IUC's decision to replace the liner in2002 with another single membrane
constitutes modification of the existing pond, and therefore should have been done under
the authority of a Permit (ibid.). Unfortunately, IUC did not notify the DRC of this
construction activity until 2004, well after it was re-lined (SOB, p. 30). Upon receipt of
this information the Executive Secretary determined that it was more important secure a
Permit for the tailings cells. Several other factors were considered to support the decision
to use enforcement discretion and consider the pond as an existing facility, as explained
in the SOB (pp. 29-30), namely that it is small in size (0.4 acres), is used for intermittent
wastewater storage, and that the existing Reclamation Plan required under the
Radioactive Materials License (License) mandates that any contaminated Subsoils .
beneath the liner be excavated and moved to disposal in the tailings cells at the timd of
facility reclamation (ibid.). No change will be made to the IUC Permit , . :"
6. Condition 1.D.3.d. Feedstock Storage Area
The introductory paragraphs of this GWQDP state that the permit is for a uranium
milling and tailings disposal facility, not a storage facility. How is the feedstock area
constructed? How long can stored materials remain in this area? Is there a stormwater
management plan for water that accumulates in this area? Is there a DMT citeriafor
this area? Except in the dig (sic) cell, open air storage is prohibited at Envirocare.
DRC Response: Substantive Comments. Again, the IUC facility, including the open air
feedstock storage area at the eastern margin of the mill site, pre-existed the GWQP rules,
and is consequently an existing facility under UAC R317-6-1.14. To avoid proliferation
of possible contamination from such storage, the Permit limited this activity to only the
historic area defined by the survey coordinates in Table 4. As for construction details,
this area is underlined by a compacted native soil surface, however, no reliable
information is available regarding the permeability of the compacted soils in this area.
Storage in containers is also allowed elsewhere at the facility under the Permit Part
I.D.3(d). No time limits are stipulated in the Permit for any feedstock storage. However,
performance criteria are mandated for this containeized storage, in that the containers
must be maintained closed and water-tight (ibid.).
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March 7,2005
As for a stonnwater management plan, Part I.H.l7 requires that IUC submit one and
secure Executive Secretary approval. Stormwater that accumulates on the historic
feedstock pad drains to Tailings Cell 1, along with other mill site stormwater. The only
DMT performance criteria for this area, is that all open-air feedstock storage be restricted
to only the historic pad location, as defined by Table 4 of the Permit [Part I.D.3(d)], as a
means of preventing proliferation of possible contamination. No change will be made to
the IUC Permit.
7. Condition 1.E.2. Groundwater Head Monitoing
Total Dissolved Solids (IDS) range from 1,276 to 5,200 mg/L. Will the groundwater
elevations be adjusted to afreshwater equivalent head to account for an almost s-fold
variation in salinity? In addition, Envirocare is required to conduct monthly
groundwater elevations due lo a groundwater mound, much like the mound beneath the
IUC facility. For consistency, groundwater elevations, freshwater correction, contour
maps, etc., should be performed on a monthly basis.
DRC Response: Substantive Comment. The TDS or salinity contrast between
groundwater in the shallow aquifer and the source of the groundwater mound at the IUC
facility is expected to be relatively low. The range of the TDS in IUC's shallow
groundwater is as stated, and when averaged across all monitoring wells at the facility the
combined average is about 3,000 mg/I. As a result, we anticipate the contrast between
this average TDS and the average water quality expected in the eastern wildlife ponds,
which recharge the IUC groundwater mound (see SOB, p. 4), is closer to about 3-fold.
,Higher TDS contrasts are expected in stormwater induced groundwater mounds at
Envirocare, in that natural TDS found in the shallow aquifer ranges from 20,000 to over
70,000, with an average of more than 40,000 mg/I. \
As for the suggested need for monthly groundwater head monitoring at IUC, the
Executive Secretary agrees it is necessary in those wells where transient conditions exist
or could exist. Such is the case in all the IUC wells related to the chloroform
investigation and pump and treat system, where an appropriate frequency will be set in
the future as a part of an approved Groundwater Corrective Action Plan. That frequency
and all other necessary monitoring requirements will also be exposed to a public
comment period sometime in the future. For purposes of this Permit, the baseline
groundwater head monitoring frequency will continue as quarterly (Part 1.8.2). If non-
compliance with GWPLs is detected, more frequent head monitoring will be conducted in
accordance with the requirements of Part I.G.1.
8. Condition 1.H.1. Installation of New Groundwater Monitoing Wells
How were the locations of the new monitoring wells determined? Monitoring wells at
Envirocare were located using a computer model to demonstrate that should a release
occur, the groundwater monitoring well networkwould detect that release. Will a well
spacing evaluation be required by the Permittee?
DRC Response: Substantive Comment. The number and location of wells was arrived at
after consideration of site hydrogeologic conditions and after negotiation with IUC.
Unique hydrogeologic conditions exist at the White Mesa in that the shallow aquifer is a
perched system found about 100 feet below the tailings cells, and located in a
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Public Participation Su
March 7,2005
o
mmary
consolidated geologic formation deposited by an ancient fluvial environment. In contrast
the aquifer at Envirocare is found 15 feet below the disposal cell in unconsolidated lake
deposited sediments.
Despite these differences new wells are to be added at the IUC facility, including two
new wells south of Tailings Cell I (IvfW-24 and MW-28) and the three new wells south
of Tailings Cell2 (lv[w-29, Mw-30, and MW-31). These were spaced in a similar
manner as the three existing wells found south of Tailings Cell 3 (see SOB, Attachment
l1). Because there is a strong East-West groundwater flow direction near Cell l,
additional wells were required upgradient (MW-27) and downgradient (MW-24) on the
Northeast and Southwest corners respectively. For Cell2, two upgradient wells MW-26
and MW-32 (formerly TW4-15 and TW4-17) already existed and were included under
the Permit. A new downgradient well for both Cells 2 and 3 will also be installed off the
Southwest corner of Cell 3 (MW-23). For Tailings Cell 3, it is anticipated that the three
new wells proposed on the northern dike will also serve as upgradient wells. The existing
Cell 3 downgradient wells, MW-5,lvlw-ll, and MW-12 have been in place on the south
dike since October, 1982 or earlier. A new upgradient well will also be installed off the
Northeast corner of Cell 4A (MW-25).
No computer modeling was done by IUC to justify the spacing intervals selected. Such
models estimate the required well spacing interval from several hydrogeologic
assumptions, including but not limited to: local groundwater velocity and flow
directions, existence of isotropic and homogeneous aquifer conditions (including aquifer
dispersivity and permeability), and a presumed minimum footprint or size of a leak from
the embankment. The Executive Secretary acknowledges that such models are useful
tools to determine the minimum well spacing for a facility, but believes it premature to
perform such modeling at the IUC facility until after local hydrogeologic conditions are
better established in the immediate vicinity of the tailings cells. This evaluation will need
to consider several factors, including, but not limited to local:
l) Elevation and configuration of the upper geologic contact of the Brushy Basin
Member of the Morrison Formation, which perches the shallow groundwater system.
2) Distribution and spatial trends of shallow aquifer permeability that could provide
preferred groundwater flow paths.
3) Distribution of shallow groundwater head and flow directions.
4) Distribution and spatial trends of groundwater quality in the shallow aquifer.
For this reason, the Permit requires IUC to submit a Revised Hydrogeologic Report for
Executive Secretary approval (see Part I.H.2). In the event that the Executive Secretary
determines that additional information is needed, including additional borings,
monitoring wells, or any other pertinent data needed to characterize the local
groundwater system, IUC will be requested to provide this information (SOB, p.23). lt
at that point the Executive Secretary determines the characterization is complete, a well
spacing model may be required to evaluate the need for additional wells. If additional
monitoring wells are needed, and after the Executive Secretary has determined the
proposed monitoring well network is satisfactory, the Permit can be re-opened and these
new wells established as point-of-compliance wells under Part IV.N.3 of the Permit.
Page 5
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SummaryPublic Participation
March 7,2005
9. Condition I.H.l1. Infiltration and ContaminationTranspofi Modeling Work Plan and
Report.
This condition requires an ffiltration and contaminant transport model. Since the
proposed Permit does not have a cover design, it is assumed that a design will come from
the required modeling. For consistency with Envirocare, even though the cover will need
to incorporate an FML to prevent the bathtub ffict (See Condition I.D.6.b), the
Permittee should not be able to take credit for either the upper or lower FMI^s in the
modeling effort. In addition, it is unclear if the Modeling Work Plan is part of the Report
or a separate submittal which will require Executive Secretary approval.
To evaluate the assumptionfound in the model, will the Permittee be required to prepare
a Post-Model Audit Plan?
DRC Response: Substantive Comment. Because the tailings cell cover design has
already been approved by the NRC as a part of the Reclamation Plan under the License
(SOB, p. 35), the purpose of the modeling report is to evaluate if any design changes are
needed to ensure the tailings cells meet the long-term performance standards set in Part
I.D.6 of the Permit.
As for the need for a FML in the cover system to prevent a bathtub effect, such a
membrane would appear to be in order; but the Executive Secretary will await the
outcome of the modeling report before making any decision in this matter. With regards
to any credit given to the long-term performance of FMLs in the infiltration and transport
modeling report, the Executive Secretary will take this suggestion under advisement.
However, it is important to note that the NRC policy referred to applies only to Low-'Level Radioactive Waste facilities (see l0 CFR Pait 61), and not to uranium mill
operations. In fact, no performance assessment modeling is required by NRC for any
lle.(2) facility (see l0 CFR 40, Appendix A). Instead, at IUC, and other uranium mill
operations in Utah, this performance assessment is mandated as a means to establish BAT
or DMT under the State GWQP rules. Precedence has been set at other Utah uranium
mill operations that utilize FMLs as a means to meet the BAT design standards. One
example is Plateau Resources' facility near Ticaboo, where a new tailings cell facility
was proposed with double FMLs and leak detection systems were as a means to meet the
BAT design standard during the operational phase of the project (see 12128198 DRC
Draft GWQD Permit No. UGW170003 and related SOB [pp. 5-7] for Plateau Resources).
Consistency with the Envirocarc lle.(2) facility has been provided in the IUC Permit in
that a 200 year performance standard has been established (Part I.D.6), and an infiltration
and contaminant transport performance model required.
As stipulated in the Permit, the work plan and the modeling report are two separate
documents, with two separate 180-day deadlines mandated (Part I.H.l1). For the first
deadline, IUC is given 180 days after issuance of the Permit to prepare and submit a work
plan for the performance modeling for Executive Secretary approval. Thereafter, when
the Executive Secretary approves this work plan, a second 180-day deadline is set for
IUC to complete the modeling effort, write a report, and submit it for Executive Secretary
approval.
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As for any post-model audit plan, no specific compliance schedule requirement is
currently mandated in the Permit. However, existing language at the end of Part I.H.1l
allows the Executive Secretary to require one if found necessary, as follows:
"...IJpon Executive Secretary approval of the final infiltration and contaminant
transport report, the Reclamation Plan may be modified to accommodate
necessary changes to protect public health and the environment."
The changes to the Reclamation Plan could include not only cover design and
construction specifications, put also plans to monitor the tailings cover system and/or
groundwater quality to confirm the modeling assumptions.
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Comments from Ms. Sarah Fields (see Attachment l)
l. Drafi Groundwater Discharge Permit (Permit), page 1:...
The facility is also (sic) includes IUC land in Sections 21, 22, 27, Township 37 South,
Range 22 East, that are up-gradient from the mill and tailings cells. It also includes
down-gradient land in Sections 4, 5, 6, 8,9, and 16, Township 38 South, Range 22 East,
Salt Lake Base (sic) and Meridian, San Juan County, Utah. An explicit "legal"
description of the mill propefi must be included in the permit.
DRC Response: Nonsubstantive Comment. The Permit's description list those sections
currently disturbed by construction and occupied by the mill site and tailings disposal
cells. While it is true that IUC owns or controls other nearby tracts of land, the Executive
Secretary will not authorize or imply any approval for disposal activities outside the
bounds of lands currently disturbed.
2. Part I, page 8: D. Discharge Minimization Technology Standard - ...
This section is vague regarding the actual design and construction information that the
Division of Radiation Control (DRC) is relying on. There is no mention of the December
31, 1998 Knight Piesold Report on the Seepage FluxfromTailings Cell i Liner.submitted
to the DRC by the Permittee. There is no mention of the numerous questions that the
DRC had about the actual design and construction of Cell 3, as expressed in the
(apparently) unanswered November 28, 2001, DRC Request for Additional Information
(RAr).
The DRC must not rely on cell design and construction information that it has already
found questionable. This section must include more detailed cell design and construction
date (sic). This section must also be amended based on the Permittee's reply to the
November 28,2001, MI whichwas part of the Permit process.
DRC Response: Substantive Comments. The Permit references all design and
construction information that has been made available to DRC. We acknowledge that
DRC has had major concerns about the infiltration modeling found in the December 31,
1998 Knight-Piesold Report. DRC omission of any discussion in the SOB regarding this
modeling report was intentional for the following reasons:
l) The report is a infiltration and seepage simulation of the open cell conditions for
Tailings Cell 3 only. It does not represent infiltration or seepage conditions for Cell 1
or Cell4A which have different engineering design and construction characteristics.
Further, the report does not simulate contaminant transport which is essential to an
assessment of tailings system performance. Simply said the Knight-Piesold report is
incomplete.
2) Any open cell infiltration modeling would be based on a series of assumptions, many
of which would be difficult to verify given the age of the construction and the lack of
ability to sample and confirm certain construction details that are now covered by
tailings. As a result, the model predictions would be subjective to interpretation.
Direct and discrete groundwater monitoring of each disposal cell is a much more
effective means to determine if the tailings system has or will discharge contaminants
to groundwater.
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3) Should groundwater monitoring find that the tailing cells have leaked, active means
can be taken to intercept and control this leakage thru various groundwater
remediation technologies that are available.
4) Design and construction of an improved cover system is the most practical means of
preventing and controlling possible future tailings cell leakage. It is not practical, nor
feasible to require IUC to move the existing tailings wastes into new tailings cells.
As a result, neither the Permit or the SOB relied in any way upon the Knight-Piesold
report referenced. Instead, the Permit outlined a new path of activities to provide an
objective evaluation of the future cover system design, and opportunities for
improvement to said design in order that local groundwater resources be protected.
3. Part I, page 1: D.2(d) Feedstock Storage Area - ...
There is no indication in the Pe:rmit as to how the Permittee will monitor the
groundwater underneath and in the vicinity of the Feedstock Storage Area to guarantee
that the mateials stored there will not contaminate ground and surface water. The
feedstock is sometimes storedfor years out in the open where it is subject to dispersion
and leaching by wind and water, and surface water.' This must be corrected.
DRC Response: Substantive Comments. The IUC facility, including the open air
feedstock storage area at the eastern margin of the mill site, pre-existed the GWQP rules,
and is consequently an existing facility under UAC R317 -6-1.14. As a result, IUC is held
to a DMT standard instead of the more rigorous BAT standard [see UAC R317-6-6.a(c)].,, In addition, the facility reclamation requirements (see Part I.D.7) would require i.
reclamation of the Feedstock Storage Area. DRC will evaluate the Reclamation Plan at
the time of the next License renewal scheduled on or around March, 2OO7 . For other
relevant details, see the DRC response to Envirocare Comment No. 6, above.
4. Part I, page 20: G. Out of Compliance Status,4.(e) - ...
The DRC does not define "feasible." Does feasibility include economic feasibility? Who
decides if a ground water corrective action plan is "unfeasible" ?
There is no mention of the standards that must be met by the Permittee when proposing
alternative concentration limits (ACLs). Are the standards for establishing ACLI
outlined in 10 C.F.R. Part 40, Appendix A, applicable here? What criteria will the
Executive use in reviewing applications for the establishment of ACLs?
The term "feasible" must be defined. The standards for the establishment of ACLs must
be spelled out in the Permit.
There is no mention in the Permit of any necessity for the Permittee to increase the
reclamation surety to cover ground water remediation when the Permittee is out of
compliance. NRC and State regulations require a surety to cover the costs of
reclamation, including any groundwater remediation. This requirement must be included
in the permit.
DRC Response: Substantive Comments. The Permit Part 1.G.4.(e) corresponds to UAC
R3l7-6-6.17(AX5), in which the term "infeasible" is used. DMT is implemented instead
of BAT because the IUC facility pre-existed the GWQP rules (UAC R3l7-6-1.14). In
addition, Part 1.G.4(e) of the Permit applies to DMT and not groundwater corrective
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action. The Fxecutive Sectary decides on feasibility issues, which could include
economic feasibility issues.
As for ACLs, these are approved only by the Utah Water Quality Board (Board) as per
UAC R317-6-6.15 (A) thru (G). The NRC ACL process is not applicable. In the State
ACL process the Board considers factors, including but not limited to protection of
human health and the environment, permanent effect, cost effectiveness, etc. For details
refer to R317-6-6.15(G). Under the State regulatory process, Permits are issued first with
their respective Ground Water Compliance Limits (GWCL) established. Then if the
GWCLs are exceeded the Executive Secretary initiates a compliance action against the
permittee. In this process an ACL may be considered, but it is only the Board that can
approve it.
The reclamation surety to cover ground water remediation is not an issue of a Ground
Water Discharge Permit, but instead is managed under the Radioactive Materials License.
At this point it is premature to conclude if non-caused pollution has occurred at this site;
This is one of the reasons for the Background Groundwater Monitoring Report required
in Part I.H.3 & 4. If later we determine that groundwater pollution has occurred,
Executive Sectary well take appropriate action to protect the groundwater resources.
This would include development of a groundwater corrective action plan for the facility
under the auspices of UAC R317-6-F-6.15.
5. Part I, page 20: H. Compliance Schedule Requirements ...
Nowhere in the extensive list of Compliance Schedule Requirements is there any
requirementfor the Permittee to respond to the 9-page November 28,2001, DRC Request' for Additional Information, regarding December 31, 1998, Knight Piesold Report on
Seepage FluxfromTailings Cell3 Liner, White Mesa Mill.
Has the Permittee responded to this RAI? If not, has the DRC notified the Permittee that
they don't have to respond?
It was definitely my understanding, based on correspondence with the DRC, that a
schedule for the Permittee's long-delayed response to the 2001 request would be part of
the Permit requiremenfs. /s this no longer the case? If so, why?
There must be afull explanation of this situation.
In addition, the DRC must review all previous requests for information and make a
determination that they have all been fully responded to or a schedule for response has
been established in the context of the Permit.
DRC Response: Substantive Comments. See DRC response given for, Comments from
Ms. Sarah Fields, Comment 2,pages 8 and 9 of this Public Participation Summary.
6. There is no discussion in the Permit of other types of contamination to ground and
surface water by activities on the land owned by the Permittee at the facility. The
Permittee currently allows cattle to graTe on some of the mill property. These cattle can
and do access Ruin Spring. Ruin Sping is on U.S. Department of Inteior, Bureau of
Land Management, propefi that abuts the mill property. The Ruin Sping area is
trampled and contaminated by wastes from the cattle. The spill-over from a tank below
the spring (which has not been cleaned in years) feeds a desert ripaian area. The sping
is used by wildlife.
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Does the Permittee have any responsibility for the ruin of Ruin Spring by the cattle that
graze on its millfacility property?
DRC Response: Nonsubstantive Comments. ruC owns neither the cattle or Ruin Spring.
Hence they have no responsibility for damage the cattle may pose to the spring of its
riparian habitat. Possible contamination to Ruin Springs from cattle wastes is not a
Permit issue. Concerns in this regard need to be directed to the cattle owners and/or the
Bureau of Land Management.
7. Part I, page 12: D.5. Definition of l1e.(2) Waste - ...
There is absolutely no statutory or regulatory basis for the State of Utah to authortze the
processing of "alternate feed material" at the IUC mill. There is no statutory or
regulatory basis for the State of Utah to include the "process related wastes and waste
streams" from the processing of materials other than natural ore ("alternate feed
material" ) in the stotutory and regulatory definition of 11e.(2) byproduct material.
The Ground Water Discharge Permit must not authorize the processing of "alternate
feed mateial." The GroundWater Discharge Permit must not authoize the disposal of
waste streams from the processing of "alternate feed material" as 11e.(2) byproduct
material. Such authoization is not p;srmitted by any statute or regulation.
Any request by the Permittee for such authorization must be denied.
The following (including Attachment A) are comments that support these statements.
A. The March 7,2003, NRC letterfrom Paul H. Lohaus to Wiltiam J. Sinclair is not
an NRC legal opinion and has no legal effect. Seel0 C.F.R.Pan 40, Sec. 40.6''
Inte rpretations, which states :
Except as speciftcally authorized by the Commission in witing, no interpretation
of the meaning of the regulations in this part by any fficer or employee of the.
Commission other than awitten interpretation by the General Counsel will be
recognized to be binding upon the Commission.
B. There is no legal basis under and Atomic Energy Act of 1954 (AEA), as amended,
to consider so called "alternate feed material" and vaious debis accompanying
such mateial (at times constituting 40Vo of the "alternate feed mateial" ) as
"ore," as the term "ore" is used in the definition of 1le.(2) byproduct material.
The Permit must not include any statement that would imply processing offeed
material other than natural ore ("alternate feed material" ) is the same as the
processing of "any ore," and that the debris, tailings, or wastes from such
processing constitute I Ie.(2) byproduct maturtaL
The State of Utah cannot and must not include any reference to the letter from the
March 7, 2003, NRC in the Permit.
See Attachment A hereto for afull discussion and comments on this matter.
C. The Permit does not deftne so-called "alternate feed material." There is no
indication in the Permit that "alternate feed material" is made up of processing
wastes from other mineral processing operations that are commingled with
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contaminated debris and soils. Why is there no definition of "alternate feed
material" in the Permit.
D. The State of Utahmust only rely onthe common, historicalmeaning of theword
"ore."
What does "ore" mean? The word, or term, "ore," as defined in several sources:o "Qvs-s naturally occurring solid material fromwhich metal or other
valuabe minerals may be extracted." [Illustrated Oxford Dictionary,
DK Pub. 1998.1
o "Ore-A native mineral containing a precious or useful metal in such
quantity and in such chemical combination as to make its extraction
profitable. Also applied to minerals minedfor their content of non-
metals." [The Compact Oxford English Dictionary, Second Edition,
Oxford University Press, 20A0, p. 1224:915-916.1o "Qvs-s. A natural mineral compound of the elements of which one at
least is a metal. Applied more loosely to all metaliferous rock, though
it contains the metal in afree state, and occasionally to the compounds
of nonmetallic substances, as sulfur ore. . . . Fay b. A mineral of
sfficient value as to quality and quantity that may be minedfor profit.
Fay." IA Dictionary of Mining, Mineral, and RelatedTerms,
compiled and edited by Paul W. Thrush and Staffof the Bureau of
Mines, U.S. Dept. of Interior, 1968.1
The Oxford English Dictionary points out that the current usage of the word
"ore" goes back several hundredyears. A Dictionary of Mining, Mineral, and
Related Terms lists over 65 compound words using the word "ore," such as ore. bin, ore body, ore deposit, ore district, ore geology, ore grader, ore mineral, ore
reserve, ore zone. All of these terms incorporate the word "ore" as it relates to
the mining of a native mineral. The term "ore," without explanation, has for
many years been used in millions of instances in thousands of mining, milling,
geological, mineralogical, radiochemical, engineering, environmental, and
regulatory publications. "Ore" like the word "water," is aword of common and. extensive usage with a clear and accepted meaning.
The State of Utah must explain what the statutory and regulatory basis is for
calling wastes from other mineral processing operations "ore." A policy, whether
federal or state, is not a statutory or legal basis.
E. In the past, debris associated with the processing of "alternate feed mateial" has
been received at the IUC mill. Thousands of tons of such debris have been
disposed of at the mill. IUC was paid to receive and dispose of this mateial.
Some of the material was apparently washed (i.e., decontaminated), and the wash
water was subsequently processed for its minimal source material content.
The debris that sometimes accompanies natural ore when it is processed at a
licensed uranium or thorium mill has no economic value to the licensee of a
uranium or thorium mill. A mill owner would not pay for or be paid to receive
such debris and, in fact, would pay less for ore contaminated with a lot of debris.
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However, the licensee will be paid to receive and dispose of debris accompanying
"alternate feed material." What is really occuring is that the licensee is getting
paid to directly dispose of contaminated (or decontaminated) low level
radioactive waste.
There are no similarities between the debis associated with ore minedfrom the
ground and debis occompanying wastes and contaminated materials from other
mine ral p ro ce s s in g operations.
This debis must have been separatedfrom any material that was going to be
processed at the mill prior to shipping to the mill. This could have been easily
accomplished, but was not because it was in the interest of oiginator of the waste
to get rid of it, and it was in the interest in the mill operator to get paidfor
accepting it.
The State of Utah is in no way obligated to agree with the NRC on this question.
F. The March 7 NRC letter states that "the alternate feed material is regulated in
mass as ore." There is conJlict, confusion, and inconsistency in this statement.
Who, exactly, regulates alternate feed material as "ore," and what is the basis of
such regulation?
The AEA does not mention "alternate feed material" and it's regulation. I can
find no NRC or EPA regulations related to the regulation of "alternate feed
material." There are no NRC generic or site specific environmental impacts
statements related to the regulation of "alternate feed material" orfeed
materials other" than naturizl ore.
How can the NRC regulate alternatefeed mateial "in mass as ore" when the
NRC has no statutory or regulatory jurisdiction over "alternate feed material" or
uranium and thorium "ore" ?
NRC regulation at 10 C.F.R. S 40.13 establishes unimportant quantities of source
material that are outside of regulatory concent under the AEA. NRC regulation
at Section 40.4 states that "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 (0.05Vo) or more of: (i) Uranium,
(ii) thoium or (iii) any combination thereof."
Section 40.13(b) says that any "ore" containing source mateial, whether or not
it meets the definition of source material (i.e., contains uranium and/or thorium of
0.05c/o by weight) is exempt from regulation under Part 40. Section 40.13(b)
states:
(b) Any person is exempt from the regulations in this part andfrom
the requirements for a license set forth in section 62 of the act to
the extent that such person receives, possesses, uses, or transfers
unrefined and unprocessed ore containing source mateial;
provided, that, except as authorized in a specific license, such
person shall not reftne or process such ore
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The NRC has exempted "ore," either source material ore (over.057o uranium or
thorium by weight) or non-source material ore (less than .05 Vo uranium and/or
thorium by weight). The NRC regulates facilities that process and reftne "ore,"
under its regulation of 11e.(2) byproduct mateial, but it does not regulate "ore"
as such.
There is nothing in the AEA that authortzes the transfer to the State of Utah of
regulatory responsibility over uranium or thorium "ore."
DRC Response: Nonsubstantive Comments. Issues regarding "alternate feed material"
at the IUC facility are regulated by the Radioactive Materials License and not the Ground
Water Discharge Permit.
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Comments from Mr.Ivan Weber (see Attachment l)
1. May I please echo the critique submitted by Ms. Sarah Fields, and incorporate it by
reference into my own reflections. In particular:
I share her apprehension, expressed in her questioning of the meaning of "infeasible"
DMT as rationale for IUC submittal of "alternative DMT" to the Executive Secretary of
DRC (page 20 of drafi Permit,4. "Facility Out of Compliance Status...," e. "Where it is
infeasible to reestablish DMT..."). This appears to be a loophole of magnitude
proportional to the holes we suspect to exist in the cells liner systems. Please tighten this
allowance by defining terrns rigorously, if not by eliminating 4.e altogether.
DRC Response: Substantive Comments. See DRC response to Ms. Sarah Field's
Comment No.4, above.
2 Also on page 20, under H. "Compliance Schedule Requirements," I join Ms. Fields in
incredulity that IUC has not been allowed not to respond to the November 28, 2001 DRC
Request for Additional Information. At the time, the RAI was reasonable, legitimate and
completely necessary. It remains reasonable,legitimate and completely necessary in
order to proceed with State of Utah regulatory authority. Wether neglect, inadvertent
oversight or strategic contempt for authority, this IUC failure is an outrage, warranting
draconian response at the outset of State assertion of control over waters of the US
delegated to State administration. Either IUC must respond seriously to the 2001 RN
according to stipulated schedule, or IUC should suspend operations. This point alone is
grounds for a formal request for a heaiing, which I hereby submit.
DRC Response: Substantive Comments. See DRC response to Ms. Sarah Field's
Comment No. 2, above.
3. As apoint of inquiry,wewonderwhat andwhenwillbe the implications of recent State
Implementation of SWAP," the Source Water Assessment and Protection" Plan, pursuant
to Safe Drinking Water Act Amendments of 1996, and subsequent adaptation into Utah
Code. As a member of the SWAP Advisory Committee in 1998-99, I became aware of the
comprehensive nature of SWAP's simultaneous protection of wellheads, surface water
and emerging ground water. It seems obvious to this observer that there are inevitable
fficts of past IUC groundwater contamination, most of which could easily escape (and
probably has done) the rather pathetic monitoring of the facility heretofore. For the sake
of neighboing communities and isolated native populations, as well as for area wildlife,
all that can be done to answer the question. "What can go wrong?" and to see to it that
these faults are investigated, characterized and remediated scientifically, should be done
without delay.
DRC Response: Substantive Comments. The Permit addresses ground water compliance
limits, ground water compliance, monitoring, and reporting requirements that DRC will
use to protect Iocal ground water resources. Many significant improvements to the
ground water protection have been made thru the Permit that the Executive Secretary
considers sufficient. These include but not limited to requiring: The installation of
additional monitoring wells at the tailing cells, new hydrogeologic evaluations,
development and application of a ground water monitoring quality assurance plan,
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submittal of a ground water performance assessment model, application of a ground
water performance standard, addition of many new ground water quality monitoring
parameters, improvement in format and content of ground water monitoring reports,
periodic monitoring of ground water seeps and springs of the edge of the mesa, and
reporting thereof, etc.
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References
Envirocare of Utah, Inc., January 7,2005, "Comments on International Uranium Corporation
Proposed Groundwater Quality Discharge Permit (Permit No. UGW370004)", unpublished
company comments,2 pp.
Utah Division of Radiation Control, December 28, L998,"Ground Water Quality Discharge
Permit No. UGW170003 Statement of Basis", 8 pp.
Page 17
Public Comments Received from Three Parties:
January T,z[OsEnvirocare of Utah, Inc. Comments (Received January 7,2005)
January 7,z[OsGlen Canyon Group / Sierra Club Comments (Received January ll, 2005)
January 7,2OOsIvan Weber Comments (Received via email on January 7,2N5)
J
o
EorENVIROCAR urAH,INC.
THE SAFE ALTERNATIVE
cD0s-0015
January 7,2005
Dane Finerfrock
Co-Executive Secretary
Utah Water Quality' Board
168 North 1950 West
P.O. Box 144850
Salt Lake City, UT 841 l4-48-50
Subject: Comments on Inremational Uranium Corporaliort Proposed Groundwater
(tuality Discharge Pernrit (Pennit No' I"1GW370004)
Dear Mr. Finerfrock;
Envirocare of Utah, Inc. (Envirocare) pruvides the l:crllorving comments on the International
Uranium Clorporation proposed Groundwater Quality Discharge Permit (GWQDP) (Pcnrrit
No. UGW370004).
Condition I.A Groundn'ater Classilicrtion
The Pernrit lists two data sets tbr the purpose of classifi,ing groundwater at the ILlC t'aciiit1,.
\\,hat is the purpose of providirrg both data sets?
Tablc 2
Basecl o1thc igfbniration provicled in Table 2. the r-rnly radiologic paranleter the Perntittoe is
required to analyze is Cr,r:cs Alpha. Envirocare is required to analyze for Radium-226,
Radium-228, Thoriurn-230, and Thorium-232 at its I I e.t2) disposal cell. UAC R3l3-6-2.1
identilies a conrbinecl (irlrundwater Quality Startdard for Radium ?26 + 2?8 at 5 ptCi/L. Will
these parameters also be evaluated at the IUC facility?
condition I.D.l. DIIT Design Standards for tixisting Taitings cells
Has an cvaluation been perfon:red lo demonstrale liner r:onrpatibility of the Flexible
Menrbrane L,iner (FML) rviih thc I I e.(2) materials bcing dislroscd in the cells?
conclition I.D.3.b.I. Disr:lrarge Ilinimiz*tion Teehnology standarcl
'l'5e averagc wastc$,atcr hcad in the sliures draitt access irlpe is to be u'as low as reasortabll'
achievable" in each tailirrgs disposal cell. I'Iorv will state hrspectors makc a determination on
this criterial)
Condition I.D.3.c. Roberts Pond
An as-built is requireclas Condition I.H.l8 of this CWQDP. l'Iow is this pond construtted?
For consiststcy with ponds used al Envirocare, this was:e.n ater pond should have a tninimum
of ts,o FMI.s and a leuk ciclec'l.ion system. In addition. ivirat systcnt is in place to c'onfirnr
compliance with the two foot frceboard required in this condition?
Condition I.D.3.d. Feedstock Storage Area
The iltroductory paragraphs of this GWQDP state that the ;rennit is tbr a uranium nrillirlg
and tailings disposal facility, not a stomge I'acility. How is the fe,edstock area constructed?
605 NORTH 5600 WEST . SALT IAKE CITY, IJTAH 84176 . TELEPHONE (8O7) 532-7330
E$TDDEL
Page2 of2
January 7,2005
INVIROCARE
How long can stored materials remain in this aiea? Is there a stormwater management plan
for water that accumulates in this area? Is there a DMT criteria for this area? Except in the
dig cell, open air storage is prohibited at Envirocare'
Condition I.E.2. Groundwater Head l\{onitoring
iotut Oi.rolved Solids (TDS) range from 1,276 mglLto 5,200 mg/L' Will the groundwater
elevations be adjusted to a frishwater equivalent head to account for an almost 5 fold
variation in salinity? In addition, Envirocare is required to conduct monthly grortndwater
"l.rrtion, due to a: groundwater mound, much like the mound beneath the tUC facility' For
cousistency, groundwater elevations. freshwater correction, contour maps' etc', should be
perfonned-on a nronthlY basis.
Condition I.H.l. Installation of New Groundrvater Monitoring Wells
I{ow were the locations of the new monitoring wells determined? Monitoring wells at
Envirocare were located usirrg a computer model to denronstrate that should a release occur'
the groundwater nronitoring ietwork would detect that release' Will a well spacing
evaluation be required by the Permittee?
Condition I.H.ll. Infiltration and Contamination Transport Irlodeling Work Plan and
Report , - -,r^r o:_^^ .L^ __-i t i, .on,tition pquires an infiltration and contaminant transport model. Since the propo.qgq
Pernrit does not have a'cover design, it is assumed that a design will come frorn the required
n*J"f;ng. For cpnsistency with E-nvirocare, evert though the cover will need to incorporate
,rirtlnlij, pre'enr the baihtub effect (See condition 1.D.6.b.), the Permittee should not be
able to takc credit for either the upper or lower Flylt.s in tfue modeling effort' ln addition, it is
un"l"", if the Modeliflg Work ptari is part of the Report or a separate submittal which will
require Executive Secretary Approval'
To evaluate the assumptions found in the model, rvill the Permittee be required to prePare a
Post-Model Audit Plan?
Please contact me at [phone] with any questions regarding this issue'
Sincerel5 n
'TrrYAr
l;iltn"nlJr.o*oliance and Permitti,g
I ccrris under pcnalty ol'law rhat this docurncnl and all allachr[cnts were preparcd under rny dircction or sulrcrvision in
accordancc.wirh. ,yrt",n a".igi"J;;;;** rhat qualifiuJ pcruonnel properly; gathcr and evaluatc the information subminc4'
Basedonmyinquiryol.th.p.lono,p.oonswhrirnarragcihesyslL1n.uitl.'Jp..oon'dircctlyrcsponsibleforgatheringthe
information. the infonnarion ,ut rltr.a is, to tht' nkst of my knoivledge and bclief. truc, accutate' and colnplete' I am aware thal
rhere arc significunr p.nulri.r'lo', rrurriil,,s [nir. inrlr""oiion. incluJing thc' pssibility ol'tine and imprisonment for krxrwing'
violatiors.
Glen Canyon Grou p/Sierra CIub
P.O. Box 622
Moab, Utah 84532
Mr. Dane Finerfrock, Dircctor
Dvision of Radiation Contnol
Utah Departnent of Environmental Quality
P.O. Box 144850
Salt Lake City, Utah Ml14-4850.
Subject Comments on Draft Ground Water Discharge Permit No. UG1Y370004,
International Uranium (USA) Corporation (IUC) Uranium MIl, Whirc Mesa, U.tah.
Below please find the comments of the Glen Canyon Group of the Sierra Club on
dhe State ef Utah, Divisien ef Rsdiatie it
No. UGW3700O4. !
l. Draft Ground VYater Disclarge Permit (Permit), page 1: nulrcility is located on
a tract of-land in Sectioru 28, 29, 32, and 33, Towruhip j7 South, Range 22 fust, Salt
I-ake Base ard Meridian, San luan County, Utah,
Comment: The facility is also includes IUC land in Sections 2l,22,andtl,Township
37 South, Range 22East,that are up-gradientfrom the mill and tailings cells. It also
includes down-gradient land in Sections 4,5,6,8, 9, and 16, Township 38 South, Range
description of the mill property must be included in the Permit
2. Part I, page t: D. DISCHARGE MINIMIZATION TECI:NOI0GY STAI,IDARD - thc
tailings aiipoi"tT*ility must be built and operated according to tlufollowing Disctruge
Minimizat ion Teclrw lo gy @Mn standards :
I. DMT Design Standards for Existing Tailings Cells I, 2, and 3 - sMl be based
on existing construction as dcscribed by design and construction inforrruation providcd by
tlu Permiaee, as surnmttrized inTable 3 belowfor Tailings Cells 1,2, utd 3:
Comment: This section is vague regarding the actual design and construction
information that the Division of Radiation of Control (DRC) is relying on. There i-s no
mention of the December 31, 1998, Knight Piesold Report on the Seepage Flux from
Tailings Cell3 Liner submitted to the DRC by the Permittee. There is no mentioa of the
numerous questions that the DRC had about the actual desiga and construction of Cell 3,
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Division of Radiatio, #t
January 7,2W5
as expressed in the (apparently) unanswered Novembe r 28,2001,DRC Request for
Addiional Information (RAI).
The DRC must not rely on cell design and construction information that it has
already found questionabl". tt it section must include more detailed cell design and
construction date. This section must also be amended based on the Permittee's reply to
the November 28, }W,RAI, which was part of the Permit process.
3. Part I, page 11: D. 2(d) Feedstock Storage Area<pen-air or bulk storage olall
feedstock ntaterials at the facility awaiting mill processing shall be limited to tlu eas@rn
:portion of ttw mill site area described inTable 4, below-
Comment: There is no indication in the Permit as to how the Permitrce will monitorthe
groundwater underneath and in the vicinity of the Feedstock Storage Area to g_uarantce
that the materials stored there will not contaminate ground and surface water. The
feedstock is sometimes stored for years out in the open where it is subject to dispersion
and leaching by wind and water, and surface water.
4. part I, page 202 G. OW OF COMPUANCE STATIIS,4. (e), Wure' it is infeasible to
reestablish DMT as defincd in tlu perrnit, tlu Permittee moy proPose an altenutive DMT
for approval by ttu Executive Secretary.
Comment: The DRC does not define'Teasible." Does feasibility include economic
feasibility? Who decides if a ground water corrective action plan is "unfeasible"?
There is no mention of the standards that must be met by the Permittee when proposing
atternative concentration limits (ACIs). Are the standards for establishing ACLs
outlined in l0 C.F.R. Part 4O, Appendix A, applicable here? What criteria will.thc
Executive use in reviewing applications for the establishrnent of ACLs?
The term'feasible" must be defined. The standards for the esablishment of
ACIs must be spelled out in the Permit
There is no mention in the Permit of any necessity for the Permitrce to increase
the reclamation surety to cover ground water remediation when the Permittee is out of
compliance. NRC and State regulations require a surety to cover the costs of
reclamation, including any ground water remediation. This requirement must be included
in the permit
5. Part I, page Nz H. COMPUANCE SCHEDUIfr REQUIREMENTS.TIv Permittee
will comply yith tlu schedules as described and surntnarized below:
Comment: Nowhere in the extensive list of Compliance Schedule Requirements is there
any requirement for the Permittee to respond to the 8-page November 28, 2001, DRC
Riqueit for Additional Information, regarding December 31, 1998, Knight Piesold
Report on seepage Flux from Tailings cell 3 Liner, white Mesa Mll.
Division of Radiation tl
January 7,2OO5 .
,
.
Has the Permittee responded to this RAI? If not, has the DRC notified the
Permittee that they don't have to respond?
It was definitely my understanding, based on correspondence with the DRC, that a
schedule for the Permittee's longdelayed response to the 2001 request would be part of
the Permit requirements. Is this no longer the case? If so, why?
There must be a full explanation of this situation.
In addition, the DRC must review all previous requests for information and make
a determination that they have all been fully responded to or a schedule for response has
been established in the context of the Permit
6. There is no discussion in the Permit of other types of contamination to ground and
surface water by activities on the land owned by the Fermiftee at the facility. The
Permittee curently allows cattle to Eraze on some of the mill property. These cattle can
and do access Ruin Spring. Ruin Spring is on U.S. Depaltnent of Interior, Bureau of
Land Managemen! property that abuts the mill property. The Ruin Spring area is
trampled and contaminated by wastes from the cattle. The spill-overfrom a tank below
the spring (which has not been cleaned in years) feeds a desert riparian area The spring
is used by wildlife.
Does the Permitee have any responsibility for the ruin of Ruin Spring by the
cattle that graze on its mill facility Property?
7. Part I, page l2zD. 5. Definition of I Ie.(2) Waste -for purposes of this Permit,
1Ie.(2) woste is defined as: "... tailings or wastes Produced by the qctraction or
concentration of uranium or thoriumtrom any ore processed primarilyfor its source
rnaterial content", as defincd in Section 11e.(2) of tlu U.S. Atomic Ercrgy Act of 1954, as
amended; which ircludes othcr process relatedwostes ondwaste streow dcscribedby a
March 7, 2003 NRC kuer lron Paul H. Iihaus to lAillian J. Sirclair.
The March 7,2N3,NRC letterfrom Paul H. [.ohaus, Director, Office of State
and Tribal Programs, Nuclear Regulatory Commission (NRC) to William J. Sinclair,
Director, Division of Radiation Control, (in response to questions in the January ld
z[3,letter from Wiltiam Sinclair) states in parc
Question 4: As alternate feed material arrives ot tltc lYhite Mesa
facility, it can be soil co-mingledwith debris such as concrete,
plastic, and bricks. Thcse materials nwybe non-uranium bearing
and are "alongfor tlte ridc" as a result of arry particular
remediation project.These materials may be separated at the time
of introduction into the uranium recovery process and evetualty
disposed of in the tailings impound.ments.Would thcse m,aterials be
classifi.ed as I Ie.(2) byproduct material?
Response: Yes. Thc altern'ate feed material is regulated in mass as
ore; therefore, the rnaterial not arnenable to processing, i.e., debris
Division "r*#, Contnol
January 7,200ls
4
associated with it tlrut must be separated at tlu tinu of uranilmt
recovery, is awastefrom ore processing tlut meets tlv definition
ol tu.(b byprodai material-
Comment
There is absolutely no statutory or regulatory basis for the State of Utah to
authorize the processing of "alternate feed material" at the IUC mill. There is no
statutory or regulatory 6asis for the SAte of Utah to include the "process t"l"t"d wastes
and waste streims" fiom the processing of materials other than natural ore ('alternatc
feed material') in the statutory and regulatory definition of lle.(2) byproduct material-
The Ground Water Discharge Permit must not authorize the proccssing of
*alternate feed materialt' Ihe Ground Water Discharge Permit must notauthorize
the disposal of waste streams from the processing of "alternatc feed material" as
lle.(2)'byproduct matcrial. Such auth6rization is not permitted by any statute or
regulation
Any request by the Permittee for such authorization must be denied.
The following (including Attachment A) are corlments that support these
statemenB.
A. The March 7,2003,NRC letter from Paul H. l.ohaus to William J. Sinclair is
not an NRC legal opinion and has no legal effect SeelO C.F.R.Fart40, Sec.4O.6
Interpretations, which states:
Except as specifically authorized by the Commission in yfiting, no
interpretation of the meaning of the regulations in this part by any
officir or employee of the Commission other than a writrcn
interpretatio, Uy tnr General Counsel will be recognized to be binding
upon the Commission.
B. There is no legal basis under and Atomic Energy Act of 1954 (AEA), as
amended, to consider so called "alternate feed material" and various debris
accompanying such material (at times constitutin g40% of the "alternate feed material)
as "ol€-," ut tfr" term "ore" is used in the definition of lle.(2) byproduct matelid.
The Permit must not include any statement that would imply processing of feed
material other than natural ore ("alternate feed material') is the same as the processing of
..any ore," and that the debris, tailings, or wastes from such processing constitute lle.(2)
byproduct material.
The State of Utah cannot and must not include any reference to the letter from the
March 7,2OO3,NRC in the Permit
See Attachment A hereto for a full discussion and comments on this matter.
C. The Permit does not define so-called "alternate feed material.' There is no
indication in the Permit that "alternate feed material" is made up of processing wastcs
Division of Radiation t
January 7,2OOs
from other mineral processing operations that are commingled with contaminated debris
and soils. Why is there no definition of "alternate feed material" in the Permit
word "oIE."
What does "ore" mean? The word, or term, "ore," as defined in several sources:
. "Ore-a naturally occurring solid material from which metal or
other valuabe minerals may be extracted." fillustrated Oxford
Dictionary, DK hrb. 1998.I
. "Ore-A native mineral containing a precious or useful metal in
such quantity and in such chemical combination as to make its
extraction profitable. Also applied to minerals mined for their
content of non-metals." iory,
Second Rlition, Oxford University Press, ZIIIO, p. l?.Vl':915-916.I
. "Ore-a. A natural mineral compound of the elements of which
one at least is a metal. Applied more loosely to all metaliferous
rock, though it contains thi metal in a free state, and occasionally
to the compounds of nonmetallic substances, as sulfur one. . . . Fay
b. A mineral of sufficient value as to quality and quantity that may
be mined for profit Fay.u tA Dictionary of Mining. Mineral. and
Related Terms, compiled and edited by Paul W. Thrush and Staff
of the Bureau of Mines, U.S. Dept, of Interiot 1968.I
The Oxford English Dictionary points outthat the current usage of the word "ore"
goes back several hundred years. A Dictionary of Mining. Mineral. and Related Tetms
ii.t or.r 65 compound words using the word "ore," such as ore bin, ore body, ole
deposit, ore district, ore geology, ore grader, ore mineral, ore reserve, ore zone. All of
these terms incorporate the word "ore" as it relates to the mining of a native mineral. The
term "ore," without explanation, has for many years been used in millions of instances in
thousands of mining, milling, geological, mineralogical, radiochemical, engineering,
environmental, and regulatory publications. "Ore" like the word'\uater," iS a word of
cornmon and extensive usage with a clear and accepted meaning.
The State of Utah must explain what the statutory and regulatory basis is for
calling wastes from other mineral processing operations "ore." A policy, whether federal
or state, is not a statutory or legal basis.
E. In the past, debris associated with the processing of "alternate feed material"
has been received at the IUC mill. Thousands of tons of such debris have been disposed
of at the mill. ruC was paid to receive and dispose of this material. Some of the material
was apparently washed (i.e., decontaminated), and the wash water was subsequently
processed for its minimal source material contenl
5
Division of Radiatio, tt
January 7,2W5
The debris that sometimes accompanies natural ore when it is processed at a
Iicensed uranium or thorium mill has no economic value to the licensee of a uranium or
thorium mill. A mill owner would not pay for or be paid to receive such debris and, in
fact, would pay less for ore contaminated with a lot of debris. However, the licensee will
be paid to receive and dispose of debris accompanying "alternate feed material.' What is
really occurring is that the licensee is getting paid to directly dispose of contaminated (or
decontaminated) low level radioactive waste.
There are no similarities between the debris associated with ore mined from the
ground and debris accompanying wastes and contaminated materials from other mineral
processing operations.
This debris must have been separated from any material that was going to be
processed at the mill prior to shipping to the mill. This could have been easily
accomplished, but was not because it was in the interest of originator of the waste to get
rid of iq and it was in the interest in the mill operator to get paid for accepting it
The State of Utah is in no way obligated to agree with the NRC on this questioa.
F. The March 7 NRC letter states that "the alternate feed material is regulated in
mass as ore." There is conflict" confusion, and inconsistency in this statement
Who, exactly, regulates alternate feed material as "ore," and what is the basis of
such regulation?
The AEA does not mention "alternate feed material" and it's regulation I can
find no NRC or EPA regulations related to the regulation of "alternate feed material."
There ar€ no NRC generic or site specific environmental impacts statements related to the
regulation of *alternate feed material" or feed materials other than natural ott. :
How can the NRC regulate alternate feed material "in mass as ore" when the NRC
has no statutory or regulatory jurisdiction over "alternate feed material" or uranium and
thorium "orp"?
NRC regulation at l0 C.F.R. $ 40.13 establishes unimportant quantities of sourcc
material that are outside of regulatory concern under the AEA. NRC regulation at
Section 40.4 states that "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 (O.05%) or more of: (i) Uranium, (ii) thorium or (iii)
any combination thereof."
Section 40.13(b) says that any "ore" containing source material, whether or not it
meets the definition of source material (i.e., contains uranium and/or thorium of 0.05%
by weight) is exempt from regulation under Part 40. Section 4O.l3O) statcs:
(b) Any person is exempt from the regulations in this part and from
the requirements for a license set forth in section 62 of the act to the extent
that such person roceives, possesses, uses, or transfers unrefined and
unprocessed ore containing source material; provided, that except as
authorized in a specific license, such person shall not refine or Prcoess
such ore
6
Division of Radiation #od
January 7,2W5
The NRC has exempted "ore," either source material ore (over .05% uranium or
thorium by weight) or non-source material ore (less than .05 % uranium and/or thorium
by weight). The NRC regulates facilities that process and relne llore,ll under its
rJgulation of l1e.(2) byproduct material, but it does not regulate "ore" as such.
There is nothing in tlie AEA that authorizes the transfer to the State of Uah of
regulatory responsibility over uranium or thorium *oIE."
Thank you for providing this opportunity to Present comments.
7
Sincerely,
S*,- / t7,{,"/l^*
Sarah M. Fields, Chair
Nuclear Waste Committee l
Glen Canyon Group/Sierra CIub
Enclosurp: Attachment A
Comments on Draft Ground lVater Discharge Permit No. UGW370M,
International Uranium (USA) Corporation (IUC) Uranium Mill,
White Mesa, Utah.
Attachment A
There is absolutely no statutory or regulatory basis for the State of Utah to
authorize the processing of "alternate feed material" at the IUC mill. There is no
statutory or regulatory basis for the Sate of Utah to include the "process related wastes
and waste streams" from the processing of materials other than natural ore ("alternatc
feed material') in the statutory and regulatory definition of 1le.(z) bypnrduct material.
The Ground lVater Discharge Permit must not authorize the processing of
..alternate feed materialt' The Ground VYater Discharge Permit must not authorize
the disposal of waste sheams from the processing of "alternate feed materialt'as
11e.(2) byproduct matcrial Such authorization is not permittcd by statute or
regulation
Any request by the Permittee for such authorization must be denied.
fnl fotlowing discussion of the history of the statutes and regulations applicable
to the processing of ores for their spurce material content at licensed uranium and
thorium mills will support these statements.
A. Uranium Min Taitittgs Radiation Control Act of 1978
Uranium Mill Tailings Radiation Control Act of l9?8 (LJMTRCA) (Public Law
95&,92 Stat 3033 et seq.), amended the Atomic Energy Act (AEA) of 1954 (Public
I-aw 83-703, 68 Stat 919 et.seq.). The AEA of 1954 was an amendment to the Atomic
Energy Act of 1946 (Public Iaw 79-385,60 Star 755 et seq.).
There is no evidence that the AEA, as amended by LJMTRCA, anticipated and
sanctioned the processing of feed materials other than natural ores and the disposal of
wastes from such processing at licensed uranium and thorium processing facilities. Therc
is no evidence that the AEA gave the Nuclear Regulatory Commission (NRC) or NRC
Agreement States the broad authority to authorize the processing of feed materials other
than natural ores as nore.n There is no evidence that the AEA gave the NRC and NRC
Agreement States the broad authority to authorize the disposal of wastes from such
processing at licensed uranium and thorium processing facilities as 'lle.(2) bypoduct
material.'
So-called "alternate feed material" is the wastes, contaminated debris, and
contaminated soils from other mineral processing operations. This material has been
deemed 'Teed material other than natural ore." It is not "natural ore." It is not "any ore."
And, it is not "ore." There is no evidence that UMTRCA sanctioned the processing of
"alternate feed material," as " any ore,'at licensed uranium or thorium extraction
Division of Radiatio" tu
Attachment A
January 7,?fr05
facilities. There is no evidence that under UMTRCA materials other than natural ore
were ever considered to be "ore." There is no evidence that UMTRCA gave any federal
or state a1erlcy the discretion alter the definition of "ore" to include materials that are not
natural ore. There is no evidence that UMTRCA gave any federal or state agency the
discretion to alter the definition of "any ore" as that term is used in the definition of
"l 1e.(2) byproduct material.'
In fact, there is specific evidence that Congress, the Atomic Energy Commission
(AEC), the NRC, and the Environmental Protection Agency (EPA) explicitly determined
that the processing feed material other than natural ore was not sanctioned by applicable
statute or regulation
The regulatory history of UMTRCA, found in the two Congressional reports,
provides information with respect nuranium mill tailingsn and nore.F The Congressional
ifrpo.6 clearly stated what was contemplated by Congress (known as the intent of
Congress) when Congress esablished a progam for the control of "uranium mill tailings'
fromthe processing of 'uranium oren at inactive (Iitle I of LJMTRCA) and active Cfitle
II of UMTRCA) uranium and thorium processing facilities. House Report (Interior and
Insular Affairs Committee) No. 95-1480 (I); August ll, ln8' and House Report
(Interstate and Foreign Commerce Committee) No. 95-1430 ([), September 30,1978.
Under oBackground and Need,'HR No. 95-1480 (I) states:
Uranium mill tailings are the sandy waste produced by the uranium
ore milling process. Because only I to 5 pounds of useable uranium is
exhacted from each 2,000 pounds of ore, tremendous quantities of waste
are produced as a result of milling operations. These tailings contain
many naturally-occurring hazardous substances, both radioactive and
nonradioactive. . . . As a result of being for all practical Purposes, a
perpetual hazard, uranium milt tailings present the major threat of the
nuclear fuel cycle.
In its early years, the uranium milling industry was under the
dominant control of the Federal Government At that time, uranium was
being produced under Federal Contracts for the Govemment's Manhattan
Engineering District and Atomic Energy Commission Program. . . .
The Atomic Energy Commission and its successor, the Nuclear
Regulatory Commission, have retained authority for licensing uranium
mills under the Atomic Energy Act since 1954. [HR No.95-1480 (1) at
l1.I
The second House Repo4 under "Need for a Remedial Action Programn states:
Uranium mills are a part of the nuclear frrel cycle. They extact
uranium from ore for eventual use in nuclear weaPons and power-plaUts,
leaving radioactive sandJike waste-commonly called urauium mill
tailings-in generally unattended piles. [HR No. 95-1480 Q) at25.1
Division of Radiation tt
Attachment A
January 7,2N5
:
,
B. Atomic Energr Commission and the AEA of 19fi
As indicated above, the domestic uranium mining and milling industry was
established at the behest of the Manhattan Engineer District and the AEC. The AEC
regulated uranium mines and uranium processing facilities, established ore buying
stations, and bought ore. Mining and milling of uranium ore was done under contract to
the AEC. AEC purchased uranium ore under the Domestic Uranium Program
Regulations related to the AEC's uranium procurement program were setforth in
l0 C.F.R. Part 60. Part 60 was deleted from TitlelO of the Code of Federal Regulations
on March 3,ly7s,after the establishment of the NRC.
The AEC published a number of circulars related to their Domestic Uranium
Program that discuss the various types of uranium ores. The Domestic Uranium
Program-Circular No. 3-Guaranteed Three Year Minimum Price-Uranium-Bearing
Carnotite-Type or Roscoelite-Type Ores of the Colorado Plateau Area' (April 9, 194S)
$ 60.3 Guaranteed three years minimum pricefor uranium-bearing
carnotite-type or roscoelite-type ores of tlu Cotorado Ptateau-(a)
Guaruttee. To stimulate domestic production of uranium-bearing ores of
the Colorado Plateau area, corlmonly known as carnotite-type or
roscoelite-type ores, and in the interest of the common defense and
security the United States Atomic Energy Commission hereby esablishes
the guaranteed minimum prices specified in Schedule I of this section, for
the delivery of such ores to the Commission, at Monticello, Utah, and
Durango, Colorado, in accordance with the terms of this section during the
three calendar years following its effective date.
Note: In $$ 60.1 and6O.2 (Domestic Uranium Program, Circulars No. I
and2),the Commission has established guaranteed prices for other' domestic uranium.bearing ores, and mechanical concentrates, and refined
uraniumproducts. .
Note: The term ndomesticn in this section, referring to uranium, uranium-
bearing ores and mechanical concentrates, means such uranium, orEs, atrd
concentrates produced from deposits within the United States, its
territories, possessions and the Canal 7nne.
,l0 C.F.R. Part 60-Domestic Uranium Program at S 60.5(c) states:
Definitions. As used in this section and in $ 60.5(a), the term nbuyed
refers to the U.S. Atomic Energy Commission, or its authorized
purchasing agent The term noren does not include mill tailings or other
mill products. . . . [Circular 5,14 Fed. Reg. 731 (February 18, 1949).1
[Emphasis added.J
Division of Radiation t
Attachment A
January 7,2005
o
It is clear that the AEC was the primary mover in the domestic uranium mining
and milling program. Under the Atomic Energy Acts of 1946 and 1954, the AEC
regulated riranium mining and milling and established a uranium ore-buying Program.
From the l94o's to lg71,the regulations in l0 C.F.R. Part 60 clearly discussed what
uranium ore lvas and was not and clearly stated that'oren did not include mill tailings or
other mill products. In other words, "ore" did not include materials that had already gone
through a mineral processing operation. It did not include materials other than natural
ore.
From the very beginning of the AEA, the AEC was explicit about what uranium
ore was. Ore specifilallidid not include tailings, wastes, and products from_mineral
processing operations. Nothing has changed in the use of the term "ore" in the statutes or
iegutation-s pertaining to the processing of uranium and thorium ore since that time.
C. Statutory Definition of Source Material
The AEA of l946,under 'Control of Materials,' Sec. 5 (b), nsource Materials,n
(l), ',Definition,n provides the definition of 'source material.l Sectiol s(bxl) states:
Definition. - As used in this Act' the term nsource materialn mea1s
uranium, thorium, or any other material which is determined by the
Commission, with the approval of the President, to be peculiarly essentid
to the production of fissionable materials; but includes ores only if they
contain one or more of the foregoing materials in such concentration as the
commission may by regulation determine from time to time.
The AEA of l954,Chapter 2, Section I l, "Definitions,n sets forth the current
statutory definition of 'source material 'at Sec. ll(s):'
The term nsource materialn means (1) uranium, thorium, or any other
material which is determined by the Commission pursuant to the
provisions of section 61 to be source material; or (2) ores containing one
or111op of the foregoing materials, in such concentrations as the
commission may by regulation determine from time to time.
t42 U.S.C. Sec. 2014(z).I
Responsive to this statutory definition, in 1961 the AEC established the following
regulatory definition at l0 C.F.R $ 4O.4:
Source Material means: (1) Uranium or thorium, or any combination
thereof, in any physical or chemical form or (2) ores which conAin by
weight one-twentieth of one percent (O.O57o) or more of: (i) Uraniurn"
(ii) thorium or (iii) any combination thereof. Source material does not
include special nuclear material. l26Fed. Reg. 284 (Jan. 14, l%1).I
4
Division of Radiatio, #*t
AttachmentA
January 7,200ls
Therefore, the AEC made a determination, in accordance with the mandate of the
AEA of lgs4,that ores containing 0.057o thorium and/or uranium would meet the
statutory definition of source material. For materials other than natural ore, only the
uranium and or thorium content (no matter what the concentation) met the statutory
definition of source material. There was a clear differentiation between the two types of
source material.
At the same time that they made that determination, the AEC had a regulation that
clearly stated that'ore'does not include mill tailings or other mill produc8. Surely, the
AEC, as the administrator of a uranium ore procurement program and the developer of
the uranium mining and milling industry knew what they were referring to when they
used the term 'ore.n There was no need to define "ore" in the statute or regulations
because that term had an unquestionable commonly accepted meaning within the mining
and milling industry. It was not part of the new regulatory terminolog5r. On the other
hand, "'sor.r-rce material" and "special nuclear material" were defined because they were
new regulatory terms.
hl" AfC set forth certain exemptions to the regulations in l0 C.F.R Part 40. The
proposed rule, which was later finalized in January 1961, states in pertinent Part
The following proposed amendment to Part 40 constitutes an over-
all revision of l0 CFR Part 40, nControl of Source Material.n
With certain specified exceptions, the proposed amendment
requires a license for the receipt of title to, and Ore receipt, possession, use,
transfer, import, or export of source material. . . .
Under the proposed amendment" the definition of the term nsoulce
material': is revised to bring it into closer conformance with that
contained in the Atomic Enirgy Act of 1954. nsource Material'is defined
as (1) uranium or thorium, or any combination thereof, in any physicat or
chemical form, but does not include special nuclear material, or (2) ores
which contain by weight one-twentieth of one percent (0.05 percent) or
more of (a) uranium, (b) thorium or (c) any combination thereof. The
amendment would exempt from the licensing requirements chemical
mixtures, compounds, solutions or alloys containing less than 0.05 percent
source materiai by weighl As a result of this exemption, the change in the
definition of source material is not expected to have any effect on the
licensing program. .. .
Section 62 of the Act prohibits the conduct of certain activities
relating to source material "after removal from its place of deposit in
nature" uqless such activities are authorized by license issued by the
Atomic Energy Commission. The Act does not, however, require a
license for the mining of source material, and the proposed regulations, as
in the case of the current regulations, do not require a license for the
conduct of mining activities. Under the present regulation, miners arp
required to have a license to transfer the source material after it is mined.
Under the proposed regulation below, the possession and transfer of
Division"f *otr;
AttachmentA
January 7,2005
unrefined and unprocessed ores containing source material would be
exempted. 147 Fed. Reg. 8619 (September7,196O).1
Here, the regulation makes clear that "source material ore" is something that has
been removed from its place of deposit in nature." It is something that is mined from the
ground by miners.
T-herefore, the AEC established, via a rulemaking, exemptions for source material,
as defined in Sec. 20la{4[), related to mixtures, compounds, solutions, or alloys
containing uranium and/or thorium:
(a) Any person is exempt from the regulations in this part and from
the requirements for a license set forth in section 62 of the Act to the
extent that such person receives, possesses, uses, transfers or delivers
source material in any chemical mixture, compound, solution, or alloy in
which the source material is by weight less than one-twentieth of I percent
(0.05 percent) of the mixture, compound, solution or alloy. The
exemption contained in this paragraph does not include byproduct material
as defined in this part. U0 C.F.R. $ 4O.13(a), 26Fed. Reg. 284 (Jan. 14
1%1).I
The AEC also established, via a rulemaking, exemptions for source material, as'
defined in Sec. zWa@)@), related to'ore':
(b) Any person is exempt from the regulations in this part and from
the requirements for a license set forth in section 62 of the act to the
extent that such person receives, Possesses, uses, or transfers
unrefined and urtprocessed ore containing source material; provided,
tha! except as authorized in a specific license, such person shall not
refine orprocess such ore. [10 C.F.R.40.l3(b), 26Fed. Reg. 284 (Jan. 14,
1%r).1
The definition of nsource materialn and the exemptions that are related to those
definitions stand today, over forty years later. These regulatory definitions and
exemptions did not change when the NRC was established in 1975 atd took on the
regulatory responsibility for nsource material.' These regulatory definitions and
exemptions did not change when the AEA was amended by UMTRCA in lgl8. These
regulations and definitions did not change when the NRC developed their policy
guidances related to the processing of feed material other than natural ore at licensed
uranium recovery operations.
Alternate feed material that contains uranium and thorium contains "source
material" under the first definition of "source material." However, it is not "sour@
material" under the second definition, because it is not "ore" under the applicable statutes
and regulations.
6
Division of Radiation #u
Attachment A
January 7,2005
D. Definition of 11e.(2) byproduct material.
LMTRCA, among other things, amended the AEA of 1954 by adding a new
definition-the definition of lle.(2) byproduct material:
Sec. 201. Section 1le. of the Atomic Energy Act of 1954, is
amended to read as follows:
ne. The term byproduct material'means (l) any radioactive
material (except special nuclear material) yielded in or made radioactivc
by exposure to the radiation incident to the Process of producing or
,itiring special nuclear material, and (2) the tailings or wastes produced
by the extraction or concentration of uranium or thorium from any ore
pio"essed primarily for its source material content' [42 U.S.C. Sec. 2014
(e).I
There is no evidence in the regulatory history of UMTRCA that Congress, in
defining "l le.(2) byproduct materialn intended to also amend the statutory definition of
,sourcJmaterial.' -ihe
"any ore" in the definition of lle.(2) byproduct material is 1)
ores which contain by weight one-twentieth of one percent (0.05%) or mone of: (i)
uranium,(ii) thorium or (iii) any combination thereof (source material); and 2) ores which
contain tess than Uy tneigni onJ-twentieth of one Percent (O.O5%)or more o1[: (i)
uranium,(ii) thorium or (iii) any combination thereof. If the term "any ole" was meant to
include marcrials other than "ore" in the definition of "any ore," the result would be an
amendment to the definition of "source material." There was no such amendmentto the
statutory definition of "source material."
There is no evidence in the regulatory history of UMTRCA that the term nany
ore" does not mean nany type of uranium ore" (i.e., ore containing less than .05%
uranium and/or thorium "na tn" numerous types of natural uranium-bearing minerals that
are mined at uranium mines and milled at uranium mills).
There is no evidence in the regulatory history of UMTRCA that Congress
intended the term 'any ore'to mean anything that the NRC or an Agreement Statc
wanted it to mean. There is no evidence that UMTRCA intended that "ore" included
wastes from mineral processing operations mixed with wastes and debris from other
sources, even if those wastes were Processed for their source material content at a
licensed uranium or thorium mill.
2" NRC Regulations
A. Mandate of UMTRCA
UMTRCA required that the EPA and the NRC promulgate rules and regulations
implementing the statute.
Bothihe EPA and the NRC established a regulatory program for uranium milling
and the processing of ores. Neither the EPA nor the NRC contemplated the processing of
Division of Radiation tl
Attachment A
January 7,2OOs
materials that were not "natural ore'when they developed and promulgated their
regulations
Neither the EPA nor the NRC considered wastes from other mineral processing
operations in their concept of nore,o and they did not address in any manner the
piocessing of such wastes when promulgating their regulatory regimes for active uranium
processing faciliti es.- fJrttrer, during the various rulemaking proceedings, the public was neYer
informed that wastes Irom other mineral processing operations, no matter how they were
defined, would be processed at licensed uranium or thorium mills. Therefore the public
was given absolutely no opportunity to cornment on such processing activities at licensed
uranium or thorium facilities.
The public has never been given this opportunity in any NRC, EPA, or State of
Utah'rulemaking proceeding.
B. NRC Regulatory Program, 10 C.F.R. Part 40
Responsive to LJMTRCA, the NRC incorporated the UlvlTnce !e!{tion of
lle.e) bypioduct material (with clarification) into their regulations at 10 C.F.R $ 40.4:
"Byproduct Materialn means the tailings or wastes produced by the
extraition or concentration of uranium or thorium from any ore processed
primarily for iS source material content, including discrete surface wastes
iesulting from uranium solution extraction processes. Underground ore
bodies depleted by such solution extraction operations do not constitute
'byproduct materialn within this definition. 144 Fed. Reg.50012-50014
(August ?/+,lg7g).1
The NRC also explained the need for the new definition:
section 40.4 0f l0 cFR Part 40 is amended to include a new
definition of 'byproduct material.' This amendmen! which included
uranium and thorium mill tailings as byproduct material licensable by the
Commission, is required by the recently enacted Uranium Mill Tailings
Radiation control AcL[44Fed. Reg. 50012-50014 (August 2/+,1y19.7
The NRC promulgated further regulations amending Part 40, in 1980. In the
Federat Register Notice (FRI'[) summary, the NRC states:
The U.S. Nuclear Regulatory Commission is amending ie
regulations to specify licensing requirements for uranium and thorium
*illing activities, including tailings and wastes generated from thesc
activities. The amendments to parts 4O and 150 take into accountthe
conclusions reached in a final generic environmental impact statement on
uranium milling and the requirements mandated in the Uranium Mll
Division "f *#; contnol
AttachmentA
January 7,?N5
Tailings Radiation Control Act of ln&, as amended, public comments
received on a draft generic environmental impact statement on uranium
milling, and public comments received on proposed rules published in the
Federal Register. [Footnotes omitted.] [45 Fed. Reg.6552l-65538
(October 3, 1980).I
There is no statement in any of the NRC regulations in 10 C.F.R Part 40 or in any
of rulemaking proceedings promulgating those regulations that, under any circumstances,
wastes from other mineral processing operations can be considered to be 'oren. There is
no statement that, under any circumstances, such wastes would be processed at licensed
uranium or thorium mills and the tailings or wastes would be disposed of as l1e.(2)
byproduct material in the mill tailings impoundments. The regulations promulgated by
the NRC and the EPA did not contemplate this kind of mill processing activity.
The National Environmental Policy Act ("NEPA'!) document in support of the
promulgation of the NRC regulatory program for uranium mills did not contemplate this
kind of uranium or thorium milling activity. In the rulemaking proceedings and.NEPA
proceeding the public did not have an opportunity to contemplate and comment on this
kind of mineral processing activity at licensed uranium or thorium mills.
C. The Final Generic Environmental Impact Statement on Uranium Milling
In developing and adopting Part4O regulations, the NRC relied upou the Final
Generic Environmental Impact Statement on Uranium Milling ('GEIS'), NURECI{706,
September 1980. The GEIS makes a clear statement regarding the scope of the GEIS and
its understanding of what uranium milling entails:
As stated in the NRC Federal Register Notice (42 FR 13874) on
the proposed scope and outline for this study, conventional uranium
milling operations in both Agreement and Non-Agreement States, are
evaluated up to the year 2000. Conventional uranium milling as used
herein refers to the milling of ore mined primarily for the recovery of
uranium. It involves the processes of crushing, grinding, and leaching of
the ore, followed by chemical separation and concentration of uranium.
Nonconyentional recovery processes include in situ extraction or ore
bodies, leaching of uranium-rich tailings piles, and exhaction of uranium
from mine watCr and wet-process phosphoric acid. These processes ar€
described to a limited extent, for completeness. [GEIS, Volume I, at 3.]
The GEIS is very clear about what it considers nore'to be and gives no indication
whatsoever that materials other than ore, such as the tailings or waste from mineral
processing operations (including debris, commingled contaminated soils and waste
materials from other sources) are Considered to be 'ore.' The processing of 'falternate
9
Division of Radiation t
Attachment A
January 7,2W5
feed material" was not mentioned in the discussion of "nonconventional recovery
proceses" in the GEIS.
The GEIS includes a discussion of nPast Production Methods.n That discussion
makes referenCe tO 'Ore,' "Ore eXplOration,' 'pitChblende ore,n "Crude Ofe milling
processes,n "lower-grade ores," "uranium-bearing gOld ores,n 'high-grade OrCS,n nOlE-
buying stations,n and "ore reserves.n GEIS, Volume I, Chapter 2, at2-l to 2'2. There is
a lengthy discussion of nUranium Mining and Milling Operationsn that provides a
desciption of the commonly and less-commonly nused methods of mining uranium
ores." GEIS, Volume II, at B-1 toB'2. Appendix l.
In Chapter 6, nEnvironmental Impacts,n there is a discussion of nExposurc to
Uranium Ore Dust,n which states, in part
Uranium ore dust in crushing and grinding areas of mills contains nahral
urani um (U -23 8, lJ'23 5, thori u m-23 0, radi um- 2?-6, lead-2l Q and. polonium-2lO) as the important radionuclides. [GFIS, Volume I, at 641.]
There is also a table giving the "Average Occupational Internal Dose due to
Inhalation of Ore Dusln GEIS at64l,Table 6.16. Further, the GEIS discusses
"Shipment of Ore to the Mill' (GEIS at 7-l l), "Sprinkling or Wetting of Ore Stockpile'
(GEIS at8-2), nOre Storagen and "Ore Crushing and Grinding" (GEIS at 8{), 'One Pad
and Grinding" (GEIS, Vol. 3, atG-2), 'Ore Warehouse (GEIS, Vol. 3, at K-3) and
"Alternatives to Control Dust from Ore Handling, Crushing, and Grinding Operations
(GEIS, Vol. III, at K-3 to K-3). In the NRC responses to commenB there are discussions
of "Average Ore Grade, Uranium Recovery." GEIS, Vol. II, at A-12 to A-13.
Nowhere in these discussions of "ore" was it stated that materials other than
natural ore were thought to be a type of "ore" and the processing of such materials would
be addressed in the environmental review
The GEIS did not consider the processing of alternate feed material, of whatever
source and kind. The GEIS gives no indication whatsoever that such wastes are note,n
even if they were processed at a uranium or thorium recovery facility for their nsoutpe
material contenLn CIearly, the GEIS did not contemplarc a situation where wastes from
the processing of feed material other than natural ore would meet the definition of l1e.(2)
byproduct material.
Therefore, the GEIS did not evaluate, and the public did not have an opportunity
to comment upon, any of the possible health, safety, and environmental impacts of the
processing of other mineral processing wastes at uranium or thorium processing facilities.
There was no evaluation of the transportation issues related to the fansportation of such
wastes, nor were reasonable alternatives to the transportation, receipt, processing, and
disposal of such wastes at uranium or thorium mills ever evaluated.
The NRC has never supplemented the GEIS to include an environmental
assessment of the processing of alternate feed materials. The NRC has never required a
site-specific Environmental Impact Statement for any uranium mill, including the
Permittee's mill, that evaluated the environmental impacts associated with the processing
of "alternate feed material" at the mill. Most of the "alternate feed material" (including
t0
Division of Radiation c.*l
AttachmentA
January 7,2Ws
1t
large amounts of debris) processed at the Permittee's uranium mill was received,
processed, and disposed of without any Bpe of environmental review whatsoever.
3. EPA Regulatory Standards
A. Mandai otrnirncl
LJMTRCA directed the EPA to establish standards for uranium mill tailings and
directed the NRC to implement those standards. That statute, as codified in 42 U.S.C.
2V22, states in pertinent Part:
Sec. 2U22. Health and environmental standards for uranium mill tailings
(b) Promulgation and revision of rules for protection from hazards at
processing or disPosal sirc.
(l) As soon as practicable, but not later than October 31, 1982, the
Administrator shall, by rule, propose, and within l1 months thereafter
promulgate in final form, standards of general application for the
protection of the public health, safet5r, and the environment from
radiological and nonradiological hazards associated with the processing
and with the possession, transfer, and disposal of byproduct material, as
defined in section 20ly'{e)Q) of this title, at sites at which ores are
processed primarily for their source material content or which are used for
the disposal of such byproduct material. . . . Bmphasis added.J
Requirements established by the Commission under this chapter
with respect to byproduct mdrterial as defined in section ?fil4(e)Q) of this
title shall conform to such standards. Any requirements adopted by the
Commission respecting such byproduct material before promulgation by
the Commission of such standards shall be amended as the Commission
deems necessary to conform to such standards in the same manner all
provided in subsection (fX3) of this section. Nothing in this subsection
shall be construed to prohibit or suspend the implementation or
enforcement by the Commission of any requirement of the Commission
respecting byproduct material as defined in section }OM(e)Q) of this title
pending promulgation by the Commission of any such standard of general
application. In establishing such standards, the Administrator shall
consider the risk to the public health, safety, and the environment the
environmental and economic costs of applying such standards, and such
other factors as the Administrator determines to be appropriate.:***
(d) Federal and State implementation and enforcement of the standards
promulgated pursuant to subsection (b) of this section shall be the
i"sponsibility of the Commission in the conduct of its licensing activities
under this chapter. States exercising authority pursuant to section
2D2l(b)(2) of this title shall implement and enforce such standards in
Division ", *lt" contnol
AttachmentA
January 7,20fJl5
accordance with subsection (o) of such section. t42 U.S.C' ?'U22(b) and
(d).I
Congress directed the EpA only to establish standards for'sites at which ores are
processed pimarily for their sourcg material.* The EPA, as mandated by LJMTRCA,
hnafized the ',Enviionmental Standards for Uranium and Thorium Mill Tailings at
Licensed Commercial Processing Sites'in 1983.48 Fed. Reg.45ff2545*l7,October7,
19g3. In the nsummary of Background Information'the EPA provides a discussion of
'The Uranium Indusfiy' (i.e., the industry that the regulations apply to):
The major deposits of high-grade uranium:relnlre Uni1t' SgT::*
^located i, tt "
-Colorado Plateau, the Wyoming Basins, and the Gulf Coast
Plain of Texas. Most ore is mined by either undergrouod or open-pit
methods. At the mill the ore is first crushed, blended, and ground to
proper size for the leaching Process which extracts uranium. ' ' ' After
ururiu. is leached from the ore it is concentrated . . . . The depleted ore,
in the form of tailings, is pumped to a tailings pile as a slurry mixed with
water.
Since the uranium content of ore averages only about 0.15 perceng
essentially all the bulk or ore mined and processed is contained in the
tailings. [+g F.a. Reg. 45V25, 41yn,Oitober 7, I 983']
Clearly, when the EPA developed its standards for uranium and thorium mills,
they stated, rnith specificity and particularity, what uranirlm ore was, what uranium
.iriiri,orisisted of, ana what uianium mill tailings consisrcd of. The EPA clearly stas
that thi standards applied to the processing of uranium and thorium ores at uraniumand
thorium mills. Ther; is no reasonable evidence that would indicate that the standards
promulgated by the EPA applied to tfre-processing- of.wastes fiom gthe.r d1"$
;;;;r;.g opJrations "t uiunirrn and thorium mills (i.e., alternate feed marcrid).
elaiiionally, the EPA incorporated UMTRCA's definition of 1le.(2) byproduct
material, as clarifii by the NRC inl0 c.F.R. 40.4, into their standards at40 c.F-R
Subpartb, $ tyZ.at6i. Since that time the EPA has not amended their definition of
tteiZ) bypioduct *upriut in a rulemaking proceeding, nor have they amended their
aennition via policy guidance. The EPA has not, in any manner' widened the use of the
words nany orin to ir-Aua" any type of mineral processing wastes that is currently termed
"alternate feed material."
As will be discussed below, the EPA did not sanction the NRCs policy guidance
with respect new definitions of "oren and l le.Q) byproduct material'
clearly, the EPA, as directed by congress, has not in any manner contemplatcd
the processini of wastes from other mineral extraction operations at uranium or thorium
mills when establishing the 'Environmental Standards for Uranium and Thorium Mll
Tailings at Licensed Commercial Processing Sites'n
t2
Division of Radiation *,
Attachment A
January 7,200s
B. EPA Regulations
t3
When compiling that list of hazardous materials and incorporating that list into
40 C.F.R. paftly2,the-EpA did not in any manner contemplate the processing of wastes
to* ott ", mineral extraction operations at the mills for which they werc establishing
standards. The EpA did not address in any manner effluents that might result from the
processing of feed materials that were the tailings and other processing wastes from other
mineral extraction facilities----- - ilthe various rulemaking proceedings that have taken place for the establishment
of the EpA standards, the public was given no opPortunity to consider or comment on the
p"*fUffity that the EPA standards would also apply to the processing of wastes from
otrrer mineral processing operations (including commirqlgd debris, soils, and waste
materials from other sources) at uranium and thorium mills.
It is true that therEPA and the NRC, in establishing their regulatory progmm'
contemplated the processing of ores at uranium and thorium mills. However, as shown
above, processingof wasteJfrom other mineral processing operatiolg at uranium and
thorium mills was beyond the scope of the regulatory progftrm established by the NRC
and the EPA in resPonse to LJMTRCA'
Furthermore, l0 C.F.R. Part0,Appendix A, Criterion 8, states in parf,
Uranium and thorium byproduct materials must be managed so as
-to
conform to the applicabii provisions of Title 4O of the Code of Federal
Regulations, Part 44O, nOre Mining and Dressing Point Source Category:
Effluent Limitations Guidelines and New Source Performance Standards,
Subprirt C, Uranium, Radium, and Vanadium Ores Subcategory,n as
codified on JanuarY l, 1983'
There is no indication that these regulations applying to "ore" also apply to
..alternate feed material." There is no evidence that "alternate feed material" was
considered to be some new tyPe of *olp''---- - T;re is no indication that this NRC regulation and the regulation in 4O C.F.R.
pafim(and the enabling statute) have in any manner been amended or altered by
subsequent NRC policy g-uid*.r. Therefore, any shift in the usage of the wold nolEn
would confli"t rrittt tt r"J rt"t tory and regulatory authorities with respect this regulation.
A. In the late 1980,s the NRC was faced with a few requests to-process.marcrial other
th- orr. At that time, and today, there are two statutes or regulations (implementing
those statues) that are pertinent. First is the statutory definition of nsource material!
established in 1954 bythe AEA, found at 42 U.S.C. Sec. 2ol4{z), and in the NRC
regulatory definition Lf ,rorr"" materialn (established in 196l pursuant Sec. 2014(z))'
found at 10 C.F.R 40.4:
Division ", *ot, Control
AttachmentA
January 7,2005
Source Material means: (1) Uranium or thorium, or any combination
thereof, in any physical or chemical form ot (2) ores which contain by
weight one-twentieth of one percent (O.OSVo) or more of: (i) Uranium,
(ii) thorium or (iii) any combination thereof. Source material does not
include special nuclear material.
The second is the definition of 'byproduct materialn in Section ll(eX2) of the
Atomic Energy Act of lgs4,as amended, (42 U.S. C Sec. 2014e)Q)) and the regulatory
definition of 'byproduct materialn found in l0 C-F.R.4O.4:
Byproduct Material means the tailings or wastes produce.d by the
extraction or concentration of uranium or thorium from any orc processed
primarily for its source material content, including discrete surface wastes
iesulting from uranium solution extraction processes. Underground ore
bodies depleted by such solution extraction operations do not constitute
"byproduct material" within this definition.
The NRC had several options, including the denial of the amendment requests;
One option would have been to go to Congress and request that Congress change the
definition of 1le.(2) byproduct material. NRC Staff made a determination that they
would not go to Congiess to seek an amendment to the AEA of 1954.
Instead, whaithe NRC did was to manipulate the use of the word n any oren as it
is used in the definition of 1le.(2) byproduct material. NRC proposed in a notice and
comment proceeding, that a policy guidance be established for the purpose of inrcrpreting
the term nore,' as it is used in the definition of lle.Q) byproduct material. "Revised
Guidance on Disposal of Non-Atomic Energy Act of 1954, Section 11e.(2) Byproduct
Material in Tailings Impoundments" and "Position and Guidance on the Use of Uranium
Mill Feed Materials OtherThan Natural Ores," 57 Fed. Reg.20525 (May 13,lW2\
The NRC did not institute a rulemaking proceeding to amend 10 C.F.R krt40.
The Final Position and Guidance gave a new definition of ore. "Final Position
and Guidance on the Use of Uranium Mill Feed Materials Other than Natural Ores." 60
Fed. Reg. 4g}gl(September ?5,1995). "Interim Position and Guidance on the Use of
Uraniuri Mill Feed Material Other than Natural Ores," Regulatory Issue Summary (RIS)
2CfJxJ.-23 (November 30,2000). The new definition states:
Ore is a natural or native matter that may be mined and treated for the
extraction or any of its constituents or any other matter from which souroe
material is extracted in a licensed uranium or thorium mill. [60 Fed Reg.
at 49,296 (SePtembe t 22, 1995).1
Based on the new use of the term nore' as put forth in the proposed guidance, not
only would the definition of lle.(2) byproduct material apply to nany ore processed
primarily for its source material contentn in a licensed uranium or thorium mill, but the
t4
Division of Radiation *
Attachment A
January 7,2OO5
definition of l1e.(2) byproduct material would also apply to any materiel (particularly
wastes from various mineral extraction operations and various commingled wastes.and
debris) processed primarily for its source material content in a licensed uranium or
thorium mill. In other words, NRC altered the accepted meaning of the word "oren as
that word ore was used in statutory definitions
B. On May 14,1W2,NRC Staff, sent a letterto the EPA, enclosing a coPy of the May
13 proposed rules and requested EPA comment on two proposed guidance documen8
*a-tiir associated staffanalyses. Letterfrom Robert M. Bernero, Director, Offrce of
Nuclear Material Safety and Safeguards, NRC, to Sylvia K. Lowrance, Director, Office
of Solid Waste, EPA, MaY 14,lW2.
The EpA did not submit cornments on the proposed policy guidances. The only
documentation of EPA's response to that request for comment is quoted below and is
found in the Commission Paper that forwarded the finalized guidances to the
Commission for their aPProval'
There was an issue that delayed finalization of the guidance
documents. In an October lgE2,mixed waste meeting between the NRC,
the EPA, and DOE staff, EPA identified potential inconsistencies in
NRC's interpretation of the definition of source material in conjunction
with the exclusion of source material from the definition of solid waste in
the Resource Conservation and Recovery Act (RCRA). In making its
pomt, EpA cited the May 13,lW2,Federal Register notice on the disposal
of non-l le.Q) byproduct material. The staffhad delayed finalization of
the uranium recovery policy guidance documents, pending resolution of
the source material definition issue. However, the staffhas now decided
that these two policy guidance documents can be finalized, independent of
the source material issue, because the guidance is not dependent on the
interpretatiort of the definition of source material. ["Final 'Revised
Guidance on Disposal of Non-Atomic Energy Act of 1954, Section lle.(2)
Byproduct Material in Tailings Impoundments'and Final'Position and
Guidance on the Use of Uranium Mill Feed Materials Other Than Nahrral
Ores,'' SECY-95-221, Angnst 15, 1995.I
The proposed Position and Guidance and the Final Position and Guidance gave no
indication that the NRC was amending, interpreting, or in any manner adjusting the
accepted meaning of the term nore" as that word is used in the statutory and regulatory
aefinition of nsource material." Nor was there any discussion in the various guidances
related to the processing of material other than natural ore (i.e., material $lt tt not oIE at
all) of how thi exempti6ns set forth in l0 C.F.R. $a0.13(a) and (b) would be impacted by
guidance's new definition of 'ore"n There is no indication that the nsource material
fefinition issue' has ever been appropriately addressed or resolved. It is an issue that has
Iain in some pretty murky regulatory waters for quite some time.
l5
Division of Radiation *
AttachmentA
January 1,200ls
That question is: Does the new use of the term 'ore,n put forth in the Final
position and Guidance, affect in any manner the definition of nsource material'
established in the Atomic Energy Act of 1954 or affect the exemptions set forth in
$ a0.l3(a) and (b)?" itir plain from the Atomic Enerry Act of 1946 and the legislative history of the
AEA of lgi+ nathe Uranium Mill Tailings Radiation Control Act of 1978 and the
regulatory history of the AEC, EPA, and NRC rules promulgated responsivg to those
iui., trrui the poiicy Guidance's new use of the term 'oren goes far b9lond the accepted
meaning of that term and the clear intent of Congress. Therefore, NRC and the Sate of
Utah cainot make use of the new definition of nore'to claim that any alternate feed
material is .'ore" or 'source material oren or to claim that the wastes produced from the
processing of that material meets the statutory definition of '11e.(2) byproduct material.n' Ti'. applicability of various environmental regulations to a great degree depends
upon definitions. Congiess, in their legislative function, often specifically defines words
oi phrases related to the application of_a statute to a particular material or
ciriumstances-when there is a need for explanation. However, when using words or
terms with a common and long accepted meaning, such as groundwater, mill, tailings, or
nore," no explanation or definition is necessary.
fhe i.InC and the State of Utah is not authorized to shift these accepted
definitions at will as an expression of their "regulatory flexibility.' This is especially so
when such shifts result in direct conflicts with NRC's own enabling statutes and
,r!ut.,ioor, as is the case with the use of the newly defined term nolE." Additionally,
UIC ana State of Utah is not authorized to shift definitions at will when such shifts
ar""uv conflict with the statutory authority and regulations of another federal agency, in
this case, the EPA.
4. LIMTRCA and the AEA
UIyITRCA, as it amends the AEA, clearly specified what constitutes nany ore.n
What constitutes nany oren is "any ore.n It does not include material *other than nahrral
ore.,' The plain language of the Act and the history of the implementatigl of th" Atomic
En"rgy Aci of lg1r,,as amended by the Atomic Energy Act of 1954 and the Uranium
UiU faitings Act of 1978, is all that is needed to determine what noren or nany oren is.
As discussJd ubor., clearly the legislative and regulatory history of the AEA and Title l0
of the Code of Federal Regulations make plan the meaning of the term nore' and the term
nany ore.n
5. Conclusion
No federal agency or state agency can use a permit or a policyg-ufdance to expand
upon and substantivlly alter the explicit will of Congress when that will is explicitly set
fortn in stature. The Sate of Utah does not have the discretion to use this Ground Water
Discharge permit to substantively alter the statutory definition of nsource materialn or the
statutori defi nition of I I e.(2) byproduct material'
t6
Division of Radiation t
AttachmentA
January 7,2OO5
None of the federal and State of utah statutes and regulations peraining to the
regulation of ground and surface water at the Permitteels uranium recovery facility were
promulgatea "ont *ptutinq the disposal of debris and wastes from the processing of feed
materials other tnun out oi ore. Tie receipf processing, and disposal- of these materials
;;;;, addressed in the original White Mesa Mill Environmental Statement or any
subsequent EIS suPPlement
There is no evidence that the Permittee' mill tailings impoundmenq were
designed and constructed to receive the debris and wastes from the processing of feed
*"tJriul, other than natural ore'
Therefore, the Ground water Discharge p:ry"! must oot in any manner authorize
the acceptance, processing, and disposal of materials other than natural orp at the facility
covered by the permit sich authorization is outside the scope of the enabling statutes
and regulations for licensed uranium recovery facilities. .
l7
Sarah M. Fields, Chair
Nuclear Waste Committee
Glen Canyon GrouP/Sierra Club
From: l'lvan Weber'<[e-mail]>
Date: 1nrc54:59PM
Subject Ground water discharge permit, IUC White Mesa Mill
Dear Mr. Morton:
please forgive the last-minute nature of my attempt to comment, however briefly, on the dratt GWP for
IUC A/hite t\4esa, near Blanding, Utah. lt is important, however, for citizens of Utah to note the
significance of DRC's assumption of regulatory'primacy' over.lUC operations and facilities, and for us to
oiserre the thoroughness atiempted in the Statement of Basis, supporting documents and in the draft
Ground Water Discharge Permit, itself. As one who has participated in earlier rounds ol proceedings and
reviews in IUC requesti for'alternate feed' permits under NRC in former years, I am very gratified that the
State of Utah has embraced this task seriously, as evidenced by the substance and detail of the draft
permit and the SOB.
May I please echo the critique submitted by Ms. Sarah Fields, and incorporate it by reference into my own
reflbctions. ln particular:
a.. I share her apprehension, expressed in her questioning of the meaning ol "infeasible' DMT as
rationale lor IUC iirUmittat of "alternative DMT" tb the Executive Secretary of DRC (page 20 of dratt
permit, 4. "Facility Out of Compliance Status...,'e. "Where it is infeasible to reestablish DMT...'). This
appeais to be a l6ophole of magnitude proportiohal to the holes we suspect to exist in the cells' liner
;i&g;a. piease tilhten this all6wance'by'de_fining terms rigorousty, if not by- eliminating 4..e altogether.
6.. Rtso on page 2b, under H. "Compliance Schedule Requiremgnts," !join Ms. Fields in incredulity that
IUC has beeh allowed not to respond to the November 28, 2001 DBC Bequest for Additional lnformation.
At the time, the RAI was reasonable, legitimate and completely necessary. lt remains reasonable,
legitimate and completely necessary in order to proceed with State of Utah regulatory authority. Whether
ne-glect, inadverteni oversight or strategic contempt for authority, this IUC failure is an outrage, warranting
draionian response at the outset of State assertion of controlover waters ol the US delegated to State
administration. fitner IUC must respond se.riously to the 2001 RAI according to a stipulated schedule, or
IUC should suspend operations. This point iloqe is grounds lor a formal request for a hearing, which I
Rapid and regretably cursory review of the Statement ol Basis aflords considerable comfort with the
peimit's comlrehenlion ol the woelul inadequacy of process ggllFgr technology, relative to
,best-available'liners now. ln fact, the original liners were not'BAT" in the early'80s when the cells were
built, though they were in the theoretical range of common practice. As indicated in my previous review of
linerdesig-n, conitruction and QA/QC (or: lack thereof), submitted with Sierra Club Glen Ganygl Group
commenti in mid-2002, it is my considered view as an environmental technology professionalthat the
careless nature of lUC construction procedures, particularly choice of bedding and cover soil materials --
which were anything but usand,'as evidenced by photographs taken during construction and included in
IUC and consultanucontractor reports in the DBC record -- doomed allol these liners to failure before
they were even completed. Penetrations ol relatively weak liner membranes by angular rocks was
inevitable, and has probably resulted in progressive leakage through tears of varying size and orientation.
It is encouraging toiead that HDPE liner material technology are reaching lUC, and especiallythat DRC is
imposing awireness of state-of-the-art liners on the White Mesa Mill facility. The sooner these^c^ells are
.frlt Oofrn and replaced with redundant, carelully designed, conslructed. field-tested, and QA/QC
documented linersystems, complemented by strategic head reduction and monitoring systems, the better.
For this facil1y to hive been in use, allowing such extremely aggressive and highly contaminated process
lluids to circulate and reside in these porous cells, is unconscionable. Continued use of these
anachronistic cells must stop as quickly as possible, parsing of "infeasible" notwithstanding. This, too, is
cause for requesting a hearing.
As a point ol inquiry, we wonder what and when will be the implications ol recent State implementation of
,SWAp,, the Sourie Water Assessment and Protection' Plan, pursuant to Safe Drinking_Wa!g Act
Amendments of 1996, and subsequent adaptation into Utah Code. As a member of the SWAP Advisory
Committee in 1998-99, t became aware ol the comprehensive nature of SWAP's simultaneous protection
water di
of wellheads, surface water and emerging ground water. tt seems obvious to.this observer that there are
inevitable ellects or pasiiuc ground iateriontamination, most of which could easily escape (and
pioururv n"s done) ine iatneipathetic. m.onitoring on the-facility heretofore. For the sake of neighboring
[ormr'nities and iiolateo native populations, as wellas lor area wildlife, allthat can be done to answer
the question, .what ."n go;roniti anO to see to it that these laults are investigated, characterized and
remdOi"ted scientifically, should be done without delay'
All told, congratulations are due to Executive Director Nielson, DRC and particularly to.you, Mr. Morton, for
the intent and elfect oilr'i. p"rrit. lt is a very positive step, desperately needed for-a long, long time.
Now it,s time to follow thro-uih, firmly and resbiutely. we hope that you will indulge further comments as
opportunity presents to ieri6w'tne complex, exteniive and g'enerally thorough Permit, SOB and supporting
documents within upcominj J"y.. As you know, we ordinary citizens struggle to make time and create
inlormation access. The DRC website's preseniation of keydocuments here has been extremely helpful.
il;;li il .inr"rety for the great competence, responsible effort and clear sense of DRc mission that
these d'ocuments rePresent.
GratelullY Yours,
lvan Weber, PrinciPaUOwner
Weber SustainabilitY Consuhing
953 lst Avenue
Salt Lake CitY, Utah 84103
(801 )355'680g I (gOt )0S1 -8841 cellular
ivan @webersustain.com
virww.webersustain.coii' iunder construction)
GC: 'Sarah Fields'<sarahmfields@earthlink'neb
Attachment 2
Revised IQ Spreadsheet
To Replace
December 1,2004 DRC
Statement of Basis, Attachment 7
DRC Spreadsheet I lE2KdSurn.xls, tabsheet Metals
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=.8 EaE E !iE,ie IEgE 36F g 6EE R JE EEg E-+nTmo 6{o* E-zzzzE fiE5 Xc s'zt 6 0)E +5$ *d.sJ A;rEE $$E;t;n
EE EE EEEE.E
I
HUNTSMAN
Govemor
, JR.
State of Utah
Department of
Environmental QualitY
Dianne R. Nielson, Ph.D.
Executive Dircctor
DIVISION OFRADIATION
CONTROL
Dane L. Finerfrock
Director
JONM.
GARY HERBERT
Lieutenant Governor
March 8,2005
,ffi.F A(w.
TomRice
Ute Mountain Environmental DePartment
PO Box,l48
Towaoc, CO 81334
SUBJECT: Response to Comments by the Ute Mountain Ute Tribe Concerning the Draft Ground Water
Discharge Permit, UGW370004, International Uranium (USA) Corporation.
Dear Mr. Rice:
The Division of Radiation Control (DRC) received your comments concerning the Draft Ground Water Discharge
permit (permit), UGW370004, for the International Uranium (USA) Corporation (hereafter IUC) facility in a letter
dated January lg,20o4. Because your letter arrived after the public comment period f'lr the Permit of January 7,
2005 DRC did not include a response to the comments in the letter in the Public Participation Summary. However,
DRC feels that it is important to respond to the Ute Mountain Ute Tribe comments and will do so in this letter.
The comments are listed below in italics followed by a DRC response'
1 Comments: our first concern is that the Ground water Discharge permit does not distinguish between alternate
fiii-ond noturoi or". It defers the matter to be defined under Nuclear Regulatory Commission regulations as /
defined in Sectionl le. (2) of the U.S. Atomic Energy Act of 1954'
My l/19/05 conversation with you clarified that distinguishing between alternate feed material and natural ore
was a licensing issue and not a groundwater discharge permit issue. However, there is a concern on the part of
the Tribe thatie lose an additional tool to protect water resources. The Tribe is concerned that any new
a1ernate feed materials will fall under a blanket discharge permit. It will not necessarily ensure that this pennit
is sfficiint to protect groundwater resources. The (Jte Mountain Ute Tribe respectfully requests that all
ayeinate feed-requests include review and revision of the Ground Water Discharge permit to ensure protection
of groundwater.
DRC Response: We acknowledge your concern about new alternate feed materials entering the IUC facility.
1.f," OnC *lU continue to work closely with both the Tribe and IUC to carefully characterize and review all
proposed alternate feed materials before allowing the material to enter the facility. The Permit can be reopened
tt"" purt IV.N.3) if the Executive Secretary determines that modifications need to be made to Protect human
health and the environment.
2. Comments: Sub-Pans E.5, 8.6 and H.9 of Part I refer to the White Mesa Seep and Spring Monitoring Program.
fn" Ut" tUtorntain lJte Tribe requests that there be a public review of the spring and seep survey to ensure that it
was completed in a satisfactory matter and includes all springs and seeps laterally and down gradient from the
IUC facitity. This wilt ltelp ensure that ground water movement is accurqte. We also request that control
t 68 North 1950 West . PO Box 144850 . Salt Lake City, UT 841 14-4850 ' phone [phone]'fax [phone](D7
T.D.D. (801) 5364414 ' wt^ttu.deq.utah.gov
Page2
satnplesbetakenfromupgrad,ientsourcesintheBurroCanyon/BrushyBasinformationsinordertocompare
w ater qualitY information'
DRCResponse:TheDRChasandwillcontinuetocoordinatewiththeBLM,IUC,andtheUteMountainUte
Tribe concerning monitoring of the '""p' uJ Jpling' tt'ut may be "tf"tt"o by the IUC facility' The need for
control samples can be discussed in tt " prol"r, of r-eview ,ra upp-rui or ,n" ptun required by Part I'H'9 of the
permit. In addition, all reports submitted (ffiffi;fiit" rra"ru sl"p-una sp.ing Monitoring Reports' Part I'F'6)
as required uv tt "
p#i;;ifu" araitaute ior publlc review tt,,ougr' in" Go'e'nment Records Access and
Managemenro", ti*o'oidAa63-'z'#X$:',',:ffi1"1'l'',,";l**l;: $'IT',HffiHlLiJ;"'
water movement and upgradient sources ln tne slrauuw qYurrer
resources will be Protected'
3.Comments:Sub-parth.tgofpart]discussestheTerrahydrofurlnDemonstrationStudyWorkPhnandReport.
The existing plume of contamination r*rio"ri"-n""i titn"f iU"'' "oi""'ns' How canlicensing andoperations
continue ,o ^ou" ioirora when theri is oi un'"''otu"d'contamination issue? This matter continues to cause
repidation,n , ,nz'rriri*,i ""u, ,* f:iu;;';;;;;;;;;, kak_materiats into the tocat perched aquiftr' It
potentially ,nr"orini'ii" N'avaio ,quipr, tli" ,ol" source of waterfor the White Mesa community'
DRC Response: The tetrahydrofuran (Tlf) source has not substantiated, hence the reason for the investigation'
The requirem"rolr-,i"-p"rr"it rart t.e anl'rr.rg *,r ensure tr,ut ii ir carefu,y examined to determine the cause
of contamination. ii concentrations or r# ur" ,erified to have causea uy op"rution of the IUc facility' and pose
an adverse effect impact on human t eatttr orlinrionrn"nt, ,t "
g*".uiir"'s""r"tary wi, take action to ensure that
TIIF will u" "ont o-t-t'"a and remediar"d. d;, ;;ti.r could be tr,"i "itt"r re-opening the Permit to mandate new
requirements u' pJ' p* fV'N'3' or by a separate enforcement action'
4.Comments:IfthetggSKnightPiesold.Rep-ortonseepage,]::!::^TailingsCell#3subihittedbyll]CtoDRCis
accurate there are reakage probrems that have not been ,"*"ai"i. ii quition that evenif the discharge pennit
is solid, not resolving "*irting l"okag" proil"*' '""' 'n"
$ren$h of thi permit's non-comPliance arm while
isnorins the fact;;;;;;;;;ir-;;;i:;ri";"""d'irr,"^i*r*g io'"i'"i' resources' rherefore we request that
either the discharge permit or lhe ,ror"rTil"nrrng pror",r-ri ,rqriu'n" 1980s era liners be replaced with new
tiners property u':;;;'i;';;;;';;,h"r,i;;;;""*1s'"ti", '".,t's thai mav h^ve punctured the'cett tiners'
DRC Response: See DRC response in the attached document: Public Participation S-ummary For the IUC white
Mesa Draft Groundwarer Discharge P";;li;. iicw:zoooa, co,,'n",,tt from Ms' Sarah Fields' DRC response
i"Z.rtr"" No' 2 (PP' 8 and 9)'
5.Comments:Furthertnore,althoughNRCapprovedfinanli-Tl,lssurancemethodsrcfundanygroun.dwaterclean
up as we, as finalfacility closure ir rh";;;;",;fr;;"n't? If th* i'"'i'ia':"tsed inihe disclnrge permit will it be
addressed in the licensing process?
DRC Response: Financial surety is managed under the Radioactive Materials License. we agree that financial
surety is important for ground *u,"r r"ffi#;;;;Jihe dynamics associated with ground water
remediation surety is aifficutt to o"t"rmiiJ.Tt "
pnc witt evattiaiJ suiety issues at rhe next License renewal
scheduled on or aiound March' 2007'
6.comments:Becausecellconstructioninthepasthlsllnq,ues.tionabletheTriberequestsclarificationastothe
construction of ,,water tight cers,, toroiii-iiii" Feed stoik sroioi" ir"" (sub-pan D'2(d))' Mv visits to the
facitity nor" ar*rnrirotid tt at ,n"r" oiirrr, rc be- little 'i'".,'o'n"zi in the'area where materials are stockpiled
and await processing. Furthermore, 'i"' i' used on the piles io 'ont'ot d'ust' Ad'ditional d'esign information
f,*pUinini '"tt 'on'7'u'tion
must be required by the state'
DRC ResPonse: See DRC response inlhe document: Public Participation Summary For the IUC White Mesa
Draft Groundw-ater Discharge Permit N".-uc*120004, comments from Ms' sarah Fields' DRC response to
Comment No. 3 (P'9)'
Page 3
7. Comments: As stated earlier in the letter, the l|te Mountain Ute Tribe notes the significance of the State of Utah
iiffig ,"gulatory compliance over the IUCfacility. The increased requirements of the Division of Radiation
Controlire positivi. However, it also raises a red flag to the Tribe. Previous regulators had less control over
the IIIC opiration and it appears that less control has resuhed in environmental problems such as leaking cells
and ground water contamination.
DRC Response: We want to assure the Ute Mountain Ute Tribe that the Ground Water Discharge Permit, that
.ddr"rr"r gr*rd water compliance limits, ground water compliance, monitoring, and reporting requirements,
will be ,r"a Uy DRC to protict the local ground water resources- If historic contamination has occurred best
available technology wiit ue used during selection of a remediation option [see UAC R317-6-6.15(A) thru (G)]'
g Comments: The Tribe is concerned that these problems will go unsolved at the same time the IUC facility is
*"rtirr, th" DOE for consideration as one of the disposal alternatives for the Atlas Mill Moab Proiect. It would
be irreiponsible fir the State of Utah to support the IIJC ahemative before all ground wqter issues and Ground
Water Discharge Permitting is completed:
DRC Response: In a letter dated February 15, 2005, from Utah Governor Jon M. Huntsman, Jr. declared that the
M*b T"iltngs pile be removed and transported to Klondike Flats. Attached is a copy of the Governor's letter.
If you have any questions concerning DRC responses to your comments please contact Loren Morton or Dean
Henderson at (801) 5364250 with any questions.
aie L. Fircr fr &k, Director
Utah Division oTRadiation Control
DILF/DCH:dh i
rtion SummarYAttachments: MarchT,2005PublicParticipa. February 15, 2005 Governor Huntsman Letter
cc: David C. Frydenlund, IUC, with attachments
Harold R. Roberts, IUC with attachments
F/../tomrice-resP.doc
Public Participation SummarY
March 7,2005
Public Participation Summary
For the
IUC White Mesa
Draft Groundwater Discharge Permit
No. UGW370004
Introduction
The purpose of this document is to summarize public comments received by the Utah Division of
Radiation Control (DRC) regarding the International Uranium (USA) Corporation (hereafter
IUC) uranium mill facility at White Mesa, Utah. Three sets of comments were received from the
public during the comment period that ended on Friday, January 7,2005. Each of these
comments is listed below in italics, followed by a DRC response.
Comments From Envirocare of Utah.Inc. (see Attachment l)
1. Condition I.A Groundwater Classiftcation
The Permit lists two data sets for the purpose of classifying groundwater at the IUC
faciliry. What is the purpose of providing both data sets?
DRC Response: Substantive Comment. They were presented to disclose the differences
in the splii sampling total dissolved solids (TDS) data (see Statement of Basis (SOB), p.
5). As explained in the SOB, the Executive Secretary used the lowest values from either .
set of data to classify shallow groundwater at the site (ibid). This approach is protective
of the groundwater quality resource.
2' T!fo';, the information provided in Table 2, the only radiologic parameter the
Permittee is required to analyze ls Gross Alpha. Envirocare is required to analyze for
Radium-226, Radium-228, Thorium-231, and Thorium-232 at is 11e.(2) disposal cell.
UAC R313-6-2.1 identffies a combined Groundwater Quality.Standardfor Radium 226 +
228 at 5 uCi/L (sic). Will these parameters also be evaluated at the IUC facility?
DRC Response: Substantive Comment. We acknowledge that significant concentrations
of radium and thorium are found in the tailings material. Elevated concentration of total
radium and thorium-230 are also found in tailings wastewaters at levels that about 188
and 1,208 times their respective State Ground Water Quality Standards (GWQS, see
SOB, Table 5). We recognize that the DRC process used to select the GWPL parameters
focused on contaminants that had tailings wastewater concentrations that were equal to or
greater than 50-times their respective GWQS (SOB, p. l4). It is important to note that
this selection process also relied on a review of each contaminant's soil-water
partitioning (IQ) coefficient, as defined by the lowest available value found in the
technical literature (SOB, p. l5). Additional review shows that radium was omitted from
consideration in the IQ table found in Attachment 7 of the SOB. This oversight has been
corrected, and the revised table is found below in Attachment 2 of this document. From
this information, the lowest literature I(6 values for radium and thorium are 57 and 100
l/Kg,respectively. These values indicate that radium and thorium tend to partition to
soils and rock and not travel far in groundwater environments. As a result, other
contaminants are expected to be the leading edge of a contaminant plume, if it occurs,
Page I
Public ParticiPation SummarY
March 7,2005
andtherebyarriveatnearbymonitoringwellsmuchearlierthanradiumandthorium.
This finding i"inro.."s the original declsion not to include them in the Permit as GWPL
parameters.
The situation at Envirocare is different, in that a high chloride environment exists in the
shallow grounJ*u,er there. Also, radium has been found to be mobile in saline
groundwat", "nriror-ents,
as illustrated by the accumulation of radium pipe scale
deposits in oiifield pipelines in Texas. Under these circumstances radium should be
consideredasanimportantgroundwatermonitoringparameter.
This decision about not using radium as an indicator parameter at the IUC facility can be
changed in the future. If at sometime, the Executive secretary discovers the tailings ceils
have releas.d.ontu.inants to the shailow groundwater system, the Permit can be re-
opened aro aaoitional groundwater contaminants required for monitoring and GWPL
eitablished pursuant to Part fV'N'3'
j.Conditionl.D.lDMTDesignSrandardsforExistingTailingsc,]]:
Has an evaluation been pedormed to demonstrate iirrr ro*patibility of the Flexible
Membrane ltrrr.in tie l"Ie.(2) mateials being disposed of in the cells?
DRCResponse:SubstantiveComment.WithrespecttoexistinglUCTailingsCellsl,2,
and 3 this evaruation has not been made. Evaluations of this kind are mandated by the
NRCregulationsfoundinl0CFR40,AppendixA,Criterion5E.Unfonunately,these
NRC rules *ri. no, established until 19tii, long after the IUC tailings cells were
constructed.
Under the State Ground Water Quality Protection (GWQP) Rules, discharge
minimization technologv 1pMT) has io consjder existing process design capability [uAC
R3l7_6_6.daii. e' eiptainea in the soB, the Executive secretary decided to focus on
operational .t1rg"., unO at1g1, and construction improvements for the cover system'
which h., y;;i;tuilt at ta-itings cells l,2,.urd 1- This is appropriate in that these
tailings celis have been in existenfe for more than 20 years and their liners long covered
bY manY tons of tailings'
ForTailingscell4A,thePermitrequiresittobere-constructedinordertomeetBAT
mandates tpu,t. l.ff.i+ and l5). During design review and approval for this new
construction, the DRC will evaluate this issue to ensure that the BAT requirements of the
StateGWQPRulesaremet[seeUACR317.6-6.4(A)].
4. ConditionI.D.3.b.t. Discharge MinimizationTechnology Standard
The averag'r ror1r*orer heai in fhe slimes drain access pipe is to be "as low as
reasonably achievable" in eac:h tailings disposal cell' How will state inspectors make a
determination on this criteria?
DRC Response: Substantive Comment. The exact criteria will be worked out during the
ExecutivesecretaryreviewandapprovalprocessfortheDMTMonitoringPlan(Part
I.H.13). r,l, "r,l.i'pated
that this criteria will be established by the Executive Secretary
after IUC p.t"io.rirformation on historic water levels at this access pipe, explains what
kind of pulping und control equipment has and is currently used' and evaluates what
type of pumping and control t"ifrrofogy is available and can be readily deployed' After
Page2
Public ParticiPation SummarY
March 7,2005
approval of this plan, compliance criteria can be determined for IUC to operate by, and
DRC staff to insPect against'
5. Condition 1.D.3-c. Roberts Pond
.is pondAn as_builti-rrqu*"a as condition H.H.18 of this GWQDP. How is th
constructed? For consistency with ponds used at Envirocare' this wastq'vater pond
should have a minimum of two FMLs and a leak detection system. In addition, what
system is in place to confirm complianc'e with the two foot freeboard required in this
condition?
DRC Response: Substantive Comment. As for a compliance confirmation system, that is
tobeproposedbylUCandapprovedatafuturedatebytheExecutiveSecretaryduring
developmentoftheDMTMonitorlngPlanrequiredunderPartl.H.l3ofthePermit.
Regarding the requirements for douile flexible membrane liner (FML) and leak detection
systems,thispondhasexisted-atthefacilitysincetheearlylg80,sandwasclearlyan
existing facility under the GWQP *res ruic R317-6-1.14), which were not promulgated
unril 1ggg. ruc,s decision to rJplace the liner in_2002with another single membrane .
constitutes modification of the "*it,ing pond, and-therefore should have been done under
the authorit;;i; P"t-it (ibid.). Unfolrtunately,IUC did not notify the DRC of this
consrruction activity until 2004, well after it was re-lined (soB, p. 30). Upon receipt of
thisinformationtheExecutivesecretarydeterminedthatitwasmoreimportantsecurea
permit ro, tt,. tuitings cells. Several other factors were considered to support the decision
to use enforcement discretion and consider the pond as an existing facility, as explained
in the SOB iil. ,S-fOy, namely rhat it is small in size (0.4 acres), is used for intermittent
wastewater J|rui", una tnut the existing Rpclamation Plan required under the '
Radioactive Materials License (License) mandates that any contaminated subsoils
beneath the liner be excavated and moved to disposal in the tailings cells at the time of
facilityreclamation(ibid.).NochangewillbemadetothelUCPermit
6. Condition I-D.3'd' Feedstock Storage Area -.-:- :- c.
The introduirory porographs of tnii CWQDP state that the permit is lor a uranium
milting and tailings disposal ficility, not a storage facitiry' How is the feedstock area
constructed? How long can storei materials remain in this area? Is there a stormwater
management planfor water that accumulates in this area? Is there a DMT criteriafor
this area?
'nir"ii i" the dig (sic) cell, open air storage is prohibited at Envirocare'
DRC Response: substantive comments. Again, the ruc facility, including the open air
feedstock storage area atttre eastern margin -or tn" mill site, pre-existed the GWQP rules'
and is .orrr-qu."n,ly an existinffacility u-ndrr uAc R317 -6-1.14. To avoid proliferation
of possible contamination frori such siorage, the Permit limited this activity to only the
historic area defined by the survey coordiriates in Table 4. As for construction details'
thisareaisunderlinedbyacompactednativesoi]surface,however,noreliable
informationisavailableregardingthepermeabilityofthecompactedsoilsinthisarea.
Storageincontainersisalsoallowede]sewhereatthefacilityunderthePermitPart
I'D.3(d).Notimelimitsarestipulatedin.thePermitforanyfeedstockstorage.However,
performance criteria are mandaled for this containerized storage' in that the containers
mustbemaintainedclosedandwater-tight(ibid.).
Page3
Public ParticiPation SummarY
March 7,2005
As for a stormwater management plan, Part I'H'17 requires that ruc submit one and
secureExecutiveSecretaryapproval.Stormwaterthataccumulatesonthehistoric
feedstockpaddrainstotaitingsCelll,alongwithothermillsitestonnwater.Theonly
DMT p..rorirur."-..ii".iu roittris area, is th-at all open-air feedstock storage be restricted
to only the historic pad location, as defined by Tabll 4 of the Permit [Part I'D'3(d)]' as a
means of preventing proliferation of possible contamination' No change will be made to
the IUC Permit'
7. Condition I.E'2' Groundwater Head Monitoing
Total Dissolved Solids (TDS) range from 1,27-61o -5,200 mg/L' Will the groundwater
elevations i, ,i"irra io o Trrriioir, ,qui'olent head to account for an almost S-fold
variation in-satiniryl In aidition, Enviicare is required to conduct monthly
groundwater elevations due to a groundwater-mound, muchlike the mound beneath the
IUC faciliry. For consistency, giundwater ele-vations' freshwater correction' contour
maps, etc., should be performed on a monthly basis'
DRC Response: Substantive comment. The TDS or salinity contrast between
groundwatri i, tt " shallow aquifer and the source of the groundwater mound at the IUC
facility i, "*p""i"A to be relatively low. The range of the TDS in IUC's shallow
groundwat"ii, u, stated, and when averaged across all monitoring wells at the facility the
combined;;;;; t, ;;ut 3,000 mg/1. As aresult, we anticipate the contrast between
this average TDs and the average liater quality expected in the eastern wildlife ponds,
which ,".trurg" ,fr" luc ground"wat"r mound (see Sog, p. 4), is closer to about 3-fold'
Higher TDS cont'rasts are expected in stormwater induced groundwater mounds at
Envirocare, i, ,t'", natural Tbs found in the shallow aquifer ranges from 20,000 to over
70,000, wiih an average of more than 40'000 mg/l'
As for the suggested need for monthly groundwater head monitoring at IUC' the
Executive Secretary agrees it is necessiy in those,wells where transient conditions exist
or could exist. Such is the case in all the IUC wells related to the chloroform
investigation and pump and treat system, where an appropriate frequency will be set in
the future as a part of an approvedbroundwater Corrective Action plan. That frequency
andallothernecessarymonitoringrequirementswillalsobeexposedtoapublic
comment p"rioa ,or"ti,n. in the }utuie. For purposes of this Permit' the baseline
groundwater head monitoring frlqrency will Loniiru" as quarterly (Part I'E'2)' If non-
compliance with GWpLs is detecied, more frequent head monitoring will be conducted in
accordance with the requirements of Part I'G'l'
S.Conditionl.H.l.InsrallationofNewGroun.dwaterMonitoringWells
How were the locations of the"nr* *oritoring wells determined? Monitoring wells at
Envirocare were located using a computer *Zd"-l to demonstrate that should a release
occttr, tn, grounararcr moniioring iil network^would detect that release' Will a well
spacing etilluation be required by the Permittee?
DRCResponse:SubstantiveComment.Thenumberandlocationofwellswasarrivedat
after consideration of site hydrogeologic conditions and after negotiation with ruc'
unique hydrogeologic conditioni exii at the white Mesa in that the shallow aquifer is a
perched ,yri"i, fouia about 100 feet below the tailings cells' and located in a
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March 7,2005
consolidated geologic formation deposited by an ancient fluvial environment. In contrast
the aquifer atEnvirocare is found 15 feet below the disposal cell in unconsolidated lake
deposited sediments.
Despite these differences new wells are to be added at the IUC facility, including two
new wells south of Tailings Cell 1 (MW-24 and MW-28) and the three new wells south
of Tailings Cell 2 (MW-2b, MW-30, and MW-31). These were spaced in a similar
manner as the three existing wells found south of Tailings Cell 3 (see SOB, Attachment
I l). Because there is a strong East-West groundwater flow direction near Cell 1,
additional wells were required upgradient (IvIW-27) and downgradient (MW-24) on the
Northeast and Southwest corneri respectively. For Cell2, two upgradient wells Mw-26
and MW-32 (formerly TW4 15 and TW4-17) already existed and were included under
the permit. A new downgradient well for both Cells 2 and 3 will also be installed off the
Southwest corner of cell 3 (MW-23). For Tailings cell 3, it is anticipated that the three
new wells proposed on the northern dike will also serve as upgradient wells. The existing
Cell 3 downgradient wells, MW-5, MW-ll, and MW-12 have been in place on the south
dike since Oitober, 1982 or earlier. A new upgradient well will also be installed off the
Northeast corner of Cell 4A (MW-25)'
No computer modeling was done by IUC to justify the spacing intervals selected. Such
models estimate the required well spacing interval from several hydrogeologic
assumptions, includingbut not limited to: local groundwater velocity and flow
directions, existence o1isotropic and homogeneous aquifer conditions (including aquifer
dispersivity and permeability), and a presumed minimum footprint or size of a leak from
the embankment. The Executive Secretary acknowledges that such models are useful
tools to determine the minimum well spacing for a facility, but believes it premature to
perform such modeling at the IUC facility until after local hydrogeologic conditions are
tetter established in thi immediate vicinity of the tailings cells. This evaluation will need
to consider several factors, including, but not limited to local:
1) Elevation and configuration of the upper geologic contact of the Brushy Basin
Member of the Morrison Formation, which perches the shallow groundwater system.
2) Distribution and spatial trends of shallow aquifer permeability that could provide
preferred groundwater flow Paths'
3) Distribution of shallow groundwater head and flow directions'
4) Distribution and spatial trends of groundwater quality in the shallow aquifer.
For this reason, the permit requires IUC to submit a Revised Hydrogeologic Report for
Executive Secretary approval (see Part I.H.2). In the event that the Executive Secretary
determines that additional information is needed, including additional borings,
monitoring wells, or any other pertinent data needed to characterize the local
groundwaier system, ltiC witt be requested to provide this information (SOB, p.23). lt
it that point thl Executive Secretary determines the characterization is complete, a well
spacing model may be required to evaluate the need for additional wells. If additional
monitoring wells are needid, and after the Executive Secretary has determined the
proposed ironitoring well network is satisfactory, the Permit can be re-opened and these
new wells established as point-of-compliance wells under Pan IV.N.3 of the Permit.
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g. condition 1.H.11. Infiltration and contamination Transport Modeling work Plan and
Report.
This condition requires an inftltration and contaminant transport model' since the
proposed permit'does not have a cover design, it is assumed that a design will come from
the required modeling. For consistency with Envirocare, even though the coverwill need
to incorporate an FMLto prevent the iathtub ffict (See Condition I.D.6.b), the
Permittee should not be able to take credit for either the upper or lower FMI'| in the
modeling effort. In addition, it is unclear if the Modeting Work Plan is part of the Report
or a separate submittal which will require Executive Secretary approval'
To evaluate the assumptionfound in the model, will the Permittee be required to prepare
a Post-Model Audit Plan?
DRC Response: Substantive Comment. Because the tailings cell cover design has
already uee-approved by the NRC as a part of the Reclamation PIan under the License
(SOB, p. f Sj, tie purposl of the modeling report is to evaluate if any design changes are
needed,o.rrur. the iailings cells meet the long-term performance standards set in Part
I.D.6 of the Permit.
As for the need for a FML in the cover system to prevent a bathtub effect, such a
membrane would appear to be in order; but the Executive Secretary will await the
outcome of the modeling report before making any decision in this matter. with regards
to any credit given to th; long-term performarce of FMLs in the infiltration and transport
modeling r.p6r,, the Executive Secrltary will take this suggestion under advisement'
However, it is important to note that the-NRC policy referred to applies only to Low-
Level Radioactiv. wurt. facilities (see l0 cm part 6l). and not to uranium mill
operations. In fact, no performance assessment modeling is required by NRC for any
l le.(2) faciliiy (see to'crR +0, Appendix A). Instead, at fUC, and other uranium mill
operations in iJtah, this performun." ut,"t'ment is mandated as a means to establish BAT
or DMT under the State GWQP rules. Precedence has been set at other Utah uranium
mill operations that utilize FMLs as a means to meet the BAT design standards' one
example is plateau Resources' facility near Ticaboo, where a new tailings cell facility
was proposed with double FMLs andleak detection systems were as a means to meet the
BAT design standard during the operational phase.of the project (t?" l2l28l98DRC
Draft GWQD permit No. U-CWI70003 and ielated SoB tpp. 5-71 for Plateau Resources).
Consistency with the Envirocare I le.(2) facility has been provided in.the IUC Permit in
that a 200 year performance standard has been established (Part I.D.6), and an infiltration
and contaminant transport performance model required'
As stipulated in the Permit, the work plan and the modeling report are two separate
documents, with rwo separate 180-day deadlines mandated (Part I.H.1l)' For the first
deadline,li-ic is given iso auyr afterissuance of the Permit to prepare and submit a work
plan for the perfo?mance modeling for Executive Secretary apprgval Thereafter' when
the Executive Secretary approvesihis work plan, a second 180-day deadline is set for
IUC to complete ttre moOeilng effort, write a report, and submit it for Executive Secretary
approval.
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As for any post-model audit plan, no specific compliance schedule requirement is
currently mandated in the Permit. However, existing language at the-end of Part I.H.11
allows the Executive Secretary to require one if found necessary, as follows:
.....IJpon Executive Secretary approval of the final infiltration and contaminant
transport report, the Reclamation Plan may be modified to accommodate
necessary.irung.. to protect public health and the environment'"
The changes to the Reclamation Plan could include not only cover design and
construction specifications, put also plans to monitor the tailings cover system and/or
groundwater quality to confirm the modeling assumptions.
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Public Participation Summary
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Comments from Ms. Sarah Fields (see Attachment l)
l. Drafi Groundwater Discharge Permit (Permit), page 1:...
The facility is also (sic) includes IUC land in Sections 21, 22, 27, Township 37 South,
Range 22 East, that are up-gradient from the mill and tailings cells. It also includes
down-gradient land in Sections 4, 5,6, 8, 9, and 16, Township j8 South, Range 22 East,
Salt Lake Base (sic) and Meridian, San Juan County, Utah. An explicit "legal"
description of the mill property must be included in the permit.
DRC Response: Nonsubstantive Comment. The Permit's description list those sections
currently disturbed by construction and occupied by the mill site and tailings disposal
cells. While it is true that IUC owns or controls other nearby tracts of land, the Executive
Secretary will not authorize or imply any approval for disposal activities outside the
bounds of lands currently disturbed.
2. Part I, page 8: D. Discharge Minimization Technology Standard - ...
This section is vague regarding the actual design and construction information that the
Division of Radiation Control (DRC) is relying on. There is no mention of the December
31, 1998 Knight Piesold Report on the Seepage Fluxfrom Tailings Cell 3 Liner submitted
to the DRC by the Permittee. There is no mention of the numerous questions that the
DRC had about the actual design and construction of Cell 3, as expressed in the
(apparently) unanswered November 28, 2001, DRC Request for Additional Information
(RAr).
The DRC must not rely on cell design and construction information that it has already
found questionable. This section must include more detailed cell design and construction
date (sic). This section must also be amended based on the Permittee's reply to the
November 28, 2001, RAI which was part of the Permit process.
DRC Response: Substantive Comments. The Permit references all design and
construction information that has been made available to DRC. We acknowledge that
DRC has had major concerns about the infiltration modeling found in the December 31,
1998 Knight-Piesold Report. DRC omission of any discussion in the SOB regarding this
modeling report was intentional for the following reasons:
l) The report is a infiltration and seepage simulation of the open cell conditions for
Tailings Cell 3 only. It does not represent infiltration or seepage conditions for Cell I
or Cell 4A which have different engineering design and construction characteristics.
Further, the report does not simulate contaminant transport which is essential to an
assessment of tailings system performance. Simply said the Knight-Piesold report is
incomplete
2) Any open cell infiltration modeling would be based on a series of assumptions, many
of which would be difficult to verify given the age of the construction and the lack of
ability to sample and confirm certain construction details that are now covered by
tailings. As a result, the model predictions would be subjective to interpretation.
Direct and discrete groundwater monitoring of each disposal cell is a much more
effective means to determine if the tailings system has or will discharge contaminants
to groundwater.
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March 7,2005
3) Should groundwater monitoring find that the tailing cells have leaked, active means
can be taken to intercept and control this leakage thru various groundwater
remediation technologies that are available.
4) Design and construction of an improved cover system is the most practical means of.
preventing and controlling possible future tailings cell leakage. It is not practical, nor
ieasible to require IUC to move the existing tailings wastes into new tailings cells.
As a result, neither the Permit or the SOB relied in any way upon the Knight-Piesold
report referenced. Instead, the Permit outlined a new path of activities to provide an
objective evaluation of the future cover system design, and opportunities for
improvement to said design in order that local groundwater resources be protected.
3. Part I, page 1: D.2(d) Feedstock Storage Area - "'
There is no indication in the Permit as to how the Permittee will monitor tlw
groundwater undenteath and in the vicinity of the Feedstock Storage Area to Suarantee
that fhe materials stored there will not contaminate ground and surface water. The
feedstock is sometimes storedfor years out in the open where it is subiect to dispersion
and leaching by wind and water, and surface water'
This must be corrected.
DRC Response: Substantive Comments. The IUC facility, including the open air
feedstock storage arca atthe eastern margin of the mill site, pre-existed the GWQP rules,
and is cons.qu*tly an existing facility under UAC R3l7 -6-1.14. As a result, ruC is held
ro a DMT srandard instead of the more rigorous BAT standard [see UAC R317-6-6.a(c)].
In addition, the facility reclamation requirements (see Part I.D.7) would require
reclamation of the Feedstock Storage Area. DRC will evaluate the Reclamation PIan at
the time of the next License renewal scheduled on or around March, 2OO7: For other
relevant details, see the DRC response to Envirocare Comment No. 6, above.
4. Part I, page 20: G. Out of Compliance Status, 4.(e) ' "'
The DRC does nor define "feasible." Does feasibility include economic feasibility? Who
decides if a ground water corrective action plan is "unfeasible" ?
There is no mention of the standards that must be met by the Permittee when proposing
alrernative concentration limits (ACLs). Are the standards for establishing ACI-s
ourlined in 10 C.F.R. Part 40, Appendix A, applicable here? What citeia will the
Executive use in reviewing applications for the establishment of ACLs?
The term "feasible" must be defined. The standards for the establishment of ACLs must
be spelled out in the Permit.
There is no mention in the Permit of any necessity for the Permittee to increase the
reclamation surery to cover ground water remediation when the Permittee is out of
compliance. NRC and State regulations require a surety to cover the costs of
reclamation, including any ground water remediation. This requirement must be included
in the permit.
DRC Response: Substantive Comments. The Permit Part l.G.a.(e) corresponds to UAC
n:f Z-O-0.f 7(AX5), in which the term "infeasible" is used. DMT is implemented instead
of BAT because the IUC facility pre-existed the GWQP rules (UAC R3l7-6-1.14). In
addition, Part 1.G.4(e) of the Permit applies to DMT and not groundwater corrective
Page 9
Public Participati on S ummarY
March 7,2005
action. The Executive Sectary decides on feasibility issues, which could include
economic feasibilitY issues.
As for ACLs, these are approved only by the Utah Water Quality Board (Board) as per
UAC R317-6-6.15 (A) tliru (G). The NRC ACL process is not applicable. In the State
ACL process the Board considers factors, including but not limited to protection of
human health and the environment, pernanent effect, cost effectiveness, etc. For details
refer to R317-6-6.15(G). Under the State regulatory process, Permits are issued first with
their respecrive Ground Water Compliance Limits.(GWCL) established. Then if the
GWCLs are exceeded the Executive Secretary initiates a compliance action against the
permittee. In this process an ACL may be considered, but it is only the Board that can
approve it.
The reclamation surety to cover ground water remediation is not an issue of a Ground
Water Discharge permit, but instead is managed under the Radioactive Materials License.
At this point it is premature to conclude if non-caused pollution has occurred at this site.
This is one of theiasons for the Background Groundwater Monitoring Report required
in part I.H.3 & 4. If later we determine that groundwater pollution has occurred,
Executive Sectary well take appropriate action to protect the groundwater resources.
This would incluie development of a groundwater corrective action plan for the facility
, under the auspices of UAC R317-6-F-6'15'
5.PartI,page20:H.ComplianceScheduleRequirements...
Nowhere in the exrensivi list of Compliance ichedule Requirements is there any
requirement for the Permittee to respond to the 8-page November 28,2001, DRC Request
yoi,laanionLl nyor*ation, regarding December 31, 1998, Knight Piesold Report.on-SeepageFluxfromTailingsCelljLiner,WhiteMesaMill.
Has the permiuee responded n rhis MI? If not, has the DRC notifted the'Permittee that
they don't have to resPond?
It was definitely my uiderstanding, based on correspondence with the DRC, that a
scheduli for tie permittee's long-flglayed response to the 2001 request would be part of
the Permit requirements, Is this no longer the case? If so, why?
There must be afull explanation of this situation'
ond *ok oIn addition, the bRC must review all previous requests for information
determination that they have all beenfully responded to or a schedule for response has
been established in the context of the Permit'
DRC Response: Substantive Comments. See DRC response given for, Comments from
Ms. Sarah Fields, Comment 2, pages 8 and 9 of this Public Participation Summary.
6. There is no discussion in the Permit of other types of contamination to ground and
surface water by activities on rhe land owned by the Permittee at the facility. The
permittee currintly allows cafile to graze on some of the mill property. These cattle can
and do access Ruin Spring. Ruin Spring is on IJ.S. Department of Inteior, Bureau of
Land Management, iropiny rhat abuts the mill property. The Ruin Syring area is
trampled orid ,onro*in-ated by wastes from the cattle. The spill-over from a tank below
the ipring (which has not bee:n cleaned in years) feeds a desert riparian area. The spring
is used bY wildlift.
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Public Participation Summary
March 7,2005
Does the Permittee have any responsibiliry for the ruin of Ruin Spring by the cattle that
Braze on its mill facility property?
DRC Response: Nonsubstantive Comments. ruC owns neither the cattle or Ruin Spring.
Hence they have no responsibility for damage the cattle may pose to the spring of its
riparian habitat. Possible contamination to Ruin Springs from cattle wastes is not a
Permit issue. Concerns in this regard need to be directed to the cattle owners and/or the
Bureau of Land Management.
7. Part I, page 12: D.5. Deftnition of 11e.(2) Waste - ...
There is absolutely no statutory or regulatory basis for the State of Utah to authoize the
processing of "alternate feed material" at the IUC mill. There is no statutory or
regulatory basis for the State of Utah to include the "process related wastes and waste
streams" from the processing of materials other than natural ore ("alternatefeed
. material" ) in the statutory and regulatory definition of l1e.(2) byproduct material.
The Ground Water Discharge Permit must not authorize the processing of "alternate
feed material." The Ground Water Discharge Permit must not authorize the disposal of
waste streams from the processing of "alternate feed material" as 11e.(2) byproduct
material. Such authorization is not permitted by any statute or regulation.
Any request by the Permittee for such authorization must be denied.
The following (including Attachment A) are comments that support these statements.
#e*Iarcha;2003,NRCletterfromPaulH.LohaustoWilliamJ.Sinclairisnot
n NRC legal opini?:o"d.has no legal effict. See.l0 C.F.R.Pan 40, 9ec.40.6,
Int e rpret at i on s, which state s :
Except as specifically authorized by the Commission in writing, no interpretation
of the meaning of the regulations in this part by any fficer or employ'ee of .the
Commission other than a writlen interpretation by the General Counsel will be
recognized to be binding upon the Commission.
B. There is no legal basis under and Atomic Energy Act of 1954 (AEA), as amended,
to consider so called "alternate feed material" and various debris accompanying
such material (at times constituting 40Vo of the "alternate feed mateial") as
"ore," as the term "ore" is used in the definition of I1e.(2) byproduct material.
The Permit must not include any statement that would imply processing offeed
material other than natural ore ("alternate feed material" ) is the same as the
processing of "any ore," anxd that the debris, tailings, or wastes from such
processing constitute I Ie.(2) byproduct material.
The State of Utah cannot and must not include any reference to the letter from the
March 7, 2003, NRC in the Permit.
See Attachment A hereto for afull discussion and comments on this matter.
C. The Permit does not deftne so-called "alternate feed material." There is no
indication in the Pennit that "alternate feed material" is made up of processing
wastes from other mineral processing operations that are commingled with
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Public ParticiPation SummarY
March 7,2005
contaminated debris and soils. Why is there no definition of "alternate feed
material" in the Permit'
D.TheStateof(Jtahmustonlyrelyonthecommon,histoicalmeaningoftheword
"ore"'
What does.,,ore" mean? The word, or terrn, "ore," as defined in several sources:
'';:;;;:;i#::l'l;;;;:;::,:::,':#'-;;,f ,!,:#;l:fr #";i:,:,;::f ''
DK Pub. 1998'l
o "ore-A native mineral containing a precious or useful metal in such
qiontity ard in such chemical combination as to make its extraction
propoLtr. Also applied to minerals mined for their content of non'
'*rials." [The Cimpact Oxford English Dictionary, Second Edition,
Oxford University Prrtt, 2000, p' 1224:915-916'l
. "6r"-a. A natural mineral compound of the elements of which one at
least is a metal. Applied more liosety to all metaliftrous rock, though
it contains the meial in afree sfak, and occasionally to the compounds
of nonmetallic substan"rr, o, sulfur ore' ' ' ' Fay b' Amineral of
ir,Srirnt value as to quality and quantiry that may be -minedfor profit'
F;y." [A Dictionary-of Mining, Mineral' and RelatedTerms'
compit)a and editei by f aul W. fhrush and Staff of the Bureau of
Miies, U.S. Dept. of Interior, 1968'l
The oxford English Dictioiary points out that the current usaSe of the word
" ore" goes Uai* several lrunirid y"ars- A Dictionary of Mining' Mineral' and
Relared Terms lists over 65 compound words using the word "ore," such as ore
bin, ore body, ore deposit, ore district' ore geology' ore Tr-a-!'er' ore mineral' ore
reserve, ore'zone. lil o7 these tenns incorporate the word "ore" as it relates to
the mining of a native iineral. The t,erm "ore," without explanation, has for
*oiy y"o"rr'bern urrd in millions of instances in thousands of mining, milling,
g"o,iogirol, mineralogical, radiochemical, engineering, environmental, and
regulatory publications. 1'Ore" like the w-ord "water," is aword of common and
extensive u-sage with a clear and accepted meaning'
The State of lJtah must explain what the statutory and regulatory basis is for
cal;lintg raites from othei mineral processing operations "ore"' A policy' whether
federil or stati, is not a statutory or legal basis'
E. In rhe past, debris associated with the processing of "alternate feed mateial" has
been received at the IUC mill. Thousands of tons of such debis have been
disponed of at the mill. illC was paid to receive and dispose of this material.
Some of tie material was apparently washed (i.e., decontaminated), and the wash
water ias subs"quently priiessedfor its minimal source material content'
The debris that sometimes accompanies natural ore when it is processed at a
licensed uranium or thorium mill has no economic value to the licensee of a
uranium or thorium mill. A mill owner would not pay for or be paid to receiue
such debris and, in fact, would pay less for ore contaminated with a lot of debis'
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Public ParticiPation SummarY
March 7,2005
However, the licensee will be paid to receive and dispose of !eU.1is accompanying
,,ottr*rir yred material." What is really occurring is that the-licensee is getting
paid to directly dispose of conraminated (or decontaminated) low level
radioactive waste'
There are no similarities between the debris associated with'ore minedfrom the
ground and debris accompanying wastes and contaminated materials from other
mine ral Proc e s sin g aP erations'
This debris must have been separatedfrom any material that w-as going to be
processed at the mill prior toihipping to the mitl. This could have been eqsily
accomplished, but wis not b"caiie it was in the interest of originator of the waste
to getiii of ii, and it was in the interest in the mill operator to get paid for
accePting it.
The State of Utah is in no way obligated to agree with the NRC on this question'
F. The March 7 NRC letter states that "the alternate feed material is regulated in
mass as ore." There is conflict, confusion, and inconsistency in this statement'
Wo, exactly, regulates alternate feed material as "ore"' and what is the basis of
such regulation?
The AEA does not mention "alternate feed material" and it's regulation' I can
find no NRC or EpA regulations related to the regulatioqt of "alternate feed
marerial.,, There are no NRC generic or site specific environmental impacts
.statements related to the regulition of "altentate feed material" or feed
materials other than natural ore'
How can the NRC regulate alternare feed material "in mass as ore" when the
NRC has no statutory or regulatory jirisdiction over "alternate feed material" or
uranium and thorium "ore" ?
NRC regulation at I0 C.F.R. S 40.13 esrablishes unimportant quantities of source
mareiai that are outside of regulatory concern under the AEA. NRC regulation
at Section 40.4 sraks rhat "siurce Material means: (1) IJranium or thoium, or
any combination thereof, in any physical or chemical form or (2) ores which
contain by weight one-ientieih-o| on, percent (0.057o) or more of: (i) Uranium,
(ii) thorium or (iii) any combination thereof"'
section 40.13(b) says that any "ore" containing source material, whether or not
it meets the deftnition of souice material (i.e., contains uranium and./or thoium of
0.05Vo by weight) is exempt from regulation under Part 40. Section 40.13(b)
states:
(b) Any person is exempt from the regulations in t\\ ryrt andfrom
the requirements for a license set forth in section 62 of the act to
the exient that su;h person receives, possesses, uses, or transfers
unrefined and unpricessed ore containing source mateial;
proiidrd, that, eicept as authorized in a specific license, such
-person shall not refine or process such ore
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Public Participation S ummarY
March 7,2005
The NRC has exempted "ore," either source material ore (over .05Vo uranium or
thorium by weight) or non-source mateial ore (less than .05 Vo uranium and./or
thorium by weight). The NRC regulates facilities that process and refine "ore,"
under its regulation of 11e.(2) byproduct material, but it does not regulate "ore"
as such.
There is nothing in the AEA that authorizes the transfer to the State of Utah of
regulatory responsibility over uranium or thorium "ore"'
DRC Response: Nonsubstantive Comments. Issues regarding "alternate feed material"
ut tt. IUC facility are regulated by the Radioactive Materials License and not the Ground
Water Di scharge Permit.
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Public Participation Summary
March 7,2005
Comments from Mr.Ivan Weber (see Attachment l)
1. May I please echo the critique submitted by Ms. Sarah Fields, and incorporate it by
,r\rrriu into my own reJlections' In particular:
I share her apprehension, expressed in her questioning of the meaning of "infeasible"
DMT as ratiiiate for IUC sibmittal of l'alteruative DMT" to the Executive Secretary of
DRC (page 20 of irafi Permit, 4. "Faciliry Out of Compliance Status-"'," e' "Where it is
rnfeasiuli to reistabiish DMT..."). This appears to be aloophole of magnitude
pioportional to the holes we suspect to exist in _the cells liner systems. Please tighten this
-alliwance by defining teftns rigorously, if not by eliminating 4'e altogether'
DRC Response: Substantive Comments. See DRC response to Ms. Sarah Field's
Comment No.4, above.
2 Also on page 20, under H. "Compliance Schedule Requirements," I ioin Ms. Fields in
increduiiry that IUC has not beei allowed not to respond to the November 28, 2001 DRC
Request fir Additional Information. At the time, the MI was reasonable, legitimate and
completily necessary. It remains reasonable,legitimate and completely necessary in
order ro proceed wiih State of Utah regulatory authority. Whether neglect, inadvertent
oversigh-t or srraftgic contempt for authority, this IUC failure is an outrage, warranting
draconian ,rrponi at rhe oulta of State assertion of control over waters of the US
delegared to itate administration. Either IUC must respond seriously to the 2001 RAI
accirding ro stipulated schedule, or IIJC should suspend operations. This point alone is'
groundsior a firmal request for a hearing, which I hereby submit. I
DRC Response: Substantive Comments. See DRC response to Ms. Sarah Field's
Comment No. 2, above.
3. As a point of inquiry, we wonder what and when will be the implications of recent State
mplZmentiion'of |WeP," the Source Water Assessment and Protection" Plan, pursuant
to Safe Drinking"Warer Act Amendments of 1996, and subsequent adaptation into Utah
Code. As a meinber of the SWAP Advisory Committee in 1998-99, I became aware of the
comprehensive naturi of SWAP's simultaneous protection of wellheads, surface water
and- emerging ground water. It seems obvious to this observer that there are inevitable
effects of paitiuc ground water contamination, most of which could easily escape (and
piobabiy'has donelthe rather pathetic monitoring of the faciliry heretofore. For the sakc
'of neighboring communities and isolated native populations, as well as for area wildlife,
all that can be done to answer the question. "wat can 80 wrong?" and to see to it that
these faults are investigared, charicterized and remediated scientifically, should be done
without delaY.
DRC Response: Substantive comments. The Permit addresses ground water compliance
limits, gro*d *uter compliance, monitoring, and reporting requirements that DRC will
use to protect local ground water resources. Many significant improvements to the
grourd- water proteciion have been made thru the Permit that the Executive Secretary
considers sufdcient. These include but not limited to requiring: The installation of
additional monitoring wells at the tailing cells, new hydrogeologic evaluations,
development and application of a ground water monitoring quality assurance plan,
Page 15
Public ParticiPation SummarY
March 7,2OO5
submittal of a ground water performance assessment model, application of a ground
water performince standard, addition of many new ground water quality monitoring
parameters, improvement in format and content of ground water monitoring reports'
periodic monitoring of ground water seeps and springs of the edge of the mesa' and
reporting thereof, etc.
Page 16
Public Participation SummarY
March 7,2005
References
Envirocare of Utah, Inc., Janua ry 7 ,ZxIl,"Comments on International Uranium Corporation
proposed Groundwaier Quality Discharge Permit (Permit No. UGW370004)", unpublished
company comments, 2 PP.
Utah Division of Radiation Control, December 28,lggl,"Ground Water Quality Discharge
Permit No. UGW170003 Statement of Basis", 8 pp'
Page 17
Attachment 1
Public Comments Received from Three Parties:
January T,2xlsEnvirocare of Utah, Inc. comments (Received January 7,2OO5)
January 7 ,2005 Glen Canyon Group / Sierra Club Comments (Received January I l' 2005)
January 7,z}Oslvan Weber Comments (Received via email on January 7,2OO5)
ENVIRO CARE oF ttrAH, INc'
THE SAFE ALTERNATIVE
January 7,2005
Dane Finerfrock
Co-Executive Secretary
Utah Water QualitY' Board
168 North l9-i0 Wesl'
P.O. Box 144850
Salt l-ake CitY, UT 8'tl l4-48'50
Subject:
cD05-0015
comments orr Inremational Uranium corporario, proposed Groudwater
Ouutiry Discharge Pcrmit (Pennit No' I"1GW370004)
Dear Mr. F'incrfiock:
Ent,irocare of Utah, lnc. (Erl'irocare) prtrvicles the l:ollorving conrments on the I:lternational
Uranium C:orporation pr,lp*t.A Croun,l.*urb, Quality Discharge Permit (GWQDP) (Pcnrrit
No. UGW370004).
Condition I.A Clroundn'atcr Classilicotion
'fhe per::rit li:its t*,o data sets tbrthe purpose of classiff ing gr,ru:ldwater at the ttlC lhciiitli'
\\'trat is tlre purp'ose of providing both data sets?
I:lJ; ln,n" irif-onirarion pro.,irred in Table 2, the r-.'nty radiolrtgic paranreter rhe Peo,tittcc is
required to analyze ;;;;;. Alpha. Envirocare is rccluired to. analyze for Radium-225'
Radium-22g, fuori*n-z:io, onO Thorium.232 at its I I e.t2) disi:osal cell. U.4'C-R3-13-6-2'l
idenrifies o
"on.,t
ir',..iGrr.rundwater Qualiiy Sta.d.arcl for Raclirrm ?26 + 2?8 at 5 pCii,-' Will
it,.t. porr*eters also tre evaluated at the IUC facility?
Condition t.D.l - DI\IT Design Stanrtards fT r lixisting Taitings.Cells , rr . -.:L, -
Has an c.valuarion ;;; ;;;f";r:re,l ro denronstrale liner i:ontpatibilil,r- of the-Flexible
Membrane r.iner trir.riigtl thc l1e.(2) matetiitls i:cing <iislrcscd in the cells?
Conclitirln I.D.3.b.i . D isr:har ge }l inirnizirtion T,cehnology Standard
'l'tre nveragc o,or,"rrui", i;;J i, tlte slittles clrain access pipe is to be 'hs low as reasotlably
achievable,, i, "o"l *lji,rg;Ciqrorol cell. ['lorv will stati i,spectors make a detemrination on
this criteria?
Condition I.D'3.c. Roberts Pond
Arr as-built i. r"qulr.iirs Condirion LH.l E c['tlris CWQDP. llow is this pond construtted?
For consistetl.>' *iitt ir",a's 'se'd
al Envirocatt'Jl.'tl: was:B\\'ater pond should have a minimunr
of tlo FMI-s ancl a leuk cicieclicrn system. Irr atldition- iryitat systcm is irr place to r"onfinn
."r,pirrr.. *iir., ,rr. rwo frrot tr-eeboar-d required in this conclirion?
Condition l.D.3.cl. Fcedstock Storage Area
The i,trodu*ory prr,,gfiiloltnir civQpp state rhat tlre ;re,nit is tbr a uranium nrilling
and tailings ilisposal facility, not a storag" tl|.ili,y. How is tlte feedstock area constructed?
<^E N,,.TH 5600 wEsT . SALT IAKE )ITY, UTAH 84116 . TELEPHONE (8O7) 532-7330
Page2 of2
January 7,2005
YVIROCARE
How long can stored materials renrain in this area? Is there a stormwater management plan
for water that accumulates in this area? Is there a DMT criteria for this area? Except in the
;i; ;;li;;; .ir r,orug" is prohibited at Envirocare'
ConditionI.E.2.GroundwaterHeadI\|onitoring
Total Dissolved Soliis Oril range from t,216 mglt.to 5,200 mg/L' will the groundwater
elevatio,s be adjusteJto a freshwiter equivalent head to account for an almost 5 fold
variarion in salinity? In addition, Envirocare is required to co-nduct 1to1th!-qrgund.water
elevarions due to a groundwater mound, much likethe nround beneath the IUC facility' For '
corrsistency, g.ound*ui"'r:"r.rutiont, freshwater correction, contour maps' etc'' should be
perfonrted on a ntonthlY basis'
Conrlition I.H.l. Installation of Neu. Groundrr,ater Monitoring Wells .;
IIow were the locations ;iG; ,rew n:onitoring wells determined? Monitoring wells at
Envirocare were located using a computer model to den:pnslrate that should a release occur'
the groundwu,", nlonii-ing ri"t*ott'would detect that release' Will a well spacing
evatation be required by the Permittee?
condition I.H.l l. Infiltration and contamination Transport ;\lodeling work Plan and
RePort
'l'his contlition requires an infiltration and contaminaut transport model' Since the proposed
pernrit does nol tur" . "or.r design, it is assunled that a- design will come fiorn the required
;J;];fu. For crnsistency with drv,irocare, even though]!...:u"t rvill need to ittcorporate
;;N{Li" prevent the baihtub effect (See Condition 1.D.6'b'), the Permittee sltould not be
able ro takc credit f "t "itt "i tt e upper or lower FIVII's in the modeling effort' In addition' it is
,..r.rr ii,ire Modeling Work Pla, is-parl of the Report or a separate submittal which will
require Executive Secretary Approval'
To evaluate the assunlptions found in the model, rvill the Pemrittee be required to prepare a
Post-Model Audit Plan?
please contacr me at [phone] with any questions regarding this issue'
I ccnify undcr pcnalty of law that this documcnt and all attachmcnts werc preparut under my dircction or supcrvision in
accordance with u *yrt",n a"rigi;ii; ;rr"' ,il quaf ifiuf n ",.rnn.f p.p..tly: Clt:and evaluate the information submittal'
Based on my inquiry ol'thc pelon or pcrsons whri rna*g"'tht''y"t'n' ui t1'ytl p-crsons dirtcdy rcspnnsible for gathering the
int.ormarion.rhcinfonnarion."#i*ir-lr.Lrn..tesrormytnoi*ledgeandbclief..truc'accutate.andcornplete.
lamawartthat
iherc arc significant penulrics'io, ,r.|,n-,riii rg l-inir. inrur."iion, incluing the pssibility ol'line and imprisonment for knowing
violatiots.
oo
Glen Canyon GrouPlSierra CIub
P.O. Box 622
oo
Moab, Utah 84532
Mr. Dane Finerfrock, Director
Division of Radiation Control
;il;;p.*rent of Environmental QualitY
P.O. Box 144850-iuf, Urr't CitY, Utah 841144850'
rit No' UGW3700(N'
Subject Commens on Draft Ground Water Discharge Pern
International uranium (usA) corporutioiirucl urinium Mill, white Mesa, utah'
Berowpreasenndthe,co*T:'t'gq:g**Ty::f gl":t*:ili["-?*i"'
#"'sa\
Ii. zdf,; -A 4
fl'Jtr's 39i'r,1i;';||sCr -ri.r'.+il\S\t "- JV,!" *uE**tu* -d'9*zrr"zd
No. UGW3700O4.
l.DraftGround\ilaterPI.}fl$:Permit(Permit),page1:Tle|acilityislocatedon
a tract of lard in Sections 28, 2b, iZ, oi-Si,7owut'ip'17 South' Range 22 fus4 Salr
tii n^" ora u"'iiin, i"i Juan county' (Jtoh'
commenfiThefacilityisalsoincludeslUClandinSections2l'22'atd27'Township
3? south, Range Zi,Brst,that are ,p-gtroi"" f'om tne mill and tailings cells' It also '
includes down-gradi""ii"ra in S""iions 4i,e,8,9' and-16' Township 38 South' Range
Z2East,Salt lake li.t" *a Meridian, ilffi County' Utah' An explicit"legal"
description of the Jiip"p""y must be included in the Permit
2.PartI,page8:,D.DISCHARGEMINIMITAT\1NTECHN1LoGYSTN,IDARD.t\v
nilings disposalfacility must-u*urt 1i tnrirrra according to ttulollowing Disclwrge
- ii"i^i*,t n reit"'otigy @Mn standards :-tDMrDe?ii!'m*in,;::r::#:;:l!;':;1'###":::#f"
Comment:Thissectionisvagueregardingtheactual*:F,andconstruction
information,r,u, rr,r-piririorirRaJja;;"JCort ol (DR6) is retying on' There is no
mention of the D";;-;; rl, 1998, Knight Piesold l"po.l on the Seepage Flux from
Tailings Cell 3 l-irri rrUrtitted to,f,t dnCUy tt'" fttn'ittee' There is no mentiol of the
numerous qurrtionr-it utihe nnc nua .Uout tlie actual design and construction of Cell 3'
Division of Radiation a?*',
January 7,2W5
as expressed in the (appa1e1!r) unanswered Novemb er ?3,2001, DRC Request for
A ddiiional Information (RAI)'
The DRC ruti*, ttiy on cell design and construction information that it has
already found questionabl". tt i, section niust include more detailed cell design and
construction date. if,i. r".tion must also be amended based on the Permittee's reply to
,ilN;;rnber 2g,2001, RAI, which was part of the Permit process.
3. part I, page 11: D. 2(d) Feedstock srorage Area<p-en-air or bulk storage of all
feedstock materials at the faciliry owliting iill p'o""ting shall be limited to tlu
'i"rrii"
"tthc mill site aria described inTable 4' below'
comment: There is no indication in the Permit as to how the Permittee will monitor the
groundwat"r rna.*lr,r, "rO
in th-e vicinity of-the Feedstock Storage Area to guaratrtee
that the materials siored there will not contaminate ground and surface water. The
feedstock is sometimes stored for years out in the open where it is subject to dispersion
*Ji"""rri"g by wind and water, and surface \uater'
This must be corrected'
4.PartI,PaSe2ozG.oUToFCTMP1AI,iCESTATUS,4.(e),Wureitisinfeasiblen
reestablish DMT as iefined in the permit, tlu Perminee may propose an alternative DMT
for approval by the F.xecutive Secretary'
Comment:TheDRCdoesnotdefine.Teasible.,,Doesfeasibilityincludeeconomic
feasibility? Wf,o a"tiaes if a ground lvater corrective action plan is "unfeasible"?
There is no menti", "iit. staidards that must be met by the Permittee when proposing
alternative concentration limits (AqLs). Are the standards for establishing ACI-s
outlined in l0 C.F.R. Part 4O, Appendii e, applicable- !ere? What criteria will'the
Executive use in reviewing applications fot tiri establishment of ACI-s?
Theterm'Teasible"mustbedefined.Thestandardsfortheestablishmentof'
ACIs *;;i b. spelted out in the Perrrit
There is no mention in the Permit of any necessity for the Permittee to increase
the reclamation ,ur.tyio "ortt ground water remediation when the Permittee is orrt of
compliance. NRC;d io," rrfrrl.tiont require a surety to cover the costs of
reclamation, including any groina water remediation' 'inis requirement must be included
in the Permit
5.PartI,Pa8e20:H.C1MPmANCESCHEDULEREQ!]IREMENilS.TIVPermittee
*tu ""*ify iirn rt* schedules as described ard summarized below:
Comment Nowhere in the extensive list of Compliance Schedule Requirements is therc
any requirement for the Permittee to respond to thi 8-page November 28' 2001' DRC
Request for Additional Informatig,l re*arding Decembel 31, 1998, Knight Plesold
ReportonSeepageFluxfromTailings-Cell3Uner,WhiteMesaMll.
o
'*
oo
Division of Radiation
JanuarY 7,20[ls
HasthePermitteerespondedtothisRAl?Ifnot,hastheDRCnotifiedthe
Permittee that they don't have to respond?
Itwasdefinitelymy.understanding,basedonconesPondencewimt{lDRc,thata
schedule for the p"*iit"r;r long-delay"a"r.tponte to-$e 2b01 request woutd be part of
the Permit ,"qrir.*"nts' Is this no longerthe case? I to'why?
There.mustbeafullexplanationofthissituation.
In addition,,u. pnc must review all previous requests for information and make
a determination that they have Af Ueelfuffl rlsponded to or a schedule for response has
Jen .staUtished in the context of the Permit
6. There is no discussion in the Permit of other ulelor contamination to gr'ound and
surface water Uy ^.tiriti"s on the land owned by the Fermittee at the facility' The
permittee currently allows cattle to gtazeon some of the mill property' These cattle can
anddoaccessRuinSpring.Ruinsp,i,eison.U.S.Depar.trnentoflnterior,Bureauof
L-and Managemen! property that abuts Le mill property. The-Ruin s*ing area is
trampled unA "oro#ri,"aiy wastes from the "tttit' ihe spill-overfrom a tank below
the spring (which #;;tb; rr"*.a in Vears) feeds a desirt riparian area' The spring
is used by wildlife -,:- ^r Errrin Snrino
Does the Permittee have any responsibility for the ruin of Ruin Spring by the
cattle that graze on its mill facility ProPerty?
?.PartI,pagel2lD.5.DefinitionoftIe.(2)Waste-{orpurposesofthis.Permit,I Ie.(2) waste i, dr;;;' ;:"*.r. toitti.l or wastes produced bv the extraction or
concentration oTuioii^ o, tt*riu*fuo^ ooy ore proce-s:ed primarilyfor its source
material content", as defined in Sectioi I le.(4 o|inc U'S' Aiomic Encrgy Act of 1954' as
amended; which inctudis otlur process relat;ed wastes ond waste streams dcscribed by a
March 7, 2//]3 Ni;-i;;;' ilom'Paul i' tnt-* to Witliott J' Sinclair'
The March 7,IOO3,NRC letter from Paul H' ['ohaus, Director', office of state
and Tribal hograms, Nuclear Regulatory commission (NRC) to witliam J' sinclair'
Director, Divisionbf Radiation Controt,lin response to questions in the January 14
iml,letter from William Sinclair) states in part
Question 4: As alternatefeed y:*::l :o:n at the White Mesa
I*iij,: i' can be soil_co-mingled with debris such as concrete,
pt;;ir:aiUi"tu.,-'trcsemieriatsrnaybenon-uroniumbearing
"i'ir, l;,alongfor the ride,, as a result of any pqrticular
r"*"aiorin piilr"t,Thbse materials may be separated at tLe timc
of tiiiirrtlonirro rhe uronium recovery Process and evenUalty
a*p,t"i't' in th" toilings impoundmey\ Would these materials be
ctassified as I le'(2) byproduct tnotertu!
Response:Yes.Thbalternatefeedmate.rialisregulatedinmassas
oniinoefore, tlw material it amenable to processing, i.e., debris
oo 4
Division of n aton Control
JanuarY 7,2ffi
'-^ "1 '"i+L i+ t:-n:t m: |lu titttc of uranium
associatedwithittlwtmustbeseporatedatl
,"ro""li, ir'i*it' |'oi o" p'i"essing tlwt meets the definition
of t t e'(Z 1 bYProd'uct material'
Commen* or regulatory basis for the State of Utah to
There is absolutelY no sututorY
authorize tn" pro""ffi';*@t:i""i tltUali at the IUC mill' There is no
statutory or regulatory basis for the So1, oiUoh to include the "process related wastes
and waste streams" fiom the pro"."ti'j oi materids othertSan natural ore ('alternate
feed material,,) in tt e st"tutory uoa ,rgitli"ry Jrrrrm of 11e'(2) byproduct material'
The Ground watcr Discharg;p.r*it must not authorizc the processing of
,.alternate feea material." The Groula fln t"t pischarge Permit must not authorize
the disposal otr*[rf,."o,, fr* tt pro""ttiog ot"Jt"rnatc feed material" as
l1e.(2|byproao.t-ut rial. Such autnirization i-s not permitted by any statute or
r.t "Til request by the permittce for such authorization must be denied.
Thefollowing(includingAttachmentA)arecommentsthatsupportthese
statements-
A.TheMarchT,{(xJ3,NRCletterfromPaulH.I..ohaustoWilliamJ.Sinclairis
not an NRc tegal "piri", ,|f il;; ragJ "r""r seel0 c'F R'Part 4O' Sec' 40'6'
InterPretati ons, w hich states:
Except as specifically authorized by the Commission in writing' no
interpretatiJn or,n. meaning or'#r"gulurionr in this part by any
officer or employee of the Commissioi other than a written
interpretationuyth!GeneralCounselwillberecognizedtobebinding
uPon O.e Commission'
B.ThereisnolegalbasisunderandAtomicEnergyActoflg54(AEA)'as
amended, to "onria",
so ralled "alternate feed material'and various debris
accompanying ,u"n *ui"riat (at times;;ffi#il n!:?f the "alternate feed material')
as ..ore,,, as the ,"il-. or",, is used ir ,rr"-J"fr"itiJn of lle-(2) byproduct material'
The Permit must not include uny 'ott*ent that would imply processing of feed
material other than nutorA orr l"ultt-"'tJr""J-t"tial') is the same as the processing of
..anv ore,,, and tUai,U, JrUrir, tuifogs, ot "u""' from such processing constituJe 11e'(2)
orrrouHsflti r* cannot and must not inctude any reference to the lenerfrom the
March 7,2N3,NRC in the Permit
see Attac;e;fi;; f"r a full discussion and comments on this matter'
C.ThePermitdoesnotdefineso-called..alternatefeedmaterial.,'Thereisno
indication in the permit that .,arternut" i""a material" is made up of processing wastes
o
t*,,5
Division of Radiation
JanuarY 1,20o5
from other mineral processing operations that are commingled with contaminated debris
and soils. Why is .#;"';;;?ni ioo of "alternate feed material" in the Permil
D. The State of utah must only rely on the common' historical meaning of the
word ttofe.t' . 3.^-- , ^- r^4i-arl in carrprql
wuut does..ore,, mean? The word, or term,..ore,,'as defined in several souroes:
...ore-anaturallyoccuningsolidmaterialfromwhichmetalor
other valuabe minerals may bi extracted." fillustrated oxford
Dictionarlr DK Pub' 198'I
.l.ore-Anativemineralcontainingapreciousorusefulmetalin
suchiuantiry and in su; chemicd lombination as to make ir
exrraction profitable. A;;;p["d to mleyls ryo* I":F:to
c"rt* "i
"on-metals"'
ffhg'Compact O{ora gndi
SecondEdition,Oxfordl;rt*r-,;ry-Pt*s,2000,p.L2V1:915-916'I...oi"];. e rutrrar.*ineral compound of $e elements of which
oneatleastisametal.Appliedrrrorelooselytoallmetaliferous..g tr,Lrgh it containr tii *rta in a free state, and occasionally
t" il;;fi;unds of nonmetallic substances, as sulfur or€. . . . Fay
b.;;#ior srmcient vatue as to quality and.euallfy th$ may
Uro,ir"Jfor profit. fri.; iR pictiona.rof Mining. Mineral-and
RelatedTerms,compileduila"ait.abyPaulW.ThrushandStaff
oftheBureauofMines,U.S.DeptofInterior,1968.]
points out that the currcnt usage.of *". -Itiljl""
goes back several hundred Years'-
lists over 65 compounJt'oia' using tt'e *"ota 'ore"' such Tj*lI]:"::H: T
ThestateofUtahmustexplainwhatthestafutoryandregulatorybasis.isfor
calling wastes fro, otfr", mineral proc"ttiog op"rations-"ore"'A policy' whether federal
or ruir, is not a statutory or legal basis'
or rlehris associated I oJ "alternate feed material"B. In the past, debris associated with the Processlng
has been received ,iri,, IUC mill. Thou'u'at ofions of such debris have been disposed
of at rhe mill. ruc was paid to receive.inJ Jitp*9 of this material' Some of the material
was apparently *uriJtir. a."on"*t;;ilt,lra ,r,r wash water was subsequently
pr*tlJ.a forits minimal souroe material contenl
lists over of, conrPuuutr wvruD -., _^;^- ^-^ *i---.t ^, All of;;;;;t,;;;; district, ore geology' oie grader' ore mineral' ore reserve' ore zonc'
these terms ir"orpoiii" in. "JJ..orei as it relates to the mining of a native minerar. The
term ..ore,,' without explanation, t u, foi.uny years.been used in millions of instances in
thousands of miningl ,ili1irg, geoJo.gical, mineiatogi-cal, radiochemical, engineering'
environmental, and iegulatory puUfications' "O'"'ilike the word "water"'iS a word of
common and extensirE "r"gr riith a clear and accepted meaning.
op,*f 6
Division of Radiation
JanuarY 7,2W
Thedebristhatsometimesaccompaniesnaturalorewhenitisprocessedata
licensed uranium or thorium mill has no economic value to the licensee of a uranium or
thorium mill. A milt owner would *, pui ior o, ur p:id.,9 receive such debris and, in
fact, would pay less for ore contamir.t"O'*itt' a lot of debris' However' the licensee will
be paid to receive #il;9:. oia"urit ;";;;fuying "alternate feed material'" What is
really occurring i, tnut tilJ [".nr6 it g"tti;;'uia io iirectly dispose of contaminated (or
Ar."r"*iratJ) low level radioactive waste
There are no similarities berrneen the debris associated with ore mined from thc
ground and debris. u*rnp*ying rr"rt", "ra Lort^*inated materials from other mineral
processing oPerauons'
to be
This debris must have been separated from any material that was going
processed at the "riifil.;1" shipping to the mill. This could have been easily
accomplished, but #r ; Uecause iiwas in the interest of originator of the waste to get
rid of it, and it ,rr. i, tue interest in the mill operator to get paid for accepting it
rhe State JUil;;;;;;;"t;li;,"a,o agree-with *" *":lthis questioa'
F. The March 7 NRC letter states that"the alternate feed material is regulated in
mass as ore." TherJ;;;rflidconfusion, and inconsistency in this statcmetrt
Who, exactly, regulates At"*ut" i*material as "oie," and what is the basis of
sucn resfiffi
does not mention..arternate feed materi"l].1"J it's.re'ulation' I can
find no NRC or EPA regulations relatJ;i;" regulation of "alternate feed material"'
There are no NRC;;ffi. or site .p".in" "nviroime.n3f
impacts statements related to the
regulation or "ateril;""iil;;rii; ot r""d materials other than natural or.'
How can the NRC regulate "h";;i; f;.J *ut"riut "in mass as ore" when the NRC
has no statutory or regulatory jurisdictioio"' "Aternate feed material" or uranium and
thorium "ore"?
NRC regulation at l0 c.F.R. $ 40.13 establishes unimportant quantities of sourcc
material that are oroia. of regulato.y *""- under the AEA' NRC regulation at
section ao.+ states ,t ut ..sourle Materialmeans: (1) Uranium or thorium' or any
combination thereof, in any physical or chemical form or (2) ores which contain by
weight onr-t nrntiJtn;ffr, ,.* eil 6.;;%io*or" of: (i) uranium, (ii) thorium or (iii)
anY-combinatioiffiiffiys that any ..ore?, containing source material, whether or not it
meets the definiti", J;l"ria" materi-al (i'e', contains oooio* and/or thorium of 0'05% '
;ffi fiti; ;;;;,"i;a;i;d"r,rd"' Part 40. section 40. I 3(b) statcs:
(b) Any Person is exempt f1ory fe regulations in this part and from
the require;.;d for a license slt forth in section 62 of the act tothe extent
thatruan ptoon 'oceives'
po"""" uses' or trandels unrefined and
unprocessed ore containing source material; provided, that except as
authorizeiin a specinc licinse, such person shall not refine or Process
such ore
Division of Radiatioo t*f oo 7
JanuarY 1,2W5
The NRc has exempted"ore," either source material ore (over'05% uranium or
thorium by weight) - ror-roor", *uariii-or" (iess than 'os % uranium and/or thorium
h#$rj'p::,rl;,ffi#$i'gg;g;e;P;#til'",
regulatory r"'poo'iUitifi-o'!' ut*ium or thorium "otc''
Thank you for providing this oppornrnity to present comments'
SincerelY'
Sarah M. Fields, Chair
Nuclear Waste Committee
bi"o c*Yon GrouP/Sierra Club
Enclosure: AttachmentA
oa f
commenh on Draft Ground water Discharge Permit No. UGIV3700M,
International uranium (usA) corporation (IUC) Uranium MiIl,
Whitc Mesa, Utah'
Attachment A
There is absolutely no statutory or regulatory basis for the state of utah to
authorize the proc"J;, "t"alternateieed
material" at the IUC mill' There is no
statutory ogegulatory 6asis for the State of Utah to inctude the "process related wastes
and waste st "urnr"
fiorn ,fr. processing of materials ofherlhan natural ore ("alternate
feed material,) in,r,, ,oto,o.y and reg-ulatory definition of lle.(Z) byproduct material'
The Ground \ilatcr bisctarge Permit must not authorize the processing of
..alternate feed matcrial." The Ground \ilater Discharqe Permit myst not authorize
,ffir*J;r*t st "qms
from the processing of "alternate feed materialt'as
l1e.(2) byproduct material. Such authirization is not permitted by statute or
regdlation .r^n arrcr lro ,onioAnyrequestbythePermitteeforsuchal}horizationmustbedenicd.
The foilowinltiscussion of the hisrory of the statutes and regulations applicable
to the processing oi o?* fot their source material content at licensed uranium and
thorium mills will support these statements'
1. Statuteg
A. Uranium Iflill Taitings Radiation Control Act of 197E
uranium Milt Tailings Radiation control Act of l9?8 (UMTRCA) (Public l-aw
gL-ffi,92 Stat lOll et seqi,amended the Atomic Energy Act (AEA) of l9!a @ublic
Law g3_703, 6g S;; glg a.seq.). The AEA_of lg54 was an-amendment to the Atomic
ilr*, Act of 1946 (Public l-aw 79-385,60 Stat 755 et seq')'
There is no evidence that the AEA, as amended by uMTRCA, anticipated and
sanctioned the processing of feed materials other than natural ores and the disposal of
wastes from such processing at licensed ,r"iY an! thori.um processing-facilities' There
is no evidence ttrat ttreaf,igurt the Nuctear Regutatory Commission (NRC) or NRC
;,.,[|.[1ili"r,t. broad a-uthority to authorizcthe processing of feed materials other:
than natural ores u, ioir.' There is no evidence that the AEA gave the NRC and NRc
Agreement States ihe broad authority to authorize the disposal of wastes from such
prirririrg at 1icensed uranium and thorium processing facilities as 'l le.(2) byproduct
material."
So-called "alternate feed material" is the wastes, contaminated debris' and
contaminated soilslrom other mineral processin-g operations' This material has been
deemed .Teed material other thanrnatural ore." Ii iJnot "natural ore." It is not "any ore."
And, it is not *ore." There is no evidence that UMTRCA sanctioned the processing of
..alternate feed material," aS " any Ore," at licenSed uranium Or thOriUm eXtraCtiOn
o
t*,oo 2
Division of Radiation
AttachmentA
JanuarY 7,zffis
facilities. There is no evidence that ulder UMTRCA materials other thlrn natural ore
were ever consideJio u. ior".,, rn.re is no evidence that uMTRcA gave any federal
or state agency ,h, ;;;on arter the definition of ..ore" to include materials that are not
natural ore. There it ," LriA.nce that UI\trIRCA gave any federal or state agency the
discretion to alter the definition of "any ot"'; ut thit term is used in the definition of
* 1 I e.(2) bYProduct material''
In fact" there is specific evidence that congress, the Atomic Energy commission
(AEc), the NRc, and the Environmental protection Agency (EPA) explicitly determined
that the processing iJJ*ut.riar other than naturat ore wasnot sanctioned by applicable
'
statute or regulation'
The regulatory history of U-MTRCA, found in the rwo congressional reports'
provides inrormation'with respect,ur*iu.'.ill tailings'and nore.r The congressional
Reports clearly stated what was contempiated by Congress (known as the intentof
Congress) when Ct;;;;"uuli'r'"a 'irogt"'i ry: F: cgntrol of "uraniurn mill tailings'
from the processing o1 ,,uranium or"' u,inuLive (Iitle I of LJMTRCA) and active Cfitle
II of UMTRCaI uianium and tr,oriuln i,o""tlioifutirities' House Report (nterior and
Insurar Affairs c;;;;;j No.ls-r+sg (), August r],r.?1,&'and House Report
(Interstate una ror.ig; a;;;tt:: C:;ritt"e) fro' 95-1480 (II)' September 3O lylS'
under ,,n..k-grourd and Need,n IIR No. 95-1480 () states:
Uraniummilltailingsarethesandy*,asleproducedbytheuranium
oremillingprocess.Becauseonlyl.to5poundsofuseableuraniumis
extracted from each 2,000 poundi of orr,-t r-"odous quantities of wastc
*" prodrrJ", " *J, of 'mitting operations. These tailings contain
many naturally-occurring hazardJus substances, both radioactive and
nonradioacffi. . . . e. Jr*olt of being for all practical purPoses, a
perpetual nlr"ri,'**ium mill tailings-present the major threat of the
nu.l"utfuel cYcle' .,,. - !-r--
Initsearlyyears,theuraniummillingindustrywasunderthe
dominant rort oioithe Federal Governmeni. At that time, uranium was
being proar-""a uJer Federal contracts for the Government's Mnnhattan
ffi;;;r; Dr"t.r *a Atomic Energy commission ProSram. . . .
TheAtomicEnergyCommissionanditssuccessor,theNuclear
Regulatory comriission, have retained authority for licensing uranium
millsundertheAtomicEnergyActsincelg54.[HRNo.95-1480(1)at
l1.I
The second House Report, under "Need for a Remedial Action hogramn states:
Uranium mills are a part of the nuclear fuel cycle. -They tIP"t
uranium il;;;; i;i rwntorl use in nuclear weapons and power-qlPB,
Ieaving rra]or.ti", sand-like waste-commonly ialled uranium mill
tailings-in generally unanended piles. tHR Nb. 95-1480 Q) at25.l
Division of Radiation #ot,ol
AttachmentA
JanuarY 1,2005
B. Atomic Energr Qsmmission and the AEA of 1945
Asindicatedabove,thedomesticuraniummining.andmillingindustrywas
established at the u.r,.rt of the Manhattan irgineer o.l.:Fo and the AEC' The AEc
regulated uranium *i*r and uranium pro"esiiog facilities, estabtished ore buying
stations, and bougtri ;rt. lt'ririrg and milling of uranium ore was done under contract to
the AEC. AfC purct "r"d ,r"niim ore unde-r the Domestic Uranium Prograrn
Regulations relateaio tt'' AfC'' uranium PtojPfrynt Program werc setforth in
10 C.F.R. part 60. p." 60 was deleted froil fi l.10 of ihetode of Federal Regulations
on March 3,lns,uft" tt't establishment of the NRC-
The AEC prUtirt "O
a number oiCit"ut"ts related to their Domestic Uranium
program that discuss trr" ,uriou, types of uranium ores' The Domestic uranium
program - ci rcular No. 3 - G uaranteeJrh*; Y "ry
Min i mum Price - uranium-Bearing
carnotite_Type or noscoelite-Type ores-of the cororado plateau Arean (April9, 1918)
;;;ff itib.r.n. Part 60)' rtri cit"utar states:
$ 60.3 Guaranteed three yecrs minimum pr\e,for uranium'bearing
carnotite-typ" o"o"'"tiie-type ores of tlu Colorado Plateau-(a)
Guarantee. To stimulate domeitic proiuction of uranium-bearing ores of
theCotoradoPlateauarea'commonlyknownascarnotite-typeor
roscoerit.-typ"o'.s,u,dintheinterestofthecolllmondefenseand
security the'ilnited States Atomic Energy Cornmission hereby establishes
the guarante"J--inirum pric"s specifiJd. in Schedule I of this section' for
the deliverf;;;;h o"'to tr't-ci'**ission' at Monticello' Utah' and
Durango,ioio*do,inaccordancewiththetermsofthissectionduringthe
Note:r, SS oo]land 60.2 fo"-":9: Ulanium ToqoT'Circulars No' I
and2),the,Commissionhasestablishedguaranteedpricesforottrer. domestic uranium.bearing or"r, ura meJhanical concenfiates, and refined
uranium Products'
Notez rrc ierm idomesticn in this section, referring to uraniunu uranium'
beari,go,.,"namechanicalconcentrates,meanssuchuranium,ores,and
concent atl-s pioar""a from deposits within the united states, its
territories, poisessions and the Canal Tnna
10 C.F.R. Part 60-Domestic Uranium Program at $ 60'5(c) starcs:
Definitions. As used in this section and in $ 60'5(a)' th9 term ubuyet'
refers to the U.S. A;ic Energv Commissionl"it" ?,i}^:lf:l^r adr
purchasing agent
mill products. . ..
Bmphasis added.J
fffii;A t4 F.[ieg. ?31 (Februarv 18' 1e+9)']
Division of Radiation Tt,d
OO
Attachment A
JanuarY 1,20015
ItisclearthattheAECwasthe.primarymoverT.t'domesticuraniummining
and milling prog'u'i' t';;;;" Ato"i;';;;gv ects'or 1946 and t9s4'the AEC
regulated uranium rirrrg "ra milling una.r,u'ulished a uranium ore-buying Program'
Fromthe194o,s,,iiiii"Lgulati6nsinl0C.F.R.Part60clearlydiscussedwhat
uranium ore was #;;; uo'a.lr-lv *ri**'91' did not include mill tailings or
other mill proaurts.*fnl"tn"r rno,a',."#J did not include materials that had already gone
through a mineral processing operation-rt Jia not include materials other than natural
.
ore.
FromtheverybeginningoftheAEA,theAECwasexplicitaboutwhaturanium
ore was. ore specificaltf aia not incrude tailings, wastes, and products from-mineral
processing opr*,ionrl i";* f:""t ang"a in]ttre use.9f the term "ore" in the stanrtes or
regulations pertaining to the pro"".r,ri.? "r"rim and thorium ore since that time'
TheAEAoflg46,under,Controlof.Materials,''Sec.5(b),"SourceMaterials,'
( 1 ),,,Defi ni,i"r,, pl"'iiill il;;;i,t., oi :'rour"" material. 1 Section 5(bxl ) states:
Definition' - As used in this Act' the term':9":t materialn 6gnns
uranium,thorium'oranyothermaieriatwhichisdeterminedbythe
Commission,withtheapprwalofthehesident,tobepeculiarlyesscntial:
to the p*d;;;Lifi.rioruule mui"rials; but includes ores only if they
contain one or more of trre foregffi.ut"ti.rt in such concentration as the
commissiorimaf uy rcgrr.tioria"ter*ine from time to time.
TheAEAoflg54,Chapter2'sectionll,,,Definitions,nsetsforththecurrent
statutory definition"'ii';;;;il;;# i at sec' ll(s):'
Thetermnsourcematerialnmeans(l)uranium,thorium,oranyother
material J;h it i;it""tned bv the'Commis'sion lysuT'-1"-11:''-- 'proririonrbi."",ion 6l to be *ur". material; or (2) ores containing one
or more of the foregoing materials' in such concePtration: as the
commissioriil b:i;;;ulation determine from time to time.
WU.S'C' Sec' 2014(z)'I
Responsivetothisstatutorydefinition,inlg6ltheAECestablishedthefollowing
,.gututory iefinition at l0 C'F R $ 4O'4:
SourceMaterialmeans:(1)Uraniumorthorium,oranycombination
thereof, i";;;;;;i, i.r,"rnirul form or (2) ores which contain by
weight onr-#*,ilth of one p.r""n, (0.057o) or more of: (i) uranium'
(ii) thoriuir ", tifli-V combination thereof. Source material does not
include #;;;;t'* tut"'i it' PeFed' Reg' 284 (Jan' 14' 196l)'I
oo
Division of Radiatio' t*
JanuarY 7,2W
Therefore, the AEC made a determination, in accordance with the mandate of the
AEA of lgs4,that;;-;taining 0.05% t5o,ium and/or uranium would meet the
statutory definition"oi;;;;;rur' iot *tteriats other than natural ore' only the
uranium and or thorium content (no matter what the concentration) met the statutory
definition of ,oor", *aterial. There *;;; ctear aiffe'entiation between the rwo tyPes of
source fi'#;re time that they m-ade,hu:ir,:,*nu!11, the AEc hf a regulation that
clearry stated tn"t ,orrr aoes not'incrude mill tailings or other mill products' Surely, the
AEc, as the ua-ini-,t,uto, or a uranium o,, p,o.*,ment program and the developer of
the uranium mining and milling industry-rnew what they were refening to when they
used the term ,,ore.-, There was no r"#," J"nne "ore"in the statute or regulations
because that term t uiur rrquestionable commonly accepted meaning within the mining
and milling industry. It was not p* oitt't o'* '"gulutory
terminology' On the other
hand, ".source ,.,;T# ;? l;fii ;;dr* ;at#al' wlre defined because thev were
,"* itgututory terms' --.:^-- rn t*a ..orl, Part 4O. The
The AEC ,r, ronn certain exemptions to theregurations in l0 c.F R' I
,r*r rloni,il ;;;il;; r aner n n ar i z#t J;;"'v I eA "::"' :::::: 1*
ThefollowingproposedamendmenttoPart4oconstitutesanover.
arl revi siori ;i-i 0 CFfr'purt 4o,,control of,source Material. n
wiil;;."il specifi ed. lxceptions' the proposed amendment
requires " fi""r." f"rif," r"""iii;i',iilt to,.ld thl receipt, possession' use'
transfer, impon or export of source material' ' ' ' '
under the proposeo u**Jm"nt" the definition of the term "source
material,,: ir-;;;; tL uriog iiirto closer conformance with that
contained in the Atomic rr"rgy;-"i"{11s1 nsource Materialn is defined
as (1) uruniu, or thorium, ", i'ov ".*linutio, tlrereof, in any physical or '
chemical;#,;;;;;;rti i".i',,ar special nuclear material, or (2) ores
whichcontainbyweightone-nruentiethofonePercent(0.05percent)or
more of (a) uranium' (b) thorium 'i t"l any combination thereof' The
u*.ndr",it ;;;1a'i'*pt r;;; ii9"u Jlq:quirements chemical
mixtures,compounds,solutionsoralloyscontaininglessthan0.05percent
source materiil by weight es aiesulttf tnit """tnption'
the change in the
definitior'oi *#e maierial i. noilrp"cted to have any effect on the
licensing program' ' ' ' -r ^^-r,,^r af narrqin activitieSection62oftheActprohibitstheconductofcertainactivities.
relating ," *rr"" *ut.riul "ufirii*rul from its place:of deposit in
nature,,un]esssuchactivities";..,.t,o'izedbylicenseissuedbythe
AtomicEnergyCommission.rt,.e.tdoesnot'however,requirea
license r", ii'E ti'ing of 'ou"' ttGd' and tn"r'rJ"J,?I:r:f;lf:ns' as '
inthecaseofthecurrentregulations'donotrequ
conduct "i rririrg activities. under the present:regulatiou, miners are
required to have i-li..nr. to transfer theiource malerial after it is mined'
Undertheproposedregutationbelow,thepossessionandtransferof
Division "f R"d;* Control
AttachmentA
JanuarY 7,2C[l5
, i.--
I
unrefined and unprocessed ores containing source-material would be
exempted. fo#;' Reg' 8619 (SeptemberT' 1960)'J
Here, the regulation makes clear that "source material ore" is something that has
been removro rro*iir'pri;#;"9J in nature." It is something that is mined from the
ground bY miners.
Therefore, the AEC established, via a rulemaking, exemptions for source material'
as defined in Sec. ZOtl<z)(l), related to mixtures, compounds, solutions' or alloys
conuining uranium and/or thorium:
(a)AnypersonisexemptfromthereguJationsinthispartandfrom:
the requirer"io fo, a license set forth in section 62 of the Act to the l
extentthatsuchpersonrecelves,Possesses,uses'transfers.ordelivers
source *u,"ri"'iin ury .fr"*i"al mixture, compound, solution, or alloy in'
.
;-hih ih. ,orr"" material is by weight less than one-twentieth of I percent
(0.05 percent) of the mixture, to'npou'd' solutio.n or alloy' The
exemption.ontui'"d in this paragraph doel ry1inlnae byproduct material
asdefinedi;ffi;;;.=tl0C.F.i$.4o.l3(a),26Fed.Reg.284(Jro.14l%1)']
tterial' as'
The AEC also established, via a rulemaking, exbmptions for souroe ma
defined in Sec. zUa@)Q\, related to noren:
(b)AnyPersonisexemptfromtheregulationsinthispartandfrom
therequirementsforalicensesetforthinsection62oftheacttothe
extent that such Person receives' possesses' uses' or transfers .,
.
unrefined.rJrriproressed ore containing source material; ryoy_ided,' , '
that, .r""pi* urtf,orized in a specifit !'^":T:l s:9h-lp€-ry:n thgl:9j
refine o, pro*r, such ore. t10 e.F.R. 40.13(b), 26Fed. Reg. 284 (Jan. 14
le6l).1
Thedefinitionofnsourcematerialnandtheexemptionsthatarerelatedtothose
definitions stand today, over forty years later' fhese regulatory,definitions.and
exemptions aia noi;unge ,rr,en the NRC was established in 1Il5 and took on the
regulatory responsibilitylor nsource material.n These regulatory definitions and
exemptions oa roi.r,uirge *n1en the AEA was amended by UMTRSA in 1978' These
regulations ura o.iinitiois did not change when thg N-RC developed their policy
guidances retated;il;;"r*sing of fe"ed material other than natural ore at licensed
iranium recovery oPerations'
Alternatefeedmaterialthatcontainsuraniumandthoriumcontains..source
material" under th;ttt ;;finition of "source material"' However' it is not "source
material,, under trre second definition, because it is not "ore" under the applicable statutes
and regulations.
6
Division of Radiatio" t*
Attachment A
JanuarY 1,2frO5
le'Q) bYProduct matcrialD. Definition of 1.
UMTRCA'amongotherthings,amendedtheAEAoflg54byaddinganew
definition-the definition of l1e'(2) byproduct material:
Sec- 201. Section I le' of the Atomic Energy Act of 1954' is
amended ffif.n1"rfi:f,juct material,means o *v radioactive
material (r*;;;prciainuctear material) yielded in or made radioactive
by exposureiJ,n,J radiation incident to the process of producing or
utilizirg ,p".i^t'nuclear material, and (2) ttri tailings or wastes produced
by the extraction or concentration of uranium or thorium from any ore
Processedprimarityforitssouroematerialcontent.''t42U.s.c.Sec.2014
(e).I
There is no evidence in the regulatory history of UMTRCA that Congress' in
defining ;ii;i2rd;;;"imateriatiintended to alio amend the statutory definition of
nsourbe material.n
-The "uny ore'? in the definition of 1le'(2) byproduct material is 1)
ores which contain by weight one-twentieth of one percent (0'05%) or more of: (i)
uranium,(ii) thoriumir (iii any combination thereof (source material); and 2) ores which
conrain less than Uy *.ii-iri"nJ-twentieth of one per-cent-(0'O5%) or more of: (i)
uranium,(ii) thoriufu oi [iii) ,ny combination theieof' If the term "any ore" was meant to
include materials ott ", tirun "o6r" in the definition of "any ore"'the result would be an
;;;;;;;;" J"noition of "source material'' There was no such amendmentto the
r"*i".y aefinition of "source material"'
There is no evidence in the regulatory history of UMTRCA thatthe term nany
ore,,doesnotmean-fi;;''P"ofuranIumo,i,1i.'.,Lrecontaininglessthan.05%
uranium and/or thorium ura tn" numerous types of n1!-u3l uranium-bearing minerals that
*" rrir"a at uranium mines and milled at uranium mills)'*- ""-il;;ris
no evidence in the regulatory history ql_u_I\ffRct that congress
intendedtheterm,anyore,tomeananytrring-1lalt"^ry\coJanAgreementState
wanted it to mean. it.r" is no evidence ttrat-ulvtrRcA intended that "ore" included
wastes from mineral processing oprrri"rt rrfr"A with wastes and debris from other
sources, even if those wastes were processed for their sounce material content at a
licensed uranium or thorium mill'
2. NRC Regulations
A. Mandate of UMTRCA
uMTRcA required that ttre EPA and the NRC promulgate rules and regulatioas
implementing the statute'
Both the EpA and the NRC established a regulatory program for uranium milling
and the pro."rrioi;;;;. n;ittrer tt e EPA nor ttri Nnc contemplated the processing of
Division of Radiatio, ttrol oo
AttachmentA
materials that were not "natural ore" when they developed and promulgated their
regulation-sther
the EpA nor the NRc considered wastes-from other mineral processing
operations in their **.p, "1
,,ore,, and they did not address in any manner the
processing of such wastes when promulgating their regulatory regimes for active uranium
processing facilities.
Further, aring the various rulemaking proceedings, the public *T Bever
informed tt.t *ru.t* irom other mineral proc-essing operations' no matter how they were
defined, would be processed at licensed u,anium oi tt'o'i"n mills' Therefore the public
wasgivenuUsolutuyno-opportrnirytt"o**entonsuchprocessingactivitiesatlicensed
,runi-u. or thorium facilities'
The public ir", *r., been given this opportunity in any NRC, EPA' or State of
Utah rulemaking Proceeding' '
B. NRC Regulatory Program, 10 C'F R' Part 40
ResponsivetoUMTRCA,the|RCincorporatedtheUMTRc,{1{{tionof
l le.(2) byproduct ,u,"rlJt*ith clarification) inio their regulations at l0 C'F R $ 404:
,,Byproduct Material" means the tailings or wastes produced by the
extraction or concentration of uraniumL tnoti'- from any ore- processed
primarily r* io tout"e materiai content, including discrete surface wastes
resulting from uranium solution extraction processes' Undergroutl of
ffi;ff.pl""Jby ,;;! :glr,l?o extraction operations do not constitutc
,,byproduct;;i;.I' within this definiti on. 144 Fed. Reg. 50012-50014
tAugust ?A,lng)'l
The NRC also explained the need for the new definition:
Section4o.4ofloCriRPart4oisamendedtoincludeanew
definition of "byproduct material." This amendment, which included
uranium #,#;; miil tailings as byproductmaterial licensable by the
Commissioo, it i"qrir"d by theie""rtiy enacted Uranium Mill Tailings
Radi ation ctr""i lrr Iu p ed. Reg. j00 t z-500 l 4 (August 2/+, ry79.l
The NRc promulgated further regulationsamending Part 40, in 1980' In the
feaerat Register Notice tnnNl summary' the NRC states:
TheU.S.NuclearRegulatoryCommissionisamendingits
,.gutrtonJ; ;;".ify_ licensiig requirements for uranium and thorium
mi1;ing r",iri,iJt,In.tuaing tai-tings and wastes generated from these
activities. The amendments to paits 4O and 150 take into account the
conclusions irucn"a in a final generic environmcntal impact statement on
uranlrr.ilii,g una,fr" requiriments mandated in the Uranium Mill
Division of n"aton Conrol
,
AuachmentA
JanuarY 7,20fi5
Tailings Radiation Control Act of 1978''as amended: p"lt]lllyr:,1:
received on a draft generic environmental impact statement on uranlum
milting, and public comments received on propos'ed rules published in the
Federal Register. [Footnotes omitted'] [{5]Fed' Reg' 6552165538
There is no statement in any of the NRC regulations in 10 C'F R Part 40 or in an. y
of rutemakirg pr*r.a1ngt prorrigating those teg't"tions that' under any circumstances'
wastes from other mineral processing ofre'ations ian be considered to be "oren' There is
no statement that, under any circumstances, such wastes would be processed at licensed
uranium or thorium,tllt;;d the tailings oi wastes "o{g be disposed of as 11e'(2)
byproduct material i, tf," mill tailings iirpoundmtntt'^ The regulations promulgated by
the NRC and the gpa aia not conteirplate this kind of mill processing activity'
The NationJ En,i,on'entd Pblicv Act (;NEPA') d9:.q:1t ii tllry of the
promulgation of the NRC regulatory progiu. foi uranium mills did not contemplate this
kind of uranium or,r,oiu- irilrirg r.tirlty. lo.,t" rulemaking proceedings and NEPA
proceeding the public did not have an opportunity to contemPlate and comment on this
lira of mi-neral-proc;t;i;g activity at liiinsed uranium or thorium mills'
c. The Final Generic Environmental Impact statement on uranium Miling
IndevelopingandadoptingPart4oregulations,..l:.NRcreliedupontheFinal
Generic Environmental Impact Statement on fJranium Milling ('GEIS')' NUREGry/06'
September 1980. i-i. cgls makes r.** statement regarding the scope of the GEIS and
itr'unJ"rt*ding of what uranium milling entails:
AsstatedintheNRCFedera-l.Regis.terNotice(42FR13874)on
the proposJ;;;p" and outline for this study, conventional uranium
milling op"i.iom in both Agreement and Non-Agreement States, alp
evaluated ;;rh, yru, ZOO6. Conventional ulni.um milling as used
;;;;i;;;i-, to the miling of ore mined primarily for the recovery of
uranium. It involves the processes of crushing, grinding, and^leachfng of
the or", rotiornrJuy chemical separation_and concentration of uranium.
Nonconventional recovery p,o".'s"s include in situ extraction or ore
bodies,r",.r,i,eoruooiu.-,i"t.tailingspil.es,a.n|extractionofuranium
from mine watJr and wet-process phosphoric acid. Theqe processes ar€
described ,".lrJ"a extent, for ctmpi"teness. [GEIS, Volume I' at 3']
The GEIS is very clear about what it considers nore'to be and gives no indication
whatsoever that materiais other than ore, such as theUilings or waste from mineral
processing op.*tion, (inctuding debris, commingled contaminated soils and waste
materials rro, ott.r;;;r.*) url roorii"red to be nore.n The processing of 'lalternate
9
Division of Radiation t-
Attachment A
January 7,2005
feed material" was not mentioned in the discussion of "nonconventional recovery
;;;" in the GEIS. r,,n--. n-^,r..^+:^,
TheGElsincludesadiscussionof''PastProductionMethods.,Thatdiscussion
makes reference,o i,-olr-i-"ore exproration,, "pitchbrende or_e,' ncrude ore milling
processes,,, ,,lornrr-gluil o*r," 'uruniu.-Lt*ing gold ores," "high-grade ores" 'oIE-
buying stations,,, uo?'ioitr"serves." gusr volirie I, chapter 2, at2'l to 2'2' There is
a lengthy oiscussion-Jiurunirm Mining and Milling operations'that provides a
description of the "o*rnonly
and less-co'lnrnonly uused methods of mining uranium
or".." GEIS, Volume II, at B-1 to B1!' Appendix 1' .
In Chaprer i,;ii"iror-ental Impa&"," th"tt is a discussion of nExposure to
Uranium Ore Dust,n which states, in part
uranium ore dust in crushing and grinding areas of mills contains nahrral
urani um (u_23 g, tJ -235,tr,ori um-il6, r.d]r*- 226, lead-Zl 0, and
poloniu.-2 fti}-tr" i-port-f ruoioou.rides. [GEIS, Volume I, at 64l.]
There is also a table giving the "Avera89 Qccunational Internal Dose due to
Inhalation of Ore D;J; CfrS ^{64l,Table
O.tO. F1$er, the GEIS discusses
,,shipment of ore ao il" Mill, (GEIS itl-tl), "sprinkling or wetting of ore stockpilen
(GEIS at g-2), 'O* st-uge" and_"ore crurrrirg -a criraing" (GEIS at 86), ',Ore Pad
andGrinding-tcgl5,voi.l,atG.2),''OreWaiehouse(GEIs,Vol.3,atK.3)and
',Alternativ", to Cort ot Dusi from Ore Handling, Crushing' and Grinding Operations
(GEIS, Vol. III, at'i-ito K-3). In the NRC resPonses to cbmments there are discussions
of nAverage Ore CiuJ", Urarium Recovery.n Ci:tS, Vol' IL at A-12 to A-13'
Nowhere iotfrrr" discussions of "o-re" was it stated that materials other than
naturat ore were thought to be a ,ypa of "t"" and the processing of such materials would
be aaares."d in the ",i"i'ont"ntalleviewTheGElsdidnotconsidertheprocessinggfalternate.feedmaterial,ofwhatever
source and kind. Th".cgs grves no jndication ,nhut'oe,er that such wastes ar' not€,'
even if they ,n.r. pr*"*ea It a uranium or thorium recovery facility for their 'source
material content,' clearly, the GEIS did not contemplate a situation where wastes from
the processiog or rrla *i,lri"r other than natural ore would meet the definition of l le'(2)
;yd;;;,;i"i"r.
Therefore,theGElsdidnotevatuate,andthepublicdidnothaveanopportunity
to comment upon,;;;f ,ht possible health, safety, andenvironmental impacts of the
processing orotr,"i#*rJ pi*rssing wastes-at uranium or thorium processing facilities.
There was no evaluation of itre t ansportution issues related to the transportation of such
wastes, nor were rruronuUf, alternatives to the transPortation' receipt' processing' and
disposalofsuchwastesaturaniumorthoriummillseverevaluated.
The NRC has never supplemented the GEIS to include an environmental
assessment of the p-.*tirg of alternate feed materials' The NRC has never requircd a
site-specifi. fnrirln*entat"lmpuct Statement for any uranium mill' including the
permittee,s mil, that evaruated the environmentar impacts associated with the processing
of ..alternate feEd ,u,eri"r" at the mill. Most of the "alternate feed material" (including
10
Division of Radiatio, at 1l
AttachmentA
January 7,2W5 j
large amounts of debris) processed at the Permittee's uranium mill was receive4
pro-""*ra, and dispos"i
-l rrithout u* t * of trr'rorrn"rtul tt'it'n *h"ttot'"t'
3. EPA RegulatorY Standards
A. Mandate of IIMTRCA
tirected the EPA to establish standards for uranium mill tailings and
directed the NRC to implement those standards. That statute, as codifiedin42 U.S.C.
2022, states in Pertinent Part
Sec. zUZZ.Hedth and environmental standards for uranium mill tailings
t (o) homulgation and revision of rules for protection from hazards at
processing or disPosal sirc''tt) er rooo rs practicable, but not later than october 31, 1982, the
Administrato, ,hull, by rule, proPose, and within I I months thereafter
promulgate in finat fo-rm, standails of general application for thc
protecti-on of the public heatth, safe$t, and the environment from
iadiotogical and nonradiological hazards associated with the processing
and with the possession, transfer, and disposal of bypldyct material, as
at sites at which ores are
or which are used for
tEdtrp.*t.f *A byproduct material.... [Emphasis added.]
Requirements eitabl ished by tle
-Cory1ni
ssi on under 1}i : *"*l
with respect to byproduct material as defined in section ?.ola(-)@) of this
title shail conform to such standards. Any:requirements adopted bJ tr:
commission respecting such byproduct material before promulgation by
tt r bo-*ission of rrJh tturd-ds shall be amended as the Commission
deems necessary to conform to such standardsjnthe samemanner as
pi""iara i, subsection (0(3) of this section. Nothing in this subsection
rt utt Ur construed to prohibit or suspend the implementation or
"Jor".-.nt by the Commission of iny requirement of the.Commission
,*p""ting byproduct material as defined in section 2Ol4(e)Q) of this title
p,iarrJiro,,rtguto, by the Commission of any such standard of general
il;li;r"d;r. In Jsablishing such standards, the Administrator shall
clnsider the risk to the puUli. health, safety, and th9 environment, the
,rriron.rntal and economic costs of applying such standards, and such
other factors as the Administrator determines to be appropriate'
***
(d) Federal and State implementation and enforcemen! of $e standards
iromulgated pursuant to subsection (b) of this section shall be the
i"rp""riuilityof the Commission in the conduct of its licensing activities
,ri, Uir .t uptrr. States exercising authority pursuantto section
ioil<aiXilortris title shall implement and enforce such standards in
Division orn too Contnol
AttachmentA
January 7,20[15
o'
accordance with subsection (o) of such section.l4zu.s.c. ?n22'(b)
(d).I
congress directed the EPA only to establish standards for "sites at which ores are
processed primarily for their source material." The EPA, as mandated by UMTRCA'
finalized tu" "roriroim"ntut stuoa*ds for Uranium and Thorium Mill Tailings at
Licensed co-.rr.ilJ ilo"*ring Sites" in 1983. 48 Fed- Reg.4592545941,october7'
1983. In the "summary of BackgrounA information'the EPI provides a discussion of
iit, uroium Induffi,ii.r, it Jirdustry that the regulations apply tQ:
Themajordepositsofhigh-gradeuraniumoresintheUnitedStatbsarp
Iocated in tne bolorado Piateau, the Wyoming Basins, and the Gulf.Coast
plain of Te""" rra"" ore is mined by either underground or open-pit
methods. ai*r" *iff the ore is first lrushed, blended, and ground to
proper size rli it" leaching process which extracts uraniurL ' ' ' After
uraniumisleachedfromthe_oreitisconcentrated....Thedepletedorc'
in the form oioiiirgr, is pumpuo to a tailings pile as a slurry mixed with
wat€r.
Sincetheuraniumcontentoforeaveragesonlyabout0.15percent'
essentia[y all the bulk or ore mined unI pto."t1e{is contained in the
tailings. l+sF";' isg'a5v2s';;w;oJtou"t?'1983'l :
clearly, when the EPA developed its standards for uranium and thorium mills'
they stated, with,p""#rJu and particui^riay, what uranium ore was, what uranium
m,ring consisted;i, ffi;nu, uiunir*'iiiil,irgr consisted of. The EFA clearly stated
that the standards applied to the pro...'int of uraiium and thorium ores at uranium and
thoriummills.Th#isnoreasonable;;fi;'thatwouldindicate9"tth:standards
promulgated by t#;itapplied to tfraprocessing. of.wastes from other mineral
processing op.ruuorl .irr'uniu. una i,Irir* mit-ls (i-e., alternate feed material)'
Additionaily, the EpA incorp";;i; UMTRCA's definition of lle.(2) byproduct
material, as crarirrlli r;t* i.iRa;:lo cr.n. 40.4, into their standards at 40 c'F R
subpart D, $ 19.;i(;i. !iTr; that time the EPA has not amended their definition of
1le.(2) byproduct ,.ilriul in a rulemakinjpro"""aing, nor have they amended their
definition via policy guidance. The EPA f,""ot' in any manner' widened the use of the
words ,,any ore, to include any type oi -ir"rur pi*"tting wastes that is currently rcrmed
"alternate ieed material .''
As will be discussed below, the EPA did not sanction the NRC's policy guidance
with respect new a.fnititnt of noren and l le'Q) byproduct material'
Clearly, ,h;Pt; directed UV Coog'"tt,
-t'ut
not in any mannercontemplated
the processing of wastes from other mi'nerd Ixtraction operations at uranium or thorium
mills when establishing the "Environ,tnor Standards for Uranium and Thorium Mill
iJiirg. at Licensed C-ommercial Processing Sites''
t2
Division of Radiation t-oo
AnachmentA
January 7,2005 :-
'B, EPA Regulations
when compiling that list of hazardous materials and incorporating that list into
40 C.F.R. yart tm"iJnildid not in any manner'contemplate the processing of wastes
from other minera J;.d;" op.rutio* " ,r,. mills for t t i.h they were establishing
standards. The EpA did not address i"-;ry .u*", effruents that might resurt from the
nrocessing of feed materials that were,rr"Grirgr and other processing wastes from other
mineral extraction facilities '
Inthevariousrulemakingproceedingsthathave.takenplace.fortheestablishment
of the EpA standards, the public-was g;;;;" opportunity to ionsider or corrment on the
possibility that rhe gpe ,onaards wouid Ato uppiy t9 th: processing of wastes from
other miner4 prorJril;g;"ns (including ii--ingled debris' soils' and waste
materials from ott'"r toit""O at uranium and thorium mills'
It is true tf,"t if,t gpe and the NRC, in establrshing theirreg]-latory Program'
contemplatea tne fr:ocessing of ores-at ,t#u* *d thorium mills' However' as shown
above, processing oirnu*"r-r-m other Jnerai.pl*"rji1g operations at uranium and
thorium mills was beyond,r,: rar-9f trr" r.goluto.y pro[t"tn established by the NRC
*a,f,t EPA in response to UMTRCA'
Furthermo;il;c"ax. rurt ao, Appendix A, Criterion 8, states in part:
Uranium and thorium byproduct materials Pt:Iry managed so as to
conform to the applicable proriiiont of Title 4O of the Code of Federal
Re gul ati on#"i i10,' Ore lvli ni n g and Dressi ng Point S ource Category:
Effluent Limitations Guidelines urid N"* SourcJ Performance Standards'
subpart c, ii*ir., Radr_u-m, and vanadium ores Subcategory,'as
codified on JanuarY l' 1983'
There is no indication that these regulations applying to,"o1e" also apaly to
..alternate f""a art"ri"l.,, Thrr" is no evid"ence that'hitirnate feed material" was
"*tia"i"O to be some new type of -"9re''
There i, ,o-inai.utionifrat ttrisNnC regulation and the regulation in 40 C'F R'
partm(and the;;;blhg $atute) mrl i, -v-,,,unryl been amended or altered by
subsequent NRC policy guidance Th-;ft*, any shift in the usage of the wotd not'n
would conflict with these sratutory J'r"gri;*i authorities with respect this regulation'
A. In the tate 1980's the NRC wasfaced with a few requests to Process.material other
than ore. At thati*i -AGay, there are two statutes or regulations (implementing
those statues) that are pertinen,. n,tiil ir'" statutory definition of nsource materiall
established in 1954 bythe AEA, found at 42 U'S'C' S ec'2014{z)' and in the NRC
resulatory definition of "source n,.,"riui (established in 1961 pursuant Sec' 2014(z))'
foind at l0 C.F R 4O'4:
13
o ol
Division "f R d;t' Control
t4
ArachmentAi;;ry 1,zCf,,s ,. .^:^_
SourceMaterialmeans:(1)Uraniumorthorium,oranycombination
thereof, i, ";;;v't"i;;;;td
form or (2) ores which contain bv
weight onr-*toti'th of one percent (O'OSVo) or more of: (i) Uranium'
(ii) thorium or jlii) *y .olnui.nution thereof. source material does not
inirra" sPecial nuclear material'
Thesecondisthedefinitionof,bvpro{t1c1ry1eriar]inSectionll(eX2)ofthe
Atomic Energy eo "iG4, as amend;:A; Uq ! s11'.zor4(e)(2)) and the regulatory
A"finitio, of
-'Lypi"t
'naierial'
found in l0 C'F R' 40'4:
ByproductMaterialmeansthetailingsorwastesProducedbythe
extraction ", ""r"rr*tion of ,;;il;- or thoriumfrom any ole processed
primarily f"r;;;;;"e material content, including discrete surface lYastes
resulting rrori*ium solution exffaction processes. underground ors
bodie, d,il;;;tsucrr 99ru{on extraction operations do not constitute
"byproduct ;;;il; within this definition'
tdseveraloptions,includingthedenialoftheamendmentrequests;
one option would have been,g e"^,lgngresJand request that congress change thc
definition of 1le.(2) byproduct ,nu,"r,"t]'friC Staff maae a determination that they
would not go to CongiJs! P t-":I:n;;d-;'i to the AEA of 1954' I
lnstead, what the NRc did *.r;;;;;ipulate the,se of the word n any oren as it
is used in the a"rriion or le.Q)bypr.d;;;erial. NRC proposed in:a notice and
comment pro"r.an!]il; p","v giro*"; ue estaurisned for the purpose of interpreting
the term ,,ore,n as il?;;*d il;il;t":nrit", of I le.(2) byproduct material' "Revised
Guidance on oirpofi "r N""-e,"Ti. il;g! nti trig:54' 5"ttton 11e'(2) Byproduct
Material in Tailings Impoundm.llr" *J;"d.ti,ion and Guidance on the use of Uranium
Mill Feed Material-s
-o,["'Than NatuJbr.r,i' 57 Fed. Res' 2055 (May 13'1992}
The NRc did not institute . *rl*-"Ling froceeding 6 amend lo c'F R' Part40'
TheFinalPositionandGuidancegaYeuT-*definitionofore...FinalPosition
and Guidan* on ,r,i"u* of uryrli1-r*iiri i".a Materials other than Natural ores"'60
Fed. Reg. 4g2%(i;p;;; , i, tggsi.",;rtn, Position and Guidance on the use of
Uranium rrril n "i'rfi"'ffi dht' ffi Natural ores"'Regulatory Issue Summary (RIS)
;ffi-iNorrmuei 30,200[)' The new definition states:
oreisanaturalornativematterthatmaybeminedandtreatedforthe
extraction ;;;il;f il constitulnts o, ury other matter from which souree
material is extracted in a ticenseJ uruniu* or thorium mill' 160 Fed Reg'
'
^i- ii iN (s ePtembe r 22' tgpr')'\
Basedonthenewuseofthelermnore,,asputforthinthe.proposedguidance,not
only woutd tne aefinitio, or t b.(z)br;;d;;lmaterial apPlv to'any ore processed
primarily for its source material cont#n in a licensea utuniu* or thorium mill' but thc
ot*f 15
Division of Radiation
Attachment A
January 1,20015
definition of 11e.(2) byproduct materiar wourd arso appry to any materiar (particurarry
wastes from variou, #r.rut extraction operatiols u'd-'u'io|rs commingled wastes'and
debris) processed primuty fq llsloyrc" rnut"tiul content in a licensed uranium or
thorium mi1. In ott rr r"oias, NRC altered the accepted meaning of the word 'oren as
irr;i"*a ore was used in statutory definitions
B. on May 14, 1992,.NRC sta{.ry1t a letter to the EPA, enclosing a copy of the May
13 proposed rules uri i.qu*ted Epl comment on two proposed guidance documents
and their associated staff analyses. lrtter from Robert M' Bernero' Director' Office of
Nuclear Material t*"r, JJ dafeguards, NRC, to Sylvia K' Lowrance' Director' Ofglce
orl"iiJ Waste, EPA, MaY 14 lWL
The EpA did not submit comments on the proposed policy guidances. The only
documentation of EPA's resPonse to that request for cb*mgnt i'-euoted bJ* and is
found in the co*Jttioo pup", that forwari"a tn" finalized guidances to the
Theiewasanissuethatdelayed.finalizationoftheguidance.-
documents.'1, ;; october lw2,mixed waste mgeting between the NRC,
the EpA, ,ri i6e ,on, EpA identified potential inconsistencies in
NRC's in,rrfr"otion oiif," definition of iource material in conjunction
with the exclusion of source ;;;J from the definition of solid waste in
theResourcecon.",,..ionandRecoveryAct(RCRA).InmakingiF
ilfi*A;[f,*t Vray rf, l*z,Fediral Register notice on the disposal
of non-l f e.ti) byproduci material. The staff had delayed finalization of
theuraniumrecoverypolicyguidancedocuments,p"o_{i-,sresolutionof.
the source *"iUJ i.itoitioo issue. However, the staffhas now decided
that these two'policy guidance documents can be finalized, independent of
rhe source *uririur lrior, because the guidancl i-s not dependent on the
;;;;;", "rthe definition of ,our"r material. ["Final 'Revised
Guidance * oitpota of Non-Atomic EnergY fct of 1954, Section lle'(2)
Byproduct t tu,"'i"t in Tailings Impounlfm"-t9'*9 Final'Position and
Guidance "r',r,t Gt of Urarium rtirl i""a Materials Other Than Natural
Ores,"' SECY-95-221, August 15' 1995'I
The Proposed Position and Guidance and the Final Position and Guidance. gave no
indication ,t u, ,r,, Nnb was amending, interpreting, or.in any manner adjusting the
accepted meaning oi,t. term "ore" ur-ih"t wtrd is used in the statutory and regulatory
definition of ,,source material.n Nor was there any discussion in the various guidances
related to the pro".ttirg of material other than natural ore (i'e" material. that is not ore at
alt) of how the .r;.ilil;:* f"+I l0 C.F.R. $40.13G) and @) would be impacted bv
guidance,s n"rn O.n"TJon:i 6t*.' There is no. indication that the "source material
definition issue,, has ever been appropriatety addressed or resolved. It is an issue that has
lain in some Pretty murky regulatory waters for quite some time'
Division of Radiation t*oo
Attachment A
JanuarY 1,20[15
That question is: Does the new use of the term nore,* put forth in the Final
position and Guidanc ",'uf"oin any r;;; tht definition of isource material'
established in the A;"rri; Energy e"t orlgs4 or affect the exemptions set forth in
g 40.13(a) and (bP
,_ -L^ A +^-ia Fne I the legislative history of the
It is plain from the Atomic Elttgy Act of '1946
and
AEA of 1954 and,i, ur-i", rvriu raiiingr n"aira"n control 'lit of 1978 and the
reeulatory history;f ,1," AEc, EpA, and N-RC rules promulgated responsive to those
lais, thai the Policv Guidance's "* u'l;fG term "ore' gLs far biyond the accepted
meaning of that,.rilr:u;o fr.";;jr:;;; "i c"r,e*ts. Theiefore, NRb and the state of
utah cannot make use of rhe new.d:fifi;; oiilrr'to claim that any alternate feed
material is "ore" or nsource materif oi"; o' to claim that the wastes produced from the
processing of that ,#ri"i-eets the ."*i"ry definition of "re.(2) byproduct material'n
The apprrcability of varigu1"";;;;;ntal regulations to a great degree depends
upon definitions.. a;;;;;' in their q;i'J;4iJ':l:}:tt"n specificallv defines words
or phrases relaterl i" ,i?.pillcation ofi ,t"t tt to a particular material or
circumstan""r-rni-rn';h#i; " r""a ri oprurution. Ilowever, when using words or
terms with a "o.roo and long u"."p,J -irrirg, such as groundwateq mill' tailings: or
il; ro "rplunution
or definition-is necessary'
The NRC and the State of U"i'ii "* luthorized to shift these accepted
definitions at wilt il';rp*rrio, orircir;*grr"gry flexibility'' This is especially so
when such shifts rliffil,itr* "onfti"is
witnlRc's own enabling statutes lnd
regulations, ", i, tt.lase with tt " u*-oi tul n"*ly defined term 'ole'n Additionally'
NRc and sot" o, rirr'r, i, no, authorizJ," rt it definitions at will when such shifts
directly conflict rni,t, ,t. starutory .d;fi "J "tuutiont of another federal agency' in
this case, the EPA'
4. UMTRCA and the AEA
UMTRCA,asitamendstheAEA,clearlyspecifiedwhatconstituteslanyore.n
what constitutes ,any ore" 1r-"-I oJ i, aotsioi inctude material *other than natural
ore.,, The plain language of tfe 1" ry il;i""ty of the implementation of the Atomic
Energy Act of 194;:;;:rd:jly. the Atomic Energy ect or 1954 and the uranium
Mill railings Act; ig?s, is all thar k;;;ffiio a""-"oi'e what noren or nany oren is'
As discussed above, clearly tr,r.l.giriutir" lra l"erlitory history of the AEA and Title 10
of the Code of F"l;r;i R"lulationi make plan thJ meaning of the term noren and the term
nanY ore.n
5. Conclusion
NofederatagencyorstateaSencycanrls:apermitorapolicyguidancetoexpand
yprpl:-:-,q,:ffi1Ti#"?'.';rif#,-'":#';"'il,:ff l,T*:',[::;ixl'"11{'#'
forth in stature. I ne Jutts t --:" ::--; - *G,+^n, ,lofinitinn of ,source mr
Discharge permiiio ri,u.Lr,ir"rv uri., ii, ti*toty definition of 'source materialn orthe
;;;;,",y;efinition of I Ie'(2) byproduct material'
l6
Division of Radiatio' t*oo
Attachment A
JanuarY 7,2N5
NoneofthefederalandStateofUtahstatutesandregulationsls-lliningtothe
regulation of ground and surface water t"h; p"mitttt:t uri'nium recovery facility were
promulgated contemplating the disposaioi O"U'i' and wastes from the processing of feed
materiars other,rr* I.*i ore. Tie ,...ipi,p-..g.::,Ig, and disposal of these materials
was never uaar.rr#io;;#!inJ wni,. Mesa Mill Environmental statement or any
subsequent EIS supolement .*iroo! -itt reilino
There i, '" $il';;; that the permittee' mill tailings irp9r1111*:"*
desiened ura .onr,i,.t"J to ,eceire ,h;';;;;;;; *"tt"tito*iht processing of feed
*utJri"ft other than natural ore'
Therefore,theGroundWaterDischargeP:T1.3:'tnotinanyrnannerauthorize
the acceptar"r, pro"JrJng, and aisposuioi niteriars other than naturar ore at the fac,ity
covered by the Pr;; $.t.,tuoi*tion is outside the scope of the enabling statutes
and re gul ati ons ro' iiJ"-t"a-*"i'm recovery faci liti es''
t7
Sarah M. Eelds, Chair
Nuclear Waste Committee --Glen CanYon GrouP/Sierra CIub
From:
To:
Date:
Subiect:
"lvan Weber" <ivan @webersustain'com>
<[e-mail]>
fitOS 4:59PM ,Mesa Mill6i"r"o *"ter discharge permit' IUG White
Dear Mr. Morton:
Pleaselorgivethe]ast.minutenaiure.olmyattempttocomment,,howeverbriefly,onthedraftGWPfor
rUG/rVhire Mesa, """1-iii".iin;Gh.
n i; id;;l;ni, no*"r"t,.lor citizens or utah to note the
sioniricance ot DRc's'a-sffi;ih-"i i"g.rrut[#yptffi9i;1;1{uCop"*tions and lacilities' and ror us to
odserve the thorough;.;;,i";pted inihe 6ilr6ment or Basis, *p5rrtirg docum-ents and in the dratt
Ground warer pir"nu,ii-p-"imii, itserr. A. ;;;;h; nai p'1i9'9"r5i i^ "itti'r rounds ol proceedings and
reviews in rUc ,"or"J',xio,:;iil^r,; i;ro'p'"',.iir ,;;r'NBciliiir"iv"urs, r am very sratitied that the
state ot utah has emt-iaceo rhis task ,",,",15;l;: ffiilHivin"'t'uttunce and detail of the dralt
il?Iu;m;6bB:
Mav r orease echo the critique submitted by Ms. sarah Fierds, and incorporate it by rererence into my own
,",fii;:;; [ffi[l,:'Jfl!n.io1,, qf,"r.:*in herquestioninsor the meanins ot "inteasible' DMr as
rarionare ror rUc rrort"iJi';uriJrrrl,r: ortii;'tJ,n" E*""Irtir".5""r'uw-ot DRc-(paoe 20 ol draft
permit. 4. ,'Facirity oui oicompriance stut,j!...,,i1. iwn"i" it i. i"]""riu'irio i""rt"dii"6 our"')' rnis
E-lt*rtflii+#**ir*ii:y"l""i#*t*#r-+*tr*911fr r6+:ii,'ffi
rUc has been arowe'dl;l.;';;;;"0. giriJre-muer zs,'eoor'6id n6quest tor Additional lnrormation'
At rhe rime, the RAr ill";#;;;il", r"gi,ii"il ;'.0 **pi"t"r1 n"."i.ury. rt remains reasonabre'
reoitimate and compreterynecessarvin^ori"iil;'r'ffiJilrn srri" "iurah
regutatory authority' whether
ne-grect, inadvertent oveisignr or stritegic ;;"t#pt-t"r autnority]t'ni's ruc iair,re iq-a-n outrage' warranting
draconian response;i;;;il["t or stite il;il; oi conrro_tov-er *rt"" or the us detegated to state
administrarion. eitn#rij;;;i;;.p""0."lri"'rirvi"ttn" zoor n-erut.otoing to a stipulated schedule' or
rUG shourd suspeniloplrations. rni, poiiiiill(ir"sffi;;i";;;ffi;iieq'uest for'a hearins, rr,hich !
herebY submit' !-. . ^r .L,
Rapidand regretabry cursory review or.the statement or Basis arfords considerabre comrort w*h the
peimit,s comprehen!;;;; id*retul inadequacy of process cell liner technology' relative to
,best-avairabre'lnerJiiw]' i;il;i1h, q'd;:ffiqlt-;'!:"'i-1*ai;ln the earlv 80s when the cells were
built, though rn"V *"r"Y. in"'m""'r"ti"at ringe ol common pr"iil'' nt inOi""r6O in my previous review of
tiner design, "on.rrrlton "lio
on'oC t", ill'['n't*ii t'uititt"o-*itn si"tt' club Glen canyon Group
comments in mid-zo-oi, it is my consio-elei-v;;; il "nrironrint"t'rechnorogy
professionar that the
careress nature or ru-ctonitruction pror"irrJr, iarticrrarrv.cr,;i;;';i irooing ihit cover soir materiats'-
which were anytning-f,ui;r"tfi as "uio"nl-"iffioiogrp1.
tuiin'ouiing c6nstrucrion and included in
rUC and consurtanJc#irr.,;"lort. in tn" onbi""ori --- oooireo ari orinese riners to rairure before
thev were .r"n "o,n-pi",'"-ol'Fenerration. "i i"i"ii""ry weax tinei'memuranes by angurar rocks was
inevitabre, and has i'5tl[v;;tttq.'' dffi$i;;i?;i?9: t1"sn i""'i or virvins size and orientation'
rr is encouraging roir-.r-i#r iope,no rii"ii.rrechnorogy "r;;;;;h'rg ruc, ano especiallythat DRc is
imoosing .*u,rn""l';iii#-or-rn"*rt rin"" ", in" wnir"'l',l*" r,,rirrluiiiltv. The sooner these cells.are
shut down ano ,rpra'clo-riin reounaant,i"t"Ti.,riv ois'ri1eo' to*it"t"o' liLld-tested' and QA/QC
documented riner r;;.;;;;"mpreme.nt#;;;t*sdn"_1'a1gorlii". and monitorins svstems' the better'
For this raci,ty. njr" il..i;i; ;;: ,rro*i"ni'rrr[eitremerv .gsi"ttir" and highly contaminated process
lluids to circulate uno ,"rio" in these.poroui celts, is unconscioiable. continued use of these
anachronistic cers ,rrt rtop as quickrv jJ"pJJrir;r", ;;;il;;i';'il;;siure'; notwithstanding' This' too' is
;;;;; i.;;rquestins a hearins'
As a point or inquiry, we wonder what and when wit be the,impricarions or recent State imprementation of
,swAp,,,me sourJJ ilf,rili'n."r.rlr*t ".i Fioi"ttion" pr"n p'it"nt to sale Drinking water Act
Amendments ot rgg6, and subseqr11r5"n,l'iili^1; iJi"h CJo'' G " member of the swAP Advisory
committee in 1g9g-99, r became aware otl'n".orpren"nsive-n-aiir" oiswnP's simultaneous protection
ofwellheads,surlacewaterandemerginggroundwater.n:::I'obvioustothisobserverthatthereare
inevitable elfects ol past IUC ground.wateriontamination' most ol which could easily escape (and
orobabrv has done) rhe rather pathetic. r.r.ir;l;;';niiii il.iritv hererorore. For the sake of neighboring
communities and isorat"i'.riii" p"prrution., "."*Lr
as for area wirdrire, ar that can be done to answer
the ouestion, ,,what can go wrong?,ano to-sLi't;it ih"t these raurts are investigated, characterized and
ffiHr:# ;"it niit t" r rv,
-sho
u ld be done without de lay'
Ail tord, congraturations are due to Execurive Direcror Nierson, DBC and particurarly to you, Mr' Morton' for
the intent and etlect ol this permit. .rt is a vl-ilposiii'9.tt"n' desperately needed for a long' long time'
Now it,s time to rorroi'tniJufi, iiirrv "no rJrffiirv, w" nope tnat youwill indulge further comments as
:B:l[,,#*"'""il#".,"X'L3H#*IiSkI"H;**';l**Xi",ffi3':'""m"',?f.andsupporting
inrormarion access. il; Dhd;bsireb p;;;iriiiloi x"ioo.rrents n6ie has been extremelv helpful'
Thank you sincerery roiine glit.orp.t'rn"r'"",'rd;;;ibi;Lttort "no
crear sense or DRc mission that
tn"." .io"rrents rePresent'
lvan Weber, PrinciPal/Owner
i^,;;; Ur;irnabilitY cons ultins
953 lst Avenue
salt Lake city, utah 84103
(801 )3s5-680g I tsoifiii]aaal cellular
ivanbwebersustain'com --rffi;:;;";i uiiain.com (under construction)
CC: "Sarah Fields'<sarahmfields@earthlink'neb
.t
Attachment 2
Revised IQ SPreadsheet
To RePlace
December 1,2004 DRC
Statement of Basis, Attachment 7
DRC Spreadsheet 1 lE2KdSum.xls, tabsheet Mttals
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DOEIEISLO35SD, Stdo of Utd Conmcoh
Ttsdr ),ou fq rbo opporiunity!o Pryvi&.cry* ou r rignif.r{r J:ct fu
tho Statc of Ur& r-rJne of 6o MoibUranium Milrla ad Triry!, Sl* I-*et q*
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aualiw gtrnder&. ffrwori$"rrA * omtn-c.O inurcdiatcly, md fodcd ttrdils
;ffii U. *rO, t"-c.-ptorc tho wodr u promptly u posriblo Now L tto tinc 19 t6t-
to Eovc the TdlinilPtlc.
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Scicnocr CoE.ittlo "l*;arLrd tbo sritiel impo-nigc of that ri* rvrtto il rovio'od
rcoodiaio fhl for tli ,ito.-FOr.rt f,oodnS i! thc Sf Gcorgc md Srrb 6'lo:e rt4iortl
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FEB-I5-2005 TIJE IO:35 AII GOVETRS OFFICE FAI( NO '0"#O'
of Utab alco dclnonsmcd tllc srrifr md irnmcosc foroo of novtaS *ttq} tc !1at
Wo crnaot Bfiord to assuno rbo risk! sstooidDd with hrvfu-urArgn tdlingF tE$m
rlonr rivcrbuka.rd;;;ftb. CoUna" i,ivcbelow Mo;b. ftod rcicocc lrd Sood
scn; rcll.u tbc tritirr8p mutbcmovod'
Fgrtcruorg moving t[o unnium tailhp to e-oostrustod ropodfory-rt KlmdiLc
Fldr croar3r thc rnlnc"r 11fr*t srd lbc mogt;torblc cxpcodltut of ftndr O plvr
lh, pott -. ru. r.piiiil;r. ii rc-aiu Plar bar brcad nmof ry {td"{: ddq
rnd tood agoosia, ;d___Od bcrl reridc,atl I!-.P"rr"dm rlqS S ql*ioqrdl lim
,rd;;Cd;,uii* 1,,il nq."t"rtuc tailiigr fioo t5eba1b of tbc Colq1do
Nvor would.Urio; tb; rirl ofrivcr unEercuttiry-rcmov_o tbo rorrca-of Smudwrtcr
s@tsnillrdou, and "f,r.o tUr trc nccdcd for refrcot of contrmiortim rt lhc rivs'r
odtp.
Addltionsl, dttlilod comnmtr on tbo DEIS wi[ bG rutmisorltl fu q+
D.p"b;;iil"'ii*rt*tA QuElity m bsbrlf of tbc Stata trtc loot frrwrd b
worting wirh pu to IrSii.tc tUo-t rror.f of rho last of tb| rrsiirrn mill qitinp p{a m
tu bo}3 of tbc Codsdo Rivs. fbrd( )ou fc prr oonsidantion of tb6 armtid
wo*,ffktuvt*
P. 03
JONM.
GARY HERBERT
Lieutenan Govemor
D
HUNTSMAN,
Govemor
March 8,2005
CERTIFIEDMAIL
RETI.'RNED RECEIPT REOUESTED
Tye Rogers
Vice President of Compliance and Permitting
Envirocare of Utah, Inc.
605 North 5600 West
SaltLakeCity, UT 84116
SUBJECT: Public Participation Summary for the IUC White Mesa Draft Ground Water Discharge Permit No.' ucw370004
Dear Mr. Rogers:
r
The Division of Radiation Control (DRC) received your comments concerning the Draft Ground Water Discharge
Permit (Permit), UGW370004, for the International Uranium (USA) Corporation facility in a letter dated January 7,
2004. The DRC response to your comments is included in the Public Participation Summary, which is.attached to
this letter.
If you have any questions concerning DRC responses to your comments please contact Loren Morton or Dean
Henderson at [phone] with any questions.
ruJ.erfrddk. Director
on ofRadiation Control
DLF/DCH:dh
Attachment: Public Participation Summary for the IUC White Mesa Draft Ground Water Discharge Permit No.
uGw370004
F/../coverletterEc.doc
168 North 1950 West. FO Box 144850. Salt Lake City, UT 841 l4-4850. phone [phone]. fax (801) 533,f@7
T.D.D. (801) 5364414. www.deq.umh.gov
JR.
State of Utah
Department of
Environmental Quality
Dianne R. Nielson, Ph.D.
Executive Director
DIVISION OF RADIATION
CONTROL
Dane L. Finerfrock
Director
r, ii..-.
o
mmaryPublic Participation Su
March 7,2005
Public Participation Summary
For the
IUC White Mesa
Draft Groundwater Discharge Permit
No. UGW370004
Introduction
The purpose of this document is to summarize public comments received by the Utah Division of
Radiation Control (DRC) regarding the International Uranium (USA) Corporation (hereafter
IUC) uranium mill facility at White Mesa, Utah. Three sets of comments were received from the
public during the comment period that ended on Friday, January 7 ,2005. Each of these
comments is listed below in italics, followed by a DRC response.
Comments From Envirocare of Utah.Inc. (see Attachment 1)
1. Condition LA Groundwater Classiftcation
The Permit lists two data sets for the purpose of classifying groundwater at the IUC
facility. Wat is the purpose of providing both data sets?
DRC Response: Substantive Comment. They were presented to disclose the differences
in the split sampling total dissolved solids (TDS) data (see Statement of Basis (SOB), p.
5). As explained in the SOB, the Executive Secretary used the lowest values from either
set of data to classify shallow groundwater at the site (ibid). This approach is protective
of the groundwater quality resource.
2. Table 2.
Based on the information provided in Table 2, the only radiologic parameter the
Permittee is required to analyze is Gross Alpha. Envirocare is required to analyze for
Radium-226, Radium-228, Thorium-23}, and Thorium-232 at is 11e.(2) disposal cell.
UAC R313-6-2.1 identifies a combined Groundwater Quality Standardfor Radium 226 +
228 at 5 uCi/L (sic). Will these parameters also be evaluated at the IUC facility?
DRC Response: Substantive Comment. We acknowledge that significant concentrations
of radium and thorium are found in the tailings material. Elevated concentration of total
radium and thorium-230 are also found in tailings wastewaters at levels that about 188
and 1,208 times their respective State Ground Water Quality Standards (GWQS, see
SOB, Table 5). We recognize that the DRC process used to select the GWPL parameters
focused on contaminants that had tailings wastewater concentrations that were equal to or
greater than 50-times their respective GWQS (SOB, p. 14). It is important to note that
this selection process also relied on a review of each contaminant's soil-water
partitioning (IQ) coefficient, as defined by the lowest available value found in the
technical literature (SOB, p. 15). Additional review shows that radium was omitted from
consideration in the IQ table found in Attachment 7 of the SOB. This oversight has been
corrected, and the revised table is found below in Attachment2 of this document. From
this information, the lowest literature I(6 values for radium and thorium are 57 and 100
I/Kg, respectively. These values indicate that radium and thorium tend to partition to
soils and rock and not travel far in groundwater environments. As a result, other
contaminants are expected to be the leading edge of a contaminant plume, if it occurs,
Page I
Public Participation Su-ly
March 7,2OO5
and thereby arrive at nearby monitoring wells much earlier than radium and thorium.
This finding reinforces the original decision not to include them in the Permit as GWPL
parameters.
The situation at Envirocare is different, in that a high chloride environment exists in the
shallow groundwater there. Also, radium has been found to be mobile in saline
groundwater environments, as illustrated by the accumulation of radium pipe scale
deposits in oil field pipelines in Texas. Under these circumstances radium should be
considered as an important groundwater monitoring parameter.
This decision about not using radium as an indicator parameter at the IUC facility can be
changed in the future. If at sometime, the Executive Secretary discovers the tailings cells
have released contaminants to the shallow groundwater system, the Permit can be re-
opened and additional groundwater contaminants required for monitoring and GWPL
established pursuant to Part IV.N.3.
3. Condition 1.D.1 DMT Design Standardsfor Existing Tailings Cells
Has an evaluation been performed to demonstrate liner compatibility of the Flexibte
Membrane Liner with the 11e.(2) materials being disposed of in the cells?
DRC Response: Substantive Comment. With respect to existing IUC Tailings Cells 1,2,
and 3 this evaluation has not been made. Evaluations of this kind are mandated by the
NRC regulations found in l0 CFR 40, Appendix A, Criterion 58. Unfortunately, these
NRC rules were not established until 1987, long after the IUC tailings cells were
constructed.
Under the State Ground Water Quality Protection (GWQP) Rules, discharge
minimization technology (DIvfT) has to consider existing process design capability IUAC
R317-6-6.4(C)1. As explained in the SOB, the Executive Secretary decided to focus on
operational changes, and design and construction improvements for the cover system,
which has yet to be built at Tailings Cells 1,2, and 3. This is appropriate in that these
tailings cells have been in existence for more than 20 years and their liners long covered
by many tons of tailings.
For Tailings Cell 4A, the Permit requires it to be re-constructed in order to meet BAT
mandates (Parts I.H.14 and 15). During design review and approval for this new
construction, the DRC will evaluate this issue to ensure that the BAT requirements of the
State GWQP Rules are met [see UAC R3l7-6-6.4(A)].
4. ConditionI.D.3.b.l. Discharge MinimizationTechnology Standard
The average wastewater head in the slimes drain access pipe is to be "as low as
reasonably achievable" in each tailings disposal cell. How will state inspectors make a
determination on this citeia?
DRC Response: Substantive Comment. The exact criteria will be worked out during the
Executive Secretary review and approval process for the DMT Monitoring Plan (Part
I.H.l3). It is anticipated that this criteria will be established by the Executive Secretary
after IUC provides information on historic water levels at this access pipe, explains what
kind of pumping and control equipment has and is currently used, and evaluates what
type of pumping and control technology is available and can be readily deployed. After
Page2
o
SummaryPublic Participation
March 7,2005
approval of this plan, compliance criteria can be determined for IUC to operate by, and
DRC staff to inspect against.
5. Condition 1.D.3.c. Roberts Pond
An as-built is required as Condition H.H.l8 of this GWQDP. How is this pond
constructed? For consistency with ponds used at Envirocare, this wastewater pond
should have a minimum of two FMLs and a leak detection system. In addition, what
system is in place to confirm compliance with the two foot freeboard required in this
condition?
DRC Response: Substantive Comment. As for a compliance confirmation system, that is
to be proposed by IUC and approved at a future date by the Executive Secretary during
development of the DMT Monitoring Plan required under Part I.H.l3 of the Permit.
Regarding the requirements for double flexible membrane liner (FML) and leak detection
systems, this pond has existed at the facility since the early 1980's and was clearly an
existing facility under the GWQP rules (UAC R317-6-1.14), which were not promulgated
until 1989. IUC's decision to replace the liner in2002 with another single membrane
constitutes modification of the existing pond, and therefore should have been done under
the authority of a Permit (ibid.). Unfortunately, IUC did not notify the DRC of this
construction activity until 2004, well after it was re-lined (SOB, p. 30). Upon receipt of
this information the Executive Secretary determined that it was more important secure a
Permit for the tailings cells. Several other factors were considered to support the decision
to use enforcement discretion and consider the pond as an existing facility, as explained
in the SOB (pp. 29-30), namely that it is small in size (0.4 acres), is used for intermittent
wastewater storage, and that the existing Reclamation Plan required under the
Radioactive Materials License (License) mandates that any contaminated subsoils
beneath the liner be excavated and moved to disposal in the tailings cells at the time of
facility reclamation (ibid.). No change will be made to the IUC Permit
6. Condition 1.D.3.d. Feedstock Storage Area
The introductory paragraphs of this GWQDP state that the permit is for a uranium
milling and tailings disposal facility, not a storage facility. How is the feedstock area
constructed? How long can stored materials remain in this area? Is there a stormwater
management planfor water that accumulates in this area? Is there a DMT criteiafor
this area? Except in the dig (sic) cell, open air storage is prohibited at Envirocare.
DRC ResLonse: Substantive Comments. Again, the IUC facility, including the open air
feedstock storage arca at the eastern margin of the mill site, pre-existed the GWQP rules,
and is consequently an existing facility under UAC R317-6-1.14. To avoid proliferation
of possible contamination from such storage, the Permit limited this activity to only the
historic area defined by the survey coordinates in Table 4. As for construction details,
this area is underlined by a compacted native soil surface, however, no reliable
information is available regarding the permeability of the compacted soils in this area.
Storage in containers is also allowed elsewhere at the facility under the Permit Part
I.D.3(d). No time limits are stipulated in the Permit for any feedstock storage. However,
performance criteria are mandated for this containeized storage, in that the containers
must be maintained closed and water-tight (ibid.).
Page3
o
mmaryPublic Participation Su
March 7,2005
As for a stormwater management plan, Part I.H.l7 requires that IUC submit one and
secure Executive Secretary approval. Stormwater that accumulates on the historic
feedstock pad drains to Tailings Cell l, along with other mill site stormwater. The only
DMT performance criteria for this area, is that all open-air feedstock storage be restricted
to only the historic pad location, as defined by Table 4 of the Permit tPart I.D.3(d)1, as a
means of preventing proliferation of possible contamination. No change will be made to
the IUC Permit.
7. Condition 1.8.2. Groundwater Head Monitoring
Total Dissolved Solids (7|DS) rangefrom 1,276 to 5,200 mg/L. Will the groundwater
elevations be adjusted to a freshwater equivalent head to account for an almost S-fold
variation in salinity? In addition, Envirocare is required to conduct monthly
groundwater elevations due to a groundwater mound, much like the mound beneath the
IUC facility. For consistency, groundwater elevations, freshwater correction, contour
maps, etc., should be performed on a monthly basis.
DRC Response: Substantive Comment. The TDS or salinity contrast between
groundwater in the shallow aquifer and the source of the groundwater mound at the IUC
facility is expected to be relatively low. The range of the TDS in IUC's shallow
groundwater is as stated, and when averaged across all monitoring wells at the facility the
combined average is about 3,000 mg/I. As a result, we anticipate the contrast between
this average TDS and the average water quality expected in the eastem wildlife ponds,
which recharge the IUC groundwater mound (see SOB, p. 4), is closer to about 3-fold.
Higher TDS contrasts are expected in,stormwater induced groundwater mounds at
Envirocare, in that natural TDS found in the shallow aquifer ranges from 20,000 to over
70,000, with an average of more than 40,000 mg/I.
As for the suggested need for monthly groundwater head monitoring at IUC, the
Executive Secretary agrees it is necessary in those wells where transient conditions exist
or could exist. Such is the case in all the IUC wells related to the chloroform
investigation and pump and treat system, where an appropriate frequency will be set in
the future as a part of an approved Groundwater Corrective Action Plan. That frequency
and all other necessary monitoring requirements will also be exposed to a public
comment period sometime in the future. For purposes of this Permit, the baseline
groundwater head monitoring frequency will continue as quarterly (Part 1.8.2). If non-
compliance with GWPLs is detected, more frequent head monitoring will be conducted in
accordance with the requirements of Part I.G.l.
8. condition 1.H.1. Installation of New Groundwater Monitoring wells
How were the locations of the new monitoring wells determined? Monitoring wells at
Envirocare were located using a computer model to demonstrate that should a release
occur, the groundwater monitoring well network would detect that release. Will a well
spacing evaluation be required by the Permittee?
DRC Response: Substantive Comment. The number and location of wells was arrived at
after consideration of site hydrogeologic conditions and after negotiation with IUC.
Unique hydrogeologic conditions exist at the White Mesa in that the shallow aquifer is a
perched system found about 100 feet below the tailings cells, and located in a
Page 4
Public Participation Summary
March 7,2005
consolidated geologic formation deposited by an ancient fluvial environment. In contrast
the aquifer at Envirocare is found l5 feet below the disposal cell in unconsolidated lake
deposited sediments.
Despite these differences new wells are to be added at the IUC facility, including two
new wells south of Tailings Cell I (NNV-24 and MW-28) and the three new wells south
of Tailings Cell2 (MW-29, MW-30, and MW-31). These were spaced in a similar
manner as the three existing wells found south of Tailings Cell 3 (see SOB, Attachment
11). Because there is a strong East-West groundwater flow direction near Cell 1,
additional wells were required upgradient (MW-27) and downgradient (N,IW-24) on the
Northeast and Southwest corners respectively. For Cell2, two upgradient wells MW-26
and MW-32 (formerly TW4-15 and TW4-17) already existed and were included under
the Permit. A new downgradient well for both Cells 2 and 3 will also be installed off the
Southwest corner of Cell 3 (IVIW-23). For Tailings Cell 3, it is anticipated that the three
new wells proposed on the nofthern dike will also serve as upgradient wells. The existing
Cell 3 downgradient wells, MW-5,Ivtw-l1, and MW-12 have been in place on the south
dike since October, 1982 or earlier. A new upgradient well will also be installed off the
Northeast corner of Cell 4A (MW-25).
No computer modeling was done by IUC to justify the spacing intervals selected. Such
models estimate the required well spacing interval from several hydrogeologic
assumptions, including but not limited to: local groundwater velocity and flow
directions, existence of isotropic and homogeneous aquifer conditions (including aquifer
dispersivity and permeability), and a presumed minimum footprint or size of a leak from
the embankment. The Executive Secretary acknowledges that such models are useful
tools to determine the minimum well spacing for a facility, but believes it premature to
perform such modeling at the IUC facility until after local hydrogeologic conditions are
better established in the immediate vicinity of the tailings cells. This evaluation will need
to consider several factors, including, but not limited to local:
l) Elevation and configuration of the upper geologic contact of the Brushy Basin
Member of the Morrison Formation, which perches the shallow groundwater system.
2) Distribution and spatial trends of shallow aquifer permeability that could provide
preferred groundwater flow paths.
3) Distribution of shallow groundwater head and flow directions.
4) Distribution and spatial trends of groundwater quality in the shallow aquifer.
For this reason, the Permit requires IUC to submit a Revised Hydrogeologic Report for
Executive Secretary approval (see Part 1.H.2). In the event that the Executive Secretary
determines that additional information is needed, including additional borings,
monitoring wells, or any other pertinent data needed to characterize the local
groundwater system, IUC will be requested to provide this information (SOB , p.23). lf
at that point the Executive Secretary determines the characterization is complete, a well
spacing model may be required to evaluate the need for additional wells. If additional
monitoring wells are needed, and after the Executive Secretary has determined the
proposed monitoring well network is satisfactory, the Permit can be re-opened and these
new wells established as point-of-compliance wells under Part IV.N.3 of the Permit.
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9. Condition 1.H.11. Inftltration and Contamination Transport Modeling Work Plan and
Report.
This condition requires an infiltration and contaminant transport model. Since the
proposed Permit does not have a cover design, it is assumed that a design will come from
the required modeling. For consistency with Envirocare, even though the cover will need
to incorporate an FML to prevent the bathtub effect (See Condition I.D.6.b), the
Permittee should not be able to take credit for either the upper or lower FMLs in the
modeling effort. In addition, it is unclear if the Modeling Work Plan is part of the Report
or a separate submittal which will require Executive Secretary approval.
To evaluate the assumptionfound in the model, will the Permittee be required to prepare
a Post-Model Audit Plan?
DRC Response: Substantive Comment. Because the tailings cell cover design has
already been approved by the NRC as a part of the Reclamation Plan under the License
(SOB, p. 35), the purpose of the modeling report is to evaluate if any design changes are
needed to ensure the tailings cells meet the long-term performance standards set in Part
I.D.6 of the Permit.
As for the need for a FML in the cover system to prevent a bathtub effect, such a
membrane would appear to be in order; but the Executive Secretary will await the
outcome of the modeling report before making any decision in this matter. With regards
to any credit given to the longterm performance of FMLs in the infiltration and transport
modeling report, the Executive Secretary will take this suggestion under advisement.
However, it is important to note that the NRC policy referred to applies only to Low-' kvel Radioactive Waste facilities (see 10 CFR Pat 6l), and not to uranium mill
operations. In fact, no performance assessment modeling is required by NRC for any ,
I le.(2) facility (see 10 CFR 40, Appendix A). Instead, at fUC, and other uranium mill
operations in Utah, this performance assessment is mandated as a means to establish BAT
or DMT under the State GWQP rules. Precedence has been set at other Utah uranium
mill operations that utilize FMLs as a means to meet the BAT design standards. One
example is Plateau Resources' facility near Ticaboo, where a new tailings cell facility
was proposed with double EMLs and leak detection systems were as a means to meet the
BAT design standard during the operational phase of the project (see 12128198 DRC
Draft GWQD Permit No. UGWI70003 and related SOB [pp. 5-7] for Plateau Resources).
Consistency with the Envirocare 1le.(2) facility has been provided in the IUC Permit in
that a 200 year performance standard has been established (Part I.D.6), and an infiltration
and contaminant transport performance model required.
As stipulated in the Permit, the work plan and the modeling report are two separate
documents, with two separate 180-day deadlines mandated (Part I.H.l1). For the first
deadline, IUC is given 180 days after issuance of the Permit to prepare and submit a work
plan for the performance modeling for Executive Secretary approval. Thereafter, when
the Executive Secretary approves this work plan, a second 180-day deadline is set for
IUC to complete the modeling effort, write a report, and submit it for Executive Secretary
approval.
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As for any post-model audit plan, no specific compliance schedule requirement is
currently mandated in the Permit. However, existing language at the end of Part I.H.11
allows the Executive Secretary to require one if found necessary, as follows:
"...IJpon Executive Secretary approval of the final infiltration and contaminant
transport report, the Reclamation PIan may be modified to accommodate
necessary changes to protect public health and the environment."
The changes to the Reclamation Plan could include not only cover design and
construction specifications, put also plans to monitor the tailings cover system and/or
groundwater quality to confirm the modeling assumptions.
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Comments from Ms. Sarah Fields (see Attachment l)
l. Drafi Groundwater Discharge Permit (Permit), page 1:...
The facility is also (sic) includes IUC land in Sections 21, 22, 27, Township 37 South,
Range 22 East, that are up-gradient from the mill and tailings cells. It also includes
down-gradient land in Sections 4, 5,6, 8,9, and 16, Township 38 South, Range 22 East,
Salt Lake Base (sic) and Meridian, San Juan County, Utah. An explicit "legal"
description of the mill property must be included in the permit.
DRC Response: Nonsubstantive Comment. The Permit's description list those sections
currently disturbed by construction and occupied by the mill site and tailings disposal
cells. While it is true that IUC owns or controls other nearby tracts of land, the Executive
Secretary will not authorize or imply any approval for disposal activities outside the
bounds of lands currently disturbed.
2. Part I, page 8: D. Discharge Minimization Technology Standard - ...
This section is vague regarding the actual design and construction information that the
Division of Radiation Control (DRC) is relying on. There is no mention of the December
3l, 1998 Knight Piesold Report on the Seepage Flux from Tailings Cell 3 Liner submitted
to the DRC by the Permittee. There is no mention of the numerous questions that the
DRC had about the actual design and construction of Cell 3, as expressed in the
(apparently) unanswered November 28, 2001, DRC Request for Additional Information
(RAr).
The DRC must not rely on cell design and construction information that it has already
found questionable. This section must include more detailed cell design and construction
date (sic). This section must also be amended based on the Permittee's reply to the
November 28, 2001, MI which was part of the Permit process.
DRC Response: Substantive Comments. The Permit references all design and
construction information that has been made available to DRC. We acknowledge that
DRC has had major concerns about the infiltration modeling found in the December 31,
1998 Knight-Piesold Report. DRC omission of any discussion in the SOB regarding this
modeling report was intentional for the following reasons:
l) The report is a infiltration and seepage simulation of the open cell conditions for
Tailings Cell 3 only. It does not represent infiltration or seepage conditions for Cell I
or Cell 4A which have different engineering design and construction characteristics.
Further, the report does not simulate contaminant transport which is essential to an
assessment of tailings system performance. Simply said the Knight-Piesold report is
incomplete.
2) Any open cell infiltration modeling would be based on a series of assumptions, many
of which would be difficult to verify given the age of the construction and the lack of
ability to sample and confirm certain construction details that are now covered by
tailings. As a result, the model predictions would be subjective to interpretation.
Direct and discrete groundwater monitoring of each disposal cell is a much more
effective means to determine if the tailings system has or will discharge contaminants
to groundwater.
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3) Should groundwater monitoring find that the tailing cells have leaked, active means
can be taken to intercept and control this leakage thru various groundwater
remediation technologies that are available.
4) Design and construction of an improved cover system is the most practical means of
preventing and controlling possible future tailings cell leakage. It is not practical, nor
feasible to require IUC to move the existing tailings wastes into new tailings cells.
As a result, neither the Permit or the SOB relied in any way upon the Knight-Piesold
report referenced. Instead, the Permit outlined a new path of activities to provide an
objective evaluation of the future cover system design, and opportunities for
improvement to said design in order that local groundwater resources be protected.
3. Part I, page 1: D.2(d) Feedstock Storage Area - ...
There is no indication in the Permit as to how the Permittee will monitor the
groundwater underneath and in the vicinity of the Feedstock Storage Area to guarantee
that the materials stored there will not contaminate ground and surface watei. The
feedstock is sometimes storedfor years out in the opin where it is iubject to dispersion
and leaching by wind andwater, and surface water.
This must be corrected.
DRC Response: Substantive Comments. The IUC facility, including the open air
feedstock storage area at the eastern margin of the mill sitl, pre-exisild the GWep rules,
and is consequently an existing facility under UAC R317 -6-1.14. As a result, ruC is held
to a DI\IT standard instead of the more rigorous BAT standard [see UAC R317-6-6.a(c)].
In addition, the facility reclamation requirements (see Part I.D.7) would require
reclamation of the Feedstock Storage Area. DRC will evaluate the Reclamation plan at
the time of the next License renewal scheduled on or around March, 2007. For other
relevant details, see the DRC response to Envirocare Comment No. 6, above.
4. Part I, page 20: G. Out of Compliance Status, 4.(e) - ...
The DRC does not define "feasible." Doesfeasibility include economicfeasibitity? Who
decides if a ground water corrective action plan is "unfeasible', ?
There is no mention of the standards that must be met by the Permittee when proposing
alternative concentration limits (ACLs). Are the standards for establishing ACLi
outlined in 10 C.F.R. Part 40, Appendix A, applicable here? What criteia will the
Executive use in reviewing applications for the establishment of ACLs?
The term "feasible" must be defined. The standards for the establishment of ACLs must
be spelled out in the Permit.
There is no mention in the Permit of any necessity for the Permittee to increase the
reclamation surety to cover ground water remediation when the Permittee is out of
compliance. NRC and State regulations require a surety to cover the costs of
reclamation, including any ground water remediation. This requirement must be included
in the permit.
DRC Response: Substantive Comments. The Permit Part 1.G.4.(e) corresponds to UAC
R3l7-6-6.17(AX5), in which the term "infeasible" is used. DMT is implemented instead
of BAT because the IUC facility pre-existed the GWQP rules (UAC njtZ-O-t.t4). In
addition, Part 1.G.4(e) of the Permit applies to DMT and not groundwater corrective
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action. The Executive Sectary decides on feasibility issues, which could include
economic feasibility issues.
As for ACLs, these are approved only by the Utah Water Quality Board (Board) as per
UAC R317-6-6.15 (A) thru (G). The NRC ACL process is not applicable. In the State
ACL process the Board considers factors, including but not limited to protection of
human health and the environment, permanent effect, cost effectiveness, etc. For details
refer to R317-6-6.15(G). Under the State regulatory process, Permits are issued first with
their respective Ground Water Compliance Limits (GWCL) established. Then if the
GWCLs are exceeded the Executive Secretary initiates a compliance action against the
permittee. In this process an ACL may be considered, but it is only the Board that can
approve it.
The reclamation surety to cover ground water remediation is not an issue of a Ground
Water Discharge Permit, but instead is managed under the Radioactive Materials License.
At this point it is premature to conclude if non-caused pollution has occurred at this site.
This is one of the reasons for the Background Groundwater Monitoring Report required
in Part I.H.3 & 4. If later we determine that groundwater pollution has occurred,
Executive Sectary well take appropriate action to protect the groundwater resources.
This would include development of a groundwater corective action plan for the facility
under the auspices of UAC R317-6-F-6.15.
5. Part I, page 20: H. Compliance Schedule Requirements ...- Nowhere in the extensive list of Compliance Schedule Requirements is there any
" requirement for the Permittee to respond to the 8-page November 28, 2001, DRC Request
for Additional Information, regarding December 31, 1998, Knight Piesold Report on
Seepage Fluxfrom Tailings Cell 3 Liner, Wite Mesa Mill.
Has the Permittee responded to this RAI? If not, has the DRC notified the Permittee that
they don't have to respond?
It was definitely my understanding, based on correspondence with the DRC, that a
schedule for the Permittee's long-delayed response to the 2001 request would be part of
the Permit requiremenfs. Is this no longer the case? If so, why?
There must be afull explanation of this situation.
In addition, the DRC must review all previous requests for information and make a
determination that they have all been fully responded to or a schedule for response has
been established in the context of the Permit.
DRC Response: Substantive Comments. See DRC response given for, Comments from
Ms. Sarah Fields, Comment 2,pages 8 and 9 of this Public Participation Summary.
6. There is no discussion in the Permit of other types of contamination to ground and
surface water by activities on the land owned by the Permittee at the facility. The
Permittee currently allows cattl.e to graze on some of the mill property. These cattle can
and do access Ruin Spring. Ruin Spring is on U.S. Department of Inteior, Bureau of
Land Management, property that abuts the mill property. The Ruin Sping area is
trampled and contaminated by wastes from the cattle. The spill-over from a tank below
the spring (which has not been cleaned in years) feeds a desert riparian area. The spring
is used by wildlift.
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Does the Permittee have any responsibility for the ruin of Ruin Spring by the cattle that
graze on its millfacility propefi?
DRC Response: Nonsubstantive Comments. ruC owns neither the cattle or Ruin Spring.
Hence they have no responsibility for damage the cattle may pose to the spring of its
riparian habitat. Possible contamination to Ruin Springs from cattle wastes is not a
Permit issue. Concerns in this regard need to be directed to the cattle owners and/or the
Bureau of Land Management.
7. Pafi I, page 12: D.5. Definition of lIe.(2) Waste - ...
There is absolutely no statutory or regulatory basis for the State of Utah to authorize the
processing of "alternate feed material" at the IUC mill. There is no statutory or
regulatory basis for the State of Utah to include the "process related wastes and waste
streams" from the processing of materials other than natural ore ("alternate feed
material") in the statutory and regulatory definition of 11e.(2) byproduct material.
The GroundWater Discharge Permit must not authorize the processing of "alternate
feed material." The Ground Water Discharge Permit must not authorize the disposal of
waste streams from the processing of "alternate feed material" as l1e.(2) byproduct
material. Such authorization is not permitted by ony statute or regulation.
Any request by the Permittee for such authorization must be denied.
The following (including Attachment A) are comments that support these statements.
. A. The March 7, 2003, NRC letter from Paul H. Lohaus to William J. Sinclair is not
an NRC legal opinion and has no legal ffict. Seel0 C.F.R.Part 40, \ec.40.6,
Int e rpret citions, which stat e s :
Except as specifically authorized by the Commission in writing, no interpretation
of the meaning of the regulations in this part by any fficer or employee of the
Commission other than awritten interpretation by the General Counsel will be
recognized to be binding upon the Commission.
B. There is no legal basis under and Atomic Energy Act of 1954 (AEA), as amended,
to consider so called "alternate feed material" and various debris accompanying
such material (at times constituting 40Vo of the "alternate feed mateial") as
"ore," as the term "ore" is used in the definition of 11e.(2) byproduct material.
The Permit must not include any statement that would imply processing offeed
material other than natural ore ("alternate feed material" ) is the same as the
processing of "any ore," and that the debris, tailings, or wastes from such
processing constitute 1 I e.(2) byproduct material.
The State of Utah cannot and must not include any reference to the letter from the
March 7,2003, NRC in the Permit.
See Attachment A hereto for afull discussion and comments on this matter.
C. The Permit does not define so-called "alternate feed material." There is no
indication in the Permit that "alternate feed material" is made up of processing
wastes from other mineral processing operations that are commingled with
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contaminated debris and soils. Why is there no definition of "alternate feedmaterial" in the Permit.
D. The State of Utah must only rely on the common, histoical meaning of the word
"ore."
What does "ore" mean? The word, or term, "ore," as defined in several sources:o "Qvs-s naturally occuring solid materialfromwhich metal or other
valuabe minerals may be extracted." [Illustrated Oxford Dictionary,
DK Pub. 1998.1
o "Qvs-l native mineral containing a precious or useful metal in such
quantity and in such chemical combination as to make its extraction
profitable. Also applied to minerals minedfor their content of non-
metals." [The Compact Oxford English Dictionary, Second Edition,
Oxford Univ ersity P re s s, 2000, p. I 224 : 9 I 5 -9 I 6. lo "Q7s-s. A natural mineral compound of the elements of which one at
least is a metal. Applied more loosely to all metaliferous rock, though
it contains the metal in afree state, and occasionally to the compounds
of nonmetallic substances, as sulfur ore. . . . Fay b. A mineral of
sfficient value as to quality and quantity that may be minedfor profit.
Fay." [A Dictionary of Mining, Mineral, and Related Terms,
compiled and edited by Paul W. Thrush and Staff of the Bureau of
Mines, U.S. Dept. of Interior, 1968.1
The Oxford English Dictionary points out that the current usage of the word
"ore" goes back several hundred years. A Dictionary of Mining, Mineral, and
Related Terms lists over 65 compound words using the word "ore," such as ore
bin, ore body, ore deposit, ore distict, ore geology, ore grader, ore mineral, ore
reserve, ore Zone. All of these terms incorporate the word "ore" as it relates to
the mining of a native mineral. The term "ore," without explanation, has for
many years been used in millions of instances in thousands of mining, milling,
geological, mineralogical, radiochemical, engineering, environmental, and
regulatory publications. "Ore" like the word "water," is aword of common and
extensive usage with a clear and accepted meaning.
The State of Utah must explain what the statutory and regulatory basis is for
calling wastes from other mineral processing operations "ore." A policy, whether
federal or state, is not a statutory or legal basis.
E. In the past, debris associated with the processing of "alternate feed material" has
been received at the IUC mill. Thousands of tons of such debris have been
disposed of at the mill. IUC was paid to receive and dispose of this material.
Some of the material was apparently washed (i.e., decontaminated), and the wash
water was subsequently processed for its minimal source material content.
The debris that sometimes accompanies natural ore when it is processed at a
licensed uranium or thorium mill has no economic value to the licensee of a
uranium or thorium mill. A mill owner would not pay for or be paid to receive
such debris and, in fact, would pay less for ore contaminated with a lot of debis.
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However, the licensee will be paid to receive and dispose of debris accompanying
"alternate feed material." What is really occurring is that the licensee is getting
paid to directly dispose of contaminated (or decontaminated) low level
radioactive waste.
There are no similarities between the debris associated with ore minedfrom the
ground and debris accompanying wastes and contaminated materials from other
mine ral p ro c e s sing operations.
This debris must have been separatedfrom any mateial that was going to be
processed at the mill prior to shipping to the mill. This could have been easily
accomplished, but was not because it was in the interest of originator of the waste
to get rid of it, and it was in the interest in the mill operator to get paidfor
accepting it.
The State of Utah is in no way obligated to agree with the NRC on this question.
F. The March 7 NRC letter states that "the alternate feed material is regulated in
mass as ore." There is conflict, confusion, and inconsistency in this statement.
Who, exactly, regulates alternate feed material as "ore," and what is the basis of
such regulation?
The AEA does not mention "alternate feed material" and it's regulation. I can
find no NRC or EPA regulations related to the regulation of "alternate feed
material." There are no NRC geneic or site specific environmental impacts
statements related to the regulation of "alternate feed material" Lrrfeed
materials other than natural ore.
How can the NRC regulate alternate feed material "in mass as ore" when the
NRC has no statutory or regulatory jurisdiction over "alternate feed material" or
uranium and thorium "ore" ?
NRC regulation at 10 C.F.R. S 40.13 establishes unimportant quantities of source
material that are outside of regulatory concern under the AEA. NRC regulation
at Section 40.4 states that "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."
Section 40.13(b) says that any "ore" containing source material, whether or not
it meets the definition of source material (i.e., contains uranium and/or thorium of
0.057o by weight) is exempt from regulation under Part 40. Section 40.13(b)
states:
(b) Any person is exempt from the regulations in this part andfrom
the requirements for a license set forth in section 62 of the act to
the extent that such person receives, possesses, uses, or transfers
unrefined and unprocessed ore containing source mateial;
provided, that, except as authorized in a specific license, such
person shall not refine or process such ore
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The NRC has exempted "ore," either source material ore (over .05Vo uranium or
thorium by weight) or non-source material ore (less than .05 Vo uranium and,/or
thorium by weight). The NRC regulates facilities that process and refine "ore,"
under its regulation of 1le.(2) byproduct mateial, but it does not regulate "ore"
as such.
There is nothing in the AEA that authorizes the transfer to the State of utah of
regulatory responsibility over uranium or thoium "ore."
DRC Response: Nonsubstantive Comments. Issues regarding "alternate feed material"
at the IUC facility are regulated by the Radioactive Materials License and not the Ground
Water Di scharge Permit.
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Comments from Mr.Ivan Wetrer (see Attachment 1)
l. May I please echo the critique submitted by Ms. Sarah Fields, and incorporate it by
reference into my own reJlections. In particular:
I share her apprehension, expressed in her questioning of the meaning of "infeasible"
DMT as rationale for IUC submittal of "alternative DMT" to the Executive Secretary of
DRC (page 20 of drafi Permit, 4. "Facility Out of Compliance Status...," e. "Where it is
infeasible to reestablish DMT..." ). This appears to be a loophole of magnitude
proportional to the holes we suspect to exist in the cells liner systems. Please tighten this
allowance by defining terms rigorously, if not by eliminating 4.e altogether.
DRC Response: Substantive Comments. See DRC response to Ms. Sarah Field's
Comment No. 4, above.
2 Also on page 20, under H. "Compliance Schedule Requirements," I join Ms. Fields in
incredulity that IUC has not been allowed not to respond to the November 28,2001 DRC
Requestfor Additional Information. At the time, the RAI was reasonable,legitimate and
completely necessary. It remains reasonable,legitimate and completely necessary in
order to proceed with State of Utah regulatory authority. Whether neglect, inadvertent
oversight or strate7ic contempt for authority, this IUC failure is an outrage, warranting
draconian response at the outset of State assertion of control over waters of the US
delegated to State administration. Either IUC must respond seiously to the 2001 RAI
according to stipulated schedule, or IUC should suspend operations. This point alone is
grounds for aformal request for a hearing, which I hereby submit.
DRC Response: Substantive Comments. See DRC response to Ms. Sarah Field's
Comment No. 2, above.
3. As a point of inquiry, we wonder what and when will be the implications of recent State
Implementation of SWAP," the Source Water Assessment and Protection" Plan, pursuant
to Safe Drinking Water Act Amendments of 1996, and subsequent adaptation into Utah
Code. As a member of the SWAP Advisory Committee in 1998-99, I became aware of the
comprehensive nature of SWAP's simultaneous protection of wellheads, surface water
and emerging ground water. It seems obvious to this observer that there are inevitable
fficts of past IUC groundwater contamination, most of which could easily escape (and
probably has done) the rather pathetic monitoring of the facility heretofore. For the sake
of neighboring communities and isolated native populations, as well as for area wildlifu,
all that can be done to answer the question. "What can go wrong?" and to see to it that
these faults are investigated, characterized and remediated scientifically, should be done
without delay.
DRC Response: Substantive Comments. The Permit addresses ground water compliance
limits, ground water compliance, monitoring, and reporting requirements that DRC will
use to protect Iocal ground water resources. Many significant improvements to the
ground water protection have been made thru the Permit that the Executive Secretary
considers sufficient. These include but not limited to requiring: The installation of
additional monitoring wells at the tailing cells, new hydrogeologic evaluations,
development and application of a ground water monitoring quality assurance plan,
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submittal of a ground water performance assessment model, application of a ground
water performance standard, addition of many new ground water quality monitoring
parameters, improvement in format and content of ground water monitoring reports,
periodic monitoring of ground water seeps and springs of the edge of the mesa, and
reporting thereof, etc.
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References
Envirocare of Utah, Inc., January 7,2005, "Comments on Intemational Uranium Corporation
Proposed Groundwater Quality Discharge Permit (Permit No. UGW370004)", unpublished
company comments, 2 pp.
Utah Division of Radiation Control, December 28,1998, "Ground Water Quality Discharge
Permit No. UGWI70003 Statement of Basis", 8 pp.
Page 17
Attachment 1
Public Comments Received from Three Parties:
January 7 ,zl}sEnvirocare of Utah, Inc. Comments (Received Januar y 7 ,2005)
January 7 ,2005 Glen Canyon Group / Sierra Club Comments (Received January 11, 2005)
January 7 ,2005lvan Weber Comments (Received via email on January 7 , 2OO5)
ENVIRO CARE OF UTAH, INC.
THE SAFE ALTERNATIVE
January 7,2005
Dane Finerfrock
Co-Executivc SecretarY
Utah Water Qualitl' Board
168 North 19-s0 West
P.O. Box 144850
Salt l-ake CitY, UT 841 l4-4850
Subject:
cD05-0015
comments on I nremationar uraniumr corporation proposed Grourrdwater
iir.iiii, oi.cha rge Pernti t (Permit No' I"l G\\'/3 70004)
Dear Mr. h'inerfrock:
Envirocare of Utah, Inc. (Ertvirocare) prtrvicles the lbllou'ring comments on the International
Uranium Clorporation pt":pr,*a Croondtnu,., Quality Discharge Permit (GWQDP) (Pcmtit
No. uGW37(r004).
Condition I.A Groundn'ater Classilication
.l.he permit li:;ts two data sets tor the puqrosc of classifying gr'rulldwatsr at the ILIC t'aciiitl''
{'tat is the purp'ose o[providing both dau sets?
Tablc 2
Basecl on thc inftrniration provicled in Table 2, the onty radiologic paranletet the Pernrittce is
required to analyze i.'Ctrlt nfpha. Envirocoi" i5 1x'qiriyed to. analyze for Radium-226'
Radium-228, Thoriurn-?30. and Thorium-232 nl its l le't.2) disposal cell' UAC R3l3-6-2'l
idenrifies a comUlneJ (irr.rundwater Quality Starrcl.arcl ftrr Radi,m ??6 + 228 at 5 pCii1.' Will
;;;";";eters also be evaluatecl at the IUC far:ility?
condition I.D.l. DI\IT Design standards for lixisting Tailings cclls- -
Has an e:valuation f*., p"tf"i,tred to denronstralc li,eri:orrrpatibilil.v- of the Flexible
Membrane r,iue, (rir.riiitul, thc l1e.(2) nraterials bcing tiislrgsed irr the cells?
Conclition I.D.3.b.1. Disr:lrarge }linin:lizrrtion T.cchnology Standard
'['lre irveragc o rrr"*ui"r] lrcati in t]te slitles clrain access pipe is to be "as low as reasottubl-'-
achievable,, in "o.t'*iri,rg, clrporol cell- I'lorv will stati inspectors make a determination on
this criteria?
Condition t.D.3.c. Roberts Pond
An as-built is r*qulr.ct as Conclition I.H.i 8 of t}is GWQDP' l'Iow is this pond constru$ed?
For cpnsistq',.y *iit irorra.* ut"a al Enyirocare,lhis wasie'water pond shoulcl have a tninimun
of trvo FMLs and a leuk dslecl.ion system. In atlJitiof ivirat systcnr is i1 place to confinn
""rrpir-r". *i,t,,t,. i*o roolreeboarcl required in this cc.rndition?
Condition l.D.3.tl. Fcerlstock StorageArea
The introductory p.r.u"pi".f tnit C-rvqoP state that the Pennit is tbr'.a uranium nrilling
and failings disposal facility, not a storage fincility' How is the feedstock area c'onstructed?
605 NORTH 5600 WEST ' SALT I-AKE CITY' UTAH 84176 ' TELEPHONE (8O7) 532-7g3O
H}TDSELBhttt
J[\l
DN OT
Page 2 of 2
January 7,2005
TNVIROCARE
How long can stored materials remain in this area? Is there a stormwater management plan
for water that accumulates in this area? Is there a DMT criteria for this area? Except in the
dig cell, open air storage is prohibited at Envirocare'
Condition 1.E.2. Groundwater Head l\{onitoring
Total Dissolved Solids (TDS) range from 1,276 mglLto 5,200 mg/L. Will the groundwater
elevatiols be adjusted to a freshwater equivalent head to account for an almost 5 fold
variation in salinity? In addition, Envirocare is required to corduct monthly groundwater
.i"rutlon, due to a groundwater mound, much like the mound beneath the IUC facility. For
consiStency, ground*rter elevations. freshwater correction, contogr maps, etC', ShOuld be
perfonned on a ntonthlY basis.
Conrlition I.H.l. Installation of New Groundrvater Monitoring Wells --
I{ow were the locations of the new n:onitoring wells determined? Monitoring wells at
Envirocare were located usirrg a computer nrodel to demonstrate that should a release occur'
the groundwater monitoring network would detect that release. Will a well spacing
evaluation be required by the Permittee?
Condition I.H.l l. tnfiltration and Contamination Transport l\{odeling Work Plan and
Report _ r r ^! -, ^r-_ -,^i his con,tition rcquires an infiltration and contaminant transport model. Since the proposed
per,rit does rrot have a'cover desigrr, it is assumed that a design will comc fiorn the required
moJ"fing. For consistency with Errvirocare, even though the cover will need to ittcorporate
a. FMLIo prevent the bathtub effect (See condition 1.D.6.b.), the Permittee sltould not be
oirt" tn takc credit for either the upper or lower FIvlI.s in the modeling effort. ln addition, it is
oi"r.", ii,rre Modeling work plan is part of the Repofi or a separate submittal which will
require Executive Secretary Approval.
To eYaluate the assumptions found in the model, rvill the Permittee be required to prepare a
Post-Model Audit Plan?
please contact me ar (801) 532-l33lwith any questions regarding this issue.
Sincerd, n'i,YUr
IT"1ffi ff "",!, ..*0, iance and Permittirrg
I certi$ undc.r pcnalty oflaw that this rJocunrcnr and all aflachmcnts wert preparu{ under rny.dircction or supcrvision in
..*rJi*, "i,i u ,1,ir",n a.rign.J; o.trrre- rhat qualifiul pcnonnel properly galher and.evaluatc the infornration submittql'
Based on my inquiry ol.rhc peion or pcmons whri managc the systctn. or tlruse pcrsons directly rcsp<rnsible for gathering the
information. the infonnation ,rtritt"a is, to rhr.' best of my knoivledge and bclict'. truc. accutat(', and cornplete. I am awart that
iii"r. ur" rignir.anr penalrics for tutn,i,,irrg lals: intbrrnaiion. including thc pssibility ol'line and imprisonmott for knowing
violations. '
Glen Canyon Grou P/sierra CIub
P.O. Box 622
Moab, Utah 84532
Mr. Dane Finerfrock, Director
Division of Radiation Contnol
Utah Departnrent of Environmental Quality
P.O. Box l448is0
Salt Lake CitY, Utah 84ll+4850.
Subject Comments on Draft Ground Water Discharge Permit No. UGW370(X)4,
Int#ational Uranium (USA) Corporation (IUC) Uranium Mll, Whirc Mesa, Utah.
Below please find the comments of the Glen Canyon Group of theSierra Club.on
,,{'itlzmtl;,d:q-";\[ *"-'l- *: -B
; ",-,.;.1,ii',ti.-.,, .1}
\:
No. UGV/37O00r'..
1. Draft Ground \ilater Disc\arge Permit (Permit), page 1: rhefacility is located on
a tr4ct of lorrd in sections 28, 29, i2, orrd 33, Township i7 south, Rutge 22 fust, s1lt
lnlcc Base and Meridian, San luan Courlty, Utah,
Commenfi The facility is also includes IUC land in Sections 2l,22,and/T,Township
37 South, Range Z2git,that are up-gradient from the mill and tailings cells. It also
includes 6olynlgradient land in Sections 4,5,6,g, g, and 16, Township 38 south, Range
Z2hst,sat uurr Base and Meridian, San Juan County, utah. An explicit "legal"
description of the mill property must be included in the Permil
2. part In page 8: D. DISCHARGE MINIMIZATION TEChNOLOGY STAI'IDARD - tlu
toiiis, aipis"tf"cility must be built and operated according to tlefollowing Discharge
Minimizat ion Te chrw lo gy @MD standords :
t , DMT Design-ita4dartls for Existing Tailings Cells l, 2, and 3 ' slnll be based
on existing "o^ouriion as descriied by desrgn and construction information provid.ed by
the Permittee, cts surnrnttrized in Table 3 below for Tailings Cells I , 2, and 3:
commenfi This section is vague regarding the actual design and construction
information that the Division of Raaiation of Control (DRC) is relying on. There is no
mention of the December 31, 1998, Knight Piesold Report on the Seepage Flux from
i"1ing, Cell 3 Liner submitted to the DRC by the Permittee. There is no mention of the
nro,rriu, questions that the DRC had about the actual design and construction of Cell 3'
Division of Radiatio" tt
January 7,2W5
as expressed in the (apparently) unanswered November 28,2001,DRC Request for
Additional Information (RAI).
The DRC must not rely on cell design and construction information that it has
already found questionable. This section must include more detailed cell design and
construction date. This section must also be amended based on the Permittee's reply to
the November 28, 2001, RAI, which was part of the Permit process.
3. Part I, page tlz D. 2(d) Feedstock Storage Area -open-air or buk storage of all
feedstock materials at the faciliry awaiting mill processing shall be limited to thc eastern
portion of the mill site area described inTable 4, below.
Comment: There is no indication in the Permit as to how the Permittee will monitor the
groundwater underneath and in the vicinity of the Feedstock Storage Arca to guarantee
that the materials stored there will not contaminate ground and surface water. The
feedstock is sometimes stored for years out in the open where it is subject to dispersion
and leaching by wind and water, and surface water.
This must be corrected.
4. Part I, page 20: G. OUT OF COMPUANCE STATIIS,4. (e), Wlure it is infeasible to
reestablish DMT as defincd in the permit, thc Permittee trury propose an alternative DMT
for approval by thc F.xecutive Secretuy.
Comment: The DRC does not define "feasible." Does feasibility include economic
feasibility? Who decides if a ground water corrective action plan is "unfeasible'?
There is no mention of the standards that must be met by the Permittee when proposing
alternative concentration limis (ACLs). Are the standards for establishing ACI-s
outlined in l0 C.F.R. Part 4O, Appendix A, applicable here? What criteria will the
Executive use in reviewing applications for the establishment of ACLs?
The term 'Teasible" must be defined. The standards for the establishment of
ACIs must be spelled out in the Permit
There is no mention in the Permit of any necessity for the Permittee to increase
the reclamation suret5l to cover ground water remediation when the Permittee is out of
compliance. NRC and State regulations require a surety to cover the costs of
reclamation, including any ground water remediation. This requirement must be included
ain the permit
5. Part I, page 20: H. COMPUANCE SCHEDULE REQUIREMENTS. Tlw Permittee
will comply with tlu schedules as described and summarized below:
Comment: Nowhere in the extensive list of Compliance Schedule Requirements is there
any requirement for the Permittee to respond to the 8-page November 28,2NL,DRC
Request for Additional Information, regarding December 31, 1998, Knight Plesold
Report on Seepage Flux from Tailings Cell 3 Liner, White Mesa MlI.
Division of Radiatio" otnol
January 7,2N5
Has the Permiuee responded to this RAI? If not, has the DRC notified the
Permittee that they don't have to respond?
It was definitely my understanding, based on correspondence with the DRC, that a
schedule for the Permittee's long-delayed response to the 2001 request would be part of
the Permit requirements. Is this no longer the case? If so, why?
There must be a full explanation of this situation.
In addition, the DRC must review all previous requests for information and make
a determination that they have all been fully responded to or a schedule for response has
been established in the context of the Permit
6. There is no discussion in the Permit of other types of contamination to ground and
surface water by activities on the land owned by the Fermittee at the facility. The
Permittee currently allows cattle to Eraze on some of the mill property. These cattle can
and do access Ruin Spring. Ruin Spring is on U.S. Departrnent of Interior, Bureau of
Iand Managemen! property .hat abuts the mill Property. The Ruin Spring area is
trampled and contaminated by wastes from the cattle. The spill-overfrom a tank below
the spring (which has not been cleaned in years) feeds a desert riparian area. The spring
is used by wildlife
Does the Permittee have any responsibility for the ruin of Ruin Spring by the
cattle that gaze on its mill facility property?
7. Part I, page l2zD. 5. Definition of I Ie.(2) Waste -for purposes of this Permit,
I1e.(2) wcrste is defincd as: "... tailings or wastes produced by tLb extraction or
concentrotion of uranium or thoriumfrom any ore processed primarily for its source
material content", as defincd in Section I 1e.(2) of thc U.S. Atomic Encrgy Act of 1954, as
amend.ed; which includes other process relatedwastes andwaste streams describedby a
March 7, 20f,.3 NRC letterfrom Paul H. In;haus to William J. Sinclair.
The March 7,2003, NRC letter from Paul H. [.ohaus, Direttor, Office of State
and Tribal Programs, Nuclear Regulatory Commission (NRC) to William J. Sinclair,
Director, Division of Radiation Control, (in response to questions in the January ld
2D3,letterfrom William Sinclair) states in part
Question 4: As alterrntefeed rnaterial arrives at tltc White Mesa
facility, it can be soil co-mingled with debris such as concrete,
plastic, and bricl<s. Thcse materiak maybe non-uruium bearing
and are l'alongfor tlu ride' as a result of arry particular
remediation project. These materials may be separated at tlrc tine
of introduction into the uranium recovery process and evenually
disposed of in the toilings impoundments. Would these materials be
ctassified as IIe.(2) byproduct material?
Response: Yes. The alternate feed material is regulated in mass as
ore; therefore, the material not amenable to processing, i.e., debris
Di vi sion ", **tn C-ontrol
January 7,z0fJls
4
associated with it tlut must be separated at tlu tilne of uranium
recovery, is awastefrom ore processing tlnt meets thc definition
of tte.() bYProduct material.
Comment:
There is absolutely no statutory or regulatory basis for the State of Utah to
authorize the processing of "alternate feed material" at the IUC mill. Therp is no
statutory or regulatory 6asis for the State of Utah to include the "process related wastes
and waste streams" fiom the processing of materials other than natural ore ('alternate
feed material') in the statutory and regulatory definition of l le.Q) byproduct material-
The Ground \ilater Discharge Permit must not authorize the processing of
..alternate feed matcrialt' The Ground Water Discharge Permit must not authorize
the disposal of waste streams from the processing of "alternate feed material" as
11e.(2)-byproduct matcrial. Such authorization is not permitted by any statute or
**"T&
request by the Permittee for such authorization must be denied.
The following (including Attachment A) are comments that support these
statements
A. The March 7,2OO3,NRC letter from Paul H. Lohaus to William J. Sinclair is
not au NRC legal opinion and has no legal effect. SeelO C.F.R.Part 40, Sec. 40.6,
Interpretations, which states:
Except as specifically authorized by the Commission in writing, no
interpretation of the meaning of the regulations in this part by any
offic-er or employee of the Commission other than a written
interpretationby the General Counsel will be recognized to be binding
upon the Commission.
B. There is no legal basis under and Atomic Energy Act of 1954 (AEA), as
amended, to consider so called "alternate feed material" and various debris
accompanying such material (at times constitutin g 40% of the "alternate feed material')
as "ore-," ur tt " term 1'ore" is used in the definition of l le.(2) byproduct material.
The Permit must not include any statement that would imply processing of feed
material other than natural ore ("alternate feed material') is the same as the processing of
..any ore," and that the debris, tailings, or wastes from such processing constitute 11e.(2)
byproduct material.
The State of Utah cannot and must not include any reference to the letter from the
March 7,2OO3,NRC in the Permit
See Attachment A hereto for a full discussion and comments on this matter.
C. The Permit does not define so-called "alternate feed material.' There is no
indication in the Permit that "alternate feed material" is made up of processing wastcs
Division of Radiatio, t*
January 7,2OO5
from other mineral processing operations that are commingled wi$ contaminated debris
una soits. Why is tirrc oo aefinition of "alternate feed material" in the Permit"
D. The State of Utah must only rely on the common, historical meaning of the
word "ore."
What does "ore" mean? The word, or tern, "ore," as defined in several sources:
. *Ore-a naturally occurring solid material from which metal or
other valuabe minerals may be extracted." Ellus@!9d-Oxbld
Disdolary, DK Pub' 1998'I
. ..Ore-A native mineral containing a precious or useful metal in
such quantity and in such chemical combination as to make irc
.rtru.tion piofitable. Also applied to minerals mined_fotF:h
content of non-metals."
Second Blition, oxford university Press, 2000, p. l?.?A:915-9 16.I
...Ore-a. A natural mineral compound of the elements of which
one at least is a metal. Applied more loosely to all metalifgroul-
rock, though it contains the metal in a free state, and occasionally
to the compounds of nonmetallic substances, as sulfur one. . . . Fay
b. A mineral of sufficient value as to quality and quantity that may
be mined for profit Fay." IA Dictionary of Mining. Miqeral.and
Related Terms, compiled and edited by Paul w. Thrush and Staff
of the Bureau of Mnes, U.S. Dept of Interior, 1968'l
The Oxford English Dictionary points out that the current usage.of the word "ore"
iirt, or"r 65 compound woids using the word "ore," such as ore bin, ore bOdy, ore
J"p"ri,, "* districg ore geology, oie grader, ore mineral, ore tesewe, orc zone. All of
thise terms incorporate me *noia "ore" as it relates to the mining of a native mineral. The
term..ore,,, without explanation, has for many years been used in millions of instances in
thousands of mining, milling, geological, mineralogical, radiochemical, engineering,
environmentat, andiegulatory publiiations. "Ore" like the word "water," is a word of
common and extensive usage with a clear and accepted meaning.
The State of Utah must explain what the statutory and regulatory basis is for
calling wastes from other mineral processing operations "ore." A policy, whether federal
or state, is not a statutory or legal basis.
E. In the past, debris associated with the processing of 'alt9n_rate feed material"
has been received at the IUC mill. Thousands of tons of such debris have been disposed
;i;4,h. mill. ruC was paid to receive and dispose of this material. Some of the material
was apparently washed (i.e., decontaminated), and the wash water was subsequenfly
processed for its minimal source material content
Division of Radiatio, tot
January 7,2UJl5
The debris that sometimes accompanies natural ore when it is processed at a
licensed uranium or thorium mill has no economic value to the licensee of a uranium or
thorium mill. A mill owner would not pay for or be paid to receive such debris an( in
fact, would pay less for ore contaminated with a lot of debris. However, the licensee will
be paid to receive and dispose of debris accompanying "alternate feed material." What is
really occurring is that the licensee is getting paid to direcfly dispose of contaminated (or
decontaminated) low level radioactive waste.
There are no similarities between the debris associated with orc mined from the
ground and debris accompanying wastes and contaminated materials from other mineral
processing operations.
This debris must have been separated from any material that was going to be
processed at the mill prior to shipping to the mill. This could have been easily
accomplished, but was not because it was in the interest of originator of the waste to get
rid of it, and it was in the interest in the mill operator to get paid for accepting it
The State of Utah is in no way obJigated to agree with the NRC on this questioa.
F. The March 7 NRC letter states that "the alternate feed material is regulated in
mass as ore." There is conflict, confusion, and inconsistency in this statement
Who, exactly, regulates alternate feed material as "ore," and what is the basis of
such regulation?
The AEA does not mention "alternate feed material" and it's regulation. I can
find no NRC or EPA regulations related to the regulation of "alternate feed material."
There ar€ no NRC generic or site specific environmental impacts statements related to the
regulation of "alternate feed material" or feed materials other than natural ore. '
How can the NRC regulate alternate feed material "in mass as ore" when the NRC
has no statutory or regulatory jurisdiction over "alternate feed material" or uranium and
thorium "ore"?
NRC regulation at l0 C.F.R. $ 40.13 establishes unimportant quantities of source
material that are outside of regulatory concern under the AEA. NRC regulation at
Section 40.4 states that "Source Material means: (l) Uranium or thorium, or any
combination thereof, in any physical or chemical form or (2) ores which contain by
weight one-twentieth of one percent (O.05%) or more of: (i) Uranium, (ii) thorium or (iii)
any combination thereof."
Section 4O.13(b) says that any "ore?' containing source material, whether or not it
meets the definition of source material (i.e., contains uranium and/or thorium of O.O5%
by weight) is exempt from regulation under Part 40. Section 40.l3O) states:
(b) Any person is exempt from the regulations in this part and from
the requirements for a license set forth in section 62 of the act to the extent
that such person roceives, possesses, uses, or transfers unrefined and
unprocessed ore containing source material; provided, that, except as
authorized in a specific license, such person shall not refine or process
such ore
6
Division of Radiatio" t*,
January 7,2005
The NRC has exempted "ore," either source material ore (over.05% uranium or
thorium by weight) or non-source material ore (ess than .05 7o uranium and/or thorium
by weight). The NRC regulates facilities that process and refine llot :l: under-its
rigulation of lle.(2) byproduct material, but it does not regulate "ore" as such.
There is nothing in the AEA that authorizes the transfer to the State of Utah of
regulatory responsibility over uranium or thorium "oIE."
Thank you for providing this opportunity to present comments.
Sincerely,
S*,^/ /7,{,r/ot*
Sarah M. Fields, Chair
Nuclear Waste Committee
Glen Canyon Group/Sierra CIub
Enclosure: Attachment A
Comments on Draft Ground Water Discharge Permit No. UGIV37NM,
International Uranium (USA) Corporation (IUC) Uranium Mill,' Whitc Mesq UJah.
Attachment A
There is absolutely no statutory or regulatory basis for the Sate of Utah to
authorize the processing of "alternate feed material" at the IUC mill. There is no
satutory or regulatory basis for the State of Utah to include the "process related wastes
and waste streams" from the processing of materials other than natural ore ("alternate
feed material') in the statutory and regulatory definition of lle.Q) byproduct material.
The Ground lVater Discharge Permit must not authorize the processing of
"alternate feed materiaLtt The Ground \ilater Discharge Permit must not authorize
the disposal of waste streams from the processing of "alternate feed materialtt as
11e.(2) byproduct material. Such authorization is not permittcd by statuteor
regulation"
Any request by the Permittee for such authorization must be denied.
The foll,owing discussion of the history of the statutes and regulations applicable
to the processing of ores for their source material content at licensed uranium and
thorium mills will support these statements.
1. Ststutes
A. Uranium MiU failings Radiation Control Act of 197E
Uranium Mill Tailings Radiation Control Act of l9?S (LJMTRCA) @ubtic law
95-ffi, !I2 Stat 3033 et seQ.), amended the Atomic Energy Act (AEA) of 1954 (Public
I-aw 83-703, 68 Stat 919 et.seq.). The AEA of 1954 was an amendment to the Atomic
Energy Act of l%6 (Public Law 79-385,60 Stat 755 et seq.).
There is no evidence that the AEA, as amended by UMTRCA, anticipated and
sanctioned the processing of feed materials other than natural ores and the disposal of
wastes from such processing at licensed uranium and thorium processing facilities. Therp
is no evidence that the AEA gave the Nuclear Regulatory Commission (NRC) or NRC
Agreement States the broad authority to authorize the processing of feed materials other.
than natural ores as "ore.' There is no evidence that the AEA gave the NRC and NRC
Agreement States the broad authority to authorize the disposal of wastes from such
processing at licensed uranium and thorium processing facilities as "l le.(2) bypoduct
material."
So-called "alternate feed material" is the wastes, contaminated debris, and
contaminated soils from other mineral processing operations. This material has been
deemed 'Teed material other than natural ore." It is not "nafural ore." It is not "any ore."
And, it is not "ore." There is no evidence that UMTRCA sanctioned the processing of
"alternate feed material," as " any ore," at licensed uranium or thorium extraction
t 2Division of Radiation
AttachmentA
January 7,2005
facilities. There is no evidence that under UMTRCA materials other than natural ore
were ever considered to be "ore." There is no evidence that UMTRCA gave any federal
or state agency the discretion alter the definition of "ore" to include materials that are not
natural oie. There is no evidence that UMTRCA gave any federal or state agency the
discretion to alter the definition of "any ore" as that term is used in the definition of
" 1 le.(2) byproduct material.''
in iact, there is specific evidence that Congress, the Atomic Energy Commission
(AEC), the NRC, and the Environmental Protection Agency (EPA) explicitly determined
tUat tne processing feed material other than natural ore was not sanctioned by applicable
statute or regulation.
The regulatory history of UMTRCA, found in the two Congressional reports,
provides information with respect "uranium mill tailings'and nore.F The Congressional
ii.portr clearly stated what was contemplated by Congress (known as the intent of
Congress) when Congress established a program for the control of "uranium mill tailings'
fronithe processing of "uranium oren at inactive (title I of I.IMTRCA) and active (title
1 of UMiRCA) uranium and thorium processing facilities. House Report (Interior and
Insular Affairs Committee) No. 95-1480 (I); August I L, 1y78, and House Report
(Interstate and Foreign Commerce Committee) No. 95-1480 (ID, September 30,1978.
Under "Background and Need,'tIR No.95-1480 fl) states:
.
Uranium mill tailings are the sandy waste produced by the uranium
ore milling process. Because only I to 5 pounds of useable uranium is
extracted irom each 2,000 pounds of ore, tremendous quantities of waste
are produced as a result of milling operations. These tailings contain
many naturally-occuning hazardous substances, both radioactive and
nonradioactive. . . . As a result of being for all practical purPoses' a
perpetual hazard, uranium mill tailings present the major threat of the
nuclear fuel cYcle.
In its early years, the uranium milling industry was under the
dominant control of the Federal Government. At that time, uranium was
being produced under Federal Contracts for the Government's Manhattan
Engineering District and Atomic Energy commission Program. . . .
The Atomic Energy Commission and its successor, the Nuclear
Regulatory Commission, have retained authority for licensing uranium
mills undir the Atomic Energy Act since 1954. [HR No. 95-1480 (1) at
l1.I
The second House Report, under "Need for a Remedial Action Program'states:
Uranium mills are a part of the nuclear fuel cycle. They exhact
uranium from ore for eventual use in nuclear weapons and power-plants,
leaving radioactive sand-like waste-commonly called uranium mill
tailings-in generally unattended piles. [HR No. 95-1480 (2) at25.7
Division of Radiatior tl
Attachment A
January 7,2005
B. Atomic Energr Comrnission and the AEA of 19fi
As indicated above, the domestic uranium mining and milling industry was
established at the behest of the Manhattan Engineer District and the AEC. The AEC
regulated uranium mines and uranium processing facilities, established ore buying
stations, and bought ore. Mining and milling of uranium ore was done under contract to
the AEC. AEC purchased uranium ore under the Domestic Uranium Prograrn
Regulations related to the AEC's uranium procurement program were set forth in
10 C.F.R. Part 60. Part 60 was deleted from TitlelO of the Code of Federal Regulations
on March 3,1975, after the establishment of the NRC.
The AEC published a number of circulars related to their Domestic Uranium
Program that discuss the various types of uranium ores. The Domestic Uranium
Program-Circular No. 3-Guaranteed Three Year Minimum Price-Uranium-Bearing
Carnotite-Type or Roscoelite-Type Ores of the Colorado Plateau Area' (April 9, 1948)
amended l0 C.F.R. Part 60). The Circular states:
:
$ 60.3 Guaranteed three years minimum price for uranium-bearing
carnotite-type or roscoelite-type ores of tlu Colorado Plateau-(a)
Guarantee. To stimulate domestic production of uranium-bearing orcs of
the Colorado Plateau area, commonly known as carnotite-type or
roscoelite-type ores, and in the interest of the corlmon defense and
security the United States Atomic Energy Commission hereby establishes
the guaranteed minimum prices specified in Schedule I of this section, for
the delivery of such ores to the Commission, at Monticello, Utah, and
Durango, Colorado, in accordance with the terms of this section during the
Note: In $$ 60.1 and60.2@omestic Uranium Program, Circulars No. I
and2),the Commission has established guaranteed prices for other' domestic uranium-bearing ores, and mechanical concentrates, and refined
uranium products.
Note: The term ndomestic'in this section, referring to uranium, uranium-
bearing ores and mechanical concentrates, means such uranium, ores, and
concenhates produced from deposits within the United States, its
territories, possessions and the Canal 7nne.
l0 C.F.R. Part 60-Domestic Uranium Program at $ 60.5(c) states:
Definitions. As used in this section and in $ 60.5(a), the term nbuyet'
refers to the U.S. Atomic Energy Commission, orits authorized
purchasing agent The term 'oren does not include mill tailings or other
mill products. . . . [Circular 5,14 Fed. Reg.73l (February 18, 1949).1
Bmphasis added.l
3
Division of Radiation t
AttachmentA
January 7,2005
4
It is clear that the AEC was the primary moyer in the domestic uranium mining
and milling program. Under the Atomic Energy Acts of 1946 and 1954, the AEC
regulated iranium mining and milling and established a uranium ore-buying program.
From the 1940's to l975,the regulations in 10 C.F.R. Part 60 clearly discussed what
uranium ore was and was not and clearly stated that "oren did not include mill tailings or
other mill products. In other words, "ore" did not include materials that had already gone
through a mineral processing operation. It did not include materials other than natural
OI€.
From the very beginning of the AEA, the AEC was explicit about what uranium
ore was. Ore specifically aia not include tailings, wastes, and producB from-mineral
processing operations. Nothing has changed in the use of the term "ore" in-the statutes or
iegutationls pirtaining to the processing of uranium and thorium ore since that time-
C. Statutory Definition of Source Material
The AEA of 1946, under nControl of Materials," Sec. 5 (b), nSource Material8,"
(1), "Definition,'provides the definition of "source material.l Sectiols(bxl) states:
Definition. - As used in this Act, the term 'source materialn means
uranium, thorium, oI any other material which is determined by the
Commission, with the approval of the President, to be peculiarly essential
to the production of fissionable materials; but includes ores only if they
contain one or more of the foregoing materials in such concentration as the
commission may by regulationdetermine from time to time.
The AEA of l954,Chapter 2, Section I l, "Definitions,' sets forth the current
statutory definition of nsource material n at Sec. ll(s):'
The term nsource material' means (l) uranium, thorium, or any other
material which is determined by the Commission pursuant to the
provisions of section 6l to be source material; or (2) ores containing one
or.or" of the foregoing materials, in such concenhations as the
commission may by regulation determine from time to time.
t42 U.S.C. Sec. 2014(z).I
Responsive to this statutory definition, in 196l the AEC established the fotlowing
regulatory definition at l0 C.F.R $ 4O.4:
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 (O.O57o) or more of: (i) Uranium,
(ii) thorium or (iii) any combination thereof. Source material does not
include special nuclear material. 126Fed. Reg. 284 (Jan. 14 l%1).I
Division of Radiation t
AttachmentA
Therefore, the AEC made a determination, in accordance with the mandate of the
AEA of lgs4,that ores containing 0.05c/o thorium and/or uranium would meet the
statutory definition of source material. For materials other than natural ore, only the
uranium and or thorium content (no matter what the concentration) met the statutory
Jennition of source material. There was a clear differentiation between the two types of
source material.
At the same time that they made that determination, the AEC had a regulation that
clearly stated that "oren does not include mill tailings or other mill products. Surely, the
,qEC, as the adminishator of a uranium ore procurement program and the developer of
the uianium mining and milling industry knew what thgy were referring to when they
used the term "ore.l' There *rai no need to define "or-e" in the statute or regulations
because that term had an unquestionable commonly accepted meaning within the mining
and milling industry. It was not part of the new regulatory terminology. On the other
hand,..sorice material" and "speiial nuclear material" were defined because they were
new regulatory terms.
The AEC set forth certain exemptions to the regulations in 10 C.F.R Part 40. The
proposed rule, which was later finalized in January l%1, states in pertinent part:
The following proposed amendment to Part 40 constitutes an over-
all revision of l0 cFR Part 40, ncontrol of Source Material.'
With certain specified exceptions, the proposed amendment
requires a license for the receipt of title to, and the receipf possession, use,
transfer, import, or export of source material. . . .
Undlr the proposed amendment, the definition of the term "soulce
material,': is revisid to Uring it into closer conformance with that
contained in the Atomic Energy Act of 1954, nsource Materialn is defined
as (l) uranium or thorium, ot "ry combination thereof, in any physical or
chemical form, but does not include special nuclear material, or (2) ores
which contain by weight one-twentieth of one percent (0.05 percent) or
more of (a) uranium, (b) thorium or (c) any combination thereof. The
amendment would exempt from the licensing requirements chemical
mixtures, compounds, solutions or alloys containing less than !.05 pe.rce-4t
source material by weight As a result of this exemption, the change in the
definition of source material is not expected to have any effect on the
licensingprogram....
Sritio, 62 of the Act prohibits the conduct of certain activities
relating to source material "after removal from its place of deposit in
naturei unless such activities are authorized by license issued by the
Atomic Energy Commission. The Act does not, however, require a
license for thi-mining of source material, and the proposed regulations, as
in the case of the current regulations, do not require a license for the
conduct of mining activities. Under the present regulation, miners arc
required to have a license to transfer the source material after it is mined.
Under the proposed regulation below, the possession and transfer of
Division orn"t Conhol
AttachmentA
January 7,20{Jls
unrefined and unprocessed ores containing source material would be
exempted. 147 Fed. Reg. 8619 (September 7 , 196O).1
Here, the regulation makes clear that "source material ore" is something that has
been removed from its place of deposit in nature." It is something that is mined from the
ground by miners.
T-herefore, the AEC established, via a rulemaking, exemptions for source material,
as defined in Sec. 2ffia{z)(l). related to mixtures, compounds, solutions, or alloys
containing uranium and/or thorium:
(a) Any person is exempt from the regulations in this part and from
the requirements for a license set forth in section 62 of the Act to thc
extent that such person receives, possesses, uses, transfers or delivers
source material in any chemical mixture, compound, solution, or alloy in
which the source material is by weight less than one-twentieth of I percent
(0.05 percent) of the mixture, compound, solution or alloy. The
exemption contained in this paragraph does not include byproduct material
as defined in this part. [0 C.F.R. $ 4O.13(a), ?.6Fed. Reg. 284 (Jan. 14
1%r).I
The AEC also established, via a rulemaking, exemptions for source material, as
defined in Sec. 2[a{z)(2). related to 'oren:
(b) Any person is exempt from the regulations in this part and from
the requirements for a license set forth in section 62 of the act to the
extent that such person receives, possesses, uses, or tranders
unrefined and unprocessed ore containing source material; provided,
that, except as authorized in a specific license, such person shall not
refine or process such ore. [0 C.F.R. 40.13(b), ?-6Fed. Reg. 284 (Jan. 14
te6l).I
The definition of "source materialn and the exemptions that are related to those
definitions stand today, over forty years later. These regulatory definitions and
exemptions did not change when the NRC was established in 1975 and took on the
regulatory responsibility for "source material.n These regulatory definitions and
exemptions did not change when the AEA was amended by UMTRCA in 1918. These
regulations and definitions did not change when the NRC developed their policy
guidances related to the processing of feed material other than natural ore at licensed
uranium recovery operations.
Alternate feed material that contains uranium and thorium contnins "source
material" under the first definition of "source material." However, it is not "sour@
material" under the second definition, because it is not "ore" under the applicable statutes
and regulations.
Division of Radiation n*
Attachment A
January 1,?frOs
D. Definition of lle.Q)byproduct material.
UMTRCA, among other things, amended the AEA of 1954 by adding a new
definition-the definition of lle.(2) byproduct material:
Sec. 201. Section 1le. of the Atomic Energy Act of 1954, is
amended to read as follows:
"e. The term'byproduct material'means (l) any radioactive
material (except special nuclear material) yielded in or made radioactive
by exposure to the radiation incident to the process of producing or
utilizing special nuclear material, and (2) the tailings or wastes produced
by the extraction or concentration of uranium or thorium from any ore
processed primarily for its souroe material content' [42 U.S.C. Sec. 2014
(e).1
There is no evidence in the regulatory history of UMTRCA that Congress, in
defining "l le.(2) byproduct material' intended to also amend the statutory definition of
nsource material.n The "any ore" in the definition of lle.(2) byproduct material is 1)
ores which contain by weight one-twentieth of one percent (O.O5%) or mone of: (i)
uranium,(ii) thorium or (iii) any combination thereof (source material); and 2) ores which
contain less than by weight one-twentieth of one percent (O.O5%) or mone of: (i)
uranium,(ii) thorium or (iii) any combination thereof. If the term "any oI€" was meant to
include materials other than "oro" in the definition of "any ore," the result would be an
amendment to the definition of "source material." There was no such amendment to the
statutory definition of "source material."
There is no evidence in the regulatory history of UMTRCA that the term nany
ore" does not mean nany UPe of uranium ore' (i.e., ore containing lesS than .05%
uranium and/or thorium and the numerous types of natural uranium-bearing minerals that
are mined at uranium mines and milled at uranium mills).
There is no evidence in the regulatory history of LJMTRCA that Congress
intended the term nany ore'to mean anything that the NRC or an Agreement SAte
wanted it to mean. There is no evidence that UMTRCA intended that "ore" included
wastes from mineral processing operations mixed with wastes and debriS from other
sources, even if those wastes were processed for their source material content at a
licensed uranium or thorium mill.
Z t{RC Regutations
A. Mandate of UMTRCA
UMTRCA required that the EPA and the NRC promulgate rules and regulations
implementing the statute.
Both the EPA and the NRC established a regulatory program for uranium milling
and the processing of ores. Neither the EPA nor the NRC contemplated the processing of
Division of Radiation #ot
AttachmentA
January 7,2005
materials that were not "natural ore'when they developed and promulgated their
regulations.
Neither the EPA nor the NRC considered wastes from other mineral processing
operations in their concept of nore," and they did not address in any manner the
processing of such wastes when promulgating their regulatory regimes for active uranium
processi n g facilities.
Further, during the various rulemaking proceedings, the public was never
informed that wastes from other mineral processing operations, no matter how they were
defined, would be processed at licensed uranium or thorium mills. Therefore the public
was given absolutely no opportunity to comment on such processing activities at licensed
uranium or thorium facilities.
The public has never been given this oppornrnity in any NRC, EPA, or Starc of
B. NRC Regulatory Progiam, 10 C.F.R. Part 40
Responsive to UMTRCA,.the NRC incorporated the UMTRCTq, definition of
lle.Q) byproduct material (with clarification) into their regulations at l0 C.F.R $ 404:
"Byproduct Materialn means the taitings or wastes produced by the
extraction or concentration of uranium or thorium from any ore processed
primarily for its source material content, including discrete surface wastes
resulting from uranium solution extraction processes. Underground ore
bodies depleted by such solution extraction operations do not constitute
"byproduct materialn within this definition. 144 Fed. Reg.50012-50014
(August ?A,ln9).7
The NRC also explained the need for the new definition:
Section 4O.4 oflO CFR Part 4O is amended to include a new
definition of "byproduct material.n This amendment, which included
uranium and thorium mill tailings as byproduct material licensable by the
Commission, is required by the recently enacted Uranium Mill Tailings
Radiation Control AcL [4 Fed. Reg. 50012-50014 (August V|,1979.1
The NRC promulgated further regulations amending Part 40, in 1980. In the
Federal Register Notice (FRN) summary, the NRC states:
The U.S. Nuclear Regulatory Commission is amending iE
regulations to specify licensing requirements for uranium and thorium
milling activities, including tailings and wastes generated from these
activities. The amendments to parts 40 and 150 take into account the
conclusions reached in a final generic environmental impact statement on
uranium milling and the requirements mandirted in the Uranium Mll
Division "f *ot"n Control
AttachmentA
January 7,Zms
Tailings Radiation Control Act of ln&, as amended, public comments
received on a draft generic environmental impact statement on uranium
milling, and public comments received on proposed rules published in the
Federal Register. [Footnotes omitted.] [45 Fed. Reg.65521-65538
(October 3, 1980).I
There is no statement in any of the NRC regulations in l0 C.F.R Part 40 or in any
of rulemaking proceedings promulgating those regulations that, under any circumstances,
wastes from other mineral processing operations can be considered to be 'ore'. There is
no statement that, under any circumstatrces, such wastes would be processed at licensed
uranium or thorium mills and the tailings or wastes would be disposed of as lfe.(2)
byproduct material in the mill tailings impoundments. The regulations promulgated by
the NRC and the EPA did not contemplate this kind of mill processing activity.
The National Environmental Policy Act ('NEPA'!) document in support of the
promulgation of the NRC regulatory program for uranium mills did not contemplate this
kind of uranium or thorium milling activity. In the rulemaking proceedings and NEPA
proceeding the public did not have an opportunity to contemplate and comment on this .
kind of mineral processing activity at licensed uranium or thoriuq mills.
C. The Final Generic Environmental Impact Statement on Urani rm Mi[ing
In developing and adopting Part 4O regulations, the NRC relied upon the Final
Generic Environmental Impact Statement on Uranium Milling ('GEIS'), NUREG-0706,
September 1980. The GEIS makes a clear statement regarding the scope of the GEIS and
its understanding of what uranium milling entails:
As stated in the NRC Federal Register Notice (42 FR 13874) on
the proposed scope and outline for this study, conventional uranium
milling operations in both Agreement and Non-Agreement States, are
evaluated up to the year200O. Conventional uranium milling as used
herein refers to the milling of ore mined primarily.for the recovery of
uranium. It involves the processes of crushing, grinding, and leaching of
the ore, followed by chemical separation and concentration of uranium.
Nonconyentional recovery processes include in situ extraction or ore
bodies, leaching of uranium-rich tailings piles, and extraction of uranium
from mine water and wet-process phosphoric acid. These processes are
described to a limited extent, for completeness. [GEIS, Volume I, at 3.]
The GEIS is very clear about what it considers 'oren to be and gives no indication
whatsoever that materials other than ore, such as the tailings or waste from mineral
processing operations (including debris, commingled contaminated soils and waste
materials from other sources) are considered to be 'ore.n The processing of 'lalternate
9
Division of Radiatio, *ot
AttachmentA
January 7,2N5
feed material" was not mentioned in the discussion of "nonconventional recovery
proceses" in the GEIS.
The GEIS includes a discussion of "Past hoduction Methods.' That discussion
makes reference to nore," "ore exploration,n "pitchblende ore,'r ncrude ore milling
processes," "lower-grade ores," tturanium-bearing gold ores," "high-grade orcs,n 'oIE-
buying stations," and "ore reserves." GEIS, Volume I, Chapter 2, at2-l to2-2. There is
a lengthy discussion of "Uranium Mining and Milling Operationsn that provides a
description of the commonly and less-commonly "used methods of mining uranium
ores." GEIS, Volume II, at B-l to B-2. Appendix 1.
In Chapter 6, "Environmental Impacts,n there is a discussion of nExposure to
Uranium Ore Dus!'which states, in part
Uranium ore dust in crushing and grinding areas of mills contains nahrnal
urani um (U -23 8, U -23 5, th ori u m-23 0, radi um- ?-?-6, lead-2l 0, and
polonium-2l0) as the important radionuclides. [GEIS, Volume.I, a,till.l
There is also a table giving the 'Average Occupational Internal Dose due to
Inhalation of Ore Dust' GEIS at64l,Table 6.16. Further, the GEIS discusses
"Shipment of Ore to the Mill' (GEIS at 7-l l), "Sprinkling or Wetting of Ore Stockpile"
(GEIS at8-2), nOre Storage" and "Ore Crushing and Grinding" (GEIS at 86), oOrc Pad
and Grinding' (GEIS, Vol. 3, at G-2), 'Ore Warehouse (GEIS, Vol. 3, at K-3) and
"Alternatives to Control Dust from Ore Handling, Crushing, and Grinding Operations
(GEIS, Vol. IIL at K-3 to K-3). In the NRC responses to comments there are discussions
of nAverage Ore Grade, Uranium Recovery." GEIS, Vol. II, at A-12 to A-13.
Nowhere in these discussions of "ore" was it stated that materials other than
natural ore were thought to be a type of "ore" and the processing of such materials would
be addressed in the environmental review
The GEIS did not consider the processing of alternate feed material, of whatever
source and kind. The GEIS gives no indication whatsoever that such wastes are 'orc,n
even if they were processed at a uranium or thorium recoyery facility for their "source
material content" Clearly, the GEIS did not contemplate a situation where wastes from
the processing of feed material other than natural ore would meet the definition of 11e.(2)
byproduct material.
Therefore, the GEIS did not evaluate, and the public did not have an oppornrnity
to comment upon, any of the possible health, safeQl, and environmental impacts of the
processing of other mineral processing wastes at uranium or thorium processing facilities.
There was no evaluation of the transportation issues related to the transporation of such
wastes, nor were reasonable alternatives to the transportation, receipt, processing, and
disposal of such wastes at uranium or thorium mills ever evaluated.
The NRC has never supplemented the GEIS to include an environmental
assessment of the processing of alternate feed materials. The NRC has neyer required a
site-specific Environmental Impact Statement for any uranium mill, including the
Permittee's mill, that evaluated the environmental impacts associated with the processing
of "alternate feed mateial" at the mill. Most of the "alternate feed material" (including
t0
Division of Radiation tt,ot
AttachmentA
January 7,20[15
large amounts of debris) processed at the Permittee's uranium mill was received,
processed, and disposed of without any type of environmental review whatsoever.
3. EPA Regulatory Stadards
A. Mandatc of IIMTRCA
LJMTRCA directed the EPA to establish standards for uranium mill tailings and
directed the NRC to implement those standards. That statute, as codifiedin42 U.S.C.
2vz2,states in pertinent part
Sec.2U22. Health and environmental standards for uranium mill tailings
(b) Promulgation and revision of rules for protection from hazards at
processing or disposal site.
(l) As soon as practicable, but not later than October 31, 1982, the
. Administrator shall, by rule, propose, and within ll months thereafter
promulgate in final form, standards of general application for the
protection of the public health, safety, and the environment from
radiological and nonradiological hazards associated with the processing
and with the possession, transfer, and disposal of byproduct material, as
defined in section 2OM(e)(2) of this title, at sites at which ores are
orocessed orimarilv for their source material content or which are used for
the disposal of such byproduct material. . . . tEmphasis added.l
Requirements established by the Commission under this chapter
with respect to byproduct material as defined in section ?-OU(e)(2) of this
title shall conform to such standards. Any requirements adopted by the
Commission respecting such byproduct material beforc promulgation by
the Commission of such standards shall be amended as the Commission
deems necessary to conform to such standards in the same manner as
provided in subsection (f)(3) of this section. Nothing in this subsection
shall be construed to prohibit or suspend the implementation or
enforcement by the Commission of any requirement of the Commission
respecting byproduct material as defined in section 2014(e)(2) of this title
pending promulgation by the Commission of any such standard of general
application. In establishing such standards, the Administrator shall
consider the risk to the public health, safety, and the environmen! the
enyironmental and economic costs of applying such standards, and such
other factors as the Administrator determines to be appropriate.
*:trt
(d) Federal and State implementation and enforcement of the standards
promulgated pursuant to subsection (b) of this section shall be the
responsibility of the Commission in the conduct of its licensing activities
under this chapter. States exercising authority pursuant to section
202l(b)(2) of this title shall implement and enforce such standards in
ll
Division ", *#"n contnol
Attachment A
January 7,20015
t2
accordance with subsection (o) of such section. [42 U.S.C. 2O22(b) and
(d).1
Congress directed the EPA only to establish standards for "sites at which ores atre
processed primarily for their source material." The EPA, as mandated by LJMTRCA,
finalized the "Environmental Standards for Uranium and Thorium Mill Tailings at
Licensed Commercial Processing Sites" in 1983. 48 Fed. Reg. 459?5459{+7, October 7,
1983. In the nSummary of Background Information" the EPA provides a discussion of
"The Uranium Industry' (i.e., the industry that the regulations apply to):
The major deposits of high-grade uranium ores in the United States are
Iocated in the Colorado Plateau, the Wyoming Basins, and the Gulf Coast
Plain of Texas. Most ore is mined by either underground or open-pit
methods. At the mill the ore is first crushed, blended, and ground toI proper size for the leaching process which extracts uraniurn . . . After
uranium is leached from the ore it is concentrated . . . . The depleted ore,
in the form of tailings, is pumped to a tailings pile as a slurry mixed with
water.
Since the uranium content ofore averages only about 0.15 perceng
essentially all the bulk or ore mined and processed is contained in the
tailings. [48 Fed. Reg.45V25,45yn, October 7,1983.1
Clearly, when the EPA developed its standards for uranium and thorium mills,
they stated, with specificity and particularity, what uranium ore was, what uranium
milling consisted of, and what uranium mill tailings consisted of. The EPA clearly stated
that the standards applied to the processing of uranium and thorium ores at uranium and
thorium mills. There is no reasonable evidence that would indicate that the standards
promulgated by the EPA applied to the processing of wastes from other mineral
processing operations at uranium and thorium mills (i.e., alternate feed materid).
Additionally, the EPA incorporated UMTRCA's definition of 1le.(2) bypnoduct
material, as clarified by the NRC in l0 C.F.R. 40.4, into their standards at40 C.F.R
Subpart D, S l!I2.31(b). Since that time the EPA has not amended their definition of
lle.(2) byproduct material in a rulemaking proceeding, nor have they amended their
definition via policy guidance. The EPA has not" in any manner, widened the use of the
words "any ore'to include any type of mineral processing wastes that is currently termed
"alt€rnate feed material."
As will be discussed below, the EPA did not sanction the NRC's policy guidance
with respect new definitions of ooren and 1le.(2) byproduct material.
C-learly, the EPA, as directed by Congress, has not in any manner contemplated
the processing of wastes from other mineral extraction operations at uranium or thorium
mills when establishing the "Environmental Standards for Uranium and Thorium Mill
Tailings at Licensed Commercial Processing Sites.'
Division of Radiation !#*t
Attachment A
January 7,zOOs
B. EPA Regulations
When compiling that list of hazardous materials and incorporating that list into
40 C.F.R. Part 7V2, the EPA did not in any manner contemplate the processing of wastes
from other mineral extaction operations at the mills for which they were establishing
standards. The EPA did not address in any manner effIuents that might result from the
processing of feed materials that were the tailings and other processing wastes from other
mineral extraction facilities
In the various rulemaking proceedings that have taken place for the establishment
of the EPA standards, the public was given no opportunity to consider or comment on the
possibility that the EPA standards would also apply to the processing of wastes from
other mineral processing operations (including commingled debris, soils, and waste
materials from other sources) at uranium and thorium mills.
It is true that the EPA and the NRC, in establishing their regulatory progmm,
contemplated the processing of ores at uranium and thorium mills. However, as shown
above, processing of wastes from other mineral processing operations at uranium and
thorium mills was beyond the scope of the regulatory progmm established by the NRC
and the EPA in response to UMTRCA.
Furthermore, 10 C.F.R. Patt4l,Appendix A, Criterion 8, states in parfi
Uranium and thorium byproduct materials must be managed so as to
conform to the applicable provisions of Title 4O of the Code of Federal
Regulations, Part 440, 'Ore Mining and Dressing Point Source Category:
Effluent Limitations Guidelines and New Source Perfonnance Standards,
Subpnrt C, Uranium, Radium, and Vanadium Ores Subcategory,'as
codified on January l, 1983.
There is no indication that these regulations applying to "ore" also apply to
"alternate feed material." There is no evidence that "alternate feed material" was
considered to be some new tyPe of "ore."
There is no indication that this NRC regulation and the regulation in 40 C.F.R
Pafi1H0 (and the enabling statute) have in any manner been amended or alrcred by
subsequent NRC policy guidance. Therefore, any shift in the usage of the wold 'ot€n
would conflict with these statutory and regulatory authorities with respect this regulation.
3. Regulatory History of NRC's Alternate Feed Guidance
A. In the late 1980's the NRC was faced with a few requests to process material other
than ore. At that time, and today, there are two statutes or regulations (implementing
those statues) that are pertinent First is the statutory definition of "source materialn
established in 1954 by the AEA, found at 42 U.S.C. Sec.2ol4(z), and in the NRC
regulatory definition of nsource material" (established in 1961 pursuant Sec.2014(z)),
found at 10 C.F.R 4O.4:
l3
Division ", *ot" Control
AttachmentA
January 7,2005
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.
The second is the definition of 'byproduct materialn in Section l1(eX2) of the
Atomic Energy Act of 1954, as amended, (42 U.S. C Sec. 2014(eX2)) and the regulatory
definition of "byproduct material' found in l0 C.F.R. N.4z
Byproduct Material means the tailings or wastes produced by the
extraction or concentration of uranium or thorium from any oro processed
primarily for its source material conten! including discrete surface wastes
resulting from uranium solution extraction processes. Underground ore
bodies depleted by such solution extraction operations do not constitute
"byproduct material" within this definition.
The NRC had several options, including the denial of the amendment requests.
One option would have been to go to Congress and request that Congress change the
definition of lle.(2) byproduct material. NRC Staffmade a determination that they
would not go to Congress to seek an amendment to the AEA of lg5/..
Instead, what the NRC did was to manipulate the use of the word " any oren as it
is used in the definition of 1le.(2) byproduct material. NRC proposed in:a notice and
comment proceeding, that a policy guidance be established for the purpose of interpreting
the term 'ore," as it is used in the definition of lle.Q) byproduct material. "Revised
Guidance on Disposal of Non-Atomic Energy Act of 1954, Section lle.Q) Byproduct
Material in Tailings Impoundments" and "Position and Guidance on the Use of Uranium
Mill Feed Materials Other Than Natural Ores," 57 Fed. Reg. 20525 (May 13,lWz).
The NRC did not institute a rulemaking proceeding to amend 10 C.F.R Fart40.
The Final Position and Guidance gave a new definition of ore. "Final Position
and Guidance on the Use of Uranium Mill Feed Materials Other than Natural Ores." 60
Fed. Reg. 492% (September2l,1995). "Interim Position and Guidance on the Use of
Uranium Mill Feed Material Other than Natural Ores," Regulatory Issue Summary (RIS)
2W-23 (November 30,2000). The new definition states:
Ore is a natural or native matter that may be mined and treated for the
extraction or any of its constituents or any other matter from which sowse
material is extracted in a licensed uranium or thorium mill. [60 Fed Reg.
at 49,296 (September 22, 1995).7
Based on the new use of the term "oren as put forth in the proposed guidance, not
only would the definition of lle.Q) byproduct material apply to nany ore pnocessed
primarily for its source material content'r in a licensed uranium or thorium mill, but the
t4
Division of Radiation
Attachment A
January 7,2OM
definition of 1le.(2) byproduct material would also apply to ani material (particularly
wastes from various mineral extraction operations and various commingled wastes.and
debris) processed primarily for its source material content in a licensed uranium or
thoriummill. In other words, NRC altered the accepted meaning of the word "oren as
that word ore was used in statutory definitions
B. On May 14, \WL,NRC Staff, sent a letter to the EPA, enclosing a coPy of the May
13 proposed rules and requested EPA comment on two proposed guidance documenB
*O- *riir associated staff analyses. I-effer from Robert M. Bernero, Director, Office of
Nuclear Material Safety and Safeguards, NRC, to Sylvia K. Lowrance, Director, Office
of Solid Waste, EPA, May 14 lWz.
The EPA did not submit cornments on the proposed policy guidances. The only
documentation of EPA's response to that request for comment is quoted below and is
found in the Commission Paper that forwarded the finalized guidances to the
Commission for their aPProvaln
Theie was an issue that delayed finalization of the guidance
documents. In an October lgg2,mixed waste meeting between the NRC,
the EPA, and DOE staff, EPA identified potential inconsistencies in
NRC's interpretation of the definition of source material in conjunction
with the exciusion of source material from the definition of solid waste in
the Resource Conservation and Recovery Act (RCRA). In making its
point, EPA cited the May 13,lW2, Federal Register roti::onthedisposal
of non-l le.(Z) byproduct material. The staff had delayed finalization of
the uranium recovery policy guidance documents, pending resolution of
the source material definition issue. However, the staffhas now decided
that these two policy guidance documents can be finalized, independent of
the source material issue, because the guidance is not dependent on the
interpretation of the definition of source material. ['Final 'Revised
Guidance on Disposal of Non-Atomic Energy Act of lgs4,Section lle.(2)
Byproduct Material in Tailings Impoundments'and Final'Position and
Guidance on the Use of Uranium Mill Feed Materials Other Than Natural
Ores,'n SECY-95-221, Artgttst 15, 1995.I
The hoposed Position and Guidance and the Final Position and Guidance gave no
indication that the NRC was amending, interpreting, or in any manner adjusting the
accepted meaning of the term nore" as that word is used in the statutory and regulatory
definition of "source material.n Nor was there any discussion in the various guidances
related to the processing of material other than natural ore (i.e., material that is not orc at
all) of how the exemptions set forth in l0 C.F.R. S O.t3(a) and (b) would be impacted by
guidance's new definition of 'ore.n There is no indication that the "source material
iefinition issue" has ever been appropriately addressed or resolved. It is an issue that has
lain in some pretty murky regulatory waters for quite some time.
15
Division of Radiation
AttachmentA
January 7,20[15
That question is: Does the new use of the term nore,n put forth in the Final
Position and Guidance, affect in any manner the definition of 'source materialn
established in the Atomic Energy Act of 1954 or affect the exemptions set forth in
$ aO.l3(a) and (b)?
It is plain from the Atomic Energy Act of 1946 and the legislative history of the
AEA of 1954 and the Uranium Mill Tailings Radiation Control Act of 1978 and the
regulatory history of the AEC, EPA, and NRC rules promulgated responsive to those
laws, that the Policy Guidance's new use of the term nore" goes far beyond the accepted
meaning of that term and the clear intent of Congress. Therefore, NRC and the State of
Utah cannot make use of the new definition of noren to claim that any alternate feed
material is "ore" or 'source material ore" or to claim that the wastes produced from the
processing of that material meets the statutory definition of "11e.(2) byproduct material.n
The applicability of various environmental regulations to a great degree depends
upon definitions. Congress, in their legislative function, often specifically defines words
oi phrases related to the application of a statute to a particular material or
circumstances-when there is a need for explanation. However, when using words or
terms with a common and long accepted meaning, such as groundwater, mill, tailings, or
"ore,'no explanation or definition is necessary.
fte NRC and the State of Utah is not authorized to shift these accepted
definitions at will as an expression of their "regulatory flexibility.' This is especiatly so
when such shifts result in direct conflicts with NRC's own enabling statutes and
regulations, as is the case with the use of the newly defined term nore.n Additionally,
NF.C ana State of Utah is not authorized to shift definitions at will when such shifts
directly conflict with the statutory authority and regulations of another federal agency, in
this case, the EPA.
4. LIMTRCA and the AEA
UMTRCA, as it amends the AEA, clearly specified what constitutes 'any ore.n
What constitutes nany ore" is "any ore.n It does not include material "otter than natural
ore." The plain language of the Act and the history of the implementation of the Atomic
Energy Act of 7946,as amended by the Atomic Energy Act of 1954 and the Uranium
Mill Tailings Act of l978,is all that is needed to determine what "ot€n or nany oren is.
As discussed above, clearly the legislative and regulatory history of the AEA and Title l0
of the Code of Federal Regulations make plan the meaning of the term noren and the term
'any ore.n
5. Conclusion
No federal agency or state aSency can use a permit or a policy guidance to expand
upon and substantively alter the explicit will of Congress when that will is explicitly set
forth in stature. The State of Utah does not have the discretion to use this Ground Warcr
Discharge Permit to substantively alter the statutory definition of "source material' or the
statutory definition of 11e.(2) byproduct material.
l6
Di vi si on of Radiati onSr-t7
AttachmentA
January l,zUJls
None of the federal and State of Utah statutes and regulations pertaining to the
regulation of ground and surface water at the Permitteels uranium recovery facility were
promulgated contemplating the disposal of debris and wastes from the processing of feed
materials other than natural ore. The receipt, processing, and disposal of these materials
was never addressed in the original White Mesa Mill Environmental Statement or any
subsequent EIS supplement
There is no ividence that the Permiuee' mill tailings impoundments werc
designed and constructed to receive the debris and wastes from the processing of feed
mat;rials other than natural ore.
Therefore, the Ground Water Discharge Permit must not in any nnnner authorize
the acceptance, processing, and disposal of materials other than natural ore at the facility
covered by the Permit Such authorization is outside the scope of the enabling statutes
and regulations for licensed uranium recovery facilities.
Sarah M. Fields, Chair
Nuclear Waste Committee
Glen Canyon Group/Sierra Club
From: I'lvan Weber'<[e-mail]>To: <[e-mail]>Date: 117105 4:59PM
Subject: Ground water discharge permit, IUC White Mesa Mill
Dear Mr. Morton:
please forgive the last-minute nature of my attempt to comment, however briefly, on the draft GWP lor
lUC Arhite Mesa, near Blanding, Utah. lt is important, however,lor citizens of Utah to note the
signilicance of DRC's assumption of regulatory'primacy' over.lUC operations and facilities, and lor us to
ois"*e the thoroughness atiempted in the Statement of Basis, supporting _documents and in the dratt
Ground Water Disc-harge Permit, itself. As one who has participated in earlier rounds of proceedings and
reviews in IUC requesti lor'alternate feed' permits under NRC in former years, I am very gratified that the
State of Utah has embraced this task seriously, as evidenced by the substance and detail of the dratt
permit and the SOB.
May I ptease echo the critique submitted by Ms. Sarah Fields, and incorporate it by reference into my own
reflections. ln particular:
a.. I share ner apprehension, expressed in herquestioning of th_e meaning 9[ !!e.asible' DMT as
rationale for IUC iirnmittatol "alternative DMT" tb the Executive Secretary of DRC (page 20 of draft
permit,4. "Facility Out of Compliance Status...,* e. "Where it is infeasible to reestablish DMT.-.1). This
appeais to be a loophole of magnitude proportional to the holes we suspect to exist in the cells' liner
systems. Please tignten this allowance by delining terms rigorously, il not by- elimil?tlng 4.e altogether.
'U.. Rlso on page 2b, under H. "Compliance Schedule Bequirements,' ljoin Ms. Fields in incredulity that
IUG has been allowed not to respond to the November 28, 2001 DRC Request for Additional lnformation.
At the time, the RAI was reasonable, legitimate and completely necessary. lt remains reasonable,
legitimate and completely necessary in order to proceed with State.of .y.q! regulatory authority. Whether
ne-glect, inadverteni oveisight or strategic contempt lor authority, this IUC failure is an outrage, warranting
driconian response at the outset ol State assertion of control over waters of the US delegated to State
administration. Either IUC must respond se.riously tothe 2001 RAI according to a stipulated schedule, or
ruC;hilid suspend operations. This pointifeqe is grounds for a formal request for a hearing, which I
nereby submit. \
Rapid'and regretably cursory review ol the Statement of Basis aflords considerable oomfort with the
F"iritt comlreheniion of ihe woelul inadequacy of process cell liner technology_, relative to
,best-available'liners now. ln fact, the original liners were not'BAT" in the early'8Os when the cells were
built, though they were in the theoretical range of common practice. As indicated in my previous review of
lineiOesig-n, conitruction and QA/QC (or lack thereof), submitted with Sierra Club Glen Canyon Group
commentl in mid-2002, it is my considered view as an environmental technology professional that the
careless nature of IUC construction procedures, particularly choice of bedding and cover soil materials -'
*hi"h *"r" anything but lsand," as evidenced by photographs taken during construction and included in
IUC and consultanvcontractor reports in the DRC record -- doomed allol these liners to failure before
they were even completed. Penetrations of relalively weak liner membranes by angular rocks was
inevitable, and has probably resulted in progressive leakage through tears ol varying size and orientation.
It is encouraging to read tMt HDPE liner material technology are reaching lUC, and especially that DRC is
imposing awlreness ol state-of-the-art liners on the White Mesa Mill facility. The sooner these_c^ells are
sfrlt Ooin and replaced with redundant, carelully designed, constructed, field-tested, and QA/QC
documented liner systems, complemented by strategic head reduction and monitoring systems, the better.
For this facility to hive been in use, allowing such extremely aggressive and highly contaminated process
lluids to circulate and reside in these porous cells, is unconscionable. Continued use of these
anachronistic cells must stop as quickly as possible, parsing of "inleasible" notwithstanding. This, too, is
cause for requesting a hearing.
As a point of inquiry, we wonder what and when will be the implicalions of recent State implementation of
"SWAp,, the Sourie Water Assessment and Protection" Plan, pursuant to Safe Drinking_Walel Act
Amendments of 1g96, and subsequent adaptation into Utah Code. As a member of the SWAP Advisory
Committee in 1998-99, I became aware of the comprehensive nature ol SWAP's simultaneous protection
of wellheads, surface water and emerging ground water. lt seems obvious to. this obseryer that there are
in"rituut" elfects ol past IUC ground ilater: contamination, most of which could easily escape (and
pi.t'rurv n"i oone) ine ratner pathetic monitoring on the.facility heretofore. For the sake of neighboring
[o,,rnriities and iiolated native populations, as wellas lor area wildlife, allthat can be done to answer
the question, ,,What can go wrong?; and to see to it that these faults are investigated, characterized and
remediated scientifically, should be done without delay.
Alltold, congratulations are due to Executive Director Nielson, DBC and particularly to.you, Mr. Morton, for
tne intent aid ettect ol this permit. lt is a very positive step, desperately needed for-a long, long time.
t,tow it's time to follow through, firmly and resoiutely. We hope that you will indulge further comments as
opportunity presents to revi6w'the complex, extensive and generally thorough Permit, SOB andsupporting
obbumenti within upcoming days. As you know, we ordinary citizens struggle to make time and create
iniormation access. rne ohg websiteis preseniation of keydocuments here has been extrgmllY helpful.
inrrri v., rircerety for the great competence, responsible eflort and clear sense of DRC mission that
these documents represent.
Gratefutly yours,
f rrn W"O.it, PrinciPaUOwner
Weber SustainabilitY Consulting
953 1st Avenue
Salt Lake CitY, Utah 84103
tsoi )3s's-o1iii / lsor )osi'saar cellular
ivan 6 webersustain.com
www.webersustain.com (under construction)
CG: "Sarah Fields'<[e-mail]
o
Attachment 2
Revised IQ SPreadsheet
To RePlace
December 1,2004 DRC
Statement of Basis, Attachment 7
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