DRC-2014-006522 - 0901a068804b05d7

4
Department of
Environmental Quality
Amanda Smith
Executive Director
State of Utah
GARY R HERBERT
Governor
DIVISION OF RADIATION CONTROL
Rusty Lundberg
Director DRC-2014-006522
SPENCER J COX
Lieutenant Governor
October 29, 2014
Air and Radiation Docket
U.S. Environmental Protection Agency
Mail Code: 2822T
1200 Pennsylvania Avenue, N.W.
Washington, D.C. 20460
Subject: Docket ID No. EPA-HQ-OAR-2008-0218. Comments on Proposed Rule: Revisions
to National Emission Standards for Radon Emissions From Operating Mill Tailings
(40 C.F.R. Part 61 Subpart W). 79 Fed. Reg. 25388, May 2, 2014.
Dear Sir or Madam:
The Utah Department of Environmental Quality, Division of Radiation Control (hereafter DRC)
appreciates the opportunity to submit our comments for the proposed revisions to the National
Emission Standards for Radon Emissions (40 C.F.R. Part 61 Subpart W) for your consideration.
During our review we identified some inaccuracies in the preamble to the Federal Register notice
(79 Fed. Reg. 25388, May 2, 2014) with respect to two of the uranium recovery facilities within
Utah. For purposes of the rulemaking record, we address these inaccuracies below because the
preamble, in large measure, provides the basis as well as added clarification for the proposed rule
changes.
Shootaring Canyon Uranium Mill
1. The EPA states on page 25394 that the mill operated for approximately 30 days. Our records
show the Mill operated for 76 days from April through August of 1982 and has been in
standby status thereafter.
2. On pages 25395 and 25397, the EPA refers to the tailings cell at the Shootaring Canyon Mill
as being "less than 40 acres in area and are synthetically lined as per the requirements in 40
CFR 192.32(a)." While it is true the tailings cell is less than 40 acres in size, it has a clay
liner, not a synthetic liner. The referenced tailings cell was constructed in 1981 and contained
a significant quantity of uranium byproduct material before the promulgation date (October 7,
1983) of 40 CFR 192.32(a). Therefore, it was not required to be constructed in accordance
with that standard. However, the DRC has explained to the operator of the Shootaring Canyon
Mill that if the Mill goes back into production (operational status), the tailings management
195 North 1950 West • Salt Lake City, UT
Mailing Address PO Box 144850 • Salt Lake City, UT 84114-4850
Telephone [phone] • Fax [phone] -TDD (801) 5364414
www deq Utah gov
Printed on 100% recycled paper
Air and Radiation Docket, EPA-HQ-OAR-2008-0218
October 28, 2014
Page 2
system will need to be upgraded in order to meet best available technology standards (e.g., 40
CFR 264.221).
White Mesa Uranium Mill
1. The EPA slates on pages 25395 and 25397 that Tailings Cell 3 will go to closure in 2014 and
that this was communicated to them by Utah Department of Environmental Quality staff. This
is apparently a misunderstanding by the EPA. The EPA was informed that Tailings Cell 3
may close in 2014, but that it was dependent on the following:
• Tailings Cell 3 is currently used to dispose material from in-situ leach (ISL) uranium
recovery facilities; and
• The facility plan is to move these operations to Tailings Cell 4A once the tailings beach is
high enough so it can be driven on without damaging the Cell liner. The Mill operator
does not plan to close Tailings Cell 3 until this condition can be met. Because of current
market prices for yellowcake, it is apparent that the Mill will not send enough tailings to
Tailings Cell 3 to close the impoundment in 2014.
2. The DRC agrees with EPA's proposed approach for non-conventional impoundments with
respect to not considering them as part of the disposal management practice for two tailings
cells permitted to operate. Due to the solutions/water contained within the non-conventional
impoundments, the radon dose from these impoundments would be minimal or non-existent.
Of the three uranium recovery mill sites in Utah, the White Mesa Mill is currently using two
of their tailings cells (Cells 1 and 4B) as non-conventional impoundments. Tailings Cell 1 is
used as an evaporation pond for process water, storm water, and water from groundwater
pumping. This water is used (or re-used) by the Mill for its milling process. Tailings Cell 4B
stores process water for evaporation or to be re-used by the Mill. Tailings Cell 4B was
licensed by the DRC as a tailings cell in June of 2010 and was constructed in accordance with
40 CFR 192.32(a). However, Tailings Cell 1 was approved by the,Nuclear Regulatory
Commission (NRC) in June of 1981 and was not constructed in accordance with 40 CFR
192.32(a), as the Cell is single lined. The operator of the mill was not required to construct
the Cell to that standard at that time because it predates the promulgation date of 40 CFR
192.32(a) (October 7, 1983) and at that time contained a significant quantity of uranium
byproduct material and met the definition of an "existing portion" as found in 40 CFR
192.31 (j), obviating the need to meet the newer liner requirements.
3. On page 25401 the EPA states, "Therefore, we are not placing any additional liner
requirements on facilities or requiring them to incur any additional costs to build their
conventional or nonconventional impoundments... beyond what an owner or operator of these
impoundments must already incur to obtain an NRC or NRC Agreement State license."
From our perspective this statement is true, as the DRC and the Utah Division of Air Quality
(hereafter DAQ) do not interpret the double liner and related construction requirements of 40
CFR § 221(c) [applicable through proposed 40 CFR § 61.252 (b) and, in turn, 40 CFR §
192.32(a)(1)] to apply to impoundments that were constructed before January 29, 1992. See
opening paragraph of 40 CFR § 221(c). We would therefore not require, unless otherwise
determined necessary due to confirmed liner failure, Cell 1 of the White Mesa Mill, for
Air and Radiation Docket, EPA-HQ-OAR-2008-0218
October 28, 2014
Page 3
example, to be upgraded because it contained a significant quantity of uranium byproduct
material and was constructed before the promulgation of 40 CFR 192.32(a) on October 7,
1983. However, we are aware that other stakeholders interpret the proposed rule to require
existing impoundments to upgrade. In light of this potential confusion, we recommend that
EPA reduce the potential regulatory confusion by making the applicability of these provisions
more clear rather than leaving the burden with regulatory agencies and challengers to clarify it
in administrative and/or judicial proceedings. The DRC recommends the EPA reiterate that
existing non-conventional impoundments that contained a significant quantity of uranium
byproduct material and were constructed before the promulgation of 40 CFR 192.32(a) on
October 7, 1983, are not now required to meet that standard or to make clear the standard that
will be required to be met, in consideration of an appropriate cost-benefit analysis.
It is important to note that the EPA periodically inspects the facility and/or reviews
environmental monitoring information to evaluate compliance with the Off-Site Rule
requirements of 40 CFR 300.440. From these inspections and evaluations, we are not aware
of any noncompliance issues identified or raised by EPA with respect to Tailings Cell 1.
4. On page 25402, the EPA states regarding evaporation ponds: "EPA has consistently
maintained that these non-conventional impoundments meet the existing applicability criteria
for regulation under Subpart W. " The State of Utah disagrees with this statement. EPA
inspected the White Mesa Mill for compliance from the time Subpart W was first promulgated
until it delegated this authority to Utah in April of 1995. As the DAQ Director has reminded
EPA staff in meetings, DAQ Staff accompanied EPA during these inspections. At no time did
the EPA inspectors take the position that the non-conventional impoundments were subject to
Subpart W. EPA also did not bring up the matter with respect to DAQ's oversight in 1995 or
for nearly two decades after that. It was not until meetings in 2012 and 2014 that EPA
representatives indicated their interpretation of the requirements of Subpart W had changed to
require non-conventional impoundments be considered as in "operation" for the purposes of
the rule. This change of interpretation was made without notice or justification to either the
regulator or the regulated entity, and without any corresponding change in the regulation. It
also relies on an awkward interpretation of a definition of two different things - uranium
byproduct material and tailings - and assumes that they are thereby joined as a single material
by the definition. The definition does not say that byproduct materials and tailings are co-
extensive; it is more likely that they were combined together for the purpose of including the
limitation about ore bodies in the definition of both materials.
Given this history, it is unrealistic to expect that any regulator could successfully implement a
new interpretation that would require the regulated entity to make substantial changes in long-
standing or existing disposal management facilities. For these reasons, we support making the
change explicit in the rule, as has been proposed.
Air and Radiation Docket, EPA-HQ-OAR-2008-0218
October 28, 2014
Page 4
Comments on Proposed Rule
1. 40 CFR 61.252(b) - The DRC agrees with the EPA regarding its proposal to allow
evaporation ponds of any size and not count an evaporation pond against the limitation that
only two conventional tailings cells can be in operation at one time. However, we believe it is
important to raise a concern regarding the proposed new requirement of 40 CFR 61.252(b) and
as described in the preamble on page 25398 that states "that during the active life of the pond
at least one meter of liquid be maintained in the pond. " Water, in an arid state like Utah and,
in general, in the overall arid climate of the western United States, where most of the uranium
recovery facilities are located, is a valuable and often limited resource and as such can be
extremely difficult (e.g., due to availability, cost, etc.) to use for purposes of meeting a
regulatory condition that sets a minimum liquid level. If, as referenced in the preamble, there
essentially is a "negligible" difference in calculated radon emissions from byproduct material
"covered with less than one meter of water, or merely saturated with water," compared to
byproduct material covered with more than one meter of water, then a required minimum level
of one meter is not fully justified, and should be reconsidered for the final rule. (See reference
on page 25398, first column.)
2. 40 CFR 61.252(a)(l)(i) and (ii) -In both paragraphs, the EPA proposes to remove the wording
"as determined by the Nuclear Regulatory Commission. " With these proposed changes, EPA
appears to be moving toward dual jurisdiction with NRC and NRC's Agreement States over
ground water protection matters. Dual jurisdiction is inefficient and potentially burdensome to
uranium recovery facilities. A radioactive material licensee would effectively be required to
simultaneously go through the entire design and permitting process for new tailings cells with
the NRC (or Agreement State) and with the EPA (or delegated state). It is unclear how a
regulated entity or a person concerned about a regulated entity would resolve concerns if two
agencies interpreted the same requirements in different ways. Appeals of approvals would
also be inappropriately complicated.
Congress recognized these potential problems and, for byproduct materials, explicitly gave
jurisdiction for oversight of general standards to protect public health and the environment
only to NRC and its Agreement States. 42 USC 2022(d). EPA has a significant role to play
with respect to these general standards because it has authority to establish the standards by
regulation. The standards will then be adopted and implemented by NRC. EPA does have
authority to regulate radon emissions under NESHAPs. Because of potentially conflicting
jurisdiction, any attempt by EPA to broaden its direct oversight role should be clear about
where the source and boundaries of its authorities are and about how its jurisdiction will be
exercised. It should also be done only in close consultation with NRC and NRC's Agreement
States.
In summary, the removal of the phrase "as determined by the Nuclear Regulatory
Commission" is unnecessary in order to implement the NESHAPs requirements under the
Clean Air Act. The phrase should be retained - and even added to other pertinent provisions -
to clarify where authority lies.
Air and Radiation Docket, EPA-HQ-OAR-2008-0218
October 28, 2014
Page 5
3. We also recommend that EPA consider simplifying the rule by reducing the number of links
that must be followed in order to understand and determine the applicable requirements.
Subpart W should either state the substantive requirements directly or should refer only to 40
CFR § 221 and, if necessary, directly incorporate the provisions associated with evaporation
and precipitation found in 40 CFR § 192.32(a)(1). Doing this would likely minimize
regulatory confusion and misunderstanding.
We appreciate the opportunity to comment on the proposed rule and thank you for your
consideration of our comments.
Sincerely,
cc: Bryce Bird, Utah Division of Air Quality (DAQ)
Laura Lockhart, Utah Attorney General's Office
Angelique Diaz, EPA Region 8