DRC-2018-002744 - 0901a068807d2010

Joel Ban, USB #10114
Ban Law Office PC
Post Office Box 118
Salt Lake City, Utah 84110
80t-532-2447
[e-mail]
Aaron Pari (pro hac aice pending)
Grand Canyon Trust
4404 Alcott Street
Denver, Colorado 80211
303-477-7486
[e-mail]
Attorneys for Petitioner
Grand CanlonTiust
In re Renewal of Radioactive Materials
License No. UT 7900479 (Am. 8) for the
White Mesa Uranium Mill (Feb. 16, 2018)
RECEIVED
MAR 1 5 2018
DEPARTMENT OF
ENVIRONMENTAL OUALITY
Div of Waste Management
and Radiation Control
MAR t 5 20tB
BEFORE THE EXECUTIVE DIRECTOR OF THE
UTAH DEPARTMENT OF ENVIRONMENTAL QUALITY
File No. _
Filing and Service Date: March tsr 20t8
PETITION FOR REVIEW
The Grand Canyon Trust petitions for review of the Director of the Division of Waste
Management and Radiation Control's permit order renewing Energ5r Fuels Resources (USA)
Inc.'s radioactive materials license for the White Mesa uranium mill (License No. UT1900479,
Am. 8), dated February 16,2018 (the "License").
I. Legal Authority andJurisdiction for Reviewr
l. The Director issued the License under Utah Code Title 19, Chapter 3 and Rule
R313 of the Utah Administrative Code.2 The Trust petitions for review of this "permit order,"3
lSee Utah Code SS 1e-1-301.s(6)(dXv)(e) & (B); Utah Code S 63c-4-20r(t)(a)(iv);
utah Admin. code R30s-7-203(3)(d), (r)(e)(i)-(ii).
under Utah Code S 19-1-301.5 and Utah Administrative Code Rule R305-7-203(1). The
Executive Director of the Utah Department of Environmental Quality has iurisdiction over this
matter under Utah Code SS 19-1-301.5 & 19-1-202 and Utah Admin. Code R305-7.
II. Names and Address of Recipientsa
2. This petition is being sent to:
Scott T. Anderson
Director, Division ofWaste Management and Radiation Control
195 North 1950 West,2nd Floor
Salt Lake City, Utah 84776-3097
[e-mail]
Administrative Proceedings Records Officer
Environment Division, Utah Attorney General's Office
195 North 1950 West, 2nd Floor
Salt Lake City Utah 84116
[e-mail]
Bret Randall
Assistant Attorney General
Office of the Attorney General, Environmental Division
195 North 1950 West
Salt Lake City, UT 84116
[e-mail]
Michael A.Zody
Parsons Behle & Latimer
201S. Main St., Ste. tgoo
Salt Lake Ciry, Utah 841u
MZo dy @ p arso nsbehl e. com
Attorney for Energy Fuels Resources (USA), Inc.
'Utah Dep't of Envtl. Quality, Div. of Waste Mgmt. & Radiation Control, Radioactive Materials
License No. UT1900479, Am.8 at p. 1 (Feb. 16,2018) ("2018 License"); see also Utah Code
$ 1 9-3-104 ; Utah Admin. Code R313-22-33, R373-24.
3 See Utah Code SS 1e-1-301.s(1X0(i) & 1e-1-301.s(1)(e).
a See Utah Code SS 1e-1-301.s(6)(d)(ii); Utah Code S 63G-4-20t(:)(a)(i); Utah Admin. Code
R30s-7-203(:)(r).
m. Statement of Factss
A. The Grand Canyon Trust
3. The Grand Canyon Trust is a membership-based, non-profit advocacy
organization founded in 1985 that has over 3,000 members.6It is headquartered in Flagstaff,
Arizona, and has offices in Castle Valley and Salt Lake City, Utah, and Durango and Denver,
Colorado.T The mission of the Trust is to protect and restore the Colorado Plateau - its
spectacular landscapes, flowing rivers, clean air, diversity of plants and animals, and areas of
beauty and solitude.s Additional information about the Trust is set out in the Trust's Petition to
lntervene and Statement of Standing, which is being filed and served along with this Petition for
Review.
B. The White Mesa Mill
4. The White Mesa mill sits a few miles north of the centuries-old Ute Mountain
Ute tribal community of White Mesa and a few miles south of downtown Blanding. It is an acid-
leaching, uranium-processing mill that turns uranium ore and other uranium-bearing substances
into a product called yellowcake, which is then enriched for use in nuclear reactors. Black flake, a
substance used in other industrial processes, is also made at the mill by extracting vanadium from
some feeds. Mostly what comes out of the mill, though, is radioactive waste. This waste,
commonly called tailings, is discarded in big pits spanning about275 acres next to the mill. There
are five of these pits, or "impoundments," at the mill, named Cell t, Cellz,Cell3, Cell4A, and
Cell 48. Some of these pits have been used in the past to hold mostly solid wastes and, for that
s See Utah Code $ 63c-4-2ot(a)(a)(vi).
6 Reimondo Decl. if 2 attached as Ex. A to the Grand Canyon Trust's Petition to Intervene and
Statement of Standing (Mar. 12,2018) ("Reimondo Decl.").
7 Id.
I Id.atflz.
reason, are sometimes called "conventional impoundments."e Others have been used for mostly
liquid wastes and are sometimes called "evaporation ponds" or "non-conventional
impoundments."lo
5. A company called Energ5r Fuels Nuclear, Inc., built the mill in the late 1970s to
process low-grade uranium ore from the surrounding region.rl Back then, the company planned
to run the mill for 15 years, then close and reclaim it.r2 The radioactive tailings were to be cleaned
roughly 4-year phases while the mill was operating.r3
6. But that has not happened. Instead, Energy Fuels Nuclear, fired up the mill in
1980, made yellowcake for about three years, and pumped the resulting radioactive tailings into
Cells 1, 2rand3.1a Then, when the price ofyellowcake plummeted in 1983, the company
t See, e.g.,40 C.F.R. S 61.251(h).
'o See, e.g.,40 C.F.R. S 61.251(i).
" Ex. 2to Grand Canyon Trust, Comments on the Proposed Renewal of Energt Fuels Resuurces
(USA), Inc.'s Radioactirse Materials License and Groundwater Discharge Permitfor the White Mesa
Mill [dy 31,2077) ("Comment Ex.") at 1-3 (arguing that the mill has independent utility for the
purpose of processing low-grade, regional ores); id. at10-27 (observing that small mines with low-
grade ore would not be economically viable without the mill); Energr Fuels Resources (USA)
Inc., Reclamation Plan: White Mesa Mill, Blanding, Utah - Radioactive Materials License No.
UT7900479, Revision 5.1B, p. 2-1 (Feb. 2018) ("Rec. Plan Rev. 5.1B").
" CommentEx.2 at iii (explaining that production will last for 15 years); id. at1-1, 3-15 (same);
id. at3-78 (showing projected operating life of 15 years and phased reclamation schedule
extending no more than 5 years beyond that); id. at 4-3 ("Based on the capacity of the tailings
cells, the mill has a potential to operate 15 years."); Comment Ex. 3 at 1-2 ("The mill is planned
to have a2,000 tons-per-day capacity and a projected life of 15 years."); id. at5-38 ("The area
occupied by the proposed mill and tailing retention system (about 310 acres) would be committed
until the life of the mill ends, about 15 years. ").
" CommentBx.2at3-17 ("The tailings cells will be reclaimed sequentially as each cell is filled,
beginning after about the fourth year ofoperation and every four years thereafter until
termination of project operations. ").
" CommentEx.4 at 11 (Table 3 showing "tailings placement period" beginning in 1980 for
CeLl2,1981 for Cell t, andtgSz for Cell 3).
shuttered the mill and waited for prices to rise.ts This pattern has continued ever since. An ore-
processing "campaign" is run when yellowcake is fetching a good price, and then the mill lapses
into "standby" when the price of yellowcake falls.l6 Though nearly 40 years have passed, not one
of the mill's waste pits has been fully reclaimed.
7. Ownership of the mill has been similarly tumultuous. Over the years, it has
changed hands at least four times.l'Today, a company called Enerry Fuels, Inc., owns and
operates the mill through subsidiaries. A subsidiary called Energy Fuels Resources (USA) Inc.
holds the radioactive materials license for the mill.
8. The mill's business model has also changed over time, no doubt due to volatility
in the uranium market. fuound the early 1990s, Energy Fuels Nuclear began pursuing a new
source of revenue by processing ((alternate feeds" and discarding the resulting waste at the mill.
These feeds include uranium-bearing wastes from other contaminated places around the country.
In 1998, for example, Energy Fuelsrs was paid over $4 million to process and dispose of
radioactive soil that was contaminated not only by the Manhattan Project, but also by other
industrial and chemical ventures.'e From these sorts of feeds, the waste pits at White Mesa now
ls Comment Ex.5 at 2-3; Comment Ex. 6; CommentBx.T.
'u Comment Ex. 4 at 5 (showing "standby" periods in 1984, lggl-7994r2000-2004, with
minimal production in 1998 and 2005).
" Rec. Plan. Rev. 5.1B at 2-1.
18 At the time, the mill was owned by a company called International Uranium (USA)
Corporation. For simplicity's sake, this petition generally refers to the mill's prior owners as
Energy Fuels.
le See Comment Ex. 11 at 1 (observing that Energy Fuels would be paid a fee of $4 million to
process and dispose of the material, an amount that far exceeded the value of the yellowcake to be
produced); id. at3 (explaining that the soil was waste from uranium extraction affiliated with the
Manhattan Proiect); In re Int'l Uranium (USA) Corp. (source material license amendment, Ashland 1
mateial),NRC Docket No. 40-8681, 1998 WL906787 at *4, n.l (Dec. 2, 1998) (describing
contamination of Ashland 2 site by activities in addition to the Manhattan Engineering District).
contain radioactive and contaminated wastes from rare-metals mining,2o uranium-conversion
plants,2r and contaminated defense-related facilities ," amongother sources.
C. Wastes Generated by and Discarded at the White Mesa Mill
9. Two main waste streams are generated at the mill by processing ore and alternate
feeds. The first is a radioactive slurry of crushed, watered-down, acid-soaked, leftover feed
material that is pumped out of the mill from a series of eight big tanks called the counter-current-
decantation circuit. The second is a uranium-depleted solution, sometimes called raffinate or
"process solution," that is discharged from solvent-extraction circuits. Both waste streams are
pumped into the waste pits next to the mill.
10. When the mill first started running in about 1980, Energy Fuels pumped the waste
slurry from the counter-current-decantation circuit into Cell 2. Since about the same time, Cell 1
has been used to get rid of raffinate wastes. By the mid-to-late 1980s, Cell2 was full, or nearly
full, of tailings and the company stopped sending the slurry to that cell (though it may have
eventually topped offthe cell with tailings as late as the mid-1990s).23 But the company did not
close or reclaim the cell. Instead, it kept burying trash and contaminated wastes in Cell 2 for
about two decades.2a Throughout that time, when the mill was running, Energy Fuels pumped
the waste slurry from the counter-current-decantation circuit into Cell 3.2s In2008, Energlr Fuels
20 See Comment Ex. 72 at2-3.
21 ,See Comment Ex. 13 at 1.
" See, e.g., Comment Ex. L4 atL-4.
" See, e.g., Comment Ex. 4 attl (Table 3); Comment Ex. 15 (aerial photograph of the mill taken
in 1983 showing Cell2 to be mostly full of tailings); Comment Ex. 16 at App. L p. 1 (asserting that
"Cell2 ceased receiving tailings in 1995").
" Comment Ex. 4 at 18.
" Comment Ex. 4 at 11 (Table 3).
rerouted the slurry into Cell 4A. Eventually, the company plans to pump that slurry into Cell 48,
which is now used to hold wastes siphoned from Cell 4A.
D. Source-Material and Byproduct-Material Licensing
11. To mill uranium, EnergSr Fuels is required to have a radioactive materials license
issued by the Director that authorizes the company to possess and process "source material" -
which generally means uranium ore-and to dispose of the waste "byproduct material" -or
tailings-that the mill generates.26 The Director is authorized to issue this license under state
law, exercising authority delegated to the state by the U.S. Nuclear Regulatory Commission.
12. The main requirements for managing and disposing of tailings originate from a
federal law passed in7978 called the Uranium Mill Tailings Radiation Control Act. Congress
found in UMTRCA that "uranium mill tailings located at active and inactive mill operations may
pose a potential and significant radiation health hazardto the public" and sought to regulate
tailings in " a safe and environmentally sound manner . . . to prevent or minimize radon diffirsion
into the environment and to prevent or minimize other environmental hazards from such
tailings. "27 Radon is a gas that can cause lung cancer and other serious health impairments." To
comply with UMTRCA, the Nuclear Regulatory Commission set standards in 1980 for managing
and reclaiming tailings.'e They appear in 10 C.F.R. Part 40, Appendix A. The State of Utah has
'6 utahCode g 79-3-ro4;utah Admin. code R313-19-2(1).
" +zu.s.c. g 7901(a).
28 See "National Emission Standards for Hazardous Air Pollutants: Standards forRadon-Z}2
Emissions from Licensed Uranium Mill Tailings," 51Fed. Reg. 34,056134,056-57 (Sep. 24,
1e86).
2e Uranium Mill Licensing Requirements, 45 Fed. Reg. 65,521 (Oct. 3, 1980).
adopted most of Appendix A by reference, but the State has substituted its groundwater-
protection rules for those in Appendix A.30
E. ReclamationRequirements
13. To renew its radioactive materials license, Energy Fuels was required to submit a
plan for closing and reclaiming the mill that meets Appendix A's technical and financial
requirements.3l The Director is to deny Energy Fuels' license application if the company fails to
"clearly demonstrate how the requirements and objectives set forth in appendix A have been
addressed. . .. "32
74. Appendix A's goal is to secure "permanent isolation of tailings and associated
contaminants by minimizing disturbance and dispersion by natural forces, and to do so without
ongoing maintenance."33 To that end, it sets standards for where to put tailings-disposal sites,
designing and building those sites, gathering baseline environmental data before milling
operations begin, protecting groundwater, monitoring and inspecting tailings-disposal areas,
closing and reclaiming those areas, and minimizing air-quality impairments from milling.3a Two
types of financial guarantees are also required.3s First, mill operators must arrange a financial
surety before they start milling uranium that guarantees enough money will be available to
30 See Utah Admin. Code R313-24-4 (adopting Appendix A by reference but replacing
Criteria 5B(1) through 5(H), 7A and 13 with Utah's groundwater-quality-protection rules).
31 See1r0 C.F.R. S 40.31(h) (requiring uranium-milling applications to include written
speeifications for the disposition of byproduct material to achieve the requirements and
objectives of 10 C.F.R. Part 40, Appendix A); Utah Admin. Code R313-24-4 (incorporating
10 C.F.R. S 40.31(h) by reference).3'ro c.F.R. S 40.31(h).
" to C.F.R. Part 40, Appendix A, Criterion 1.
3a SeeTO C.F.R. Part 40, Appendix A, Criteria 1-8A.
3s See id. at Criteria 9-10.
properly reclaim the mill and its wastes if the mill operator defaults on that obligation.36 Second,
mill operators must pay the state a fee that generates enough interest to pay for long-term site
surveillance by the state or federal government after the mill closes.3i
15. As soon as a tailings impoundment at a uranium mill "ceases operation,"
Appendix A requires mill operators to expeditiously build a "final radon barrier" over the
impoundment " in accordance with a written, Commission-approved reclamation plan. " 38 The
final radon barrier must be designed to work for at least 200 years and to limit average releases of
radon to 20 picocuries per square meter each second (20 pCi/(m2-sec)).3e Other hazards posed
by tailings impoundments-such as contaminants leaching into the ground or groundwater-
must be controlled, eliminated, or minimized.oo And impoundments must be closed to minimize
future maintenance, meaning that the cover must hold up to earthquakes, floods, freezing,
precipitation, burrowing animals and deep-rooted plants, erosion, and nature's other
onslaughts.al Deadlines -or "milestones " -for finishing the final radon barrier, retrieving
windblown tailings, and stabilizing the tailings impoundment are to be established in a
reclamation plan and as conditions of each mill's radioactive materials license.o2
tu Id. atCriterion 9.t' Id. atCriterion 10.
38 Id. atCriterion 64'.
3e SeeAppendix A, Criteria 6 & 6A. A picocurie (pci) is one trillionth of one curie (Ci), which is a
unit for measuring the intensity of radioactivity of a material. See U.S. Nuclear Regulatory
Commission, "Curie (Ci)," "Picocurie (pCi)" at:ailable athttp://www.nrc.gov/reading-
rm/basic-ref/ glossary.htrnl.
oo to C.F.R. Part 40, Appendix A, Criterion 6(7).
o' Id. atCriterion 6(7).
a2 See id. at "Reclamation Plan" and Criterion 6A.
F. ReclamationPlan Revision 5.lB
16. The License issued on February l6,2}TSrincorporates by reference Revision 5.1B
of Energy Fuels' reclamation plan ("Revision 5.1B"). Plan Revision 5.1B describes how Energr
Fuels intends to go about closing and reclaiming the mill and its waste impoundments.43 This
version of the reclamation plan reflects changes that Energy Fuels volunteered to make in
response to public comments on the version of the plan that was put out for public comment,
which was called Revision 5.1.
17" Under Revision 5.18, Energy Fuels plans to build a monolithic evapoffanspirative
cover-often called an "ET cover" -to serve as the "final radon barrier" over most of the mill's
impoundments.aa According to the company, the ET cover has four layers: (7) 2.5'of interim
cover, which is dirt that Energy Fuels is supposed to place over the mill's waste pits while they
are in use to help reduce radon emissions; (2) a3-4'primary radon-attenuation layer made of
highly compacted loam and clay; (3) a 3.5' "growth medium layer" that is intended to store
water, deter biointrusion, protect the primary radon-attenuation layer from frost, and further
reduce radon emissionsl and (a) a 0.5' erosion-protection layer composed of topsoil or topsoil-
gravel mixture.as The basic idea behind this design is to use vegetation to absorb and remove
precipitation from the cover through evapotranspiration so that rain and snowmelt do not seep
through the tailings and eventually contaminate groundwater.
18. This design departs from the one Energy Fuels has had in place since the late
1990s.a6 That plan called for construction of a "conventional" cover that Energy Fuels designed
o' See generalfuRec. Plan Rev. 5.1B at 3-1 to 6-10.
aa See Rec. Plan Rev. 5.1B at I-2r3-4.
ot Rec. Plan Rev. 5.1B at 3-4.
ou CommentBx.20; id. at3-15.
10
in 1996 and the Nuclear Regulatory Commission approved sometime in the ensuing few years.
That cover design would use a compacted clay layer placed on top of the interim cover to repel
water infiltration into the tailings and it would be topped with rocks, rather than vegetation, to
prevent erosion. From the bottom up, the cover would have a one-foot clay layer, two feet of
compacted random fill, and 3 to 8" of rock "armor" on the top and sides.oT
19. Energy Fuels abandoned the 1996 conventional-cover design principally because
research and modelling show that more water is likely to infiltrate into conventional covers than
ET covers.at ln 2010, to help develop Revision 5.1of the reclamation plan, the company
modelled infiltration and contaminant-transport for four possible cover types-three
evapotranspirative designs and the 1996 conventional cover design.ae Based on that modelling,
Energy Fuels concluded without equivocation that the conventional cover should be eliminated
from further consideration "because the model predicted much higher rates of infiltration. "s0
20. Division staffare skeptical of that conclusion. They are worried that Energy Fuels
will not be able to establish enough vegetation on the ET cover for evapotranspiration to
adequately reduce water infiltration through the cover.sr So, rather than finish covering Cell2
t'Comment Ex. 20 at3-7.o'CommentBx.22 at E-5 (" [R]ecent advances in cover design technology have emphasized the
construction of vegetated, monolithic ET covers for minimizing infiltration through engineered
cover systems, particularly in arid and semiarid regions.").
oe CommentBx.22at E-1.t'CommentBx.22at E-8.
sl Division, Public Participation Summary: Radioactiue Material License UT1900479 Renewal,
Ground l,I/ater Qualitl Discharge Permit UGW370004 Renewal, and Sequolah Fueb Alternate Feed
Request, Energt Fuels Resources (USA) Inc. (Energ Fuels) Ilhbe lLesa Uranium Mill, San Juan
County, Utah,p.204 (Jaru,nry 23r2078) ("2018 Pub. Participation Summ."); Comment Ex.23 at
8 ("The [Division] staffhad a number of concerns with the proposed cover system and has
worked with [Energlr Fuels] through several rounds of interrogatories to resolve those concerns.
11
with the 1996 conventional design or Revision 5.1's evapotranspirative design, the Director and
Energy Fuels agreed in a Stipulation and Consent Agreement-executed in February 2017,
before the public-comment period on the License-to build two small test sections of the
ET cover in the corner of Cell 2 and gather performance data from them for seven years.t'If the
test sections meet performance criteria (for how much precipitation seeps through the cover and
how much vegetation grows on the cover), then Energy Fuels will finish building the ET cover on
Cell 2.s3 If the test sections do not meet those criteria, Energy Fuels will have a chance to revise
the design to the Director's satisfaction.to If the Director is ultimately unsatisfied with Energy
Fuels' proposed design, then the Consent Agreement commits Energr Fuels to building the
conventional cover on Cell 2.ss And Reclamation Plan Revision 5.1B calls for the cover selected
for Cell 2 to eventually be built on Cell 3, Cell 4A', possibly part of Cell 1, and on Cell 48
depending on what kind of wastes go in that cell.s6
IV. The Trustts Arguments, HorThey Were Preserved, and Why the Director's
Decision is Clearly ErroneoussT
A. The Directorts reiection of public comments on the tailings-cover design was
clearly erroneous, failed to follow prescribed procedures, was contrary to agency
rule, and was otherwise arbitrary and capricious.
27. In its comments on the proposed License, the Trust advocated numerous changes
in the ET cover design, such as adding a capillary break to minimize leachate that could
Unfortunately, [Energy Fuels] could not resolve all of stafls concerns from information available
during the review process. ").s' CommentEx.2l at 4-5.t' CommentBx.27 at7.
to Id.
ss Id.
tu Rec. Plan Rev. 5.1B at 3-3 to 3-6,5-1 to 5-2.
s7 SeeutahCode SS 19-1-301.s(6)(d)(v)(C), (D), (G) & (H); Utah Code S 63c-4-20t(a)(a)(vi);
Utah Admin. Code R30s-7-203(a)(e)(iii)-(iv), (vii)-(viii).
72
contaminate groundwater, adding a composite barrier of compacted clay and a geomembrane
beneath the evapotranspirative layers, and adding a biointrusion layer to deter burrowing into the
cover.St The Trust also argued that the Director should require Energy Fuels to develop and
carry out a functional monitoring plan to measure percolation through the final cover and
monitor other cover properties to help diagnose future problems, such as excessive infiltration of
precipitation into the tailings.se And the Trust asked the Director to revise the Consent
Agreement so that it does not allow Energy Fuels to revert to the 1996 conventional cover design
without updating the design.60 The Trust preserved these arguments by raising them in its
comments.6l
22. The Director reiected all these comments.62
23. The Director's determinations rejecting those comments were clearly erroneous,
failed to follow prescribed procedures, were contrary to agency rule, and were otherwise arbitrary
and capricious. The Director foreclosed the opportunity for meaningful public comment on the
tailings-cover design by making binding commitments in the Stipulation and Consent
Agreement-executed several months before the public-comment period on the license-that
committed the Director to approving the plan Energy Fuels proposed. The Director also
erroneously concluded that he lacks authority to require changes to the tailings-cover design that
are ostensibly "more stringent" than federal law calls for or ttmore stringent" than the
s8 Grand Canyon Trust, Comments on the Proposed Renewal of Energ Fuels Resnurces (USA), Inc.'s
Radioactiye Materials License and Groundwater Discharge Permit for the l{/hite ALesa Mill, pp. 29-32
$uly 31, 2017) ("Trust Comments").
se See Trust Comments at 33.
60 Trust Comments at22-29.
61 Trust Comments at 22-33.
62 See 2Ol8 Pub. Participation Summ. at277-212,241-264.
13
conventional-cover design that was previously approved in the 1990s by the Nuclear Regulatory
Commission. And the Director clearly erred by retaining approval of the 1996 cover design even
though the evidence before the Director did not "clearly demonstrate" that the 1996 cover
would satisfy Appendix A's criteria.53
24.The Director and Energy Fuels entered into the Consent Agreement in February
2O77, severul months before the Director put the license and reclamation plan out for public
comment.6a The Director did not seek public comments on the Consent Agreement.
25. The Consent Agreement obliged Energy Fuels to construct two test sections of
the ET cover as described in Reclamation Plan Revision 5.1 and monitor various performance
criteria on those test sections for about seven years.6s Energy Fuels had already built the
"primary test section" by the time the Consent Agreement was executed and well before public
comments on the cover design were solicited.66If the test sections satisfy the performance
criteria laid out in the Consent Agreement, Energy Fuels will build the ET cover on Cell 2 using
the design described in the Consent Agreement and Reclamation Plan Revision 5.1-all of which
were worked out before any public comment was sought on the reclamation plan.67 And if the test
sections fail the performance criteria, and an impasse is reached between the Director and Energy
Fuels on modifications to that design, the Consent Agreement obliges Energlr Fuels to build the
1996 conventional-cover design.68 Reclamation Plan Revision 5.1B, in turn, commits Energlr
63 See to C.F.R. 40.31(h).
6a See Comment Ex. 21.
6t CommentEx.2Tat SS D.2 to D.4.
uu CommentEx.2Tat $ D.2(a).u'CommentBx.Ztat SS D.7(a) & D.s.
6t CommentBx.Zlat S D.7O).
74
Fuels to using the same design approved via the Consent Agreement to cover not only Cell 2, but
also Cell 3, Cell 4A, and possibly Cell 4B and part of Cell t.6e
26. In the Consent Agreement, the Director made a binding commitment to approve
Reclamation Plan Revision 5.1, agreeing in Section C.11 that "[t]he Director will approve
Reclamation Plan 5.1 (the 'Approved Reclamation Plan') upon completion of a public notice and
comment period, and in conjunction with and conditional upon the execution and delivery of this
Agreement by [EnergSr Fuels] and the Director. "70
27. Although this commitment allowed the Director to complete a public notice and
comment period, it did not reserve to the Director any right to modify the Consent Agreement to
account for public comments on the proposed reclamation plan. And other commitments in the
Consent Agreement foreclosed the Director-absent Energy Fuels' consent-from agreeing to
numerous comments that the Trust made on the Reclamation Plan.
28. The Director rejected or disagreed with every single comment the Trust raised
about the reclamation plan.Tl The only changes to the reclamation plan that the Director has now
accepted are those that Energy Fuels volunteered to make, and that were thus made with Energy
Fuels' consent, consistent with the Consent Agreement.
29. Waste Management and Radiation Control Board rules provide that " [t]he
Director shall give public notice of and provide an opportunity to comment on ... [a] proposed
major licensing action" for the type of license Energy Fuels holds .'2 To maintain its delegated
6e Rec. Plan Rev. 5.1B at 3-3 to 3-6, at5-7to 5-2.
'o CommentBx.2lat $ C.11.
" 2018 Pub. Participation Summ. at 19 6-2o5, 208-272, 224-268.
72 SeeUtahAdmin. Code R313-17-2(t).Maior licensing actions include "[p]ending issuance of a
license renewal. " Id. at R373-tz-z(t) (a) (i) (B).
15
authority for regulating source and byproduct materials, the State of Utah must comply with
numerous conditions in the Atomic Energ;r Act.73 Among those conditions is a requirement that
the State "provide procedures under State law which include ... an opportunity, after public
notice, for written comments and a public hearing, with a transcript land) a written d.eterrnination
whhh is basedupon findings included in such determination and upon the euidence presented during
the public comment period, and which is subject to judicial review. "Ta
30. By making commitrnents without public comment to approve Reclamation Plan
Revision 5.1, test the ET cover as proposed by Energy Fuels, and build either that cover or the
1996 cover depending on the performance test, the Director did not base his determinations
about the Reclamation Plan "upon the evidence presented during the public comment period."Ts
His determinations were made before the public comment period everbegan. The Director
thereby foreclosed any meaningful opportunity during the license proceeding to comment on the
design of the cover as described in the reclamation plan incorporated into the License. His
determinations on the Trust's comments were therefore clearly erroneous, failed to follow
prescribed procedures, were contrary to agency rule, and were otherwise arbitrary and
31. The Director also erroneously concluded that it could not require Energy Fuels to
update thel996 conventional cover design or require Energy Fuels to develop and carry out a
'3 qzu.s.c. S 2021(d),0).
7' qzrJ.s.c. g 2021(o)(a)(A) (emphasis added).
" Id.
76
functional monitoring plan because those requirements would be "more stringent" than the
requirements imposed by the Nuclear Regulatory Commission.i5
32. These determinations were contrary to law, clearly erroneous, and an abuse of
discretion. It is consistent with federal law-not more stringent than federal law-to require
Energy Fuels to "clearly demonstrate" how the "requirements and obiectives" of Appendix A of
"have been addressed" in its reclamation plan, both for the ET cover and for the 1996
conventional cover, since the plan requires one or the other to be built.77 It is also consistent with
Appendix A to require post-closure monitoring, which will help minimize ongoing maintenance
and improve protection of public health and the environment.Ts
33. State law prohibits only the Utah Waste Management and Radiation Control
Board from adopting rules that are more stringent than corresponding federal regulations unless
the Board finds that the federal regulations "are not adequate to protect public health and the
environment of the state. "7e That does not prevent the Director from implementing license
conditions that satisfy the standards in Appendix A. Rather, the Director is obliged when
approving a license amendment and reclamation plan under State and federal law to ensure that
tailings are disposed of in a manner that protects public health and the environment.8o
34. The Director also clearly erred: (1) by relying solely on the Commission's prior
approval of the 1996 cover to determine that the cover would meet Appendix A's requirements
'6 2ol8 Pub. Participation Summ. at55,272.
77 ro c.F.R. S 40.31(h).
78 SeeIO C.F.R. Part 40, Appendix A, Criterion 6(7) ("The licensee shall ensure that disposal
areas are closed in a manner that minimizes the need for further maintenance. "); Criterion 12
("The final disposition of tailings, residual radioactive material, or wastes at milling sites should
be such that ongoing active maintenance is not necessary to preserve isolation. "); Criterion 1.
'e Utah Code S 19-3-104(7)-(8).
80 See Utah Admin. Code R313-22-33;10 C.F.R. Part 40, Appendix A; 10 C.F.R. S 40.31(h).
77
and; (2) by determining that Energy Fuels has a '(vested right" to build that cover system.81 The
evidence before the Director did not "clearly demonstrate" that the 1996 cover would satisfy
Appendix A's criteria. On the contrary, Energy Fuels' modelling showed that the conventional
cover would allow much more precipitation to flow through the 1996 cover than the ET cover.s'
And the evidence before the Director reveals that the modelling performed in the 1990s to
support the 1996 cover design is outdated and unreliable.s3It used incomplete or obsolete data for
seasonal temperatures, annual freezingindex, the length of historic frost seasons, soil-moisture
content, tailings porosity, cover-material porosity rradium-226 activity in the tailings, and other
variables.sa No analysis of how biointrusion would affect the 1996 cover's performance has ever
been performed.8s Whatever conclusion the Nuclear Regulatory Commission reached about the
1996 cover's performance when approving it twenty years ago is therefore obsolete and
unreliable. The evidence before the Director thus did not "clearly demonstrate" that the 1996
cover could meet Appendix A's requirements. It was clear error to approve the use of that cover
design without updating the analysis underlying that design.
B. The Director clearly erred by failing to require milestones in Reclamation Plan
Revision 5.rB for all tasks that are key to completing the final radon barrier.
35. Reclamation Plan Revision 5.1B lacks several impoundment-closure milestones
that the plan is required to have. Appendix A mandates that reclamation plans have "milestones
that are key to the completion of the final radon barrier...."86 At a minimum, milestones must be
81 2018 Pub. Participation Summ. 54-55, 211, 242, 244-245, 252, 254.8' Commen tEx. 22 atD-7 (predicting an infiltration rate of 0.0 092 cm/ day for the conventional
cover and a range of O.OOOtz cm/day to 0.000031 cmlday for the evapotranspirative covers).
83 Trust Comments at25-28.
'o Id.
" Id.atzz.
t6 tO C.F.R. Part 40, Appendix A, "Reclamation Plan" & Criterion 6A.
18
established for retrieving windblown tailings, stabilizing the impoundment (including removing
freestanding liquids, recontouring, and dewatering), and finishing the final radon barrier.sT
Milestones are not flexible goals. They are "an action or event that is required to occur by an
enforceable date. "88
36. Appendix A supplies procedural safeguards in Criterion 6A(2) to make sure that
extensions of milestones are grcnted only for a good reason and to protect public health and the
environment during periods of delay. Extensions may be granted only after an opportunity for
public participation, only if radon levels are measured and are below 20 pCi/(mz-sec) during the
period of delay, and if an extension is sought based on cost, only after the Director makes
additional findings.se
37. In response to the Trust's comments about reclamation milestones submitted
during the public-comment period, Energy Fuels tendered changes to Section 6 of Plan
Revision 5.1 to establish firm deadlines for removing freestanding liquids, recontouring,
dewatering, and building layer 1 and layer 2 on conventional impoundments.eo Energy Fuels
established schedule commitments, rather than milestones, for other tasks, including placement
of Layers 3 and 4 of the ET cover.el These schedule commitments are not subject to the
procedural and other safeguards set out in Appendix A, Criterion 6A(2).e2
38. In sur-reply comments solicited by the Director, the Trust argued that the
Director should require Energy Fuels to establish milestones, not schedule commitments, for
" Id.
88 t0 C.F.R. Part 40, Appendix A, "Milestone."
" t0 C.F.R. Part 4O,Appendix A, Criterion 6A(2).
eo Rec. Plan Rev. 5.1B at 6-7 to 6-7.
e'Rec. Plan Rev. 5.1B at 6-5.e'Rec. Plan Rev. 5.1B at 6-7,6-5.
19
placing Layers 3 and 4 of the ET cover.e3 The Trust preserved this argument by raising it in the
Trust's initial comments and sur-reply comments on the proposed license renewal.ea
39.The Director did not respond to this comment, aside from asserting that it
considered sur-reply comments that were submitted.es
40. The Director's failure to require milestones for placing Layers 3 and 4 of the
ET cover was clearly erroneous, contrary to law, and arbitrary and capricious. Milestones must
be established in the reclamation plan for completing the "final radon barrier."e6 The "final
is "the earthen cover (or approved alternative cover) over tailings or waste
constructed to comply with Criterion 6 of [Appendix A] (excluding erosion protection
features). "e7 Criterion 6 requires placement of an "earthen cover (or approved alternative) " over
tailings or wastes that reduces the average radon release rate to 20 pCi/(m2-sec).e8 Layers 1-4 of
the ET cover (and Layers 1-3 ofthe conventional cover) are necessary to reduce radon emissions
below 20 pCil(m2-sec).ee Therefore, milestones must be established for placing Layers 3 and 4 of
the ET cover.
e3 Grand Canyon Trust, Sur-repljt Comments on the Proposed, Renewal and Amendment of Energt
Fuels Resources (USA) Inc.'s Radioactive Materials License and, Ground,water Discharge Permitfor
the l,l/hite Mes a ltlill pp. 7-8 (Nov. L7, 2ol7) ( " Trust Sur-reply " ).ea Trust Comments at76-20;Trust Sur-reply at7-8.
es 2018 Pub. Participation Summ. at83,2o2.
'6 t0 C.F.R. Part 40, Appendix A, "Reclamation Plan" & Criterion 6A(1).
e' lo C.F.R. Part 40, Appendix A, "Final radon barrier. "
e8 t0 C.F.R. Part 40, Appendix A, Criterion 6.
ee See, e.g., Comment Ex. 16 at App. C, Att. C.3, p. 2 (showing an exit flux of zo.tg pCi/(m2-sec)
through Layer 3 of the ET cover, which is identified in the radon-flux model as "Layer 4," i.e.
the 107-cm thick "ET cover, " and predicting the exit flux to fall to 20 pCil(m2-sec) only after
accounting for all of the ET cover's layers, including the erosion-protection layer named
"Layer 5" in the model); Comment Ex. 16 at 2 (describing Layer 3 of the ET cover as a
secondary radon-attenuation layer and Layer 3 ofthe conventional cover (i.e. random fill) as a
radon-attenuation layer).
20
C. The Director clearly erred by approving (voluntary" milestones for closing non-
conventional impoundments rather than requiring those milestones by law.
41. In its comments, the Trust argued that milestones must be established in the
reclamation plan for closing non-conventional impoundments at the mill.100 Energy Fuels
disputed that argument in its response to comments, but the company ('voluntarily" agreed to
include milestones in its reclamation plan for non-conventional impoundments.lol In its sur-reply
comments, the Trust argued again that milestones for non-conventional impoundments are
required by law, and thus should not be deemed "voluntary" (and subject to later, voluntary
revocation).'02 The Trust preserved this argument by raising it in the Trust's comments and sur-
reply comments.lo3
42. The Director did not respond to the Trust's arguments in the sur-reply
comments, but addressed and reiected the Trust's original comments on this subject.loa
43. The Director's determination that milestones are not required for non-
conventional impoundments is clearly erroneous, contrary to law, and arbitrary and capricious.
44. Appendix A requires that " [i]n disposing of waste byproduct material, " uranium-
mill licensees "shall place an earthen cover (or approved alternative) over tailings or wastes at
the end of milling operations" in a way that meets various reclamation standards.los The term
"byproduct material" under Appendix A means "tailings or wastes produced by the extraction
or concentration of uranium or thorium from any ore processed primarily for its source material
1oo Trust Comments at 1o-13.
'o'Energy Fuels Resources (USA) ,Inc., Response to Public Comments on the White Mesa Mill
Groundwater Discharge Permit and Radioacthse Materials License, pp. 30-31 (Oct. 23, 2017).
'o' Trust Sur-reply at 2-4.
103 Trust Comments at 10-13; Trust Sur-reply at2-4.
'oo 2078 Pub. Participation Summ. at 58-60, 208,231.
'os 10 C.F.R. Part 40, Appendix A, Criterion 6(1).
27
content...."106 By its plain terms, Appendix A's definition of "byproduct material" includes
everything that Energy Fuels puts in the cells at the mill: the mostly liquid rafiinate wastes and
the raffinate crystals that precipitate from those wastes, the semi-solid slurry from the counter-
current-decantation circuit, tailings sands, and all the other uranium-milling wastes the company
discards in the cells. It therefore includes the wastes remaining in non-conventional
impoundments when they are taken out of operation.
45. Under Appendix A, Energy Fuels may forgo building a final radon barrier over the
"byproduct materials" in non-conventional impoundments only if they are dug up and buried in
another impoundment in a way that reduces the radium-226 concentration in the non-
conventional impoundment's former footprint to the numeric thresholds set out in
Criterion 6(6).'o'Once "final closure" of a non-conventional impoundment begins, milestones
therefore must be triggered for building a final radon barrier over the residual byproduct material
in that impoundment, and the only basis for not completing the final radon barrier according to
those milestones is to clean up the impoundment to meet the radium-226 concentration limits.1o8
46. The Director's failure to require milestones for closing non-conventional
impoundments at the mill and his approval of Reclamation Plan Revision 5.1B's description of
milestones for non-conventional impoundments as voluntary is clearly erroneous, contrary to
law, and otherwise arbitrary and capricious.
"6 10 C.F.R. S ao.a; Utah Admin. Code R3t3-24-4 (incorporating 10 C.F.R. S 40.4 by reference).
'o' See 10 C.F.R. Part 40, Appendix A, Criterion 6(6).
'o' Id.; see also 40 C.F.R. $ 61.251(o) providing that the " [a]ctivities and milestones to be
addressed" in reclamation plans "include ... removal and disposal of non-conventional
impoundments."
V. Permit Conditions to Which the Trust is Obiecting and Modifications Requestedloe
47. The Trust obiects to the renewal of the license in its entirety for having foreclosed
a meaningful public comment opportunity on the reclamation plan, the approval of which is a
precondition for renewing the license.ll0 The Trust also obiects to License Condition 13.1.AA,
which incorporates Reclamation Plan Revision 5.1B into the License. The Trust requests that
Plan Revision 5.1B be modified to redress the issues raised in this petition, including, but not
limited to, adding milestones for placing Layers 3 and 4 of the ET cover, revising the milestones
for closing non-conventional impoundments so that they are required by law, vacating approval
of the 1996 cover design, and revising the plan to account for a new, objective and independent
review by the Director of public comments on the plan.
VI. ClaimforRelieflt
48. In this proceeding, the Trust requests:
a. an order vacating the Director's decision to approve the permit order
renewing the radioactive materials license for the White Mesa uranium mill
(License No. UT1900479, Am. 8);
b. an order vacating-in whole or in part-the Stipulation and Consent
Agreement dated February 23r2077;
c. an order vacating approval ofthe 1996 conventional cover design;
d. an order remanding the license with instructions to undertake a new public-
comment period on the license and ordering the Director to objectively and
'o'Utah Code SS 19-1-301.s(6)(d)(vXe) & (F); Utah Admin. Code R30s-7-203(s)(e)(v)-(vi).
"o 10 c.F.R. S 40.31(h).
"'Utah Code S 19-1-301.s(6)(d)(v)(t); Utah Code S 63c-4-20t(a)(a)(v); Utah Admin. Code
R30s-7-203(gXexix).
independently review comments on the reclamation plan, with instructions
that any determinations flowing from this review be supported by substantial
evidence and documented in the record;
e. a declaratory order that milestones are required for non+onventional
impoundments;
f. an order requiring the Director to impose milestones for completing Layers 3
and 4 ofthe ET cover;
g. an order that the Director otherwise fulfill his obligations under state and
federal law; and
h. any other or additional remedy the Executive Director deems appropriate.
-fi^Respectfully submitted this [1' day ofMarch 2018.
Post Office Box 118
Salt Lake City, Utah 84110
807-532-2447
[e-mail]
Aaron M. Paul Qtro hac ilce pmding)
4404 Alcott Street
Denver, CO 80211
303-477-1486
ap aul @ gr andcanyontru st. or g
Anorney for the Grand, Canyon Trust
24
CERTIFICATE OF SERVICE
I hereby certiry that on March $orr, I filed this Petition for Review by hand delivery
and e-mail with the following:
Scott T. Anderson
Director, Division ofWaste Management and Radiation Control
195 North 1950 West,2nd Floor
Salt Lake City, Utah 84176-3092
[e-mail]
Administrative Proceedings Records Officer
Environment Division, Utah Attorney General's Office
195 North 1950 West, 2nd Floor
Salt Lake City Utah 84116
[e-mail]
I also certifr that on March 2018, I served this Petition for Review by hand delivery
and e-mail on the following:
Bret Randall
Assistant Attorney General
Office of the Attorney General, Environmental Division
195 North 1950 West
Salt Lake City, UT 84776
[e-mail]
Michael A.Zody
Parsons Behle & Latimer
201S. Main St., Ste. 1800
Salt Lake City, Utah 84111
MZo dy @ pars onsbehle. com
,.{l
15 ,