DRC-2018-002901 - 0901a068807d7c2a

Sarah Fields
Program Director
Uranium Watch
P.O. Box 1306
Monticello, Utah 84535
435-260-8384
[e-mail]
Div of Waste Managsr:-ent
and Rad,at1on Control
MAR 2 6 20i8
DRC-2016-00290 \
UTAH DEPARTMENT OF ENVIRONMENTAL QUALITY
DIVISION OF WASTE MANAGEMENT AND RADIATION CONTROL
In the Matter of:
February 16, 2018, Di vision of Waste
Management and Radiation Control Permit
Order, White Mesa Mill, Radioactive Material
License Number UT 1900479
Energy Fuels Resources (USA) Inc.
Petition for Review and
Petition to Intervene
March 19, 2018
PETITION FOR REVIEW AND PETITION TO INTERVENE
I. INTRODUCTION
1. Pursuant to Utah Code Ann. § 630-4-207, Utah Code Ann. § 19-1-301, and Utah
Admin. Code R305-7, Uranium Watch (Petitioner) respectfully submits the following Request
for Review and Petition to Intervene. Petitioner files this Request and Petition to contest the
Utah Division of Waste Management and Radiation Control (DWMRC or Division) letter to
Energy Fuels Resources (USA) Inc. (EFRI) of February 16, 2018; regarding Radioactive
Material License Renewal Number UT 1900479. Amendment 8 (DRC-2018-001589) (Permit
Order, or Order). The DWMRC letter forwarded the renewed White Mesa Mill License. The
License Renewal package included the renewal of Radioactive Material License (RML) (RML
No. UT 1900479) for the White Mesa Uranium Mill, San Juan County, Utah, and renewal of
Petition for Review and Petition to Intervene
March 19,2018
White Mesa Mill Ground Water Discharge Permit (Permit No. UGW370004). The License
Renewal Package included the approval of the December ll,20ll, License Amendment Request
to process lle.(Z) byproduct material from the Sequoyah Fuels Corporation, Gore, Oklahoma,
facility (License Condition 10.8). The License Amendment Request was supplemented on
August 30 and October 21,3013. The License Renewal also included the approval of the
Reclamation Plan Rev.5.1B. On February 16,2018,the DWMRC reissued the entire License
Renewal package, originally issued on January 19,2018.
II. STATEMENT OF LEGALAUTHORITYAND JURISDICTION
2. The February L6,20I8,DWMRC Order meets the definition of a "Permit order" in
Utah Ann. Section $ 19-1-301.s(eXi)(D) and Utah Admin. Code R305-7-102(iXl)(iXB) and (D),
because the letter is an order that renews and modifies, or amends, a permit. A "Permit" is
defined in R305-7-102(i)(k)(iii) as o'a license."
3. Timeliness. Pursuant to Utah Admin. Code R307-7-203(5),to be timely, a Request for
Review to contest a Permit Order shall be submitted within 30 days of the date the Permit Order
being challenged was issued. The Permit Order was issued February 16,2018. This timely
Request is being filed on March 19,2018,within 30 days of February 16. (The 30th day fell on
March 18, a Sunday.)
III. PETITIONER'S INTEREST
4. Utah Code Ann. $ 63G-4-207(1)(c), g 19-1-301.5, and Utah Admin. Code
R305-7-204(1)(a) require a person who wishes to intervene demonstrate that the petitioner's
legal rights or interests are substantially affected by the agency action or that the petitioner
qualifies as an intervenor under any provision of law. Utah Code Ann. $ l9-l-301.5 and Utah
Petition for Review and Petition to Intervene
March 19,2018
Admin. Code R305 -7-202 also require that the petitioner's Petition for Review raise issues or
arguments preserved, in accordance with Utah CodeAnn. $ 19-1-301.5(4).
5. With regard to standing, the ability to meet any of the following three tests set
forward by the Utah Supreme Court in National Parks & Conservation Ass'n v. Board of State
Lands,869 P.2d 909,913 (Utah 1993) confers standing as a full party:
a. Distinct and Palpable Injury Test: This test recognizes standing where there is: (1) the
existence of an adverse impact on the plaintiffs rights; (2) a causal relationship between the
governmental action that is challenged and the adverse impact on the plaintiffs rights; and (3)
the likelihood that the relief requested will reduce the injury claimed.
b. Public Issues Test: This test recognizes standing if: (1) no one else has a greater
interest in the outcome; (2) the issues are unlikely to be raised at all unless that particular
plaintiff has standing to raise the issues; and, (3) the legal issues are sufficiently crystallized to be
subject to judicial resolution. The rationale underlying this standard is that important issues
regarding the lawfulness of governmental action ought to be judicially resolved if they can be
presented by one having the necessary adverseness.
c. Great Public Importance Test: This test recognizes standing where there exists the
need to have issues of great public importance resolved in compliance with the law.
6. As set forward below, Petitioner is a proper party because: (1) Petitioner's legal rights
or interests are substantially affected by the February 16,2018, Permit Order, (2) the interests of
justice would be served and agency interests would not be impaired by allowing party status and
intervention; (3) the interests of justice would be served and agency interests would not be
impaired by the orderly and prompt commencement of an adjudicative proceeding; and, (4)
Petition for Review and Petition to Intervene
March 19,2018
under governing case law, Petitioner has standing to request commencement of and participate as
a full party in an adjudicative proceeding.
7. The legal rights and interests of Petitioner are substantially and adversely
affected by the February 16,2018, Permit Order, the Renewed License, approval of the request
to process lle.(2) byproduct material from the Sequoyah Fuels Corp. Gore, Oklahoma, facility.
8. Petitioner is a not-for-profit 501(c)(3), non-governmental organization under
the fiscal umbrella of Living Rivers. Petitioner has a primary staff member that has been
active in issues related to uranium mining and milling in Southeastern Utah for over 15
years. Petitioner has actively participated in public hearings, public meetings, public comment
opportunities, adjudicatory proceedings, research, and public education associated with the
White Mesa Mill.
9. Petitioner's staff, volunteers, and members reside in San Juan and Grand Counties.
Petitioner's staff, volunteers, and members hunt, recreate, camp, travel, visit, and conduct other
activities in areas impacted the operation of the White Mesa Mill. Petitioner and its members'
recreational, environmental, health, and safety interests in the area are affected by the operation
of the White Mesa Mill.
10. The DRC's agency action involves health risks to Petitioner and its members that
travel, recreate, hunt, and conduct activities in the vicinity of the Mill.
11. Petitioner is currently the primary citizen organization in San Juan and Grand
Counties that advocates for the protection of public health and environment from the adverse
effects of uranium mining and uranium recovery facilities. Petitioner can adequately represent
its members and raise issues of public interest in the requested adjudication. No prejudice to any
party will result from granting Petitioner's Request for Review, because this action is provided
Petition for Review and Petition to Intervene
March 19,2018
for by the administrative procedures that can be found in the Utah Code and Utah Administrative
Code. Petitioner is not currently interfering with the orderly and prompt imposition of the
February 16,2018, Order, because Petitioner is not seeking a stay of the Order under Utah
Admin. Code R-305-7-3 I 8(3Xa).
12. Petitioner meets the "public issues" test and appropriately requests review of the
February 1,2018, Permit Order, based on its active participation in advocating the environmental
and public health issues associated with uranium milling.
13. Petitioner meets the "pubic interest" test for standing and is an appropriate and well-
suited party based on its active participation in bringing forth the environmental and public
health issues associated with the White Mesa Mill and providing substantive comments on the
White Mesa Mill License Renewal in December 2011and July, August, September, and
November 2017.
14. As shown above, Petitioner's legal interests may be substantially affected by the
permit review adjudicative proceeding. Petitioner has also shown that the interests of justice and
the orderly and prompt conduct of the permit review adjudicative proceeding will not be
materially impaired by allowing the intervention.
15. Utah Admin. Code R305 -7 -202(l) stipulates that: "As provided in 19- 1-301 .5(4), if a
public comment period is provided during the permit application process, a person who
challenges a Permit Order, including the permit applicant, may only raise an issue or argument
during the permit review adjudicative proceeding that: (a) the person raised during the public
comment period; and . . . ." Petitioner submitted comments on the White Mesa License
Renewal, Reclamation Plan, and License Amendment Request on December 21,2015; July 31,
2017;August ll,2017; September ll,2Ol7; and November 16,2017 (sur-reply comments).
Petition for Review and Petition to Intervene
March 19,2018
IV. STATEMENTS AND REQUEST FOR RELIEF . WHITE MESA LICENSE RENEW
16. Petitioner References
16.1. Petitioner references the following Petitioner Comments:
A. Comments on License Renewal forWhite Mesa Uranium Mill, License No.
I-Ji[1900479 - License Amendment #5. Submitted by Uranium Watch to the Director, Division of
Radiation Control, December 21, 2011.
B. Energy Fuels Resources (USA) Inc., White Mesa Mill, License No. UT 1900479,
License Renewal. Comments Submitted by Uranium Watch to the Director, Division of Waste
Management and Radiation Control, July 31 ,2017.
C. Energy Fuels Resources (USA) Inc., White Mesa Mill, License No. UT190 0479.
December 15,2011, License Amendment Request to Process Material from Sequoyah
Fuels Corporation, Gore, Oklahoma. Comments Submitted by Uranium Watch to the Director,
Division of Waste Management and Radiation Control, July 31 ,2017.
16.2. State and federal regulations, White Mesa Mill License No. UT 1900479,White
Mesa Mill license amendment requests, and Nuclear Regulatory Commission (NRC) other
documents cited and quoted from in Petitioner's comments.
17. License Condition 9.1 of the White Mesa Mill Renewed License,Amendment 8.
17.1. Facts: LC 9.1 states:
The Authorized place of use shall be the licensee's White Mesa uranium milling
facility,located in San Juan County, Utah. The White Mesa uranium mill is
located on fee land and mill site claims, covering approximately 5$15 acres
encompassing all or part of Sections 21,22,27 ,28,29,32 and 33 of T37S, R228,
and Sections and 16 of T38S, R22E Salt Lake Base and Meridian. [Applicable
UDRC Amendment: 8 Renewall
The site description is missing some of the Sections in T38S, R22F,, and needs to be
Petition for Review and Petition to Intervene
March 19,2018
corrected.
17.2.Changes Sought: LC 9.1 should read (Section additions and a comma in bold):
The Authorizedplace of use shall be the licensee's White Mesa uranium milling
facility, located in San Juan County, Utah. The White Mesa uranium mill is
located on fee land and mill site claims, covering approximately 5,415 acres
encompassing all or part of Sections 21,22,27 ,28,29,32 and 33 of T37S, Rl22F,,
and Sections 41 5, 6,819 and 16 of T38S, R22E, Salt Lake Base and Meridian.
[Applicable UDRC Amendment: 8 Renewal]
The DWMRC staff is aware of this omission and agrees that it should be revised.
18. License Condition97. Cultural Resources
18.1. Facts: LC 9.7 states (in part):
In accordance with the Memorandum of Agreement (MOA) negotiated by the
Utah State Historic Preservation Officer (SHPO), the Advisory Council on
Historic Preservation (ACH), the NRC and Energy Fuels Nuclear Inc. (EFN) and
ratified on August 20,1079 and as amended on May 3, 1983 and substantially as
implemented in NRC License SUA-1358:
Before engaging in any activity not previously assessed by the Director, the
licensee shall administer a cultural resource inventory. All disturbances
associated with the proposed development will be completed in compliance with
the National Historic Preservation Act (as amended) and no disturbance shall
occur until the licensee has received authorization from the Director to proceed.
The licensee shall avoid by project design, where feasible, the archaeological sites
designated "contributing" in the report submitted by letter to the NRC dated July
28, 1988. When it is not feasible to avoid a site designated "contributing" in the
report, the licensee shall institute adatarecovery program for that site based on
the research design submitted by letter from C. E. Baker of Energy Fuels Nuclear
to Mr. Melvin T. Smith, Utah State Historic Preservation Officer (SHPO), dated
April 13, 1981.***
18.2. Issue Preserved: Petitioner provided comments on this issue in comments
submitted on December2l,2015, at Section 4.3 (pages 15-16), and July 31,2017, Sections 4.3
and4.4 (pages 15-16).
Petition for Review and Petition to Intervene
March 19,2018
18.3. Division Response to Comments: The DWMRC responded to UW comments in the
Public Participation Summary, [fW Comments #92,#93,and#94 (pages 152 - 153). The
Division referenced General Comment #10 and stated: "The Division has contacted the Ute
Mountain Ute Tribe offering to assist in a process to address and update cultural resource issues."
Division General Response #10: Cultural Resources states (page 46) states:
While the Division is sensitive to cultural resource issues, we conclude based on
the record that the potential impact to adjacent cultural sites has been adequately
addressed in accordance with applicable legal requirements.Impacts to cultural
and historical sites within the proposed White Mesa Uranium Project were
previously evaluated in Appendix E of the Final Environmental Statement
(NUREG 0556) (NRC, 1979).*x*
In the State of Utah, the Division does not have jurisdiction over cultural resource
matters.
*{<*
EFRI meets its obligations to protect cultural resources by meeting the
requirements in License Condition 9.7.***
In the Ute Mountain Ute Tribes comments, the Tribe requested some changes to
License Condition 9.7 .ln a letter from the Division to the Tribe dated November
15,2017 , the Division asks the Tribe to discuss and collaborate on changes to
License Condition 9.7. This discussion and collaboration will be between the Ute
Mountain Ute Tribe, the Division, EFRI and SHPO. Changes to License
Condition 9.7 will be addressed in a future RML amendment and will not be
included in the renewal amendment.
18.4. Objection:
18.4.1. The 1979 MOA, as amended on May 3, 1983, is out of date. The list of
archaeological sites dated July 28, 1988, is incomplete, inaccurate, and outdated. The July 1988
list was submitted to the NRC by the Umetco Minerals to the NRC as a license amendment
request.l None of the sites on the Bureau of Land Management (BLM) land transferred to
I Letter from D. K. Sparling, Umetco Minerals, to Harry J. Pettengill, NRC, Uranium Recovery Field
Office, July 28, 1988.
Petition for Review and Petition to Intervene
March 19,2018
Energy Fuels Nuclear (EFN, the original Licensee) are shown in the 1988 archaeological sites
list. These are archaeological sites in Sections 29 and 33 of Township 37 South, Range Z?East,
SLBM and Sections 4,5,6, and 8 of Township 38 South, Range 22East, SLBM. The BLM
identified 132 archaeological sites in Section 33 of Township 37 South, Range 22Bast, SLBM
and Sections 4,5,6, and 8 of Township 38 South, Range 2?East, SLBM. Section 16 of
Township 38 South, Range 22East, is shown to be part of the White Mesa Mill, but there is no
indication of any archaeological survey of that area. In the 1988 site list, several sites that have
not been excavated are listed as "excavated," and a site that was excavated is listed as a site "to
be excavated." There is conflicting information regarding which sites are "contributing" and
which are "undetermined." The April 13, 1981, research design is also outdated. The Division
has had over 2 years to address this issue in response to Petitioner's December 2015 License
Renewal comments, yet failed to obtain additional information.
18.4.2. The Division errs when stating that "the potential impact to adjacent
cultural sites has been adequately addressed in accordance with applicable legal requirements."
LC 9.7 states: "The licensee shall avoid by project design, where feasible, the archaeological
sites designated'contributing'in the report submitted by letter to the NRC dated July 28, 1988."
That was incorporated into the White Mesa Mill License, by the July 28, 1988,license
amendment request. That 1988 list is woefully incomplete and contains misinformation.
18.4.3. The Division response states: "Impacts to cultural and historical sites
within the proposed White Mesa Uranium Project were previously evaluated in Appendix E of
the Final Environmental Statement (NUREG 0556) (NRC, 1979)." 2 The Land Ownership Map
2 Final Environmental Statement related to operation of White Mesa Uranium Project, Energy Fuels
Nuclear,Inc., NUREG-0556, Nuclear Regulatory Commission,May 1979.Appendix E, Letter to the
Advisory Council on Historic Preservation
Petition for Review and Petition to Intervene
March 19,2018
in the Final Environmental Statement (FES) (Figure Z.Z,page 2-18) included land in Sections 21,
22,27,28,32, and 33 of Township 37 South, Range 22Bast.The FES did not include and
evaluate the impacts to the archaeological sites lands that were subsequently transferred to the
Mill Licensee by the BLM in Sections 29 (where part of Cell I was constructed) and 33 of
Township 37 South, Range Z2East and in Sections 4,5,6,8, and 9 of Township 38 South, Range
22East. These Sections were the subject of an August 25, 1985, Cultural Resource Easement
Agreement between the Department of interior, Bureau of Land Management, and Energy Fuels
Ltd. The list of the sites attached to the Easement was not made available to Petitioner by the
BLM. Over 130 archeological sites in this area were not included in the FES evaluation.
Further, there does not appear to be an assessment of the archaeological sites in Section 16 of
Township 38 South, Range Z2East, which is part of the Mill.
8.4.4. The Division response states: "In the State of Utah, the Division does not
have jurisdiction over cultural resource matters." The State of Utah became an NRC Agreement
State in 2004, taking over regulatory responsibility for the Mill. It is clear from the statements in
Appendix E of the 1979 FES, that the Commission (that is, the NRC) had assumed some
regulatory authority over the cultural resources at the Mill site. That interest and authority would
have been transferred to the Division. At a minimum, the provisions in LC 9.7 must include
complete and updated list of White Mesa archeological sites and information about their status.
18.5. Request for Relief:
18.5.1. The 1979 MOA, as amended on May 3, 1983, should be revised and
updated. The updated MOA should be submitted to the Division and incorporated into the
License by reference.
10
Petition for Review and Petition to Intervene
March 19,2018
18 .5 .2. LC 9 .7 should be amended to reference a document that lists all of the
previously identified archeological sites on the Mill lands, along with relevant information about
the status of each site. Mill lands that have not been surveyed for archaeological resources, such
as Section 16 of Township 38 South, Range Z}East, should be surveyed. The Division should
establish a date certain for the Licensee to submit a license amendment request to incorporate a
new list of archaeological resources, including maps,3 site status, and other relevant information.
That list should be made available for public comment as part of the License Amendment
process. The 1985 Cultural Resource Easement should also be incorporated into LC9.7 by
reference.
18.5.3. The Licensee should be required to submit a new research design for any
White Mesa Mill activities associated with the destruction of archaeological sites and cultural
resources on and adjacent to the Mill site.
19. License Condition 10.1. Receipt and Storage of Alternate Feed Material
19.1. Facts: License Condition 10.1. B, C, D, and E, state:
B. The licensee may not dispose of any material on site that is not "byproduct
material," as that term is defined in 42 U.S.C. Section 201a@)Q) (Atomic Energy
Act of 1954, Section l1(e)(2) as amended).
C. The licensee may not receive or process any alternate feed material without
flrst applying for and obtaining approval of a license amendment. For any such
proposal, the licensee shall demonstrate that it will comply with Condition
10.1(8). Any such demonstration shall include:
{< r<:&
D. Maximum quantities of feed material stored on the mill site, including
alternate feed materials or other ores, shall not exceed the total material storage
quantity found in the currently approved mill surety pursuant to License
Condition 9.5, without prior approval of the Director.
3 Petitioner understands that maps of the archaeological resources at White Mesa should not be made
readily available to the public, so such maps should be withheld from public access. It is unfortunate that
there is a long history of illegal archeological resource removal and destruction in San Juan County.
11
Petition for Review and Petition to Intervene 12
March 19,2018
E. The licensee may not receive any alternate feed materials or other ores if
those materials would cause the facility to exceed the tailings cell disposal
capacity established by the currently approved tailing cells engineering design
and construction reclamation plan and/or the annual surety report required by
License Condition 9.5 without prior approval of the Director. [Applicable
IIDWMRC Amendmenr 2l [Applicable UDWMRC Amendment: 8
Renewall
The conditions in LC 10.1.C directly contradict the condition in LC 10.1.B that prohibits the
disposal of any material that is not 11e.(2) byproduct material, i.e., tailing or wastes produced by
the extraction or concentration of uranium or thorium from any "ore" for its source material
Petition for Review and Petition to Intervene 13
March 19,2018
content. The wording LC 10.1.D and E, "alternate feed materials or other ores," implies that
"alternate feed material" as received and stored at the White Mesa Mill is, in fact, ore.a
19.2. Issue Preserved: The issue of whether "alternate feed material" is "ore" and whether
the wastes from the processing of "alternate feed material" is 11e.(2) byproduct material was
preserved in Petitioner's December2l,Z}ll,comments at Section 4.5.2. (page 17) and
Petitioner's July 31 ,2017,comments on EFRI December ll,z0ll,LicenseAmendment Request
to Process Material from Sequoyah Fuels Corporation, Gore, Oklahoma.
19.3. Objection:
19.3.1. LC 10.1.D and E provisions regarding the receipt and storage of
"alternate feed material or other ores" implies that alternate feed material received and stored at
the White Mesa Mill is "ore." This is not so. The materials that are referred to as "alternate feed
material" that are received and stored at the Mill prior to processing are materials that meet other
specific regulatory definitions. They are materials that are regulated because they are defined as
a The word, or term, "ore," as defined in several sources:
. Ore-a naturally occurring solid material from which metal or other valuable minerals may be
extracted. [Illustrated Oxford Dictionary, DK Pub. 1998.]
. 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. [The Compact Oxford English Dictionary, Second Edition, Oxford
University Press, 2000, p. 1224:915-916.1
. 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 ore. . . . Fay b. A mineral of sufficient
value as to quality and quantity that may be mined for profit. Fay. [ADictionary of Mining,
Mineral, and Related Terms, compiled and edited by Paul W. Thrush and Staffof the Bureau of
Mines, U.S. Dept. of Interior, 1968.I
. 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 thousands, if not 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 common
and extensive usage with a clear and accepted meaning.
Petition for Review and Petition to Intervene
March 19,2018
"source material,"5lle.(2) byproduct material,6 Formerly Utilized Sites Remedial Action
Program (FUSRAP) materials, or materials that meet other regulatory definitions. They include
wastes and contaminated soils or other materials that cannot be disposed of in an unregulated
disposal site. For example, the Sequoyah Fuels Corp., Gore, Oklahoma, waste is defined as 1le.
(2) byproduct material. It will still be lle.(Z) byproduct material when it is received and stored
at the White Mesa Mill. There is no statute or regulation that would define the Sequoyah Fuels
lle.(Z) byproduct or the other "alternate feed material" as "ore." There is only a Nuclear
Regulatory Commission GuidanceJ which states:
Ore is a natural or native matter that may be mined and treated for the extraction
of any of its constituents or any other matter from which source material is
extracted in a licensed uranium or thorium mill.
However, that is a retroactive definition. For the materials that are received and stored at the
White Mesa Mill to meet the NRC guidance's definition of "ore," the material must first be
processed at a licensed uranium or thorium mill to extract its uranium or thorium content. When
the materials are received and stored at the Mill, the materials have yet to be processed.
5 "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.05Vo) or more
of: (i) Uranium, (ii) thorium or (iii) any combination thereof. Source material does not include
special nuclear material." 10 C.F.R.40.4. Source material that meets the first definition is regulated under
the Atomic Energy Act. Source material "ore" is NOT regulated under the Atomic Energy Act.
6 "The term "byproduct material" means- (1) . . . (2) the tailings or wastes produced by the extraction or
concentration of uranium or thorium from any ore processed primarily for its source material content."
Atomic Energy Act Sec. lle. Uranium byproduct material means the tailings or wastes produced by the
extraction or concentration of uranium from any ore processed primarily for its source material content.
Ore bodies depleted by uranium solution extraction operations and which remain underground do not
constitute "byproduct material" for the purpose of this subpart. l0 C.F.R. $ 4O.4 and 40 C.F.R. $
tez.3t(b)
7 Nuclear Regulatory Commission Guidance (SECY 95-211, SECY-99-012, and NRC Regulatory Issue
Summary 2W-23)
t4
Petition for Review and Petition to Intervene 15
March 19,2018
Therefore, they are not "ore" under the common usage of that term, or as deflned in NRC
Guidance.
19.3.2. The issue of whether the wastes from the processing of materials other
than "ore" (including the wastes from the processing of 11e.(2) byproduct material) are 11e.(2)
byproduct material (LC. 10.1. B and C) will be addressed in the discussion of the Division's
approval of the EFRI December 15, 2011, License Amendment Request to Process Material from
Sequoyah Fuels Corporation, Gore, Oklahoma. See Section Y below.
19.4. Request for Relief: The Division should delete the wording in License Condition
10.1. D and E that implies that "alternate feed material" is "ore."
20. License Condition 108. Receipt and processing of material from Sequoyah Fuels
Corporation Facility, Gore, Oklahoma.
Petitioner will address the License Amendment Request and Division Approval related to
the Gore, Oklahoma, waste at Section V below.
21. License, Section LL: Monitoring, Recording, and Bookkeeping Requirements
21.1. Facts: Petitioner requests that the Division require the monitoring and reporting of
the radon flux of the solid portions of tailings Cells 4,A, and 48. The Environmental Protection
Agency (EPA) regulations at 40 C.F. R. Part 61, Subpart W, do not require such monitoring and
reporting of these tailings cells because they were constructed after December 1989.8
21.2. keservation of Issue: Petitioner provided comments in Petitioner's Comments on
the License Renewal at Section 4.8.3. (pages 18-19) and Comments on the Amendment Request
to Process Sequoyah Fuels Corp.lle.(2) byproduct material at Section 2.8.1 and 2.82 (page7).
21.3. Division Response to Comments:
8 40 C.F.R. Part 6l Subpart W, $ 252(a)(2).
Petition for Review and Petition to Intervene
March 19,2018
21.3.1. The Division responded to Comments in General Comments #12 and#13
(pages 47 -50), uw comment #16 and # 17 (page 97), and uw comment #l 0 I (page I 56).
21.3.2. Division Response to UW Comment #16 (page 97):
40 CFR 61, Subpart W doesn't require tailings cells constructed after December
15, 1989 that are 40 acres in size or smaller tobe analyzed for radon emissions.
Utah law prohibits the State of Utah from being more restrictive than the Federal
Government; therefore, the Licensee will not be required to perform radon flux
sampling while tailings cells 44 and 48 are in operation.
21.3.3. Division Response to UW Comment #17 (page 98):
The Division refers to its Response to UW Comment #01 [#101] and #16, above.
Imposing the commenter's requested action would result in a state standard that is
more stringent than its federal counterpart. In any event, in the Division's
reasoned technical judgment, there is no basis to implement this change.
21.3.4. Division Response to UW Comment #101 (pages 156-157):
The Division's position on this topic is addressed in detail, above.In addition, the
Division's General Response #12 and#l3 address this issue. The Division
believes these responses are adequate to address the issues raised in this comment.
21.4. Objection:
21.4.1. Petitioner requested that the Division require the monitoring and reporting
of the radon emissions for Cells 44. and 4B solid tailings at least annually:
Division must amend the White Mesa Mill License to include a requirement to
monitor and report the radon emissions from Cells 4,A. and 48 solid tailings at
least annually, but preferably twice annually, as is currently required for Cell 2,
which is under closure and no longer subject to the Subpart W numerical radon
emission standard for older ("existing") tailings impoundments. The Division has
the authority to include this important requirement as a license condition. This
proposed action is needed regardless of any approval or denial of the Energy
Fuels license amendment. Radon monitoring from Cells 44. and 48 must include
measurements of radon-220 emissions.e
e Petitioner's comments on License Amendment Request to Process Material from Sequoyah Fuels
Corporation, Gore, Oklahoma, Section 2.8.1 (page 7), July 31,2017.
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March 19,2018
21.4.2. Petitioner requested, additionally, that the Division require the monitoring
and reporting of the radon flux from any other tailings impoundment consffucted after 1989:
The Division should also require the Licensee to monitor and report the radon flux
from the surface of solid tailings on Cells 4A,48, and any other "new" tailings
impoundments at the Mill.lo
21.4.3. Contrary to Division's Responses, Petitioner did not request that the
Division establish a new radon flux standard for tailings Cells 4A and 48 or other Mill tailings
impoundment constructed after 1989. Petitioner requested the monitoring and reporting of the
radon flux those impoundments. The Division, under the Atomic Energy Act and implementing
Division regulations, has the authority to require the monitoring of radioactive emissions from
the White Mesa Mill. Monitoring and reporting does not equate to the establishment of specific
emission standards.
21.4.4.The Division concludes: "Utah law prohibits the State of Utah from being
more restrictive than the Federal Government; therefore, the Licensee will not be required to
perform radon flux sampling while tailings cells 4A and 48 are in operation." And that,
"Imposing the commenter's requested action would result in a state standard that is more
stringent than its federal counterpart." First, the Division did not cite the specific Utah law being
referred to. Second, the imposition of monitoring and reporting requirements is not the same as
imposing a specific "standa.rd" that must be adhered to. Therefore, there is no violation of any
Utah law that prohibits the imposition of "standards" more stringent that federal regulations, if
there is, in fact, such a Utah law.
r0 Petitioner Comments on White Mesa Mill, License No. UT 19OO479. License Renewal, Section 4.8.3
(page 18), July 31,2017.
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21.4.5. The Division may be referring to Utah Code Utah Code Ann. 919-2-lg.tt
That provision, which applies to the Division of Air Quality, not the Division of Waste
Management and Radiation Control, does not forbid the establishment of air quality standards
more stringent than federal standards. It provides a process for establishment such standards. Be
that as it may, Section l9-2-I is not applicable to the DWMRC.
21.4.6. There are applicable standards that apply to the Mill and the Division that
would apply to Cells 4,{ and 48 . NRC regulation at 10 C .F.R. Part 40 ,Appendix A Criterion 8 ,
which is incorporated into Utah regulations by reference)l2 states (in part):
Criterion 8-Milling operations must be conducted so that all airborne effluent
releases are reduced to levels as low as is reasonably achievable. The primary
means of accomplishing this must be by means of emission controls. Institutional
controls, such as extending the site boundary and exclusion area, may be
employed to ensure that offsite exposure limits are met, but only after all
practicable measures have been taken to control emissions at the source.
Notwithstanding the existence of individual dose standards, strict control of
emissions is necessary to assure that population exposures are reduced to the
maximum extent reasonably achievable and to avoid site contamination. The
greatest potential soluces of offsite radiation exposure (aside from radon
exposure) are dusting from dry surfaces ofthe tailings disposal area not covered
by tailings solution and emissions from yellowcake drying and packaging
operations. During operations and prior to closure, radiation doses from radon
emissions from surface impoundments of uranium or thorium byproduct materials
must be kept as low as is reasonably achievable.
>kx<*
To control dusting from tailings, that portion not covered by standing liquids must
be wetted or chemically stabilized to prevent or minimize blowing and dusting to
the maximum extent reasonably achievable.
21.4.7. Utah Rule R313-15-101(2)13 requires:
(2) The licensee or registrant shall use, to the extent practical, procedures and
engineering controls based upon sound radiation protection principles to
1 t https ://le.utah.gov/xcodelTitle I 9/Chapter2/ I 9-2- S 1 06.html
12 Utah Administrative Rule R313-15-l(2).
l3 https://rules.utah.gov/publicat/code/r3 I 3/r3 I 3-015.htm#T1
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achieve occupational doses and doses to members of the public that are as
low as is reasonably achievable (ALARA).
2l .4 .8 . The requirements of 10 C .F.R. Part 40 , Appendix A Criterion 8 and Rule
R3l3-15-l0l(2) do not exclude the possibility of the imposition of mitigative measures to
control the emission of radon from tailings cells constructed after December 1989 to keep these
missions as low as reasonably achievable. Nor do these regulations impose a restriction on the
monitoring and reporting (including reporting to the public) of the radon flux from new tailings
impoundments at the Mill.
21.4.9 The Division in it Response to UW Comment # 17 stated that in the
"Division's reasoned technical judgment, there is no basis to implement this change," that is,
require the monitoring of radon from the solid portions of Cell 4.A, and 4B and any other new
tailings impoundment. The Division did not include the reasons and technical basis for its
"reasoned technical judgement." There are, however, a number of reasons to require the
monitoring and reporting of the radon flux from these impoundments:
21.4.10. The EPAregulations applicable to the radon emissions from
operating uranium mills (40 C.F.R. Part 61 Subpart W) do not require the monitoring and
reporting of the radon emissions from Cells 44 and 48 and any other tailings impoundments
constructed after December 15, 1989. The EPArelies, instead on a design and work practice
standard, rather than a numerical emission standard, to control the emissions from "new"
impoundments. Subpart W limits the size of the impoundments to 40 acres. Cells 4,A, and 48 are
the only "new" tailings impoundments in the United States that are subject to the 40 C.F.R.
5 261.252(aX2) work practice standard. Therefore, neither the EPA, the Utah Division of Air
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Petition for Review and Petition to Intervene
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Quality (which administers and enforces that standard in Utah), nor the DWMRC know if the
design and work practice standard for "new" impoundments will significantly reduce the radon
emissions, as compared to the emissions from earlier impoundments (Cells 2 and3 at the Mill).
Therefore, the monitoring of Cells 4,A, and 48, pursuant to the requirements of 40 C.F.R. $
61.252.(a)(1) and 61.253, would provide important data on the effectiveness of the standard for
"new" impoundments. This monitoring would validate the effectiveness of the 4O-acre size
standard for the Division, EPA, the White Mesa Ute community, and the general public.
21.4.11. Cell 4,{ is receiving solid tailings, and Cell 48 is currently receiving
only liquid effluents, but will eventually receive solid tailings. Cell 4.A tailings are mostly
covered by liquids. Eventually, the solid, dry portion will be large and flrm enough so that radon
flux monitoring will be feasible. However, without monitoring and reporting, the radon
emissions from the dry tailings in Cell4,A, and 4B will remain unknown, so there will not be any
way to determine the impact of limiting the impoundment to 40-acres will have on the overall
radon emissions. If the emissions are over the current 20 pCrlm}-sec radon flux standard
applicable to Cell3, there is no way to know and no basis for taking any mitigative measures.
There will be no way of knowing if windblown tailings from Cell 3 is affecting Cells 4,{ and
48.14 It would be impossible to know if the radon emissions were "as low as reasonably
achievable," if there were no information about what, exactly, those emissions are.
21.4.12. The EPA, by refusing to impose a radon flux standard on post-1989
impoundments, did not take into consideration 1) the cumulative impacts of radon emissions
from several tailings impoundments at an operating uranium mill over several decades, and2)
la Radon flux measurements of Cell2 andlater testing showed that tailings from Cell 3 had migrated to
Cell2. A ba:rier was put in place to prevent the migration of tailings from Cell 3 to Cell 2.
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Petition for Review and Petition to Intervene
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the presence of tailings from the processing of materials other than natural ore that contain
higher levels of radium from both uranium and thorium-Z32 decay; and 3) the disposal of 11e.(2)
byproduct from in-situ leach operations and other sources.
21.4.13. As was demonstrated by the history of Cell 2, the monitoring of the
radon is necessary to keep the radon emissions as low as reasonably achievable. The monitoring
of Cell 2 aleted the Licensee and the Division that the radon emissions have increased, due to
dewatering of the tailings, uneven placement of tailings with higher levels of radium, windblown
tailings from another impoundment, and uneven placement of an interim cover. The monitoring
provided a basis for mitigative measrues to keep the radon emissions as low as reasonably
achievable.
21.4.14.If the radon emissions increase, clean material that is placed on the
impoundment reduces the radon emissions. Monitoring of various sections of the tailings
provides information regarding which areas of the tailings cell needs clean material, the
effectiveness of the placement of clean material, and any major changes in the Mill
operation. Requiring the monitoring, reporting of the radon emissions from the 'onew"
impoundments and mitigative actions are important measure to be taken to protect the
health of the public and the workers at the Mill and assure that the radon emissions from
"new" tailings impoundments are kept as low as reasonably achievable, as required by
NRC and Utah regulation.
21.5. Request for Relief: Based on the statements above, Petitioner request that the
Division require the annual monitoring and reporting of the radon flux from the dry portion of
the tailings in Cells 44,48, and any future "new" tailings impoundments.
22. License Condition 11.9. (License Amendment 7)
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Petition for Review and Petition to Intervene 22
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22.l.Facts:
22.1.1. The White Mesa Mill License,Amendment 7, issued July 10, 2014,
(DRC-2014-00426) included a new License Condition, LC 11.9, which states:
The licensee shall submit a revised Environmental Protection Manual for the
White Mesa Mill within 60 days of license approval. The revised Environmental
Protection Manual shall include 2 additional air monitoring stations and a revised
soil sampling program. The licensee shall also analyze whether a revised
vegetation sampling program is appropriate.In addition, air particulate sample
analysis will include Thorium 232, and every air monitoring station will also
monitor for radon (Rn222) and gamma detection devices on a quarterly basis.
Implementation of the revised environmental monitoring program shall be
completed 90 days after Director approval of the revised Environmental
Protection Manual unless another deadline is approved by the Director.
[Applicable UDRC Amendment: 7]
The 2018 Renewed License does not include LC 11.9. There is no indication on the 2018
Renewed License that LC I1.9 was deleted. The "Statement of Basis, Radioactive Materials
License (RML) No. UT l9OO479 and Ground Water Quality Discharge Permit (Permit) No.
UGW370004, Summary of Changes, January 18," makes no mention of the deletion of LC 11.9
or the reason for the deletion. As required by LC 11.9, the Licensee submitted the revised
Environmental Protection Manual (EPM) on September 8,2014 (DRC-2014-005281), and
November I8,2Ol4 (DRC-2014-006782). The Division approved the revised EPM on
December 10,2014 (DRC-2014-007121). The Renewed License does not mention the
implementation of the 2014 Revised EPM. The 2014 Revised EPM is not included in the list of
Licensee Submittals referenced in LC 13 of the Renewed License.
Petition for Review and Petition to Intervene
March 19,2018
22.1.2. By letter of letter of July 23,2014 (URC-2014-004489X5 the Division
ordered EFRI to include radon-flux monitoring for Cell 2inthe Environmental Monitoring Plan
(per LC 11.9) and include the results in the Semi-Annual Effluent Monitoring Reports. However,
EFRI did not include radon flux monitoring for Cell2 in the Revised Monitoring Plan submitted
to the Division on September 8,2014, and revised on November 10,2014. EFRI has been
submitting the Cell 2radon flux monitoring results to the Division in the Semi-Annual Effluent
Monitoring Reports. However, that requirement and the methodologies used to monitor and
determine the radon flux has not been incorporated into the EPM and the EPM referenced in the
Renewed License.
22.2. lsslue Preserved: Petitioner addressed the issue of the need to include the Cell 2
monitoring requirement in the License in the July 31 ,2017,Comments on the License Renewal,
at Section 4.8.2 (page 17). These are essentially administrative issues that are likely the result of
inadvertent Division oversight.
22.3. Objection:
22.3.1. The Division deleted LC 11.9 without mentioning the deletion and reason
for the deletion in the Statement of Basis. The Division failed to include the2014 Revised EMP
in the list of Closeout Condition documents in LC 13.1.
22.3.2. The Division failed to make sure that EFRI included the monitoring and
reporting of the radon flux for Cell2 in the Revised EPM, as directed by the Division by letter of
July 23,2014.
ls l-etter from Rusty Lundberg, Director, Utah Division of Radiation Control, to David Frydenlund,
Senior Vice President General Counsel and Corporate Secretary, Energy Fuels Resources (USA)
Inc.Request to Cease Monthly Radon Flux Sampling Tailings Cell2: Radioactive Material License
Number UT 1 900479, Iuly 23, 20 I 4; URC-2014-N489 .
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2Z.4.Reqtest or Reliet
22.4 .1. The Division should either I ) reinstate LC 1 1 .9 in the 20 I 8 Renewed
License and reference the 2014 Revised EMP and the NRC approval; or 2) include the2014
Revised EMP in the list of Closeout Conditions in LC 13.1. Petitioner would prefer the first
alternative. The more specifics in the License, the better.
22.4.2. The Division should remind EFRI that they need to submit a revised EMP
that includes the monitoring and reporting of the radon flux for Cell2 and include the
methodologies used for monitoring and calculating the radon flux, as ordered in the July 23,
2014,letter.
23. License Condition 12. Reporting Requirements
23.1. Facts: The Renewed License does not include the need for submittal of the Semi-
Annual Effluent Monitoring Report. Semi-Annual Monitoring Reports reference LC 11.3A,
however, LC 11.3A, does not reference the Semi-Annual Monitoring Report.
23.2. Issue Preserved: Petitioner did not become aware of this issue until the issuance of
the Renewed License. This is essentially an administrative issue that is likely the result of
inadvertent Division oversight.
23.3. Objection: LC 12 should include the requirement to submit the Semi-Annual
Monitoring Report and include the submittal of any other report required by the license, licensee
commitment, or other requirement. For example, LC ll.4 requires the annual collection and
analysis of certain monitoring data. However, LC 11 .4 does not give any indication of when and
how the monitoring results and analyses will be submitted to the Division.
23.4. Request for Relief: The Division should include the Semi-Annual Monitoring
Report in the Reporting Requirements in LC 12. The Division should review the license and
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Petition for Review and Petition to Intervene 25
March 19,2018
make sure that the submittal of specific monitoring results and analyses, and other relevant
information required to be collected and reported to the Division, is included in the LC 12
Reporting Requirements.
V. STATEMENTS AND REQUEST FOR RELIEF. LICENSE AMENDMENT TO
PROCESS SEQUOYAH FUELS CORP. 1tE.(2) BYPRODUCT MATERTAL
24.LC.108. Authorization to receive "source material" from the Sequoyah Fuels
Corporation Facility located near Gore, Oklahoma.
24.1. Facts;
24.I.1. The Division amended the White Mesa Mill License (LC 10.8) to
authorize the receipt and processing of 1le.(2) byproduct material from Sequoyah Fuels
Corporation, (SFC), Gore, Oklahoma, facility at the White Mesa Mill. The license amendment
was responsive to the the statements, representations, and commitments contained in the
Amendment Request dated December 15, 2011, and supplemented on August30, 2013 and
October 21,2013.16
24.1.2. The Division's "Safety Evaluation Report, Amendment Request to
Process an Alternate Feed Material (the SFC Uranium Material) at White Mesa Mill from
Sequoyah Fuels Corporation, Gore, Oklahoma" (DRC-2017 -002764), is "in Consideration of an
Amendment to Radioactive Materials License No. UT1900479 toAuthorize Receipt and
Processing of the SFC Uranium Material as an Alternate Feed Material Primarily for the
Recovery of Uranium and Disposal of the Resulting Residuals in the Mill's Uranium Tailings
lmpoundments as le.(2) Byproduct Material." The Safety Evaluation Report (SER) was
16 https://deq.utahgov/businesseslEienergyfuels/requests/sequoyahfuels.htm
Petition for Review and Petition to Intervene 26
March 19,2018
developed by URS Professional Solutions, LLC, for the Utah Department of Environmental
Quality, DWMRC, dated May 1,2015.
24.1.3. According to the SER, "The [Nuclear Regulatory Commission] NRC
declared this "front end waste" to be 11e.(2) byproduct material (See SECY-02-0095, Jaly 25,
2002)."
24.1.4. According to the SER, the "Uranium Material consists of dewatered
raffinate sludges resulting from purification and conversion of natural uranium concentrates
(yellowcake) at the former Gore Facility" and contains "residual amounts of thorium, uranium,
certain nonradioactive metals (arsenic, beryllium, and lead), and barium at concentrations that
are higher than present in typical uranium mill tailings and typical uranium ores processed at the
White Mesa Mill.
24.1.5. The Atomic Energy Act and NRC and EPA regulations define 11e.(2)
byproduct material:
The term "byproduct material" means- (l) . . . (2) the tailings or wastes produced by the
extraction or concentration of uranium or thorium from any ore processed primarily for
its source material content." Atomic Energy Act Sec. lle. Uranium byproduct material
means the tailings or wastes produced by the extraction or concentration of uranium from
any ore processed primarily for its source material content. Ore bodies depleted by
uranium solution extraction operations and which remain underground do not constitute
"byproduct material" for the purpose of this subpart.
10 C.F.R. S 40.4 and 40 C.F.R. $ 192.31(b)
24.1.6. Classification of the SFC Uranium Material as Alternate Feed Material.
The SER, with respect a determination of whether the feed material is an ore (and, therefore, the
wastes from the processing of the SFC Uranium Material at the Mill can be defined as 11e.(2)
byproduct material), quotes from NRC Guidance (SECY 95-211, SECY-99-012, and NRC
Regulatory Issue Summary 2000-23):
Petition for Review and Petition to Intervene
March 19,2018
For the tailings and wastes from the proposed processing to qualify as 11e.(2)
byproduct material, the feed material must qualify as "ore." In determining
whether the feed material is ore, the following definition of ore will be used: Ore
is a natural or native matter that may be mined and treated for the extraction of
any of its constituents or any other matter from which source material is
extracted in a licensed uranium or thorium mill. [Emphasis added.]
The SER then states, "The NRC declared this 'front end waste'to be 11e.(2) byproduct material
(See SECY-02-0095, luly 25,2002)." The SER then concludes, "Based on the above
considerations, the [Utah Division of Radiation Control] IIDRC has determined that the SFC
Uranium Material meets this criterion." That is, the SER determined that because the SFC
Material was l1e.(2) byproduct material it met the definition of "ore" in the NRC Guidance.
24.1.7 . Determination of whether the SFC Uranium Material is a hazard waste.
In SER, Section 3. Determination of whether the feed material contains hazardous waste, the
DWMRC concludes, "The NRC (2002) classifled the SFC Uranium Material as 11e.(2)
byproduct material. Under 40 C.F.R. 261.4(b)(7), solid wastes from the extraction, beneficiation,
and processing of ores and minerals are not hazardous wastes." EPA 40 C.F.R. regulations, at
Section 261.4(b)(7) state:
(b) Solid wastes which are not hazardous wastes. The following solid wastes
solid wastes are not hazardous wastes:
(7) Solid waste from the extraction, beneficiation, and processing of ores and
minerals (including coal, phosphate rock, and overburden from the mining of
uranium ore), except as ry4lgg! by Q 266.112 of this chapter for facilities that
burn or Drocess hazardous waste.
24.2. Preservation of Issue: Petitioner addressed this issue in it July 31,2017 ,comments
regarding Energy Fuels Resources (USA) Inc., White Mesa Mill, License No. UT1900479.
December ll,z0ll,License Amendment Request to Process Material from Sequoyah Fuels
Corporation, Gore, Oklahoma.
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24.3. Division Response to Comments: The Division responded to Petitioner's comments
in the Public Participation Summary, General Responses #4 and#5, UW Comment #2 (page94),
UW Comments #6 to #9 (page s 92 - 94) , UW Comm ents #23 and #24 (page 201) , and UW
Comments # 27 to # 41 (pages 104 - 119). Most of the Division's Responses state: "The
Division believes that its General Responses #4 and#5 above are adequate to address the issues
raised in this comment."
24.4. Objection: The Division should have denied the license amendment request to
process lle.(2) byproduct material from the the Sequoyah Fuels Corporation, Gore, Oklahoma,
facility at the White Mesa Mill for the following reasons:
24.4.1. The Division is using conflicting statutory, regulatory, and non-statutory/
non-regulatory definitions to suit its purposes. First, the Division claims that the NRC has
determined that the SFC Material is 11e.(2) byproduct material, based on an NRC July 25,2002,
determination (SECY-02-0095). Then, the Division claims that the SFC Material qualifies as
"ore," pursuant to NRC Guidance (SECY 95-211, SECY-99-0l2,andNRC Regulatory Issue
Summary 2000-23),because the SFC Material is "any other matter from which source material is
extracted in a licensed uranium or thorium mill." It is unclear when the Division believes the
the SFC material will be transformed from 11e.(2) byproduct material into "ore." According to
NRC Guidance, SFC Material will be retroactively become "ore," once the Material is processed
at the White Mesa Mill to extract it "source material" uranium content. So, after processing the
material that was 11e.(2) byproduct material (the waste from the processing of "ore") when it
arrived at the Mill, will be transformed back into "ore," so that the wastes from the processing at
the Mill can once again be defined as the waste from the processing of "ore" and once again meet
the definition of 11e.(2) byproduct material. This does not make sense.
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24.4.z.The SER, Section 3. determined that the SFC Material was not a
hazardous waste, because it was a waste from the extraction, beneficiation, and processing of
ores and minerals. On the one hand, the SFC Material is exempt from any RCRA-Listed
Materials Analysis, because the material to be processed is "solid wastes from the extraction,
beneficiation, and processing of ores;" on the other hand, the SFC Material is "ore," so the
wastes from the processing of the SFC 11e.(2) byproduct material will be defined as 11e.(2)
byproduct material. And, the NRC has determined that the SFC Material is 11.(2) byproduct
material (which means it is not even a "solid waste"), so that the Material can be directly
disposed of in a licensed 11e.(2) byproduct material impoundment. How, exactly, the SFC
Material can be both "11e.(2) byproduct material" (as defined under the AEA and NRC and EPA
regulation) and "ore" (which has no AEA or NRC and EPA regulatory definition) is not
explained. Clearly, the SFC Uranium Material cannot be both a solid waste from "the
extraction, beneficiation, and processing of ores," to suit one outcome, and "ore," to suit another.
In sum, the Division is manipulating the definitions to reach a desired outcome, however
conflicting those definitions and outcomes a.re.
24.4.3.The NRC has determined that the SFC material is 11e.(2) byproduct
material, under the definition of in the AEA and NRC and EPA regulation. The SER and the
Division have not explained, and cannot explain, how the SFC 11e.(2) byproduct material can be
transformed back into a material that can be defined as "ore," based on statutory and regulatory
provisions in the AEA and NRC and EPAregulations.
24.4.4. The wastes from the processing of the SFC at the White Mesa Mill would
not meet the definition of 11e.(2) byproduct material. That is because the SFC material is not
"ore," as that term has been in common use for hundreds of yearsand how that term is used in
29
Petition for Review and Petition to Intervene
March 19,2018
the AEA definition of 11e.(2) byproduct material. The AEA, as amended by the Uranium Mill
Tailings Radiation Control Act of 1978 (UMTRCA), does not sanction the processing of feed
materials other than natural ores and the disposal of wastes from such processing at licensed
uranium and thorium processing facilities. The AEA does not include a definition, or any
indication of such definition, of "ore" that states that 'oore" is any "matter from which source
material is extracted in a licensed uranium or thorium mill." The AEA does not give the Utah
Department of Environmental Quality (DEQ), the DWMRC, or other state or federal entity, the
broad authority to authorize the processing of feed materials other than natural ores or the
disposal of wastes from such processing at licensed uranium and thorium processing facilities as
"lle.(2) byproduct material." The term "ore" has an accepted and historical definition as that
term is used in the AEA and regulations promulgated responsive to that Act. Neither the NRC,
nor the DEQ have the authority to use "guidance" or other means to change the substantive
meaning of a word and, thereby, the regulatory program associated with that word and associated
definitions. The DEQ does not have the authority to amend or reinterpret the AEA.
24.4.5. The statutory history of LIMTRCA, found in the two Congressional reports,
provides information with respect "uranium mill tailings" and "ore." The Congressional Reports
clearly state what was contemplated by Congress (i.e., the intent of Congress) when Congress
established a program for the control of "uranium mill tailings" from the processing of "uranium
ore" at inactive (Title I of UMTRCA) and active (Title II of UMTRCA) uranium and thorium
processing facilities. See House Report (Interior and InsularAffairs Committee) No.95-1480
(I) , August 1l , 197 8 , and House Report (Interstate and Foreign Commerce Committee) 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
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Petition for Review and Petition to Intervene
March 19,2018
process. Because only I to 5 pounds ofuseable uranium is extracted from each
2,000 pounds of ore, tremendous quantities of waste are produced as a result of
milling operations. These tailings contain many naturally-occurring hazardous
substances, both radioactive and nonradioactive. . . . As a result of being for all
practical puq)oses, a perpetual hazard,uranium mill tailings present the major
threat of the nuclear fuel cycle.
In its early ye:us, 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 under the
Atomic EnergyAct since 1954. IHR No.95-1480 (1) at 11.]
The second House Report, under "Need for a Remedial Action Program" states:
Uranium mills are a part of the nuclear fuel cycle. They extract uranium from ore
for eventual use in nuclear weapons and power-plants, leaving radioactive sand-
like waste-commonly called uranium mill tailings-in generally unattended
piles. [HR No.95-1480 (2) at25.)
The statutory history of UMTRCA does not provide any basis for a definition of "ore" as
being any "matter from which source material is extracted in a licensed uranium or thorium
mill."
24.4.6. The Atomic Energy Commission (AEC) and the AEA of 1946 also
demonstrate the intent of Congress and the agency that preceded the NRC with resect ore and the
processing of ore. 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 set forth in 10 C.F.R. Part 60. Part 60 was deleted from 10 C.F.R. on March 3,
3r
Petition for Review and Petition to Intervene 32
March 19,2018
1975, after the establishment of the NRC. The AEC published a number of circulars related to
their Domestic Uranium Program. The Domestic Uranium Program-Circular No. 3-
Guaranteed Three Year Minimum Price-Uranium-Bearing Carnotite-Type or Roscoelite-Tlpe
Ores of the Colorado Plateau Area" (April 9, 1948), an amendment to 10 C.F.R. Part 60, states:
$ 60.3 Guaranteed three years minimum price for uranium-bearing carnotite-
type or roscoelite-type ores of the 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 common defense and security the United States Atomic Energy
Commission hereby establishes the guaranteed minimum prices specified in
Schedule 1 of this section, for the delivery of such ores to the Commission, at
Monticello, Utah, and Durango, Colorado, in accordance with the terms of this
section during the three calendar years following its effective date.
Note: In $$ 60.1 and 60.2 (Domestic Uranium Program, Circulars No. 1 and 2),
the Commission has established guaranteed prices for other domestic uranium-
bearing ores, and mechanical concentrates, and refined uranium products.
Note: The term "domestic" in this section, referring to uranium, uranium-bearing
ores and mechanical concentrates, means such uranium, ores, and concentrates
produced from deposits within the United States, its territories, possessions and
the Canal Zone.
l0 C.F.R. Part 60-Domestic Uranium Program at g 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
"ore" does not include mill tailings or other mill products. . . . [Emphasis
added.l [Circular 5, 14 Fed. Reg.731 (February 18, 1949).]
24.4.7 .It is clear that the AEC was the primary mover in the domestic uranium
miningandmillingprogram. ItisclearthatundertheAEAs of 1946 and 1954,theAEC
regulated uranium mining and milling and established a uranium ore-buying program. It is clear
that from the 1940's to 1975, the regulations in 10 C.F.R. Part 60 clearly stated that "ore" does
not include mill tailings or other mill products. It is clear that "ore," under the AEA and AEC
regulation did not mean any "matter from which source material is extracted in a licensed
Petition for Review and Petition to Intervene
March 19,2018
uranium or thorium mill." Such a new definition contradicts the AEA.
24.4.8. The statutory definition of "source material" also is relevant to the use of
the term "ore" under that AEA and NRC regulation. The AEA of 1946, under "Control of
Materials," Sec.5 (b), "Source Materials," (l), "Definition," provides the definition of "source
material." Section s(bxl) states:
Definition. - As used in this Act, the term "source material" means uranium,
thorium, or any other material which is determined by the Commission, with the
approval of the President, to be peculiarly essential to the production of
flssionable 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.
24.4.9.The AEA of 1954, Chapter 2, Section 11, "Definitions," sets forth the
current statutory definition of "source material" at Sec. 11(s):
The term "source 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 more of the foregoing
materials, in such concentrations as the Commission may by regulation determine
from time to time. [42 U.S.C. Sec.2014(z).]
24.4.10. Responsive to this statutory def,nition, in 1961 the AEC established the
following regulatory definition at 10 C.F.R. $ 40.4:
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.05Vo) or more of: (i) Uranium, (ii) thorium or (iii) any
combination thereof. Source material does not include special nuclear material.
[26Fed. Reg.284 (Jan. 14, 1961)]
Therefore, the AEC made a determination, in accordance with the mandate of the AEA of 1954,
that ores containing 0.05Vo thorium and/or uranium would meet the statutory definition of source
material. At the same time that they made that determination, theAEC had a regulation that
clearly stated that "ore" does not include mill tailings or other mill products. Surely, the AEC, as
33
Petition for Review and Petition to Intervene
March 19,2018
the administrator of a uranium ore procurement program and the developer of the uranium
mining and milling industry knew what they were talking about when they used the term "ore."
24.4.ll.Additionally, theAEC set forth certain exemptions to the regulations in
10 C.F.R. Part 40. The proposed rule that 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, "Control of Source Material."
With certain specified exceptions, the proposed amendment requires a license for
the receipt of title to, and the receipt, possession, use, transfer, import, or export
of source material. . . .
Under the proposed amendment, the definition of the term "source material": is
revised to bring it into closer conformance with that contained in the Atomic
Energy Act of 1954. "Source Material" is defined as (1) uranium or thorium, or
any 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 0.05 percent source
material by weight. As a result of this exemption, the change in the definition of
source material is not expected to have any effect on the 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" unless such aciivities
are authorized by license issued by the Atomic Energy Commission. The Act
does not, however, require a license for the mining of source material, and the
proposed regulations, as in the case of the current regulations, do not require a
license for the conduct of mining activities. Under the present regulation, miners
are required to have a license to transfer the source material after it is mined.
Under the proposed regulation below, the possession and transfer of unrefined and
unprocessed ores containing source material would be exempted. 147 Fed. Reg.
8619 (September 7, 1960).1
24.4.12. Therefore, the AEC established, via a rulemaking, exemptions for source
material as defined in Sec. 20Ia@)0) related to mixtures, compounds, solutions, or alloys
containing uranium and/or thorium:
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March 19,2018
(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 1 percent (0.05 percent) of the mixture,
compound, solution or alloy. The exemption contained in this paragraph does not
include byproduct material as defined in this part. [10 C.F.R. $ 40.13(a), 26Fed.
Reg. 284 (Jan. 14, 1961).1
24.4.13. The AEC also established, via a rulemaking, exemptions for source
material as defined in Sec. 2Ua@)(2) related to "ore":
(b) Any person is exempt from the regulations in this part and from
the requirements for a license set forth in section 62 of the act to the 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. [10 C.F.R. 40.13(b),26
Fed. Reg. 284 (Ian. 14,196l).1
25.4.14.The definition of "source material" and the exemptions that are related to
those definitions stand today, over fifty-five 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." These regulatory definitions and exemptions did not change
when the AEA was amended by UMTRCA in 1978.
25.4.15. Definition of 11e.(2) byproduct material. UMTRCA, among other
things, amended the AEA of 1954 by adding a new definition, the definition of 11e.(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 (1) 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 source material
content." [42 U.S.C. Sec.2014 (e).]
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March 19,2018
24.4.16. There is no evidence in the regulatory history of UMTRCAthat
Congress, in defining "lle.(Z) byproduct material," intended to also amend the statutory
definition of "source material." There is no evidence in the regulatory history of UMTRCA that
the term "any ore" does not mean,"any type of uranium ore" (e.g., ore containing less than .05Vo
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 UMTRCAthat Congress intended the term "any ore" to mean anything that the NRC,
DWRC, or Energy Fuels wants it to mean. There is no evidence in the regulatory history of
UMTRCA that "ore" is "any other matter from which source material is extracted in a licensed
uranium or thorium mill."
24.4.17 .In response to UMTRCA, both the EPA and the NRC established a
regulatory program for uranium milling and the processing of ores. In establishing those
regulations, neither the EPA nor the NRC contemplated the processing of materials that were not
"ore" (as that term has been used under the AEA and the common meaning of the term). Neither
the EPA nor the NRC considered wastes from other mineral processing operations in their
concept of "ore." They did not address in any manner the processing wastes or any matter other
than natural ore when promulgating their regulatory regimes for active uranium processing
facilities. Further, during the various rulemaking proceedings, the public was never informed
that wastes from other mineral processing operations or materials other natural ore, no matter
how they were defined, would be processed at licensed uranium or thorium mills. Therefore, the
public was given no reasonable opportunity to comment on such processing activities at uranium
mills in the rulemaking processes.
36
24.4.18. NRC Regulatory Program, 10 C.F.R. Part 40. Responsive to UMTRCA,
Petition for Review and Petition to Intervene
March l9,20l8
the NRC incorporated the UMTRCAdefinition of lle.(2) byproduct material (with clarification)
into their regulations at 10 C.F.R. $ 40.4:
"Byproduct Material" means the tailings or wastes produced by the exfraction 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 material" within this definition.
[44 Fed. Reg.50012-50014 (August 24,1979).)
24.4.19. The NRC also explained the need for the new definition:
Section 40.4 of 10 CFR Part 40 is amended to include a new definition of
"byproduct material." This amendment, which included uranium and thorium
mill tailings as byproduct material licensable by the Commission, is required by
the recently enacted Uranium Mill Tailings Radiation Control Act. 144 Fed. Reg.
50012-500 14 (August 24, 1979).1
24.4.20. The NRC promulgated further regulations amending Part 40, in 1980,45
Fed. Reg. 65521-65538 (October 3, 1980). In the summary, the NRC states:
The U.S. Nuclear Regulatory Commission is amending its regulations to specify
licensing requirements for uranium and thorium milling activities, including
tailings and wastes generated from these activities. The amendments to parts 40
and 150 take into account the conclusions reached in a final generic
environmental impact statement on uranium milling and the requirements
mandated in the Uranium Mill Tailings Radiation Control Act of 1978, as
amended, public comments received on a draft generic environmental impact
statement on uranium milling, and public comments received on proposed rules
published in the Federal Register. [Footnotes omitted.]
24.4.21. There is no statement in any of the NRC regulations in 10 C.F.R. Part40
or in any of rulemaking proceedings promulgating those regulations that wastes from other
mineral processing operations, lle.(2) byproduct material, or any other matter processed in a
licensed uranium mill could be defined as "ore," under any circumstances. The NRC regulations
did not contemplate that, under any circumstances, wastes and other materials would be
processed at licensed uranium or thorium mills and the tailings, or that the wastes from such
37
Petition for Review and Petition to Intervene
March 19,2018
processing would be disposed of as 11e.(2) byproduct material in the mill tailings
impoundments. The regulations promulgated by the NRC did not contemplate this kind of
activity.
24.4.22. The National Environmental Policy Act ("NEPA") document in support
of the promulgation of the NRC regulatory program for uranium mills did not contemplate this
kind of activity. In the rulemaking proceedings and NEPA proceeding, the public did not have an
opportunity to contemplate and comment on this kind of uranium or thorium mill processing
activity. The information provided in the SER and other documents demonstrate that materials
other than natural ore contain radiological and non-radiological constituents that are significantly
different than those in natural ore. Therefore the impacts from the processing and disposal of the
wastes from those materials would be different from those of "ore."
24 .4 .23 . Furthermore , 10 C .F.R. Part 40 , Appendix A, Criterion 8 , states (in part) :
Uranium and thorium byproduct materials must be managed so as to conform to
the applicable provisions of Title 40 of the Code of Federal Regulations, Part 440,
"Ore Mining and Dressing Point Source Category: Effluent Limitations
Guidelines and New Source Performance Standards, Subpart C, Uranium,
Radium, and Vanadium Ores Subcategory," as codified on January 1, 1983.
There is no indication that this NRC regulation and the regulation in 40 C.F.R .Part 440 (and the
enabling statute) have in any manner been amended or altered by subsequent NRC policy
guidance. Therefore, any shift in the usage of the word "ore" would conflict with statutory and
regulatory authorities with respect 10 C.F.R. Part 40 and 40 C.F.R. Part 440.
24.4.24. The Final Generic Environmental lmpact Statement on Uranium Milling
(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
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Petition for Review and Petition to Intervene 39
March 19,2018
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 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.]
Here, the GEIS is very clear about what it considers "ore" to be and gives no indication
whatsoever that materials other than ore (a natural material after its removal from its place in
nature), such as the tailings or waste from mineral processing operations, are considered to be
"ore" if the material is processed at a licensed uranium mill.
24.4.25. The GEIS includes a discussion of "Past Production Methods." That
discussion makes reference to "ore," "ore exploration," "pitchblende ore," "crude ore milling
processes," "lower-grade ores," "uranium-bearing gold ores," "high-grade ores," "ore-buying and
"ore reserves." GEIS, Volume I, Chapter 2, at2-l to 2-2. In Chapter 6, "Envfuonmental
Impacts," there is a discussion of "Exposure to Uranium Ore Dust," which states, in part:
Uranium ore dust in crushing and grinding areas of mills contains natural uranium
(U -238, U -23 5, thorium-230, radium-2 26, lead-210, and polonium-2 1 0) as the
important radionuclides. GEIS, Volume I, at 6-41.
There is also a table giving the "Average Occupational Internal Dose due to Inhalation of Ore
Dust," (GEIS at 6-41, Table 6.16). Further, the GEIS discusses "Shipment of Ore to the
Mill- (GEIS at7-ll); "Sprinkling orWetting of Ore Stockpile" (GEIS at8-2); "Ore Storage" and
"Ore Crushing and Grinding" (GEIS at 8-6); "Ore Pad andGrinding" (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.III, at K-3 to K-3). In the NRC responses to
Petition for Review and Petition to Intervene
March 19,2018
comments there are discussions of "Average Ore Grade, Uranium Recovery" (GEIS, Vol.II, at
A-l2to A-13).
24.4.26. The GEIS did not consider the processing of wastes from mineral
processing operations at uranium or thorium mills. The GEIS gives no indication whatsoever
that such wastes are "ore," even if they were processed at a uranium or thorium recovery facility
for their "source material content." Clearly, the GEIS did not consider that the wastes from the
processing of such wastes (such as material already defined as 11e.(2) byproduct material) would
meet the definition of lle.(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
transport of such wastes, nor were reasonable alternatives to the transportation, receipt,
processing, and disposal of such wastes at uranium or thorium mills ever evaluated.
24.4.27 . EPA Regulatory Standards. UMTRCA directed the EPA to establish
standards for uranium mill tailings and directed the NRC to implement those standards. That
statute, as codif,ed in 42 U.S.C.2022, states in pertinent part:
5ec.2022. Health and environmental standards for uranium mill tailings
(b) Promulgation and revision of rules for protection from hazards at processing
or disposal site.
(1) As soon as practicable, but not later than October 31, 1982, the
Administrator shall, by rule, propose, and within 1l 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 20la@)Q) of this title, at sites at which
ores ane processed primarily for their source material content or which are
used for the disposal of such byproduct material. . . . [Emphasis added.]
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Petition for Review and Petition to Intervene
March 19,2018
Requirements established by the Commission under this chapter with
respect to byproduct material as defined in section 20la@)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 as provided in subsection (0(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 20la@)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
responsibility of the Commission in the conduct of its licensing activities
under this chapter. States exercising authority pursuant to section 2021(b)(2)
of this title shall implement and enforce such standards in accordance with
subsection (o) of such section. [42 U.S.C.2022(b) and (d).]
24.4.28. Congress directed the EPA only to establish standards for "sites at
which ores are processed primarily for their source material." The EPA, as mandated by
UMTRCA, finalized the "Environmental Standards for Uranium and Thorium Mill Tailings at
Licensed Commercial Processing Sites" in 1983. 48 Fed. Reg. 45925-45947 , October 7 ,1983.
the "Summary of Background Information" the EPA provides a discussion of "The Uranium
Industry" (i.e., the industry that the regulations apply to):
The major deposits of high-grade uranium ores in the United States are located in
the Colorado Plateau, the Wyoming Basins, and the Gulf Coast Plain of Texas.
Most ore is mined by either underground or open-pit methods. At the mill the ore
is first crushed, blended, and ground to proper size for the leaching process which
extracts uranium. . . . After uranium is leached from the ore it is concentrated . . . .
The depleted ore, in the form of tailings, is pumped to a tailings pile as a 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. [48 Fed. Reg.
4t
ln
Petition for Review and Petition to Intervene
March 19,2018
45925, 45927,October 7,1983.1
24.4.29. 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 or that ore could be defined as "any other matter from which source material is
extracted in a licensed uranium or thorium mi11."
24.4.30.Additionally, the EPA incorporated UMTRCA's definition of 11e.(2)
byproduct material, as clarif,ed by the NRC in 10 C.F.R.40.4, into their standards at 40 C.F.R.
Subpart D, $ 192.31(b). Since that time the EPA has not amended their definition of 11e.(2)
byproduct material in a rulemaking proceeding, nor have they amended their definition via policy
guidance. The EPA has not, in any manner, expand the use of the words "any ore" to include
"any other matter from which source material is extracted in a licensed uranium or thorium mill."
EPA did not sanction the NRC's policy guidance with respect new definitions of "ore" and 1le.
(2) byproduct material.
24.4.31. Clearly, the EPA, as directed by Congress, has not in any manner
contemplated the processing of wastes from other mineral extraction operations at uranium or
thorium mills when establishing the "Environmental Standards for Uranium and Thorium Mill
Tailings at Licensed Commercial Processing Sites." The EPA did not contemplate, nor was the
public informed of the EPA intention to consider, the processing of "any other matter from which
source material is exffacted in a licensed uranium or thorium mill."
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Petition for Review and Petition to Intervene
March 19,2018
24.4.32.In the various rulemaking proceedings that have taken place in the
establishment of 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 or "any other matter from which source material is extracted in a
licensed uranium or thorium mill." The processing of wastes (such as the material from the
Sequoyah Fuels Corp. Gore facility) from material other than natural ore at uranium and thorium
mills was beyond the scope of the regulatory program established by the NRC and the EPA in
response to UMTRCAfoT operating uranium mills.
24.4.33. The AEA, as amended in 1978 by UMTRCA, included provisions
applicable to Agreement States. One of those provisions requires NRC Agreements States (such
as Utah) to "require for each license which has a significant impact on the human environment a
written analysis (which shall be available to the public before the commencement of any such
proceedings) of the impact of such license, including any activities conducted pursuant thereto,
on the environment, which analysis shall include," among other things, "consideration of the
long-term impacts, including decommissioning, decontamination, and reclamation impacts,
associated with activities to be conducted pursuant to such license, including the management of
any byproduct material, as defined by section 20la @)Q) of this title." So, again, theAEA
imposes requirements associated with the definition of and management of 11e.(2) byproduct
material, as that term is defined under the AEA and NRC and EPA regulations promulgated
responsive to that Act. The State of Utah has not been given the authority to amend this section
of the AEA.
24.4.34. Regulatory History of NRC's Alternate Feed Guidance. The SER relies
on NRC Guidance (SECY 95-211, SECY-99- ll2,and NRC Regulatory Issue Summary
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Petition for Review and Petition to Intervene
March 19,2018
2000-23). In the late 1980's the NRC was faced with a few requests to process material other
than ore. At that time, and today, there are two statutes or regulations (implementing those
statues) that are pertinent. First is the statutory definition of "source material" established in
l954by the AEA, found at 42 U.S.C. Sec. 2014(z), and in the NRC regulatory definition of
"source material" (established in 1961 pursuant Sec. 2014(z)), found at l0 C.F.R .40.4:
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 (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 1l(e)(2) of the Atomic Energy
Act of 1954, as amended, (42 U.S. C Sec. z}la@)Q))and the regulatory definition of "byproduct
material" found in 10 C.F.R.40.4:
Byproduct Material means the tailings or wastes produced by the extraction or
concentration of uranium or thorium from any ore processed primarily for its
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 material" within this definition.
24.4.35.The NRC had several options, including the denial of the amendment
requests to process feed material that was not "ore." One option would have been to go to
Congress and request that Congress change the definition of 11e.(2) byproduct material to read
"the tailings or wastes produced by the extraction or concentration of any ore or any other
matter from which source material is extracted in a licensed uranium or thorium mill."
Emphasis added. NRC Staff made a determination that they would not go to Congress to seek an
amendment to the AEA of 1954. lf the AEA was amended to include a new definitions, the NRC
would have also had to commence a rulemaking to amend 1 0 C .F.R . P art 40 , and the EPA would
44
Petition for Review and Petition to Intervene 45
March 19,2018
have had also commence a rulemaking to amend 40 C.F.R. Part192,40 C.F.R. Part 61 Subpart
W, and other regulations.
24.4.36. What the NRC did was to manipulate the use of the word "ore" as it is
used in the definition of 11e.(2) byproduct material. NRC proposed in a notice and comment
opportunity, that a policy guidance be established for the purpose of interpreting the term "ore,"
as it is used in the definition of 11e.(2) byproduct material. 57 Fed. Fre5.20525 (May 13, 1992).
The NRC did not institute a rulemaking proceeding to amend l0 C.F.R. Part 40, though they
indicated that that was their intent and later issued an Advanced Notice of Proposed Rulemaking
for a rule to amend Part 40 that never advanced to the draft rule stage.
24.4.37. The NRC Final Position and Guidance gave a new definition of ore for
one purpose and one purpose only:
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. 49296 (September
22,1995).)
Based on the new use of the term "ore" as put forth in the NRC Guidance, not only would the
definition of lle.(2) byproduct material apply to "any ore processed primarily for its source
material content" in a licensed uranium or thorium mill, but the definition of 11e.(2) byproduct
material would also apply to any matter 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 "ore" as that word was used in the AEA, NRC, and EPAregulatory definition of 11e.(2)
byproduct material.
24.4.38.It is plain from the AEA of L946 and the legislative history of the AEA of
1954 and the Uranium Mill Tailings Radiation Control Act of 1978 and the regulatory history of
Petition for Review and Petition to Intervene
March 19,2018
the AEC, EPA, and NRC rules promulgated responsive to those laws, that the Policy Guidance's
new use of the term "ore" goes far beyond the accepted meaning of that term and the clear intent
of Congress. The applicability of various environmental regulations to a great degree depends
upon definitions. Congress, in their legislative function, often specifically defines words or
phrases related to the application of a statute to a particular material or circumstances-when
there is a need for explanation. However, when using words or terms with a common and long
accepted meaning, such as groundwater, mill, tailings, or "ore," no explanation or definition is
necessary.
24.4.40. The NRC and the State of Utah have not authorized to shift these
accepted deflnitions at will as an expression of their "regulatory flexibility." This is especially so
when such shifts result in direct conflicts with NRC's own enabling statutes and regulations, as is
the case with the use of the newly defined term "ore." Additionally, NRC and the 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.
24.4.41. The NRC issued the 1995 Final Position and Guidance and the 2000
Interim Position and Guidance without conducting an assessment of any of the health, safety, or
environmental effects of establishing a substantively new and different regulatory program that
resulted from the issuance of the Final Position and Guidance. The NRC did not provide an
environmental analysis of this fundamental regulatory change or propose any changes in its
regulations to protect the environment and public health and safety. The adverse environmental
effects-including cumulative effects-of this new program have not been adequately identified
and evaluated under the statutory framework established by the AEA. Further, no NEPA
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Petition for Review and Petition to Intervene
March 19,2018
document has ever considered the reasonable alternatives to the processing of wastes from other
mineral processing operations at uranium and thorium recovery facilities.
24.4.42.At the White Mesa Mill, this new recovery program-a program that
started with the processing of a few small batches of wastes from other mineral processing
operations to supplement the processing of uranium ore-grew to be a major uranium recovery
program that entailed the receipt and processing of thousands of tons of wastes from other
mineral processing operations from across the United States and even from Canada. It included
the processing of materials with different physical, chemical, and radiological characteristics
than found in ores typically processed at the White Mesa Mill. Wastes are processed based on
open-ended license amendment applications that did not limit the amount of waste that would be
delivered, processed, and disposed of at the Mill. Wastes continue to be delivered, processed,
and disposed of where the NRC did not, and the DWMRC has not, conducted an environmental
analysis of the processing and disposition of those wastes. The new program also involved the
processing of concrete, asphalt, and other construction materials, by washing them, chucking
them in the tailings impoundment, then processing the wash water in the Mill circuit.
24.4.43. UMTRCA, as it amends theAEA, clearly specified what constitutes "any
ore." What constitutes "any ore" is "any ore." The plain language of the Act and the history of
the implementation of the AEA of 1946, as amended by the AEA of 1954 and UMTRCA is all
that is needed to determine what "ore" or "any ore" is. Clearly the legislative and regulatory
historyof theAEAandTitle 10of theCodeof FederalRegulationsmakeplanthemeaningof the
term "ore" and the term "any ore." The DWMRC's use of the word "ore" for waste materials
from mineral processing operations (in this case materials already defined as 11e.(2) byproduct
material) is unreasonable and not permitted under the plain language of the AEA. No state or
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Petition for Review and Petition to Intervene
March 19,2018
federal agency can use a licensing action or a policy guidance to expand upon and substantively
alter the will of Congress when that will is explicitly set forth in statute.
24.4.45. As discussed above, the EPA standards (40 C.F.R. Partlg2 Subpart D)
do not apply to the Division and the White Mesa Mill do not apply to wastes from the processing
of materials other than natural ore at the Mill and the disposal of the wastes from such
processing. The Division has not explained what standards apply to the management and
disposal of 11e.(2) byproduct material at the White Mesa Mill, if EPA standards are not
applicable.
24.4.46. There are other EPA standards that are applicable to the uranium mills,
including the White Mesa Mill. The National Emission Standards for Hazardous Air Pollutants
(NESHAPs), National Emission Standards for Radon Emissions From Operating Mill Tailings
(40 C.F.R. Part 61 Subpart W), promulgated by the EPA under the Clean Air Act, "apply to
owners or operators of facilities licensed to manage uranium byproduct materials during and
following the processing of uranium ores, commonly referred to as uranium mills and their
associated tailings." Subpart W contains a definition of uranium byproduct material: "(Jranium
byproduct material or tailings means the waste produced by the extraction or concentration of
uranium from any ore processed primarily for its source material content." Subpart W applies to
the construction of impoundments to contain uranium byproduct material and control radon
emissions from that byproduct material during mill operation. Subpart W does not apply to the
processing of materials other than natural ore at a licensed uranium mill, the construction of
tailings impoundments that will receive wastes from the processing of materials other than
natural ore, the disposal of wastes from the processing of materials other than natural ore, or any
other operations or health and safety or environmental impacts from the processing of materials
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Petition for Review and Petition to Intervene
March 19,2018
other than natural ore at a licensed uranium mill. The EPA has not amended or in any manner
indicated that Subpart W applies to facilities that manage materials following the processing of
waste materials from other mineral processing operations, known as "alternate feed materials."
Therefore, the Subpart W regulations do not apply to the White Mesa Mill tailings
impoundments that place the wastes from the processing of the SFC Uranium Material in their
conventional tailings impoundments. Neither the EPA, nor the State of Utah, has promulgated
new NESHAP regulations that would apply to owners or operators of facilities licensed to
manage uranium byproduct materials during and following the processing of uranium-bearing
wastes and uranium bearing materials other than natural ore. The State of Utah has not been
given the authority to amend EPA NESHAP regulations through use of NRC guidance or by any
other means.
24.5. Request for Relief:
24.5.1. Division must not continue to approve the placement of wastes from the
processing of materials other than natural ore in the White Mesa Mill impoundments, which have
only been approved by the EPA, or a state with EPA delegated authority (such as the State of
Utah), for the management of uranium byproduct materials during and following the processing
of uranium ores; that is, natural ores-not materials other than natural ore.
24.5.2. The DWMRC cannot approve the proposed license amendment request to
process lle.(2) byproduct material at the White Mesa Mill based on the arguments above, and
the LicenseAmendment Request must be denied.
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Petition for Review and Petition to Intervene
March 19,2018
Respectfully submitted,
_54/(_1 W
Sarah Fields
Petition for Review and Petition to Intervene
March 19,2018
CERTIFICATE OF SERVICE
The undersigned caused the foregoing Request forAgency Action and Petition to Intervene to be
served via electronic mail and sent via first class mail this 19th day of March 2018 to:
Scott Anderson
Director
Utah Division of Waste Management and Radiation Control
P.O. Box 144850
salt Lake city, utah 84114-4850
[e-mail]
Administrative Proceedings Records Officer
Environment Division
Utah Attorney General's Office
195 North 1950 West
Salt Lake City, Utah 84116
[e-mail]
David Frydenlund
Energy Fuels Resources (USA) Inc.
225 Union Blvd., Suite 600
Lakewood, Colorado, 80228
dfrydenlund @ energyfuels.com
Bret Randall
Assistant Attorney General
Utah Attorney General's Office
195 North 1950 West
Salt Lake City, Utah 84116
[e-mail]
Michael A.Zody
Parsons, Behle & Latimer
201 South Main Street, Suite 1800
salt Lake city, Utah 84111
MZody @ parsonsbehle.com
51
Sarah Fields
March 19,2018