DRC-2018-002747 - 0901a068807d2017

Joel Ban, USB #10114
Ban Law Office PC
Post Office Box 118
Salt Lake City, Utah 84110
801-532-2447
[e-mail]
Aaron Paul (pro hac vice pending)
Grand Canyon Trust
4404 Alcott Street
Denver, Colorado 80211
303-477-1486
[e-mail]
Attorneys for Petitioner
Grand Canyon Trust
Div of Waste Management
and Radiation Control
MAR f 5 2018
BEFORE THE EXECUTIVE DIRECTOR OF THE
UTAH DEPARTMENT OF ENVIRONMENTAL QUALITY
In re Renewal of Radioactive Materials
License No. UT 1900479 (Am. 8) for the
White Mesa Uranium Mill (Feb.16, 2018)
File No.
Filing and Service Date: March 15, 2018
PETITION TO INTERVENE AND STATEMENT OF STANDING
1. The Grand Canyon Trust is petitioning for review under Utah Code§ 19-1-301.5
and Utah Administrative Code Rule R305-7-203(1) of the Director of the Division of Waste
Management and Radiation Control's permit order renewing the radioactive materials license for
the White Mesa uranium mill (License No. UT1900479, Am. 8), dated February 16, 2018. The
Trust hereby petitions to intervene in that special adjudicative proceeding under Utah Code
§ 19-1-301.5(7) and Utah Administrative Code Rule R305-7-204.
2. The Trust does not believe it is required to demonstrate standing at this phase of
the proceeding, but it does so below should it be deemed necessary.
1
I. The Grand Canyon Trust
3. The Grand Canyon Trust is a membership-based, non-profit advocacy
organization founded in 1985 that has over 3,000 members.l lt is headquartered in Flagstaff,
Arizona, and has offices in Castle Valley and Salt Lake City, Utah, and Durango and Denver,
Colorado.2 The mission of the Trust is to protect and restore the Colorado Plateau - its
spectacular landscapes, flowing rivers, clean air, diversity of plants and animals, and areas of
beauty and solitude.3
4. The Plateau is a physiographic region that stretches south-to-north from roughly
the Mogollon Rim in northern Arizonato the Uinta Mountains in northern Utah and east-to-west
from the Great Basin in Utah to the western side of the Rocky Mountains in Colorado and
northwestern New Mexico.a The White Mesa mill sits near the heart of the Plateau.s
5. One of the Trust's goals is to ensure that the Plateau is a region characterized by
vast open spaces and healthy ecosystems with which human communities maintain a sustainable
relationship.5 In service of that goal, the Trust has worked for years to oppose irresponsible
uranium mining and milling on the Plateau, and to see that the contamination around the Plateau
that the uranium industry has repeatedly left in its wake is cleaned up.7
[I. Factual Background
6. The White Mesa mill is an acid-leaching, uranium-processing mill that turns
uranium ore and other uranium-bearing substances into a product called yellowcake, which is
'Ex. A attached to this petition (Reimondo Decl.) t[2.
'Id.3 Id. atlz.
o Id.
s Id.
6Id.
7 Id. atq 4.
then enriched for use in nuclear reactors. Black flake, a substance used in other industrial
processes, is also made at the mill by extracting vanadium from some feeds. Mostly what comes
out of the mill, though, is radioactive waste. This waste, commonly called tailings, is discarded in
big pits spanning abott275 acres next to the mill. There are five of these pits, or
"impoundments," at the mill, named Cell t, Cell2, Cell3, Cell4A, and Cell48.
7. Some of these pits have been used historically to hold mostly solid wastes and, for
that reason, are sometimes called "conventional impoundments."s Others have been used for
mostly liquid wastes and are sometimes called "evaporation ponds" or "non-conventional
impoundments."e All the mill's pits, whether conventional or non-conventional, are a few miles
north of the centuries-old Ute Mountain Ute tribal community of White Mesa and a few miles
south of downtown Blanding. A detailed description of the mill's operations is set out in the
Trust's petition for review in this proceeding.
8. Trust members live near and use the area around the mill. For example, Bill
Crowder lives with his wife, Ann Leppanen, part time in Bluff, a little less than 20 miles from the
mill.ro Mr. Crowder and Ms. Leppanen were drawn to southeast Utah by its unique natural
beauty and history-its red rock landscapes, its archeological treasures, its remarkable cultural
past, its wide-open vistas and clean air, its wild and remote character.rl For those reasons, they
frequently explore the landscapes around their home and the mill.12
' See, e.g.,40 C.F.R. S 61.251(h).
e See, e.g,40 C.F.R. S 61.251(i).
'o Ex. B attached to this petition (Crowder Decl.) atfl2.
1r Id. at{13.
12 Id. at\ q.
9. Mr. Crowder and Ms. Leppanen also invested a great deal in building their house
in Bluff, eager to retire to the area, enjoy the surrounding natural environment, and create a place
for their family to visit for generations." One of their maior motivations for building their home
in Bluff, as opposed to elsewhere in southeastern Utah, was that Bluffdoes not have a legacy of
uranium contamination.la They wanted to live somewhere where they did not have to worry
about polluted water or air or other environmental scars the uranium industry has left around
southeast Utah.ls
10. To mill uranium, Energy Fuels must have a radioactive materials license issued by
the Director of the Division of Waste Management and Radiation Control that authorizes the
company to possess and process "source material" -which generally means uranium ore-and
to dispose of the waste "byproduct material" -or tailings-that the mill generates.r6 The
Director is authorized to issue this license under state law, exercising authority delegated to the
state by the U.S. Nuclear Regulatory Commission.
11. The main requirements for managing and disposing of tailings originate from a
federal law passed in 1978 called the Uranium Mill Tailings Radiation Control Act. Congress
found in UMTRCA that "uranium mill tailings located at active and inactive mill operations may
pose a potential and significant radiation health hazardto the public" and sought to regulate
tailings in "a safe and environmentally sound manner ... to prevent or minimize radon diffusion
into the environment and to prevent or minimize other environmental hazards from such
" Id. atqlql 2-3, 10.
t4 Id. at\9.
's Id.
tu Utah Code g 19-3-104; utah Admin. Code R313-19-2(1).
tailings. "l7 Radon is a gas that can cause lung cancer and other serious health impairments." To
comply with UMTRCA, the Nuclear Regulatory Commission has issued regulations that set
standards for managing and reclaiming mill tailings.te They appear in 10 C.F.R. Part 40,
Appendix A.
72. Appendix A's goal is to secure "permanent isolation of tailings and associated
contaminants by minimizing disturbance and dispersion by natural forces, and to do so without
ongoing maintenance. "20 To that end, it sets standards for where to put tailings-disposal sites,
designing and building those sites, gathering baseline environmental data before milling
operations begin, protecting groundwater, monitoring and inspecting tailings-disposal areas,
closing and reclaiming those areas, and minimizing air-quality impairments from milling.2t
73. As soon as a tailings impoundment at a uranium mill "ceases operation,"
Appendix A requires mill operators to expeditiously build a "final radon barrier" over the
impoundment "in accordance with a written, Commission-approved reclamation plan."22 The
final radon barrier must be designed to work for at least 200 years-and 1,000 years if possible*
and to limit average releases of radon-222 to 20 picocuries per square meter each second
(zo pCi/(m2-sec)).23 Other hazards posed by tailings impoundments-such as contaminants
'i +z u.s.c. S 7901(a).
18 See "National Emission Standards for Hazardous Air Pollutants: Standards forRadon-222
Emissions from Licensed Uranium Mill Tailings," 51Fed. Reg. 34,056134,056-57 (Sep. 24,
1e86).
le Uranium Mill Licensing Requirements, 45 Fed. Reg. 65,521 (Oct. 3, 1980).
'o t0 C.F.R .Part 4orAppendix A, Criterion 1.
21 SeelO C.F.R. Part 40, Appendix A, Criteria 1-8A.
" Id. atCriterion 6A.
23 SeelO C.F.R. Part 40, Appendix A, Criteria 6 & 6A. A picocurie (pci) is one trillionth of one
curie (Ci), which is a unit for measuring the intensity of radioactivity of a material. See U.S.
leaching into the ground or groundwater-must be controlled, eliminated, or minimized.2a
Impoundments also must be closed to minimize future maintenance, meaning that the cover
must hold up to earthquakes, floods, freezingrprecipitation, burrowing animals and deep-rooted
plants, erosion, and nature's other onslaughts.2s Deadlines-also called "milestones"-for
finishing the final radon barrier, retrieving windblown tailings, and stabilizing the tailings
impoundment are to be established in a reclamation plan and as conditions of each mill's
radioactive materials license.26
m. The Trust is entitled to intervene in this proceeding.
74. A pa.ty is entitled to intervene in a special adjudicative proceeding if it:
(a) "demonstrates that [its] legal interests may be substantially affected by the special
adjudicative proceeding; (b) demonstrates that the interests of justice and the orderly and prompt
conduct of the special adjudicative proceeding will not be materially impaired by allowing the
intervention; and (c) in [its] petition for review, raises issues or arguments that are [properly]
preserved.. .."27 TheTrust's petition for review in this proceeding identifies how the Trust
properly preserved its arguments. The other two factors are addressed below.
A. The Trust's interests may be substantially affected by this proceeding.
15. The Director's decision at issue in this proceeding renewed the mill's radioactive
materials license-thereby granting the mill permission to operate for the next decade2s-and
Nuclear Regulatory Commission, "Curie (Ci)," "Picocurie (pCi)" auailable at
http: //www.nrc. govlreading-rm/basic-ref/glossary.html.
" to C.F.R. Part 40, Appendix A, Criterion 6(7).
's Id. atCriterion 6(7).
26 See id. at "Reclamation Plan" and Criterion 6A.
" UtahCode S 19-1-301.5(7)(d); see alsolJtahCode S 63G-4-207(1).
'8 Utah Dep't of Envtl. Quality, Div. of Waste Mgmt. & Radiation Control, Radioactive
Materials License No. UT190O479, Am- 8 at p. I (Feb. 76,2018) ('(2018 License"); see alsoUtah
approved a new plan for reclaiming the mill and permanently burying its radioactive wastes on
site.2e
76. That decision substantially affects the interests of the Trust and its members by
improperly extinguishing procedural rights that protect their concrete interests, depriving them
of information about the mill's environmental impacts, and diminishing their enjoyment of the
area around the mill, where some Trust members live.
L7. The reclamation plan the Director approved calls for Energy Fuels to build an
evapotranspirative cover over the radioactive mill wastes that will be permanently buried at the
mill.3o But Division staffare skeptical that this "ET cover" will protect the environment.3l So,
the Director and Energy Fuels agreed in a Stipulation and Consent Agreement-executed well
before the license and reclamation plan were put out for public comment-to build two small test
sections of the ET cover in the corner of Cell 2 and gather performance data from them for seven
years." If the test sections meet performance criteria, then Energy Fuels will finish building the
ET cover on Cell 2.33 If the test sections do not meet those criteria, Energlr Fuels will have a
chance to revise the design to the Director's satisfaction.34 If the Director is ultimately
Admin. Code R313-19-2(l) (prohibiting possession, use, manufacture, production, receipt
transfer, ownership and acquisition of radioactive material without a license).
'e 2ol8 License at2l Bnergy Fuels Resources (USA) Inc., Reclamation Plan: White Mesa Mill,
Blanding, Utah - Radioactive Materials License No. UT1900479, Revision 5.1B (Feb. 2018)
("Rec. PIan Rev. 5.1B ").30 See Rec. Plan Rev. 5.1B at I-2r3-4.
" See, e.g., Division, Public Participation Summary: Radioactiye A4aterial License UT1g0047g
Renmtal, Ground Water Qualitlt Discharge Pernit UGW370004 Renewal, and Sequolah Fuels
Altemate Feed, Request, Energt Fuels Resources (USA) Inc. (Energ Fuels) Iilhhe Mesa Uranium Mill
San Juan Countl, Utahrpp.54r2041245 [anuary 23,2078) ("2018 Pub. Participation Summ.").
" CommentEx.2tat4-5.
" CommentBx.2latT.
3o Id.
unsatisfied with Energy Fuels' proposed design, then the Consent Agreement commits Energy
Fuels to building a "conventional" cover on Cell 2-acover that was designed in 1996 and
approved for use by the Nuclear Regulatory Commission sometime thereafter.3s The company's
newly approved reclamation plan calls for the cover selected for Cell Z to eventually be built on
Cell 3, Cell +A, possibly part of Cell 1, and on Cell4B depending on what kind of wastes go in
that cell.36
18. During the public-comment period on the proposed license renewal and
reclamation plan, the Trust submitted comments that sought to add safeguards to the
reclamation plan to reduce environmental-contamination and public-health risks.37 The changes
to the ET cover design that the Trust advocated included adding a capillarybreak to minimize
leachate that could contaminate groundwater, adding a composite barrier of compacted clay and a
geomembrane beneath the evapotranspirative layers, and adding a biointrusion layer to deter
burrowing into the cover." The Trust also argued that a plan for monitoring the ET cover's
performance should be added to the reclamation plan, including construction of one or more
lysimeters in the cover to monitor the amount of water that flows through it and into the
radioactive tailings below.3e And the Trust asked the Director to prevent Energy Fuels from
3s Id.
36 Rec. Plan Rev. 5.1B at 3-3 to 3-6, 5-1to 5-2.
37 Grand Canyon Trust, Comrnents on the Proposed Renewal of Energy Fuek Reslurces (USA), Inc.'s
Radioacthte Materiak Licmse and Groundwater Discharge Permitfor the LVhite Mesa Millrpp. g-36
(July 31, 2017) ("Trust Comments").
38 Trust Comments at29-32.
3e Trust Comments at 33.
reverting to the 1996 conventional cover design without first updating that design to demonstrate
that it will outperform the proposed ET cover.ao
79. The Trust's comments also argued that state and federal law require Energy Fuels
to establish '(milestones" -meaning enforceable deadlinest'-in its reclamation plan for tasks
that are key to building the final radon barrier over uranium-milling wastes.a2 In response to these
comments, Energy Fuels tendered changes to its reclamation plan to establish firm deadlines for
some tasks in completing the final radon barrier.a3 Energy Fuels did not establish milestones for
some tasks for which the Trust sought milestones, including construction of Layers 3 and 4 of the
ET cover.aa And though Energy Fuels added milestones for closing non-conventional
impoundments, it described them as voluntary, rather than required by law, leaving open the
possibility that the milestones could be eliminated in the future.as
20. For the reasons set out in the Trust's petition for review in this proceeding, the
Director's decision to rene\ry the license was based on determinations that were clearly
erroneous, failed to follow prescribed procedures, were contrary to law, and were otherwise
arbitrary and capricious.
21. The Director foreclosed an opportunity for meaningful public comment on the
reclamation-cover design and other parts of the reclamation plan by making binding
commitments in the Consent Agreement executed in February 2017-before the public-
comment period on the license-that obliged the Director to approve the plan Energy Fuels
ao Trust Comments at22-29.o'to C.F.R. Part 40, Appendix A, "Reclamation plan" and "Milestone."
a2 Trust Comments atTO-2}.o'Rec. Plan Rev.5.1B at 6-lto 6-7.
oo Rec. Plan Rev. 5.18 at 6-5.
os Rec. Plan Rev. 5.1B at 6-7 to 6-8.
proposed. That deprived the Trust and its members of a procedural public-comment right that
protects their concrete interests in living near and using the area around the White Mesa mill.a6If
the Director had independently and obiectively considered the Trust's comments before making
a commitment requiring Energy Fuels to revert to the 1996 cover design and before committing
to a pilot test of Energy Fuels' proposed cover design (which lacked the additional design
features the Trust requested), the Director could have made changes to the reclamation plan that
would have added additional safeguards to reduce the risk of long-term contamination at the
mill-a risk that degrades the Trust's members' enjoyment of their homes and the surrounding
area.o'
22. The Director also erroneously concluded that he lacks authority to require
changes to the tailings-cover design that are ostensibly "more stringent" than the design
previously approved by the Nuclear Regulatory Commission or "more stringent" than the
requirements of federal law. And the Director clearly erred by approving use of the 1996 cover
design, even though the evidence did not clearly demonstrate that it would satisff Appendix A's
criteria. As a consequence, the Director erroneously rejected improvements to the reclamation
plan that would protect the Trust's members' interests in safeguarding their health and the
environment near their home, and in having access to monitoring information from reclaimed
mill wastes.as
a6 SeeEx.B (Crowder Decl.) at !f!f 2, 4-6rg (describing interests in living near and using the area
around the mill).
o' Id. atqlq|9, 11 (describing how additional reclamation safeguards would restore enjoyment of
home and area around the mill).
or Id. at{f 11 (describing interests in monitoring information and protecting the environment
around home and the mill).
10
23. The Director also erroneously failed to impose some reclamation milestones that
are required by State and federal law. Milestones are intended to motivate expeditious closure of
tailings impoundments not only by establishing deadlines for key tasks but also by ensuring that
procedural safeguards apply to prevent unjustified extensions. Milestones may be extended, but
only after allowing public participation, only after finding that radon releases from the
impoundment are less than 20 pCi/(m2-sec) on average, only if radon emissions are monitored
annually during the period of delay, and if an extension for placing the final radon barrier is
sought based on cost, only after even more criteria are met.ae Failing to include obligatory
milestones in the reclamation plan impairs the Trust's and its members' interests by eliminating
an incentive to complete key reclamation steps quickly and by extinguishing all these
safeguards-the right to public participation before extensions are granted, the right to be
informed about radon emissions during periods of reclamation delay, and the protections
afforded by the law's limitations on cost-based delays.so
24. The renewed license is also a prerequisite to the mill's ongoing operation for the
next decade.t'And the license cannot be renewed without a reclamation plan that satisfies the
requirements of Appendix A.s2 By renewing the license without following prescribed procedures
and by having made determinations that were clearly erroneous, contrary to law, and otherwise
ae SeeTO C.F.R. Part 40, Appendix A, Criterion 6A(2).
s0 See Ex. B (Crowder Decl.) at ql 11 (describing interests in having monitoring information and
ensuring prompt cleanup of mill wastes).
sr See Utah Admin. Code R313-19-2(1) (prohibiting possession, use, manufacture, production,
receipt transfer, ownership and acquisition of radioactive material without a license).
s2 Seeto C.F.R. S 40.31(h) (requiring uranium-milling applications to include written
specifications for the disposition of byproduct material to achieve the requirements and
objectives of 10 C.F.R. Part 40, Appendix A); Utah Admin. Code R313-24-4 (incorporating
10 C.F.R. 40.31(h) by reference).
11
arbitrary and capricious, the Director has unlawfully allowed the mill to continuing operating for
the next decade to the detriment of the Trust and its members.
25. In addition to the injuries described above, the mill's continued operation impairs
the interests of members of the Trust. Mr. Crowder gets less pleasure out of his property, his
home, and the red rock country surrounding it because he is exposed to and worried about the
mill's radon emissions, which he knows can cause lung cancer and other health problems.s3
Mr. Crowder began to curtail how he uses the area near the mill after learning that radon
emissions from mill wastes exceeded federal standards and because the mill had failed to close its
waste pits as fast as he understood federal law to require.sa Having learned more about the mill's
radon emissions and groundwater contamination in the past few years, Mr. Crowder has
continued to avoid camping, hiking, and searching for archeological features and rock art in areas
close to the mill because of the mill's pollution.ss And he gets less pleasure out of his home
because of the long-term blight that the mill's waste pits pose for the area.s6
26. These impairments of a Trust's member's quality of life, recreational
opportunities, property interests, and aesthetic sensibilities give the Trust a legal interest in
ensuring, through intervention in this proceeding, that the Director fulfills his legal obligations to
safeguard the environment and public health. Absent permission to intervene in this proceeding,
the Trust's and its members' interests in the proper application of laws designed to protect the
environment from radioactive and other contamination will be prejudiced.
s3 SeeEx.B (Crowder Decl.) at qlqJT-10.
s4 Id. at\t.
ss Id. at\ B.
tu Id. atllllg-ro.
72
B. Claim for Relief and the Interests ofJusticesT
27. In this proceeding, the Trust requests:
a. an order vacating the Director's decision to approve the permit order
renewing the radioactive materials license for the White Mesa uranium mill
(License No. UT1900479, Am. 8);
b. an order vacating-in whole or in part-the Stipulation and Consent
Agreement dated February 23,2017;
c. an order vacating approval ofthe 1996 conventional cover design;
d. an order remanding the license with instructions to undertake a new public-
comment period on the license and ordering the Director to objectively and
independently review comments on the reclamation plan, with instructions
that any determinations flowing from this review be supported by substantial
evidence and documented in the recordl
e. a declaratory order that milestones are required for non-conventional
impoundments;
f. an order requiring the Director to impose milestones for completing Layers 3
and 4 ofthe ET cover;
g. an order that the Director otherwise fulfill his obligations under state and
federal law; and
h. any other or additional remedy the Executive Director deems appropriate.
28. Allowing the Trust to intervene in this proceeding will not impair the interests of
justice or the orderly and prompt conduct of this proceeding. On the contrary, allowing
s7 SeeUtahCode S 63G-4-207(lxd), (2)O); Utah Code $ 19-1-301.5(7).
13
intervention will promote the interests of iustice by ensuring, through administrative review, that
the law is properly applied to the license renewal and that any deficiencies in the license renewal
are redressed. The Trust's petition to intervene is timely, raises issues suitable for administrative
review, and will accordingly not disrupt the orderly and prompt conduct of this proceeding.
ry. The Trust has standing.
29. Standing may be established under Utah law in two ways-under the
"ffaditional" standing test and under the "alternative" test. Under the traditional test, a party
has standing when: "(1) it has a legally cognizable interest that has been or will be adversely
affected by the challenged actions, (2) there is a causal relationship between the injury to the
pafty, the challenged actions and the relief requested, and (3) the relief requested is substantially
likely to redress the injury claimed. "ss An association like the Trust may establish standing under
this test "by having its members attest that an agency's action or inaction will result in judicially
remediable harm to their specific livelihood, health, property, or recreational interests. "se
A. The Trust has standing under the traditional test.
30. The permit order will adversely affect Trust members' cognizable interests in a
way that is substantially likely to be redressed by the relief the Trust requests.
31. As explained in more detail above and in his declaration, Mr. Crowder, a Trust
member, gets less pleasure out of his property, his home, and the surrounding area because he is
exposed to pollution from the mill and the long-term pollution risks that are created if the mill's
wastes are not properly cleaned up.uo A few years ago, when he learned that radon emissions from
ss LiaingRiyers p. Exec. Dir. of the Utah Dep't of Enutl. Qualitl,--- P.3d ---,20t7 TJT 64,1128
(internal quotations, alterations, and citations omitted).
se Id. at{128.
60 See Ex. B (Crowder Decl.) at qlql 7-10.
I4
mill wastes exceeded federal standards and that the mill had failed to close its waste pits as fast as
he understood federal law to require, he began to cut back on his use of the area near the mill.6t
Knowing that the mill and its wastes continue to emit radon and that there is groundwater
pollution at the mill, he has continued to curtail his recreational use of the area around the mill.62
And his enjoyment of his home and the area around it is diminished by the pollution and health
risks created by failing to follow all the law's requirements to ensure that waste pits are closed
quickly and with every mandated safeguard for protecting the environment and public health.63
32. These injuries are traceable to the permit order challenged in this case. As
explained above, the Director's unlawful failure to include milestones for all the key tasks in
building the final radon barrier extinguishes procedural safeguards to the detriment of
Mr. Crowder's interest in ensuring that mill wastes are reclaimed quickly, that radon emissions
are measured and stay below 20 pCil(mz-sec) during any period of delay, and that the public has
a chance to weigh in on reclamation delays.uo Likewise, unlawfully approving the 1996 cover
design and unlawfully rejecting improvements to the ET cover that could safeguard the health
and the environment harms Mr. Crowder's interests in ensuring that mill wastes are closed as
safely as possible.6t And because the Director's approval of Energy Fuels' reclamation plan was a
fait accomplira meaningful opportunity to comment on the plan was foreclosed, harming
Mr. Crowder's interests in achieving the safest and quickest possible cleanup of mill wastes.66
61 Id. atq7.
62 Id. atq B.
u' Id. atjl 9-tr.
64 Id. atlltt.
ut Id.
uu Id.
15
33. In addition, as explained above Geelllt 24-26),by renewing the mill's license and
approving its reclamation plan without following prescribed procedures and based on erroneous
determinations, the Director has unlawfully allowed the mill to continuing operating for the next
decade to Mr. Crowder's detriment.
34. Ordering the relief that the Trust requests would redress these iniuries. That
relief would require the mill's reclamation plan to have milestones that have been unlawfully
omitted from the plan. It would require the Director to reconsider comments requesting
improvements to the reclamation plan that the Director improperly rejected as "more stringent"
than previously approved by the Nuclear Regulatory Commission or "more stringent" than
federal law allows. It would vacate the Director's erroneous approval of the 1996 cover design
and thereby ensure that the design-or an update to that design-is approved in the future only
if the evidence clearly demonstrates that it will satis{, Appendix A. And vacating the license and
unlawful parts of the Consent Agreement and ordering the Director to reconsider public
comments would allow the Director to independently and objectively consider whether to make
changes to the reclamation plan that would add additional safeguards to reduce long-term
contamination risks that degrade Mr. Crowder's enjoyment of his home and the surrounding
area.u'
B. The Trust has standing under the alternative test.
35. There are two elements for establishing standing under the alternative test. First,
a party must establish "that it is an appropriate party to raise the issue" in dispute.6s A party who
has "the interest necessary to effectively assist the [decisionmaker] in developing and reviewing
u' Id. atql$ 7-11.
6r Utah Ch. Siera Club t;. tJtah Air Qualitlt 8d.,148 P.3d 960,972 (2006) (internal quotation
marks omitted).
16
all relevant legal and factual questions" is an appropriate party, so long as the issues are "unlikely
to be raised if the party is denied standing."6e Second, the party must demonstrate that the issues
it seeks to raise " are of sufficient public importance . . . to warrant granting the party standing. "70
36.This test is satisfied in this proceeding. For all the reasons laid out above, the
Trust has a serious stake in this proceeding, an interest that will ensure that the Trust effectively
assists in the development and review of all relevant legal and factual questions. Moreover, the
Trust has a long history of undertaking legal and policy advocacy to minimize the uranium
industry's negative effects on the Colorado Plateau.Tl Through this work, the Trust has
developed legal, policy, and technical expertise on the uranium industry that will contribute to a
thorough development of the questions raised in this proceeding." Other parties are unlikely to
raise the issues the Trust pursues in this proceeding because the Trust developed these
arguments in the public-comment period and other commenters raised them only by
incorporating them by reference.T3
37. The issues the Trust raises also have significant public importance. The White
Mesa mill is the last licensed and operating conventional uranium mill in the United States. Its
operation has been the subiect of a great deal of public rancor, including a long-running dispute in
which the State of Utah sought to better regulate the mill to reduce environmental risks.Ta
ue Id. Tinternal quotation marks omitted).
'0 Id. linternal quotation marks omitted).
7r SeeEx.A (Reimondo Decl.) a{lq 4-7.
" Id.
73 Seel)teMountainUteTribe, CommentsonRadioactiueMateialsLicenseRenensalrPartlrp.l
([uly 31, 2017) (incorporating the Trust's comments by reference).
'o See, e.g.rIn re Int'l [Jranium (USA) Corp. (Receipt of Materialftom Tonawanda, New York),48
N.R.C. t37 r745-47 (Sep. 1, 1998) (describing State of Utah's arguments that processing
alternate-feed material at the mill would threaten the environment); In re Int'l Uranium (USA)
T7
Hundreds of public comments were submitted on the proposed license renewal.Ts The
reclamation plan that is at issue in this proceeding will take many years to carry out and at great
cost, and the tailings cover and other design features are intended to last for 1,000 years with
minimal maintenance. Put simply, it is critical to get that plan right, for the public to be heard,
and for any legal deficiencies to be redressed in this proceeding, for a failure now will affect not
only the communities of White Mesa, Blanding, and Bluff, but will forever degrade the
environment of southeast Utah.
38. Because the Trust is an appropriate party and raises issues of public importance,
the alternative standing test is satisfied.
.-flv
Respectfully submitted this P day of March 2018.
Post Office Box 118
Salt Lake City, Utah 84110
807-532-2447
[e-mail]
Aaron M. Paul
4404 Alcott Street
Denver, CO 80211
303-477-7486
[e-mail]
Axorneyfor the Grand Caryton Trust
Corp. (source material license amendment, Ashland l material), NRC Docket No. 40-8681, 1998 WL
906787, *Z-8 (Dec. 217998) (describing State of Utah's environmental interests based on
Division hydrologist's affidavit that the mill's cells have the potential to discharge to
groundwater).
's 2078 Pub. Participation Summ. atlg-20.
18
CERTIFICATE OF SERVICE
I hereby certify that on March flrrrr,I filed this Petition to Intervene by hand
delivery and e-mail with the following:
Scott T. Anderson
Director, Division ofWaste Management and Radiation Control
195 North L950 West,2nd Floor
Salt Lake City, Utah 84776-3097
[e-mail]
Administrative Proceedings Records Officer
Environment Division, Utah Attorney General's Office
195 North 1950 West,2nd Floor
Salt Lake City Utah 84L16
[e-mail]
tglfr
I also certifr that on March '' ,2O78r I served this Petition to Intervene by hand
delivery and e-mail on the following:
Bret Randall
Assistant Attorney General
Office of the Attorney General, Environmental Division
195 North 1950 West
Salt Lake City, UT 84116
[e-mail]
Michael A.Zody
Parsons Behle & Latimer
201S. Main St., Ste. 1800
Salt Lake City, Utah 84111
MZo dy @ pars onsbehl e. com
Exhibit A
Exhibit B
EXHIBIT LIST
Declaration of Amber Reimondo in Support of the Grand Canyon Trust's Petition
to Intervene and Statement of Standing (Mar. 12r2078).
Declaration of William Crowder in Support of the Grand Canyon Trust's Petition
to Intervene and Statement of Standing (Mar. 12r2}l8).
Exhibit A
BEFONE THE SXECUTIVE DIRECTOR OT'THE
UTAH DEPARTMENT OT BNYIRT}NMENTAL QUALITY
ln re Renewal of Radioactive Materiah
License No. UT 1900479 (Am. 8) for the
White Mesa Uranium Mill $eb, 16, 3018)
File No.
DECLARATIOH OT AMBAB BEII}IO.NDO IN SUPTORT OS'
TIID GRAND CANYON TRUST'S PETITION TO INTERVENE ANDg?A?AMEXT OF STANDING
I, fuub€r L. Reimondo, declare as falluws:
l. I live in Flagstaff, fuizona. ['m thE Energl Progpnr Director for t]rs Oraud
Canyon Tnrst.
2. The Trust is a membershipbased, non-profit advocacy organization founded in
1985 that has over3,000 members. It's headquartered in Flagstaff, Arizono, and has offices in
Castle Valley and Salt Lako City, Utal& &nd Drxango and Denver, Colorado,
3" Tlre mission of thc Trust is tc pmteetandr€store the Colorado Plateau-its
epectaeular laltdseapes, flowing river$, clean air, diversity ofplants and asrimds, and qrc*s of
beauty and solitude. One of lhe Trust's goals is to cnsure that the Plateau is a region
charaeterized by vast opfn spflce$ wi& restored, heatthy ecosystem!, and hebitnt for nll native
fish, animals, and plants. The Plateau is a physiographic rcgion that stretcher south.Io-north from
roughly the Mogollon Rim in northern fuizona to thc Uinta Mountains in northern Utatr and
east-to-west from the Great Basin h Utah to the westsm side of the Rocky Mountains in
Colorado and northwestern New }dexico, The Yfhite Mesa Mill sis near the heart of the Plrteau.
4. Anrong many other puruuits, the Trus* has worked foryears to oppose
inesponsible uranium mining and milling on the Plateau, and to see that the contamination
around the Plateau fhatthe uraniurn industry has repeatedly left in its wake is cleaned up. In
1996, the Trust bcgan work to recure cleanup of radioactive uranirgn-rnill tailings on thc benks
of,the Cols$dr River, u*rich hd baen left behiud by the Atlas mill. The mill shut down in 1984
a:rd rvasn't pmperly cleaned up. Ttn ailings pile at the Atlas mill was leaching contaminants and
exposing &ose who llved or spent arry tiqe in :he arsa to health rislcs frqm breathing too much
radon. When thc owner of the Atlas mill was told to remediate grounduater contamination,at the
mill site, it filed for bankruptcy. With only about four qnd a quarter million dollars iu
reclamation bcnds tom the company, &m was nowlure near the amount needed to pay for
remediation of the site. The Trust worked for yeas to address this issue and was ultimately
successful at g€tting fedcrnl lcgislation passed to tansfer rcsponsibilrty sf the Atlas site to the
U.S. Depa*ment of&rergy re that it could be fully cleaned up. Today, the Deprtnent of Energy
Estirnates fin*l clqnn-upcosts will exceed a billion dollars. The point of the Trust's work with the
Atlas mill sile was to protect thc environment rnd the health of those who live near and use the
areas thst the Atlas mill had contaminated.
5. Similarly, tlre Truat has long becn ur advoaate for puaing an end to uranium
mining on the Plateau when it threatens the environment or public health. For instance, several
years ago, the Trust worked extensivcly to support remporarily banning new uranium mining
claims on public lands around *re Grand Canyon to give the federal govemment time to study
how mining in the region affects the surrounding environment and the people who use it. That
moratsrium 96s put in place by the U,S, Department of Interior in Jgnusry ?012. Ilre mining
indusry pm$:ptly f*ed a lawsuit challenging the mcratorium and S:e Trust intervened to defend
it. Last Secembsr, the Ninttr Circuit Court of Appeals upheld the rnoratorium across the board.
Today, the Trust continues to work with a broad coalition of stakeholders, including Nativc
Arncrican tribes, scientists,loeal elected offieials,local businesss, and sportsmen, who care
about pr.otecting the Grand Canyon, to kecplhe moratorium in placc.
6. Over the years, the Tnrst has undertaken many other cfforts to minimizc the
uranium indusry's negativc effects cn the Platesu. We developed a monitoriug program in *lc
carty 1990s to inventory threats to wat€r qual$y in the region, including thrcars of radioactive
contamination from abandoned uranium mines ncar the Orand Canyon and abandoned uranium
mills along tlte Colorado Riwr nnd its tributaries" Wenve submittcd somments on permittiog
decisions aff*cting ttre White Mesa Mill and other uranium-rnilling operations on the Platcau.
We've filed lawsuit$ to proloet areas threatened by pollution &om &* urarrium iaduetry. We've
pressed forchanges to federal regulations governiug uranium-mine rectamation and rdon
emissions frcm uranium mills.
7. Thrrough this work, the Trust has developed legsl, policn and tcclnical expertise
on the uranium mining and milling indusry. Ourpetitions for review and to intervene in this
proceeding seek to offer th* expertise to promote the same interests that underlie essentially all
the Trust's work, including its work involving the uranium industy: to protect the environmcnt
of the Colorado Plateau and tlre health of thosc who live on or visit it.
I declare under penalty of pcrjury that ths foregoing is ruE and comect. Executed on this
l2th day of Mareh,20l8.
Exhibit B
BEFORE THE EXECUTIVE DIRECTOR OF THE
UTAH DEPARTMENT OF ENVIRONMENTAL QUALITY
ln re Renewal of Radioactive Materials
License No. UT 1900479 (Am. 8) for the
White Mesa Uranium Mill (Feb. 16, 2018)
File No.
DECLARATION OF WILLIAM CROWDER IN SUPPORT OF
THE GRAND CANYON TRUST'S PETITION TO INTERVENE AND
STATEMENT OF STANDING
l, William H. Crowder, declare as follows:
1. I own a home and live about half the year in Bluff, Utah, with my wife, Ann
Leppanen. The rest of the time I live in St. Paul, Minnesota. l'm a member of the
Grand Canyon Trust and have been for several years.
2. Our house is a little less than 20 miles south of the White Mesa mill. My
wife and I bought land in Bluff in 1998, planning to build a home to retire in. We
started building our house in about 2003 and finished it around 2013. Since the
mid-2000s, we've generally spent more and more time each year in Bluff. Last
year, I spent about nine months of the year in Bluff and expect to spend at least
that much time in Bluff each year for the rest of my life. ln 2015,1 finally retired
fully from my practice as a consumer-protection lawyer, and l've been spending
more time in Bluff now that l'm retired.
3. I first visited the Four Corners area in the early 1970s. Around the mid-
1980s, Ann and I started routinely backpacking in southeastern Utah. We were
drawn to the area by its unique natural beauty and history-its red rock
landscapes, its archeological treasures, its remarkable cultural past, its wide-
open vistas and clean air, its wild and remote character. lt's a special place that
kept us coming back, and we ended up wanting it to be our home.
4. When l'm in Bluff, I spend a lot of time hiking and exploring. I like to hike
for the same reasons that we were drawn to southeast Utah in the first place.
Over the years, !'ve become very interested in rock art, and that interest has
added to my motivation to get outside. For years, l've probably gone out to hike
or camp four to five days a week on average when l'm in Bluff. ln that time, l've
explored the area surrounding my house and the mill fairly extensively. The list of
areas l've explored is too long to count, but some of those that are closest to the
mill include Recapture Canyon, Cottonwood Wash, and Westwater Canyon. l've
hiked up Recapture Canyon several times from the San Juan River east of Bluff
heading north toward the mill. Recapture Canyon runs north all the way to
Blanding, passing two or three miles from the mill's east side. lt's chock-full of
rock art and cultural artifacts.
5. l've also hiked and camped in Cottonwood Wash, which runs directly north
from Bluff and eventually passes about a mile or two from the west side of the
mill, and in Butler Wash, which is a couple miles west of Cottonwood Wash. And
l've hiked up Westwater Canyon to look at an archeologica! site. Westwater is
the canyon closest to the northwest side of the mill that runs northeast toward
Blanding. lt passes about a mile from the mill.
6. Over the years, l've also gone camping with Ann and friends throughout
the area surrounding our home and the mill. ln the fall of 2015, we went camping
with our dogs near Gold Mine, on the San Juan River. And l've camped in
Cottonwood Wash southeast of the mill, near Sacred Mesa where Recapture
Canyon meets the San Juan River, and up around Comb Ridge near the Long
Fingers and Crossovers, also southwest of the mill. The list goes on.
7. ! learned several years ago that radon emissions from the mill exceeded
federal legal limits and that the mill wasn't cleaning up its waste ponds as fast as
I understood federal law to require. As a result, I began to curtail how I use the
area surrounding the mill due to concerns about being exposed to radon, which
can cause lung cancer and other health problems. I began to avoid hiking in the
canyons immediately surrounding the mill and downwind of the mill.
8. ln the past few years, l've learned more about the mill's radon emissions
and other problems at the mill, like groundwater contamination. This pollution
diminishes how much I enjoy being at my house in Bluff and hiking around the
area. lt's less enjoyable to be outside looking for rock art or exploring the
canyons while questioning whether I might be exposed to too much radiation
from the mill or to water that's been contaminated by the mill. And I've continued
to avoid hiking near the mill, mostly because of its radon emissions, but also out
of concern for the other ways that it pollutes the environment. That generally
means, due to the prevailing wind direction, that l'll avoid going into areas to the
southeast and northeast of the mill. l'd go look for rock art in those areas, if it
weren't for my concerns about the mill.
9. A major factor in our decision to move to Bluff, as opposed to elsewhere in
southeastern Utah, was that Bluff doesn't have a legacy of uranium
contamination. We considered Hanksville, Blanding, and Monticello, but those
were all uranium towns, and we didn't want to be in a uranium town. We wanted
to live somewhere where we didn't have to worry about polluted water or air or
other environmental scars the uranium industry has left around southeast Utah.
Given that backdrop, it's frustrating to me that the mill's waste pits aren't being
quickly cleaned up, and in the safest way possible for those of us who live near
and use the area around the mill. We cherish the house we built, and the blight
that the mill causes the area has taken away some of the pleasure we get out of
our home, just like I felt when I learned of its excess radon emissions.
10. We didn't just build our home in Bluff for ourselves either. We carefully
designed it to be a place that our family could visit for generations. And some of
the value I get out of our home as a family legacy has been diminished by the
fact that the mill isn't being cleaned up quickly and that state regulators have
rejected possible improvements to the mill's cleanup plan. lworry not only about
the health effects that radon exposure from the mill might have on me and my
family today, but also about the longterm blight the old mill ponds pose for this
area. I'm very concerned about the ability of my kids, and grandkids, and great-
grandkids to use our home in Bluff and enjoy the wonderful area around it.
11. I know that some of the ways the mill pollutes the surrounding
environment is diminished by various measures, like covering millwastes to
reduce radon emissions and programs to cleanup groundwater contamination.
But that doesn't eliminate radon emissions or groundwater contamination and all
the ways those things degrade the area. Frankly, l'd like to see the mill closed
down and quickly cleaned up, with as many safeguards as are possible-and at
b1.lb2l21?7 83:55 4356722442 RECAPTURE LODGE PAGE 86/86
l:r,
t " *rv leest, wlth every safGguard the law reguires.-so fiat fie long-mrm bllght
that tha mil! po$es for tha ar6a I live in and like!p gryplore ie minimized. lt would, \:'#"
restore $ome of my enjoyment of my horne and exploring fie area around the
mlll if tfrcre were more prot66tions, when the mill wastes are deaned up, b avoid
delay, keep the public inforrned ahout radon gmi$sio11s at the mill, and to keep
the ponds from pollntirg groundwater or emitting more radon in the future. I'd
also get a bit more pleasure out of rfiy home and the area sround it by being
assured that the public end organizatlons llke the Grand Canyon Tru$t-who help
keop nre and othere informed about the mill-have more infermation about the
mill's reclamation and a realchanae to advocate for improvements in its cloanup.
I declare under penalty of pedury fist the forogoirlg is truo and oorrect Executed
on this Ed day oI March 2018.
William H. Crowder
5