DRC-2019-004202 - 0901a06880a3b8f0

DRC-2019-004202 195 North 1950 West • Salt Lake City, UT Mailing Address: P.O. Box 144880 • Salt Lake City, UT 84114-4880 Telephone [phone] • Fax [phone] • T.D.D. [phone] www.deq.utah.gov Printed on 100% recycled paper
State of Utah
GARY R. HERBERT Governor SPENCER J. COX
Lieutenant Governor
Department of
Environmental Quality
Alan Matheson Executive Director DIVISION OF WASTE MANAGEMENT AND RADIATION CONTROL Ty L. Howard Director
May 17, 2019 Dr. Chris Merritt
Deputy SHPO - Archaeology
Division of State History 300 Rio Grande Salt Lake City, UT 84101
RE: Radioactive Material License Number UT 1900479: License Condition 9.7
Dear Dr. Merritt: On July 31, 2017, the Ute Mountain Ute Tribe (Tribe) provided comments during the public comment
period of the White Mesa Uranium Mill’s (Mill) Radioactive Material License (RML) Renewal.
Included as part of the Tribe’s comments were two comments (comments I-III-D and I-III-E) that related to cultural resources on the Mill’s property and License Condition 9.7. License Condition 9.7 of the Mill’s RML references a Memorandum of Understanding (MOU) between the Nuclear Regulatory Commission (NRC), the State of Utah’s State Historic Preservation Office (SHPO), and the former
owner of the Mill, Energy Fuel Nuclear. The MOU outlined how the owner of the Mill would comply
with cultural resource regulations on the Mill property. On November 15, 2017, the Utah Division of Waste Management and Radiation Control (Division) sent the Tribe a letter (DRC-2017-008785) indicating the Division’s willingness to work with the Tribe,
SHPO, and the current owner of the Mill (Energy Fuels Resources Inc. [EFRI]) to review the MOU
referenced in License Condition 9.7 and determine if changes needed to be made. This letter was mailed to the Tribe’s Chairman Harold Cuthair. The letter was also hand delivered to representatives of the Tribe during a meeting with the Tribe, the Division, and the Governor’s office on December 15, 2017. In an email dated January 24, 2019, Nichol Shurack of the Tribe’s Tribal Historic Preservation Office
contacted the Division to “engage” the Division, SHPO, and EFRI to “review and reevaluate” the MOU in License Condition 9.7 of the Mill’s RML. On March 7, 2019, the Division, your office, and the Utah’s Attorney General’s office had a meeting to discuss the legal issues with the MOU and License Condition 9.7. After the Attorney General’s office
(Over)

researched these legal issues and SHPO discussed the MOU with the United States Advisory Council on
Historic Preservation (ACHP), it appears that the MOU was rendered moot as of the date that the NRC
withdrew its regulatory authority for byproduct material. This is so because as of that date, there was no longer a federal “undertaking” that triggers federal laws governing cultural resources. Rather, the previous federal “undertaking” has been replaced by state action (licensing and regulation), meaning that cultural resource matters are governed exclusively by state law.

These conclusions are preliminary. They are based, in part, on the fact that the ACHP has indicated that in a recent matter involving Wyoming becoming a NRC Agreement State as to byproduct material, the ACHP and the NRC concluded that state law would govern cultural resource issues prospectively. Wyoming had a Memorandum of Understanding similar to the Utah MOU referenced above. In
Wyoming, the MOU was withdrawn as part of the agreement state process. When the present situation
was brought to the attention of the ACHP, however, the representative for the ACHP indicated a desire to formally terminate the MOU. Because the Division is not a party to the MOU, this action is outside of the Division’s control. Because the potential for termination of the MOU has been brought to the Division’s attention, however, it has become important to initiate a process to re-evaluate the basis for
License Condition 9.7.
Based on the foregoing, the Division is requesting preliminary comments from SHPO regarding License Condition 9.7. The Division will also solicit preliminary comments from the Tribe and EFRI regarding these issues. After the Division has had an opportunity to evaluate any preliminary comments, we
would like to arrange a time for a meeting with the Tribe, SHPO, and EFRI, as suggested in the
November 15, 2017 letter. If possible, staff would like to see preliminary comments from the SHPO within 30 days so we can move this process forward. Preliminary comments are optional. The Division does not anticipate initiating a formal process to amend License Condition 9.7 until after we have had a chance to consider preliminary input from the Tribe, SHPO and EFRI.

If you have any questions, please call Ryan Johnson at [phone] or [e-mail] or Phil Goble at [phone] or [e-mail]. Sincerely,

Ty L. Howard, Director Division of Waste Management and Radiation Control

TLH/RMJ/kb c: Kirk Benge, Health Officer, San Juan Public Health Department Rick Meyer, Environmental Health Director, San Juan Public Health Department
Scott Hacking, P.E., DEQ District Engineer