DRC-2019-004203 - 0901a06880a3b8f1

DRC-2019-004203 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 Honorable Harold Cuthair, Chair Ute Mountain Ute Tribe
520 Sunset Blvd. P.O. Box 248 Towaoc, CO 81334-0248 RE: Radioactive Material License Number UT 1900479: License Condition 9.7
Dear Chairman Cuthair: 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 you as the Tribe’s Chairman. 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, SHPO and the Utah 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 researched these legal issues and SHPO discussed the MOU with the United States Advisory Council on Historic
(Over)
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 an MOU 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.
All of that said, it appears that state law governing cultural resources is substantially the same as federal law. For example, the State of Utah has adopted the federal law on the repatriation of remains, the Native American Graves Protection and Repatriation Act (NAGPRA), in Utah Code Section 9-9-4. Both the federal and state version of NAGPRA require that lineal descendants of Native American remains determine ownership and control of human remains. The SHPO also has a process substantially similar to the federal
process that must be followed when human remains are discovered on nonfederal lands, which includes private lands. This process, outlined in Utah Code Section 9-8-309 requires that any person who knows or has reason to know that the person has discovered ancient human remains on nonfederal land must cease activity and notify the appropriate authorities.
Based on the foregoing, the Division is requesting preliminary comments from the Tribe regarding License Condition 9.7. The Division will also solicit preliminary comments from SHPO 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 Tribe 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: Dr. Christopher Merritt, Utah State Historic Preservation Office
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