DRC-2019-016953 - 0901a06880b9eb68

ENERGY FUELS
December 18, 2019
Mr. Phillip Goble
Uranium Mills and Radioactive Materials Manager
Utah Department of Environmental Quality, DWMRC
195 North 1950 West
Salt Lake City, Utah 84116
Energy Fuels Resources (USA) Inc.
226 Union Blvd. Suite 600
Lakewood, CO, US, 80228 303-974-2140 www. energyfuels . com
Div of Waste Management
and Radiation Control
DEC 1 8 2019
Ty_C-20I9-016.53
Re: Analysis of Proposed Changes to Condition 9.7 of Energy Fuels Resources (U6A) Inc.'s
Radioactive Materials License No. UT1900479, Amendment #8
Dear Mr. Goble,
Further to our discussions, this letter sets out Energy Fuels Resources (USA) Inc.'s (the "Company's")
analysis of the proposed changes to Condition 9.7 of the Company's Radioactive Materials License No.
UT1900479, Amendment #8 (the "License"). For ease of reference, a copy of the existing License condition
9.7 ("Existing License Condition 9.7") is attached hereto as Exhibit A, and a copy of the proposed
amended License condition 9.7 ("Proposed Amended License Condition 9.7") is attached hereto as
Exhibit B.
1. Background
Memorandum of Agreement the Basis of Existing License Condition 9.7
The Company's White Mesa Mill, located in Blanding, Utah (the "Mill"), was originally constructed in
1979 and licensed by the U.S. Nuclear Regulatory Commission ("NRC") in June 1980, at which time it
commenced operations under federal source material license SUA-1358 (the "NRC Source Material
License"). Under the NRC Source Material License, the NRC served as the Mill's primary regulator, its
authority having been granted through the Atomic Energy Act of 1954 (the "AEA"), as amended by the
Uranium Mill Tailings Radiation Control Act of 1978 ("UMTRCA").
As a part of NRC's licensing effort, a Memorandum of Agreement (the "MOA") was signed on August 20,
1979, by the federal Advisory Council on Historic Preservation (the "Council"), which was amended on
April 5, 1982 by an Amendment (the "Amendment") signed by the Council, the NRC, and the Utah State
Historic Preservation Officer (the "SHPO"), a copy of which MOA and Amendment are attached hereto as
Exhibit C.
In the MOA, the Council noted that:
• the NRC, in consultation with the SHPO, had determined that the licensing of the Mill (which was
considered a federal "undertaking") would have an adverse effect upon the White Mesa
Archeological District and other properties in the area of Blanding, Utah, included in or eligible for
the National Register of Historic Places; and
• in accordance with applicable Council regulations, the Council, NRC and SHPO had consulted and
reviewed the undertaking to consider feasible and prudent alternatives to avoid or satisfactorily
mitigate the adverse effect.
Both 36 CFR 800.5 and 800.6 require that, if a federal undertaking would have an adverse effect upon any
property included in or eligible for the National Register of Historic Places, the agency (i.e., the NRC)
would consult with the state SHPO (and invite the Council to participate in certain circumstances) to
"develop and evaluate alternatives or modifications to the undertaking that could avoid, minimize or
mitigate adverse effects on historic properties." 36 CFR 800.6 further provides that if the agency and the
SHPO agree on how the adverse effects will be resolved, they shall execute a memorandum of agreement,
which shall govern the undertaking and all of its parts, and the agency shall ensure that the undertaking is
carried out in accordance with the memorandum of agreement.
In accordance with 36 CFR 800.6, the MOA recorded the mutual agreement of the Council, NRC and SHPO
that the undertaking would be implemented in accordance with a proposal from the NRC (the "NRC
Proposal"), attached thereto, to "avoid, satisfactorily mitigate, and minimize adverse effects on the above-
mentioned properties." Under the NRC Proposal, NRC set out the actions it would take in issuing a source
material license for the Mill, including a commitment that if the NRC issues a source material license for
the Mill, the source material license would contain a number of conditions similar to those specified in the
NRC Proposal, which were considered "feasible and prudent alternatives to avoid, satisfactorily mitigate,
or minimize the adverse effect."
The MOA was amended on April 5, 1982, most notably clarifying that, "when it is not feasible to avoid a
site designated "Eligible" in Table A,' the license shall institute a data recovery program for the site based
on a research design that takes into account the Council's Handbook, 'Treatment of Archaeological
Properties.'
As committed to by NRC in the NRC Proposal, License Condition 9.7 in the NRC Source Material License
contained conditions similar to those specified in the NRC Proposal, as amended by the Amendment, which
were considered "feasible and prudent alternatives to avoid, satisfactorily mitigate, or minimize the adverse
effect." Included in License Condition 9.7 of the NRC Source Material License were conditions to the
following effect:
(a) before engaging in any activity not previously assessed, the licensee will administer a cultural
resource inventory in accordance with applicable federal laws and regulations;
(b) any work resulting in the discovery of previously unknown cultural artifacts shall cease until the
artifacts are inventoried and evaluated in accordance with applicable federal laws, and authorization
from NRC is granted to proceed;
(c) the licensee shall avoid by project design, where feasible, certain archaeological sites designated
"contributing" and, when it is not feasible to avoid such sites, the licensee shall institute a data
recovery program for the sites based on applicable guidance;
(d) the licensee shall recover though archaeological excavation all "contributing" sites which are
located in or within 100 feet of borrow areas, stockpile areas, construction areas, or the perimeter
of the reclaimed tailings impoundment
(e) the licensee shall conduct such testing as is required to enable the NRC to determine if those sites
designated as "undetermined" and located within 100 feet of present or known future construction
areas are of such significance to warrant re-designation as "contributing" prior to the applicable
site being impacted; and
The MOA included a Table A, which includes lists of all then-known "Archaeological Sites Related to the White Mesa Project" divided according to "Eligible," "Undetermined" and "Non-Eligible" sites.
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(f) archaeological contractors shall be approved by the SHPO.
While the Company is not a party to the MOA or Amendment, it is bound to the key terms of the MOA and
Amendment under Existing License Condition 9.7.
Transition from Federal to State Regulation
Utah became an Agreement State in 2004, at which time the Utah Department of Environmental Quality,
Division of Radiation Control (now the Utah Department of Environmental Quality Division of Waste
Management and Radiation Control ("DWMRC")) became the primary regulator of the Mill. At that time,
the State of Utah converted the previous NRC Source Material License into a State of Utah Radioactive
Materials License (the "License"), with the groundwater protection elements of the NRC Source Material
License placed into a separate State of Utah Groundwater Discharge Permit. License Condition 9.7
remained virtually unchanged when transferred from the NRC Source Material License to become Existing
License Condition 9.7 under the License, except that references to the NRC were changed to be references
to the State of Utah and to the Executive Secretary of the State of Utah Radiation Control Board (now the
Director of DWMRC). Thus, the protections to archaeological resources incorporated into the NRC Source
Material License from the MOA were retained under the State regulatory scheme, and it was not necessary
to rework the language of Condition 9.7 for the License prior to its approval and adoption by the DWMRC.
The State of Utah laws, rules and regulations that now apply to License Condition 9.7 are substantively the
same as the federal laws, rules and regulations that previously applied. After fifteen years of regulating the
Mill, however, DWMRC has determined, together with the SHPO, that all parties would benefit from an
amended License Condition 9.7 framed in terms of Utah law for ease of reference and application. The
Proposed Amended License Condition 9.7 constitutes the result of these efforts, which can be summarized
as follows.
Adjustments in Applicabk Terminology
Under federal law, "historic properties" are protected under the National Historic Preservation Act and are
defined as "any prehistoric or historic district site, building, structure, or object included on, or eligible for
inclusion on, the National Register, including artifacts, records, and material remains relating to the district,
site, building, structure, or object." Further, the regulations under the National Historic Preservation Act
ensure that significant prehistoric and historic artifacts, and associated records, subject to the
Archaeological Resources Protection Act of 1979 are dealt with appropriately. The purpose of the
Archaeological Resources Protection Act is to secure the protection of archaeological resources and sites,
where "archaeological resource" is defined to mean any material remains of past human life or activities
which are of archaeological interest, including without limitation various artifacts. Further, as stated above,
36 CFR 800.5 and 800.6 stipulate that, if a federal undertaking would have an adverse effect upon any
property included in or eligible for the National Register of Historic Places, the agency (i.e., the NRC)
would consult with the state SHPO (and invite the Council to participate in certain circumstances) to
"develop and evaluate alternatives or modifications to the undertaking that could avoid, minimize or
mitigate adverse effects on historic properties" and, pursuant to 36 CFR 800.6, enter into a memorandum
of agreement to effect such alternatives.
Under State Law, Utah Code Section 9-8-401 et seq. covers "historic properties," which are defined as "any
historic or prehistoric district, site, building, structure, or object that is at least 50 years old and that is
included in, or that is eligible for inclusion in, the National Register of Historic Places" — a definition which
is very similar to the comparable definition in the National Historic Preservation Act, and which is
consistent with the MOA and Existing License Condition 9.7. In addition, Section 9-8-301 et seq.,
"Antiquities" broadly protects "archaeological resources," defmed as "all material remains and their
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associations, recoverable or discoverable through excavation or survey, that provide information pertaining
to the historic or prehistoric peoples of the state," and which is very similar to the definition of
"archaeological resources" as defined in the Archaeological Resources Protection Act. Further, similar to
36 CFR 800.5 and 800.6, Utah Code Section 9-8-404(c) provides that if there is an adverse effect to a
historic property the agency shall enter into a formal written agreement with the SHPO describing how each
adverse effect will be mitigated.
While Existing License Condition 9.7 does not address ancient human remains, the Mill is situated on
nonfederal lands and hence the provisions of Utah Code 9-9-403, "Ownership and disposition of Native
American remains," applies to the discovery of ancient human remains as a result of Mill activities
independently of the provisions of Existing License Condition 9.7.
The Proposed Amended License Condition 9.7 modifies the Existing License Condition 9.7 to expressly
incorporate the applicable Utah laws, while at the same time maintaining the existing agreements between
NRC, the Council and SHPO, set out in the MOA as amended and codified in Existing License Condition
9.7. Those agreements stipulate how the adverse effects on the White Mesa Archeological District and other
properties in the area of Blanding, Utah, which are included in or eligible for the National Register of
Historic Places, will be mitigated.
Status of MOA with Proposed Amended License Condition 9.7
The MOA, which sets out the formal agreement among the NRC, Council and SHPO (adopted by the State
of Utah when it became an Agreement State in 2004) as to how each adverse effect on a historic property
will be mitigated,' is no longer required, as the concept of a "federal undertaking" has no legal application
to NRC Agreement States. While the National Historic Preservation Act ("NHPA"), Section 137.289 (42
CFR §137.289) defines "Federal undertaking" as:
a project, activity, or program funded in whole or in part under the direct or indirect
jurisdiction of a Federal agency, including those carried out by or on behalf of a Federal
agency; those carried out with Federal financial assistance; those requiring a Federal
permit, license or approval; and those subject to State or local regulation administered
pursuant to a delegation or approval by a Federal agency[d
the AEA allows the NRC to discontinue its regulatory authority rather than merely delegate it — except to
the extent specifically retained in Section 274(c) — in Section 274(b), which stipulates the following:
b. Except as provided in subsection c., the Commission is authorized to enter into
agreements with the Governor of any State providing for discontinuance of the regulatory
authority of the Commission under Chapters 6, 7, and 8, and section 161 of this Act, with
respect to any one or more of the following materials within the State;
(1) Byproduct materials (as defmed in section 11e.).
(2) Source materials;
2 The MOA, as amended, also contains some provisions about activities to be performed by set dates, which we
understand have long been performed (see paragraphs 1.(b), (c), (i), (j), and (k) of the NRC Proposal); activities to be performed prior to future disturbances (see paragraphs 1.(d), (e), (g), and (h)) of the NRC Proposal, which are covered by materially equivalent requirements of Utah Code Sections 9-8-301, 9-8-401 and 9-9-401; and other rights and responsibilities of the NRC (see paragraphs 2, 3, 4, 5 and 6), which are also covered by materially equivalent
requirements of Utah Code Sections 9-8-301, 9-8-401 and 9-9-401. As all of these matters have been completed or are otherwise dealt with under existing Utah law, the MOA is no longer required.
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(3) Special nuclear materials in quantities not sufficient to form a critical mass.
During the duration of such an agreement it is recognized that the State shall have authority
to regulate the materials covered by the agreement for the protection of the public health
and safety from radiation ha7ards.
The regulatory powers explicitly retained by the NRC in subsection (c) do not address archaeological
resources, which are the subject matter of the MOA. The only instances in which the Commission may
terminate an agreement that vests an Agreement State with regulatory power over the above materials are
those where "(1) such termination or suspension is required to protect the public health and safety, or (2)
the State has not complied with one or more of the requirements of this section" (see Section 274(j)(1)).
Without such a finding, which is factual in nature and requires "reasonable notice and opportunity for
hearing to the State," the NRC does not have the ability to preempt or devest an Agreement State of its
regulatory authority or supplement that authority with its own approvals. Thus, the above-referenced NHPA
provision does not apply to the State of Utah as an NRC Agreement State, and the concept of a "federal
undertaking" is inapplicable.
Furthermore, discontinuance of the MOA does not result in fewer archaeological protections at the Mill
site. Rather, the agreements secured through the MOA were incorporated into the specific provisions of
Existing License Condition 9.7 and are now mimtained in Proposed Amended License Condition 9.7,
negating any need for the State to enter into an equivalent agreement with the SHPO.
2. Proposed Amended License Condition 9.7
The following paragraphs summarize the changes contained in the Proposed Amended License Condition
9.7, compared to Existing License Condition 9.7.
(a) First (Lead-in) Paragraph
In the first (lead-in) paragraph, references to the federal laws are replaced with references to the
applicable provisions of the Utah Code.
(b) Second Paragraph
In the second paragraph of License Condition 9.7, the relevant provisions of State laws are repeated
in the first to fourth bulleted points. Although those laws apply regardless of the License condition,
they are included in the Proposed Amended License Condition 9.7 to make clear the specific
provisions of Utah law that are applicable. In the fifth bulleted point, the agreements between the
State, SHPO and Council in the MOA that are reflected in Existing License Condition 9.7 are
maintained, with some wording changes to reflect the wording of applicable State laws.
More specifically:
1) First Bulleted Point
The first bulleted point is similar to the second paragraph of Existing License Condition 9.7
but reflects the wording of applicable State laws. Specifically, the term "survey," as defined in
UCA Section 9-8-302(21), is used in place of the federal equivalent "cultural resource
inventory," thus making an "acceptable survey" the standard by which the Licensee can avoid
triggering an obligation ("... if an acceptable survey does not already exist for the given area.");
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ii) Second Bulleted Point
The second bulleted point uses the UCA Section 9-8-302(4)'s definition of "Archaeologic
Resources" in lieu of the federal equivalent "Cultural Resources."
In addition, it is made clear that the agency referred to in UCA Section 9-8-404(1)(a) is, for
purposes of License Condition 9.7, the Utah Division of State History, and that submittal for
review to the SHPO is mandated by UCA Section 9-8-404(1)(a)(ii);
iii) Third Bulleted Point
In the third bulleted point, UCA Section 9-8-102(5)'s term "historical artifacts," is used, instead
of its federal equivalent, "cultural artifacts."
iv) Fourth Bulleted Point
The fourth bulleted point now incorporates language from UCA Section 9-9-403(4) and
supplements it with additional rights as provided for in UCA Sections 76-9-704 and 9-8-309.
The protection of ancient human remains is not included in Existing License Condition 9.7, as
it is required under Utah Law in any event. It has been added to the Proposed Amended License
Condition 9.7 for completeness and to make clear the applicable provisions of Utah law.
v) Fifth Bulleted Point
In the fifth bulleted point, paragraphs four and five of Existing License Condition 9.7 are
essentially repeated, except the condition now stipulates that any required research design must
/Ake into account current Archaeology Guidance by the U.S. Advisory Council on Historic
Preservation rather than, as stated in the Amendment to MOA, the Advisory Council on
Historic Preservation's Handbook, "Treatment of Archaeological Properties." This is because
modern guidance provides that the Handbook is now outdated.
The State definition of "Historic Property" can be substituted for federally designated "eligible"
or "contributing" sites. This substitution was made in the fifth bulleted point, which also
provides that Historic Property is deemed to include all archaeological sites previously
designated as "contributing" (such as when used in the report submitted by letter to the NRC
dated July 28, 1988 and attached hereto as Exhibit D) and other historic properties identified
through subsequent surveys.
With the incorporation of the foregoing changes, the Proposed Amended License Condition 9.7
appropriately ties to comparable Utah Code regulations, retains clarity for purposes of both compliance and
enforcement, and preserves the existing agreement between the State, SHPO and Council regarding the
mitigation of adverse effects on historic properties as reflected in Existing License Condition 9.7. This
updates the condition to reflect Utah law, whik maintaining the substantive provisions of Existing License
Condition 9.7.
If you have any questions or require any additional information, please do not hesitate to contact me.
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"
r
eZ
Julia C. Ho
Staff Attorney
e er
Yours sincerely,
ENERGY FUELS RESOURCES (USA) INC.
cc: Bret Randall, Assistant Utah Attorney General
David C. Frydenlund, Energy Fuels Resources (USA) Inc.
Michael Zody, Parsons Behle & Latimer
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EXHIBIT A
Existing License Condition 9.7
9.1 As per the Memorandum of Agreement (MOA) negotiated by the Utah State Historic Preservation
Officer (SHPO), the Advisory Council on Historic Preservation (ACHP), the NRC and Energy
Fuels Nuclear Inc. (EFN) and ratified on August 20, 1979 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 its implementing regulations, and the Archaeological Resources Protection Act (as
amended) and its implementing regulations.
In order to ensure that no unapproved disturbance of cultural resources occurs, any work resulting
in the discovery of previously unknown cultural artifacts shall cease. The artifacts shall be
inventoried and evaluated in accordance 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 a data
recovery 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.
The licensee shall recover through archaeological excavation all "contributing" sites listed in the
report which are located in or within 100 feet of borrow areas, stockpile areas, construction areas,
or the perimeter of the reclaimed tailings impoundment. Data recovery fieldwork at each site
meeting these criteria shall be completed prior to the start of any project related disturbance within
100 feet of the site, but analysis and report preparation need not be complete.
Additionally, the licensee shall conduct such testing as is requited to enable the Director to
determine if those sites designated as "Undetermined" in the report and located within 100 feet of
present or known future construction areas are of such significance to warrant their re-designation
as "contributing." In all cases, such testing shall be completed before any aspect of the undertaking
affects a site.
Archaeological contractors shall be approved in writing by the Utah SHPO. The Utah SHPO will
approve an archaeological contractor who meets the minimum standards of the State of Utah as the
principal investigator.
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EXHIBIT B
Proposed Amended License Condition 9.7
9.7. Before engaging in any activity not previously assessed, the licensee shall ensure that all
disturbances associated with the proposed development undertaken by the licensee, are completed
in compliance with the following: (a) Utah's antiquities law in Utah Code Section 9-8-301 et seq.
and its implementing regulations; (b) Utah's historic sites law in Utah Code Section 9-8-401 et
seq. and its implementing regulations; and (c) the Utah Native American Grave Protection and
Repatriation Act in Utah Code Section 9-9-401 et seq. and its implementing regulations, in
accordance with the following specific conditions.
Before engaging in any activity not previously assessed, the licensee shall comply with the
following specific requirements relating to operations and activities within the boundaries of the
Mill facility defined in License Condition 9.1 that will result in a surface disturbance:
• Contract to complete a survey, as defmed in Utah Code Section 9-8-302(21), if an
acceptable survey does not already exist for the given area. This work shall be carried out
by a person holding a principal investigator survey or excavation permit from the State of
Utah's Public Lands Policy Coordinating Office.
• Report in writing the discovery of any archaeological resources as defined in Utah Code
Section 9-8-302(4), which shall be deemed to include historical artifacts, ancient human
remains and historic properties, to the Director ("Director") of the Utah Division of State
History ("Division") within 30 days of completion of the survey for review and submittal
to the Utah State Historic Preservation Office ("SHPO") in accordance with Utah Code
Section 9-8-404(1)(a)(ii).
• In the event of the discovery of possible, previously unknown or unidentified historical
artifacts as defined in Utah Code Section 9-8-102(5), immediately cease any activity in the
area of the discovery, at which point the newly discovered historical artifacts shall be
collected, preserved and inventoried in a repository or curation facility with assistance from
the SHPO in accordance with Utah Code Section 9-8-304(2)(c). No further disturbance
shall occur until the licensee has received authorization from the Director to proceed.
• In the event the licensee knows or has reason to know that it has discovered ancient human
remains, immediately cease any activity in the area of the discovery, make a reasonable
effort to protect the remains discovered, and notify the Director and SHPO in accordance
with Utah Code Section 9-9-403(4). Activity in the area may not resume until the licensee
has fulfilled the requirements of Utah Code Sections 76-9-704 and 9-8-309 or has
otherwise received authorization from the Director to proceed.
• If historic properties, as defined by Utah Code Section 9-8-402(1)(b) and as further defined
below, will be adversely affected by any proposed activity not previously assessed, the
licensee shall avoid by project design, where reasonably feasible, any historic properties.
For purposes of the License, "historic properties" shall include all archaeological sites
designated as "contributing" in any previous archeological survey conducted and
documented at the Mill site starting from the 1978 Environmental Report for the White
Mesa Uranium Project to the present time. Where it is not reasonably feasible to avoid an
historic property, the licensee shall institute a data recovery program for it that is based on
a research design that takes into account current U.S. Advisory Council on Historic
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Preservation's Archaeology Guidance. It is understood and agreed that it is not feasible to
avoid any historic properties located in or within 100 feet of borrow areas, stockpile areas,
construction areas, or the perimeter of the reclaimed tailings impoundments. Therefore,
disturbance of such historic properties is deemed unavoidable. Where disturbance of
historic properties is unavoidable, such historic properties shall be recovered through
archaeological excavation. Data recovery fieldwork shall be completed prior to the start
of any project-related disturbance, but analysis and report preparation need not be
completed prior to the time of disturbance.
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EXHIBIT C
Memorandum of Agreement
and
Amendment
11
Historic
PreservatitdA
1522 it Street NW. Washington D.C. 20005
MEHORANDUM OF AGREEMENT
WHEREAS, the Nuclear Regulatory Commission (NRC) proposes to
issue a Source Material License to Energy Fuels Nuclear, Inc.,
for a Uranium Hill on White Mesa in rtah; and,
WHEREAS, the NRC, in consultation with the Utah State Historic
Preservation Officer (SHP0), has determined that this undertaking
as proposed would have an adverse effect upon the White *Mesa
Archeological District and other properties in the area of
Blanding, Utah, properties included in or eligible for the
National Register of Historic Planes; and,
WHEREAS, pursuant to Section 106 of the National Historic
Preservatbn Act of 1966 (16 U.S.C. Sec. 470f, as amended, 90
Stat. 1320) and Section 600.4(d) of the regulations of the
Advisory Council on Historic Preservation (Council), "Protection
of Historic and Cultural Properties" (36 CFR Part 800), NRC
has requested the comments of the Council; and,
WHEREAS, pursuant to Section 800.6 of the Council's regulations,
representatives of the Council, the NRC, and the Utah SHP0 have
consulted and reviewed the underta;ting to consider feasible and
prudent alternatives to avoid or satisfactorily mitigate the
adverse effect;
NOW, THEREFORE, it is mutuallv a reed that the undertaking
will be implemented tn accordance with t e attached proposal
frograirrr."--SHrranot Section Leader, Uranium Recovery Licensing
firanen„ =Vision of Oaste Management, Nuclear Regulatory .
Commission, to avoid, satisfactorily mitigate, and minimize adverse effects on the above-mentioned properties.
Robert M. Utley
XL, '
Deputy.Executive Dir tor
Advisory Council on Historic Preservation
(date)
1 • tha 4 r--,an
•
• • r (dats)
Advisory Council:on Historic Preservation
::r 41:•• —.•st **
05/01/79
PROPOSAL FOR THE CONTENTS OF A
MEMORANDUM OF AGREEMENT
Concerning the Mitigation of Adverse Effect at the
White Mesa Project Milisite
The U.S. Nuclear Regulatory Commission proposes to issue a Source Material
License, pursuant to the Atomic Energy Act of*1954, (42 U.S.C. 2011ff., as
=ended, 68 Stat. 919), to Energy Fuels Nuclear Inc. in connection with
its °,:hite Mesa Uranium Mill (hereinafter referred to as the "project")
1ocated approximately five (5) miles south of Blanding, Utah.
Energy Fuels Nuclear, Inc. has requested technical assistance from the Division of State History, State of Utah, in the identification, protec-
tion and management of cultural resources. This assistance has been
provided in the form of cultural surveys and excavations on the lands
involved in the project (project site). :Mose activities revealed
numerous sites of cultural significance. (See Exhibits B. C and D.)
Accordingly, the Secretary of the Interior'was requested to make a
determination of eligibility. The resulting determination, as set forth in
. Exhibit E, is that the.area delineated in Exhibit A constitutes a district
which is part of some as yet undefined larger Archeological District
eligible for inclusion:in the National Register of Historic Places.
The U.S. Nuclear Regulatory Commission in consultation with tSe Utah State Historic Preservation Officer, has determined that the land-
modifying operations associated with the licensed activities (hereinafter
referred to as "undertaking") could have an adverse effect upon the
property and pursuant to Section 106 of the National Historic Preserva-
tion Act cf 1956 (16 U.S.C. 470F, as amended, 90 Stat. 1320), the
U.S. Nuclear Regulatory Commission has requested the comments of the
Advisory Council on Historic Preservation (hereinafter referred to as_the
"Council").
zurs.Jant to the regulations for the"Protection of Historic and Cultural
Properties" (36 CFR Part SOO), the Utah State Historic Preservation
Officer and representatives of the Advisory Council on Historic Pre-
servation, and the U.S. Nuclear Regulatory Commission have consu)ted and
reviewed the undertaking to consider feasible and prudent alternatives to
avoid, satisfactorily mitigate, or minimize the adverse effect. Ener9Y
Fuels Nuclear, Inc. was invited to participate in the consultation.
In the light of such consultation, the Commission agrees that it will
take the following actions:
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1. If the Commission issues a license for the undertekino, it will
include conditions similar to the fo11o4ing therein:
a. The licensee shall avoid by project design where feasible
the sites designated "Eligible" in the attached Table A.
Sites that will ultimately be located within 100 feet of
the perimeter of the reclaimed tailings impoundment area are
considered unavoidable and shall be recovered through
archeological excavation,
b. The licensee shall conduct testing as required to enable the
Commission to determine if those sites designated "Undetermined"
in Table A are of significance warranting their redesignation as
"Eligible." This action by the licensee will be completed by
January 1, 1981. In all cases such testing will be completed before
any aspect of the undertaking affects a site.
c. The licensee shall conduct archeo1o'pica1 and historic
surveys and testing on the NE1/4 of Section 33, T375, R22E to
identify such additional sites as may be located there and to
enable the Commission to evaluate their significance. The
results of surveys and testing shall be reported to the Commission no later than December 31, 1979. The licensee
shall avoid any site within this area until the Commission
has reviewed the licensee's report and has advised the
licensee of its determinations. If the Commission, upon review, amends Table A to include additional sites, the
licensee shall take such action with respect to such additional
sites as may be required for the sites that have initially
been designated.
• d. Condition c, above, will apply to lands associated with the .
undertaking, but which have not currently been identified, e.g.,
to borrow areas outside the current project boundaries, with
the exception that the results of surveys and testing may be reported to the Commission after December 31, 1979.
e. The licensee shall avoid any site designated "Undetermined" in Table A.
f. When it is not feasible to avoid a site designated "Eligible"
in Table A, the licensee shall institute a data recovery
program with respect to the site which the Commission determines
will satisfactorily mitigate any adverse effect.
I •Or
3
g. The Commission may amend Table A, with the consent of the
licensee, without amendment to this license. The licensee's
failure to object within 10 days after the Commission amends
Table A in writing shall be deemed to constitute its
consent.
h. The licensee shall cooperate with the Commission in the develop-
ment and implementation of a monitoring program with respect to
the preservation of cultural resources. The licensee shall have
obttined the approval of the Commission with respect to this program
before initiation of ground-disturbing activities. The plan.
shall, among other things, include provision for (1) the presence
during specified operations of an archeological contractor satis-
factory to the Commission and (2) appropriate action, including notice
to the Commission and the SHPO and suspension of ground disturbing
activities, upon discovery of previously unidentified cultural-resources
An archeological contractor acceptable to the 51-70 and meeting the
minimum standards for a principal investigator as specified by the
Secretary of the Interior will be considered satisfactory to the
Commiision.
Thelicensee shall recover through archeological excavation all
"Eligible" sites listed-in Table A which are located in borrow
areas, stockpile storage areas and construction areas. Recovery
of all sites will be completed no later than December 31, 1982,
with sites in the area of the first three tailings impoundment
cells (the two evaporation cel)s and the first tailinos cell)
being recovered first.
j. The licensee shall have the archeological contractor specify
the layout of.haul 410s, i.e., to test avoid sites, and
shall obtain the approval of the Conmission for this 'layout
prior to earth moving activities.
k. The licensee shall provide the additional documentation required to obtain a determination of eligibility for the "Earth DEM",
"Range War Site", "Kunen Jones Home", "Posey War Sites", and
"White Mesa Community" cultural sites prior to October 1, 1979.
If the Earthen Dam is determined to be "Eligible", the licensee
shall ensure that the Earthen Dam is recorded prior to its
demolition or alternation so that there will be a permanent
record of its existence. Energy Fuels Nuclear, Inc., for
the HRC, will first contact the Historic American Engineering
Record (HAER), Heritage Conservation and Recreation Service
(Department of theinterior, Washington, D.C. 20243; telephone
[phone]) to determine the level of documentation required. All documentation must te accepted by the HAER
prior to demolition or excavation.
• TABLE A '
Archeological Sites Related to the White Mesa Project
.0.8.8./IIIMPOII
' Mon-Eligible Saes 'Eligible Sites Undetermined Sites
42Sa 6379 6699
6305 6739
63001 7653
6307 6740
6392 7655
6193 7656
6304 7657
6395 7650
6396 7650
6403 7660
6405 7661
6400 7665
6427 7660
6429 7675
6430 7684
6432 7607
6435 7609
6439 7690
6441 7691
• 6443 7693
6444 7696
6690 7700
42Sa 3766 6436 7685
6301 6437 7606
6302 6430 7600
6303 6440 7692
6309 6442 7694
6390 6445 7695
6391 6606 7696
6390 6697 7699
6399 6752 7750
6400- 6753 7751
6401 6757 7752
6402 7662 7753
6406 7663 7754
6407 7664 7075
6419 7669 7076
6420 7670
6421 7671
6422 7672
6423 7673
6424 7674
6425 7676
6426 7679
6420 .7600
6431 7601
6433 7602
6434 7683
42Sa 6300
6304
• 6306
.6397
64 04
6604
6605
6754
7654
7690
•
Total: 44 Total: 67 Total: 10
5
2. The Commission wi11 review all determinations of the State
Historic Preservation Officer with respect to sites whose status
(eligibility) has to date been found to te "undetermined" or which are subsequently'reported to the Commission as a result of surveys
or discovery during the conduct of the undertaking. If the
Commission concurs with the determinations of the SMPO, the
Commission will take the indicated administrative action (i.e.,
amend Table A, as referred to in the license conditions). If the Commission does not concur with the determinations of the SHPO,
it will request the comments of the Council before any adverse
effects upon such sites are permitted.
3. The Commission will consult with the SHFO with respect to any
data recovery program to be undertaken by the licensee to mitigate
adverse effects and with respect to the monitoring program which the
licensee will be required to implement. If the Commission concurs with the recommendations of the SHPO; it will require the licensee to
institute programs in accordance therewith. Otherwise, the
Commission will request the comments of the Council before any
adverse effects upon the affected sites are permitted.
•
4. The Commission will consult with the SHP0 with respect to the layout
of haul roads prior to giving its approval to any request of the
licensee with respect thereto.
5. The Commission will exercise its inspection and enforcement authority in good faith to assure .that the activities of the
licensee are carried mit in accordance with its license and the
provisions of this Agreement. •
6. The Commission will submit to the Keeper of the National Register
a rect.:est to expand the area of the .7..reeo1ogica1 District to
include the NE1 /4 of Section 33, T375, 1122E, when initial deter-
minations have been made concerning zhe significance of individual
sites within that area.
.111.•
•
7 5
Advisory
Council On
Historic
Preservation
1522 K Street. NW
WashinVon. DC 20005
AMEND/MT TO
IMORANDUM OF AGREEMENT
WHEW, the Nuclear Regulatory Commission (Commission), the Utah
State Historic Preservation Officer (SHPO), and the Advisory Council on.
Historic Preservation (Council) executed a Memorandum of Agreement on.
August 15, 1979, for the issuance of a Source Material License to Energy
Fuels Nuclear, Incorporated, for a uranium mill on White Mesa, Utah; and; •
WHEREAS, pursuant to 36 CFR Sec. 800.6(c)(4) of the Council's regulations
the Commission has now requested an amendment to the Memorandum of Agreement;
and,
WHEREAS, pursuant to the Council's regulations, representatives of the
Council, the Commission and the Utah SHPO have consulted and reviewed the
proposed amendment to consider alternatives to avoid or satisfactorily
mitigate the adverse effect;
NOW, THEREFORE, it is mutually agreed that the undertaking will be
implemented in accordance with the Memorandum of Agreement ratified on
August 15, 1979, as amended by the following stipulations.
STIPULATIONS
I. Revised "Table A" :(attached), which i4cludes sites in the NE of
Section 33, T 37 S, R 22 E, will be substituted for the original Table
A.
II. The following Stipulations will replace those of the same number in
the original Agreement.
1.b. The licensee shall conduct such testing as is required to enable
the Commission to determine if those sites designated as "Undetermined"
in Table A and located within 100 feet of present or known future
construction areas are of such significance to warrant their
redesignation as "Eligible." This action by the licensee shall
be completed by July 1, 1982. In all cases such testing shall be
completed before any aspect of the-undertaking affects a site.
1.d. The licensee shall:conduct archeological and historical surveys
and testing to identify such additional sites as may be located
on laids associated with the undertaking, but that have not
currently been identified, e.g., in borrow areas outside the
current project boundaries. The results of any survey shall be
reported to the Commission and the licensee shall avoid any sites
-
•
Eligible Sites
TABLE A (R;Ivisad)
Archeological Sites Related to the White Mesa Project
Undetermined Sites Ron-Eligible Sites
- 6379 6699 3766 7663 *6380
*6381 6739 6382 7664 *6383
*6384 6740 6389 7669 *6397
*6385 *6757 • 6390 '7670 *6420
*6386 '7653 6398 7671 6684
*6387 7655 6399 7672 *6685
*6388 7656 6400 7673 *6754
6391 7657 6401 7674 '7654
.**6392 7658 6402 7676 7698
**6393 7659 6406 7679 *7753 '
6394 7660 6407 7680 *7870
6395 7661 6419 7681 . *8015
*6396 7665 6421 7682 *8017 46403 . 7668 6422 7683
*6404 7675 6423 7685
6405 7684 6424 7686
6408 7687 6425 7688
6427 7689 6426 7692
6429 7690 . 6426 7694.
*6430 7691 *6431 7695'
6432 7693 6433 47699
*6435 7696 6434 7750
*6436 7700 6438 .7751
*6437 7752 6440 7875
6439 *7754 6442 .
6441 7876 .• 6752'
6443 *8014 . 6753
6444 7662 .
6445 *6686
*6691 *6698
Total: 59 Total: 52 Total: 13 - inn foet of oreSent or known future construction areas.
Page 2
Memorandum of Agreer t
' Nuclear Regulatory Wilmissian'
Uranium Mill on White Mesa, Utah
within these areas until the Commission has reviewed the report
and determined whether to further amend Table A to include additional
sites. If these areas are included, the licensee shall take such .
action with respect to such additional sites as is required for
originally designated sites. •
1.f. When it is not feasible to avoid a site designated "Eligible" in
Table A, the licensee shall institute a data recovery program for
that site based on a research design that takes into account the
Council's Handbook, "Treatment of Archeological Properties" (copy
enclosed).
1.k: Archeological contractors must be approved in writing by the
Commission. The Commissipn will consult with the SRPO regarding
the qualifications of all archeological contractors and the
quality of the laboratory facilities they will use. The Commission
will approve au archeological contractor who meets the minimum.
standards for a principal investigator set forth in 36 CFR Part 66,
Appendix C, and whose qualifications are found acceptable by the
SHPO.
e.# (
Executive irector 1
Advisory Council on Histtoric Preservation
date).00.;
u 141 gu Rory Commission
date) A -/e
U ah State Historic Preservation Sfficer
Rd (date)
Advisory-Council on Historic Preservation •
li Chairma
EXHIBIT D
Letter to the NRC dated July 28, 1988
12
DESIGNATED ORIGINAL
Certified By
• .* lirnetco Minerals Corporation I/0- Y61/ pe-

wi-wre tve3.."22 * Ro4ox see • BLANDING. UTAH 64511
PM 678 0:41 Realio oecht fi rotie fie

C./
113
00 • -% 0- July 28, 1988
%NM As
Mr. Harry J. Pettengill U. S. Nuclear Regulatory Commission Region IV Uranium Recovery Field Office Box 25325_ -.Denver, 00 80225
Re: Umetco Minerils Corporation SUA-1358: Dbcket No. 40-8681
White Meqa Hill; Utah
Dear Hk;
The purpose of this letter is to request License Amendments to White Mesa's.Source Materials License. Enclosed is a chedk for $150.00.
• If you need any information do not hesit▪ ate to contact me or my • Oaff.
Very truly yours,
d ffesAmiurjz-
1 L -; .
- v..11^r .
r.
; • • .•-f.1511.. 21:... ---- ---
..• i ::,.:.". ::: • - .1: le-ci, - ' ---------
••• • ••••• •
*J. S. Hamrick Site Environmental Coordinator • •
• Ae.
D. K. Superintendent
Umetco Mineral's Corporation White Mesa Mill P. O. Box 669. Blanding, UT 84511 [phone]
7•1
License Condition 15
License Condition (LC) 15 sets forth guidelines for archeological
sites that may be affected by mill operations or construction. Attachment No. 2 referenced in LC 15 should reflect the archeolo-gical work that has been accomplished at the White Mesa Mill.
Accordingly, Umetco proposes that the following attachment be substituted for Attachment No. 2 of the license.
Diversion Ditches
Conceptual construction plans called for the construction of 3 diversion ditches. It was envisioned that these ditches would be
needed for the Probable Maximua Flood Series (PMFS) event of over
15 inches. The design work that has gone into White Mesa's
.;

reclamation plan has shown a PMF of 7.76 inches. Designing to this precipitation event bas shown that no diversion ditches are
needed for flood protection.
Attached is a site map showing drainage boundaries and areas.
Note that the Mill and Facilities Area Sedimentation Pond has a 14 acre-foot cApacity. A PMF of 7.76 inches produces 140 acre-feet of liquid. The freeboard limit on Cell 1-I is 3.5 feet and
its surface area is 54 acres, providing PMF storage capacity of
189 acre-feet.
The PMF would then leave:
189 + 14 - 140 = 63 acre-feet
of solution capacity in Cell 1-I, or a 45% safety margin beyond
PMF requirements. Therefore no diversion ditches are needed for
flood design purposes.
Umetco proposes that monitoring and maintenance standards for Diversion Ditch 1 be abandoned and that requirements for the construction of Diversion Ditches 2 and 3 be dropped.
Restricted Area Boundaries
Umetco wishes to enlarge the restricted area to the north and
south of the Tailings Management Area. The boundary enlargement to the south is necessary for Cell 4 construction. 'Expanding the
boundary to the north will allow greater flexibility in
maintenance of spray systems in Cell 1-I. Attached is a map of the current and proposed boundaries. Note that the new fencing is on land owned by Umetco.
The new boundary would consist of steel posts and barbed wire fencing. This would replace the existing cedar post and barbed wire fence which would be removed as needed after the new fence
had been completely constructed. This will insure that there are
no breaches is the perimeter fence during construction.
Westwater Creek. License Condition 24-G
This surface water in this creek is monitored according to
specifications Ln the License and supporting documents. The creek has been dry for 15 of the last 25 quarters. Umetco proposes that this creek be dropped from monitoring requirements.
RUPture Detectiqp, License Condition 47
Umetco proposes that rupture detection for Cell 3 and successive tailings cells follow the system outlined in the letter to the NRC dated December 31, 1986.
P.0
Attachment No. 2
Excavated
Sites
Archeo.logical Contributing Sites To Be Excavated
Sites Related to the White Mesa Project
Undetermined Sites Non-Contributina Sites 6380 6379 3766 7663 6383 6381 6382 6398 7664 7654 6384 6405* 6390 7669 7698 6385 6408* 6389 7670 7753 6386 6421* 6399 7671 7870 6387 6427 6400* 7672 8015 6388 6430* 6401* 7673 8017 6391 6431* 6402* 7674 6392 6432* 6406* 7676
6393 6439* 6407* 7679 6394 6441* 6419* 7680 6395 6443 6422 7681
6396 6444 6423 7682
6397 6445 6424 7683
6403 6739* 6425 7685 6404 6740 6426 7686
6420 7653 6428 7688 6429 7655 6433 7692 6435 7656 6434 7694
6436 7657 6438 7695 6437 7658 6440 7699 6684 7659 6442 7750 6685 7660 6452 7751
6686 7661 6453 7875 6697 :7665 6462 6698 '7668 6699 7675 6754 7684 6757 7687 7754 7689 7690 7691 7693 7696 7700 7752* 7876 8014 Totals: 30 38 25 24 7