DRC-2020-006241 - 0901a06880c44124

'lite Mountain 'lite Tribe
Environmental Programs Department
P.O. Box 448
Towaoc, Colorado 81334-0448
[phone] MAR 2 5 2020
Div of W2ste Management and Radiation Control
Ty L. Howard
Director
Division of Waste Management and Radiation Control
Utah Department of Environmental Quality
PO Box 144880
Salt Lake City, UT 8411.4-4880
March 23, 2020
DRC-2o2o-ou6241
RE: Public Comment on License Condition 9.7 for RML UT1900479
Dear Director Howard:
I am writing you today regarding the proposed revision to License Condition 9.7 of Radioactive Material
License UT1900479. The Ute Mountain Ute Tribe has the following comments that should remain part
of the administrative record in this regard.
1. Protection of cultural resources on and around White Mesa is of extreme interest and
importance to the Tribe and its White Mesa community. The Tribe recognizes the need to revise
the Mill License condition to ensure that the License accurately identifies and fully protects all
the significant cultural resources previously inventoried on Mill lands, as well as any cultural
resources that may be identified in the future. Any revision should strengthen and not relax
cultural resource protections. We also appreciated the opportunity to review the proposed
amendment prior to the public at large.
2. At a meeting with the Ute Mountain Ute Tribe's historic preservation representatives on July 31,
2019, it was the Tribal representatives' understanding that a new Memorandum of Agreement
(MOA) would be drafted for the purpose of replacing the 1979 MOA and distributed for review
by the Tribe, Utah State Historic Preservation Office (SHPO), and Energy Fuels Resources (USA),
Inc. (EFRI). The Tribe understood the Division would be reengaging consultation on a MOA.
Instead, the Division has proposed license amendment that does not include the
aforementioned MOA because the Division never undertook the process of drafting and
distributing a MOA. The Tribe was not informed why the Division changed the approach
outlined at the July 31 meeting and ceased dialogue on a MOA outlining the relative roles in the
ongoing cultural resource protections at the White Mesa Mill. We request that the Division
follow through on its commitment from the July 2019 meeting, draft and distribute the MOA,
and bring the various parties together to agree on a new MOA to be referenced in Condition 9.7
in concert with each party's respective role in this mutual goal of cultural resource protection.
With that, the license amendment process should be restarted at the appropriate time to
accomplish the inclusion of the MOA.
3. In addition to tailing cell construction and other mill facility construction that may disturb new
ground at the facility warranting the cultural resource protections of Condition 9.7, the State has
directed Energy Fuels Resources (USA) to develop dozens of groundwater monitoring wells in
the last 15 years and continues to do so routinely. These do not simply involve a hole in the
ground, but require clearing and leveling of an area to get a drill rig in safely, and do in fact bore
through potential cultural resources at each well location. This constitutes significant
disturbance of potential archeological resources as well as potential implications under the Utah
Native Grave Protection and Repatriation Act. The Tribe requests that well drilling be
specifically identified as among the activities that require implementation of Condition 9.7.
Further, if this is already the case and being implemented, the Tribe requests advance
notification of drilling activity beforehand and sharing of allrecords of the cultural resource
inventory reports or drilling monitor reports produced as a result of the efforts at each well site.
4. The UMUT does not agree that the conferral of Agreement State status on Utah in any way
changed the obligations of the Licensee to comply with the terms of Condition 9.7 and the
requirements or the agreements referenced therein. The UMUT has not seen evidence or public
notification of any formal federal process or action by the Nuclear Regulatory Commission (NRC)
or the ACHP to terminate the agreements and protocols referenced in Condition 9.7 or to
transfer responsibilities to Utah. If such a process is underway, it should be completed in
accordance with applicable federal administrative procedures, before references to the federal
conditions and agreements are removed from Condition 9.7. In any event, conferral of
Agreement State status on Utah or any other action by NRC could not and would not in any way
limit the obligations of the BLM under the 1985 BLM Cultural Resources Easement discussed
below.
5. All previously identified archeological sites on the Mill lands, including all the sites previously
referenced in Condition 9.7 and all sites identified in the 1985 BLM Cultural Resource Easement
(described below), should be comprehensively and accurately listed, along with relevant
information about the status of each site. Past lists referenced in Condition 9.7 have not been
accurate or complete.
6. Condition 9.7 should reference the document or documents that comprehensively and
accurately list(s) all identified cultural resource sites and should identify the custodian of such
lists and supporting documents so the lists of sites and documents may be accessed in the
future by the appropriate authorities.
7. The 81.M has responsibility for the sites that were subject of the "Energy Fuels BLM Land
Exchange Cultural Resource Easement Agreement between the BLM and Energy Fuels Nuclear,
dated August 26, 1985 (the "1985 BLM Cultural Resource Easement"). The subject of the
cultural resources easement expressly reserved to the United Sates under Land Exchange Patent
No. 43-85-0028, dated October 10, 1985 and recorded November 4, 10985 as Entry No.
1H10635 in M. Book 672 at Pages 482-83 of the records of the Recorder of San Juan County,
Utah. ("1985 Land Exchange Patent") in the approximately 2,591.42 acres of federal land
conveyed to Energy Fuels by that patent. Copies of the 1985 BLM Easement and 1985 Land
Exchange Patent are attached to these comments.
8. The 1985 BLM Cultural Resource Easement Agreement provides, in part:
• "At such time as a surface disturbing activity is proposed on the subject land
described as :
T. 37 S., R. 22 E., SLBM, Section 29: SE 1/4 SE 1/4
Section 33: SW 1/4
T. 38 S., R. 22 E., SLBM, Section 4: N 1/2, SW 1/4, W 1/2 SE1/4, W 1/2 E 1/2 SE 14, Section 5: All, Section 6: E 1/2, Section 8: NEYs, Section 9: All the Patentee
(Energy Fuels, Ltd.) or its heirs, successors-in-interest or assigns shall determine
the potential adverse affect [sic] of proposed land disturbing activities on the
cultural sites, as shown on Attachment "A" which have been identified as
potentially eligible for inclusion on the National Register of Historic Places, and
complete the following steps:...[Iist of steps to be taken].... "
The 1985 Land Exchange Patent provides, in part:
• "An easement for exclusive use and control of all cultural sites on and in the
lands described above, along with the right of ingress and egress to the sites;
until such time as all or part of the cultural resource sites are excavated or
otherwise cleared in accordance with requirements of the Cultural Resources
Easement Agreement dated August 26, 1985, by and between Energy Fuels, Ltd.
And the United States of America "
9. Condition 9.7 should reference the 1985 BLM Cultural Resource Easement and the related
reservation under the 1985 Land Exchange Patent and require that the Licensee comply with
their terms and provide confirmatory documentation to UDWMRC that Licensee has complied
and continues to comply with the 1985 BLM Cultural Resource Easement and any corresponding
mitigation plans approved by the BLM.
10. Condition 9.7 should not impose an artificial distance requirement, such as the proposed 100
feet, within which impact to cultural resources is deemed unavoidable, without any protective
measures being taken. Condition 9.7 should stress that preservation of cultural resources and
sites is the primary goal, no matter how close the cultural resources may be to mill activities and
structures, and require that the Licensee make the required showing that avoidance of adverse
effects is not reasonably feasible with respect to all cultural resources regardless of their
proximity to mill activities or structures.
11. Condition 9.7 should require that Licensee's reclamation plan address how sites that were or
will be buried under overburden stockpiles will be preserved during and after reclamation.
12. The proposed language in Condition 9.7 identifies the SHP() Director as "Director," but the
"Directorn for the rest of RMI. UT1099479 is you, the Division Director. It would be clearer to
the public and the regulated entity to differentiate which Director is which in the license.
Sincerely,
Scott Clow
Director
Cc: Manuel Heart, Tribal Chairman
Tribal Council
Peter Ortego, General Council, Ute Mountain Ute Tribe
Leland Begay, Associate General Counsel, Ute Mountain Ute Tribe
Terry Knight, Tribal Historic Preservation Officer
Nichol Shurack, Cultural Resources Contract Administrator
Energy Fuels - BLM Land Exchange
Cultural Resource Easement Agreement
At such time as a surface disturbing activity is proposed on
the subject land described as:
T. 37 S., R. 22 E., SLBM, Section 29: SE 1/4 SE 1/4
Section 33: SW1/4
T. 38 S., R. 22 E., SLBM, Section 4:
Section 5:
Section 6:
Section 8:
Section 9:
N 1/2, SW 1/4, W 1/2 SE
1/4, W 1/2 E 1/2 SE 1/4 All
E 1/2
NE 1/4
All
The patentee (Energy Fuels, Ltd.) or its heirs, succes-
sors-in-interest or assigns shall determine the potential
adverse effect of proposed land disturbing activities on the
cultural sites, as shown on Attachment "A" which have been
identified as potentially eligible for inclusion on the
National Register of Historic Places, and complete the
following steps:
a. Should the sites be within the proposed impact zone
(defined as the area of any facility plus the surrounding
land to 100 feet distance from the facility's perimeter, or
alternative facility location areas), the patentee shall
submit to the Moab District of the Bureau of Land Manage-
ment a proposed cultural resources mitigation plan. The
sites, if unavoidable, shall be recovered through an
acceptable data recovery program which will specify proce-
dures for study and final disposition of any human burials
found. In either case, Bureau of Land Management's
approval of the proposed cultural resources mitigation plan
shall be made in consultation with the Utah State Historic
Preservation officer, the Advisory Council on Historic
Preservation, and, regarding human remains, the appropriate
native American interests.
b. Periodic inspections of sites shall be performed by Bureau
of Land Management personnel by prior arrangement with the
patentee to assure compliance with these provisions at
intervals not greater than three (3) years. Should surface
disturbing activity be noted at any time, a joint inspec-
tion shall be requested of the patentee immediately to
oab District Manager
assess cultural damage, if any, and determine needed miti-
gation required.
c. Energy Fuels, Ltd., or its heirs, successors-in-interest or
assigns will be responsible for the costs of any mitigation
including excavations or testing necessary as a result of
damage or development impacts. Professional archaeologists
employed and salvage techniques are subject to approval by
the Utah State Historic Preservation Office, the Advisory
Council on Historic Preservation and the Bureau of Land
Management.
d. After study, the recovered artifacts will be curated at an
institution acceptable to the Utah State Historic
Preservation Office.
Any obligation imposed hereunder shall run with the
subject land and shall be binding upon Energy Fuels, Ltd. for
so long as, and only so long as, it owns, controls or has the
right to possess that portion of the subject land to which any
such obligation relates.
IN WITNESS WHEREOF, the parties have executed this
Cultural Resources Easement Agreement this 26th day of August,
1985.
ENERGY FUELS, LTD.,
a Colorado limited
partnership
By E.F. Uranium Group, Inc.
a Colorado corporation
Its General Partner
By: 7f:71C-Ct
Brad L. Doores
Vice President -
Legal & Regulatory Affairs
Bureau of Land Management
Form 18804 (November 1984)
Serial: Utah 45312
WHEREAS,
Zbe tiniteb ibtatei of Zfinerica
Zo all to kobom tem preients stall tome, direetIM LDU Masse, rfIcrut REcoorpshiv.itai
118S Nod - 4 AM 9.. 15
Energy Fuels LTD.,
is entitled to a land patent pursuant to Section 206 of the Act of October 21,
1976 (90 Stat. 2750, 43 U.S.C. 1713), for the following described land:
Salt Lake Meridian, Utah
T. 37 S., R. 22 E.,
sec. 27, lots 1 and 4;
sec. 291 SE4SE4:
sec. 33, SW4.
T. 38 S., R. 22 E.,
sec. 4, lots 1, 2, 3, 4, S4N4, SW4, WIISE:, W4E4SE4, W4E4E4SE4;
sec. 5, lots 1, 2, 3, 4, S1/2N4, 54: sec. 6, lots 1, 2, S4NE4, SE14; sec. 8, NE4;
sec. 9, all.
Containing 2,591.42 acres.
KNOW YE, that there is, therefore, granted by the UNITED STATES, unto the
above named claimant the land above described: TO HAVE AND TO HOLD the said
land with all the rights, privileges, immunities, and appurtenances, of
whatsoever nature, thereunto belonging, unto the said claimant, its successors
and assigns, forever;
EXCEPTING AND RESERVING TO THE UNITED STATES:
1. A right-of-way thereon for ditches and canals constructed by the
(authority of the United States. Act of August 30, 1890, 26 Stat.
391; 43 U.S.C. 945.
2. All minerals in the lands above described, with the right to prospect
for, mine, and remove the same under applicable law and such
regulations as the Secretary may prescribe.
3. A right-of-way, Serial No. U-52040, for roads and a stock driveway
granted under the Act of October 21, 1976, (90 Stat. 2776, 43 U.S.C.
1761).
4. An easement for exclusive use and control of all cultural sites on
and in the lands described above, along with the right of ingress and
egress to the sites; until such time as all or part of the cultural
sites are excavated or otherwise cleared in accordance with
requirements of the Cultural Resources Easement Agreement dated
August 26, 1985, by and between Energy Fuels, Ltd. and United States
of America. Upon excavation or clearance, the Bureau of Land
Management shall execute disclaimers of interest as to those rights
hereby reserved with respect to those cultural sites excavated or
cleared.
Patent Number 43-85-0028
40,
Entry No /11/"-46— 410--
Recordedli-4-rs- At 5:1-4:4 M. En142ZPaget2 C... /2241.,
[MY LOU MOSHER
Reccr, '41; San Juan County
$ '57 / DEPUTY
FEE PAID
GIVEN4D4ermyhand.in SALT LAKE CITY, UTAH the TENTH' day of OCTOBER in the year of our L.ord one thousand nine hundred and EIGHTY-FIVE and o e In ndence of the United ates t two hundred
and ENTH
e , branc o ancls Operations als Patent Number '4385 41)0128
Form 1860-10 (March 1985)
Serial : 45312
SUBJECT TO:
1. A right-of-way Serial granted under the Act 961).
2. A right-of-way Serial granted under the Act 961).
3. A right-of-way Serial public access and use Stat. 2776, 43 U.S.C.
No. U-021213A, for a power transmission li of March 4, 1911, (36 Stat. 1253, 43 U.S.C.
No. U-24973, for a power transmission line, of March 4, 1911, (36 Stat. 1253, 43 U.S.C.
No. U-53767, for existing county roads for granted under the Act of October 21, 1986, (90 1761).
IN TESTIMONY WHEREOF. the underaigned authorized officer of the Bureau of Land Management. in accordance with the provisions of the Act ofJune 17. 1948 (62 Stat. 476), has, in the name of the
United States. caused these letters to be made Patent, and the
Seal of the Bureau to be hereunto affixed:
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