DRC-2017-011185 - 0901a0688080cddc

111612017 State of Utah Mail - Opportunity to provide Sur-Reply Comments to the State of Utah in Regards to your Previously Submitted Comments
Ryan Johnson <[e-mail]>
Fri, Nov 3,2017 at 11:17 AM
I.!.R
Opportunity to provide Sur-Reply Gomments to the State of Utah in Regards to your
Previously Submifted Comments
4 messages
Ryan Johnson <rmjohnson@utah. gov>
To: [e-mail]
Cc: Bret Randall <[e-mail]>
Mr.Ken,
Please see attached a Notice informing you of the opportunity to provide Sur-Reply Comments as they relate to the
comments that you submitted to the Utah Division of Waste Management and Radiation Control for the White Mesa
Uranium Mill's Radioactive Waste License renewal.
Ryan Johnson, P,G.
Environmental Scientist/Health Physicist
Utah Division of Waste Management and Radiation Control
Disclaimer:
Statements made in this e-mail do not constitute the official position of the Director of the Division of Waste Management and
Radiation Control. lf you desire a statement of the Director's position, please submit a written request to this office, on paper,
including documents relevant to your request
fr ?l?;:tt7'008542'Pdf
Mark Kerr <[e-mail]> Sun, Nov 5,2017 at 3:16 PM
To: Ryan Johnson <[e-mail], "Lopas, Sarah" <[e-mail]>, [e-mail]
Mr. Johnson,
I have reviewed the EFRI comments in regard to my comments, and provide for your review the following:
EFRI response Pg 61
The major changes in technical specifications are not in the CQA report. I submitted a GRAMA request in regard to those
major cfianges. lf the engineer that performed the review also had knowledge of the changes, then answers to my
GRAMA would be available, and by D!ryMRC requirements should be in the CQA report.
Also, if the engineer knew of, and observed the changes, then the engineer approved conflicting technical specifications.
This is well documented. I have provided the details to DWMRC, and the NRC, and have followed up several times. As
stated previously, nearly all the documents are D!ryI\rRC, URS, Geosyntec Consultants, and Denison Mines documents.
D!ryNlRC has copies. durely DWMRC, given their review and observation, can answer a simple GRAMA request with
more than stating I have been given all the information there is to give. What were the approved modifications? \Nhat
were the change! in technical ipecifications? There were changes that DWMRC & URS considered critical components
to the technicai specifications. Surely those changes qualify as Major. They are not in the CQA report.
EFRI resoonse Pg 62
The KGL blasting plan was approved prior to construction activities, by Denison Mines & Geosyntec Consultants' and
was in compliance with the specifications. There was 'Sub-Drill', not over blasting. Denison & Geosyntec were aware of
the sub-drili plan well ahead of blasting activities. Geosyntec reviewed the sub-drill months into construction activities,
the adjustment to the sub-drill, and the adjustments were in compliance with the specifications.
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'111612017 State of Utah Mail - Opportunity to provide Sur-Reply Comments to the State of Utah in Regards to your Previously Submitted Comments
Dension & Geosyntec were aware, by blast report, as soon as blasting began in December 2009 of the sub-drill.
Geosyntec reviewed the sub-drill in March 2010. Then in May 2010, sub-drill, according the Geosyntec, suddenly
became'overblasting'!
D\A/[URC & URS considered the Blast Plan to be a critical component of the technical specifications, and Geosyntec
approved the blast plan with conditions in regard to soil cover. Then in March 2010, Geosyntec directs KGL to change
the blast plan, contrary to their own approval and their own requirements for approval.
I did not claim that'in his opinion'that the loose rock was acceptable for the Cell 48 foundation. We were excavating in
accordance with the drawings and specifications, and blasting in accordance with the blast plan and specifications.
Denison & Geosyntec specified the excavation to a level 6 inches below the design grade for engineered fill. ln a letter to
the Utah Radition Control Board, Harold Roberts, Executive Vice President of Denison Mines, U.S. Operations indicates
that the blasted rock will be removed. Then the design states that only 6 inches will be removed, in direct conflict with
Roberts assurances. Furthermore, during the approximated 3 weeks of conflict and turmoil, while Roberts is attempting
to convince me that this is not a change in the scope of work, and that KGL should remove the blasted rock without
additional compensation, Roberts stated to me, on May 12,2010, that there would be caves and cavems in the blasted
rock, these would collapse and the liner would tear.
Roberts also stated to me "it's about time we quit jerking you around and delaying yor.r", ('we' meant Denison &
Geosyntec). At that time I had a one sided conversation with Roberts questioning him why he wouldn't step in and
correct the conduct, and I commented to him to remember his statement. Roberts would not comment further.
I was concerned about all this conflict regarding the specification changes so I inquired by document to Geosyntec as to
the details of the 'inlieu
of shot rock removal' specification, as to if the UT DEQ regulators knew of the changes, and as to where the changes
would be in the'As Built'(CQA) report.
Geosyntec, by letter from Paul Sanner, Vice President and General Council, advised that this subject is not appropriate
subject mafter for agreed on request process, that the modification to compaction methodology (in-lieu of shot rock
removal) was based on Geosyntec experience and that they assume engineering responsibility for the decision. He
indicated that it was not their experience to be cross-examined on the grounds of an engineering determination by means
of the approved request process, and for us to please revise or rescind the request. He didn't answer any of the
questions in my request. Sanner referred to an earlier letter where he wrongfully describes sub-drill as over blasting,
wrongfully interprets the specifications and bid documents, wrongfully describes the history of operations, wrongfully
describes scheduling, and ignores delays caused by Denison & Geosyntec. Sanner validates Roberts comments in
Roberts letter to URCB, that blasted rock may settle deferentially or significantly if not removed and replaced with
competent fill or re-compacted. The blasted rock was not removed or re-compacted, and the 'in-lieu of shot rock removal'
process was not applied to the entire cell floor. The 'in-lieu of shot rock removal' specification was never explained,
described by Specification, Precedent, ASTM, Generally Accepted Practice, or Prior Experience.
On May 19, 2010, Geosyntec came up with a plan, 'inlieu of shot rock removal'. But this plan did not solve the
deformation, discontinuous fractures & joints, caves & caverns that lead to 3 weeks of conflict. Geosyntec states this will
provide for a firm and unyielding sub-grade surface, but Roberts' assurance letter to the URCB and his comments to me
are about sub-surface, not sub-grade surface.
We did not abandon the job. We were forced offthe project due to non-payment by Denison. For months, Dension &
Geosyntec advised us that change notices for changes including blasting, delays, and obstruciion by lndian ruins
operations were in processing. These changes were result of direction by Dension/Geosyntec long before we were
forced to take legal action. Roberts stated to the arbitrator that Denison denied the changes even though they were
Dension & Geosyntec directed changes. These changes are well documented.
EFRI Response Po 64:
The blasted (loose) rock was, in fact, NOT removed further that 6 inches below top of engineered fill, and the'in-lieu of
shot rock removal' plan was not applied to areas that Roberts and Geosyntec claimed were unacceptable. There was
approximately 4 acres of cell floor with engineered fill in place, blasted with the same sub-drill depth, that was never
reworked. This area was stated by S. lrwin of Geosyntec to be acceptable. At the time of his acceptance of one area,
but not another, he was in direct conflict with the judgements of two professional engineers, Roberts & Corcoran of
Geosyntec, the specifications and the construction plans & drawings. Then lrwin's judgement was ovenidden by the 'in-
lieu of shot rock removal' plan, but the 4 acre area, that is now NOT (according the the over ride) acceptable was neverreworked. And according to EFRI, the DWMRC reviewed AND observed all of this and determined all was acceptable.
This would mean that in several areas the acceptable construction directly conflicts with DWMRC, Denison Mines,
Geosyntec, and URS documents. Geosyntec states that all these areas, (rock is ok, rock is not ok, 'inlieu of process
applied in one area, no need to apply 'in-lieu of process in another area) is all documented and observed by theirpersonnel. These are Major changes and that documentation should be in the CQA report. The report states there were
hftps://mail.google.com/mail/u/0/?ui=2&ik=309d40f566&jsver=ZOgYGgvFjfi/.en.&view=pt&search=inbox&th=15f91a8fa296b88a&siml=15f82e392bc8c...
111612017 State of Utah Mail - Opportunity to provide Sur-Reply Comments to the State of Utah in Regards to your Previously Submitted Comments
'minor' changes, and concludes cell constructed in accordance with all drawing, specs, approved modifications. lf so,
answers to a GRAMA request should be simple.....all the information is there to fonruard.
Also, these are all Major changes and should be in the CQA report and answered by the reviewing/observing engineer. I
was told the the engineer was not available for questions/comments.
EFRI General Response:
EFRI response to most of my comments is 'See general response above, or lacks sufficient detail to allow for a
meaningful response'. There is plenty of detail as evidenced by DWMRC, URS, Denison, and Geosyntec documents, all
of which D\ /TvlRC has copies.
EFCI's David Frydenlund, Senior Vice president, General Council and Corporate Secretary, who held a similar position
with Denison Mines during Cell 48 construction, confirms that notice was given on the changes in Blasting, Rock
Excavation, and rock material processing and compaction. Frydenlund also confirms the DRC engineer observation,
review and approval, as stated by DRC to the NRC. Frydenlund confirms documentation of notice, review and approval
between Corcoran/Geosyntec and the DRC engineer exists. In accordance with bid documents, permits, and licenses,
this documentation is required. Notice of the changes, and approval by DRC was required prior to implementation, and
these documents were required in the CQA report. However, the NRC and I have been advised that we have been given
all information available. Obviously this is not the case. DRC provided information does not contain the documents.
Answers to my GRAMA request do not contain this information. The CQA report does not have this information.
Frydenlund, as Vice President of Regulatory Affairs with Denison Mines, would have, no doubt, been very familiar with
these notices, changes in specs, observations, and DRC conclusions, as he has stated occurred, and as General Council
would assure documentation was thorough and in accordance with regulatory compliance.
So, contrary to several permit, license, assurances, statements, directives and requirements, together with confirmation
that the documents exist, the documents are not available and the DRC reviewing/observing engineer is also not
available.
The reality is: Deception by Roberts and Denison Mines for personal and monetary gain. False certification by Corcoran
and Geosyntec Consultants. D\ /IURC complicity in the entire affair.
lQuoted text hiddenl
Mark Kerr <[e-mail]> Sun, Nov 5,2017 at 6:18 PM
To: Ryan Johnson <[e-mail]>, "Lopas, Sarah" <[e-mail]>, [e-mail]
lQuoted text hiddenl
lQuoted text hidden]
Mark Ken
On Fri, Nov 3, 2017 at10:17 AM, Ryan Johnson <[e-mail]> wrote:
Mr.Ken,
Please see aftached a Notice informing you of the opportunity to provide Sur-Reply Comments as they relate to the
comments that you submitted to the Utah Division of Waste Management and Radiation Control for the White Mesa
Uranium Mill's Radioactive Waste License renewal.
Ryan Johnson, P.G.
Environmental ScientisVHealth Physicist
Utah Division of Waste Management and Radiation Control
Disclaimer:
Statements made in this e-mail do not constitute the ofiicial position of the Director of the Division of Waste Management
and Radiation Control. lf you desire a statement of the Director's position, please submit a written request to this ofiice, on
paper, including documents relevant to your request
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11rcn017 State of Utah Mail - Opportunity to provide Sur-Reply Commenb to the State of Utrah in Regards to your Previousty Submitted CommentE
Ryan Johnson <[e-mail] Mon, Nov 6,201T at 7:08 AM
To: "Goble, Phillip" <[e-mail]>, Bret Randall <[e-mail]>
FYI
Foruarded message
From: llark Kerr <[e-mail]>
Date: Sun, Nov 5, 2017 at 3:16 PM
Subject: Re: Opportunity to provide Sur-Reply Comments to the State of Utah in Regards to your Previously Submitted
Gomments
To: Ryan Johnson <[e-mail]>, "Lopas, Sarahn <[e-mail], [e-mail]
lQuoted text hiddenl
lQuoted lext hiddenl
htps://mail.google.com/mail/u/0nui=!&ift=$09d40f566&jsvel=ZOgYGgvFfi.en.&vieurpt&seardr=inbox&th=15fgla8fa296b88a&siml=1Sf82e392bc8c... 4ll
Aaron M. Paul
Staf Attorney
Grand Canyon Trust
4454 Tennyson Street
Denver, Colorado 80212
D:303-477-1486
November 17,2017
By Electronic Mail
Scott T. Anderson
Director
Utah Division of Waste Management and Radiation Control
P.O. Box 144880
Salt Lake City, Utah 84114
[e-mail]
Re Sur-reply Comments on the Proposed Renewal and Amendment of Energy Fuels Resources
(USA), Inc.'s Radioactive Materials License and Groundwater Discharge Permit for the White
Mesa Mill
Dear Mr. Anderson:
Thank you for the opportunity to submit a reply to Energy Fuels' response to some of our
comments on the Division of Waste Management and Radiation Control's proposal to renew the
company's radioactive materials license for the White Mesa Mill.
We're pleased that Energy Fuels revised Reclamation Plan Revision 5.1 in response to the subject
matters on which the Division sought a response to our comments, and we thank the company for making
those revisions. We also thank the Division for soliciting Energy Fuels' views on some of our comments.
We believe the back-and-forth on these comments and the additional scrutiny given to the legal
requirements at issue have led to some positive changes in Plan Revision 5.1.
We continue to have differing views from Energy Fuels on some points, however, and we address
those issues below. To avoid quibbling over relatively immaterial matters, we havent responded to some of
Energy Fuels' assertions even though we don't mean to concede those points or retract our initial
comments on those subjects. WeVe organized our replies numerically by topic in the order that each issue
is presented in Energy Fueld Octob er 23,20L7 , response to our comments.
l. Milestones for Non-Conventional Impoundments
Energy Fuels' Response:
Criterion 6A applies only to tailings impoundments, which are Permanent disposal facilitia for byproduct
material, and for which a final radon bsrrier will be constructed. Evaporation ponds are not permanent
dkposal facilities and will be removed and the liners etc. disposed of in a tailings impoundment for
permanent disposal as 11e.(2) byproduct material. Evaporation ponds at the MilI do not have radon
barriers. lf an evaporation pond contains tailings that will require permanent disposal and a radon
barrier, then they are not evaporation ponds; they are tailings impoundments and would be subject to the
requirements set out in Criterion 6A. As stated below, in the Nuclear Regulatory Commissionl ('NRC3')
preamble (see Appendix 1) to its rulemaking under which Criterion 6A was added to 10 CFR Part 40
Appendix A, Federal Register Volume 59, Number 104, Wednesday lune 1, 1994, (the "NRC
Preamble"), page 28224, NRC states:
Grand Canyon Trust's Sur-reply Comments
on the White Mesa Mill Radioactive Materials License Renewal
November 17,2017
Note, as discussed in EPAs statements of consideration for its amendment of 40 CFR part
192 (at FR 32183, June 8, 1993 and reiierated at 58 Fi 60354; November i5, 19931, the
reclamation of evaporation ponds may be dealt with separately from meeting the
expeditious radon cover requirements if deemed appropriate by the Commission or the
regulating Agreement State. This may be the case whether or not the evaporation pond
area is being used for continued disposal of byproduct material.
None of the MiIl\ evaporation ponds will have a fnal radon barrier, so milestones are not required to be
set under Criterion 6A for the decommissioning of the evaporation ponds at the site.
It should be noted, however, that 40 CFR 61.251(o) of EPAs reyised Subpart W regulations defines
"Reclamation PIan" to mean a plan detailing activities and milestones to accomplish reclamation of
tailings impoundments as well as the "removal and disposal of non-conventional impoundments," which
includes evaporation ponds. It should also be noted that Subpart W provides that an approved
"reclamation plan prepared and approved in accordance with 10 CFRpart 40, Appendix A is considered
a reclamation plan" for purposes of Subpart W
EFR/ is of the view that since an aPproved reclamation plan that meets the requirements of Appendix A
satisfies the definition of "Reclamation Plan" in Subpart W, and Appendix A does not require any
milestones under Criterion 6A that do not relate to the placement of a final radon barrier on a tailings
impoundment, any closure requirements in the Reclamation Plan relating to removal and disposal of non-
conventional impoundments need not be milestones.
Nevertheless, although not required, we have added milestones for the removal and disposal of non-
conventional impoundments to revised Section 6 of the Reclamation Plan. Although these milestones are
not milestones required under Criterion 6A(1), EFRI has committed in revised Section 6 that for purposes
of the Reclamation PIan they will be treated as milestones as required by Criterion 6A(1), and as a result
EFRI has committed that they will be subject to the provisions of Criterion 6A(2) (see Appendix 2)[.]
The Trust's Reply:
We appreciate Energy Fuels' decision in response to our comments to include milestones in
Revised Section 6 of Reclamation Plan Revision 5.1 for closing non-conventional impoundments at
the mill.
The only remaining issue on this subject that we dispute is Energy Fuels' argument that milestones are
not required for evaporation ponds under Criterion 6A of Appendix A to the Nuclear Regulatory
Commission's source-material licensing rules.r So that this issue is not debated again in the future if
Energy Fuels' reclamation plan is revised, we believe the Division should direct Energy Fuels to reyise
Section 6 of Plan Revision 5.1 to clariff that the milestones set out for non-conventional
impoundments are not voluntary additions to the plan, but are required by Appendix A.
Energy Fuels argues that milestones are not required for closing the mill's non-conventional
impoundments because Appendix A demands milestones only for building a "final radon barrier," and
'See 10 C.F.R. Part 40, App. A.
Grand Canyon Trust's Sur-reply Comments November 17,2017
on the White Mesa Mill Radioactive Materials License Renewal
the company doesnt plan to build a radon barrier over the mill's non-conventional impoundments.2
We dont believe this argument is sound.
We agree that Appendix A requires reclamation plans to include only those milestones that are "key"
to completing the "final radon barrier."3 We also acknowledge that Energy Fuels is not required to
build a "final radon barrier" over evaporation ponds ifthey are dug up and buried in another
impoundment in a way that reduces the radium-226 concentration in the evaporation pond's former
footprint to the numeric thresholds set out in Criterion 6(6).a And Energy Fueld reclamation plan
does indeed call for evaporation ponds to be reclaimed in this manner.s But there are two reasons that
milestones nonetheless must be established for closing evaporation ponds.
First, Energy Fuels may forgo building a final radon barrier over evaporation ponds at the mill only if
the company demonstrates that the residual radium-226 concentration in the land beneath closed
evaporation ponds is below the numeric thresholds in Criterion 6(6). That is, Appendix A provides
that "licensees shall place an earthen cover (or approved alternative) over tailings or wastes at the end
of milling operations...."6 The only exemption from this requirement is for areas at the mill that are
cleaned up so that radium-226 concentrations are below specified numeric limits.T Thus, once "final
closure" of an evaporation pond begins, milestones must be triggered for building a final radon barrier
over the residual byproduct material in the pond, and the only basis for not completing the final radon
barrier according to those milestones is to clean up the pond to meet the radium-226 concentration
limits. To avoid violating the final-radon-barrier milestone requirements, that cleanup must be
completed in a timeframe that is consistent with milestones for building a final radon barrier.
Second, as Energy Fuels acknowledges,8 because the company plans to bury non-conventional
impoundments in the mill's conventional impoundments, and milestones must be established for
building a final radon barrier over conventional impoundments, excavating non-conventional
impoundments and discarding them in a conventional impoundment is a "key" step in building the
final radon barrier for conventional impoundments-at least for the last impoundment that's closed.
Although as Energy Fuels observes, reclamation of non-conventional impoundments sometimes could
be accomplished independently from closure of conventional impoundments, that's true only while at
least one conventional impoundment remains in operation. Because initiating final closure of at least
the last conventional impoundment at the mill thus could require closure and removal of all remaining
non-conyentional impoundments, the reclamation plan must haye a deadline for properly removing
all non-conventional impoundments before the mill's last conventional impoundment is covered.
Added to those two reasons for requiring milestones for closing non-conventional impoundments, as
Energy Fuels points out, the U.S. Environmental Protection Agency's definition of the term
"reclamation plan'in its recent revisions to Subpart W recognizes that milestones must be established
2 Energy Fuels Resources (USA) Inc., "Response to Public Comments on the White Mesa Mill
Groundwater Discharge Permit and Radioactive Materials License" 2l-22,30-31 (Oct. 23,2017) ("Energy
Fuels'Respi').
3 l0 C.F.R. Part 40, App.A at "Reclamation Planl'
a See 10 C.F.R. Part 40, App. A, Criterion 6(6).
s See Ex. I to the Grand Canyon Trust's Comments on the Proposed Renewal and Amendment of Energy
Fuels Resources (USA), Inc.'s Radioactive Materials License and Groundwater Discharge Permit for the
White Mesa Mill (fuly 31, 2017) ("Trust's Comments") at 3-5, I-2.
6 l0 C.F.R. Part 40, App. A, Criterion 6(1).
7 Id. at Criterion 6(6).
8 Energy Fuels: Resp. at 30.
Grand Canyon Trust's Sur-reply Comments
on the White Mesa Mill Radioactive Materials License Renewal
November 17,2017
for closing non-conventional impoundments. The "[a]ctivities and milestones to be addressed" in a
reclamation plan, the definition provides, "include . . . removal and disposal of non-conventional
impoundmentsi'e
To support its argument that milestones need not be established for evaporation ponds, Energy Fuels
quotes the preamble to two rulemakings that led to the addition of milestone requirements in
Appendix A: (1) EPAs 1993 amendments to 40 C.F.R. Part 192 (58 Fed. Reg.32,174,32,183-84
(|une 8, 1993)); and (2) NRC's conforming changes to Appendix A made in 1994 (59 Fed. Reg.28,220,
28,224 (fune l, 1994)). We believe these quotations are inapt. Indeed, they demonstrate that the
agencies expected a final radon barrier to be built over evaporation ponds, subject to Appendix As
milestone requirements.
In the inaterial that Energy Fuels quotes from EPAs rulemaking, EPA was rejecting'tomments noting
that evaporation ponds should be excluded from the expeditious cover requirement...l'r0 The agency
observed that the "expeditious radon cover requirement" would not apply "to the extent that [an]
evaporation pond is deemed by the implementing agency ... to be an appropriate aspect to the overall
remedial program for the particular site,"tt That isnt a blanket exemption from the milestone
requirements for all evaporation ponds, but an exemption only for ponds deemed "appropriatd'for
overall site remediation. There's nothing in the rulemaking to suggest that evaporation ponds would
not be subject to Appendix As milestone requirements if keeping them open isn't "appropriatd' for
overall site remediation. And no such finding has been made for the mill's evaporation ponds.
The section of NRCt rulemaking preamble that Energy Fuels quotes similarly reiterates this point by
citing "EPAs statements" on this issue before observing that "the reclamation of evaporation ponds
may be dealt with separately from meeting the expeditious radon cover requirements if deemed
appropriate by the Commission or the regulating Agreement State." Again, that isnt an automatic
exemption from Appendix As milestone requirements, and given the reference to EPAs statements in
its rulemaking preamble, indicates that the only "appropriate" basis for dealing with evaporation
ponds separately is if they are necessary for overall site remediation.
Appendix As milestone requirements apply broadly to all impoundments in which byproduct material
is discarded, including non-conventional impoundments.r2 We accordingly urge the Division to insist
that Energy Fuels remove from revised Section 6 of Plan Revision 5.1 any suggestion that the
milestones the company has included for non-conventional impoundments are being voluntarily
adopted.
2. Definition of Final Closure
Energy Fuels' Response:
See revised Section 6 of the Reclamation Plan, which includes the pertinent parts of the defnition
of "final closure" from the new 40 CFR Part 61 Subpart W regulations. The definition of "fnal closure" in
e 40 c.F.R. S 61.251(o).
t0 Health and Environmental Standards for Uranium and Thorium Mill Tailings, 58 Fed. Reg.32,174,
32,783 (June 8, 1993).
" 1d. (emphasis added).
r'z 10 C.F.R. Part 40, App.A ("For impoundments containing uranium blproduct materials, the final radon
barrier must be completed as expeditiously as practicable considering technological feasibility after the pile
or impoundment ceases operation....").
Grand canyon Trust's Sur-reply Comments November 17,2017
on the White Mesa Mill Radioactive Materials License Renewal
revised Section 6 excludes the paragraph relating to heap leach piles because that paragraph is
inapplicable to the Mill (the Mill is not licensed to haye any heap leach piles).
The Trust's Reply:
We agree with how Energy Fuels has modified Section 6 of the reclamation plan in response to our
request and appreciate the company's willingness to make those modifications.
3. Minimum Milestone Requirements
Energy Fuels' Response:
In developing [revised] milestones and schedule commitments, the followingfactors were taken into
consideration:
a) Three Milestones Required.
10 CFR Part 40 Appendix A, Criterion 6A(1) requires that deadlines must be establishedfor only the
following three items:
. ComPletion of the final radon barrier;. Windblown tailings retrieval and placement on the pile; and. Interim stabilization (including dewatering or the removal of freestanding liquids and re-
contouring).
In the NRC Preamble, page 28226, NRC states that: "The final rule has been changed to specifically
require the establishment of deadlines for only three milestones: windblown tailings retrieval and
placement on the pile, interim stabilization (including dewatering or the removal of freestanding liquids
and re-contouring) and fi.nal radon barrier construction. The Commission, however, retains the authority
to require the establishment of additional milestones determined to be "key" to the completion of the final
radon barrier in an individual case (note the words "but not limited to" in the definition of reclamation
planf'
The Trust's Reply:
We do not dispute the preceding assertion about which milestones must be established by default
under Appendix A, but we emphasize, as Energy Fuels acknowledges, that Appendix A requires
reclamation plans to contain all milestones that are "key" to completion of the final radon barrier, not
just the three milestones listed as examples in Appendix A.
4. Schedule Commitments Generally
Energy Fuels' Response:
b) Additional Schedule Commitments may be Set, but they are not Subject to Paragraph 2 of
Criterion 6A
ln describing Criterion 6A in the NRC Preamble, page 28225, NRC states that: "no deadlines are required
to be established in the licenses beyond completing the final radon barrier as a result of this rulemaking
and that any other schedules established in a license do not come under the specific provisions of
ParugraPh (2) of Criterion 6A'.
Grand Canyon Trust's Sur-reply Comments
on the White Mesa Mill Radioactive Materials License Renewal
November 77,2017
In revised Section 6 of the Reclamqtion Plan we have set out a comprehensive schedule for reclamation of
impoundments, which goes beyond completing the fnal radon barrier for conventional impoundments. In
revised Section 6 of the Plan and in these comments, we refer to deadlines that are not milestones
(because they go beyond or are not related to completing the fnal radon barrier) as "schedule
commitments.;' As those schedule commitments are not milestones they do not come under the specifc
provisions of paragraph (2) of Criterion 6A. However, a general timeliness standard for comPleting those
activities is ritqined. The licensee must complete those activities in a timely way, and the Director has the
authority to take action if necessary in this regard.
The Trust's Reply:
We do not dispute the assertion that Appendix A requires a schedule of milestones only for "key" tasks
in completing the final radon barrier and that a separate timeliness requirement may apply to other
reclamation tasks, We also agree that the procedural requirements in Criterion 6A(2) apply only to
extensions of milestones and not to extensions of other deadlines.
However, as explained in more detail under Item No. 6 below, we believe some of the schedule
commitments that Energy Fuels has set out in Revised Section 6 of the reclamation plan should be
milestones.
Definition of Final Radon Barrier
Energy Fuels' Response:
c) Radon Barrier is Not the Entire Tailings Cover.
The radon barrier is not the entire tailings impoundment cover, but only the radon barrier layer of the
cover. The erosion protection barriers or other features necessory for long-term control of the tailings are
placed on top of the final radon barrier and are not part of the final radon barrier. In the Subpart W
Preamble, on page 36285, EPA notes that: "Milestones which are not reasonably determined to advance
timely compliance with the radon air emissions standard, e.g., installation of erosion protection and
groundwater corrective actions, are not relevant to the tailings closure plans (radon)." In the NRC
Preamble, page 28222, NRC states that: 'A definition of fnal radon barrier was also included in the
Commission's proposed rule. . . . This defnition excludes the erosion protection features which were not a
subject to EPA's amendment to 40 CFR part 192."
The Trust's Reply:
We agree, as a general matter, that the NRC intended for the term "final radon barrier" to mean the
cover features necessary to achieve a radon flux of20 pCi/(m'?-sec) and to exclude erosion-protection
features or other features built solely for achieving Appendix As "longevity" requirements. As we
explain in response to Item No. 6 below, we disagree with how Energy Fuels has applied these
standards to the proposed cover designs for the mill.
Schedule Commitments for Erosion Protection and Other Long-Term Tailings Control Features
Energy Fuels' Response:
il) The Required Milestones do not include the Erosion Protection Barrier or other Features
Necessary for Long-Term Control of the Tailings.
6.
Grand Canyon Trust's Sur-reply Comments November 17,2077
on the White Mesa Mill Radioactive Materials License Renewal
The milestones required under Criterion 6A(1) do not include erosion protection barriers or other features
necessary for long-term control of the tailings. In the NRC Preamble, page 28226, NRC sfafes that: "The
fnal rule has been modified so that the terminology 'as expeditiously as practicable considering
technological feasibility' is used only for emplacement of the final radon barrier. A general timeliness
standard for completing erosion protection features is retained. Thus, it is clear that the licensee must
complete these actions in a timely way and that the NRC has the authority to take action if necessary in
this regard. However, the restrictive cost considerations specified for the completion of the fnal radon
barrier do not apply to decisions concerning the timeliness of completion of erosion protection features.
Instead, the more flexible, general cost considerations of the AEA (Section SaaOD aPply."(NRC 2015b)
In the case of Reclamation Plan 5.1, the fnal radon barrier is Layer 2 (3.0- 4.0 ft. (91 to 122 cm) thick
Primary Radon Attenuation Layer (highly compacted loam to sandy clay)), and the erosion protection
barriers or other features necessary for longlerm control of the tailings are Layer 3 (3.5 fi. (107 cm) thick
Water Storage/Biointrusion/Frost Protection/Secondary Radon Attenuation Layer (loam to sandy clay))
and Layer 4 (0.5 ft. (15 cm) thick Erosion Protection Layer (topsoil-gravel admixture or topsoil)). For
Reclamation Plan 3.2, the final radon barrier is Layer 2 (1 ft. (30.5cm) Radon Barrier (compacted clay)),
and the erosion protection barriers or other features necessary for long-term control of the tailings are
Layer 3 (2ft. (61 cm) Frost Barrier Layer (random fill)) and Layer 4 (3 in. (7.6 cm) Rock Armor).
Accordingly, the milestones required under Criterion 6A(1) are for the completion of Layers I and 2 under
each Reclamation PIan option (the Proposed Cover Design and the Existing Cover Design, respectively,
using the terminology in revised Section 6 of the Reclamation Plan). Schedule commitments, not
milestones, are set for the remaining Layers under each cover design option. As those schedule
commitments are not milestones they do not come under the specific provisions of paragraph (2) of
Criterion 6A. However, a general timeliness standard for comPleting those activities is retained. The
licensee must complete those activities in a timely way, and the Director has the authority to take action if
necessary in this regard.
The Trust's Reply:
We disagree, with Energy Fuels' assertions that the "final radon barrier" in the evapotranspirative
cover ("ET Cover") and 1996 conventional cover comprises only Layer 2 in those covers and that
Layers 3 and 4 in the ET Cover and Layer 3 in the 1996 conventional cover design are simply "erosion
protection barriers or other features necessary for long-term control ofthe tailings."r3 Energy Fuels has
described Layer 3 in both covers as a radon-attenuation layer.'n True enough, Layer 3 in the ET Cover
is meant to serve other functions, such as deterring biointrusion and frost-degradation. But according
to Energy Fuels' modelling, Layer 3 is essential for achieving a radon flux below 20 pCi/(m'z-sec).ts In
fact, Energy Fuels' radon-flux model predicts that Layer 4-the erosion-protection layer-is also
necessary to reduce radon-flux to 20 pCi/(m2-sec), at least for Cell 2.t6 Because both Layer 3 and
Layer 4 in the ET Cover serve the purpose of reducing radon-flux to 20 pCi/(m2-sec), they are both
part of the "final radon barrier" as that term is defined in Appendix A. As a result, milestones must be
established for their completion.
t'See Energy Fuels' Resp. at 29.
ta See Ex. 16 to the Trust's Comments at 2.
rs See Ex. 16 to The Trustt Comments at App. C,p.2 (showing an exit flux of 20.18 pCi(m2-sec) through
Layer 3, which is identified in the radon-flux model as "Layer 4l' i.e. the l07-cm thick "ET Cover").
t6 Id. (predicting the exit flux to fall to 20 pCi/(m'?-sec) only after accounting for all of the ET Cover's
layers, including the erosion-protection layer named "Layer 5" in the model).
Grand Canyon Trust's Sur-reply Comments
on the White Mesa Mill Radioactive Materials License Renewal
November 17,2017
The same is true of Layer 3 in the 1996 conventional cover. In modelling radon-attenuation from that
cover design, Energy Fuels included Layer 3-the 2-foot random fill layer-in addition to the l-foot
compacted clay layer.tT Because that layer also serves the purpose ofreducing radon flux below
20 pCi/(m'?-sec), it is also part of the "final radon barrier" under Appendix A and is subject to
Criterion 6As milestone requirements.
We accordingly request that the Division require Energy Fuels to amend Revised Section 6 of Plan
Revision 5.1 to convert the "schedule commitments" into milestones for placing Layers 3 and 4 of the
ET Cover and Layer 3 of the 1996 conventional cover. We also request, as explained under Item No. I 1
below that the milestones for completing these items be no later than seven years after final closure of
an impoundment begins.
7. Milestones for Non-Conventional Impoundments
Energy Fuels' Response:
e) Milestones not Required for Fnaporation Ponds
The milestones required under Criterion 6A(1) do not generally extend to evaporation ponds, because
they generally do not have a final radon barrier In the NRC Preamble, poge 28224, NRC sfafes:
Note, as discussed in EPA's statements of consideration for its amendment of 40 CFR
part 192 (at FR 3218i, lune 8, 1993 and reiterated at 58 FR 60354; November 15, 1993),
the reclamation of evaporation ponds may be dealt with separately from meeting the
expeditious radon cover requirements if deemed appropriate by the Commission or the
regulating Agreement State. This may be the case whether or not the evaporation pond
area is being used for continued disposal of byproduct material.
In our view, milestones need not be set for reclamation of evaporation ponds unless such reclamation is a
required step that needs to be done afier a conventional impoundment (which would require a radon
barrier) begins final closure and prior to placement of the fnal radon barrier. In most cases, reclamation
of evaporation ponds could be accomplished independently of conventional impoundments, so milestones
for evaporation ponds would not be required.
Further in EPA's preamble to its amendment of 40 CFR Part 192 (FR, Vol 58, No. .10& Iune 8, 1993) (the
"subpart D Preamble") (see Appendix 4), EPA states on pages 32183-i2184 that:
EPA does not intend that the expeditious radon cover requirement extend to areas where
evaporation ponds are located, even if on the pile itself, to the extent that such
evaporation pond is deemed by the implementing agencl (NRC or an afected Agreement
State) to be an appropriate aspect to the overall remedial programfor the particular site.
Rather, the evaporation pond area may be covered to control radon afier it is no longer
in use and ready for covering. EPA believes the overall public health interest in
comprehensively resolving the problems associated with each site is best served by
requiring that the radon cover be expeditiously installed in a manner that does not
require interruption of this aspect of remediation. Moreover, the ponds themselves serve
as an efective radon barrier. Thus, this decision is bolstered by the absence of any
evidence that there is a significant public health risk presented by the radon emissions
t7 Ex. 30 to the Trust's Comments at 4 and App. B, p. l.
Grand Canyon Trust's Sur-reply Comments November 17,2017
on the White Mesa Mill Radioactive Materials License Renewal
from these evaporation ponds during the period they are employed as part of the overall
remediation of the site. EPA believes that provided all other parts of the pile are covered
with the radon barrier, compliance with the 20 pCi/m2-s standard will result, and this
will be maintained by covering the evaporation pond area when it is no longer in use.
It should be noted, however, that 40 CFR 61.251(o) of EPAs reyised Subpart W regulations defines
"Reclamation Plan" to mean a plan detailing activities and milestones to accomplish reclamation of
tailings impoundments as well as the "removal and disposal of nonconventional impoundments, "which
includes evaporation ponds. It should also be noted that Subpart W provides that an approved
rechmation plan prepared and approved in accordance with 10 CFRPart 40, Appendix A is considered a
reclamation plan for purposes of Subpart W. EFRI is of the view that since an approved reclamation plan
that meets the requirements of Appendix A, satisfies the definition of "Reclamation PIan" in Subpart W,
and Appendix A does not require any milestones under Criterion 6A that do not relate to the placement
of a fnal radon barrier on a tailings impoundment, any closure requirements in the Reclamation PIan
relating to removal and diEosal of non-conventional impoundments need not be milestones.
Nevertheless, although not required, we have added milestones for the removal and disposal of non-
conventional impoundments to revised Section 6 of the Reclamation Plan. Although these milestones are
not milestones required under Criterion 6A(1), EFRI has committed in revised Section 6 that for purposes
of the Reclamation PIan they will be treated as milestones as required by Criterion 6A(1), and as a result
EFRI has committed that they will be subject to the provisions of Criterion 6A(2).
The Trust's Reply:
See our response to Item No. 1 above.
8. Seven-Year Closure Goal
Energy Fuels' Response:
fl m" Guiding Objective is to Complete the Final Radon Barrier Within Seyen Years of a Tailings
Imp oun dm ent C easin g Op er atio n s
TheMemorandum of Understanding (the'MOU") (see Appendix 5) Between EPA, NRC and The
State of Colorado, Texas, and Washington Concerning Clean Air Act Standards for Radon Releases
from Uranium Mill Tailings, Subparts T and W, 40 CFRPart 61, dated October 1991, which was entered
into in connection with the rescission of 40 CFR Part 61 Subpart T, states that:
EPA, NRC and afected Agreement States are entering into this MOU to ensure that owners
and operators of existing uranium mill tailings disposal sites licensed by the NRC, or the
affected Agreement States, who have ceased operation, efect emplacement of a final earthen
cover to limit radon emissions to a flux of no more than 20 pCi/m2/s, as expeditiously as
practicable consideringtechnologicalfeasibility. A guiding objective is that this occur to all
current disposal sites (see attachment A) by the end of 1997, and within seven years of
when the existing operating and standby sites cease operation. The final closure
requirement shall be enforceable by NRC or the afected Agreement States." (Emphasis
added).
The MOU also states that: NRC or the afected Agreement States will ensure that the schedules and
conditions for efecting final closure are Jlexible enough to contemplate technological feasibility and that
OI
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Grand Canyon Trust's Sur-reply Comments
on the White Mesa Mill Radioactive Materials License Renewal
November 17,2017
The Trust's Reply:
We dorlt dispute that a goal in amending Appendix A to include milestones was to ensure that the
final radon barrier was complete no later than seven years after final closure of an impoundment
begins. As Energy Fuels appears to acknowledge, EPA and NRC, however, plainly meant for the final
radon barrier to be built as quickly as possible considering technological feasibiliry with the seven-
year benchmark functioning as a maximum time limit, rather than a default for setting milestones.
EPAs preamble to its rulemaking rescinding 40 C.F.R. Part 61, Subpart T emphasizes this point:
The goal of the amendments to subpart D is for existing sites, or those that become
non-operational in the future, to achieve compliance as expeditiously as practicable
considering technological feasibility (including factors beyond the control of
licensees) within the time periods set forth in the MOU, including Attachment A
thereto, and for new sites to achieve compliance no later than seven years after
becoming non-operational.rs
Milestones should be set to impose deadlines that inspire expeditious closure of impoundments.
Because seven years reflects the maximum amount of time that EPA and NRC believed would be
necessary to close uranium-mill impoundments, we are skeptical that Energy Fuels' selection of a
seven-year timeframe for milestones in Revised Section 6 creates a schedule that ensures that
impoundments will be closed %s quickly as possible" considering techrplogical feasibility.'e We
accordingly urge the Division to independently scrutinize Energy Fuels'proposed milestones and
require that they be accelerated where, in the Division's judgment, tasks can be performed more
quickly than the milestones that Energy Fuels has proposed.
9. Reclamation-Schedule Flexibility
Energy Fuels' Response:
g) Schedules and Conditions for Efiecting Final Closure must be Flexible.
The MOU states that:
NRC or the afected Agreement States will ensure that the schedules and conditions for
efectingfinal closure are flexible enough to contemplate technological feasibility and that
cover emplacement of the tailings impoundments occurs as expeditiously as practicable
consideringboth short-term reductions in radon releases and long-term stability ofthe
uranium tailings.
In revised Section 6 of the Reclamation Plan, we have set the milestones and schedule commitments for
impoundments to be as frm as possible, while maintaining enough flexibility to contemplate technological
feasibility, with an outside date of seven years from commencement of final closure for placement of the
fnal radon barrier, in the case of conventional impoundments, as well as for removal and disposal, in the
case of nonconventional impoundments. In the case of conventional impoundments, we have retained
some Jlexibility to place Layer 2 (the final rqdon barrier) before or afier completion of dewatering because
18 National Emissions Standards for Hazardous Air Pollutants, 59 Fed. Reg. 36,280,36,285 (July 15, 199a).
'e See l0 C.F.R. Part 40, App. A (definition of "[a]s expeditiously as practicable considering technological
feasibility').
ll
Grand Canyon Trustt Sur-reply Comments November 17,2017
on the White Mesa Mill Radioactive Materials License Renewal
the weight of Layer 2 may help to speed up the dewatering in some circumstances, which would help to
expedite closure. In any event, Layer 2 (the final radon barrier) would be required to be placed within
seven years from commencement of fnal closure of the impoundment. We have also added Jlexibilrty b
add Layer 3 bejore or after completion of dewatering for the same reasons. We have added flexibility to
complete dewatering up to two years afier the final radon barrier is placed on the impoundment to allow
some time for any resulting settlement, and we have added flexibility to place Layer 4 on the
impoundment up to two lears after placement of Layer 3, also to allow some time for any resulting
settlement. None of this flexibility changes the seven-year milestone for completion of placement of the
fnal radon barrier. We believe this Jlexibility is necessary to allow for proper dewatering and settlement.
We have added some flexibility to the milestones for removal and disposal of each nonconventional
impoundment. We have set fve years qs the milestone to remove all freestanding liquids from the
impoundment. Net evaporation at the site is about 30 inches per year, not counting additional inflows
from area drainage into the cells that would occur during storm events. The depth of solutions in
evaporation ponds could exceed ffteen feet, which would require more than fve years to evaporate the
solutions if no other evaporative capacity is available at the site. We believe we should be able to manage
this five-year milestone by using any additional evaporative capacity that may be available at the site, or
by timing commencement of final closure of the impoundment such that evaporation within a fve-year
period after final closure begins is reasonable to expect. It should be noted that the primary protection of
Subpart W (requiring that aII sediments in the pond be covered by solution) will apply prior to the
impoundment commencing fnal closure, and for a good portion of the time it takes to evaporate the Jluids
(because solutions will continue to cover sediments during the evaporation process). We expect that the
liners, sediments and any contaminated soils can be removed within three years thereafter, but in any
event within a total elapsed time of seven years from the date final closure begins, and the milestone has
been set accordingly.
These schedules are tight and fall within the seven-year goal. We do not believe it is reasonable to attempt
to apply any further restrictions on the timing of any of the various steps. Although in some cases it may
be possible to complete a step in less than the allocated time period, if commenced during the beginning of
a construction season, it may take the full time period if commenced at a diferent time of the year. We
have taken these seasonal matters into account in setting all of the milestones and schedule commitments.
The Trustt Reply:
The 1991 memorandum of understanding among EPA, NRC, and several agreement states that led to
the addition of Appendix As expeditious-closure requirements does observe, as Energy Fuels notes,
that reclamation schedules must have enough flexibility to accommodate technological feasibility and
take account ofshort-term radon reductions and long-term stability.'zo
But this statement in the MOU does not supply standards for reclamation schedules that are
independent of the ensuing standards adopted in Appendix A. Rather, Appendix A establishes how
much flexibility is afforded for technological feasibility by carefully defining the phrases "[a]s
expeditiously as practicable considering technological feasibilityi' "Ia]vailable technologyi'and
"[f]actors beyond the control of the licensee."" It is plain from those standards that EPA and the
NRC's goal was to afford very little flexibility in the schedule for completing the final radon barrier.
Under Appendix A, the final radon barrier must be built "as quickly as possible" with little flexibility
for the limits of available technology or factors beyond the licensee's control.
20 Energy Fuels' Resp. at 33; App. 5 to Energy Fuels' Resp. at 2.
2t See l0 C.F.R. Part 40, App. A.
t2
Grand Canyon Trust's Sur-reply Comments November 17,2017
on the White Mesa Mill Radioactive Materials License Renewal
So long as Appendix As expeditious-closure requirements are being met, the Trust doesn't object in
theory to Energy Fuels'plan to retain some flexibility as to the timing for placing certain cover layers.
Whether Energy Fuels'proposed milestones in Revised Section 6 of Plan Revision 5.1 are'hs firm as
possible," however, is a matter of engineering judgment that the Trust urges the Division to
independently scrutinize.
10. Mill-Site Closure
Energy Fuels' Response:
h) Neither Subpart W, nor Appendix A, sets any timeframe or limit as to when an impoundment
(uthether conventional or non-conventional) must cease operation anil beginfnal closure.
As discussed above, 40 CPR Part 61 Subpart W provides protection against radon flux while an
impoundment is in operation. When the impoundment ceases operation and final closure begins, Subpart
W no longer applies, but Appendix A takes over. Because Criterion 6(1) of Appendix A requires that the
fnal radon barrier for a tailings impoundment must satisfy EPA's 20 pCi/m2/s standard, adequate
protections against radon flux are ensured once the final radon barrier is constructed. The problem that
40 CPR Part 61 Subpart T was intended to address was the gap between the time an impoundment ceases
operations, and Subpart W ceases to apply, and the time that the fnal radon barrier is completed under
Appendix A. The requirement in Criterion 6A(l) for milestones therefore aPplies only to ensure the timely
placement of the final radon barrier and for no other purpose, so as to make sure this gap is as short as
practicable considering technological feasibility. Neither Subpart W, nor Appendix A, sets any timeframe
or limit as to when an impoundment (whether conventional or nonconventional) must cease operation
and begin final closure. This is because the protections in Subpart W continue so long as an impoundment
is in operation, so there is no need to limit the period of operations. The milestones and targets only apply
after an impoundment ceases operations and Subpart W no longer aPPlies.
Subpart T applied to mill tailings "piles" that were no longer operational. The definition of "operational"
in Subpart T stated that A pile cannot be considered operational if it k flled to capacity or the mill it
accepts tailings from has been dismantled or otherwise decommissioned". Subpart T was challenged by a
number of partia, including the American Mining Congress and NRC on the basis that Subpart T was
unnecessarily burdensome and duplicative with NRC regulations, and because it was physically
impossible to come into compliance with Subpart Tin the time required. Subpart T was rescinded by EPA
in 1994 and the definition of 'bperational" was replaced with a definition of "operationi' and the concept
that an impoundment cannot be considered operational or in operation if it is filled to capacity or the mill
it accepts tailings from has been dismantled or otherwise decommissioned was eliminated. As a result,
after the rescission of Subpart T, there was no requirement for an impoundment to be deemed to be in
fnal closure just because the mill site may be in closure or decommissioned.
This has been confirmed by the NRC in the NRC Preamble, page 28228, where NRC stated that:
If Subpart T is rescinded, there will be no regulatory requirement for the tailings
impoundment to change from operational to non-operational status within any specifed
time after the mill ceases operation. The definition of "operational" in subpart T would
have restricted the continued use of the impoundment for extended periods after the
associated mill was decommissioned.
l3
Grand Canyon Trust's Sur-reply Comments
on the White Mesa Mill Radioactive Materials License Renewal
November 17,2017
The Trust's Reply:
We agree that Subpart W continues to apply to all impoundments that are in 'bperationi' and that the
expeditious-closure requirements in Appendix A apply when impoundments cease to be in operation.
We disagree, however, with Energy Fuels' argument that impoundments at the mill may remain in
'bperation" indefinitely after the mill closes.
In setting general standards under the Uranium Mill Tailings Radiation Control Act (UMTRCA) for
managing and disposing of uranium tailings, EPA has long "intended and expected expeditious
progress toward radon control once an active site ceased milling operations."22 When EPA adopted the
milestone requirements that NRC incorporated into Appendix A, EPA observed that: "The crux of
today's proposal is additional regulatory means to ensure expeditious and permanent control of radon
emissions from uranium mill tailings piles aftn active milling operations have ceased."23
This expectation is set out in Criterion 6 of Appendix A, which provides that'in disposing of waste
byproduct material, licensees shall place an earthen cover (or approved alternative) over tailings or
wastes at the end of milling operations. . .'.'24 It is also consistent with EPAs definition of ' phased
disposal" in Subpart W-the method of tailings disposal that Energy Fuels uses-which contemplates
using "lined impoundments which are filled and then immediately dried and covered to meet all
applicable Federal standards."2s Allowing impoundments at an otherwise decommissioned uranium
mill to stay open indefinitely to accept uranium blproduct material from sources other than the mill is
inconsistent with these regulatory provisions.
Added to that, EPAs rules in Subpart D and NRC's rules in Appendix A allow operators to seek,
though a license amendment, to discard blproduct material from other sources while an impoundment
is being closed, so long as doing so doesn't delay placement of the final radon barrier over the rest of
the impoundment.26 It would be anomalous to allow Energy Fuels to effectively bypass these
requirements by keeping impoundments in 'bperation' indefinitely.
We acknowledge, as Energy Fuels points out, that NRC in responding to comments on its 1993
amendments to Appendix A observed that rescinding Subpart T would eliminate any regulatory
requirement for taking impoundments out of operation when milling ceases.'7 Yet even if that is true,
it doesnt follow that the agencies intended to allow a decommissioned uranium mill to keep
impoundments in operation indefinitely, effectively turning the mill into a perpetual byproduct-
material disposal site. Put differently, even if there is no regulatory requirement speciffing a firm
deadline for commencing "final closure" of impoundments, one purpose of Appendix A is
nevertheless to ensure expeditious closure of impoundments'at the end of milling operations."28 The
Division should use its licensing authority to carry out that purpose.
We therefore believe that, even if Appendix A and Subpart W do not require impoundments to enter
final closure at the time the mill is decommissioned, the Division should impose that requirement in
22 Health and Environmental Standards for Uranium and Thorium Mill Tailings, 58 Fed. Reg.32,174.
32,178 (June 8, 1993).
23 Id. at32,176-77.
24 10 C.F.R. S Pt. 40, App.A,Criterion 6.
'zs 40 c.F.R. S 61.251.
26 l0 C.F.R. Part 40, App.A, Criterion 6A(3).
27 Energy Fuels: Resp. at 35.
28 l0 C.F.R. S Pt.40, App. A, Criterion 6.
14
Grand Canyon Trust's Sur-reply Comments
on the White Mesa Mill Radioactive Materials License Renewal
November 17,20L7
the mill's license to carry out the expeditious-closure purpose reflected in Appendix A and Subpart D.
We see two pathways for imposing that requirement. First, the Division could require final closure of
all operating impoundments to commence at the time that mill-site closure begins (as we requested in
our comments) and then authorize Energy Fuels to discard decommissioning materials in one or more
impoundments during the closure process under Criterion 6A(3). Second, the Division could allow
one impoundment to remain in operation until all mill facilities are demolished and buried in that
impoundment, at which point final closure of the final impoundment would commence.2e
Nevertheless, if the Division declines to do that, we request at a minimum that the Division add a
condition to Energy Fuels' radioactive materials license prohibiting the company from keeping
impoundments in operation after mill closure begins unless Energy Fuels receives approval to do so
from the Division through a license amendment, subject to public comment.
I l. Milestone Revisions [pp. 35-39 of Energy Fuels' Response]
Beginning in the middle of page 35 and ending at the bottom of page 39 of its response, Energy Fuels
addresses numerous comments that the Trust raised about reclamation deadlines. Rather than repeat
each of Energy Fuels' responses on these items and reply to them individually we address them
collectively here.
We are grateful that Energy Fuels revised Section 6 of the reclamation plan in response to our
comments on the matters addressed. We have only the following additional comments on these issues:
Revised Section 6 of the Reclamation Plan calls for dewatering to commence when re-contouring
is complete. It's our understanding that impoundment dewatering is initiated by turning on a
pump connected to each impoundment's slimes-drain network. Although we can see an argument
for delaying commencement of dewatering until after freestanding liquids evaporate from the
impoundment (to minimize recharge into the slimes drain),w€re plzzled by the plan to delay the
dewatering process until after re-contouring is complete. Absent a compelling justification for that
delay, we ask that the plan be revised to require dewatering to begin, at the latest, as soon as
freestanding liquids are removed from the impoundment.
As noted above. we believe milestones rather than schedule commitments must be established for
placing Layers 3 and 4 ofthe ET Cover and Layer 3 ofthe 1996 conventional cover ifthat cover is
built (although we re-iterate our comment that reverting to the 1996 conventional cover design
without updating that design should not occur). And we believe those milestones should require
placement of these additional layers, at the latest, within seven years after final closure begins. As
the Revised Section 6 now reads, placement ofLayer 3 on the ET cover could occur 9 years after
final closure begins if Layer 2 isnt placed until 7 years after final closure begins. Placement of
Layer 4 on the ET Cover could occur anywhere from 8 to I I years after final closure begins.
In our comments, we urged the Division to structure the schedule of milestones so that "the first
deadline starts running the moment that'final closure'begins, and the time limit for each
subsequent reclamation step is automatically triggered when the prior step is completed or the
deadline for the prior step passes, whichever occurs first."3o Put differently, as is reflected in the
table we included on page 19 of our comments, we sought milestones that imposed a deadline
2e As noted above, if an evaporation pond is necessary for overall site remediation-such as for
groundwater remediation-the Division could also license one to remain in operation for that purpose.
30 Trust's Comments at 18.
l)
Grand Canyon Trust's Sur-reply Comments November 17.2017
on the White Mesa Mill Radioactive Materials License Renewal
triggered by the prior reclamation step and a maximum deadline that applied under any
circumstance. In response, Energy Fuels has established only maximum deadlines in Revised
Section 6 of Plan Revision 5.1.
We recognize that Appendix A does not explicitly address this issue. But we continue to believe
that, for Energy Fuels to comply with Criterion 6As requirement to build the final radon barrier
"as expeditiously as practicable considering technological feasibilityi' milestones should have
deadlines that set both a maximum time limit for each reclamation task and a time limit that runs
from the completion of the prior task. If Energy Fuels completes a reclamation step early, the
schedule of milestones should require the company to promptly begin the next reclamation task to
ensure that construction ofthe final radon barrier proceeds "as quickly as possible"3r as required
by Appendix A.
o Again, we urge the Division to independently scrutinize Energy Fuels'proposed reclamation
milestones and schedule commitments to determine whether the deadlines are as tight as possible
consistent with Appendix As requirements.
12. Schedule Commitments for Vegetative Cover
Energy Fuels' Response:
As stated above, the milestones required under Criterion 6A do not include erosion protection barriers or
other features necessary for long-term control of the tailings. In the NRC Preamble, page 28227, NRC
stata that:
The final rule has been modified so that the terminology 'as expeditiously as practicable
considering technologicalfeasibility' is used only for emplacement of the final radon
barrier. A general timeliness standard for completing erosion protection features is
retained. Thus, it is clear that the licensee must complete these actions in a timely way
and that the NRC has the authority to take action if necessary in this regard. However,
the restrictive cost considerations specified for the completion of the final radon barrier
do not apply to decisions concerning the timeliness of completion of erosion protection
features. Instead, the more Jlexible, general cost considerations of the AEA (Section
8aa(1)) apply, (NRC 201sb)
Accordingly, revised Section 6 of the Reclamation Plan does not set milestones relating to vegetative cover.
Instead it sets schedule commitments for completion of those activities. As those schedule commitments
are not milestones required by Criterion 6A(1), the provisions of Criterion 6A(2) do not apply to those
schedule commitments. Rather EFRI is required to complete those activities in a timely way, and the
Director has the authority to take action if necessary in this regard.
The Trust's Reply:
We agree that establishing vegetation on the ET Cover is not proposed for the purpose of reducing
radon emissions to less than 20 pCi/(m'?-sec) and that Appendix A therefore does not mandate that a
milestone be established for that task (even though Energy Fuels initially proposed treating the
vegetative-cover deadline as a milestone).
3r See 10 C.F.R. Part 40, App. A (definition o6't[a]s expeditiously as practicable considering technological
feasibility").
16
Grand Canyon Trust's Sur-reply Comments
on the White Mesa Mill Radioactive Materials License Renewal
November 77.2017
However, we again ask that a deadline be established not only for seeding but for establishing
vegetative coverage and vegetative diversity in a way that meets the design criteria for the ET Cover (as
described in Appendix D to the Updated Tailings Cover Design Report).32 Simply seeding the ET
Cover should not end Energy Fuels' reclamation obligations, for establishing vegetation on the ET
Cover is essential to its long-term sustainability.
13. Mill-Closure Schedule and Sequential Impoundment Closure
Energy Fuels' Response:
See revised Section 6 of the Reclamation Plan, which addresses this concern.
As stated above, nothing in Appendix A or Subpart W sets a time limit for when an impoundment
(whether conventional or non-conventional) must cease operation and go into final closure, because
Subpart W continues to apply so long as the impoundment is in operation. The milestones required under
Criterion 6A only apply after the impoundment begins final closure, which is when Subpart W no longer
apPlies to the impoundment. They do not dictate when final closure begins.
Revised Section 6 of the Reclamation Plan sets out milestones relating to closure of each conyentional
impoundment and each non-conventional impoundment. Those milestones commence when the
impoundment begins final closure, regardless of whether that is prior to, during or after final closure of the
miII facility itself. It is expected that one or more impoundments will continue in operation during the
fnal mill closure process in order to receive decommissioning byproduct material.
The Trust's Reply:
We appreciate Energy Fuels' revisions to Section 6 to eliminate the requirement for submitting a
separate mill-closure schedule and to eliminate the possibility that impoundments could be closed
one-by-one. In regard to the question of whether impoundments may remain in operation after final
closure of the mill facility begins, see our response under Item No. 10 above.
14. Mill-Closure Milestones
Energy Fuels' Response:
See revised Section 6 of the Reclamation Plan, which addresses this concern.
It is incorrect to state that "when MiIl closure begins, it's necessarily true that 'final closure' of all operating
impoundments will begin." As stated above, Criterion 6A(1) applies to each nonoperating impoundment.
Neither Criterion 6A nor Subpart W dictates when an impoundment must begin fnal closure. Again, that
is because the protections of Subpart W continue while an impoundment is in operation, so the rules are
not concerned about when operations cease. They are only concerned about settingmilestones that
commence when each impoundment begins fnal closure, because the protections of Subpart W no longer
apply to each such impoundment.
In revised Section 6, appropriate milestones are set for completing the fnal radon barriers for all tailings
impoundments, which are tied to when each such impoundment ceases operation. It should be noted that,
32 See Ex. 16 to the Trust's Comments at App. D, particularly pp. D-30 to D-3 1.
t7
Grand Canyon Trustt Sur-reply Comments
on the White Mesa Mill Radioactive Materials License Renewal
November 17,2017
as the Grand Canyon Trust has pointed out above, a tailings impoundment is in operation so long as it is
receiving byproduct material for disposal. As all of the site decommissioning materials, windblown
materiaTs, ivaporation pond liners etc., must be disposed of into the Mill's remaining tailings
impoundmenfs, and su.ch materials are 11e.(2) byproduct material, one or both of the remaining tailings
impoundments continue in operation until all such materials are disposed of in the tailings
impoundments. The milestone for placing the final radon barrier on each remaining tailings
impoundment must therefore be tied to the day that each such impoundment ceases operations. In
aciordance with Subpart W a maximum of only two conventional impoundments will remain in
operation at any orce time. The milestones and targets in revised Section 6 of the Reclamation Plan set
milestones and targets that address these matters.
It is not uncommon for a licensed uranium mill to maintain an impoundment in operation indefnitely
afier the rest of the Mill is decommissioned, to perform licensed operations, such as to receive 11e.(2)
iyproduct material from In Situ Recovery operations for direct disposal. In those cases, Subpart W
continues to apply (which limits the number of impoundments that are in operation at any one time to
two or fewer), so long as the impoundment continues in operation. There is no reason to assume that all
impoundments cease operation upon commencement of Mill closure, anil as discussed above, they are
coisidered to remain in operation as long as they receive Mill decommissioningbyproduct material.
Further as discussed above, in the NRC Preamble, page 28228, NRC states that:
If subpart T is rescinded, there wiII be no regulatory requirement for the tailings
impoundment to change from operational to non-operational status within any specified
time after the mill ceases operation. The definition of "operational" in subpart T would
have restricted the continued use of the impoundment for extended periods afier the
associated mill was decommissioned.
See previous comment. Revised Section 6 sets out all milestones required under Criterion 6A(1) and
satisfies all requirements contemplated by Subpart W with respect to conventional and nonconventional
impoundments that have ceased operation. As Subpart W applies while an impoundment is in operation,
there is no requirement to dictate when an impoundment must cease operation and commence fnal
closure.
See the previous response. Nothing in Criterion 6A(1) or Subpart W dictates when an impoundment must
cease operations and go into fnal closure. Subpart W applies to each impoundment when it is in
operation, and the milestones required under Criterion 6A(1) commence when final closure of the
impoundment begins and Subpart W no longer applies. The purpose of this regulatory program is to
ensure that there is no unregulated gap in radon protection, not to shut down uranium mills or their
impoundments.
See the responses above. Milestones must be set for all non-operating tailings impoundments. A tailings
impoundment is in operation so long as it is receiving byproduct material, which for some or all of the
impoundments will continue throughout the Mill decommissioning process. Appropriate milestones have
been set in revised Section 6 of the Reclamation Plan, which commence when each impoundment ceases
operation, as required by Criterion 6A(1).
18
Grand Canyon Trust's Sur-reply Comments November 77,2077
on the White Mesa Mill Radioactive Materials License Renewal
In the preamble to the Subpart W rulemaking (FRVol. 82, No. 10 January 17, 2017) (the "Subpart W
Preamble"), EPA states at Page 5168 that:
In 10 CFR Part 40, Appendix A, NRC identifes a reclamation plan as applicable to
individual impoundments, while the closure plan is a more comprehensive document
that addresses all aspects of facility closure and decommissioning including any
necessary site remediation. A reclamation plan prepared and approved in accordance
with NRC requirements in 10 CFR Part 40, Appendix A, is considered a reclamation
plan for purposes of Subpart W. The reclamation plan may be incorporated into the
larger facility closure plan (Emphasis added).
On page 5171 of the Subpart W Preamble EPA states that:
Both 40 CFR 192.32(a)(3) and 10 CFR Part 40 Appendix A, Criterion 6(a) provide for the use of
impoundments,while they are undergoing closure. However, impoundments that are used to manage
uranium byproduct material or tailings generated during closure or remediation activities, while
remaining open to manage operational wastes, would continue to fall under Subpart W until they
formally enter the closure process and implement the approved reclamation plan for that impoundment.
(Emphask added).
Further, at page 5168 of the Subpart W Preamble, EPA stated: "[a]n impoundment remains "operating"
until it enters closure, even if it is not receiving newly-generated uranium byproduct material or tailings
from facility processing (79 FR 25404)."
Finally, at page 5166 of the Subpart W Preamble, EPA states that " ... [n]on-conventional impoundments
remain subject to the requirements of Subpart W until they enter final closure pursuant to an approved
reclamation phn for that impoundment, even if at some point in their operational life they are used for
the purpose of managing liquids from closure or remediation activities. " (Emphasis added).
It is clear from the foregoing that initiating Mill final closure does not initiate final closure of individual
impoundments. There is nothing in the regulatory regime that requires this, nor should there be, since
Subpart W continues until final closure of the impoundment begins, so there is no gap.
These matters are addressed in revised Section 6 to the Reclamation Plan.
Milestones are only applicable to placement of the final radon barrier on tailings impoundments after
they have ceased to be in operation. As stated above, in describing Criterion 6A in the NRC Preamble,
page 28225, NRC states that: "no deadlines are required to be established in the licenses beyond
completing the final radon barrier as a result of this rulemaking and that any other schedules established
in a license do not come under the specific provisions of paragraph (2) of Criterion 6A." ln the NRC
Preamble, page 28228, NRCfurther states that:
If subpart T is rescinded, there will be no regulatory requirement for the tailings
impoundment to change from operational to non-operational status within any specified
time afier the mill ceases operation. The definition of 'bperational" in subpart T would
have restricted the continued use of the impoundment for extended periods after the
associated mill was decommissioned.
l9
Grand Canyon Trust's Sur-reply Comments
on the White Mesa Mill Radioactive Materials License Renewal
November 17,2017
Further as Grand Canyon Trust has pointed out, a tailings impoundment is in operation so long as it is
receiving byproduct material, which will of necessity require that all or some of the impoundments must
continue in operation during the entire Mill decommissioning process. As Criterion 6A only requires
milestones to be applied after an impoundment ceases operation, the milestones required under Criterion
6A only apply once the impoundment ceases operations; they are not intended to set dates by which an
impoundment must cease operations.
The Trust's Reply:
See our reply under Item No. 10 above.
15. Establishing Deadlines in the Radioactive Materials License
Energy Fuels' Response:
The Mill's Reclamation Plan is incorporated by reference into the Mill's license, and is enforceable as if it
were stateil in the License. There is no need to include the milestones in the License per se.
The Trust's Reply:
We dont dispute that incorporating the reclamation plan into the mill's radioactive materials license
allows mandatory provisions of the plan, including milestones, to be enforced as if they were license
conditions. As a practical matter, however, incorporating the plan by reference obscures its
requirements by burying them in long documents that aren't necessarily easily accessible to the public.
Many of the 27 documents currently incorporated by reference in License Condition 13.1 are not
available to the public, and over time, the requirements of Reclamation Plan 5.1 may not be easily
accessible either.
Because Appendix A requires milestones to "be established as a condition of the individual licensei'33
we again request that the Plan Revision 5.1's milestones be stated explicitly as a condition of the mill's
individual license. That said, we suggest for sake of space that the license need not repeat Revised
Section 6 of Revision 5.1 in its entirety, but rather should: (l) include a condition requiring
compliance with the milestones and schedule commitments set out in Revised Section 6; and
(2) include the Summary Table of Milestones that Energy Fuels included in Revised Section 6.
16. Liner Design for the Cell I Disposal Area
Energy Fuels' Response:
The so-called "Cell 1 Disposal Area" is not something new that EFRI added to the Reclamation Plan
arbitrarily or to 'flout" applicable regulations. The Cell 1 Disposal Area is part of the Mill\ existing
license. It was reyiewed and approved by the NRC and was the subject of a specific license amendment
(Amendment 15) in luly 2000, which was suPPorted by a Technical Evaluation Report the "Technical
Evaluation Report") dated luly Li, 2000. (.
NRC's interpretation and implementation of its regulations in Appendix A are determinative. The Mill is
not directly regulated by EPA\ standards at 10 CFR Part 192. Those regulations merely set the standards
to be adopted by NRC in its regulatory program, and do not form a parallel regulatory regime applicable
33 l0 C.F.R. Part 40, App. A, Criterion 6A.
20
Grand Canyon Trust's Sur-reply Comments November 17.2017
on the White Mesa Mill Radioactive Materials License Renewal
to uranium mill licensees. The AEA grants the EPA authority only to promulgate "standards of general
application ..- from radiological and non-radiological hazards associated with the processing and with
the possession, transfer, and disposal of byproduct material, as defined in section 11e.(2) of thk Act (NRC
2015a), at sites at which ores are Processed primarily for their source material content or which are used
for the disposal of such byproduct material" (AEA 5275(b)0) NRC 2015c) (Emphasis added). In
contrast, Section 8 b) NRC 2015b), grants exclusive management authority to the Atomic Energy
Commission, now the NRC over 11e.(2) byproduct material "in such manner as the Commission deems
appropriate" $Aa1a51111 @RC 2015b) while conforming "with applicable general standards promulgated
by the Administrator of the Environmental Protection Agency under section 275" (584(a)(2D by
establishing its own requirements "which are, to the maximum extent practicable, at least comparable to
requirements ... regulated by the Administrator under the Solid Waste Disposal Act..." 684@)@) (NRC
201sb).
EPA\ standards were thus not intended to apply directly to uranium-milling operators. The purpose of this
is clear from the legislative history to avoid dual regulation by federal agencies (or their Agreement
States) by allocating specific and distinct, exclusive roles to each, and providing license applicants with
clear guidelines on which to rely. EPA confirmed this interpretation in the Subpart D Preamble (page
32184) by stating that:
EPA is constrained by Congress in the scope of the UMTRCA amendments which the
Agency may promulgate. EPA does not have the authority to providefor a legally
enforceable means of compelling compliance with the UMTRCA requirements that are
implemented by NRC ... EPAs role in amendingUMTRCA encompasses promulgating
generally applicable standqrds without specifiing any particular method of control. ...
UMTRCA gives NRC and the Agreement States the responsibility to implement and
enforceUMTRCA.
Nevertheless, even though the Cell 1 Disposal Area and its current design are an approved part of the
Mill's existing license, EFF .I is prepared to agree to revising the wording in the Reclamation Plan to state
that the liner system for the Cell 1 Disposal Area will have the same basic design as the liner system for
CelI 48, including the same basic leak detection system design, with the specific details of the design to be
submitted to the Director for approval prior to construction of the Cell I Disposal Area.
The Trust's Reply:
We are pleased that Energy Fuels has agreed to install a liner system for the Cell I Disposal Area that is
the same as that used for Cell 48, which we understand conforms to the requirements of 40 C.F.R.
S 264.221. We thank Energy Fuels for making that offer and urge the Division to require the company
to make this change to its reclamation plan. We also stand by all of our arguments that the liner for the
Cell I Disposal Area must complywith 40 C.F.R. S I92.32(a)(l). On that point, we note that, although
Energy Fuels disputed our argument that 40 C.F.R. Part 192, Subpart D applies directly to the mill's
operations (a point we dont concede), the company did not dispute our arguments that Appendix A,
Utah state law, and Subpart W all require installation of double liners with interstitial leak detection.a
v See Energy Fuels' Resp. at 47-48; see Trust's Comments at 34-36.
27
Grand Canyon Trust's Sur-reply Comments November 17,2017
on the White Mesa Mill Radioactive Materials License Renewal
Thank you again for the opportunity to reply to Energy Fuels' comments on these subjects. If you have any
questions or would like additional information, please let me know.
Sincerely,
foF*
Aaron M. Paul
StaffAttorney
Grand Canyon Trust
cc: Bret Randall, Assistant Attorney General, Utah Attorney General's Office
22