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HomeMy WebLinkAboutDRC-2014-006564 - 0901a068804b59a4John Hultquist <jhultquist@utah.gov> Div. of Radiation Control -- Draft Comment Responses 1 message Rusty Lundberg <rlundberg@utah.gov> DRC-2014-006564 Wed APr 16 2014 at 3 03 PM To: Scott Clow <sclow@utemountain.org> Cc: Brad Johnson <btjohnson@utah.gov>, Laura Lockhart <llockhart@utah.gov> Bcc: jhultquist@utah.gov Scott, Attached is the first of two documents. Attached to this' email is the document I have described in my previous emails. This document is a draft of our responses to comments related to the Dawn Mining alternate feed request. Please note that this document addresses comments that are general in nature and common to both the alternate feed request and the pending license renewal. We have categorized these general comments under six topical areas-all of which are important areas to the Ute Mountain Ute Tribe. Our responses to these general comments also apply to similar comments we received during the first public comment period for the license renewal. We believe providing this document serves to inform the Tribe of our point of view on these important areas. The second document contains the related attachments referenced in the draft comment response document. Because of its size, I am emailing it separately. We hope the documents will assist you in your preparation for ou upcoming meeting with Lt. Governor Cox. We are continuing to work on completing the entire response to comments for the Dawn Mining request. This will likely be completed in the next couple of weeks. We are also working to complete the environmental assessment we are performing as part of the license renewal and in response to comments we received during the initial comment period for the license renewal. Once completed, we will be opening a second public comment period for the license renewal. Prior to this comment period, we would like to meet with the Tribe to review and discuss the documents associated with the license renewal. Please let me know if you have any questions. Thank you, Rusty Rusty Lundberg, Director Utah Division of Radiation Control Phone: (801) 536^257 Fax: (801) 533-4097 rlundberg@utah.gov www.radiationcontrol.utah gov *rt Energy Fuels Dawn Mining General Responses.pdf " 216K Public Participation Summary Dawn Mining Alternate Feed Amendment Request Energy Fuels Resources [USA) Inc. (Energy Fuels) (Utah Radioactive Material License UT1900479) White Mesa Uranium Mill San Juan County, Utah Partial Draft - April 16, 2014 A. INTRODUCTION The White Mesa Mill is licensed by the Utah Division of Radiation Control (DRC) under State of Utah Radioactive Materials License No. UT1900479 (License or RML). This license and its amendments authorize Energy Fuels Resources (USA) Inc. (Energy Fuels or EFRI)1 to receive and process natural uranium-bearing ores and certain specified alternate feed materials, and possess byproduct material in the form of uranium waste tailings and other uranium byproduct waste generated by milling operations Energy Fuels submitted a License Amendment Request in a letter with supporting attachments dated April 27, 2011 to the DRC. The amendment request would allow Energy Fuels to receive and process up to a total of 4,500 tons (dry weight) of alternate feed from the Dawn Mining Corp. (DMC) Site (the Midnite Mine) located in Wellpinit, Washington This proposed alternate feed is referred to as the Uranium Material; commenters also referred to it as Midnite Mine Material. Uranium Material results from treatment of pumped groundwater and surface water at the Midnite Mine site's Waste Treatment Plant using either centrifuge or filter press technology. The DRC engaged the services of URS Corporation to review the Amendment Request. On September 3, 2013, the DRC began a forty-five day(s) public comment period for the proposed Amendment Request. The public notice was placed on the DRC's web page and an electronic mail message was sent out to stakeholders. In addition, the notice was placed in the Salt Lake Tribune, the Deseret News, and the San Juan Record, in accordance with Utah Admin. Code R313-17 Administrative Procedures. The DRC accepted comments until the close of business on October 18, 2013. The DRC made available to the public a draft License along with a Statement of Basis describing the License change(s) and Safety Evaluation Report (SER) describing the environmental analysis regarding the Amendment Request. In addition, documents related to the amendment request were available throughout the review process at the DRC's website at: http://www.radiationcontrol.utah.gov/Uranium_Mills/IUC/Denison_IUC/dawn_minin 1 The entity that owns the White Mesa Uranium Mill Site has changed or gone by different names over the life of the Mill, including International Uranium Corporation, Denison Mines Corp., and Energy Fuels Inc. To avoid confusion and unless otherwise specified, the name "Energy Fuels" will be used in this Public Participation Summary to refer to the owner of the White Mesa Mill. 1 As part of the public comment process, a public hearing took place on Thursday, October 9, 2013, from 2 pm to 5 pm in the DEQ board room, Room 1015, at the Utah Department of Environmental Quality, 195 North 1950 West, Salt Lake City Utah. The purpose of the public hearing was to take comments and include an opportunity for questions and answers, therefore meeting the requirements of 42 U.S.C § 2021(o)(3)(A) as described in DRC's letter to Deborah Jackson of the Nuclear Regulatory Commission dated August 6, 2013. Interested parties were asked to submit their questions to the Director at least 10 calendar days before the hearing. In addition, the DRC held a public meeting in Blanding, Utah, on October 16, 2013 to accept oral comments from local citizens. Transcripts of both public meetings were produced and are part of the record, and are included with this Public Participation Summary as Attachment 1. As a result of the public comment period, four sets of written comments were provided to the DRC. Written comments were received from Uranium Watch, Ute Mountain Ute Tribe, Grand Canyon Trust, and Kuipers & Associates (Engineering firm) on behalf of the Grand Canyon Trust. Comments received from Uranium Watch were submitted on behalf of Uranium Watch, Living Rivers, the Glen Canyon Group of the Sierra Club and the Information Network for Responsible Mining. In total, approximately 85 comments were received from the four entities. Comments are included as Attachment 2. The specific comments are provided below (italicized) along with the DRC's response to the comment. B. GENERAL RESPONSES The following general responses apply to many comments received. Several comments have suggested that there are environmental concerns at the White Mesa Mill that are not being adequately addressed and that should prevent this License Amendment. It is fair to say that DRC does not see the White Mesa Mill the same way these commenters do. DRC sees an industrial site with some typical problems that industrial sites have: historical contamination, expected and allowable levels of contaminants on site, and some limited evidence of off-site contamination but at levels that warrant further sampling and review to assure that standards are being met, not at levels that warrant emergency response. The picture of the White Mesa Mill as an operation with uncontrolled contamination is not in accord with the available evidence, and the commenters have not provided evidence to the contrary that will stand up to scrutiny. Although the comments about the Site as a whole should not be considered relevant to this limited licensing action (see General Response, Part 6), the following information is provided about environmental conditions at the White Mesa Mill. 2 General Response 1. Environmental Conditions and Regulatory Activities at Energy Fuels 1.1 Mill Description The White Mesa Uranium Mill processes natural uranium ores and alternate feeds for Uranium Oxide (U3O8). The tailings management system at the site is comprised of five cells. Five impoundment cells, each 40 acres (Cells 4A and 4B) or larger (Cells 1, 2, and 3), have been constructed and approved as tailings disposal cells, although, as described below, some have been used to dispose of tailings and are being used for other purposes. A map showing where the cells are located is included with this Public Participation Summary at Attachment 3. • Cell 1: Cell 1 was approved by the Nuclear Regulatory Commission (NRC) in June of 1981. It is used as an evaporation pond for process water, storm water, and water from groundwater pumping. This water is used (or re-used) by the Mill for its milling process. Tailings have never been disposed of in this cell. • Cell 2: Cell 2 was approved by NRC in May of 1980. It was no longer being used for disposal of tailings at the time DRC took over regulatory authority of the Mill in 2004. Closure began when disposal of tailings ended, and water is currently being removed from the cell in preparation for installation of a final cover. Dewatering must be completed before the cover is installed to minimize settlement that could impact the cover's ability to prevent precipitation infiltration and to contain radon. There is a 6" to 24" of interim clean soil cover on this cell. • Cell 3: Cell 3 was approved by NRC in September of 1982, and is one of the Mill's two operating cells. It is currently near capacity, but is still accepting byproduct material such as in situ leach waste for direct disposal, an activity authorized by the Mill's license. This material is currently going to Cell 3 rather than Cell 4A. Because byproduct material for direct disposal is delivered by truck rather than by slurry, there must be a minimum amount of tailings in a cell in order to protect the integrity of the cell's liner and other structural elements (e.g., the leak detection system). Cell 4A does not yet have enough tailings in it to allow trucks to drive on it safely, ensuring the liner is property protected. For that reason, and consistent with its License, Energy Fuels has indicated that it intends to continue to use Cell 3 for direct byproduct disposal until those materials can go into Cell 4A. All but approximately seventeen acres of Cell 3 are covered by a clean soil liner. • Cell 4A: Cell 4A was licensed by the NRC as a uranium tailings disposal cell in 1990. It was either unused or used for temporary storage of vanadium raffinate until, pursuant to DRC requirements, it was retrofitted with a new liner and leak detection system. The DRC approved that retrofitting in September 2008, and Cell 4A is now being used for disposal of tailings. 3 • Cell 4B: Cell 4B was licensed by DRC as a tailings cell in June of 2010. This cell receives process water that is then reused by the Mill. It has never been used for disposal of tailings. 1.2 Construction of Impoundment Cells Impoundment Cells 1, 2, and 3 were approved by the NRC. Each has a single polyvinyl chloride flexible membrane liner and each has an integral leak detection system, although the systems installed would not meet current Best Available Technology standards. (See General Response 1, Part 1.5.1 for more information about additional measures taken to address leak detection.) Cells 4A and 4B were approved by the DRC and are designed and constructed to meet improved design and construction standards under then-existing Best Available Technology requirements for liners and leak detection. Although the leak detection systems in the older cells would not meet current Best Available Technology, the system in Cell 1 has been demonstrated to work with leaking detected in June, 2010. The level of liquids in Cell 1, which holds process and stormwater liquids, was lowered to allow inspection and repair of the liner. When liquid levels were raised, the leak detection system again had fluids from the cell. A repeat repair, completed in the 2nd Quarter of 2012 was successful, a conclusion that has been verified by DRC during an on-site inspection. 1.3 Summary of Regulatory Activities at White Mesa Uranium Mill The White Mesa Mill was originally licensed by NRC in August, 1979. The License was transferred to DRC in August, 2004, after Utah obtained Agreement State status for lle.(2) byproduct material with NRC. Energy Fuels holds Radioactive Materials License No. UT1900479 (License) and Ground Water Discharge Permit No. UGW370004 (Permit)2 for the White Mesa Mill. Energy Fuels is also subject to a "Corrective Action Plan for Nitrate," dated December 12, 2012. A second corrective action plan to address chloroform ground water contamination is also expected to be completed in the near future. Activities under these plans are described further below. Energy Fuels Resources is required to conduct various kinds of environmental monitoring at the White Mesa Mill. The reports for these sampling events are made available to the public on the Energy Fuels webpage on the DRC website. The reports placed on the DRC website (http://www.radiationcontrol.utah.gov/Uranium_Mills/denison/index.htm) are as follows: • Quarterly Groundwater Monitoring Reports • Semi-Annual Effluent Monitoring Reports 2 The Permit is issued under the authority of the Utah Water Quality Act, Utah Code Ann. § 19-5, but is issued by the Director of the DRC as provided by Utah Code Ann. § 19-5- 102(6). 4 • Annual Tailings Wastewater Sampling Report • Annual Seeps and Springs Sampling Report • Quarterly Chloroform Monitoring Reports • Quarterly Nitrate Monitoring Reports Energy Fuels' ground water monitoring program is comprehensive in that it includes all of the 72 monitoring wells at the facility, as described above, although not every well is sampled every year. Samples are taken and analyzed for a large number of groundwater contaminants including heavy metals, nutrients, general chemistry analytes, radiologics, and volatile organic compounds (VOCs). Exceedances of standards found during this monitoring program have been addressed as described below. One of the ways that DRC oversees Energy Fuels' ground water monitoring program is by taking split samples, which began in May, 1999, before Utah became an Agreement State. DRC performs approximately 18 routine inspections at Energy Fuels each year, 14 more than it is obligated to do as an Agreement State and 17 more than NRC did when it regulated the facility. Inspections cover areas of health physics, ground water, and engineering. The Director has issued and resolved 36 Notices of Violation since 2004. Additional inspections will also be done as appropriate for reported incidents. Finally, DAQ inspects the facility as a "minor source" approximately once every three years. A comparison of activities under DRC's authorities and activities under NRC's authorities is included as Attachment 4. 1.4 Radioactive Materials License and Ground Water Permit: How They Work Together and Renewals Energy Fuels holds both a Radioactive Materials License and a Groundwater Discharge Permit for the White Mesa Mill. Although the contents of the License and Permit should be reviewed for a detailed understanding of which subject matters are handled under each regulatory vehicle, the following table provides a summary. 5 Table Radioactive Materials License No. UT1900479 (License) • Reclamation and decommissioning plans, including cell cover closure requirements • Requirements for alternate feeds • Surety requirements • Requirements for disposal of material and equipment • Limitations on disposal of in-situ leach waste and other lle.(2) disposal • Environmental sampling and reporting requirements (incorporates ground water permit requirements by reference) • Leak detection program for Cells 4A and 4B • Cell settlement monitoring Ground Water Discharge Permit No. UGW370004 (Permit) • Ground water compliance limits • Ground water monitoring requirements • Seep and spring monitoring requirements • Analytical procedures for samples • Reporting requirements • Cell, other impoundment and storage area groundwater- related performance and design standards • Tailings wastewater sampling The License was last renewed in March, 2002 by the NRC for a period of five years. Energy Fuels submitted a timely application for renewal on February 28, 2007. Under R313-22- 36(1), with a timely application the License continues in effect until the Director makes a final determination. A draft license renewal was issued for public comment on August 24, 2012. After consideration of the comments submitted, the Director determined that additional analysis was required and that new opportunities for public comment should be allowed so that interested commenters would be able to meet new statutory requirements for public comments associated with license challenges. See Utah Code Ann. § 19-1- 301.5(4). A new draft License is expected to be sent out for public notice and comment in the next two months. The Ground Water Permit was originally issued on March 8, 2005 by the DRC for a period of five years. Energy Fuels submitted a timely application for renewal of the Permit on September 1, 2009. Under R317-6-6.7, with a timely application the Permit continues in effect until the Director makes a final determination. DRC plans to issue a Draft Permit and Statement of Basis in the near future. 6 1.5 Ground Water Protection 1.5.1 General Under the License, the Permit, and the Corrective Action Plans, Energy Fuels has completed and is monitoring 72 ground water monitoring wells: • 27 monitoring wells placed to detect any leaks from the cells. Because the leak detection systems for Cells 1, 2, and 3 utilized older, less sophisticated technology, the DRC required eight new wells be installed adjacent to the tailings cells in 2005. These wells were to be used as a first line of defense to detect any tailings cell leakage. These supplemented the original seven required by NRC. When the DRC undertook oversight of the facility, it also began requiring Energy Fuels to sample on-site upgradient and far downgradient wells. Additional wells have been constructed associated with the construction of Cells 4A and 4B. • 33 monitoring wells associated with characterizing the chloroform groundwater contamination, as described below. • 12 monitoring wells associated with characterizing the nitrate groundwater contamination, as described below. The location for these monitoring wells can be seen in Attachment 3 to this Public Participation Summary. Sampling results are available on-line: http://www.radiationcontrol.utah.gov/Uranium_Mills/denison/index.htm The monitoring results for each well that is sampled are evaluated for compliance with standards for 38 different constituents and, regardless of whether standards are met, for trends in the data that may show a need for further action. Some of the commenters are particularly concerned about potential leakage from Cell 1. Four indicator parameters (chloride, uranium, fluoride, and sulfate) are used for the site to determine if there has been cell leakage. These constituents were chosen because they are the most mobile and are expected to be seen first with an upward trend. If Cell 1 were leaking, it is expected that all four parameters would show increasing trends within two years, based on Kd values and other transport characteristics for the contaminants and site. The time concentration plots for indicator parameters found in wells (MW-24 and MW-28) adjacent to Cell 1 are included as Attachment 5. Neither well shows upward trends for all indicator parameters. To understand ground water movement at the White Mesa Mill site, it is also important to know about the Wildlife Ponds which were constructed to lure wildlife away from tailings ponds. Energy Fuels reports that two of these unlined ponds were constructed in the early 1980's, and the third one was constructed in 1995. The water for the ponds was piped from Recapture Reservoir, north of Blanding City. In 2001, DRC required Energy Fuels to place a series of peizometers around the site to learn more about rising ground water elevation observed in monitoring well MW-4. That well showed an increase in ground water elevation of 24 feet from 1995 to 2001. This increase was caused by leaking from 7 the unlined Wildlife Ponds, the only possible source of such a substantial amount of water. This increase in the water table would likely have leached and mobilized natural uranium and other constituents as a result of new saturation of zones beneath the site that had previously been unsaturated. It could also have mobilized contaminants in and around the wildlife ponds themselves. Both of these results were discussed in the University of Utah Study described in General Response, Part 1.5.5 and are consistent with well samples. The ground water head elevation continued to rise in well MW-4 until the Mill drained the wildlife ponds in 2011. 1.5.2 Chloroform Plume Corrective Action During a DRC split sampling event in May, 1999, excess chloroform concentrations were discovered in monitoring well MW-4, which is located along the eastern margin of the site. Because these concentrations were above the Utah Ground Water Quality Standard of 70 ug/L, the DRC initiated enforcement action against Energy Fuels on August 23,1999 by issuing a Ground Water Corrective Action Order. The Order required completion of: 1] a contaminant investigation report to define and find boundaries for the contaminant plume, and 2) a groundwater corrective action plan to clean it up. Twenty new monitoring wells (since increased to 33 wells) were installed at the site as part of the investigation, and monitoring showed a chloroform plume. Other VOC contaminants associated with chloroform have also been detected in these samples. A map showing the location of the chloroform plume, as determined by evaluating sampling results, is included as Attachment 6 to this Public Participation Summary. Maps showing ground water direction, both current and recent past, are included as Attachment 7. The Director ultimately agreed with Energy Fuels that the source of the contamination was most likely to be laboratory wastewater disposal activities. Historically, laboratory waste was sent to sewage leach fields. The Director's determination that the laboratory wastewater sent to sewage leach fields, and not leaking from tailings cells, was the most likely source of the chloroform plume was based on: • The location of the highest levels of chloroform contamination is at or near the sewage leach fields; • The contaminant plume is upgradient or cross-gradient from the tailings cells; • Monitoring wells that are downgradient from the tailings cells do not show chloroform contamination; and • As described below, the remediation program has been effective in reducing contaminant concentrations, indicating that there is no continuous source for the contaminants, as would be the case if the cells were leaking. As with every ground water corrective action, the corrective action plan is developed based on assumptions about the source (assumptions that in this case are based on the evidence 8 cited above), and those assumptions are tested continuously with ground water monitoring as corrective action proceeds. If the results of remediation conflict with the assumptions, the DRC will evaluate the data to determine whether the matter will be reopened. In this case, the monitoring results support the assumptions made about the source. Energy Fuels began in April, 2003 to pump contaminated groundwater and place it into Cell 1, where the water is either evaporated or used by Energy Fuels in its milling process. Groundwater monitoring results show this initial remediation effort has been effective as shown in the table below. Table 2 Chloroform plume monitoring well MW-4 TW4-1 TW4-4 TW4-11 TW4-6 Date of Highest Sampling with Chloroform Highest Concentration, Concentration ug/L 05-Aug 3,500 05-May 3,080 05-Aug 3,200 05-Mar 4,400 10-Feb 1000 Most Recent (9/13) Chloroform Concentration, ug/L 1,520 1,150 1,380 865 5.93 Percent Decrease from Highest to Current Chloroform Concentration 56.57% 62.66% 56.88% 80.34% 99.41% Reduction of contaminant concentrations indicates both that the pumping program is working and that there is no continuous source for the contaminants, as would be the case if the cells were leaking. A final corrective action plan has been proposed by Energy Fuels, but DRC has requested changes to the proposed plan. When a draft corrective action plan is approved by the Director, it will be subject to public comment. A public meeting will also be held to give the public a chance to comment on the proposed path forward. The plan is expected to be released for public comment shortly; in the meantime, corrective action is continuing. Once DRC accepts a revised plan as a draft, the revised plan will be subject to public notice and comment. The final plan is expected to require that pumping and monitoring continue. 1.5.3 Nitrate Plume Corrective Action During a review of the Energy Fuels April 30, 2008 New Wells Background Report and other Energy Fuels reports, Nitrate + Nitrite (as N) (hereafter Nitrate) concentrations were observed above the Utah Ground Water Quality Standard (10 mg/L) in five monitoring wells in the mill site area. 9 After the Nitrate Plume was identified and the information was shared with Energy Fuels, the Executive Secretary and Energy Fuels entered into a January 28, 2009 Stipulated Consent Agreement that required Energy Fuels to complete a Contaminant Investigation Report to determine the potential sources of the Nitrate contamination. Nineteen additional wells were installed to determine the extent of the contamination. A map showing the location of the Nitrate Plume, as determined by evaluating sampling results, is included as Attachment 8 to this Public Participation Summary. Maps showing ground water direction, both current and recent past, are included as Attachment 7. Energy Fuels has submitted two reports to DRC. The reports identify the extent of the Nitrate plume but Energy Fuels and DRC disagreed about what the reports indicated about the likely source of the plume. Energy Fuels does not believe that the results adequately demonstrated an on-site source. DRC believes that the reports provide sufficient evidence to conclude that the Ammonium Sulfate Crystal tank on the Mill site is the primary or sole source of the plume. The Director's bases for this preliminary determination are: • The location of the highest levels of contamination at or downgradient from the tanks; • The contaminant plume is upgradient or cross-gradient from the tailings cells, demonstrating that the tailings cells are not contributing to the contamination; and • Monitoring wells that are downgradient from the tailings cells do show nitrate, but not in concentrations above standards or in increasing trends. Nitrate occurs naturally in ground water, so its presence in concentrations below standards is not considered an indication of a problem. Although Energy Fuels did not agree with that analysis, it did agree to implement a corrective action plan to clean up the plume. Energy Fuels completed and submitted the Nitrate Corrective Action Plan to the DRC on May 7, 2012. The Corrective Action Plan was approved following a public comment period, and was incorporated into a December 12, 2012 Stipulation and Consent Order, Docket Number UGW12-04. This approval is subject to conditions, stipulated penalties and timelines outlined in the Stipulation and Consent Order. The remediation plan requires Energy Fuels to pump the groundwater and treat it by evaporation and/or use as process water. Pumping under the remediation plan began in January, 2013. It is too early in the remediation process to determine whether there are trends in ground water monitoring results that are responsive to the pumping. As with every ground water corrective action, the corrective action plan is developed based on assumptions about the source (assumptions that in this case are based on the evidence cited above), and those assumptions are tested continuously with ground water monitoring as corrective action proceeds. If the results of CAP implementation conflict with the assumptions, the DRC will evaluate the data to determine whether the matter will be reopened. 10 1.5.4 Monitoring Well MW-20 and MW-22 Monitoring wells MW-20 and MW-22 were installed in 1994 and are located at a distance of more than % mile and one mile south of the tailings cells, respectively. When the State of Utah began oversight of the Mill in August 2004, there was no monitoring data for these wells. The DRC required monitoring in a March 17, 2008 Permit modification. The Ute Mountain Ute Tribe has commented that these two wells should be treated as points of compliance. When a well is specified as a point of compliance, it means that if there is any exceedance of a compliance limit, the Licensee must perform an assessment of the sources, extent and potential dispersion of the contamination, and an evaluation of potential remedial action to restore and maintain ground water quality to insure that Permit limits will not be exceeded at the compliance monitoring point. In order to determine whether these two wells should be considered points of compliance, DRC required Energy Fuels to submit a report with information about background groundwater quality for the wells and groundwater velocities in the vicinity of wells MW- 20 and MW-22. Based on this report, submitted on June 1, 2012, the Director determined that there was not sufficient information to deem the monitoring wells as points of compliance wells. This determination was based on: • The distance between monitoring wells MW-20 and MW-22 and the nearest tailings impoundment. MW-20 is about three quarters of a mile away and MW-22 is about a mile away and cross gradient from the downgradient edge of Cell 4A making it unlikely that groundwater quality in samples from these wells today has been influenced by potential tailings cell seepage. • The calculated average linear groundwater velocities for MW-20 and MW-22 of 0.33 feet per year (ft/yr) and 0.43 ft/yr, respectively. Therefore, it would take several thousand years before wastewater from the tailings cells could impact wells MW-20 and MW-22. This also means that any exceedances in the two wells would likely be attributable to another source. • The presence of two other far-downgradient monitoring wells (MW-3 and MW-3A) between MW-20 and the nearest tailings cell. Results from these two monitoring wells located near the tailings cells would show evidence of any leakage before MW- 20 and MW-22. Monitoring at MW-20 and MW-22 have showed some exceedances of standards, mostly for uranium. DRC was concerned that these observations could be related to tailings cell leakage. The Study described in Part 1.5.5 of this General Response was conducted to answer this question; for the reasons described in that section, the evidence shows that the tailings cells are not impacting the wells. Monitoring at the wells shows that there are constituents present at levels greater than standards. These results will continue to be monitored for concentrations and trends but DRC is not requiring any further action at this time for these reasons: • The evidence shows that the increased concentrations of constituents are not the result of tailings leakage (see General Response, Parts 1.5.5 and 1.5.6). 11 • The best explanations that fits the evidence are groundwater has become acidic as a result of pyrite leaching, or that the increased water table caused other constituents to leach and mobilize. • Three out of the four indicator parameters show a decreasing trend, suggesting that the source of the contamination is not continuing. 1.5.5 University of Utah Study of Source of Elevated Metal Concentrations in Monitoring Wells When the DRC began oversight of the Mill, it noted that ground water monitoring had showed elevated concentrations of metals, primarily uranium, in wells MW-3, MW-3A, MW- 14, MW-15, MW-22 on the Mill site. The DRC was concerned about whether the observations meant that tailings cells were leaking. To address its concerns, the DRC commissioned the University of Utah to investigate in July 2007. The University completed its study and published a report in May 2008 (2008 University Report), available here: http://www.radiationcontrol.utah.gov/Uranium_Mills/IUC/uofu_gwifstudy/index.html After review of the 2008 University Report, the DRC determined that downgradient wells with elevated total uranium concentrations (including well MW-22) were not being impacted by leaking tailings cells. This conclusion was based on at least three lines of isotopic evidence: 1. Tritium Signature. Wells MW-3, MW-3A, MW-14, MW-15, MW-22 had tritium signatures in groundwater at or below the limit of detection of 0.3 Tritium Units (2008 University Report p. 26). These values are more than an order of magnitude below the corresponding surface water results found in either the tailings cells or the wildlife ponds. This means that the groundwater in these five downgradient wells is older than water in the tailings cells, and is of a different origin than the tailings wastewater. 2. Stable Isotopes of Deuterium and Oxygen-18 in Water. The Deuterium and Oxygen-18 content of the groundwater matrix and tailings wastewater matrix was tested in all of the water sources studied. The 2008 University Report results showed that wells MW- 3, MW-3A, MW-14, MW-15, and MW-22, all downgradient wells with elevated uranium concentrations, had Deuterium and Oxygen-18 signatures that were almost twice as negative as any of the surface water results. (2008 University Report, p. 42.) This shows that groundwater in these downgradient wells had a different geochemical origin than the tailings cell wastewater. 3. Stable Isotopes on Dissolved Sulfate. The University Study evaluated two stable isotopes found on sulfate minerals dissolved in the water samples, Oxygen-18 and Sulfur-34. The evaluation showed that the sulfate solutes in groundwater from downgradient wells MW-3, MW-3A, MW-14, MW-15, and MW-22 had a different isotopic signature than the sulfate minerals dissolved in the tailings wastewater. In the case of Oxygen-18 on sulfate, the downgradient wells showed more negative values than the tailings cells wastewater. For Sulfur-34, the results were inversed, with 12 groundwater showing more positive values than the negative values seen in the tailings wastewater. (2008 University Report p. 46.) This shows that the sulfate dissolved in the downgradient wells, with elevated uranium concentrations, has a different origin than the tailings wastewater. In summary, the University Study concluded that wells with high concentrations of metals (MW-3, MW-14, MW-15, MW-18, and MW-22) bear very different isotopic fingerprints than those of the surface water sites (e.g. wildlife ponds, and tailings cells) (2008 University Report p. 58). Regarding uranium concentrations in well MW-22, the University Study stated that "...it does not appear that the elevated uranium values are the result of leakage from tailings cells...." (2008 University Report p. 45). The 2008 University Report further theorized that the cause of the increasing contaminant concentrations on the site was artificial recharge from wildlife ponds constructed in 1995, described in Part 1.5.1. This recharge likely leached and mobilized natural uranium and other constituents as a result of new saturation of zones beneath the site that had previously been unsaturated. The Mill drained the wildlife ponds in 2011. 1.5.6 Decreased pH The DRC's review of Energy Fuels' 2010 quarterly ground water monitoring data showed acidity (pH) in ground water at levels that were out of compliance for several monitoring wells. In May 2011, DRC issued a Notice of Violation and Order requiring Energy Fuels to do source assessment and submit revised statistics for those wells. Energy Fuels responded initially by presenting additional information to DRC showing that pH decreasing (i.e., more acidic) trends appeared to be a site-wide occurrence, observable in monitoring wells upgradient, downgradient, and crossgradient of the Mill. This showed that there was likely a regional root cause. It could also indicate that other ground water parameters that were out of compliance, e.g. metals, may be attributed to increased leaching as a result of decreases in pH, and thus also attributable to the root cause. Based on this additional information, DRC extended the time schedule for the pH statistical evaluation in order to allow Energy Fuels to include a plan to evaluate the root cause of the site-wide decreasing trends in pH. Energy Fuels subsequently submitted the following: • A Source Assessment Report, White Mesa Uranium Mill (October 10, 2012), prepared by Intera Geosciences & Engineering (Intera). This report provided source assessment study of parameter exceedances, not including pH. It provided statistical analysis of data. • A pH Report, White Mesa Uranium Mill (November 9, 2012), prepared by Intera. This report provided source assessment study for monitoring wells that are out of compliance for pH. 13 • An Investigation of Pyrite in the Perched Zone White Mesa Uranium Mill Site (December 7, 2012), prepared by Hydro Geo Chem, Inc. This report provides findings of a study to support the regional geochemical process explaining decreasing pH trends at monitoring wells. The study analyzed quantities of iron pyrite (from monitoring well cores and cuttings) and models of dissolution in the Burro Canyon Formation. Based on its review of the reports, DRC agreed preliminarily that the evidence supported a conclusion that dissolution of pyrite is likely a significant root cause for area-wide pH decreasing trends.3 Like all determinations about sources of ground water contamination, this explanation will continue to be evaluated through analysis of trends in ground water monitoring results. If results are obtained that are not consistent with this explanation, the DRC will review the data to determine whether the matter will be reopened. The Director's preliminary determination will be subject to notice and comment during a Permit modification proceeding to increase the affected ground water concentration limits. 1.5.7 Deep water supply well WW-2 Deep water supply well WW-2 is installed in the Navajo Sandstone aquifer. In the process of writing the original groundwater permit for the site, DRC staff reviewed well construction as-built drawing for the wells on site. DRC staff found that the construction of deep water supply well WW-2 appeared to be inadequate, in that it failed to show an annular seal that would isolate the deep confined aquifer from the shallow unconfined aquifer. Energy Fuels committed in January, 2010 to verify the well casing and annular seal integrity of well WW-2 and agreed to remediate, if needed. On January 24, 2012 Energy Fuels submitted an investigation report for well WW-2. DRC review determined that the findings of the report were inconclusive to prove that well WW-2's well casing and annular seal have physical and hydraulic integrity. Because well WW-2 is a deep water supply well and the water in the well could be used for drinking water, the DRC met with Utah Division of Drinking Water (DDW). DRC learned that DDW requires Energy Fuels to sample the well and submit the results to DDW. If any of these constituents sampled exceed a maximum contaminant level or if there is any detectable concentrations of volatile organic compounds observed, DDW will require Energy Fuels to implement remedial action. 3 There is also another theory that was proposed by Energy Fuels that DRC will consider as it reviews future monitoring results. Not long before the site-wide decreases in pH were seen, Energy Fuels redeveloped every well on the Mill property. Redevelopment pumping can introduce oxygen into the ground water, and oxygen will also decrease pH. The evidence that supports this theory is the short period between well redevelopment and the beginning of the decreasing trend for pH. Well development and pyrite leaching could both have been factors in creating the site-wide decreasing trend seen for pH. 14 The DRC Director determined that DRC would not pursue further action on WW-2. This determination was based on the following: • Well WW-2 is located upgradient of the tailings cells and the Chloroform and Nitrate plumes; therefore, it is unlikely groundwater in this well has been affected or will be affected by these potential sources. • Well WW-2 currently provides the Mill with water for eye wash stations and showers, is pumped several times a day, and yields about 160 gallons per minute. The deeper confined aquifer is protected due to the artesian conditions in the confined aquifer and the repeated removal of water from well WW-2. This active pumping will deliver any potential contaminants back to the ground surface for use in the Mill operations. • Well WW-2 is regulated by the DDW. Energy Fuels is required to sample the well and submit the results to DDW. The DDW has informed the DRC that if any samples exceed standards for any constituent or if there is any detectable concentrations of VOCs observed, the DDW will enforce remedial action. 1.6 Surface Water Energy Fuels is required by its Ground Water Discharge Permit to sample surface water locations (Ruin Spring, Westwater Seep, Cottonwood Spring, and Entrance Spring) near the White Mesa Mill on an annual basis. Sampling in these locations began in 2009 and sampling results for each location have been below Utah Drinking water standards, with the exception of the 2013 uranium sample in Entrance Spring. See General Response Number 2, Part 2.4 for more information. There is essentially no surface water on the White Mesa Mill site itself, except stormwater. A copy of a 2013 EPA inspection report is included as Attachment 10. The Report notes "no significant findings" (violations), but does recommend that the "Stormwater Best Management Practices Plan be updated to include the sophisticated stormwater diversion efforts made at the site to control stormwater that has come into contact with ore materials as well as the clean stormwater diversion practices on site." 1.7 Airborne Radionuclides and Dust The White Mesa Mill has five high-volume continuous air sampling stations around the site, as required by its License. Energy Fuels analyzes results from those stations and submits reports to the DRC on a semi-annual basis. Effluent monitoring results are compared to Effluent Concentration Limits established in the License and have been found well below those limits. The following table summarizes recent information from the data results provided here: http://www.radiationcontrol.utah.gov/Uranium_Mills/denison/effluent_rpt.htm. 15 Table 3. Air Effluent Concentrations Summary Year 1st HalfSemi- Annual 2nd HalfSemi- Annual ALARA Goal 2009 < 10% <8% < 25% 2010 < 10% < 10% < 25% 2011 <8% <8% < 25% 2012 < 16% < 20% < 25% 2013 <9% <6% < 25% Five Environmental Stations analyze particulate samples for Uranium, Radium 226, Thorium 230, and Lead 210. All results are less than percent provided in the table. The Effluent Concentration Limits established in the License are derived from on Tables 1 and 2, Appendix B, 10 CFR Part 20. See also General Response, Part 2.2 and, for information specific to the Uranium Materials, Response # 16. 1.8 Air Quality Minor Source Oversight The White Mesa Mill is a minor source under Utah Air Quality rules. The DAQ approval order establishes a number of requirements: • It limits Energy Fuels to 720,720 tons of ore processing; • Limits on fuel consumption for the two dryers of 267,960 MMBtu heat input; • Limits on the superior boiler of 220,752 MMBtu heat input; • Visible emission limitations on ore loading areas (15% opacity); • Visible emission limitations on the vanadium circuit (15% opacity); • Visible emission limitations on baghouses and boilers (10% opacity); • Visible emission limitations on all other points (20% opacity); • Stack testing limits for PM10 on the vanadium circuit scrubber stacks and the yellowcake dryer stacks; • Requirements that Energy Fuels use only propane or liquid natural gas in the dryers, calciner, furnaces and boilers; • Numerous requirements to minimize fugitive dust from unpaved operational areas, haul roads and storage piles; • Requirements that the ore grizzly is be enclosed on 3 sides and have water sprays to minimize fugitive dust; • Requirements for minimization of fugitive dust from the tailings retention areas. DAQ also oversees the application of NSPS Subpart Dc, which applies to Energy Fuels' boiler. 16 As one of approximately 1,300 "minor sources" in Utah, DAQ is required pursuant to its EPA delegation under the Clean Air Act to inspect the White Mesa Mill once every five years. DAQ has been able to inspect the facility once every three years, however. General Response 2. US Geological Survey Report Many of the comment received rely on a 2011 U.S. Geological Survey Report (USGS Report). See http://pubs.usgs.gov/sir/2011/5231/. Following is a response to the most significant issues raised in that report. 2.1 Off-site Particulates: Regulatory Background Many of the comments received assume that it is illegal or unsafe for any contaminants to blow from the Mill site to off-site areas. Completely eliminating blowing contaminants is not realistic for an industrial facility and it is not the regulatory standard. R313-15- 301(l)(a) and (b) establish the standard: (1) Each licensee or registrant shall conduct operations so that: (a) The total effective dose equivalent to individual members of the public from the licensed or registered operation does not exceed one mSv (0.1 rem) in a year, exclusive of the dose contributions from background radiation, from any medical administration the individual has received, from exposure to individuals administered radioactive material and released, under Rule R313- 32 (incorporating 10 CFR 35.75 by reference), from voluntary participation in medical research programs, and from the licensee's or registrant's disposal of radioactive material into sanitary sewerage in accordance with Section R313- 15-1003; and (b) The dose in any unrestricted area from external sources, exclusive of the dose contributions from patients administered radioactive material and released in accordance with Rule R313-32 (incorporating 10 CFR 35.75 by reference), does not exceed 0.02 mSv (0.002 rem) in any one hour 2.2 Sediment Results The USGS Report identifies seven off-site sediment samples that have uranium concentrations that are in excess of local background concentrations determined by the USGS. All of those samples were taken in areas northeast of the Mill site. (USGS Report, Figure 33.) Analytical results for uranium for those samples are listed in Table 4. As also indicated in Table 4, USGS performed statistical analyses on those sample results and determined that four of those samples could be attributed to "natural weathering" rather than "ore migration." 17 TABLE 4: Off-Site Sediment Samples that Exceed Highest Uranium Background Level* Sample Site Caused by "Ore Migration" or "Natural Weathering"** U (ppm) *** V (ppm) *** MW2-S2A Ore Migration 6.6 73 MW2-S3A Ore Migration 5.9 73 MW2-S4A Natural Weathering 5.7 71 MW2-S5A Ore Migration 4.9 79 MW2-S7A Natural Weathering 3.7 58 MW2-S8A Natural Weathering 3.9 66 MW2-S9A Natural Weathering 3.6 60 * See USGS Report, Figure 33. Highest background level is 3.6 ppm, from location WMS-32; see USGS Report, Figure 31 for map of location. ** See USGS Report, Figure 38. *** Values are from USGS Report, Appendix 2, p. 110. One other site with analytical results below background levels was also identified as having uranium that came from "ore migration" rather than "natural weathering." For that site, WM2-S10A, the analytical results show 2.6 ppm Uranium and 56 ppm Vanadium. These results do show that additional sampling and analysis is appropriate to determine whether the requirements outlined in Part 2.1 are being met. That additional study should also address at least the following: • Appropriate background levels. USGS's Study was similar to a screening study and three background samples are appropriate for that purpose. For regulatory purposes, we would generally require more background samples in order to ensure that the area has been appropriately characterized. The appropriate background level would have to be selected after considering the range and variation of the background sample results, and also after consideration of the relevance of background concentrations established during the National Uranium Resource Evaluation program. • Additional sampling and analysis for better characterization. Where there is evidence of off-site contamination, seven samples would not ordinarily be considered a sufficient number of samples to characterize that contamination. Additionally, the nature of the uranium (e.g., whether it is present alone or with daughter products) will affect the analysis. • Whether contamination is continuing. Practices at the Mill have changed since the site opened as an ore station in the late 1970's. Particulates collected at air effluent sampling sites show that there is currently very little off-site migration of air effluent, suggesting that contamination may be from historical rather than current 18 practices. See General Response, Part 1.7. New sampling locations are being proposed to be added to further assure that conclusion is accurate. • The source of the contamination. To be effective, a regulatory response must address the source of contamination. If contamination is continuing from the Mill site, it could be from wind-blown particulates from the ore pad or the tailings cells, or from stack emissions. DRC would also want to consider whether the USGS's determination that most of the exceedances over background resulted from "natural weathering" rather than "ore migration" continues to makes sense in the light of additional sampling information. • The actual and potential uses of the affected off-site area. Understanding use is an important component of evaluating risk. In this Part 2.2, the risks have been compared to EPA's residential risk screening levels, although there are no residents in that area. Some of the comments requested that licensing activity should be held up until these questions are resolved. DRC has evaluated these requests and concluded that, while additional sampling and analysis is appropriate, it is not appropriate to put a moratorium on additional licensing actions at this time. Until the additional sampling and analysis described above is completed, the data is too limited and does not support such a significant regulatory action. As described below, the sample results are also not at levels that warrant immediate action. Although the dose analyses specified in Part 2.1 of this response are used to determine regulatory compliance, that information will not be available until additional analysis is done as described in this Part 2.3. In the meantime, DRC has evaluated sample results against guidance used by EPA to determine whether additional, immediate action is warranted at this time. Specifically, it has looked at the following results from the USGS Report: • The value of all of the uranium samples ranges from 2.6 ppm (WM2-S10A) to 6.6 ppm (MW2-S2A). This includes samples that are below background and samples that USGS determined were the result of "natural weathering" rather than "ore migration." • The value of all of the vanadium samples ranges from 56 ppm (WM2-S10A) to 79 ppm (MW2-S5A). Residential soil screening levels EPA has established screening levels for residential soils for hundreds of contaminants based on specified exposure assumptions that EPA determined were reasonable for a residential scenario. Levels at or below EPA screening levels are considered to be "no action" levels - levels where impacts are very unlikely to be seen. For cancer risks, levels between "no action" levels and 100 times "no action" levels are considered to warrant 19 further study to determine whether the levels present result in a significant risk, based on site-specific considerations.4 For uranium, EPA's no action level for a residential scenario is 2.07 ppm for cancer risks5, and 230 ppm for non-cancer risks6. For vanadium, EPA's no action level for a residential scenario is 390 ppm for non-cancer risks; there are no expected cancer risks from vanadium in its naturally-occurring form. All of the off-site values in Table 4 are below screening levels except that all off-site samples exceed the "no action" level for uranium for cancer risks. DRC has determined that it is appropriate to gather additional site-specific data about the area rather than initiating an immediate response to address cancer risk for uranium for several reasons: • Although the analytical results in Table 4 above exceed EPA's "no action" level, they are all substantially lower than 207 ppm, the level at which EPA immediate action would be triggered. • The assumptions behind the "residential" scenario for cancer risk evaluation are likely to be very conservative for this site. For example, a resident is assumed to be on site for 350 days per year, 24 hours per day, for 70 years, including six years as a child. Adults are assumed to ingest 100 mg of contaminated soil per day, and children are assumed to ingest 200 mg of contaminated soil per day as a child. • The USGS data by itself is insufficient, for the reasons described above, to support denial of a license amendment. Soil levels established to protect ground water EPA also establishes levels for soils to ensure that ground water is protected from soil contaminants. For uranium, that level is established at 14 ppm to ensure that the ground water meets MCLs (30 ug/L). All of the off-site values are below this level. For vanadium, the level for soil contamination to protect ground water is established at 63 ppm7. Most of the samples taken by USGS are above this level. DRC has determined that it is appropriate to gather additional site-specific data about the area rather than initiating an immediate response to address risks to ground water from vanadium for several reasons: • The levels found were very near the EPA soil level for protection of ground water. Just as for cancer risks, EPA will not take immediate action at sites that are near that level, but will instead study a site further to determine what the site-specific risks are. EPA does not take immediate action unless the levels present are significantly greater than the EPA soil level for protection of ground water. 4 This statement is based on EPA's cancer risk range, which is 10-6 (one in one million excess cancer risk, the "no action" level), to 10-4 (one in 10,000), which is the level EPA uses for immediate action. 5 See http://epa-prgs.ornl.gov/radionuclides/download/res_soil_rad_prg_august_2010.pdf. 6 See http://www.epa.gov/reg3hwmd/risk/human/rb- concentration_table/Genenc_Tables/docs/composite_sl_table_run_NOV2013.pdf. 7 Id. 20 • As for the residential scenario discussed above, EPA's screening levels are based on generic inputs rather than site-specific ones. Some of the generic inputs are designed to be conservative. For example, the analysis assumes that the source of contaminants is infinite. The specific levels that would be protective of ground water east of the White Mesa site will have to be derived using site-specific values. • The USGS data by itself is insufficient, for the reasons described above, to support denial of a license amendment. 2.3 Sagebrush Results The primary purpose of the sagebrush study was to determine where there were areas of eolian - wind-blown - transport of materials from the Mill site. (USGS Report, p. 57.) The study provides helpful information that DRC will consider as it evaluates a new environmental monitoring plan that Energy Fuels will be required to submit pursuant to expected conditions in the License renewal. The sagebrush study was not intended to and cannot provide compliance information that can be used in a regulatory context. However it did provide insight regarding the spatial distribution of wind-blown uranium and vanadium contaminants resulting from Mill operations. Samples taken in the northeast part of the study area did display elevated uranium and vanadium concentrations and that spatial pattern does correlate with the sediment uranium and vanadium concentrations. It should also be noted that of the 12 samples taken in the eight eastern sample grids, only one - Site 15-1 - was clearly elevated above samples taken in less affected areas.8 That area is near sediment samples taken at the location WM2-S2A; see Table 5 and associated text above. Because the twigs and unwashed leaves of each of the sagebrush were ashed and analyzed as one (USGS Report, p. 7), there is no way to distinguish between contaminants from dust deposited on the leaf surface, which will be derived from wind-blown dust, and contaminants coming up through the root system, information that would be critical to determining the causal mechanism for the spacial concentration patterns observed, and how to respond as a regulator. To be clear, these were not faults with the USGS sagebrush study. The Study was designed only to show the spatial patterns of contaminants in and on local vegetation. In summary, the sagebrush study provides valuable information for the purpose for which it is intended: it shows where elevated uranium and vanadium vegetation concentrations that appear to coincide with elevated sediment concentrations. It is still unclear if this is due to wind distribution of contaminants onto plant tissue, root uptake from contaminated soils, or both. 8 Because the purpose of the study was to show wind-blown contaminant distribution, USGS did not identify and sample background areas. 21 2.4 Ground water Sampling Results The USGS sampled wells and springs in the area. The USGS Report concluded that the 234U/238U and 23Sjj/238u activity ratio values at all well and spring sampling sites other than Entrance Spring are indicative of natural sources of uranium and are not evidence of offsite migration of uranium. USGS Report, Figure 45, p. 68. The primary ground water concern raised by the USGS Study, then, was with respect to periodic elevated levels of uranium in Entrance Spring. Entrance Spring is a seep on the east side of Highway 91, offsite from the Mill's property. It is considered to be a surface expression of ground water. Two of USGS's eight samples showed results that are greater than the maximum contaminant level of 30 ug/L.9 One of the last six Energy Fuels monitoring results also showed a level elevated above 30 ug/L. As the USGS Report indicated, these results could be due to nearby sediment contamination that is concentrated in the arroyo where the spring is located, or it could be due to ground water contamination. DRC agrees that these results indicate a need for continued monitoring. DRC does not agree that they suggest a need for corrective action at this time for a number of reasons: • Both the USGS (USGS Report, p. 99) and Energy Fuels' results (http://www.radiationcontrol.utah.gov/Uranium_Mills/denison/seepsspringsampli ng_rpt.htm) have been temporally inconsistent, with a few samples above the drinking water standard but more of them below the standard. More monitoring is needed to determine whether there is a trend or an explanation for the inconsistent results. • Spatial and temporal trends must be considered. As the first water elevation map in Attachment 7 shows, Entrance Spring was directly downgradient from the Wildlife Ponds in 2012. As described in General Response, Part 1.5, those ponds caused ground water mounding centered at the Wildlife Ponds, and at least 24 feet of new saturation. Two of the most likely explanations of contamination in Entrance Spring are that the new saturation of those previously unsaturated zones would increase the ground water and contaminant travel speed and would also cause leaching of previously unsaturated natural uranium into that ground water, or that contaminants in and around the wildlife ponds were mobilized and entered the ground water. Entrance Spring is nearly directly downgradient from the ground water mounding caused by the Wildlife Ponds. Because those ponds have recently been drained, the ground water elevation and direction has changed as seen in the second map in Attachment 7, which is from the most recent report. A downward trend would be expected in the future if the saturation of previously unsaturated zones is the source; the length of time for that trend to be seen would depend on the speed of the ground water. 9 See USGS Report, Appendix 1, at p. 99, Entrance Spring samples collected on 12/13/07 and 3/13/08. 22 • The mechanism for contamination must be understood in order to ensure effective corrective action, if that becomes necessary. There are several mechanisms for contamination that should be considered if further monitoring demonstrates a problem; most of these were acknowledged by USGS: • The ground water could be contaminated from a source somewhere along its travel route, either from Mill activities, from natural uranium minerals in the vadose zone between the former location of the wildlife ponds and the spring, or from another source; • Contamination from particulates wind-blown from the Mill could be mobilized by precipitation and affecting the ground water, which later emerges at the spring; or • Contamination from particulates that were deposited on or near Highway 89 as a result of historical activities (e.g., ore trucks) could be moved by stormwater to locations in the immediate vicinity of Entrance Spring, which could in turn affect the water after it emerges. • More study is also necessary to determine whether the results are sufficient to have statistical confidence. • Entrance Spring is upgradient or cross-gradient from the tailings cells so contamination at Entrance Spring does not suggest leaking from tailings cells that would require more immediate action. For these reasons, DRC will be including requirements to develop additional monitoring in its draft Ground Water Permit renewal. The results do not warrant additional corrective action at this time. In 2014 and coming years, the DRC will collect split samples at the location to determine if there is any trend. 2.5 New License Condition Based on the public comments received during the public comment period, along with the DRC's review of the USGS Report and the conclusions in this Public Participation Summary, Part 2, the Director will place a new license condition regarding the Environmental Monitoring Program into the Dawn Mining license amendment so additional monitoring and improvements to the monitoring program can be implemented more quickly. The new license condition will read: 11.9 The licensee shall submit a revised Environmental Protection Manual for the White Mesa Mill within 90 days of license approval. The revised Environmental Protection annual shall include 2 additional air monitoring stations, soil sampling program, and vegetation sampling. In addition, air particulate sample analysis will include Thorium 232, and every air monitoring station will also monitor for radon (Rn222) and gamma detection devises on a quarterly basis. Implementation of the environmental monitoring program shall be completed 60 days after Director approval of the revised Environmental Protection Manual. 23 2.6 Summary The USGS Report presents three lines of evidence for off-site contamination: • Entrance Spring. Samples above maximum contaminant limits have been found for both USGS and Energy Fuels sampling events. For the reasons described in Part 2.4, it is appropriate to continue monitoring the spring. This is particularly true since one likely source of contamination - artificial recharge from the now-drained Wildlife Ponds - has been removed. If that was the source of contamination, downward trends would be expected in a timeframe regulated by the water velocity. • Sediment samples. Seven off-site samples showed levels of sediment contamination above levels identified by USGS as background (although USGS concluded that four of those samples have indications that they are from natural weathering rather than ore deposition). These results provide a basis for requiring additional sampling and analysis. They do not provide a basis for immediate response, using EPA guidelines. Further sampling and analysis will be required; that sampling and analysis will have to address the likely source of any off-site contamination in order to ensure an appropriate regulatory response. • A sagebrush study that shows that wind-blown dispersal of uranium ore has occurred, and there is a pretty clear correlation between the direction of dispersal indicated in that study and the increased levels of uranium in the sediment. This study is appropriate to use to evaluate plans for further study and analysis. For the reasons described in Part 2.1, it is not appropriate to use this study alone to make any determinations about the existence of off-site contamination at levels that would warrant a regulatory response. General Response 3. NESHAPs The National Emission Standards for Hazardous Air Pollutants (NESHAPs) program is a program under the Clean Air Act and in Utah is delegated to the Division of Air Quality (DAQ). The implementing federal regulations for regulation of radon at operating uranium mills is at 40 CFR 61, Subpart W (40 CFR §§61.250 through 61.256). State rules incorporate those federal regulations by reference at R307-214-1. DAQ and DRC have agreed that, because the Mill's Cell 2 is in closure, NESHAPs requirements no longer apply to Cell 2. Cells in closure are regulated under 10 CFR Part 40, Appendix A, Criterion 6. The same standard of 20 pCi/m2s applies under these NRC regulations. The fact of Cell 2's closure will be formalized during the License renewal process. Although DRC does not have any authority with respect to NESHAPs requirements, the following information is provided for the reader's convenience. 24 3.1 Radon Exceedance Cell 2 is in closure. DAQ and DRC determined recently that the jurisdiction has been changed from DAQ to DRC because, based on regulatory definitions in 40 CFR, Subpart W, NESHAPs no longer applies to cells in closure. DRC's standard is identical to the NESHAPs standard; under 10 CFR Part 41, Appendix A, Criterion 6, the standard of 20 pCi/m2s applies to cells in closure. Energy Fuels' air monitoring data for Tailings Cell 2 showed Radon-222 concentrations greater than the federal emissions standard applicable to operating cells of 20 pCi/m2s for operating cells beginning with the 2012 Annual Monitoring Report. Energy Fuels, in response, added additional soil (1-2 ft) to the cell. Since that time, Energy Fuels has submitted radon sampling on a monthly basis. These reports show that the Mill was back in compliance for the months of November and December of 2013 and January, February and March of 2014. 3.2 Tailings Cells in Operation The NESHAPs regulation, Subpart W, limits a uranium mill to two tailings cells in operation at any given time. The White Mesa Mill has five cells licensed and permitted to receive tailings. However only two of those cells are in "operation." This position is based on the definition of "operation" as found in 40 CFR 61.251(e): "Operation means that an impoundment is being used for the continued placement of new tailings or is in standby status for such placement. An impoundment is in operation from the day that tailings are first placed in the impoundment until the day that final closure begins." Cell 1: This cell is currently used for liquid management and no tailing have been placed in the cell. It is therefore not considered operational under the definition of "operation."10 Cell 2: Tailing placement has ceased and a temporary cover has been placed over it. Final closure activities (dewatering) have begun and the cell is no longer active. This cell is also not in operation under the definition of that word. Cell 3: This cell is active. Temporary cover placement has begun and when the cell is full and temporary cover has been placed over the cell, dewatering of the cell will begin. Cell 4A: This cell is active and receiving tailings. 10 In a separate NESHAPs rulemaking action regulating uranium mill tailings, EPA described uranium mill tailings: "Uranium mill tailings are sand-like wastes that result from the processing of uranium ore. Tailings are stored in large surface impoundments, called piles " Preamble for EPA's final rule action relating to 10 CFR Part 61, Subpart T, 59 FR 36280 (July 15,1994). 25 Cell 4B: This cell is currently used for liquid management and no tailing have been placed in the cell. It is therefore not considered to be in operation under the definition of that term. 3.3 Size Limitation for Tailings Cells NESHAPs, Subpart W also includes a limitation that tailings cells constructed after December 15,1989 may not be more than 40 acres in area. Both Tailings Cells 4A and 4B were constructed to and do meet this requirement. See Letter from EPA confirming tailings cell size, included with this Public Participation Summary at Attachment 10. General Response 4. Surety The currently approved surety amount for the White Mesa Mill is $21,126,149. The process for determining a surety amount begins with a submittal by the licensee. The surety is based on the currently approved Reclamation Plan (Rec. Plan 3.2B). For the last approved surety (2013], DRC required Energy Fuels to begin from scratch, looking at each line item versus the current market, rather than applying a price deflator to the previous Rec. Plan 3.2 B estimate as had been done in previous years. This resulted in a clean, new estimate more closely aligned with current conditions at the facility. The DRC does not directly calculate the surety value. Rather, the DRC reviews the budget that Energy Fuels submits versus the market rate to determine whether the values Energy Fuels claims reflect market rates for the items identified. The DRC (through the Radiation Control Board) establishes standards for what must appear in the surety, and the DRC interprets the standards where the rules provide discretion. It is the Licensee who does the estimating, with the DRC checking the licensee's work for completeness and reasonableness. The Surety submission consists of hundreds of different line items, each tagged to specific work that would have to be performed to close and decommission the facility. DRC's review checks both the completeness of the proposed line items and the appropriateness of the estimate. DRC has also required Energy Fuels to include a 25% contingency increase for unanticipated expenses. As part of its comments for the License Renewal for the Mill, the Ute Mountain Ute Tribe provided Exhibit H which was a review of the Mill's unapproved Reclamation Plan 5.0. In their analysis, the Tribe makes the claim that the surety should be somewhere between $50-100 million. DRC has requested information from the Ute Mountain Ute Tribe to show how they calculated the amount, but has not yet received it. DRC staff examined the Ute Mountain Ute Tribe's comments in the course of the 2013 review and could find no basis to support the suggested cost numbers. The comments were also problematic because they evaluated a Reclamation Plan that has not been approved. The surety is required to be based on the approved Reclamation Plan. 26 General Response 5. Challenge to Processing of Alternate Feeds The Glen Canyon Group of the Utah Chapter of the Sierra Club filed a Request for Agency Action in July, 2006 making essentially the same arguments that Uranium Watch has made in its comments on this matter in a challenge to the White Mesa Mill's License that allowed it to process alternate feeds known as "Fansteel materials." The Utah Radiation Control Board decided against the Sierra Club in a March, 2007 decision that was not appealed. For these reasons, the doctrine of issue preclusion applies.11 Following is a summary of the history of this issue. In 1998 and again in 2000, when NRC was still the regulatory authority for the White Mesa Mill, the State of Utah challenged decisions made by NRC to approve a proposed amendment to the Mill's license which would allow the Mill to take an alternate feed - feed that is not natural, unprocessed uranium ore. The arguments that the State made were similar to many of the comments now being made by Uranium Watch. The Commission finally decided against the State in one of those challenges, determining that alternate feed could be milled at the facility and that the resulting tailings would still be byproduct material. See In the Matter of International Uranium (USA) Corporation, CLI-00-01, Feb. 10, 2000 (commonly referred to as "Ashland-2"). The Commission followed that decision by issuing a guidance document incorporating the important elements of the decision, and establishing criteria for acceptance of applications for alternate feeds.12 Accepting its loss before the Commission, the State withdrew its second challenge. It began seeking Agreement State for ll.e(2) byproduct materials status shortly afterwards, in part so that it could have oversight over the Mill. The "Final Revised Application stated: It is also the intent of the State to follow the guidance affirmed by the Commission for review and decision of receipt of alternate feed materials by uranium mills. Each alternate feed amendment will be considered a major amendment for the purposes of licensing and will follow procedures as described in this final application. The alternate feed guidance as described in the NRC Regulatory Issues Summary 2000- 23 is included in Appendix L of the application. As the Executive Secretary noted in his brief in the Fansteel case, the importance of this "intent" language "should be neither understated nor overstated. "It is not by itself an 11 It is also notable that, although the groups involved are different, the individual commenter for Uranium Watch is Sarah Fields. Ms. Fields was also an active participant during the Sierra Club challenge. She was the author of the comments submitted on behalf of the Sierra Club and upon which the challenge was based, and of one of the three affidavits submitted by Sierra Club in support of its Petition to Intervene. See respectively the Executive Secretary's Public Participation Summary, at 1048, and July 13, 2006 Glen Canyon Group of the Utah Chapter of the Sierra Club Petition to Intervene, Exhibit 2. 12 This result was based in part on a 1990 federal district court case that rejected as contrary to the Atomic Energy Act NRC's policy at that time of interpreting the definition of "ore" narrowly. See Kerr-McGee v. NRC. 901 F.2d 1 (D.C. Cir. 1990). 27 enforceable provision of law, but is instead a statement of intent to recognize as governing precedent reasonable interpretations of its own governing law made by NRC." The Executive Secretary's Pre-hearing Brief, January 16, 2007. The agency has authority to interpret its governing law. See Utah Code Ann. § 19-1-301.5(14)(c)(i). The Radiation Control Board issued a final decision on March 5, 2007, included with this Public Participation Summary as Attachment 11. That decision made, among others, the following conclusions of law: 2. The Fansteel material meets the definition of alternate feed material and the definition of "ore" under the NRC Regulatory Summary 2000-23 as "other matter." The Executive Secretary properly interpreted the NRC Summary 2000- 23 by not considering economics and profit to be factors in determining whether a material is ore. The Executive Secretary correctly applied the Ashland-2 decision (In the Matter of International Uranium (USA) Corporation, CLI-00-1, February 10,2000). 3. The Executive Secretary properly determined that the tailings resulting from the milling of the Fansteel materials constitute byproduct material and may be disposed of in the tailings impoundment because the alternate feed material constitutes "ore" that will be "processed primarily for its source content" under the criteria stated in the Ashland-2 decision and NRC Regulatory Issues Summary 2000-23.... i As Sierra Club did in the Fansteel case, Uranium Watch is apparently arguing that all processing of materials other than natural, unprocessed uranium ore is illegal based on the definition of "byproduct" in the Atomic Energy Act. As described above, this matter was resolved in a previous proceeding. For the benefit of the reader, however, Attachment 12 to this Public Participation Summary is the Executive Secretary's brief that explains the Director's position. General Response 6. Nature of Amendment Request and Relationship to License Energy Fuels is currently licensed to process natural unprocessed uranium ore, as well as several alternate feeds. The Director has preliminarily approved the Dawn Mine application because the material that is being proposed is nearly identical in nature to the material that the Mill is currently authorized to take except that it is less radiologically active. In addition, the resulting tailings would be approximately 4500 tons, less than 0.09% of the approximately 5 million tons (Cells 2, 3 and 4A) that are already disposed of. The Uranium Materials do have higher concentrations of barium than Arizona Strip ores, but, as described in the SER, barium is less mobile than other constituents in the tailings. This proposal, then, is for a routine License Amendment. Because the License Amendment and associated information demonstrate that all regulatory requirements for the amendment have been met, the Director has determined that the License Amendment shall be granted; there is no reasonable basis for allowing Energy Fuels to mill natural unprocessed uranium ore but prohibiting it from taking the Dawn Mine material, nor for using this amendment as an occasion to address every aspect of the License or Permit. 28 i !