DRC-2014-006566 - 0901a068804b59a6

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
DRC-2014-006566 juiy 10,2014
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, to dispose of certain specified byproduct materials, and to 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:
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
http://vww.radiationcontrol.utah.go
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 the 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 A. 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 B. 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 the DRC does not see the White Mesa Mill the same way
these commenters do. The 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.
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General Response 1. Environmental Conditions and Regulatory Activities at Energy
Fuels
1.1.1 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 while others are being used for other
purposes. A map showing where the cells are located is included with this Public
Participation Summary at Attachment C.
• 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 the NRC in May of 1980. It was no longer being used
for disposal of tailings at the time the 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 the 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. AH 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.
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Cell 4B: Cell 4B was licensed by the 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 the 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 the NRC in August, 1979. The License was
transferred to the DRC in August, 2004, after Utah obtained Agreement State status for
lle.(2) byproduct material with the 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:
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).
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• Quarterly Groundwater Monitoring Reports;
• Semi-Annual Effluent Monitoring Reports;
• Annual Tailings Wastewater Sampling Report;
• Annual Seeps and Springs Sampling Report;
• Quarterly Chloroform Monitoring Reports; and,
• Quarterly Nitrate Monitoring Reports.
Energy Fuels' ground water monitoring program is comprehensive in that it includes all of
the 73 monitoring wells at the facility, as described above, although not every well is
sampled every quarter. 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). Exceedences 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.
The 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 the 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, the
DAQ inspects the facility as a "minor source" approximately once every three years.
A comparison of activities under DRC's authorities and activities under the NRC's
authorities is included as Attachment D.
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.
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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
4Aand 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, 1997 by the NRC for a period of ten 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 near future.
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. The DRC plans to issue a Draft Permit
and Statement of Basis in the near future.
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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 73 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 the 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.
• 34 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 C 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 E. 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, the 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
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water elevation of 24 feet from 1995 to 2001. This increase was caused by water leaking
from 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
two north wildlife ponds in 2012.
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 F to this Public Participation Summary. Maps
showing ground water direction, both current and recent past, are included as Attachment
G.
The Director ultimately agreed with Energy Fuels that the source of the contamination was
most likely to be historic laboratory wastewater disposal activities. Historically, laboratory
waste was sent to sewage leach fields. All laboratory wastes have been disposed of in Cell 1
since its construction in 1981.
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.
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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 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 Date of Highest
plume Sampling with Chloroform
monitoring Highest Concentration,
well Concentration ug/L
MW-4 05-Aug 3,500
TW4-1 05-May 3,080
TW4-4 05-Aug 3,200
TW4-11 05-Mar 4,400
TW4-6 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 the 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 the 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.
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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 H to this Public Participation Summary. Maps showing
ground water direction, both current and recent past, are included as Attachment G.
Energy Fuels has submitted two reports to the DRC. The reports identify the extent of the
Nitrate plume but Energy Fuels and the 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. The 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.
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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 exceedence 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,
the 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 exceedences 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 exceedences of standards, mostly for
uranium. The 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
the DRC is not requiring any further action at this time for these reasons:
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• 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).
• 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, and 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
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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 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 early
1980's and 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 north wildlife ponds in
March, 2012.
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, the DRC issued a Notice of Violation and Order requiring Energy Fuels
to do a source assessment and submit revised statistics for those wells.
Energy Fuels responded initially by presenting additional information to the 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, the 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 exceedences, not including pH. It provided
statistical analysis of data.
13
• 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.
• 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, the 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. The 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). The DRC
learned that the DDW requires Energy Fuels to sample the well and submit the results to
3 There is also another theory that was proposed by Energy Fuels that the 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 DDW. If any of these constituents sampled exceed a maximum contaminant level or if
there is any detectable concentrations of volatile organic compounds observed, the DDW
will require Energy Fuels to implement remedial action.
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 the 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 I. 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
15
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.
Table 3. Air Effluent Concentrations Summary
Year
2009
2010
2011
2012
2013
1st HalfSemi-
Annual
< 10%
< 10%
<8%
< 16%
<9%
2nd HalfSemi-
Annual
<8%
< 10%
<8%
< 20%
<6%
ALARA Goal
< 25%
< 25%
< 25%
< 25%
< 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 Tables 1 and
2, Appendix B, 10 CFR Part 20.
See also General Response, Part 2.2 and, for information specific to the Uranium Material,
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; and,
16
• Requirements for minimization of fugitive dust from the tailings retention areas.
The DAQ also oversees the application of NSPS Subpart Dc, which applies to Energy Fuels'
boiler.
As one of approximately 1,300 "minor sources" in Utah, the DAQ is required pursuant to its
EPA delegation under the Clean Air Act to inspect the White Mesa Mill once every five
years. The 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
In addition, off-site effluent standards are established as specified in R313-15-302. See
especially R313-15-302(2)(b)(i):
(2) A licensee or registrant shall show compliance with the annual dose limit in Section
R313-15-301 by:
(b) Demonstrating that:
17
(i) The annual average concentrations of radioactive material released in
gaseous and liquid effluents at the boundary of the unrestricted area do
not exceed the values specified in Table II of Appendix B of 10 CFR
20.1001 to 20.2402, (2010), which is incorporated by reference....
See http://www.nrc.gov/reading-rm/doc-collections/cfr/part020/^^ for
the provisions of Table 2.
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."
TABLE 4: Off-Site Sediment Samples that Exceed Highest Uranium Background Level
Sample Site Caused by "Ore
Migration" or
"Natural
Weathering"**
U (ppm)* V(ppmr
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
18
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. The nature of the regulatory response will
vary depending on whether the contamination is from a continuing source. There
are a number of potential sources for the contamination that would not be
continuing: past practices at the Mill that have since been improved, potential
historical sources, such as the ore-buying station at Shirttail Junction and ore trucks
delivering to and exiting from that station. One way to determine whether the
contamination is continuing is to collect particulates at air effluent sampling sites.
That collection and analysis show that there is currently very little off-site migration
of air effluent, suggesting that contamination may be from historical rather than
current 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. Practices at the Mill have changed since the site opened as
an ore station in the late 1970's There were also historical sources of potential
radionuclide contamination in the area that are no longer in operation: there was an
ore buying station located south of Shirttail Junction, and there were also trucks of
ore going to and from that station. In contamination investigations, it is necessary
to establish causation. DRC would also want to consider whether the USGS's
determination that most of the exceedences 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 the 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.
19
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 the 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
The EPA has established screening levels for residential soils for hundreds of contaminants
based on specified exposure assumptions that the 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
further study to determine whether the levels present result in a significant risk, based on
site-specific considerations.4
For uranium, the 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 the 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
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/nsk/human/rb-
concentration_table/Generic_Tables/docs/composite_sl_table_run_NOV2013.pdf.
20
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. All of
these assumptions are conservative for the area where samples were collected,
since the land in that area is uninhabited.
• 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
The 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, the 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. The EPA does not take immediate action unless the levels present are
significantly greater than the EPA soil level for protection of ground water.
• 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
7 Id.
21
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.
2.4 Ground water Sampling Results
The USGS sampled wells and springs in the area. The USGS Report concluded that the
234JJ/238JJ an(i 235u/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.
8 Because the purpose of the study was to show wind-blown contaminant
distribution, USGS did not identify and sample background areas.
9 See USGS Report, Appendix 1, at p. 99, Entrance Spring samples collected on
12/13/07 and 3/13/08.
22
The 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://vvrww.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 G 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 G, 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.
• 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 191 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.
23
• 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 draft license condition will read:
11.9 The licensee shall submit a revised Environmental Protection Manual for the
White Mesa Mill within 60 days of license approval. The revised
Environmental Protection Manual shall include 2 additional air monitoring
stations, a revised soil sampling program, and a vegetation sampling
program. In addition, air particulate sample analysis shall include Thorium
232, and every air monitoring station shall also monitor for radon (Rn222)
and gamma detection devices on a quarterly basis. Implementation of the
revised environmental monitoring program shall be completed 90 days after
Director approval of the revised Environmental Protection Manual.
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
24
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
from the Mill 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. A revised monitoring plan is being required in License Condition 11.9.
One of the purposes of the license condition is to evaluate the source of the off-site
deposition. 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.
The DAQ and the 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 once the final radon barrier is placed. Until that time, there are no radon
emission standards that apply directly, but radon is one of the factors that is considered in
analyzing risks from the site as a whole. In the analysis that has been done by DRC in
association with White Mesa Mill's license renewal, a maximum 20 pCi/mzs was modeled.
That limitation will therefore be incorporated into the draft license amendment.
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.
3.1 Radon Emissions
Cell 2 is in closure. The DAQ and the DRC determined recently that the jurisdiction has
been changed from the DAQ to the DRC because, based on regulatory definitions in 40 CFR,
Subpart W, NESHAPs no longer 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
25
submitted radon sampling on a monthly basis. These reports show that the Mill has been
back under 20 pCi/m2s beginning in September of 2013.
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 evaporation, and no
tailings 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.
Cell 4B: This cell is currently used for liquid management and evaporation, and no
tailings have been placed in the cell. It is therefore not considered to be in operation
under the definition of that term.
It is also noteworthy that on May 3, 2010, the DAQ approved the April 13, 2010 Application
by Energy Fuels under 40 CFR 61.07 to construct Cell 4B. The application for that approval,
included at Attachment J (along with the DAQ's approval), provided a full explanation of the
operating status of each cell at the Mill.
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). The use of the term "disposal" in 40 CFR 61.252 also suggests
that the rule writers were not contemplating applying the rule to a surface impoundment.
26
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 Attachment J and Letter from the
EPA confirming tailings cell size, included with this Public Participation Summary at
Attachment K. The DAQ's approval was not challenged.
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 3.2B 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.
General Response 5. Challenge to Processing of Alternate Feeds
27
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 the NRC was still the regulatory authority for the White
Mesa Mill, the State of Utah challenged decisions made by the 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
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
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).
28
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 L. 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
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 M 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 Material does 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 previous approvals (see Living Rivers v.
US Oil Sands. 2014 UT 25) and other aspects of the License or Permit.
29
C. SPECIFIC RESPONSES TO COMMENTS
1. Comments Received from Uranium Watch (Sarah Fields)
Comment #1
Below are Comments on the proposed Licensing Action by the Director of the Utah Division of
Radiation Control (DRC) to amend the Energy Fuels Resources (USA) Inc., (EFRl) lle.(2) Byproduct
License (RML UT1900479). EFRl proposes to amend the License for the White Mesa Uranium Mill
in San Juan County, Utah, to authorize the receipt, storage, and processing of uranium-bearing
materials (Uranium Material) from the Dawn Mining Company's Midnite Mine Superfund facility in
Wellpinit, Washington. EFRl application documents is dated April 27,2011, and supplemented by
submittals of December 5,2012, June 14,2013, and August 7,2013 (Amendment Request). The DRC
authorization would also include the disposal and perpetual storage of the waste from the
processing of these materials. These comments are submitted on behalf of Uranium Watch, Living
Rivers, Glen Canyon Group of the Sierra Club, and the Information for Responsible Mining
(INFORM).
GENERAL COMMENTS
1.1. The DRC documents associated with this license amendment should be in a PDF format
that allows for the selecting and copying of any text in the document, in order to facilitate
the inclusion of quotes from these documents in any comments provided to the DRC. For
example, I am unable to select and copy the text from the DRC's Safety Evaluation Report.
The selection tool on my computer selects large sections of text, rather than the text I want
to copy.
1.2. The documents associated with EFRl applications should also be in a PDF format that all
allows for the copying of any text in the document, in order to facilitate the inclusion of
quotes from these documents in any comments provided to the DRC.
Response #1
The DRC agrees with the commenter and future posting of documents will be in pdf format
that allows for selecting and copying of text. Infrequent exceptions may have to be made
for documents DRC does not have in a format that can readily be converted to pdf.
Comment #2
1.3. The Amendment Request submitted by the EFRl contains numerous citations or references
to documents that are not readily publicly available. These documents should all be readily
available for public review.
Response #2
The DRC cannot respond to this comment with specificity since the commenter has not
identified which documents were not "readily publicly available," nor what rule, statute or
law requires that the documents be made available. (More specific concerns are detailed in
Comment # 5, however.) Also, it is unclear what expectations of ready availability the
31
commenter has. Although DRC is working to post more documents on the internet, that
posting is not required and is allowed by law.
The DRC understands that many documents requested by a representative for Uranium
Watch were made available to that representative on October 8 and 9, 2013, at the DRC
office.13
Comment #3
AMENDMENT REQUEST
2.1. In the April 27,2011, Amendment Request (page 8), EFRl claims that the Uranium Material
is exempt from the Recourse Conservation and Recovery Act (RCRA). EFRl claims that "any
alternate materials that contain greater than 0.05% source material are considered source
material under the definition of source material in 10 CFR 40.4 and hence exempt from the
requirements of RCRA under 40 C.F.R. 261.4(a)(4)."
According to the Nuclear Regulatory Commission's (NRC's) redefinition, the term "ore"
means "ore" or "any other matter from which source material (i.e., uranium and/or
thorium) is extracted in a licensed uranium or thorium mill. "14 Therefore, for an alternate
feed material like the Uranium Material to become "ore" it must be processed in a licensed
urantum or thorium mill." Before the material is processed, e.g., when it is sitting in drums
or on an "ore pad" at the Mill, it does not meet the Interim Guidance's redefinition of "ore,"
because it has not been processed at a licensed mill. It only becomes "ore" retroactively,
after it has been processed in a licensed uranium or thorium mill. There is no claim in the
Interim Guidance that alternate feed is "ore" before it is processed, or waiting to be
processed. Based on the redefinition of "ore" there appears to be no specific point in time
and space when the Uranium Material is actually "ore," due to this retroactive nature of
the definition. The absurdity of this is apparent
The Interim Guidance's redefinition of the term "ore" only applies to the issue of the
whether the waste from the processing of that material can be defined as lle.(2)
byproduct material.15 The NRC Interim Guidance does not state or claim that the
Guidance's definition of "ore" in any manner applies to or in any manner alters the
statutory or regulatory definition of "source material" (42 U.S.C. §2014(z)).u
13 If an appellant demonstrates that documents that are relevant to a proceeding
cannot reasonably be obtained from the DRC or elsewhere, lack of access to records could
form the basis for supplementing the record under Utah Code Ann. § 19-1-301.5(8)(c)(iii).
14 Commenter's footnote 1: U. S. Nuclear Regulatory Commission, Office of Nuclear
Material and Safety and Safeguards, NRC Regulatory Issue Summary 2000-23, Recent Changes
to Uranium Recovery Policy, Washington, D.C., November 30,2000.
15 Commenter's footnote 2: 42 U.S.C. §2014 (e)(2): "The term "byproduct material" means-
***
(2) the tailings or wastes produced by the extraction or concentration of uranium or thorium
from any ore processed primarily for its source material content"
16 Commenter's footnote 3: 42 U.S.C. §2014(z): "The term "source material" means
(1) uranium, thorium, or any other material which is determined by the Commission pursuant
to the provisions of section 2091 of this title to be source material; or (2) ores containing one or
more of the foregoing materials, in such concentration as the Commission by regulation
determine from time to time."
32
The NRC is not legally authorized to amend the Atomic Energy Act (AEA) definitions via a
policy guidance.
Therefore, alternate feed material that contains uranium and/or thorium (in any amount)
contains "source material," and meets the first definition of "source material." The
uranium and/or thorium content, not the alternate feed, is "source material." Material that
contains "source material" above 0.05% uranium and/or thorium and a listed or
characteristic hazardous waste is called "mixed-waste." There is no statutory or regulatory
basis for determining that the Uranium Material ever meets the second definition of
"source material"as an "ore."
Response #3
It appears that the commenter's point is that the Uranium Material may not be milled and
must be considered hazardous waste because the Uranium Material is not "ore" and the
resulting tailings would not be lle.(2) byproduct material, which would be a violation of
Energy Fuels' License. Please see General Response, Part 5 for a response.
If this is not the commenter's point, the commenter's point is unclear and DRC cannot
respond.
The DRC does not agree with the commenter's concern that there is no specific time that
the material is an ore by the definition of "ore" in the NRC's guidance. Although the
definition might have been more clear, temporally, the meaning is abundantly clear and the
paradox the commenter sees does not exist.
Comment #4
2.2. The June 14,2013, EFRl Response to June 22 and June 23,2013, DRC Request for
Information (page 2) states: "The storage and processing of the Uranium Material will not
introduce new constituents or new constituent forms (dissolved, particulate or gaseous) or
create significantly new human or environmental exposure risks that have not already
been addressed by previous submittals and approvals by appropriate authorities (US
Nuclear Regulatory Commission ("NRC") or DRC)."
EFRl has not identified the environmental exposure risks that have been addressed by
previous submittals and approvals by the NRC or the DRC. The 1979 NRC Final
Environmental Statement (ES) Related to Operation of White Mesa Uranium Project only
contemplated the environmental effects of the White Mesa mill receiving and processing
uranium or uranium/vanadium "ores"from the Colorado Plateau region. New
circumstances are associated with the White Mesa Mill receiving, stockpiling, and
processing feed materials that are not ores and that are not from the Colorado Plateau,
and disposing of those non-ore materials after processing.
The 1979 ES and Environmental Assessments (EAs) that supplemented the 1979 ES did not
address the environmental effects from the processing of feed material containing source
material thorium and the disposal of source material thorium in the tailings
impoundments without the recovery of any source material thorium-232 and progeny.
Most of the requests for license amendments to authorize the processing of alternate feed
at the White Mesa Mill were not the subject of an environmental analysis, pursuant the
33
National Environmental Policy Act (NEPA) and the NRC implementing regulations at 10
C.F.R. Part 51. Therefore, thousands of tons of materials (including toxic materials not
found in Colorado Plateau ores and asphalt, concrete, and other rubble) were processed
and disposed of at the mill without an EA and Finding of No Significant Impact (FONSI).
The NRC produced brief Technical Evaluation Reports (TERs), but in no way were these
documents an assessment of the environmental impacts, including cumulative impacts,
from the receipt, processing, and disposal of alternate feed. Further, the DRC has not
reviewed all of the TERs and Amendment Requests associated with the License Conditions
authorizing the receipt and processing of the various alternate feeds. The Amendment
Requests are part of the White Mesa Mill License, yet, they have not been made readily
available to the public and some of them are not even readily available to the DRC staff.
Response #4
The DRC, using its contractor URS, performed an environmental analysis as required by
Utah Admin. Code R313-24-3. DRC's resulting Safety Evaluation Report presented
comparisons of the Uranium Material with Arizona Strip natural ore and with alternate
feeds that White Mesa was previously licensed to mill. The DRC reviewed the comparisons
of various alternate feed materials (See Table 5. Comparison of Radionuclide Activity
Concentrations in Proposed Uranium Material and Previous Alternate Feeds, Safety
Evaluation Report p.ll). The Director concluded that the Uranium Material presented no
new environmental risks, because the constituents are the same and, except for barium, are
present at lower levels than alternate feeds previously licensed. The DRC may rely on
similarities between the Uranium Material and previously approved materials in making its
determination. Additionally, for over eight years, the DRC has been reviewing the semi-
annual environmental reports and other monitoring reports which allows the DRC to
assess the environmental impacts from the receipt, processing and disposal of alternate
feed as well as conventional ores. Although there have been exceedences of some ground
water standards, those exceedences have been addressed. See General Response, Part 1.
It is appropriate for the agency to assume that previous licensing actions, now final agency
actions, were based on adequate information and analyses; it would be an unreasonably
inefficient use of agency resources to revisit, for each amendment, the bases behind each
previous approval that builds the license the agency is relying on. Instead, the commenter
bears the burden of providing information that demonstrates that the agency's reliance is
misplaced.
The DRC does agree that its reliance on previous licensing actions makes those actions an
appropriate subject of public comment. It is, however, the commenter's burden to show
that there is something in those previous approvals that shows they cannot be relied upon.
The commenter cannot meet that burden by pointing out alleged procedural irregularities
for those earlier proceedings. The time for challenging any irregularities was at the time
the decision was made. Instead, the commenter must identify specific substantive faults
with prior analyses that the agency is relying on. Because the commenter has not done so
here, the DRC has no information to respond to.
34
With respect to access to records, it is unclear what expectations of ready availability the
commenter has. Although DRC is working to post more documents on the internet, that
posting is not required. The DRC understands that all documents requested by a
representative for Uranium Watch were made available to that representative on October 8
and 9, 2013, at the DRC office.17
Comment #5
SAFETY EVALUATION REPORT
3. General Comments
3.1. The Safety Evaluation Report (SER)for the Amendment Request fails to identify all of the
documents included in the Amendment Request
3.2. The DRC has relied on documents related to the licensing and operation of the White Mesa
Mill that are not readily publicly available in its review and evaluation of the Amendment
Request Some of these records are referenced in the Mill's Radioactive Materials License
(RML) UT1900479, so they are part of the License. The Mill's License Conditions (LCs)
include a number of LCs for the approval of the receipt of alternate feed from various
sources. These LCs reference the specific licensee applications, yet none of these
applications are posted on the DRC website. Further, when I requested some of the
applications associated with feed material that was still being received at the White Mesa
Mill (from the Cameco and Honeywell facilities), I was initially told that the DRC was
unable to locate those records. The requested records were actually m storage. I have
located some of the requested records when I reviewed documents at the DRC office on
October 8, but I have yet to receive them.
Additionally, during the public hearing of October 9,2013, at the Department of
Environmental Quality office in Salt Lake City, the DRC staff stated that they reviewed
some, but not all of the records associated with the NRC's approval and technical review of
previous alternate feed license amendment requests and drew conclusions from those
records. Again, those documents were not identified in the SER, nor are they readily
available on the DRC website.
In sum, the DRC based its review of the Amendment Request, the SER, and proposed
licensing action on documents that the DRC failed to identify and failed to make readily
available to the public.
Response #5
See Responses #2 and #4.
Comment #6
3.3. The DRC failed to characterize the radioactive content of the tailings, or wastes, from the
processing of the Uranium Material.
17 See footnote 13.
35
Response #6
The Safety Evaluation Report provided an analysis of the radiological conditions of the
Uranium Material and a comparison of it with other alternate feed materials and
conventional ores processed at the White Mesa Mill. The Safety Evaluation Report provides
the analysis of the Uranium Material's radiological constituents, metals and hazardous
constituents. This information starts on page 8 of the Safety Evaluation Report and
continues to page 39. In addition, Table A-l in Attachment A of the Safety Evaluation
Report summarizes the projected percentages of the total constituent mass and
concentrations in the tailings disposal cells contributed by constituents in residuals that
would be placed in the tailings cells following processing of the Uranium Material. As
stated in the Safety Evaluation Report, the constituents in the Uranium Material are
expected to produce no incremental additional environmental, health, or safety impacts in
the Mill's tailings system beyond those produced by the Mill's processing of natural ores or
previously approved alternate feeds, as all constituents are lower than those for previously
licensed ores and alternate feeds, except for barium. Because the ores are similar, the
tailings will also be similar. Increased barium concentrations do not increase risk because
barium is much less mobile than other constituents; see SER.
Comment #7
4. Previous Alternate Feed Proposals and Alternate Feed Assessment Process
4.1. In the discussion of Previous Alternate Feed Proposals and Alternate Feed Assessment
Process (SER, pages 2 to 3) the SER only references one previous alternate feed proposal,
the one approved by the DRC for the processing of waste from the cleanup of the Fansteel
Metals Resources, Inc. 's facility in Oklahoma. The SER should have included a description
and status of all of the previous alternate feed proposals that are listed in the License.
Response #7
See Response #4. There is no requirement for DRC to include a description and status of all
of the previous alternate feed proposals that are listed in the License.
Comment #8
4.2. The SER (page 3) states: "The Uranium Material is classified as lle.(2) byproduct
material." This statement is incorrect, and any conclusions derived from that statement are
also incorrect The SER and the Amendment Request already stated that the material
contains "source material," and, since that material has never been processed for its source
material content in a licensed uranium mill, it is notlle.(2) byproduct material.
Response #8
The commenter is correct; the statement quoted above on page 3 of the Safety Evaluation
Report was a drafting error, and should read, "The tailings and waste from proposed
processing of the Uranium Material are classified as lle.(2) by product material." This
description is used a few lines later on page 3 of the Safety Evaluation Report. While the
36
line quoted is a typographical error, all conclusions made throughout the Safety Evaluation
Report are based on the premise that the tailings and waste from the proposed processing
of the Uranium Material are classified as lle.(2) byproduct material, not that the Uranium
Material itself is an lle.(2) byproduct material. The material from the Dawn Mining
alternate feed application will be processed through the White Mesa Uranium Mill for its
uranium content (source material), and material from that processing is an lle.(2)
byproduct material, which also meets the definition of byproduct material in Utah Admin.
Code R313-12-3. See General Response, Part 5.
Comment #9
4.3. The discussion of the Alternate Feed Assessment Process is found the Section regarding the
Alternate Fed Assessment Process, pages 6 to 23, below.
5. Radiological Impacts
5.1. Table 1 (page 8) provides data on the minimum and maximum range of radionuclide
concentrations in the Uranium Material. The data for the maximum amount ofthorium-
228 is incorrect. The amount of thorium-228 does not correlate with the ratio ofthorium-
228 to thonum-232 for the minimum concentrations. The maximum amount of thorium-
228 should be much higher, so that the ratio of the maximum levels of thorium-228 to
thorium-232 is similar to the ratio of the minimum levels.
Response #9
The referenced Table 1 in the Safety Evaluation Report contains a typographical error. As
per Attachment 2 to the April 27, 2011 License Amendment Application and Table 5 of
Attachment 5 to that application, the maximum measured Thorium-232 activity
concentration in the Uranium Material is 1.14 pCi/g, NOT21A pCi/g as presented. The
actual ratios for Thorium-228: Thorium-232 is 1.4 for the minimum values and 1.3 for the
maximum values. These ratios are consistent given the inherent counting error
(uncertainty) of the analyses and intrinsic heterogeneity in solid samples. A corrected
version of Table 1 is presented below:
Table 6. Range of Radionuclide Concentrations in Midnite Mine Uranium Material
(2010 Analytical Results) (URS, 2013)
Result
(dry weight
basis)
Total
Uranium
(mg/kg)
Thorium-
228
(pCi/B)
Thorium-
230
Thorium-
232 Lead-210
(PCi/g)
Ra Total
(PCi/g)
Radium-
226
Min 15,000 0.93 20.4 0.66 32.0 36.6 22.8
Max 16,000 1.50 21.4 1.14 34.7 41.0 25.7
Comment #10
5.2. Table 2 (page 9) should include the radium isotopes that are decay products of thorium-232
and list them separately, before combining radium as "Total Radium."
37
Response #10
The referenced Table 2, reproduced below (URS, 2013), presents the direct analytical
results of gas flow proportional counter (GFPC) and alpha spectrometry tests for
radionuclides. As per Attachment 2 to the April 27, 2011 License Amendment Application
and Table 5 of Attachment 5 to that application, the total radium analytical results are from
direct measurement and not an arithmetic sum of individual analyses and have been
presented accordingly.
Table 7. Analytical Results - Uranium Material for RCRA Listed Hazardous Waste
(Radiochemistry Analysis [20101) (URS, 2013)
Target
AnalyteO) Method Units Laboratory Results
WTPS-1 WTPS-2 WTPS-3
Calculated
Average
Total
Uranium
SW6020A
Total Uranium m_/_k__ 15,000 16,000 15,000 15,333
Gross
Alpha/Beta
GFPC
Gross Alpha PCi/g 4,310±690 4,830±770 5,440±870 4,860
Gross Beta 4,870±780 4,780+760 4,860+780 4,867
Lead-210 Liquid
Scintillation
Lead-210 33.1±8.0 34.7±8.4 32.0±7.8 33.3
Radium-226 GFPC
Radium-226 r_Cj___ 22.8±5.8 25.7±6.6 23.8±6.1 24.1
Total Alpha
Emitting
Radium
GFPC
Total Radium 39.7±10 41±11 36.6±9.4 39.1
Total Radium
(duplicate
sample)
PCi/g 35.8±9.2
Isotopic
Thorium
Alpha
Spectroscopy
Thorium-228 PCi/g 1.24±0.99 1.50±0.74 0.93±0.67 1.22
Thorium-230 e_____ 20.4±3.8 21.4±3.9 20.4±3.7 20.7
Thorium-232 1.14±0.48 0.66+0.34 0.71±0.32 0.84
CiJAll values as reported by ALS Laboratory as dry weight values.
GFPC = Gas Flow Proportional Counting
38
Comment #11
5.3. According to the Amendment Request, the uranium content of the Uranium Material is
estimated to be 1.4%, and the thorium content is 0.005 %.18 Therefore, the ratio of
uranium to thorium-232 is approximately 1:280. However, when considering only the
radium content from uranium and total thorium the ratio of radium 224 and 228 (thorium
progeny) to radium 226 (uranium progeny) is 1:1.6. So, the radium from the thorium is at
much greater levels than would be expected from comparing the uranium and thorium-
232 content
None of the tables in the SER reveal how much greater the radium content from thorium is,
in relationship to the amount of thorium compared to uranium. Nor is there any discussion
of the implications of this relationship.
Rather, the DRC has minimized the impacts from the thorium content of the Uranium
Material, relying only on the thorium content, rather than the much larger radium content
derived from thorium-232. The statement that the "Concentrations of Thorium-232 and its
decay products are negligible and can be ignored" (page 14) have no basis m fact when it
comes to the radium content
U-MATERIAL CONTENT PERCENT AVERAGE RATIO
Thorium 0.005% 1:
Uranium 1.4% 280
Radium 224 & Radium 228 15.0pCi/g 1:
Radium - 226 24.1 pCi/g 1.6
Total Radium 39.1 pCi/g
The SER must acknowledge and consider that fact that the radium content of the thorium
is about 2/3 that from the uranium and, therefore, the radon emissions from the thorium
will be almost as much as from the uranium and cannot be ignored.
Response #1Ifal
Statement 1: "...the radium from the Thorium is at much greater levels than would be expected
from comparing the uranium and Thorium-232 content"
Comment #11 appears to be based on the typographical error made in the SER
regarding Thorium 232 (see Response 9, above). However, Responses 11(a) through
11(b) attempt to answer the commenter's questions by addressing that Thorium in the
Uranium Material is in disequilibrium with its parent radionuclide. Thorium is less mobile
than Uranium, and therefore concentrations of Thorium in the Uranium Material (which is
from treated mine waters) is not equal to that expected from naturally occurring uranium ore
in rocks and soil.
18 Commenter footnote 4: It is not known if the percent thorium content stated in the
Amendment Request is total thorium (thorium-232 and thorium-228) or just thorium-232.
Additionally, the SER estimates that the thorium-232 content is 0.00076 % making the ratio of
uranium to thorium-2321:1,974. Neither the Amendment nor the SER are always clear
whether they are considering total thorium (thorium-232 plus thorium-228) or why only
thorium-232 is being measured and not thorium-228.
39
The Uranium Material is a precipitate from treatment of mine waters that have leached
from a natural uranium ore body. The mine water has elevated uranium concentrations
with low concentrations of radium and thorium, due to the differences in solubility of those
isotopes in water. Therefore, radiological composition of the Uranium Material would not
be expected to reflect the equilibrium activity concentration ratios typical of in-situ native
mineralization. Rather, activity concentration ratios of the Uranium Material reflect the
cumulative effect of unequal leaching (due to differences in solubility, as Thorium is less
mobile than Uranium) from the natural ore body and the isotope's individual susceptibility
to precipitation by the water treatment process. The Uranium Material isotopic ratios have
no natural decay relationship to each other.
As a result, the Ra-226 and Th-230 activity concentrations in the Uranium Material are
significantly lower than the activity concentrations of those isotopes in naturally occurring
uranium ores. The Ra-226 and Th-230 activity concentrations in typical Colorado Plateau
ores, having a uranium concentration of 0.25% U3U8 are each approximately 700 pCi/g and
from an Arizona Strip ore of 0.75% U3O8 are each approximately three times that amount,
or 2,100 pCi/g. These activity concentrations are contemplated by the Mill License. The
activity concentration of Ra-226 in the Uranium Material of 24.1 pCi/g (average) is
approximately 3.4% of the Ra-226 activity concentration in typical Colorado Plateau ores
and approximately 1.1% of the Ra-226 activity concentration in 0.75% U3O8 Arizona Strip
ores, which in either case is insignificant. The activity concentration of Th-230 in the
Uranium Material of 20.1 pCi/g represents an even lower percentage of the Th-230 activity
concentration in conventional ores.
The combined Ra-224 and Ra-228 activity concentration from the Th-232 decay chain is
even lower at 15.0 pCi/g. The very low activity concentration of Th-232, approximately
0.84 pCi/g, is within the natural activity concentration associated with conventional ores of
approximately 1.0 to 2.0 pCi/g Th-232 (see Section 6.1 of the Final Environmental Impact
Statement for Standards for the Control of Byproduct Materials from Uranium Ore
Processing (40 CFR 192), Volume 1, September 1983, Office of Radiation Programs, U.S.
Environmental Protection Agency (the "FEIS"), and Myrick, T.E., B.A. Berven and F.F.
Haywood 1982. Determination of Concentrations of Selected Radionuclides in Surface Soil
in the U.S. Health Physics 45(3):631-642. See
http://babel.hathitrust.org/cgi/pt?id=mdp.39015053324631#view=lup:seq=24.
Response #ll(b)
Statement 2: "None of the tables in the SER reveal how much greater the radium content from
Thorium is, in relationship to the amount of Thorium compared to uranium. Nor is there any
discussion of the implications of this relationship."
See Response #9, above, regarding the corrected Thorium-232 activity concentration.
Since the activities of individual radioisotopes and their relative ratios do not reflect
equilibrium conditions with the parent isotopes, the proportion of radium to thorium does
not reflect a specific ratio or relationship. The characterization of the Uranium Material
presented in the Safety Evaluation Report reflects the range of measured isotope activity
40
concentrations. Further, as discussed above, the total radium content from both natural
thorium and uranium in the Uranium Material is a small fraction of the total radium
content of typical uranium ores regardless of the relationship between the two
radioisotopes.
Response #11(c)
Statement 3: "...the DRC has minimized the impacts from the Thorium content of the Uranium
Material, relying only on the Thorium content, rather than the much larger radium content derived
from Thorium-232."
See Response #9, above, regarding the corrected Thorium-232 activity concentration. The
ranges of individual radioisotopes, including total thorium and radium, have been
characterized and their relative significance or impact to occupational and public health
has been assessed. The total radium activity concentration in the Uranium Material
(Attachment 2 and Table 5 to Attachment 5 of the Amendment Application) ranges from
36.6 pCi/g to 41 pCi/g, which is well below typical uranium ores. Because of the solubility
difference explained above, the radium and thorium are not in equilibrium with the
uranium. Therefore, the impact from the all of the daughter products will be less. The
range of total radium activity concentration in the Uranium Material is less than that for
conventional ores and is not significantly different from other alternate feed materials
already licensed to be processed at the Mill.
Response #11(d)
Statement 4: "The statement that the "Concentrations of Thorium-232 and its decay products are
negligible and can be ignored" (page 14) have no basis in fact when it comes to the radium
content"
See Response #9, above, regarding the corrected Thorium-232 activity concentration. The
Th-232 activity concentration in the Uranium Material (Attachment 2 and Table 5 to
Attachment 5 of the Amendment Application) ranges from 0.66 pCi/g to 1.14 pCi/g, which
is between 3 percent and 5 percent of the Th-230 activity concentration (20.4 pCi/g to 21.4
pCi/g) and within the range of counting error for the Th-230 analyses (3.7 pCi/g to 3.9
pCi/g), and much lower than the typical range of Th-230 activity concentration for
conventional ores (700-2,100 pCi/g) discussed above. The Th-232 activity concentration
in the Uranium Material is also lower than the typical Th-232 activity concentration in
conventional uranium ores, approximately 1.0 to 2.0 pCi/g, as discussed above. As
discussed above, the combined Ra-224 and Ra-228 activity concentration in the Uranium
Material, of approximately 15 pCi/g, is small compared to the total radium activity
concentration in conventional uranium ores, which is approximately 700 pCi/g for
Colorado Plateau ores and higher for Arizona Strip ores. Therefore, the statement quoted
from the SER is reasonable for assessing occupational exposures and radiation protection
measures.
The decay rate for Th-232 (half life = 1.4 x 1010 years) is so slow that radium in-growth
from Th-232 decay during the relatively brief handling period when the occupational or
41
public exposure could occur is negligible and would not significantly change the range of
presented total radium activity concentrations in the Uranium Material.
Response #llfe)
Statement S: "The SER must acknowledge and consider that fact that the radium content of the
Thorium is about 2/3 that from the uranium and, therefore, the radon emissions from the Thorium
will be almost as much as from the uranium and cannot be ignored."
See Response #9, above, regarding the corrected Thorium-232 activity concentration. See
also Responses #ll(a) through (d), above.
As discussed above, the total radium activity concentration in the Uranium Material
(Attachment 2 and Table 5 to Attachment 5 of the Amendment Application) ranges from
36.6 pCi/g to 41 pCi/g, which is insignificant compared to typical uranium ores. The decay
rate of Thorium (half life = 1.4 x 1010 years) is so slow that the radium in-growth derived
from the Uranium Material Th-232 will have no impact on occupational or public health
during the relatively brief handling period.
Further, the tailings derived from processing the Uranium Material will be covered,
reclaimed, and addressed in the final reclamation radon barrier design before significant
changes in radium activity concentrations and subsequent radon production will occur. In
fact, the half lives of Ra-228 and Ra-224 are 5.75 years and 3.64 days, respectively. As a
result, since the head of the decay series (Th-232) is at approximately 1 pCi/g, in about a
few tens of years, the Ra-228 (and Ra-224 more quickly) activity concentrations will
decrease to the same level as the Th-232 activity concentration (approximately 1 pCi/g).
That is, there will be no long-term above-background radioactivity in the tailings from the
Th-232 series in the Uranium Material.
Comment #12
5.4. Table 5 (page 11) compares the radionuclide activity concentrations in the proposed
Uranium Material with other feed materials. Most of the previous alternated feed material
identified in the table is from the W.R. Grace Application of April 2000, over 13 years ago.
Since the W.R Grace material was never shipped to the White Mesa Mill and it is unlikely
that it ever will be shipped to the Mill, the W.R. Grace material and any other alternative
feed that has never been processed at the Mill should not be used as a comparison with the
DMC Uranium Material. Only feed materials actually received and processed at the Mill
should be used for comparison.
Response #12
There is no authority for the commenter's claim that DRC may not rely on analyses that
were done for previous license amendments because the materials allowed by the
amendment were not milled at White Mesa. The technical safety and environmental
analysis were still done by the NRC.
42
Nonetheless, a revision to Table 5, providing comparison to conventional ores and
alternate feed materials that have been received and processed at the Mill, is presented
below. As indicated by the table, the activity concentration of every radioisotope in the
Uranium Material is substantially lower than conventional ores and other alternate feed
materials regardless of which feeds are selected for comparison. The Uranium Material is
overall a very low activity material.
Radionuclide
Radium-226
Total Radium
Thorium-228
Table 8 - Comparison of Radionuclide Activity Concentrations in
Proposed Uranium Material and Previous Alternate Feed Materials
Range of Uranium
Material Radionuclide
Activity Concentration1
(pCi/gdry)*
22.8 to 25.7
36.6 to 41.0
0.93 to 1.50
Thorium-230
Thorium-232
Lead-210
U-nat
Gross Alpha
Gross Beta
Colorado Plateau Ores and
Alternate Feed
Radionuclide Activity
Concentrations34
(pCi/gdry)*
2,830.5
2,832s
680 max.
20.4 to 21.4
0.66 to 1.14
32.0 to 41.0
15,000 mg/kg to 16,000
mg/kg
4310+6790 to 5440±870
4780±87to 4870±780
Source for Alternate
Feed Information
Based on 1% U308,
conventional ores
Based on 1% U308,
conventional ores
Molycorp Application,
2000
2,830.'
1,190 avg.
2,8308
686,000 mg/kg U-nat max.9
7,600 avg.;
22,400 max.
3,800 avg.;
17,000 max.
Based on 1% U308,
conventional ores
Heritage Application July
2000
Based on 1% U308,
conventional ores
Mill lab monthly assays
Cameco UF4
Linde Application March
2005 conventional ores
Linde Application March
2005 conventional ores
1 Attachment 2 of the April 2011 Amendment Request (Radioactive Material Profile Record, p. 2 of 11 and associated
tables).
2 pCi/g unless otherwise noted.
3 Selected concentrations for constituents found in characterization data for other alternate feed materials licensed for
processing at the Mill, for comparison purposes only.
4 Mined ores range from 0.1% to higher than 1%. Some Arizona strip ores have ranged as high as 2% U3Os (1.7% U-nat).
Abundance of uranium daughters can be estimated from the assumption that conventional ores are in secular
equilibrium.
5 Estimated based on assumption of 1% U3Os (0.85% U) at 2830 pCi/g and eight alphas in Uranium-238 series, and
neglecting the contribution from Uranium-235, plus natural thorium with an activity concentration of 2.0 pCi/g in
equilibrium with its daughters, based on Section 6.1 of the FEIS.
6 Estimated based on assumption of 1% U3Os (0.85% U) at 2830 pCi/g and eight alphas in Uranium-238 series and
neglecting the contribution from Uranium-235.
7 Estimated based on assumption of 1% U3Oa (0.85% U) at 2830 pCi/g and eight alphas in Uranium-238 series and
neglecting the contribution from Uranium-235.
8 Estimated based on assumption of 1% U3Oe (0.85% U) at 2830 pCi/g and eight alphas in Uranium-238 series and
neglecting the contribution from Uranium-235.
9 Monthly average grade assays of Cameco UF4 have periodically been as high as 80.7% U3Os (68.6% U).
43
Comment #13
5.5. During the October 9, 2013, hearing in Salt Lake City, DRC staff stated that the 1979 NRC
NEPA environmental analysis for the White Mesa Mill19 evaluated the processing of ores
containing thorium-232 and thorium-228. I would assume that those ores came from the
Colorado Plateau. The DRC should state exactly where in the 1979 ES the NRC states the
thorium-232 and thorium-228 content of ores that would be processed at the Mill and
where, exactly, the processing of ores containing thorium was evaluated.
Response #13
See Response # 4. Nevertheless, the DRC also provides this additional information.
All natural uranium ores contain thorium, including Th-232 and Th-228; therefore, any
environmental evaluation of uranium ores necessarily is an evaluation of ores containing
natural thorium.
Section 6.2.8.2.2 of the Final Generic Environmental Impact Statement on uranium milling,
NUREG-0706, September 1980 states that "[ujranium ores may also contain small amounts
of long-lived thorium-232 and its daughter products. The radiological parameters
associated with the Th-232 series are such that the impact of these isotopes is relatively
inconsequential, even when they are present in amounts comparable to the natural
uranium concentration in ore. The ore processed in the model mill is assumed to contain a
negligible concentration of Th-232 (as in most actual mills), so this radionuclide is not
included in the analysis of the radiological impacts."
Section 6.1 of the FEIS states that "[t]he dominant hazard from tailings is due to the
radioactive decay products of uranium-238, particularly radium-226 and its short half-life
decay products. Each gram of natural uranium ore contains about 490 pCi each of
uranium-238 and uranium-234 and additionally about 23 pCi of uranium-235 and 2 pCi of
thorium-232. Because they occur in relatively small proportions and/or pose much less
risk to health, uranium-235 and thorium-232 and their radioactive decay products may
usually be ignored in evaluating the hazard of uranium tailings."
Oak Ridge National Laboratory directly measured background concentrations of U-238, Ra-
226 and Th-232 in soil samples in 33 states (Myrick et al. 1982). The nationwide average
and range of values for Th-232 in 356 locations is reported as 0.98 (0.10 to 3.4) pCi/g. The
mean Th-232 concentrations for Utah, Arizona, Colorado and New Mexico are reported as
1.1, 0.63,1.3 and 0.95, respectively.
The expected Th-232 activity concentration of 1.0 to 2.0 pCi/g in conventional ores and
background soils is representative of typical ores at the White Mesa Mill. Based on an
activity concentration of 1.0 to 2.0 pCi/g Th-232, the activity concentrations of Ra-228 and
Ra-224 would also be expected to be approximately 1.0 to 2.0 pCi/g in conventional ores.
19 Commenter footnote 5: Final Environmental Statement (ES) Related to Operation of
White Mesa Uranium Project, 1979.
44
The total activity concentration from Ra-228 and Ra-224 in the Uranium Material is
currently in disequilibrium with the parent Th-232 and is slightly higher at approximately
15 pCi/g. However, as discussed above, the total activity concentration from Ra-228 and
Ra-224 in the Uranium Material is insignificant compared to the total activity concentration
from Ra-226 in conventional ores, which is approximately 700 pCi/g in Colorado Plateau
ores and higher in Arizona Strip Ores. Further, the half lives of Ra-228 and Ra-224 are 5.75
years and 3.64 days, respectively. As a result, since the head of the decay series (Th-232) is
at approximately 1 pCi/g in the Uranium Material, in about a few tens of years, the Ra-228
(and Ra-224 more quickly) activity concentrations will decrease to the same level as the
Th-232 activity concentration (approximately 1 pCi/g). That is, there will be no long-term
above-background radioactivity in the tailings from the Th-232 series in the Uranium
Material.
Comment #14
5.6. The 1979 ES did not assess any of the environmental impacts from the processing of any
feed materials other than "ore" at the White Mesa Mill.
Response #14
At the time of the 1979 ES, alternate feed processing was not considered to be a significant
activity at uranium mills, and was not expressly addressed in the 1979 ES. For that reason,
along with the fact that each alternate feed material is different and requires its own
evaluation, each alternate feed material requires its own license amendment application
and a separate environmental evaluation. Therefore, the NRC's and DRC's subsequent
environmental evaluations did specifically address the environmental impacts from
processing alternate feed materials, by considering each one individually and compared to
previously approved alternate feed material (see Response #12).
It is also misleading to consider analysis of "alternate feeds" as a class since each
application for an alternate feed is treated independently; the character of the requested
alternate feed must be considered both for the agency's analysis and for any challenge to
that analysis. In this instance the Uranium Material from the Dawn Mine is more similar to
Arizona Strip natural uranium ore than it is to many other alternate feeds.
Comment #15
6. Transportation and Storage of the Uranium Material
6.1. The discussion of the transportation of the Uranium Material fails to provide information
about how well prepared the local, state, and federal agencies are to respond to a spill of
the Uranium Material. The SER must evaluate the possible impacts from a spill of the
Uranium Material and the ability of the appropriate agencies to respond.
45
Response #15
There is no statutory or regulatory requirement that the licensee conduct a transportation
analysis for a license amendment. Even though it is not a requirement that DRC analyze
emergency response capabilities, the following is provided regarding transportation, spills
and responses.
In Appendix N of the 2007 License Renewal Application, the Licensee documented the
Mill's Transportation Accident Response Plan for Uranium Concentrate Spill (yellowcake).
The Mill has established this procedure to assist in a transportation accident involving
radioactive materials. This procedure identifies four phases: Initial, confinement, cleanup,
and cost recovery. For potential spills of yellowcake, ores or alternate feed materials
within the local area, the local fire department participates in response training with Mill
personnel. Mill personnel retain responsibility for spill control, cleanup and monitoring.
The Fire department provides first response only. Both organizations drill simultaneously
on response scenarios.
For spills outside the local area, the U.S. Department of Energy ("DOE") response team has
authority for response control. Energy Fuels Mill personnel act as first response and
transition authority to the DOE upon their arrival, at which point Mill personnel remain as
advisors regarding the specific material.
Note also that the 1979 EIS evaluated the impacts of potential spills of yellowcake, which
has significantly higher levels of radionuclides than conventional ores and the Uranium
Material, and is a finely divided solid which, if it reaches the environment, has a higher
likelihood of producing dispersible dust than conventional ores or Uranium Material.
In addition, an analysis was done during the CERCLA process, found in the Residuals
Management Plan for the Midnite Mine Water Treatment Plant, Revision 10, provided to
the EPA, including a Residuals Transportation Plan included as Attachment 2. See
Residuals Management Plan, Revision 10, included as Attachment N.
Comment #16
6.2. The SER (page 17) states that EFRl employees will take actions within 30- minutes to stop
the generation of visible dust First of all, if the material has degraded to dust particles, a
lot of dust could be dispersed within a 30-mmute period. Additionally, winds also blow at
night when it would be difficult to observe the dispersal of dust Additional measures must
be taken to assure that the Uranium Material would not be dispersed from the ore storage
pads under any wind or lighting conditions. Additionally, if any materials are dispersed,
whether on-site or off-site, the material must be promptly cleaned up.
Response #16
The Uranium Material will be at least 65% bound water when it leaves the Midnite Mine
site. The product produced by the filter press process is not a fine solid or even a wet solid
with free water that can evaporate or drain during shipment to the Mill. The filter press
46
product is a cement-like material. Specifically, the Uranium Material to be shipped consists
of solid chunks of lime/barium cement. Common cements, from sidewalk concrete to
nuclear reactor insulation bricks, are lime/barium cements hardened by reaction with
bound water. The water in the cement is bound to the barium salts and lime as a set
concrete, such that changes in ambient temperature, wind-speed, or humidity will not
evaporate the bound moisture, any more than they would evaporate bound moisture from
sidewalk concrete.
Energy Fuels provides daily monitoring and weekly documentation of dust conditions on
the ore pad. Ongoing monitoring data shows that emission limits are being met. See
General Response Parts 1.7,1.8 and 2. DRC will inspect the ore pad to ensure that the
Uranium Material is intact during the 14 day period before it is required to be covered.
Appropriate corrective action will be required if on-site or off-site levels exceed regulatory
levels, but ordinarily on-site contamination will be managed during the decontamination
process.
See also Response # 37 with respect to the 30 minute requirement.
Comment #17
ALTERNATE FEED ASSESSMENT PROCESS
7. Determination of whether the feed material is an ore.
7.1. The SER (page 2) states: "For the tailings and wastes from the proposed processing to
qualify as lle.(2) byproduct material, the feed material must qualify as 'ore."'
Figure 1
Photograph of Uranium Material, from
http://www.radiationcontrol.utah.gOv/Uranium_Mills/I
UC/DenisonJUC/docs/2013/july/midnitemine.pdf
47
The DRC errs in stating that the feed material must "qualify" as "ore." Based on the statute,
the feed material must be "ore." Also, it must be "ore," as contemplated by the AEA (42
U.S.C. §2014 (e)(2)] and the regulations promulgated by the NRC (10 C.F.R§40.4) and the
Environmental Policy Act (EPA) (40 C.F.R Part 192) responsive to the 1978 Uranium Mill
Tailing Radiation Control Act (UMTRA) (Public Law 95-604, 92 Stat. 3033 etseq.), which
amended the AEA ofl 954 (Public Law 83-703, 68 Stat. 919 et seq.). The AEA of1954 was
an amendment of the AEA of 1946 (Public Law 79-385, 60Stat. 755etseq.)
7.2. The material must be "ore," because the AEA defines lle.(2) byproduct material as "the
tailings or wastes produced by the extraction or concentration of uranium or thorium from
any ore processed primarily for its source material content "According to the White Mesa
License Condition 10.1 A: "The licensee may not dispose of any material on site that is not
"byproduct material,"as that term is defined in 42 U.S.C. Section 2014(e)(2) (Atomic
Energy Act of1953, Section 11(e)(2)). Therefore, the wastes from the processing of
materials other than "ore" do not meet the statutory definition oflle.(2) byproduct
material and should not be disposed of at the White Mesa Mill.
7.3. The SER also states that in order to determine whether the feed material is "ore" the DRC
can rely on a definition of "ore" that has been establish by the NRC. The SER references
SECY 95-211, SECY 99-012, and regulatory issue summary 2000-23.20 The DRC also relied
on the NRC "Interim Guidance on the Use of Uranium Mill Feed Material Other Than
Natural Ores" (Interim Guidance), dated November 30,2000. The DRC did not make those
documents available on the DRC website. The DRC should have made any documents relied
on for the review of the subject license amendment available, and included the links in the
SER and the DRC website Public Notice of the proposed licensing action.
Response #17
Please see General Response, Part 5 for a response to the commenter's claims about "ore."
With respect to the claim that the DRC should have made documents available on its
website, the DRC does not agree that there is a requirement that any document be placed
on its web site, although the DRC is striving to make as many documents as possible
available there. With respect to claims about documents that may be found nearly
instantaneously with an internet search, the DRC's obligation is to cite the document with
sufficient particularity to allow that search.
Comment #18
7.4. The NRC documents relied on by the DRC are from a policy guidance. A policy guidance is
neither statute or regulation. The policy guidance has no legal force and effect Nor, can a
federal policy guidance be used to substantively amend a federal statute or regulation.
Additionally, the State of Utah is not authorized to amend a federal statute or regulation.
7.5. The SER quotes the from the NRC Interim Guidance's new definition of the term ore: "Ore is
a natural or native matter that may be mined and treated for the extraction of any of its
20 Commenter footnote 6: U. S. Nuclear Regulatory Commission, Office of Nuclear Material and Safety
and Safeguards, NRC Regulatory Issue Summary 2000-23, Recent Changes to Uranium Recovery Policy,
Washington, D.C., November 30,2000. "Interim Guidance on the Use of Uranium Mill Feed Material Other Than
Natural Ores" (Interim Guidance), November 30,2000.
48
constituents or any other matter from which source material is extracted in a licensed
uranium or thorium mill." Emphasis added. In other words, the DRC is adopting a
substantive change to a federal and statutory definition in order to facilitate the
processing of radioactive waste in the guise of "ore." The State of Utah has no legal
authority to make such change to federal statute and NRC and EPA regulations.
Response #1«
See General Response, Part 5 regarding the nature of DRC's use of the NRC guidance.
Comment #19
8. Definition of "ore."
8.1. The applicability of various environmental regulations to a great degree depends upon
definitions. Congress, in their legislative function, often specifically defines words or
phrases related to the application of a statute to a particular material or circumstances-
when there is a need for explanation. However, when using words or terms with a common
and accepted meaning, such as groundwater, mill, tailings, or "ore," no explanation or
definition is necessary. The word "ore" like the word "water," is a word of common and
extensive usage with a clear meaning. It is not a new regulatory term, such as "source
material" or "He. (2) byproduct material," which have been established under the AEA.
"Ore" is not simply a material definition, such as "waste" or "tailings." The term "ore" has
an widely accepted plain meaning. Further, there has been a well understood and
unchanged meaning of the word "ore" throughout the history of the Atomic Energy Act
That is why "ore" was not defined in the AEA or NRC or EPA regulation.
The word, or term, "ore," as defined in several sources:
• Ore-a naturally occurring solid material from which metal or other valuable
minerals may be extracted. [Illustrated Oxford Dictionary, DKPub. 1998.]
• Ore-A native mineral containing a precious or useful metal in such quantity and in
such chemical combination as to make its extraction profitable. Also applied to
minerals mined for their content ofnonmetals. [The Compact Oxford English
Dictionary, Second Edition, Oxford University Press, 2000, p. 1224:915-916.]
• Ore-a. A natural mineral compound of the elements of which one at least is a
metal. Applied more loosely to all metaliferous rock, though it contains the metal
in a free state, and occasionally to the compounds of nonmetallic substances, as
sulfur ore Fay b. A mineral of sufficient value as to quality and quantity that
may be mined for profit Fay. [A Dictionary of Mining, Mineral, and Related Terms,
compiled and edited by Paul W. Thrush and Staff of the Bureau of Mines, U.S. Dept
of Interior, 1968.]
The Oxford English Dictionary points out that the current usage of the word "ore" goes
back several hundred years. A Dictionary of Mining, Mineral, and Related Terms lists over
65 compound words using the word "ore, "such as ore bin, ore body, ore deposit, ore
district, ore geology, ore grader, ore mineral, ore reserve, ore zone. All of these terms
incorporate the word "ore" as it relates to the mining of a native mineral. The term "ore,"
without explanation, has for many years been used in thousands, if not millions, of
instances in thousands of mining, milling, geological, mineralogical, radiochemical,
engineering, environmental, and regulatory publications.
9. Regulatory history of the use of the term "ore."
49
9.1. Feed materials other that natural "ore" are not "ore," nor can they be redefined as "ore"
under existing State of Utah regulations or NRC statutes or regulations. There is no
evidence that Congress in passing the AEA, as amended by UMTRCA, contemplated the use
of the word "ore" to mean anything other than a natural material that is mined for its
mineral content.
9.2. The regulatory history of UMTRCA, found m the two Congressional reports, provide
information with respect "uranium mill tailings"and "ore." The Congressional Reports
clearly state what was contemplated by Congress (i.e., the intent of Congress) when
Congress established a program for the control of "uranium mill tailings" from the
processing of "uranium ore" at inactive (Title I of UMTRCA) and active (Title II of
UMTRCA) uranium and thorium processing facilities. House Report (Interior and Insular
Affairs Committee) No. 95-1480 (I), August 11,1978, and House Report (Interstate and
Foreign Commerce Committee) No. 95-1480 (II), September 30,1978.
Under "Background and Need," HR No. 95-1480 (I) states:
Uranium mill tailings are the sandy waste produced by the uranium ore milling process.
Because only 1 to 5 pounds of useable uranium is extracted from each 2,000 pounds of ore,
tremendous quantities of waste are produced as a result of milling operations. These
tailings contain many naturally-occurring hazardous substances, both radioactive and
nonradioactive As a result of being for all practical purposes, a perpetual hazard,
uranium mill tailings present the major threat of the nuclear fuel cycle.
In its early years, the uranium milling industry was under the dominant control of the
Federal Government. At that time, uranium was being produced under Federal Contracts
for the Government's Manhattan Engineering District and Atomic Energy Commission
program
The Atomic Energy Commission and its successor, the Nuclear Regulatory Commission,
have retained authority for licensing uranium mills under the Atomic Energy Act since
1954. [HR No. 95-1480 (1) at 11.]
The second House Report, under "Need for a Remedial Action Program" states:
Uranium mills are a part of the nuclear fuel cycle. They extract uranium from ore for
eventual use in nuclear weapons and power-plants, leaving radioactive sand-like waste-
commonly called uranium mill taihngs-m generally unattended piles. [HR No. 95-1480 (2)
at 25.
9.3. Atomic Energy Commission and the AEA of1946. As indicated above, the domestic
uranium mining and milling industry was established at the behest of the Manhattan
Engineer District and the Atomic Energy Commission ("AEC"). The AEC regulated uranium
mines and uranium processing facilities, established ore buying stations, and bought ore.
Under the AEA of 1946 there was no commercial uranium mining and milling industry.
The mining and milling of uranium was done under contract to the AEC. After the AEA of
1954 there was both a government and commercial uranium mining and milling industry.
AEC purchased uranium ore under the Domestic Uranium Program. Regulations related to
that uranium procurement program were set forth in 10 C.F.R. Part 60. Part 60 was
deleted from 10 C.F.R. on March 3,1975, after the establishment of the NRC.
The AEC published a number of circulars related to their Domestic Uranium Program. The
Domestic Uranium Program-Circular No. 3-Guaranteed Three Year Minimum Price-
Uranium-Bearing Carnotite-Type or Roscoelite-Type Ores of the Colorado Plateau Area"
(April 9,1948), an amendment to 10 C.F.R. Part 60, states:
50
§ 60.3 Guaranteed three years minimum price for uranium bearing carnotite-type or
roscoehte-type ores of the Colorado Plateau- (a) Guarantee. To stimulate domestic
production of uranium-bearing ores of the Colorado Plateau area, commonly known as
carnotite-type or roscoelite-type ores, and in the interest of the common defense and
security the United States Atomic Energy Commission hereby establishes the guaranteed
minimum prices specified in Schedule 1 of this section, for the delivery of such ores to the
Commission, at Monticello, Utah, and Durango, Colorado, in accordance with the terms of
this section during the three calendar years following its effective date.
Note: In §§ 60.1 and 60.2 (Domestic Uranium Program, Circulars No. 1 and 2), the
Commission has established guaranteed prices for other domestic uranium-bearing ores,
and mechanical concentrates, and refined uranium products.
Note: The term "domestic" in this section, referring to uranium, uranium-bearing ores and
mechanical concentrates, means such uranium, ores, and concentrates produced from
deposits within the United States, its territories, possessions and the Canal Zone.
10 C.F.R. Part 60-Domestic Uranium Program at§ 60.5(c) states" Definitions. As used in
this section and in § 60.5(a), the term "buyer' refers to the U.S. Atomic Energy Commission,
or its authorized purchasing agent The term "ore" does not include mill tailings or other
mill products [Emphasis added.] [Circular 5,14 Fed. Reg.731 (February 18,1949).]
The AEC was the primary mover in the domestic uranium mining and milling program.
Under the AEA of 1946 and 1954, the AEC regulated uranium mining and milling and had
an established a uranium ore-buying program. From the 1940"s to 1975, the regulations m
10 C.F.R. Part 60 clearly indicated that "ore" does not include mill tailings or other mill
products.
10. Statutory definition of source material.
10.1. The AEA of1946, under "Control of Materials," Sec. 5 (b), "Source Materials," (1),
"Definition," provides the definition of "source material." Section 5(b)(1) states:
Definition. -As used in this Act, the term "source material" means uranium, thorium, or any
other material which is determined by the Commission, with the approval of the President,
to be peculiarly essential to the production of fissionable materials; but includes ores only if
they contain one or more of the foregoing materials in such concentration as the
Commission may by regulation determine from time to time.
The AEA of1954, Chapter 2, Section 11, "Definitions," sets forth the current statutory
definition of "source material" at Section 1 l(s): The term "source material" means (1)
uranium, thorium, or any other material which is determined by the Commission pursuant
to the provisions of section 61 to be source material; or (2) ores containing one or more of
the foregoing materials, in such concentrations as the Commission may by regulation
determine from time to time. [42 U.S.C. Sec. 2014(z).] Responsive to this statutory
definition, in 1961 the AEC established the following regulatory definition at 10 C.F.R. §
40.4: Source Material means: (1) Uranium or thorium, or any combination thereof, m any
physical or chemical form or (2) ores which contain by weight one-twentieth of one
percent (0.05%) or more of: (i) Uranium, (ii) thorium or (ni) any combination thereof.
Source material does not include special nuclear material. [26 Fed. Reg. 284 (Jan. 14,
1961).]
Therefore, the AEC made a determination, in accordance with the mandate of the AEA of
1954, that ores containing 0.05% thorium and/or uranium would meet the statutory
definition of source material. At the same time that they made that determination, the AEC
51
had a regulation that clearly stated that "ore" does not include mill tailings or other mill
products. Surely, the AEC, as the administrator of a uranium ore procurement program
and the developer of the uranium mining and milling industry knew what they were
talking about when they used the term "ore."
10.2. Additionally, the AEC set forth certain exemptions to the regulations in 10 C.F.R. Part40.
The proposed rule that was later finalized in January 1961 states, in pertinent part: The
following proposed amendment to Part 40 constitutes an overall revision of 10 CFR Part
40, "Control of Source Material."
With certain specified exceptions, the proposed amendment requires a license for the
receipt of title to, and the receipt, possession, use, transfer, import, or export of source
material Under the proposed amendment, the definition of the term "source material":
is revised to bring it into closer conformance with that contained in the Atomic Energy Act
ofl 954. "Source Material" is defined as (1) uranium or thorium, or any combination
thereof, in any physical or chemical form, but does not include special nuclear material, or
(2) ores which contain by weight one-twentieth of one percent (0.05 percent) or more of
(a) uranium, (b) thorium or (c) any combination thereof. The amendment would exempt
from the licensing requirements chemical mixtures, compounds, solutions or alloys
containing less than 0.05 percent source material by weight As a result of this exemption,
the change in the definition of source material is not expected to have any effect on the
licensing program
Section 62 of the Act prohibits the conduct of certain activities relating to source material
"after removal from its place of deposit m nature" unless such activities are authorized by
license issued by the Atomic Energy Commission. The Act does not, however, require a
license for the mining of source material, and the proposed regulations, as in the case of the
current regulations, do not require a license for the conduct of mining activities. Under the
present regulation, miners are required to have a license to transfer the source material
after it is mined. Under the proposed regulation below, the possession and transfer of
unrefined and unprocessed ores containing source material would be exempted. [47 Fed.
Reg. 8619 (September 7, I960).]
Therefore, the AEC established, via a rulemaking, exemptions for source material as
defined in Sec. 2014(z)(l) related to mixtures, compounds, solutions, or alloys containing
uranium and/or thorium:
(a) Any person is exempt from the regulations in this part and from the requirements for a
license set forth in section 62 of the Act to the extent that such person receives, possesses,
uses, transfers or delivers source material in any chemical mixture, compound, solution, or
alloy in which the source material is by weight less than one-twentieth ofl percent (0.05
percent) of the mixture, compound, solution or alloy. The exemption contained in this
paragraph does not include byproduct material as defined in this part. [10 C.F.R §
40.13(a), 26 Fed. Reg. 284 (fan. 14,1961).]
The AEC also established, via a rulemaking, exemptions for source material as defined in
Sec. 2014(z)(2) related to "ore":
(b) Any person is exempt from the regulations m this part and from the requirements for a
license set forth in section 62 of the act to the extent that such person receives, possesses,
uses, or transfers unrefined and unprocessed ore containing source material; provided,
that, except as authorized in a specific license, such person shall not refine or process such
ore. [10 C.F.R 40.13(b), 26 Fed. Reg. 284 (Jan. 14,1961).]
52
The definition of "source material" and the exemptions that are related to those definitions
stand today, over fifty years later. These regulatory definitions and exemptions did not
change when the NRC was established in 1975 and took on the regulatory responsibility for
"source material." These regulatory definitions and exemptions did not change when the
AEA was amended by UMTRCA in 1978. These regulations and definitions did not change
when the NRC developed their policy guidance's related to the processing of wastes from
various mineral processing operations (including the commingled soils and wastes from
other sources) at licensed uranium recovery operations.
11. Definition oflle.(2) byproduct material.
11.1. UMTRCA, among other things, amended the AEA of1954 by adding a new definition, the
definition oflle.(2) byproduct material:
Sec. 201. Section He. of the Atomic Energy Act of1954, is amended to read as follows:
"e. The term 'byproduct material' means (1) any radioactive material (except special
nuclear material)yielded in or made radioactive by exposure to the radiation incident to
the process of producing or utilizing special nuclear material, and (2) the tailings or
wastes produced by the extraction or concentration of uranium or thorium from any ore
processed primarily for its source material content" [42 U.S.C. Sec. 2014 (e).] There is no
evidence m the regulatory history of UMTRCA that Congress, in defining "lle.(2) byproduct
material" intended to also amend the statutory definition of "source material." There is no
evidence in the regulatory history of UMTRCA that the term "any ore" does not mean "any
type of uranium ore" (e.g., ore containing less than 0.05% uranium and/or thorium and the
numerous types of natural uranium-bearing minerals that were mined at uranium mines
and purchased by the AEC under their domestic uranium ore procurement program or
under the commercial "uranium milling"program). There is no evidence in the regulatory
history of UMTRCA that Congress intended the term "any ore" to mean anything that the
NRC, DRC, or EFRl wants it to mean (e.g., the wastes from mineral processing operations,
including wastes mixed with soils and commingled with the wastes from other sources,
even if those wastes are processed for their source material content at a uranium or
thorium mill).
12. Regulatory Background
12.1. Although both the EPA and the NRC established a regulatory program for uranium milling
and the processing of ores, neither the EPA nor the NRC contemplated the processing of
materials that were not "ore." Neither the EPA nor the NRC considered wastes from other
mineral processing operations (including contaminated soils and wastes from other
sources) in their concept of "ore," and they did not address in any manner the processing of
such wastes when promulgating their regulatory regimes for active uranium processing
facilities. Further, during the various rulemaking proceedings, the public was never
informed that wastes from other mineral processing operations (including commingled
contaminated soils and wastes from other sources), no matter how they were defined,
would be processed at licensed uranium or thorium mills. Therefore the public was given
no reasonable opportunity to comment on such processing activities at uranium mills.
12.2. Responsive to UMTRCA, the NRC incorporated the UMTRCA definition oflle.(2) byproduct
material (with clarification) into their regulations at 10 C.F.R. § 40.4:
"Byproduct Material" means the tailings or wastes produced by the extraction or
concentration of uranium or thorium from any ore processed primarily for its source
material content, including discrete surface wastes resulting from uranium solution
extraction processes. Underground ore bodies depleted by such solution extraction
operations do not constitute "byproduct material" within this definition. [44 Fed. Reg.
50012-50014(August 24,1979).]
53
The NRC also explained the need for the new definition:
Section 40.4 of 10 CFR Part 40 is amended to include a new definition of "byproduct
material." This amendment, which included uranium and thorium mill tailings as
byproduct material hcensable by the Commission, is required by the recently enacted
Uranium Mill Tailings Radiation Control Act. [44 Fed. Reg. S0012-50014 [August 24,
1979).] The NRC promulgated further regulations amending Part 40, in 1980, 45 Fed. Reg.
65521 -65538 (October 3,1980). In the summary, the NRC states:
The U.S. Nuclear Regulatory Commission is amending its regulations to specify licensing
requirements for uranium and thorium milling activities, including tailings and wastes
generated from these activities. The amendments to parts 40 and 150 take into account
the conclusions reached in a final generic environmental impact statement on uranium
milling and the requirements mandated in the Uranium Mill Tailings Radiation Control Act
of 1978, as amended, public comments received on a draft generic environmental impact
statement on uranium milling, and public comments received on proposed rules published
in the Federal Register. [Footnotes omitted.]
There is no statement in any of the NRC regulations in 10 C.F.R. Part 40 or in any of
rulemaking proceedings promulgating those regulations that wastes from other mineral
processing operations (including wastes from other sources) was "ore," under any
circumstances, or that, under any circumstances, such wastes would be processed at
licensed uranium or thorium mills and the tailings or wastes would be disposed of as He.
(2) byproduct material in the mill tailings impoundments. The regulations promulgated by
the NRC did not contemplate this kind of activity. The NEPA document in support of the
promulgation of the NRC regulatory program for uranium mills did not contemplate this
kind of activity. Also, in the rulemaking proceedings and NEPA proceeding, the public did
not have an opportunity to contemplate and comment on this kind of activity.
12.3. The NRC Final Generic Environmental Impact Statement on Uranium Milling (GEIS)
NUREG-0706, September 1980, includes a clear statement regarding the scope of the GEIS
and its understanding of what uranium milling entails: As stated in the NRC Federal
Register Notice (42 FR13874) on the proposed scope and outline for this study,
conventional uranium milling operations in both Agreement and Non-Agreement States,
are evaluated up to the year 2000. Conventional uranium milling as used herein refers to
the milling of ore mined primarily for the recovery of uranium. It involves the processes of
crushing, grinding, and leaching of the ore, followed by chemical separation and
concentration of uranium. Nonconventional recovery processes include in situ extraction
or ore bodies, leaching of uranium-rich tailings piles, and extraction of uranium from mine
water and wet-process phosphoric acid. These processes are described to a limited extent,
for completeness. [GEIS, Volume I, at 3.]
12.4. Section 3.3 of the GEIS is entitled "Prospects for Unconventional Methods of Uranium
Production." GEIS at 3-8. In the discussion of unconventional methods of uranium
production, there is no discussion of the processing of the types of materials that have been
processed at the White Mesa Mill as "alternate feed materials" as one of the types of
"unconventional methods of uranium production."
12.5. The GEIS is very clear about what it considers "ore" to be and gives no indication
whatsoever that materials other than ore, such as the tailings or waste from mineral
processing operations (including commingled contaminated soils and waste materials
from other sources) are considered to be "ore."
12.6. The GEIS includes a discussion of "Past Production Methods." That discussion makes
reference to "ore," "ore exploration," "pitchblende ore," "crude ore milling processes,"
54
"lower-grade ores," "uranium-bearinggold ores," "high-grade ores," "ore-buying stations,"
and "ore reserves." GEIS, Volume I, Chapter 2, at 2-1 to 2-2.
There is a lengthy discussion of "Uranium Mining and Milling Operations" that provides a
description of the commonly and less-commonly "used methods of mining uranium ores."
GEIS, Volume II, at B-l to B-2. Appendix 1.
12.7. In Chapter 6, "Environmental Impacts," there is a discussion of "Exposure to Uranium Ore
Dust," which states, in part:
Uranium ore dust in crushing and grinding areas of mills contains natural uranium (U-238,
U-235, thorium-230, radium-226, lead-210, and polonium-210) as the important
radionuclides. [GEIS, Volume I, at 6-41.]
There is also a table giving the "Average Occupational Internal Dose due to Inhalation of
Ore Dust" GEIS at 6-41, Table 6.16. Further, the GEIS discusses "Shipment of Ore to the
Mill" (GEIS at 7-11), "Sprinkling or Wetting of Ore Stockpile" (GEIS at 8-2), "Ore Storage"
and "Ore Crushing and Grinding" (GEIS at 8-6), "Ore Pad and Grinding" (GEIS, Vol. 3, at
G-2), "Ore Warehouse (GEIS, Vol. 3, at K-3) and "Alternatives to Control Dust from Ore
Handling, Crushing, and Grinding Operations (GEIS, Vol. Ill, at K-3 to K-3). In the NRC
responses to comments there are discussions of "Average Ore Grade, Uranium Recovery"
(GEIS, Vol.11, at A-12 to A-13). None of these references to "ore" contemplated wastes from
mineral processing operations. The GEIS gives no indication whatsoever that such wastes
are "ore," even if they were processed at a uranium or thorium recovery facility for their
"source material content." Clearly, the GEIS did not consider that the wastes from the
processing of such wastes would meet the definition oflle.(2) byproduct material.
12.8. In sum, the GEIS, which was developed for the rulemakings associated with the regulation
oflle.(2) byproduct material, did not evaluate, and the public did not have an opportunity
to comment upon, any of the possible health, safety, and environmental impacts of the
processing of other mineral processing wastes at uranium or thorium processing facilities.
They did not evaluate transportation issues related to the transportation of such wastes,
nor were reasonable alternatives to the transportation, receipt, processing, and disposal of
such wastes at uranium or thorium mills ever evaluated.
13. EPA standards.
13.1. UMTRCA directed the EPA to establish standards for uranium mill tailings and directed the
NRC to implement those standards. That statute, as codified in 42 U.S.C. 2022, states in
pertinent part:
Sec. 2022. Health and environmental standards for uranium mill tailings ***
(b) Promulgation and revision of rules for protection from hazards at processing or
disposal site.
(1) As soon as practicable, but not later than October 31,1982, the Administrator shall, by
rule, propose, and within 11 months thereafter promulgate in final form, standards of
general application for the protection of the public health, safety, and the environment
from radiological and nonradiological hazards associated with the processing and with the
possession, transfer, and disposal of byproduct material, as defined in section 2014(e)(2) of
this title, at sites at which ores are processed primarily for their source material content or
which are used for the disposal of such byproduct material. If the Administrator fails to
promulgate standards in final form under this subsection by October 1,1983, the authority
of the Administrator to promulgate such standards shall terminate, and the Commission
55
may take actions under this chapter without regard to any provision of this chapter
requiring such actions to comply with, or be taken in accordance with, standards
promulgated by the Administrator. In any such case, the Commission shall promulgate,
and from time to time revise, any such standards of general application, which the
Commission deems necessary to carry out its responsibilities in the conduct of its licensing
activities under this chapter. [Emphasis added.]
Requirements established by the Commission under this chapter with respect to byproduct
material as defined in section 2014(e)(2) of this title shall conform to such standards. Any
requirements adopted by the Commission respecting such byproduct material before
promulgation by the Commission of such standards shall be amended as the Commission
deems necessary to conform to such standards in the same manner as provided in
subsection (f)(3) of this section. Nothing in this subsection shall be construed to prohibit or
suspend the implementation or enforcement by the Commission of any requirement of the
Commission respecting byproduct material as defined in section 2014(e)(2) of this title
pending promulgation by the Commission of any such standard ofgeneral application. In
establishing such standards, the Administrator shall consider the risk to the public health,
safety, and the environment, the environmental and economic costs of applying such
standards, and such other factors as the Administrator determines to be appropriate. * * *
(d) Federal and State implementation and enforcement of the standards promulgated
pursuant to subsection (b) of this section shall be the responsibility of the Commission in
the conduct of its licensing activities under this chapter. States exercising authority
pursuant to section 2021(b) (2) of this title shall implement and enforce such standards in
accordance with subsection (o) of such section. [42 U.S.C. 2022(b) and (d).]
Congress directed the EPA only to establish standards for "sites at which ores are processed
primarily for their source material."
13.2. The EPA, as mandated by UMTRCA, finalized the "Environmental Standards for Uranium
and Thorium Mill Tailings at Licensed Commercial Processing Sites" m 1983. 48 Fed. Reg.
45925-45947, October 7,1983. In the "Summary of Background Information" the EPA
provides a discussion of "The Uranium Industry" (i.e., the industry and the type of sites that
the regulations apply to):
The major deposits of high-grade uranium ores in the United States are located in the
Colorado Plateau, the Wyoming Basins, and the Gulf Coast Plain of Texas. Most ore is
mined by either underground or open pit methods. At the mill the ore is first crushed,
blended, and ground to proper size for the leaching process which extracts uranium
After uranium is leached from the ore it is concentrated The depleted ore, in the form
of tailings, is pumped to a tailings pile as a slurry mixed with water. Since the uranium
content of ore averages only about 0.15 percent, essentially all the bulk or ore mined and
processed is contained in the tailings. [48 Fed. Reg. 45925, 45927, October 7,1983.]
13.3. Clearly, when the EPA developed its standards for uranium and thorium mills, they stated,
with specificity and particularity, what uranium ore was, what uranium milling consisted
of, and what uranium mill tailings consisted of. The EPA clearly stated that the standards
applied to the processing of uranium and thorium ores at uranium and thorium mills.
There is no reasonable evidence that would indicate that the standards promulgated by the
EPA applied to the processing of wastes from other mineral processing operations at
uranium and thorium mills.
13.4. Additionally, the EPA incorporated the 42 U.S.C. 2014(z) definition oflle.(2) byproduct
material, as clarified by the NRC in 10 C.F.R 40.4, into their standards at 40 C.F.R Subpart
56
D, § 192.31(b). Since that time, the EPA has not amended their definition oflle.(2)
byproduct material in a rulemaking proceeding, nor have they amended their definition
via policy guidance. The EPA has not, in any manner, widened the use of the words "any
ore" to include mineral processing wastes or other materials called "alternate feed."
13.5. The EPA did not sanction the NRC's policy guidance with respect new definitions of "ore"
and lle.(2) byproduct material, nor has the EPA adopted the NRC Interim Guidance.
Therefore, the EPA standards in 40 C.F.R. Part 192 do not in any manner apply to the
processing of alternate feed or the wastes from the processing of alternate feed. The State
of Utah has no legal authority to enforce EPA standards in the receipt, storage, processing,
and disposal of alternate feed materials. There is no legal basis for applying those
standards to the processing of feed materials other than "natural ore." (Note that, by
definition "ore" is a natural or native material.")
13.6. Clearly, the EPA, as directed by Congress, has not in any manner contemplated the
processing of wastes from other mineral extraction operations at uranium or thorium mills
when establishing the "Environmental Standards for Uranium and Thorium Mill Tailings
at Licensed Commercial Processing Sites."
13.7. When compiling that list of potential hazardous constituents that could be found in
uranium mill tailings and incorporating that list into 40 C.F.R. Part 192, the EPA did not in
any manner contemplate the processing of wastes (such as the Midnite Mine material)
from other mineral extraction operations at the mills for which they were establishing
standards. The EPA did not address in any manner effluents that might result from the
processing of alternate feed materials.
13.8. In the various rulemaking proceedings that have taken place in the establishment of the
EPA standards, the public was given no opportunity to consider or comment on the
possibility that the EPA standards would also apply to the processing of wastes from other
mineral processing operations (including commingled soils and waste materials from other
sources) at uranium and thorium mills.
It is true that the EPA and the NRC, in establishing their regulatory program, contemplated
the processing of ores at uranium and thorium mills. However, as shown above, processing
of wastes from other mineral processing operations (alternate feed) at uranium and
thorium mills is beyond the scope of the regulatory program established by the NRC and
the EPA m response to UMTRCA.
13.9 Furthermore, 10 C.F.R. Part40, Appendix A, Criterion 8, states in part:
Uranium and thorium byproduct materials must be managed so as to conform to the
applicable provisions of Title 40 of the Code of Federal Regulations, Part 440, "Ore Mining
and Dressing Point Source Category: Effluent Limitations Guidelines and New Source
Performance Standards, Subpart C, Uranium, Radium, and Vanadium Ores Subcategory,"
as codified on January 1,1983.
There is no indication that this NRC regulation and the regulation in 40 C.F.R. Part 440
(and the enabling statute) have in any manner been amended or altered by subsequent
NRC Interim Guidance. Therefore, any shift in the usage of the word "ore" would conflict
with these statutory and regulatory authority with respect this regulation.
14. Regulatory History of NRC's Alternate Feed Guidance
57
14.1. In the late 1980's the NRC was faced with a few requests to process material other than ore
at licensed uranium mills. At that time and today, there are two statutes or regulations
(implementing those statues) that are pertinent First is the statutory definition of "source
material" established in 1954 by the AEA, found at 42 U.S.C. Sec. 2014(z), and in the NRC
regulatory definition of "source material" (established in 1961 pursuant Sec. 2014(z)),
found at 10 C.F.R 40.4: Source Material means: (1) Uranium or thorium, or any
combination thereof, in any physical or chemical form or (2) ores which contain by weight
one-twentieth of one percent (0.05%) or more of: (t) Uranium, (li) thorium or (Hi) any
combination thereof. Source material does not include special nuclear material.
The second is the definition of "byproduct material" m Section 11(e)(2) of the Atomic
Energy Act of1954, as amended, (42 U.S.C Sec. 2014(e)(2)) and the regulatory definition of
"byproduct material"found in 10 C.F.R 40.4: Byproduct Material means the tailings or
wastes produced by the extraction or concentration of uranium or thorium from any ore
processed primarily for its source material content, including discrete surface wastes
resulting from uranium solution extraction processes. Underground ore bodies depleted by
such solution extraction operations do not constitute "byproduct material" within this
definition.
The NRC had several options, one of which would have been to go to Congress and request
that Congress change the definition oflle.(2) byproduct material to read "the tailings or
wastes produced by the extraction or concentration of any ore material processed
primarily for its source material content."
NRC Staff made a determination that they would not go to Congress to seek an amendment
to the AEA of 1954. Instead, what the NRC did was to manipulate the use of the word "ore"
as it is used m the definition oflle.(2) byproduct material. The NRC proposed for notice
and comment that a policy guidance be established for the purpose of interpreting the
term "ore,"as it is used in the definition oflle.(2) byproduct material. 57 Fed. Reg. 20525
(May 13,1992). Further, the NRC did not institute a rulemaking proceeding to amend 10
C.F.R. Part40.
Based on the new use of the term "ore" as put forth in the proposed guidance, not only
would the definition oflle.(2) byproduct material apply to "any ore processed primarily
for its source material content" in a licensed uranium or thorium mill, but the definition of
lle.(2) byproduct material would also apply to any material (particularly wastes from
various mineral extraction operations and various commingled wastes and materials)
processed primarily for its source material content m a licensed uranium or thorium mill.
In other words, the NRC altered the accepted meaning of the word "ore" as that word ore
was used in a statutory definition.
14.2. On May 14,1992, NRC Staff, sent a letter to the Environmental Protection Agency,
enclosing a copy of the May 13 proposed rules and requested EPA comment on two
proposed guidance documents and their associated staff analyses. Letter from Robert M.
Bernero, Director, Office of Nuclear Material Safety and Safeguards, NRC, to Sylvia K.
Lowrance, Director, Office of Solid Waste, EPA, May 14,1992. The EPA did not submit
comments on the proposed policy guidances. The only documentation of EPA's response to
that request for comment is quoted below and is found in the Commission Paper that
forwarded the finalized guidances to the Commission for their approval: There was an
issue that delayed finahzation of the guidance documents. In an October 1992, mixed
waste meeting between the NRC, the EPA, and DOE staff, the EPA identified potential
inconsistencies in the NRC's interpretation of the definition of source material in
conjunction with the exclusion of source material from the definition of solid waste in the
Resource Conservation and Recovery Act (RCRA). In making its point, the EPA cited the
58
May 13,1992, Federal Register notice on the disposal of non-lle.[2) byproduct material.
The staff had delayed finalization of the uranium recovery policy guidance documents,
pending resolution of the source material definition issue. However, the staff has now
decided that these two policy guidance documents can be finalized, independent of the
source material issue, because the guidance is not dependent on the interpretation of the
definition of source material. ["Final 'Revised Guidance on Disposal of Non-Atomic Energy
Act of1954, Section lle.(2) Byproduct Material in Tailings Impoundments' and Final
'Position and Guidance on the Use of Uranium Mill Feed Materials Other Than Natural
Ores,'" SECY-95-221, August 15,1995.]
The Revised Position and Guidance and the Final Position and Guidance gave no indication
that the NRC was amending, interpreting, or in any manner adjusting the accepted
meaning of the term "ore" as that word is used in the statutory and regulatory definition of
"source material." Nor was there any discussion in the various guidances related to the
processing of material other than natural ore (i.e. material that is not ore at all) of how the
exemptions set forth in 10 C.F.R. §40.13(a) and (b) would be impacted by guidance's new
definition of "ore".
There is no indication that the "source material definition issue" has ever been
appropriately addressed or resolved. It is an issue that has lain in some pretty murky
regulatory waters for quite some time.
14.3. Again, It is plain from the AEA of1946, the legislative history of the AEA of1954 and
UMTRCA, the regulatory history of the AEC, EPA, and NRC rules promulgated responsive to
those laws, that the Interim Guidance's new use of the term "ore" goes far beyond the
accepted meaning of that term and the clear intent of Congress. Therefore, the DRC, which
is authorized to administer and enforce the NRC and EPA regulations applicable to
uranium mills cannot make use of a definition of "ore" to claim that the wastes produced
from the processing of that material meets the statutory definition of "1 le.(2) byproduct
material. That new definition was not derived from statute or regulation, was not the
subject of a federal rulemaking, was not the subject of NEPA associated with the applicable
EPA or NRC rulemakings.
The NRC and DRC are not authorized to shift these accepted definitions at will as an
expression of their "regulatory flexibility." This is especially so when such shifts result in
direct conflicts with the NRC's own enabling statutes and regulations, as is the case with
the use of the newly defined term "ore. "Additionally, the NRC and DRC are not authorized
to shift definitions at will when such shifts directly conflict with the statutory authority of
another federal agency, in this case, the EPA.
15. Interim Guidance
15.1. The DRC staff reviewed the Amendment Request using "Interim Guidance on the Use of
Uranium Mill Feed Material Other Than Natural Ores." Prior to the use of the Interim
Guidance, the NRC Staff relied upon the 1995 "Final Position and Guidance on the Use of
Uranium Mill Feed Materials Other Than Natural Ores."
The Interim Guidance amended the 1995 Final Guidance in several important respects. For
example, it removed previous prohibitions regarding the receipt and processing of
materials subject to regulation under the Toxic Substance Control Act (TSCA) and the
Resource Conservation and Recovery Act (RCRA). Yet the public has never had an
opportunity to comment on the Interim Guidance. The proposed "Position and Guidance on
the Use of Uranium Mill Feed Materials Other Than Natural Ores" was published in the
59
Federal Register for public comment on May 13,1992. A notice of the Final Position and
Guidance was published m the Federal Register on September 22,1995.
The NRC never published the Interim Guidance in the Federal Register as a proposed policy
guidance for public comment, nor did the NRC publish a notice in the Federal Register
announcing Interim Guidance as a final policy guidance.
15.2. The law is well settled that a federal agency such as the NRC cannot rely upon policy
statements and guidance to accomplish rulemaking under the Administrative Procedure
Act
15.3. Since neither the Interim Guidance nor the accompanying definition of "ore" has been
finalized as an NRC regulation, the DRC's use of the Interim Guidance is without regulatory
foundation. The DRC is not authorized to make use of any policy guidance, no matter
where it comes from, to make substantive changes to federal regulations that the DRC
administers and enforces.
Response #19
See General Response, Part 5. The commenter's primary argument in Comment # 19 is that
DRC does not have authority to use NRC's interpretation of the term "ore" to conclude that
the resulting tailing would be byproduct materials. That was also the heart of the
argument made in the Fansteel case described in General Response, Part 5. The agency,
through the Radiation Control Board, determined that it did have authority to use NRC's
interpretation and that it would do so. That is obviously not a determination the
commenter agrees with, but at this point, with the question settled in a previous
proceeding and with no information presented in these comments that was not available at
the time of the Fansteel proceeding, the commenter's policy concerns should be addressed
in another form, such as in a rulemaking proceeding addressed to the NRC or, with respect
to related EPA regulations, to the EPA.
Comment #20
16. EPA Radionuclide NESHAPS
16.1. The EPA has established standards applicable to the emission of radon from licensed
uranium and thorium mills at 40 C.F.R. Part 61 Subpart W, National Emission Standards
for Radon Emissions From Operating Mill Tailings. The provisions Subpart W "apply to
owners or operators of facilities licensed to manage uranium byproduct materials during
and following the processing of uranium ores, commonly referred to as uranium mills and
their associated tailings." 40 C.F.R. § 61.250. Subpart Walso incorporates the AEA
definition of byproduct material: "Uranium byproduct material or tailings means the waste
produced by the extraction or concentration of uranium from any ore processed primarily
for its source material content "As discussed above, the EPA has never adopted the Interim
Guidance new definition of the term ore, as a policy or a regulation. Therefore, there is no
legal basis for the EPA or the Utah Division of Air Quality (which administers and enforces
Subpart W) to regulate the radon emissions from wastes from the processing of feed
materials other than natural "ore."
60
Response #20
The relationship of this comment to the current licensing proceeding is unclear. As
discussed in General Response, Part 5 and in Response # 19, the material disposed of after
processing qualified alternate feed materials is byproduct material, as both the NRC and
the D.C. Circuit court have determined. This interpretation has stood for some time, and
the EPA has not changed its regulation in response. If the commenter has concerns about
this result with respect to EPA's regulations, the remedy is through a rulemaking request to
the EPA.
Comment #21
CONCLUSION
17. The DRC must deny the Amendment Request for the following reasons:
17,1 The processing of feed material other than natural ore at licensed uranium mills was not
contemplated by the Atomic Energy Act, NRC and EPA regulations implementing the
UMTRCA, the generic EIS's associated with the promulgation of the NRC and EPA
regulations applicable to uranium mills, the White Mesa ES, and other federal regulations
associated with uranium mills (40 C.F.R Subpart W and Subpart T).
17.2. The DRC does not have the authority to enforce EPA standards to mill tailings that result
from the processing of feed material other than natural ore, because, under EPA
regulations, those wastes are notlle.(2) byproduct material.
17.3. The Utah Division of Air Quality does not have the authority to enforce 40 C.F.R. Part 61
Subpart Wwith respect radon form to mill tailings that result from the processing of feed
material other than natural ore, because, under EPA Part 61 regulations, those wastes are
notlle.(2) byproduct material.
17.4. There is no statutory or regulatory basis for the DRC relying on a policy that substantively
alters the statutory and regulatory intent of the federal laws and regulations that the DRC
currently administers and enforces.
17.5. The processing of alternate feed material is a regulatory program that was established
outside the statutory authority of the Atomic Energy Act and EPA and NRC regulation. The
DRC does not have the statutory and regulatory authority to administer and enforce such a
program.
17.6. The DRC based its review of the Amendment Request, the SER, and proposed licensing
action on documents that the DRC failed to identify and failed to make readily available to
the public.
17.7. The wastes from the processing of the Uranium Mill would not meet the statutory and
regulatory definition oflle.(2) byproduct material at contemplated by the AEA and NRC
and EPA implementing regulations and the NEPA and other background documents in
support of those rulemakings. The White Mesa Mill License does not authorize the disposal
of materials that are notlle.(2) byproduct material. Therefore the disposal of wastes
from the processing of the Uranium Material would be a violation of the License Condition
10.1 A.
61
Response #21
This is a summary of previous comments, therefore please see previous responses.
The exhibit that accompanied the commenter's comments can be found in Attachment B to
this Public Participation Summary.
2. Comments Received from Ute Mountain Ute Tribe (Celene Hawkins)
Comment #22
The Ute Mountain Ute Tribe ("Tribe") submits the following comments regarding the above-noted
license amendment ("License Amendment") and the Division of Radiation Control's ("DRC")
environmental analysis conducted pursuant to Utah Admin Code R313-24-3 ("Environmental
Analysis)2' to allow the White Mesa Mill ("WMM") to process as alternate feed contaminated
wastewater treatment sludge hauled from a uranium mining Superfund site located in the State of
Washington. The Tribe notes that it is in the process of engaging the State of Utah (including the
Utah Department of Environmental Quality ("DEQ") and its Divisions) in government-to-
government consultation regarding the WMM. The Tribe submits these comments as public
comments pursuant to Utah Admin. Code R313-17-2, R313-24-3, and R305-7-202. The Tribe has
organized its comments into five major sections. Section 1 provides DRC a quick overview of the
Tribe's background and connection with the WMM facility. Section II provides the Tribe's
overarching concern that DRC is proposing to amend a license issued in 2002 to allow a new source
of alternate feed material, even though DRC has acknowledged that the 2002-era license is
insufficient to address known environmental contamination and risks to Ute Mountain Ute Tribal
member ("UMU Tribal Member") and public health. Section III addresses four broad Environmental
Analysis deficiencies under Utah Admin. Code R313-24-3, including: (A) DRC's failure to adequately
analyze impacts on UMU Tribal Member and public health; (B) DRC's failure to adequately analyze
impacts on surface and groundwater resources; (C) DRC's complete failure to conduct an analysis of
alternative sites; and (D) DRC's failure to adequately analyze long-term impacts of the License
Amendment Section IV provides the Tribe's concern that deficiencies m DRC's regulation of the
WMM facility and m DRC's analysis of the addition of the alternate feed material from the Midnite
Mine site ("Midnite Mine Material") will eventually result in the relocation of uranium
contamination from the Spokane Indian Reservation to the Ute Mountain Ute Tribe's White Mesa
Community. Section V provides a brief conclusion to the Tribe's comments.
1. OVERVIEW OF TRIBAL BACKGROUND AND CONNECTION WITH THE WMM
FACILITY
The Ute Mountain Ute Tribe is a federally-recognized Indian tribe with lands located in
southwestern Colorado, northwestern New Mexico, and southeast Utah. There are two
21 Commenter footnote 1: Because the DRC tiers its License Amendment to the Request to
Amend Radioactive Materials License, Energy Fuels Resources (USA) Inc.,, White Mesa Uranium
Mill, San Juan County, Utah, and Environmental Report (May 2013) ("EFR Environmental
Report") and later EFR submissions dated December 5,2012, June 14,2013, and August 7,
2013, the Tribe includes those documents with the DRC's Safety Evaluation Report for the
Amendment Request to Process an Alternate Feed Material (the "Uranium Material") at the
White Mesa Mill (the "Mill") from Dawn Mining Corporation ("DMC") Midnite Mine,
Washington State (the "Midnite Mine SER") in its analysis of the DRC's compliance with Utah
Admin. Code R313-24-3, and collectively refers to the environmental analysis contained in these
documents as the "Environmental Analysis."
62
Tribal communities on the Ute Mountain Ute Reservation: Towaoc, in southwestern
Colorado, and White Mesa, which is located in Utah within three miles of the WMM facility.
The lands comprising the White Mesa community are held in trust for the Tribe and for
other individual UMU Tribal Member owners. The Tribe has jurisdiction (as a federally-
recognized tribal government) over Tnbally owned lands, UMU Tribal Member-owned
lands, and members of the Ute Mountain Ute Tribe who live in the White Mesa community.
Under the Tribe's Constitution, the Tribal Council is responsible for, among other things,
the management and protection of Tribal lands and for the protection of public peace,
safety, and welfare.
UMU Tribal Members have lived on and around White Mesa for centuries and intend to do
so forever. The community of White Mesa depends on groundwater resources buried deep
in the Navajo aquifer for its municipal (domestic) needs. UMU Tribal Members continue
traditional practices, which include hunting and gathering and using the land, plants,
wildlife and water in ways that are integral to their culture. It is reasonable to expect that
those resources are not contaminated with hazardous materials that have blown in the
wind or traveled through the groundwater from facilities regulated by the divisions ofDEQ.
The Tribe has serious concerns about the manner in which the WMM is currently operated
and regulated. The Tribe has long expressed concern that the WMM operations (in
particular, management practices that have allowed continued contamination of surface
resources, groundwater resources, and surface water resources) pose serious threats to the
health of the land and the natural and cultural resources within and around the Tribe's
White Mesa community and to the health and welfare of its Tribal members and their
future generations. The Tribe has also expressed concern that the poor quality ofEFR's
reclamation planning and surety estimations for the WMM facility will ultimately result in
a legacy of environmental contamination and blight both in the White Mesa community
and in surrounding communities.
Response #22
See General Responses, Parts 1 through 6. Although DRC has made public its plans to
propose changes to the White Mesa Mill License, it is not correct to say that "DRC has
acknowledged that the 2002-era license is insufficient to address known environmental
contamination and risks to Ute Mountain Ute Tribal member ("UMU Tribal Member") and
public health." Questions have been raised and will be answered in the course of the
License renewal proceeding and, DRC expects, the result will be improved protection. That
does not mean that DRC agrees that existing protection is inadequate. In fact, DRC does not
agree that there is any evidence demonstrating threats to human health or the
environment as a result of off-site contamination.
No additional response is required for this introductory information.
Comment #23
Since 2010, the Tribe has spent a significant amount of resources documenting its concerns
to Divisions ofDEQ during licensing and regulatory actions for the WMM facility. These
efforts include, but are not limited to, the following dockets:
• Challenge to the Utah Division of Air Quality's approval of the WMM facility's Air
Approval Order (public comments, October 29,2010/November 11,2010, Request
63
for Agency Action/Petition to Intervene, March 31,2011 ("Air Approval Order
RAA"));
• Public comments addressing the DRC's revision and renewal of the WMM facility's
radioactive materials license (public comment, December 16,2011 ("2011 RML
Renewal Comments")); and
• Public comments and administrative challenge to the DRC's approval of the
corrective action plan for USG12-04 (nitrate/chloride contamination plume)
(public comment, August 17,2012 ("Nitrate CAP Comments")), Request for Agency
Action, January 11,2013; Petition to Intervene, January 11,2013 ("Nitrate CAP
RAA ").
The Tribe's submissions to the DEQ include extensive documentation of the Tribe's
concerns that the DEQ's enforcement practices with the current set of licenses and permits
at the WMM facility are allowing EFR to contaminate air, land, surface water, vegetation,
and groundwater in violation of Utah State and federal law.22
Response #23
Please see General Response, Parts 1 through 6. See also R305-7-202 for requirements
associated with incorporation by reference, and particularly R305-7-202(3], which
requires that:
The relevance of and the relevant portions of any supporting materials
included with or incorporated by reference in comments shall be described
with reasonable specificity.
This is a reasonable provision that ensures that the burden will not be on the Director and
his staff to search through attachments and discern what parts of incorporated materials
the commenter believes is important. Because the relevance of the materials that the
commenter seeks to incorporate are not described with reasonable specificity with this
incorporation - although they may be elsewhere in the Ute Mountain Ute Tribe's comments
-- no additional response is required.
Comment #24
The Tribe now faces the DRC's current proposed License Amendment, which would allow the
WMM facility to receive and process wastewater treatment sludge produced during a
Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA" or
"Superfund") cleanup of groundwater and surface water contaminated by a former uranium
mining facility located on the Spokane Indian Reservation. The Tribe believes that, given the
status of the tailings cells, operations, existing and uncontrolled environmental contamination,
and lack of appropriate regulation of the WMM facility, the proposed License Amendment will
simply move, the contamination from the Midnite Mine Superfund Site on the Spokane Indian
Reservation to the lands, surface resources, surface water, and groundwater around the WMM
facility and near or on Ute Mountain Ute Tribal lands m the White Mesa Community.
Contaminated residues from the treatment of groundwater contamination at a uranium
22 Commenter footnote 2: To avoid repetitive comments to the DRC, the Tribe requests that
the documents referenced in this paragraph (including all exhibits) be incorporated by
reference and made a part of the administrative record on the approval of this License
Amendment
64
mining Superfund Site on one Indian Reservation should not be hauled hundreds of miles to a
problematic uranium milling site with existing groundwater contamination that impacts
another Tribal Community.
Response #24
Please see General Response, Parts 1 through 6. DRC does not agree that there is evidence
of contamination, on-site or off-site, that is uncontrolled or that is not being adequately
addressed. The site is being adequately regulated, as described in the General Response.
Comment #25
Accordingly, and for the reasons detailed below, the Tribe submits these comments to
demand that the DRC deny the requested License Amendment at this time.
II. DRC SHOULD NOT AMEND THE WMM FACILITY'S 2002 RADIOACTIVE MATERIALS
LICENSE TO ADD ANY NEW SOURCES OF ALTERNATE FEED MATERIAL
The overarching and most fundamental flaw with the License Amendment and the
Environmental Analysis is that the DRC is proposing to amend a radioactive materials
license that was issued to the WMM by the Nuclear Regulatory Commission in 2002. The
DRC's decision to amend the 2002 version ofEFR's radioactive materials license ("2002
RML") is problematic because the 2002 RML does not address known contamination events
and significant operational and regulatory deficiencies at the WMM facility. In addition,
the DRC's decision to base its entire Environmental Analysis for the License Amendment
upon the faulty assumption that the 2002 RML and the existing regulatory regime are
competently managing existing ore and alternate feed material leads to a deeply flawed
analysis of whether the WMM facility is a proper facility under Utah State or federal law to
handle CERCLA waste.
Response #25
Please see General Response, Parts 1 through 6. As described in those parts, DRC does not
agree that there is evidence of contamination, on-site or off-site, that is uncontrolled or that
is not being adequately addressed. The site is being adequately regulated, as described in
those parts.
It is the EPA's role, not DRC's, to make a determination that the facility is an appropriate
one to receive CERCLA wastes. The commenter's concerns should be directed to the EPA.
Comment #26
A. THE 2002 RML IS INSUFFICIENT TO ADDRESS ONGOING AND UNCONTROLLED
CONTAMINATION AND SERIOUS OPERATIONAL DEFICIENCIES AT THE WMM
FACILITY
Under Utah Admin. Code R313-70-5(4)(a), the DRC is responsible for reviewing
and issuing renewals of radioactive materials licenses for facilities like the WMM
every five years. The last renewal of the WMM radioactive materials license was
65
issued m 2002, and the DRC's review of the facility's 2007 renewal application has
been ongoing for more than six years.
Response #26
The License was last renewed in March, 1997 by the NRC for a period of ten 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 the draft License
renewal would go back out again for public comment. That decision was made for three
principal reasons:
• In accordance with the requests of some of the commenters, DRC undertook
additional environmental analysis. The preliminary result of that analysis - analysis
that was done before giving Energy Fuels an opportunity to comment - show that
the facility meets air emission dose limits and doses to the public.
• It was determined 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).
• Additional time was also required to respond to the many comments received
during the public comment period. Although the DRC did not believe that most of
the comments warranted a different action than the ones initially proposed,
responding to the many comments has been very time consuming.
See also General Response, Part 6 and, with respect to the adequacy of environmental
controls and oversight generally, Parts 1 through 5.
Comment #27
The renewal process for the WMM facility radioactive materials license has been
difficult and time-consuming, in part because of serious ongoing violations of the
WMM's groundwater permit and state and federal law. In the eleven years that
have passed since the last renewal of the WMM facility's radioactive materials
license, there have been several new groundwater enforcement actions taken to
address contamination at the WMM facility. See, e.g., Docket UGW12-04 (docket
initiated in January, 2009 addressing co-located nitrate/chloride plume m
perched groundwater aquifer); Docket UGW12-03 (docket initiated in July, 2012
addressing multiple violations of the groundwater permit, including a decreasing
pH trend and exceedances of cadmium, manganese, selenium, thallium, uranium,
TDS, sulfate, and fluoride, co-located with exceedances m nitrate, nitrite, chloride,
chloroform, and dichloromethane). See also 2011 Renewal RML Comments §
1 H(A)(1 )(a) and Exhibit C; April 23,2012 Letter to Rusty Lundberg ("April 2012
Groundwater Letter") (both explaining the Tribe's concerns about elevated levels
of indicator parameters in monitoring wells near the southern/Tribal border of
the WMM facility). There has been scientific documentation and DRC
66
acknowledgement that the WMM facility has caused offsite contamination of land,
surface water, and other surface resources. 2011 RML Renewal Comments §
111(B)(1), Exhibit L (explaining the findings in the USGS Study that uranium and
vanadium have migrated east of the WMM facility and into off-site vegetation,
lands, and surface water); USGS Report: White Mesa Mill, Utah Division of
Radiation Control Public Presentation, Blanding Utah Quly 9,2012). The WMM
facility has caused at least two violations of the National Emission Standards for
Radon Emissions from Operating Mill Tailings (promulgated as a National
Emission Standard for Hazardous Air Pollutants under the federal Clean Air Act
and published in 40 C.F.R. Part 61, subpart W ("Subpart WNESHAP"). See 2011
RML Renewal Comments 111(B)(3) (explaining that the WMM is in violation of
the Subpart WNESHAP work practice standard restriction to two tailings
impoundments); Exhibit A (to these October 2013 Comments) (documenting the
WMM's ongoing and uncontrolled violation of the radon emissions limit set forth
m 40 CFR. § 61.252).
Response #27
See General Response, Parts 1 through 6 regarding environmental conditions at the White
Mesa Mill. DRC does not have authority to implement NESHAPs; that authority belongs to
the DAQ. However the White Mesa Mill is not in violation of NESHAPs 40 CFR Part 61,
Subpart W, as described see General Response, Part 3. There are no "ongoing and
uncontrolled" radon emissions in violation of the NESHAPs standards. Radon emissions
did exceed 20 pCi/m2s in 2013, but there is no standard that applies to a cell that is not in
operation unless a standard is imposed as a license condition. Such a standard will be
proposed in association with the White Mesa Mill license renewal, but no such standard
applies at this time.
It is also noteworthy that the facility increased the soil cover over radon hot spots from the
cell and that monthly sampling events since September 2014 have showed that current
readings are under 20 pCi/mzs.
The commenter has also not provided a nexus between alleged violations under the Clean
Air Act and the requested denial of this License Amendment under unrelated authorities.
The reasons for the license renewal timing are addressed in Response # 26; DRC does not
agree that the License renewal has been delayed for the reasons specified in the first
sentence of the comment.
See also Response # 22.
Comment #28
Some of the existing contamination issues have been complicated or exacerbated
by the presence of other alternate feed sources at the facility. See, e.g., 2011 RML
Renewal Comments § 111(C)(1) (citing a technical report detailing that certain
alternate feed material is incompatible with the PVC liners in Tailings Cells 1,2,
and 3); Energy Fuels Resources (USA) Inc., Tailings Cell 2 Monthly Compliance
Report for July 2013, 6 (August 20,2013) (noting that EFR identified areas of
elevated radon flux (leading to the Subpart W NESHAP violation) from "specific
alternate feed tailings disposal with elevated radionuclide content").
67
Response #28
Each alternate feed proposal is analyzed separately, and compatibility with the Mill's
process and existing tailings cells are among the questions analyzed. The commenter has
cited to a general study without similarly evaluating how that study applies to the specific
Uranium Material proposed to be processed.
The 2011 RRD International Corp. Report, the "technical report" referenced in the
comment, refers to volatile and semi-volatile organic solvents such as benzene, carbon
tetrachloride, chloroform, methylene chloride, and naphthalene, generally at
concentrations much higher than are found in any of the alternate feed materials that have
been received at the site. None of these materials are present in the Uranium Material (see
SER, page 18 and pages 22-25), and the reference cited is therefore not applicable to the
decision regarding the Uranium Material. Additionally, the tailings will be disposed of in
cells 4A or 4B, so the compatibility concerns raised in the comment are not applicable to
this particular amendment request.
The Uranium Material also has radionuclide content that is less than the average
radionuclide concentration of ore the Mill processes, so no "elevated radon flux" is
therefore expected. See Safety Evaluation Report Section 4.1.1.
Comment #29
During the renewal review process, the DRC issued several rounds of
interrogatories that indicate that there are serious deficiencies in the current
reclamation plan and the surety estimate for the facility and that DRC has some
concerns about how the WMM handles, processes, and disposes of alternate feed
material. See, e.g., Safety Evaluation Report for the Denison Mines White Mesa
Mill 2007 License Renewal Application, October 2011 ("2011 RML SER") §§
3.2.3.1; 5.5.4; 5.5.5. In 2011, the DRC issued a draft radioactive materials license
renewal for public comment See Draft License Renewal, October 2011 ("2011
Draft RML Renewal"). That draft contained significant revisions to the 2002 RML,
which include, but are not limited to:
A prohibition on "[n]ew construction of any mill process water,
wastewater storage, and/or tailings disposal embankments" until DRC
approval of several required reclamation plan items and a revised surety
estimate. 2011 Draft RML Renewal §9.1 (citing §9.11).
Requirements for a revised surety estimate to include the cost of
groundwater remediation (from groundwater contamination
events/dockets at the WMM facility). 2011 Draft RML Renewal §§ 9.5,
10.20.
Heightened requirements for submission and DRC review of standard
operating procedures (including, but not limited to, environmental
monitoring programs); 2011 Draft RML Renewal § 9.6.
Additional regulatory requirements on the release of ore trucks and
intermodal containers from the restricted areas (additional requirements
related to transport of material into the facility). 2011 Draft RML
Renewal § 9.10.
68
• Additional restrictions on the receipt of new sources of alternate feed and
removal of some currently licensed sources of alternate feed. 2011 RML
SER §3.2.3.1.
• New provisions on the groundwater monitoring program and the leak
detection systems, 2011 Draft RML Renewal § 11.3.
• A new provision required the WMM owner to conduct an annual survey of
land use and to identify any potential routes of exposure of contaminates
and dose to the general public. 2011 Draft RML Renewal § 12.3; 2011
Draft RML SER §2.1.2.1.
Response #29
The interrogatories were for Reclamation Plan 5.0, a new Plan that Energy Fuels has
proposed to replace its existing Plan, Reclamation Plan 3.2(B). Plan 5.0 has not been
approved, and will not be until questions are resolved. Until that time, Rec. Plan 3.2(B) is
still approved and fully funded.
Following is a response to each of the six items specified.
• Prohibition on construction of new tailings embankments until approval of
Reclamation Plan and surety. The Director has authority under License Condition
9.5 to implement this requirement; the proposed language would have simply
clarified the matter. This issue is also inapplicable to the Dawn Mining amendment
decision because this Uranium Material will not require the construction of any new
cells.
• A revised surety estimate to include the cost of groundwater remediation. Costs of
ground water remediation are in the currently-approved surety. See General
Response Part 4 Surety.
• Heightened requirements for DRC review of standard operating procedures. The Mill's
Standard Operating Procedures ("SOPs") are already available for review by DRC
and are inspected regularly by DRC personnel while on site at the Mill. The
requirement for submission of SOPs to DRC was added for the convenience of DRC,
to allow timely review of the SOPs, based on changes in operations.
• Additional regulatory requirements on release of ore trucks. The Mill is currently
required to comply with all State of Utah and US Department of Transportation
("DOT") regulations for packaging and transportation of materials from the Mill, and
is subject to inspection by DRC to confirm compliance with both DRC and DOT
requirements. The proposed changes to the License are clarifications, not new
regulatory requirements. Energy Fuels is already meeting the requirements, and
DRC inspectors do already have the authority to require that they be met. The
clarification is being proposed to ensure that the inspectors and the licensee share
expectations.
• Proposed additional restrictions on the receipt of new sources of alternate feed. Even
if the proposed new license amendments addressing alternate feed were part of the
License now, this License Amendment would be unaffected. One new condition
would require a demonstration for any new alternate feed that the tailings system
has sufficient capacity for the proposed alternate feed and all other materials on site
69
is not relevant to Dawn. While this is a good measure to ensure there is no error in
this calculation, milling of the Uranium Material will not pose a volume problem.
Tailings from the Uranium Material will result in approximately 4,500 tons of
tailings out a total tailings volume of approximately 5 million tons (Cells 2, 3 and 4A)
disposed, or 0.09%. The renewal draft license would also remove approval of some
alternate feed materials from the License, as a routine update to remove conditions
that are no longer relevant, e.g., because the off-site projects that generated the
feeds are completed.
• New provisions for groundwater monitoring and leak detection. None of the
proposed restrictions apply to Cell 4A or, eventually, to Cell 4B, where the tailings
from processing the Uranium Material will be deposited.
• Annual land survey. Additional information resulting from an annual land survey
will be helpful, but need not be done prior to approval of this license amendment, as
described in General Response, Parts 1 through 6.
Finally, DRC expects to issue the draft license for notice and comment in the near future.
Since delivery and processing of the Uranium Material is proposed to take place at regular
intervals over an initial ten year period, the large majority of the Uranium Material would
be received and processed after any new License conditions are in place.
Comment #30
In December of 2011, the Tribe submitted public comments supporting some of the
more restrictive revisions to the Draft RML Renewal and demanding, among other
things, that the DRC include additional provisions in the license to address
surface/airborne contamination, require concurrent reclamation of the older
tailings cells, and require additional surety to cover the facility. See 2011 RML
Renewal Comments. Since 2011, the Tribe has urged the DRC to take immediate
action on the new groundwater contamination plumes and on the two violations
of the Subpart W NESHAP standards that pose significant risk to UMU Tribal
Members and the health of the public near the facility. See, e.g., Nitrate CAP
Comments; Nitrate CAP RAA.
Response #30
See General Response, Parts 1 through 5 regarding environmental conditions at the facility,
and Response # 26 regarding the License renewal. As described in the General Response,
Parts 1 through 5, ground water contamination is being appropriately addressed, and
surface and airborne contamination does not pose a threat. DRC does not agree that there
are significant risks to human health or the environment from the facility or that the surety
for the facility is not adequate. The DRC does not have authority to enforce NESHAPs
standards on operating tailings cells, but notes that the DAQ has determined that NESHAPs
standards are not being violated.
Comment #31
As of October of 2013, the DRC has taken no action to respond to public comments
or to issue a radioactive materials license renewal for the WMM facility. This
70
means that, while the DRC has identified the need to address existing
contamination at or near the WMM facility, revise the facility's reclamation plan,
raise the facility's surety estimate to include the cost of groundwater cleanup, and
to address transportation and other operational issues at the facility, the 2002
RML still guides regulation and operation of the WMM facility and provides none
of the protections provided in the 2011 Draft RML Renewal or requested by the
Tribe in the 2011 RML Renewal Comments and related groundwater and air
quality proceedings.
Response #31
See General Response, Part 1 through 5 and Responses # 26 (regarding comments), #29,
and #30.
Comment #32
The Tribe asserts that both the License Amendment and the Environmental
Analysis are fatally flawed because they fail to address numerous environmental,
public health and safety, reclamation, surety, and operational issues identified
during the DRC's license review process and through subsequent violations of state
and federal environmental laws at the facility. The 2002 RML does not provide
any heightened protections or restrictions to ensure the safe handling, processing,
and disposal of any ore or alternate feed material-including the Midnite Mine
Material-or to address existing and ongoing environmental contamination at the
WMMfacihty.
B. THE DRC'S ENTIRE ENVIRONMENTAL ANALYSIS IS FLAWED BECAUSE IT IS
PREMISED UPON AN ASSUMPTION THA T THE 2002 RML AND THE EXISTING
REGULATORY SCHEME IS SUFFICIENT TO ENSURE THAT THE WMM FACILITY
COM PETE NTL Y MANAGES EXISTING ORE AND ALTERNA TE FEED MA TERIAL A T
THE WMM FACILITY
In the Environmental Analysis for the requested License Amendment, the DRC
accepts EFR's environmental review that focuses on whether the receipt and
processing of Midnite Mine Material would result in any potential "significant
incremental impacts over and above previously licensed activities." EFR
Environmental Report §4.1 (emphasis in original). The DRC broadly bases its
"incremental" review of the addition of Midnite Mine Material to the WMM facility
on the assumption that existing operations, monitoring programs, and regulation
of the WMMfacihty are functioning to competently manage ore and alternate feed
at the WMM facility. See, e.g., Midnite Mine SER at p. 27 ("The mill has previously
managed chlorides, fluorides, and sulfates in the Mill circuit and tailings system
with no adverse process, environmental, or safety issues"); id. at p. 33 ("there is no
indication that the Mill is impacting surface waters"); EFR Environmental Report
§§4.6-4.9; Letter from EFRl to Rusty Lundberg (June 14,2013), Responses to
General Comments 1, le, I i. This assumption allows the DRC to repeatedly
determine that, because the Midnite Mine Material is similar to other alternate
feeds and natural ores already processed at the WMM Facility and it does not
introduce new chemical constituents into the tailings cells, there will be no
significant incremental environmental impact on the WMM facility. See, e.g.,
Midnite Mine SER at p. 34 (finding that, because the Midnite Material is similar to
other material at the WMM facility, the existing surface water and groundwater
monitoring programs are sufficient to detect impacts to surface water); id. at p. 37
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(noting that existing monitoring for chlorides, fluorides, and sulfate will identify
any tailings cell leakage and any barium contamination)23; id. at §4.8 (Findings 1 -
4, containing broad statements about the sufficiency of the existing air,
groundwater, and environmental monitoring systems to address environmental
contamination from the Midnite Mine Material).
Response #32
See General Response, Part 1 through 6.
Comment #33
Because the 2002 RML (and/or existing monitoring programs and the current
regulation of the WMM facility) has not ensured and cannot ensure that EFR
competently manages the existing ore and alternate feed at the WMM facility, DRC
cannot assume m the Environmental Analysis that the 2002 RML and the existing
programs and regulation can ensure proper storage, processing, or disposal of the
Midnite Mine Material. Therefore, both the baseline assumption and the broad
conclusions drawn in the Environmental Analysis are fundamentally flawed.
Section III, infra, will provide specific details on how this flawed baseline
assumption repeatedly results in inadequate Environmental Analysis of specific
environmental impacts as required under Utah Admin. Code R-313-24-3.
Response #33
See General Response, Part 1 through 5 and Responses #29-31. As described in the
General Response, the commenter's assumption that ground water contamination is
coming from cell leakage is contrary to the best evidence, which shows that the
contamination is caused by historical activities. The evidence also shows that the
corrective actions pursuant to previous orders issued by the DRC are proving to be
effective. DRC will continue to monitor the results of the actions that are being ordered,
and, if those results contradict previous assumptions about the sources, will take
appropriate action. There is no such evidence before the DRC at this time. However, there
is no evidence that any of the cells are leaking; the commenter's premise for its concern
that disposal of tailings from the Uranium Material will exacerbate an existing problem is
mistaken.
23 Commenter's footnote 3: The Tribe notes here that the DRC's emphasis on
monitoring for chloride, fluoride, and sulfate as "early warning" indicators of barium or
tailings cell leakage is disingenuous. The DRC has already detected chloride, fluoride, sulfates
(along with nitrate, nitrite, a decreasing pH trend, and an increase in other monitored
constituents) in the WMM facility's groundwater monitoring system, but has refused the Tribe's
demands that the DRC require EFR to adequately investigate whether the tailings cells are the
source of the overlapping contamination plumes. See Nitrate CAP RAA § HI. Accordingly, it is
very unlikely that future detection of chloride, fluoride, or sulfate in the groundwater
monitoring system will offer any guarantee that releases of barium from the tailings cells will
be promptly or properly remediated.
72
Comment #34
///. THE ENVIRONMENTAL ANALYSIS FAILS TO MEET THE REQUIREMENTS OF UTAH ADMIN.
CODE R-313-24-3
A. THE ENVIRONMENTAL ANALYSIS FAILS TO ADEQUATELY CONSIDER IMPACTS
ON TRIBAL MEMBER AND PUBLIC HEALTH
The Environmental Analysis fails to meet Utah Admin. Code R313-24-3(l)(a)'s
requirement that it contain "(a)n assessment of the radiological and
nonradiological impacts to the public health from the activities to be conducted
pursuant to the license or amendment" As described in Section 11(A), supra, the
WMM facility has a history of unresolved environmental contamination events
that include contamination of the perched (shallow) groundwater aquifer,
contamination of surface water, land, and natural resources through airborne
pathways, and violations of radon emissions standards set forth in Subpart W
NESHAP. As described in Section 11(A), supra, some of the environmental
contamination issues at the WMM have been exacerbated by the presence of
alternate feed material at the facility.
The Environmental Analysis fails to acknowledge any of the existing
contamination events, and the Environmental Analysis fails to acknowledge that
existing operations, monitoring protocols, and regulatory actions taken by the
DRC have already failed to adequately protect UMU Tribal member health and the
public health. For that reason alone, the Environmental Analysis fails to
adequately consider important public health impacts from the acceptance of the
Midnite Mine Material. In addition, the Environmental Analysis fails to adequately
analyze specific public health impacts from airborne releases of Midnite Mine
Material and public health impacts from surface and groundwater contamination.
Response #34
See General Response, Part 1 through 5 and Responses #27-33.
Comment #35
1. The Environmental Analysis Fails to Adequately Analyze and Address
Public Health Impacts from Airborne Releases of Midnite Mine Material.
The portions of the Environmental Analysis that assess the potential air
quality impacts (and the resulting two conditions in Section 10.20 of the
License Amendment) do not sufficiently analyze or address impacts to
UMU Tribal Member or public health from airborne contamination. In
the Environmental Analysis, the DRC relies upon the current air approval
order, air monitoring protocols, stormwater management plan, and
standard operating procedures at the WMM to provide adequate
protection of UMU Tribal Member and the public health from airborne
releases of Midnite Mine Material. Midnite Mine SER § 4.4 at p. 32-33
(discussing airborne contamination and stormwater management); id at
§ 4.8 (making findings regarding the existing dust suppression program,
the existing air approval order, and the existing airborne effluent
monitoring program).
73
As the Tribe has exhaustively documented to the DRC since 2010, the
results of the USGS Study confirm that the current implementation of the
2002 RML, the facility air approval order, and the monitoring protocols
and standard operating procedures has not stopped the facility from
contaminating surface water, land, and vegetation outside of the WMM
facility. See Air Approval Order RAA § lll(B)(l)-(3); 2011 RML Renewal
Comments § 111(B)(1). In addition, the WMM facility is currently in
violation of both the Subpart WNESHAP work practice standard
limitation on number of tailings impoundments and the Subpart W
NESHAP Radon-222 air emissions standard, and EFR has failed to take
action to undertake precautionary measures to protect public health of
UMU Tribal Members and others living near the WMM facility. Section
11(A), supra; Exhibit A (to these October 2013 Comments) (explaining the
severity and the duration of the 16- month Subpart WNESHAP violation
and failure by the DEQ divisions to require EFR to take immediate action
to permanently control the Radon-222 emissions). Therefore, DRC's
unquestioned reliance on the current air approval order, monitoring
protocols, stormwater management plan, and existing standard
operation procedures does not sufficiently assess whether those
regulatory mechanisms and operations will protect the public from
fugitive dust and other hazards associated with the receipt and
processing of the Midnite Mine Material.
Response #35
See General Response, Part 1.7,1.8, 2, 2.5 (new license condition)and 3, and Responses #16
and #27.
Comment #36
The fine-grained nature of the Midnite Mine Material, with its heightened
potential for airborne release and its high U308 content, requires that EFR
take adequate protective measures to prevent the release of radioactive
dust into the environment. In the Environmental Analysis, the DRC
properly recognizes that, due to the arid conditions at the WMM facility
and the Midnite Mine Material's susceptibility to degrade into a finer dust
particle, there is a heightened concern about airborne releases of fugitive
dust during wind events at the WMM facility. Midnite Mine SER at p. 34;
see Proposed License Amendment Conditions 10.20(A)(l)-(2). However,
the two methods for controlling these airborne releases fail to provide
adequate protection for UMU Tribal Member and public health for at
least two reasons. First, DRC proposes a limitation that requires a
durable geomembrane to be placed on material that is stockpiled on the
ore pad for more than 14 days. Proposed License Amendment Condition
10.20(A)(1). This limitation is less restrictive (and less protective of
public health) than the practices identified by EFR in 2011 when DRC
undertook a more comprehensive review of the facility's storage and
handling of alternate feed materials. 2011 RML SER §3.2.3.1 ("High
grade alternate feed materials typically with 1.0% t/jOs or greater24 are
usually received at the Mill and stored in drums or other containers").
24 Commenter footnote 4: The average U308 content of the Midnite Mine Material is
1.4%. Midnite Mine SER at p. 10.
74
77ns limitation also unnecessarily puts UMU Tribal Members and the
public at risk of exposure during the first 14 days of storage or during
catastrophic storm events that move the Midnite Mine Material from the
ore storage area.
Response #36
See General Response, Parts 1.7,1.8, 2.5, and 3, and Response # 16.
As is clear from the quoted language, the "drums or other containers" language from the
2011 License Renewal SER was descriptive, not proscriptive, and does not in any way
suggest that future alternate feeds will or should be limited to being held in drums before
processing. The dust-related requirements for each alternate feed must be reviewed on a
case by case basis.
Comment #37
Second, the DRC proposes a limitation that requires a 30-minute response
to stop generation of fugitive dust, "[i]fat any time, visible dust is
observed to be originating from Uranium Material stored on site."
Proposed License Amendment Condition 10.20(A)(2). To begin, unless
this requirement is paired with a new requirement that EFR provide
constant monitoring and documentation of dust events at the ore pad, the
30-minute response time provides no guarantee that EFR will observe
fugitive dust events or properly respond to such events. See Air Approval
Order RAA § 111(B)(2) (noting the historic lack of on-site presence by the
Division of Air Quality and that limitations); id. at§ 111(B)(3) (arguing
that the current fugitive dust emissions control do not meet the Best
Available Control Technology requirement). In addition, there is no
guarantee that visual monitoring can detect the movement of very fine-
grained particles or that EFR can monitor the movement of any particles
at night or during other times when visual inspections cannot occur.
Given the existing, ongoing, and uncontrolled airborne releases from the
WMMfacihty documented m the USGS Study and the Subpart WNESHAP
violations, the Tribe asserts that both these license conditions are grossly
insufficient to protect UMU Tribal Member and public health from
releases of fine-grained particles contained in the Midnite Mine Material.
Response #37
See General Response, Parts 1(f) and 1(g), and Response # 16. There is no evidence of
significant uncontrolled releases (cloud) resulting in off-site contamination at levels of
immediate concern. Instead, air monitoring data demonstrates that off-site migration of
dust is well within regulatory levels.
Given this history and the nature of the Uranium Material (see Response # 16), it would be
within DRC's discretion to not impose an additional 30 minute response time requirement.
DRC has elected to impose that requirement, however, in order to provide an additional
margin of safety. There are obviously limitations on the effectiveness of that requirement,
75
but those are acceptable limitations given the role that the requirement plays as an
additional margin of safety.
Comment #38
2. The SER Fails to Adequately Analyze and Address Public Health Impacts
from Surface and Groundwater Contamination
In Section lll(B), infra, the Tribe will comprehensively address
deficiencies in DRC's evaluation of the potential impacts on surface and
groundwater resources. In previous public comments, correspondence,
and administrative actions, the Tribe has exhaustively documented its
concerns that leakage from Tailings Cells 1,2, and 3 and/or other
activities at the WMM facility have already contaminated the perched
(shallow) aquifer and will contaminate the deep aquifer that provides
drinking water to the White Mesa Community. 2011 RML Renewal
Comments § III(A); Nitrate CAP Comments. See also April 2012
Groundwater Letter (reiterating concerns that Deep Water Supply Well
WW-2 will serve as a contamination pathway between the contaminated
perched aquifer into the deep aquifer that supplies the Tribe's drinking
water and reiterating the concern that the monitoring wells closest to the
Tribal community are showing increasingly elevated concentrations of
multiple indicator parameters of tailings cell leakage (including
concentration of beryllium and cadmium exceeding Utah's ground water
quality standards)).25 The Tribe has also documented its concern that
contamination of surface water will impact UMU Tribal Member health
through indirect exposure to radioactive material and other constituents
contained in alternate feed materials. 2011 RML Renewal Comments §
111(B)(1)(a). Accordingly, the DRC's failure to adequately analyze
impacts to groundwater and surface water is also a failure to adequately
analyze important public health impacts raised by the License
Amendment
Response #38
See General Response, Parts 1 through 6.
25 Commenter footnote 5: Groundwater south of the tailings system at MW-22 bears a
strong signature of pollutants originating from the WMM facility tailings impoundments.
Specifically, analytical results for the groundwater samples at monitoring well MW-22 show
elevated and increasing (decreasing forpH) levels of cobalt, nickel, zinc, manganese, beryllium,
selenium, cadmium, copper, fluoride and gross alpha. Each of these constituents is present at
high concentrations in the tailings system. The Midnite Mine Material analytical results show
high concentrations of nickel, cobalt, manganese, zinc and beryllium; each of these constituents
is currently present at abnormal and increasing concentrations in the groundwater south of
the tailings system at MW-22, indicating that these particular inorganic constituents are
currently being introduced to the environment and are mobile in groundwater at the WMM
facility.
76
Comment #39
B. THE ENVIRONMENTAL ANALYSIS FAILS TO ADEQUATELY ANALYZE IMPACTS TO
SURFACE AND GROUNDWATER
Utah Admin. Code R313-24-3(l)(b) requires that the environmental report contain an
analysis of the impacts to surface and groundwater. The Environmental Analysis fails to
adequately analyze impacts to both surface and groundwater, and also fails to meet
standards for approval of alternate feed license amendments proposed by the DRC in the
2011 RML Renewal.
1. The Environmental Analysis Fails to Adequately Analyze Impacts to Surface Water
The Environmental Analysis'failure to adequately analyze and address
anticipated impacts from the release of airborne particles from the Midnite Mine
Material is explained in Section 11(A), supra. Even though the USGS Study
documented off-site releases of uranium and vanadium from the WMM facility
through stormwater discharge pathways, the Environmental Analysis does not
assess or address the possibility that the existing air monitoring and regulatory
mechanisms and the existing stormwater management plan are insufficient to
contain air deposition from the WMM facility from entering surface waters and
polluting nearby land and natural resources. See 2011 RML Renewal Comments §
111 (B)(l )(a) (citing Exhibit L to the 2011 RML Renewal Comments). By failing to
properly analyze deficiencies in the existing regulation of airborne releases, and
by failing to require adequate control of the fine dust particles contained in the
Midnite Mine Material, DRC has failed to adequately analyze or control impacts to
stormwater and surface water.
Response #39
See General Response, Parts 1 through 6; see especially Part 1.5 regarding ground water
and Parts 1.7,1.8 and 3, and Response # 16 regarding off-site dust contamination. All of
the constituents mentioned are analyzed for all wells and springs sampled. Results of those
analyses are described in General Response Part 1.5. There is no surface water on site.
The DRC has reviewed and approved several revisions to the Mill's Stormwater Best
Management Practices Plan ("SWBMPP"), and inspects the Mill site, at least annually, for
compliance with that Plan. DRC's analysis of the Dawn Mining amendment application has
concluded that the provisions of the SWBMPP are adequate for protecting stormwater and
surface water from all potential sources of contamination from the Mill.
Comment #40
2. The Environmental Analysis Fails to Adequately Analyze Impacts to Groundwater
The Environmental Analysis fails to adequately analyze impacts to groundwater
for two reasons. First, the Environmental Analysis completely and erroneously
fails to address the multiple, spatially overlapping groundwater contamination
plumes that currently exist at the site. See Section 11(A), supra. Instead the
Midnite Mine SER falsely states: "The mill has previously managed chlorides,
fluorides, and sulfates in the Mill circuit and tailings system with no adverse
77
process, environmental, or safety issues," and then bases its entire analysis of the
impacts of the new Midnite Mine Material to groundwater on a flawed baseline
assumption that current practices and monitoring programs are not resulting in
groundwater contamination at the WMM facility. Midnite Mine SER at p. 27.
Accordingly, the entire analysis of potential incremental impacts to groundwater
resources is fatally flawed, and the DRC has completely failed to identify real risks
to both the perched and deep groundwater aquifers under the WMM facility from
leakage from Tailings Cells and releases from other areas of the WMM facility.
Response #40
See General Response, Part 1.5. DRC does not agree that there is any evidence that tailings
cells are leaking.
Comment #41
A second and perhaps more critical deficiency in the Environmental Analysis is
that it limits its tailings cell liner integrity analysis to potential impacts on
Tailings Cells 4A and 4B. See Tetra Tech Technical Memorandum, Review of
Chemical Contaminants in Dawn Mining Company Midnite Mine (DMC) Uranium
Material § 3.0,4.2.3 (June 14,2013) (clarifying that the analysis of tailings cell
liner material incompatibility was only conducted for Tailings Cells 4A and 4B).
Tailings Cells 4A and 4B are not the only active tailings cells at the WMM facility.
See 2002 RML §9.1 (authorizing mill process and waste water storage and
tailings disposal into Tailings Cells 1,2,3, 4A, and 4B); see also 2011 RML Renewal
Comments §111 (C)(l)(b) (demanding that DRC amend the 2011 RML Renewal to
add a new License condition prohibiting disposal or storage of alternate feed
material in Tailings Cells 1,2, and 3). The 2002 RML allows for mill liquid wastes
to be discharged into Tailings Cell 1. See Midnite Mine SER § 4.4 (noting that mill
process effluent, laundry, analytical laboratory liquid wastes and runoff from the
Mill and facilities go into the Mill's tailings impoundments); 2002 RML § 9.1;
Ground Water Discharge Permit UGW370004, 6 (August 24,2012). The current
stormwater management plan also directs runofffrom the Mill yard and facilities
into Tailings Cell 1. Storm Water Best Management Practices Plan, Denison Mines
(USA) Corp., Fig. 2; Appendix 1 § 1.4.5 at p.3 (October 2011); Environmental
Protection Agency, NPDES Stormwater Industrial Inspection, at p. 2 (March 14,
2013). Because the single, 34-year old, 30-mil PVC liner on Tailings Cell 1 already
poses a grave risk to the groundwater resources underneath the WMM facility,
failure to analyze any additional impacts posed by the Midnite Mine Material
(including, but not limited to, the analysis related to barium and beryllium) is a
critical flaw in the Environmental Analysis.
Response #41
Solutions from processing the Uranium Material, which will be essentially the same as
solutions from processing conventional ores, will be evaporated in either Cell 1 or Cell 4B,
or reused in the milling circuit. The evidence (see General Comments, Part 1.5) shows that
both cells are holding liquids currently, without incident. See Response # 39. The impacts
from processing the Uranium Material both from a radiological and non-radiological
standpoint have been addressed in the SER, including an analysis of the elevated Barium
78
and Beryllium constituents (see SER pages 29-32). The DRC does not agree with the
commenter that impacts from the Midnite Mine material was not analyzed.
Comment #42
3. The Process for Evaluating Impacts on Groundwater Fails to Meet Requirements
Proposed by DRC in 2011
The Tribe notes here that the DRC's decision to revise the 2002 RML (instead of
issuing a revised RML first) negatively impacts the process for analyzing the
impact of the Midnite Mine Material on the tailings cells (and the groundwater).
In the 2011 RML SER, DRC proposed an amendment of License Condition 10.1 that,
in addition to meeting the criteria of the NRC Alternate Feed Policy, would have
required EFR to demonstrate: (1) sufficient disposal capacity "such that the
proposed alternate feed material and any liquid by-products, will be permanently
disposed in tailings cells designed and constructed to meet the Best Available
Technology requirements [of Tailings Cells 4a and 4b]; and (2) that the disposal of
alternate feed material "will not lead to or cause a violation of the disposal cell
performance standards [set forth in the requirements for Tailings Cells 4a and
4b]." 2011 RML SER § 3.2.3.1. Until Tailings Cell 1 is either relined or capped for
final closure with major modifications to stormwater management from the Mill
yard, EFR cannot demonstrate that the alternate feed materials will be disposed of
in a tailings cell designed to meet the BAT requirements for Cells 4A and 4B. See
generally 2011 RML Renewal Comments. Accordingly, the process that the DRC
used to revise the 2002 RML does not even meet standards that the DRC set forth
as necessary in 2011, and the DRC's failure to even identify that some Midnite
Mine Material will enter a tailings cell that does not meet Best Available
Technology requirements raises serious questions about the adequacy of DRC's
review of whether this facility should be allowed to take any new sources of
alternate feed material.
Response #42
See General Responses, Part 1.5 regarding ground water issues, and the adequacy of Cell 1
specifically. See Responses # 29, #39 and #41.
Comment #43
C. THE ENVIRONMENTAL ANALYSIS COMPLETELY FAILS TO ANALYZE ALTERNATIVES
The Environmental Analysis completely fails to analyze alternative sites and engineering
methods as required by Utah law. Utah Admin. Code R313-24-(3)(l)(c) requires DRC to
consider alternatives, "including alternative sites and engineering methods" during the
environmental analysis of the proposed license request In the Midnite Mine SER, DRC
acknowledges its responsibility to consider alternate sites and engineering methods during
its analysis ofEFR's request for the License Amendment, but then fails or refuses to
undertake that analysis, stating, "[t]he UDRC has concluded that there are no significant
environmental impacts associated with the proposed action. Other alternatives need not
be evaluated." Midnite Mine SER § 4.6.
79
Response #43
The requirement to evaluate alternatives is a mandate to review only those alternatives the
Director has the authority to impose, e.g., siting a new proposed cell in an area of the
facility that overlays groundwater further from the facility boundary. It would not make
sense to read the rule to require the facility to evaluate and the agency to review options
that the agency cannot influence.
In comments on alternatives analysis, this and other commenters have identified some
alternatives that the DRC has no authority to require, and therefore that need not be
considered in an alternatives analysis. For example, there is no regulatory authority that
would allow DRC to deny a license amendment application for an alternate feed because
the feed would be better managed at another site, and there is no regulatory authority that
would allow DRC to deny a license amendment application for an alternate feed as a result
of comparative impact on two communities. Because the DRC lacks authority to impose
these alternatives, they need not be analyzed.
For this amendment, there were technical alternatives that the DRC considered and
imposed as part of the draft license. It imposed a 14 day cover mandate and it imposed a
30 minute response time for blowing conditions. See proposed License Condition 10.20.
See also the Residuals Management Plan for the Midnite Mine Water Treatment Plant,
Revision 10, provided to the EPA in 2013, in which various alternatives for managing
residuals from the Midnite Mine were considered, and the primary alternative of
processing the residuals at White Mesa was selected. See Residuals Management Plan,
Revision 10, included as Attachment N.
Comment #44
DRC's explanation for its failure to analyze alternate sites and engineering methods is
erroneous for two reasons. First, because DRC is required to consider alternatives
during the environmental analysis of the proposed license request, it cannot make any
final determinations on environmental impacts of the proposed action without first
undertaking the alternatives analysis. Utah Admin. Code R313-24-(3)(l) (including
subsection (c) as a component of the requirements of the environmental report).
Second, nothing in R313-24-3(l)(c) allows an exemption from considering alternatives if
DRC (preliminarily) concludes that the proposed action poses no significant
environmental impacts. Accordingly, DRC's refusal to consider alternatives is a
significant deficiency in the Environmental Analysis.
DRC's failure to consider alternate sites for the Midnite Mine Material compounds other
deficiencies in the Environmental Analysis. As discussed in more detail in Section IV,
infra, the United States Environmental Protection Agency's ("EPA") plans for managing
the Midnite Mine Superfund cleanup on the Spokane Indian Reservation specifically
mandate that that the Midnite Mine Material "must be disposed of in a facility that is
designed to limit human exposure and migration of contaminants in surface water and
groundwater to acceptable levels." See Midnite Mine Superfund Site Record of Decision
at p. 2-75 (September 2006); Midnite Mine Superfund Site Proposed Cleanup Plan
(September 2005). See also 2011 RML Renewal Comments § 111(C)(3)(a) (explaining
80
limitations on transporting CERCLA waste to facilities that are operating in compliance
with applicable federal and state law pursuant to Section 121(d)(3) of CERCLA and 40
C.F.R. §300.440 ("CERCLA Off-Site Rule")). As discussed in Sections 11-111, supra, the
WMM facility has several serious and ongoing violations of its Utah state groundwater
permit and two current violations of the federal Subpart W NESHAP radon emissions
limitations. By failing to compare the risk of receiving Midnite Mine Material at the
WMM facility to other facilities that could process or dispose of the Midnite Mine
Material, the DRC has missed a critical step in evaluating the risks of moving the Midnite
Mine Material to the WMM facility.
Response #44
Please see Response #43, above. Comments regarding the appropriateness of EPA's
decision under CERCLA should be directed to the EPA.
Comment #45
D. THE ENVIRONMENTAL ANALYSIS FAILS TO ADEQUATELY ANALYZE LONG TERM
IMPACTS TO THE WMM FACILITY
Utah Admin. Code R313-24-3(l)(d) requires that DRC consider the long term impacts,
including decommissioning, decontamination, and reclamation impacts, associated with
the activities conducted pursuant to the License Amendment The Environmental Analysis
on long term impacts to the WMM is deficient for two reasons.
First, the deficiencies described in Sections II-III, supra, bleed into the conclusions drawn in
the Environmental Analysis' assessment of long-term impacts to decommissioning,
decontamination, and reclamation at the facility. In its analysis of the long-term impacts,
the DRC relies on the faulty assumptions that: (1) existing operations, monitoring systems,
and regulatory enforcement are sufficient to contain both existing ore and alternate feed
material at the WMM facility; and (2) the Midnite Mine Material will only enter Tailings
Cells 4A and 4B. See Sections 11(B), I1I(A)-(B) supra \ Midnite Mine SER §4.8 at p. 42-43.
These assumptions lead the DRC to the general faulty conclusion that, because the Midnite
Mine Material is not expected to be significantly different from conventional ores at the
WMM facility, DRC does not anticipate to have incremental long-term impacts from adding
the Midnite Mine Material. Midnite Mine SER §4.7 at p. 40. As explained above, because
the current operations are not sufficiently controlling air, surface, surface water, or
groundwater contamination at the facility, and because the Midnite Mine Material will
enter Tailings Cell 1, DRC cannot assume that EFR can store, process, or dispose of the
Midnite Mine Material without creating additional contamination at the WMM facility.
Section 11 (B), supra. By failing to evaluate how that contamination might affect the
decommissioning, decontamination, and reclamation at the WMM facility, the current
long-term impacts analysis is deficient
Response #45
It is appropriate to limit the analysis to whether the long-term impacts would be different
from the impacts for processing Arizona Strip ores that the facility is already authorized to
take. Process waters from processing the Uranium Material will, like process waters from
processing Arizona Strip ores, be evaporated in either Cell 1 or Cell 4B. The evidence (see
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General Comments, Part 1.5) shows that both cells are holding liquids currently, without
incident.
The DRC does not agree that "current operations are not sufficiently controlling air,
surface, surface water, or groundwater contamination at the facility". Please see General
Response, Parts 1 through 6. Solutions from processing the Uranium Material, which will
be essentially the same as solutions from processing conventional ores, will be evaporated
in either Cell 1 or Cell 4B, or reused in the milling circuit. The evidence (see General
Comments, Part 1.5) shows that both cells are holding liquids currently, without incident.
See Response # 39.
Comment #46
Second, the Environmental Analysis' assessment of the potential long-term impacts also
relies on a faulty baseline assumption that there is an adequate reclamation plan and
sufficient surety m place that can address long-term environmental remediation at the site.
Midnite Mine SER §4.7. Because Section 9.11 of the 2002 RML is so outdated, is unclear
which version of the Reclamation Plan applies at the facility. However, as the Tribe
documented to DRC in the 2011 RML Renewal Comments, even more recent versions of the
facility's Reclamation Plan26 contain deficiencies in the plans for disposal of demolition
materials into Tailings Cell 1 and in the tailings cell cap design. See 2011 RML Renewal
Comments § IV(A). The Tribe has also exhaustively documented to DRC that the DRC's
minimum surety estimates for the facility have been grossly insufficient to ensure adequate
decontamination and decommissioning of the WMM facility.27 See 2011 RML Renewal
Comments § IV(B) (citing Exhibit H to the 2011 RML Renewal Comments). Accordingly, the
DRC's reliance on the existing reclamation plan and the existing surety at the WMM facility
to address any contamination or direct disposal of the Midnite Mine Material makes the
long-term impacts analysis deficient.
Response #46
See Response # 29 regarding the Reclamation Plan. See also General Response, Part 4.
Comment #47
IV. BY ISSUING THE LICENSE AMENDMENT, DRC IS SUPPORTING THE RELOCATION OF THE LEGACY
OF URANIUM CONTAMINATION FROM THE SPOKANE INDIAN RESERVA TION TO THE UTE
MOUNTAIN UTE RESERVATION
During the 2011 RML Renewal review process, the Tribe submitted public comments articulating a
concern that groundwater, surface water, and soil contamination (and uncontrolled continuing
releases of such contamination) at the WMM facility rendered the facility ineligible or at least
26 Commenter footnote 6: Section 9.11 of the 2002 RML still contains references to
Revisions 3.1 and 3.2 of the Reclamation Plan for the facility. The DRC website indicates that
the DRC and the EFR are still working to finalize Revision 5.0 to the Reclamation Plan.
27 Commenter footnote 7: In the 2011 RML Renewal Comments, the Tribe's expert, using
built-up, benchmarking, and per-ton calculation methods, estimated between $51 million and
$407 million to pay for a government cleanup of the WMM facility. See Exhibit H to the 2011
RML Renewal Comments for the full details of the Tribe's analysis.
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inappropriate for the receipt of alternate feed material at the facility. 2011 RML Renewal
Comments § 111(C)(3)(a). The Tribe explained that the CERCLA Off-Site Rule limits the transfer of
CERCLA material to facilities operating in compliance with state and federal law and that the Tribe
was concerned that DRC's failure to find EFR in violation of state and delegated federal laws was
making it difficult for the EPA to determine whether the WMM facility was eligible to continue
receiving alternate feed material. Id Since 2011, the contamination problems noted by the Tribe
have continued with little or no regulatory controls by DRC, and the DRC has identified additional
violations of state and federal environmental laws at the WMM facility. See Section 11(A), supra
(describing ongoing violations of state and federal law caused by groundwater contamination and
the Subpart WNESHAP violations). Accordingly, in October of 2013, the Tribe still believes that the
existing uncontrolled and continuing releases of contamination at the WMM facility render the
facility ineligible or at least inappropriate for the receipt of the Midnite Mine Material.
Response #47
With respect to the current condition of the facility, please see General Response Parts 1
through 5. With respect to the application of the CERCLA off-site rule, the comments
should be addressed to the EPA. DRC has no authority to deny a license amendment for an
alternate feed that meets all regulatory standards based on its place of origin or alleged
unfairness to a nearby community.
Comment #48
The history of contamination at the Midnite Mine site and the similarities between the Midnite Mine
facility and the WMM facility provide a compelling and troubling illustration of why the CERCLA
Off-Site Rule and the DRC should prohibit the transportation of the Midnite Mine Material to the
WMM facility. The Midnite Mine site is a CERCLA cleanup site located on the Spokane Indian
Reservation. EFR Environmental Report §2.1. The uranium mining activities at the Midnite Mine
facility resulted in contamination of important tribal water resources, and the EPA required the
facility owner, Dawn Mining Company, to install a water treatment plant to pump and
decontaminate water under and around the Midnite Mine facility. Id. The water treatment at the
Midnite Mine site will likely continue for years or decades after the EPA finishes construction of
containment measures at the Midnite Mine site, and it is unclear whether the Spokane Indian Tribe
will be able to safely use Tribal groundwater around the Midnite Mine site for human consumption
in the future. Id.; see also Midnite Mine Superfund Site Proposed Cleanup Plan at p. 11 (September
2005).
At the WMM facility, spatially-overlapping plumes of chloroform, nitrate, nitrite, and chloride
contamination in the perched (aquifer) have already led the DRC to require EFR to begin pumping
contaminated groundwater and placing it in the facility's tailings cells. See Final Stipulation and
Consent Order, Docket No. UGW12-04 § B (requiring near-term active remediation of groundwater
nitrate contamination during Phase II). These plumes, along with new data showing an increase in
heavy metals and a decreasing pH trend in the same monitoring wells, suggest that the perched
groundwater aquifer is being contaminated from a source similar to the facility's older tailings
cells. See Nitrate CAP RAA § III; Nitrate CAP Comments, Letter to Rusty Lundberg § B (October 4,
2012). Because the DRC refuses to require the WMM to identify the source of the several,
overlapping plumes of contamination, and because a likely source of these overlapping
contamination plumes is the older Tailings Cells 1,2, and 3, the Tribe can anticipate that
groundwater pumping will occur for as long as the WMM facility is in operation. In addition, the
Tribe can anticipate that, during and after decontamination and reclamation of the WMM facility,
there will be ongoing groundwater remediation efforts at the WMM facility that may look very
similar to the existing water treatment plant operations at the Midnite Mine facility. If the Navajo
83
aquifer is contaminated by the WMM operations, there will be no municipal water supply for the
White Mesa Community.
Response #48
The DRC does not agree there is evidence that ground water is being contaminated by
leaking from tailings cells. See General Response, Parts 1 through 6, and Response # 47.
Comment #49
The documents associated with the Midnite Mine cleanup clearly state that the Midnite Mine
Material "must be disposed of in a facility that protects human health and the environment"
Midnite Mine Superfund Site Proposed Cleanup Plan (September 2005). This reiteration of the
CERCLA Off-Site Rule is particularly poignant and relevant to the DRC's Environmental Analysis of
the WMM facility because both sites involve legacy contamination from the uranium industry on
Tribal lands, water supplies, and other resources. It is a gross violation of the intent of the CERCLA
Off-Site Rule to allow EFR to transport and process the Midnite Mine Material in a facility that will
likely allow that material to harm another Tribe's members, lands, and water resources.
Accordingly, DRC's continued failure to require EFR to remove the sources of the ongoing and
uncontrolled contamination at the WMM facility and DRC's failure to properly analyze the
environmental and public health impacts of bringing the Midnite Mine Material to the WMM facility
will likely result in the License Amendment relocating the environmental contamination from the
Spokane Indian Reservation to the White Mesa Community.
V. CONCLUSION
For the reasons stated above, the Tribe urges DRC to reject EFR's application to amend the RML
license at this time and to instead re-initiate the process for renewing the 2002 RML for the facility
(along with other related permits) and addressing the concerns outlined in the Tribe's Air Approval
RAA, 2011 RML Comments, Nitrate CAP Comments, Nitrate CAP RAA, and other correspondence.
The Tribe appreciates your time and attention to these comments. If you have any questions, please
contact Special Counsel H. Michael Keller at [phone], Associate General Counsel Celene
Hawkins at [phone], or Scott Clow, Environmental Programs Director, at [phone].
Response #49
This is a summary statement; please see appropriate responses above.
3. Comments Received from Grand Canyon Trust (Anne Marian Tapp)
Comment #50
The Grand Canyon Trust ("Trust") submits the following comments regarding Utah Division of
Radiation Control's ("Utah DRC") proposed licensing action to amend State of Utah Radioactive
Material License No. UT 1900479 to authorize Energy Fuels Inc. ("Energy Fuels") to receive and
process alternate feed material from Dawn Mining Corporation's Midnite Mine. The Trust
incorporates the technical comments of Jim Kuipers submitted on behalf of the Trust into this
document As the following discussion indicates, the Trust is concerned that the proposed Itcense
conditions do not adequately protect public and environmental health from the hazards of fugitive
dust from the Midnite Mine alternate feed material. The Trust looks forward to working with Utah
84
DRC to ensure that the conditions ultimately placed m License No. UT 1900479 protect public and
environmental health to the maximum extent possible, and fully meet the standards set forth in the
Utah Radiation Control Rules.
I. Identity of Commenting Party
The Grand Canyon Trust is a non-profit corporation with offices in Flagstaff, Arizona, and
Moab and Salt Lake City, Utah. The mission of the Trust is to protect and restore the
Colorado Plateau - its spectacular landscapes, flowing rivers, clean air, diversity of plants
and animals, and areas of beauty and solitude. The Colorado Plateau includes the town of
Blanding, Utah, the White Mesa Mill site, and the larger area surrounding the site that is
impacted by the Mill's operation. One of the Trust's goals is to ensure that the Colorado
Plateau is a region characterized by vast open spaces with restored, healthy ecosystems,
and habitat for all native fish, animals, and plants. To accomplish this, the Trust advocates
for adequate regulation of existing industry across the Colorado Plateau. The Trust's
board, staff, and members use the area that is impacted by the White Mesa Mill for quiet
recreation (including hiking, biking, fishing, rafting and camping), scientific research,
aesthetic pursuits, and spiritual renewal. Many of the Trust board, staff, and members live
in Utah, and thus pollution in Utah adversely affects their health, quality of life,
recreational pursuits, and aesthetic sense. The Trust and its members have a protectable
legal interest in ensuring that Utah DRC regulates the White Mesa Mill to the maximum
extent required by law.
II. The Existing Fugitive Dust Controls at the Mill Are Insufficient
A. The Fugitive Dust Controls Do Not Satisfy the Best Available Control Technology
Standard
In violation of the Utah Air Quality Rules, the Approval Order does not contain best
available control technology to control fugitive dust from the Mill. Utah Admin.
Code R307-401 -8(1) states that the Director will issue an approval order if "the
degree of pollution control for emissions to include fugitive dust emissions and
fugitive dust, is at least best available control technology (BACT)". The Utah
Supreme Court has found that if a control technology is operating or permitted for
similar operations, the permitting authority should consider the technology
available and consider it in its BACT analysis. Utah Chapter of the Sierra Club v.
Air Quality Board, 2009 UT 76 46.
Response #50
This comment addresses only authorities under the Utah Air Conservation Act, Utah Code
Ann. Title 19, Chapter 2. The DRC has no authority to implement that Act.
The DRC does have authority to regulate air-borne radionuclides. Please see General
Response, Parts 1.7,1.8 and 2.
Comment #51
In 2011, Utah DAQ was presented with evidence of industry standards for
controlling fugitive dust that far exceeds the controls currently in place at the Mill.
In its comments on Utah DAQ's Approval Order to Add a Baghouse, to Allow
Alternate Fuel Usage, and to Incorporate Work Practice Standards, DAQE-ANO
85
112050018-11, the Ute Mountain Ute Tribe submitted the fugitive dust control
plans for both the Moab Project and the Crescent Junction Project as evidence of
technology that should be considered as BACT in Utah DAQ's fugitive dust control
technology for the Mill.
Utah DAQ's subsequent unjustified decision to not adopt controls as stringent as
those in place at the Moab Project and the Crescent Junction project - both of
which were demonstrated as "available" by the Ute Mountain Ute Tribe - violates
the BACT requirements, is basis for the vacature of the Approval Order, and
indicates the inadequacy - both legal and practical - of the current fugitive dust
controls in place at the Mill. The inadequacies of Utah DAQ's approval order does
not satisfy Utah's duty to implement the authority derived from the its Agreement
State authority. Technology properly identified as BACT must be required in order
for License No. UT 1900479 to be amended to allow receipt, storage, processing,
placement, and permanent disposal of the alternate feed materials from Midnite
Mine.
Response #51
The comments relied upon were provided to the DAQ, and were not provided to the DRC.
See R305-7-202(2). The relevance of decisions made pursuant to DAQ authorities to DRC's
Agreement State authority and this License Amendment is also unclear. See Response #23.
The DRC does not have authority over the DAQ's approval order; requests to vacate that
order are misplaced.
With respect to air emissions generally, please see General Response, Parts 1.7,1.8, 2, and
Response #16.
Comment #52
B. The Fugitive Dust Controls Do Not Satisfy the Low As Reasonably Achievable
Standard
The fugitive dust emitted from the Mill contains radioactive elements and thus
risks exposing the public to doses of radiation. Pursuant to Utah Admin. Code,
each licensee "shall use, to the extent practical, procedure and engineering
controls based upon sound radiation protection principles to achieve occupational
doses and doses to members of the public that are as low as reasonably achievable
("ALARA"). Utah Admin. Code R313-15-101(2). ALARA is defined as:
"making every reasonable effort to maintain exposures to radiation
as far below the dose limits as is practical, consistent with the
purposes for which the licensed or registered activity is undertaken,
taking into account the state of technology, the economics of relation
to benefits to the public health and safety, and other societal and
socioeconomic considerations, and in relation to the utilization of
nuclear energy and licensed or registered sources of radiation in the
public interest" Utah Admin. Code R313-12-3.
The ALARA standard is similar to the BACT standard in that both require
regulators to ensure available technologies are implemented. See Utah Chapter of
the Sierra Club v. Air Quality Board, 2009 UT 76 % 46. Where available
86
technologies are actually being used at the Moab and Crescent Junction Project
sites that could reduce fugitive emissions, the current fugitive dust controls in
place at the Mill do not meet the ALARA standard. The use of more stringent
fugitive dust control plans at both the Moab Project Site (Attached as Exhibit 1)
and the Crescent Junction Project Site (Attached as Exhibit 2) indicate that
emissions reductions based on these technologies are "reasonably achievable" at
the Mill. Utah Admin. Code R313-12-3. Thus, it is incumbent upon DRC to perform
a meaningful analysis of the benefit that requiring similar technology would have
on public and environmental health, and of the economics of requiring such
technologies to be instituted at the Mill. DRC's failure to do so thus far is a
violation of the Utah Rules designed to protect against radiation exposure.
Response #52
Utah Admin. Code R313-12-3 defines dose as:
[A] generic term that means absorbed dose, dose equivalent, effective dose equivalent,
committed dose equivalent, committed effective dose equivalent, or total effective dose
equivalent. For purposes of these rules, "radiation dose" is an equivalent term; and
"Total effective dose equivalent" (TEDE) means the sum of the effective dose equivalent for
external exposures and the committed effective dose equivalent for internal exposures.
When the DRC evaluates compliance with R313-15-101 and the radiation protection
philosophy of ALARA, we first look at TEDE for both occupational and public exposure for
fugitive dust and all other exposures. For occupational exposure we look at the licensee's
dosimetry program which includes bioassays and measured radiation exposure from
monitoring devices. DRC inspectors do this once a year. Findings from those inspections
indicate that the Mill is well below any regulatory requirement for occupational exposure.
The regulatory limit is 5 REM. Below is the average and highest occupational TEDE's
measured at the Mill over last 6 reported years.
2013-TEDE Average-0.13 REM TEDE
2012 - TEDE Average - 0.11 REM TEDE
2011-TEDE Average-0.18 REM TEDE
2010 - TEDE Average - 0.08 REM TEDE
2009 - TEDE Average - 0.09 REM TEDE
2008 - TEDE Average - 0.10 REM TEDE
Highest - 0.31 REM Packaging Operator
Highest - 0.44 REM Packaging Operator
Highest - 0.44 REM Scale house worker
Highest - 0.49 REM Scale house worker
Highest - 0.20 REM Packaging Operator
Highest - 0.30 REM Scale house worker
For public exposure the DRC looks at the environmental monitoring data that the Mill is
required to submit to the DRC semiannually. DRC inspectors review the data to evaluate or
determine potential dose (TEDE) to the public. In addition to that, the Mill is required to do
dose modeling using the MILDOS modeling program to demonstrate compliance with
public exposure limits. Both the review of the semiannual environmental data and the
MILDOS modeling results demonstrate that the Mill is within regulatory requirements.
87
The commenter is correct that ALARA goes beyond just meeting regulatory limits. If a
practice can be improved to lower exposure to radioactive materials then it should be
considered.
The standard governing uranium milling operations and reducing airborne effluent
releases to levels as low as is reasonably achievable is found in Criterion 8,10 CFR Part 40,
Appendix A (adopted by reference in Utah Admin. Code R313-24-4(1)(b), which states, "To
control dusting from diffuse sources, such as tailings and ore pads where automatic controls do
not apply, operators shall develop written operating procedures specifying the methods of control
which will be utilized." This requires a site specific analysis with a cost/benefit component.
The analysis is performed by the Licensee's SERP committee. The analysis would include
factors such as the nature of the Uranium Material (see Response #16), and the Licensee's
large site boundaries. An important factor is that the Licensee's administrative ALARA
goals of < 25% of the Effluent Concentration Limits are being met. See General Response,
Parts 1.7, Table 3.
The DRC reviews the SERP Committee's annual reports for compliance with applicable
standards.
Reliance on Sierra Club is misplaced; that case was only about Best Available Control
Technology, with no mention of ALARA.
See also General Response, part 2.5, regarding the new License Condition 11.9 requiring
additional air monitoring stations, as well as soil sampling and consideration of additional
vegetation sampling.
See Response #66, below, regarding the inapplicability of the Moab Project and Crescent
Junction Sites to the White Mesa Uranium Mill.
Comment #53
///. Fugitive Dust From the Mill Threatens Public and Environmental Health
The U.S. Geological Survey (USGS) Scientific Investigations Report 2011-5231 ("USGS
Report") documents offsite, downwind deposition of fugitive uranium dust emissions
originating from uncovered stockpiles at the White Mesa Mill. Exposure to those emissions
and that deposition by people, plants, wildlife and livestock threatens public health, safety
and the environment By documenting deposition of fugitive dust from the mill, the USGS
report demonstrates that existing, ongoing operations of the White Mesa Mill lack
requirements necessary to protect public health, safety, and the environment from
exposure to fugitive uranium dust emissions and deposition originating from uncovered
stockpiles at White Mesa Mill.
Response #53
See General Response, Part 2. For the reasons described in Part 2, DRC does not agree that
there is evidence of a threat to public health, safety, or the environment. Also see General
88
Response, Part 2.5 for the new license condition requiring additional air monitoring
stations, as well as soil sampling and consideration of additional vegetation sampling.
See also Response # 16 regarding the nature of the Uranium Material.
Comment #54
The USGS Report documents elevated uranium m soil sediment and vegetation near the
mill. It reports "... U concentration^) from the stream-sediment samples ranged from 1.5
to 16.2 parts per million (ppm). The highest U concentration measured in the local
background samples (fig. 31), which ranged from 1.8 to 3.6 ppm, was equaled or exceeded
in 8 of the 28 stream sediment samples." USGS Report at 51. It reports elevated uranium in
big sagebrush located near the White Mesa Mill; "U concentration m the plant-tissue
samples from sagebrush ranged from 1.3 to 171 ppm (dry weight)." USGS Report at 58. It
reports elevated vanadium concentration in plant tissue; vanadium (V) would expected to
be present in Colorado Plateau uranium ore delivered to the mill. USGS Report at 63. It
reports "concentration in the plant tissue samples ranged from 9 to 582 ppm (dry weight),
and its spatial distribution in the plant tissue samples was similar to the U distribution."
USGS Report at 63.
The USGS Report establishes that elevated uranium in soil and elevated uranium and
vanadium in vegetation is highest downwind of the White Mesa Mill, indicating that
windblown uranium ore is being transported and emitted off site from uncovered
stockpiles onto downwind land and vegetation. For big sagebrush samples, "[T]he highest
concentrations ofU were found in plant tissue samples collected from regions north, south,
and east of the mill site, and the lowest U concentrations were found west, northwest, and
southwest of the mill site" and "[PJlant samples with elevated V concentrations consistently
were found north-northeast east, and south of the mill site, indicating offsite transport in
the predominant wind directions." USGS 5231 at 58 and 63. The report continues:
Wind data collected from 2000 to 2008 at the Blanding airport (National Oceanic and
Atmospheric Administration, 2010), located about 6 km north of the mill, offers insight into
the likely U source for the observed spatial distribution ofU in the plant tissue samples (fig.
40). The predominant wind direction during the nine-year monitoring period was from the
south-southwest (SSW) at an azimuth of about 200 degrees (fig. 41). This could explain
the anomalous U concentrations detected in plant tissue samples collected to the north and
northeast of the mill site. Furthermore, some of the highest wind speeds, exceeding 4
meters per second (m/s) were from westerly directions (azimuth 200 to 340 degrees),
providing an explanation for the anomalous U concentrations east of the mill site with the
predominant direction from the SSW (205 degrees). USGS Report at 58, 63.
Uranium fugitive dust emissions and deposition from White Mesa Mill to areas downwind
threatens public health, safety, and the environment Potential human exposure pathways
to uranium and other contaminates emitted as fugitive dust include (1) inhalation of
uranium dust emitted from the mill, or deposited from the mill and re-mobilized through
soil disturbance or wind; (2) ingestion of water contaminated by uranium dust deposited in
ephemeral washes adjacent to the mill; (3) ingestion of meat from wildlife or livestock that
ingest uranium contaminated vegetation and soil near the mill. Uranium fugitive dust
emissions from White Mesa Mill also present exposure pathways to wildlife. In its Scientific
Investigations Report 2010-5024, USGS details biological pathways of exposure and
ecotoxicity values for uranium and associated radionuclides for the Colorado Plateau near
Grand Canyon, an area whose ecology and biological diversity is similar to lands near
White Mesa Mill. The report states that
89
"[T]he utilization of subterranean habitats (burrows in uranium-rich areas, burrows in
waste rock piles or reclaimed mining areas, mine tunnels) in the seasonally variable but
consistently hot, arid environment is of particular concern in the segregation areas.
Certain species of reptiles, amphibians, birds, and mammals spend significant amounts of
time in burrows where they can inhale or ingest uranium and other radionuclides through
digging, eating, preening, and hibernating. Herbivores may also be exposed though the
ingestion of radionuclides that have been aerially deposited on vegetation." USGS 5024 at
287.
Even non-uranium bearing fugitive dust threatens physical injury to the public as a cause
of chronic lung disease, asthma, and other lung related illnesses; a cause of hazardous
conditions on public rights of way; and a detractor of property values in areas nearby the
emissions source. Each of these problems associated with fugitive dust is magnified by the
fact that the fugitive dust in this case contains uranium, and thus poses an even greater
threat to human and environmental health - one that will endure on the Colorado Plateau
for years to come.
The inhalation ofU308 bearing fugitive dust has caused systemic toxicity that can result in
long-term damage to organs. See, e.g., MH Henge-Napoh, EAnsoborlo, M Claraz, J-P Berry
and M-C. Cheynet, Role of alveolar macrophages m the dissolution of two different
industrial uranium oxides in Cellular and Molecular Biology 42(3), 413-420,1996; GN
Stradling, JWStather, SA Gray, JC Moody, M Ellender, A Hodgson, D Sedgwick, N Cooke
Metabolism of uranium in the rat after inhalation of two industrial forms of ore
concentrate: the implications for occupational exposure in Human Toxicology 6,385-
393,1987 (Measuring 12% U30B deposit in lungs after 360 days following inhalation); H.B.
Wilson, G.E. Sylvester, S. Laskin, CW. LaBelleJ.K. Scott, H.E. Stokinger, Relation of particle
size dust to toxicity following inhalation by animals. Archives of Industrial HealthW, 11-
16,1955 (Documenting kidney and lung damages associated with inhalation of small
particle sized U30a dust).
The ongoing problem of off-site deposition of radioactive materials, particularly in light of
the adverse health effects ofU30g exposure, confirms the need for DRC to address and
mitigate the off-site fugitive dust deposition problem documented in the USGS report
Importantly, this problem will be exacerbated by Energy Fuels' proposal on how to handle
the alternate feed materials from the Midnite Mine. Thus, the License Amendment at issue
here represents an opportunity for Utah DRC to institute meaningful regulation and
control of fugitive dust at the Mill as required by Utah law.
Response #54
With respect to the results of USGS's sediment sampling, the commenter does not
distinguish between on site and off site sample results and does not distinguish between
samples that USGS found to be the result of ore migration and those that were from natural
weathering. There were three sample results exceeding background that were both from
ore migration and that were off-site; all three were at levels that would require additional
analysis rather than an immediate response. See General Response, Part 2. There is no air
effluent standard that would apply that would provide for absolutely no off-site migration
of contaminants; the levels of any contamination off-site would have to be evaluated. The
commenter does not provide any evidence that the levels of off-site contamination seen
would pose a threat to human health or the environment; the USGS Report does not
provide that evidence. See General Response, Part 2.
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The study referencing vanadium in plant tissues was performed to analyze for the potential
for wind distribution. It does not provide any evidence of off-site contamination that
would result in a threat to public health or the environment, for the reasons specified in
General Response, Part 2.3.
The USGS Report did not address non-radiologic fugitive dust in any way. The only
evidence with respect to non-radiologic fugitive dust demonstrates that the Licensee is
meeting standards. See General Response, Part 1.7.
See also Response # 16 regarding amendment-specific considerations.
Although there are effluent limitations that control off-site contamination, on-site
contamination is expected on an industrial site and is governed by occupational standards.
See also General Responses, Part 2.5. The DRC is requiring Energy Fuels to revise its
environmental monitoring program to provide for additional air monitoring stations, as
well as to add soil sampling and consideration of additional vegetation sampling.
Regarding concerns about U30_,due to the nature of the Uranium Material (see Response
#16), fugitive dust from Uranium Material stored on the ore pad during the 13 days prior
to required cover is unlikely. The 14-day cover License Condition 10.20 was added by DRC
because of the higher uranium concentration in the Uranium Material than typical Colorado
Plateau-derived uranium ores, and to address the potential for fine dust generation after a
prolonged period of time. See SER, page. 9-10, noting that the uranium concentration in the
Uranium Material is higher than the average uranium concentration in Arizona 1 uranium
ores, but is lower than the highest concentrations in Arizona 1 uranium ores.
Comment #55
IV. Standards
A. Utah Radiation Control Rules
The general purpose of Utah's Radiation Control Rules is "to ensure maximum
protection of the public health and safety to all persons at, or in the vicinity of, the
place of use, storage, or disposal." Utah Admin. Code R313-12-2. Adhering to these
principles, the Director shall approve an amendment to a radioactive material
license if "the Director determines that... (b)the applicant's proposed
equipment, facilities, and procedures are adequate to minimize danger to public
health and safety or the environment, .and (d) the issuance of the license will not
be mimical to the health and safety of the public." Utah Admin. Code R313-22-33
(standards applied to license amendments by Utah Admin. Code R313-22-39). For
this reason, the Utah Rules give the Director the discretion to "impose upon a
licensee or registrant requirements in addition to those established in the rules
that the Director deems appropriate or necessary to minimize any danger to
public health and safety or the environment" Utah Admin. Code R R313-12-54.
Moreover, each licensee "shall use, to the extent practical, procedure and
engineering controls based upon sound radiation protection principles to achieve
occupational doses and doses to members of the public that are as low as
reasonably achievable ("ALARA"). Utah Admin. Code R313-15-101(2). Each of
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these standards governs Utah DRC's decision of whether to amend Utah
Radioactive Material License No. UT 1900479, and what controls to require that
the licensee institute, which includes the management of fugitive dust at the Mill.
Response #55
This is a description of DRC authorities; no response is required.
Comment #56
A. Prior Fugitive Dust Standards Instituted at the Mill
To meet its ALARA standard of1250 mrem per year, Denison instituted specific
controls to protect Mill workers, the general public, and the environment from
unnecessary exposure from alternate feeds stocks placed on the ore pad.
Specifically, as part of the license renewal process, Denison informed Utah DRC
that it had instituted the following controls for fugitive dust from alternate feed
material with (/jOa content that exceeds that of Colorado Plateau-derived ore:
first, "[h]igh grade alternate feed materials typically with 1.0% L/jOs or greater
are usually received at the Mill and stored m drums or other containers;" second,
"(alternate feed materials that are received in bulk and that have higher risk of
public or occupational exposure than Arizona Strip ores such as may result from
high radioactivity and/or fine dry particles relative to Arizona Strip ores have
been covered by less radioactive materials while stored on the Mill's ore pad."
Utah Division of Radiation Control, Safety Evaluation Report for the Denison
Mines White Mesa Mill 2007 License Renewal Application, October 2011 at 10.
These two control measures - neither of which allows for alternate feed material
to be left uncovered on the ore pad -are a component of fugitive dust control
technology that should be considered ALARA for the Mill.
Response #56
See General Response, Parts 1.7,1.8, and Response # 16. The statements from Denison
quoted by the commenter regarding the manner in which higher uranium concentration
alternate feeds have historically arrived at the mill (i.e. in drums] are explanatory in nature,
and do not prohibit higher uranium concentration alternate feeds from arriving in bulk, as
explained in the next paragraph quoted on page 10. That paragraph states that,
historically, alternate feed materials received in bulk that have higher risk of public or
occupational exposure have been covered by less radioactive materials while stored on the
Mill's ore pad.
Each alternate feed is handled and stored differently based on its unique characteristics.
The Uranium Material has a very low risk of wind-blown exposure because of its cement-
like nature and high moisture content (see Response #16). Further, DRC has mandated
that the Uranium Material stored on the ore pad for 14 days be covered by a "durable
geomembrane cover resistant to damage by ultraviolet (UV) radiation and sufficient ballast
shall be placed over the cover to prevent wind uplift of the cover during peak wind
conditions at the site." The cover mandated by the DRC is more protective than a cover of
less radioactive materials, as suggested in the above comment.
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Comment #57
V. The Characteristics of the Alternate Feed and Climate Conditions at the Mill Combine to
Necessitate Strict Fugitive Dust Control Measures
As a primary matter, the high uranium content of the alternate feed material increases the
threat to public and environmental health posed by off-site deposition of fugitive dust The
alternate feed material contains a higher percentage ofUjOa than is present in Colorado
Plateau derived uranium ores. URS Professional Solutions, LLC, Safety Evaluation Report
for the Amendment Request to Process an Alternate Feed Material at White Mesa Mill from
Dawn Mining Corporation Midnite Mine, Washington State, August 2013 at 9 (hereinafter
URS SER). In typical Colorado Plateau-derived uranium ores, the range ofUsOe contents
varies from 0.015% to 0.30%. Id. at 10. The average U308 concentration of particularly
high grade uranium mined at the Arizona 1 uranium mine in the Arizona Strip averaged
between 0.56% and 0.66%. Id. The U3O8 of the alternate feed material is estimated to be
1.5%. Id. at 9.
Response #57
See General Response, Parts 1.7,1.8 and 2, and Response # 56. Also, the DRC has
addressed the concern about uranium concentration in the Uranium Material by imposing
License Condition 10.20 A and B, which require the licensee to cover the material after 14
days and when visible dust originating from the Uranium Material is observed.
Comment #58
The alternate feed material is vulnerable to wind blown deposition due to climate
conditions at the Mill Site. The climate in the vicinity of the Mill is semi-arid with annual
precipitation of approximately 12 inches, and a low average humidity. Id. at 16. Wind
speeds at the Mill average approximately 13 miles per hour with the prevailing wind
blowing to the south of the Mill. USGS Report at 64. High wind events of gusts over 25
miles per hour occur at the Mill site. Denison Mines (USA), Environmental Report,
February 28,2007 at 16.
The affidavit of Robert Nelson - the Site Manage from the Dawn Mining Company - does not
consider the difference in climate and wind condition between the Pacific Northwest and
Southern Utah. Mr. Nelson's assertion that the alternate feed "is not prone to degrading to
fine dust sized particles" is unsupported by evidence, and does not account for the marked
difference in humidity, and wind speeds between the two sites. Indeed, even URS notes in
its Safety Evaluation Report for the Amendment that "weather conditions at the Mill Site
are dryer than at the Midnite Mine Site, and possibly higher wind speeds coupled with low
humidity levels may lead to differences in behavior of uranium material with regard to its
susceptibility to degrade to a finer dust sized particle than would be expected from ores or
other alternate feeds." URS SER at 16.
Response #58
The DRC has addressed this issue by imposing license condition 10.20 A and B, which
requires the licensee to cover the material after 14 days and when visible dust originating
from the Uranium Material is observed. Due to the nature of the Uranium Material (see
Response #16), the Uranium Material is not expected to dry out for significantly longer
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than the 14-day uncovered period. Storage of the Uranium Material is subject to
inspection.
Comment #59
For this very reason, Utah DRC proposes to impose two license conditions that are intended
to control fugitive dust from the alternate feed. Radioactive Materials License Number UT
1900479 Amendment #06 at 10.20. The first condition requiresthat "Dawn Mining
Uranium Material stored (stockpiled) at the Mill Site longer than 14 days shall be covered
with a durable geomembrane cover resistant to damage by ultraviolet (UV) radiation and
sufficient ballast shall be placed over the cover to prevent wind uplift of the cover during
peak wind conditions at the site. Id. at 10.20 (A)(1). The second condition mandates that
"[i]fat any time, visible dust is observed to be originating from Uranium Material stored on
site, the EFRl RSO or his or her authorized representative shall take actions within 30
minutes to stop the generation of visible dust." Id. at 10.20 (A)(2). The Trust applauds DRC
for imposing conditions to attempt to address the fugitive dust issue. Regrettably, neither
of these license conditions meet the standards established in the Utah Rules, nor do they
even comport with prior commitments made by Denison to Utah DRC to control fugitive
dust from the processing of alternate feed at the Mill.
VI. The Proposed License Conditions Do Not Protect Public and Environmental Health
Utah DRC's proposed license conditions are inadequate to protect public and
environmental health from the risks associated with fugitive dust First, license condition
one, which allows the alternate feed material to be left uncovered for up to fourteen days,
does not protect public or environmental health from fugitive dust resulting from high
wind events occurring on days zero to thirteen. As discussed below, the monitoring
provision does not compensate for this inadequacy due to (1) the lack of 24-hour
monitoring at the Mill and (2) the fact that fugitive dust is not always visible to the naked
eye, particularly at night Moreover, the fourteen-day condition in the license amendment
proposal is inconsistent with the SER for the mill, which suggested that the alternate feed
material would be covered if left on the ore pad for any duration of time. See URS SER at
42 ("with implementation of the proposed new license condition requiring that: (1)
Uranium Material stored at the Mill Site be covered with a durable, UV-tolerant
geomembrane and ballast shall be applied over the geomembrane to prevent wind uplift of
the geomembrane... the UDRC has determined that no significant adverse effects on
public health or the environment are expected to result from implementing the proposed
action"). Thus, URS's conclusion that the geomembrane provision is adequate to protect
public health and safety cannot apply to the license conditions that now - without
explanation - include a fourteen day window in which the alternate feed material can be
left uncovered.
Response #59
See General Response, Part 1.7,1.8 and 2 and Responses #16, #56 and #58
Page 42 of the Safety Evaluation Report does inadvertently leave out the 14-day
requirement, but page 44 quotes the license condition as follows:
"(1) Uranium Material stored (stockpiled) at the Mill Site longer than 14 days
shall be covered with a durable geomembrane cover, resistant to damage by
ultraviolet (UV) radiation and sufficient ballast shall be placed over the cover
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to prevent wind uplift of the cover during projected peak wind conditions at
the site; and (2) If at any time, visible dust is observed to be originating from
Uranium Material stored on site, that the EFRl RSO or his or her authorized
representative take actions within 30 minutes to stop the generation of
visible dust."
The Safety Evaluation Report was written with a clear understanding of the license
condition requiring the Mill to cover the Uranium Material after 14 days. The inadvertent
omission on page 42 does not invalidate the entire Safety Evaluation Report, nor does it
suggest that the license condition was anything different than as stated.
The DRC's requirement to cover the Uranium Material after 14 days was imposed to
address the potential of fines generation after a prolonged period of time. Due to the
nature of the Uranium Material, the chance of any fines being generated within the first 14
days is considered small. The Uranium Material will be inspected upon unloading and
wetted as necessary at the time of unloading and at regular intervals thereafter.
See also General Responses, Part 2.5, with a new License Condition 11.9, which requires
additional air monitoring stations.
Comment #60
Under the ALARA standard, the public benefit of continuous cover in conjunction with
meaningful monitoring would outweigh the economic burden on Energy Fuels. As
discussed above and as the Trust's technical expert, Jim Kuipers, attests in his comments,
fugitive dust from uranium operations has numerous adverse health and environmental
impacts. Energy Fuels has recognized that the processing of alternate feed necessitates the
stockpiling of those materials over time in order to accumulate enough material to justify
processing. Given this, is likely that the alternate feed material will sit on the ore pads for
more than fourteen days. Thus, it will not impose a significant additional burden on
Energy Fuels to cover the material from the first moment it arrives on the mill site; indeed,
Energy Fuels will have to cover the material eventually. In light of the public health and
environmental benefits resulting from covering the material, an ALARA analysis will result
in the conclusion that cover should be required immediately.
Response #60
See Response #52. See also General Response, Part 1.7,1.8 and 2 and Responses #16, #58
and #59.
Comment #61
The second license condition is inadequate to protect public and environmental health and
safety for three reasons. First, the Mill does not have a person capable of observing visible
dust on staff twenty-four hours a day, seven days a week In order to render this condition
adequate to protect public and environmental health, the condition must be supplemented
by a requirement that an air quality monitor be on the Mill site twenty-four hours a day. In
the absence of such a condition, there is a possibility that visible dust could be present at
the Mill for up to several days without any mitigation measures being instituted. Second,
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the license condition does not protect public and environmental health against the impacts
ofPM2.5, which is not visible to the naked eye. As the Trust's technical expert, Jim Kuipers,
attests, a percentage of the fugitive dust emanating from the alternate feed material will
be fine grained, small diameter particles that are invisible to the human eye. This is
precisely why air quality monitoring is an essential component of any fugitive dust control
plan for the Mill. A standard based on visible emissions does not protect public and
environmental health against the adverse effects of small diameter particle dust Finally,
even dust visible to the naked eye is not visible at night Thus, the second license condition
does not ensure protection from visible fugitive dust as soon as the sun sets.
The exhibits that accompanied the commenter's comments can be found in Appendix B of
this document.
Response #61
This is a summary comment. Please see responses above.
Comment #62
The Trust suggests that Utah DRC utilize this opportunity to revisit its fugitive dust
controls for the Mill. First, Utah DRC should mandate the fugitive dust controls suggested
by Jim Kuipers in his technical comments. Second, Utah DRC should revisit the proposed
license conditions in light of the Trust's concerns. Ultimately, the Trust looks forward to
Utah DRC recrafting the two license conditions to be protective of public and
environmental health, and to fully comport with the ALARA standard as required by law.
Thank you for your consideration of these concerns.
Response #62
See responses above and below.
4. Comments from Grand Canyon Trust (Jim Kuipers P.E., Kuipers & Associates)
Attachment to Grand Canyon Trust Comments
Comment #63
Re: Comments regarding Utah Division of Radiation Control's Proposed Licensing Action to Amend
State of Utah Radioactive Material License No. UT 1900479 to Authorize the Receipt and Processing
of Alternate Feed Material from Dawn Mining Corporation's Midnite Mine.
The following comments are submitted on behalf of the Grand Canyon Trust ("Trust") based on my
review of the Utah Division of Radiation Control's ("Utah DRC") Proposed Licensing Action to
Amend State of Utah Radioactive Material License No. UT 1900479 to Authorize the Receipt and
Processing of Alternate Feed Material from Dawn Mining Corporation's Midnite Mine. The
comments are focused on the issue of the control of fugitive dust resulting from the receipt, storage,
and processing of the alternate feed material at the White Mesa Mill ("Mill"). I support the
comments filed by Grand Canyon Trust, and submit additional comments as set out below. My
qualifications to evaluate the proposed licensing action are documented in my resume submitted as
Appendix A.
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The following comments are based on over 30 years of professional experience in the mining and
mineral processing industry as well as mining environmental practice. In particular I have been
involved in the design, implementation, operation and maintenance of fugitive dust control
measures at numerous mine/mill and water treatment sites throughout the western U.S. including
in Utah. I have been involved in the development of best management practices related to dust
control at Superfund sites such as the Anaconda Smelter Superfund Site in Montana and am
currently involved on behalf of several governmental organizations in the development of dust
control guidance for hardrock mining and mineral processing sites.
These comments take the following approach to analyzing the adequacy of the proposed license
amendment: 1) Background on the proposed licensing action; 2) explanation of the public and
environmental health threats posed by fugitive dust from the alternate feed material from the
Midnite Mine site; 3) examples of best management practices for fugitive dust control; 4) an
evaluation and recommendation is made to assist Utah DRC to craft license conditions that are
adequately protective of public and environmental health.
I. Background
Based on the Affidavit of Robert Nelson dated 13 October, 2010, Dawn Mining Corporation
is proposing to ship wastel products from a Water Treatment Plant (WTP) located at their
Wellpimt, Washington facility. The WTP treats uranium contaminated mine water using a
pH adjustment process using hydrated lime which results in a precipitate or waste stream
that contains radium-226. Dawn Mining proposes to ship the waste stream to the White
Mesa Mill near Blanding, Utah for processing as alternate feed materials.
According to UTAH DIVISION OF RADIATION CONTROL, RADIOACTIVE MATERIALS
LICENSE, SUPPLEMENTARY SHEET, License #UT1900479, Amendment # 056 (License) the
White Mesa Mill is required to perform the following actions relative to fugitive dust which
might be generated from receiving, storage and processing of the proposed waste
materials: 10.20... The Licensee is authorized to receive no more than 1,000 tons per year
and a total limit of4,500 tons (dry weight)...
A.(l) Dawn Mining Uranium Material stored (stockpiled) at the Mill Site longer than 14
days shall be covered with a durable geomembrane cover resistant to damage by
ultraviolet (UV) radiation and sufficient ballast shall be placed over the cover to
prevent wind uplift of the cover during peak wind conditions at the site; and
A.(2) If at any time, visible dust is observed to be originating from Uranium Material
stored on site, the EFRl RSO or his or her authorized representative shall take
actions within 30 minutes to stop the generation of visible dust"
License Conditions 10.20 (A)(1) and (A)(2) do not adequately protect public and
environmental health from the fugitive dust hazards posed by the alternate feed from the
Midnite Mine site. Contrary to the Utah Radiation Control Rules, Utah DRC does not
institute fugitive dust controls adequate to meet the "as low as reasonably achievable"
occupational dose standard mandated in the Utah Admin. Code. Utah Admin. Code R313-
15-101 (2). These comments will demonstrate that there are recognized best management
practices (BMPs) that Utah DRC should consider as "reasonably achievable" in use at other
sites. Utah DRC could and should mandate the use of the technology referenced m these
comments to control fugitive dust resulting from the Midnite Mine alternate feed material
at the Mill as part of its duty to in order to adequately protect public and environmental
health. See Utah Admin. Code R313-12-2. (The general purpose of the radiation rules is "to
ensure maximum protection of the public health and safety to all persons at, or in the
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vicinity of, the place of use, storage, or disposal."); Utah Admin. Code R313-22-33 (Director
shall approve an amendment to a radioactive material license if "the Director determines
that... (b) the applicant's proposed equipment, facilities, and procedures are adequate to
minimize danger to public health and safety or the environment, (standards applied to
license amendments by Utah Admin. Code R313-22-39)).
Response #63
See Response #52.
Comment #64
//. Hazards Posed by Fugitive Dust From the Midnite Mine Alternate Feed Material
As the Utah Division Radiation Control is well aware, fugitive dust represents a significant
impact both to public health and to general public welfare in the following ways:
• Threatens physical injury to the public with chronic lung disease, asthma and
other lung related illness;
• Significant detriment, nuisance or annoyance to the public;
• Cause injury or damage to business or property;
• Create hazardous conditions on public right of ways; and,
• Cause blight and impairment of property values and development opportunity.
While it is not the focus of our area of expertise, we have a great deal of knowledge with
respect to the undesirable nature of fugitive dust from a public health and socio-economic
impact standpoint, as well as its mitigation from an engineering and regulatory
standpoint
Response #64
See General Responses, Parts 1 through 6, and Responses # 16, # 52 and #54.
Comment #65
///. Fugitive Dust Control Plans Currently Utilized at Other Sites
The primary area of concern relates to the nature of the waste stream and the
implementation of best management practices (BMPs) related to the proper receiving,
storage and disposal of the waste materials. Although no specific information is provided
in the License, WTP waste streams from lime precipitation processes are typically highly
amorphous (e.g. water containing) and consist of extremely fine grained precipitates and
water in varying proportions. Unfiltered or settled WTP waste streams from similar
processes typically contain <5% solids, while settled waste streams contain up to 20%
solids, and filtered waste streams may contain up to 80% solids.
The licensee should be required to provide additional information as to the nature of the
waste materials to be received. Although 1,000 tons per year of dry solids may not appear
to be a significant amount of material, if the waste stream were unfiltered and shipped in
55gallon drums at 5% solids approximately 14,545 barrels would be shipped and stored.
With 50% solids more than 1,455 barrels would still require shipment and storage as well
as proper disposal. The License, in requiring in 10.20 A. (1) that material stored or
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stockpiled be covered with a durable geomembrane cover, gives the impression that the
material may be received in trucks or containers and dumped at the site. The License
should more specifically identify the types of materials to be received (e.g. unfiltered,
settled or filtered waste materials), the percentage of dry contents, and the nature of the
shipping containers or methods to be utilized or allowed.
The License should require the licensee to take every reasonable precaution not to cause or
allow the emissions of fugitive dust from being airborne while in transit to the site. The
Draft Utah Division of Air Quality Fugitive Dust Control Plans Instructions, available at:
http.y/wvwMirquality.utah.gov/Permits/FORMS/2013/March/Draft%20FDCP%20lnstruc
tions%2012-12.pdf contain the following requirements:
Response #65
The commenter has not identified what additional information he would like regarding the
nature of the Uranium Material. The Safety Evaluation Report provided the following
information regarding the physical characteristics of the Uranium Material. "The 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. Pilot
testing performed by the Dawn Mining Corporation indicates that this Uranium Material is
expected to have an average moisture content of 55% to 75% (i.e., a dry solids content
between 25% and 45%) for centrifuge-generated material, or approximately 60% to 65%
(i.e., a dry solids content between 35% and 40%) for the filter-press generated material."
(Safety Evaluation Report, 2013).
The DRC does not regulate transportation of the Uranium Material. The EPA has required
that all trucks transporting the Uranium Material to the Mill Site shall be covered by
tarpaulins or similar cover. See the Residuals Transportation Plan included as
Attachment 2, to the Residuals Management Plan for the Midnite Mine Water Treatment
Plant, Revision 10, provided to the EPA in 2013. See Residuals Management Plan,
Revision 10, included as Attachment N.
Comment #66
The Fugitive Dust Rule (R307-309) requires a fugitive dust control plan (R307-309-6) from
all sources whose activities or equipment have the potential to produce fugitive dust
(airborne dust) in PMlOand PM2.5 non-attainment areas. Fugitive dust control plans
include steps your company will take to minimize fugitive dust on-site from pits, yards,
storage areas, and areas of operation and to prevent opacities caused by fugitive dust from
exceeding 20% on site and 10% at the property boundary. The fugitive dust rule addresses
storage and handling of aggregate materials, construction and demolition activities on
sites greater than 1/4 acre, road ways and tailings piles and ponds. Sources shall
develop \ their fugitive dust control plans and submit them to the Director prior to the start
of clearing or construction. Fugitive dust control plans, tailored to specific operations and
sites of operation, shall be required for:
1. All operations with material storage, handling and/or hauling operations and
areas of source operations, construction sites; and all sources or operations which
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have the potential to produce fugitive dust in nonattamment areas along the
Wasatch Front;
2. All temporary relocations under R307-401-17. Sources will be required to develop
a site specific fugitive dust control plan for each temporary relocation of
permitted equipment;
3. All sources and areas of source operations, pits and yards, statewide, which have
been issued a Compliance Advisory for excess fugitive dust Operations, areas of
operation and sources that shall be addressed in fugitive dust control plans are:
• material storage/handling - drilling, blasting, and pushing operations;
• material handling/transfer - clearing/leveling/development construction;
• material processing/transfer - earth moving and excavation;
• road ways and yard areas - track out/spillage on paved roads; and,
• loading/hauling/dumping materials - exposed surfaces.
These requirements are also consistent with the fugitive dust controls that are
commonly used by the mining industry as well as that part of the mining industry
that deals with WTP waste materials. Those practices are also consistent with
regulatory and permitting requirements in Nevada, Wyoming, Montana, Colorado,
Idaho and North Dakota according to the National Mining Association
(http://www.nma.org/pdf/pol briefs/041906 naaqs snapshotpdfl;
Moreover, these requirements have been implemented at sites near the Mill in
Utah. See Moab Project Site Fugitive Dust Control Plan (March 2002) (Trust
Comments Exhibit 1); Crescent Junction Project Site Fugitive Dust Control Plan
(July 2006) (Trust Comments Exhibit 2).
Response #66
Utah Admin. Code R307-309-6 is a UDAQ rule. Any compliance issues with that Rule needs
to be addressed to the UDAQ.
Also, comparisons cannot reasonably be made between the White Mesa Uranium Mill and
the Moab Project or the Crescent Junction Project Site, as these latter two sites are much
more active than the White Mesa Mill; approximately 60 train cars of uranium tailings were
expected to be unloaded and placed each day at the time the requirement was established.
Fugitive dust controls for different sites are different depending on the types, volume and
processing of materials.
Comment #67
IV. Recommendations
The License should, at a minimum, require similar measures to those documented above to
minimize fugitive dust emissions at the White Mesa Mill from the proposed Dawn Mining
waste stream materials. These should specifically include the following:
• Identification of the nature of the waste materials m terms of the physical
properties of the materials transported to and received at the site.
• Measures to ensure fugitive dust control from material transport from Dawn
Mining to the White Mesa Mill;
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• Measures to ensure fugitive dust control during material receiving including
during discharge of the material from trucks, containers or drums into the
receiving area:
• Measures to immediately assure that materials are covered to prevent drying and
increase susceptibility to blowing wind as well as to prevent flowing of dried
materials:
• This should include a windbreak to prevent offsite migration of radionuclide laden
dust around the storage pads.
• There is no reason why BMPs should not be implemented on an immediate basis at
the site. The 14 day window is not consistent with modern practice of control
measures to protect worker and public safety.
• Measures to assure that materials are handled for processing in a manner so as to
minimize fugitive dust:
• Development as a part of the License of a site-specific fugitive dust control plan
including identification of additional measures and assurance that those measures
can be implemented in a safe and timely manner.
• The fugitive dust control plan should include fugitive dust standards, action levels,
response actions, and real time meteorological and dust monitoring during
periods of high winds, and work practice standards for mitigating wind dispersion
of differing waste materials based on density estimates of those materials.
These recommendations are standard practice where similar situations are encountered
and are both practical and reasonable. They benefit public health without being overly
burdensome as evidenced by their routine use in Utah as well as at many other locations in
the United States. The lack of more specific measures in the present License is not
consistent with current industry or regulatory practice.
Finally, in the larger context these same requirements and standards should be applied to
the White Mesa Mill site as a whole. I have been involved in the mining industry, including
working for Energy Fuels as a miner in 1979. The White Mesa Mill has a long and
unfortunate history relative to fugitive dust emissions, which I need not elaborate on.
However, as a professional engineer involved in similar manners, failure to utilize modern
BMPs to control fugitive emissions is evident at the site. This is despite significant advances
and acceptance by industry of BMPs that are both effective and economical. I strongly
encourage the Utah Division of Radiation Control to similarly recognize this situation as
well as the Licensee and take the necessary measures to responsibly rectify this situation.
The attachment that accompanied the commenter's comments can be found in Attachment
B to this Public Participation Summary.
Response #67
See Response #52. As stated in License Condition 10.20, the Uranium Material must be
covered when stored on the ore storage pad longer than 14 days. See also Response #66
regarding the difference in sites referenced by the commenter to the White Mesa Uranium
Mill.
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