DRC-2013-004484 - 0901a0688041698c

STATE OF UTAH
OFFICE OF THE ATTORNEY GENERAL
JOHN E. SWALLOW
ATTORNEY GENERAL
KIRK TORGENSEN
Chief Deputy
BRIAN L. TARBET
General Counsel
OAG-76-13
DRC-2013-004484 October 9,2013
Craig Anderson
Utah Attorney General's Office
P.O. Box 140873
Salt Lake City, Utah 84114-0873
Dear Mr. Anderson:
I am writing to address some issues related to the Energy Fuels public meeting that you will be
moderating on October 9, 2013. As you know, the hearing will include a public question and answer session
that you have been asked to moderate. This session is not currently required by any Utah statute or
regulation, but is being undertaken for the purpose of meeting commitments the Division of Radiation
Control ("DRC") made to the Nuclear Regulatory Commission ("NRC"). Those commitments were
associated with NRC state delegation requirements under 10 U.S.C. § 2021(o)(3)(A). See August 6, 2013,
letter from Rusty Lundberg, Division Director, to Deborah Jackson, Deputy Director of the Division of
Intergovernmental Liaison and Rulemaking, NRC. A copy of that letter is included as Attachment 1 to this
letter; see pp. 7 through 10.
The purpose of this letter is to outline our commitments to the NRC for that process, particularly in
the context of the specific questions that were asked. Copies of those questions are included as Attachments
As described in the letter included as Attachment 1, we intent to conduct this public hearing
informally, with the hope that we will be able to have a productive conversation about the issues that have
been raised. Upon review, we determined that most questions will be answered initially by staff from the
DRC and from URS Corporation, the DRC's contractor that assisted with the licensing action. The
applicant, Energy Fuels, is also available to answer questions.
Some of the questions that were submitted were beyond the scope of the DRC's commitment to the
NRC and, in most instances, the DRC does not propose to answer those questions, but will instead respond
to them in the ordinary course of the public comment process. Most of those questions fall into two
categories: questions that ask for legal analysis and questions that are not relevant to the current proceeding.
As provided in the DRC's letter to the NRC:
2 and 3.
Environment Division • Telephone: [phone] • Fax: [phone]
Mailing Address: P.O. Box 140873 • Salt Lake City, Utah 84114-0873
Street Address: 195 North 1950 West, 2nd Floor South • Salt Lake City, Utah 84116
Page 2
11. Questions will be limited as they would during a trial-type hearing. For example, the
following questions will not require a response:
Questions that are not relevant to the licensing action;
Questions that are vague;
Questions that require speculation;
Questions that mischaracterize previous responses;
Questions that seek legal conclusions; and,
Questions that have been previously answered.
See Attachment 1 at p. 9. These reflect limitations that are ordinarily observed in cross-examination. They
are also part of the DRC's commitment because they are important to ensuring that resources are used
efficiently in the licensing process. The DRC has committed to the NRC to use the question and answer
session appropriately to address the kinds of factual questions that are well suited to that format. Please see
Attachment 4 to this letter for more specific information about these limitations in the context of the specific
questions asked.
The role specified in the commitment that the DRC made to the moderator is found at Attachment 1,
page 9: "[t]he Hearing Officer will determine who should respond to a question."
The DRC acknowledges that there are interested persons who do not agree with the procedures we
have outlined. There is a well-established process for making challenges before the NRC to the adequacy of
an Agreement State's authority. That process is outside of the scope of this hearing.
We appreciate the effort that Uranium Watch and the Grand Canyon Trust made to get us advance
questions and we are preparing to answer them, as described in this letter.
Sincerely,
Laura Lockhart,
Assistant Attorney General
Counsel to DRC Staff
LJL/srb
Enclosures
cc: Sarah Fields, Uranium Watch
Anne Mariah Tapp, Grand Canyon Trust
ATTACHMENT 4
Applicability of NRC Commitments to Questions Submitted
Questions from Grand Canyon Trust (Attachment 2)
a. The following questions are seeking legal interpretations:
• Question No. 3, regarding the adequacy of DRC's authorities and
regulatory requirements to meet NRC State Agreement requirements.
b. The following questions are relevant to this proceeding to the extent they are
limited to the specific license amendment application and the materials proposed
for processing:
• Question No. 4, regarding off-site deposition.
• Question No. 6, regarding tailings cover, dust and radon emissions.
Questions from Uranium Watch
a. The following questions are seeking legal interpretations. In addition, many of
these questions have been answered in previous regulatory, licensing, and
adjudicative proceedings.
• Questions 1.1 regarding whether the materials meet the legal definition of
"ore" that can be processed by Energy Fuels. There is also a related legal
question about whether this legal question has been resolved in a previous
proceeding.
• Questions 2.1 through 2.7 regarding the legal status, legitimacy,
regulatory history and interpretation of NRC guidance. There is also a
related legal question about whether this legal question has been resolved
in a previous proceeding.
• Questions 3.1 through 3.3 regarding the applicability of the terms
"byproduct," and "ore" as defined by federal statute and NRC regulation.
• Questions 4.1 through 4.3 regarding the legal status of materials proposed
for processing.
• Questions 5.1 through 5.4 regarding the legality of processing alternative
wastes, the applicability of NRC regulations, and whether the wastes were
considered by NRC in the course of promulgating its regulations.
• Questions 6.1 through 6.4 regarding regulatory actions taken by EPA.
• Question 6.5 regarding the applicability of EPA regulations to the
processing of alternative fuels.
• Questions 7.1 through 7.4 regarding regulatory actions taken by EPA
associated with the 40 CFR Part 61, Subpart W and regarding the
applicability of that Subpart to tailings associated with alternative feeds.
• Questions 8.1 through 8.4 regarding the applicability and interpretation of
40 CFR Part 440, Subpart C.
Attachment 4, Page 1
The following questions are not relevant to this proceeding:
• Question 1.2 regarding licensing requirements for uranium ore, which is
not proposed for processing under this license amendment
• Questions 7.1 through 7.4 regarding the applicability and implementation
of EPA's requirements under 40 CFR Part 61, Subpart W. Those
provisions come under the jurisdiction of the Department of
Environmental Quality within DEQ, and are not enforced by the DRC.
• Question 14.10, regarding standards for transportation. Risks associated
with transportation are not required to be and have not been analyzed by
DRC because it has no regulatory authority over transportation.
The following questions are relevant to this proceeding to the extent they are
limited to the specific license amendment application and the materials proposed
for processing:
• Questions 14.6 is not relevant to the extent is seeks information about
transportation or about storage or loading in other jurisdictions. Risks
associated with these activities are not required to be and have not been
analyzed by DRC, which has no jurisdiction over these matters.
• Questions 14.11, 14.12, and 14.13 regarding the construction, operation,
and closure of Cells 4A and 4B.
• Question 15.1, 15.2, 15.4, and 15.5 regarding radionuclides associated
with alternate feeds.
Question 11.2 appears to have typos in it and is not possible to answer it its
current form.
The following questions request that DRC conduct research to answer questions,
which DRC declines to do at this time. The commenter is welcome to provide
comments on these issues; responses by DRC, including research if appropriate,
will be determined in the context of those comments.
• Question 2.3, regarding the history of specified NRC guidance and NRC's
actions with respect to that guidance.
• Questions 2.4, regarding NRC's intent with respect to specified NRC
guidance.
• Question 3.1 regarding the content of NRC guidance.
• Question 3.2 regarding common definitions of the term "ore."
• Question 3.3 regarding the reason for the absence of a definition of the
term "ore" in the Atomic Energy Act or EPA regulations.
• Questions 6.1 through 6.4 regarding regulatory actions taken by EPA.
• Questions 7.1 through 7.3 regarding regulatory actions taken by EPA
associated with the 40 CFR Part 61, Subpart W.
• Question 8.1 through 8.3 regarding EPA regulatory actions and intent.
Attachment 4, Page 2