DRC-2002-001001 - 0901a068807b3273

In the Matter of
UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION
BEFORE THE PRESIDING OFFICER
)
) Docket No. 40-8681-MLA-11
INTERNATIONAL URANIUM (USA)
CORPORATION
)
)
)
(White Mesa Uranium Mill) )
NRC STAFF RESPONSE TO UTE MOUNTAIN
UTE TRIBE'S INITIAL PRESENTATION
INTRODUCTION
April 9, 2002
The NRC Staff ("Staff") hereby responds to the initial presentation filed by the participants
in this proceeding, the Ute Mountain Ute Tribe ("Tribe") asking that the license amendment at issue
be immediately withdrawn based on lack of Staff consultation with the Tribe pursuant to specific
Executive Orders.
BACKGROUND
The Presiding Officer's Memorandum of March 18, 2002, granted a request for
participational status filed by the Ute Tribe regarding the amendment issued to International
Uranium (USA) Corporation ("IUSA") to receive and process alternate feed materials from
Molycorp, Inc.'s site in Mountain Pass, California. International Uranium Corp. (White Mesa
Uranium Mill) LBP-02-xx, slip op. (March 18, 2002). The Tribe filed its written submission in the
matter on March 28, 2002.1 By Memorandum and Order dated March 29, 2002, the Presiding
Officer requested the Staff to address questions raised in the Tribe's initial presentation by filing
responses "to so much of -the Tribe's initial presentation as brings into question whether the
"Ute Mountain Ute Tribe Initial Presentation in Informal Hearing and Request for
Withdrawal of License Amendment #20", dated March 28, 2002.
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issuance of the license amendment under consideration violated the provisions of certain specified
Executive Orders." See "Memorandum and Order (Directing Responses to Recent Filing)," dated
March 29, 2002, slip op. at 1.
DISCUSSION
In its initial presentation, the Tribe alleges that the amendment was issued in violation of
Executive Order 13175, "Consultation and Coordination with Indian Tribal Governments", and
Executive Order 12898, "Federal Actions to Address Environmental Justice in Minority Populations
and Low-Income Populations." Each will be addressed in turn.
I. Executive Order 13175, "Consultation and
Coordination with Indian Tribal Governments"
On November 6, 2000, the President signed Executive Order 13175, "Consultation and
Coordination with Indian Tribal Governments." 65 Fed. Reg. 67249 (Nov. 9, 2000). The Order
directs that agencies shall be guided by three fundamental principles; first, that the United States
has developed a unique legal relationship with Indian Tribal governments;" second, that the United
States has recognized that "tribes exercise inherent sovereign power over their members and their
territory;" and third, that the Federal government "recognizes the right of Indian tribes to self-
government and supports tribal sovereignty and self-determination." /d. The Order directs Federal
agencies to, among other things, establish a system for consultation with Indian tribes when issuing
regulations and policies that have tribal implications. /d. at 67250.
The Staff initially notes that issuance of the license amendment in this matter could not
have violated Executive Order 13175 as the Tribe claims. Section 1 (c) of the Order excludes from
the definition of "agency'' any agency considered to be an independent regulatory agency as
defined in 44 U.S.C. §3502(5). Exec. Order No. 13175, Section 1(c), 65 Fed. Reg. at 67,249.
Thus, by its terms, the Order explicitly excludes application to the NRC.
: -3-
Nevertheless, the Staff recognizes the importance of maintaining open communication with
Indian tribes which may be affected by its actions. Accordingly, the Staff has maintained
continuous communication with the Tribe on issues related to the White Mesa mill, including
copying the Tribe on virtually all correspondence and interacting with the Tribe during frequent
telephone conversations regarding various issues at the mill. In fact, after learning of the Tribe's
continued concerns regarding the potential dust and groundwater concerns from other, non-
Molycorp, alternate feed material placed on the ore pad, the Staff, in a January 14, 20021etter, has
been in contact with I USA in an attempt to resolve the Tribe's continued concerns.2 Thus, as is
evident from the Staff's numerous interactions with the Tribe, the Staff's intent has always been
to consult with the Tribe on all White Mesa actions.
Upon completion of the Molycorp Draft Environmental Assessment, the Staff forwarded
the Draft Environmental Assessment to the Utah Department of Environmental Quality as an
attachment to a letter. The Tribe, due to an unfortunate administrative oversight, was not carbon
copied on this letter, and thus, did not receive the Draft Environmental Assessment regarding the
Molycorp amendment. However, this oversight in no way diminished the Tribe's ability to consult
with the Staff on issues relating to this license amendment request. Notice of the NRC's receipt
of a request to process Molycorp material at the White Mesa site was provided when published in
the Federal Register on January 9, 2001. 66 Fed. Reg. 1702. Additionally, when the
Environmental Assessment (EA) and the Finding of No Significant Impact (FONSI) was published
in the Federal Register, (and the Tribe was copied on a letter in this regard)3 it included a Staff
2 See letter to Ron Hochstein, IUC, from Melvyn Leach, NRC, Subject: Materials License
SUA-1358-White Mesa Uranium Mill Questions and Concerns Regarding Alternate Feed Material
Storage, dated January 14, 2002. The document is located at Tab #1 of the hearing file, and in
ADAMS as ML020170491.
3 See Letter to Michelle Rehmann, Environmental Manager, International Uranium (USA)
Corporation, from Melvyn Leach, NMSS, Subject: Amendment Request to Material License SUA-
(continued ... )
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contact person who was available to discuss any concerns the Tribe might have had regarding the
conclusion of the EA -namely that the. action would result in no significant environmental impact.
66 Fed. Reg. 64,064. Therefore, the Tribe had notice of the action and the lines of communication
between the Tribe and the NRC were open for any additional concerns the Tribe wished to express.
The Tribe also appears to argue that the alleged failure to consult with the Tribe constitutes
a National Environmental Policy Act (NEPA) violation.4 However, the Staff did not violate any
provision of NEPA by inadvertently failing to carbon copy the Tribe on the letter forwarding the
Draft Environmental Assessment. While the NRC regulations implementing NEPA require the
NRC to include affected Indian tribes in the scoping process for an Environmental Impact
Statement, and require a Draft Environmental Impact Statement to be forwarded to any affected
Indian tribe for comment, there are no such requirements for scoping in the EA process, nor is
there a requirement for distribution of Draft Environmental Assessments to affected Indian tribes.
See 10 CFR §§ 51.26; 51.28(a)(5); and 51.74(a)(6).
The Staff sincerely regrets the omission of the carbon copy listing from the correspondence
to the State of Utah regarding the Draft Environmental Assessment. However, this oversight did
not result in a Staff violation of Executive Order 13175 or NEPA. As noted above, the Staff could
not violate Executive Order 13175 because it does not apply to the NRC. The only existing law
applicable in this instance is NEPA, and as mentioned supra, there is no requirement in NEPA, or
3( ••• continued)
1358 -To Receive and Process Alternate Feed Material from the Molycorp Site; Environmental
Assessment, dated November 30, 2001. The document is located at Tab #6 of the hearing file,
and in ADAMS as ML013380593.
4 "Ute Mountain Ute Tribe Initial Presentation in Informal Hearing and Request for
Withdrawal of License Amendment #20, dated March 28, 2002, pg. 2, stating, ''This ignores how
the National Environmental Policy Act (NEPA) directs the NRC to operate regarding consultation
with tribes and therefore is grounds for withdrawal of License Amendment #20."
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in NRC's NEPA implementing regulations at 10 CFR Part 51, for tribal consultation during the EA
process. See 10 CFR §§ 51.26; 51.28(a)(5); and 51.74(a)(6).
II Executive Order 12898, "Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income Populations
The Tribe additionally alleges that NRC's failure to consult with the Tribe regarding the Draft
Environmental Assessment on the amendment issued to I USA to accept Molycorp alternate feed
material violated Executive Order 12898, "Federal Actions to Address Environmental Justice in
Minority Populations and Low-Income Populations." 59 Fed. Reg. 7629 (Feb. 16, 1994). The
Executive Order states that:
To the greatest extent practicable and permitted by law ... each
Federal agency shall make achieving environmental justice part of
its mission by identifying and addressing, as appropriate,
disproportionately high and adverse human health or environmental
effects of its programs, policies, and activities on minority
populations and low-income populations in the United States and its
territories ...
I d. (Sec. 1-101 ). The Executive Order additionally notes that it is intended to improve the internal
management of the executive branch and that it does not create any substantive or procedural
rights in any person or create any right to judicial review. /d. at 7632 (Sec. 6-609). The Executive
Order, by its own terms, established no new rights or remedies. See Exec. Order 12898, 59 Fed.
Reg. 7629, 7632-7633; see also, Louisiana Energy Services, L.P. (Claiborne Enrichment Center),
CLI-98-3, 47 NRC 77, 102 (1998). As the Commission has noted, the purpose of the Executive
Order ''was merely to 'underscore certain provision[s] of existing law that can help ensure that all
communities and persons across this Nation live in a safe and healthful environment.'" (emphasis
added by Commission) /d. at 102, citing Memorandum for the Heads of All Departments and
Agencies, 30 Weekly Comp. Pres. Doc. 279 (Feb. 14, 1994).
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Although, as an independent regulatory agency, the NRC is not mandatorily subject to
Executive Order 12898,5 the NRC voluntarily agreed to implement the President's environmental
justice directive in a letter to the President on March 31, 1994, from the then Chairman of the
Commission. Relying upon this letter, the Board, in Louisiana Energy Services, held that, "[t]he
NRC is obligated, therefore, to carry out the Executive Order in good faith in implementing its
programs, policies, and activities that substantially affect human health or the environment."
Louisiana Energy Services, L.P. (Claiborne Enrichment Center), LBP-97-8, 45 NRC 367,
376 (1997), rev'd on other grounds, CLI-98-3, 47 NRC 77 (1998).
Indeed, the NRC has carried out the directive in Executive Order 12898 to develop agency-
specific environmental justice strategies. 59 Fed. Reg. 7629, 7630 (Sec. 1-103). The NRC's
"Environmental Justice Strategy," formulated in March, 1995, promptly after the Executive Order,
noted that, "NRC is committed to integrating environmental justice into NRC's NEPA activities.
Greater emphasis will be placed in discussing impacts on minority and low-income populations
when preparing agency NEPA documents such as Environmental Impact Statements (EIS),
supplemental EISs, and Environmental Assessments, where appropriate." (Attachment A)6 As time
has progressed, so, too, has NRC's Environmental Justice guidance, which now is described in
various NRC environmental guidance documents.7
5 Section 6-604 of Executive Order 12898 provides that independent agencies are
requested to comply with the provisions of the Order. 59 Fed. Reg. 7629, 7632.
6 60 Fed. Reg. 30871 (June 12, 1995), announcing Federal agencies' final Environmental
Justice Strategies available for distribution, including the "U.S. Nuclear Regulatory Commission
Environmental Justice Strategy" March, 1995, as publication no. 200-R-95-907. Because this
document is not available electronically, it will be included only in the hard copy of this filing, and
not in the electronic filing.
7 See, e.g., NRR Office Instruction, LIC-203, "Procedural Guidance for Preparing
Environmental Assessments and Considering Environmental Issues, June 21, 2001, pg. 5;
Environmental Standard Review Plan, Supplement 1, NUREG-1555, Supp. 1, Sec. 4.4.6; NMSS
Policy and Procedures Letter 1-50 Revision 2, "Environmental Justice in NEPA Documents" 1999;
(continued ... )
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Because the amendment at hand concerns a materials licensee, the guidance applicable
in this instance is NMSS Policy and Procedures Letter 1-50 "Environmental Justice in NEPA
Documents" which contains NRC's guidance regarding environmental justice in NMSS NEPA
documents.8 According to that guidance:
It is the policy of NMSS to address environmental justice in every
Environmental Impact Statement (EIS) and every supplement to an
EIS that is issued by NMSS. Under most circumstances, no
environmental justice review should be conducted where an
Environmental Assessment (EA) is prepared. If it is determined that
a particular action will have no significant environmental impact, then
there is no need to consider whether the action will have
disproportionately high and adverse impacts on certain populations.
However, in special cases or circumstances, the reviewer may
recommend to management that staff conduct an environmental
justice analysis in preparing an EA. Such determinations will be
made on a case-by-case basis and only where there is an obvious
potential that the consideration of specific demographic information
at the site may identify significant impacts that would not otherwise
be considered. Management (Division Director/Branch Chief level)
will decide on a case-by-case basis when special cases or
circumstances exist that require the staff to perform an
environmental justice review for an EA.
NMSS Policy and Procedures Letter 1-50, Revision 2, "Environmental Justice in NEPA
Documents," 1999, Section II "Policy''.
7( ... continued)
and NUREG 17 48, "Environmental Review Guidance for Licensing Actions Associated with NMSS
Programs, Draft Report for Interim Use and Comment, Appendix B, "Environmental Justice
Procedures," 2001.
Moreover, The Commission recently noted that environmental justice considerations are
integrated in the NRC's NEPA review process. The Commission further stated that it expects
Environmental Impact Statements to inquire whether a proposed project has disparate impacts on
minority and low-income populations and whether and how those impacts may be mitigated. Hydro
Resources, Inc. , CLI-01-4, 53 NRC 31, 64 (2001 ).
8 Although the Staff, in the Molycorp Draft Environmental Assessment, pg. 6, (see infra.
Fn 9) cited to NMSS Policy and Procedures Letter 1-50, Revision 1, the revision in effect at the
time of drafting of the Molycorp Environmental Assessment was Revision 2. While the language
regarding how and when environmental justice is to be considered during the NEPA process varies
from revision to revision, the differences are merely editorial. Substantively, all revisions to the
NMSS Policy and Procedures Letter 1-50 remain the same.
-8-
With this guidance in mind, it is clear that the Staff complied with NRC's Environmental
Justice guidance implementing Executive Order 12898. Section 6.0 of the Environmental
Assessment prepared for the Molycorp amendment explained that, "[b]ecause the staff has
determined that there will be no significant impacts associated with this action, there can be no
disproportionately high and adverse effects and impacts on minority and low-income populations.
Consequently, further evaluation of Environmental Justice concerns, as outlined in Executive Order
12898 and NRC's Office of Nuclear Material Safety and Safeguards Policy and Procedures Letter
1-50, Revision 1, is not warranted."9
Therefore, the Tribe's allegation that, "[b]ased on Executive Order 12898's requirement for
tribal consultation with the Ute Mountain Ute Tribe which the NRC ignored the NRC is therefore
prohibited from approving IUC's license request for the Molycorp waste," has no merit. The Staff's
actions in this instance were in agreement with NRC's environmental justice guidance, guidance
that the NRC developed to ensure compliance with Executive Order 12898.
CONCLUSION
For the reasons stated above, the Staff's issuance of the license amendment at issue did
not violate Executive Order 13175 or Executive Order 12898. Therefore, the Tribe's request that
the amendment be withdrawn should be denied.
Respectfully submitted,
[kqlk_b. %3·~
Angela B. Coggins,
Counsel for NRC Staff
9 See, the "Environmental Assessment for International Uranium (USA) Corporation's
Uranium Mill Site, White Mesa, San Juan County, Utah; In Consideration of an Amendment to
Source Material License SUA-1358 For the Receipt and Processing of the Molycorp Alternate
Feed", attached to letter dated November 30, 2001, from Melvyn Leach, NMSS, to Michelle
Rehmann, Environmental Manager, International Uranium (USA) Corporation. The document is
located at Tab #6 of the hearing file, and in ADAMs as ML013380593.
UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION
BEFORE THE PRESIDING OFFICER
In the Matter of
INTERNATIONAL URANIUM (USA)
CORPORATION
WHITE MESA URANIUM MILL
(White Mesa Uranium Mill)
)
)
) Docket No. 40-8681-MLA-11
)
)
)
)
CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing "NRC STAFF RESPONSE TO UTE MOUNTAIN
UTE TRIBE'S INITIAL PRESENTATION" have been served upon the following persons by
United States mail, first class; through the Nuclear Regulatory Commission's internal mail
distribution as indicated by an asterisk (*), and by electronic mail as indicated by a double
asterisk (**) on this 9th day of April, 2002.
Administrative Judge**
Richard F. Cole, Special Assistant
Atomic Safety and Licensing Board Panel
U.S. Nuclear Regulatory Commission
Mail Stop: T-3F23
Washington, D.C. 20555
Office of Commission Appellate Adjudication*
U.S. Nuclear Regulatory Commission
Mail Stop: 0-16C1
Washington, D.C. 20555
William E. Love**
2871 E. Bench Road
Moab, UT 84532
Victoria Woodard**
Nuclear Waste Chair, Conservation Chair
Sierra Club Glen Canyon Group,
Utah Chapter, Sierra Club
P.O. Box 652
Escalante, UT 84726
Administrative Judge**
Alan S. Rosenthal, Presiding officer
Atomic Safety and Licensing Board panel
U.S. Nuclear Regulatory Commission
Mail Stop: T -3F23
Washington, D.C. 20555
Office of the Secretary**
ATTN: Rulemakings and Adjudications Staff
U.S. Nuclear Regulatory Commission
Mail Stop: 0-16C1
Washington, D.C. 20555
Anthony J. Thompson, Esq.**
Anthony J. Thompson, P.C.
1225 19111 Street, N.W.
Suite 200
Washington, D.C. 20036
John Weisheit, Chair**
Sierra Club Glen Canyon Group
P.O. Box 622
Moab, UT 84532
Michelle Rehmann**
International Uranium (USA) Corp.
Independence Plaza, Suite 950
1 050 Seventeenth Street
Denver, CO 80265
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Atomic Safety and Licensing Board Panel*
U.S. Nuclear Regulatory Commission
Mail Stop: T -3F27
Washington, D.C. 20555
An{±2iin~. 4n•(@
Counsel for NRC Staff
Attachment A
Introduction:
U.S. NUCLE~~ P~i.::•l11·:.0Rl' tO~"li'·~-J~J
ENVIRON~fJl1.2lt JliS'fJC'! iTP.J"T!.!i~
"A.~\:t'a J qg~
·-: : . . -· ...
The Nuclear Regulatory Commission (NRC) was created by the Energy
~eorgan1zation Act of 1974 as an independent regulatory agency. The mission
of the NRC is to assure that civilian uses of ~uclear materials in the United
States---In nuclear power plants, fuel cycle plants, and in medical,
Industrial and research applications---are carried out with proper regard for
the protection of the public health and safety, of the environment and of
nat1onal secur1ty. The NRC is not a Hland management• agency, i.e., it
neither s1tes. owns, nor manages facilities or properties. Therefore, the
President's rebruary ll, )994, Executive Order •Federal Actions to Address
fnv1ronmental Justice in Minority Populations and low-Income PopulationH and
th~ accompany1ng Presidential memorandum have been determined to primarily
~pp1y to our efforts to fulfill the requirements of the National Environmental
Po 1 1 c y A c t PI f r A } a s, a n i n t e g r a 1 p a r t o f NRC ' s 1 i c en s i n g pro c e s s .
In th1~ regard. the NRC is commttted to giving careful consideration to the
r_;Juncl1 on lnv1ronmental Qual1ty (C£0) guidelines on how to take environmental
_;ust1ce 1 1nto account under N[PA. However, pending rece1rt of these
~~JH1el lnf·'>. the NRC has developed Its initul environmental just ice
lm~llrm~ntdtlon ~trategy based on the five principles discussed below.
!•··· Pr·•·<..l•~l"··t··. farLutlve Ortjer· Glr't•ct!) all tl'deral ag~nc1e~ to develop,
t•.rorr!lrrq to p·t>~cnbed timetables, strategtes for assuring environmental
)o~~t:re 1n thr1r· p,-ograms, poliCies. and acttvlttes. The Presidential
~~m0ranJum to ~11 agencies IS a reminder of relevant provisions of existing
lclw, 1nclud1nll the requirement to consider, when environmental impact
stat~ments cln~ other environmental documents are prepared, the effects of
fP(1£'rt11 act1ons on m1nor1ty and low-Income comunities. Although lndepend•:nt
clrh'nCl('',, >tJCh d'> the NRC, were only requested to compl_v with thP £xecut1ve
Orr!er, the Uoalrtr.dn, In hlS March 31, 1994 letter to t~e PresHient, indiCated
that the NRC ~ould endeavor to carry out the measures \et forth 1n the
[JPCutlve Ord~r. dnd the accompanytng memorandum.
The NRC 1s using the working definttton of envtronmental Justice as
suqgP~tp,j by !he Environmental ProteCtiOn Agency's (nvlronmental Justtce
Cfflcf.' )1'1 1;s, fC'r purposE's of thiS document. environmental yusttce mean~ thi?
f,;1r tr·r.~t~l'nt .ln•J mean1ngful tnvolvpment of all people. re~ardie~~ of r.lC'!.
ethniCit~·. culttP'£>, 1ncome or educational lf'vel with '•'H,~ct io tl'le
cen>lo:'ment, ~~vlt•!!rl'ntatlon ar•,j enforcement of l;'nvlf\1~f!:l'nt.si Ia~'>. re-gulat1or:!.
.\ "l! ;> () 1 1 ( 1 t> s
' ·, -.
,.... -
~r1nc1ples of En~1ronmental Just1ce lmplementat1on:
The goal of the NRC's Environmental Justice l~plemer.tation Strategy is to
Integrate environmental justice into the conduct of all pertinent activities
at the agency primarily in the NRC's fulfillment of 1ts NEPA responsibilities.
The Strategy contains five principles of implementation. Th~ first thrr-e
principles are in~titutional in nature and serve as the foundation for the
last two principles which are operational in nature, i.e .• they address
specific activities. The principles emulate the MPrinciples of Good
Regulat1on" wh1ch have been part of NRC policy for several years . .
Integration of lnvironmental Justice into NRC's NEPA Activities
NRC is committ~d to integrating environmental justice into r~RC's
NEPA activities. Greater emphasis will be placed in discussing
impacts on minority and low-income populations when preparing
ngr.ncy NEPA documents such as Environmental Impact Statements
(EIS), supplemental ElSs, and Environmental Assessments, where
,\pprC'Ipriate.
Continue senior management involvement
Th~ NRC Environmental Justice Group, whose members are senior
agency officials, will continue to provide guidance in this area.
An Environmental Justice Coordinator has bP.en appointed to ensure
~rpropriate nu1icy information flow among the different entities
within the NRC, as well as with outside interested members of the
L'uDllC.
Openness and Clarity
N,;ch.'i!r regulation is the public's business. and must be
t,·dns~rted publicly and candidly. Agency positions should b~
reat1lly understood and easily applied.2 This is or part1cul:,.
1mport when dealing with environmental justice issues.
Seeking and Welcoming Public Participation
The NRC maintains regular communication with a ~road spectrum of
entttiei, such as the States, Indian Tribes, members of the public
and other federal agenries. Outrf'ac-h program~ surh as thP
Enhanced Participatory Rulemaking, open meet1ng pol1cy, and
scheduled meetings w1th Agreement States are being tmplemented.
The NRC management is committed to improving our outreach efforts
wlth stakeholders, Including m1nor1ty and low-1ncome co~unities.
and ~elcoming their input.
z frrm th~ ~gPncy·~ "Princ,p1es of Good RegulatiJns" i~sued in
JilnuH} 17. 1991. ,,,ncHmcPmPI"lt ~6.
'
•
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Continue Review and ~onitoring of Title VI Activities
The NRC's financial assistance programs under Title VJ of th~
Civil Rights Act of 1964 are limited to funding training and
travel under Section 274 of the Atomic Energy Act of J954 as
amended, in connect ion with States assuming certain regula tory
authority over specified nuclear materials, and the award of
grants for the sup~ort of basic and applied scientific research
and for the exchange of scientific information. 10 CFR Part 4
calls for nondiscrimination with respect to race, color, national
origin and sex in any program or activily receiving Federal
financial assistance from the NRC. NRC is committed to monitoring
this activity.
Implementation:
The NRC'~ statutory offices---the Office of Nuclear Reactor Regulation
which regulates nuclear power plants and research reactors; the Off1ce
of Nuclear Material Safety and Safeguards which regulates materials
uses. fuel cycle facilities and waste disposal facilities; and the
Office of Nuclear Regulatory Research responsible for rulemakings and
confirmatory research---will assess their existing environmental
activities and integrate environmental justice into these activities, as
appropriate.
3