DRC-2017-008268 - 0901a0688076f392

Energy Fuels Resources (USA) Inc.
225 Union Blvd. Suite 600
Lakewood, CO, US, 80228
303 974 2140
www.energyfuels.com
October 23,2017 Div of Waste Management
and Radiation Control
Sent VIA E-MAIL AND OVERNIGHT DELIVERY
Mr. Scott Anderson
Director
Division of Waste Management and Radiation Control
Utah Department of Environmental Quality
195 North 1950 West
P.O. Box 144880
Salt Lake City, UT 84114-4820
OCT 2 5 2017
Wl-'ZDtf-OO'MS
Re: Response to Public Comments on the White Mesa Mill Groundwater Discharge Permit
and Radioactive Materials License
Dear Mr. Anderson:
Pursuant to the Division of Waste Management and Radiation Control’s (“DWMRC’s”) letter
dated October 3, 2017, Energy Fuels Resources (USA) Inc. (“EFRI”) is providing responses to
the select list of public comments listed below relating to the renewal of the White Mesa Mill’s
(the “Mill’s”) State of Utah Radioactive Materials License No. UT 1900479 (the “License”)
and State of Utah Groundwater Discharge Permit No. UGW370004 (the “GWDP”).
For ease of review, this letter provides the public comments verbatim, in italics, below,
followed by EFRI’s response.
Ute Mountain Ute Tribe White Mesa Mill Groundwater Discharge Permit UGW370004
Comments and Statement of Basis Part 111 July 31, 2017
Section 6: Summary of Requested Actions
Based on the foregoing comments and the Geo-Logics Report, the Tribe requests DWMRC take
actions to address in a substantive manner (for example by imposing additional permit/license
requirements and conditions with strict timelines) prior to approving the proposed license and
discharge permit. The Tribe requests these actions include:
1. The SAR’s conducted to date for wells MW-24, MW-28, MW-5, MW-31 (in addition to all
wells exhibiting a significant decline in pH which will be discussed in greater detail below)
are required to be performed again at a more rigorous scientific level considering all of the
38 constituents required for monitoring as indicator parameters of facility impact at a more
sophisticated and detailed level, site specific geochemistry and incorporating analysis from
an updated isotopic data.
Letter to Scott Anderson
October 23, 2017
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EFRI Response:
The indicator parameters chosen for this Site are based on the following factors.
Many of the permit-required constituents are naturally occurring and have been shown to occur
in the region in varying concentrations, as discussed in the Addendum to the Background
Groundwater Quality Report: Existing Wells for Denison Mines (USA) Corp.'s White Mesa
Uranium Mill Site, Evaluation of Available Pre-Operational and Regional Background Data
(INTERA, 2007a). As presented in the Background Groundwater Quality Report (INTERA,
2007b ), ideal indicator parameters of potential tailings seepage would meet these criteria:
1. Move with the same velocity of the transporting water,
2. Be present in source solutions at easily measurable concentrations, and
3. Not be common in ambient groundwater.
Of the constituents listed in the GWDP, chloride has chemical properties that lend it most
readily to transport by water. Chloride is often chosen as a tracer of groundwater flow because
common chloride minerals are highly soluble in water and have little tendency to crystallize
from solution. Since chloride participates in relatively few chemical reactions, concentrations
move along a groundwater flow path with little attenuation in concentrations. Chloride meets
at least two specifications of an ideal indicator of potential tailings solution impact to
groundwater: it moves with the same velocity of transporting water, and it is present in source
solutions at easily measurable concentrations. Although chloride is common in ambient
groundwater at the Mill, the average chloride concentration in tailings impoundment solutions
is sufficient to ensure that any potential seepage from tailings impoundments would be
measurable in groundwater before any substantial volume had entered the system. Thus,
chloride is a primary indicator of potential tailings impact.
Sulfate is present in tailings solutions at high concentrations but is also present in ambient
groundwater at proportionally higher concentrations than chloride. Further, the solubility of
common calcium sulfate minerals is lower than the most common chloride minerals, which can
limit the amount of sulfate that can remain dissolved and will generally retard sulfate
concentrations along a flow path compared to chloride. Nevertheless, given the high
concentrations of sulfate in the Mill's tailings cells of approximately 65,000 mg/L and its
generally low attenuation, it is still considered to be a good indicator parameter.
Other than chloride, the constituent with most promise for indicating potential impacts from
tailings solutions is fluoride. Referring to the Periodic Table, fluoride is in the same elemental
period occupied by chloride and, for this reason exhibits similar chemical properties. Fluoride
is present in tailings impoundment solutions at an average concentration of nearly 1,500 mg/L.
Fluoride is present in natural groundwater at concentrations ranging from less than detection to
more than 100 mg/L, but concentrations are typically near one mg/L. Unlike chloride,
however, the common trace mineral apatite is known to act as a solubility control that can
reduce fluoride concentrations along a flow path. Thus, while fluoride is a very good indicator
parameter and generally expected to move faster in groundwater than sulfate, fluoride should
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be considered to be secondary to chloride as an indicator of impact. Although fluoride is
generally expected to move as quickly in groundwater as chloride, it can move somewhat
slower than chloride, depending on concentrations of apatite along the flowpath.
In contrast, a number of chemical constituents present at high concentrations in tailings
solutions have transport properties that would generally not allow early detection of potential
milling related impacts to groundwater. It is true, as Table 11 of the Geo-Logies Report
demonstrates, that most of the heavy metals listed in the GWDP are detected more than nearly
100% of the time in the Mill's tailings impoundment system, and that with the exception of a
few common heavy metals (iron, manganese, selenium, and uranium) detection rates for heavy
metals in groundwater monitoring wells are less than 30% (Geo-Logies, 2017).
However, among the metals, uranium is probably the most mobile and is therefore the best
indicator parameter for metals. Any potential seepage from tailings impoundments would be
expected to exhibit rising concentrations of chloride and possibly fluoride, sulfate, and
uranium. While uranium may be the most mobile of the metals, it is typically retarded behind
chloride and would likely not be expressed in groundwater until sometime later than chloride
concentrations had begun to rise. This is because uranium is subject to sorption, which
depends upon speciation and pH. Many metals are soluble and transportable at low pH, but
exhibit progressively higher retardation as pH values rise above the 3 to 4.5 range.
Observations at a large number of uranium mill tailings facilities in the western United States
indicate that low pH in tailings solutions rarely persists more than a few hundred feet in any
transport direction from a source due to the high neutralization potential generally observed in
alkaline soils from arid regions of the western United States. As a result, most metals would
be expected to exhibit high retardation as low pH solutions from a potential tailings leak would
be expected to quickly rise after being exposed to soils, and would therefore be poor indicators
of any potential tailings cell leaks. Chloride, fluoride and sulfate would experience much less,
if any, retardation in those same circumstances and would hence be expected to be the best first
indicators of any such potential tailings cell leakage.
In sum, the constituents appearing in red in Table 11 of the Geo-Logies Report have a
ubiquitous presence across the Mill site, and include all the major anionic species, and
uranium, which are commonly found in groundwater and discussed above as potential tracers
of mill process impact to groundwater. These commonly detected constituents indicate that, of
the trace constituents on the GWDP list, chloride, fluoride, sulfate, and uranium are likely the
most mobile in the groundwater environment beneath the Mill site and possibly the most
mobile of the constituents of greatest concern. They are therefore the best first indicators of
any potential tailings cell leakage.
The purpose of indicator parameters is not to reduce the importance of other GWDP
constituents, but to identify the more mobile constituents as first indicators of potential milling
related impacts. Each of the 38 GWDP constituents has a Groundwater Compliance Limit
("GWCL"). In accordance with the GWDP, if a sample exceeds a GWCL, accelerated
monitoring is initiated and the Director of DWMRC (the "Director") is notified. If an
exceedance of the GWCL occurs two consecutive times, EFRI must submit within 30 days to
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the Director a plan and time schedule for assessment of the sources, extent and potential
dispersion of the contaminant (DWMRC, 2012). So, each constituent is evaluated, but most of
these constituents are not considered to be nearly as good first indicators of potential impacts
as chloride, fluoride, sulfate, and uranium.
Further, as discussed in detail in the response to Comment #4 and Comment #6, site specific
geochemistry was used to develop the Pyrite Report (HGC, 2012) and pH Report (INTERA,
2012) and is used in all SARs to date to evaluate potential impacts of pH changes on all
constituents. It is therefore not necessary to perform any additional analyses considering all of
the 38 constituents required.
The foregoing analyses of all of the constituents, the impacts of pH trends on the constituents
and the identification and analysis of the key indicator parameters allows for a comprehensive
analysis of all of the constituents of concern at the site and for early identification of any
potential Mill-related impacts on groundwater at the site, in accordance with applicable US
Environmental Protection Agency ("EPA") guidance. Additional isotopic analyses are not
required under such guidance, and, as discussed below, would not be appropriate to add to the
GWDP. In any event, two recent isotopic analyses have been performed at and around the Mill
(Hurst and Solomon, 2008, Naftz et. al., 2011), which confirm the geochemical analyses
performed at the site, as described above. There is no need for any further isotopic analyses at
the site.
For these reasons, it is not necessary to perform the SAR analyses for wells MW-24, MW-28,
MW -5, MW -31 "at a more rigorous scientific level" considering all of the 38 constituents
required for monitoring as indicator parameters of facility impact "at a more sophisticated and
detailed level" using site-specific geochemistry and incorporating analysis from an updated
isotopic investigation.
2. Stop using rationale sourced from EFR regarding using only four of the 38 DWMRC
specifically selected indicator parameters as part of the DWMRC rationale for approving
modified GWCLs and move to a more sophisticated approach as intended when the 2004
GWDP SOB was developed. Page 7 of the 2004 SOB details the development of GWCLs for
each of the 38 chosen parameters, "to be used as early warning indicators of impending
groundwater pollution. "
EFRI Response:
As described in Comment #1, the point of indicator parameters is not to reduce the importance of
other GWDP constituents, but to identify the more mobile constituents as first indicators of any
potential Mill-related impact. The compliance monitoring program under the GWDP includes a
compliance limit for each of the 38 constituents listed in the GWDP. Compliance is therefore
based on all 38 GWCP parameters, not just for the four selected indicator parameters.
Exceedances of any of the GWDP constituents are addressed in accordance with the GWDP. If a
sample exceeds a GWCL, accelerated monitoring is initiated and the Director is notified. If an
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exceedance of the GWCL occurs two consecutive times, EFRI must, within 30 days, submit to
the Director a plan and time schedule for assessment of the sources, extent and potential
dispersion of the contaminant (DWMRC, 2012). For any exceedance, the Mill must evaluate all
potential reasons for the exceedance, taking all factors into account, including the mobility of the
constituent, the sensitivity of the constituent to changes in pH, any changes in pH in the well, the
behavior of the indicator parameters in the well, and any other relevant factors. Based on all of
this information, a determination is made as to whether the exceedance is likely due to Mill-
related factors or natural background factors, and revised GWCLs are set or further analyses
and/or corrective actions are taken, as appropriate.
3. Require development and assessment methodology of site specific Kd (soil partitioning
values) for each parameter with site-specific geochemical analytic data and associated
modeling and interpretation.
EFRI Response:
Based on EPA 402-R-99-004B (EPA 1999):
"The partition coefficient, Kd, is defined as the ratio of the quantity of the adsorbate adsorbed
per mass of solid to the amount of the adsorbate remaining in solution at equilibrium.
Retardation is defined as the ratio of the velocity of the water through a control volume to the
velocity of contaminant through a control volume.
Chemical retardation is defined as:
1 + (pb/ne )Kd
Where: pb = porous media bulk density (mass/length3)
ne = effective porosity of the media at saturation. "
The Kd value for a particular solute within a particular porous medium thus provides a measure
of the degree of retardation of the rate of solute transport with respect to the rate of interstitial
groundwater flow. The higher the Kd, the slower the solute will migrate, and the larger the
discrepancy between the solute migration rate and the groundwater flow velocity.
Further, as discussed in detail in the response to Comment #4 and Comment #6, site specific
geochemistry was used to develop the Pyrite Report (HGC, 2012) and pH Report (INTERA,
2012). In addition, site-specific Kd analysis for certain constituents in select drill holes at or near
some of the tailings cells was completed as part of the design of the evapotranspiration cover
system for the tailings impoundments. However, a full site-specific Kd analysis for each
constituent has not been performed and would be very difficult and very expensive, given the
variability of conditions at the site. The Kds for each constituent may change from location to
location at the site and may vary by depth as different soil conditions are encountered. It would
be very difficult to determine a representative Kd for each constituent for the entire site. Instead,
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it is standard practice and more useful to use conservative textbook Kds for each constituent as
representative of what a conservative Kd for the constituent would likely be across the entire site.
Under any type of Kd analysis, whether site-specific or textbook, the four indicator parameters
identified for the site, chloride, fluoride, sulfate and uranium, would still be considered to be the
best first indicators of any potential tailings cell leakage.
4. Require as a condition to the proposed GWDP an Isotopic Groundwater and Suiface Water
Investigation and Report.
EFRI Response:
An Isotopic Groundwater and Surface Water Investigation and Report is not necessary for the
Mill site because it is not required under any applicable EPA guidance. Furthermore, there are
no standardized analytical techniques approved by EPA or other comparable certification
bodies, and therefore it is impossible to set compliance standards. Without standardized
methodologies and no acceptable method to set compliance standards, it is not appropriate to
include isotopic studies in the Mill's GWDP for compliance purposes. In any event, detailed
isotopic investigations of both groundwater and surface water at the site have already been
carried out and published, which confirm the conclusions and validity of the existing
groundwater monitoring program. Further isotopic studies are not warranted. A brief
summary of the isotope systems used, findings, and interpretations are given below.
Hurst and Solomon (2008) surveyed surface water (tailings cells and wildlife ponds) and
groundwater (monitoring wells) in the area around the Mill. They used noble gas and
tritium/helium-3 measurements to determine the age of water and found a trend of more recent
ages for groundwater monitoring wells near the wildlife ponds, and increasing ages (to greater
than 50 years) downgradient from these wells. The source of water in these downgradient
wells is thus older than the onset of milling in 1980. Deuterium and oxygen-18 measurements
revealed that surface water samples were isotopically enriched, indicative of evaporation.
Groundwater samples revealed values that plotted linearly on a mixing line of deuterium and
oxygen-18, with a similar slope, but slightly enriched, relative to that of the Utah Meteoric
Water Line. Isotopic measurements of sulfate showed that tailings cell water and wildlife
ponds were isotopically enriched in oxygen-18 relative to groundwater monitoring wells, and
depleted in sulfur-34 relative to groundwater monitoring wells. MW-27 was the only well that
exhibited oxygen-18 and sulfur-34 values for sulfate that were close to those measured in
tailings water and the wildlife ponds. Sulfate concentrations in MW-27 were relatively low,
however, so leakage and transport of tailings water to MW-27 is unlikely. Groundwater
monitoring sites with high dissolved metals concentrations were isotopically distinct from
tailings cell water in terms of oxygen-18 and sulfur-34 in sulfate. The authors concluded that
"the data collected in this study do not provide evidence that tailings cell leakage is leading to
contamination of groundwater in the area around the White Mesa Mill" (pg. 58-59).
Naftz et al. (2011) collected surface water samples of local springs, stock ponds, and Recapture
Reservoir, and groundwater samples of local monitoring wells and domestic and public supply
wells. They measured noble gases and tritium/helium-3 and found that wells completed in the
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Dakota Sandstone and Burro Canyon formations exhibited apparent ages greater than 50 years.
Local springs (Cow Camp, Oasis, and Entrance Springs) exhibited apparent ages ranging from
19 years to present. Deuterium and oxygen-18 measurements revealed values that fell along a
mixing line between isotopically enriched Recapture Reservoir water and relatively depleted
samples that fell directly on the Global Meteoric Water Line. The latter samples corresponded
with groundwater of greater age. Values in Entrance Spring were similar to those for
Recapture Reservoir, the water from which is used for milling operations on site.
Measurement of sulfur-34 and oxygen-18 in sulfate revealed that results for monitoring wells
and springs were isotopically distinct from tailings cell water. In addition to stable isotope
measurements, the authors measured uranium-234, -235, and -238. The activity ratio ("AR")
of uranium-234 to uranium-238 was calculated to assess the possibility of tailings leakage,
given that samples of milling-impacted waters tend to have a uranium AR near 1 (Zielinski et
al., 1997). Most samples exhibited dissolved uranium concentrations below the EPA
maximum contaminant level ("MCL") of 30 [!giL, and uranium AR values ranged between 1.4
to 3.4, which is a range expected for non-impacted waters (Zielinski et al., 1997). The uranium
AR values for Entrance Spring exhibited a general decline towards those expected for mill-
impacted water. This spring is located up-to cross-gradient of expected groundwater flow,
however, so if uranium AR values are indeed indicative of a milling input, this milling input is
most likely to be from eolian transport of tailings. For a more detailed discussion of uranium
AR values, see response to Comment 13.
These investigations have utilized isotope measurements to determine water ages, important
processes such as evaporation and mixing, and possible water sources. Both studies conclude
that groundwater is not likely to be impacted by any potential tailings cell leakage based on the
age of the water and the isotopic signatures of sulfur and uranium.
These isotopic studies should be taken as confirmation of the conclusions and validity of the
existing groundwater monitoring program at the Mill, and hence the sufficiency of the existing
program. There is therefore no need to perform any further isotopic analysis at the Mill. As
stated above there are no standardized analytical techniques for isotopic studies and it would
therefore not be appropriate to add them to the existing program.
5. Require measurement of Dissolved Oxygen as part of the field parameter set.
EFRI Response:
Accurate measurement of dissolved oxygen ("DO") in groundwater collected from perched
monitoring wells is problematic at the Mill due to the low permeability of the formation hosting
the perched groundwater and the consequent low productivity of wells installed to monitor the
perched groundwater.
First, the low rates of perched groundwater flow exacerbate the impact of wells on perched
groundwater oxygen concentrations near the wells. Water flowing through the wells is in contact
with oxygen introduced into the well casings for substantial periods, allowing for substantial
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diffusion of oxygen into the groundwater within and near the wells. Transport is additionally
enhanced by barometrically-induced water level fluctuations within the wells.
Second, most of the wells have screens extending into the vadose zone, which allows diffusion
of oxygen into the vadose zone directly above the water table in these wells. This diffusion
occurs in all directions, including up gradient with respect to groundwater flow. This gas-phase
diffusion, which occurs approximately four orders of magnitude more rapidly than aqueous-
phase diffusion, creates a large reservoir of gas-phase oxygen in contact with groundwater near
the wells. Because oxygen from this reservoir is in contact with a relatively large area of
groundwater, diffusive transport to the groundwater is enhanced. In addition, air contains
approximately 30 times more oxygen on a mass per volume basis than groundwater saturated
with oxygen, which increases the mass of oxygen available to be transported to groundwater near
each well. Barometrically-induced water table fluctuations near the wells also enhances
transport of oxygen from this vadose reservoir to the wells.
Third, because of the extremely low productivity of many of the sampled wells, the purging
alone may have a substantial impact on DO. The substantial degree of water level fluctuation
resulting from purging enhances oxygen transport to the groundwater in the immediate vicinities
of the sampled wells.
All these factors are important because they impact oxygen concentrations in groundwater near
the wells, which is the water that is collected during sampling. Water at distance from the wells
likely contains much lower oxygen concentrations. For the above stated reasons, the collection
of DO in the field parameter set is not warranted or advisable.
6. Rescind DWMRC approval of the modified GWCLs based on the December 7, 2012
pH/pyrite investigation report and related documents, EFR October 2012, Source
Assessment Report White Mesa Uranium Mill, prepared by Intera Geosciences and
Engineering and the EFR November 9, 2012 pH Report White Mesa Uranium Mill, prepared
by Intera as the source of pH decline/metals increase documented in the April 25, 2013
DWMRC letter to JoAnn Tischler, Director Compliance Energy Fuels Resources with the
Subject: Energy Fuels Resources (USA) Inc. October 10, 2012 Source Assessment Report
White Mesa Uranium Mill and associated pH documents (dated November 9, 2012 pH report
and December 7, 2012 Pyrite Investigation Report): DRC Findings, and impose a permit
condition requiring a new pH investigation report for OOC wells including extensive and
comprehensive isotopic/geochemical investigation including humidity cell testing.
EFRI Response:
A new pH investigation report for out of compliance ("OOC") wells including extensive and
comprehensive isotopic/geochemical investigation with humidity cell testing is not necessary,
and in the case of humidity cell testing, would not be useful.
The pH Report (INTERA, 2012) and the Pyrite Investigation Report (HGC, 2012) include
detailed geochemical analyses supported by site specific data. Additionally, these
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investigations were performed within a year of N aftz et al. (20 11 ), which included isotopic and
geochemical analysis of local springs, stock ponds, Recapture Reservoir, and groundwater
samples of local monitoring wells and domestic and public supply wells. Furthermore, as
discussed above, there are no standardized analytical technologies for isotopic studies
approved by EPA or other certification bodies.
Humidity cell tests are a type of kinetic test used to predict the potential for acid mine drainage
("AMD"). Typically, about 1 kg of ore or waste rock is placed into a column and subjected to
periodic leaching and air drying. The effluent is tested for pH and dissolved constituents over
time. These tests are useful for determining whether acidic drainage will be produced at a
given site. However, one of the major challenges of these tests is that results can vary by an
order of magnitude for different tests using the same material (Sapsford et al., 2009). This
variability reveals the limitations imposed by testing small amounts of material that is most
often heterogeneous.
Humidity cell testing at the Mill site does not make sense since the wells and tailings cells are
providing water samples, and humidity cell testing is carried out on solid samples. The
information gained from sampling and analyzing monitoring wells and tailings water is far
superior to humidity cell testing, because the results are the net result of the site-specific
heterogeneity encountered over the flow path, under environmentally-relevant conditions.
7. Require direct testing of liner integrity and leak location surveys for the three legacy cells
and direct testing of subsurface leakage to the vadose zone under the three legacy cells.
Identify appropriate methodology by evaluating existing technologies, including but not
limited to: electrical integrity surveys of the liners and advanced geophysical
characterization of the vadose zone using high performance subsurface imagery techniques
(Please see Attachment C for additional information regarding this technology and note that
Dawn Wellman manager of the Environmental Health and Remediation market sector at
Pacific Northwest National Laboratory. , Pacific Northwest National Laboratory PO Box
999 Richland, WA 99352 [phone] has been contacted by the Tribe and is available to
share information via phone calls, video conferencing, etc. with DWMRC regarding
advanced vadose zone characterization).
EFRI Response:
Monitoring the leak detection systems in each of the cells, and monitoring of indicator
parameters in groundwater adjacent to and downgradient of the tailings management system as
described in the responses to comments 1 and 2 provides early warning of any potential
subsurface leakage from the tailings cells.
Direct testing of liner integrity as identified in Comment 7, is not feasible in Cells 1, 2 or 3.
Direct liner integrity testing requires the cell in question to be empty and the liner floor and walls
to be exposed and visible. Cells 2 and 3 have been filled and have a portion of the reclamation
cover in place. The cell liner in each of these cells can no longer be accessed without complete
excavation of the entire tailings contents of each. Similarly, the liner in Cell 1, which is in
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continuous service for solution management, cannot be accessed without emptying the cell
contents. Additionally, the Discharge Minimization Technology ("DMT") requirements for
monitoring the leak detection system on Cell 1 have successfully indicated liner integrity
changes, resulting in the repairs of the Cell 1 liner.
With respect to the methodologies identified in the comment and in Attachment C of the Geo-
Logic Associates July 2017 Updated Data Review and Evaluation of Groundwater Monitorjng
Report, each of the technologies offered by Pacific Northwest National Laboratories is
technologically inappropriate for the following reasons. Attachment C of the Geo-Logic Report
described three technologies, as follows.
3D Imaging of Vadose Zone Contaminant Distribution. This technology was proposed for
monitoring contamination at shallow depths in the subsurface and/or vadose zone at the Hanford
Reserve B-Complex, via variations in electrical conductivity. The technology is not applicable
at the depths required to monitor below the bottom of the tailings cell liners, at depths of 20 -40
feet below ground surface or greater.
3D Imaging to Monitor Treatability Testing. -The above technology was also proposed for
monitoring the progress of dewatering and desiccation in the active remediation of vadose zone
contamination at the Hanford Reserve. No plume of contamination has been identified in the
tailings subsurface at the Mill; no vadose zone or other subsurface remediation is required;
therefore no dewatering, desiccation or other hydraulic management is required. Proposed
technologies for monitoring of dewatering and desiccation in an ongoing remediation are
irrelevant and inapplicable.
Real Time Imaging of Natural and Engineered Subsurface Remediation Processes. This
technology was offered for monitoring the addition of liquid and gaseous amendments and
treatment additives and the rate of amendment addition in an active remediation of vadose zone
contamination at the Hanford Reserve via Electrical Resistivity Tomography ("ERT") imaging.
No plume of contamination has been identified in the tailings subsurface at the Mill; no vadose
zone or other subsurface remediation is required; therefore no treatment additives or soil
amendments are required. The proposed technology for monitoring of reagent or amendment
addition in an ongoing remediation is irrelevant and inapplicable.
Advanced External Tank Leak Detection Imaging Using Direct Push Buried Electrodes. Both
the standard and the proposed direct push electrode system for leak detection imaging described
in Appendix C of the Geo-Logic Report are specifically limited to monitoring of leakage from
"metal pipes and tanks" and require that the system to be monitored be constructed of metal
suitable for establishing voltage differentials. The technology is inapplicable to the Mill's
tailings system constructed of polymer liners and plastic piping.
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8. Require Source Assessment Report and Contamination Investigation for the Chloride plume
prior to approving modified GWCLs for wells associated with the chloride plume.
EFRI Response:
A SAR and Contaminant Investigation for the chloride plume is unnecessary because the
chloride plume is relatively collocated with the nitrate plume (Figures 1-1 and 1-2 of the Nitrate
Monitoring Report [EFRI, 2017a])). Elevated nitrate and chloride concentrations in groundwater
at the Mill were addressed in the Contamination Investigation Report ("CIR"). Results of the
CIR led to a Stipulated Consent Agreement and Corrective Action Plan (HGC, 2012).
Corrective actions associated with the nitrate and chloride plumes include the pumping of four
wells from within the plumes to remove nitrate and chloride mass, reduce concentrations, and
minimize or prevent plume migration, and continued monitoring and reporting of wells in the
plumes. Monitoring and reporting of the behavior of nitrate and chloride associated with the
plumes occurs quarterly (EFRI, 2017a)
9. Require a detailed southeast hydrologic investigation and report to define, demonstrate and
characterize the hydraulic connection and local groundwater flow directions between the
tailings cells and MW-22. This investigation and report should be similar in scope and
requirements to the Detailed Southwest Investigation report which DWMRC previously
required of EFR, and include multiple piezometers, borings and/or monitoring wells to
complete a detailed subsuiface characterization of groundwater flow at a sufficient
resolution to identify any existing preferential channels of migration.
EFRI Response:
Performance of such a study is unnecessary for the following reasons.
First, the southeastern portion of the site is cross-gradient with respect to perched groundwater
flow beneath the Mill site and tailings management system. The proper area to do such an
investigation would be the southwest portion of the site which is directly downgradient of both
the Mill and tailings cell management system. As pointed out by the commenter, such a study
has already been completed.
Second, there is no evidence to suggest that a continuous higher permeability zone exists in the
southeastern portion of the site or that such a zone might hydraulically connect the tailings cells
to MW -22. MW -22 has one of the lowest hydraulic conductivities measured at the site. A
relatively continuous higher permeability zone is associated with the eastern portion of the
chloroform plume in an area where groundwater flow is to the south-southeast. This zone,
located northeast and east (up-to cross-gradient) of the tailings management system, is known to
'pinch out' immediately to the south of well TW4-4 based on numerous hydraulic conductivity
measurements downgradient ofTW4-4 (including TW4-6, TW4-14, TW4-26, TW4-27, TW4-29,
and TW4-33). TW4-4 is located east of Cell 3 and more than 1 IA miles north of MW-22. Even
enhanced by this known higher permeability zone (which is approximately three orders of
magnitude more permeable than the formation at MW-22), chloroform released to two sanitary
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leach fields prior to Mill operation has migrated only about 2,150 feet to the south-southeast in
more than 37 years. More than 35 years were required for detectable chloroform to reach well
TW 4-14, located approximately 1,800 feet south-southeast of the suspected source area in a low
permeability zone adjacent to the higher permeability zone penetrated by TW4-4. MW-22 is
over 6,000 feet further south ofTW4-4.
Third, relatively stable (and relatively low) chloride concentrations at MW-22 are inconsistent
with the existence of any nearby higher permeability zone that could potentially have conveyed a
water quality impact from the vicinity of the tailings management system to MW-22. If any
potential tailings seepage could possibly have travelled cross gradient the full distance to MW-
22, chloride would be the first constituent to demonstrate a rising trend. In addition, any such
impact, should it exist, would be detected first at existing MW -17, located southeast of the
tailings management system and between the tailings management system and MW -22.
There should be no concern that any potential impacts from the Mill are affecting MW-22 at this
time.
10. Inclusion of three new point of compliance monitoring wells between tailings cell 4A and
MW-22.
EFRI Response:
In response to the Ute Mountain Ute Tribe's (the "Tribe's") concerns discussed in both
September 2015 working session and a February 2016 meeting, EFRI has proposed several
alternatives for the installation and monitoring of three wells between Cell 4A and MW -22 to
address the Tribe's concern regarding groundwater flow and hydraulic conductivity in the area
between the tailings management system and the White Mesa community. EFRI has also offered
to sample the two wells installed by the Tribe on the boundary shared with the Mill. These
offers were made in correspondence to the Tribe in August 2016. EFRI repeatedly requested a
response from the Tribe (throughout the remainder of 2016 and in early 2017) regarding the
offers to add three wells and sample the Tribe's wells. Since no response was received by EFRI,
DWMRC modified the GWDP to add full suite analytical parameters to TW4-24 in lieu of
additional wells between Cell 4A and MW-22 due to the Tribe's apparent disinterest in such
additional wells. Given the additional monitoring at TW4-24, EFR is not prepared to incur the
further costs of additional wells, for no good reason.
In light of the overwhelming existing evidence, discussed above in response to comment 9, that
there could be no impact to MW-22 from the Mill's tailings impoundments, EFRI sees no benefit
to adding the three requested additional wells. The addition of the three wells will add little to
the existing information yet will result in significant unnecessary cost to EFRI.
11. Designate MW-22 a POC well and require a SARfor OOC parameters.
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EFRI Response:
MW-22 is not necessary as a POC well because it is located far (more than 1 mile) cross-gradient
of the tailings management system, and because an unimpacted cross-gradient well (MW -17) is
located between the tailings management system and MW-22. MW-17 is located approximately
five (5) times closer to the tailings management system and is more appropriately positioned for
the timely detection of any potential cross-gradient water quality impacts.
Concerns have been raised regarding the water quality at MW-22 due to elevated concentrations
of sulfate and some other constituents (primarily metals), relatively low pH, and past water level
increases. However, relatively stable and relatively low chloride at MW -22 is inconsistent with a
water quality impact resulting from any potential tailings cell seepage.
In addition, the association of relatively low pH and relatively high sulfate and metals
concentrations is consistent with oxidation of naturally occurring pyrite in the formation as
discussed in HGC (2012) [Investigation of Pyrite in the Perched Zone, White Mesa Uranium Mill Site,
Blanding, Utah, December 7 2012]. The oxidation of pyrite is accelerated by enhanced transport of
oxygen to the formation via the monitoring well casings as discussed in the response to
Comment 5. Pyrite oxidation releases sulfate and acid. The release of acid lowers pH and
mobilizes naturally occurring metals in the formation. As an example, the increase in cobalt
concentrations at MW-22 is likely due to decreasing pH resulting from pyrite oxidation.
Naturally-occurring cobalt is commonly co-precipitated with manganese oxides. Therefore, any
change in groundwater chemistry that tends to destabilize manganese oxides, such as a drop in
pH, will also tend to mobilize cobalt.
The lack of evidence to support the existence of a high conductivity 'channel' to or near MW-22
that could potentially have conveyed a water quality impact from the tailings management
system to MW-22 is discussed in the response to Comment 9. Increases in water levels at MW-
22 that have also been used to support the potential existence of such a feature are relatively
small (about 12% of saturated thickness) and more likely result from local sources of enhanced
recharge. Most of the water level increase at MW -22 occurred prior to 2007 with a significant
decline in the rate of water level increase since 2007. This timing is inconsistent with wildlife
pond recharge and does not match water level patterns at wells likely to be unaffected by
chloroform and nitrate pumping that are much closer to the wildlife ponds such as MW-5, MW-
11, MW-12, MW-14, and MW-17.
The low conductivity at MW -22 makes it possible for relatively large water level increases to
occur in response to relatively small-magnitude local recharge sources. One potential source of
enhanced recharge is the stock pond located approximately 1,300 feet northeast of MW-22 (and
about four times closer than the southernmost wildlife pond). Aerial photography shows water
in this pond at various times in the past including a photo dated April 5, 2015. Other potential
sources of enhanced recharge are the drainages located immediately east and immediately west
of MW-22. Recharge from these drainages is likely to have been enhanced in the vicinity of
MW-22 by the construction of the rerouted access road linking highway 191 to Cottonwood
Creek Canyon, which is located along the western margin of White Mesa. Prior to Mill
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construction the road extended directly across the Mill property but was re-routed to the south
when the Mill was constructed. This dirt road, located immediately north of MW-22, runs east-
west at that location, and cuts approximately perpendicularly to the direction of drainage. The
roadway itself is cut down into the mesa; the central roadbed is slightly elevated, and is bordered
by shallow ditches. The road crosses both drainages bordering MW-22, creating a potential
source of enhanced ponding and recharge. The elevated central roadbed itself is expected to act
as a dam to surface runoff and to enhance recharge; the ditches on either side of the central
roadbed are also expected to collect water, primarily as runoff from the central roadbed, and
enhance recharge. Fisher (2000) [Simulation of Partially Saturated -Saturated Flow in the Caspar
Creek B-Road Groundwater System. Master of Science Thesis, Humboldt State University May, 2000]
discusses a logging road cutting perpendicularly to surface drainage that acts as a dam to
subsurface waters. Shallow subsurface waters are likely to exist in the vicinity of the drainages
bordering MW-22 as a result of enhanced infiltration along the drainages. By analogy with
Fisher (2000), the road cutting across the bordering drainages is likely to compact underlying
soils and act as a dam to shallow subsurface waters originating from the bordering drainages,
additionally increasing recharge.
12. Add a stipulation to include a sampling schedule required for the deep water supply wells
completed in theN aquifer at the Mill site under the Safe Drinking Water Act (SDWA) and
for results to be provided in annual 4th quarter groundwater reports.
EFRI Response:
This comment appears to be motivated by a concern that Mill activities could impact water
quality in the deep Navajo aquifer. However, such sampling is considered unnecessary because
of the negligible likelihood that Mill activities could impact the deep aquifer. Reasons include:
The Navajo aquifer is located approximately 1,200 feet beneath the Mill and more than
1,000 feet beneath the base of the monitored perched water zone;
The Navajo aquifer is separated from the base of the perched zone by more than 1,000 feet
of materials having low average vertical permeability, including hundreds of feet of
bentonitic shale which functions as an aquiclude;
The Navajo aquifer is protected by bore seals in the deep wells;
The Navajo aquifer is additionally protected by artesian pressure, which causes water in the
deep wells to rise nearly 800 feet above the top of the aquifer; and
With respect to perched groundwater flow, all three wells (WW-2, WW-4 and WW-5) are
located either upgradient to far upgradient (north-northeast) or far cross-gradient (southeast)
of the tailings management system and Mill processing areas. Their locations make it even
more unlikely that they could ever be affected by perched water potentially impacted by Mill
activities.
13. The Tribe requests that uranium isotopes be required during scheduled monitoring events for
MW-26 and that the activity ratio (AR ratio) be calculated and reported with regular
monitoring reports. The GWCLfor uranium in MW-26 is proposed to increase dramatically.
We understand that this is a pumping/remediation well and that DWMRC has inserted a
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Letter to Scott Anderson
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caveat that any interpretation of data from this well needs to be understood in that light, i.e.
that DWMRC expects concentrations to vary and that increasing contaminants will likely not
be viewed as facility impacts. The AR ratio has been well-established as a reliable method
for determining if uranium present in groundwater has an anthropogenic or natural
signature, and DWMRC has agreed with past recommendations (USGS report review
findings) that including it as a monitoring constituent for monitoring wells at the facility
would be a good idea.
EFRI Response:
A uranium isotopic analysis is not necessary or appropriate for the Mill site because such an
analysis is not required under any applicable EPA guidance, and, as discussed above, there are
no standardized analytical techniques approved by EPA or other comparable certification
bodies, and therefore it is impossible to set compliance limits. Further, due to the large
variation and uncertainty in interpreting uranium AR values, they are not appropriate for the
Mill site, as discussed below.
Dissolved uranium concentrations alone are not enough to determine whether the source of
uranium is from natural weathering or from the uranium milling process, particularly near ore
deposits, where background levels of uranium are expected to be relatively high. As a result,
researchers have only been able to include the AR of uranium-234 to uranium-238 as an
additional line of evidence for possible milling impacts, but not as being determinative.
Uranium deposits that are greater than one million years old and closed to weathering are
expected to have reached secular equilibrium with respect to uranium-234 and uranium-238, a
state represented by uranium AR values of one. When these ores are mined and milled,
uranium mineral dissolution is expected to be rapid and complete, and dissolved uranium in
milling and tailings water is expected to inherit the original uranium AR of the ore. When
uranium mineral dissolution is relatively slow and incomplete, uranium isotopes will have an
opportunity to fractionate, and uranium-234 is expected to be more mobile than uranium-238.
In this case, the uranium AR of groundwater may be 1.5 to 10 times higher than that of the
source rock.
Zielinski et al. (1997) conducted one of the most highly cited studies utilizing uranium AR
measurements. They found that in water samples with a known milling impact and dissolved
uranium concentrations> 100 f!g/L, uranium AR values ranged from 0.98 to 1.05. In samples
that represented background, on the other hand, uranium concentrations were at or below 30
f!g/L, and uranium AR values ranged from 1.32 to 1.41. The authors concluded that
groundwater with uranium AR values below 1.3 are indicative of uranium milling impact,
whereas uranium AR values above 1.3 represent natural sources of uranium. Similar results
have been found at other uranium mining and/or milling and uranium-rich background sites
(e.g., Van Metre et al. (1997); Naftz et al. (2011); Morrison et al. (2012); Kamp and Morrison
(2014)).
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It is noteworthy that these studies used multiple lines of evidence, not just uranium AR values,
to support their determination of impacted and unimpacted water. Some of these studies
combined uranium AR measurements with the sulfur and oxygen isotopic compositions of
sulfate, trace metal concentrations, water age dating, or other chemical indicators to determine
mining and/or milling impacts. These studies generally present results that follow the
consistent observation that uranium AR values are near 1 for mill-impacted water and above
1.3 for unimpacted water, but there are exceptions. For example, Van Metre et al. (1997)
measured uranium AR values for 55 impacted samples, 19 of which had uranium AR values
greater than 1.3 (range of 1.31 to 2.25). In addition, at least one previous study is inconsistent
with expected uranium AR trends. Basu et al. (2015) carried out uranium AR measurements
on groundwater at an in-situ recovery ("ISR") mine in Rosita, TX. Like the milling process,
uranium mineral dissolution during ISR is expected to be rapid and complete. The authors
found that the average and standard deviation for uranium AR values were 0.76 ± 0.03
(excluding one value that was 2.23) for ore zone groundwater, and 1.0 ± 0.33 for sites
upgradient of the ore zone. Assuming these upgradient sites represent background values, the
results lie exactly in the range expected for impacted water. The relatively low uranium AR
values at this site in general make more sense considering that the ore itself had an average
uranium AR value of0.76 ± 0.06.
These studies highlight that the AR value of dissolved uranium will reflect both the AR value
of the original ore, as well as the rates and processes that occurred during uranium mineral
dissolution. While it is reasonable to assume that uranium mineral dissolution is rapid and
complete during the milling process and during ISR mining, the reverse of slow and
incomplete dissolution will not always be true during natural weathering of uranium minerals.
During natural weathering, rapid and complete dissolution of uranium minerals could occur
under a variety of conditions, such as in highly oxidizing environments or in cases where
mineral surface areas are high. In either situation, the natural background uranium AR values
could resemble those expected for mined and milled uranium. As a result, the most compelling
studies that include uranium AR measurements are those that measure this parameter for both
dissolved uranium and the original uranium ore, and combine these measurements with the
presence or absence of additional indicators of mining and/or milling impact. Any routine
measurements of uranium AR values in monitoring wells at the Mill site would therefore need
to include tailings samples. The resulting uranium AR values, however, would likely show
substantial variation because the tailings are made up of different uranium ore sources. Such
variation would make it challenging to interpret the source of uranium in local groundwater.
Due to the large variation and uncertainty in interpreting uranium AR values, and the absence of
EPA or other State of Federal guidance on their interpretation and use in a groundwater
compliance context, they are not appropriate for the Mill site. Further, background AR values
have not been calculated and could not be calculated at this time for MW -26, which would make
interpretation of the results even more uncertain.
14. As suggested in DWMRC review memo (DWMRC, June 27, 2000) and recommended in the
Geo-Logic Report as a standard industry practice, EFR should be required to calculate an
annual water balance for water received, consumed and lost at the Mill, and report the
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October 23, 2017
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balance with annual DMT reports to assist with evaluation and peiformance of the discharge
minimization technology required under the GWDP. Currently, there is no accounting of
water use and loss at the Mill.
EFRI Response:
Presumably, the water balance would be performed to determine whether a potential release
occurred, including a potential release (leak) from the tailings management system. A water
balance would necessarily include estimates of evaporative losses from and contributions via
precipitation to the tailings management system, other lined surface water features, and open
tanks that are part of the processing facilities. The unavoidable error associated with such
calculations would necessarily render them useless in determining whether small releases
occurred, or if any leaks in the tailings management system occurred. Any small release would
not be able to be picked up by the water balance. In any event, any releases, whether small or
large, would be obvious, and would not require the use of a water balance to identify them. Any
release to the land surface would be exposed to view and obvious. Any release from the tailings
management system would be detected by the cell's leak detection system and would be
reflected by increases in water levels accompanied by increases in chloride concentrations in
perched groundwater monitoring wells surrounding the cells. The entire purpose of installing
relatively closely spaced wells between and surrounding the individual tailings cells was to
provide an early warning system for potential leakage.
15. The thorium isotopes, Th-230 and Th-232 should be assayed individually in the conventional
compound effluent in the Annual Tailings Cells Wastewater Sampling Report. Using gross
alpha as a surrogate does not allow quantification of these isotopes individually (or any
other additional alpha emitter present in the tailing cell effluent "soup")
EFRI Response:
The primary purpose for tailings cell wastewater sampling is to monitor the source for
constituents that could potentially leak out of the tailings management system impoundments and
contaminate groundwater. The constituents sampled in the tailings cell wastewater sampling
therefore mirror the constituents required to be sampled at the Mill's groundwater monitoring
wells under the GWDP.
Under the GWDP, the DWMRC evaluates the monitoring results for each groundwater
monitoring well that is sampled for compliance with standards for 38 different constituents and
for trends in the data that may show a need for further action. In addition to other lines of
evidence, DWMRC staff looks for increasing trends for four indicator parameters (chloride,
uranium, fluoride, and sulfate). As noted above, these indicators will appear in sample results at
elevated and increasing levels if any potential cell leakage has occurred. As discussed above,
these constituents serve well as indicators because:
• The process water (tailings solution) contains significant concentrations of them;
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• They are more mobile (non-reactive) indicators in groundwater and will show up at monitoring
wells sooner than other available indicators; and
• They should demonstrate increasing concentrations and an upward trend in groundwater
concentration.
Thorium-230 and thorium-232 are not groundwater monitoring constituents under the GWDP.
thorium-230 and thorium-232 are minimally soluble at a pH greater than 4 and would not serve
well as indicator parameters of potential tailings cell leakage in groundwater. Since the thorium
isotopes are minimally soluble, there is no comparison point for the data from the waste water to
groundwater data, and the addition of the thorium isotopes to the tailings waste water analytical
suite would not provide useful or usable data for the determination of tailings management
system performance. Since thorium-230 and thorium-232 are currently not groundwater
monitoring constituents in the GWDP and there is no good reason to add them as monitoring
constituents to the GWDP, there is no need to add them as sampling constituents to the Mill's
tailings management system sampling program.
It should be noted that EFRI voluntarily sampled and analyzed the tailings waste water for
several additional constituents (including the thorium isotopes) from 2015 through 2017 to
address the following submissions made by the Tribe to the EPA in connection with the
proposed revisions to 40 CPR Part 61-Subpart W, National Emission Standards for Radon
Emissions From Operating Uranium Mill Tailings:
• Calculation Brief, Radon Emissions from Evaporative Ponds White Mesa Uranium Mill
dated July 07, 2014, prepared by Mike King, and submitted to EPA on July 9, 2014; and
• Supplement to Calculation Brief (July 7, 2014), dated February 10, 2015, prepared by
the Tribe.
The data resulting from the voluntary analyses are discussed in the EFRI letter to Mr. Jon
Edwards of the EPA, dated August 18, 2016. The purpose of the voluntary sampling and
analysis was to address the incorrect assumption that gross alpha data could be used as a proxy
for radium-226 data as asserted by the two Tribe submissions noted above. The thorium isotopes
were included to demonstrate that the gross alpha results in the waste water samples did not
represent radium-226, but other alpha emitting isotopes. The data from the voluntary analyses
did in fact demonstrate that the primary alpha emitting isotopes were the thorium isotopes.
Further analysis of the thorium isotopes would not provide useful information regarding tailings
management system performance nor would thorium isotope data provide information relevant
to mill impacts and therefore should not be included. It is important to note that both thorium-
230 and thorium-232 do not pose a significant health hazard in the tailings waste water because
they are bound in solution and cannot be released, and they don't generate radon.
Grand Canyon Trust Comments on the Proposed Renewal and Amendment of Energy Fuels
Resources (USA), Inc.'s Radioactive Materials License and Groundwater Discharge Permit
for the White Mesa Mill
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October 23,2017
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B. The definitions and standards used to establish reclamation milestones should be revised to
be consistent with federal and state law.
Reclamation Plan Revision 5.1 uses several definitions and standards that are at odds with the
impoundment-closure standards in federal and state law. The problem lies with how the plan
redefines two regulatory terms of art-" operation" and "final closure" -that control when
Appendix A's impoundment cleanup requirements and deadlines are triggered. These
inconsistencies should be eliminated to ensure that the company closes impoundments promptly
and in compliance with the law.
1. Background
When a tailings impoundment "ceases operation," Appendix A requires uranium mill operators
to expeditiously build a "final radon barrier" over the impoundment "in accordance with a
written, Commission-approved reclamation plan. "73 Reclamation plans must have clear,
enforceable deadlines, or as Appendix A puts it, "a schedule for reclamation milestones that are
key to the completion of the final radon barrier .... "74 Milestones aren't flexible target
timefram.es or performance goals; they're "an action or event that is required to occur by an
enforceable date. "75
The event that triggers the expeditious-closure requirement for any given impoundment is taking
that impoundment out of "operation. "76 Appendix A defines 'operation" to mean that an
impoundment is "being used [or the continued placement of byproduct material or is in standby
status for such placement. "7 Impoundments are in "operation," the definition goes on, "from
the day that byproduct material is first placed in the pile or impoundrnent until the day final
closure begins.' 78 So, there are two conditions that are essential for an impoundment to cease
"operation." "Byproduct material" must have been placed into the impoundment to initiate an
impoundment's "operation," and "final closure" must have begun to end the impoundment's
"operation. "
2. Problems with the Reclamation Plan's Definitions
There are two main flaws with the definitions Energy Fuels has put in Reclamation Plan
Revision 5.1. First, the Plan defines the term "operation" so that its impoundment-closure
requirements apply only to those impoundments used for disposing of "tailings sands, " even
though Appendix A's impoundment-closure requirements apply to impoundments used to dispose
of any wastes produced by processing uranium. Second, the Plan defines the term ''final
closure" in a way that purports to allow final closure to begin under circumstances when it
would not begin under federal and state law.
EFRI Response:
See revised Section 6 of the Reclamation Plan, which addresses these concerns, as discussed
below.
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October 23,2017
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a. "Operation"
"Operation," according to Plan Revision 5.1, means a tailings impoundment that "is being used
for the continued placement of tailings sands or is on standby status for such placement. "79
Under Appendix A, in contrast, impoundments are in "operation" when they're first used to
dispose of "byproduct material," not just "tailings sands. "80 The term "byproduct material"
means the "tailings or wastes produced by the extraction or concentration of uranium or
thorium from any ore primarily processed for its source material content, including discrete
surface wastes resulting from uranium solution extraction processes. "81
By its plain terms, Appendix A's definition of "byproduct material" includes everything that
Energy Fuels puts in the cells at the mill: the mostly liquid raffinate wastes, semi-solid counter-
current decantation slurry, "tailings sands," and all the other uranium-milling wastes the
company discards in the cells. Indeed, the radioactive materials license and groundwater
discharge permit prohibit the company from disposing of anything other than "byproduct
material" in the cells. 82 In a pending Clean Air Act lawsuit, Energy Fuels has concurred that
"byproduct material" under the Atomic Energy Act and UMTRCA includes all these wastes.
"[B]yproduct material," the company argued, "is the broader category of waste produced at a
mill and regulated under UMTRCA, while tailings '-by which Energy Fuels meant the same
thing as "tailings sands"-" represent a form. or subset of byproduct material. "83 Consequently,
all the cells at the mill have been used for the placement of "byproduct material," and thus, all
the cells have been put into "operation" under Appendix A. Any cell taken out of "operation" is
therefore subject to the expeditious-closure and deadline requirements in Appendix A.
By defining "operation" to refer only to impoundments that have received "tailings sands," Plan
Revision 5.1 unlawfully purports to limit Appendix A's impoundment-closure requirements only
to impoundments that have received "tailings sands." The Plan doesn't say what "tailings
sands" are or which cells have received them, but Energy Fuels has argued in pending litigation
that the slurry pumped over the years to Cells 2, 3, and 4A is the only source of "tailings sands"
at the mill.84 Thus, under the company's view of the facts, "tailings sands" have not been
discarded in Cells 1 and 4B (even though part of the slurry from the counter-current-decantation
circuit has been siphoned into Cell 4B). And that being so, under the company's tailings-sands-
based definition of "operation," Cells 1 and 4B would not be subject to Appendix A's
expeditious-closure requirements when they are no longer in use.
That outcome would be contrary to Appendix A, whose expeditious-closure requirements apply
to all cells at the mill. The Division accordingly should require Energy Fuels to revise Plan
Revision 5.1 to use a definition of "operation" that is identical to the definition in Appendix A
and to clarify how it applies to the mill's cells. In particular, the Division should require Energy
Fuels to revise Section 6 of Plan Revision 5.1 as follows:
• The definition of "operation" that appears in Section 6.2.1 should be changed to match
the definition in Appendix A: "Operation means that a uranium or thorium mill tailings
pile or impoundment is being used for the continued placement of byproduct material or
is in standby status for such placement. A pile or impoundment is in operation from the
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Letter to Scott Anderson
October 23, 2017
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day that byproduct material is first placed in the pile or impoundment until the day final
closure begins. "85
EFRI Response:
The definition of "operation" in revised Section 6.2.1 has been changed to match the definition
in 40 CFR Part 61 Subpart W, which is essentially the same as the definition of "operation" in
Appendix A.
It should be noted that slurry has not been transferred to Cell 4B, only solution.
• The definition of "byproduct material" used in the Nuclear Regulatory Commission's
regulations (that has been incorporated by reference under State law) should be added to
the Plan. The pertinent part of that definition is: "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 suiface wastes
resulting from uranium solution extraction processes. "86
EFRI Response:
There is no need to add a definition of byproduct material to the Reclamation Plan. The
definition of byproduct material is fundamental to the Atomic Energy Act (AEA") and its
regulations, and there is no uncertainty as to what that term means.
• The Plan should clarify that Appendix A's impoundment-closure requirements apply to
all cells at the mill, including Cells 1 and 4B, and will apply to any cells built in the
future into which "byproduct material" is placed. Thus, for example, the plan's
description of the existing "tailings management system at the Mill" should be revised to
confirm that there are currently five waste impoundments at the mill: Celli, Cell 2, Cell
3, Cell 4A, and Cell 4B. 87
EFRI Response:
Criterion 6A applies only to tailings impoundments, which are permanent disposal facilities for
byproduct material, and for which a final radon barrier will be constructed. Evaporation ponds
are not permanent disposal facilities and will be removed and the liners etc. disposed of in a
tailings impoundment for permanent disposal as 11e.(2) byproduct material. Evaporation ponds
at the Mill do not have radon barriers. If an evaporation pond contains tailings that will require
permanent disposal and a radon barrier, then they are not evaporation ponds; they are tailings
impoundments and would be subject to the requirements set out in Criterion 6A. As stated
below, in the Nuclear Regulatory Commission's ("NRC's") preamble (see Appendix 1) to its
rulemaking under which Criterion 6A was added to 10 CFR Part 40 Appendix A, Federal
Register Volume 59, Number 104, Wednesday June 1, 1994, (the "NRC Preamble"), page
28224, NRC states:
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Note, as discussed in EPA's statements of consideration for its amendment of 40
CFR part 192 (at FR 32183, June 8, 1993 and reiterated at 58 FR 60354;
November 15, 1993), the reclamation of evaporation ponds may be dealt with
separately from meeting the expeditious radon cover requirements if deemed
appropriate by the Commission or the regulating Agreement State. This may be
the case whether or not the evaporation pond area is being used for continued
disposal of byproduct material.
None of the Mill's evaporation ponds will have a final radon barrier, so milestones are not
required to be set under Criterion 6A for the decommissioning of the evaporation ponds at the
site.
It should be noted, however, that 40 CFR 61.251(o) of EPA's revised Subpart W regulations
defines "Reclamation Plan" to mean a plan detailing activities and milestones to accomplish
reclamation of tailings impoundments as well as the "removal and disposal of non-conventional
impoundments," which includes evaporation ponds. It should also be noted that Subpart W
provides that an approved "reclamation plan prepared and approved in accordance with 10 CFR
part 40, Appendix A is considered a reclamation plan" for purposes of Subpart W.
EFRI is of the view that since an approved reclamation plan that meets the requirements of
Appendix A satisfies the definition of "Reclamation Plan" in Subpart W, and Appendix A does
not require any milestones under Criterion 6A that do not relate to the placement of a final radon
barrier on a tailings impoundment, any closure requirements in the Reclamation Plan relating to
removal and disposal of non-conventional impoundments need not be milestones.
Nevertheless, although not required, we have added milestones for the removal and disposal of
non-conventional impoundments to revised Section 6 of the Reclamation Plan. Although these
milestones are not milestones required under Criterion 6A( 1 ), EFRI has committed in revised
Section 6 that for purposes of the Reclamation Plan they will be treated as milestones as required
by Criterion 6A(l), and as a result EFRI has committed that they will be subject to the provisions
of Criterion 6A(2) (see Appendix 2)
These milestones require the removal and disposal of non-conventional impoundments within a
total of seven years after the impoundment begins final closure. This is within the timeframe
contemplated by Subpart W. In the preamble to the Subpart W rulemaking (FR Vol. 82, No. 10
January 17, 2017) (the "Subpart W Preamble") (see Appendix 3), EPA states on pages 5170 and
5171 that: "The EPA and the NRC agreed that such activities can, for the most part, be
conducted and a final cover [on a conventional impoundment] installed within seven years of the
end of operations. Similar timeframes should be possible for non-conventional impoundments,
which are likely to be removed altogether." Because it is impossible to determine the amount of
liquids to be removed from the impoundments at this time and, depending on the availability of
other impoundments at the time, it may be necessary to rely solely on evaporation to remove the
liquids from non-conventional impoundments. At a net evaporation rate of 30 inches per year
(which would actually be less than 30 inches per year due to the added infiltration into the pond
from drainage from other parts of the Mill site into the impoundments during storm events etc.)
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this could take more than five years in some circumstances, although this should be able to be
managed by appropriate scheduling of evaporation in impoundments and commencement of final
closure of impoundments. For these reasons, EFRI believes this timeframe should be
manageable. In any event, so long as there are liquids in the evaporation ponds, the protections
in Subpart W will continue to be met.
• The Plan should include milestones for closing all the mill's impoundments, including
Cells 1 and 4B, as well as any other so-called "evaporation ponds" built in the future.
Thus, for example, the Plan should have deadlines for closing Celli when it is taken out
of operation and deadlines for closing Cell 4B if it is taken out of operation before
Energy Fuels starts pumping "tailings sands" from the counter-current-decantation
circuit into that cell. At a minimum, for closing "evaporation ponds," the Plan should
have deadlines for removing freestanding liquids; excavating solids, contaminated soil,
and the liner and burying those materials in an operating tailings cell; and building a
final radon barrier over any section of those impoundments that will be covered in place.
88
EFRI Response:
See above and revised Section 6 of the Reclamation Plan. Revised Section 6 of the Reclamation
Plan sets out milestones to accomplish removal and disposal of evaporation ponds and any other
non-conventional impoundments at the Mill site.
b. "Final Closure"
The second flaw in Plan Revision 5.1 's impoundment-closure definitions is that the company has
given the term "final closure" a meaning that is inconsistent with federal and state law. Neither
Appendix A nor any other regulations adopted by the Nuclear Regulatory Commission define the
phrase "final closure." EPA has, however, defined that phrase in a separate set of Clean Air Act
rules, commonly called Subpart W,89 that apply to tailings impoundments. And the State has
incorporated Subpart W into state law by reference. 90
For the reasons set out below, EPA's definition should control when "final closure" begins
under Appendix A. Energy Fuels, however, has given the term "final closure" a different
definition in Plan Revision 5.1. Final closure begins, according to the Plan, when an
impoundment:
(A) is no longer being used for the continued placement of tailings sands and [Energy Fuels]
has advised the Director in writing that the impoundment is no longer being used for the
continued placement of tailings sands and is not on standby status for such placement; or
(B) is no longer being used for the continued placement of tailings sands, interim cover has
been placed over the entire surface area of the impoundment, and dewatering activities
have begun; or
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(C) the Mill facility as a whole has commenced final closure and a written notice to that
effect has been provided to the Director in accordance with this Plan.91
There are three main problems with this definition: ( 1) it doesn't match the definition in
Subpart W, which could muddle when "final closure" begins for differing regulatory
purposes; (2) like the Plan's definition of "operation," it also improperly purports to apply
the concept of "final closure" only to those impoundments that contain "tailings sands" and
not all impoundments containing uranium byproduct material; and ( 3) it creates an internal
inconsistency in the Plan by allowing, under Option B, for ''final closure" to begin when
interim cover has been placed over an entire cell and dewatering has begun even though the
Plan has milestones for placing interim cover and dewatering after final closure begins.
For the reasons set out below, the Division should require Energy Fuels to update Plan
Revision 5.1 so that the definition of ''final closure" matches the definition in Subpart W 92
EFRI Response:
See revised Section 6 of the Reclamation Plan, which includes the pertinent parts of the
definition of "final closure" from the new 40 CFR Part 61 Subpart W regulations. The definition
of "final closure" in revised Section 6 excludes the paragraph relating to heap leach piles because
that paragraph is inapplicable to the Mill (the Mill is not licensed to have any heap leach piles).
i. EPA's Regulation of Tailings Impoundments
When Congress passed UMTRCA in 1978, it directed EPA to establish general standards to
protect public health and the environment from hazards posed by processing and disposing of
Uranium-milling tailings.93 It also required the Nuclear Regulatory Commission's rules to
conform to EPA's general standards.94 For operating uranium mills, those standards are set out
in 40 C.F.R. Part 192, Subpart D. EPA's initial version of those standards were issued in 1983
and included design, operating, and closure standards for the pits at uranium mills in which
tailings are buried.95 For example, these standards required impoundments to be closed so that
radon releases would not exceed 20 pCil(m2-sec) for 1,000 years.96 The Commission revised its
own regulations (in Appendix A) in 1985 to conform to EPA's rules.97
By the late 1980s, EPA realized its rules had a flaw: They failed to set deadlines for closing
tailings impoundments. 98 Though the rules had pe1jormance standards that closed
impoundments must meet; there was no mandate for when mill operators, like Energy Fuels, had
to meet those standards. EPA set out to fix this problem in a rulemaking under the Clean Air Act.
That story starts in late 1979, when EPA designated radionuclides as a "hazardous air
pollutant" under the Clean Air Act after finding that exposure to radionuclides increases the risk
of getting cancer and suffering genetic damage.99 At the time, the Clean Air Act required EPA to
set emission standards for hazardous air pollutants that would protect the public health from
those pollutants with an "ample margin of safety. "100 In 1986, EPA concluded that radon
emitted from tailings impoundments poses a significant enough health risk (particularly of lung
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cancer) to warrant establishing emission standards for those releases under the Clean Air Act. 101
Those standards-modified at 40 C.P.R. Part 61, Subpart W-required mill operators to phase
out big, radon-emitting tailings impoundments and transition to using just two smaller
impoundments that were to be cleaned up one-by-one as they filled up, ceased "operation," and
"final closure" began. 102 This was the first use of the term "final closure" in regulating
uranium-mill impoundments.
In 1989, EPA added a new rule to those standards-40 C.P.R. Subpart T -to set impoundment -
closure deadlines and thereby fix the closure-limbo problem created by the agency's 1983
UMTRCA rulemaking.103 EPA recognized that "[t]he existing UMTRCA regulations set no time
lim.its for the disposal of [tailings] piles" and "[s]ome piles have remained uncovered for
decades emitting radon. "104 Setting closure deadlines in Subpart T, EPA asserted, would assure
that impoundm,ents "will be disposed of in a timely manner after they are removed from
service, " thereby reducing radon emissions and protecting public health. 105 To meet that goal,
Subpart T gave mill operators two years to close impoundments after they ceased to be
"operational. "106
Protracted litigation over Subpart T ensued. Ultimately, a complex negotiation among EPA, the
Nuclear Regulatory Commission, and affected states yielded an agreement to rescind Subpart T,
but only after EPA amended its general standards under UMTRCA to require impoundments to
be closed expeditiously according to deadlines, and only on the condition that the Commission
amend Appendix A to conform to that change. 107 To define when those requirements would be
triggered, EPA's revised general standards, adopted in 1993, borrowed a functionally equivalent
version of the agency's own prior definition of "operation" from Subpart W, under which
operation continues until "final closure" begins. 108 The Nuclear Regulatory Commission, as it is
required to do, then conformed Appendix A to EPA's general standards, adopting EPA's
definition of "operation" and its use of the term "final closure. "109 The upshot under these rules
was that impoundments are subject to Subpart W' s two-impoundment limit while they are in
"operation," and they become subject to Appendix A when "final closure" begins and
"ope ration " ends.
This history reveals three critical points about the term 'final closure. " First, EPA first coined
that term for use in Subpart W in 1986. Second, Appendix A's mandate to close impoundments
expeditiously and according to a deadline-driven reclamation plan after "operation" ceases and
'final closure" begins was added at EPA's direction. Third, EPA used functionally identical
definitions of "operation" in Subpart Wand its general standards in Part 192 to establish a
clear point at which impoundments were no longer subject to Subpart W' s two-impoundment
limit and had to be closed according to Appendix A.
In short, EPA is the architect of the impoundment-closure requirements and the author of the key
regulatory language-including the terms "operation" and 'final closure" -that trigger those
requirements. EPA's definition of 'final closure" should therefore control the meaning of that
term under Appendix A.
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EFRI Response:
Criterion 6A addresses the placement of a final radon barrier on each permanent tailings disposal
impoundment that has ceased operation. It does not require milestones for any other purpose.
It is important to note that 40 CFR Part 61 Subpart W provides protection against radon flux
while an impoundment is in operation. When the impoundment ceases operation and final
closure begins, Subpart W no longer applies, but Appendix A takes over. Because Criterion 6(1)
of Appendix A requires that the final radon barrier for a tailings impoundment must satisfy
EPA's 20 pCi/m2/s standard, adequate protections against radon flux are en ured once the final
radon barrier is constructed. As identified in the comment above, the problem that 40 CFR Part
61 Subpart T (now rescinded) was intended to address was the gap between when an
impoundment ceases operations, at which time Subpart W ceases to apply, and the time that the
final radon barrier is completed under Appendix A. The requirement in Criterion 6A( 1) for
milestones therefore applies only to ensure the timely placement of the final radon barrier and for
no other purpose, so as to make sure that this gap is as short as practicable considering
technological feasibility. Neither Subpart W, nor Appendix A, sets any timeframe or limit as to
when an impoundment (whether conventional or non-conventional) must cease operation and
begin final closure. This is because the protections in Subpart W continue so long as an
impoundment is in operation, so there is no need to limit the period of operations. The
milestones and targets only apply after an impoundment ceases operations and Subpart W no
longer applies.
u. Reclamation Plan Revision 5.1 should be revised to conform to EPA's definition
of "final closure" set out in Subpart W
Earlier this year, EPA amended Subpart W Among other reVlswns, the agency added a
definition of "final closure" to that rule.110 That definition says that "final closure" means "the
period during which an impoundment ... is being managed in accordance with the milestones
d . . d l . l "Ill I b . h an requzrements zn an approve rec amatwn p an. t egzns w en:
the owner or operator provides written notice to the {EPA] and to the Nuclear
Regulatory Commission or applicable NRC Agreement State that:
( 1) A conventional impoundment is no longer receiving uranium byproduct material
or tailings, is no longer on standby for such receipt and is being managed under
an approved reclamation plan for that impoundment or facility closure plan; or
(2) A non-conventional impoundment is no longer required for evaporation or
holding purposes, is no longer on standby for such purposes and is being
managed under an approved reclamation plan for that impoundment or facility
I I 112 c osure p an; ....
The Division should require Energy Fuels to revise Plan Revision 5.1 so that the Plan's
definition of "final closure" matches the definition in Subpart W This is important for four
reasons. First, EPA's definition makes clear that "final closure" begins only when the deadlines
(a.k.a. "milestone ") in the reclamation plan have been triggered.n3 That means, if deadlines
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don't start running, final closure can't begin, a critical condition to avoid delay. Second, EPA's
definition leaves no doubt about when "nonconventional impoundments"-also called
evaporation ponds-enter final closure and must be managed "in accordance with the
milestones and requirements in an approved reclamation plan. "114 That fixes the problem that
Energy Fuels' definition creates by referring only to impoundments used to discard "tailings
sands, " which are "conventional impoundments" according to Subpart W' s definition of "final
closure. " Third, using the same definitions in Subpart W and the reclamation plan will ensure
that the exact same event-proper notice to the Division and EPA-triggers "final closure,"
eliminating any possibility that Energy Fuels could claim that an impoundment is not in
"operation" under Subpart W but also not in "final closure" under Appendix A. Fourth,
adopting EPA's definition of final closure eliminates the internal inconsistency created by
Energy Fuels' definition of that term when compared with the plan's milestones.
EFRI Response:
See above and revised Section 6 of the Reclamation Plan, which includes pertinent parts of the
definition of "final closure" from the new 40 CPR Part 61 Subpart W regulations. Milestones
are included for conventional impoundments that are not in operation and have commenced final
closure, as required under Criterion 6A, and milestones have also been added for non-
conventional impoundments that are not in operation and have commenced final closure.
C. The reclamation deadlines in Revision 5.1 are inadequate.
1. Deadlines must be imposed for all key tasks for completing the final radon barrier.
Energy Fuels' reclamation plan lacks several deadlines the plan is required to have. Appendix A
Mandates that reclamation plans have "milestones that are key to the completion of the final
radon barrier .... "115 At a minimum; milestones must be established for retrieving windblown
tailings, stabiLizing the impoundment (including removing freestanding Liquids, recontouring,
and dewatering), and finishing the final radon barrier.116 Again, milestones aren't flexible goals.
They're "an. action or event that is required to occur by an enforceable date. "117
EFRI Response:
Please see revised Section 6 of the Reclamation Plan, attached hereto as Schedule A, which sets
out milestones for retrieving windblown tailings, stabilizing the impoundment (including
removing freestanding liquids, recontouring, and dewatering) and finishing the final radon
barrier for impoundments that are not in operation and for which final closure has commenced.
Each of those milestones is an action or event that is required to occur by an enforceable date.
Revised Section 6 also sets out additional schedule commitments that are not milestones, because
they do not relate to the completion of the final radon barrier on any impoundments. As those
schedule commitments are not milestones they do not come under the specific provisions of
paragraph (2) of Criterion 6A. However, a general timeliness standard for completing those
activities is retained. The licensee must complete those activities in a timely way, and the
Director has the authority to take action if necessary in this regard.
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In developing these milestones and schedule commitments, the following factors were taken into
consideration:
a) Three Milestones Required.
10 CFR Part 40 Appendix A, Criterion 6A(l) requires that deadlines must be established for
only the following three items:
• Completion of the final radon barrier;
• Windblown tailings retrieval and placement on the pile; and
• Interim stabilization (including dewatering or the removal of freestanding liquids and
re-contouring).
In the NRC Preamble, page 28226, NRC states that: "The final rule has been changed to
specifically require the establishment of deadlines for only three milestones: windblown
tailings retrieval and placement on the pile, interim stabilization (including dewatering or the
removal of freestanding liquids and re-contouring) and final radon barrier construction. The
Commission, however, retains the authority to require the establishment of additional
milestones determined to be "key" to the completion of the final radon barrier in an
individual case (note the words "but not limited to" in the definition of reclamation plan)."
b) Additional Schedule Commitments may be Set, but they are not Subject to
Paragraph 2 of Criterion 6A
In describing Criterion 6A in the NRC Preamble, page 28225, NRC states that: "no
deadlines are required to be established in the licenses beyond completing the final radon
barrier as a result of this rulemaking and that any other schedules established in a license do
not come under the specific provisions of paragraph (2) of Criterion 6A".
In revised Section 6 of the Reclamation Plan we have set out a comprehensive schedule for
reclamation of impoundments, which goes beyond completing the final radon barrier for
conventional impoundments. In revised Section 6 of the Plan and in these comments, we
refer to deadlines that are not milestones (because they go beyond or are not related to
completing the final radon barrier) as "schedule commitments." As those schedule
commitments are not milestones they do not come under the specific provisions of paragraph
(2) of Criterion 6A. However, a general timeliness standard for completing those activities is
retained. The licensee must complete those activities in a timely way, and the Director has
the authority to take action if necessary in this regard.
c) Radon Barrier is Not the Entire Tailings Cover.
The radon barrier is not the entire tailings impoundment cover, but only the radon barrier
layer of the cover. The erosion protection barriers or other features necessary for long-term
control of the tailings are placed on top of the final radon barrier and are not part of the final
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radon barrier. In the Subpart W Preamble, on page 36285, EPA notes that: "Milestones
which are not reasonably determined to advance timely compliance with the radon air
emissions standard, e.g., installation of erosion protection and groundwater corrective
actions, are not relevant to the tailings closure plans (radon)." In the NRC Preamble, page
28222, NRC states that: "A definition of final radon barrier was also included in the
Commission's proposed rule. . . . This definition excludes the erosion protection features
which were not a subject to EPA's amendment to 40 CFR part 192."
d) The Required Milestones do not include the Erosion Protection Barrier or other
Features Necessary for Long-Term Control of the Tailings.
The milestones required under Criterion 6A( 1) do not include erosion protection barriers or
other features necessary for long-term control of the tailings. In the NRC Preamble, page
28226, NRC states that: "The final rule has been modified so that the terminology 'as
expeditiously as practicable considering technological feasibility' is used only for
emplacement of the final radon barrier. A general timeliness standard for completing erosion
protection features is retained. Thus, it is clear that the licensee must complete these actions
in a timely way and that the NRC has the authority to take action if necessary in this regard.
However, the restrictive cost considerations specified for the completion of the final radon
barrier do not apply to decisions concerning the timeliness of completion of erosion
protection features. Instead, the more flexible, general cost considerations of the AEA
(Section 84a(l)) apply."(NRC 2015b)
In the case of Reclamation Plan 5.1, the final radon barrier is Layer 2 (3.0-4.0 ft. (91 to 122
em) thick Primary Radon Attenuation Layer (highly compacted loam to sandy clay)), and the
erosion protection barriers or other features necessary for long-term control of the tailings are
Layer 3 (3.5 ft. (107 em) thick Water Storage/Biointrusion/Frost Protection/Secondary Radon
Attenuation Layer (loam to sandy clay)) and Layer 4 (0.5 ft. (15 em) thick Erosion Protection
Layer (topsoil-gravel admixture or topsoil)). For Reclamation Plan 3.2, the final radon
barrier is Layer 2 (1 ft. (30.5cm) Radon Barrier (compacted clay)), and the erosion protection
barriers or other features necessary for long-term control of the tailings are Layer 3 (2ft. (61
em) Frost Barrier Layer (random fill)) and Layer 4 (3 in. (7.6 em) Rock Armor).
Accordingly, the milestones required under Criterion 6A(l) are for the completion of Layers
1 and 2 under each Reclamation Plan option (the Proposed Cover Design and the Existing
Cover Design, respectively, using the terminology in revised Section 6 of the Reclamation
Plan). Schedule commitments, not milestones, are set for the remaining Layers under each
cover design option. As those schedule commitments are not milestones they do not come
under the specific provisions of paragraph (2) of Criterion 6A. However, a general
timeliness standard for completing those activities is retained. The licensee must complete
those activities in a timely way, and the Director has the authority to take action if necessary
in this regard.
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e) Milestones not Required for Evaporation Ponds
The milestones required under Criterion 6A(l) do not generally extend to evaporation ponds,
because they generally do not have a final radon barrier. In the NRC Preamble, page 28224,
NRC states:
Note, as discussed in EPA's statements of consideration for its amendment of
40 CFR part 192 (at FR 32183, June 8, 1993 and reiterated at 58 FR 60354;
November 15, 1993), the reclamation of evaporation ponds may be dealt with
separately from meeting the expeditious radon cover requirements if deemed
appropriate by the Commission or the regulating Agreement State. This may
be the case whether or not the evaporation pond area is being used for
continued disposal of byproduct material.
In our view, milestones need not be set for reclamation of evaporation ponds unless such
reclamation is a required step that needs to be done after a conventional impoundment
(which would require a radon barrier) begins final closure and prior to placement of the final
radon barrier. In most cases, reclamation of evaporation ponds could be accomplished
independently of conventional impoundments, so milestones for evaporation ponds would
not be required.
Further, in EPA's preamble to its amendment of 40 CFR Part 192 (FR, Vol 58, No. 108, June
8, 1993) (the "Subpart D Preamble") (see Appendix 4), EPA states on pages 32183-32184
that:
EPA does not intend that the expeditious radon cover requirement extend to
areas where evaporation ponds are located, even if on the pile itself, to the
extent that such evaporation pond is deemed by the implementing agency
(NRC or an affected Agreement State) to be an appropriate aspect to the
overall remedial program for the particular site. Rather, the evaporation pond
area may be covered to control radon after it is no longer in use and ready for
covering. EPA believes the overall public health interest in comprehensively
resolving the problems associated with each site is best served by requiring
that the radon cover be expeditiously installed in a manner that does not
require interruption of this aspect of remediation. Moreover, the ponds
themselves serve as an effective radon barrier. Thus, this decision is bolstered
by the absence of any evidence that there is a significant public health risk
presented by the radon emissions from these evaporation ponds during the
period they are employed as part of the overall remediation of the site. EPA
believes that provided all other parts of the pile are covered with the radon
barrier, compliance with the 20 pCi/m2-s standard will result, and this will be
maintained by covering the evaporation pond area when it is no longer in use.
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It should be noted, however, that 40 CFR 61.251 ( o) of EPA's revised Subpart W regulations
defines "Reclamation Plan" to mean a plan detailing activities and milestones to accomplish
reclamation of tailings impoundments as well as the "removal and disposal of non-
conventional impoundments," which includes evaporation ponds. It should also be noted that
Subpart W provides that an approved reclamation plan prepared and approved in accordance
with 10 CFR Part 40, Appendix A is considered a reclamation plan for purposes of Subpart
W. EFRI is of the view that since an approved reclamation plan that meets the requirements
of Appendix A, satisfies the definition of "Reclamation Plan" in Subpart W, and Appendix A
does not require any milestones under Criterion 6A that do not relate to the placement of a
final radon barrier on a tailings impoundment, any closure requirements in the Reclamation
Plan relating to removal and disposal of non-conventional impoundments need not be
milestones.
Nevertheless, although not required, we have added milestones for the removal and disposal
of non-conventional impoundments to revised Section 6 of the Reclamation Plan. Although
these milestones are not milestones required under Criterion 6A(1), EFRI has committed in
revised Section 6 that for purposes of the Reclamation Plan they will be treated as milestones
as required by Criterion 6A( 1 ), and as a result EFRI has committed that they will be subject
to the provisions of Criterion 6A(2).
f) The Guiding Objective is to Complete the Final Radon Barrier Within Seven Years
of a Tailings Impoundment Ceasing Operations
The Memorandum of Understanding (the "MOU") (see Appendix 5) Between EPA, NRC and
The State of Colorado, Texas, and Washington Concerning Clean Air Act Standards for
Radon Releases from Uranium Mill Tailings, Subparts T and W, 40 CFR Part 61, dated
October 1991, which was entered into in connection with the rescission of 40 CFR Part 61
Subpart T, states that:
EPA, NRC and affected Agreement States are entering into this MOU to
ensure that owners and operators of existing uranium mill tailings disposal
sites licensed by the NRC, or the affected Agreement States, who have ceased
operation, effect emplacement of a final earthen cover to limit radon
emissions to a flux of no more than 20 pCi/m2/s, as expeditiously as
practicable considering technological feasibility. A guiding objective is that
this occur to all current disposal sites (see attachment A) by the end of 1997,
and within seven years of when the existing operating and standby sites cease
operation. The final closure requirement shall be enforceable by NRC or the
affected Agreement States." (Emphasis added).
The MOU also states that: NRC or the affected Agreement States will ensure
that the schedules and conditions for effecting final closure are flexible
enough to contemplate technological feasibility and that cover emplacement
of the tailings impoundments occurs as expeditiously as practicable
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considering both short-term reductions in radon releases and long-term
stability of the uranium tailings.
On November 15, 1993, EPA amended 40 CFR part 192 subpart D to provide for site closure
to occur as expeditiously as practicable considering technological feasibility (including
factors beyond the control of the licensee). In the Subpart D Preamble, EPA noted on page
36285 that:
The goal of the amendments to subpart D is for existing sites, or those that
become non-operational in the future, to achieve compliance as expeditiously
as practicable considering technological feasibility (including factors beyond
the control of licensees) within the time periods set forth in the MOU,
including Attachment A thereto, and for new sites to achieve compliance no
later than seven years after becoming non-operational.
In the Subpart D Preamble, page 36288, EPA notes that:
EPA has modified its UMTRCA regulations (40 CFR part 192 subpart D) to
require compliance with the 20 pCi/m2 -s flux standard as expeditiously as
practicable considering technological feasibility (and factors beyond the control
of the licensee), and to require appropriate monitoring to verify the efficacy of
the design of the permanent radon barrier. By definition, no more rapid
compliance can occur, as a practical matter, because this schedule represents the
earliest that the sites could be closed when all factors are considered. EPA
expects that these compliance schedules were developed and will be modified
consistent with the targets set forth in the MOU as reasonably applied to the
specific circumstances of each site. When EPA promulgated subpart T it
recognized that many sources might not be able to comply with the two year
compliance date then required pursuant to section 112. Based on this, subpart T
includes a provision that in such a case EPA would 'establish a compliance
agreement which will assure that disposal will be completed as quickly as
possible.' 40 CFR 61.222(b). The time period required for closure under
subpart D embodies the same approach. In practice, therefore, both subpart T
and subpart D establish the same basic timeframes for achievement of the flux
standard. Assuming NRC and the Agreement States faithfully implement
subpart D and the license amendments required under subpart D, EPA would
not expect there to be any significant difference between these two programs in
the amount of time required for sites to comply with the radon flux standard.
Further, on page 36286, EPA states that: "although NRC's conforming regulations are not
identical to subpart D, the differences are minor in nature, and properly reflect application of
the subpart D requirements to NRC's separate regulatory program."
The milestones set out in revised Section 6 of the Reclamation Plan are consistent with the
targets set forth in the MOU as reasonably applied to the specific circumstances of the Mill
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site. The milestones require that the final radon barrier be placed as expeditiously as
practicable considering technological feasibility (including factors beyond the control of
licensees), as reasonably applied to the specific circumstances of the Mill site, and require
that the final radon cover be completed within the seven-year guiding objective set forth in
theMOU.
g) Schedules and Conditions for Effecting Final Closure must be Flexible.
The MOU states that:
NRC or the affected Agreement States will ensure that the schedules and
conditions for effecting final closure are flexible enough to contemplate
technological feasibility and that cover emplacement of the tailings
impoundments occurs as expeditiously as practicable considering both short-
term reductions in radon releases and long-term stability of the uranium
tailings.
In revised Section 6 of the Reclamation Plan, we have set the milestones and schedule
commitments for impoundments to be as firm as possible, while maintaining enough
flexibility to contemplate technological feasibility, with an outside date of seven years from
commencement of final closure for placement of the final radon barrier, in the case of
conventional impoundments, as well as for removal and disposal, in the case of non-
conventional impoundments. In the case of conventional impoundments, we have retained
some flexibility to place Layer 2 (the final radon barrier) before or after completion of
dewatering because the weight of Layer 2 may help to speed up the dewatering in some
circumstances, which would help to expedite closure. In any event, Layer 2 (the final radon
barrier) would be required to be placed within seven years from commencement of final
closure of the impoundment. We have also added flexibility to add Layer 3 before or after
completion of dewatering for the same reasons. We have added flexibility to complete
dewatering up to two years after the final radon barrier is placed on the impoundment to
allow some time for any resulting settlement, and we have added flexibility to place Layer 4
on the impoundment up to two years after placement of Layer 3, also to allow some time for
any resulting settlement. None of this flexibility changes the seven-year milestone for
completion of placement of the final radon barrier. We believe this flexibility is necessary to
allow for proper dewatering and settlement.
We have added some flexibility to the milestones for removal and disposal of each non-
conventional impoundment. We have set five years as the milestone to remove all
freestanding liquids from the impoundment. Net evaporation at the site is about 30 inches
per year, not counting additional inflows from area drainage into the cells that would occur
during storm events. The depth of solutions in evaporation ponds could exceed fifteen feet,
which would require more than five years to evaporate the solutions if no other evaporative
capacity is available at the site. We believe we should be able to manage this five-year
milestone by using any additional evaporative capacity that may be available at the site, or by
timing commencement of final closure of the impoundment such that evaporation within a
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five-year period after final closure begins is reasonable to expect. It should be noted that the
primary protection of Subpart W (requiring that all sediments in the pond be covered by
solution) will apply prior to the impoundment commencing final closure, and for a good
portion of the time it takes to evaporate the fluids (because solutions will continue to cover
sediments during the evaporation process). We expect that the liners, sediments and any
contaminated soils can be removed within three years thereafter, but in any event within a
total elapsed time of seven years from the date final closure begins, and the milestone has
been set accordingly.
These schedules are tight and fall within the seven-year goal. We do not believe it is
reasonable to attempt to apply any further restrictions on the timing of any of the various
steps. Although in some cases it may be possible to complete a step in less than the allocated
time period, if commenced during the beginning of a construction season, it may take the full
time period if commenced at a different time of the year. We have taken these seasonal
matters into account in setting all of the milestones and schedule commitments.
h) Neither Subpart W, nor Appendix A, sets any timeframe or limit as to when an
impoundment (whether conventional or non-conventional) must cease operation
and begin final closure.
As discussed above, 40 CPR Part 61 Subpart W provides protection against radon flux while
an impoundment is in operation. When the impoundment ceases operation and final closure
begins, Subpart W no longer applies, but Appendix A takes over. Because Criterion 6(1) of
Appendix A requires that the final radon barrier for a tailings impoundment must satisfy
EPA's 20 pCi/m2/s standard, adequate protections against radon flux are ensured once the
final radon barrier is constructed. The problem that 40 CPR Part 61 Subpart T was intended
to address was the gap between the time an impoundment ceases operations, and Subpart W
ceases to apply, and the time that the final radon barrier is completed under Appendix A.
The requirement in Criterion 6A(l) for milestones therefore applies only to ensure the timely
placement of the final radon barrier and for no other purpose, so as to make sure this gap is as
short as practicable considering technological feasibility. Neither Subpart W, nor Appendix
A, sets any timeframe or limit as to when an impoundment (whether conventional or non-
conventional) must cease operation and begin final closure. This is because the protections
in Subpart W continue so long as an impoundment is in operation, so there is no need to limit
the period of operations. The milestones and targets only apply after an impoundment
ceases operations and Subpart W no longer applies.
Subpart T applied to mill tailings "piles" that were no longer operational. The definition of
"operational" in Subpart T stated that "A pile cannot be considered operational if it is filled
to capacity or the mill it accepts tailings from has been dismantled or otherwise
decommissioned". Subpart Twas challenged by a number of parties, including the American
Mining Congress and NRC on the basis that Subpart T was unnecessarily burdensome and
duplicative with NRC regulations, and because it was physically impossible to come into
compliance with Subpart Tin the time required. Subpart Twas rescinded by EPA in 1994
and the definition of "operational" was replaced with a definition of "operation," and the
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concept that an impoundment cannot be considered operational or in operation if it is filled to
capacity or the mill it accepts tailings from has been dismantled or otherwise
decommissioned was eliminated. As a result, after the rescission of Subpart T, there was no
requirement for an impoundment to be deemed to be in final closure just because the mill site
may be in closure or decommissioned.
This has been confirmed by the NRC in the NRC Preamble, page 28228, where NRC stated
that:
If Subpart T is rescinded, there will be no regulatory requirement for the tailings
impoundment to change from operational to non-operational status within any
specified time after the mill ceases operation. The definition of "operational" in
subpart T would have restricted the continued use of the impoundment for extended
periods after the associated mill was decommissioned.
Reclamation Plan Revision 5.1 has a handful of deadlines that run from the date "final closure"
begins or f rom a prior reclamation step. For example, the plan. commits Energy Fuel to
recontour impoundments within 180 days after freest,anding liquids are renwved.118 The interim
cover must be finished anywhere from 19-33 months after recontouring is complete.u9 Other
fi ll . "[ 120 steps o ow smu ar patterns.
EFRI Response:
We believe the milestones currently in Section 6 of the Reclamation Plan set out enforceable
deadlines. However, in order to address this concern, we have revised the milestones in Section
6 to be tied to years from the date of commencement of final closure, as suggested by the
commenter.
The plan sets no deadlines, however, for some key reclamation steps. Cell dewatering, for
example, i subject to no time limit. Instead the plan has a per:fonnance standard to determine
when enough dewatering has occurred to allow for placement of the final-cover layers. 121 There
is also no deadline for removing freestanding liquids. 122 In read, the plan explains that, when
final closure begins, Energy Fuels will "minimize" the addition of liquids to the impoundment,
except for precipitation, and let liquids evaporate (unless they can be pumped elsewhere without
· rfi · · h ·zz · J 123 mte enng wtt , mt operatwns .
EFRI Response:
See revised Section 6 of the Reclamation Plan, which addresses this concern. Specifically,
revised Section 6 states that the Mill will cease to add liquids to an impoundment once final
closure begins.
This doesn't comply with Appendix A. The "milestones" in reclamation plans must be actions or
events that are "required to occur by an enforceable date. "124 The dewatering peiformance
standard that Energy Fuels proposes thus doesn't qualify as a "milestone, " nor does a
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commitment to "minimize" the addition of liquids to impoundments. Enforceable deadlines must
be established for both tasks.
EFRI Response:
See revised Section 6 of the Reclamation Plan, which addresses this concern.
Energy Fuels asserts that the time needed to dewater and stabilize impoundments "depends on
physical and technological factors beyond [its] control," and that it is thus "not possible to
establish absolute deadlines or mile tones" when the reclamation plan is approved.125 This
argument lacks merit for three reasons.
EFRI Response:
See revised Section 6 of the Reclamation Plan, which addresses this concern. Although the
milestones as currently drafted are enforceable, the milestones have been adjusted in revised
Section 6 to be tied to specific periods of time from the date final closure begins.
First, there are no exemptions from Appendix A's deadline-setting requirements, for factors that
are beyond Energy Fuels' control or otherwise. Factors beyond the licensee's control are a
failsafe for Appendix A's expeditious-closure standard, but they are not an excuse for leaving
deadlines out of reclamation plans. Again, Appendix A requires impoundments to be closed "as
expeditiously as practicable considering technological feasibility. "126 That is basically a
performance standard-one that specifies how fast impoundments must be closed ("as quickly as
possible") and what considerations may temper that pace (physical characteristics of the site,
technological limitations, compliance with other regulat01y programs, and factors beyond the
licensee's control).127 So, when Energy Fuels points to 'physical and technological factors
beyond [its] control" as a reason not to set deadlines, it's borrowing language from Appendix
A's definition of the phrase "as expeditiously as practicable considering technological
feasibility. "
But that language has nothing to do with Appendix A's deadline-setting re~uirements.
Milestones must be established wholly apart from the expeditious-closure standard. 12 And there
are no exemptions whatsoever from Appendix A's milestone requirements. Put differently,
factors beyond a licensee's control may be an acceptable justification for missing a deadline, but
they are not a justification for not setting one.
Second, there is a failsafe in Appendix A if deadlines cannot be met. Deadlines may be extended,
but only after allowing public participation, only after finding that radon-222 releases from the
impoundment are less than 20 pCi/(m2-sec) on average, only if radon-222 emissions are
monitored annually during the period of delay, and if an extension for g}acing the final radon
barrier is sought based on cost, only after even more criteria are met. 29 By failing to include
absolute deadlines in its plan, Energy Fuels is impermissibly attempting to bypass these
requirements.
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Third, it is possible to estimate how long it will take to stabilize an impoundment and set
deadlines based on that estimate. For cell dewatering, in fact, Energy Fuels has already made
those estimates for all the mill's impoundments. To develop Reclamation Plan Revision 5.1,
Energy Fuels modelled the cell de watering times for Cells 2 and 3 to be 10 yearsP0 And the
company has modelled the dewatering time for the cell design used for Cells 4A and 4B to be 5.5
years.131 The company's reclamation plan also has comparable estimates of the time needed to
dewater those cells, plus an estimate of two years to de water Cell1.132 Comparable modelling
can no doubt be completed for the time needed for evaporating the estimated volume of
freestanding liquids at the time final closure begins.
The Division accordingly should insist that enforceable deadlines be established in Plan
Revision 5.1 for all reclamation steps that are key to completing the final radon barrier,
including removal of freestanding liquids and dewatering. It is essential that the schedule of
milestones be structured so that the first deadline starts running the moment that "final closure"
begins, and the time limit for each subsequent reclamation step is automatically triggered when
the prior step is completed or the deadline for the prior step passes, whichever occurs first. And
the Division should require Energy Fuels to eliminate all qualifications and caveats from the
schedule, such as allowing for "such longer time as may be required [to recontour an
impoundment] if instability of the tailings sands restricts or hampers uch activities. "133 That is
the only way to make sure that deadlines have teeth and can only be extended for a good reason
after going through the process Appendix A demands.
EFRI Response:
See revised Section 6 of the Reclamation Plan, which addresses these concerns.
A proper schedule would conceptually work as set out in the following table (though we don't
pass judgement on whether the time limit listed below for each step is appropriate):
Reclamation Task Milestone
Removing Freestanding Freestanding liquids will be removed from the impoundment
Liquids 180 days afterfinal closure begins.
Recontouring Recontouring of the impoundment will be complete 90 days
after freestanding liquids are removed or 270 days after final
closure begins, whichever occurs first.
Interim Cover Layers Interim cover will _ be extended over the entire impoundment
within 270 days after recontouring is complete or 540 days
after final closure bef?ins, whichever occurs first.
Dewatering Dewatering of the impoundment will be complete within 5
years and 180 days after interim cover is placed or 7 years
afterfinal closure be!?ins, whichever occurs first.
Final Cover Layers Final cover layers will be placed within 365 days after
dewatering is complete or 8 years after final closure begins,
whichever occurs first.
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Reseeding Vegetative Cover Seeding for revegetation will be complete within 270 days after
the final cover layers are placed or 8 years and 270 days after
final closure begins, whichever occurs first.
Composing the schedule this way is clear and establishes true "milestones" that are required to
occur by an enforceable date. If Energy Fuels ends up needing more time for any task, it may
request an extension as provided by Criterion 6A in Appendix A: after public participation, only
if radon-222 emissions are monitored annually during the period of delay and stay below 20
pCil(m2-sec) on average, and if an extension for placing the final radon barrier is sought based
on cost, only if the Division finds that Energy Fuels is "making good faith efforts to emplace the
final radon barrier, the delay is consistent with the definition of available technology, and the
radon releases caused by the delay will not result in a significant incremental risk to the public
health. "134
EFRI Response:
See revised Section 6 of the Reclamation Plan, which addresses these concerns.
In addition to requiring Energy Fuels to modify the schedule of milestones in Revision 5.1
according to the structure illustrated above, the Division should require Energy Fuels to:
• Establish an absolute deadline for removing freestanding liquids, such as 180 days after
final closure begins. Also, to meet Appendix A's requirement that impoundments be
closed as quickly as possible considering technological feasibility, require Energy Fuels
to stop adding liquids to the impoundment once final closure begins (rather than to
"minimize" addition of liquids) and to pump freestanding liquids into other operating
cells, regardless of whether doing so will force the company to curtail mill operations.
EFRI Response:
See revised Section 6 of the Reclamation Plan, which addresses these concerns.
• Eliminate the proviso in the recontouring milestone that allows for more than 180 days to
finish recontouring "as may be required if instability of the tailings sands restricts or
hampers such activities. "135 If Energy Fuels needs that deadline to be extended, it may
apply for an extension as provided by Appendix A.
EFRI Response:
See revised Section 6 of the Reclamation Plan, which addresses this concern. The proviso
referred to has been eliminated.
• Establish an absolute deadline for completing dewatering that is based on current
modelling of how long it will take to meet the settlement performance standard in the
plan (e.g., for Cells 4A and 4B, 5.5 years after dewatering is commenced). If the
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Letter to Scott Anderson
October 23,2017
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settlement performance standard is met before the deadline, then the deadline for the
next reclamation task (placement of final cover layers) should be triggered. If the
deadline cannot be met despite proceeding "as expeditiously as practicable considering
technological feasibility," as that phrase is defined by Appendix A, then Energy Fuels
may apply for an extension according to the process laid out in Criterion 6A. The same
modification should be made to the Stipulation and Consent Agreement for completing
the final cover on Cell 2.
EFRI Response:
See revised Section 6 of the Reclamation Plan, which addresses this concern. The total time
allocated to complete the final radon barrier is estimated to be seven years, which meets the
goals set by EPA as stated in the MOU. Note, however, that it is not possible or necessary to add
the level of structure suggested above. The key requirement is that the milestones set out an
enforceable schedule that meets the stated goals. As stated in the MOU, it is important to ensure
that "the schedules and conditions for effecting final closure are flexible enough to contemplate
technological feasibility." For the reasons stated above, the milestones in revised Section 6 of
the Reclamation Plan are as tight as we believe would be reasonably achievable. We can't
control physical features and seasonal constraints with any more precision than as drafted in
revised Section 6.
• Delete the second paragraph in Section 6.1 of the plan, which inaccurately asserts that
"it i · not possible to establish absolute deadlines or milestone for reclamation at the
time of approval of this Plan. "1 6 Delete comparable statements elsewhere in the Plan
that deadlines cannot be establi hed.137
EFRI Response:
See revised Section 6 of the Reclamation Plan, which addresses this concern. Those deletions
have been made.
• Set a deadline for establishing vegetative cover and diversity that meets the design
criteria for the ET cover. This modification should also be made to the Stipulation and
Consent Agreement for completing the final cover on Cell 2.
EFRI Response:
As stated above, the milestones required under Criterion 6A do not include erosion protection
barriers or other features necessary for long-term control of the tailings. In the NRC Preamble,
page 28227, NRC states that:
The final rule has been modified so that the terminology "as expeditiously as
practicable considering technological feasibility" is used only for emplacement of
the final radon barrier. A general timeliness standard for completing erosion
protection features is retained. Thus, it is clear that the licensee must complete
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Letter to Scott Anderson
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these actions in a timely way and that the NRC has the authority to take action if
necessary in this regard. However, the restrictive cost considerations specified for
the completion of the final radon barrier do not apply to decisions concerning the
timeliness of completion of erosion protection features. Instead, the more
flexible, general cost considerations of the AEA (Section 84a(l)) apply. (NRC
2015b)
Accordingly, revised Section 6 of the Reclamation Plan does not set milestones relating to
vegetative cover. Instead it sets schedule commitments for completion of those activities. As
those schedule commitments are not milestones required by Criterion 6A( 1 ), the provisions of
Criterion 6A(2) do not apply to those schedule commitments. Rather, EFRI is required to
complete those activities in a timely way, and the Director has the authority to take action if
necessary in this regard.
2. The schedule that applies if the mill is closed violates Appendix A.
If Energy Fuels decides to shut down the mill, Plan Revision 5.1 modifies the impoundment
cleanup deadlines that would apply to impoundments that are closed while the mill is running. 138
Rather than establish deadlines that run from the day final closure of each remaining
impoundment begins (as required by Appendix A), Revision 5.1 says that Energy Fuels will
submit a separate decommissioning schedule to the Division when the mill closes.139 Only after
the Division approves that schedule would any closure deadlines be triggered. 140
EFRI Response:
See revised Section 6 of the Reclamation Plan, which addresses this concern. Deadlines are
established that run from the day final closure of each impoundment begins. The requirement for
the Division to approve a schedule has been removed.
Under this plan, Energy Fuels would start demolishing the mill and retrieving windblown
tailings 180 days after the schedule is agproved and "sufficient" solutions evaporate from the
cell that the dismantled mill will go in/ 1 Unreclaimed impoundments would be closed one-b~­
one, starting "as soon as reasonably practicable" after the Division approves the schedule. 42
So, if Energy Fuels closed the mill with five operating impoundments, until closure of the first
impoundment was complete, the company wouldn't be required to start the first steps in its
reclamation plan for the second impoundment-such as finishing placement of interim cover,
recontouring, and dewatering (which could take years). And only after closing the second
impoundment, would closure of the third impoundment have to begin, and so on. This could take
decades.
EFRI Response:
See revised Section 6 of the Reclamation Plan, which addresses this concern.
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October 23,2017
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As stated above, nothing in Appendix A or Subpart W sets a time limit for when an
impoundment (whether conventional or non-conventional) must cease operation and go into final
closure, because Subpart W continues to apply so long as the impoundment is in operation. The
milestones required under Criterion 6A only apply after the impoundment begins final closure,
which is when Subpart W no longer applies to the impoundment. They do not dictate when final
closure begins.
Revised Section 6 of the Reclamation Plan sets out milestones relating to closure of each
conventional impoundment and each non-conventional impoundment. Those milestones
commence when the impoundment begins final closure, regardless of whether that is prior to,
during or after final closure of the mill facility itself. It is expected that one or more
impoundments will continue in operation during the final mill closure process in order to receive
decommissioning byproduct material.
Impermissible delay taints this plan. The day ''final closure" of an impoundment at the mill
begins, the clock must start ticking on closure milestones-meaning enforceable deadlines-for
that impoundment.143 When the mill closure begins, it's necessarily true that "final closure" of
all operating impoundments will begin. Initiating closure of the mill, that is, necessarily means
that the whole facility is being managed in accordance with the mill's reclamation plan,
including all impoundments that were still in operation. And that means all operating
impoundments will enter "final closure": namely, "the period during which [the] impoundment
. . . is being managed in accordance with the milestones and requirements in an approved
reclamation plan. "144 Thus, initiating mill closure must simultaneously trigger "final closure" of
all operating impoundments. And under Criterion 6A of Appendix A, that must trigger closure
milestones.
EFRI Response:
See revised Section 6 of the Reclamation Plan, which addresses this concern.
It is incorrect to state that "when Mill closure begins, it's necessarily true that 'final closure' of
all operating impoundments will begin." As stated above, Criterion 6A(l) applies to each non-
operating impoundment. Neither Criterion 6A nor Subpart W dictates when an impoundment
must begin final closure. Again, that is because the protections of Subpart W continue while an
impoundment is in operation, so the rules are not concerned about when operations cease. They
are only concerned about setting milestones that commence when each impoundment begins
final closure, because the protections of Subpart W no longer apply to each such impoundment.
In revised Section 6, appropriate milestones are set for completing the final radon barriers for all
tailings impoundments, which are tied to when each such impoundment ceases operation. It
should be noted that, as the Grand Canyon Trust has pointed out above, a tailings impoundment
is in operation so long as it is receiving byproduct material for disposal. As all of the site
decommissioning materials, windblown materials, evaporation pond liners etc., must be disposed
of into the Mill's remaining tailings impoundments, and such materials are lle.(2) byproduct
material, one or both of the remaining tailings impoundments continue in operation until all such
41
Letter to Scott Anderson
October 23,2017
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materials are disposed of in the tailings impoundments. The milestone for placing the final radon
barrier on each remaining tailings impoundment must therefore be tied to the day that each such
impoundment ceases operations. In accordance with Subpart W, a maximum of only two
conventional impoundments will remain in operation at any one time. The milestones and
targets in revised Section 6 of the Reclamation Plan set milestones and targets that address these
matters.
It is not uncommon for a licensed uranium mill to maintain an impoundment in operation
indefinitely after the rest of the Mill is decommissioned, to perform licensed operations, such as
to receive 11e.(2) byproduct material from In Situ Recovery operations for direct disposal. In
those cases, Subpart W continues to apply (which limits the number of impoundments that are in
operation at any one time to two or fewer), so long as the impoundment continues in operation.
There is no reason to assume that all impoundments cease operation upon commencement of
Mill closure, and as discussed above, they are considered to remain in operation as long as they
receive Mill decommissioning byproduct material.
Further, as discussed above, in the NRC Preamble, page 28228, NRC states that:
If subpart T is rescinded, there will be no regulatory requirement for the tailings
impoundment to change from operational to non-operational status within any
specified time after the mill ceases operation. The definition of "operational" in
subpart T would have restricted the continued use of the impoundment for
extended periods after the associated mill was decommissioned.
The upshot is twofold: ( 1) deadlines must be established for closing the last impoundment that
account for decommissioning the mill and other structures and burying them in that
impoundment before the final radon barrier is placed; (2) closure of all unreclaimed
impoundments must proceed simultaneously, not one-by-one.
EFRI Response:
See previous comment. Revised Section 6 sets out all milestones required under Criterion 6A( 1)
and satisfies all requirements contemplated by Subpart W with respect to conventional and non-
conventional impoundments that have ceased operation. As Subpart W applies while an
impoundment is in operation, there is no requirement to dictate when an impoundment must
cease operation and commence final closure.
The reasoning behind the first point is simple. Energy Fuels plans to bury the mill and other
leftover waste in the last open impoundment. Until that happens, it's impossible to place the final
radon barrier on the last unreclaimed cell. And Appendix A requires a deadline to be set for
completing the final radon barrier for that cell, like all others at the mill. Thus, to comply with
Appendix A, a deadline must be established now for building the final radon barrier on the last
unreclaimed cell that is based on a predicted decommissioning schedule for the rest of the mill.
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Letter to Scott Anderson
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The second point likewise follows from the standards in Appendix A. Closing impoundments one
by one is impermissible under Appendix A because Criterion 6A insists that impoundments be
closed "as expeditiously as practicable considering technological feasibility" after they stop
operating.145 That phrase means "as quickly as possible" considering £_hysical site
characteristics, technology, regulatory requirements, and uncontrollable factors. 46 Waiting to
start reclaiming an impoundment until closure of another impoundment is complete, by
definition, cannot amount to closing the idle impoundment "as quickly as possible." Energy
Fuels hasn't identified any physical characteristics of the mill site, technological limitations, or
regulatory requirements that would justify closing impoundments sequentially. And the Division
should prohibit the company from doing so.
EFRI Response:
See the previous response. Nothing in Criterion 6A(1) or Subpart W dictates when an
impoundment must cease operations and go into final closure. Subpart W applies to each
impoundment when it is in operation, and the milestones required under Criterion 6A( 1)
commence when final closure of the impoundment begins and Subpart W no longer applies. The
purpose of this regulatory program is to ensure that there is no unregulated gap in radon
protection, not to shut down uranium mills or their impoundments.
The Division accordingly should require Energy Fuels to revise the reclamation plan so that:
• Initiating mill closure also initiates final closure of all operating impoundments
(including conventional and non-conventional impoundments alike, and triggers
milestones for closing those impoundments;
EFRI Response:
See the responses above. Milestones must be set for all non-operating tailings impoundments. A
tailings impoundment is in operation so long as it is receiving byproduct material, which for
some or all of the impoundments will continue throughout the Mill decommissioning process.
Appropriate milestones have been set in revised Section 6 of the Reclamation Plan, which
commence when each impoundment ceases operation, as required by Criterion 6A(1).
In the preamble to the Subpart W rulemaking (FR Vol. 82, No. 10 January 17, 2017) (the
"Subpart W Preamble"), EPA states at page 5168 that:
In 10 CFR Part 40, Appendix A, NRC identifies a reclamation plan as applicable
to individual impoundments, while the closure plan is a more comprehensive
document that addresses all aspects of facility closure and decommissioning,
including any necessary site remediation. A reclamation plan prepared and
approved in accordance with NRC requirements in 10 CFR Part 40, Appendix A,
is considered a reclamation plan for purposes of Subpart W. The reclamation plan
may be incorporated into the larger facility closure plan
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(Emphasis added).
On page 5171 of the Subpart W Preamble EPA states that:
Both 40 CFR 192.32(a)(3) and 10 CFR Part 40 Appendix A, Criterion 6(a)
provide for the use of impoundments while they are undergoing closure.
However, impoundments that are used to manage uranium byproduct material or
tailings generated during closure or remediation activities, while remaining open
to manage operational wastes, would continue to fall under Subpart W until they
formally enter the closure process and implement the approved reclamation plan
for that impoundment.
(Emphasis added).
Further, at page 5168 of the Subpart W Preamble, EPA stated: "[a]n impoundment remains
"operating" until it enters closure, even if it is not receiving newly-generated uranium byproduct
material or tailings from facility processing (79 FR 25404)."
Finally, at page 5166 of the Subpart W Preamble, EPA states that " ... [n]on-conventional
impoundments remain subject to the requirements of Subpart W until they enter final closure
pursuant to an approved reclamation plan for that impoundment, even if at some point in their
operational life they are used for the purpose of managing liquids from closure or remediation
activities." (Emphasis added).
It is clear from the foregoing that initiating Mill final closure does not initiate final closure of
individual impoundments. There is nothing in the regulatory regime that requires this, nor
should there be, since Subpart W continues until final closure of the impoundment begins, so
there is no gap.
• The plan includes a schedule for decommissioning activities that Energy Fuels must
accomplish before completing the final radon barrier, such as dismantling the mill,
digging up any non-conventional impoundments that won't be closed in place, and
burying those materials in the last impoundment.
EFRI Response:
These matters are addressed in revised Section 6 to the Reclamation Plan.
Milestones are only applicable to placement of the final radon barrier on tailings impoundments
after they have ceased to be in operation. As stated above, in describing Criterion 6A in the
NRC Preamble, page 28225, NRC states that: "no deadlines are required to be established in the
licenses beyond completing the final radon barrier as a result of this rulemaking and that any
other schedules established in a license do not come under the specific provisions of paragraph
(2) of Criterion 6A". In the NRC Preamble, page 28228, NRC further states that:
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Letter to Scott Anderson
October 23,2017
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If subpart T is rescinded, there will be no regulatory requirement for the tailings
impoundment to change from operational to non-operational status within any
specified time after the mill ceases operation. The definition of "operational" in
subpart T would have restricted the continued use of the impoundment for
extended periods after the associated mill was decommissioned.
Further, as Grand Canyon Trust has pointed out, a tailings impoundment is in operation so long
as it is receiving byproduct material, which will of necessity require that all or some of the
impoundments must continue in operation during the entire Mill decommissioning process. As
Criterion 6A only requires milestones to be applied after an impoundment ceases operation, the
milestones required under Criterion 6A only apply once the impoundment ceases operations;
they are not intended to set dates by which an impoundment must cease operations.
3. Deadlines must be established as a condition of the radioactive materials license.
Criterion 6A in Appendix A is clear that "[ d]eadlines for completion of the final radon barrier"
and, if applicable, other interim milestones "must be established as a condition of the individual
license. "147 The Division's draft radioactive materials license doesn't do that. It's completely
silent on the subject.
The consequences of this lapse are more than ministerial. Under the Utah Radiation Control Act,
civil penalties may be assessed for violating a radioactive materials license. 148 Thus, putting
reclamation deadlines in the license, as the Division is required to do, will give Energy Fuels
more incentive to meet them and the Division more clout if Energy Fuels doesn't.
The Division should correct this omission by stating as a condition of the license all milestones
that are expressed in Plan Revision 5.1 (as revised according to our comments above).
EFRI Response:
The Mill's Reclamation Plan is incorporated by reference into the Mill's license, and is
enforceable as if it were stated in the License. There is no need to include the milestones in the
License per se.
G. The liner design for the Cell 1 disposal area is inadequate.
Under Reclamation Plan Revision 5.1, Energy Fuels is planning to dig up Celli, its liner, and
contaminated soil beneath the cell and place all that material in another cell. 237 After that, the
plan gives Energy Fuels the option to use part of the pit left behind as a cap-in-place disposal
area for other "contaminated materials and debris ji·om the Mill site decommissioning and
windblown cleanup. "238 If this happens, Energy Fuels plans to line this "Cell 1 Disposal Area"
with a 1' clay liner, fill it with contaminated waste, and cap it with the ET cover. 239
That plan flouts the law's design requirements for burying uranium-milling waste. The UMTRCA
standards set by EPA require all swface impoundments to be built according to EPA's design
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standards for hazardous-waste impoundments,240 which appear at 40 C.F.R. § 264.221. Under
those rules, all impoundments built after 1992 must have "two or more liners and a leachate
collection and removal system between [those] liners. "241 Utah's groundwater-protection rules
similarly re1,uire waste-storage pits to be designed according to the "best available
technology." 42 Under these standards, a clay liner doesn't cut it.
It's not clear why Energy Fuels' plan for the Cell 1 Disposal Area disregards these design
requirements. The mill-decommissioning waste slated to go into the Cell 1 Disposal Area is
undoubtedly "uranium byproduct material," as EPA (and the Nuclear Regulatory Commission
and State of Utah) define that term: "the tailings or wastes produced by the extraction or
concentration of uranium from any ore processed primarily for its source material content. "243
After all, if that waste weren't uranium byproduct material, Energy Fuels wouldn't be licensed to
d . d. 244 possess or tscar lt.
Perhaps Energy Fuels believes that EPA's general UMTRCA standards don't apply to the
company's operations at White Mesa when the Nuclear Regulatory Commission's rules don't
conform precisely to EPA's standards, which is the case for the impoundment-liner standard.
The Nuclear Regulatory Commission's liner requirements in Appendix A duplicate EPA's design
standards for hazardous-waste impoundments built before 1992 but don't regurgitate EPA's
standards for impoundments built after 1992.245 Criterion 5A in Appendix A says that
impoundments "must have a liner that is designed, constructed, and installed to prevent any
migration of wastes out of the impoundment to the adjacent subsuiface soil, groundwater, or
suiface water at any time during the active life (including the closure period) of the
impoundment. "246 Even under that standard, a geomembrane rather than a clay liner is almost
l . d 247 a ways requtre .
But even if Appendix A can be read to have a more lenient liner standard than EPA's standard
for hazardous-waste impoundments, EPA's standard still applies. The language in EPA's
general UMTRCA standards applies directly to uranium-milling operations. As those standards
say at the outset:
This subpart applies to the management of uranium byproduct materials under section 84 of the
Atomic Energy Act of 1954 (henceforth designated "the Act"), as amended, during and following
processing of uranium ores, and to restoration of disposal sites following any use of such sites
under section 83( b)( 1 )(B) of the Act. 248
There is no doubt that Energy Fuels is managing uranium byproduct materials at the mill. And
the design standard in EPA's rule is phrased to apply directly to uranium-mill operators. It says
that "suiface impoundments subject to this subpart must be designed, constructed, and installed
in such a manner as to conform to the requirements of§ 264.221 of this chapter .... "249 That
expresses a command that Energy Fuels must comply with, regardless of whether Appendix A
has the same command.
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Even assuming (for the sake of argument only) that EPA's general UMTRCA standards don't
apply to Energy Fuels' when the Nuclear Regulatory Commission's rules don't conform to
EPA's standards the company is still required to comply with EPA's standards for two reasons.
First, Utah state law requires all waste pits that may discharge pollutants to be built using the
best available technology and that technology are to use double-liners with an interstitial leak-
detection system. 250 That is at least one reason why Cells 4A and 4B at the mill were built to that
standard. 251 And there's no reason the "best available technology" for discarding uranium
byproduct material in the Cell I Disposal Area should be any different.
Second, EPA's radon-emission standards in Subpart W require surface impoundments used for
discarding uranium byproduct material to comply with the agency's design standards for
hazardous-waste impoundnzents. 252 That rule prohibits owners and operators of uranium mills
from building a new "conventional impoundment" unless that impoundment is designed and
built to "comply with the requirements of 40 CFR i92.32(a) (1). "253 And, again, 40 C.P.R. §
i92.32(a) (1) explicitly requires impoundments used for discarding uranium byproduct material
to be built according to EPA's standards for hazardous-waste impoundments, which demand
double liners and a leak-detection systent for impoundm.ents built after i992.254 The Cell i
disposal area meets the definition of a "conventional impoundment" under 40 C.P.R. § 61.25i
because it will be a "permanent structure located at any uranium recovery facility which
contains mostly solid uranium byproduct material or tailings front the extraction of uranium
from uranium ore.255" It therefore rnust be designed to comply with EPA s surface impoundment
design standards under UMTRCA that are codified at 40 C.P.R. § 192.32(a)( 1).256
True enough, Subpart W states at the outset that it "does not apply to the disposal of tailings, "257
and perhaps Energy Fuels is silently relying on that statement to sidestep the liner requirements
for the Celli Disposal Area. But the Celli Disposal Area will be placed in "operation" within
the meaning of Subpart W, and that makes the area subject to Subpart W' s impoundment-design
requirements, even if the rest of Subpart W' s requirements cease to apply immediately. The term
"operation" means "that an impoundment is being used for the continued placement of uranium
byproduct material or tailings or is in standby status for such placement. An impoundment is in
operation from the day that uranium byproduct material or tailings are first placed in the
impoundment until the day that final closure begins. "258 So, as soon as uranium byproduct
material is placed in the Cell i Disposal Area, it will go into "operation," even if "final
closure" begins the same day. That is enough to make Subpart W' s design standard for
conventional impoundments applicable.
EFRI Response:
The so-called "Cell 1 Disposal Area" is not something new that EFRI added to the Reclamation
Plan arbitrarily or to "flout" applicable regulations. The Cell 1 Disposal Area is part of the
Mill's existing license. It was reviewed and approved by the NRC and was the subject of a
specific license amendment (Amendment 15) in July 2000, which was supported by a Technical
Evaluation Report the "Technical Evaluation Report") dated July 13, 2000. (.
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NRC's interpretation and implementation of its regulations in Appendix A are determinative.
The Mill is not directly regulated by EPA's standards at 10 CFR Part 192. Those regulations
merely set the standards to be adopted by NRC in its regulatory program, and do not form a
parallel regulatory regime applicable to uranium mill licensees. The AEA grants the EPA
authority only to promulgate "standards of general application... from radiological and
nonradiological hazards associated with the processing and with the possession, transfer, and
disposal of byproduct material, as defined in section lle.(2) of this Act (NRC 2015a), at sites at
which ores are processed primarily for their source material content or which are used for the
disposal of such byproduct material" (AEA §275(b)(l)) (NRC 2015c) (Emphasis added). In
contrast, Section 84(a) (NRC 2015b), grants exclusive management authority to the Atomic
Energy Commission, now the NRC over lle.(2) byproduct material "in such manner as the
Commission deems appropriate" (§84(a)(l)) (NRC 2015b) while conforming "with applicable
general standards promulgated by the Administrator of the Environmental Protection Agency
under section 275" (§84(a)(2)) by establishing its own requirements "which are, to the maximum
extent practicable, at least comparable to requirements ... regulated by the Administrator under
the Solid Waste Disposal Act. .. " (§84(a)(3)) (NRC 2015b).
EPA's standards were thus not intended to apply directly to uranium-milling operators. The
purpose of this is clear from the legislative history -to avoid dual regulation by federal agencies
(or their Agreement States) by allocating specific and distinct, exclusive roles to each, and
providing license applicants with clear guidelines on which to rely. EPA confirmed this
interpretation in the Subpart D Preamble (page 32184) by stating that:
EPA is constrained by Congress in the scope of the UMTRCA amendments which
the Agency may promulgate. EPA does not have the authority to provide for a
legally enforceable means of compelling compliance with the UMTRCA
requirements that are implemented by NRC .... EPA's role in amending
UMTRCA encompasses promulgating generally applicable standards without
specifying any particular method of control. ... UMTRCA gives NRC and the
Agreement States the responsibility to implement and enforce UMTRCA.
Nevertheless, even though the Cell 1 Disposal Area and its current design are an approved part
of the Mill's existing license, EFRI is prepared to agree to revising the wording in the
Reclamation Plan to state that the liner system for the Cell 1 Disposal Area will have the same
basic design as the liner system for Cell 4B, including the same basic leak detection system
design, with the specific details of the design to be submitted to the Director for approval prior to
construction of the Cell 1 Disposal Area.
Comments are submitted by URANIUM WATCH, Living Rivers, and the Utah Chapter of the
Sierra Club. These comments incorporate by reference comments submitted by the Ute
Mountain Ute Tribe and the December 21,2011, comments submitted by Uranium Watch et
al.
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4.10. License Condition 13.1.AA and Reclamation Plan Revision 5.1. License Condition 13.1
lists various Licensee submittals that the Licensee must comply with: "Except as specifically
provided otherwise by this license, the licensee shall conduct operations in accordance with the
statements, representations, and procedures contained in the documents, including any
enclosures, listed below." License Condition 13.1.AA lists: "White Mesa Uranium Mill
Reclamation and Decommissioning Plan Rev 5.1, from Energy Fuels dated August 10, 2016 and
February 23, 2017 to UDWMRC."
COMMENT
4.10.1. The Renewed License should have a specific Section and License Condition for the
Reclamation Plans, not just a reference at the end of a list of other Licensee submittals. If the
Division approves Reclamation Plan Rev. 5.1., there should be a separate License Condition that
reflects that submittal and any other submittals (such as the 2017 "Stipulated Consent
Agreement") that should be referenced in a License Condition set aside for Reclamation Plans
incorporated into the License.
EFRI Response:
As stated above, the Mill's Reclamation Plan is incorporated by reference into the Mill's license,
and is enforceable as if it were stated in the License.
4.10.2. The draft License does not include any reclamation milestones associated with the
reclamation Plan, specifically milestones for the closure of Cell 2. Enforceable reclamation
milestones are required under EPA9 and NRC10 regulations applicable to operational uranium.
mills. Milestones include dates for the placement of the interim cover, dewatering, cleanup of
windblown tailings and other on-site and off-site contamination, and placement of the final
radon barrier. The Licensee is in the process of dewatering Cell 2, placing an interim radon
barrier, and other closure activities. Yet, the draft License and TEEA makes no mention of the
need for the establishment of reclamation milestones.
EFRI Response:
See the discussion above and revised Section 6 of the Reclamation Plan, which sets out all
required milestones. The definition of "Reclamation Plan" in 10 CFR Part 40 Appendix A
contemplates that the schedule of milestones would be placed in the reclamation plan.
4.10.3. Reclamation Plan Rev. 5.1, regarding the establishment of reclamation milestones for the
reclamation of Cell 2-the only Mill tailings impoundment undergoing closure-at Section 6.22
Deadlines and Interim Milestones for Closure of Cell 2 (page 6-3 ), states:
The deadlines and interim milestones for closure of Cell 2 will be set out in the SCA. The
requirements set out in the SCA, when finalized, will be incorporated by reference into this Plan
as if set out in this Plan.
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The signed "Stipulated Consent Agreement" (SCA) was submitted to the DWMRC by Energy
Fuels on February 20, 2017. The SCA includes proposed reclamation milestones for Cell 2
under Phase 1 Cover Construction in the "Agreement," page 3:
Cell 2 Phase 1 cover placement commenced in April 2016, and will be completed on or before
August 31, 2017, or such later date as may be approved by the Director.
Other pertinent reclamation milestone are indicated, but without any certain dates. The
milestone for the completion of the Cell 2 Phase 1 cover should be incorporated into the License
as a license condition. If the August 31, 2017, date is not feasible, then it is the responsibility of
the Licensee to notify the DWMRC and request an extension of the milestone. It is however,
unclear if the SCA is a License Amendment request, or the Licensee must submit a separate
request for the establishment of the milestones for Cell 2 outlined in the SCA.
EFRI Response:
The deadlines, interim milestones and scheduled dates for closure of Cell 2 are set out in the
Stipulation and Consent Agreement (the "SCA"). The requirements set out in the ('SCA"), are
incorporated by reference into the Reclamation Plan as if set out in the Reclamation Plan. The
final radon barrier for Cell 2 (Layers 1 and 2 under the Proposed Cover Design) has already
been put in place. Radon flux measurements taken since the final radon barrier have been placed
onto Cell 2 have been well below the 20 pCilm2/s standard set out in Criterion 6A. The
milestones required by Criterion 6A, which milestones only relate to completion of the final
radon barrier, have therefore been fully satisfied at this time. Nevertheless, detailed additional
schedules and deadlines are set out in the SCA.
4.10.4. The License must submit license amendment requests for the establishment of any
reclamation milestone and any extensions on established reclamation milestones. The Division
cannot establish or amend a reclamation milestone, only approve a proposed milestone. Further,
the Division is required by the EPA to publish a notice and request public comment on any
licensee request for, or amendment to, a reclamation milestone and publish a notice and request
public comment on the Divisions proposed approval of a reclamation milestone or amendment to
established milestone.]] In this instance, the Division did not notice the Licensee's proposed
milestone for completion of Cell 2 Phase 1 cover. The Licensee should have submitted a separate
amendment request for approval of the milestone for completion of Cell 2 Phase I Cover.
Division should have issued a separate notice and opportunity to comment on the establishment
of the milestone, rather than hiding the proposed milestone within Reclamation Plan Rev. 5.1
and the SCA.
EFRI Response:
As stated above, the final radon barrier on Cell 2 has already been put in place, and radon
measurements since placement have been well below the applicable standards.
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4.10.5. The Division should incorporate time frames for other submittals indicated in the SCA
within another Reclamation Plan license conditions, but not as reclamation milestones until a
date certain has been proposed by the Licensee and approved by the Division.
EFRI Response:
As stated above, the final radon barrier on Cell 2 has already been put in place, and radon
measurements since placement have been well below the applicable standards.
UTE MOUNTAIN UTE TRIBE -COMMENTS ON RADIOACTIVE MATERIALS
LICENSE RENEWAL-PART 1-JULY 31, 2017
1-1II-D Regarding Sec. 9. 7 Cultural Resources Protections, the Tribe requests that procedures be
implemented by the State of Utah at the White Mesa Mill for repatriation of human remains and
related artifacts in the same manner as the Native American Graves Repatriation Act
(NAGPRA).
Due to the sensitive and sacred nature of the lands the WMM sits upon, they are already subject
to the Archaeological Protection Act of 1979 (ARPA) and the National Historic Preservation Act
(NHPA). The Tribe believes that the Native American Grave and Repatriation Act (NAGPRA)
should also be complied with in order to return to their ancestors any human remains, funerary
objects and sacred objects found when the ground is disturbed.
EFRI Response:
The Native American Graves Protection and Repatriation Act ("NAGPRA") applies only to
Native American human remains and cultural items which are excavated or discovered on
Federal or tribal lands. See 25 U.S.C. § 3002 (granting "ownership or control over Native
American cultural items which are excavated or discovered on Federal or tribal lands" to lineal
descendants and culturally affiliated tribes) (Emphasis added). The Mill is not located on
Federal or tribal lands; therefore, NAGPRA does not apply here.
However, there is a process in place for respectfully handling and arranging for the final
disposition of human remains and cultural items discovered on the Mill property. Whenever any
human remains or cultural items are discovered, EFRI notifies the State Historical Preservation
Officer (SHPO) and EFRI's archaeological contractor who has been approved by the SHPO. In
most cases, the contractor prepares and submits a research design plan, which must be approved
by the SHPO before any work can begin. The contractor then removes the remains and cultural
items in accordance with the approved plan. The items are sent to the Edge of the Cedars
Museum in Blanding, Utah. Ownership and display details for all recovered items are delineated
in the approved plans submitted to the SHPO.
1-1II-E The Tribe would like the Tribal Historical Preservation Officer to be added to the
Memorandum of Agreement and have the Tribe provide comments and amendments to the
current MOA.
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Long historical documented connection between the Ute Mountain Tribe and the sites at the mill.
The ancestors of some Tribal Members may be located at the site, and the desecration of these
causes cultural and spiritual damage to Tribal Members.
EFRI Response:
Section 9.7 of the License implements the terms of the Memorandum of Agreement ("MOA"), as
amended, but the MOA was executed independently of the License. The Section 9.7 terms are
being carried out satisfactorily and the commenter does not seek any specific changes to this
section. The commenter's request to be added to the MOA is outside the scope of this
proceeding.
I-III-Q The Ute Mountain Ute Tribe requests that the Emergency Preparedness Plan be amended
to include notification procedures to the White Mesa Community and Ute Mountain Ute Tribal
officials. In addition, there are no specific procedures in the Emergency Response or the
Environmental Monitoring Handbook for trucks delivering specifically delivering ISL Material;
these need to be developed.
The White Mesa Ute community, a sovereign government, who shares a boundary with the mill,
is not on any list or communication tree for ANY emergency involving potential off-site or public
releases of hazardous or radiological substances. They are not listed as contacts within any of
these documents:
• EMERGENCY RESPONSE MANUAL FOR URANIUM CONCENTRATE SPILL or
• SPILL PREVENTION CONTROL AND COUNTERMEASURES PLAN FOR
CHEMICALS AND PETROLEUM PRODUCTS, or
• TRANSPORTATION ACCIDENT RESPONSE PIAN.
In terms of the policy of As Low as Reasonably Achievable (AIARA) and as a good neighbor
policy for the nearest community residing near the mill, the Tribe requests immediate inclusion
in the notification process in these plans for incidents such as:
• Leaking shipment of radioactive ISL waste from Cameco Smith-Ranch ISL Facility in
Glenrock, Wyoming on or about August 21, 2015;
• Leaking intermodal container of radioactive ISL waste from Cameco Smith-Ranch ISL
Facility in Glenrock, Wyoming on or about March 29, 2016, resulting in spillage of
radioactive material along US Highway 191 and at the entrance to the White Mesa Mill;
or
• Leaking barrels of radioactive material transported by truck from Honeywell
(Converdyne) and received at the White Mesa Mill on or about January 12, 2017.
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The Risk Management Plan's worst case scenario's for the Mill considers the total release of
140,000 pounds of anhydrous ammonia from the one of the two tanks over a 10 minute time
period. This could result in a cloud of hazardous material that causes lung damage and lethality
if enough is inhaled which could extend 12 miles. One report listing accidents in the USA from
the years 1996-2011, found there were 939 accidents due to anhydrous ammonia, and resulting
in 19 deaths and 1651 injuries. (Center for Effective Government, 2013). So this is a very real
scenario. An effective plan for the neighboring communities, including the Tribe's White Mesa
community must be made aware of the possibilities of such scenarios and have emergency
preparedness operations or evacuation plans in place, for considerations especially of the
elderly, children, and handicapped.
In line with the question above, in the DWMRC White Mesa Uranium Mill Frequently Asked
Questions, it is listed: What is the Mill required to do if an Environmental Release Occurs? The
response suggests that the mill's emergency response plan will address any issue "and has
provided notifications for incidents in the past. DWMRC also provides required notifications to
the appropriate parties," or only those parties require by state or federal regulation, and not
those most likely to be affected by even the smallest radioactive or chemical spill, the closest
community of White Mesa. The DWMRC answer to this question concludes with, "(DWMRC)
encourages suggestions from the public on ways to improve the current notification process." So
let this be the time that the Tribe, as a sovereign nation, and as a member of the public implores
the DWMRC, the DEQ, and the State of Utah, for inclusion in this process.
EFRI Response:
Emergency Re pon ·e Plan C"ERP")
NRC regulations in Reg. Guide 3.67, (NRC 2010) require the preparation of an ERP. The Reg.
Guide defines three classes of accidents which are subject to the Mill's ERP (EFRI 2015): Alerts,
Site Area Emergencies, and On-Site Emergencies. Offsite transportation accidents involving
ISL shipments or feed material shipments, such as the three shipment-related incidents identified
in the comment, are defined as Non-Subject Incidents and are not subject to the Mill's ERP.
These types of incidents are addressed in plans and standard operating procedures ("SOPs")
other than the ERP.
The Tribe states that the DWMRC's responses to Frequently Asked Questions "suggest" that the
"mill's emergency response plan will address any issue." As stated above, the ERP addresses
only those types of issues required to be addressed by Reg. Guide 3.67. Other types of incidents
and plans are discussed below.
Spill Prevention Control and Countermeasures PJan ("SPCC )
The SPCC Plan (EFRI 2017b) addresses prevention and response to spills of materials on site.
The transportation spills of ISL materials identified in the Ute comment are not subject to the
SPCC plan.
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Tran portation Accident Plan ("TAP")
Section 1.2 of the TAP states that transportation accidents involving radioactive materials "such
as yellowcake" are addressed, and identifies the phases of response for such accidents. The TAP
addresses yellowcake shipments in transit from the Mill as well as shipments of yellowcake feed
material to the Mill for reprocessing. Accidents involving yellowcake are specifically addressed,
because yellowcake contains higher uranium content, higher activity, and higher potential for
dispersion following a spill than potential spills of ISR byproduct material or alternate feed
material. Although Section 1.3 of the TAP identified only the total activity of a load of calcined
U30 8 (yellowcake), this value represents the highest potential activity of any possible spill, and is
significantly higher than a potential ISR or alternate feed spill.
Alternate Feedstock Material Procedures
Management of leaking transport containers of ISR material arriving at the Mill are specifically
addressed in the Mill's Containerized Alternate Feedstock Material Storage Procedure (EFRI
2017b). Section 3.1 of this SOP describes the steps and notifications required if containers
entering the Mill site are found to be leaking. Emergency response procedures for containers
that are leaking from the point of shipment to the Mill property are covered by the generator and
carrier procedures in accordance with Department of Transportation ("DOT") or other applicable
requirements.
With respect to the incidents mentioned in the Tribe comment, it should be noted that:
The August 21, 2015 shipment of ISR material from Cameco Smith Ranch traveled overland
from Wyoming to the Mill and reached the Blanding area on Utah 191, from the north.
Additionally, the vehicle at no time traveled south of the Mill and at no time was it in the vicinity
of the Ute Tribal lands where the land borders the Mill at the southeast of the Mill property.
The March 29, 2016 shipment of ISR material from Cameco Smith Ranch traveled overland
from Wyoming to the Mill, and reached the Blanding area on Utah 191, from the north.
Although the incident report identified that a small quantity of material, less than 5 gallons in
total, was released from the container, the majority remained affixed to the truck and did not
reach the road or the environment. Additionally,
a. The quantity of spilled material was too small to reach surface water, sediments or other
environmental media, nor did it involve material that could be volatilized to or suspended
m mr.
b. The vehicle at no time traveled south of the Mill and at no time was it in the vicinity of
the Ute Tribal lands where the land borders the Mill at the southeast of the Mill property.
Therefore the spill posed no risk, required no action by, and required no notification to the Tribe.
The January 12, 2017 shipment from Honeywell involved three drums that were found leaking
inside the transport container. There was no release to the roadway or the environment.
Therefore the spill posed no risk, required no action by, and required no notification to the Tribe.
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With respect to the storage of anhydrous ammonia, discussed in the Center for Effective
Government ("CEG") report referenced in the Tribe's comment, it should be noted that for the
entire period referenced in the data table, in Utah:
• There were no fatalities
• There were no accidents requiring evacuation.
• None of the accidents occurred at the Mill.
• None of the less than 0.5 injuries per year were related to the Mill.
The theoretical ammonia release modeled in the Mill's Risk Management Plan ("RMP") 1s
discussed below.
The ERP, the SPCC and the TAP specify the local, county, State, and Federal agencies or
organizations having responsibilities for radiological or other hazardous material emergencies at
the Mill. For spills or accidents which may involve releases beyond the Mill boundary, these
plans identify which agencies are to be contacted. Depending on the nature of the emergency,
these include:
• Blanding Police Department;
• Blanding City Fire Department;
• San Juan County Sheriff;
• San Juan County Emergency Medical Service;
• All local medical clinics and or hospitals; and
• Utah Highway Patrol
The ERP requires that the Mill perform quarterly communication checks with all of these
potential offsite emergency responders to confirm that contact information is current and
communication systems are functional. This communication plan and contact list complies with
the NRC and DWMRC requirements for emergency planning. The focus of the initial notification
is to reach those agencies which are expected to provide technical or medical personnel and/or
equipment support to supplement the Mill's resources as needed during an emergency, if the spill
or emergency released material off site or required additional resources beyond those at the Mill.
Mill personnel also meet annually with San Juan County Office of Emergency Management and
Fire Control and City of Blanding Fire Department to review relevant changes in the ERP or other
plans and availability of equipment and technically trained personnel. During those meetings
Mill personnel discuss the notification procedures and overall response coordination, as necessary
with the technically trained and responsible off site personnel.
Consistent with the NRC Reg. Guide 3.67 and Utah Administrative Code ("UAC") requirements
for spill notification, following the emergency, the Mill also contacts agencies with responsibility
for regulation of radiological or hazardous materials, which include DWMRC, and depending on
the nature of the emergency may also include the:
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• Mine Safety and Health Administration ("MSHA") Field, District and National
Office
• Utah State Emergency Response Commission
• State of Utah, Natural Resources, Dam Safety Office
• National Response Center
• Utah Poison Control Center
It is the responsibility of the San Juan County Office of Emergency Management and Fire
Control and City of Blanding Fire Department to determine whether communities or
organizations need to be notified regarding a potential hazard and/or the need for evacuation. It
is the responsibility of DWMRC, to contact other agencies or organizations they deem necessary,
beyond those required and listed in the Mill's approved plans, if any.
As discussed above, if an emergency spill or release may affect the public outside of the Mill, or
requires the use of outside personnel or equipment, the Mill's response notification protocols
require Mill personnel to contact the Local Emergency Preparedness Committee (city and county
emergency response personnel) listed above. Those agencies have the responsibility to contact
members of the public who may be affected to a level requiring evacuation or other action.
The Mill is not required to contact DWMRC as part of initial notifications during the immediate
response to and management of an emergency, as required by:
• Utah Administrative Code 19-5-114,
• Part I.C.2 of the Mill's GWDP,
• the Mill's SPCC Plan,
• the Mill's Contingency Plan (EFRI 2011),
• the Mill's TAP, and
• the Mill's ERP.
The Mill or a member of EFRI management is required to contact DWMRC within 24 hours of a
spill or release as defined in those plans and regulations.
In summary, the Mill is required to make notifications and to follow emergency response
procedures in accordance with applicable federal and state requirements. All of the Mill's
procedures and the ERP are set up to follow those requirements in a manner that ensures the
safety of workers, the public and the environment in a coordinated fashion. Not all parties are
first responders, by definition. The requirements and procedures are set up to ensure that first
responders are notified first and others notified thereafter, in a manner that allows for
coordinated responses. EFRI is prepared to consider adding the Tribe to its various lists of
notifications, provided that:
1. The Tribe demonstrates that it is able to provide contact information that is current and
communication systems that are functional that will allow for reliable personal contact
with identified individuals on a 24-hour, seven day per week basis;
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2. The Tribe determines which notifications it believes are appropriate and discusses with
each of the official responders described above the purpose of the notification and the
role (including the scope and limits) it would like to take;
3. The Tribe provides the concurrence of each such official responder to such role to be
taken by the Tribe;
4. The Tribe demonstrates that it is complying with the foregoing requirements on an on-
going basis, in order for its continued role to be honored; and
5. DWMRC agrees to the Tribe's role and concurs that it is consistent with all applicable
Mill requirements.
The Mill is prepared to consider notifications to the Tribe on the foregoing basis, but it must by
understood that such notifications cannot interfere with the Mill's ability to comply with all
emergency response requirements applicable to it.
At the hearing in Salt Lake City, a Ute Mountain Ute Tribal Member who has resided in White
Mesa throughout his life asked a question that could not be answered due to a lack of concise
context regarding emergency response and safety for proximate residents. To clarify and assist
the UDWMRC in responding to his comment, we have bolstered his concern with actual
scenarios for the DWMRC to be able to adequately address his concerns. Mr. Dutchie asked at
the hearing what the safe distant was if something went wrong at the White Mesa Mill. To add
context, we have used specific examples for the response to public comment by DWMRC:
1. In the event of a release of 140,000 pounds of anhydrous ammonia (considered to be
one of the worst-case scenarios of potentially acute toxins from the facility), what is
the zone of exposure, in lateral distance from the mill's storage chemical storage
facility, and what would be the emergency response procedure implemented to protect
those residents and passers-by within the zone?
EFRI Response:
Section 112(r) of the Clean Air Act Amendments requires EPA to publish regulations and
guidance for chemical accident prevention at facilities that use certain hazardous substances.
These regulations and guidance are contained in the Risk Management Plan ("RMP") rule. The
RMP rule requires facilities that use certain hazardous substances to develop an RMP which:
• identifies the potential effects of a chemical accident,
• identifies steps the facility is taking to prevent an accident, and
• spells out emergency response procedures should an accident occur.
These plans provide valuable information to local fire, police, and emergency response personnel
to prepare for and respond to chemical emergencies in their community.
The RMP rule was built upon existing industry codes and standards. It requires facilities that use
listed regulated Toxic or Flammable Substances for Accidental Release Prevention to develop an
RMP and submit that plan to EPA.
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The Mill has an RMP that it has submitted to EPA, which addresses the potential effects of a
chemical accident involving the release of anhydrous ammonia. The responses in the RMP
follow industry codes and standards applicable to all types of facilities that use significant
quantities of anhydrous ammonia in their process activities, and provide similar protections as
for all other facilities in the State of Utah and federally. Under the RMP, a potential worst-case
scenario involving a release of anhydrous ammonia is modeled to determine the worst potential
impact to the public and sets out emergency responses based on industry codes and standards to
ensure that the public is protected from any potential impacts from the release.
The theoretical worst-case release modeled in the RMP yielded an estimated Distance to
Endpoint of 6.9 miles. The Tribe's comment incorrectly states an estimated distance of 12 miles.
Even for a theoretical release of two complete tanks, or greater than 140,000 lbs, the distance to
endpoint would not extend to 12 miles. An anhydrous ammonia release which reached, or had
the potential to reach, off-site communities is defined as a Site Area Emergency, in the Section
on Classification and Notification of Accidents in the ERP. The response procedures to be
implemented are those described in the ERP section on Site Area Emergencies and are based on
national standards for dealing with a potential anhydrous ammonia release.
It should be noted that the anhydrous ammonia accident situation submitted and modeled in the RMP
represents a nearly impossible worst case scenario. While the EPA regulations may require the
modeling of a theoretical complete release of a tank's contents in a finite time period, this situation is
unrealistic as discussed below.
The modeled case of a release of 14,000 lbs. per minute of liquid, at a density of approximately 5.7
lb/gallon, represents a release rate of approximately 2,500 gpm.
Ammonia in the Mill's two anhydrous ammonia tanks are filled, and liquid ammonia is withdrawn,
through a system of bottom pipes which operate under the pressure head of the tank (approximately
100 psi.). The bottom piping is protected by a rupture valve system which will shut off bottom flow if
it senses a high discharge flow rate. The tanks themselves are protected by a pressure relief system
designed to vent a gaseous over-pressure (such as from an overfilling error) to prevent rupture of the
tank structure.
All realistic operating scenarios which could result in a spill or release would be limited to the
maximum release rate at which:
• liquid ammonia could discharge by the pressure head of the tank, from a damaged or severed
3 inch or smaller section of the bottom piping, or
• gaseous ammonia was released from the pressure safety vent system.
It is not possible for either the bottom drain piping or the safety vent system to release 2,500 gpm for
a continuous 10 minutes. In fact they could not release more than a small percentage of that rate. The
estimated 14,000 lbs. per hour or 2500 gpm release could only be achieved by a complete failure
(rupture or collapse) of one of the tanks itself. As mentioned above, the pressure safety vent system is
designed to prevent overpressure from operational causes. While the possibility exists that one or both
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of the tanks could be damaged by sabotage, an aircraft crash, or other catastrophic scenario, there is no
reasonable scenario that could produce such a complete and instantaneous tank failure. In this case,
following the Mill's notification of the Blanding and San Juan authorities listed above, those
authorities would make contact with the Tribe or others who may need to evacuate.
Additionally, regardless of the rate of release, the EPA RMP*Comp™ model is conservative in that it
does not account for many chemical and environmental factors which could reduce the concentration
of airborne ammonia following a release. The model estimates distance based on the variables of
windspeed and topography, but cannot be adjusted to account for:
• Rate of vaporization of ammonia
• Ammonia absorption and reactivity with atmospheric moisture
• The density of ammonia atmospheric reaction products
• What fraction of ammonia products will precipitate before they leave the Mill site.
The worst case scenario is therefore very conservative, as it should be, so that maximum precautions
can be taken in the event of a potential release.
2. From August 1 to September 6, 2016, during an ore processing campaign, the
yellowcake drying ovens were operating at a level higher than their permitted drying
capacity (letter to Utah DAQ September 22, 2016 by EFRI). This caused an excess of
346 lbs. of emissions over that period. What is the zone of exposure, in lateral distance
from the mill's drying stacks, and what was the emergency response procedure
implemented to protect those residents and passers-by within the zone? Please
estimate the exposure to uranium oxide and other pollutants to the nearest resident
(<2 miles), White Mesa residents (average of 4 miles), and those passers-by, such as
school children on the bus between Bluff and White Mesa and Blanding on the
highway next to the mill, twice per day as they started their school year.
EFRI Response:
This event involved the excess emission of PM10 during the period, of which a portion was uranium
oxide (uranium and oxygen) and a portion was compounds of nitrogen which may have potentially
contained ammonia compounds and sulfate compounds.
The high volume air monitors at the site perimeter, as well as within the perimeter, did not detect any
measurable increase in uranium emissions during the period that included the emissions event.
Therefore, this event did not result in any measurable increases in uranium or other radionuclide
emissions at the site boundary, even for a person who resided at the boundary full time during the
period. All radionuclide emissions during the period were well within regulatory standards. Any
impacts to a person who drove by the site twice a day would be even less (less than measurable) and
also well within the regulatory standards.
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If the uranium oxide had no measurable impact at the site boundary, it is reasonable to expect that any
other particulate components did not have any significant impact at the site boundary, even for a
person residing their full time. It should be noted that:
a. The primary wind direction is not from west to east, and the measured wind direction has a
component to the east less than 50% of the time.
b. The emissions mass includes some fraction that would be deposited on the Mill property and not
on the road (or school bus).
c. As mentioned above, the high volume air monitors at the site perimeter did not detect any
increase in radioactive particulate emissions during the months which included the emissions
event.
It should also be noted that overall during 2016, even under the most conservative assumptions, the
Mill generated far less than the pollutants permitted by the Mill's Air Approval Order for the
yellowcake dryer systems.
3. In March of 2012, a Ute Mountain Ute Tribal Member from White Mesa
photographed a release from the facility and the Tribal government inquired about it
with the Utah Division of Air Quality (photograph included in Sec. 1-1/l-G ). There is
no record of the incident being reported by EFRI. The Tribe was informed by the
Division of Air Quality 21 that it was a malfunction in an alternative feeds circuit
processing material at the time. Please estimate the exposure to uranium oxide, and
other pollutants to the nearest resident ( <2 miles), White Mesa residents (average of 4
miles), and those passers-by, such as school children on the bus between Bluff and
White Mesa and Blanding on the highway next to the mill. (See Part I, Exhibit C-
Energy Fuels letter).
EFRI Response:
The March 2012 incident identified in the comment involved the emission of steam containing
carbon monoxide ("CO") and NOx. Discrete samples were collected to monitor for other
inorganic and acid gas parameters, including chlorine, hydrogen fluoride and acid gases. None
of those constituents were detected. Monthly high volume sampler data, which was operated
continuously during the period that included the incident, did not indicate any increase in
emissions during the period. That is, there was no measurable increase in uranium, radium-226,
thorium-230 or lead-210, as measured by monitoring of airborne radiological particulates, during
the period which included the event.
All available data indicate that there was no exposure of nearby residents to uranium oxides.
Mark Kerr Comments on the Proposed Renewal and Amendment of Energy Fuels Resources
(USA), Inc.'s Radioactive Materials License and Groundwater Discharge Permit for the White
Mesa Mill.
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EFRI General Response:
In order to properly respond to Mr. Kerr's comments it is important to understand Mr. Kerr's
past association with the Mill. Mr. Kerr, and his company, KGL Associates, (hereafter referred
to as "Kerr") were contracted to construct Cell 4B of the Mill's Tailings Management System.
Part way through the project Kerr abandoned the job leaving a partially constructed Cell 4B for
EFRI (formerly Denison Mines) to complete. Kerr sued EFRI for damages, and EFRI
counterclaimed in Federal court. The case eventually went to arbitration. The arbitrator ruled in
favor of EFRI on all claims, and as of today Kerr owes EFRI!Denison in excess of $4,000,000 in
damages. Kerr has appealed the arbitrator's ruling at least three times and has been denied on all
counts. Since the arbitrator and appeal court decisions, Kerr has continued to make unfounded
complaints to the EPA and the NRC.
The controlling documents for the Tailings Cell 4B project were the Technical Specifications
and the Construction Quality Assurance Plan. Denison Mines submitted a Cell4B Construction
Quality Assurance Report (CQA Report) to demonstrate it performed the work required by those
documents. On January 27, 2011 the DWMRC (formerly DRC) determined that requirements of
the documents noted above were met prior to authorizing Cell 4B to operate. Because the DRC
engineer that performed the review of the CQA Report was the same engineer who observed the
construction in the field, the DRC review was made with the knowledge of the changes in the
technical specifications. Therefore, the DRC concluded that even with the technical
specification changes as constructed, the construction was acceptable. In October 2011 Mr. Kerr
contacted the DRC with the same concern sent to the EPA on April 13, 2017. In December
2011 the DRC let Mr. Kerr know that the CQA Report review was made with the knowledge of
the changes in the technical specifications. Unsatisfied, in a letter dated December 20, 2011 Mr.
Kerr sent the same concern to the NRC. On February 3, 2012 the NRC told Mr. Kerr it was
satisfied with the DRC response that even with the technical specification changes as
constructed, the construction was acceptable.
The operating license and the groundwater discharge permit at the White Mesa Uranium Mill
should not be issued, and operations should be suspended until numerous issues are addressed.
These 'poor housekeeping' practices are as much the responsibility of the UT DEQ as they are
the mill owner/operator, as neither party can be expected to follow rules, regulations, license
requirements, or construction permit technical specifications, as proven by past practice. It is no
surprise that plumes of contamination exist, radon emissions exceed limits, and monitor wells
contaminates exceed limits set by the regulators.
EFRI Response:
Kerr provides insufficient basis for the above general comments on "contamination",
"emissions", or "exceed limits". There is not enough detail to allow for a meaningful response.
His comments in general appear to want to raise tangential and stale issues related to prior
construction events that were fully resolved during the construction.
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Construction bid documents for Cell 4B in Jan 2008 require major changes be reported to the
regulators prior to implementation. Reporting of those changes did not occur prior to
implementation.
EFRI Response:
See general response above.
The mill owner/operator indicated, 8-7-09, that blasted rock during cell construction would be
removed. The blasted rock was not removed. In lieu of rock removal a directive for a revised
compaction methodology, 5-19-10, was issued. But large areas of the cell floor were left
untouched by the new methodology, as directed by the mill owner's engineer.
EFRI Response:
Kerr violated the construction specifications and design by over blasting the Cell 4B bottom
beyond the design lines and grade. Kerr was instructed to cease that activity and remove loose
rock and backfill with compacted fill material. Kerr refused, claiming in his opinion that the
loose rock was acceptable for the Cell 4B foundation. Kerr was instructed to remove and replace
the loose material, or as an alternative, a revised procedure was developed by Geosyntec
Consultants to compact the loose material to design specifications. Kerr then elected to utilize
the alternative compaction method until he ultimately abandoned the job. The remainder of the
Cell 4B construction was completed according to design plans specifications by EFRI.
On 6-8-2010 the mill owner's engineer states that over blasting of rock can result in an unstable
soil/rock mixture that may settle differentially or significantly ..... yet the rock was not removed,
and as noted above the compaction methodology was not applied consistently over the cell floor.
EFRI Response:
See general response above.
On 6-14-2010 the mill owner/engineer was asked if the regulators were aware of the changes,
and on 6-17-2010, the mill owner/engineer advise that the question is inappropriate, and they
state, 'please revise or rescind' the question. Back on 3-12-2010 the mill owner/engineer advised
of the format to use for questions, so they could respond 'accordingly.'
EFRI Response:
It is hard to follow this comment but EFRI references the general response above.
UT DEQ's consultant, URS, 9-4-09, states that the blasting plan should be included as a critical
component of the technical specifications for construction. On 3-4-10 the mill owner/owner's
engineer direct changes to the blasting plan without notice to the regulators. Back on 11-6-09
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the mill owners engineer states that they are not, and the contractor is, responsible for
deviations to the contract documents.
EFRI Response:
See general response above.
12-14-2011, UT DEQ advises that they allow for discretion on the part of the permittee (the mill
owner & mill owner's engineer) types of changes that require notification. UT DEQ states that it
appeared that DUSA/Geosyntec determined that changes to compaction methodology did not
qualify as being sufficiently significant to notify UT DEQ of such a change.
EFRI Response:
See general response above.
UT DEQ states than notice is required when the alteration or addition could significantly change
the nature of the facility or increase the quantity of pollutants discharged.
It is well documented that the UT DEQ, the mill owner, and the mill owner's engineer, all
considered rock excavation, blasting, and compaction to be sufficiently significant to report
changes. All were changed, no notice was given, and questions about reporting were ignored or
rejected altogether.
EFRI Response:
See general response above.
1-13-2012, the UT DEQ states that following their review, the review made now knowing of the
changes, that cell construction was acceptable. BUT, how could that be. This means that
conflicting Technical Specifications implemented during construction are now OK. The Blasting
plan was critical according toUT DEQ, URS, DUSA, and Geosyntec .... but the plan was changed
in direct conflict with documents from all 4 parties.
EFRI Response:
See general response above.
The blasted rock would increase fractures & jointing, or rock would become discontinuous,( or
as the Exec VP of US Operations for the DUSA puts it ..... the blasting would cause caverns to
form, which would collapse over time, tearing the cell liners and the cell would leak, releasing
contaminates into the ground water), but as stated by the VP, 8-7-09, not to worry, the blasted
rock would be removed. The rock was not removed.
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References
Basu, A., Brown, S.T., Christensen, J.N., DePaolo, D.J., Reimus, P.W., Heikoop, J.M.,
Woldegabriel, G., Simmons, A.M., House, B.M., Hartmann, M., Maher, K., 2015. Isotopic and
Geochemical Tracers for U(VI) Reduction and U Mobility at an in situ Recovery U Mine.
Environmental Science and Technology 49:5939-5947.
Division of Waste Management and Radiation Control (DWMRC), State of Utah, 2012.
Groundwater Discahrge Permit No. UGW370004. Granted to Energy Fuels Resources (USA)
Inc. Augusrt 24.
EFRI, 2017a. White Mesa Uranium Mill Nitrate Monitoring Report, First Quarter 2017. May 22.
___ ,20 17b. Containerized Alternate Feedstock Material Storage PBL-19, Revision 3.
February 10.
___ , 2015. Emergency Response Plan for White Mesa Mill. October 26.
___ ,2016. Spill Prevention, Control and Countermeasures Plan. December 12.
___ ,2011. White Mesa Uranium Mill Contingency Plan. December 1.
Fisher (2000) Simulation of Partially Saturated-Saturated Flow in the Caspar Creek E-Road
Groundwater System. Master of Science Thesis, Humboldt State University. May, 2000.
Geo-Logies, 2017. Updated Data Review and Evaluation of Groundwater Monitoring. July.
Hydro Geo Chern ("HGC"), 2012a. Investigation of Pyrite in the Perched Zone, White Mesa
Uranium Mill Site, Blanding, Utah.
___ , 2012b. Corrective Action Plan for Nitrate White Mesa Uranium Mill, Near Blanding,
Utah.
Hurst, T.G., and Solomon, D.K., 2008. Summary of Work Completed, Data Results,
Interpretations and Recommendations for the July 2007 Sampling Event at the Denison Mines,
USA, White Mesa Uranium Mill Near Blanding Utah. Prepared by Department of Geology and
Geophysics, University of Utah.
INTERA, 2007a. Addendum Evaluation of Available Pre-Operational and Regional Background
Data Background Groundwater Quality Report: Existing Wells for Denison Mines (USA) Corp's
White Mesa Uranium Mill Site, San Juan County, Utah. April 19.
___ , 2007b. Revised Background Groundwater Quality Report: Existing Wells for Denison
Mines (USA) Corp's White Mesa Uranium Mill Site, San Juan County, Utah. October.
65
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___ , 2012. pH Report White Mesa Uranium Mill, Blanding Utah
Kamp, S.D., and Morrison, S.J., 2014. Use of Chemical and Isotopic Signatures to Distinguish
Between Uranium Mill-Related and Naturally Occurring Groundwater Constituents.
Groundwater Monitoring and Remediation 34: 68-78.
Morrison, S.J., Goodknight, C.S., Tigar, A.D., Bush, R.P., Gil, A., 2012. Naturally Occurring
Contamination in the Macos Shale. Environmental Science and Technology 46:1379-1387.
Naftz, D.L., Ranalli, A.J., Rowland, R.C., Marston, T.M., 2011. Assessment of Potential
Migration of Radionuclides and Trace Elements from the White Mesa Uranium Mill to the Ute
Mountain Ute Reservation and Surrounding Areas, Southeastern Utah. U.S. Geological Survey
Scientific Investigations Report 2011-5231.
Native American Graves Protect and Repatriation Act ("NAGPRA"), 1990. 25 US Code §3002.
NRC, 1994. Criteria Relating to the Operation of Uranium Mills and the Disposition of Tailings
or Wastes Produced by the Extraction or Concentration of Source Material From Ores Processed
Primarily for Their Source Material Content, 10 CPR, Appendix A to Part 40, Criterion 6A.
NRC, 1993. Uranium Mill Tailings Radiation Control Act ("UMTRCA"), 40 CFR, Part 192,
Subpart D.
NRC, 2015a. AEA of 1954 §lle.(2), 42 U.S.C. §2011.
NRC, 2015b. AEA of 1954 84a(l)-(3), 42 U.S.C. §2011.
NRC, 2015c. AEA of 1954 §275(b)(l), 42 U.S.C. §2011.
NRC, 2010. Standard Format and Content for Emergency Plans for Fuel Cycle and Materials
Facilities. May.
Sapsford, D.J., Bowell, R.J., Dey, M., Williams, K.P., 2009. Humidity Cell Tests for the
Prediction of Acid Rock Drainage. Minerals Engineering 22: 25-36.
United States EPA, 1999. Understanding Variation in Partition Coefficient, Kd Values. EPA-
402-R-99-004B. 1999.
United States EPA, 2017. Clean Air Act 40 CFR, Part 61, Subpart W.
United States EPA. Clean Air Act 40 CFR, Part 61, Subpart T (rescinded 1993, see 58 Fed. Reg.
60340).
Utah Administrative Code, 2016. Spills or discharges of oil or other substance--Notice to
director.19-5-114.
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Utah Administrative Code, 2016. Uranium Mills and Source Material Mill Tailings Disposal
Facility Requirements. R313-24-4
Van Metre, P.C., Wirt, L., Lopes, T.J., Ferguson, S.A., 1997. Effects of Uranium-Mining
Releases on Ground-Water Quality in the Puerco River Basin, Arizona and New Mexico. U.S.
Geological Survey Water-Supply Paper 2476.
Zielinski, R.A., Chafin, D.T., Banta, E.R., Szabo, B.J., 1997. Use of234U and 238U Isotopes to
Evaluate Contamination of Near-Surface Groundwater with Uranium-Mill Effluent: A Case
Study in South-Central Colorado, U.S.A. Environmental Geology 32: 124-136.
67
Appendix 1
NRC Preamble
Appendix 2
Revised Section 6 to the White Mesa Mill Reclamation Plan
6 MILESTONES AND SCHEDULE COMMITMENTS FOR RECLAMATION
6.1. Background
Utah Administrative Code R313-24-4, incorporating by reference 10 CFR Part 40 Appendix A Criterion
6A ("Criterion 6A") paragraph (1), provides that: "For impoundments containing uranium byproduct
materials, the final radon barrier must be completed as expeditiously as practicable considering
technological feasibility after the pile or impoundment ceases operation in accordance with a written,
Commission-approved reclamation plan. (The term as expeditiously as practicable considering
technological feasibility as specifically defined in the Introduction of this appendix includes factors
beyond the control of the licensee.) Deadlines for completion of the final radon barrier and, if applicable,
the following interim milestones must be established as a condition of the individual license: windblown
tailings retrieval and placement on the pile and interim stabilization (including dewatering or the removal
of freestanding liquids andre-contouring). The placement of erosion protection barriers or other features
necessary for long-term control of the tailings must also be completed in a timely manner in accordance
with a written, Commission-approved reclamation plan."
As contemplated by Criterion 6A, this Section sets out the interim milestones and deadlines for
completion of the final radon barrier for individual tailings impoundments (referred to in this Section as
"tailings impoundments" or "conventional impoundments") at the Mill after each such impoundment
begins final closure. It also sets out milestones for the removal and disposal of non-conventional
impoundments (referred to in this Section as "evaporation ponds" or "non-conventional impoundments")
after each such impoundment begins final closure, as well as an additional milestone applicable to final
Mill site closure. A table that summarizes all of these milestones is included in Section 6.2.6 below.
Also included below are schedule commitments for other events or actions which are not "milestones"
required under Criterion 6A, but instead are schedule commitments to be achieved in order to ensure that
those events or actions are completed in a timely manner. As these schedule commitments are not
milestones they do not come under the specific provisions of paragraph (2) of Criterion 6A. However, a
general timeliness standard for completing those items is retained. The licensee must complete those
actions in a timely way, and the Director has the authority to take action if necessary in this regard. As
these schedule commitments are not milestones required under Criterion 6A(l), they are not included in
the table set out in Section 6.2.6 below.
6.2. Milestones and Schedule Commitments
6.2.1. General
(a) Definition of "Operation"
"Operation" means that an impoundment is being used for the continued placement of uranium
byproduct material or tailings or is in standby status for such placement. An impoundment is in
operation from the day that uranium byproduct material or tailings are first placed in the
impoundment until the day that final closure begins.
1
(b) When Final Closure of an Impoundment Begins
Final closure of an impoundment begins when the owner or operator provides written notice to the
EPA and to the Director that:
i) In the case of a conventional impoundment (i.e., a tailings impoundment), the
impoundment is no longer receiving uranium byproduct material or tailings, is no longer on standby
status for such receipt and is being managed under an approved reclamation plan for that
impoundment or facility closure plan; and
ii) In the case of a non-conventional impoundment (e.g., an evaporation pond), the
impoundment is no longer required for evaporation or holding purposes, is no longer on standby for
such purposes and is being managed under an approved reclamation plan for that impoundment or
facility closure plan.
An approved reclamation plan prepared and approved in accordance with 10 CFR part 40, Appendix
A is considered a reclamation plan for purposes of this paragraph 6.2.l(b).
(c) The Existing Tailings Management System at the Mill
The tailings management system at the Mill currently consists of three tailings impoundments: Cell
2, which is not in operation and is in final closure, and Cells 3 and 4A, which are in operation. Cell
1 is an evaporation pond. Cell4B is currently being used as an evaporation pond and will continue
to be used as an evaporation pond until it first starts to receive tailings sands or other byproduct
material (other than solutions) for disposal. Future cells may commence as evaporation ponds, and
will continue as evaporation ponds until they first receive tailings or other byproduct material (other
than solutions) for disposal, at which time they will become tailings impoundments.
(d) The Proposed Cover Design and Existing Cover Design
This Plan presents a proposed evapotranspiration (ET) cover (the "Proposed Cover Design") as a
component of the reclamation plan for the tailings impoundments, to replace the rock armor cover
design (the "Existing Cover Design") set out in Appendix D to the Reclamation Plan Version 3.2b
(Denison, 201lb).
The Stipulation and Consent Agreement described in Section 6.2.l(e) below and Section 5.0 above
describe a set of circumstances under which the Final Cover Design could be the Existing Cover
Design rather than the Proposed Cover Design. Section 5.0 of this Plan describes the manner in
which EFRI would revert from the Proposed Cover Design to the Existing Cover Design if so
required by the Stipulation and Consent Agreement.
i) The Propo ed Cover Design
The Proposed Cover Design will have a minimum thickness of 9.5 feet, and will consist of the
following layers listed below from top to bottom:
• Layer 4 -0.5 ft (15 em) thick Erosion Protection Layer (topsoil-gravel admixture or
topsoil)
• Layer 3 -3.5 ft (107 em) thick Water Storage/Biointrusion/Frost Protection/Secondary
Radon Attenuation Layer (loam to sandy clay)
2
• Layer 2 -3.0 -4.0 ft (91 to 122 em) thick Primary Radon Attenuation Layer (highly
compacted loam to sandy clay)
• Layer 1 -2.5 ft (76 em) thick (minimum) Secondary Radon Attenuation and Grading
Layer (loam to sandy clay)
All the layers combined comprise the monolithic ET cover system.
ii) Th e Existing Co ver De. ign
The Existing Cover Design will have a minimum thickness of 6 feet, and will consist of the
following layers listed below from top to bottom:
• Layer 4 --3 in (7.6 em) Rock Armor
• Layer 3 --2ft (61 em) Frost Barrier Layer (random fill)
• Layer 2 --1ft (30.5) Radon Barrier (compacted clay)
• Layer 1 --Minimum 3ft (91.4 em) Platform Fill (random fill)
(e) The Stipulation and Consent Agreement
EFRI and the Director of the UDEQ DWMRC have entered into a Stipulation and Consent
Agreement (the "SCA"), which sets out the terms on which the Mill will test the effectiveness of the
Proposed Cover Design and, together with Section 5.0 of this Plan, the circumstances in which the
approved Cover Design for reclamation of tailings impoundments could be a variation of the
Proposed Cover Design or the Existing Cover Design, rather than the Proposed Cover Design.
6.2.2. Deadlines, Interim Milestones and Schedule Commitments for Closure of Cell 2
The deadlines and interim milestones and schedule commitment dates for closure of Cell 2 are set out in
the SCA. The requirements set out in the SCA are incorporated by reference into this Plan as if set out in
this Plan. The final radon barrier for Cell 2 (Layers 1 and 2 under the Proposed Cover Design) has been
put in place. Radon flux mea urement taken since the final radon barrier has been placed onto Cell 2
have been well below the 20 pCilm2s standard set out in Criterion 6A.
6.2.3. Milestones and Schedule Commitments for Closure of a Conventional Impoundment
(i.e., a Tailings Impoundment), other than Cell 2
A conventional impoundment (i.e., tailings impoundment), other than Cell 2, may begin final closure at
any time, including while the Mill facility as a whole remains in operation as well as during or after final
Mill site decommissioning and closure. Once final closure of a conventional impoundment begins as
specified in Section 6.2.1 b) above, the final radon barrier for the impoundment shall be completed as
expeditiously as practicable thereafter considering technological feasibility (including taking into
consideration factors beyond the control of the licensee) in accordance with this Plan and the deadlines,
milestones and schedule commitments set out below:
(a) Interim Stabilization (Including Dewatering or the Removal of Freestanding Liquids and
Re-contouring) of the Tailings Impoundment.
i) Removal of Freestanding Liquid
Commencing on the date the impoundment begins final closure in accordance with Section
6.2.1 b) above, the addition of liquids to the tailings impoundment, other than by natural
3
precipitation, will cease, and free standing liquids will be allowed to dry out by natural
evaporation. To the extent reasonably practicable, and if excess evaporative capacity is
available in other cells in the tailings management system, the Mill will transfer solutions out
of the tailings impoundment and into other tailings impoundments and/or evaporation ponds
in order to enhance evaporation and removal of solutions from the impoundment. This item
must be completed within one year after the impoundment begins final closure. This deadline
is a milestone as required by Criterion 6A(l), and is subject to the provisions of Criterion
6A(2).
ii) Re-contouring
Re-contouring of the tailings impoundment, in accordance with Drawings and Attachment A
(Technical Specifications) of this Plan ("Re-contouring"), will commence upon removal of
freestanding liquids from the impoundment and must be completed within two years after the
impoundment begins final closure. This deadline is a milestone as required by Criterion
6A(l), and is subject to the provisions of Criterion 6A(2).
iii) Commencement of Dewatering
Dewatering of the impoundment shall commence upon completion of re-contouring of the
impoundment, and shall continue until the impoundment is dewatered as contemplated by
item 6.2.3(a)(vii) below. This deadline is a milestone as required by Criterion 6A(l), and is
subject to the provisions of Criterion 6A(2).
iv) Placement of Layer 1
Upon completion of re-contouring of the impoundment, EFRI will complete placement of
Layer 1 (Secondary Radon Attenuation and Grading Layer under the Proposed Cover Design
or Platform Fill under the Existing Cover Design, as applicable) on the impoundment, in
accordance with this Plan. This item must be completed within three years after the date the
impoundment begins final closure. This deadline is a milestone as required by Criterion
6A(l), and is subject to the provisions of Criterion 6A(2).
v) Placement of Layer 2 (Final Radon Barrier)
Upon EFRI being satisfied that there have been decreasing trends in settlement followed by a
maximum of 0.1 feet (30 mm) of cumulative settlement over 12 months (for at least 90
percent of the settlement monuments), or at such earlier time as EFRI may determine, EFRI
shall complete placement of Layer 2 (the Primary Radon Attenuation Layer under the
Proposed Cover Design or the Radon Barrier under the Existing Cover Design, as applicable)
on the impoundment. This item must be completed as expeditiously as practicable
considering technological feasibility (including factors beyond the control of the licensee),
but in any event within seven years after the impoundment begins final closure. This
deadline is a milestone as required by Criterion 6A(l), and is subject to the provisions of
Criterion 6A(2).
vi) Placement of Layer 3
After placement of Layer 2, EFRI will complete placement of Layer 3 (the Water
Storage/Biointrusion/Frost Protection/Secondary Radon Attenuation Layer under the
Proposed Cover Design or the Frost Barrier Layer under the Existing Cover Design, as
4
applicable) on the impoundment. Timing of commencement of this item will be at the
discretion of EFRI, and Layer 3 may be placed prior to or after completion of dewatering.
The schedule commitment for this item is to have it completed within the later of (A) seven
years after the impoundment begins final closure and (B) two years after completion of
placement of Layer 2 on the impoundment, or such later date as may be approved by the
Director. This item is not a milestone required under Criterion 6A(1) because it follows
placement of the final radon barrier and is not required for that action, and because there is a
separate milestone for dewatering. Instead, this item is included as a schedule commitment to
be achieved in order to ensure that the activity is completed in a timely manner. As this
schedule commitment is not a milestone it does not come under the specific provisions of
paragraph (2) of Criterion 6A. However, a general timeliness standard for completing this
activity is retained. EFRI must complete this activity in a timely way, and the Director has
the authority to take action if necessary in this regard.
vii) Completion of Dewatering
Dewatering shall be considered to be complete when, after the placement of Layer 2 and Layer
3 (if Layer 3 is placed prior to completion of dewatering) decreasing trends in settlement
followed by a maximum of 0.1 feet (30 mrn) of cumulative settlement over 12 months (for at
least 90 percent of the settlement monuments) have occurred. This item must be completed
within the later of (A) seven years after the impoundment begins final closure and (B) two
years after completion of placement of Layer 2 on the impoundment. This deadline is a
milestone as required by Criterion 6A(l), and is subject to the provisions of Criterion 6A(2).
viii)Placement of Layer 4 Under the Proposed Cover Design
Placement of Layer 4 under the Proposed Cover Design (Erosion Protection Layer) on the
impoundment will commence after the completion of dewatering (this item does not apply to
the Existing Cover Design). The schedule commitment for this item is to have it completed
within the later of (A) eight years after the impoundment begins final closure and (B) two
years after completion of placement of Layer 3 on the impoundment, or such later time as may
be approved by the Director. This item is not a milestone required under Criterion 6A(l),
because it follows placement of the final radon barrier and is not required for that activity.
Instead, this item is included as a schedule commitment to be achieved in order to ensure that
the activity is completed in a timely manner. As this schedule commitment is not a milestone
it does not come under the specific provisions of paragraph (2) of Criterion 6A. However, a
general timeliness standard for completing this activity is retained. EFRI must complete this
activity in a timely way, and the Director has the authority to take action if necessary in this
regard.
ix) Vegetative Cover
If the Cover Design, as approved by the Director in accordance with the procedures described
in the SCA and Section 5.0 of this Plan, is the Proposed Cover Design or otherwise calls for
vegetative cover on the impoundment, then revegetation of the cover will take place at the
completion of placement of Layer 4 (Erosion Protection Layer) on the impoundment, in
accordance with the revegetation plan set out in Appendix J to the Updated Cover Design
Report. All required seeding for re-vegetation will commence in the first available growing
season after the completion of placement of Layer 4 (Erosion Protection Layer) on the
impoundment, as determined by the Director, and will be completed by the end of such
growing season, or such later time as may be approved by the Director. This item is not a
5
milestone required under Criterion 6A(l), because it follows placement of the final radon
barrier and is not required for that activity. Instead, this item is included as a schedule
commitment to be achieved in order to ensure that the activity is completed in a timely
manner. As this schedule commitment is not a milestone it does not come under the specific
provisions of paragraph (2) of Criterion 6A. However, a general timeliness standard for
completing this activity is retained. EFRI must complete this activity in a timely way, and the
Director has the authority to take action if necessary in this regard.
x) Rock Armor
If the Cover Design, as approved by the Director in accordance with the procedures described
in the SCA and Section 5.0 of this Plan, is the Existing Cover Design or includes Layer 4
(Rock Armor) of the Existing Cover Design, then rock armor shall be placed on the tailings
impoundment, in accordance with Reclamation Plan 3.2b (Denison, 2011b). In addition, rock
armor is required for the exterior slopes of the impoundment under the Proposed Cover
Design. Such placement, will commence within one year after completion of dewatering on
the impoundment in accordance with Section 5.0 of this Plan, and will be completed within
180 days thereafter, or such later date as may be approved by the Director. This item is not a
milestone required under Criterion 6A(1), because it follows placement of the final radon
barrier and is not required for that activity. Instead, this item is included as a schedule
commitment to be achieved in order to ensure that the activity is completed in a timely
manner. As this schedule commitment is not a milestone it does not come under the specific
provisions of paragraph (2) of Criterion 6A. However, a general timeliness standard for
completing this activity is retained. EFRI must complete this activity in a timely way, and the
Director has the authority to take action if necessary in this regard.
(b) Leaving a Portion of an Impoundment Open for Disposal of On-site Generated Trash or
lle.(2) Byproduct Materia/from ISR Operations
The License authorizes a portion of a specified impoundment to accept uranium byproduct material
or such materials that are similar in physical, chemical, and radiological characteristics to the
uranium mill tailings and associated wastes already in the pile or impoundment, from other sources,
during the closure process, and on-site generated trash, provided that this does not result in a delay
or impediment to emplacement of the final radon barrier over the remainder of the impoundment in a
manner that will achieve levels of radon-222 releases not exceeding 20 pCi/m2s averaged over the
entire impoundment. Reclamation of the disposal area, as appropriate, must be completed in a
timely manner after disposal operations cease in accordance with paragraph (1) of Criterion 6A;
however, these actions are not required to be completed as part of meeting the deadline for final
radon barrier construction for the impoundment.
(c) Windblown Tailings Retrieval and Placement on the Impoundment
As the Mill facility as a whole may still be in operation at the time the impoundment is being
reclaimed, there may not be a need to retrieve any windblown tailings for placement on the
impoundment at the time of final closure of the impoundment. Those activities will be required
during final decommissioning of the entire Mill facility. Accordingly, the milestones associated
with those activities are set out in Section 6.2.5 below.
6
6.2.4. Milestones and Schedule Commitments for Closure of a Non-Conventional
Impoundment (e.g., an Evaporation Pond)
A non-conventional impoundment (e.g., an evaporation pond), may begin final closure at any time,
including while the Mill facility as a whole remains in operation as well as during or after final Mill site
decommissioning and closure. Once final closure of a non-conventional impoundment begins as
specified in Section 6.2.1 b) above, final closure of the impoundment shall be accomplished in accordance
with this Plan and the deadlines, milestones and schedule commitments set out below:
(a) Removal of Free-Standing Liquids from Evaporation Ponds
Commencing on the date the impoundment begins final closure in accordance with Section 6.2.1 b)
above, the addition of liquids to the impoundment, other than by natural precipitation, will cease,
and free standing liquids will be allowed to dry out by natural evaporation. To the extent
reasonably practicable, and if excess evaporative capacity is available in other conventional or non-
conventional impoundments in the tailings management system, the Mill will transfer solutions out
of the impoundment and into other impoundments in order to enhance evaporation and removal of
solutions from the impoundment. This item must be completed within five years after the
impoundment begins final closure. Although this deadline is not a milestone required under
Criterion 6A(l), because it is not linked to the placement of a final radon barrier in a non-
operational tailings impoundment, EFRI agrees that for purposes of this Plan it shall be treated as a
milestone as required by Criterion 6A(l), and as a result EFRI agrees that it will be subject to the
provisions of Criterion 6A(2).
(b) Removal of Liners, Sediments and any Contaminated Soils from Evaporation Ponds
Upon removal of the free-standing liquids from the impoundment, the licensee shall commence
removal of all liners, sediments and any contaminated soils from and under the impoundment and
dispose of such materials into one or more conventional impoundments. This item must be
completed within the earlier of (A) seven years after the impoundment begins final closure, and (B)
three years after the removal of all free-standing liquids from the impoundment. Although this
deadline is not a milestone required under Criterion 6A(l), because it is not linked to the placement
of a final radon barrier in a non-operational tailings impoundment, EFRI agrees that for purposes of
this Plan it shall be treated as a milestone as required by Criterion 6A(l), and as a result EFRI
agrees that it will be subject to the provisions of Criterion 6A(2).
6.2.5. Additional Milestone for Final Mill Closure
If the Mill facility as a whole has commenced final reclamation, as defined in this Plan, then the following
additional milestone shall apply after that time:
(a) Mill Demolition and Windblown Tailings Retrieval and Placement in a Tailings
Impoundment
Mill demolition and windblown tailings retrieval, as contemplated by Attachment A (Technical
Specifications) of this Plan and disposal into one or more tailings impoundments shall commence
upon commencement of final closure of the entire Mill site ("Mill Final Closure"), and shall be
completed within four years after commencement of Mill Final Closure. This deadline 1s a
milestone as required by Criterion 6A(l), and is subject to the provisions of Criterion 6A(2).
7
It should be noted that individual conventional and non-conventional impoundments may begin final
closure before, during or after commencement or completion of Mill Final Closure, and the decision to
begin final closure on any particular impoundment is not tied to Mill Final Closure. The milestones and
schedule commitments in Sections 6.2.3 and 6.2.4 above apply to final closure of conventional and non-
conventional impoundments once they begin final closure in accordance with Section 6.2.1(b) above,
whether during Final Mill Closure or otherwise. Further, as a tailings impoundment will be considered to
be in operation so long as it is receiving byproduct material, which includes Mill decommissioning
materials, windblown, slimes drain dewatering solutions etc., and an evaporation pond will be considered
to be in operation so long as it is required for evaporation or holding purposes, it is expected that one or
more tailings impoundments and evaporation ponds will continue in operation during all or part of the
Mill decommissioning process. One or more impoundments may also continue in operation for licensed
activities, such as direct disposal of lle.(2) byproduct material from In Situ Recovery uranium operations
or other licensed activities, after completion of Mill Final Closure.
6.2.6. Summary Table of Milestones
The following table summarizes all of the milestones required by or agreed to be subject to Criterion
6A(l), all of which are described in more detail above.
As the schedule commitments described in detail above are not milestones required under Criterion
6A(l), they are not included in the following table.
Milestone Reclamation Plan 5.1 Start End
Section Number
1. Milestones for Closure of an Individual Conventional Impoundment (Tailinl(s Impoundment) at any Time
1.1. Removal of Free 6.2.3(a)(i) Date final closure of the One year after
Standing Liquids impoundment begins in impoundment begins final
accordance with Section closure
6.2.1(b)
1.2. Re-contouring 6.2.3(a)(ii) Upon removal of free Two years after
standing liquids impoundment begins final
closure
1.3. Commencement 6.2.3(a)(iii) Upon completion of Re-NA
of Dewatering contouring
1.4. Placement of 6.2.3(a)(iv) Upon completion of re-Three years after
Layer 1 contouring impoundment begins final
(Secondary closure
Radon
Attenuation and
Grading Layer
under the
Proposed Cover
Design or
Platform Fill
under the
Existing Cover
Design, as
applicable)
8
Milestone Reclamation Plan 5.1 Start End
Section Number
1.5. Placement of 6.2.3(a)(v) Upon EFRI being As expeditiously as
Layer 2 (Final satisfied that there have practicable considering
Radon Barrier) been decreasing trends in technological feasibility
(the Primary settlement followed by a (including factors beyond
Radon maximum of 0.1 feet (30 the control of the
Attenuation mm) of cumulative licensee), but in any event
Layer under the settlement over 12 within seven years after
Proposed Cover months (for at least 90 impoundment begins final
Design or the percent of the settlement closure
Radon Barrier monuments), or at such
under the earlier time as EFRI may
Existing Cover determine
Design, as
applicable)
1.6. Completion of 6.2.3(a)(vii)) NA Within later of (A) seven
Dewatering years after impoundment
begins final closure and
(B) two years after
completion of placement
of Layer 2
2. Milestones for Closure of a Non-Conventional Impoundment (Evaporation Pond) at any Time
2.1. Removal of Free 6.2.4(a) Date final closure of the Five years after
Standing Liquids impoundment begins in impoundment begins final
accordance with Section closure
6.2.l(b)
2.2. Removal of 6.2.4(b) Upon removal of the Earlier of (A) seven years
Liners, free-standing liquids after the impoundment
Sediments and from the impoundment begins final closure, and
any (B) three years after the
Contaminated removal of all free-
Soils from standing liquids from the
Impoundment impoundment
3. Additional Milestone Applicable to Mill Final Closure
3.1. Mill Demolition 6.2.5(a) Upon commencement of Four years after
and Windblown Mill Final Closure Commencement of Mill
Tailings Final Closure
Retrieval and
Placement in a
Tailings
Impoundment
9
Appendix 3
Subpart W Preamble
Federal Register/Val. 82, No. 10/Tuesday, January 17, 2017 /Rules and Regulations 5143
2. What key comments did we receive on
conventional impoundments constructed
after December 15, 1989?
D. GACT for Heap Leach Piles
1. How did we address heap leach piles in
the proposed and final rules?
2. What key comments did we receive on
heap leach piles?
E. GACT for Non-Conventional
Impoundments
1. How did we address non-conventional
impoundments in the proposed and final
rules?
2. What key comments did we receive on
non-conventional impoundments?
F. Definitions, References and Conforming
Editorial Revisions
1. How did we address definitions,
references and conforming editorial
revisions in the proposed and final
rules?
2. What key comments did we receive on
definitions, references and conforming
editorial revisions?
V. Summary of Environmental, Cost and
Economic Impacts
A. What are the air impacts?
B. What are the cost and economic
impacts?
C. What are the non-air environmental
impacts?
VI. Statutory and Executive Orders Review
A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act
(UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation
G. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
H. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution or Use
I. National Technology Transfer and
Advancement Act (NTT AA)
J. Executive Order 12898: Federal Actions
To Address Environmental Justice in
Minority Populations and Low-Income
Populations
K. Congressional Review Act (CRA)
I. General Information
A. Executive Summary
1. Introduction
This final rule amends requirements
promulgated in 1989 under the Clean
Air Act to control emissions ofradon-
222 from operating structures used to
manage uranium byproduct material or
tailings 1 at uranium recovery facilities.
1 The EPA first defined the term "uranium
byproduct material or tailings" in 1986 (51 FR
34066). The 1986 and 1989 rulemakings were
primarily concerned with, but not limited to,
conventional mill tailings as the most significant
source of radon. We used the term "tailings"
throughout those rulemakings for simplicity,
reflecting that rulemaking emphasis. We
The rule does not apply to disposal of
uranium byproduct material or tailings.
The rule retains monitoring
requirements for certain uranium
byproduct material or tailings
impoundments in existence on or before
December 15, 1989 and establishes
generally available control technology
or management practices (GACT) for
other impoundments and heap leach
piles. This final rule completes the
EPA's obligation under the requirements
of CAA section 112(q)(1) to "review,
and if appropriate, revise" 40 CFR part
61, subpart W (hereafter Subpart W).
Uranium recovery and processing
currently occurs by one of three
methods: (1) Conventional milling; (2)
in-situ leach (ISL); and (3) heap leach.
A conventional uranium mill is a
chemical plant that extracts uranium
from ore that has typically been
obtained from an underground or open-
pit mine. The ore is crushed and the
uranium leached using chemical
solutions, concentrated into uranium
oxide (U30 8 or "yellowcake"), and
transported to a uranium conversion
facility to begin the processing into fuel
for nuclear reactors. Solid and liquid
wastes produced during this process are
called uranium byproduct material or
tailings. Uranium byproduct material or
tailings contains residual uranium,
radium and heavy metals. Radon-222 is
generated by the decay of radium-226.
As defined in this final rule,
conventional impoundments are used to
manage the mostly solid wastes from
processing. Non-conventional
impoundments, also known as
evaporation or holding ponds, are used
to manage process liquids and effluents.
Non-conventional impoundments may
accumulate sediments at the bottom as
solids contained in the liquids settle
out. Conventional impoundments are
permanent structures that require long-
term stewardship. Non-conventional
impoundments are typically removed at
facility closure and often placed into
conventional impoundments for
disposal. Non-conventional
impoundments are sometimes also
designed to be used as conventional
impoundments as needed.
ISL is often used when a uranium ore
body is in a formation through which
ground water flows. A liquid solution
containing chemicals can be injected
understand that this has contributed to the
impression among some stakeholders that Subpart
W cannot apply to materials other than the mostly
solid wastes resulting from conventional milling
that are managed, and ultimately disposed, in
permanent impoundments. We are reiterating in
this action that the term "uranium byproduct
material or tailings" more broadly defines the
materials that are subject to Subpart W.
into the formation to mobilize the
uranium into solution, which is then
recovered and processed. Process
liquids and effluents from ISL are
managed in non-conventional
impoundments. ISL is now the
predominant form of uranium recovery
in the United States.
Heap leaching is a method of
processing that is expected to be used
for low-grade ore or in other situations
where it is economically favorable.
During heap leaching a pile of ore is
sprayed with a chemical solution and
uranium leaches into solution. The
uranium solution is collected at the
bottom of the pile and further
processed. At the end of processing, the
heap leach pile may be closed in place
(typically by being covered), or removed
and placed in a conventional
impoundment. Process liquids and
effluents are managed in non-
conventional impoundments. At the
time of this rulemaking, there are no
heap leach facilities in the United
States, although one such facility is
planned.
There is currently one operating
conventional mill in the United States,
the White Mesa Mill in Utah. Two other
conventional mills remain on standby,
the Shootaring Canyon Mill in Utah and
the Sweetwater Mill in Wyoming. There
are six operating ISL facilities: Crow
Butte in Nebraska; Smith Ranch, Lost
Creek, Nichols Ranch, Willow Creek
(which includes the Irigary and
Christensen Ranch wellfields) and Ross
CPP, all in Wyoming. Four other ISL
facilities have operated and are now in
standby. They are Alta Mesa, Kingsville
Dome,2 Rosita and Hobson/La
Palangana, all located in Texas. These
facilities are subject to the requirements
of Subpart W. There are no heap leach
facilities operating or on standby.
Future heap leach facilities, as well as
conventional mills and ISL facilities
that have been or are being licensed,
will be subject to Subpart W when they
begin operating.
Subpart W was initially promulgated
in 1986 and amended pursuant to a
voluntary remand in 1989. For CAA
section 112 standards that were in effect
before November 15, 1990, CAA section
112(q)(1) requires the EPA to review,
and, if appropriate, revise such
standards to comply with the
requirements of subsection (d). As a
result ofthis review, we are
promulgating this final rule pursuant to
2 Operating permits at the Kingsville Dome
facility have lapsed and may not be renewed;
however, because there are still uranium resources
that could be exploited, Kingsville Dome is
considered to be on standby for purposes of this
discussion.
5144 Federal Register/Val. 82, No. 10/Tuesday, January 17, 2017 /Rules and Regulations
CAA sections 112(q) and 112(d) and
setting standards that comply with the
requirements of CAA section 112(d)(5).
CAA section 112(d)(5) addresses
standards for area sources and provides
that section 112(d) standards for area
sources may provide for the use of
GACT by the affected area sources.
Subpart W regulates facilities and
materials that are also regulated under
the authority of the Uranium Mill
Tailings Radiation Control Act of 1978
(UMTRCA). UMTRCA directed the EPA
to establish standards of general
application to protect public health,
safety and the environment from
hazards associated with wastes from
extraction or concentration of uranium
or thorium. The Nuclear Regulatory
Commission (NRC) implements and
enforces the EPA's standards through its
licensing and regulatory program. By
establishing requirements to control
radon emissions from uranium
byproduct material or tailings during
the facility's operational period, Subpart
W supports and works in harmony with
the NRC's UMTRCA-based provisions
that limit radon concentrations at the
site boundary.
2. Provisions ofthe 1989 Rule
When promulgated in 1989, Subpart
W established monitoring requirements
and work practices as methods to
control radon emissions from
impoundments used to manage uranium
byproduct material or tailings (51 FR
51654, December 15, 1989). Existing
impoundments (those operating as of
December 15, 1989) were required to
comply with a radon flux standard of 20
pCilm2-sec, monitored using Method
115. New impoundments built after
December 15, 1989 were required to be
operated in accordance with the
provisions of 40 CFR 192.32(a) and be
designed to meet one of two work
practices:
• Phased disposal in impoundments
no larger than 40 acres in area, with no
more than two such impoundments
operating at any one time; or
• Continuous disposal of tailings
such that tailings are dewatered and
immediately disposed with no more
than 10 acres of tailings exposed at any
one time.
All impoundments were required to
be operated to comply with the
requirements of 40 CFR 192.32(a),3
3 40 CFR 192.32(a) includes six elements, which
apply during processing and prior to the end of the
closure period: (1) Construction of impoundments
in conformance with the requirements of 40 CFR
264.221; (2) conformance to the groundwater
protection standards in 40 CFR 264.92 and related
sections; (3) placement of a permanent radon barrier
on nonoperational impoundments; (4)
notwithstanding the exemption in
§ 192.32(a)(1) for impoundments
constructed prior to the promulgation of
40 CFR part 192. This provision was
incorporated to ensure that older
impoundments were equipped with
liners capable of retaining liquids
within the impoundment and
monitoring systems capable of detecting
leakages. Leaks could allow the contents
of the impoundment to dry out and
increase radon emissions. As originally
promulgated in 1986, Subpart W
envisioned that older impoundments
would not be in use beyond December
31, 1992 unless granted an exemption or
extension. Such impoundments were
not required to comply with the
provisions of 40 CFR 192.32(a). The
1989 rulemaking eliminated the
prohibition on using existing
impoundments beyond December 31,
1992 and required older impoundments
to comply with the requirements at 40
CFR 192.32(a) (51 FR 34066, September
24, 1986 and 54 FR 51680, December 15,
1989).
3. Provisions ofthe Final Rule
This final rule defines and establishes
GACT-based standards for conventional
and non-conventional impoundments
and heap leach piles; in doing so, the
final rule clarifies the applicability of
the 1989 rule to these different types of
units and distinguishes among them.
The final rule retains the radon flux
standard and monitoring requirements
for conventional impoundments in
existence on December 15, 1989, and
retains the provision that extended the
construction requirements in 40 CFR
192.32(a)(1) to these conventional
impoundments. The final rule also
formalizes the 1989 management
practices as GACT -based standards for
conventional impoundments
constructed after December 15, 1989,
with limited changes to the 1989
standard-the final rule focuses the
cross-reference regarding the
impoundment construction
requirements to 40 CFR 192.32(a)(1),
instead of a more broad reference to 40
CFR 192.32(a) and removes the phrase
"as determined by the Nuclear
Regulatory Commission." In addition,
the final rule establishes GACT -based
standards for non-conventional
demonstration that the permanent radon barrier
limits radon releases to no greater than 20 pCi/m2.
sec; (5) conformance to the requirements of 40 CFR
part 190 and 40 CFR part 440; and (6) maintenance
by NRC of public doses from radon emissions as far
below the Federal Radiation Protection Guidance as
practicable. Only§ 192.32(a)(1) is directly relevant
to the goals of Subpart W, which in turn facilitate
NRC in achieving§ 192.32(a)(6).
impoundments and heap leach piles, as
follows:
• Non-conventional impoundments
must maintain solid materials in a
saturated condition, with no solid
materials visible above the level of
liquid in the impoundment;
• Heap leach piles that have
completed their operational life but not
yet entered closure are limited to no
more than two such piles with an area
no greater than 40 acres each; and
• Conformance to the construction
requirements in 40 CFR 192.32(a)(1).
The final rule changes some existing
definitions and adds several new
definitions. The amended definition of
"operation" is finalized as proposed.
The definitions of "continuous
disposal," "dewatered," "existing
impoundment," and "phased disposal"
are amended to conform to the amended
definition of "operation." New
definitions of "standby," "conventional
impoundment,'' ''non-conventional
impoundment," "heap leach pile,"
"heap leach pile operational life," and
"uranium recovery facility" are also
being finalized as proposed. New
definitions of "final closure" and
"reclamation plan" are added to the
final rule to clarify when Subpart W no
longer applies to an impoundment or
heap leach pile.
4. Key Changes to the Proposal
The proposed rule contained several
provisions that are modified in the final
rule in response to public comments.
We proposed to eliminate the radon flux
standard and monitoring requirement
for impoundments in existence on
December 15, 1989. We believed this
was appropriate based on information
that indicated that the remaining
impoundments in this category could
comply with the GACT-based
management practices. Information
received through public comments
demonstrated that the assumptions that
supported our proposal were not correct
and also that the pre-1989 unit that was
expected to close (Cell 3 at the White
Mesa Mill) remains open. Therefore, the
final rule retains the radon flux standard
and monitoring requirement for
conventional impoundments in
existence on December 15, 1989.
We proposed that non-conventional
impoundments maintain one meter of
liquid above any solid materials in the
impoundment. Our analyses indicate
that liquids effectively attenuate radon
emissions, and that one meter of liquid
would reduce the radon emissions by
greater than 99%, to a level nearly
indistinguishable from background.
Based on public comment regarding
feasibility and cost associated with the
Federal Register/Val. 82, No. 10/Tuesday, January 17, 2017 /Rules and Regulations 5145
water demand to maintain the liquid
level in the impoundment, the final rule
requires only that solid materials remain
saturated. Saturation will effectively
reduce radon emissions by
approximately 95% compared to dry
uranium byproduct material or tailing.
The water demand to maintain
saturation should also be considerably
reduced compared to the proposal.
We proposed that heap leach piles be
regulated under Subpart W from the
time they begin processing (i.e., at the
time the leaching solution is first
applied), because uranium byproduct
material or tailings begins to be
generated at that time. We proposed
they be limited in size (40 acres) and
number (no more than two operating at
any one time), and maintain a 30%
moisture content to reduce radon
emissions. Based on public comment,
the final rule provides that heap leach
piles become subject to Subpart W once
they have finished their operational life,
when their sole purpose is to manage
uranium byproduct material or tailings.
As commenters pointed out, this is
consistent with the approach we have
taken for conventional mills, where
waste material that has been separated
from the recovered uranium has not
been regulated under Subpart W until it
leaves the processing unit and is
deposited in an impoundment. Further,
Subpart W will only apply to post-
processing heap leach piles until they
enter the closure process. The final rule
retains the proposed area and number
limitations on piles that are between
processing and closure.
5. Economic Impacts
This final rule will have limited
economic impact. No new requirements
are placed on conventional
impoundments. Further, impacts
associated with non-conventional
impoundments and heap leach piles
will be less than those estimated for the
proposed rule. Operators of non-
conventional impoundments and heap
leach piles will not incur additional cost
related to liners, which are required by
other regulations. Operators of non-
conventional impoundments will be
required to maintain liquids in the
impoundment such that no solids are
visible above the liquid level. In
addition, operators of heap leach
facilities can reduce the period of time
they are subject to Subpart W and thus
reduce compliance costs by
expeditiously beginning the closure
process after the operational life of the
pile has ended, and we encourage
timely closure in all cases.
Table 1 presents a summary of the
unit cost (per pound of U30sl for
implementing each GACT-based
standard at each of the three types of
uranium recovery facilities. In addition
to presenting the GACT costs
individually, Table 1 presents the total
unit cost to implement all relevant
GACT-based standards at each type of
facility. Table 1 shows that a
conventional mill will have both
conventional and non-conventional
impoundments, and be required to
maintain saturation in the non-
conventional impoundments.
TABLE 1-FINAL GACT-BASED STANDARDS COSTS PER POUND OF U30 8
GACT -Double Liners for Conventional Impoundments • ........................................................ ..
GACT -Double Liners for Non-conventional Impoundments • ................................................. ..
GACT -Maintaining Non-conventional Impoundment Sediments 100% Saturated .................. .
GACT -Liners for Heap Leach Piles • ...................................................................................... ..
GACTs-Total for All Four ......................................................................................................... .
Baseline Facility Costs •• (EIA Section 6.2) ............................................................................... .
*Liners required by 40 CFR part 192.
•• Based on a price of U30a of $55/lb.
Based on the information in Table 1,
the four GACT -based standards
represent about 4%, 6%, and 5% of the
baseline cost (per pound of U30 8) at
conventional, ISL, and heap leach
uranium recovery facilities,
respectively. The table shows that, at a
market price of $55 per pound, the
baseline facility costs for a conventional
mill are greater than the market price of
uranium. However, since the liner
requirements would have to be met
under 40 CFR part 192, these costs are
not actually being imposed by Subpart
W. The only cost associated with the
final rule is the cost of maintaining
saturation in the non-conventional
impoundments, which is minimal.
6. Public Engagement
During development of the proposed
rule and throughout the public
comment period, the EPA engaged with
stakeholders and sought public input.
Subsequent to beginning the rulemaking
process, the EPA entered into a
settlement agreement in August 2009
with Colorado Citizens Against Toxic
Waste (CCAT) and Rocky Mountain
Clean Air Action. As part of the
settlement agreement, the EPA agreed
to:
• Provide three public presentations
and a national webinar on the
rulemaking;
• Conduct quarterly stakeholder
conference calls on the status of the
rulemaking; and
• Create a public Web site and post
non-privileged records.
The EPA conducted public
presentations in June 2009 in Canon
City, Colorado, near the Cotter Mill; in
October 2009 in Rapid City, South
Dakota, in conjunction with the Western
Mining Action Network's semi-annual
Conventional
mills
$1 .04
1.04
0.015
2.09
55.18
Unit cost
($/lb U30a)
ISL facilities
3.07
0.026
3.09
51.31
Heap leach
0.22
0.0013
2.01
2.24
45.06
conference; and in May 2010 on lands
of the Ute Mountain Ute Tribe in
southeastern Utah, near the White Mesa
Mill. The EPA also presented a national
webinar in June 2010. Records of EPA's
quarterly stakeholder calls and non-
privileged records regarding this
Subpart W rulemaking are available at
the following public Web site: https:/1
www.epa.gov/radiation/subpart-w-
rulemaking-activity.
In addition to the presentations
specified in the settlement agreement,
the EPA conducted presentations at
numerous industry-sponsored events,
particularly the annual uranium
recovery workshop sponsored by the
NRC and the National Mining
Association (NMA). Beginning in 2009,
the EPA provided regular updates on
the Subpart W rulemaking at these
annual workshops. The EPA also
provided a presentation for NMA
5146 Federal Register/Val. 82, No. 10/Tuesday, January 17, 2017/Rules and Regulations
officials in October 2009 and
participated in NRC's uranium recovery
licensing workshop in January 2011.
The EPA also actively sought
interactions with tribal stakeholders.
Several current or proposed uranium
recovery facilities are of interest to
tribes. The White Mesa Mill is located
just north of Ute Mountain Ute lands in
southeastern Utah. The Oglala Sioux
Tribe has been active in the renewal of
the operating license for the Crow Butte
ISL facility in northwestern Nebraska
and the initial licensing of the proposed
Dewey-Burdock ISL facility in
southwestern South Dakota. The Navajo
Nation has been active in the
development of proposed ISL facilities
in New Mexico.
The EPA conducted presentations at
the Uranium Contamination
Stakeholder Workshops in 2009 and
2010 in Gallup, New Mexico and Tuba
City, Arizona, respectively. In addition
to the presentations, the EPA also held
discussions with representatives from
the Navajo EPA and the Hopi Tribe. In
June 2014, after the proposed rule was
published, the EPA gave a presentation
for the National Tribal Air Association
(NTAA) on the monthly NTAA/EPA
policy call.
Concurrent with issuance of the 2014
proposed rule, the EPA sent letters to 53
tribal leaders offering consultation on
the rule, consistent with the EPA's
"Policy on Consultation and
Coordination with Indian Tribes."
Consultation is a process of meaningful
communication and coordination
between the EPA and tribal officials
prior to the EPA taking actions or
implementing decisions that may affect
tribes. The Ute Mountain Ute Tribe
responded and requested a formal
consultation. The consultation was held
in July 2014 between officials of the
EPA's Office of Radiation and Indoor
Air in Washington, DC and officials
from EPA Region 8 and the Tribe at
Tribal headquarters in Towaoc,
Colorado (Docket No. EPA-HQ-OAR-
2008-0218-0120).
The EPA has also met with individual
stakeholder groups. Prior to publication
of the proposed rule, the EPA met with
representatives from CCAT, Uranium
Watch, and the Sheep Mountain
Alliance. Following publication of the
proposed rule, the EPA met with the
Southern Environmental Law Center.
Concurrent with public hearings in
September 2014, the EPA met with
representatives from CCAT and the
Energy Minerals Law Center. Following
the public comment period, in
November 2014 the EPA met with
representatives from Uranium Watch
and the Information Network for
Responsible Mining (INFORM).
B. Does this action apply to me?
The regulated categories and entities
potentially affected by the final
standards are shown below in Table 2:
TABLE 2-INDUSTRIAL SOURCE CATEGORIES AFFECTED BY THIS FINAL ACTION
Category NAICS code 1 Examples of regulated entities
Industry:
Uranium Ores Mining and/or Beneficiating
Leaching of Uranium, Radium or Vanadium Ores ............ ..
212291 Area source facilities that extract or concentrate uranium from
any ore processed primarily for its source material content.
212291 Area source facilities that extract or concentrate uranium from
any ore processed primarily for its source material content.
1 North American Industry Classification System.
This table is not intended to be
exhaustive, but rather provides a guide
for readers regarding entities likely to be
affected by this final action. If you have
any questions regarding the
applicability of this action to a
particular entity, consult either the air
permit authority for the entity or your
EPA regional representative as listed in
40 CFR 61.04 of subpart A (General
Provisions).
C. Where can I get a copy of this
document and other related
information?
In addition to being available in the
docket, an electronic copy of this final
action will also be available on the
Internet. Following signature, a copy of
this final action will be posted at the
following address: https:/ /www.epa.gov/
radiation/subpart-w-national-emission-
standards-radon-emissions-operating-
mill-tailings. Following publication in
the Federal Register, the EPA will post
the Federal Register version and key
technical documents at this same Web
site.
D. Judicial Review and Administrative
Reconsideration
Under CAA section 307(b)(1), judicial
review of this final action is available
only by filing a petition for review in
the United States Court of Appeals for
the District of Columbia Circuit by
March 20, 2017. Under CAA section
307(b)(2), the requirements established
by this final rule may not be challenged
separately in any civil or criminal
proceedings brought by the EPA to
enforce the requirements.
Section 307(d)(7)(B) of the CAA
further provides that "[o]nly an
objection to a rule or procedure which
was raised with reasonable specificity
during the period for public comment
(including any public hearing) may be
raised during judicial review." This
section also provides a mechanism for
the EPA to reconsider the rule "[i]fthe
person raising an objection can
demonstrate to the Administrator that it
was impracticable to raise such
objection within [the period for public
comment] or if the grounds for such
objection arose after the period for
public comment (but within the time
specified for judicial review) and if such
objection is of central relevance to the
outcome of the rule." Any person
seeking to make such a demonstration
should submit a Petition for
Reconsideration to the Office of the
Administrator, U.S. EPA, Room 3000,
EPA WJC West Building, 1200
Pennsylvania Ave. NW., Washington,
DC 20460, with a copy to both the
person(s) listed in the preceding FOR
FURTHER INFORMATION CONTACT section,
and the Associate General Counsel for
the Air and Radiation Law Office, Office
of General Counsel (Mail Code 2344A),
U.S. EPA, 1200 Pennsylvania Ave. NW.,
Washington, DC 20460.
II. Background
A. What is the Agency's legal authority
for taking this action?
Section 112(q)(1) of the Clean Air Act
(CAA) requires that NESHAPs "in effect
before the date of enactment of the
Clean Air Act Amendments of 1990
[Nov. 15, 1990] ... shall be reviewed
and, if appropriate, revised, to comply
with the requirements of subsection (d)
of ... section [112]." The EPA
promulgated 40 CFR part 61, subpart W,
"National Emission Standards for Radon
Emissions from Operating Mill
Federal Register/Val. 82, No. 10/Tuesday, January 17, 2017/Rules and Regulations 5147
Tailings," (Subpart W) on December 15,
1989.4 The EPA conducted this review
of Subpart W under CAA section
112(q)(l).
Section 112(d) of the CAA requires
the EPA to establish emission standards
for major and area sources. A major
source is any stationary source that
emits or has the potential to emit 10
tons per year (tpy) or more of any single
HAP or 25 tpy or more of any
combination of HAPs. An area source is
a stationary source of HAP that is not a
major source. For operating uranium
byproduct material or tailings
impoundments, the HAP of concern is
radon-222 (hereafter referred to as
"radon" or Rn-222). Radon emissions
from operating uranium recovery
facilities are far below the statutory
thresholds 5 and EPA has not set
alternative criteria for identifying major
sources of radionuclide emissions; thus,
all sources regulated under Subpart W
are area sources (EP A-HQ-OAR-2008-
0218-0001, 0002). See Section IV.A.2.
Section 112(q)(l) does not dictate how
the EPA must conduct its review of
those NESHAPs issued prior to 1990.
Rather, it provides that the Agency must
review, and, if appropriate, revise the
standards to comply with the
requirements of section 112(d).
Determining what revisions, if any, are
appropriate for these NESHAPs is best
assessed through a case-by-case
consideration of each NESHAP. As
explained below, in this case, we have
reviewed Subpart W and are revising
the standards consistent with section
112(d)(5), which addresses standards for
area sources. After our review, we
determined it was appropriate to revise
Subpart W to clarify the applicability of
the rule to non-conventional
impoundments and heap leach piles
and promulgate standards that are more
appropriate for controlling radon
emissions at those sources, consistent
with the requirements of CAA section
112(d)(5). All units regulated by Subpart
W are area sources and we determined
that promulgating GACT-based
4 On April 26, 2007, Colorado Citizens Against
Toxic Waste (CCAT) and Rocky Mountain Clean Air
Action filed a lawsuit against EPA (EPA-HQ-OAR-
2008-0218-0013) for EPA's alleged failure to
review and, if appropriate, revise NESHAP Subpart
Wunder CAA section 112(q)(1). A settlement
agreement was entered into between the parties in
November 2009 (EPA-HQ-OAR-2008-0218-0020,
0021).
5 Annual emissions of radon from a 40-acre
impoundment, assuming a radon flux of 20 pCi/m2-
sec, can be calculated to be approximately 2.5 Ci.
The specific activity ofradon is about 150,000 Ci/
g. Reasonably anticipated emissions from sources
subject to Subpart W do not approach the 10 tpy
threshold established in CAA § 112(a)(1) to define
major sources.
standards under CAA section 112(d)(5)
is appropriate for these sources.
For area sources, the Administrator
has the discretion under CAA section
112(d)(5) to set standards based on
GACT in lieu of maximum achievable
control technology (MACT) under
sections 112(d)(2) and (d)(3), which is
required for major sources. Under CAA
section 112(d)(5), the Administrator
may elect to promulgate standards or
requirements for area sources "which
provide for the use of generally
available control technologies or
management practices by such sources
to reduce emissions of hazardous air
pollutants." Consistent with section
112(d)(5), we are revising Subpart W to
reflect GACT-based standards.
B. What source category is affected by
the final rule?
The source category regulated under
Subpart W, first defined in 1986, is
facilities licensed to manage uranium
byproduct material during and
following the processing of uranium
ores, commonly referred to as uranium
mills and their associated tailings.
Licenses are issued by the U.S. Nuclear
Regulatory Commission (NRC) or NRC
Agreement States. As promulgated in
1986 and 1989, Subpart W defines
"uranium byproduct material or
tailings" as "the waste produced by the
extraction or concentration of uranium
from any ore processed primarily for its
source material content." 6 Neither of
these definitions is affected by this
action. For clarity, in this action we
refer to this source category by the term
"uranium recovery facilities," and we
are adding this phrase to the definitions
section of the rule. Use of this term
encompasses the existing universe of
facilities whose HAP emissions are
currently regulated under Subpart W.
Uranium recovery facilities process
uranium ore to extract uranium. The
HAP emissions from any type of
uranium recovery facility that manages
uranium byproduct material or tailings
are subject to regulation under Subpart
W. This currently includes three types
"Pursuant to the Atomic Energy Act of 1954, as
amended, the Nuclear Regulatory Commission
defines "source material" as "(1) Uranium or
thorium or any combination of uranium or thorium
in any chemical or physical form; or (2) Ores that
contain, by weight, one-twentieth of one percent
(0.05 percent), or more, of uranium or thorium, or
any combination of uranium or thorium" (10 CFR
20.1003). For a uranium recovery facility licensed
by the Nuclear Regulatory Commission under 10
CFR part 40, "byproduct material" means the
"tailings or wastes produced by the extraction or
concentration of uranium or thorium from ore
processed primarily for its source material content,
including discrete surface wastes resulting from
uranium solution extraction processes" (10 CFR
20.1003 and 40.4).)
of uranium recovery facilities: (1)
Conventional uranium mills; (2) ISL
facilities; and (3) heap leach facilities.
Subpart W requirements specifically
apply to the affected sources at the
uranium recovery facilities that are used
to manage or contain the uranium
byproduct material or tailings. Common
names for these structures may include,
but are not limited to, impoundments,
tailings impoundments, tailings piles,
evaporation or holding ponds, and heap
leach piles. However, the name itself is
not important for determining whether
Subpart W requirements apply to that
structure; rather, applicability is based
on what these structures contain and the
use of these structures to manage or
contain uranium byproduct material or
tailings.
C. How does Subpart W regulate HAP
emissions from the source category?
Subpart W was initially promulgated
on September 24, 1986 (51 FR 34056)
and amended pursuant to a voluntary
remand on December 15, 1989 (54 FR
51654). At the time of promulgation in
the 1980s, the predominant form of
uranium recovery was through the use
of conventional mills. As promulgated
in 1989, Subpart W contained two
separate standards. The first standard
applied to "existing" impoundments,
i.e., those in existence and licensed by
the NRC (or its Agreement States) on or
prior to December 15, 1989. Owners or
operators of existing tailings
impoundments were required to ensure
that emissions from those
impoundments did not exceed a radon
(Rn-222) flux standard of 20 picocuries
per meter squared per second (pCi/m2-
sec). As stated at the time of
promulgation: "This rule will have the
practical effect of requiring the mill
owners to keep their piles wet or
covered" (54 FR 51689). Keeping the
piles (impoundments) wet or covered
with soil would reduce radon emissions
to a level that would meet the standard.
This is still considered an effective
method to reduce radon emissions at all
uranium byproduct material or tailings
impoundments.
The method for monitoring for
compliance with the radon flux
standard was prescribed as Method 115,
found at 40 CFR part 61, Appendix B.
The owners or operators of existing
impoundments were required to report
to the EPA the results of the compliance
testing for any calendar year by no later
than March 31 of the following year.
There is currently one operating mill
with impoundments that pre-date
December 15, 1989, and two mills that
are currently in standby mode. All of
5148 Federal Register/Val. 82, No. 10/Tuesday, January 17, 2017 /Rules and Regulations
these impoundments are subject to
Subpart W until they begin closure.
The second standard applied to
"new" impoundments constructed after
December 15, 1989. The requirements
applicable to new impoundments were
work practice standards that regulated
either the size and number of
impoundments, or the amount of
tailings that may remain uncovered at
any time. After December 15, 1989, "no
new tailings impoundment can be built
unless it is designed, constructed and
operated to meet one of the following
two work practices:
1. Phased disposal in lined tailings
impoundments that are no more than 40
acres in area and meet the requirements
of 40 CFR 192.32(a) as determined by
the Nuclear Regulatory Commission.
The owner or operator shall have no
more than two impoundments,
including existing impoundments, in
operation at any one time.
2. Continuous disposal of tailings
such that tailings are dewatered and
immediately disposed with no more
than 10 acres uncovered at any time and
operated in accordance with § 192.32(a)
as determined by the Nuclear
Regulatory Commission."
The basis of the work practice
standards was to (1) limit the size of the
impoundment, which limits the radon
source; or (2) use the continuous
disposal system, which prohibits large
accumulations of dewatered uncovered
uranium byproduct material or tailings,
limiting the amount of radon released.
D. What changes to Subpart W did we
propose?
Pursuant to CAA Section 112(d)(5), in
the May 2, 2014 notice we proposed
GACT-based standards for the affected
sources at conventional uranium mills,
ISL facilities and heap leach facilities.
Subpart W has always applied to these
sources; however, given the evolution of
uranium recovery facilities over the last
20 years, we thought it appropriate to
revise Subpart W to tailor the
requirements of the NESHAP to the
different types of facilities in existence
at this time and reaffirm Subpart W's
applicability to these facilities. For the
conventional impoundments the GACT-
based standards were based upon the
requirements established in 1989. We
also proposed to revise Subpart W to
add appropriate definitions, standards
and other requirements that are more
applicable to HAP emissions at these
different types of uranium recovery
facilities. Specifically, we proposed to:
• Remove monitoring requirements
for impoundments constructed prior to
December 15, 1989 and to have these
"existing" impoundments demonstrate
compliance with the proposed GACT-
based standards;
• clarify that any impoundment at a
uranium recovery facility that contained
uranium byproduct materials or tailings
is regulated under Subpart W and
subject to the liner requirements
referenced at 40 CFR 192.32(a)(1),
including "evaporation" or "holding"
ponds;
• establish as GACT-based standards
that these "non-conventional" or liquid-
holding impoundments meet the design
and construction requirements of 40
CFR 192.32(a)(1), with no size/area
restriction or monitoring requirement,
and that during the active life of the
pond at least one meter of liquid be
maintained in the pond;
• establish as GACT-based standards
that heap leach piles meet the phased
disposal management practice standard
(which limits an owner/operator to no
more than two operating heap leach
piles of no more than 40 acres each at
any time) and the design and
construction requirements at 40 CFR
192.32(a)(1) as GACT-based standards,
and maintain minimum moisture
content of 30%;
• add a definition of "standby" to
clarify the term and how it relates to the
operational phase of an impoundment;
• amend the definition of "operation"
of an impoundment so that it is clear
when the owner or operator is subject to
the requirements of Subpart W;
• add definitions of "conventional
impoundment,'' "non-conventional
impoundment," "heap leach pile,"
"uranium recovery facility" and "heap
leach pile operational life" to be
consistent with the GACT-based
standards;
• determine whether Subpart W
adequately addresses protection from
extreme weather events;
• revise 40 CFR 61.252(b) and (c) to
accurately reflect that it is only 40 CFR
192.32(a)(1) that is applicable to Subpart
W;and
• remove the phrase "as determined
by the Nuclear Regulatory Commission"
in 40 CFR 61.252(b)(1) and (2).
E. Comments on the Proposed Rule
The public comment period began on
May 2, 2014 and was originally
proposed to end on July 31, 2014. The
comment period was extended by
public request until October 29, 2014.
We held two days of public hearings in
Denver, CO on September 4 and 5, 2014.
During the public comment period for
the proposed rule, the EPA met with
tribal leaders from the Ute Mountain
Ute Tribe, consistent with the "EPA
Policy on Consultation and
Coordination with Indian Tribes"
(http:/ /www.epa.gov/tribal/forms/
consultation-and-coordination-tribes).
The consultation was held on July 10,
2014. The Tribe had numerous
comments regarding the White Mesa
uranium mill. Tribal land is several
miles from the mill. The mill is the only
operating conventional mill in the
country, and the Tribe presented
valuable information and comments for
the rulemaking. The Tribe also raised
enforcement issues that are concerns for
the State of Utah and the EPA Region 8
office, but are not relevant to this
rule making. The EPA has delegated to
the State of Utah authority for
implementation and enforcement of
Subpart W (60 FR 13912, March 15,
1995).
The EPA received approximately 45
separate sets of comments on the
proposed rule, including multiple
submittals by the same author(s). The
comments range in size from one page
to several hundred pages, and in many
cases contain dozens of individual
comments. All told the EPA identified
over 4,000 individual comments. A
mass mailer that contains over one
thousand signatures is also in the docket
for this rulemaking (Docket No. EPA-
HQ-DAR-2008-0218). The docket also
includes the transcripts of the two
public hearings held in Denver, CO on
September 4 and 5, 2014. All of the
comments received are in the docket for
this rulemaking. All comments can be
accessed electronically through the
Federal Document Management System
(FDMS), available at http://
www.regulations.gov. This Web site
provides instructions on how to access
the electronic docket. Some submittals
may be duplicated in FDMS, as a
commenter may have used several
methods to ensure the comments were
received, such as statement at a public
hearing, fax, email, U.S. mail, or directly
through FDMS.
There are two primary mechanisms by
which we explain the issues raised in
public comments and our reactions to
them. First, we discuss broad or major
comments in the following sections of
this document. Second, we are
including in the docket a document,
accompanying this action, entitled
"Summary of Public Comments and
Responses." The Response to Comments
document addresses all other significant
comments on the proposal. We gave all
the relevant comments we received,
whether written or oral, consideration
in developing the final rule.
III. What final amendments are we
issuing with this action?
This action finalizes the EPA's
determinations pursuant to its review of
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Subpart Wunder CAA section 112(q)(1)
to "review, and if appropriate, revise"
NESHAPs promulgated prior to
November 15, 1990. After review of the
comments we determined that
commenters provided reasons and
presented information supporting
revision to certain aspects of the
proposed rule. In this section we
describe the final amendments to
Subpart W for this action and identify
revisions made to the proposed rule in
response to comments.
A. Application of Generally Available
Control Technologies (GACT) to
Uranium Recovery Facilities
We determined that the management
practices promulgated in 1989 for
conventional impoundments
constructed after December 15, 1989
remain suitable for controlling radon
from uranium byproduct material or
tailings. We also concluded that these
management practices qualify as
elements of GACT-based standards for
these impoundments. We further
determined that there are management
practices which constitute generally
available control technologies that could
be applied to non-conventional
impoundments and heap leach piles.
The final rule establishes the following
elements as GACT-based standards for
conventional impoundments
constructed after December 15, 1989,
non-conventional impoundments and
heap leach piles:
• Construction of all impoundments
containing or managing uranium
byproduct material in accordance with
the requiTements in 40 CFR 192.32(a)(1);
• Operation of conventional
impoundments in accordance with
either the phased disposal or
continuous disposal method;
• Operation of non-conventional
impoundments such that solid materials
in the impoundment are not visible
above the liquid level, to be verified by
daily visual inspection and documented
by digital photograph no less frequently
than weekly; and
• Maintenance of heap leach piles
that have completed their operational
life but have not yet entered closure in
accordance with the phased disposal
method (piles no larger than 40 acres in
area and no more than two such piles
at any time).
For conventional impoundments
constructed before December 15, 1989,
we retained the radon flux standard
originally promulgated in 1989, and
retained the requirement that the
impoundments comply with the
construction requirements in 40 CFR
192.32(a)(1), notwithstanding the
exemption in § 192.32(a)(1) for
impoundments constructed prior to the
promulgation of 40 CFR part 192.
B. Definitions, References and
Conforming Editorial Revisions
We are making revisions to several
existing definitions and references,
deleting a phrase and providing several
new definitions. These revisions are:
• The definition of "operation" is
revised as proposed;
• The definitions of "continuous
disposal," "dewatered," "existing
impoundment," and "phased disposal"
are revised to conform to the revised
definition of "operation";
• Definitions of "standby,"
"conventional impoundment," "non-
conventional impoundment," "heap
leach pile," "uranium recovery facility,"
and "heap leach pile operational life"
are added as proposed, with minor
conforming changes;
• The reference in the 1989 rule at 40
CFR 61.252(b) and (c) is revised to 40
CFR 192.32(a)(1), as proposed, to clarify
that the liner requirements are the
portion of interest; as finalized, the
reference to 40 CFR 192.32(a)(1) is
included in § 261.252(a)(2)(i), (a)(2)(ii),
(b) & (c) and the reference at§ 61.252(c)
in the 1989 rule is incorporated into
§ 61.252(a)(1) in the final rule;
• The phrase "as determined by the
Nuclear Regulatory Commission" is
eliminated from 40 CFR 61.252(b)(1)
and (2), as proposed(§ 61.252(a)(2)(i)
and (ii) in the final rule);
• The definition of "final closure" is
added for completeness and clarity, in
response to comments regarding the
applicability of Subpart W; and
• The definition of "reclamation
plan" is added to further clarify the
concept of closure.
C. What are the recordkeeping,
notification and reporting requirements?
New and existing affected sources are
required to comply with the existing
requirements of the General Provisions
(40 CFR part 61, subpart A). The
General Provisions include specific
requirements for notifications,
recordkeeping and reporting, including
provisions for notification of
construction and/or modification and
startup as required by 40 CFR 61.07,
61.08 and 61.09.
We are also requiring that all affected
sources maintain certain records
pertaining to the design, construction
and operation of conventional
impoundments, non-conventional
impoundments and heap leach piles.
These records must be retained at the
facility and contain information
demonstrating that the impoundments
and/or heap leach pile meet the
requirements in 40 CFR 192.32(a)(1),
including but not limited to, all tests
performed that prove the liner is
compatible with the material(s) being
placed on the liner. For non-
conventional impoundments, this
requirement also includes records
showing compliance with the
requirement to maintain liquid in the
impoundment such that solid materials
are not visible above the liquid. 7
Documents showing that the
impoundments and/or heap leach pile
meet the requirements in§ 192.32(a)(1)
are already required as part of the pre-
construction application submitted
under 40 CFR 61.07, so these records
should already be available. Written and
other records showing compliance with
the liquid requirement for non-
conventional impoundments can be
created during the daily inspections of
the tailings and waste retention systems
required by the NRC (and Agreement
States) under the inspection
requirements of 10 CFR part 40,
Appendix A, Criterion 8A.
Because we are retaining the radon
flux standard for conventional
impoundments in existence on
December 15, 1989, we are also
retaining the associated reporting
requirements at 40 CFR 61.254 and
these units must also comply with the
revised recordkeeping requirements at
40 CFR 61.255, as applicable.
Because we are promulgating new
recordkeeping requirements for uranium
recovery facilities, we are required by
the Paperwork Reduction Act (PRA) to
prepare an estimate of the burden of
such record-keeping on the regulated
entity, in both cost and hours necessary
to comply with the requirements. We
have submitted the Information
Collection Request (ICR) containing this
burden estimate and other supporting
documentation to the Office of
Management and Budget (OMB). See
Section VILE for more discussion of the
PRA and ICR.
We believe the record-keeping
requirements promulgated today will
not create a significant burden for
operators of uranium recovery facilities.
As described earlier, we are requiring
retention of two types ofrecords: (1)
Records demonstrating that the
impoundments and/or heap leach pile
meet the requirements in§ 192.32(a)(1)
(e.g., the design and liner testing
information); and (2) records showing
that liquid is maintained to cover any
7 The liquid requirement pertains to having the
level of liquid cover any and all solid uranium
byproduct material or tailings. We do not anticipate
a large quantity of solid uranium byproduct
material or tailings in these non-conventional
impoundments (EPA-HQ-OAR-2008-0218-0088).
5150 Federal Register/Val. 82, No. 10/Tuesday, January 17, 2017 /Rules and Regulations
solid uranium byproduct material or
tailings present in non-conventional
impoundments.
Documents demonstrating that the
affected sources comply with
§ 192.32(a)(1) requirements are
necessary for the facility to obtain
regulatory approval from the NRC (or an
NRC Agreement State) and the EPA to
construct and operate the affected
sources (this includes any revisions
during the period of operations).
Therefore, these records will exist
independent of Subpart W requirements
and will not need to be continually
updated as a result of this record-
keeping requirement in Subpart W;
however, we are including this record-
keeping requirement in Subpart W to
require that the records be maintained at
the facility and available for inspection
during its operational lifetime (in some
cases the records might be stored at a
location away from the facility, such as
corporate offices). This might
necessitate creating copies of the
original records and providing a
location for storing them at the facility.
Keeping a record to provide
confirmation that liquid is maintained
above the solid uranium byproduct
material or tailings present in non-
conventional impoundments should
also be relatively straightforward. This
would involve visual inspection and
documentation, such as written notes
and digital photographs with embedded
date and time and other identifying
metadata, using photographic
capabilities that are readily available,
such as smartphones or small digital
cameras. As noted earlier, NRC and
Agreement State licenses require
operators to inspect the facility on a
daily basis. Only minimal effort will be
necessary to make observations of
saturation and record the information in
inspection log books that are already
kept on site and available to inspectors.
Inspections for saturation can occur
during the daily inspections that are
already required by NRC and Agreement
States. The final rule requires that
operators record written observations
daily and collect photographic evidence
of liquid depth no less frequently than
weekly. Beginning on the effective date
of this final rule, digital photographs are
to be uploaded on at least a monthly
basis to the EPA's Subpart W
Impoundment Photographic Reporting
(SWIPR) system. If that system is
unavailable, digital photographs are to
be retained by the facility and provided
to the EPA or the authorized state upon
request.
The final rule also includes a
definition of "final closure" that refers
to notification by the facility owner/
operator. Subpart W applies to operating
sources used to manage uranium
byproduct material or tailings. Sources
cease to be operating when they enter
the closure process. The definition of
"final closure" in the final rule clarifies
that closure does not begin until the
owner or operator provides written
notification to the EPA and the NRC that
the impoundment or heap leach pile is
no longer used for its operational
purpose and is being managed under an
approved reclamation plan for that
impoundment or pile, or the facility
closure plan. Such notifications should
involve limited effort on the part of
facility owners or operators. A
reclamation plan is required by NRC
regulation and is not a new requirement
under Subpart W.
We estimate the burden in hours and
cost for uranium recovery facilities to
comply with the proposed
recordkeeping and notification
requirements are as follows:
TABLE 3-BURDEN HOURS AND COSTS FOR RECORDKEEPING REQUIREMENTS
[Annual figures except where noted]
Activity Hours Costs
Maintaining Records for the 40 CFR 192.32(a)(1) requirements .......................................................................... . *20
291
*$1,430
14,650 Verifying saturation for non-conventional impoundments, including collecting and uploading digital photographs
*These figures represent a one-time cost to the facility.
IV. What is the rationale for our final
decisions and amendments to Subpart
W?
A. Legal Authorities and GACT
1. What is the legal authority for
GACT based standards and management
practices in the final rule?
Section 112(q)(1) of the CAA requires
that NESHAPs "in effect before the date
of enactment of the Clean Air Act
Amendments of 1990 [Nov. 15, 1990]
. . . shall be reviewed and, if
appropriate, revised, to comply with the
requirements of subsection (d) of ...
section [112]." The EPA promulgated 40
CFR part 61, subpart W, "National
Emission Standards for Radon
Emissions from Operating Mill
Tailings," ("Subpart W") on December
15, 1989.a The EPA conducted this
8 On April 26, 2007, CCAT and Rocky Mountain
Clean Air Action filed a lawsuit against the EPA
(EPA-HQ-OAR-2008-0218-0013) for the EPA's
alleged failure to review and, if appropriate, revise
NESHAP Subpart Wunder CAA section 112(q)(1).
review of Subpart W under CAA section
112(q)(1).
Section 112(d) establishes the
requirements for emission standards for
HAP promulgated under section 112. It
establishes different requirements for
major sources and area sources. A major
source is any stationary source that
emits or has the potential to emit 10 tpy
or more of any single HAP or 25 tpy or
more of any combination of HAPs. An
area source is a stationary source of
HAP that is not a major source. See
Sections II.B and IV.A.2 for discussion
of area sources as they relate to Subpart w.
Pursuant to CAA section 112(d),
standards for major sources "shall
require the maximum degree of
reduction in emissions of the hazardous
air pollutants . . . that the
Administrator . . . determines is
A settlement agreement was entered into between
the parties in November 2009 (EPA-HQ-OAR-
2008-0218-0020, -0021).
achievable." For area sources, the
Administrator has the discretion under
CAA section 112(d)(5) to set standards
based on GACT in lieu ofMACT.
Specifically, CAA section 112(d)(5)
provides that the Administrator may
elect to promulgate standards or
requirements for area sources "which
provide for the use of generally
available control technologies or
management practices by such sources
to reduce emissions of hazardous air
pollutants."
Section 112(q)(1) does not dictate how
the EPA must conduct its review of
those NESHAPs issued prior to 1990.
Rather, it provides that the Agency must
review, and if appropriate, revise the
standards to comply with the
requirements of section 112(d).
Determining what revisions, if any, are
appropriate for these NESHAPs is best
assessed through a case-by-case
consideration of each NESHAP. In other
rulemakings, the EPA has determined
that GACT standards are appropriate for
Federal Register/Val. 82, No. 10/Tuesday, January 17, 2017 /Rules and Regulations 5151
a number of different area sources,
including, for example, industrial,
commercial and institutional boilers
(promulgated at 40 CFR part 63, subpart
JJJJJJ) and oil and natural gas production
facilities (promulgated at 40 CFR part
63, subpart HH). Using a GACT
evaluation, the EPA has historically
established both emission standards and
management practices, as appropriate.
As explained below, in this case, we
have reviewed Subpart W and are
revising the standards consistent with
section 112(d)(5), which addresses
standards for area sources. After our
review, we determined it was
appropriate to revise Subpart W to
clarify the applicability of the rule to
non-conventional impoundments and
heap leach piles and promulgate
standards that are more appropriate for
controlling radon emissions at those
sources. All units regulated by Subpart
W are area sources and we determined
that promulgating GACT-based
standards under CAA section 112(d)(5)
is appropriate for these sources.
Consistent with section 112(q)(1) we are
revising Subpart W to comply with the
requirements in section 112(d) relating
to emission standards for area sources
and are thus revising the Subpart W
standards to reflect GACT-based
standards.
2. What key comments did we receive
on our legal authorities and the GACT
approach?
We received several comments
challenging our use of GACT for this
rulemaking. Commenters specifically
asserted that the EPA may not set
GACT-based standards for sources
subject to Subpart W and challenged our
conclusion that facilities subject to
Subpart W are area sources.
Commenters further argued that the
work practices instituted for
conventional impoundments in 1989,
which we are finalizing today as GACT-
based standards, are contrary to CAA
section 112(h), which allows the EPA to
promulgate work practices in lieu of
MACT standards only when "it is not
feasible in the judgment of the
Administrator to prescribe or enforce an
emission standard."
We summarize below a number of
comments received on this topic and
present our responses. Additional
comment responses on this topic appear
in the Response to Comments document
in the docket for this rulemaking.
Comment: A conunenter argued that
uranium recovery operations should be
considered, by definition, major sources
of hazardous air pollutants and should
be subject to major source requirements.
The commenter further stated that the
EPA's document Background
Information for Proposed Area Source
Standards is misleading because it uses
the standard major source threshold at
CAA section 112(a)(1), that any
stationary source that emits or has the
potential to emit 10 tpy or more of any
single HAP or 25 tpy or more of any
combination of HAPs, to support its
conclusion that uranium recovery
facilities regulated under Subpart W are
area sources. The commenter stated that
radon is not measured in tpy and that
the CAA section 112 threshold of 10 or
25 tpy was not intended to apply to
radon or other radionuclides.
Response: Under section 112(a)(1) of
the CAA major sources are defined as
stationary sources or groups of
stationary sources that emit, or have the
potential to emit, any single HAP at a
rate of 10 tpy or more, or 25 tpy or more
of any combination of HAP. An area
source, in turn, is any stationary source
of HAP that is not a major source. CAA
section 112(a)(2). The statute also allows
the EPA to establish lower thresholds,
or for radionuclides to establish
different criteria based on the
characteristics of the air pollutant and
relevant factors, but the statute is clear
on its face that the EPA is not required
to set alternative criteria. CAA section
112(a)(1). In the absence of alternative
criteria, the statutory criteria of 10 tpy
of a single HAP or 25 tpy of a
combination of HAP applies, and any
source that does not meet or exceed
those thresholds is an area source. By
allowing the EPA to set different criteria
only for radionuclides, the statute
implicitly recognizes that an alternative
to the statutory thresholds based on tpy
may be appropriate for sources of
radionuclides. Nonetheless, the statute
neither requires the EPA to set
alternative criteria for defining major
sources of radionuclides, nor obligates
the EPA to designate any or all
radionuclide sources as major sources.
In sum, the statute explicitly leaves
open the possibility that all sources of
radionuclides will be regulated as area
sources unless the EPA decides to
establish alternate criteria. Moreover,
even if the EPA had decided to set
alternate criteria, nothing in the CAA
would have required the EPA to
establish criteria that would have the
effect of making some sources that
manage uranium byproduct material or
tailings major sources of HAP. Thus,
there is no basis for the commenter's
assertion that uranium recovery
operations should be considered, by
definition, major sources of HAP.
In addition, regulating sources that
manage uranium byproduct material or
tailings as area sources does not
constrain the EPA's regulatory options.
For area sources, the EPA can set GACT
standards under CAA section 112(d)(5)
or MACT standards under CAA section
112(d)(2). EPA's decision to retain this
flexibility by regulating these sources as
area sources is reasonable and
consistent with the discretion given to
the EPA by the statutory text.
It is also worth noting that, under
Subpart W, radon emissions from
sources that manage uranium byproduct
material or tailings are regulated
regardless of whether they qualify as
major or area sources. For source
categories not regulated before 1990, the
EPA has discretion to decide whether to
list and thus whether to regulate area
sources. Radon emissions from uranium
byproduct material or tailings, however,
were regulated prior to 1990 and CAA
section 112(q) explicitly provides that
such standards remain in force and
effect after the effective date of the 1990
CAA Amendments. The distinction
between major and area sources thus
does not affect whether sources subject
to Subpart W are regulated under CAA
section 112. Nothing in CAA section
112(q)(l) or CAA section 112(d) limits
EPA's discretion to set standards under
CAA section 112(d)(5), for sources
regulated prior to the 1990 CAA
Amendments whose emissions do not
exceed the major source threshold
established by Congress.
Comment: Commenters stated that the
EPA must establish a source category
pursuant to CAA section 112(c)(1)
before promulgating CAA section 112(d)
standards. One of these commenters
cites to a 2007 EPA rulemaking which
stated that listing pursuant to section
112(c) is a critical aspect and a
condition precedent to issuing CAA
section 112(d)(5) standards.
Commenters also argued that the EPA
must determine all HAPs present at
uranium recovery facilities before the
EPA can establish a source category,
develop criteria to differentiate between
major and area sources of radionuclides,
and promulgate emission standards,
whether MACT or GACT.
Another commenter asserted that
because CAA section 112(q) requires
pre-1990 regulations to be reviewed
and, if appropriate, revised in
accordance with the requirements of
subsection (d), the revision must
comply with all applicable requirements
in CAA section 112, including all parts
of CAA section 112 enacted as part of
the 1990 CAA Amendments.
One commenter also argued that the
EPA must establish a source category or
subcategory before promulgating
standards under CAA section 112(d)(5)
for facilities licensed to manage
5152 Federal Register/Val. 82, No. 10/Tuesday, January 17, 2017 /Rules and Regulations
uranium byproduct materials. The
comments state that the EPA has not
complied with the requirements of CAA
section 112 and has not taken the
requisite preliminary actions and
evaluations to support establishing
revised standards for uranium recovery
facilities, specifically GACT. Another
commenter stated that the EPA has no
basis for setting GACT standards in lieu
of MACT standards.
Response: The EPA originally
promulgated Subpart Win 1989, before
Congress enacted the 1990 CAA
Amendments. The 1990 Amendments
introduced the requirement to list major
and area sources of HAPs. See CAA
sections 112(c)(1) & (c)(3), 42 U.S.C.
7412(c)(1) & (c)(3). The 1990
Amendments also added CAA section
112(q), which explicitly provides that
section 112 standards in effect prior to
the date of enactment of the 1990 CAA
Amendments shall remain in force and
effect after that date. CAA section
112(q)(1) also provides that: "Each
[standard in effect before the enactment
of the CAA Amendments of 1990] shall
be reviewed and, if appropriate, revised
to comply with the requirements of
subsection (d) of this section ... "In
sum, Congress clearly intended that (1)
standards promulgated prior to 1990
remain in effect; and (2) the EPA may
update the standards, as appropriate.
However, there is no indication that
Congress intended to require that the
EPA go through the process of listing
source categories that were subject to
regulations prior to 1990 and thus,
effectively already "listed." CAA
section 112(c)(4) provides that, "The
Administrator may, in the
Administrator's discretion, list any
category or subcategory of source
previously regulated under this section
as in effect before November 15, 1990."
The EPA reviewed Subpart W pursuant
to section 112(q)(1) and has not listed
uranium recovery operations pursuant
to section 112(c).
The EPA disagrees with the
commenters' assertions that the EPA
must list the regulated source category
pursuant to section 112(c) before
revising the existing Subpart W. Section
112(q)(1), on its face, does not require
the EPA to list such sources pursuant to
subsection (c) as part of a section 112(q)
review. It does not contain any cross
reference to the listing provisions of
section 112(c). Instead, section 112(q)
requires revision, if appropriate, in
accordance with subsection (d)-the
subsection that governs standard setting
under section 112. Moreover, section
112(c)(4) explicitly grants the
Administrator discretion to decide
whether or not to list categories and
subcategories of sources regulated under
section 112 prior to the 1990 CAA
Amendments. Thus, neither of the
provisions addressing standards
promulgated prior to the 1990 CAA
Amendments, nor any other statutory
provision, support the commenters'
assertion that listing under section
112(c) is a necessary part of a section
112(q) review.
There is also no basis for commenters'
statements that the EPA must determine
all HAPs present at uranium recovery
facilities and develop criteria to
differentiate between major and area
sources of radionuclides before it can
promulgate emission standards, whether
MACT or GACT. The EPA's task under
section 112(q) is to review and, if
appropriate, revise standards in effect
before the date of enactment of the 1990
CAA Amendments. Prior to the 1990
CAA Amendments, section 112
standards were promulgated for
individual pollutants and Subpart W
only establishes standards for radon
resulting from management of uranium
byproduct material or tailings at
uranium recovery operations. The EPA's
obligation under section 112(q)
therefore is limited to reviewing and, if
appropriate, revising standards for
radon resulting from management of
uranium byproduct material or tailings
at uranium recovery operations. The
statutorily required review does not
encompass listing the source category
under section 112(c) or evaluating HAPs
not previously regulated under the
subpart being reviewed. As explained in
the previous response, the statute also
does not require the EPA to set alternate
criteria for distinguishing between
major and area sources of radionuclides.
The commenter's reliance on a 2007
rulemaking is misplaced. In that
rulemaking, the EPA promulgated
NESHAPs for the first time for the
identified source categories. The present
rulemaking is governed by CAA section
112(q)(1), which only requires that the
review and revision comply with the
standard setting requirements of
subsection (d). As explained above, the
section 112(q)(1) review does not
require listing the source category under
section 112(c). The 2007 rulemaking set
new standards and was not subject to
the narrow review requirements of CAA
section 112(q)(1). Further, CAA section
112(c)(4) explicitly provides the EPA
with discretion regarding whether to list
source categories regulated prior to the
1990 CAA Amendments. CAA section
112(c)(4) applies to the sources subject
to Subpart W but was not applicable to
the sources impacted by the 2007
rulemaking. For these reasons, the
statements made in the 2007 rulemaking
are inapposite.
The commenter's assertion that the
EPA must revise Subpart W to comply
with all provisions of section 112 is also
based on an overly broad reading of
CAA section 112(q)(1). The statute only
instructs the EPA to "review[] and, if
appropriate, revise[], to comply with
the requirements of subsection (d) of
this section . . . " It does not require the
EPA to revise the pre-1990 rules to
comply with every provision in the
section 112 CAA Amendments of 1990.
Indeed, to read section 112(q)(1) as
requiring the EPA to revise the rules to
comply with all provisions in section
112 would be to read the reference to
subsection (d) out of the statute.
Finally, listing a source category
under section 112(c) is not a pre-
requisite to establishing GACT
standards for area sources as part of a
section 112(q) review. As explained in
the previous response, section 112(d)(5)
allows the EPA to set GACT instead of
MACT standards for area sources.
Specifically, CAA section 112(d)(5)
provides that with respect only to
categories and subcategories of area
sources listed pursuant to section
112(c), the Administrator may, in lieu of
setting standards under sections
112(d)(2) and 112(£), decide to
promulgate standards based on
generally available control technologies.
Such standards are commonly referred
to as GACT standards.
CAA section 112(d)(5) is ambiguous
to the extent that it is not clear whether
it provides that the EPA may set GACT
standards "only" for "area sources" or
whether it also prohibits the EPA from
setting section 112(d)(5) GACT
standards for area sources regulated
under section 112 but not listed
pursuant to section 112(c)-that is, area
sources that are regulated pursuant to
section 112 standards promulgated
before the 1990 CAA Amendments but
not added to the section 112(c) list. For
the reasons explained below, the EPA
does not interpret section 112(d)(5) as
limiting its discretion to promulgate
GACT standards as part of a section
112(q) review simply because the area
source category has not been added to
the section 112(c) list.
As an initial matter, the specific
statutory provisions addressing section
112 standards that pre-dated the 1990
Amendments appear in sections
112(q)(1) and 112(c)(4). As discussed
above, these provisions require the EPA
to review and, if appropriate, revise
such standards to comply with the
requirements of subsection (d) and also
establish that the EPA has discretion to
decide whether or not to list source
Federal Register/Val. 82, No. 10/Tuesday, January 17, 2017 /Rules and Regulations 5153
categories under section 112(c). In the
event of any conflict with other more
general provisions in section 112, the
more specific provisions of sections
112(q)(1) and 112(c)(4) govern.
The general standard setting
obligation in section 112(d)(1) also
provides helpful context. Specifically,
CAA section 112(d)(1) states that "The
Administrator shall promulgate
regulations establishing emission
standards for each category or
subcategory of major sources and area
sources of hazardous air pollutants
listed for regulation pursuant to
subsection (c) of this section . . . "
Section 112(d)(1) grants the EPA
authority to set emission standards
under both section 112(d)(2) (MACT
standards) and section 112(d)(5) (GACT
standards). Like section 112(d)(5), it
cross references the listing provision of
subsection (c). Neither provision
explicitly addresses how it applies in
the context of a section 112(q) review.
And neither provision explicitly
overrides either the section 112(q)
review requirements or the discretion
granted to the Administrator under
section 112(c)(4). Therefore, for
standards promulgated prior to the 1990
CAA Amendments, it is reasonable for
the EPA to interpret sections 112(d)(1)
and (d)(5) to not require listing pursuant
to§ 112(c) before the EPA can review
the standards under section 112(q)(1)
and, if appropriate, revise them to
comply with subsection (d). In contrast,
ifthe EPA were to take the approach
suggested by commenters, and read the
cross references to subsection (c) in
sections 112(d)(1) and 112(d)(5) as a
limitation on the EPA's authority under
section 112(q) to revise standards to
comply with subsection (d) it would be
inconsistent with CAA sections
112(q)(1) and 112(c)(4).
Given the statutory context outlined
above, for this CAA section 112(q)(1)
review, it is reasonable for the EPA to
interpret CAA section 112(d)(5) as
restricting the EPA's ability to set GACT
standards to "only area sources," but
not prohibiting the EPA from setting
GACT standards as part of a section
112(q) review simply because the area
source category is not listed pursuant to
subsection (c).
Comment: Several commenters argued
that the EPA improperly proposed to
promulgate design and work practice
standards in lieu of emissions
standards. Specifically, commenters
stated that the EPA cannot promulgate
design and work practice standards
without the Administrator first making
a finding pursuant to CAA section
112(h) that emission standards are not
feasible. Commenters took the position
that the EPA has not and cannot make
a finding pursuant to CAA section
112(h) that radon emissions standards
are not feasible at uranium recovery
facilities. These and another commenter
assert that the EPA has not and cannot
make the "not feasible" showing, so the
EPA must promulgate an emissions
standard.
One of these commenters stated that
the EPA has no legal basis for the
promulgation of a design, equipment,
work practice, or operational standard,
or combination thereof, in lieu of a
radon emission standard, because
design, equipment, work practice, or
operational standards are meant to
supplement, not replace, a standard that
places specific numerical limitations on
HAP emissions. The commenter also
asserts that the EPA has no legal basis
for eliminating the emission standard
for existing mill tailings impoundments.
The other commenter pointed to text
from the legislative history of the 1990
CAA Amendments and stated that work
practice standards must achieve the
same or greater level of emissions
reduction as a numerical emission
standard. The commenter argues that
radon emissions will be higher under
the GACT standards than they would be
under a numerical emission standard
and therefore the EPA should
promulgate an emission standard.
Response: The EPA disagrae with
these comments. The statute does not
require the EPA to make a finding
pursuant to CAA section 112(h) prior to
promulgating management practices for
area sources pursuant to section
112(d)(5). While section 112(d)(2)
requires the EPA to make such a finding
prior to setting work practice standards
in lieu of an emission standard, section
112(d)(5) contains no such requirement.
Instead, CAA section 112(d)(5)
provides the EPA with discretion
regarding the type of standards it sets
for area sources by permitting the EPA
to set standards or requirements "which
provide for the use of generally
available control technologies or
management practices" (42 U.S.C.
7412(d)(5)). The EPA determined that
the management practices required in
this final rule constitute generally
available management practices and
effectively control radon emissions from
conventional impoundments
constructed after December 15, 1989,
non-conventional impoundments and
heap leach piles.
Because CAA section 112(d)(5)
provides the EPA with the option of
establishing management practices, the
EPA was not required to make a
showing under CAA section 112(h) that
an emissions standard is not feasible
before we set management practices.
Further, CAA section 112 does not
provide that management practices must
supplement emission standards; the
EPA may set management practices to
control emissions pursuant to CAA
section 112(d)(5).
With respect to existing conventional
impoundments in existence on
December 15, 1989, the EPA is retaining
the emissions standard originally
promulgated in 1989. During the
comment period, the EPA learned that
the information on which it relied when
proposing to remove the emission
standard requirement for existing
conventional impoundments designed
or constructed prior to December 15,
1989 was not accurate. Because the
conventional impoundments in
existence on December 15, 1989 are
constructed in such a way that they are
unable to comply with the standards
being promulgated for conventional
impoundments constructed after
December 15, 1989, the EPA determined
that it is appropriate to retain the
emissions standard and monitoring
requirement for conventional
impoundments in existence on
December 15, 1989. Because these units
have been subject to a radon flux
standard of 20 pCi/m2-sec since 1989,
this method of compliance is generally
available and effectively regulates radon
emissions from these units.
The EPA evaluated all types of units
regulated by Subpart W: Conventional
impoundments in existence as of
December 15, 1989, conventional
impoundments constructed after
December 15, 1989, non-conventional
impoundments, and heap leach piles.
Each type of unit has different
characteristics. Also, not all units were
subject to the same requirements at the
time of their construction, and the
feasibility of compliance with emissions
standards and/or management practices
also varies between types of units. The
EPA took these variations into
consideration when we conducted our
GACT analysis for each type of unit.
Because the three remaining
conventional impoundments in
existence as of December 15, 1989 were
subject to different construction
requirements than units constructed
after that date, and are not amenable to
the management practices established in
1989 for those newer units, different
standards are appropriate.
The legislative history language
referenced by the commenter is
concerned with the stringency of work
practice standards promulgated under
CAA section 112(h), when an emissions
standard is not feasible. This passage of
the legislative history is not discussing
5154 Federal Register/Val. 82, No. 10/Tuesday, January 17, 2017/Rules and Regulations
the stringency of management practices
promulgated under CAA section
112(d)(5) and thus is not relevant.
Further, the commenter's claim that
radon emissions will be higher under
the GACT-based standards than they
would be under a numerical emission
standard is speculative. The commenter
has not shown that the management
practices promulgated in Subpart W
will not effectively result in the same
emissions reductions that would be
achieved if the EPA had set a MACT
standard under CAA section 112(d)(2).
The GACT-based standards finalized in
the rule will effectively control radon
emissions from uranium byproduct
material or tailings.
Comment: Several commenters
challenged the EPA's authority to
regulate impoundments associated with
management of process liquids or
effluents, referred to as non-
conventional impoundments in the
Subpart W rulemaking. One commenter
submits that Subpart W does not apply
to evaporation ponds at currently
operating and future operating uranium
recovery facilities, specifically in-situ
facilities, because of the significant
amount of process or waste water
present. This and another commenter
assert that evaporation ponds should
not be regulated in Subpart W because
the liquid cover substantially eliminates
radon emissions. The second
commenter further supports excluding
evaporation ponds because the original
1989 rulemaking stated that science did
not support the EPA exercising
jurisdiction over fluid retention
impoundments.
This commenter similarly argues that
the EPA has no legal or regulatory bases
to apply Subpart W to evaporation
ponds at uranium recovery facilities.
Further, the commenter states that after
20 years of consistent interpretation that
Subpart W is only applicable to
uranium mill tailings impoundments,
the EPA is now asserting that Subpart W
applies to evaporation ponds at in-situ
recovery and conventional mill tailings
facilities. The commenter argues that
the EPA's position is inconsistent with
the language and the rulemaking history
associated with Subpart W since the
regulations discuss uranium mill
tailings "piles" and the rulemaking
record states that the radon cover
requirements in Subpart W's work
practice standards are not intended to
apply to such fluid retention
impoundments.
The commenter also challenges that
evaporation ponds are not covered by
Subpart W because the specific
examples in the regulations do not
include evaporation ponds.
Another commenter argues that the
liquid impoundments should not be
regulated as tailings impoundments and
should not be subject to 40 CFR part
192.
Alternatively, one commenter
supported the EPA's confirmation that
ISL facilities and liquid impoundments
are subject to the EPA's CAA NESHAP
jurisdiction. The commenter also stated
that where the rule does not include
emissions limits confirmed by
monitoring and reporting requirements,
the EPA has not carried out its CAA
duty to minimize or eliminate radon
emissions.
Response: Non-conventional
impoundments (which include
evaporation and holding ponds) are
associated with all types of uranium
recovery facilities, but especially ISL
facilities. Non-conventional
impoundments receive liquids
containing uranium byproduct material
or tailings from conventional milling,
ISL operations or heap leach piles and
the uranium byproduct material or
tailings may be suspended or dissolved
in the liquids. Some portion of the
material will precipitate out and settle
on the bottom ofthe impoundment. In
fact, the liquid itself constitutes
uranium byproduct material or tailings
because it is a waste from the
concentration or extraction process.
Commenters' arguments that the EPA
lacks authority to regulate non-
conventional impoundments lack merit.
As an initial matter, commenters do not
and could not support their assertion
that the EPA lacks legal authority to
regulate these impoundments.
Radionuclides, including radon, are
listed as HAPs in CAA section 112(b)(1),
and the EPA has authority under
sections 112(d) and 112(q) to regulate
radionuclide emissions from sources
that manage uranium byproduct
materials or tailings.
In addition, commenters' alternate
arguments, that these impoundments
are not currently and should not be
regulated by Subpart W, are incorrect.
As promulgated in 1989, Subpart W
requirements specifically apply to the
structures at the uranium recovery
facilities that are used to manage or
contain the uranium byproduct material
or tailings during and following the
processing of uranium ores. 40 CFR
61.250. Common names for these
structures may include, but are not
limited to, impoundments, tailings
impoundments, evaporation or holding
ponds, and heap leach piles. However,
the name itself is not important for
determining whether Subpart W
requirements apply to that structure;
rather, applicability is based on what
these structures contain. Uranium
byproduct material or tailings produced
by ISL is covered by the definition of
uranium byproduct material or tailings
included in the 1989 Subpart W
NESHAP, which is not altered by this
final rule.
The EPA understood that there was
previously some confusion regarding
the applicability of Subpart W to
different units that manage uranium
byproduct material or tailings, including
impoundments and evaporation ponds
at ISL facilities (non-conventional
impoundments) and heap leach
facilities. The EPA also acknowledges
that the provisions of the 1989 rule
applied imperfectly to these units. The
industry is shifting toward ISL as the
dominant method of uranium recovery
and, while it is not expected to be as
significant a source of radon emissions
as conventional impoundments, it is
reasonable for the EPA, as part of this
section 112(q) review, to clarify that the
standards in Subpart W apply to non-
conventional impoundments. To
eliminate any potential confusion, the
final rule reaffirms that Subpart W
continues to regulate radon emissions
from all management of uranium
byproduct material or tailings at
uranium recovery facilities. Subpart W
has always applied to these units; this
final rule clarifies that applicability and
confirms that these impoundments are
covered by Subpart W by establishing
management practices tailored to non-
conventional impoundments.9
The EPA has authority to interpret its
own regulations, Auer v. Robbins, 519
U.S. 452 (1992), and may clarify its
interpretation when justified. In this
rulemaking, the EPA did not revise its
interpretation of Subpart W, rather we
clarified the applicability of the
regulations. Moreover, the EPA also
provided notice and opportunity for
comment on these clarifications.
Commenters incorrectly state that
evaporation ponds are not covered by
Subpart W because evaporation ponds
are not used as an example in the
regulation. Similarly, commenters'
claims that the radon cover
requirements are not intended to apply
9 Note that the BID supporting the 1989 final rule
stated: "The licensed uranium mill tailings source
category comprises the tailings impoundments and
evaporation ponds created by conventional acid or
alkaline leach processes at urani urn mills licensed
by the Nuclear Regulatory Commission (NRC) or the
Agreement States"" (BID Volume 2, Risk
Assessments, EPA/520/1-89-006-1, page 9-1,
emphasis added). The risk assessment evaluated the
contribution of evaporation ponds to total radon
emissions at some, but not all, of the operating and
standby mills. If allowed to dry out, evaporation
ponds could represent a non-negligible portion of
the overall radon emissions subject to control under
Subpart W. See Tables 9-2, 9-3, 9-28.
Federal Register/Val. 82, No. 10/Tuesday, January 17, 2017 /Rules and Regulations 5155
to fluid retention impoundments is
inaccurate.10 As explained previously,
the determining factor of whether
evaporation ponds are subject to
Subpart W and whether the radon cover
requirements apply is whether the unit
contains uranium byproduct material or
tailings. Since promulgated in 1989,
Subpart W has applied to facilities
licensed to manage uranium byproduct
material or tailings; units that manage
uranium byproduct material or tailings
must comply with the applicable GACT-
based standard.
In addition, to the extent commenters
are challenging the EPA's interpretation
of the applicability provisions in 40 CFR
part 192, such comments are beyond the
scope of this rulemaking and the EPA
has no obligation to respond. This
rulemaking addresses only Subpart W.
The EPA's May 2, 2014 proposal did not
reopen or take comment on any aspects
of part 192. The applicability provisions
of part 192 appear at 40 CFR 192.00.
Subpart W does not expand the scope of
applicability of part 192 as liners
meeting the requirements at 40 CFR
192.32(a)(l) are already mandated by
other regulations (79 FR 25407).
In response to one commenter's
argument that Subpart W should not
regulate evaporation ponds at ISL
facilities because of the amount of water
present in the ponds, the EPA disagrees.
While the EPA agrees that the presence
of sufficient liquid significantly reduces
the radon emissions, that is not itself a
reason to exclude evaporation ponds
from regulation as a pond may still
contain uranium byproduct material or
tailings, which have the potential to
emit radon. As stated above, the
presence of uranium byproduct material
or tailings in the pond determines
whether the pond is regulated by
Subpart W. The management practices
the EPA is promulgating in Subpart W
ensure that the radon emissions are
continuously effectively controlled. The
EPA requires that owners and operators
of non-conventional impoundments
ensure that the uranium byproduct
material or tailings remains saturated,
meaning that the material is covered in
liquid, which will effectively control
lOin amending 40 CFR part 192 pursuant to an
MOU with NRC, EPA stated the following in
response to comments that evaporation ponds
should remain open after emplacement of the final
radon barrier: "EPA reiterates that the Agency does
not intend the expeditious radon cover
requirements to extend to areas where evaporation
ponds are located, even if on the pile itself, to the
extent that such evaporation pond is deemed by the
implementing agency (NRC or an affected
Agreement State) to be an appropriate aspect to the
overall remedial program for the particular site"
(emphasis added) (58 FR 60354, November 15,
1993).
radon emissions from these
impoundments.
The EPA acknowledges and
appreciates the commenter's support of
the EPA's clarification that uranium in-
situ leach facilities are subject to
Subpart W. The EPA's response to the
comment regarding the requirement to
establish emissions limits confirmed by
monitoring and reporting requirements
is contained in the response to the
previous comment.
Comment: Commenters questioned
the appropriateness of including
groundwater protection requirements in
a NESHAP promulgated under the CAA
since they do not affect air pollution.
Further, one commenter added that the
rule is unnecessary because it is
designed to regulate HAPs yet it
incorporates groundwater protection
standards. The commenters stated that
the additional requirements for fluid
retention impoundments imposed by
the imposition of 40 CFR 192.32(a)(l)
and, by extension 40 CFR 264.221, are
not justified.
Both commenters asserted that if the
NRC believed that the imposition of the
part 192 requirements were justified, the
NRC would have explicitly referenced
40 CFR 192.32(a)(l) and by extension 40
CFR 264.221 in 10 CFR part 40
Appendix A, but it does not.
Alternatively, another commenter
asserted that the EPA cannot allow a
situation where the reduction of radon
emissions comes at the expense of
increased pollution of the groundwater
or surface water. The commenter is
concerned that the rule works at cross-
purpose with 40 CFR part 192.
Response: The EPA may evaluate the
non-air quality impacts of rules issued
under CAA section 112. CAA section
112(d)(2) explicitly provides that the
EPA has authority to consider non-air
quality health and environmental
impacts when promulgating standards
under that section. For area sources, the
EPA may promulgate standards under
CAA section 112(d)(5) in lieu of CAA
section 112(d)(2). Since the CAA
provides for the EPA to consider such
impacts under CAA section 112(d)(2), it
is reasonable for the EPA to consider
such impacts under CAA section
112(d)(5). Further, the CAA does not
prohibit the EPA from considering non-
air quality health and environmental
impacts for CAA section 112(d)(5)
standards. Additionally, we believe the
Legislative History of the CAA
Amendments of 1990 provides for the
EPA generally taking environmental
protection into account when
promulgating standards for area sources
(Senate Report Number 101-228,
December 20, 1989).
Subpart W does not regulate
groundwater or establish groundwater
protection standards. Groundwater
contamination is controlled by pre-
existing regulations prepared under the
Uranium Mill Tailings Radiation
Control Act of 1978 (UMTRCA). During
Subpart W rule development, the EPA
considered the other regulations that
impact sources subject to Subpart W
and understood that surface
impoundments subject to Subpart W are
also subject to the standards in 40 CFR
part 192 and part 264, subpart K. The
part 192 groundwater protection
regulations and liner requirements
independently apply to the units subject
to Subpart W. Through part 192 and
part 264, subpart K, requirements were
already in place at the time Subpart W
was originally promulgated to protect
groundwater from sources that manage
uranium byproduct material or tailings.
As the EPA explained in 1986,
"potential effects of various alternatives
on ground water were considered as
part of the analysis of the impacts of this
rule, since EPA has a responsibility to
consider the impacts that its rules may
have on the total environment. In part,
this is done to ensure that regulations
do not control pollution in one
environmental medium only to degrade
another" (51 FR 34058-34059). See also
54 FR 51680.
The EPA has considered the potential
effects on groundwater from industry
practices under this rule. The EPA also
considered the separate, already
existent, groundwater protection
requirements when initially developing
Subpart W. The EPA recognized that if
water cover is maintained or expanded
in order to limit radon emissions to the
atmosphere, the potential for impacting
groundwater increases because of the
greater hydraulic head. It thus
reasonably considered the extent to
which existing requirements would
limit potential groundwater impacts in
determining reasonable management
practices to limit radon emissions to the
ambient air.
Additionally, the liner requirements
have a direct connection to the
effectiveness of Subpart W in limiting
radon emissions from uranium
byproduct material or tailings. It is well
established that moisture reduces the
rate of radon emanation. An unlined or
poorly lined impoundment is more
likely to lose moisture through the
bottom of the impoundment. This not
only increases the potential for ground
water contamination, but increases the
potential for the uranium byproduct
material or tailings in the impoundment
to dry out, thereby increasing radon
emissions. Thus, the liner requirements
5156 Federal Register/Val. 82, No. 10/Tuesday, January 17, 2017 /Rules and Regulations
boost the impoundment's ability to
retain moisture and continue to control
radon emissions. Because the liner
requirements directly relate to the
effectiveness of controlling radon
emissions by retaining moisture and
because the EPA considered the existing
groundwater protection standards when
evaluating the non-air environmental
impact of using water to control air
emissions, it was appropriate to
acknowledge those standards and
incorporate them into Subpart W.
Further, nothing in this final action
expands the applicability of 40 CFR part
192 to sources that would not otherwise
be covered by part 192. See also Section
IV.F.l.b.
Comments on the NRC regulations
contained in 10 CFR part 40 Appendix
A are beyond the scope of this
rulemaking and, in any event, the
regulations in 10 CFR part 40 Appendix
A speak for themselves. In 10 CFR part
40 Appendix A, the NRC references and
recognizes that the standards
promulgated by EPA in 40 CFR part 192
achieve the minimum level of
stabilization and containment of the
sites concerned and a level of protection
for public health, safety, and the
environment from radiological and
nonradiological hazards associated with
the sites. Additionally, 10 CFR part 40
Appendix A incorporates the basic
groundwater protection standards
imposed by the EPA in 40 CFR part 192
which apply during operations and
prior to the end of closure. 10 CFR part
40 Appendix A requires groundwater
monitoring to comply with these
standards.
In response to the other commenter,
the EPA considered the regulations that
independently apply to sources subject
to Subpart W. The EPA recognized that
the scope of units required to operate
with liners pursuant to part 192 is
consistent with the Subpart W
regulations. Subpart W does not lessen
the effectiveness of part 192.
Comment: Commenters concurred
with the EPA's authority under Section
112 of the CAA to regulate radionuclide
emissions at holding or evaporation
ponds at conventional mills, at ISL
facilities and at heap leach facilities.
However, the commenters contend that
the EPA should not only regulate
uranium byproduct material or tailings
in conventional impoundments, liquid
effluent ponds, and heap leach piles,
but should also regulate the large
amounts of radon emitted from
wellfields and other parts of ISL
operations. One commenter used the
Smith Ranch-Highland operation in
Wyoming as an example.
The commenters also advocated for
the EPA expanding the scope of
operations covered by Subpart W at
heap leach facilities. Specifically, the
commenters encouraged the EPA to
regulate radon emissions from the time
ore is placed on the pile, to the
placement of a final radon barrier,
including periods of standby, and time
periods prior to and during the
placement of lixiviant on a heap leach
pile. The commenters also took the
position that heap leach piles that are
drying out should be subject to a radon
emission standard.
Response: The EPA acknowledges and
appreciates the commenters'
concurrence with the EPA's authority to
regulate radionuclide emissions at
holding or evaporation ponds at
conventional mills, at ISL facilities and
at heap leach facilities.
When the EPA initially promulgated
Subpart Win 1986, we identified radon
as the radionuclide released to air that
presented the highest risk at uranium
recovery facilities and determined that
units managing uranium byproduct
material or tailings were the most
significant source of radon emissions
(51 FR 34056). Since 1986 andre-
promulgation in 1989, Subpart W has
only regulated units that manage
uranium byproduct material or tailings
at uranium recovery facilities (40 CFR
61.250). Other potential emission points
in these facilities were not previously
the subject of Subpart W regulation and
were not assessed for the 1989
rulemaking. The EPA's CAA section
112(q) review of Subpart W was limited
to the existing standard. Because
Subpart W did not regulate other
potential emission points, the EPA did
not include any other potential emission
points in its CAA section 112(q) review.
In this final rule, the EPA continues to
regulate the management of uranium
byproduct material or tailings from
conventional mills, from ISL facilities
and from heap leach piles.
With respect to regulation of heap
leach piles, the EPA similarly retained
the scope of Subpart W's applicability to
sources that manage uranium byproduct
material or tailings from heap leach
operations. The EPA determined that,
for purposes of Subpart W, while
lixiviant is being sprayed on heap leach
piles, the piles are part of the milling
process rather than an impoundment
whose function is to manage uranium
byproduct material or tailings. The final
rule does, however, cover the other
impoundments used to manage the
uranium byproduct material or tailings
associated with the heap leaching
operation and covers the heap leach pile
during the period between the
conclusion of processing and the day
that final closure begins. See Section
IV.D.
Comment: Several commenters stated
that the NRC has exclusive jurisdiction
over the radiological and non-
radiological aspects of uranium mill
operations and the nuclear energy
business and that the EPA lacks
jurisdiction, particularly once the NRC
promulgates conforming regulations.
Commenters question the need to retain
Subpart W at all, with one commenter
contending that the existence of the
Atomic Energy Act (AEA) makes
Subpart W redundant and not
necessary.
One commenter takes the position
that the EPA does not have authority to
define when uranium recovery facilities
are considered to be "active" or
involved in "operations." Instead, the
commenter states that the NRC, not the
EPA, has authority over
decommissioning and decontamination
of AEA-licensed source material
recovery facilities, including the mill
itself, site soil cleanup, final tailings
stabilization, and groundwater
restoration or corrective action. Further,
the commenter states it is inefficient for
uranium recovery operations to obtain
two separate authorizations with
essentially the same requirements for
radon risk from fluid retention
impoundments (i.e., the NRC operating
license or license amendment and the
EPA Subpart W construction approval),
and that these duplicative requirements
are inconsistent with the EPA's past
efforts towards regulatory efficiency
evidenced by the rescissions of 40 CFR
part 61, subparts I and T.
Another commenter states the
Department of Energy also has authority
to regulate this industry.
Alternatively, some commenters
supported the EPA's authority under the
CAA to regulate HAPs, particularly
radon, from uranium processing and do
not believe that the CAA limits the
EPA's regulatory authority with respect
to 11e.(2) byproduct material 11 at
uranium recovery mill operations.
Similarly, a commenter supported the
proposed clarification to 40 CFR
61.252(b) (§ 61.252(a)(2) in the final
rule) that the EPA, and not the NRC, is
the regulatory agency administering the
radon NESHAP requirements.
Response: The EPA disagrees that it
lacks authority to regulate, under CAA
section 112, the radionuclide air
11 UMTRCA amended the AEA definition of
"byproduct material" by adding a second category.
Section 11e.(2) byproduct material is "the tailings
or wastes produced by the extraction or
concentration of uranium or thorium from any ore
processed primarily for its source material content."
Federal Register/Val. 82, No. 10/Tuesday, January 17, 2017 /Rules and Regulations 5157
emissions of sources also regulated
pursuant to the AEA by the NRC. The
CAA lists radionuclides as a HAP under
CAA section 112(b)(1), and section
112(q) explicitly retains standards such
as Subpart W that were in effect before
the date of enactment of the CAA
Amendments of 1990. In addition,
UMTRCA resolves this issue by quite
explicitly stating that "[n]othing in this
chapter applicable to byproduct
material . . . shall affect the authority of
the [EPA] under the Clean Air Act of
1970, as amended ... " (42 U.S.C.
2022(e)). The legislative history is
similar: "Authorities ofthe EPA under
other laws would not be abridged by the
new requirements" (H. Rep. No. 1480,
95th Cong., 2d Sess. 6, p. 21). There is
no indication that Congress intended
UMTRCA to preempt the EPA's
regulatory authority under the CAA;
rather Congress expressly contemplated
the EPA authority to simultaneously
regulate under both legislative schemes
(54 FR 51690-51691). Similarly, the
EPA's regulation of the uranium
processing industry works in concert
with the AEA and the NRC's
regulations.
Comment: Some commenters stated
that the NRC, not the EPA, has exclusive
authority over the definition of lle. (2)
byproduct material, as well as the
material itself. Commenters question the
EPA's authority to promulgate a new
definition for "11e.(2) byproduct
material" or to equate the definition to
the term "mill tailings." The
commenters opine that the EPA may not
infringe on NRC authority by proposing
an alternative definition of 11e.(2)
byproduct material.
One cornmenter also thinks that the
EPA does not have statutory authority to
define tailings as restoration fluid
because that authority rests exclusively
with the NRC.
Response: The EPA disagrees with
these comments. The EPA has authority
to regulate radon emissions and this
authority is not limited by the AEA or
the NRC. Radionuclides, including
radon, are listed HAPs in CAA section
112(b). The EPA regulated radon
emissions from uranium byproduct
material or tailings impoundments
before the list of HAPs in CAA section
112(b) was added as part of the CAA
Amendments of 1990 and CAA section
112(q) explicitly retains standards that
were in effect before the 1990 CAA
Amendments were enacted. The EPA's
regulation of the uranium processing
industry works in concert with the
NRC's regulation. The EPA has
authority to promulgate definitions
under the CAA as it deems appropriate
and is not limited to the AEA's
definition of "byproduct material" or
"tailings," or the NRC's definition in 10
CFR 40.4. The EPA first defined
"uranium byproduct material or
tailings" when promulgating Subpart W
in 1986 (51 FR 34066, September 24,
1986). The EPA's definition identifies
the scope of material covered by the
Subpart W regulations and does not
preempt the NRC's AEA authority. The
definition in Subpart W of uranium
byproduct material or tailings is not
substantially or meaningfully different
from the NRC's definition of byproduct
material in 10 CFR 40.4 or the definition
of 11e.(2) byproduct material and
should not result in conflict. See also
Section IV.F.2.
Regarding the question of restoration
fluids, we note that the designation of
restoration fluids as "waste produced by
the extraction or concentration of
uranium from any ore processed
primarily for its source material
content" is consistent with the approach
taken by the NRC. See Staff
Requirements Memorandum-SECY-
99-013, "Recommendation on Ways to
Improve the Efficiency of NRC
Regulation at In Situ Leach Uranium
Recovery Facilities," July 26, 2000.
Comment: One commenter opposed
comments of the regulated industry
which argued that the EPA does not
have authority to directly regulate radon
emissions from uranium processing
facilities. The commenter argued that
the industry's arguments amount to an
argument the EPA lacks authority over
emissions from uranium mill tailings
impoundments. The commenter opined
that if industry wishes to remove a
tailings facility from NESHAP
regulation, it should submit a petition
showing that radon emissions are not
hazardous, but believes that such an
effort would fail. The commenter
continued that the EPA's proposed rule
continues to recognize the health
hazards of uncontrolled radon
emissions from uranium mill tailings
and the rulemaking record confirms that
CAA NESHAP regulation is a necessary
part of the EPA's role in regulating
uranium mill tailings pursuant to its
CAA and UMTRCA authorities.
Numerous commenters supported the
EPA's decision to regulate radon
emissions from uranium mill facilities.
Specifically, two commenters state that
the EPA has authority to regulate all
radon at mills and another commenter
confirmed that the EPA has a role in
regulating uranium mill tailings. A third
commenter stated that the EPA has
authority to conduct radon flux
measurements.
Response: The EPA acknowledges and
appreciates these comments. The EPA
agrees that it has authority under the
CAA to regulate radionuclide emissions
from uranium byproduct material or
tailings as radionuclides, including
radon, are listed HAPs in CAA section
112(b)(l). Data confirm conclusively
that radon-222 emissions, ambient
concentrations, bioaccumulation or
deposition of radon and its decay
products cause adverse effects on public
health and the environment.
B. Retaining the Radon Flux
Requirement for Impoundments in
Existence on December 15, 1989
1. How did we address the radon flux
requirement in the proposed and final
rules?
After reviewing stakeholder
comments and verifying the information
provided in them, we are not
eliminating the radon flux standard of
20 pCi/m2-sec for all impoundments in
existence prior to or on December 15,
1989. In the proposed rule, we provided
information to show that the
impoundments in existence prior to
December 15, 1989 met the management
practice requirements of impoundments
constructed after that date (79 FR
25394). Since the conventional
impoundments in existence prior to or
on December 15, 1989 appeared to meet
those management practice standards,
we proposed that all conventional
impoundments would be subject to the
same management practices, regardless
of the date of construction. We also
proposed that all conventional
impoundments (including those in
existence prior to or on December 15,
1989) must meet the requirements of
one of the two management practice
standards, and that the flux standard of
20 pCi/m2-sec would no longer be
required for any impoundments.
During the comment period we
received information that led us to
conclude that we had erred in stating an
equivalency between the two types of
impoundments. We originally stated
that the Sweetwater and Shootaring
impoundments had a double liner
system equivalent to the impoundments
designed after December 15, 1989. We
were incorrect. Commenters 12 showed
that the liner systems at these two
facilities were not double liners.
Additionally, we were originally
informed that Cell 3 at the White Mesa
facility would be closed by 2014. In fact,
12EPA-HQ-OAR-2008-0218-0151, -0153,
-0155, -0162. To be clear, our error was in
believing that these impoundments were
constructed in a manner that allowed them to meet
the more stringent standards that were put in place
after they were constructed. The standards
applicable to these impoundments at the time of the
1989 rulemaking did not require double liners.
5158 Federal Register/Val. 82, No. 10/Tuesday, January 17, 2017 /Rules and Regulations
it has not.13 After reviewing the
information obtained during the public
comment period, we concluded that
these impoundments do not meet the
management practice standards we
proposed for impoundments
constructed after 1989. Our analysis also
showed that the impoundments in
existence on December 15, 1989 can
monitor radon emissions to determine
compliance with the existing 20 pCi/m2-
sec standard. It is a generally available
management practice standard that
successfully limits radon emissions
from these area sources, as provided for
in CAA section 112(d)(5). Therefore, we
decided to retain the radon flux
standard (20 pCi/m2-sec) and
monitoring requirement for
conventional impoundments in
existence on or before December 15,
1989 as the applicable GACT-based
management practice. Because the 1989
rule required these impoundments to
comply with the requirements at 40 CFR
192.32(a)(1), we concluded that such a
management practice is generally
available and contributes to the control
of radon emissions as described more
fully in Section IV.A.2.
Some commenters also supported
requiring compliance with the flux
standard for all impoundments,
including those not now subject to it,
but we have concluded that to be
unnecessary if the owner/operator of an
impoundment follows the design and
other management practices outlined in
the GACT-based standard because these
measures are expected to effectively
control total radon emissions.
2. What did our updated risk assessment
tell us?
As described in the preamble to the
proposed rule, we updated the risk
analysis we performed when we
promulgated Subpart Win 1989 (79 FR
25395, May 2, 2014). We performed a
comparison between the 1989 risk
assessment and current risk assessment
approaches, focusing on the adequacy
and the appropriateness of the original
assessments.14
Because we proposed to establish
GACT-based standards to limit radon
emissions from the management of
uranium byproduct material or tailings
at uranium recovery facilities, thereby
eliminating any emissions standards
and monitoring requirements, it was not
necessary for us to update the risk
assessment. GACT is not determined on
the basis of risk. We conducted the
13EPA-HQ-OAR-2008-0218-0151, -0170.
,. "Risk Assessment Revision for 40 CFR part 61
Subpart W: Task 4-Detailed Risk Estimates,"
prepared by S. Cohen & Associates, November 2011,
Docket No. EPA-HQ-OAR-2008-0218-0078.
analysis to inform ourselves regarding
the continued protectiveness of the
radon flux standard as we considered
whether the proposed GACT approach
could be extended to impoundments in
existence on December 15, 1989. We
concluded that, even using updated risk
analysis procedures (i.e., using
procedures updated from those used in
the 1980s), the existing radon flux
standard appears to be protective of the
public health and the environment.
The updated risk assessment involved
evaluating exposures to off-site
(maximally exposed) individuals and
populations from reported total site
radon emissions at a number of uranium
recovery facilities. In doing so, we
found that the risks to individuals and
populations were comparable to or
lower than those estimated in the 1989
rulemaking. The updated risk
assessment employed the most recent
risk factors for radon inhalation, which
are age-averaged to incorporate the
sensitivity of children to radiation. The
factors used in the 1989 risk assessment
were based on exposures to adults.
This final rule retains the flux
standard for conventional
impoundments in existence on
December 15, 1989. The updated risk
assessment and our conclusion that the
radon flux standard continues to be
protective support our decision to retain
the flux standard in the rule. The
updated risk assessment is included in
the Background Information Document
(BID) for the final rule.
In developing the risk assessment and
BID, we also conducted environmental
justice analyses for the immediate areas
(i.e., counties) surrounding the existing
and proposed uranium recovery
facilities. For all of the sites considered
together, the data did not reveal a
disproportionately high incidence of
minority populations being located near
uranium recovery facilities. However,
certain individual sites may be located
in areas with high minority populations.
Those sites would need to be evaluated
during their individual licensing
processes. The data also did not reveal
disproportionately high incidence of
low-income populations being located
near uranium recovery facilities. We
also considered environmental justice
analyses that were performed during the
EPA's review of construction
applications under 40 CFR 61.08. These
analyses were conducted by EPA Region
8 in connection with the Pinon Ridge
Uranium Mill in Colorado and the Lost
Creek ISL uranium project in Wyoming.
3. What key comments did we receive
on the radon flux requirement?
We received comments stating that
the monitoring requirements for
impoundments in existence on
December 15, 1989 should be retained
and that our proposal was based on
faulty information. We also received
comments recommending that
monitoring be extended to all
impoundments. Some commenters
supported lowering the flux standard.
Comment: Many commenters opposed
the proposed elimination of the
monitoring requirement for
conventional impoundments in
existence on December 15, 1989.
Commenters expressed a general
concern that no data would be available,
but several also specifically questioned
our rationale for doing so. They
provided information indicating that the
three "existing" (i.e., pre-1989)
impoundments would not be able to
meet the work practice standards (now
designated as GACT). By contrast, a few
commenters supported eliminating the
monitoring requirement based on the
effectiveness of the management
practices.
Response: We are retaining both the
radon flux standard and the monitoring
requirement for conventional
impoundments in existence on
December 15, 1989. Commenters
provided information demonstrating
that the conventional impoundments
previously required to monitor radon
emissions (i.e., Cell 3 at the White Mesa
Mill and the impoundments at
Shootaring Canyon and Sweetwater) are
unable to meet the GACT-based
standards. Although we agree with the
other commenters that the GACT-based
standards are effective in limiting radon
emissions, they were predicated on the
impoundments meeting certain
minimum requirements. Because
comments included information
demonstrating some conventional
impoundments in existence on
December 15, 1989 do not meet these
minimum requirements or did not enter
closure as the EPA expected, it is
necessary and appropriate to retain the
radon flux standard and monitoring
requirement for these units.
Comment: A number of commenters
expressed the view that monitoring
should not be limited to conventional
impoundments constructed before
December 15, 1989. They asserted that
they have little confidence that the
management practices in place for
newer impoundments are effectively
being implemented, and argue that it is
not possible to verify their effectiveness
without monitoring. The commenters
Federal Register/Val. 82, No. 10/Tuesday, January 17, 2017 /Rules and Regulations 5159
also expressed concern that
impoundments that are drying out
("dewatering") are emitting larger
amounts of radon, and that without
monitoring the operators are not
compelled to provide additional soil
cover.
Response: The EPA reviewed the
management practices prescribed for
conventional impoundments
constructed after December 15, 1989
and reaffirmed its determination that
they effectively reduce radon emissions.
The radon flux standard and monitoring
requirement were instituted in the 1989
rulemaking to provide a means to
control radon emissions from
impoundments that were constructed
and operated according to earlier
industry practices. The EPA found that
the management practices would
represent a demonstrable improvement
compared to those industry practices.
The Agency has concluded that the
appropriate action to satisfy its CAA
review is to establish these management
practices as GACT-based standards. We
agree that operators need to take
appropriate action to control radon
during the period when the
impoundment is operating, and not
allow excessive drying during standby
or other periods of limited activity. The
management practices are intended to
limit radon emissions. For conventional
impoundments and heap leach piles,
the management practices limit the
exposed area and/or number of
impoundments at a uranium recovery
facility, which effectively limits the
opportunity for radon emissions. For
non-conventional impoundments,
ensuring that the material is saturated
will limit radon emissions by
approximately 95% compared to dry
materials.
Comment: Some commenters favored
retaining the emissions standard for
conventional impoundments
constructed before December 15, 1989,
but at a more stringent level. One
commenter stated that a standard below
10 pCi/m2-sec would be appropriate,
and also that a review of current control
technologies would support a standard
of 1 to 5 pCi/m2-sec. Another
commenter noted that the 1989
Background Information Document
found that a 6 pCi/m2-sec standard was
achievable and cost effective. This
general view was supported by other
commenters, with one stating that the
20 pCi/m2-sec standard was established
"for economic reasons." One
commenter also expressed concern that
the EPA did not evaluate monitoring
methods other than Method 115, and
specifically referred to the Landauer
RadTrak.
Response: Because the proposal
involved eliminating all monitoring, the
EPA did not evaluate the impacts of
implementing other standards or
monitoring methods. However, we did
reaffirm that the 20 pCi/m2-sec standard
remains protective, and we also find
that Method 115 remains an appropriate
method to measure radon emissions
from conventional impoundments.15 We
disagree with the characterization of the
20 pCi/m2-sec flux standard as based on
economics. As stated in the preamble to
the 1989 final rule, when determining
an ample margin of safety for the rule,
"As explained above, the risks from
current emissions are very low. A
NESHAP requiring that emissions from
operating mill tailings piles limit their
emissions to no more than 20 pCi/m2-
sec represents current emissions. EPA
has determined that the risks are low
enough that it is unnecessary to reduce
the already low risks from the tailings
piles further" (54 FR 51680, December
15, 1989). The update of the 1989 risk
assessment conducted for this
rulemaking confirms that the risk to
public health from uranium byproduct
material or tailings managed at
operating uranium recovery facilities is
comparable to, if not lower than, the
level ofrisk considered presumptively
acceptable in the 1989 rulemaking. See
Section IV.B.Z.
C. GACT for Conventional
Impoundments Constructed After
December 15, 1989
1. How did we address conventional
impoundments constructed after
December 15, 1989 in the proposed and
final rules?
We proposed to designate the
management practices promulgated in
the 1989 rulemaking for impoundments
constructed after December 15, 1989 as
GACT-based standards for all
conventional impoundments. In doing
so, we evaluated the reasoning used in
the 1986 and 1989 Subpart W
rulemakings to determine that the
phased disposal and continuous
disposal management practices protect
public health with an ample margin of
safety (54 FR 51681).
We initially defined these two
management practices because they
provided a means for newly-designed
impoundments to limit radon
emissions, either by limiting the overall
size of the impoundment or by limiting
the area of dried (dewatered) uranium
byproduct material or tailings that can
1s '"Report on the Review of Method 115 to
Monitor Radon Emissions From Uranium Tailings."'
prepared by S. Cohen & Associates, September
2008, Docket No. EPA-HQ-OAR-2008-0218-0122.
be exposed at any time. We found the
two management practices to improve
performance (risk to exposed
individuals and population) by
approximately 35% to more than SO%,
respectively, compared to earlier
practices of constructing larger
impoundments without limiting their
number or the exposed area. The
potential for larger impoundments or
many smaller impoundments to remain
uncovered and their radon emissions
uncontrolled if bankruptcy prevented
proper closure was considered to
provide a further advantage to the two
management practices (54 FR 51680).
Owners and operators of uranium
recovery facilities in the United States
have all used the phased disposal
method for management of uranium
byproduct material or tailings in
conventional impoundments, making it
a generally available management
practice to control radon emissions. We
have found no reason to believe that this
method is unworkable, unreasonably
burdensome or ineffective in limiting
radon emissions. Keeping the uranium
byproduct material or tailings wet or
partially covered, as is typical practice,
further reduces radon emissions. These
industry practices also clearly
demonstrate that the phased disposal
method is a generally available
technology. In addition, while there has
been no use of the continuous disposal
method in the United States, it has been
successfully employed in other
countries, and was proposed for use by
some U.S. companies in the 1980s.
Therefore, this final rule designates the
phased disposal and continuous
disposal methods as elements of GACT-
based standards for conventional
impoundments constructed after
December 15, 1989. Because these
impoundments are separately required
to comply with the requirements at 40
CFR 192.32(a)(1), we concluded that
such a management practice is generally
available and contributes to the control
of radon emissions as described more
fully in Section IV.A.Z. Conventional
impoundments must also comply with
the construction requirements in 40 CFR
192.32(a)(1).
2. What key comments did we receive
on conventional impoundments
constructed after December 15, 1989?
We received some comments
questioning the effectiveness of the 1989
management practices and our decision
to adopt those practices as GACT-based
standards. These commenters argued
that there is no basis for concluding that
these practices are effective in limiting
radon emissions when no confirmatory
monitoring has been done. They further
5160 Federal Register/Val. 82, No. 10/Tuesday, January 17, 2017/Rules and Regulations
assert that the work practices were
inadequate because practices that are
actually effective in reducing radon
emissions, such as maintaining a soil or
water cover, were not elements of the
1989 work practices or the proposed
GACT management practices.
Comment: Several commenters
believe our GACT standards are
unsupported because there is no
monitoring data to demonstrate the
effectiveness of the measures for post-
1989 impoundments. Commenters
criticize the analysis of control
technologies in the BID prepared to
support the proposal as flawed and
insufficient. One commenter states that
limiting the size of the impoundment is
not in itself an effective means to limit
radon emissions without monitoring,
reporting, and the requirement of liquid
or soil application. This and another
commenter also believe that any new
impoundments should be required to
use the continuous disposal method, as
the commenters view the phased
disposal method as ineffective in
controlling radon emissions,
particularly when using water cover.
The first commenter further disputes the
reliance on 40 CFR 192.32(a)(1) as an
effective control technology to limit
radon emissions. Another commenter
also suggests that the most effective
control technology is an emissions limit
coupled with monitoring, and believes
the rule should be re-crafted along those
lines.
Commenters also asserted that we
have not sufficiently examined other
technologies employed either in other
countries or in related industries. One
commenter argues that other
technologies (e.g., dry-stack placement,
paste tailings, solidification) may be
superior to open-air storage and cover in
conventional impoundments, but were
not evaluated in the BID.
Response: Our review under CAA
section 112(q)(1) focused on the
management practices applicable to
post-1989 conventional impoundments
(i.e., continuous or phased disposal).
However, as noted in the proposal, we
also considered control technologies
employed at other facilities in the same
industrial sector and internationally. We
found that the continuous and phased
disposal methods adequately control
radon emissions and meet the
requirements for GACT-these
management practices are generally
available and effectively prevent
adverse health impacts from radon
emissions. We recognize the
commenter's position that the design
and engineering requirement in 40 CFR
192.32(a)(1) does not directly limit
radon emissions. However, the design
requirement serves two purposes.
Retaining moisture or maintaining
liquid levels within the impoundment
does effectively inhibit radon flux while
at the same time preventing releases to
ground water. It is possible and
important to achieve both goals.
Regarding the area limitation, we
disagree with the commenters. The
focus of the 1989 analysis was on
limiting the surface area from which
radon would be emitted.16 Surface area
is directly correlated with radon
emanation-the smaller the surface, the
lower the overall emissions, given
similar materials. While the 1989
rulemaking clearly recognized that the
use of soil cover or water are also
effective in reducing radon emissions
and were commonly employed by
industry, the acceptability ofthe
promulgated work practices was not
predicated on those additional measures
being employed, except to the extent
that it was necessary to limit the
exposed area when using the
continuous disposal method.
Comment: Some commenters stated
that the designation as an area source is
not in itself sufficient to justify use of
GACT. Commenters cite the legacy of
contamination associated with the
uranium industry as justifying the
"strongest preventive measures."
Similarly, other commenters accuse the
industry of "cutting corners" and
believe GACT "runs counter to
everything EPA knows" about past
practices. Another commenter argues
that the Agency's "discretion" must be
supported by full and complete
explanation and justification. These and
other commenters also believe the EPA
has not sufficiently considered MACT
approaches.
Response: When setting standards, the
EPA aims to ensure that the
promulgated standards effectively
protect against adverse environmental
and health impacts, regardless of
whether such standards are based on
GACT or MACT. For area sources, the
Administrator has the discretion under
CAA section 112(d)(5) to set standards
based on GACT in lieu of setting MACT
standards under sections 112(d)(2) and
(d)(3), which is required for major
sources. See Section IV.A.2 for
discussion of regulating these units as
area sources. Under CAA section
112(d)(5), the Administrator may elect
to promulgate standards or requirements
for area sources "which provide for the
use of generally available control
16 "Either one of these technologies will ensure
that future risks will be kept under control by
assuring that only small amounts of tailings are
uncovered at any time" (54 FR 51681 (emphasis
added)).
technologies or management practices
by such sources to reduce emissions of
hazardous air pollutants." Consistent
with section 112(d)(5), we are revising
Subpart W to reflect GACT -based
standards. Based on the EPA's
evaluation of available information, the
GACT-based approach in the final rule
provides the necessary protections from
management of uranium byproduct
material or tailings. The emission
standards and management practices
established in Subpart W will
appropriately reduce radon emissions
from uranium recovery facilities.
D. GACT for Heap Leach Piles
1. How did we address heap leach piles
in the proposed and final rules?
a. When are heap leach piles regulated
under Subpart W?
We proposed to regulate the heap
leach pile from the moment that
uranium begins leaching from the ore
pile. This approach was based on the
view that uranium byproduct material
or tailings is produced the moment the
lixiviant passes through on its first pass
and uranium begins to be leached from
the ore (79 FR 25403). At the point of
uranium movement out of the heap,
what remains is uranium byproduct
material or tailings as defined by 40 CFR
61.251(g). In other words, what remains
in the heap is the waste produced by the
extraction or concentration of uranium
from ore processed primarily for its
source material content. The heap leach
pile manages that uranium byproduct
material or tailings, even as the pile is
further leached to extract uranium. The
proposal placed the emphasis on the
presence of uranium byproduct material
or tailings in the heap leach pile.
We also requested comment on an
alternative approach we described in
the proposal (79 FR 25398). Under this
approach, heap leach piles would not
fall under Subpart W until after leaching
is permanently discontinued. This
approach is based on the view that, as
long as the heap is being leached, the
ore on the heap leach pad is being
processed. While uranium byproduct
material or tailings may exist in the
heap, the heap does not become engaged
in managing uranium byproduct
material or tailings until leaching is
permanently discontinued. This view
places the emphasis on the continued
extraction of uranium from the heap
leach pile. Only after that extraction
potential is exhausted, and only
uranium byproduct material or tailings
remains, would the pile fall under
Subpart W.
Many commenters (primarily those
from industry) supported basing the
Federal Register/Val. 82, No. 10/Tuesday, January 17, 2017 /Rules and Regulations 5161
final rule on this alternative view. These
commenters argued that the heap
leaching cycle is essentially serving the
same function as the successive
leaching of uranium that occurs in the
leach and counter current decantation
circuits of a conventional mill, where
the ore pulp is successively leached in
a series of leach tanks and thickeners.
The material does not become uranium
byproduct material or tailings (i.e.,
waste) and fall under the requirements
of Subpart W until it leaves the final
thickener and is discharged to the
tailings impoundment.
Although we proposed to bring the
heap under the jurisdiction of Subpart
W based upon the presence of uranium
byproduct material or tailings within
the pile, after further consideration we
find the commenters' reasoning
compelling and more consistent with
previous application of the rule. Subpart
W has historically not regulated radon
emissions from the milling or extraction
process, even at the intermediate points
where residuals from uranium
extraction make up the bulk of the
material being processed, which may be
the situation as processing of the heap
progresses. Subpart W has regulated
only the disposition of the wastes at the
end of the separations process.
Consistent with this precedent, the heap
leach pile is like a conventional
impoundment and will be subject to
Subpart W once uranium extraction is
complete and only uranium byproduct
material or tailings remains. Until that
time, the heap is considered to be either
an unprocessed ore pile or a uranium
recovery facility. Thus, heap leach piles
are regulated by Subpart W only during
the period between the end of
processing (i.e., after the pile's
operational life) and the beginning of
closure. As described in Section
IV.F.l.a, and consistent with the
requirements applicable to conventional
and non-conventional impoundments,
the final rule requires that operators
provide written notification to the EPA
and the NRC that the heap leach pile is
being managed under an approved
reclamation plan for that pile or the
facility closure plan. Impoundments
used to manage liquids resulting from
the heap leach operation, to the extent
they contain uranium byproduct
material or tailings, are considered non-
conventional impoundments subject to
Subpart W, as defined in today's final
rule.
There is a significant aspect of heap
leach pile management that is important
to these regulations. Several
commenters from industry stated that a
heap leach pile, unlike a conventional
impoundment, will immediately begin
closure after processing has concluded
(either closure in place, or possibly
removal for placement in a conventional
tailings impoundment). If that is the
case, there will be no period when the
heap is subject to the requirements of
Subpart W. Because there are no heap
leach facilities operating in the United
States, we have no basis for disputing
these statements of industry's intent.
Nevertheless, we have concerns that
these good intentions may prove
insufficient to ensure that closure takes
place as expeditiously as the
commenters believe. There is some
potential that heap leach piles will
complete processing but not
immediately enter closure. During such
a period the owner or operator is only
using the pile to manage uranium
byproduct material or tailings, and the
heap leach pile is then subject to the
requirements of Subpart W. The
specification in the final rule that final
closure does not begin until the operator
has provided a written notification to
the EPA and the NRC will minimize the
potential for confusion regarding the
applicability of Subpart W. A further
concern might be that operators
continue "processing" the pile
indefinitely, thereby postponing the
costs associated with closure. This
would be a matter for the NRC or NRC
Agreement States to consider.
We recognize that heap leach piles
will emit radon while they are being
processed. However, as explained
above, Subpart W has traditionally been
applied to uranium byproduct material
or tailings after exiting the extraction
process. Thus, Subpart W has not been
applied to other sources of radon at
uranium recovery facilities where
wastes are present, such as material in
thickeners or other processing units.
The NRC, or NRC Agreement State,
regulates the radionuclide emissions
from all sources at a uranium recovery
facility. The operator is required to
report particulate radionuclide and Rn-
222 concentrations at the facility
boundary. Thus, radon emissions from
sources not covered under Subpart W,
including those from the raw ore in
heap leach piles or processed
yellowcake, are captured by the NRC
reporting requirements. However, we
emphasize that the best way to control
radon emissions from heap leach piles
after they have completed processing is
to expeditiously close them and install
a permanent radon barrier.
b. Phased Disposal
As described in the preceding section,
after reviewing comments, we have
decided to require that heap leach piles
conform to the standards for other
uranium recovery facility
impoundments only during the period
between processing (i.e., after the pile's
operational life) and closure. Heap leach
piles meeting this description will
conform to the GACT -based standard of
phased disposal (piles that are 40 acres
or less in area, and no more than two
in this status at any time) and follow the
construction requirements of 40 CFR
192.32(a)(l). We note that piles that will
close in place would separately be
required by NRC or Agreement State
license to meet the construction
requirements.
Since heap leach piles are in many
ways similar to the design of
conventional impoundments, the same
combination of phased disposal
management practices (limitation to no
more than two heap leach piles that are
no longer being processed but have not
yet entered closure, each one no more
than 40 acres in area) that limit radon
emissions from conventional
impoundments will also limit radon
emissions from heap leach piles.
Because this management practice is
generally available for conventional
impoundments, heap leach piles can
control radon emissions through the
same practice. We determined that
phased disposal is a GACT-based
management practice that will
effectively limit radon emissions from
these units. Use of the phased disposal
management practice will limit the
amount of exposed uranium byproduct
material or tailings that can emit radon.
Because these units will be separately
required to comply with the
requirements at 40 CFR 192.32(a)(l), we
concluded that such a management
practice is generally available and
contributes to the control of radon
emissions as described more fully in
Section IV.A.2.
c. Regulating the Moisture Content of
Heap Leach Piles
The third issue we are addressing is
the proposed requirement for heap leach
piles to maintain a 30% moisture
content. In the proposal we recognized
that owners and operators of
conventional impoundments also limit
the amount of radon emitted by keeping
the uranium byproduct material or
tailings in the impoundments covered,
either with soil or liquids (79 FR 25398).
At the same time, we recognized that
keeping the uranium byproduct material
or tailings in the heap in a saturated or
near-saturated state (in order to reduce
radon emissions) is not a similarly
practical solution. In the definitions at
40 CFR 61.251(c) we have defined
"dewatered" tailings as those where the
water content of the tailings does not
5162 Federal Register/Val. 82, No. 10/Tuesday, January 17, 2017 /Rules and Regulations
exceed 30% by weight. We proposed to
require operating heaps to maintain
moisture content of greater than 30% so
that the uranium byproduct material or
tailings in the heap is not allowed to
become dewatered, which would allow
more radon emissions. We specifically
asked for comment on the amount of
liquid that should be required in the
heap, and whether the 30% figure was
a realistic objective.
After considering stakeholder
comments and information, we
conclude that it is physically impossible
to maintain a 30% moisture content
within the heap leach pile and have it
remain stableP Calculations submitted
by numerous commenters showed that
maintaining a 30% moisture content
across the heap leach pile would require
the pile to be almost submerged.
Further, such a condition would place
a great amount of hydraulic head on the
liner system, potentially causing failure.
So, the final rule does not include the
requirement to maintain 30% moisture
content, even for the period between the
end of processing and the beginning of
closure, when the pile will be allowed
to "dry" in preparation for placing a
permanent radon barrier. We do
encourage the NRC and facility
operators to consider the appropriate
use of soil and liquid to limit radon
emissions from heap leach piles, as well
as methods to reduce the potential for
wind erosion (e.g., by spraying or
covering the pile when not actively
being leached). However, we emphasize
that the best way to control radon
emissions from heap leach piles after
they have completed processing is to
expeditiously close them and install a
permanent radon barrier.
2. What key comments did we receive
on heap leach piles?
Comments submitted on heap leach
piles focused on the proposed approach
to regulation and the proposed
requirement to maintain a 30% moisture
content.
Comment: Most commenters on this
topic disagreed with our proposal to
regulate heap leach piles under Subpart
W while they are being processed.
These commenters expressed the view
that material in the heap leach pile does
not become uranium byproduct material
or tailings until processing is complete,
including a final rinse. As stated by one
commenter, "Heap leaching is part of
the milling process, and the proposed
rules would interfere with such
processing operations." The commenter
believes that, in essence, the heap leach
'7 EPA-HQ-OAR-2008-0218-0144, -0162,
-0169, -0170.
pile is analogous to the conventional
mill, which we have not previously
proposed to regulate under Subpart W.
Further, several of these commenters
stated that heap leach piles will
immediately enter into closure upon the
cessation of processing, so there is no
period when they are "operating"
simply as uranium byproduct material
or tailings management units. As a
result, they see no time at which
Subpart W can apply to heap leach
piles.
Some commenters raised the
distinction between "close in place"
piles and "on-off" piles. Commenters
explain that the latter operations
involve the removal of the processed
heap and placement in a conventional
impoundment. In this case, the
commenters agree that the uranium
byproduct material or tailings from the
heap, and the impoundment into which
it is placed, would be subject to Subpart
w.
Response: The final rule does not
include requirements related to heap
leach piles undergoing processing. We
acknowledge the comments that
indicate that uranium byproduct
material or tailings is generated once
processing begins. To ensure that heap
leach piles are regulated consistent with
other units subject to Subpart W, we
conclude that the heap leach pile is, for
purposes of Subpart W, more
appropriately considered part of the
milling process than as an
impoundment whose function is to
manage uranium byproduct material or
tailings. In other words, while the pile
may contain uranium byproduct
material or tailings, the pile itself is the
ore from which uranium is being
extracted, and does not become a waste
until that process is completed. The rule
does, however, cover the other
impoundments used to manage the
uranium byproduct material or tailings
associated with the heap leaching
operation.
We appreciate the commenter's
description of the "on-off" heap leach
piles and agree that if a processed heap
is removed and placed in a conventional
impoundment, that impoundment is
subject to Subpart W.
We emphasize the importance of
closing piles "as expeditiously as
practicable considering technological
feasibility" once processing concludes.
Industry commenters provided
assurances that there would be no
untoward delay in beginning the closure
process. We encourage NRC to ensure
that this is the case. Closure is a more
comprehensive system to assure that
emissions are minimized for the long
term. Once processing has ended, the
heap leach pile serves only as a uranium
byproduct material or tailings
management structure. Such a pile will
be subject to Subpart W if the operator
has not informed regulators that it is
being managed under an approved
reclamation plan. As set forth in the
final rule, in such a situation, the
phased disposal restrictions will apply
(no more than two such piles at any
time, with area no greater than 40 acres
each). Heap leach piles subject to
Subpart W must also comply with the
construction requirements at 40 CFR
192.32(a)(l). Timely closure of heap
leach piles will be better for public
health than maintaining piles in an
interim state in which they fall under
Subpart W.
Comment: Some comments supported
our proposed approach, and
recommended that we establish an
emissions standard and monitoring
requirements for heap leach piles. These
commenters agree that, because
uranium byproduct material or tailings
is generated within the heap leach pile
at the time processing begins, the pile
serves to manage that material during
the operation of the facility. These
commenters believe this function brings
it under the scope of Subpart W. These
commenters also take a more expansive
view, and believe the EPA is obligated
under the CAA to address the entire
process at heap leach facilities in the
final rule. In this approach, Subpart W
would apply to ore stockpiles, ore
crushing and heaps that are awaiting
processing, as well as to the heap until
placement of the final cover. One
commenter further recommends that
open-air heap leaching not be approved,
when leaching can be conducted more
safely and with lower emissions inside
a designed enclosure.
Response: As stated in the response to
the previous comment, Subpart W will
not regulate heap leach piles while they
are being processed (i.e., during the
heap leach pile's operational life). We
proposed to apply certain management
practices to heap leach piles, but did not
propose to establish a radon emission
standard and monitoring requirements.
Regarding the extension of Subpart W to
ores and other similar materials, when
the EPA initially promulgated Subpart
Win 1986, we identified radon as the
radionuclide released to air that
presented the highest risk at uranium
recovery facilities and determined that
units managing uranium byproduct
material or tailings were the most
significant source of radon emissions
(51 FR 34056). Since 1986 andre-
promulgation in 1989, Subpart W has
only regulated units that manage
uranium byproduct material or tailings
Federal Register/Val. 82, No. 10/Tuesday, January 17, 2017 /Rules and Regulations 5163
at uranium recovery facilities. 40 CFR
61.250. Other potential emission points
in these facilities were not previously
the subject of Subpart W regulation and
were not assessed for the 1989
rulemaking. The EPA's CAA section
112(q) review of Subpart W was limited
to the existing standard. Because
Subpart W did not regulate other
potential emission points, the EPA did
not include any other potential emission
points in its CAA section 112(q) review.
In this final rule, the EPA continues to
regulate the management of uranium
byproduct material or tailings from
conventional mills, from in situ leach
facilities and from heap leach piles.
Comment: A significant number of
commenters raised objections to the
proposed requirement that heap leach
piles be maintained at 30% moisture
content as a means to limit radon
emissions. Calculations submitted by
numerous commenters have shown that
to maintain a 30% moisture content
across the heap leach pile would require
the pile to be almost submerged. The
commenters broadly agreed that this is
an unrealistic goal that could severely
undermine the stability of the pile.
Further, it would result in a
significantly greater hydraulic head,
which raises the risk of liner failure.
Several commenters also consider the
monitoring requirement to be difficult to
implement. As with the proposal to
maintain one meter of liquid in non-
conventional impoundments, concern
was also expressed regarding the source
of the water. Commenters suggested that
a simpler water balance, which would
involve calculations of the amount of
liquid entering and leaving the pile,
would be a more implementable method
of estimating moisture content.
Response: Recognizing the difficulties
associated with maintaining a 30%
moisture content across the heap leach
pile, the final rule does not include a
requirement related to the moisture
content of heap leach piles. That being
said, keeping the pile wet or covered
will help reduce radon emissions. We
encourage operators as well as the NRC
and NRC Agreement States to consider
methods that can be applied during the
operational life of the heap leach pile.
E. GACT for Non-Conventional
Impoundments
1. How did we address non-
conventional impoundments in the
proposed and final rules?
The purpose of non-conventional
impoundments, also known as
evaporation or holding ponds, is to
manage liquids generated during and
after uranium processing operations. We
proposed to require one meter of liquid
to remain in the impoundment at all
times (79 FR 25411). The liquid cover
was proposed as a management practice
that would limit radon emissions from
the uranium byproduct material or
tailings.
The Subpart W regulation as
promulgated in 1989 did not clearly
distinguish between conventional
tailings impoundments and those
operating as ponds (i.e., those defined as
"non-conventional impoundments" in
this final rule). The proposed regulation
intended to clarify this distinction.
For non-conventional impoundments,
the proposed rule allowed for an
unlimited number of units to be
operating, with no size limitation, but
required that a depth of one meter of
liquid be kept above any precipitated
solids (uranium byproduct material or
tailings). The use of the word "liquid"
is important here. Typically, operators
divert process water to evaporation or
holding ponds, where it may be
recycled, treated, evaporated, or
disposed by injection. Thus, it is likely
that the liquid entering the
impoundment will contain uranium
byproduct material or tailings in
solution or suspension. Some portion of
this uranium byproduct material or
tailings will settle out into sediments. In
our proposal we did not specify that the
one meter of liquid covering a non-
conventional impoundment be fresh
water; however, we did refer to "water"
in the preamble, and the comments
demonstrate that there has been some
confusion about this point.
Various commenters described the
cost of locating fresh water in the semi-
arid and arid western portions of the
United States in order to meet the one
meter requirement. Other comments
focused on the limitations in
operational flexibility that a fresh water
cover would create by changing the
chemistry of a stream that is often
recycled back into the extraction
process, or noted that this requirement
would require re-design of
impoundments.
We recognize that this requirement
could result in the need to use large
volumes of water that may not be
readily available in the arid to semi-arid
areas in which most uranium recovery
facilities operate. Even for facilities that
maintain large volumes of process water
in ponds, there would likely be some
demand for fresh water as a supplement
to maintain the required liquid level.
Further, maintaining this level of liquid
cover would result in placing
significantly more hydraulic head on
the liner systems for the impoundments,
which is counter to existing state and
federal regulations and guidelines for
operating these systems, as well as a
concern to the Agency that the liner
would be more susceptible to failure.
In light of these comments, we took a
closer look at the proposed requirement.
The best indicator of potential Rn-222
emissions during the impoundment's
operating period is the concentration of
Ra-226 in the liquid and sediment. The
BID to support the 1989 rulemaking
indicates that the Ra-226 concentrations
in conventional uranium byproduct
material or tailings is as much as an
order of magnitude higher than
evaporation pond sediments at the same
uranium recovery facility (1989 BID
Volume 2, Risk Assessments, EPA/520/
1-89-006-1, Table 9-2, Docket No.
EPA-HQ-OAR-2008-0218). We have
recognized that keeping uranium
byproduct material or tailings in
conventional impoundments wet helps
to limit radon emissions. Moreover, this
management practice is used throughout
the industry, even in arid regions, and
can thus be considered "generally
available." We have further recognized
that the difference between uranium
byproduct material or tailings that are
saturated and those covered with one
meter of liquid is negligible (79 FR
25398). Therefore, the final rule's
requirement that solids remain saturated
achieves the same goal as the proposed
standard of maintaining a one-meter
liquid cover.
Commenters also expressed concern
over Rn-222 emissions resulting from
Ra-226 dissolved in the liquid present
in non-conventional impoundments, as
opposed to solid materials in the bottom
of the impoundment. A number of
commenters questioned our conclusion
that radon emissions from uranium
byproduct material or tailings in non-
conventional impoundments could be
greatly reduced by keeping the solids
saturated, and reduced to nearly zero by
maintaining a liquid cover. The BID
shows in Figure 12 that 100% saturated
soil reduces radon emanation by nearly
95% compared to dry material, while
one meter of liquid provides a further
reduction of about 93%, or an overall
reduction of greater than 99% (BID
Equation 5.1).16 In either case, radon
emissions from non-conventional
impoundments would be controlled to
levels that represent limited risk to
public health. However, commenters
argued that actual data on the liquid
contents of non-conventional
impoundments (primarily from the
'"See also "Risk Assessment Revision for 40 CFR
part 61 Subpart W: Task 5-Radon Emissions from
Evaporation Ponds," S. Cohen & Associates,
November 2010, Docket No. EPA-HQ-OAR-2008-
0218-0123.
5164 Federal Register/Val. 82, No. 10/Tuesday, January 17, 2017/Rules and Regulations
White Mesa mill), when evaluated using
a correlation in the updated risk
assessment, showed radon emissions
well in excess of 20 pCilm2-sec.
We carefully evaluated the data and
emissions analyses submitted by
commenters. We determined that the
data cited by the commenters did not
support their conclusions. We conclude
that our analysis in the proposal was
correct regarding the characteristics of
non-conventional impoundments and
the radon attenuation that could be
achieved. See Section IV.E.2 for more
detail on this issue.
To summarize, we received comments
that raise concerns regarding the
economic and technical feasibility, as
well as the practical effect, of specifying
a liquid level for non-conventional
impoundments. We further confirmed
that keeping the sediments in a non-
conventional impoundment at 100%
saturation is nearly as effective as
maintaining one meter of water (liquid)
cover (Figure 12 in the BID for the final
rule). The cost and logistics of
maintaining a one-meter liquid cover in
arid regions also favor maintaining
saturation, especially given that
saturation effectively controls emissions
and will limit economic impacts.
We evaluated management practices
in use at non-conventional
impoundments in the industry that
could achieve the goal of limiting radon-
222 emissions from these units. These
units are designed to hold liquid, and
typically any uranium byproduct
material or tailings contained in these
impoundments is covered by liquid.
Maintaining a liquid cover over the
uranium byproduct material or tailings
would effectively control radon and is a
practice that is generally available to
owners and operators of non-
conventional impoundments. Therefore,
we have revised the proposed rule
language to indicate that the solids in a
non-conventional impoundment must
remain saturated at all times. In this
final rule, we are establishing this
condition, along with the liner
requirements in 40 CFR 192.32(a)(1), as
GACT-based standards for non-
conventional impoundments. As noted
above, this will reduce radon emissions
by approximately 95% compared to dry
conditions. We recognize that operators
may still have to add water at times to
ensure that the uranium byproduct
material or tailings remain saturated,
particularly during standby or high-
evaporation periods. However, we
anticipate that the need for additional
water will be much less than would be
necessary to maintain one meter of
liquid. Because these impoundments are
separately required to comply with the
requirements at 40 CFR 192.32(a)(1), we
concluded that such a management
practice is generally available and
contributes to the control of radon
emissions as described more fully in
Section IV.A.2.
The final rule requires that visual
evidence of saturation must be recorded
and maintained by the owner/operator
of the non-conventional impoundment,
which we anticipate can be obtained
using a smartphone or a digital camera
during the routine daily inspections
required by NRC regulations. Written
observations must be recorded daily,
with digital photographs to be taken at
least weekly. Photographs including
embedded metadata must be uploaded
to the Subpart W Impoundment
Photographic Reporting (SWIPR) Web
site maintained by the EPA on at least
a monthly basis, beginning on the
effective date ofthis final rule.19 Until
that time, and subsequently should the
SWIPR site be unavailable, digital
photographs must be maintained by the
facility owner/operator and provided to
the EPA or authorized State upon
request. Should the operator determine
that the liquid has fallen to a level that
exposes solid materials, the operator
must correct the situation within one
week, or other such time as specified by
the EPA or the authorized State. This
provides flexibility if the operator needs
to take the impoundment out of service
for a longer period to address the
situation, such as to repair the liner.
Photographs must be taken that show
conditions before and after the liquid
level is adjusted to verify that
appropriate corrective actions have been
taken. There is no limit on the size or
number of non-conventional
impoundments.
2. What key comments did we receive
on non-conventional impoundments?
We received a variety of comments
related to non-conventional
impoundments. Many were related to
the proposed requirement to maintain
one meter of liquid in the
impoundment. Others related to the
potential for radon emissions from
liquids in the impoundments, and
whether those risks were properly
characterized.
Comment: Many commenters opposed
the proposed requirement to maintain
one meter of liquid in the
impoundment. Commenters primarily
cited cost and the logistical difficulty of
obtaining and transporting water as
19SWIPR is accessed through the EPA's Central
Data Exchange (CDX) (https://cdx.epa.gov).
Information submitted to SWIPR is available to the
public after review.
making this proposed requirement
overly burdensome, particularly in the
arid West. A few commenters noted that
impoundments that had already been
approved and operating were not
constructed with a depth that could
accommodate an additional meter of
water, potentially necessitating costly
renovation. Other commenters noted
that this requirement would have effects
on the facility operation, where it is
necessary to manage evaporative or
holding capacity, and to control the
characteristics of liquids that may be
recycled through the process. The
additional stress on the impoundment
liner was also raised.
Some commenters questioned the
need for this requirement, and noted
statements in previous rulemakings that
the difference between saturation and
one meter of water is negligible.
Commenters further argued that non-
conventional impoundments present a
small risk in any case. A few
commenters suggested that a better
approach would be to require that solid
materials in the impoundment remain
saturated, with no solids visible above
the liquid level.
Response: We recognize the concerns
raised regarding maintaining one meter
of liquid in non-conventional
impoundments. Because we determined
that radon emissions can be controlled
if the solids in non-conventional
impoundment remain saturated, the
final rule does not include a
requirement to maintain one meter of
liquid in the impoundments. Instead,
the final rule adopts the approach
suggested by the commenters. Solid
materials in the impoundment must
remain saturated, with no solids visible
above the liquid level. This will achieve
a reduction ofroughly 95% compared to
emissions from dry material. Saturation
must be documented by written and
visual records, with digital photographs
taken on at least a weekly basis. We
disagree that the non-conventional
impoundments present such a small risk
that they need not be regulated under
Subpart W.
Comment: Commenters find
difficulties in measuring compliance
with the proposed one meter liquid
requirement. One commenter believes
direct measurements will be difficult
because of the density of sediments and
may present health and safety risks to
workers. The commenter suggests that
calculations based on mass and liquid
balances would be more effective.
Another commenter makes a similar
suggestion, that the one meter
requirement be replaced with a
calculation to take into account site-
specific factors and give operators
Federal Register/Vol. 82, No. 10/Tuesday, January 17, 2017 /Rules and Regulations 5165
greater flexibility. A third commenter
sees problems with the slope of the
impoundment and the distance that
must be observed, and notes that past
experience suggests that measuring
devices (such as pressure transducers)
will need frequent maintenance and
calibration. The commenter prefers to
have a simple permanent indicator
allowing visual confirmation, rather
than measurement.
Response: We appreciate these
comments and thoughtful suggestions.
The final rule does not include a
requirement to maintain one meter of
liquid in the impoundments. Instead,
the final rule requires that solid
materials in the impoundment must
remain saturated, with no solids visible
above the liquid level. Although we
proposed a one meter liquid cover,
comments and further evaluation
persuaded us that keeping solids
saturated controls emissions nearly as
effectively as maintaining a one-meter
liquid cover. As explained in Section
IV.E.1, we have recognized that keeping
uranium byproduct material or tailings
wet helps to limit radon emissions. We
have further recognized that the
difference between uranium byproduct
material or tailings that are saturated
and those covered with one meter of
liquid is negligible. See Section IV .E.1
and 79 FR 25398.
Comment: Some commenters argue
that the potential for radon emissions
from non-conventional (liquid)
impoundments has been greatly
understated. They state that the general
position taken by regulatory agencies
(including the EPA) and industry that
these impoundments represent a
negligible source of radon compared to
the solids in conventional
impoundments is not supported by data.
In particular, the commenters believe
that radium in solution or suspension in
the liquids has been overlooked as a
potential source of radon, compared to
solids or sediments in the bottom of the
non-conventional impoundments.
Commenters cited data from the 2013
and 2014 "Annual Tailings System
Wastewater Sampling Report"
submitted by Energy Fuels to the State
of Utah to support this contention.
Using radium data from liquid samples
collected from Cells 1, 3, 4 and 4A at the
White Mesa Mill and a correlation to
radon flux from liquids in the EPA's risk
assessment to support the rulemaking
(the "Task 5" report, Docket No. EPA-
HQ-OAR-2008-0218-0123). the
commenters calculate radon fluxes well
in excess of 20 pCi/m2-sec (up to 2,317
pCi/m2-sec from Cell1 in 2014). The
commenters further note a significant
increase in the radium measurements
for three of the four impoundments from
2013 to 2014, likely attributable to
evaporation and concentration of the
radium in solution (Cell 3 showed a
significant increase from 2012 to 2013,
but dropped in 2014). They conclude
that the risk to public health associated
with radon emissions from non-
conventional impoundments is much
greater than the EPA has acknow I edged.
Response: The EPA disagrees that the
data provided by commenters support
their conclusion that the liquids have
been underestimated as a source of
radon. First, the laboratory analyses
included in the sampling report refer to
"Total Alpha Radium" (or "Gross
Radium Alpha") and specify the
analytical method as EPA Method
900.1.20 This method cannot distinguish
between different alpha-emitting
isotopes of radium, which are all
chemically identical. In addition to Ra-
226, the isotope of concern that decays
to form Rn-222, the sample may also
contain Ra-224 (a decay product of
Thorium-232) and Ra-223 (a decay
product of Uranium-235). Because of the
vast difference in their decay rates,21 Ra-
224 and Ra-223 need be present in
much smaller amounts (by mass) to
have the same activity as Ra-226. For
example, one gram of Ra-226 will have
the same activity as about 6.25
micrograms (6.25 x 10-6 grams) ofRa-
224. It is known that the White Mesa
Mill has processed materials containing
Th-232, which makes it likely that Ra-
224 is present in some amount. Given
these sources of uncertainty, these
results cannot definitively represent Ra-
226 concentrations. Other sources of
uncertainty could include interference
from barium present in the liquid
sample, as Method 900.1 relies upon
precipitation with barium sulfate to
separate the radium. Moreover, while
Method 900.1 can essentially separate
uranium from the sample, it is less
effective at separating other alpha-
emitting radionuclides, such as isotopes
of thorium. Thus, some small amounts
of uranium and thorium could
solubilize and "carryover" into the
precipitated sample, which would also
affect the analysis. Given the numerous
uncertainties associated with the data
relied upon by the commenters, these
data cannot reliably serve as a surrogate
for Ra-226. Without specific isotopic
analyses, which were not performed on
the samples presented in the 2013 and
2014 reports, the actual Ra-226
concentrations cannot be determined.
The 2015 annual wastewater sampling
report for White Mesa 22 contains
additional information to clarify this
situation. Samples taken on two
separate occasions from each of the cells
(compared to the single sampling
conducted in previous years) were
analyzed not only for total alpha
radium, but also for the isotope Ra-226,
using EPA Method 903.1 ("Prescribed
Procedures for Measurement of
Radioactivity in Drinking Water,"
Docket No. EPA-HQ-OAR-2008-0218).
These results confirm that total alpha
radium is not the correct basis for
calculations of radon emissions. Table 4
below shows the 2015 results for Cell1,
compared to the 2013 and 2014 results
that were cited by the commenters. Cell
1 has been in use since 1981, and has
only been used to manage liquids (i.e.,
no solids from the mill have been
placed in it). It consistently shows
among the highest levels of total alpha
radium.
TABLE 4-MONITORING RESULTS FROM CELL 1 AT THE WHITE MESA MILL
Total alpha
radium
(pCi/L)
Ra-226
(pCi/L)
2013 ..................................................................................................................................................................... . 32,700 Not analyzed.
20 "Prescribed Procedures for Measurement of
Radioactivity in Drinking Water," EPA-600/4-80-
032, August 1980, Docket No. EPA-HQ-OAR-
2008-0218.
21 Radium-226 has a half-life of 1,600 years, while
Radium-224 and -223 have half-lives of 3.66 days
and 11.43 days, respectively. EPA Method 900.1 has
been used by drinking water systems to show
compliance with the regulatory standard of 5 pCi/
L for combined Ra-226 and Ra-228, which is well
below the activity found in effluents from uranium
processing. Ra-228 is a pre-cursor of Ra-224 that
decays by beta emission and has a half-life of 5.75
years. If the result is below 5 pCi/L using Method
900.1, there is no need for additional analysis. Half-
life is the amount of time for one-half of the
radionuclide to decay. Further, although Ra-223
and Ra-224 decay to form Rn-219 and Rn-220 (also
known as "thoron"), respectively, these isotopes of
radon are also very short-lived (half-lives less than
one minute each) and therefore are not considered
to be of concern for exposures to the public.
22 Environmental reports for the White Mesa Mill
are available from the Utah Department of
Environmental Quality at http://www.deq.utah.gov/
businesses/E!energyfuels/whitemesamm.htm.
5166 Federal Register/Vol. 82, No. 10/Tuesday, January 17, 2017 /Rules and Regulations
TABLE 4-MONITORING RESULTS FROM CELL 1 AT THE WHITE MESA MILL-Continued
Total alpha
radium
(pCi/L)
Ra-226
(pCi/L)
2014 .................................................................................................................................................................... .. 331,000 Not analyzed.
73,800 829. 2015 Sample 1 .................................................................................................................................................... .
2015 Sample 2 .................................................................................................................................................... . 735,000 1,110.
Source: "2015 Annual Tailings System Wastewater Sampling Report," Energy Fuels.
The Ra-226 concentrations found in
2015 are consistent with historical data,
also included in the sampling reports.
For the period 1980-2003, the
maximum concentration of Ra-226
recorded is 1,690 pCi/L, based on
sampling from Cell1, Cell 2, and Cell
3 (it is not specified which cell recorded
the maximum concentration). Table 6 of
the Task 5 report estimates that, based
upon site-specific conditions at the
White Mesa Mill, a Ra-226
concentration of 1,000 pCi/L in
impoundment liquids would result in a
radon flux of approximately 7 pCi/m2-
sec. Using this correlation, the average
radon flux from Cell1 in 2015 would be
slightly less than 7 pCi/m2-sec. The
highest level of Ra-226 in 2015 from the
other impoundments was 772 pCi/L in
Cell 4A, which translates to a radon flux
of about 5.4 pCi/m2-sec. Further, based
on the maximum Ra-226 concentration
recorded from 1980-2003, the
calculated radon flux would be roughly
11.8 pCi/m2-sec. These results indicate
that the radon flux from Ra-226
suspended or dissolved in liquids in the
non-conventional impoundments at
White Mesa is controlled to a level that
is within the range that the EPA
determined to be acceptable during the
development of Subpart W, without
taking additional measures.
These results are also consistent with
information reported for liquid
impoundments at ISL facilities (see
Tables 7, 8 and 9 of the Task 5 report).
They also suggest that the noteworthy
fluctuations in recent years may not be
directly attributable to the radium
content of the liquids, but may result
from the analytical method used.
"Total" or "gross" analytical methods
are generally considered screening tools
whose results are more susceptible to
other influences. Energy Fuels states
that the individual isotopic analyses
"show that the increasing gross alpha
results are being caused by matrix
interference due to the nature of the
tailings solution and are not
representative of gross alpha from
radium concentrations in the solution"
(Energy Fuels, 2015 annual wastewater
sampling report, page 15). Similar
fluctuations occurred for all the
impoundments (although, as noted
earlier, Cell 3 showed a significant
increase in 2013, with a decrease in
2014).
As an additional source of
information, the facility's 2015 "Semi-
Annual Effluent Monitoring Report"
(July through December) provides radon
monitoring data from air monitoring
stations posted around the
impoundments. The facility resumed
monitoring for radon in 2013 and the
data presented in Attachment J of the
report show that emissions have been
within the limits calculated to
correspond to a 25 mrem annual dose
for continuous exposure at each
monitoring station. These limits serve as
As Low As Reasonably Achievable
(ALARA) goals for the facility.
In most cases, results are well below
that level. The highest annual result
(four consecutive quarters) can be seen
for Station BHV-4, which is located
directly south of the impoundments but
still within the White Mesa facility
boundary. A person located at this point
during 2015 would have incurred a dose
of approximately 16 mrem 23 (average
quarterly results of roughly 0.31 pCi/L,
compared to a calculated limit of 0.5
pCi/L). The single highest quarterly
reading is listed at Station BHV-6,
which is to the southeast of the
impoundments at the facility boundary.
The reading for the fourth quarter of
2013 is approximately 88% of the
calculated limit (0.73 compared to 0.83,
translating to a quarterly dose of about
5.5 mrem at that location). However,
readings for the previous two quarters
were recorded as zero and readings for
the next quarters were significantly
lower as well. There is fluctuation in
these results as well, which depends to
some extent on wind direction, but
overall the results indicate that radon
from the impoundments is not a
significant public health concern.
Both the sampling data from the non-
conventional impoundment cells and
the radon data from the air monitoring
stations at the White Mesa Mill support
the EPA's conclusion that emissions
23 Corresponding to an annual risk of fatal cancer
ofless than 1 x 10-5. See Section 4 of the BID.
from the liquids in non-conventional
impoundments represent a limited
source ofradon and does not support
commenters' argument to the contrary.
Comment: Some commenters request
clarification that Subpart W should not
apply to impoundments that only
contain water that has been treated to
meet effluent limits. The commenters
see this as having no regulatory benefit,
but a potential additional cost to
operators who must meet the more
stringent requirements in 40 CFR
192.32(a)(1). Commenters also suggest
we define a threshold level of radium or
uranium content below which liquids
no longer must be managed as uranium
byproduct material or tailings.
Response: The purpose of Subpart W
is to control radon emissions from
sources containing uranium byproduct
material or tailings at uranium recovery
facilities. The EPA agrees that if an
impoundment does not contain uranium
byproduct material or tailings, it is not
subject to the requirements of Subpart
W. The EPA is not defining a
concentration or level of radium or
uranium at which treated liquids would
no longer be considered uranium
byproduct material or tailings. Instead,
such impoundments can be identified
and their status can be addressed during
the construction application review
under 40 CFR part 61, subpart A.
Subpart W also does not apply to
impoundments constructed for the
purpose of managing liquids generated
by closure or remediation activities,
when they are used solely for that
purpose. Impoundments that do not
contain uranium byproduct material or
tailings resulting directly from uranium
recovery operations are not considered
to be non-conventional impoundments
as defined in Subpart W.
However, non-conventional
impoundments remain subject to the
requirements of Subpart W until they
enter final closure pursuant to an
approved reclamation plan for that
impoundment, even if at some point in
their operational life they are used for
the purpose of managing liquids from
closure or remediation activities. EPA
recognizes that non-conventional
impoundments that are subject to
Federal Register/Val. 82, No. 10/Tuesday, January 17, 2017 /Rules and Regulations 5167
Subpart W may subsequently transition
to a use that supports facility closure or
site remediation (e.g., when an ISL
wellfield enters into the groundwater
restoration phase, and is no longer
recovering uranium). Some parties may
argue that a non-conventional
impoundment's receipt of waste
associated with facility closure or site
remediation appears analogous to the
ability of licensees to obtain a license
amendment and have a reclamation
plan which provides for placement of
remediation wastes in conventional
impoundments during the closure
process. Using this analogy, some may
contend that non-conventional
impoundments should not be subject to
Subpart W when receiving such wastes.
However, such a non-conventional
impoundment could later be used to
manage liquids from uranium recovery
operations at the next wellfield. To
ensure that non-conventional
impoundments that receive uranium
byproduct material and tailings are
managed in accordance with Subpart W,
and to promote clarity and consistency
with the promulgated regulations,
Subpart W applies to non-conventional
impoundments during the entire
operating life of an impoundment which
receives, or has received, uranium
byproduct material or tailings directly
from active uranium recovery
operations. Changing a non-
conventional impoundment's Subpart
W applicability based on the primary
use ofthe impoundment at any
particular time during its operational
life would cause unnecessary confusion
and would be inconsistent with the
regulations.
Operationally, this should not
represent a burden to licensees. If the
impoundment is being used to manage
liquids from closure or remediation
activities, it should remain in
compliance with the requirement to
retain sufficient liquid to cover solid
materials in the impoundment. Further,
because there is no restriction on the
number of such impoundments that
may be operating at one time, the
licensee will not face the same pressure
to begin closure as applies to
conventional impoundments using the
phased disposal approach.
Comment: A commenter finds the
discussion of non-conventional
impoundments confusing. The
commenter believes we have
inconsistently and inaccurately
described the purpose of these
impoundments, the nature of the
materials in them, and our regulatory
approach. The commenter wishes us to
clarify that the liquids are not held in
the impoundments for the purpose of
covering uranium byproduct material or
tailings, but the liquid in fact contains
(or is) uranium byproduct material or
tailings. The commenter questions how
the liquid can be used to control radon
emissions, when the liquid is itself in
need of control, and requests that we
consider that liquids high in radium
content may actually cause an increase
in emissions.
Response: The purpose of non-
conventional impoundments
(evaporation or holding ponds) is to
receive liquids generated by the
uranium processing operation. Uranium
byproduct material or tailings may be
suspended or dissolved in these liquids.
Some portion of the material will
precipitate out and settle on the bottom
of the impoundment. In some sense, the
liquid itself is uranium byproduct
material or tailings because it is a waste
from the concentration or extraction
process. The definition of "non-
conventional" impoundment accurately
conveys the concept that these
impoundments "contain uranium
byproduct material or tailings
suspended in and/or covered by
liquids." As noted in the previous
comment response, impoundments
containing only treated water and
impoundments constructed for the
purpose of managing liquids from
closure or remediation activities are not
non-conventional impoundments as
defined by Subpart W, because they do
not contain uranium byproduct material
or tailings resulting directly from active
uranium recovery operations.
While radium contained in the liquid
will contribute to radon emissions,
those emissions will be attenuated to
some degree by the liquid in which it is
contained. Further, liquid on top of
solid materials will effectively limit
radon emissions from those solids
reaching the air, even if the liquid itself
contains radium. While higher
concentrations of radium in the liquid
will generate more radon,
concentrations in non-conventional
impoundments have not been seen to
reach levels of concern. See the
response to the earlier comment in this
section.
Comment: Many commenters
expressed opinions related to limiting
the size of impoundments. Some
commenters believe Subpart W should
contain limits on the size of non-
conventional impoundments. The
commenters believe that larger
impoundments are more likely to fail
and limits must be imposed to minimize
the potential for ground water
contamination. One commenter also
believes the number of impoundments
should be limited. Another commenter
does not believe we have adequately
supported our conclusion that the
requirements of 40 CFR 192.32(a)(1) will
provide protection against extreme
weather events and may be subject to
greater turbulence. Regarding our
reference to an impoundment of 80
acres, one commenter wishes us to
clarify that no actual impoundment has
been as large as 80 acres, but this size
has been used only for modeling
purposes. Another disputes our
statement that it is reasonable to assume
that such impoundments will not
exceed 80 acres in area, simply because
one never has.
Response: We have chosen not to
limit the size of non-conventional
impoundments because they are not as
significant a source of radon emissions
and can be readily controlled by
maintaining saturation of solid
materials, but also because they provide
operational flexibility to uranium
recovery facilities that may need to
manage, on a temporary basis, large
volumes of water that can then be
recycled into the process. Regarding the
maximum size of such impoundments,
we referred to 80 acres as a "reasonable
maximum approximation" for
estimating cost, clearly noting that it is
"the largest size we have seen" (79 FR
25401).
Comment: A commenter states that
the current and proposed rules do not
actually contain any measures to control
releases of impoundment contents to the
surface or subsurface during extreme
weather events. The commenter asserts
that the EPA has not provided any data
to support the conclusion that the
requirements of 40 CFR 264.221 will
prevent dispersion of contents in severe
events. The commenter expresses
concern that generally available
technologies do not exist that could
prevent dispersion of contents or failure
of the impoundment in a severe event
such as a tornado or hurricane.
Response: As discussed in the
proposal, we believe the design and
engineering requirements for
impoundments in 40 CFR 264.221,
referenced in 40 CFR 192.32(a)(l),
provide a sound basis for protection
against reasonably foreseeable weather
events. The provisions related to
avoiding overtopping (essentially,
spillage or dispersion) from "normal or
abnormal operations," "wind and wave
action," or "rainfall," as well as the
requirement to maintain integrity and
prevent massive failure ofthe dikes, lay
a foundation for addressing the
commenter's concerns. To satisfy these
conditions, design of impoundments at
any specific site would likely take into
account regional climate and the
5168 Federal Register/Val. 82, No. 10/Tuesday, January 17, 2017 /Rules and Regulations
magnitude of events such as 100-or
500-year precipitation, or the likelihood
of tornados or hurricanes.
F. Definitions, References and
Conforming Editorial Revisions
1. How did we address definitions,
reference and conforming editorial
revisions in the proposed and final
rules?
a. Definition of "Operation" and "Final
Closure"
We proposed a relatively minor
change to the definition of "operation"
(79 FR 25404). Under Subpart Was
promulgated in 1989, an impoundment
was in operation when new tailings
were being emplaced, from the day that
tailings are first placed in the
impoundment until the day that final
closure begins. There has been some
confusion over this definition. We
proposed to amend the definition of
"operation" in the Subpart W
definitions at 40 CFR 61.251 to replace
the reference to "new" tailings with the
broader term "uranium byproduct
material or tailings" at 79 FR 25405.
We received comments from across
the spectrum of stakeholders who
disliked this definition. Commenters
from industry said we did not take into
account the period between cessation of
placement of uranium byproduct
material or tailings into an
impoundment and physical closure
with an approved closure plan. This
period can sometimes last for years
while the uranium byproduct material
or tailings are dewatered to an extent
that heavy machinery can be used to
emplace the final closure radon barrier.
Also, the impoundment(s) are often
used for dismantling the facility, for
disposal of other liners, etc. Extending
the operational period and Subpart W
jurisdiction during the entire closure
period could result in a milling facility
having two operating impoundments in
the closure process and no ability to
operate a third impoundment to receive
uranium byproduct material or tailings
from operations. Other commenters
claimed that operators were taking
advantage of the existing definition by
claiming that an impoundment is "in
closure" but taking no concrete action to
implement a closure plan or apply a
final cover.
We do not intend to extend the
jurisdiction of Subpart W to include the
period during which closure activities
are being conducted. The proposal was
intended to clarify that an
impoundment remains "operating"
until it enters closure, even if it is not
receiving newly-generated uranium
byproduct material or tailings from
facility processing (79 FR 25405).
Further, we note that the definition in
Subpart W is consistent with those in 40
CFR 192.31 and 10 CFR part 40,
Appendix A, which were in fact derived
from Subpart W. Thus, we find this
concern to be misplaced. The final rule
adopts the definition of "operation" as
it was proposed.
We did not propose to include a
definition of "closure"; however, we
realize that a lack of clarity on the
concept of closure, what it involves and
when it begins has affected the
understanding of Subpart W. In
particular, the use of the term "final
closure" in the definition of "operation"
does not, by itself, provide sufficient
clarity on the end of operation. As
described earlier, we received a number
of comments making suggestions or
raising concerns on this point. As noted
above, the definition of "operation" in
Subpart W served as the basis for the
definitions later adopted in 40 CFR part
192 and 10 CFR part 40, Appendix A.
Further, both 40 CFR part 192 and 10
CFR part 40, Appendix A adopted
definitions and requirements related to
closure that address some aspects of the
comments we received related to
Subpart W. The more appropriate action
is to retain the definition of "operation"
and clarify the meaning of final closure
in a separate definition. Therefore, the
final rule incorporates a new definition
of "final closure" at 40 CFR 61.251(n).
We emphasize two aspects of this new
definition that we believe will help
address concerns regarding the
timeliness and predictability of closure
activities. First, impoundments or heap
leach piles will remain subject to
Subpart W until the owner or operator
provides written notice that the
impoundment is entering final closure.
Second is the reference to the
reclamation plan for the impoundment
or heap leach pile. We have heard some
comments, specifically related to the
Cotter mill, that the facility should still
be subject to Subpart W because it has
never had an approved reclamation or
closure plan; however, the facility no
longer has an operating license under
which it would conduct activities
subject to the requirements of Subpart w.
The reference to a reclamation plan in
the definition of "final closure" does
not affect that Subpart W only applies
to operational units and does not cover
units that are in closure. Rather, it
makes clear our expectation, also found
in 40 CFR part 192 and 10 CFR part 40,
Appendix A, that the NRC or the
Agreement State require and approve
such a plan. It also establishes that
notice to the NRC or the Agreement
State and an approved reclamation plan
are necessary prerequisites for
determining that the impoundment in
question is no longer subject to the
requirements of Subpart W. The final
rule is adopting the terminology
employed in NRC regulations. In 10 CFR
part 40, Appendix A, NRC identifies a
reclamation plan as applicable to
individual impoundments, while the
closure plan is a more comprehensive
document that addresses all aspects of
facility closure and decommissioning,
including any necessary site
remediation. A reclamation plan
prepared and approved in accordance
with NRC requirements in 10 CFR part
40, Appendix A, is considered a
reclamation plan for purposes of
Subpart W. The reclamation plan may
be incorporated into the larger facility
closure plan.
A number of commenters expressed
concern that the issue of delayed
closure would have been addressed by
40 CFR part 61, subpart T (40 CFR
61.220-226), which required that
impoundments that are no longer
accepting tailings be brought into
compliance (i.e., covered) within two
years, or in accordance with an
approved compliance agreement if it is
not feasible to complete closure within
two years. In accordance with a 1991
Memorandum of Understanding (MOU),
the EPA and the NRC amended 40 CFR
part 192 and 10 CFR part 40, Appendix
A, respectively, to incorporate
provisions related to the timing and
requirements of activities conducted
during the closure period. The EPA
subsequently rescinded subpart T in
1994, finding that the NRC regulatory
program protected public health with an
ample margin of safety to the same level
as would implementation of subpart T
(59 FR 36280, July 15, 1994). The
commenters correctly noted that in that
action the EPA retained the authority to
reinstate subpart T should we determine
that the NRC was not implementing it
as we intended. The Agency has no
plans to reinstate subpart T at this time,
but takes this opportunity to emphasize
that closure of impoundments should be
conducted expeditiously, taking only
the time that is truly necessary to
dewater or otherwise prepare the
uranium byproduct material or tailings
before application of interim and final
covers.
b. Liner Requirements in 40 CFR
192.32(a)( 1)
We proposed specific provisions for
conventional impoundments, non-
conventional impoundments and heap
leach piles to explicitly convey that any
impoundment at a uranium recovery
Federal Register/Val. 82, No. 10/Tuesday, January 17, 2017 /Rules and Regulations 5169
facility that contains uranium byproduct
materials or tailings would be subject to
the Subpart W liner requirements. The
1986 and 1989 versions of Subpart W
included a reference to 40 CFR
192.32(a); 40 CFR 192.32(a) incorporates
the surface impoundment design and
construction requirements of hazardous
waste surface impoundments regulated
under the Resource Conservation and
Recovery Act (RCRA), found at 40 CFR
264.221. Those requirements state that
the impoundment shall be designed,
constructed and installed to prevent any
migration of wastes out of the
impoundment to the adjacent
subsurface soil or ground water or
surface water at any time during the
active life of the impoundment. Briefly,
40 CFR 264.221(c) requires that, for new
impoundments constructed after
January 29, 1992,24 the liner system
must include:
1. A top liner designed and constructed of
materials (e.g., a geomembrane) to prevent
the migration of hazardous constituents into
the liner during the active life of the unit.
2. A composite bottom liner consisting of
at least two components. The upper
component must be designed and
constructed of materials (e.g., a
geomembrane) to prevent the migration of
hazardous constituents into this component
during the active life of the unit. The lower
component must be designed and
constructed of materials to minimize the
migration of hazardous constituents if a
breach in the upper component were to
occur. The lower component must be
constructed of at least three feet of
compacted soil material with a hydraulic
conductivity of no more than 1 x 10-7 em/
sec.
3. A leachate collection and removal
system between the liners, which acts as a
leak detection system. This system must be
capable of detecting, collecting and removing
hazardous constituents at the earliest
practicable time through all areas of the top
liner likely to be exposed to the waste or
liquids in the impoundment.
There are other requirements for the
design and operation of the
impoundment, and these include
construction specifications, slope
requirements, sump requirements and
liquid removal requirements. As part of
the proposed rule, we examined these
provisions to help determine whether
Subpart W adequately addresses
extreme weather events. We determined
24 57 FR 3487, January 29, 1992. These
specifications also apply to lateral expansions of
existing surface impoundment units or
replacements of existing surface impoundment
units beginning construction or reuse after July 29,
1992. At the time of the 1986 and 1989 Subpart W
rulemakings, double liners and leachate collection
systems were specified for new impoundments, but
the requirements did not contain this level of detail.
The requirement for double liners was promulgated
on July 15, 1985 (50 FR 28747).
that the requirements in 40 CFR 264.221
satisfactorily address such events.
The proposal did not adopt a new
approach. Instead, it carried forward the
approach adopted in the 1989
rulemaking. That rulemaking included
§ 61.252(c), which broadly required all
impoundments, including those in
existence prior to the promulgation of
40 CFR part 192, to comply with the
requirements of 40 CFR 192.32(a). The
1986 rulemaking had not applied the
requirements of 40 CFR 192.32(a) to
impoundments in existence when the
1986 rule was promulgated, as these
impoundments were anticipated to
cease accepting uranium byproduct
material or tailings by the end of 1992
(51 FR 34066). The 1989 rulemaking
lifted this restriction as well as the
exemption from the requirements of 40
CFR 192.32(a) (54 FR 51680).
We did not propose to remove the
liner requirements or request comment
on whether they should be retained. We
proposed to refer only to 40 CFR
192.32(a)(1) because§ 192.32(a)
includes provisions that extend well
beyond the design and construction of
impoundments, such as ground water
monitoring systems and closure
requirements. These aspects do not fall
under the purview of Subpart W, and
they are removed in this action.
This final rule incorporates the
revised reference to 40 CFR 192.32(a)(1)
for all impoundments that contain
uranium byproduct material or tailings
and establishes this requirement as an
element of GACT-based standards for
conventional impoundments, non-
conventional impoundments, and heap
leach piles. The provision in the 1989
rule that extended this requirement to
conventional impoundments in
existence as of December 15, 1989 is
moved to § 61.252(a)(1), which
addresses those impoundments.
We received a comment suggesting
that we explicitly cite 40 CFR 264.221(c)
as the criteria that all impoundments are
required to meet. This provision was not
incorporated into regulation until 1985
(50 FR 28747). Adopting the
commenter's approach would require
impoundments constructed before 1985
to upgrade or close, which we did not
propose to require. Those older
impoundments are required to comply
with the provisions of 40 CFR 264.221
that are applicable to them. The
commenter's approach would also
eliminate consideration of§ 264.221(d),
which allows for an alternative design
or operating practices if "such design
and operating practices, together with
location characteristics" would prevent
migration of hazardous constituents and
allow detection of leaks at least as
effectively as the requirements of
§ 264.221(c). It is not appropriate to
eliminate this flexibility, particularly for
sites that may employ improved liner
materials or have exceptional natural
characteristics that lend themselves to
such a demonstration.
c. Eliminating "As Determined by the
Nuclear Regulatory Commission"
As described in the preceding section,
Subpart Was promulgated in 1989
required impoundments to be
constructed in accordance with the
requirements cited in 40 CFR 192.32(a).
This provision also included the phrase
"as determined by the Nuclear
Regulatory Commission."
As described in the preceding section,
40 CFR 192.32(a) also contains
provisions related to ground water
protection and closure activities, which
are not within the scope of Subpart W.
It is appropriate that the NRC be the sole
regulatory agency for implementing and
enforcing these provisions. We
proposed to eliminate the phrase "as
determined by the Nuclear Regulatory
Commission" from Subpart W to clarify
that EPA is an approval authority for
Subpart W, but specifically for the
impoundment engineering and
construction requirements in 40 CFR
192.32(a)(1).
We received a number of comments
from industry objecting to this change
on the grounds that it would create dual
regulation with NRC, thus leading to
inefficiencies and the potential for one
agency to approve an application while
the other denied it. We disagree with
these commenters, as described in detail
in the next section. The final rule
eliminates the phrase "as determined by
the Nuclear Regulatory Commission"
from 40 CFR 61.252(a)(2)(i) and (ii).
2. What key comments did we receive
on definitions, references and
conforming editorial revisions?
We received a number of comments
related to the issue of operation and
closure, either to extend the jurisdiction
of Subpart W or to limit it. Commenters
also expressed views on the liner
requirements and their relation to
groundwater protection or older
impoundments. In connection with the
liner requirements, a number of
commenters disagreed with the proposal
to eliminate the phrase "as determined
by the Nuclear Regulatory
Commission," suggesting that it will
create dual regulation and exceeds our
rulemaking authority. Although we did
not propose to revise it, we also
received some comment related to the
definition of "uranium byproduct
material or tailings."
5170 Federal Register/Val. 82, No. 10/Tuesday, January 17, 2017/Rules and Regulations
Comment: A number of commenters
advocated that the scope of Subpart W
be extended to include all activities
undertaken to achieve final closure of
the impoundment (see also the next
comment in this section). As defined in
Subpart W, "operation" ends "the day
that final closure begins" (40 CFR
61.251(e)). Many of the commenters
would like this definition extended and
explicitly stated that Subpart W should
apply until the final cover is installed
on the impoundment (or, for non-
conventional impoundments, until the
impoundment is removed, if that is the
closure approach).
Response: Subpart W has never
addressed remediation or reclamation
activities undertaken to close the
impoundment or the site and EPA did
not propose to expand the scope of the
rule to cover such activities. Comments
on whether the separate regulations that
apply during closure and until the final
cover is installed are sufficient or
whether additional regulations are
needed to cover activities during that
time period are beyond the scope of this
section 112(q) review of Subpart Wand
thus EPA has no obligation to respond.
However, a goal of this rulemaking was
to provide clarity regarding when the
management of uranium byproduct
material or tailings is no longer subject
to Subpart W. The final rule specifies
that Subpart W no longer applies at the
beginning of closure and further defines
when closure begins. For informational
purposes only, EPA discusses below
some of the regulations that apply
during the closure period. EPA did not
reopen or accept comment on any
aspects of these regulations.
In 1989, in conjunction with the
promulgation of Subpart W, the EPA
promulgated 40 CFR part 61, subpart T
(40 CFR 261.220-226) to address the
closure period and final disposal for
conventional tailings impoundments (54
FR 51682). Subpart T required closure
of impoundments to be complete within
two years after ceasing operations.
In 1991, by Memorandum o.f
Understanding (MOU) with the NRC,
the two agencies agreed to take action to
clarify the timing for closure of
impoundments and processing sites. As
part of this agreement, the EPA
amended 40 CFR part 192 (58 FR 60341,
November 15, 1993) and rescinded
subpart T (59 FR 36302, July 15, 1994).
The NRC subsequently amended 10 CFR
part 40, Appendix A, consistent with
the EPA's amended 40 CFR part 192 (59
FR 28220, June 1, 1994). The MOU
included the goal that all sites could be
closed and in compliance with radon
emission standards by 1997 or within
seven years of the date on which
existing operations cease and standby
sites enter disposal status. The MOU did
not address Subpart W because Subpart
W does not apply during closure.
The MOU and subsequent regulatory
actions created a more comprehensive
and coordinated framework for
managing uranium processing wastes.
Further, a settlement agreement with
stakeholders provided additional detail
to the MOU that, in part, allowed the
EPA to make a finding under the CAA
that the NRC's regulatory program
protected public health with an ample
margin of safety. This supported the
Agency's decision to rescind subpart T.
In their respective rulemakings, the
agencies essentially adopted the Subpart
W definition of "operation" and
included provisions related to closure
that would allow certain activities
related to waste management during the
closure process. Among these were
provisions that would allow wastes to
be placed in impoundments that were
also either in closure or had completed
closure (final cover). These
authorizations would not change the
status of the impoundment or site, as we
explained in our rulemaking to amend
40 CFR part 192: "Even if a portion of
a site is authorized to remain accessible
for disposal of byproduct materials
during the closure process or after
placement of a permanent radon barrier
consistent with the Settlement
Agreement, as described above, this will
not cause a nonoperational uranium
mill tailings disposal site to revert to an
operational site as defined by 40 CFR
192.31(q)" (58 FR 60348, November 15,
1993).
Similarly, the NRC addressed this
point in its 1993 proposed rule to
amend 10 CFR part 40, Appendix A in
response to a comment from an NRC
Agreement State:
[Agreement State] Comment. The word
"portion" should be deleted from paragraph
(3) of Criterion 6A.
[NRC] Response. This provision allows
limited disposal during closure as an
exception to the definition of operation. If
the whole impoundment is involved in waste
disposal and no reclamation activities are
proceeding, the impoundment would be
considered operational and continue to be
under appropriate requirements for
operation. Note, one site may have both an
operational impoundment and a non-
operational impoundment with the
applicable regulations applying to each (58
FR 58659, November 3, 1993, emphasis in
original).
The final rule includes the definition
of "operation" as it was proposed,
which makes it fully consistent with the
definitions in 40 CFR part 192 and 10
CFR part 40, Appendix A. We are also
adopting a definition of "final closure"
that clarifies that Subpart W does not
apply to impoundments that are being
managed under an approved
reclamation plan for that impoundment
or the facility closure plan.
Comment: Several commenters stated
that the current regulatory scheme
allows an unacceptable period during
closure activities when impoundments
are not being monitored or otherwise
managed to limit radon emissions. They
further argue that closure is not being
conducted in a manner that will lead to
timely installation of a final cover or
removal of an evaporation or holding
pond. They cite periods of decades
during which tailings are being
"dewatered" or impoundments are used
to deposit wastes from
decommissioning activities, while the
drying-out of impoundments allows
increased radon emissions. Commenters
attribute this in some part to the
Agency's rescission of subpart T, which
called for installation of final covers on
conventional tailings impoundments
within two years of the cessation of
operations. One commenter notes that
an impoundment undergoing closure
will be required to demonstrate
compliance with the 20 pCi/m2-sec
radon emissions standard only if it
requests extension of the milestones in
the closure plan, where it may not have
been required to monitor previously
under Subpart W.
Response: The EPA did not propose to
extend the jurisdiction of Subpart W
beyond the operational phase, nor did
we request comment on regulations that
are applicable to closure activities. We
are under no obligation to respond to
such comments. However, one purpose
of this rulemaking was to clarify at what
point Subpart W no longer applies to
the management of uranium byproduct
material or tailings. The final rule
specifies that Subpart W no longer
applies at the beginning of closure and
further defines when closure begins.
The following response is provided in
the interest of further clarifying this
issue.
As described in the response to the
previous comment, the EPA and the
NRC entered into an MOD in 1991, after
industry efforts to stay the
implementation of subpart T, due, in
part, to the fact that the requirement to
complete closure of impoundments was
unrealistically stringent. As part of the
MOD, the EPA rescinded subpart T and
modified its UMTRCA standards at 40
CFR 192.32 to address activities
conducted during closure, including
allowing placement of decommissioning
wastes in non-operating impoundments.
The EPA and the NRC agreed that such
activities can, for the most part, be
Federal Register/Val. 82, No. 10/Tuesday, January 17, 2017 /Rules and Regulations 5171
conducted and a final cover installed
within seven years of the end of
operations. Similar timeframes should
be possible for non-conventional
impoundments, which are likely to be
removed altogether. We note that both
40 CFR 192.32(a)(3) and 40 CFR part 40,
Appendix A were modified and require
that closure take place "as expeditiously
as practicable considering technological
feasibility." They further state that such
placement of wastes during closure will
not be approved if it would cause delays
in emplacement of the final radon
barrier to meet the disposal
requirements. The MOU did not address
Subpart W because Subpart W does not
apply during closure.
The Agency has no plans to reinstate
subpart T, although EPA is not
precluded from doing so (40 CFR
261.226). Nor is the final rule extending
the scope of Subpart W to cover closure
activities. While this does leave a period
oftime when conventional and non-
conventional impoundments are more
likely to have increased radon emissions
because they are not managed as they
would be during operations, such a
period is necessary to facilitate final
closure activities. However,
"dewatering" tailings for decades,
particularly in the arid West, is certainly
not consistent with the seven-year
period envisioned by both the EPA and
the NRC. Most conventional tailings are
emplaced using the phased disposal
method. To avoid extended dewatering
periods, sites may consider using the
continuous disposal method, in which
tailings are dewatered before
emplacement and immediately covered.
Regardless of the method of
emplacement, we emphasize the
importance of timely closure in
achieving the safe end state of these
sites, and encourage the NRC and NRC
Agreement States to give appropriate
attention to controlling radon emissions
during closure activities.
Comment: Some commenters
expressed concern that impoundments
are not being closed in accordance with
closure plans, because the plans do not
exist, milestones are absent or unclear,
or milestones are not being enforced.
One commenter states that the EPA
should not consider an impoundment in
closure until such plans are
incorporated into the facility license.
Another commenter recommends that
we amend 40 CFR part 192 to include
a provision that the EPA will verify the
existence of a closure plan. Several
commenters offer specific comments
related to the White Mesa and Cotter
sites and what they perceive as a lack
of closure plans.
Response: Activities related to closure
or closure plans are beyond the scope of
this rulemaking and the EPA is under
no obligation to respond to comments
on that topic. However, one purpose of
this rulemaking was to clarify at what
point Subpart W no longer applies to
the management of uranium byproduct
material or tailings. This final rule
specifies that an approved reclamation
plan is a prerequisite for entering
closure, thereby removing a unit
managing uranium byproduct material
or tailings from the jurisdiction of
Subpart W. The response below is
provided in the interest of clarity in
conveying the provisions of the final
rule. The EPA does not require, review,
approve or enforce reclamation or
closure plans.
As noted by one commenter, closure
plans with milestones are required
under 40 CFR part 192 and 10 CFR part
40, Appendix A. Closure plan
requirements, closure activities and
revisions to part 192 are not within the
scope of this Subpart W rulemaking.
The EPA typically does not see closure
plans when reviewing construction
applications under 40 CFR part 61,
subpart A. The NRC or the Agreement
State is responsible for enforcement of
reclamation or closure plans. The Cotter
site ceased operations several years ago,
no longer has an operating license and
is therefore no longer subject to the
requirements of Subpart W. The site is
currently a Superfund site and is
conducting activities under a
decommissioning license from the State
of Colorado.
The final rule includes a definition of
"final closure" that specifies
notification that the impoundment in
question is being managed according to
the requirements and milestones in the
approved reclamation plan. This should
provide clarity when determining
whether an impoundment is in closure,
and whether Subpart W still applies.
Comment: A few commenters took the
opposite view of that addressed earlier
in this section. These commenters wish
us to clarify that the period of
operations for either a conventional or
non-conventional impoundment only
extends to the management of uranium
byproduct material or tailings produced
by the concentration or extraction of ore
processed primarily for its source
material content (which may include
the commercial management of such
wastes produced at other facilities), and
not to the management of wastes
(byproduct material or otherwise)
generated during closure or
decommissioning activities.
Response: The final rule clarifies that
Subpart W does not apply during
closure activities, and further defines
when final closure begins. As described
above in this section, this is essentially
the position agreed to in the 1991 MOU
between the EPA and the NRC. Both 40
CFR 192.32(a)(3) and 10 CFR part 40
Appendix A, Criterion 6(A) provide for
the use of impoundments while they are
undergoing closure. However,
impoundments that are used to manage
uranium byproduct material or tailings
generated during closure or remediation
activities, while remaining open to
manage operational wastes, would
continue to fall under Subpart W until
they formally enter the closure process
and implement the approved
reclamation plan for that impoundment.
The definition of "final closure"
adopted in the final rule makes clear
that Subpart W does not apply to
impoundments that are being managed
under an approved reclamation plan.
In addition to the use of an
impoundment for wastes generated
during closure or remediation activities,
NRC regulations also provide for waste
from other sources to be emplaced in
the impoundment during the closure
process (10 CFR part 40, Appendix A,
Criterion 6(A)(3)). Approval of such
emplacement requires a license
amendment and must not delay
complete closure of the impoundment.
Subpart W does not apply to such
authorized emplacements while the
impoundment is undergoing closure
because the unit is subject to an
approved reclamation plan and,
therefore, no longer operating.
Depending on the terms of the license
amendment, authorized emplacements
at impoundments may include waste
from ISL sites, which are not expected
to construct permanent impoundments,
thereby facilitating the overall goal of
limiting the number of small disposal
sites. Authorization to allow
emplacement of waste from other
sources during the closure process must
be reflected in both the facility license
and the applicable reclamation plan.
Comment: One commenter disagreed
with comments described earlier and
pointed out that maintaining
impoundments under Subpart W
jurisdiction while they are undergoing
closure may cause facilities to be out of
compliance with the restriction on the
number of conventional impoundments.
The commenter posits that this situation
could arise if a facility opened a new
conventional impoundment for
operational uranium byproduct material
or tailings, while having another one in
operation and one in closure (or
multiple impoundments in closure). To
avoid compliance issues, the commenter
explained that facilities may have to
5172 Federal Register/Val. 82, No. 10/Tuesday, January 17, 2017 /Rules and Regulations
defer opening new impoundments,
which could lead to temporary
shutdown of the facility's processing
operations if there is no outlet for the
wastes. The commenter specifically
notes that non-conventional
impoundments may continue in
operation when conventional
impoundments are in closure.
Response: We did not propose to
extend the scope of Subpart W to apply
during closure activities and thus did
not open this issue as part of our review
under CAA section 112(q). Also, we are
neither finalizing such an extension of
applicability, nor limiting the number of
non-conventional impoundments that
may be in operation at any one time.
Comment: Several commenters stated
that definitions in or proposed for
Subpart W are inconsistent with the
NRC's definitions in 10 CFR part 40
(and Appendix A). For example, two
commenters state that "[t]he definition
of Operation conflicts with existing
regulations, specifically those in 10 CFR
part 40 Appendix A following the
rescission of 40 CFR part 61 Subpart T."
These commenters also suggest that we
look to the Appendix A definition of
"closure" and they note that the closure
period is tied to the "end of milling
operations" in Criterion 6.
One commenter requests clarification
ofthe term "day that final closure
begins," which the commenter believes
has never been adequately explained.
Another commenter requests
clarification on the steps that must take
place for closure to begin. Commenters
also stated that we did not include non-
conventional impoundments in the
definition of operation.
Response: It is important to make the
distinction between closure of an
impoundment and closure of a facility.
Subpart W applies to impoundments
that are operating. An individual
impoundment may enter and complete
the closure process, thus removing it
from Subpart W jurisdiction, while
other impoundments and the facility
continue to operate. When the facility
(site) itself enters the closure process,
and is no longer operating (and
generating uranium byproduct material
or tailings), impoundments will also be
managed according to the overall site
closure plan. Tying Subpart W to the
"end of milling operations" in NRC
regulations, as suggested by the two
commenters, would essentially preclude
the closure of individual impoundments
until overall site closure begins. This is
likely contrary to the commenters'
intentions. We also note that the NRC
definition of "closure" cited by these
commenters clearly refers to activities
undertaken to close the entire site and
is not directed specifically at
impoundment closure.
Additionally, commenters have
misinterpreted our proposal. The
Agency does not intend to apply
Subpart W to impoundments that have
entered the closure process. The
proposed modification of the definition
of "operation," which we are adopting
in the final rule, clarifies that
impoundments that have not yet entered
closure remain subject to Subpart W,
even if the material they are receiving is
not newly-generated uranium byproduct
material or tailings ("new tailings" in
the original). This also makes the
definition more consistent with those in
40 CFR part 192 and 10 CFR part 40,
Appendix A. See the proposed rule at
79 FR 25405, May 2, 2014. To further
clarify this situation, the final rule
includes a definition of "final closure"
specifying that closure begins upon
written notification that the
impoundment is being managed
according to the requirements and
milestones in the approved reclamation
plan for that impoundment.
This definition of "final closure"
adopts a suggestion provided by one
commenter. The commenter proposed
tying "closure period" to a written
notification from the licensee that the
impoundment is no longer being used
for emplacement of tailings or for
evaporative or holding purposes, and is
also no longer on standby for such
purposes. The commenter suggests that
it would be useful to explicitly address
both conventional and non-
conventional impoundments in the
definitions, as there may be situations
where non-conventional impoundments
continue to operate when conventional
impoundments are in closure. We are
also adopting this suggestion in the
definition of "final closure."
Adding this language should
eliminate some uncertainty regarding
impoundment status. This uncertainty
is reflected in a statement by the same
commenter regarding the White Mesa
Mill. In providing information about the
different impoundments, the commenter
notes that ". . . Cell 3 could be
considered to have already commenced
the closure process" (emphasis added).
The written notification requirement
will help eliminate such ambiguous
situations. There should be no question
as to whether an impoundment is
undergoing closure, and similarly no
ambiguity regarding the applicability of
Subpart W.
Regarding the perceived conflicts
with NRC regulations, we do not see
such a conflict, and note that the
definition of "operation" in existing and
proposed Subpart W is substantively
identical to and served as the basis for
that in 10 CFR part 40, Appendix A (we
note the NRC's statement in its proposal
that "the definition of operations is in
conformance with the definition of
'operational' in the proposed EPA
amendment to [40 CFR part 192] subpart
D and in 40 CFR part 61, subpart W" (58
FR 58659, November 3, 1993). The
commenters did not suggest that the
NRC's definition is in conflict with its
own regulations. Further, the same
definition is used in 40 CFR 192.31(p).
As noted above, we are also adding a
definition of "final closure" in the final
rule. This will provide additional clarity
as to what steps the operator must take
to remove an impoundment from the
jurisdiction of Subpart W while
remaining consistent with the
definitions in 10 CFR part 40 and 40
CFR part 192. The definition of final
closure explicitly addresses
conventional impoundments, non-
conventional impoundments and heap
leach piles.
The phrase "day that final closure
begins" was included in the original
promulgation of Subpart Win 1986 (51
FR 34056, September 14, 1986). "Final
closure" is a term defined under RCRA
hazardous waste regulations in 40 CFR
260.10. "Final closure" in that context
refers to the closure of all hazardous
waste management units at a site, and
is distinguished from "partial closure,"
which refers to closure of individual
units. However, as the term is used in
Subpart W, and as it is being adopted in
the final rule, it refers to individual
impoundments, not the entire site (so is
more like "partial closure" in the RCRA
context). Subpart W differs in this
respect from 40 CFR part 192 and 10
CFR part 40, Appendix A, which are
both also concerned with closure of the
overall site. We also note that, as
described earlier, the definition of
"operations" in Subpart W served as the
basis for corresponding definitions in 40
CFR part 192 and 10 CFR part 40,
Appendix A, and this phrasing has also
been adopted in and provides
consistency with those regulations. We
did not propose to change it and we are
not finalizing any changes.
Comment: The State of Utah
commented on the status of liners at two
of the facilities regulated by the State
under its Subpart W delegation. The
conventional impoundment at the
Shootaring Canyon Mill was
constructed in 1981 and "was not
required to be constructed in
accordance with" the requirements of
40 CFR 192.32(a). However, the State
will require the liner to be upgraded if
the mill goes back into production. The
Shootaring Canyon Mill operated for
Federal Register/Vol. 82, No. 10/Tuesday, January 17, 2017 /Rules and Regulations 5173
only a short period and has been in
standby for nearly 35 years. The State
also addresses Cell 1 at the White Mesa
Mill, which is a non-conventional
impoundment also constructed in 1981.
The State has not considered this
impoundment to be subject to Subpart
W and believes that EPA must conduct
a cost-benefit analysis if the liner is
required to be upgraded.
Response: Comments indicate that
some stakeholders have not always
clearly understood the true scope of the
1989 Subpart W rulemaking. The 1989
rulemaking revised the approach taken
in 1986, which required impoundments
existing at that time to cease operations
by December 31, 1992 unless they could
receive an exemption or extension (51
FR 34066). These impoundments were
not required by Subpart W to meet the
requirements of 40 CFR 192.32(a). The
1989 rulemaking lifted the operating
restriction on older impoundments, but
also removed the exemption from the
requirements of 40 CFR 192.32(a) (54 FR
51680). This provision, promulgated as
40 CFR 61.252(c), explicitly addressed
the exemption for imponndments
constructed prio,r to the prom11lgation of
40 CFR part 192 and_ established that all
impoundments used to manage uranium
byproduct material or tailings became
subject to the liner requirements in 40
CFR 192.32(a) when the 1989 rule
became effective, regardless of when
they were constructed. These liner
requirements have remained in place
because CAA section 112(q) explicitly
retains standards that were in effect
before the date of enactment of the CAA
Amendments of 1990, unless and until
the EPA revises them.
The two impoundments identified by
the State of Utah are both required to
comply with the liner requirements in
40 CFR 192.32(a)(1), and by extension
40 CFR 264.221. The standby status of
the Sbootaring Canyon Mill makes no
difference in this regard. We understand
that some stakeholders did not view the
1989 rulemaking as applicable to liquid
(non-conventional) impoundments. This
final rule clarifies that non-conventional
impoundments did fall nnder the 1989
rule and are also subject to the
requirements in 40 CFR 192.32(a)(1). We
note that Denison Mines, the previous
owner of the White Mesa Mill, stated in
its response to the EPA's section 114
request for information that Cell 1 meets
the requirements of 40 CFR 264.221(a).
Comment: Many commenters objected
to the proposal to eliminate the phrase
"as determined by the Nuclear
Regulatory Commission" from
provisions related to review of the
impoundment construction
requirements in 40 CFR 192.32(a)(1).
Commenters in general argued that
eliminating the phrase "as determined
by the Nuclear Regulatory Commission"
would result in unnecessary dual
regulation if both the EPA and the NRC
need to review and approve
construction applications, with limited
if any benefit. One commenter suggests
this will have significant cost
implications that were not considered
during the rulemaking. Another
commenter questions how
disagreements between the agencies will
be resolved, and suggests that appeals
will be "inappropriately complicated".
A number of these commenters
asserted that our proposal was contrary
to the legal framework established by
Congress for management of byproduct
material as defined in Section 11e.(2) of
the AEA. Commenters cite to the
framework in Section 275 of the AEA,
which directs the EPA to establish
standards for management of byproduct
material and which gives the NRC sole
authority over implementation and
enforcement of the EPA's standards
through its licensing process (one
commenter cites Title 42 of the United
States Code, Section 2022(d) rather than
Section 275 ofthe AEA). Several
commenters refer specifically to that
section's statement that "no permit
issued by the Administrator is required
... for the processing, possession,
transfer, or disposal of byproduct
material, as defined in section 11e.(2) to
this subsection." Another commenter
suggests that the EPA is attempting to
expand its role by improperly assuming
or duplicating the NRC's
responsibilities.
One commenter does not make these
specific statutory references, but more
generally criticizes the EPA for "grossly
inefficient, dual regulation" that is
"inconsistent with efficient regulatory
practices" and goes against previous
efforts by the two agencies to avoid such
situations, as illustrated by the EPA's
rescission of 40 CFR part 61, subparts I
and T. The commenter suggests that
Subpart W could also be rescinded, and
notes that the EPA's separate
rulemaking related to 40 CFR part 192
may be used to incorporate elements of
Subpart W as needed.
We also received some comments in
support of the proposal to remove the
phrase "as determined by the Nuclear
Regulatory Commission." One
commenter believes this is a welcome
clarification that the EPA is
administering the NESHAP program.
Another commenter notes that it is not
unusual for an industry to be regulated
under more than one statute or agency.
A third commenter points out that this
situation bas existed for several
decades. A fourth commenter agrees and
cites the EPA approvals under 40 CFR
part 61, subpart A, as well as the
division of responsibilities at the state
level in Utah as they relate to the White
Mesa Mill.
Response: The EPA disagrees that the
change will be burdensome to licensees
or create additional barriers to
regulatory approval. We proposed this
change to be consistent with the
proposal to narrow the reference to the
impoundment engineering and
construction requirements. As
explained in the preamble to the
proposed rule, the requirements at 40
CFR 61.252(b) and (c) required
compliance with 40 CFR 192.32(a) (79
FR 25406). However, we focus the
Subpart W requirements on the
impoundment design and construction
requirements found specifically at 40
CFR 192.32(a)(1). The remainder of 40
CFR 192.32(a) goes beyond this limited
scope by including requirements for
ground-water detection monitoring
systems and closure of operating
impoundments. These other
requirements, along with all of the part
192 standards, are implemented and
enforced by the NRC through its
licensing requirements for uranium
recovery facilities at 10 CFR part 40,
Appendix A. It is appropriate for
compliance with those provisions to be
solely determined by the NRC.
However, when referenced in Subpart
W, the requirements in 40 CFR
192.32(a)(1) would also be implemented
and enforced by the EPA as the
regulatory authority administering
Subpart W under its CAA authority.
Therefore, we revised 40 CFR 61.252(b)
and (c) to specifically define which
portions of 40 CFR 192.32(a) are
applicable to Subpart W. Section
61.252(b) is re-numbered as 61.252(a)(2)
and section 61.252(c) is incorporated
into 61.252(a)(1) in the final rule.
The comments confirm that there is a
misimpression that this reference to the
NRC precluded the EPA from reviewing
applications for compliance with 40
CFR 192.32(a)(1) in its pre-construction
and modifications reviews under 40
CFR 61.07 and 61.08. That is an
incorrect interpretation of the 1989 rule.
To the contrary, in promulgating the
1989 rule, we stated "Mill operators will
not be allowed to build any new mill
tailings impoundment which does not
meet this work practice standard. EPA
will receive information on the
construction of new impoundments
through the requirements for EPA to
approve of new construction under 40
CFR part 61, subpart A" (54 FR 51682).
The referenced "work practice
standard" includes the requirement for
5174 Federal Register/Vol. 82, No. 10/Tuesday, January 17, 2017 /Rules and Regulations
conformance with 40 CFR 192.32(a). We
are eliminating the reference to the NRC
to clarify that the EPA is an approval
authority for the impoundment
engineering and construction provisions
in 40 CFR 192.32(a)(1). This change will
have no effect on the licensing
requirements of the NRC or its
regulatory authority under UMTRCA to
implement the part 192 standards
through its licenses.
Commenters' references to AEA
Section 275 as limiting our authority are
incorrect. The commenters have
overlooked a salient point, which is that
the Subpart W rulemaking is being
undertaken pursuant to our CAA
authority, not under the AEA. Another
relevant provision in Section 275, 275e
(42 U.S.C. 2022(e)), states: "Nothing in
this Act applicable to byproduct
material, as defined in section 11e.(2) of
this Act, shall affect the authority of the
Administrator under the Clean Air Act
of 1970, as amended, or the Federal
Water Pollution Control Act, as
amended." The Federal Water Pollution
Control Act is also known as the Clean
Water Act.
Further, commenters who cited the
prohibition on EPA permitting
neglected to note the context for this
provision and the specificity of the
language regarding the standards of
general application to be developed by
the EPA. AEA section 275b.(2) reads as
follows: "Such generally applicable
standards promulgated pursuant to this
subsection for nonradiological hazards
shall provide for the protection of
human health and the environment
consistent with the standards required
under subtitle C of the Solid Waste
Disposal Act, as amended, which are
applicable to such hazards: Provided,
however, That no permit issued by the
Administrator is required under this Act
or the Solid Waste Disposal Act, as
amended, for the processing,
possession, transfer, or disposal of
byproduct material, as defined in
section 11e. (2) to this subsection"
(emphasis in original). Thus, Congress
required the EPA's standards to be
consistent with standards applicable to
nonradiological hazardous waste
(subtitle C of the Solid Waste Disposal
Act, better known as the Resource
Conservation and Recovery Act, or
RCRA) in lieu of the Agency exercising
permitting authority under either the
AEA or RCRA. The EPA is not
contravening this restriction by
exercising regulatory authority under
the CAA. Responses to other comments
on our legal authorities for this action
may be found in Section IV.A.2.
Regarding the view of appropriate and
efficient regulation, our action will not
have such far-reaching consequences.
The EPA and the NRC have not
examined the prospect of rescinding
Subpart W. As with the rescission of 40
CFR part 61, subparts I and T, and in
accordance with CAA section 112(d)(9),
the EPA would need to determine that
the NRC's regulatory program will
protect public health with an ample
margin of safety. The EPA's separate
rulemaking under 40 CFR part 192
specifically addresses ground water
protection at ISL facilities.
Comment: Several commenters
addressed the definition of "uranium
byproduct material or tailings" in
Subpart W. Commenters generally
raised the distinction between "tailings"
and "byproduct material" under the
AEA as germane to the scope of this
rulemaking. One commenter suggests
that the historical focus on conventional
mill tailings impoundments (or "piles")
is linked to the CAA, and that we are
impermissibly re-defining non-tailings
byproduct material as "tailings" as a
means to address them under the CAA.
Another commenter noted the following
in reference to the AEA definition: "All
tailings are byproduct material, but not
all byproduct materials are tailings." A
third commenter asks for clarification
on how restoration fluids may be
considered byproduct material. Several
commenters suggested that we adopt the
NRC's definition in 10 CFR 40 .4 as a
means to improve clarity and
consistency.
Another commenter raised a question
regarding wastes at uranium recovery
facilities that are not derived from ores.
The commenter stated that such wastes
may derive from "alternate feed"
materials that contain sufficient
uranium to make processing worthwhile
(e.g., tailings from other mineral
extraction operations), or could include
wastes placed directly into conventional
impoundments because they are
physically or chemically similar to the
material already being managed.
Response: Although we received
suggestions to adopt the AEA's and the
NRC's definition of byproduct material,
we did not propose to revise the
definition of uranium byproduct
material or tailings. CAA section 112(q)
explicitly retains standards such as
Subpart W that were in effect before the
date of enactment of the CAA
Amendments of 1990, so the existing
definition of uranium byproduct
material or tailings remains unless or
until the EPA revises it. Because we did
not propose to revise the definition of
uranium byproduct material or tailings,
we did not open it for comment. The
EPA first defined the term "uranium
byproduct material or tailings" in 1986
and has generally used the term
"tailings" in Subpart W for simplicity.
This rulemaking clarifies the scope of
the EPA's term "uranium byproduct
material or tailings" and provides
reassurance that it is not in conflict with
NRC's definitions. The following
discussion is provided for informational
purposes to further clarify this issue.
We note that the EPA has clear
authority to promulgate definitions
under the CAA as it deems appropriate
and is not limited to the AEA's
definition of "byproduct material" or
the NRC's definition in 10 CFR 40.4.
The EPA's definition identifies the
scope of material covered by the
Subpart W regulations and does not
preempt the NRC's AEA authority. See
Section IV.A.2 for more discussion of
legal authorities as they relate to this
issue.
The definition of "uranium byproduct
material or tailings" in Subpart W, as it
was promulgated in 1989 and not
modified by this rule, establishes that
Subpart W broadly addresses radon
emissions from operating structures
used to manage wastes produced during
and following the concentration or
extraction of uranium from ore
processed primarily for its source
material content. The EPA
acknowledges that the definition of
"uranium byproduct material or
tailings," as originally promulgated in
1989, may not wholly conform with the
common understanding of "tailings."
However, the scope and applicability of
Subpart W is determined by the
regulatory definition of "uranium
byproduct material or tailings," not the
common understanding of tailings.
Subpart W applies to the structures at
uranium recovery facilities that are used
to manage or contain "uranium
byproduct material or tailings" during
and following the processing of uranium
ores. Common names for these
structures may include, but are not
limited to, impoundments, tailings
impoundments, tailings piles,
evaporation or holding ponds, and heap
leach piles. However, the name itself is
not important for determining whether
Subpart W requirements apply to that
structure; rather, applicability is based
on what these structures contain. To
clarify any potential confusion created
by the Subpart W definition, any
references to "uranium byproduct
material" or "tailings" are now
references to "uranium byproduct
material or tailings." These changes
reaffirm the scope of Subpart W and are
not substantive.
The defined scope of materials subject
to Subpart W becomes more meaningful
when one considers the current
Federal Register/Vol. 82, No. 10/Tuesday, January 17, 2017 /Rules and Regulations 5175
dominance ofiSL in uranium recovery.
At these sites, where conventional
impoundments are not present, non-
conventional impoundments managing
uranium byproduct material or tailings
are the most significant potential source
of radon during operations. Although
we do not generally expect non-
conventional impoundments to be as
large a source of potential emissions as
conventional impoundments, non-
conventional impoundments manage
uranium byproduct material or tailings
and emit or have the potential to emit
sufficient radon that it is appropriate for
the EPA to address them under Subpart
w.
The designation of restoration fluids
as uranium byproduct material or
tailings is consistent with the approach
taken by the NRC. See Staff
Requirements Memorandum-SECY-
99-013, "Recommendation on Ways to
Improve the Efficiency of NRC
Regulation at In Situ Leach Uranium
Recovery Facilities," July 26 , 2000.
It is not necessary for us to explicitly
address waste not resulting from the
concentration or extraction of ores
because Subpart W applies to
impoundments, both conventional and
non-conventional, that are used to
manage uranium byproduct material or
tailings. Such impoundments that also
contain non-ore wastes continue to be
subject to Subpart W. It is unlikely that
an operator would construct
impoundments for the sole purpose of
managing wastes that do not derive from
the processing of ores. As explained in
Section IV.E.2, the purpose of Subpart
W is to control radon emissions from
sources containing uranium byproduct
material or tailings at uranium recovery
facilities. If an impoundment does not
contain uranium byproduct material or
tailings, it is not subject to the
requirements of Subpart W. If
construction of such impoundments is
planned, they can be identified and
their status can be addressed during the
construction application review under
subpart A.
Comment: Commenters requested
clarification regarding whether liquids
in impoundments contain byproduct
material or are byproduct material. One
commenter asked us to clarify that
solids and liquids in impoundments are
byproduct material.
Response: Subpart W applies to
conventional and non-conventional
impoundments to the extent they are
used to manage uranium byproduct
material or tailings, with the primary
concern being the potential to emit
radon. The uranium byproduct material
or tailings may be in solution or
suspension in liquids that are
discharged to these impoundments, or
in sediments after settling out from the
liquids.
V. Summary of Environmental, Cost
and Economic Impacts
As discussed earlier, uranium
recovery activities are carried out at
several different types of facilities. We
are revising Subpart W based on how
uranium recovery facilities manage
uranium byproduct materials during
and after the processing of uranium ore
at their particular facility. As discussed
in Sections III and IV, we are
establishing GACT-based requirements
for three types of affected sources at
uranium recovery facilities: (1)
Conventional impoundments; (2) non-
conventional impoundments; and (3)
heap leach piles.
For purposes of analyzing the impacts
of the final rule, we assumed that
approximately five conventional milling
facilities, 50 ISL facilities (although this
is only a projection since only 12 are
fully licensed) and one heap leach
facility, each with at least one regulated
impoundment, are subject to the final
Subpart W. The following sections
present our estimates of the final rule's
air quality, cost and economic impacts.
For more information, please refer to the
Economic Impact Analysis (EIA) report
that is included in the public docket for
this final rule (EP A-HQ-OAR-2008-
0218).
A. What are the air quality impacts?
The requirements in this final rule
should eliminate or reduce radon
emissions at all three types of affected
sources. The GACT-based standards
being established by this action are
based on control technologies and
management practices that have been
used at uranium recovery facilities for
the past twenty or more years. These
standards will minimize the amount of
radon that is released to the air by
keeping the impoundments wet or
covered with soil and/or by limiting the
area of exposed uranium byproduct
material or tailings.
B. What ore the cost and economic
impacts?
Table 5 presents a summary of the
unit cost (per pound of U30 8) for
implementing each GACT-based
standard at each of the three types of
uranium recovery facilities. Because the
requirements for liners are not
attributable to Subpart W, but are
required by other regulations, the only
costs attributable to this rulemaking are
related to maintaining liquids in non-
conventional impoundments. In
addition to presenting the GACT costs
individually, Table 5 presents the total
unit cost to implement all relevant
GACT -based standards at each type of
facility. For example, the table shows
that conventional mills will have both
conventional impoundments and non-
conventional impoundments, and will
also be required to maintain saturation
in the non-conventional impoundments.
TABLE 5-FINAL GACT STANDARDS COSTS PER POUND OF U30a
GACT -Double Liners for Conventional Impoundments • ......................................................... .
GACT -Double Liners for Non-conventional Impoundments • .................................................. .
GACT -Maintaining Non-conventional Impoundment Sediments 1 00% Saturated .................. .
GACT -Liners for Heap Leach Piles • ....................................................................................... .
GACTs-Total for All Four ......................................................................................................... .
Baseline Facility Costs •• (EIA Section 6.2) ............................................................................... .
Baseline Facility Costs ••• ........................................................................................................... .
• Liners required by 40 CFR part 192.
•• Based on Price of U30a at $55/lb.
••• Based on Price of U30a at $65/lb (used in proposed rule).
Conventional
mills
$1.04
1.04
0.015
2.09
55.18
51 .56
Unit cost
($/lb U30a)
ISL facilities
$3.07
0.026
3.09
51.31
52.49
Heap leach
$0.22
0.0013
2.01
2.24
45.06
46.08
5176 Federal Register/Val. 82, No. 10/Tuesday, January 17, 2017 /Rules and Regulations
A reference facility for each type of
uranium recovery facility is developed
and described in Section 6.2 of the EIA,
including the base cost estimate to
construct and operate each of the three
types of reference facilities. For
comparison purposes, the unit cost (per
pound of U30sl of the three uranium
recovery reference facilities is presented
at the bottom of Table 5. In developing
the baseline cost, it was assumed that
the price of U30s is $55 per pound. At
that price, baseline facility costs
increase somewhat for the conventional
mill because the cost of financing (i.e.,
interest) also increases as revenues are
lower. The baseline cost for a
conventional mill actually exceeds the
$55/lb, which suggests that the mill
cannot operate profitably. Baseline costs
at $65 per pound, which was used to
support the proposed rule, are also
shown for comparison. This illustrates
the sensitivity of facility cost to market
price, which is more significant than the
cost of implementing the GACT-based
standards.
Based on the information in Table 5,
the four GACT-based standards
represent about 4%, 6%, and 5% ofthe
baseline cost (per pound of U30 8) at
conventional, ISL, and heap leach
uranium recovery facilities,
respectively. The baseline costs were
estimated using recently published cost
data for actual uranium recovery
facilities. For the model conventional
mill, we used data from the recently
licensed new mill at the Pinon Ridge
project in Colorado. For the model ISL
facility, we used data from two
proposed new facilities: (1) The
Centennial Uranium project in
Colorado; and (2) the Dewey-Burdock
project in South Dakota. The Centennial
project is expected to have a 14-to 15-
year production period, which is a long
duration for an ISL facility, while the
Dewey-Burdock project is expected to
have a shorter production period of
about 9 years, which is more
representative of ISL facilities. For the
heap leach facility, we used data from
the proposed Sheep Mountain project in
Wyoming.
Baseline costs for conventional
impoundment liner construction 25 will
25 These liner systems (conventional, non-
conventional and heap leach piles) are already
required by 40 CFR 192.32(a)(1), which, as
explained above, are requirements promulgated by
the EPA under UMTRCA that are incorporated into
NRC regulations and implemented and enforced by
the NRC through its licensing requirements.
Therefore, we are not placing any additional liner
requirements on facilities or requiring them to incur
any additional costs to build their conventional or
non-conventional impoundments or heap leach
piles above and beyond what an owner or operator
of these impoundments must already incur to
remain the same, since the final rule
does not impose additional
requirements. Liners meeting the
requirements at 40 CFR 192.32(a)(1) are
already mandated by other regulations
and were mandated by the 1989 rule
and, therefore, are built into the baseline
cost estimate. As a result, there are no
costs (or benefits) resulting from the
inclusion of these requirements in the
final rule.
The average cost to construct one of
these impoundments is $13.8 million.
We estimate that this cost is less than
2% of the total baseline costs to
construct and operate a conventional
mill, per pound of U30 8 produced.
We have estimated that for an average
80-acre non-conventional impoundment
the average cost of construction of an
impoundment is $24.7 million.
Requiring impoundments to comply
with the liner requirements in 40 CFR
192.32(a)(1) will contain the uranium
byproduct material and reduce the
potential for ground water
contamination. The only economic
impact attributable to the final rule is
the cost of complying with the new
requirement to maintain liquids such
that solids in the non-conventional
impoundments are not visible above the
liquid level during operation and
standby. As explained in Section IV.B.3.
of this preamble, as long as solid
materials are maintained in a saturated
state in the non-conventional
impoundments the effective radon
emissions from the ponds are reduced
by approximately 95%. In order to
maintain a liquid surface above the
sediments within a pond, it is necessary
to replace the water that is evaporated
from the pond. Depending on the source
of water chosen, we estimate that this
requirement will cost owners or
operators· of non-conventional
impoundments between $2,909 and
$37,527 per year.26 This value also
varies according to the size of the non-
conventional impoundment, up to 80
acres, and the location of the
impoundment. Evaporation rates vary
by geographic location. The requirement
to maintain a liquid surface above solid
materials in the ponds is estimated to
obtain an NRC license. Therefore, there are no
projected costs (or benefits) beyond the baseline
resulting from the inclusion of these requirements
in Subpart W.
26 These figures are higher than those estimated
for the proposed rule. We received information
during the comment period that resulted in an
increase in the estimated cost of obtaining makeup
water, so the final rule requirement of 100%
saturation is still lower than the proposed
requirement to maintain one meter of liquid, using
the same base water costs.
cost less than $0.03 per pound of
uranium produced.
Designing and constructing heap
leach piles to meet the requirements at
40 CFR 192.32(a)(1) will minimize the
potential for leakage of uranium
enriched lixiviant into the ground
water. Specifically, this will require that
a double liner, with drainage collection
capabilities, be provided under heap
leach piles. Baseline costs for heap
leach pile liner construction will remain
the same, since the final rule does not
impose additional requirements. Liners
meeting the requirements at 40 CFR
192.32(a)(1) are already mandated by
other regulations and, therefore, built
into the baseline cost estimate.
Therefore there are consequently no
costs (or benefits) resulting from the
inclusion of these requirements in
Subpart W. Baseline costs for
construction will be essentially the
same as for conventional
impoundments. Since the liner systems
are equivalent to the systems used for
conventional and non-conventional
impoundments, we have been able to
estimate the average costs associated
with the construction of heap leach pile
impoundments that meet the liner
requirements we are proposing, and
compare them to the costs associated
with the total production of uranium
produced by the facility. The average
cost of constructing such an
impoundment is estimated to be
approximately $12.6 million. The costs
of constructing this type of liner system
are less than 5% of the estimated total
baseline costs of a heap leach facility.
In summary, we estimate that for
conventional impoundments there will
be no additional costs incurred through
this proposed rule. For non-
conventional impoundments we
estimate that the additional costs
incurred by this proposed rule will be
to maintain a layer of liquid above solid
materials in each non-conventional
impoundment, and we have estimated
those costs between approximately
$2,909 and $37,527 per year, which
represents less than $0.03 per pound of
U30s produced. For heap leach piles, no
additional costs will be incurred.
C. What are the non-air environmental
impacts?
Water quality will be maintained by
implementation of this final rule. This
final rule does contain requirements (by
reference) related to water discharges
and spill containment. In fact, the liner
requirements cross referenced at 40 CFR
192.32(a)(1) will significantly decrease
the possibility of contaminated liquids
leaking from impoundments into
ground water (which can be a
Federal Register/Vol. 82, No. 10/Tuesday, January 17, 2017/Rules and Regulations 5177
significant source of drinking water).
Section 192.32(a)(1) includes a cross-
reference to the surface impoundment
design and construction requirements of
hazardous waste surface impoundments
regulated under RCRA, found at 40 CFR
264.221. Those requirements state that
the impoundment shall be designed,
constructed and installed to prevent any
migration of wastes out of the
impoundment to the adjacent
subsurface soil or ground water or
surface water at any time during the
active life of the impoundment. There
are other requirements in 40 CFR
264.221 for the design and operation of
the impoundment, and these include
construction specifications, slope
requirements, sump and liquid removal
requirements. These liner systems for
conventional and non-conventional
impoundments and heap leach piles are
already required by 40 CFR 192.32(a)(1),
which, as explained above, are
requirements promulgated by the EPA
under UMTRCA that are incorporated
into NRC regulations and implemented
and enforced by the NRC through their
licensing requirements. Therefore, we
are not placing any additional liner
requirements on facilities or requiring
them to incur any additional costs to
build their conventional or non-
conventional impoundments or heap
leach piles above and beyond what an
owner or operator of these
impoundments must already incur to
obtain an NRC license.
Including a double liner in the design
of all onsite impoundments that would
contain uranium byproduct material or
tailings will reduce the potential for
groundwater contamination. Although
the amount of the potential reduction is
not quantifiable, it is important to take
this into consideration due to the
significant use of ground water as a
source of drinking water.
VI. Statutory and Executive Order
Reviews
Additional information about these
statutes and Executive Orders can be
found at http://www2.epa.gov/laws-
regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review
This action is a significant regulatory
action that was submitted to OMB for
review. The Executive Order (E.O.)
defines "significant regulatory action"
as one that is likely to result in a rule
that may "raise novel legal or policy
issues arising out of legal mandates, the
President's priorities, or the principles
set forth in the Executive Order." Any
changes made in response to OMB
recommendations have been
documented in the docket for this
action. The EPA prepared an economic
analysis of the potential costs and
benefits associated with this action.
This analysis, "Technical and
Regulatory Support to Develop a
Rulemaking to Modify the NESHAP
Subpart W Standard for Radon
Emissions from Operating Mill Tailings
(Background Information Document and
Economic Impact Analysis)," Docket
No. EP A-HQ-OAR-2008-0218, is
available in the docket and summarized
in Section V of this preamble. This
action is not a significant economic
action.
B. Paperwork Reduction Act (PRA)
The information collection
requirements in this rule have been
submitted for approval to OMB under
the PRA. The Information Collection
Request (ICR) document prepared by the
EPA has been assigned EPA ICR number
2464.02. You can find a copy of the ICR
in the docket for this rule, and it is
briefly summarized here. The
information collection requirements are
not enforceable until OMB approves
them.
The information to be collected for
the rule is based on the requirements of
the CAA. Section 114 authorizes the
Administrator of the EPA to require any
person who owns or operates any
emission source or who is subject to any
requirements of the Act to:
-Establish and maintain records
-Make reports, install, use, and
maintain monitoring equipment or
method
-Sample emissions in accordance with
EPA-prescribed locations, intervals
and methods
-Provide information as may be
requested
EPA's regional offices use the
information collected to ensure that
public health continues to be protected
from the hazards of radionuclides by
compliance with health based standards
and/or GACT.
The rule requires the owner or
operator of a uranium recovery facility
to maintain records that confirm that the
conventional impoundment(s), non-
conventional impoundment(s) and heap
leach pile(s) meet the requirements in
§ 192.32(a)(1). Included in these records
are the results of liner compatibility
tests and documentation that a layer of
liquid above solid materials has been
maintained in non-conventional
impoundments. This documentation
should be sufficient to allow an
independent auditor (such as an EPA
inspector) to verify the accuracy of the
determination made concerning the
facility's compliance with the standard.
These records must be kept at the mill
or facility for the operational life of the
facility and, upon request, be made
available for inspection by the
Administrator, or his/her authorized
representative. The rule requires the
owners or operators of operating non-
conventional impoundments to submit
digital photographs taken during the
compliance inspections required in
section 61.252(b). The recordkeeping
requirements require only the specific
information needed to determine
compliance. We have taken this step to
minimize the reporting requirements for
small business facilities.
The annual monitoring and
recordkeeping burden to affected
sources for this collection (averaged
over the first three years after the
effective date of the final rule) is
estimated to be 6,693 hours with a total
annual cost of $336,950 for the
requirements related to documenting
the liquid level in non-conventional
impoundments, and a one-time
expenditure of 460 hours and $32,890 to
maintain records of impoundment
design and construction. This estimate
includes a total capital and start-up cost
component annualized over the
facility's expected useful life and a
purchase of services component. We
estimate that this total burden will be
spread over 23 facilities that will be
required to keep records.
Burden is defined at 5 CFR 1320.3(b).
An agency may not conduct or sponsor,
and a person is not required to respond
to, a collection of information unless it
displays a currently valid OMB control
number. The OMB control numbers for
EPA's regulations in 40 CFR are listed
in 40 CFR part 9. When OMB approves
this ICR, the Agency will announce that
approval in the Federal Register and
publish a technical amendment to 40
CFR part 9 to display the OMB control
number for the approved information
collection activities contained in this
final rule.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have
a significant economic impact on a
substantial number of small entities
under the RF A. The small entities
subject to the requirements of this
action are small businesses whose
company has less than 250 employees
and is primarily engaged in leaching or
beneficiation of uranium, radium or
vanadium ores as defined by NAICS
code 212291.
The EPA has determined that small
entities subject to the requirements of
5178 Federal Register/Val. 82, No. 10/Tuesday, January 17, 2017 /Rules and Regulations
this action are approximately 18
uranium recovery facilities that are
currently operating or plan to operate in
the future. The Agency has determined
that the ten small businesses that own
these facilities may experience an
impact of less than 1% of total annual
production costs, or less than $0.03 per
pound of uranium produced. Details of
this analysis are presented in Section 6
of the BID/EIA prepared to support this
rulemaking (Docket No. EPA-HQ-OAR-
2008-Q218).
D. Unfunded Mandates Reform Act
(UMRA)
This action does not contain an
unfunded mandate of $100 million or
more as described in UMRA, 2 U.S.C.
1531-1538, and does not significantly or
uniquely affect small governments. The
final rule imposes no enforceable duty
on any state, local or tribal governments
or the private sector. Thus, this rule is
not subject to the requirements of
sections 202 or 205 of UMRA.
This rule is also not subject to the
requirements of section 203 of UMRA
because it contains no regulatory
requirements that might significantly or
uniquely affect small governments
because it contains no requirements that
apply to such governments nor does it
impose obligations upon them.
E. Executive Order 13132: Federalism
This action does not have federalism
implications. It will not have substantial
direct effects on the states, on the
relationship between the national
government and the states, or on the
distribution of power and
responsibilities among the various
levels of government. None of the
facilities subject to this action are
owned and operated by State
governments and nothing in the final
rule will supersede State regulations.
Thus, E.O. 13132 does not apply to this
final rule.
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This action does not have tribal
implications, as specified in Executive
Order 13175. The action imposes
requirements on owners and operators
of specified area sources and not tribal
governments. Thus, Executive Order
13175 does not apply to this action.
The EPA notes, however, that several
tribes or tribal groups expressed interest
in this rulemaking due to the proximity
of some of the facilities regulated under
Subpart W to tribal lands. Consistent
with the EPA Policy on Consultation
and Coordination with Indian Tribes,
the EPA consulted with tribal officials
of the Ute Mountain Ute Tribe during
development of this action. A summary
of that consultation is provided in
Docket No. EPA-HQ-OAR-2008-0218-
0120.
G. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
This action is not subject to Executive
Order 13045 because it is not
economically significant as defined in
Executive Order 12866. This action's
health and risk assessments are
contained in Section IV.B.2 of this
preamble and in the Background
Information Document prepared to
support this action (Docket No. EPA-
HQ-OAR-2008-0218). The updated risk
assessment described in Section IV.B.2
incorporated the risk coefficients from
Federal Guidance Report (FGR) No. 13,
"Cancer Risk Coefficients for
Environmental Exposure to
Radionuclides," which includes age-
averaged factors to convert radionuclide
exposure (intake) to health risk. FGR 13
was developed subsequent to the risk
assessment conducted to support the
1989 rulemaking, which relied upon
factors applicable to adults. FGR 13 is
undergoing revision.
H. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
This action is not a "significant
energy action" because it is not likely to
have a significant adverse effect on the
supply, distribution, or use of energy.
This final rule will not adversely
directly affect productivity,
competition, or prices in the energy
sector.
I. National Technology Transfer and
Advancement Act (NTT AA)
This rulemaking does not involve
technical standards. The rule retains
requirements for radon monitoring
using Method 115 that were
promulgated in 1989.
f. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
The EPA believes that this action does
not have disproportionately high and
adverse human health or environmental
effects on minority populations, low-
income populations and/or indigenous
peoples, as specified in Executive Order
12898 (59 FR 7629, February 16, 1994).
The documentation for this decision is
contained in Section IV.B.2 of this
preamble and the Background
Information Document prepared to
support this action (Docket No. EPA-
HQ-OAR-2008-0218).
K. Congressional Review Act (CRA)
This action is subject to the CRA, and
the EPA will submit a rule report to
each House of the Congress and to the
Comptroller General of the United
States. This action is not a "major rule"
as defined by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 61
Environmental protection, Air
pollution control, Hazardous
substances, Radon, Tailings, Byproduct,
Uranium, Reporting and recordkeeping
requirements.
Dated: December 20, 2016.
Gina McCarthy,
Administrator.
For the reasons stated in the
preamble, the Environmental Protection
Agency amends title 40, Chapter I of the
Code of Federal Regulations as follows:
PART 61-NATIONAL EMISSIONS
STANDARDS FOR HAZARDOUS AIR
POLLUTANTS
• 1. The authority citation for part 61
continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart W-National Emission
Standards for Radon Emissions From
Operating Mill Tailings
• 2. Section 61.251 is amended by
revising paragraphs (b) through (f) and
adding paragraphs (h) through (o) to
read as follows:
§ 61.251 Definitions.
* * * * *
(b) Continuous disposal means a
method of uranium byproduct material
or tailings management and disposal in
which uranium byproduct material or
tailings are dewatered by mechanical
methods immediately after generation.
The dried uranium byproduct material
or tailings are then placed in trenches or
other disposal areas and immediately
covered to limit emissions consistent
with applicable Federal standards.
(c) Dewatered means to remove the
water from recently produced uranium
byproduct material or tailings by
mechanical or evaporative methods
such that the water content of the
uranium byproduct material or tailings
does not exceed 30 percent by weight.
(d) Existing conventional
impoundment means any conventional
uranium byproduct material or tailings
impoundment which is licensed to
accept additional uranium byproduct
material or tailings and is in existence
on December 15, 1989.
Federal Register/Val. 82, No. 10/Tuesday, January 17, 2017 /Rules and Regulations 5179
(e) Operation. Operation means that
an impoundment is being used for the
continued placement of uranium
byproduct material or tailings or is in
standby status for such placement. An
impoundment is in operation from the
day that uranium byproduct material or
tailings are first placed in the
impoundment until the day that final
closure begins.
(f) Phased· disposal means a method of
uranium byproduct material or tailings
management and disposal which uses
lined impoundments which are filled
and then immediately dried and
covered to meet all applicable Federal
standards.
* * * * *
(h) Conventional impoundment. A
conventional impoundment is a
permanent structure located at any
uranium recovery facility which
contains mostly solid uranium
byproduct material or tailings from the
extraction of uranium from uranium ore.
These impoundments are left in place at
facility closure.
(i) Non-conventional impoundment.
A non-conventional impoundment is
used for managing liquids from uranium
recovery operations and contains
uranium byproduct material or tailings
suspended in and/or covered by liquids.
These structures are commonly known
as holding ponds or evaporation ponds
and can be located at any uranium
recovery facility. They are typically not
permanent structures unless they
transition to become used as
conventional impoundments.
Impoundments constructed for the
purpose of managing liquids from
closure or remediation activities (e.g.,
contaminated groundwater), and which
are used solely for that purpose, are not
subject to the requirements of this
subfart. (j Heap leach pile. A heap leach pile
is a pile of uranium ore placed on an
engineered structure and stacked so as
to allow uranium to be dissolved and
removed by leaching liquids.
(k) Standby. Standby means the
period of time that an impoundment is
not accepting uranium byproduct
material or tailings but has not yet
entered final closure.
(l) Uranium recovery facility. A
uranium recovery facility means a
facility licensed by the NRC or an NRC
Agreement State to manage uranium
byproduct material or tailings during
and following the processing of uranium
ores. Common names for these facilities
are a conventional uranium mill, an in-
situ leach (or recovery) facility and a
heap leach facility or pile.
(m) Heap leach pile operational life.
The operational life of a heap leach pile
means the time period from the first
time that lixiviant is placed on the heap
leach pile until the time the final rinse
is completed.
(n) Final closure means the period
during which an impoundment or heap
leach pile is being managed in
accordance with the milestones and
requirements in an approved
reclamation plan. Final closure for the
impoundment or heap leach pile begins
when the owner or operator provides
written notice to the Administrator and
to the Nuclear Regulatory Commission
or applicable NRC Agreement State that:
(1) A conventional impoundment is
no longer receiving uranium byproduct
material or tailings, is no longer on
standby for such receipt and is being
managed under an approved
reclamation plan for that impoundment
or facility closure plan; or
(2) A non-cOJwentional impoundment
is no longer required for evaporation or
holding purposes, is no longer on
standby for such purposes and is being
managed under an approved
reclamation plan for that impoundment
or facility closu.re plro1; or
(3) A heap leach pile has concluded
its operational life and is being managed
under an approved reclamation plan for
that pile or facility closure plan.
(o) Reclamation plan means the plan
detailing activities and milestones to
accomplish reclamation of
impoundments or piles containing
uranium byproduct material or tailings.
Activities and milestones to be
addressed include, but are not limited
to, dewatering and contouring of
conventional impoundments and heap
leach piles, and removal and disposal of
non-conventional impoundments. A
reclamation plan prepared and
approved in accordance with 10 CFR
part 40, Appendix A is considered a
reclamation plan in this subpart.
• 3. Section 61.252 is revised to read as
follows:
§ 61.252 Standard.
(a) Each owner or operator of a
conventional impoundment shall
comply with the following
requirements:
(1) Radon-222 emissions to the
ambient air from an existing
conventional impoundment shall not
exceed 20 pCil(mZ-sec) (1.9 pCil(ft2-
sec)) of radon-222 and all owners or
operators shall comply with the
provisions of 40 CFR 192.32(a)(1) in the
operation of the impoundment
notwithstanding the exemption for
existing impoundments in 40 CFR
192.32(a)(1).
(2) After December 15, 1989, no new
conventional impoundment may be
built unless it is designed, constructed
and operated to meet one of the two
following management practices:
(i) Phased disposal in lined
impoundments that are no more than 40
acres in area and comply with the
requirements of 40 CFR 192.32(a)(1).
The owner or operator shall have no
more than two conventional
impoundments, including existing
conventional impoundments, in
operation at any one time.
(ii) Continuous disposal such that
uranium byproduct material or tailings
are dewatered and immediately
disposed with no more than 10 acres
uncovered at any time and shall comply
with the requirements of 40 CFR
192.32(a)(1).
(b) Each owner or operator of a non-
conventional impoundment shall
comply with the following
requirements: Non-conventional
impoundments shall meet the
requirements of 40 CFR 192.32(a)(1).
During operation and until final closure
begins, the liquid level in the
impoundment shall be maintained so
that solid materials in the impoundment
are not visible above the liquid surface,
verified by daily inspections
documented through notations and by
digital photographic evidence collected
at least weekly. Should inspection
reveal that solid materials in the
impoundment are visible above the
liquid surface, the owner or operator
must correct the situation within seven
days, or other such time as specified by
the Administrator.
(c) Each owner or operator of a heap
leach pile shall comply with the
following requirements: Heap leach
piles that have completed their
operating life but have not yet entered
final closure shall be managed in
compliance with the phased disposal
management practice in paragraph
(a)(2)(i) of this section. Heap leach piles
shall be constructed in lined
impoundments that are no more than 40
acres in area and shall comply with the
requirements of 40 CFR 192.32(a)(1).
The owner or operator shall have no
more than two heap leach piles,
including existing heap leach piles,
subject to this subpart at any one time.
• 4. Section 61.255 is revised to read as
follows:
§ 61.255 Recordkeeping requirements.
(a) The owner or operator of any
uranium recovery facility must maintain
records that confirm that the
conventional impoundment(s), non-
conventional impoundment(s) and heap
leach pile(s) subject to this subpart at
the facility meet the requirements in 40
CFR 192.32(a)(1). These records shall
5180 Federal Register/Vol. 82, No. 10/Tuesday, January 17, 2017 /Rules and Regulations
include, but not be limited to, the
results of liner compatibility tests.
(b) The owner or operator of any
uranium recovery facility with non-
conventional impoundments must
maintain written records from daily
inspections and other records
confirming that any sediments have
remained saturated in the non-
conventional impoundments at the
facility. Periodic digital photographic
evidence, with embedded date stamp
and other identifying metadata, shall be
collected no less frequently than weekly
to demonstrate compliance with the
requirements of§ 61.252(b). Should
inspection reveal that a non-
conventional impoundment is not in
compliance with the requirements of
§ 61.252(b), the owner or operator shall
collect photographic evidence before
and after the non-compliance is
corrected.
(c) The records required in paragraphs
(a) and (b) in this section must be kept
at the uranium recovery facility for the
operational life of the facility and must
be made available for inspection by the
Administrator, or his authorized
representative.
(1) Digital photographs taken to
demonstrate compliance with the
requirements of§ 61.252(c) shall be
submitted electronically using the
Subpart W Impoundment Photographic
Reporting (SWIPR) system that is
accessed through EPA's Central Data
Exchange (CDX} (cdx.epa.gov) at least
monthly.
(i) Owners and operators must also
submit information identifying the
facility and facility location, the name
or other designation of each
impoundment, and the date and time of
each photograph.
(ii) If the reporting form specific to
this subpart is not available in SWIPR,
the owner or operator must retain the
digital photographs at the facility and
provide them to the EPA or authorized
State upon request, with the supporting
information required in paragraph
(c)(l)(i) of this section.
(2) [Reserved)
[FR Doc. 2016-31425 Filed 1-13-17; 8:45am]
BILLING CODE 656!HiG-P
Appendix 4
Subpart D Preamble
Appendix 5
Memorandum of Understanding Between EPA, NRC and The State of Colo., Tex., and Wash.
Concerning Clean Air Act Standards for Radon Releases from Uranium Mill Tailings, Subparts
T and W, 40 C.F.R. Part 61,56 Fed. Reg. 55434 (October 25, 1991).
I
Memorandum of Understanding Between EPA, NRC and
The State of Colorado, Texas, and Washington
Concemiq Clean Air Act Standards
for Radon Releases from Uranium Mill Tailings,
Subparts T and "' 40 CFR Part 'I
In accordance with Sections liZ (d)(9) and 122 (c)(Z) of the Clean Afr
Act, as a.ended in 1990, and tn order to •ini•tze regulatory duplication and
conserve resources in the control of radtonucltde e.tsstons to atr fr01
urantu• •111 tailing~ sites licensed by the Nuclear Regulatory Ca..1ss1on
(NRC) or its Agreement States under the Atomic Energy Act of 1954, as amended,
NRC, the Environmental Protection Agency (EPA), and the States of Colorado,
Texas, and Wuhington (the affected A~t·ee~~~ent States) •gree as follows:
General Goal of Agreement
£PA, NRC and affected Agreement States are entering into this MOU to
ensure that owners and operators of existing uran1WI •111 tailings disposal
sites licensed by the NRC, or the affected Agree~ent States, who have ceased
operations and those owners and operators that will in the f~ture cease
operation, effect emplacement of a final earthen cover to 11•1t radon
emissions to a flux of no more than 20 pC;Jml/s, as expeditiously as
practicable considering technological feasibility. A guiding objective is
that this occur to all current disposal sites (see Attac~nt A) by the end of
1997, and within seven years of when the existing operating and standby sites cease operation. The final closure requirement shalt be enforceable by NRC or
the affected Agreement States.
NRC and Affected Agreement St&te L~td Actions
1. NRC or the affected Agrea.ent States will co.plete review and
approval of detailed recl..ation (i.e., final closure) plans, 1nc1ud1ng
schedules for emplace.ent of earthen covers on non-operational tailing
i•pound.ants such that radon .. tssions will not exceed 1 flux of 20 pC1/If/s,
as soon as practicable but in any event not later than Septe.ber of 1993. IRC
or the affected Agree.ent States w111 t..adtately soltctt voluntary requests
by uraniu. Mill tatltngs disposal $1te licensees to ~nd their licenses to
set forth, or 1n~orporate by reference, the schedule for reclaaation. Once
approved by NRC or the Agreement St~tes, these reclaaatton schedules will be
enforceable. If any licensee fails to voluntarily have a ftra reclaaat1on
schedule (consistent with thts MOU) incorporated into its license, NRC or the
Agree.ent States will t~ose the appropriate license a.end.ants by order (1n
accordance wtth applicable regulatory procedures).
9708070093 970730 PDR FOIA BARRETT97-227 PDR
NRC or the affected Agreement States will ensure that the schedules and
conditions for effecting final closure are flexible enough to conteaplate
technological feasibility and that cover emplacement on the tailings
impoundments occurs as expeditiously as practicable considering both short-
term reductions in radon releases and long-term stability of the uranium
tailings.
Z. NRC agrees to provide for public notice and ca.aent by publis~ing in
the Federal Register r~ceipt of requests, intent to issue amendments, or
intent to issue orders which (1) incorporate recla•ation plans or other
schedules for effecting final closure into licenses, and (2) amend reclamation
schedules as necessary for reasons of technological feasibility (including
inclement weather, litigation which compels delays to e-place.ent, or other
factors beyond control of the licensee) after the recla.ation plans have been
incorporated into the licenses. The affected Agreement States agree to
provide comparable public notice and comment.
3. NRC will conduct enforcement actions fn accordance with 10 CFR Part
2, Appendix C, to compel licensee adherence to reclamation schedules, except
when the licensee both demor.strate~ that compliance was not technologically
fea~ible and has made written application to NRC for a li.ense amendment to
reflect that concern. The affected Agreement States shall act pursuant to
their authority to similarly enforce. NRC and the affected Agreement States
will consider and act within a reasonable time period upon requests from EPA
or other interested parties to institute a proceeding to modify, suspend, or
revoke a license or other enforcement action as may be proper. NRC will
consider such requests in accordance with the procedures 1n 10 CFR 2.206: the
affected Agreement States will consider such requests in accordance with State
law and existing State procedures.
EPA l ead Actions
4. In or about October 1991, EPA will develoF and publish in the
Federal Regi)~er a Notice of Proposed Rulemak1ng to stay extst.ng 40 CfR Part
61, Subpart T renJing implementatior. of this agreement, including the
rulemakfng initiatives described in paragraphs 5 and 6, below, and the license
amendments described in paragraphs 1 and 2, above. Final action will be taken
on or about December 15, 1991.
5. On or about December 15, 1991, EPA will develop and publish in the
Federal Register a Notice of Proposed Rulemaking or an Advanc~ Notice of
Proposed Rulemaking, pursuant to its 1uthor1ty under Ata.1c Energy Act Section
275, to make specific amendments to 40 CFR Part 192 that would require
e•placement of a final earthfn cover on non-operational tailing impoundments
such that radon emissions will not exceed a flux of 20 pC1/If/s, as
expeditiously as practicable, but with a goal that such occur no later than
December 31. 1997 or seven years after the date on which the impoundment
ceased operations, whichever is later. This proposal will include generic
performance obligations towards closure. NRC and the affected Agreement
States will assist EPA in developing the technical basis to support this
rulemaktng. Final action will be taken as soon as practicable.
2
;
'
AT7ACHMENT A
Non-Operational Tailings Impoundments
FACILITY
ANC, Gas Hills, WY
-1 impoundment opentt on a 1 for
in-situ waste disposal
·1 non-operational impound.ent
ARCO Coal, Bluewater, HM
Atlas, Moab, UT
Conoco, Conqufsta, TX
Ford-Oa•o:n Mining, Ford, WA
-1 operational impoundment
-3 non-operational impoundments
Hecla Mining, Ourita, co
Homestake, Milan, NM
Pathfinder-Lucky Me, Gas Hills, ~Y
Petrotomtcs, Shirley Basin, WY
Quivira, Ambrosia Lake, NM
-2 operational impoundments
-1 non-operational iapoundment
Rio Algom, Lisbon, UT
Sohio-L-Bar, Cebolleta, NM
UMETCO, Gas Hills, WY
-1 operational iapoun~nt
-1 non-operational impoundment
(large impoundment}
(small impoundment)
TARGET DATE1
1995
1995
1996
1996
2010
1997
1996
2001
1998
1995
1997
1996
1992
1995
, For completing e.placement of final earthen cover to limit radon emissions
to a flux of no .are than 20 pCi/nf/s.
A - 1
,. •
..
FACILITY TARGET DATE'
UMETCO, Maybell, CO 1997
UMETCO, Ur1van, CO 20022
UNC, Church Rock, NM 1997
Union Picific, Sear Creek, WY 1996
WHJ, Sherwood, WA 1996
WNI, Spltt Rock, lrt 1995
' For complet1ng upl&cetttnt of final earthen cover to li•tt ndon eaissions
to 1 flux of no .are than 20 pCi/~/s.
2 CERCLA Consent Decree requires final cover over tailings by 1997 but allows
small portion (roughly 1~ of the 1~oundlent) to re•ain open to receive
residues from groundwater restoration activities.
A - 2