DRC-2017-009866 - 0901a0688078b993

Aaron M. Paul
Staff Attorney
Grand Canyon Trust
4454 Tennyson Street
Denver, Colorado 80212
D: 303-477-1486
November 17, 2017

By Electronic Mail

Scott T. Anderson
Director
Utah Division of Waste Management and Radiation Control
P.O. Box 144880
Salt Lake City, Utah 84114
[e-mail]

Re: Sur-reply 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

Dear Mr. Anderson:

Thank you for the opportunity to submit a reply to Energy Fuels’ response to some of our
comments on the Division of Waste Management and Radiation Control’s proposal to renew the
company’s radioactive materials license for the White Mesa Mill.

We’re pleased that Energy Fuels revised Reclamation Plan Revision 5.1 in response to the subject
matters on which the Division sought a response to our comments, and we thank the company for making
those revisions. We also thank the Division for soliciting Energy Fuels’ views on some of our comments.
We believe the back-and-forth on these comments and the additional scrutiny given to the legal
requirements at issue have led to some positive changes in Plan Revision 5.1.

We continue to have differing views from Energy Fuels on some points, however, and we address
those issues below. To avoid quibbling over relatively immaterial matters, we haven’t responded to some of
Energy Fuels’ assertions even though we don’t mean to concede those points or retract our initial
comments on those subjects. We’ve organized our replies numerically by topic in the order that each issue
is presented in Energy Fuels’ October 23, 2017, response to our comments.

1. Milestones for Non-Conventional Impoundments

Energy Fuels’ 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:
Grand Canyon Trust’s Sur-reply Comments November 17, 2017
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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(1), and as a result
EFRI has committed that they will be subject to the provisions of Criterion 6A(2) (see Appendix 2)[.]

The Trust’s Reply:

We appreciate Energy Fuels’ decision in response to our comments to include milestones in
Revised Section 6 of Reclamation Plan Revision 5.1 for closing non-conventional impoundments at
the mill.

The only remaining issue on this subject that we dispute is Energy Fuels’ argument that milestones are
not required for evaporation ponds under Criterion 6A of Appendix A to the Nuclear Regulatory
Commission’s source-material licensing rules.1 So that this issue is not debated again in the future if
Energy Fuels’ reclamation plan is revised, we believe the Division should direct Energy Fuels to revise
Section 6 of Plan Revision 5.1 to clarify that the milestones set out for non-conventional
impoundments are not voluntary additions to the plan, but are required by Appendix A.

Energy Fuels argues that milestones are not required for closing the mill’s non-conventional
impoundments because Appendix A demands milestones only for building a “final radon barrier,” and

1 See 10 C.F.R. Part 40, App. A.
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the company doesn’t plan to build a radon barrier over the mill’s non-conventional impoundments.2
We don’t believe this argument is sound.

We agree that Appendix A requires reclamation plans to include only those milestones that are “key”
to completing the “final radon barrier.”3 We also acknowledge that Energy Fuels is not required to
build a “final radon barrier” over evaporation ponds if they are dug up and buried in another
impoundment in a way that reduces the radium-226 concentration in the evaporation pond’s former
footprint to the numeric thresholds set out in Criterion 6(6).4 And Energy Fuels’ reclamation plan
does indeed call for evaporation ponds to be reclaimed in this manner.5 But there are two reasons that
milestones nonetheless must be established for closing evaporation ponds.

First, Energy Fuels may forgo building a final radon barrier over evaporation ponds at the mill only if
the company demonstrates that the residual radium-226 concentration in the land beneath closed
evaporation ponds is below the numeric thresholds in Criterion 6(6). That is, Appendix A provides
that “licensees shall place an earthen cover (or approved alternative) over tailings or wastes at the end
of milling operations….”6 The only exemption from this requirement is for areas at the mill that are
cleaned up so that radium-226 concentrations are below specified numeric limits.7 Thus, once “final
closure” of an evaporation pond begins, milestones must be triggered for building a final radon barrier
over the residual byproduct material in the pond, and the only basis for not completing the final radon
barrier according to those milestones is to clean up the pond to meet the radium-226 concentration
limits. To avoid violating the final-radon-barrier milestone requirements, that cleanup must be
completed in a timeframe that is consistent with milestones for building a final radon barrier.

Second, as Energy Fuels acknowledges,8 because the company plans to bury non-conventional
impoundments in the mill’s conventional impoundments, and milestones must be established for
building a final radon barrier over conventional impoundments, excavating non-conventional
impoundments and discarding them in a conventional impoundment is a “key” step in building the
final radon barrier for conventional impoundments—at least for the last impoundment that’s closed.
Although as Energy Fuels observes, reclamation of non-conventional impoundments sometimes could
be accomplished independently from closure of conventional impoundments, that’s true only while at
least one conventional impoundment remains in operation. Because initiating final closure of at least
the last conventional impoundment at the mill thus could require closure and removal of all remaining
non-conventional impoundments, the reclamation plan must have a deadline for properly removing
all non-conventional impoundments before the mill’s last conventional impoundment is covered.

Added to those two reasons for requiring milestones for closing non-conventional impoundments, as
Energy Fuels points out, the U.S. Environmental Protection Agency’s definition of the term
“reclamation plan” in its recent revisions to Subpart W recognizes that milestones must be established

2 Energy Fuels Resources (USA) Inc., “Response to Public Comments on the White Mesa Mill
Groundwater Discharge Permit and Radioactive Materials License” 21–22, 30–31 (Oct. 23, 2017) (“Energy
Fuels’ Resp.”).
3 10 C.F.R. Part 40, App. A at “Reclamation Plan.”
4 See 10 C.F.R. Part 40, App. A, Criterion 6(6).
5 See Ex. 1 to the Grand Canyon Trust’s 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 (July 31, 2017) (“Trust’s Comments”) at 3-5, I-2.
6 10 C.F.R. Part 40, App. A, Criterion 6(1).
7 Id. at Criterion 6(6).
8 Energy Fuels’ Resp. at 30.
Grand Canyon Trust’s Sur-reply Comments November 17, 2017
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for closing non-conventional impoundments. The “[a]ctivities and milestones to be addressed” in a
reclamation plan, the definition provides, “include … removal and disposal of non-conventional
impoundments.”9

To support its argument that milestones need not be established for evaporation ponds, Energy Fuels
quotes the preamble to two rulemakings that led to the addition of milestone requirements in
Appendix A: (1) EPA’s 1993 amendments to 40 C.F.R. Part 192 (58 Fed. Reg. 32,174, 32,183–84
(June 8, 1993)); and (2) NRC’s conforming changes to Appendix A made in 1994 (59 Fed. Reg. 28,220,
28,224 (June 1, 1994)). We believe these quotations are inapt. Indeed, they demonstrate that the
agencies expected a final radon barrier to be built over evaporation ponds, subject to Appendix A’s
milestone requirements.

In the material that Energy Fuels quotes from EPA’s rulemaking, EPA was rejecting “comments noting
that evaporation ponds should be excluded from the expeditious cover requirement….”10 The agency
observed that the “expeditious radon cover requirement” would not apply “to the extent that [an]
evaporation pond is deemed by the implementing agency … to be an appropriate aspect to the overall
remedial program for the particular site.”11 That isn’t a blanket exemption from the milestone
requirements for all evaporation ponds, but an exemption only for ponds deemed “appropriate” for
overall site remediation. There’s nothing in the rulemaking to suggest that evaporation ponds would
not be subject to Appendix A’s milestone requirements if keeping them open isn’t “appropriate” for
overall site remediation. And no such finding has been made for the mill’s evaporation ponds.

The section of NRC’s rulemaking preamble that Energy Fuels quotes similarly reiterates this point by
citing “EPA’s statements” on this issue before observing that “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.” Again, that isn’t an automatic
exemption from Appendix A’s milestone requirements, and given the reference to EPA’s statements in
its rulemaking preamble, indicates that the only “appropriate” basis for dealing with evaporation
ponds separately is if they are necessary for overall site remediation.

Appendix A’s milestone requirements apply broadly to all impoundments in which byproduct material
is discarded, including non-conventional impoundments.12 We accordingly urge the Division to insist
that Energy Fuels remove from revised Section 6 of Plan Revision 5.1 any suggestion that the
milestones the company has included for non-conventional impoundments are being voluntarily
adopted.

2. Definition of Final Closure

Energy Fuels’ 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

9 40 C.F.R. § 61.251(o).
10 Health and Environmental Standards for Uranium and Thorium Mill Tailings, 58 Fed. Reg. 32,174,
32,183 (June 8, 1993).
11 Id. (emphasis added).
12 10 C.F.R. Part 40, App. A (“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….”).
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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).

The Trust’s Reply:

We agree with how Energy Fuels has modified Section 6 of the reclamation plan in response to our
request and appreciate the company’s willingness to make those modifications.

3. Minimum Milestone Requirements

Energy Fuels’ Response:

In developing [revised] milestones and schedule commitments, the following factors were taken into
consideration:

a) Three Milestones Required.

10 CFR Part 40 Appendix A, Criterion 6A(1) 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).”

The Trust’s Reply:

We do not dispute the preceding assertion about which milestones must be established by default
under Appendix A, but we emphasize, as Energy Fuels acknowledges, that Appendix A requires
reclamation plans to contain all milestones that are “key” to completion of the final radon barrier, not
just the three milestones listed as examples in Appendix A.

4. Schedule Commitments Generally

Energy Fuels’ Response:

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”.
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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.

The Trust’s Reply:

We do not dispute the assertion that Appendix A requires a schedule of milestones only for “key” tasks
in completing the final radon barrier and that a separate timeliness requirement may apply to other
reclamation tasks. We also agree that the procedural requirements in Criterion 6A(2) apply only to
extensions of milestones and not to extensions of other deadlines.

However, as explained in more detail under Item No. 6 below, we believe some of the schedule
commitments that Energy Fuels has set out in Revised Section 6 of the reclamation plan should be
milestones.

5. Definition of Final Radon Barrier

Energy Fuels’ Response:

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 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.”

The Trust’s Reply:

We agree, as a general matter, that the NRC intended for the term “final radon barrier” to mean the
cover features necessary to achieve a radon flux of 20 pCi/(m2-sec) and to exclude erosion-protection
features or other features built solely for achieving Appendix A’s “longevity” requirements. As we
explain in response to Item No. 6 below, we disagree with how Energy Fuels has applied these
standards to the proposed cover designs for the mill.

6. Schedule Commitments for Erosion Protection and Other Long-Term Tailings Control Features

Energy Fuels’ Response:

d) The Required Milestones do not include the Erosion Protection Barrier or other Features
Necessary for Long-Term Control of the Tailings.

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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(1)) 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 cm) 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 cm) thick
Water Storage/Biointrusion/Frost Protection/Secondary Radon Attenuation Layer (loam to sandy clay))
and Layer 4 (0.5 ft. (15 cm) 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 cm) Frost Barrier Layer (random fill)) and Layer 4 (3 in. (7.6 cm) Rock Armor).

Accordingly, the milestones required under Criterion 6A(1) 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.

The Trust’s Reply:

We disagree, with Energy Fuels’ assertions that the “final radon barrier” in the evapotranspirative
cover (“ET Cover”) and 1996 conventional cover comprises only Layer 2 in those covers and that
Layers 3 and 4 in the ET Cover and Layer 3 in the 1996 conventional cover design are simply “erosion
protection barriers or other features necessary for long-term control of the tailings.”13 Energy Fuels has
described Layer 3 in both covers as a radon-attenuation layer.14 True enough, Layer 3 in the ET Cover
is meant to serve other functions, such as deterring biointrusion and frost-degradation. But according
to Energy Fuels’ modelling, Layer 3 is essential for achieving a radon flux below 20 pCi/(m2-sec).15 In
fact, Energy Fuels’ radon-flux model predicts that Layer 4—the erosion-protection layer—is also
necessary to reduce radon-flux to 20 pCi/(m2-sec), at least for Cell 2.16 Because both Layer 3 and
Layer 4 in the ET Cover serve the purpose of reducing radon-flux to 20 pCi/(m2-sec), they are both
part of the “final radon barrier” as that term is defined in Appendix A. As a result, milestones must be
established for their completion.

13 See Energy Fuels’ Resp. at 29.
14 See Ex. 16 to the Trust’s Comments at 2.
15 See Ex. 16 to The Trust’s Comments at App. C, p. 2 (showing an exit flux of 20.18 pCi(m2-sec) through
Layer 3, which is identified in the radon-flux model as “Layer 4,” i.e. the 107-cm thick “ET Cover”).
16 Id. (predicting the exit flux to fall to 20 pCi/(m2-sec) only after accounting for all of the ET Cover’s
layers, including the erosion-protection layer named “Layer 5” in the model).
Grand Canyon Trust’s Sur-reply Comments November 17, 2017
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The same is true of Layer 3 in the 1996 conventional cover. In modelling radon-attenuation from that
cover design, Energy Fuels included Layer 3—the 2-foot random fill layer—in addition to the 1-foot
compacted clay layer.17 Because that layer also serves the purpose of reducing radon flux below
20 pCi/(m2-sec), it is also part of the “final radon barrier” under Appendix A and is subject to
Criterion 6A’s milestone requirements.

We accordingly request that the Division require Energy Fuels to amend Revised Section 6 of Plan
Revision 5.1 to convert the “schedule commitments” into milestones for placing Layers 3 and 4 of the
ET Cover and Layer 3 of the 1996 conventional cover. We also request, as explained under Item No. 11
below, that the milestones for completing these items be no later than seven years after final closure of
an impoundment begins.

7. Milestones for Non-Conventional Impoundments

Energy Fuels’ Response:

e) Milestones not Required for Evaporation Ponds

The milestones required under Criterion 6A(1) 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

17 Ex. 30 to the Trust’s Comments at 4 and App. B, p. 1.
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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.

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 nonconventional 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).

The Trust’s Reply:

See our response to Item No. 1 above.

8. Seven-Year Closure Goal

Energy Fuels’ Response:

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
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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.

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 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 the MOU.

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 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 the MOU.

Grand Canyon Trust’s Sur-reply Comments November 17, 2017
on the White Mesa Mill Radioactive Materials License Renewal
11
The Trust’s Reply:

We don’t dispute that a goal in amending Appendix A to include milestones was to ensure that the
final radon barrier was complete no later than seven years after final closure of an impoundment
begins. As Energy Fuels appears to acknowledge, EPA and NRC, however, plainly meant for the final
radon barrier to be built as quickly as possible considering technological feasibility, with the seven-
year benchmark functioning as a maximum time limit, rather than a default for setting milestones.

EPA’s preamble to its rulemaking rescinding 40 C.F.R. Part 61, Subpart T emphasizes this point:

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.18

Milestones should be set to impose deadlines that inspire expeditious closure of impoundments.
Because seven years reflects the maximum amount of time that EPA and NRC believed would be
necessary to close uranium-mill impoundments, we are skeptical that Energy Fuels’ selection of a
seven-year timeframe for milestones in Revised Section 6 creates a schedule that ensures that
impoundments will be closed “as quickly as possible” considering technological feasibility.19 We
accordingly urge the Division to independently scrutinize Energy Fuels’ proposed milestones and
require that they be accelerated where, in the Division’s judgment, tasks can be performed more
quickly than the milestones that Energy Fuels has proposed.

9. Reclamation-Schedule Flexibility

Energy Fuels’ Response:

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 nonconventional 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

18 National Emissions Standards for Hazardous Air Pollutants, 59 Fed. Reg. 36,280, 36,285 (July 15, 1994).
19 See 10 C.F.R. Part 40, App. A (definition of “[a]s expeditiously as practicable considering technological
feasibility”).
Grand Canyon Trust’s Sur-reply Comments November 17, 2017
on the White Mesa Mill Radioactive Materials License Renewal
12
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 nonconventional
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 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.

The Trust’s Reply:

The 1991 memorandum of understanding among EPA, NRC, and several agreement states that led to
the addition of Appendix A’s expeditious-closure requirements does observe, as Energy Fuels notes,
that reclamation schedules must have enough flexibility to accommodate technological feasibility and
take account of short-term radon reductions and long-term stability.20

But this statement in the MOU does not supply standards for reclamation schedules that are
independent of the ensuing standards adopted in Appendix A. Rather, Appendix A establishes how
much flexibility is afforded for technological feasibility by carefully defining the phrases “[a]s
expeditiously as practicable considering technological feasibility,” “[a]vailable technology,” and
“[f]actors beyond the control of the licensee.”21 It is plain from those standards that EPA and the
NRC’s goal was to afford very little flexibility in the schedule for completing the final radon barrier.
Under Appendix A, the final radon barrier must be built “as quickly as possible” with little flexibility
for the limits of available technology or factors beyond the licensee’s control.

20 Energy Fuels’ Resp. at 33; App. 5 to Energy Fuels’ Resp. at 2.
21 See 10 C.F.R. Part 40, App. A.
Grand Canyon Trust’s Sur-reply Comments November 17, 2017
on the White Mesa Mill Radioactive Materials License Renewal
13
So long as Appendix A’s expeditious-closure requirements are being met, the Trust doesn’t object in
theory to Energy Fuels’ plan to retain some flexibility as to the timing for placing certain cover layers.
Whether Energy Fuels’ proposed milestones in Revised Section 6 of Plan Revision 5.1 are “as firm as
possible,” however, is a matter of engineering judgment that the Trust urges the Division to
independently scrutinize.

10. Mill-Site Closure

Energy Fuels’ Response:

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 nonconventional) 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 T was 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 T was rescinded by EPA
in 1994 and the definition of “operational” was replaced with a definition of “operation,” and the 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.

Grand Canyon Trust’s Sur-reply Comments November 17, 2017
on the White Mesa Mill Radioactive Materials License Renewal
14
The Trust’s Reply:

We agree that Subpart W continues to apply to all impoundments that are in “operation,” and that the
expeditious-closure requirements in Appendix A apply when impoundments cease to be in operation.
We disagree, however, with Energy Fuels’ argument that impoundments at the mill may remain in
“operation” indefinitely after the mill closes.

In setting general standards under the Uranium Mill Tailings Radiation Control Act (UMTRCA) for
managing and disposing of uranium tailings, EPA has long “intended and expected expeditious
progress toward radon control once an active site ceased milling operations.”22 When EPA adopted the
milestone requirements that NRC incorporated into Appendix A, EPA observed that: “The crux of
today’s proposal is additional regulatory means to ensure expeditious and permanent control of radon
emissions from uranium mill tailings piles after active milling operations have ceased.”23

This expectation is set out in Criterion 6 of Appendix A, which provides that “in disposing of waste
byproduct material, licensees shall place an earthen cover (or approved alternative) over tailings or
wastes at the end of milling operations….”24 It is also consistent with EPA’s definition of “phased
disposal” in Subpart W—the method of tailings disposal that Energy Fuels uses—which contemplates
using “lined impoundments which are filled and then immediately dried and covered to meet all
applicable Federal standards.”25 Allowing impoundments at an otherwise decommissioned uranium
mill to stay open indefinitely to accept uranium byproduct material from sources other than the mill is
inconsistent with these regulatory provisions.

Added to that, EPA’s rules in Subpart D and NRC’s rules in Appendix A allow operators to seek,
though a license amendment, to discard byproduct material from other sources while an impoundment
is being closed, so long as doing so doesn’t delay placement of the final radon barrier over the rest of
the impoundment.26 It would be anomalous to allow Energy Fuels to effectively bypass these
requirements by keeping impoundments in “operation” indefinitely.

We acknowledge, as Energy Fuels points out, that NRC in responding to comments on its 1993
amendments to Appendix A observed that rescinding Subpart T would eliminate any regulatory
requirement for taking impoundments out of operation when milling ceases.27 Yet even if that is true,
it doesn’t follow that the agencies intended to allow a decommissioned uranium mill to keep
impoundments in operation indefinitely, effectively turning the mill into a perpetual byproduct-
material disposal site. Put differently, even if there is no regulatory requirement specifying a firm
deadline for commencing “final closure” of impoundments, one purpose of Appendix A is
nevertheless to ensure expeditious closure of impoundments “at the end of milling operations.”28 The
Division should use its licensing authority to carry out that purpose.

We therefore believe that, even if Appendix A and Subpart W do not require impoundments to enter
final closure at the time the mill is decommissioned, the Division should impose that requirement in

22 Health and Environmental Standards for Uranium and Thorium Mill Tailings, 58 Fed. Reg. 32,174.
32,178 (June 8, 1993).
23 Id. at 32,176–77.
24 10 C.F.R. § Pt. 40, App. A, Criterion 6.
25 40 C.F.R. § 61.251.
26 10 C.F.R. Part 40, App. A, Criterion 6A(3).
27 Energy Fuels’ Resp. at 35.
28 10 C.F.R. § Pt. 40, App. A, Criterion 6.
Grand Canyon Trust’s Sur-reply Comments November 17, 2017
on the White Mesa Mill Radioactive Materials License Renewal
15
the mill’s license to carry out the expeditious-closure purpose reflected in Appendix A and Subpart D.
We see two pathways for imposing that requirement. First, the Division could require final closure of
all operating impoundments to commence at the time that mill-site closure begins (as we requested in
our comments) and then authorize Energy Fuels to discard decommissioning materials in one or more
impoundments during the closure process under Criterion 6A(3). Second, the Division could allow
one impoundment to remain in operation until all mill facilities are demolished and buried in that
impoundment, at which point final closure of the final impoundment would commence.29

Nevertheless, if the Division declines to do that, we request at a minimum that the Division add a
condition to Energy Fuels’ radioactive materials license prohibiting the company from keeping
impoundments in operation after mill closure begins unless Energy Fuels receives approval to do so
from the Division through a license amendment, subject to public comment.

11. Milestone Revisions [pp. 35–39 of Energy Fuels’ Response]

Beginning in the middle of page 35 and ending at the bottom of page 39 of its response, Energy Fuels
addresses numerous comments that the Trust raised about reclamation deadlines. Rather than repeat
each of Energy Fuels’ responses on these items and reply to them individually, we address them
collectively here.

We are grateful that Energy Fuels revised Section 6 of the reclamation plan in response to our
comments on the matters addressed. We have only the following additional comments on these issues:

 Revised Section 6 of the Reclamation Plan calls for dewatering to commence when re-contouring
is complete. It’s our understanding that impoundment dewatering is initiated by turning on a
pump connected to each impoundment’s slimes-drain network. Although we can see an argument
for delaying commencement of dewatering until after freestanding liquids evaporate from the
impoundment (to minimize recharge into the slimes drain), we’re puzzled by the plan to delay the
dewatering process until after re-contouring is complete. Absent a compelling justification for that
delay, we ask that the plan be revised to require dewatering to begin, at the latest, as soon as
freestanding liquids are removed from the impoundment.

 As noted above, we believe milestones rather than schedule commitments must be established for
placing Layers 3 and 4 of the ET Cover and Layer 3 of the 1996 conventional cover if that cover is
built (although we re-iterate our comment that reverting to the 1996 conventional cover design
without updating that design should not occur). And we believe those milestones should require
placement of these additional layers, at the latest, within seven years after final closure begins. As
the Revised Section 6 now reads, placement of Layer 3 on the ET cover could occur 9 years after
final closure begins if Layer 2 isn’t placed until 7 years after final closure begins. Placement of
Layer 4 on the ET Cover could occur anywhere from 8 to 11 years after final closure begins.

 In our comments, we urged the Division to structure the schedule of milestones 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.”30 Put differently, as is reflected in the
table we included on page 19 of our comments, we sought milestones that imposed a deadline

29 As noted above, if an evaporation pond is necessary for overall site remediation—such as for
groundwater remediation—the Division could also license one to remain in operation for that purpose.
30 Trust’s Comments at 18.
Grand Canyon Trust’s Sur-reply Comments November 17, 2017
on the White Mesa Mill Radioactive Materials License Renewal
16
triggered by the prior reclamation step and a maximum deadline that applied under any
circumstance. In response, Energy Fuels has established only maximum deadlines in Revised
Section 6 of Plan Revision 5.1.

We recognize that Appendix A does not explicitly address this issue. But we continue to believe
that, for Energy Fuels to comply with Criterion 6A’s requirement to build the final radon barrier
“as expeditiously as practicable considering technological feasibility,” milestones should have
deadlines that set both a maximum time limit for each reclamation task and a time limit that runs
from the completion of the prior task. If Energy Fuels completes a reclamation step early, the
schedule of milestones should require the company to promptly begin the next reclamation task to
ensure that construction of the final radon barrier proceeds “as quickly as possible”31 as required
by Appendix A.
 Again, we urge the Division to independently scrutinize Energy Fuels’ proposed reclamation
milestones and schedule commitments to determine whether the deadlines are as tight as possible
consistent with Appendix A’s requirements.

12. Schedule Commitments for Vegetative Cover

Energy Fuels’ 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 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(1)) 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.

The Trust’s Reply:

We agree that establishing vegetation on the ET Cover is not proposed for the purpose of reducing
radon emissions to less than 20 pCi/(m2-sec) and that Appendix A therefore does not mandate that a
milestone be established for that task (even though Energy Fuels initially proposed treating the
vegetative-cover deadline as a milestone).

31 See 10 C.F.R. Part 40, App. A (definition of “[a]s expeditiously as practicable considering technological
feasibility”).
Grand Canyon Trust’s Sur-reply Comments November 17, 2017
on the White Mesa Mill Radioactive Materials License Renewal
17

However, we again ask that a deadline be established not only for seeding but for establishing
vegetative coverage and vegetative diversity in a way that meets the design criteria for the ET Cover (as
described in Appendix D to the Updated Tailings Cover Design Report).32 Simply seeding the ET
Cover should not end Energy Fuels’ reclamation obligations, for establishing vegetation on the ET
Cover is essential to its long-term sustainability.

13. Mill-Closure Schedule and Sequential Impoundment Closure

Energy Fuels’ Response:

See revised Section 6 of the Reclamation Plan, which addresses this concern.

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.

The Trust’s Reply:

We appreciate Energy Fuels’ revisions to Section 6 to eliminate the requirement for submitting a
separate mill-closure schedule and to eliminate the possibility that impoundments could be closed
one-by-one. In regard to the question of whether impoundments may remain in operation after final
closure of the mill facility begins, see our response under Item No. 10 above.

14. Mill-Closure Milestones

Energy Fuels’ 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(1) applies to each nonoperating 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,

32 See Ex. 16 to the Trust’s Comments at App. D, particularly pp. D-30 to D-31.
Grand Canyon Trust’s Sur-reply Comments November 17, 2017
on the White Mesa Mill Radioactive Materials License Renewal
18
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 11e.(2) byproduct material, one or both of the remaining tailings
impoundments continue in operation until all such 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.

…

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 nonconventional
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.

…

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.

…

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).
Grand Canyon Trust’s Sur-reply Comments November 17, 2017
on the White Mesa Mill Radioactive Materials License Renewal
19

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 (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.

…

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:

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.

Grand Canyon Trust’s Sur-reply Comments November 17, 2017
on the White Mesa Mill Radioactive Materials License Renewal
20
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.

The Trust’s Reply:

See our reply under Item No. 10 above.

15. Establishing Deadlines in the Radioactive Materials License

Energy Fuels’ 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.

The Trust’s Reply:

We don’t dispute that incorporating the reclamation plan into the mill’s radioactive materials license
allows mandatory provisions of the plan, including milestones, to be enforced as if they were license
conditions. As a practical matter, however, incorporating the plan by reference obscures its
requirements by burying them in long documents that aren’t necessarily easily accessible to the public.
Many of the 27 documents currently incorporated by reference in License Condition 13.1 are not
available to the public, and over time, the requirements of Reclamation Plan 5.1 may not be easily
accessible either.

Because Appendix A requires milestones to “be established as a condition of the individual license,”33
we again request that the Plan Revision 5.1’s milestones be stated explicitly as a condition of the mill’s
individual license. That said, we suggest for sake of space that the license need not repeat Revised
Section 6 of Revision 5.1 in its entirety, but rather should: (1) include a condition requiring
compliance with the milestones and schedule commitments set out in Revised Section 6; and
(2) include the Summary Table of Milestones that Energy Fuels included in Revised Section 6.

16. Liner Design for the Cell 1 Disposal Area

Energy Fuels’ 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. (.

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

33 10 C.F.R. Part 40, App. A, Criterion 6A.
Grand Canyon Trust’s Sur-reply Comments November 17, 2017
on the White Mesa Mill Radioactive Materials License Renewal
21
to uranium mill licensees. The AEA grants the EPA authority only to promulgate “standards of general
application … from radiological and non-radiological hazards associated with the processing and with
the possession, transfer, and disposal of byproduct material, as defined in section 11e.(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 11e.(2) byproduct material “in such manner as the Commission deems
appropriate” (§84(a)(1)) (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.

The Trust’s Reply:

We are pleased that Energy Fuels has agreed to install a liner system for the Cell 1 Disposal Area that is
the same as that used for Cell 4B, which we understand conforms to the requirements of 40 C.F.R.
§ 264.221. We thank Energy Fuels for making that offer and urge the Division to require the company
to make this change to its reclamation plan. We also stand by all of our arguments that the liner for the
Cell 1 Disposal Area must comply with 40 C.F.R. § 192.32(a)(1). On that point, we note that, although
Energy Fuels disputed our argument that 40 C.F.R. Part 192, Subpart D applies directly to the mill’s
operations (a point we don’t concede), the company did not dispute our arguments that Appendix A,
Utah state law, and Subpart W all require installation of double liners with interstitial leak detection.34

* * *

34 See Energy Fuels’ Resp. at 47–48; see Trust’s Comments at 34–36.
Grand Canyon Trust’s Sur-reply Comments November 17, 2017
on the White Mesa Mill Radioactive Materials License Renewal
22
Thank you again for the opportunity to reply to Energy Fuels’ comments on these subjects. If you have any
questions or would like additional information, please let me know.

Sincerely,

Aaron M. Paul
Staff Attorney
Grand Canyon Trust

cc: Bret Randall, Assistant Attorney General, Utah Attorney General’s Office
11/6/2017 State of Utah Mail - Opportunity to provide Sur-Reply Comments to the State of Utah in Regards to your Previously Submitted Comments
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Ryan Johnson <[e-mail]>
Opportunity to provide Sur-Reply Comments to the State of Utah in Regards to your
Previously Submitted Comments
4 messages
Ryan Johnson <[e-mail]>Fri, Nov 3, 2017 at 11:17 AM
To: [e-mail]
Cc: Bret Randall <[e-mail]>
Mr.Kerr,
Please see attached a Notice informing you of the opportunity to provide Sur-Reply Comments as they relate to the
comments that you submitted to the Utah Division of Waste Management and Radiation Control for the White Mesa
Uranium Mill's Radioactive Waste License renewal.
--
Ryan Johnson, P.G.
Environmental Scientist/Health Physicist
Utah Division of Waste Management and Radiation Control
Disclaimer:
Statements made in this e-mail do not constitute the official position of the Director of the Division of Waste Management and
Radiation Control. If you desire a statement of the Director's position, please submit a written request to this office, on paper,
including documents relevant to your request
DRC-2017-008542.pdf
1243K
Mark Kerr <[e-mail]>Sun, Nov 5, 2017 at 3:16 PM
To: Ryan Johnson <[e-mail]>, "Lopas, Sarah" <[e-mail]>, [e-mail]
Mr. Johnson,
I have reviewed the EFRI comments in regard to my comments, and provide for your review the following:
EFRI response Pg 61
The major changes in technical specifications are not in the CQA report. I submitted a GRAMA request in regard to those
major changes. If the engineer that performed the review also had knowledge of the changes, then answers to my
GRAMA would be available, and by DWMRC requirements should be in the CQA report.
Also, if the engineer knew of, and observed the changes, then the engineer approved conflicting technical specifications.
This is well documented. I have provided the details to DWMRC, and the NRC, and have followed up several times. As
stated previously, nearly all the documents are DWMRC, URS, Geosyntec Consultants, and Denison Mines documents.
DWMRC has copies. Surely DWMRC, given their review and observation, can answer a simple GRAMA request with
more than stating I have been given all the information there is to give. What were the approved modifications? What
were the changes in technical specifications? There were changes that DWMRC & URS considered critical components
to the technical specifications. Surely those changes qualify as Major. They are not in the CQA report.
EFRI response Pg 62
The KGL blasting plan was approved prior to construction activities, by Denison Mines & Geosyntec Consultants, and
was in compliance with the specifications. There was 'Sub-Drill', not over blasting. Denison & Geosyntec were aware of
the sub-drill plan well ahead of blasting activities. Geosyntec reviewed the sub-drill months into construction activities,
the adjustment to the sub-drill, and the adjustments were in compliance with the specifications.
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Dension & Geosyntec were aware, by blast report, as soon as blasting began in December 2009 of the sub-drill.
Geosyntec reviewed the sub-drill in March 2010. Then in May 2010, sub-drill, according the Geosyntec, suddenly
became 'overblasting'!
DWMRC & URS considered the Blast Plan to be a critical component of the technical specifications, and Geosyntec
approved the blast plan with conditions in regard to soil cover. Then in March 2010, Geosyntec directs KGL to change
the blast plan, contrary to their own approval and their own requirements for approval.
I did not claim that 'in his opinion' that the loose rock was acceptable for the Cell 4B foundation. We were excavating in
accordance with the drawings and specifications, and blasting in accordance with the blast plan and specifications.
Denison & Geosyntec specified the excavation to a level 6 inches below the design grade for engineered fill. In a letter to
the Utah Radition Control Board, Harold Roberts, Executive Vice President of Denison Mines, U.S. Operations indicates
that the blasted rock will be removed. Then the design states that only 6 inches will be removed, in direct conflict with
Roberts assurances. Furthermore, during the approximated 3 weeks of conflict and turmoil, while Roberts is attempting
to convince me that this is not a change in the scope of work, and that KGL should remove the blasted rock without
additional compensation, Roberts stated to me, on May 12, 2010, that there would be caves and caverns in the blasted
rock, these would collapse and the liner would tear.
Roberts also stated to me "it's about time we quit jerking you around and delaying you", ('we' meant Denison &
Geosyntec). At that time I had a one sided conversation with Roberts questioning him why he wouldn't step in and
correct the conduct, and I commented to him to remember his statement. Roberts would not comment further.
I was concerned about all this conflict regarding the specification changes so I inquired by document to Geosyntec as to
the details of the 'in-lieu
of shot rock removal' specification, as to if the UT DEQ regulators knew of the changes, and as to where the changes
would be in the 'As Built' (CQA) report.
Geosyntec, by letter from Paul Sanner, Vice President and General Council, advised that this subject is not appropriate
subject matter for agreed on request process, that the modification to compaction methodology (in-lieu of shot rock
removal) was based on Geosyntec experience and that they assume engineering responsibility for the decision. He
indicated that it was not their experience to be cross-examined on the grounds of an engineering determination by means
of the approved request process, and for us to please revise or rescind the request. He didn't answer any of the
questions in my request. Sanner referred to an earlier letter where he wrongfully describes sub-drill as over blasting,
wrongfully interprets the specifications and bid documents, wrongfully describes the history of operations, wrongfully
describes scheduling, and ignores delays caused by Denison & Geosyntec. Sanner validates Roberts comments in
Roberts letter to URCB, that blasted rock may settle deferentially or significantly if not removed and replaced with
competent fill or re-compacted. The blasted rock was not removed or re-compacted, and the 'in-lieu of shot rock removal'
process was not applied to the entire cell floor. The 'in-lieu of shot rock removal' specification was never explained,
described by Specification, Precedent, ASTM, Generally Accepted Practice, or Prior Experience.
On May 19, 2010, Geosyntec came up with a plan, 'in-lieu of shot rock removal'. But this plan did not solve the
deformation, discontinuous fractures & joints, caves & caverns that lead to 3 weeks of conflict. Geosyntec states this will
provide for a firm and unyielding sub-grade surface, but Roberts' assurance letter to the URCB and his comments to me
are about sub-surface, not sub-grade surface.
We did not abandon the job. We were forced off the project due to non-payment by Denison. For months, Dension &
Geosyntec advised us that change notices for changes including blasting, delays, and obstruction by Indian ruins
operations were in processing. These changes were result of direction by Dension/Geosyntec long before we were
forced to take legal action. Roberts stated to the arbitrator that Denison denied the changes even though they were
Dension & Geosyntec directed changes. These changes are well documented.
EFRI Response Pg 64:
The blasted (loose) rock was, in fact, NOT removed further that 6 inches below top of engineered fill, and the 'in-lieu of
shot rock removal' plan was not applied to areas that Roberts and Geosyntec claimed were unacceptable. There was
approximately 4 acres of cell floor with engineered fill in place, blasted with the same sub-drill depth, that was never
reworked. This area was stated by S. Irwin of Geosyntec to be acceptable. At the time of his acceptance of one area,
but not another, he was in direct conflict with the judgements of two professional engineers, Roberts & Corcoran of
Geosyntec, the specifications and the construction plans & drawings. Then Irwin's judgement was overridden by the 'in-
lieu of shot rock removal' plan, but the 4 acre area, that is now NOT (according the the over ride) acceptable was never
reworked. And according to EFRI, the DWMRC reviewed AND observed all of this and determined all was acceptable.
This would mean that in several areas the acceptable construction directly conflicts with DWMRC, Denison Mines,
Geosyntec, and URS documents. Geosyntec states that all these areas, (rock is ok, rock is not ok, 'in-lieu of' process
applied in one area, no need to apply 'in-lieu of' process in another area) is all documented and observed by their
personnel. These are Major changes and that documentation should be in the CQA report. The report states there were
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'minor' changes, and concludes cell constructed in accordance with all drawing, specs, approved modifications. If so,
answers to a GRAMA request should be simple.....all the information is there to forward.
Also, these are all Major changes and should be in the CQA report and answered by the reviewing/observing engineer. I
was told the the engineer was not available for questions/comments.
EFRI General Response:
EFRI response to most of my comments is 'See general response above, or lacks sufficient detail to allow for a
meaningful response'. There is plenty of detail as evidenced by DWMRC, URS, Denison, and Geosyntec documents, all
of which DWMRC has copies.
EFCI's David Frydenlund, Senior Vice president, General Council and Corporate Secretary, who held a similar position
with Denison Mines during Cell 4B construction, confirms that notice was given on the changes in Blasting, Rock
Excavation, and rock material processing and compaction. Frydenlund also confirms the DRC engineer observation,
review and approval, as stated by DRC to the NRC. Frydenlund confirms documentation of notice, review and approval
between Corcoran/Geosyntec and the DRC engineer exists. In accordance with bid documents, permits, and licenses,
this documentation is required. Notice of the changes, and approval by DRC was required prior to implementation, and
these documents were required in the CQA report. However, the NRC and I have been advised that we have been given
all information available. Obviously this is not the case. DRC provided information does not contain the documents.
Answers to my GRAMA request do not contain this information. The CQA report does not have this information.
Frydenlund, as Vice President of Regulatory Affairs with Denison Mines, would have, no doubt, been very familiar with
these notices, changes in specs, observations, and DRC conclusions, as he has stated occurred, and as General Council
would assure documentation was thorough and in accordance with regulatory compliance.
So, contrary to several permit, license, assurances, statements, directives and requirements, together with confirmation
that the documents exist, the documents are not available and the DRC reviewing/observing engineer is also not
available.
The reality is: Deception by Roberts and Denison Mines for personal and monetary gain. False certification by Corcoran
and Geosyntec Consultants. DWMRC complicity in the entire affair.
[Quoted text hidden]
Mark Kerr <[e-mail]>Sun, Nov 5, 2017 at 6:18 PM
To: Ryan Johnson <[e-mail]>, "Lopas, Sarah" <[e-mail]>, [e-mail]
[Quoted text hidden]
[Quoted text hidden]
Mark Kerr

On Fri, Nov 3, 2017 at 10:17 AM, Ryan Johnson <[e-mail]> wrote:
Mr.Kerr,
Please see attached a Notice informing you of the opportunity to provide Sur-Reply Comments as they relate to the
comments that you submitted to the Utah Division of Waste Management and Radiation Control for the White Mesa
Uranium Mill's Radioactive Waste License renewal.
--
Ryan Johnson, P.G.
Environmental Scientist/Health Physicist
Utah Division of Waste Management and Radiation Control
Disclaimer:
Statements made in this e-mail do not constitute the official position of the Director of the Division of Waste Management
and Radiation Control. If you desire a statement of the Director's position, please submit a written request to this office, on
paper, including documents relevant to your request
11/6/2017 State of Utah Mail - Opportunity to provide Sur-Reply Comments to the State of Utah in Regards to your Previously Submitted Comments
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Ryan Johnson <[e-mail]>Mon, Nov 6, 2017 at 7:08 AM
To: "Goble, Phillip" <[e-mail]>, Bret Randall <[e-mail]>
FYI
---------- Forwarded message ----------
From: Mark Kerr <[e-mail]>
Date: Sun, Nov 5, 2017 at 3:16 PM
Subject: Re: Opportunity to provide Sur-Reply Comments to the State of Utah in Regards to your Previously Submitted
Comments
To: Ryan Johnson <[e-mail]>, "Lopas, Sarah" <[e-mail]>, [e-mail]
[Quoted text hidden]
[Quoted text hidden]
Uranium Watch
P.O. Box 344
Moab, Utah 84532
435-26O-8384
November 16, 2017
via electronic mail
Scott Anderson
Director
Utah Division of Waste Management and Radiation Control
P.O. Box 144880
Salt Lake City, Utah 84114-4850
[e-mail]
RE: Energy Fuels Resources (USA) Inc., White Mesa Mill, License No. UT1900479.
License Renewal. Response to November 2, 2017, DWMRC Notice Regarding
Submission of Sur-Reply Comments.
Dear Mr. Anderson:
Below please find comments in response to the Division of Waste Management and
Radiation Control’s (DWMRC’s) November 2, 2017, Notice Regarding Submission of
Sur-Reply Comments regarding the White Mesa Uranium Mill, San Juan County, Utah.
These Sur-Reply Comments address the Energy Fuels Resources (USA) Inc. (Energy
Fuels, or Licensee) “Response to Public Comments on the White Mesa Mill Groundwater
Discharge Permit and Radioactive Materials License,” dated October 23, 2017. The
Energy Fuels’ October 23 comments were responsive to an October 3, 2017, DWMRC
letter requesting Licensee response to certain comments submitted Uranium Watch et al.
and other commenters. The Sur-Reply Comments are submitted by Uranium Watch,
Living Rivers, and the Utah Chapter of the Sierra Club.
1. URANIUM WATCH ET AL. COMMENTS
Below are comments on Energy Fuels comments on Uranium Watch (UW)
comments submitted to the DWMRC August 2017, pages 48 to 51.
1.1. UW Comment 4.10.1.
UW asked that the DWMRC establish a License Condition specifically for the
Reclamation Plan(s), rather than just include the Reclamation submittals in a long list of
other, unrelated Licensee submittals. Energy Fuels feels that this is not necessary.
However, since the Reclamation Plan submittals are significant and will likely include
additional submittals over time, it is not unreasonable to ask that all of the Reclamation
Plan documents that have been, or will be, incorporated into the license via the license
amendment process be referenced in one place, under a specific license condition devoted
to reclamation and radon closure plans. This would also include including any orders or
consent decrees. Additionally, the DWMRC must establish license conditions that
incorporate the reclamation milestones and schedules as specific license conditions. The
Nuclear Regulatory Commission (NRC) consistently incorporated reclamation milestones
as specific license conditions in uranium mill licenses. The reclamation schedules were
not hidden within reclamation plans that could be hundreds of pages long or consent
decrees. Attached is the most recent NRC license for the Homestake Mill (New Mexico)
with reclamation milestones in License Condition 36. See Exhibit A.
1.2. UW Comment 4.10.3.
UW discusses the need for specific license conditions and specific license
amendment requests related to the final radon barrier reclamation milestones for Cell 2.
The Licensee and DWMRC negotiated a Consent Agreement establishing Cell 2
reclamation milestones and other reclamation actions. The DWMRC did not amend the
license to incorporate the reclamation schedule and milestones into the license as specific
license conditions. Nor, did the DWMRC provide an opportunity for public comment on
the various stipulations, including milestones. This was contrary to requirements for the
establishment of enforceable reclamation milestones.
The October 1991 Memorandum of Understanding (MOU) between the NRC,
Environmental Protection Agency (EPA), and the NRC Agreement States of Colorado,
Texas, and Washington provides specific instructions regarding public notice and
comment for the incorporation of reclamation schedules and milestones into uranium mill
licenses. See Exhibit B. Utah, as an NRC Agreement State is also subject to this MOU.
The Memorandum of Understanding Between EPA, NRC and of 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 611 states, with respect the need for public
notice and comment to incorporate reclamation plans or other schedules for effecting
final closure into licenses:
2. NRC agrees to provide for public notice and comment by publishing in
the Federal Register receipt of requests, intent to issue amendments, or
intent to issue orders which (1) incorporate reclamation 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
emplacement, or other factors beyond control of the licensee) after the
reclamation plans have been incorporated into the licenses. The affected
Agreement States agree to provide comparable public notice and
Scott Anderson/DWMRC 2
November 16, 2017
1 56 Fed. Reg 67568; December 31, 1991. Exhibit B.
comment.
It appears that there are additional closure milestones for Cell 2 that have yet to be met.
It is unclear if Energy Fuels will continue to dewater Cell 2. Completion of Cell 2
dewatering would be an appropriate milestone, as would the placement of erosion
protection. The NRC regulatory program includes the placement of erosion protection
cover to ensure required longevity of the covered tailings and incorporates milestones for
placement of erosion protection as part of reclamation to comply with Criterion 6 of
Appendix A of 10 CFR Part 40. See Exhibit A, License Condition 36.B.1.
The MOU makes it clear that the DWMRC (as an NRC Agreement State) must provide
public notice and comment on 1) receipt of requests, 2) intent to issue amendments, or 3)
intent to issue orders which (1) incorporate reclamation plans or other schedules for
effecting final closure into licenses—prior to agency action. The DWMRC failed to
provide public notice of its intent to issue the Stipulated Consent Agreement (essentially
an order) establishing milestones for Cell 2. The milestones were not incorporated into
the draft license issued for public comment in May 2017 as specific license conditions.
Nor were there any license conditions that informed the Licensee of the steps to take to
amend reclamation schedules as necessary for reasons of technological feasibility
(including inclement weather, litigation which compels delays to emplacement, or other
factors beyond control of the licensee). Such license conditions are found in the
Homestake License, License Condition 36.C. and D. See Exhibit A.
1.3. Reclamation Plan Section 6.
The October 23 Energy Fuels response to commenters includes a revised Section
6 of the Reclamation Plan and proposed reclamation schedules for reclamation actions,
excluding Cell 2. According to the MOU, the DWMRC MUST provide for public notice
of 1) the receipt of the October 23 Energy Fuels reclamation schedule in the revised
Section 6 and 2) the DWMRC intent to issue amendments to incorporate the proposed
reclamation milestone schedules in the White Mesa Mill License, after review of initial
public comments. The DWMRC has yet to notice the receipt of the amended Section 6
of the Reclamation Plan and the proposed reclamation schedules for public comment.
After review of those comments, the DRMRC must notice their intent to incorporate the
proposed (or revised) schedules into the White Mesa Mill License.
2. GRAND CANYON TRUST COMMENTS
Below are comments on Energy Fuels discussion of the Grand Canyon Trust
comments submitted to the DWMRC August 2017 (pages 26 to 48).
2.1. Milestone Requirements:
Energy Fuels discusses milestone requirements for the final radon barrier and
asserts that only three milestones are required: completion of windblown tailings retrieval
and placement on the pile, and interim stabilization (pages 26 to 29). Energy Fuels cites
10 C.F.R. Part 40 Appendix A, Criterion 6A.
Scott Anderson/DWMRC 3
November 16, 2017
However, it is clear that the EPA intended that the radon closure milestone activities not
be limited to the three milestones referenced by Energy Fuels. The EPA, in rescinding
Subpart T, states with respect “E. Actions by NRC and EPA Pursuant to the MOU and
Settlement Agreement, EPA Regulatory Actions”:
In addition, subpart D requires that licensees ensure that radon closure
milestone activities, such as wind blown tailings retrieval and placement
on the pile, interim stabilization (including dewatering or the removal of
freestanding liquids and recontouring), and radon barrier construction, are
undertaken to achieve compliance with, including attainment of, the
20 pCi/m2 - s flux standard as expeditiously as practicable considering
technological feasibility.2 [Emphasis added.]
Further, EPA standards at 40 C.F.R. Part 192, Subpart D—Standards for Management of
Uranium Byproduct Materials Pursuant to Section 84 of the Atomic Energy Act of 1954,
as Amended, states (in part) at Section 192.31(n):
Tailings Closure Plan (Radon) means the Nuclear Regulatory Com-
mission or Agreement State approved plan detailing activities to
accomplish timely emplacement of a permanent radon barrier. A tailings
closure plan shall include a schedule for key radon closure milestone
activities such as wind blown tailings retrieval and placement on the pile,
interim stabilization (including dewatering or the removal of freestanding
liquids and recontouring), and emplacement of a permanent radon barrier
constructed to achieve compliance with the 20 pCi/ m2-s flux standard as
expeditiously as practicable considering technological feasibility
(including factors beyond the control of the licensee). [Emphasis added.]
As discussed above at 1.2., the NRC regulatory program includes the placement of
erosion protection cover to ensure required longevity of the covered tailings and
incorporates milestones for placement of erosion protection as part of reclamation to
comply with Criterion 6 of Appendix A of 10 C.F.R. Part 40. See Exhibit A, License
Condition 36.B.1. Without timely placement of the erosion protection cover(s), erosion
could compromise the effectiveness of the final radon barrier. The erosion protection
barrier layer, or layers, is an integral part of the final closure of a tailings impoundment
and is necessary to maintain compliance with the radon emission standard.
The DWMRC has the authority to require any enforceable reclamation milestone,
whether or not it is associated with the placement of the final radon barrier. Therefore, it
is entirely appropriate and advisable for the DWMRC to include the schedule for the
placement of additional layers, such as the proposed Water Storage/Biointrusion/Frost
Scott Anderson/DWMRC 4
November 16, 2017
2 59 Fed. Reg. 36280, 36284, Col. 2; July 15, 1994.
Protection/Secondary Radon Attenuation Layer and Erosion Protection Layer as
enforceable reclamation milestones.
2.2. Evaporation Pond Milestones.
Energy Fuels (pages 30 to 31) argues that milestones are not required for
evaporation ponds and quotes from EPA and NRC statements. However, it is apparent
that the evaporation ponds that the EPA and NRC were referring to in 1993 were the
evaporation ponds that were being used as part of over all site reclamation plans and
requirements. Evaporation ponds at sites undergoing site closure were, and still are,
being used as part as groundwater restoration actions. All of the tailings impoundments
that were subject of the 1991 MOU were unlined impoundments, so that groundwater
cleanup and restoration was, and still is, an important element of site closure and
reclamation of those mill sites. There is yet no indication that Energy Fuels will need
evaporation ponds, such as Cell 1, or evaporation ponds on top of tailings impoundments
to store and evaporate contaminated groundwater from groundwater restoration actions.
Since the final closure of the White Mesa Mill with involve the dismantling of Cell 1, a
reclamation milestone for a lined pond used solely for storage and evaporation of mill-
processing liquid effluents is appropriate.
2.3. Cessation of Operation.
Energy Fuels asserts (page 34 at h) that, “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.” Energy Fuels looks to
Subpart T and the Subpart Rescission to support their claim that “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.”
Energy Fuels assertion is not supported by EPA definitions of “closure,” “operation,” and
“final closure.”
The EPA has defined “closure” of a tailings impoundment in Standards for Management
of Uranium Byproduct Materials Pursuant to Section 84 of the Atomic Energy Act of
1954 since they were promulgated in 1983:
(h) Closure period means the period of time beginning with the cessation,
with respect to a waste impoundment, of uranium ore processing
operations and ending with completion of requirements specified under a
closure plan.3
Here, the EPA definition of “closure” states that closure begins when uranium ore
processing operations (associated with that tailings impoundment) cease.
Scott Anderson/DWMRC 5
November 16, 2017
3 40 C.F.R. Part 192, Subpart D—Standards for Management of Uranium Byproduct Materials
Pursuant to Section 84 of the Atomic Energy Act of 1954, as Amended, Section 192.31(h). 48
Fed. Reg. 45926, 45946, Col. 3; October 7, 1983.
The EPA in the newly promulgated Subpart W, defines “operation”:
(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.4
The Final Subpart W Rule also defines “final closure”:
(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-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 closure plan;
***
NRC regulations also define “closure”:
Closure means the activities following operations to decontaminate and
decommission the buildings and site used to produce byproduct materials
and reclaim the tailings and/or waste disposal area.5
These definitions give no indication that the closure of a tailings impoundment that is not
in operation (that is, not receiving tailings or uranium byproduct material, or not on
standby) can be delayed. These definitions do not support the claim that applicable
regulation do not establish any time frame or limit as to when an impoundment (whether
Scott Anderson/DWMRC 6
November 16, 2017
4 Revisions to National Emission Standards for Radon Emissions From Operating Mill
Tailings; 82 Fed. Reg. 5142, 5179; January 17, 2017.
5 10 C.F.R. Part 40, Appendix A to Part 40—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.
conventional or non-conventional) must cease operation and begin final closure.
Operation ends and closure should begin when a tailings impoundment no longer is
receiving tailings or uranium byproduct material or is on standby or when the mill site
itself has commenced closure and decommissioning. These definitions do not support the
claim that 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.
The EPA did not contemplate a situation where an impoundment was in operation, but the
mill site (as a whole) was in closure or decommissioned. It is hard to know where
Energy Fuels is going with this argument. If a uranium mill site (not just specific tailings
impoundments) were in closure or decommissioned, there would be none of the support
facilities necessary to maintain an impoundment that is still in operation. A mill site is
the sum of its tailings impoundments, evaporation ponds, office buildings, ore processing
operations, decommissioning rock piles, equipment, and other support facilities. One
segment cannot be considered operational indefinitely to receive materials that have
nothing to do with site decommissioning, if the mill site as a whole is in closure or
decommissioned. If an impoundment is receiving site reclamation materials (such as
evaporation pond liners, equipment, contaminated soils and equipment, etc), the
impoundment would still be in closure and the site reclamation materials would be placed
in the impoundment pursuant to the site reclamation and closure plans.
The NRC definition of “closure” contemplates the final closure after the cessation of site
operations following operations to decontaminate and decommission the buildings and
site and reclaim the tailings and/or waste disposal area. It does not contemplate the
continued operation of one or more impoundment to receive wastes from other uranium
recovery operations (such as ISL wastes) during the closure or post closure time frames.
The DWMRC must clarify the status of a tailings impoundment that is no longer
receiving tailings and wastes from the processing of ore at the mill (that is, it is no longer
in operation), but is being held open (in part or in whole) to receive materials from the
decommissioning of the mill site itself, as contemplated in the site reclamation, or
closure, plan.
UW believes that a tailing impoundment that is no longer receiving waste from the
processing of ore has entered the closure period, which is guided by the approved
impoundment or mill site closure plan and reclamation milestones. Therefore, under the
closure plan, decommissioning wastes can be placed in the impoundment in an
expeditious manner, in compliance with site reclamation schedules, and the impoundment
is not considered to be operational (or, in operation).
2.4. Schedule Commitments.
Energy Fuels (page 40, ¶ 1) argues that schedule commitments are not enforceable
reclamation milestones. That is not supported by the MOU and EPA and NRC
regulations and statements related to the promulgation of the regulations implementing
Scott Anderson/DWMRC 7
November 16, 2017
the MOU. The EPA and NRC have referred to reclamation milestones as schedules. Any
reclamation schedule proposed by Energy Fuels should be considered to be an
enforceable reclamation milestone and incorporated into the White Mesa Mill License
under specific license conditions. When a specific tailings impoundment or mill as a
whole enters closure, then the schedules in the license should be revised to reflect dates-
certain. The EPA and NRC contemplated the possibility that reclamation schedules might
need to be extended, after an application by the licensee and public notice and comment.
This should be acknowledged in the Mill license conditions.
2.5. Operations After Site Closure and Decommissioning.
Energy Fuels (page 42) asserts:
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 receive Mill decommissioning
byproduct material.
First of all, the EPA, as contemplated by the MOU, took final action on December 31,
1991, to stay and propose rescission of subpart T under section 112(d)(9) and issued an
advance notice of proposed rulemaking under the Uranium Mill Tailings Radiation
Control Act of 1978 (UMTRCA).6 The White Mesa Mill licensee did not apply to the
NRC for authorization to dispose of 11e.(2) byproduct material from the cleanup of in
situ leach (ISL) uranium recovery operations until until May 20, 1993.7 There is no
indication that the EPA, in rescinding Subpart T, contemplated the indefinite operation of
a mill tailings impoundment to receive ISL materials during closure and after
decommissioning of the mill itself. The ISL waste is not waste from the White Mesa Mill
decommissioning, but is limited amounts of material (5,000 cubic yards from any one
origin) from other sites in other states undergoing decommissioning or other site cleanup.
Energy Fuels fails to identify any mill site that maintains an impoundment in operation
indefinitely after the rest of the mill is decommissioned—in order to receive
11e.(2) byproduct material from ISL operations for direct disposal. Therefore, it is not
Scott Anderson/DWMRC 8
November 16, 2017
6 55 Fed Reg. 67537, 67561, and 67569. December 31, 1991.
7 Utah Department of Environmental Quality, Division of Radiation Control, Radioactive
Materials License, License No. UT1900479, License Condition 10.5.
possible to determine the veracity of that statement. It appears that Energy Fuels in
contemplating, over the long-term, a plan to keep at least one tailings impoundment
“operational” in order to receive ISL waste—after the mill and most of the tailings
impoundments have entered closure and are being, or have been, decommissioned. It is
hard to see how Energy Fuels could maintain the onsite operations (which go beyond the
tailings impoundment itself) required to receive and dispose of ISL waste if the Mill itself
were in closure or decommissioned. Currently, there is only one White Mesa Mill
tailings impoundment that is authorized to receive ISL waste—Cell 3.
Energy Fuels fails to reference EPA standards at 40 C.F.R. Part 192, Subpart D, Section
192.32(a)(3)(iv) - (v):
(iv)The Nuclear Regulatory Commission or Agreement State may, in
response to a request from a licensee, authorize by license or license
amendment a portion of the site to remain accessible during the
closure process to accept uranium byproduct material as defined in
section 11(e)(2) of the Atomic Energy Act, 42 U.S.C. 2014(e)(2), or to
accept materials similar to the physical, chemical and radiological
characteristics of the in situ uranium mill tailings and associated
wastes, from other sources. No such authorization may be used as a
means for delaying or otherwise impeding emplacement of the
permanent radon barrier over the remainder of the pile or
impoundment in a manner that will achieve compliance with the 20
pCi/m2-s flux standard, averaged over the entire pile or impoundment.
(v)The Nuclear Regulatory Commission or Agreement State may, in
response to a request from a licensee, authorize by license or license
amendment a portion of a pile or impoundment to remain accessible
after emplacement of a permanent radon barrier to accept uranium
byproduct material as defined in section 11(e)(2) of the Atomic
Energy Act, 42 U.S.C. 2014(e)(2), if compliance with the 20 pCi/m2
-s flux standard of § 192.32(b)(1)(ii) is demonstrated by the licensee’s
monitoring conducted in a manner consistent with § 192.32(a)(4)(i).
Such authorization may be provided only if the Nuclear Regulatory
Commission or Agreement State makes a finding, constituting final
agency action and after providing an opportunity for public
participation, that the site will continue to achieve the 20 pCi/m2 -s
flux standard when averaged over the entire impoundment.
The NRC regulations contain similar wording at 10 C.F.R. Part 40 Appendix A, Criterion
6A(3):
The Commission may authorize by license amendment, upon licensee
request, a portion of the impoundment to accept uranium byproduct
Scott Anderson/DWMRC 9
November 16, 2017
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. No such authorization will be made if it results 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/m2 -s averaged over the entire
impoundment. The verification required in paragraph (2) of Criterion 6
may be completed with a portion of the impoundment being used for
further disposal if the Commission makes a final finding that the
impoundment will continue to achieve a level of radon- 222 releases not
exceeding 20 pCi/m2 -s averaged over the entire impoundment. In this
case, after the final radon barrier is complete except for the continuing
disposal area, (a) only byproduct material will be authorized for disposal,
(b) the disposal will be limited to the specified existing disposal area, and
(c) this authorization will only be made after providing opportunity for
public participation. 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 6; however, these actions are
not required to be complete as part of meeting the deadline for final radon
barrier construction.
These EPA and NRC regulations contemplate the disposal of ISL waste in an
impoundment during site closure or after placement of the permanent radon barrier—
after certain conditions are met and after public notice and comment. There are no
allowance for the disposal of ISL waste in an operational impoundment if the mill site,
itself, were undergoing closure or was decommissioned.
It appears the Energy Fuels is trying to grab hold of something that is not there. There is
no legal basis for Energy Fuels’ assumption that they will be able to continue to operate a
tailings impoundment at the White Mesa Mill to receive and dispose of ISL waste from
other states during Mill site closure or after Mill decommissioning is complete.
2.6. Adequacy of Cell 1 Disposal Area Liner Design.
Energy Fuels (pages 45 to 48) argues that the final Cell 1 Disposal containment
area for disposal of 11e.(2) byproduct material from site decommissioning need not be
constructed with a double-liner system. Energy Fuels uses convoluted arguments as to
why a double-liner system is not required, then comes to the conclusion that, in fact,
“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.”
The only point we would make is that Energy Fuels fails to mention the requirements in
Scott Anderson/DWMRC 10
November 16, 2017
40 C.F.R. Part 61 Subpart W, Section 61.252(a)(2) for the construction of new
impoundments for the disposal of 11e.(2) byproduct material.8 The new Cell 1 Disposal
Area impoundment would be subject to this regulation, which states:
(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.
Therefore, the DWRC must make clear to Energy Fuels, whether or not Energy Fuels is
prepared to agree to revising the wording in the Reclamation Plan regarding Cell 1
construction, that the requirements set forth in 40 C.F.R. Part 61 Subpart W, Section
61.252(a)(2) and 40 C.F.R. 192.32(a)(1) are applicable to the construction of the Cell 1
Disposal Area impoundment.
2.7. Waste Water Sampling Report.
Energy Fuels (pages 17 to 18) discusses the Waste Water Sampling Report, in
response to comments about the need to measure the thorium-230 and thorium-232
concentrations. In that discussion, Energy Fuels discusses two Calculation Briefs.9
Those briefs relate to the radon emissions from liquid effluents, based on a formula that
had been developed by an EPA contractor as part of the EPA Revision of Subpart W.10
The formula was used by the Ute Mt. Ute Tribe to calculate the radon emissions from
White Mesa Mill liquid effluents, based on the data submitted to the DWMRC regarding
the radionuclide emissions from the effluents. Energy Fuels, using a few sampling events
and measurements of the radium content of the effluents, determined that there were, in
fact, radon emissions from the liquid effluents, but those emissions were below the EPA
regulatory standard for radon emissions from existing operating tailings impoundments in
Scott Anderson/DWMRC 11
November 16, 2017
8 Revisions to National Emission Standards for Radon Emissions From Operating Mill Tailings,
82 Fed. Reg. 5142, 5179; January 17, 2017.
9 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 Ute
Mountain Ute Tribe.
10 Risk Assessment Revision for 40 C.F.R. Part 61 Subpart W — Radon Emissions from
Operating Mill Tailings; Task 5 — Radon Emission from Evaporation Ponds. Environmental
Protection Agency, Office of Radiation and Indoor Air. November 9, 2010.
https://www.epa.gov/sites/production/files/2015-05/documents/riskassessmentrevision.pdf
40 C.F.R. Part 61 Subpart W. However, Energy Fuels’ results demonstrated that the
radon emissions were more than “zero.” The EPA has long assumed that the radon
emissions from liquid effluent ponds (ponds on top of more solid tailings and separate
evaporation ponds) were “zero.” Now it is clear that that is not the case. Radon
emissions from liquid effluent ponds would create additional radon emissions, that are
contributing to the cumulative radon emissions from the Mill, but are not being calculated
and reported to the DWMRC and the public.
Energy Fuels used only a few sampling events to determine radon emissions from the
radium-bearing effluents. The radium content of these effluents fluctuates greatly,
depending on the Mill operations and evaporation rates. Therefore, the DWMRC should
require that Energy Fuels conduct a comprehensive sampling program to determine the
variations in concentration of radium 226 (uranium decay chain) and radium 228 and
radium-224 (thorium-232 decay chain) in Cells 1, 4A, and 4B. This data can then be
used to determine fluctuations in the radon emissions from these effluents. With the
White Mesa Mill being the only operating conventional uranium mill in the United
States, the DWMRC and Energy Fuels have the opportunity and responsibility to take a
hard look at the radon emissions from liquid effluents that contain high levels of radium
that vary over time.
3. UTE MOUNTAIN UTE TRIBE COMMENTS
3.1. Cultural Resource Protection.
Energy Fuels (page 51) responded to the Ute Mountain Ute Tribe request. The
Tribe request states: “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).” In response, Energy Fuels asserts that
NAGPRA does not apply to the White Mesa Mill, because the Mill is not on federal or
tribal lands.
License Condition 9.7 applies to a list of cultural sites that were submitted to the NRC by
the White Mesa Mill Licensee (Umetco Minerals Corporation) on July 28, 1988.11 See
Exhibit C. This list includes a few of the cultural resources that are in areas that are also
subject to a Cultural Resource Easement with the federal government—Department of
Interior, Bureau of Land Management.12 See Exhibit D. The Easement applies to
2,591.42 acres of land transferred from the BLM to the White Mesa Mill Licensee:
Scott Anderson/DWMRC 12
November 16, 2017
11 License Amendment Application submitted by Umetco Minerals Corporation to the NRC
Uranium Recovery Field Office, July 28, 1988.
12 Energy Fuels - BLM Land Exchange, Cultural Resource Easement, August 26, 1985. Patent
No. 43-85-0028.
Township 37 South, Range 22 East, SLBM
Section 29: SE 1/4 SE 1/4
Section 33: SW 1/4
Township 38 South, Range 22 East, SLBM
Section 4: N 1/2, SW1/4, W1/2 SE 1/4, W 1/2 E 1/2 SE 1/4
Section 5: All
Section 6: E 1/2
Section 8: NE 1/4
Section 9: All
The 1985 BLM Easement states (in part):
Should the sites be within the proposed impact zone (defined as the area of
any facility plus the surrounding land to 100 feet distance from the
facility's perimeter, or alternative facility location areas), the patentee shall
submit to the Moab District of the Bureau of Land Management a
proposed cultural resources mitigation plan. The sites, if unavoidable,
shall be recovered through an acceptable data recovery program which
will specify procedures for study and final disposition of any human
burials found. In either case, Bureau of Land Management's approval of
the proposed cultural resources mitigation plan shall be made in
consultation with the Utah State Historic Preservation officer, the
Advisory Council on Historic Preservation, and, regarding human
remains, the appropriate native American interests.
The Easement pertains to cultural sites listed in an Attachment “A” to the Easement.
According to the BLM, they have identified and mapped 132 sites with that area of the
1985 land transfer.13
The original White Mesa Mill license, issued by the NRC on August 7, 1979, to Energy
Fuels Nuclear listed various archeological sites related to the Mill. Subsequently,
Umetco Minerals Corporation (Umetco) became the Mill’s owner and licensee. Umetco
submitted an amended list of “Archaeological Site Related to the White Mesa Project”
under cover of a letter dated July 28, 1988. See Exhibit C. That list is referenced in
License Condition 9.7 of the current Mill License.
Scott Anderson/DWMRC 13
November 16, 2017
13 White Mesa Mill Cultural Resources Monitoring Plan 2016; by Don Simonis, BLM-
Monticello Field Office Archeologist, October 24, 2016.
There are two lists of archaeological sites related to the Mill under consideration here.
The two lists are almost mutually exclusive.14 There are the sites listed in Attachment A
of the Easement (within the boundaries of the land transferred from the BLM), which are
subject to the requirements set forth in the Easement. And, there are the sites in the 1988
archeological site list submitted to the NRC, which are subject to License Condition 9.7.
The mineral (subsurface rights) to the land transferred to the Mill owner by the BLM
were not included in the land transfer. Therefore, it is probable that the 132 sites
archaeological sites, including burial sites, on the lands transferred to the White Mesa
Mill licensee are, in fact, on federal lands. The BLM Easement, which still has force and
effect, clearly states the intention that final disposition of any human burials found in the
areas transferred to the Mill licensee by the BLM will be in accordance with “appropriate
native American interests.”
3.2. Emergency Preparedness.
Energy Fuels (page 51) addresses the Ute Mountain Ute Tribe’s request: “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 specifically delivering ISL
Material; these need to be developed.”
As part of their response, Energy Fuels states that certain materials delivered to the Mill
do not travel between the Mill and White Mesa. However, White Mesa Ute tribal
members do travel between White Mesa and Blanding regularly and pass by the Mill.
These community members include school children attending school in Blanding
throughout the school year. Further, hazardous processing materials are shipped to the
Mill, passing through the community on Hwy. 191, and even off of the Hwy. 191 onto
tribal roads and parking lots. Mill emissions are blown onto tribal lands, depending on
the local wind directions. Therefore, there are several means by which the operation of
the White Mesa Mill affects the White Mesa Ute community, whether during normal
operations or unexpected events that may result in radioactive or hazardous material
releases.
Energy Fuels must take every possible step to keep the White Mesa community and the
Ute Mt. Ute Tribe informed in a timely manner of any spills, expected and unexpected
emissions, accidents, or any activities that could possibly result in exposure of White
Mesa and nearby communities to radiological and non-radiological contamination.

Scott Anderson/DWMRC 14
November 16, 2017
14 It appears that only 3 archaeological sites within the area transferred to Energy Fuels Nuclear
by the BLM are also on the 1988 list of archaeological sites submitted to the NRC: 42SA6400,
42SA6401, and 42SA6402. These were Undetermined Sites in 1988 that were located within 100
feet of tailings or liquid effluent cells or related construction.
Thank you for the opportunity to submit these Sur-Reply Comments.
Sincerely,
Sarah Fields
Program Director
Uranium Watch
[e-mail]
and
John Weisheit
Conservation Director
Living Rivers
P.O. Box 466
Moab, Utah 84532
and

Marc Thomas, Chair
Sierra Club - Utah Chapter
423 West 800 South, Suite A103
Salt Lake City, Utah  84101
Attachments: Exhibits A, B, C, and D
Scott Anderson/DWMRC 15
November 16, 2017

NRC FORM 374
(3-2000) U.S. NUCLEAR REGULATORY COMMISSION PAGE 1 OF 11 PAGES
MATERIALS LICENSE Amendment No. 48 Pursuant to the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974 (Public Law 93-438), and the applicable parts of Title 10, Code of Federal Regulations, Chapter I, Parts 19, 20, 30, 31, 32, 33, 34, 35, 36, 39, 40, 51, 70, and 71, and in reliance on statements and representations heretofore made by the
licensee, a licensee is hereby issued authorizing the licensee to receive, acquire, possess, and transfer byproduct, source, and special nuclear material designated below; to use such material for the purpose(s) and at the place(s) designated below; to deliver or transfer such material to persons authorized to receive it in
accordance with the regulations of the applicable Part(s). This license shall be deemed to contain the conditions
specified in Section 183 of the Atomic Energy Act of 1954, as amended, and is subject to all applicable rules, regulations, and orders of the Nuclear Regulatory Commission now or hereafter in effect and to any conditions specified below.
Licensee 3. License Number: SUA-1471
1. Homestake Mining Company of California
2. P.O. Box 98
Grants, New Mexico 87020
4. Expiration Date: Until terminated
5. Docket No.: 40-8903
6.
Byproduct, Source, and/or Special Nuclear Material: Uranium
7.
Chemical and/orPhysical Form: Any
8.
Maximum Amount that LicenseeMay Possess at Any One Time Under This License: Unlimited

9. Authorized Place of Use: The licensee's uranium mill located in Cibola County, New Mexico.

[Applicable Amendments: 12, 29]

10. This license authorizes only the possession of residual uranium and byproduct material in the form of
uranium waste tailings and other byproduct waste generated by the licensee's past milling operations in
accordance with Tables 1 and 3 and the procedures submitted by letter dated September 2, 1993, as
modified by letter dated March 7, 1996.

Anywhere the word "will" is used, it shall denote a requirement.

[Applicable Amendments: 2, 6, 12, 16, 24]

11. DELETED by Amendment No. 21.

12. Periodic embankment inspections of the large and small tailings embankment shall be conducted by
knowledgeable individuals who are familiar with the site and the embankment design. An annual
embankment status report shall be included in the Annual Report (see LC 42).

[Applicable Amendments: 2, 12, 14, 24, 34]
13. DELETED by Amendment No. 27.

14. Release of equipment or packages from the restricted area shall be in accordance with the attachment to
SUA-1471 entitled, “Guidelines for Decontamination of Facilities and Equipment Prior to Release for
Unrestricted Use or Termination of Licenses for Byproduct or Source Materials,” dated September 1984.
[Applicable Amendments: 21, 31]

NRC FORM 374 (3-2000) PRINTED ON RECYCLED PAPER

NRC FORM 374
(3-2000) U.S. NUCLEAR REGULATORY COMMISSION PAGE 2 OF 11 PAGES

MATERIALS LICENSE
License Number SUA-1471
Docket or Reference Number
40-8903
Amendment No. 48

15. The results of all effluent and environmental monitoring required by this license shall be reported to the
NRC. For purposes of reporting requirements, only groundwater radionuclide data from the point of
compliance wells and backgrounds well P shall be reported.

[Applicable Amendments: 5, 31, 34]

16. Before engaging in any activity not previously assessed by the NRC, the licensee shall prepare and
record an environmental evaluation of such activity. When the evaluation indicates that such activity may
result in a significant adverse environmental impact that was not previously assessed or that is greater
than that previously assessed, the licensee shall provide a written evaluation of such activities and obtain
prior approval of the NRC in the form of a license amendment.

17. Prior to termination of this license, the licensee shall provide for transfer of title to byproduct material and
land, including any interests therein (other than land owned by the United States or the State of New
Mexico), which is used for the disposal of such byproduct material or is essential to ensure the long-term
stability of such disposal site, to the United States or the State of New Mexico, at the State's option.

18. DELETED by Amendment No. 27.

19. DELETED by Amendment No. 17.

20. DELETED by Amendment No. 21.

21. The site Radiation Protection Administrator (RPA), who is responsible for conducting the site radiation
safety program, shall possess the minimum qualifications as specified in Section 2.4.1 of Regulatory Guide
8.31, "Information Relevant to Ensuring that Occupational Radiation Exposures at Uranium Mills will be As
Low As is Reasonably Achievable."

[Applicable Amendment: 27]

22. The results of sampling, analyses, surveys and monitoring; the results of calibration of equipment, reports
on audits and inspections; all meetings and training courses required by this license and any subsequent
reviews, investigations, and corrective actions, shall be documented. Unless otherwise specified in the
NRC regulations, all such documentation shall be maintained for a period of at least 5 years.

23. Standard procedures shall be established for all activities involving radioactive materials that are handled,
processed, or stored. Procedures shall enumerate pertinent radiation safety practices to be followed.
Additionally, written procedures shall be established for environmental monitoring, bioassay analyses, and
instrument calibrations. An up-to-date copy of each written procedure shall be kept in the area to which it
applies.

NRC FORM 374 (3-2000) PRINTED ON RECYCLED PAPER
MATERIALS LICENSE
SUPPLEMENTARY SHEET

NRC FORM 374
(3-2000) U.S. NUCLEAR REGULATORY COMMISSION PAGE 3 OF 11 PAGES

MATERIALS LICENSE
License Number SUA-1471
Docket or Reference Number
40-8903
Amendment No. 48
24. The licensee shall be required to use a Radiation Work Permit (RWP) for all work or nonroutine maintenance jobs where the potential for significant exposure to radioactive material exists and for which
no standard written procedure already exists. The RWP shall be approved by the RPA or his designee, qualified by way of specialized radiation protection training, and shall at least describe the following:
A. The scope of work to be performed.

B. Any precautions necessary to reduce exposure to uranium and its daughters.
C. The supplemental radiological monitoring and sampling necessary prior to, during, and following completion of the work.

25. DELETED by Amendment No. 21.

26. Mill tailings, other than small samples for purposes such as research or analysis, shall not be transferred
from the site without specific prior approval of the NRC in the form of a license amendment. The licensee
shall maintain a permanent record of all transfers made under the provisions of this condition.

27. DELETED by Amendment No. 21.

28. The licensee shall maintain an NRC-approved financial surety arrangement consistent with 10 CFR 40,
Appendix A, Criteria 9 and 10, adequate to cover the estimated costs, if accomplished by a third party, for
decommissioning and decontamination of the mill and mill site, reclamation of tailings or waste disposal
areas, ground-water restoration, and the long-term surveillance fee. Within 3 months of NRC approval of a
revised reclamation plan and its cost estimate, the licensee shall submit for NRC review and approval a
proposed revision to the financial surety arrangement if estimated costs for the newly approved plan
exceed the amount covered in the existing financial surety. The revised surety arrangement shall then be
in effect within 30 days of written NRC approval of the surety documents.

Annual updates to the surety amount required by 10 CFR Part 40, Appendix A, Criteria 9, shall be
submitted to the NRC at least 3 months prior to the anniversary date, which is designated as June
30 of each year. Along with each proposed revision or annual update, the licensee shall submit
supporting documentation showing a breakdown of costs and the basis for the cost estimate,
adjustments for inflation, maintenance of a minimum 15 percent contingency, and reflecting any
changes in engineering plans or any other conditions affecting estimated costs for site closure.
Appendix C of NUREG-1620, Rev.1, outlines the minimum considerations used by the NRC in the
review of site closure cost estimates. The licensee's currently approved surety, a Parent Company Guarantee issued by Barrick Gold
Corporation, shall be continuously maintained in an amount no less than $62,490,490 for the purpose of complying with 10 CFR 40, Criteria 9 and 10, until a replacement is authorized by the NRC. The use of a parent company guarantee necessitates an evaluation of the corporate parent as part of the annual surety

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MATERIALS LICENSE
License Number SUA-1471
Docket or Reference Number
40-8903
Amendment No. 48
update. In addition to the cost information required above, the annual submittal must include updated
documentation of the (1) letter from the chief financial officer of the parent company; (2) auditor's special
report confirmation of chief financial officer's letter; (3) schedule reconciling amounts in chief financial
officer's letter to amounts in financial statements; and (4) parent company guarantee if any changes are
appropriate.

[Applicable Amendments: 9, 12, 23, 24, 26, 34, 35, 37, 38, 40, 41, 42, 43, 44, 46, 48]
29. DELETED by Amendment No. 32.

30. DELETED by Amendment No. 21.

31. DELETED by Amendment No. 27.

32. The licensee shall follow the guidance set forth in U.S. Nuclear Regulatory Commission, Regulatory
Guides 8.22, “Bioassay at Uranium Recovery Facilities,” 8.30, “Health Physics Surveys in Uranium
Recovery Facilities,” and 8.31, “Information Relevant to Ensuring that Occupational Radiation Exposure at
Uranium Recovery Facilities will be As Low As is Reasonably Achievable (ALARA),” or NRC-approved
equivalent.

A. DELETED by Amendment 27.

B. Any time uranium in a worker’s urine specimen exceeds 15 micrograms per liter (ug/l), the annual
ALARA audit will indicate what corrective actions were considered or performed.

C. DELETED by Amendment 34.

[Applicable Amendments: 2, 34]

33. DELETED by Amendment No. 21.

34. DELETED by Amendment No. 4.

35. The licensee shall implement a groundwater compliance monitoring program to assess the performance of
the groundwater restoration program. This program is separate from the requirements in License
Condition 15. The Licensee shall:
A. Implement the groundwater monitoring shown in Table 2 (8-99) submitted September 29, 1999, except that under “Reversal Wells,” delete Well KF and replace with Well DZ, and except that well
CW2 will remain in the sampling program monitoring annually for G list of parameters, and Cr is to be deleted from the D and F lists of parameters.

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MATERIALS LICENSE
License Number SUA-1471
Docket or Reference Number
40-8903
Amendment No. 48
Well DD and one additional monitoring well to the middle of the southeast side of EP3 (to be named
later) is to be added to the Table list and will be monitored semi-annually for the B and F list of
parameters. The additional well is to be installed and monitored quarterly for at least two quarters prior
to EP3 becoming operational to determine background water quality for the well.

B. The following ground water protection standards are established for each designated aquifer/zone as
described in Ground-Water Hydrology for Support of Background Concentration at the Grants
Reclamation Site (Hydro-Engineering, December 2001) and Background Water Quality Evaluation of
the Chinle Aquifers (Homestake Mining Company and Hydro-Engineering, October 2003):

Constituents Alluvial
Aquifer
Chinle
Mixing
Zone
Upper Chinle
Non-Mixing
Zone
Middle Chinle
Non-Mixing Zone
Lower Chinle
Non-Mixing
Zone
Selenium (mg/L) 0.32 0.14 0.06 0.07 0.32
Uranium (mg/L) 0.16 0.18 0.09 0.07 0.03
Molybdenum (mg/L) 0.1 0.1 0.1 0.1 0.1
Sulfate (mg/L) 1500 1750 914 857 2000
Chloride (mg/L) 250 250 412 250 634
TDS (mg/L) 2734 3140 2010 1560 4140
Nitrate (mg/L) 12 15 * * *
Vanadium (mg/L) 0.02 0.01 0.01 * *
Thorium-230 (pCi/L) 0.3 * * * *
Ra-226 + Ra-228 5 * * * *
* - ground-water protection standards not necessary for the constituents in the indicated zones

The constituents listed above for the alluvial aquifer must not exceed the specified concentration limit at
compliance monitoring wells (former point of compliance wells) D1, X, and S4. At present, no
compliance monitoring wells have been designated for the Chinle Mixing Zone or the Upper, Middle or
Lower Chinle Non-Mixing Zones for the purpose of implementing the ground water protection standards
listed above for these zones. The licensee shall propose compliance monitoring wells for the Chinle
Mixing Zone and the Upper, Middle and Lower Chinle Non-Mixing Zones in a revised Corrective Action
Plan to be submitted to the NRC no later than December 31, 2006. NRC will evaluate the proposed
compliance monitoring wells and, if acceptable, will incorporate them into the license as compliance
locations for the ground water protection standards listed above. NRC will notify the licensee and
request new proposed compliance monitoring well locations from the licensee, if any of the well
locations are determined to be unacceptable
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MATERIALS LICENSE
License Number SUA-1471
Docket or Reference Number
40-8903
Amendment No. 48
C. Implement the corrective action program described in the September 15, 1989 submittal, as modified
by the reverse osmosis system described in the January 15, 1998 submittal with the objective of
returning the concentrations of molybdenum, selenium, thorium-230, uranium, and vanadium to the site
standards as listed in LC 35B. In addition, the reverse osmosis system will include the addition of
Sample Point 2 downstream of the Mixing Tank. Composite samples from Sample Point 2 will be taken
monthly and analyzed for U and Mo.

D. Operate evaporation ponds, EP1, EP2 and EP3, and enhanced evaporation systems located in each
pond as described in the June 8 and 28, 1990; July 26, August 16, August 19, September 2 and 15,
1994; October 25, 2006, February 7, 2007, July 18, 2007, and March 17, 2008, submittals. Monitoring
and mitigation measures for EP3 contained in the HMC Environmental Report dated January 30, 2007,
are incorporated into this LC by reference.

E. Submit by March 31 of each year, a performance review of the corrective action program that details
the progress towards attaining groundwater protection standards.

[Applicable Amendments: 3, 4, 5, 7, 8, 10, 11, 16, 21, 28, 30, 31, 33, 34, 39, 41]

36. The licensee shall complete site reclamation in accordance with an approved reclamation plan. The
ground-water corrective action plan shall be conducted as authorized by License Condition No. 35. All
activities shall be completed in accordance with the following schedules.

A. To ensure timely compliance with target completion dates established in the Memorandum of
Understanding with the Environmental Protection Agency (56 FR 55432, October 25, 1991), the
licensee shall complete reclamation to control radon emissions as expeditiously as practicable,
considering technological feasibility, in accordance with the following schedule:

(1) Windblown tailings retrieval and placement on the pile:

For the Large Impoundment - December 31, 1996.

For the Small Impoundment - May 31, 1997.

(2) Placement of the interim cover to decrease the potential for tailings dispersal and erosion:

For the Large Impoundment - December 31, 1996.

For the Small Impoundment - May 31, 1997.

(3) Placement of final radon barrier designed and constructed to limit radon emissions to an average
flux of no more than 20 pCi/m2/s.

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MATERIALS LICENSE
License Number SUA-1471
Docket or Reference Number
40-8903
Amendment No. 48

For the Large Impoundment which has no evaporation ponds – December 31, 2012.

For the Small Impoundment, tailings pile surface areas are essentially covered by evaporation
ponds constructed as part of the ground-water corrective action program. Prior to December 31,
2013, the areas not covered by the evaporation ponds shall have interim cover in place. Final
radon barrier placement over the entire pile shall be completed within 2 years of completion of
ground-water corrective actions.
[Applicable Amendments: 25, 36, 41, 45]

B. Reclamation, to ensure required longevity of the covered tailings and ground-water protection, shall
be completed as expeditiously as is reasonably achievable, in accordance with the following target
dates for completion:

(1) Placement of erosion protection as part of reclamation to comply with Criterion 6 of
Appendix A of 10 CFR Part 40:

For the Large Impoundment – September 30, 2013.

For the Small Impoundment - December 31, 2013.

[Applicable Amendments: 25, 36, 41, 45]

(2) Projected completion of ground-water corrective actions to meet performance objectives
specified in the ground-water corrective action plan - December 31, 2011.

C. Any license amendment request to revise the completion dates specified in Section A must
demonstrate that compliance was not technologically feasible (including inclement weather, litigation
which compels delay to reclamation, or other factors beyond the control of the licensee).

D. Any license amendment request to change the target dates in Section B above, must address added
risk to the public health and safety and the environment, with due consideration to the economic
costs involved and other factors justifying the request such as delays caused by inclement weather,
regulatory delays, litigation, and other factors beyond the control of the licensee.

E. As detailed in the licensee’s October 28, 2003 submittal, the licensee is to verify compliance with the
radon flux standard of 20 pCi/m2s by performing a radon flux survey for the large and small tailings
piles on an annual basis during the milestone extension period specified above. An annual report
detailing results of this survey shall be submitted with the annual groundwater CAP report as
specified in condition 35E no later than March 31 each year.

[Applicable Amendments: 13, 22, 36]
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MATERIALS LICENSE
License Number SUA-1471
Docket or Reference Number
40-8903
Amendment No. 48
37. The licensee shall reclaim the large and small tailings impoundments as stated in its October 29, 1993,
submittal, including the following requirements.

A. The radon barrier for the large tailings pile shall be in accordance with material types, thicknesses and
placement criteria described in Homestake Mining Company's Final Radon Barrier Design for the Large
Tailings Pile, submitted June 16, 1995.

[Applicable Amendment: 22]

B. The final reclamation of the area that includes the small tailings pile and the three evaporation ponds
will include the disposal of the contaminated groundwater restoration materials and precipitated solids
from the evaporation pond. The small tailings pile and evaporation ponds will be reconstructed and
covered with radon barrier material. The placement of the barrier on the small tailings pile shall be
done in accordance with the material types, thicknesses, and placement criteria described in
Homestake Mining Company’s Final Radon Barrier Design for the Small Tailings Pile, transmitted to
the NRC in August 1996.

[Applicable Amendments: 27, 32, 41]

C. The licensee shall submit a construction quality control program for NRC review and approval prior to
placing any portion of the radon barrier that will ensure that the specification which limits the activity of
the radon barrier material to 5 pCi/g above background, is not exceeded.
D. The construction quality assurance and control program shall be as defined in the Staff Technical Position On Testing and Inspection (NRC, 1989). The acceptable correlation between ASTM D 2922
and ASTM D 1556 shall be as defined in the licensee's April 30, 1992, submittal. E. OMITTED in Amendment No. 14.
F. The radon barrier shall not be placed on the top surface of the large tailings impoundment until the
settlement has been demonstrated to be at least 90 percent of expected settlement, and the results of
this determination have been reviewed and accepted by the NRC. The radon barrier may be placed on
the large impoundment side slopes following final grading of the impoundment. Care shall be taken to
preclude the possibility of ponding. Before the erosion protection is placed, it shall be verified that the
radon barrier material meets the specifications.
G. The adequacy of the erosion protection proposed for the side slopes of both the large and small impoundments shall be reevaluated considering any increases in impoundment heights due to the
revised radon attenuation cover design. H. DELETED by Amendment No. 21.

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NRC FORM 374
(3-2000) U.S. NUCLEAR REGULATORY COMMISSION PAGE 9 OF 11 PAGES
MATERIALS LICENSE
License Number SUA-1471
Docket or Reference Number
40-8903
Amendment No. 48
I. A completion report shall be provided within 6 months of the completion of construction. This report, including as-built drawings, shall verify that reclamation of the site has been performed according to the
approved plan. The report shall also include summaries of results of the quality assurance and control testing to demonstrate that approved specifications were met.
J. The soil cleanup program associated with the decommissioning of the groundwater restoration facilities
and small tailings pile reclamation shall be done as specified in the submittal of September 15, 1994,
and as modified by the submittal of December 13, 1995.
[Applicable Amendment: 32]
K. The licensee shall implement a quality control (QC) program for the soil cleanup verification program to
include sending at least 10 percent of the samples (randomly selected) to a vendor laboratory for Ra-
226 analysis. If the vendor laboratory uses gamma spectroscopy, at least 30 percent of these QC
samples shall also be chemically analyzed.

[Applicable Amendments: 14, 32]
38. The licensee is authorized to use water collected as part of the site ground-water corrective action program
for conditioning soils during placement of the interim cover or the radon barrier on the tailings
impoundments. The licensee shall also analyze samples of the collection water being used for this
purpose for radium-226 and 228 content semiannually. If sample results exceed 30 pCi/l combined
radium, the licensee shall perform an evaluation of the potential impacts of using this water on the required
design of the radon barrier and submit the evaluation for NRC review within 30 days of receipt of sample
results.

[Applicable Amendment: 18]

39. DELETED by Amendment No. 31.

40. All written notices and reports to NRC required under this license shall be addressed: Attn: Document
Control Desk, c/o Deputy Director, Division of Decommissioning, Uranium Recovery, and Waste Programs
(Mailstop T8-F5), Office of Nuclear Materials Safety and Safeguards, U. S. Nuclear Regulatory
Commission, 11545 Rockville Pike, Two White Flint North, Rockville, MD 20852-2738.

Required telephone notification shall be made to the NRC Operations Center at [phone], unless
otherwise specified in license conditions.

[Applicable Amendments: 34, 41, 48]

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MATERIALS LICENSE
License Number SUA-1471
Docket or Reference Number
40-8903
Amendment No. 48

41. Spills, Leaks, Excursions, and Incident/Event Reporting

Until license termination, the licensee shall maintain documentation on unplanned release of source or
11e.(2) byproduct materials and process chemicals. Documented information shall include, but not be
limited to: date, volume, total activity of each radionuclide released, radiological survey results, soil
sample results (if taken), corrective actions, results of post remediation surveys (if taken), and a map
showing the spill location and the impacted area. The licensee shall have procedures which will evaluate
the consequences of the spill or incident/event against 10 CFR 20, Subpart “M,” and 10 CFR 40.60
reporting criteria. If the criteria are met, then report to the NRC Operations Center as required.

If the licensee is required to report any spills, leaks, or excursions of source, 11e.(2) byproduct material
and process chemicals that may have an impact on the environment, or any other incidents/events to
State or Federal Agencies, a report shall be made to the NRC Region IV Nuclear Materials Licensing
Branch Chief and NRC Headquarters Project Manager (PM) by telephone or electronic mail (e-mail)
within 48 hours of the event. This notification shall be followed, within thirty (30) days of the notification,
by submittal of a written report to NRC Region IV and NRC Headquarters, detailing the conditions
leading to the spill or incident/event, corrective actions taken, and results achieved.
[Applicable Amendment: 34]

42. An annual report will be submitted to the NRC that includes the ALARA audit report, land use survey,
monitoring data, corrective action program report, and the effluent and environmental monitoring reports.

[Applicable Amendment: 34]
43. Before engaging in any developmental activity not previously assessed by the NRC, the licensee shall
administer a cultural resource inventory. All disturbances associated with the proposed development will
be completed in compliance with the National Historic Preservation Act (as amended) and its
implementing regulations (36 CFR 800), and the Archaeological Resources Protection Act (as amended)
and its implementing regulations (43 CFR 7).

In order to ensure that no unapproved disturbance of cultural resources occurs, any work resulting in the
discovery of previously unknown cultural artifacts shall cease. The artifacts shall be inventoried and
evaluated in accordance with 36 CFR Part 800, and no disturbance of the area shall occur until the
licensee has received authorization from the NRC to proceed.

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MATERIALS LICENSE
License Number SUA-1471
Docket or Reference Number
40-8903
Amendment No. 48

In the event that bones or prehistoric or historic archaeological materials are uncovered during
construction or earth-disturbing activities, cease work immediately and protect the remains from further
disturbance. If bones are found, immediately notify local law enforcement and the Office of the Medical
Investigator pursuant to 18-6-11.2C (Cultural Properties Act NMSA 1978).

In accordance with 18-6-11.2C and/or 36 CFR 800.13(b) (Protection of Historic
Properties), notify the State Historic Preservation Officer (SHPO) or the State
Archaeologist, immediately.

In either case, the Agency and the SHPO, in consultation with an archaeologist who holds state unmarked
human burial excavation and survey permits, will determine the necessary steps to evaluate significance,
document, protect or remove the material or remains, in compliance with law. Call the SHPO or State
Archaeologist at [phone].

[Applicable Amendment: 34, 41]

FOR THE U.S. NUCLEAR REGULATORY COMMISSION
Dated: 10/04/2016 _______/RA/______________________
Andrea L. Kock, Deputy Director Division of Decommissioning, Uranium Recovery, and Waste Programs
Office of Nuclear Material Safety
and Safeguards

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SUPPLEMENTARY SHEET
', t.' ,
\_\ .
A-e:u_.(;1:0.
?T-;3-I
Memonll,ldUJP (}fllnderstanding Between EPA, NRC and
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
In accordance with Sections 112 (d)(9) and 122 (c)(2) of the Clean Air
Act, as amended in 1990, and in order to minimize regulatory duplication and
conserve resources in the control of radionuclide emissions to air from
uranium mill tailings sites licensed by the Nuclear Regulatory Commission
(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 Washington (the affected Agreement States) agree as follows:
Gene.ral Goal of Agreement
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 operations and those owners and operators that will in the future cease operati'on, 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.
NRC and Affected Agreement State Lead Actions
1. NRC: or the affected Agreement States will complete review and approval of detailed reclamation (i.e., final closure) plans, including schedules foll'l' etapl acement of earthen covers on non-operation a 1 tailing impoundments such: that radon emissions will not exceed a flux of 20 pCi/m2/s, as soon as practicable but in any event not later than September of 1993. NRC or the affected Agreement States will immediately solicit voluntary requests by uranium mill tailings disposal site licensees to amend their licenses to set forth, or incorporate by reference, the schedule for reclamation. Once approved by NRC or the Agreement States, these reclamation schedules will be
enforceable. If any licensee fails to voluntarily have a firm reclamation schedule (consistent with this MOU) incorporated into its license, NRC or the Agreement States will impose the appropriate 1 icense amendments by order (in accordance with applicable regulatory procedures).
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 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. · ·
2. NRC agrees to provide for public notice and comment by publishing in the Federal Register receipt of requests, intent to issue amendments, or
intent to issue orders which (1) incorporate reclamation plans or other
schedules for effecting final closure into licenses, and (2) amend reclamation schedules as-necessary for reasons of techno logical feasibility (including inclement weather, litigation which compels delays to emplacement, or other
factors beyond control of the licensee) after the reclamation 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 in accordance with 10 CFR Part 2, Appendix C, to compel licensee adherence to reclamation schedules, except when the licensee both demonstrates that compliance was not technologically feasible and has made written application to NRC for a license 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 in 10 CFR 2.206; the affected Agreement States will consider such requests in accordance with State law and existing State procedures.
EPA Lead Actions
4. In or about October 1991, EPA will develop and publish in the Federal Register a Notice of Proposed Rulemaking to stay existing 40 CFR Part 61, Subpart T pending implementation of this agreement, including the rulemaking 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 o.c..ber 15, 1991.
5. Onro•·about December 15, 1991, EPA will develop and publish in the Federa1 Regtstara Notice of Proposed Rulemaking or an Advance Notice of Proposed Rulemak1ng, pursuant to its authority under Atomic Energy Act Section
275, to make specific amendments to 40 CFR Part 192 that would require emplacement of a final earthen cover on non-operational tailing impoundments such that radon emissions will not exceed a flux of 20 pCi/m2/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 basts to support this rulemaking. Final action will be taken as soon as· practicable.
2
6. On or about December 15, 1991, EPA will develop and publish in the
Federal Register a Notice of Proposed Rulemaking, pursuant to .its authority
under Clean Air Action Section 112(d)(9), to rescind its existing uranium mill tailings disposal regulations· at 40 CFR Part 61, Subpart T. This proposal,
which will occur only if the purposes and provisions of this MOU are proceeding expeditiously, requires that the Administrator find that the regulatory program implemented by NRC and. the affected Agreement States will
protect public health with an ample margin of safety. It is expected, subject
to public notice and comment, that the basis for this finding wil.l ultimately
be provided through compliance by NRC, the affected Agreement States, and EPA
with all aspects of this agreement, including finalized, enforceable
reclamation plans and expeditious closure schedules for all affected
facilities. Final action will be taken as soon as practicable after
completion of the rulemaking described in paragraph 5 and the licensing
described in paragraphs 1 and 2.
7. During or after performance of the actions described in paragraphs 1, 4, 5 and 6, EPA, NRC and the affected Agreement States will cooperate in addressing pursuant to CAA Section 112 (d)(9) duplication of regulation
presented by 40 CFR Part 61, Subpart W, which relates to radionuclide
emissions from uranium mill tailings piles that are operational or in standby
status.
Effective Date, Revision, and Termination
This memorandum shall be effective immediately and shall continue in effect until revised by mutual agreement, unless terminated by any party after
120 days notice in writing.
NUCLEAR REGULATORY COMMISSION,
Robert M. Bernero, Director
Office of Nuclear Material Safety and Safeguards
ION AGENCY,
Wil iam G. Rosenberg, ssistant Administrator
For Air and Radiati
3
October 17, 1991
October 1991
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ATTACHMENT A
Non-Operational Tailings Impoundments
FACILITY
ANC, Gas Hills, WY -1 impoundment operational for
in-situ waste disposal -1 non-operational impoundment
ARCO Coal, Bluewater,-NM
Atlas, Moab, UT
Conoco, Conquista, TX
Ford-Dawn Mining, Ford, WA -1 operational impoundment -3 non-operational impoundments
Hecla Mining, Ourita, CO
Homestake, Milan, NM
Pathfinder-lucky Me, Gas Hills, WY
Petrotomics, Shirley Basin, WY
Quivira, Ambrosia lake, NM
-2 operational impoundments
-1 non-operational impoundment
Rio Algom, Lisbon, UT
Sohio-L-Bar, Cebolleta, NM
UMETCO, Gas KUls,. WY -1 operational· impoundment -1 non-operational impoundment
(large impoundment) (small impoundment)
TARGET DATE1
1995
1995
1996
1996
2010
1997
1996 2001
1998
1995
1997
1996
1992
1995
1 For completing emplacement of final earthen cover to limit radon emissions
to a flux of no more than 20 ·pti/nr/s.
A - 1
FACILITY
UMETCO, Maybell, CO
UMETCO, Uravan, CO
UNC, Church Rock, NH
Union Pacific, Bear Creek, WY
WNI, Sherwood, WA
WNI, Split Rock, WY
TARGET OATE1
1997
. 20022
1997
1996
1996
1995
, For completing emplacement of final earthen cover to limit radon emissions to a flux of. no more than 20 2 CERCLA Consent Decree requires final cover over taflfngs by 1997 but allows small portion (roughly 11 of the impoundment) to remain open to receive residues from groundwater restoration activities.
A - 2
6. On or about December 15, 1991, EPA will develop and publish in the
Federal Register a Notice of Proposed Rulemaking, pursuant to its authority under Clean Air Action Section 112(d)(9}, to rescind its existing uranium mill
tailings disposal regulations at 40 CFR Part 61, Subpart T. This proposal, which will occur only if the purposes and provisions of this MOU are
proceeding expeditiously, requires that the Administrator find that the
regulatory program implemented by NRC and the affected Agreement States will protect public health with an ample margin of safety. It is expected, subject
to public notice and comment, that the basis for this finding will ultimately be provided through compliance by NRC, the affected Agreement States, and EPA
with all aspects of this agreement, including finalized, enforceable
reclamation plans and expeditious closure schedules for all affected facilities. Final action will be taken as soon as practicable after
completion of the rulemaking described in paragraph 5 and the licensing
described in paragraphs 1 and 2.
· 7. During or after performance of the actions described in paragraphs 1, 4, 5 and 6, EPA, NRC and the affected Agreement States will cooperate in
addressing pursuant to CAA Section 112 (d)(9) duplication of regulation presented by 40 CFR Part 61, Subpart W, which relates to radionuclide
emissions from uranium mill tailings piles that are operational or in standby
status.
Effective Date. Revision. and Termination
This memorandum shall be effective immediately and shall continue in
effect until revised by mutual agreement, unless terminated by any party after 120 days·notice in writing.
NUCLEAR REGULATORY COMMISSION,
October 17, 1991
Robert M. Bernero, Director Office of Nuclear Material Safety and Safeguards
October Jj, 1991
ssistant Administrator
3
STATE OF COLORADO,
hn, Interim Executive Director
rtment of Health
STATE OF TEXAS
ROertA:MaCLeal1 Acting Commissioner of Health
STATE 0{ .. .
Kristine Gebbie, Secretary
Department of .Health
# # #
4
October.73, 1991
October 1991
October 25, 1991

Energy Fuels -BLM Land Exchange
Cultural Resource Easement Agreement
At such time as a surface disturbing activity is proposed on
the subject land described as:
T. 37 S., R. 22 E.,SLBM,Section 29:SE 1/4 SE 1/4
Section 33:SW 1/4
T. 38 S., R. 22 E.,SLBM,Section 4: N 1/2,SW 1/4,W 1/2 SE
1/4, W 1/2 E 1/2 SE 1/4
Section 5:All
Section 6: E 1/2
Section 8:NE 1/4
Section 9:All
The patentee (Energy Fuels,Ltd.)or its heirs,succes-
sors-in-interest or assigns shall determine the potential
adverse effect of proposed land disturbing activities on the
cultural sites,as shown on Attachment "A"which have been
identified as potentially eligible for inclusion on the
National Register of Historic Places,and complete the
following steps:
a.Should the sites be within the proposed impact zone
(defined as the area of any facility plus the surrounding
land to 100 feet distance from the facility's perimeter,or
alternative facility location areas),the patentee shall
submit to the Moab District of the Bureau of Land Manage
ment a proposed cultural resources mitigation plan.The
sites,if unavoidable,shall be recovered through an
acceptable data recovery program which will specify proce
dures for study and final disposition of any human burials
found.In either case,Bureau of Land Management's
approval of the proposed cultural resources mitigation plan
shall be made in consultation with the Utah State Historic
Preservation officer,the Advisory Council on Historic
Preservation,and,regarding human remains,the appropriate
native American interests.
b.Periodic inspections of sites shall be performed by Bureau
of Land Management personnel by prior arrangement with the
patentee to assure compliance with these provisions at
intervals not greater than three (3)years.Should surface
disturbing activity be noted at any time,a joint inspec
tion shall be requested of the patentee immediately to
,«.?-•••••••
assess cultural damage, if any, and determine needed miti
gation required.
c.Energy Fuels, Ltd., or its heirs,successors-in-interest or
assigns will be responsible for the costs of any mitigation
including excavations or testing necessary as a result of
damage or development impacts.Professional archaeologists
employed and salvage techniques are subject to approval by
the Utah State Historic Preservation Office,the Advisory
Council on Historic Preservation and the Bureau of Land
Management.
d.After study,the recovered artifacts will be curated at an
institution acceptable to the Utah State Historic
Preservation Office.
Any obligation imposed hereunder shall run with the
subject land and shall be binding upon Energy Fuels,Ltd. for
so long as,and only so long as, it owns,controls or has the
right to possess that portion of the subject land to which any
such obligation relates.
IN WITNESS WHEREOF,the parties have executed this
Cultural Resources Easement Agreement this 26th day of August,
1985.
ENERGY FUELS,LTD.,
a Colorado limited
partnership
By E.F.Uranium Group,Inc.
a Colorado corporation -""Moab District Manager
Its General Partner Bureau of Land Management
ABy:/H<d X A
Brad L.Doores
Vice President -
Legal &Regulatory Affairs