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Home My WebLink AboutDRC-2018-000844 - 0901a068807a8d298/15/2017 Public Comment - White Mesa Uranium Mill - Google Groups https://groups.google.com/a/utah.gov/forum/print/msg/dwmrcpublic/Oqq7-4lCKDQ/5mtlSB1LAQAJ?ctz=4008399_80_84_104220_80_446880 1/2 Google Groups Public Comment - White Mesa Uranium Mill Mark Kerr Jun 8, 2017 2:21 PM Posted in group: dwmrcpublic UT DEQ, The operating license and the groundwater discharge permit at the White Mesa Uranium Mill should not be issued, and operations should be suspended until numerous issues are addressed. These 'poor housekeeping' practices are as much the responsibility of the UT DEQ as they are the mill owner/operator, as neither party can be expected to follow rules, regulations, license requirements, or construction permit technical specifications, as proven by past practice. It is no surprise that plumes of contamination exist, radon emissions exceed limits, and monitor wells contaminates exceed limits set by the regulators. Following are examples: Construction bid documents for Cell 4B in Jan 2008 require major changes be reported to the regulators prior to implementation. Reporting of those changes did not occur prior to implementation. The mill owner/operator indicated, 8-7-09, that blasted rock during cell construction would be removed. The blasted rock was not removed. In lieu of rock removal a directive for a revised compaction methodology, 5-19- 10, was issued. But large areas of the cell floor were left untouched by the new methodology, as directed by the mill owners engineer. On 6-8-2010 the mill owner's engineer states that over blasting of rock can result in an unstable soil/rock mixture that may settle differentially or significantly.....yet the rock was not removed, and as noted above the compaction methodology was not applied consistently over the cell floor. On 6-14-2010 the mill owner/engineer was asked if the regulators were aware of the changes. 6-17-2010, the mill owner/engineer advise that the question is inappropriate, and they state, 'please revise or rescind' the question. Back on 3-12-2010 the mill owner/engineer advised of the format to use for questions, so they could respond 'accordingly'. UT DEQ's consultant, URS, 9-4-09, states that the blasting plan should be included as a critical component of the technical specifications for construction. On 3-4-10 the mill owner/owner's engineer direct changes to the blasting plan without notice to the regulators. Back on 11-6-09 the mill owners engineer states that they are not, and the contractor is, responsible for deviations to the contract documents. 12-14-2011, UT DEQ advises that they allow for discretion on the part of the permittee (the mill owner & mill owner's engineer) types of changes that require notification. UT DEQ states that it appeared that DUSA/Geosyntec determined that changes to compaction methodology did not qualify as being sufficiently significant to notify UT DEQ of such a change. UT DEQ states than notice is required when the alteration or addition could significantly change the nature of the facility or increase the quantity of pollutants discharged. It is well documented that the UT DEQ, the mill owner, and the mill owner's engineer, all considered rock excavation, blasting, and compaction to be sufficiently significant to report changes. All were changed, no notice was given, and questions about reporting were ignored or rejected altogether. 1-13-2012, the UT DEQ states that following their review, the review made now knowing of the changes, that cell construction was acceptable. BUT, how could that be. This means that conflicting Technical Specifications implemented during construction are now OK. The Blasting plan was critical according to UT DEQ, URS, DUSA, and Geosyntec....but the plan was changed in direct conflict with documents from all 4 parties. 8/15/2017 Public Comment - White Mesa Uranium Mill - Google Groups https://groups.google.com/a/utah.gov/forum/print/msg/dwmrcpublic/Oqq7-4lCKDQ/5mtlSB1LAQAJ?ctz=4008399_80_84_104220_80_446880 2/2 The blasted rock would increase fractures & jointing, or rock would become discontinuous,(or as the Exec VP of US Operations for the DUSA puts it.....the blasting would cause caverns to form, which would collapse over time, tearing the cell liners and the cell would leak, releasing contaminates into the ground water), but as stated by the VP, 8-7-09, not to worry, the blasted rock would be removed. The rock was not removed. Addressing the 'poor housekeeping': The regulators take the position of allowing the owners/engineers to determine what is reportable and what isn't based on the discretion of the owners/engineers. Why would Anything be reported if it might cost the owner time and money. Everyone's off the hook concerning the environment. The owners/engineers are essentially given permission of what to report, and the regulators can't act on what they don't know. Sure, sometimes there are fines, and some requirements imposed of the owner for some remediation. But, these permits should not be granted, and mill operations should be suspended until regulatory oversight is responsible enough to require emissions compliance, groundwater contaminate plume elimination, clean monitor well samples, a regulatory presence on the mill grounds full time, and Cell 4B is reconstructed in compliance with specifications. Having some experience in this industry, it is impossible for a facility such as this to go NOV free for nearly 4 years! Mark Kerr Uranium Watch P.O. Box 344 Moab, Utah 84532 435-26O-8384 July 31, 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 dwmrcpublic@utah.gov RE: Energy Fuels Resources (USA) Inc., White Mesa Mill, License No. UT 1900479. December 15, 2011, License Renewal. Dear Mr. Anderson: Below please ﬁnd comments on the licensing package associated with the operation of the White Mesa Uranium Mill, San Juan County, Utah. The Mill is owned and operated by Energy Fuels Resources (USA) Inc. (Energy Fuels, or Licensee) under Radioactive Material License No. UT 1900479 and Utah Ground Water Discharge Permit No. UGW370004. The comments are submitted to the Utah Division of Waste Management and Radiation Control (DWMRC, or Division). Any older reference to the Division of Radiation Control (DRC) means the DWMRC. Comments are submitted by Uranium Watch, Living Rivers, and the Utah Chapter of the Sierra Club. These comments incorporate by reference comments submitted by the Ute Mountain Ute Tribe and the December 21, 2011, comments submitted by Uranium Watch et al. The comments below will address 1) the Utah Division of Waste Management and Radiation Control (DWMRC) Radioactive Material License No. UT 1900479 and Utah Ground Water Discharge Permit No. UGW370004, “Technical Evaluation and Environmental Assessment” (DRC-2017-002761) 2) MILDOS-AREA Model (DRC-2017-002763), and 3) the Draft Renewal of Radioactive Materials License Number UT1900479, Amendment 8 DRC-2017-002764). 1. GENERAL COMMENTS 1.1. The Division should not have included the Reclamation Plan Rev. 5 and the License Amendment request to process Sequoyah Fuels Corporation waste at the White Mesa Mill in the License Renewal Process. These were 3 separate proposed licensing actions that should not have been included in one notice and comment opportunity, one hearing held at Blanding, Utah, and one hearing and opportunity for cross examination that was held in Salt Lake City. Combining 3 important but separate licensing actions in one process was onerous for the public and, most likely, for Division staff. It made it difﬁcult to focus the questions provided to the Division for the June 8, 2017, hearing in Salt Lake City. It will likely delay the review and ﬁnal decisions on these licensing actions. 1.2. The TEEA includes a list of references at the end. However, the list does not identify each record individually and does not provide links to all of the speciﬁc records. 1.3. Prior to the development of the TEEA, the Division should have conducted a scoping period to receive comments from the public on the scope of the environmental analysis of the White Mesa License Renewal and Groundwater Discharge Permit Renewal. The Division should also have provided an opportunity for the public to comment on the scope of the environmental analysis of the White Mesa Mill Reclamation Plan. Since the Division has not produced an environmental analysis on either the License Renewal, Groundwater Discharge Permit Renewal, or the Reclamation Plan, commenters request that the Division commence a scoping period for those analyses. 1.4. The draft renewed license references several documents that have been submitted by the Licensee over the years. Yet, those documents are not readily available on the Division’s webpage for the White Mesa Mill, nor are they available on the Department of Environmental Quality (DEQ) Electronic Document Management System (EDMS, or E-Z Records). Therefore, the commenters did not have an opportunity to review these documents as part of the comment period. 1.5. The draft renewed License uses various formats for license condition subsections that are referenced in other sections: for example, LC 11.3A, LC 11.3.A., LC 11.3.A, and 11.3(A). The License should have a single format for license condition subsections that are referenced in other sections of the License. 1.6. The License Renewal package included the Public Participation Summary for Comments Received between October and December 21, 2011. However, the Division did not make available the attached written and oral comments. Some, but not all, of the oral comments are available in the E-Z Records documents. Scott Anderson/DWMRC 2 July 31, 2017 1.7. The last renewal of the White Mesa Mill License was in 1997. That License was for a 10-year period, not a 20-plus year period. It will be over 10 years since the expiration of the license before the License is renewed. There is no excuse for the extensive delay in renewing the License. 2. TECHNICAL AND ENVIRONMENTAL ASSESSMENT 2.1. The Utah Division of Waste Management and Radiation Control (DWMRC) Radioactive Material License No. UT 1900479 and Utah Ground Water Discharge Permit No. UGW370004, “Technical Evaluation and Environmental Assessment,” White Mesa Uranium Mill; Energy Fuels Resources; May 2017, is 22 pages. Regarding the Purpose of the document, the Technical Evaluation and Environmental Assessment (TEEA) states: The purpose of this Technical Evaluation and Environmental Assessment (TEEA) is to supplement the Safety Evaluation Report (SER) that the former Utah Division of Radiation Control (DRC) released in October of 2011. The SER and the TEEA are to identify and summarize the information the Division of Waste Management and Radiation Control (formerly the DRC) evaluated in its review of Energy Fuels Resources, Inc. (formerly Denison Mines Corp.) (Licensee) White Mesa Mill’s February 2007 License Renewal Application (LRA) and the grounds upon which the Division of Waste Management and Radiation Control (DWMRC) staff concluded whether regulatory requirements are satisﬁed for the renewal of the Licensee’s radioactive materials license (RML). The TEEA references applicable regulations in the Utah Code Annotated and refers to federal regulations and Nuclear Regulatory Commission (NRC) Regulatory Guides. There is no mention of any provisions of the Atomic Energy Act (AEA) that are applicable to the proposed License Renewal and other licensing actions. The 22-page TEEA includes 1) a White Mesa Uranium Mill RML History, 2) TEEA Outline, 3) MILDOS Write-up and Analysis, 4) discussion of the Reclamation and Decommissioning Plan Rev. 5.1, 5) discussion of Sequoyah Fuels Alternate Feed Request (URS Review and Write-up), 6) Summary and Explanation of License Changes, 7) discussion of Groundwater Quality Discharge Permit (GWQDP) Renewal, 8) Environmental Analysis of the Proposed Licensing/Permitting Action, 9) Technical Evaluation of the Proposed Licensing/Permitting Action, 10) Conclusion, 11) list of references, and 12) list of attachments. The “Environmental Analysis” for the License Renewal is one paragraph: The DWMRC Staff conducted a review of the Licensee’s 2007 renewal application and the Licensee’s MILDOS-Area assessment of the estimated annual dose to an individual from the Mill operations at speciﬁc locations surrounding the property boundary of the Mill. The DWMRC also performed an independent MILDOS-AREA assessment for Mill Scott Anderson/DWMRC 3 July 31, 2017 operations. The MILDOS-AREA modeling includes the environmental sampling results. Environmental sampling results are reviewed semi- annually by Staff and are determined to be representative of Mill operations. The DWMRC has determined that the Licensee complies with all of the State of Utah and Federal regulatory requirements including dose limits to individuals from Mill operations. Therefore, the DWMRC staff has concluded that the Mill operates within acceptable environmental parameters. COMMENT 2.1.1. The TEEA discussion of the Reclamation and Decommissioning Plan Rev. 5.1 (pages 8 - 9) does not include an Environmental Analysis of the proposed Reclamation Plan Rev. 5.1. 2.1.2. The TEEA discussion of the Sequoyah Fuels Alternate Feed Request (URS Review and Write-up) does not include an Environmental Analysis of the proposed license amendment. However, the full URS Professional Solutions, LLC (URS) Review Sequoyah Fuels Alternate Feed Request is included in the License Renewal package and includes an analysis of the environmental impacts of the proposed license amendment. 2.1.3. In sum, the Environmental Analysis for the Renewal of the White Mesa Mill License is one paragraph, with no details regarding the impacts to the environment associated with the continued operation of the Mill. The TEEA does not contain any environmental analysis of the Reclamation and Decommissioning of the Mill. 2.2. The 2017 License Renewal documents included the “Public Participation Summary For Comments Received Between October 14 and December 21, 2011.” The Public Participation Summary responded to comments regarding the AEA and Environmental Analysis Requirements (Comment Topic #08, pages 14-15). Comment Topic #08 quotes from a February 22, 2017, letter to the DWMRC from the State of Utah’s Ofﬁce of the Attorney General regarding compliance with AEA by the State of Utah when conducting an independent environmental analysis ((DRC-2017-001282). That opinion was sent to Sarah Lopas, Ofﬁce Allegation Coordinator Ofﬁce of State and Tribal Programs, NRC, on March 2, 2017, by Scott Anderson, Director, DWMRC, in response to Uranium Watch’s January 26, 2017, letter, “Allegations Regarding Utah Agreement State Program and Division of Waste Management and Radiation Control Actions.” Uranium Watch responded to Mr. Anderson’s letter and the legal opinion on March 14, 2017. The Public Participation Summary quote from the legal opinion states that “there is also no language in the AEA or any other authority that requires an Agreement State to perform completely independent environmental analysis,” and that, “it is acceptable for an Agreement State to review and analyze environmental analysis submitted by a Licensee.” Scott Anderson/DWMRC 4 July 31, 2017 The Public Participation Summary (Comment Topic # 10: Environmental Assessment) pages 15-16) also states: The DWMRC is not required to create a stand-alone analysis of the environmental report. The DWMRC is well aware of the environmental analysis/report requirements of UAC R313-24-3 and the need to require compliance with these requirements. Here, EFRI provided an Environmental Report in Volume 4 of its 2007 License Renewal Application. The DWMRC provided its review of the Environmental Report in the October 2011 SER. This is all that is required by the AEA. The DWMRC has the ability to title its environmental analysis as they deem appropriate. Such titles may include but are not limited to: Technical Analysis, Statement of Basis, Safety Evaluation Report, Technical Assessment, or Environmental Assessment. The purpose of the report required by UAC R313-24-3 is to advise the public of the environmental issues of concern. The referenced UAC R313-24-3(3) requires that “The Director shall provide a written analysis of the environmental report which shall be available for public notice and comment pursuant to R313-17-2.” Rule R313-24-3(3) does not require a written environmental analysis, contrary to the requirements set out in Section 2021(o)(3)(C) of the AEA. COMMENT 2.2.1. The TEEA relies on the Utah Division of Radiation Control, October 2011, “Safety Evaluation Report For The Denison Mines White Mesa Mill 2007 License Renewal Application” (2011 SER). The October 2011 SER provides a limited review of the 2007 White Mesa Licensee's Environmental Report. The 2011 SER did not claim to be an analysis of the environmental impacts of the proposed licensing action, pursuant to the requirements of the AEA or Utah Regulations implementing those AEA requirements. As stated in the 2011 SER, its purpose was to identify and summarize the information the DWMRC evaluated in its review of February 2007 License Renewal Application and the grounds upon which the DRC staff concluded whether regulatory requirements are satisﬁed. 2.2.2. The October 2011 SER and the 2007 Licensee Environmental Report are out of date. There is new information regarding the operation of the Mill and the impacts to the environment from the Mill operation. The TEEA does not provide an update on the environmental impacts of the White Mesa Mill operation over the past decade. For example, there are no analyzes of the impacts from spills of material being to shipped to the Mill for direct disposal or processing. Such spills have occurred recently. There is no analysis of the impacts from the disposal of wastes from the processing of wastes from other mineral processing operations since 2007 and other changes in the Mill operation. Scott Anderson/DWMRC 5 July 31, 2017 2.2.3. The TEEA references the 2017 SER, developed by a DWMRC contractor, which assesses the environmental impacts associated with the Amendment Request to process 11e.(2) byproduct material from Sequoyah Fuels Corporation. That SER contradicts the DWMRC’s claim that the Director only needs to provide a written analysis of the Licensee’s environmental report in order to fulﬁll the requirements for an environmental analysis at 42 U.S.C. § 2021(o)(3)(C). The SER for the License Amendment for the processing of the Sequoyah Fuels material states: In accordance with UAC R313-22-38 and R313-24-3, this SER has been prepared to: 1. Assess the radiological and non-radiological impacts to the public health. 2. Assess any impact on waterways and groundwater. 3. Consider alternatives, including alternative sites and engineering methods. 4. Consider long-term impacts including decommissioning, decontamination, and reclamation impacts. 5. Present information and analysis for supporting UDRC ﬁndings and conclusions with respect to approval of the proposed license amendment. As discussed in the January 26, 2017, Uranium Watch Allegation, the provisions in R313-24-3 do not meet the AEA requirements for Agreement State statutory and/or regulatory requirements for an Agreement State environmental analysis of a proposed licensing action. 2.2.4. The Division claims that the Environmental Analysis required under the AEA can have other titles, as developed by the Division. However, that is confusing. It is confusing to combine the environmental analysis with a technical analysis or to call an Environmental Analysis a “Technical Analysis” or other name. The Environmental Analysis falls under speciﬁc federal statutory requirements and should be identiﬁed as the document that fulﬁlls those requirements. The Environmental Analysis must also include all of the required analyses and additional pertinent analyses of the impacts of the proposed licensing action. 2.3. Atomic Energy Act Requirements 2.3.1. The relevant section in the AEA that applies to NRC Agreement States, as codiﬁed in statute at 42 U.S.C. § 2021(o)(3), states: (o) State compliance requirements: compliance with section 2113(b) of this title and health and environmental protection standards; procedures for licenses, rulemaking, and license impact analysis; amendment of Scott Anderson/DWMRC 6 July 31, 2017 agreements for transfer of State collected funds; proceedings duplication restriction; alternative requirements *** (3) procedures which— (A) in the case of licenses, provide procedures under State law which include— (i) an opportunity, after public notice, for written comments and a public hearing, with a transcript, (ii) an opportunity for cross examination, and (iii) a written determination which is based upon ﬁndings included in such determination and upon the evidence presented during the public comment period and which is subject to judicial review; *** (C) require for each license which has a signiﬁcant impact on the human environment a written analysis (which shall be available to the public before the commencement of any such proceedings) of the impact of such license, including any activities conducted pursuant thereto, on the environment, which analysis shall include— (i) an assessment of the radiological and nonradiological impacts to the public health of the activities to be conducted pursuant to such license; (ii) an assessment of any impact on any waterway and groundwater resulting from such activities; (iii) consideration of alternatives, including alternative sites and engineering methods, to the activities to be conducted pursuant to such license; and (iv) consideration of the long-term impacts, including decommissioning, decontamination, and reclamation impacts, associated with activities to be conducted pursuant to such license, including the management of any byproduct material, as deﬁned by section 2014 (e)(2) of this title; and (D) prohibit any major construction activity with respect to such material prior to complying with the provisions of subparagraph (C). [Emphasis added.] 2.4. The TEEA and the requirements of 42 U.S.C. § 2021(o)(3)(C). COMMENT 2.4.1. The TEEA does not fulﬁll the requirements of the 42 U.S.C. § 2021(o)(3)(C) for an environmental analysis of the Renewal of the White Mesa Mill Materials License. Scott Anderson/DWMRC 7 July 31, 2017 The TEEA did not 1) assess all of the radiological and nonradiological impacts to the public health of the activities to be conducted pursuant to such license; 2) assess the impacts on any surface water and groundwater resulting from such activities; 3) consider alternatives, including alternative sites and engineering methods, to the activities to be conducted pursuant to such license; or 4) consider the long-term impacts, including decommissioning, decontamination, and reclamation impacts, associated with activities to be conducted pursuant to such license, including the management of any byproduct material, as deﬁned by section 2014(e) (2) of the AEA. 2.4.2. The TEEA, including the MILDOS-AREA evaluation, does not provide a full “assessment of the radiological and nonradiological impacts to the public health of the activities to be conducted pursuant to such license.” There is no analysis of how the Mill will “use, to the extent practical, procedures and engineering controls based upon sound radiation protection principles to achieve occupational doses and doses to members of the public that are as low as is reasonably achievable (ALARA), as required by Utah Rule R313-15-101(4) and 10 C.F.R. § 20.1101. 2.4.3. The TEEA does not provide an assessment of impacts on surface water or groundwater resulting from the operation of the Mill or consideration of alternatives. The TEER, even though the License Renewal Packet included the Reclamation Plan for the Mill, fails to consider “the long-term impacts, including decommissioning, decontamination, and reclamation impacts, associated with activities to be conducted pursuant to such license, including the management of any byproduct material.” Nor does the TEEA provide an assessment of other environmental impacts. The AEA Section 2021(o) (C)(3) requirements for an environmental analysis were not meant to limit that analysis to the requirements in Section 2021(o)(C)(3)(i) - (iv). 2.4.4. The TEEA references the information in the 2011 SER. The 2011 SER was developed about 5 years after the 2007 License Renewal Application was submitted to the Division. Not only was the 2011 SER not an analysis of the environmental impacts of the License Renewal, but it relied on an outdated application, data, and information. 2.4.5. The TEEA’s 1-paragraph Environmental Analysis of the License Renewal and other TEEA sections and the 2011 SER do not meet the AEA requirements for an environmental analysis of the License Renewal. 2.4.6. The DWMRC did not develop an environmental analysis for the 2017 White Mesa Mill Reclamation Plan Rev. 5.1, as required by 42 U.S.C. Section 2021(o)(C)(3). The DWMRC Staff concluded that the Mill met all technical requirements with respect the Reclamation Plan. However, the TEEA does not provide 1) an assessment of the radiological and nonradiological impacts to the public health associated with the Reclamation Plan, 2) an assessment of impact to the groundwater as a result of decommissioning and reclamation, 3) consideration of decommissioning and reclamation engineering alternatives; and 4) consideration of the long-term impacts, including decommissioning, decontamination, and reclamation impacts. Nor does it provide an Scott Anderson/DWMRC 8 July 31, 2017 assessment of other environmental impacts associated with the reclamation and long-term presence of uranium mill tailings at White Mesa. The AEA Section 2021(o)(C)(3) requirements for an environmental analysis were not meant to limit that analysis to the requirements in Section 2021(o)(C)(3)(i) - (iv). 2.5. TEEA - MILDOS Write-up The TEEA contains a discussion of the MILDOS-AREA Model Report calculations and compliance with federal radiological emission standards. COMMENT 2.5.1. The TEEA (page 3) states, “In estimating doses from uranium recovery facilities, MILDOS Report calculates doses from the radionuclides of the uranium-238 (U-238) decay chain.” However, there is no mention of the dose from the thorium-232 decay chain. The Mill has received, stored, processed, and disposed of material containing thorium-232 and thorium-232 progeny. The mill owner proposes to receive, store, and process additional materials containing thorium-232 and thorium-232 progeny. Yet, there is no mention of how the radiological emissions from thorium-232 and thorium-232 progeny have been calculated and incorporated in the estimates of exposure to nearest receptors. Therefore, any calculation of the estimated radiation releases from the Mill must include an estimate of the radionuclide releases from thorium-232 and thorium-232 progeny, and technical justiﬁcation for those estimates. 2.5.2. The discussion of the MILDOS-AREA Model does not provide any information regarding the assessment of the radionuclide emissions from liquid efﬂuents at the Mill—Cells 1, 3, 4A, and 4B. Both the Environmental Protection Agency (EPA)1 and Energy Fuels have determined that the radon releases from liquid efﬂuents at the Mill are not zero. Therefore, any calculation of the estimated radiation releases from the Mill must include an estimate of the radionuclide release from liquid efﬂuents, and technical justiﬁcation for those estimates. 2.5.3. It is unclear if the MILDOS-AREA Model includes radionuclide releases from in situ leach (ISL) facility waste that is disposed of in Cell 3. That information should be provided by the DWMRC. 2.5.4. There is little information regarding the total amount of “Alternate Feed” that has been received and processed from each speciﬁc source of feed. The Division should provide information on how they calculated the total amount of material received and the radiological content of the wastes from those materials after processing. A gross Scott Anderson/DWMRC 9 July 31, 2017 1 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 estimate of the “Alternate Feed” does not provide sufﬁcient information regarding each particular feed source. 2.5.5. The TEEA (pages 5 and 6) states: “The ﬁrst of these requirements is in R313-15-101(4) of the Rules. This requirement states that there is a constraint on air emissions of radioactive material to the environment, excluding radon and its decay products, such that an individual member of the public will not be expected to receive a TEDE in excess of 100 mrem in a calendar year from the Licensee's operations.” The requirements in R313-15-101(4) are found in 10 C.F.R. Part 20, § 20.1101, which states, at (d): “Excluding Radon-222 and its daughters, the individual member of the public likely to receive the highest dose will not be expected to receive a total effective dose equivalent in excess of 10 mrem (0.1 mSv) per year from these emissions.” (Emphasis added.) Therefore, the total effective dose equivalent limit (excluding radon) is 10 mrem per year, not 100 mrem. This should be corrected. 2.5.6. The MILDOS-AREA discussion should address other regulatory stipulations, including 10 C.F.R. § 20.1101(b) and (c): Section 20.1101 Radiation protection programs *** (b) "The Licensee shall use, to the extent practical, procedures and engineering controls based upon sound radiation protection principles to achieve occupational doses and doses to members of the public that are as low as is reasonably achievable (ALARA)." (c)"The Licensee shall periodically (at least annually) review the radiation protection program content and implementation." The TEEA should describe and evaluate how, exactly, the Licensee is complying with the requirement to “use, to the extent practical, procedures and engineering controls based upon sound radiation protection principles to achieve occupational doses and doses to members of the public that are as low as is reasonably achievable (ALARA).” The TEEA should also discuss the Licensee’s annual reviews of the radiation protection program content and implementation since 2007. 2.5.7. The MILDOS Model calculations are from 2007 to 2014. That means that data from 2014 to 2017 have not been included. The TEEA should explain how the data from 2014 to 2017 affects the offsite doses to the public. 2.5.8. The TEEA should have, but did not, provide data and information on the actual radiological and non-radiological emissions from each source at the Mill, based on data and information provided to the Division since 1997. The TEEA should provide information on each possible source of emissions, whether or not those emissions are monitored or measured during Mill operation. Scott Anderson/DWMRC 10 July 31, 2017 2.5.9. The TEEA should have included, but did not, an assessment of the “radiological and nonradiological impacts to the public health of the activities to be conducted pursuant to such license,” as required under the AEA. 2.6. Reclamation and Decommissioning Plan Rev. 5. The TEEA includes less than a single page discussion of the Reclamation and Decommissioning Plan Rev. 5. COMMENT 2.6.1. As discussed above, the TEEA does not provide an analysis of the environmental impacts of the Reclamation Plan Rev. 5 or other aspects of the Reclamation Plan. There is no description of, or technical analysis of, the Plan, except for the mention of a test sections on the radon cover for Cell 2 and a February 23, 2017 Stipulation and Consent Agreement for implementation of the Plan. 2.6.2. The TEEA fails to mention of the requirement for the establishment of milestones for completion of the ﬁnal radon barrier, a portion of the radon barrier, and other actions that lead to the reclamation, such as, completion of groundwater corrective actions, clean up of windblown tailings, dewatering of tailings cells, completion of interim covers or related cover plans. Enforceable reclamation milestones are required under NRC and EPA regulations and should be considered in the TEEA. 2.7. Environmental Analysis of the Proposed Licensing/Permitting Action. COMMENT 2.7.1. Environmental Analysis of the Proposed Licensing/Permitting Action is one short paragraph that references the Division’s MILDOS-AREA analysis. The Environmental Analysis states that “The DWMRC has determined that the licensee complies with all of the State of Utah and Federal regulatory requirements including dose limits to individuals from Mill operations;” and that, “therefore, the DWMRC staff has concluded that the Mill operates within acceptable environmental parameters.” The brief paragraph and referenced MILDOS-AREA analysis do not fulﬁll the AEA requirements for an Environmental Analysis of the License Renewal, Ground Water Discharge Permit Renewal, and Reclamation Plan Rev. 5. Those requirements are set forth in Section 2.3, above. 2.7.2. The Environmental Analysis fails to deﬁne the scope of the analysis. 2.7.3. The Division must provide a scoping period for the public to comment on the scope of the environmental analyses for the License Renewal and Reclamation Plan that are required under the AEA. Scott Anderson/DWMRC 11 July 31, 2017 3. MILDOS-AREA MODEL (DRC-2017-002763) COMMENT 3.1. A title page is not included in the MILDOS-AREA Model document (Attachment A) provided by the Division. The MILDOS Model document should have a title page, including the authors of the documents. 3.2. The MILDOS Model document should have included data through 2016, rather than stopping at 2014. 3.3. The MILDOS Model fails to mention the receipt and disposal of waste from in situ leach (ISL) processing facilities. The receipt and disposal of the wastes contribute to the radionuclide emissions at the Mill. Recently, there have been spills of this material at the Mill and near the Mill. 3.4. It is helpful to the public for the Division and contractors to the Division to use regular numbers, rather than notation, to express various levels of radioactivity and other technical parameters. The Division should try to make tables of information more accessible to the public understanding. In the future, the Division should use common numbers, not the “E” notation, when expressing pico Curies (pCi), wind speed, release rates, amounts of radionuclides or other chemical constituents, or any other type of measurement. The tables should be easy to read and understand. 3.5. The MILDOS Model does not include emissions and doses from the thorium-232 decay chain. The Mill has stored and processed and disposed of material containing thorium-232 and thorium-232 progeny. The mill owner proposes to receive, store, and process additional materials containing thorium-232 and thorium-232 progeny. Yet, there is no mention of how the radiological emissions from thorium-232 and thorium-232 progeny have been calculated and incorporated in the estimates of exposure to nearest receptors. Therefore, any calculation of the estimated radiation releases from the Mill must include an estimate of the radionuclide releases from thorium-232 and thorium-232 progeny, and technical justiﬁcation for those estimates. 3.6. The MILDOS Model does not provide a reference to, or link to, the documents that provided the data for this report. Citations and links to the data and information that was used in the MILDOS Model should have been included. 3.7. The MILDOS Model does not include radionuclide releases from ISL waste that is disposed of in Cell 3. That data should have been included in the Model. 3.8. The MILDOS Model does not include a discussion of the emissions from contaminated soils, broken sacks of “Alternate Feed,” windblown dust, and other visible and not-so-visible emissions. That data should have been included in the Model. Scott Anderson/DWMRC 12 July 31, 2017 3.9. The discussion in the MILDOS Model should, but does not, include data and information about the emissions of radon from the tailings cells, as measured and reported to the EPA and the Utah Division of Air Quality, pursuant to 40 C.F.R. Part 61 Subpart W. The Model should include all data on all of the emissions from all sources that are measured over time. 3.10. The MILDOS Model does not include any information regarding the assessment of the radionuclide emissions from liquid efﬂuents at the Mill—Cells 1, 3, 4A, and 4B. As discussed above at Section 2.5.2, the radon releases from liquid efﬂuents at the Mill are not zero. Therefore, any calculation of the estimated radiation releases from the Mill must include an estimate of the radionuclide release from liquid efﬂuents, and technical justiﬁcation for those estimates. 4. DRAFT RADIOACTIVE MATERIALS LICENSE — RENEWAL 4.1. The Proposed License Condition 9.4.B. states: The licensee shall ﬁle an application for an amendment to the license, unless the following conditions are satisﬁed. *** (3) The change, test, or experiment is consistent with the conclusions of actions analyzed and selected in the Nuclear Regulatory Commission (NRC) Environmental Assessment dated February 1997. COMMENT 4.1.1. This condition references conclusions of actions analyzed and selected in the 1997 Environmental Assessment (EA)—20-year old assessment of the environmental impacts of the operation of the White Mesa Mill. The 1997 EA is 110 pages of information that is incomplete and out-of-date. This document should have been updated by the Division in an environmental analysis, pursuant to the requirements of the AEA (42 U.S.C. § 2021(o)(3)(C)). 4.1.2. The License Condition that states the License must submit a license amendment, unless (among other things) the change, test, or experiment is “consistent with the conclusions of actions analyzed and selected” by the NRC in the 1997 EA is vague. The term “consistent with” is not deﬁned. The “conclusions of actions analyzed and selected” by the NRC in the 1997 EA have not been fully identiﬁed. The 1997 EA contains a section entitled “Conclusion Including Environmental License Conditions.” Some of these conditions are part of the current and proposed License. The renewed License should not rely on a 20-year-old assessment and conclusions. The Division should completely update the 1997 EA, provide an opportunity to comment on the scope of the new environmental analysis of the renewed operation of the Mill (including Scott Anderson/DWMRC 13 July 31, 2017 cumulative impacts), and provide an opportunity for public comment on that document and the development of new “conclusions” and new license conditions, if warranted. 4.1.3. The References provided in the 1997 EA are out of date. The White Mesa Mill documents have been updated and the NRC Regulatory Guides have been revised: • "Design, Construction and Inspection of Embankment Retention Systems for Uranium Mills," NRC Regulatory Guide 3.11, December 1977, was revised in 2008.2 • "Operational Inspection and Surveillance of Embankment Retention Systems for Uranium Mill Tailings," NRC Regulatory Guide 3.11.1, October 1980, was withdrawn, and any revisions incorporated into the 2008 Regulatory Guide 3.11. • “Radiological Efﬂuent and Environmental Monitoring at Uranium Mills, Regulatory Guide 4.14, April 1980, was last revised in 2014.3 • "Quality Assurance for Radiological Monitoring Programs (Normal Operations) Efﬂuent Streams and the Environment," NRC Regulatory Guide 4.15, February 1979, was revised in 2007.4 • "Bioassays at Uranium Mills," NRC Regulatory Guide 8.22, Rev. 1, August 1988, was revised in 2014.5 The Division should not reference a 20-year old NRC EA that references and was based on even older NRC Regulatory Guidances, which have been revised and updated within the last 10 years. !4.1.4. The 1997 EA contains information that is incomplete and outdated; for example: 1) the processing of feed material other than “ore;” 2) the disposal of waste from in-situ leach uranium recovery operations; 3) spills of material shipped to and from the Mill; 4) changes in the mill operation since 1997; 5) groundwater impacts; 6) issues and concerns that have arisen since 1997; 7) new tailings Cells 4A and 4B; 8) cultural resource impacts since 1997; 9) cumulative air quality impacts; 10) compliance with NRC, Division of Waste Management and Radiation Control, Mine Safety and Health Administration, EPA, and Utah Division of Air Quality regulations; 11) off-site dispersal of contaminants; 12) quality of construction of Cells 1, 2, and 3; 12) impacts from the dewatering of Cell 2; 13) closure and partial reclamation of Cell 2; 14) impacts to seeps and springs; 15) efﬂuent monitoring data; 16) Groundwater Discharge Permit requirements and data; 17) sources and use of water; 18) worker and community impacts; 19) impacts of ﬂuctuations in Mill workers, pay, beneﬁts, hours of work, etc.; 19) impacts to local minority and low income residents; 20) long-term impacts; and 21) other impacts (including historical and cumulative impacts) of the Mill. These environmental impact Scott Anderson/DWMRC 14 July 31, 2017 2 https://www.nrc.gov/docs/ML0823/ML082380144.pdf 3 https://www.nrc.gov/docs/ML1707/ML17075A491.pdf 4 https://www.nrc.gov/docs/ML0717/ML071790506.pdf 5 https://www.nrc.gov/docs/ML1335/ML13350A638.pdf and other information should have been updated and included in a new Environmental Analysis for the Mill. 4.2. License Condition 9.4.D. License Condition 9.4.D. states: The licensee’s SERP shall function in accordance with the most version of the standard operating procedures submitted by letter to the Director NRC dated February 27, 2007. COMMENT 4.2.1. The words “in accordance with the most version of the standard operating procedures” needs a word to indicate which version the License Condition is referred to. It probably should read: “in accordance with the most recent version of the standard operating procedures.” 4.3. License Condition 9.7. License Condition 9.7 states: “As per the Memorandum of Agreement (MOA) negotiated by the Utah State Historic Preservation Ofﬁcer (SHPO), the Advisory Council on Historic Preservation (ACHP), the NRC and Energy Fuels Nuclear Inc. (EFN) and ratiﬁed on August 20, 1979 and as amended on May 3, 1983 and substantially as implemented in NRC License SUA-1358.:” COMMENT 4.3.1. The referenced MOA is not readily available on the Division website for White Mesa Mill, or in the White Mesa Licensing documents accessioned to the DEQ EDMS. It is important for the public and the Division staff to have documents that are referenced in the Mill’s License are readily available, since they are part of the License. Any document referenced in the License should be posted on the webpage for the White Mesa Mill. 4.3.2. The 1979 MO, as amended on May 3, 1983, is out of date and should be revised and updated. 4.4. License Condition 9.7 (continued). License Condition 9.7 also states: The licensee shall avoid by project design, where feasible, the archaeological sites designated “contributing” in the report submitted by letter to the NRC dated July 28, 1988. When it is not feasible to avoid a site designated “contributing” in the report, the licensee shall institute a data recovery program for that site based on the research design submitted by letter from C. E. Baker of Energy Fuels Nuclear to Mr. Melvin T. Smith, Utah State Historic Preservation Ofﬁcer (SHPO), dated April 13, 1981. Scott Anderson/DWMRC 15 July 31, 2017 COMMENT 4.4.1. The list of archaeological sites dated July 28, 1988, is incomplete, inaccurate, and outdated. None of the sites on the Bureau of Land Management (BLM) land transferred to Energy Fuels Nuclear (EFN, the original Licensee) are listed. Several sites that have not been excavated are listed as "excavated," and a site that was excavated is listed as a site "to be excavated." There is conﬂicting information regarding which sites are "contributing" and which are "undetermined." The April 13, research design is also outdated. These documents should be reviewed by Energy Fuels and the Division and updated. The Licensee should be required to submit a new research design for any White Mesa Mill activities associated with the destruction of archaeological sites and cultural resources on and adjacent to the Mill site. 4.5. License Condition 10.1. License Condition 10.1, at subsections A and B, states: A. The licensee may not dispose of any material on site that is not “byproduct material,” as that term is deﬁned in 42 U.S.C. Section 2014(e) (2) (Atomic Energy Act of 1954, Section 11(e)(2) as amended). B.The licensee may not receive or process any alternate feed material without ﬁrst applying for and obtaining approval of a license amendment. For any such proposal, the licensee shall demonstrate that it will comply with Condition 10.1(B). Any such demonstration shall include: COMMENT 4.5.1. Subsection A should read: “The licensee may not dispose of any material on site that is not “byproduct material,” as that term is deﬁned in 42 U.S.C. Section 2014e(e)(2) (Atomic Energy Act of 1954, Section 11e.(2), as amended).” 4.5.2. Subsection B contradicts requirements in Subsection A, and should be deleted from the License, based on the information provided herein in Exhibit A. 4.6. License Condition 10.8. The proposed License Condition 10.6 would authorize the receipt and processing of 11e.(2) byproduct material from the Sequoyah Fuels Corporation Facility, Gore, Oklahoma. COMMENT 4.6.1. For reasons outlined in Exhibit A, hereto, and comments on the proposed License Amendment to process the SFC 11e.(2) byproduct material submitted in a separate comment submittal, the Division should not authorize the processing of the SFC Material. Scott Anderson/DWMRC 16 July 31, 2017 4.7. License Condition 10.19. License Condition 10.19 authorizes the receipt and processing of materials from the FMRI Muskogee Facility, Muskogee, Oklahoma. COMMENT 4.7.1. The FMRI material is shipped to the Mill in large sacks. There have been problems with the sacks breaking due to exposure to sunlight and other impacts during extended periods of storage at the Mill. License Conditions 10.8 (proposed) authorizes the receipt of materials that arrive at the Mill in large sacks, sometimes referred to as “Super-Saks.” The proposed License Condition 10.8 provides speciﬁc provisions that apply to off-loading and on-site storage of the the sacks to prevent damage, control any damage, and provide shielding from radioactive emissions. The Division should amend License Condition 10.19 to require similar handling of the FMRI sacks and protection from radioactive emissions and particulate dispersion during handling and storage. 4.8. License Condition 11.2. License Condition 11.2 requires the implementation of an efﬂuent and environmental monitoring program. COMMENT 4.8.1. The efﬂuent monitoring program should include the measurement of the radium content of the liquid efﬂuents in Cells 1, 3, 4A, and 4B in order to determine the radon emissions from the radium-bearing liquid efﬂuents. The EPA has determined that the radon emissions from liquid efﬂuents at conventional mills are not zero, as previously claimed. The EPA developed a formula for determining the radon emissions, based on the radium content and local meteorological conditions.6 Energy Fuels did not agree with the EPA formula and conclusions based on the formula or data submitted to the Division on the gross alpha content of the efﬂuents as a means to determine radium content of the liquid efﬂuents. However, Energy Fuels found that the radon emissions from the efﬂuents were not zero, based on single radium sampling events and an adjusted formula. Since the radium content ﬂuctuates during the year, the Licensee and Division should develop a monitoring plan to obtain base-line information on the radium content of the liquid efﬂuents over a few years (during various operational and meteorological conditions) and agree on a formula for determining the radon emissions over time. The Licensee should be required to determine the radon emissions from the liquid efﬂuents throughout the year, and report the ﬁndings to the Division. 4.8.2. By letter of July 23, 2014, regarding Request to Cease Monthly Radon Flux Sampling Tailings Cell 2, Radioactive Material License Number UT 1900479, the Division ordered Energy Fuels to monitor the radon emissions from Cell 2 and report the Scott Anderson/DWMRC 17 July 31, 2017 6 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 results twice a year in the Semi-Annual Efﬂuent Report (DRC-2014-004489). It is Uranium Watch’s understanding that the monitoring will continue until the ﬁnal radon barrier is placed on Cell 2. The requirements to monitor and report the Cell 2 radon ﬂux and take corrective actions is the radon emissions are over 20 pCi/m2-sec should be included in the License. 4.8.3. The Division should also require the Licensee to monitor and report the radon ﬂux from the surface of solid tailings on Cells 4A, 4B, and any other “new” tailings impoundments at the Mill. The EPA regulations applicable to the radon emissions from operating uranium mills (40 C.F.R. Part 61 Subpart W) do not require the monitoring and reporting of the radon emissions from Cells 4A and 4B and any other tailings impoundments constructed after December 15, 1989.7 The EPA relies, instead on a design and work practice standard, rather than a numerical emission standard, to control the emissions from “new” impoundments. Subpart W limits the size of the impoundments to 40 acres. However, the radon emissions from the dry tailings will remain unknown, and there will be no requirement to take mitigative measures if the emissions exceed 20 pCi/m2-sec, as they have in the past at the White Mesa Mill. The EPA did not take into consideration 1) the cumulative impacts of radon emissions from several tailings impoundments at an operating mill; 2) the emission of radon from the decay of the radium isotopes from the decay of thorium-232, which is present in the Mill tailings; 3) the presence of tailings from the processing of materials other than natural ore that contain higher levels of radium from both uranium and thorium-232 decay; and 4) the disposal of 11e.(2) byproduct from in-situ leach operations and other sources. As was demonstrated by the history of Cell 2, the monitoring of the radon is necessary to keep the radon emissions as low as reasonably achievable. The monitoring alerts the Licensee and the Division that the radon emissions have increased; for example, due to the he dewatering of the tailings or uneven placement of tailings with higher levels of radium. If the radon emissions increase, clean material that is placed on the impoundment reduces the radon emissions. Monitoring of various sections of the tailings provides information regarding which areas of the tailings cell needs clean material, the effectiveness of the placement of clean material, and any major changes in the Mill operation. Cells 4A and 4B are the only “new” tailings impoundments in the United Scott Anderson/DWMRC 18 July 31, 2017 7 40 C.F.R. Part 61 Subpart W. https://www.ecfr.gov/cgi-bin/text-idx?node=sp40.9.61.w States that are subject to the 40 C.F.R. § 261.252(a)(2) standard.8 Therefore, neither the EPA, the Utah Division of Air Quality (which administers and enforces that standard in Utah, nor the DWMRC know if the design and work practice standard for “new” impoundments will signiﬁcantly reduce the radon emissions, as compared to the emissions from earlier impoundments (Cells 2 and 3 at the Mill). Therefore, the monitoring of Cells 4A and 4B, pursuant to the requirements of 40 C.F.R. § 61.252.(a)(1) and 61.253, would provide important data on the effectiveness of the standard for “new” impoundments. Requiring the monitoring, reporting of the radon emissions from the “new” impoundments and mitigative measures is an important measure to be taken to protect the health of the public and the workers at the Mill and assure that the radon emissions from “new” tailings impoundments are kept as low as reasonably achievable, as required by NRC and Utah regulation. 4.9. License Condition 11.4. License Condition 11.4. applies to the annual collection of data for air emissions from the Mill. COMMENT 4.9.1. The air sampling is only required annually. There is no indication that annual sampling will provide data that is representative of the Mill emissions and operation over the sample year. The sampling should occur more frequently. Continuous air sampling should be required. 4.9.2. License Condition 11.4. only requires that the Licensee analyze the mill feed or production product for U-nat, Th-230, Ra-226, and Pb-210 and use the analysis results to assess the fundamental constituent composition of air sample particulates. However, the feed material also contains thorium-232, thorium-228, radium-228, and radium-224. Therefore, the Licensee should also be required to analyze the Mill feed and production product for these elements and use the analysis results to assess the fundamental constituent composition of air sample particulates. Scott Anderson/DWMRC 19 July 31, 2017 8 (a) Each owner or operator of a conventional impoundment shall comply with the following requirements: ••• (2) After December 15, 1989, no new conventional impoundment may be built unless it is designed, constructed and operated to meet one of the two following management practices: (i) Phased disposal in lined impoundments that are no more than 40 acres in area and comply with the requirements of 40 CFR 192.32(a)(1). The owner or operator shall have no more than two conventional impoundments, including existing conventional impoundments, in operation at any one time. (ii) Continuous disposal such that uranium byproduct material or tailings are dewatered and immediately disposed with no more than 10 acres uncovered at any time and shall comply with the requirements of 40 CFR 192.32(a)(1). 4.10. License Condition 13.1.AA and Reclamation Plan Revision 5.1. License Condition 13.1 lists various Licensee submittals that the Licensee must comply with: “Except as speciﬁcally provided otherwise by this license, the licensee shall conduct operations in accordance with the statements, representations, and procedures contained in the documents, including any enclosures, listed below.” License Condition 13.1.AA lists: “White Mesa Uranium Mill Reclamation and Decommissioning Plan Rev 5.1, from Energy Fuels dated August 10, 2016 and February 23, 2017 to UDWMRC.” COMMENT 4.10.1. The Renewed License should have a speciﬁc Section and License Condition for the Reclamation Plans, not just a reference at the end of a list of other Licensee submittals. If the Division approves Reclamation Plan Rev. 5.1. there should be a separate License Condition that reﬂects that submittal and any other submittals (such as the 2017 “Stipulated Consent Agreement”)that should be referenced in a License Condition set aside for Reclamation Plans incorporated into the License. 4.10.2. The draft License does not include any reclamation milestones associated with the reclamation Plan, speciﬁcally milestones for the closure of Cell 2. Enforceable reclamation milestones are required under EPA9 and NRC10 regulations applicable to operational uranium mills. Milestones include dates for the placement of the interim cover, dewatering, cleanup of windblown tailings and other on-site and off-site contamination, and placement of the ﬁnal radon barrier. The Licensee is in the process of dewatering Cell 2, placing an interim radon barrier, and other closure activities. Yet, the draft License and TEEA makes no mention of the need for the establishment of reclamation milestones. 4.10.3. Reclamation Plan Rev. 5.1, regarding the establishment of reclamation milestones for the reclamation of Cell 2—the only Mill tailings impoundment undergoing closure—at Section 6.22 Deadlines and Interim Milestones for Closure of Cell 2 (page 6-3), states: The deadlines and interim milestones for closure of Cell 2 will be set out in the SCA. The requirements set out in the SCA, when ﬁnalized, will be incorporated by reference into this Plan as if set out in this Plan. The signed “Stipulated Consent Agreement” (SCA) was submitted to the DWMRC by Energy Fuels on February 20, 2017. The SCA includes a proposed reclamation milestones for Cell 2 under Phase 1 Cover Construction in the “Agreement,” page 3: Scott Anderson/DWMRC 20 July 31, 2017 9 40 C.F.R. Part 192, Section 192.32(a)(3). 10 10 C.F.R. Part 40 Appendix A, Criterion 6A(1) Cell 2 Phase 1 cover placement commenced in April 2016, and will be completed on or before August 31, 2017, or such later date as may be approved by the Director. Other pertinent reclamation milestones are indicated, but without any dates certain. The milestone for the completion of the Cell 2 Phase 1 cover should be incorporated into the License as a license condition. If the the August 31, 2017, date is not feasible, then it is the responsibility of the Licensee to notify the DWMRC and request an extension of the milestone. It is however, unclear if the SCA is a License Amendment request, or the Licensee must submit a separate request for the establishment of the milestones for Cell 2 outlined in the SCA. 4.10.4. The License must submit license amendment requests for the establishment of any reclamation milestone and any extensions on established reclamation milestones. The Division cannot establish or amend a reclamation milestone, only approve a proposed milestone. Further, the Division is required by the EPA to publish a notice and request public comment on any licensee request for, or amendment to, a reclamation milestone and publish a notice and request public comment on the Divisions proposed approval of a reclamation milestone or amendment to established milestone.11 In this instance, the Division did not notice the Licensee’s proposed milestone for completion of Cell 2 Phase 1 cover. The Licensee should have submitted a separate amendment request for approval of a the milestone for completion of Cell 2 Phase I Cover. Division should have issued a separate notice and opportunity to comment on the establishment of the milestone, rather than hiding the proposed milestone within Reclamation Plan Rev. 5.1 and the SCA. 4.10.5. The Division should incorporate time frames for other submittals indicated in the SCA within another Reclamation Plan license conditions, but not as reclamation milestones until a date certain has been proposed by the Licensee and approved by the Division. 4.11. License Condition 4. Expiration Date. License Condition 4 sets an expiration date (to be adjusted) that would be 10 years from the date of the ﬁnal approval of the Renewed Scott Anderson/DWMRC 21 July 31, 2017 11 “EPA expects the NRC and Agreement States to act consistently with their commitment in the MOU and provide for public notice and comment on proposals or requests to (1) incorporate radon tailings closure plans or other schedules for effecting emplacement of a permanent radon barrier into licenses and (2) amend the radon tailings closure schedules as necessary or appropriate for reasons of technological feasibility (including factors beyond the control of the licensees). Under the terms of the MOU, NRC should do so with notice timely published in the Federal Register. In addition, consistent with the MOU, members of the public may request NRC action on these matters pursuant to 10 CFR 2.206. EPA also expects the Agreement States to provide comparable opportunities for public participation pursuant to their existing authorities and procedures.” 59 Fed. Reg. 36280, 36285, column 3. https://www.epa.gov/sites/production/ﬁles/2015-08/documents/subpartt1994.pdf License. COMMENT 4.11.1. The proposed License Expiration Date means, given past history, that the renewed license would be good for approximately another 20 years, not 10. Therefore, the Division must consider 1) limiting the License extension to 5 to 7 years or 2) requiring that the License submit the License Renewal application at least 1 year before the License expires. Is is very troubling that it should take over 10 years for a License Renewal application to be approved by the DWMRC. 4.12. Other COMMENT 4.12.1. The Division should make all of the documents referenced in the License available on the White Mesa Mill webpage and on the EDMS. The documents should be posted separately, rather than being included in another document. The referenced documents are part of the License and should be readily available to Division Staff and the public. The documents include: A. Drainage Report, January 10, 1990. License Condition 10.3.A. B. Licensee's submittals to the NRC dated December 12, 1994 and May 23, 1995. License Condition 10.4. C. Licensee's submittal to the NRC dated May 20, 1993. License Condition 10.5. D. Amendment request to the NRC dated June 15, 1993. License Condition 10.6. E.Amendment request to the NRC dated September 20, 1996, and amended by letters to the NRC dated October 30, 1996 and November 11, 1996. License Condition 10.7. F.License submittals dated August 30, 2013, and October 21, 2013. License Condition 10.8 (proposed). G. Amendment request to the NRC dated April 3, 1997, as amended by submittals to the NRC dated May 19, 1997 and August 6, 1997. License Condition 10.9. H.Amendment request to the NRC dated June 4, 1998, and by the submittals to the NRC dated September 14, 1998, September 16, 1998, September 25, 1998, October 7, 1998, and October 8, 1998. License Condition 10.11. Scott Anderson/DWMRC 22 July 31, 2017 I. Amendment request to the NRC dated December 19, 2000, and supplemental information in letters dated January 29, 2001, February 2, 2001, March 20, 2001, August 15, 2001, October 17, 2001, and November 16, 2001. License Condition 10.17. J. Amendment requests and submittals to the Director dated March 7, 2005, June 22, 2005, and April 28, 2006. License Condition 10.19. K.Submittal to the NRC dated March 15, 1986. License Condition 11.2.E. L.Licensee's letter to the NRC dated August 23, 1991 (including the license renewal application). License Condition 13.1.B. M. Licensee's revision submitted to the NRC January 13, 1992. License Condition 13.1.C. N. Licensee's revision submitted to the NRC April 7, 1992. License Condition 13.1.D. O. Licensee's revision submitted to the NRC November 22, 1994. License Condition 13.1.E. P. Licensee's revision submitted to the NRC July 27, 1995. License Condition 13.1.F. Q. Licensee's revision submitted to the NRC December 13, 1996. License Condition 13.1.G. R. Licensee's revision submitted to the NRC December 31, 1996. License Condition 13.1.H. S. Licensee's revision submitted to the NRC January 30, 1997. License Condition 13.1.I. T. Licensee’s Current Standby Trust Agreement. License Condition 13.1.A. Thank you for providing the opportunity to comment. Sarah Fields Program Director sarah@uraniumwatch.org Scott Anderson/DWMRC 23 July 31, 2017 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 Scott Anderson/DWMRC 24 July 31, 2017 EXHIBIT A WHITE MESA MILL LICENSE RENEWAL — LICENSE NO. UT1900479  URANIUM WATCH ET AL. COMMENTS 1. The proposed License for the Renewal of UT for the White Mesa Mill, San Juan County, Utah, contains on license Condition that states: “The licensee may not dispose of any material on site that is not “byproduct material,” as that term is deﬁned in 42 U.S.C. Section 2014(e)(2) (Atomic Energy Act of 1954, Section 11e.(2), as amended).” 1 2. Then, the License contains conditions that allow for the processing of feed material other than natural ore, and refers to “alternate feed materials or other ores.” 2 3. However, “alternate feed” materials are not “ore,” as that term has been in common use for hundreds of years and how that term is used in the Atomic Energy Acts of 1946 and 3 License Condition 10.1.B. (as corrected).1 License Condition 10.1.C., D., and E.2 The word, or term, "ore," as deﬁned in several sources: 3 • Ore—a naturally occurring solid material from which metal or other valuable minerals may be extracted. [Illustrated Oxford Dictionary, DK Pub. 1998.] • Ore—A native mineral containing a precious or useful metal in such quantity and in such chemical combination as to make its extraction proﬁtable. Also applied to minerals mined for their content of non-metals. [The Compact Oxford English Dictionary, Second Edition, Oxford University Press, 2000, p. 1224:915-916.] • Ore—a. A natural mineral compound of the elements of which one at least is a metal. Applied more loosely to all metaliferous rock, though it contains the metal in a free state, and occasionally to the compounds of nonmetallic substances, as sulfur ore. . . . Fay b. A mineral of sufﬁcient value as to quality and quantity that may be mined for proﬁt. Fay. [A Dictionary of Mining, Mineral, and Related Terms, compiled and edited by Paul W. Thrush and Staff of the Bureau of Mines, U.S. Dept. of Interior, 1968.] • The Oxford English Dictionary points out that the current usage of the word "ore" goes back several hundred years. A Dictionary of Mining, Mineral, and Related Terms lists over 65 compound words using the word "ore," such as ore bin, ore body, ore deposit, ore district, ore geology, ore grader, ore mineral, ore reserve, ore zone. All of these terms incorporate the word "ore" as it relates to the mining of a native mineral. The term "ore," without explanation, has for many years been used in thousands, if not millions, of instances in thousands of mining, milling, geological, mineralogical, radiochemical, engineering, environmental, and regulatory publications. "Ore" like the word "water," is a word of common and extensive usage with a clear and accepted meaning. Exhibit A/White Mesa License Renewal  2 Uranium Watch et al. Comments  July 31, 2017 1954, as amended; Atomic Energy Commission, Nuclear Regulatory Commission (NRC), Environmental Protection Agency (EPA) regulations promulgated pursuant to the 1946 and 1954 AEAs; and other EPA regulations.   4. License Condition 10.1.B. relies on, but does not quote from, NRC Regulatory Summary 2000-23 Recent Changes to Uranium Recovery Policy, November 30, 2000. That Regulatory Summary is not a regulation does not have legal force and effect. It cannot be used as a basis for amending the Atomic Energy Act of 1954 (AEA), as amended, nor NRC and EPA regulations promulgated responsive to that Act. The Summary includes a new deﬁnition of 11e.(2) byproduct material by creating a new deﬁnition of the word “ore”:  For the tailings and wastes from the proposed processing to qualify as 11e.(2) byproduct material, the feed material must qualify as “ore.” In determining whether the feed material is ore, the following deﬁnition of ore will be used: Ore is a natural or native matter that may be mined and treated for the extraction of any of its constituents or any other matter from which source material is extracted in a licensed uranium or thorium mill. [Emphasis added.]  5. The AEA deﬁnition of 11e.(2) byproduct material and the NRC and EPA deﬁnitions 4 of 11e.(2) byproduct material do not, and cannot, mean wastes from the processing of any matter from which uranium and/or thorium is recovered at a licensed uranium mill.  6. The AEA, as amended by the Uranium Mill Tailings Radiation Control Act of 1978 (UMTRCA), does not sanction the processing of feed materials other than natural ores 5 and the disposal of wastes from such processing at licensed uranium and thorium processing facilities. The AEA does not include a deﬁnition, or any indication of such deﬁnition, of “ore” that states that “ore” is any “matter from which source material is extracted in a licensed uranium or thorium mill.” The AEA does not give the Utah Department of Environmental Quality (DEQ), or other state or federal entity, the broad authority to authorize the processing of feed materials other than natural ores or the disposal of wastes from such processing at licensed uranium and thorium processing facilities as "11e.(2) byproduct material.” The term “ore” has an accepted and historical deﬁnition as that term is used in the AEA and regulations promulgated responsive to that 42 U.S.C. Sec. 2014 (e). “The term 'byproduct material' means (1) any radioactive material 4 (except special nuclear material) yielded in or made radioactive by exposure to the radiation incident to the process of producing or utilizing special nuclear material, and (2) the tailings or wastes produced by the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content." The Uranium Mill Tailings Radiation Control Act of 1978 ("UMTRCA") (Public Law 95-604, 5 92 Stat. 3033 et seq.), amending the Atomic Energy Act of 1954 (Public Law 83-703, 68 Stat. 919 et.seq.). Exhibit A/White Mesa License Renewal  3 Uranium Watch et al. Comments  July 31, 2017 Act. Neither the NRC, nor the DEQ have the authority to use “guidance” or other means to change the substantive meaning of a word and, thereby, the regulatory program associated with that word and related deﬁnitions. The DEQ does not have the authority to amend the AEA. 7. The statutory history of UMTRCA, found in the two Congressional reports, provides information with respect "uranium mill tailings" and "ore." The Congressional Reports clearly state what was contemplated by Congress (i.e., the intent of Congress) when Congress established a program for the control of "uranium mill tailings" from the processing of "uranium ore" at inactive (Title I of UMTRCA) and active (Title II of UMTRCA) uranium and thorium processing facilities. See House Report (Interior and Insular Affairs Committee) No. 95-1480 (I), August 11, 1978, and House Report (Interstate and Foreign Commerce Committee) No. 95-1480 (II), September 30, 1978. Under "Background and Need," HR No. 95-1480 (I) states:   Uranium mill tailings are the sandy waste produced by the uranium ore milling process. Because only 1 to 5 pounds of useable uranium is extracted from each 2,000 pounds of ore, tremendous quantities of waste are produced as a result of milling operations. These tailings contain many naturally-occurring hazardous substances, both radioactive and nonradioactive. . . . As a result of being for all practical purposes, a perpetual hazard, uranium mill tailings present the major threat of the nuclear fuel cycle.   In its early years, the uranium milling industry was under the dominant control of the Federal Government. At that time, uranium was being produced under Federal Contracts for the Government's Manhattan Engineering District and Atomic Energy Commission program. . . . The Atomic Energy Commission and its successor, the Nuclear Regulatory Commission, have retained authority for licensing uranium mills under the Atomic Energy Act since 1954. [HR No. 95-1480 (1) at 11.]  The second House Report, under "Need for a Remedial Action Program" states:   Uranium mills are a part of the nuclear fuel cycle. They extract uranium from ore for eventual use in nuclear weapons and power-plants, leaving radioactive sand-like waste—commonly called uranium mill tailings—in generally unattended piles. [HR No. 95-1480 (2) at 25.]  The statutory history of UMTRCA does not provide any basis for a deﬁnition of “ore” as being “any other matter from which source material is extracted in a licensed uranium or thorium mill.”  8. Atomic Energy Commission (AEC) and the AEA of 1946 also demonstrate the intent Exhibit A/White Mesa License Renewal  4 Uranium Watch et al. Comments  July 31, 2017 of Congress and the agency that preceded the NRC with resect ore and the processing of ore. The domestic uranium mining and milling industry was established at the behest of the Manhattan Engineer District and the AEC. The AEC regulated uranium mines and uranium processing facilities, established ore buying stations, and bought ore. Mining and milling of uranium ore was done under contract to the AEC. AEC purchased uranium ore under the Domestic Uranium Program. Regulations related to the AEC's uranium procurement program were set forth in 10 C.F.R. Part 60. Part 60 was deleted from 10 C.F.R. on March 3, 1975, after the establishment of the NRC.   9. The AEC published a number of circulars related to their Domestic Uranium Program. The Domestic Uranium Program—Circular No. 3—Guaranteed Three Year Minimum Price—Uranium-Bearing Carnotite-Type or Roscoelite-Type Ores of the Colorado Plateau Area" (April 9, 1948), an amendment to 10 C.F.R. Part 60, states:  § 60.3 Guaranteed three years minimum price for uranium-bearing carnotite-type or roscoelite-type ores of the Colorado Plateau—(a) Guarantee. To stimulate domestic production of uranium-bearing ores of the Colorado Plateau area, commonly known as carnotite-type or roscoelite-type ores, and in the interest of the common defense and security the United States Atomic Energy Commission hereby establishes the guaranteed minimum prices speciﬁed in Schedule 1 of this section, for the delivery of such ores to the Commission, at Monticello, Utah, and Durango, Colorado, in accordance with the terms of this section during the three calendar years following its effective date.  Note: In §§ 60.1 and 60.2 (Domestic Uranium Program, Circulars No. 1 and 2), the Commission has established guaranteed prices for other domestic uranium-bearing ores, and mechanical concentrates, and reﬁned uranium products.   Note: The term "domestic" in this section, referring to uranium, uranium- bearing ores and mechanical concentrates, means such uranium, ores, and concentrates produced from deposits within the United States, its territories, possessions and the Canal Zone.  10. 10 C.F.R. Part 60—Domestic Uranium Program at § 60.5(c) states:  Deﬁnitions. As used in this section and in § 60.5(a), the term "buyer' refers to the U.S. Atomic Energy Commission, or its authorized purchasing agent. The term "ore" does not include mill tailings or other mill products. . . . [Emphasis added.]  [Circular 5, 14 Fed. Reg. 731 (February 18, 1949).]  It is clear that the AEC was the primary mover in the domestic uranium mining and milling program. It is clear that under the AEAs of 1946 and 1954, the AEC regulated Exhibit A/White Mesa License Renewal  5 Uranium Watch et al. Comments  July 31, 2017 uranium mining and milling and established a uranium ore-buying program. It is clear that from the 1940's to 1975, the regulations in 10 C.F.R. Part 60 clearly stated that "ore" does not include mill tailings or other mill products. It is clear that “ore,” under the AEA and AEC regulation did not mean any “matter from which source material is extracted in a licensed uranium or thorium mill.” Such a new deﬁnition contradicts the AEA.  11. The Statutory Deﬁnition of Source Material also is relevant to the use of the term “ore” under that AEA and NRC regulation. The AEA of 1946, under "Control of Materials," Sec. 5 (b), "Source Materials," (1), "Deﬁnition," provides the deﬁnition of "source material." Section 5(b)(1) states:  Deﬁnition. — As used in this Act, the term "source material" means uranium, thorium, or any other material which is determined by the Commission, with the approval of the President, to be peculiarly essential to the production of ﬁssionable materials; but includes ores only if they contain one or more of the foregoing materials in such concentration as the Commission may by regulation determine from time to time. The AEA of 1954, Chapter 2, Section 11, "Deﬁnitions," sets forth the current statutory deﬁnition of "source material” at Sec. 11(s):  The term "source material" means (1) uranium, thorium, or any other material which is determined by the Commission pursuant to the provisions of section 61 to be source material; or (2) ores containing one or more of the foregoing materials, in such concentrations as the Commission may by regulation determine from time to time.   [42 U.S.C. Sec. 2014(z).]  Responsive to this statutory deﬁnition, in 1961 the AEC established the following regulatory deﬁnition at 10 C.F.R. § 40.4:  Source Material means: (1) Uranium or thorium, or any combination thereof, in any physical or chemical form or (2) ores which contain by weight one-twentieth of one percent (0.05%) or more of: (i) Uranium, (ii) thorium or (iii) any combination thereof. Source material does not include special nuclear material. [26 Fed. Reg. 284 (Jan. 14, 1961)]  Therefore, the AEC made a determination, in accordance with the mandate of the AEA of 1954, that ores containing 0.05% thorium and/or uranium would meet the statutory deﬁnition of source material. At the same time that they made that determination, the AEC had a regulation that clearly stated that "ore" does not include mill tailings or other mill products. Surely, the AEC, as the administrator of a uranium ore procurement program and the developer of the uranium mining and milling industry knew what they were talking about when they used the term "ore." Exhibit A/White Mesa License Renewal  6 Uranium Watch et al. Comments  July 31, 2017 12. Additionally, the AEC set forth certain exemptions to the regulations in 10 C.F.R. Part 40. The proposed rule that was later ﬁnalized in January 1961 states, in pertinent part:  The following proposed amendment to Part 40 constitutes an over-all revision of 10 CFR Part 40, "Control of Source Material." With certain speciﬁed exceptions, the proposed amendment requires a license for the receipt of title to, and the receipt, possession, use, transfer, import, or export of source material. . . .  Under the proposed amendment, the deﬁnition of the term "source material": is revised to bring it into closer conformance with that contained in the Atomic Energy Act of 1954. "Source Material" is deﬁned as (1) uranium or thorium, or any combination thereof, in any physical or chemical form, but does not include special nuclear material, or (2) ores which contain by weight one-twentieth of one percent (0.05 percent) or more of (a) uranium, (b) thorium or (c) any combination thereof. The amendment would exempt from the licensing requirements chemical mixtures, compounds, solutions or alloys containing less than 0.05 percent source material by weight. As a result of this exemption, the change in the deﬁnition of source material is not expected to have any effect on the licensing program. . . .  Section 62 of the Act prohibits the conduct of certain activities relating to source material "after removal from its place of deposit in nature" unless such activities are authorized by license issued by the Atomic Energy Commission. The Act does not, however, require a license for the mining of source material, and the proposed regulations, as in the case of the current regulations, do not require a license for the conduct of mining activities. Under the present regulation, miners are required to have a license to transfer the source material after it is mined. Under the proposed regulation below, the possession and transfer of unreﬁned and unprocessed ores containing source material would be exempted. [47 Fed. Reg. 8619 (September 7, 1960).]  13. Therefore, the AEC established, via a rulemaking, exemptions for source material as deﬁned in Sec. 2014(z)(1) related to mixtures, compounds, solutions, or alloys containing uranium and/or thorium:  (a) Any person is exempt from the regulations in this part and from the requirements for a license set forth in section 62 of the Act to the extent that such person receives, possesses, uses, transfers or delivers source material in any chemical mixture, compound, solution, or alloy in which the source material is by weight less than one-twentieth of 1 percent Exhibit A/White Mesa License Renewal  7 Uranium Watch et al. Comments  July 31, 2017 (0.05 percent) of the mixture, compound, solution or alloy. The exemption contained in this paragraph does not include byproduct material as deﬁned in this part. [10 C.F.R. § 40.13(a), 26 Fed. Reg. 284 (Jan. 14, 1961).]  14. The AEC also established, via a rulemaking, exemptions for source material as deﬁned in Sec. 2014(z)(2) related to "ore":  b) Any person is exempt from the regulations in this part and from the requirements for a license set forth in section 62 of the act to the extent that such person receives, possesses, uses, or transfers unreﬁned and unprocessed ore containing source material; provided, that, except as authorized in a speciﬁc license, such person shall not reﬁne or process such ore. [10 C.F.R. 40.13(b), 26 Fed. Reg. 284 (Jan. 14, 1961).] The deﬁnition of "source material" and the exemptions that are related to those deﬁnitions stand today, over ﬁfty-ﬁve years later. These regulatory deﬁnitions and exemptions did not change when the NRC was established in 1975 and took on the regulatory responsibility for "source material." These regulatory deﬁnitions and exemptions did not change when the AEA was amended by UMTRCA in 1978.   15. Deﬁnition of 11e.(2) byproduct material. UMTRCA, among other things, amended the AEA of 1954 by adding a new deﬁnition, the deﬁnition of 11e.(2) byproduct material:  Sec. 201. Section 11e. of the Atomic Energy Act of 1954, is amended to read as follows: "e. The term 'byproduct material' means (1) any radioactive material (except special nuclear material) yielded in or made radioactive by exposure to the radiation incident to the process of producing or utilizing special nuclear material, and (2) the tailings or wastes produced by the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content." [42 U.S.C. Sec. 2014 (e).]  There is no evidence in the regulatory history of UMTRCA that Congress, in deﬁning "11e.(2) byproduct material" intended to also amend the statutory deﬁnition of "source material." There is no evidence in the regulatory history of UMTRCA that the term "any ore" does not mean "any type of uranium ore" (e.g., ore containing less than .05% uranium and/or thorium and the numerous types of natural uranium-bearing minerals that are mined at uranium mines and milled at uranium mills). There is no evidence in the regulatory history of UMTRCA that Congress intended the term "any ore" to mean anything that the NRC, DWRC, or Energy Fuels wants it to mean. There is no evidence in the regulatory history of UMTRCA that “ore” is “any other matter from which source material is extracted in a licensed uranium or thorium mill.”   Exhibit A/White Mesa License Renewal  8 Uranium Watch et al. Comments  July 31, 2017 16. In response to UMTRCA, both the EPA and the NRC established a regulatory program for uranium milling and the processing of ores. In establishing those regulations, neither the EPA nor the NRC contemplated the processing of materials that were not "ore" (as that term has been used under the AEA and the common meaning of the term). Neither the EPA nor the NRC considered wastes from other mineral processing operations in their concept of "ore." They did not address in any manner the processing wastes or any matter other than natural ore when promulgating their regulatory regimes for active uranium processing facilities. Further, during the various rulemaking proceedings, the public was never informed that wastes from other mineral processing operations or materials other natural ore, no matter how they were deﬁned, would be processed at licensed uranium or thorium mills. Therefore, the public was given no reasonable opportunity to comment on such processing activities at uranium mills in the rulemaking processes.  17. NRC Regulatory Program, 10 C.F.R. Part 40. Responsive to UMTRCA, the NRC incorporated the UMTRCA deﬁnition of 11e.(2) byproduct material (with clariﬁcation) into their regulations at 10 C.F.R. § 40.4:  "Byproduct Material" means the tailings or wastes produced by the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content, including discrete surface wastes resulting from uranium solution extraction processes. Underground ore bodies depleted by such solution extraction operations do not constitute "byproduct material" within this deﬁnition. [44 Fed. Reg. 50012-50014 (August 24, 1979).]  The NRC also explained the need for the new deﬁnition:  Section 40.4 of 10 CFR Part 40 is amended to include a new deﬁnition of "byproduct material." This amendment, which included uranium and thorium mill tailings as byproduct material licensable by the Commission, is required by the recently enacted Uranium Mill Tailings Radiation Control Act. [44 Fed. Reg. 50012-50014 (August 24, 1979).]  18. The NRC promulgated further regulations amending Part 40, in 1980, 45 Fed. Reg. 65521-65538 (October 3, 1980). In the summary, the NRC states:  The U.S. Nuclear Regulatory Commission is amending its regulations to specify licensing requirements for uranium and thorium milling activities, including tailings and wastes generated from these activities. The amendments to parts 40 and 150 take into account the conclusions reached in a ﬁnal generic environmental impact statement on uranium milling and the requirements mandated in the Uranium Mill Tailings Radiation Control Act of 1978, as amended, public comments received on a draft generic environmental impact statement on uranium milling, and public comments Exhibit A/White Mesa License Renewal  9 Uranium Watch et al. Comments  July 31, 2017 received on proposed rules published in the Federal Register. [Footnotes omitted.]  There is no statement in any of the NRC regulations in 10 C.F.R. Part 40 or in any of rulemaking proceedings promulgating those regulations that wastes from other mineral processing operations, 11e.(2) byproduct material, or any matter processed in a licensed uranium mill could be deﬁned as "ore," under any circumstances. The NRC regulations did not contemplate that, under any circumstances, wastes and other materials would be processed at licensed uranium or thorium mills and the tailings, or that the wastes from such processing would be disposed of as 11e.(2) byproduct material in the mill tailings impoundments. The regulations promulgated by the NRC and did not contemplate this kind of activity. The National Environmental Policy Act ("NEPA") document in support of the promulgation of the NRC regulatory program for uranium mills did not contemplate this kind of activity. In the rulemaking proceedings and NEPA proceeding, the public did not have an opportunity to contemplate and comment on this kind of uranium or thorium mill processing activity. The information provided by the Division and the Licensee demonstrate that materials other than natural ore contain radiological and non-radiological constituents that are signiﬁcantly different than those in natural ore. Therefore the impacts from the processing and disposal of the wastes from those materials would be different from those of “ore.” 19. Furthermore, 10 C.F.R. Part 40, Appendix A, Criterion 8, states in part:  Uranium and thorium byproduct materials must be managed so as to conform to the applicable provisions of Title 40 of the Code of Federal Regulations, Part 440, "Ore Mining and Dressing Point Source Category: Efﬂuent Limitations Guidelines and New Source Performance Standards, Subpart C, Uranium, Radium, and Vanadium Ores Subcategory," as codiﬁed on January 1, 1983.  There is no indication that this NRC regulation and the regulation in 40 C.F.R. Part 440 (and the enabling statute) have in any manner been amended or altered by subsequent NRC policy guidance. Therefore, any shift in the usage of the word "ore" would conﬂict with statutory and regulatory authorities with respect 10 C.F.R. Part 40 and 40 C.F.R. Part 440. 20. The Final Generic Environmental Impact Statement on Uranium Milling (GEIS). 6 The GEIS makes a clear statement regarding the scope of the GEIS and its understanding of what uranium milling entails:  As stated in the NRC Federal Register Notice (42 FR 13874) on the Final Generic Environmental Impact Statement on Uranium Milling, Nuclear Regulatory 6 Commission, NUREG-0706, September 1980. Exhibit A/White Mesa License Renewal  10 Uranium Watch et al. Comments  July 31, 2017 proposed scope and outline for this study, conventional uranium milling operations in both Agreement and Non-Agreement States, are evaluated up to the year 2000. Conventional uranium milling as used herein refers to the milling of ore mined primarily for the recovery of uranium. It involves the processes of crushing, grinding, and leaching of the ore, followed by chemical separation and concentration of uranium. Nonconventional recovery processes include in situ extraction or ore bodies, leaching of uranium-rich tailings piles, and extraction of uranium from mine water and wet-process phosphoric acid. These processes are described to a limited extent, for completeness. [GEIS, Volume I, at 3.]  The GEIS is very clear about what it considers "ore" to be and gives no indication whatsoever that materials other than ore (a natural material after its removal from its place in nature), such as the tailings or waste from mineral processing operations, are considered to be "ore" if the material is processed at a licensed uranium mill. 21. The GEIS includes a discussion of "Past Production Methods." That discussion makes reference to "ore," "ore exploration," "pitchblende ore," "crude ore milling processes," "lower-grade ores," "uranium-bearing gold ores," "high-grade ores," "ore- buying and "ore reserves." GEIS, Volume I, Chapter 2, at 2-1 to 2-2. In Chapter 6, "Environmental Impacts," there is a discussion of "Exposure to Uranium Ore Dust," which states, in part:  Uranium ore dust in crushing and grinding areas of mills contains natural uranium (U-238, U-235, thorium-230, radium-226, lead-210, and polonium-210) as the important radionuclides. GEIS, Volume I, at 6-41. There is also a table giving the "Average Occupational Internal Dose due to Inhalation of Ore Dust," (GEIS at 6-41, Table 6.16). Further, the GEIS discusses "Shipment of Ore to the Mill" (GEIS at 7-11); "Sprinkling or Wetting of Ore Stockpile" (GEIS at 8-2); "Ore Storage" and "Ore Crushing and Grinding" (GEIS at 8-6); "Ore Pad andGrinding" (GEIS, Vol. 3, at G-2); "Ore Warehouse (GEIS, Vol. 3, at K-3); and "Alternatives to Control Dust from Ore Handling, Crushing, and Grinding Operations (GEIS, Vol. III, at K-3 to K-3). In the NRC responses to comments there are discussions of "Average Ore Grade, Uranium Recovery" (GEIS, Vol. II, at A-12 to A-13). The GEIS did not consider the processing of wastes from mineral processing operations at uranium or thorium mills. The GEIS gives no indication whatsoever that such wastes are "ore," even if they were processed at a uranium or thorium recovery facility for their "source material content." Clearly, the GEIS did not consider that the wastes from the processing of such wastes (such as material already deﬁned as 11e.(2) byproduct material) would meet the deﬁnition of 11e.(2) byproduct material. Exhibit A/White Mesa License Renewal  11 Uranium Watch et al. Comments  July 31, 2017 Therefore, the GEIS did not evaluate, and the public did not have an opportunity to comment upon, any of the possible health, safety, and environmental impacts of the processing of other mineral processing wastes at uranium or thorium processing facilities. There was no evaluation of the transportation issues related to the transport of such wastes, nor were reasonable alternatives to the transportation, receipt, processing, and disposal of such wastes at uranium or thorium mills ever evaluated. 22. EPA Regulatory Standards. UMTRCA directed the EPA to establish standards for uranium mill tailings and directed the NRC to implement those standards. That statute, as codiﬁed in 42 U.S.C. 2022, states in pertinent part:  Sec. 2022. Health and environmental standards for uranium mill tailings (b) Promulgation and revision of rules for protection from hazards at processing or disposal site. (1) As soon as practicable, but not later than October 31, 1982, the Administrator shall, by rule, propose, and within 11 months thereafter promulgate in ﬁnal form, standards of general application for the protection of the public health, safety, and the environment from radiological and nonradiological hazards associated with the processing and with the possession, transfer, and disposal of byproduct material, as deﬁned in section 2014(e)(2) of this title, at sites at which ores are processed primarily for their source material content or which are used for the disposal of such byproduct material. . . . [Emphasis added.] Requirements established by the Commission under this chapter with respect to byproduct material as deﬁned in section 2014(e)(2) of this title shall conform to such standards. Any requirements adopted by the Commission respecting such byproduct material before promulgation by the Commission of such standards shall be amended as the Commission deems necessary to conform to such standards in the same manner as provided in subsection (f)(3) of this section. Nothing in this subsection shall be construed to prohibit or suspend the implementation or enforcement by the Commission of any requirement of the Commission respecting byproduct material as deﬁned in section 2014(e)(2) of this title pending promulgation by the Commission of any such standard of general application. In establishing such standards, the Administrator shall consider the risk to the public health, safety, and the environment, the environmental and economic costs of applying such standards, and such other factors as the Administrator determines to be appropriate. * * * (d) Federal and State implementation and enforcement of the standards promulgated pursuant to subsection (b) of this section shall be the responsibility of the Commission in the conduct of its licensing activities under this chapter. States exercising authority pursuant to section 2021(b) (2) of this title shall implement and enforce such standards in accordance Exhibit A/White Mesa License Renewal  12 Uranium Watch et al. Comments  July 31, 2017 with subsection (o) of such section. [42 U.S.C. 2022(b) and (d).]  Congress directed the EPA only to establish standards for "sites at which ores are processed primarily for their source material." The EPA, as mandated by UMTRCA, ﬁnalized the "Environmental Standards for Uranium and Thorium Mill Tailings at Licensed Commercial Processing Sites" in 1983. 48 Fed. Reg. 45925-45947, October 7, 7 1983. 23. In the "Summary of Background Information" the EPA provides a discussion of "The Uranium Industry" (i.e., the industry that the regulations apply to):  The major deposits of high-grade uranium ores in the United States are located in the Colorado Plateau, the Wyoming Basins, and the Gulf Coast Plain of Texas. Most ore is mined by either underground or open-pit methods. At the mill the ore is ﬁrst crushed, blended, and ground to proper size for the leaching process which extracts uranium. . . . After uranium is leached from the ore it is concentrated . . . . The depleted ore, in the form of tailings, is pumped to a tailings pile as a slurry mixed with water.   Since the uranium content of ore averages only about 0.15 percent, essentially all the bulk or ore mined and processed is contained in the tailings. [48 Fed. Reg. 45925, 45927, October 7,1983.]  Clearly, when the EPA developed its standards for uranium and thorium mills they stated, with speciﬁcity and particularity, what uranium “ore” was, what uranium milling consisted of, and what uranium mill tailings consisted of. EPA clearly stated that the standards applied to the processing of uranium and thorium ores at uranium and thorium mills. There is no reasonable evidence that would indicate that the standards promulgated by the EPA applied to the processing of wastes from other mineral processing operations at uranium and thorium mills or that ore could be deﬁned as “any other matter from which source material is extracted in a licensed uranium or thorium mill.”   24. Additionally, the EPA incorporated UMTRCA's deﬁnition of 11e.(2) byproduct material, as clariﬁed by the NRC in 10 C.F.R. 40.4, into their standards at 40 C.F.R. Subpart D, § 192.31(b). Since that time the EPA has not amended their deﬁnition of   11e.(2) byproduct material in a rulemaking proceeding, nor have they amended their deﬁnition via policy guidance. The EPA has not, in any manner, widened the use of the words "any ore" to include “any other matter from which source material is extracted in a https://www.epa.gov/radiation/health-and-environmental-protection-standards-uranium-and-7 thorium-mill-tailings-40-cfr Exhibit A/White Mesa License Renewal  13 Uranium Watch et al. Comments  July 31, 2017 licensed uranium or thorium mill.” EPA did not sanction the NRC's policy guidance with respect new deﬁnitions of "ore" and 11e.(2) byproduct material. Clearly, the EPA, as directed by Congress, has not in any manner contemplated the processing of wastes from other mineral extraction operations at uranium or thorium mills when establishing the "Environmental Standards for Uranium and Thorium Mill Tailings at Licensed Commercial Processing Sites." The EPA did not contemplate, nor was the public informed of the EPA intention to consider, the processing of “any other matter from which source material is extracted in a licensed uranium or thorium mill.” In the various rulemaking proceedings that have taken place in the establishment of the EPA standards, the public was given no opportunity to consider or comment on the possibility that the EPA standards would also apply to the processing of wastes from other mineral processing operations or “any other matter from which source material is extracted in a licensed uranium or thorium mill.” The processing of materials other than natural ore at uranium and thorium mills was beyond the scope of the regulatory program established by the NRC and the EPA in response to UMTRCA for operating uranium mills. 25. The AEA, as amended in 1978 by UMTRCA, included provisions applicable to Agreement States. One of those provisions requires NRC Agreements States (such as Utah) to “require for each license which has a signiﬁcant impact on the human environment a written analysis (which shall be available to the public before the commencement of any such proceedings) of the impact of such license, including any activities conducted pursuant thereto, on the environment, which analysis shall include,” among other things, “consideration of the long-term impacts, including decommissioning, decontamination, and reclamation impacts, associated with activities to be conducted pursuant to such license, including the management of any byproduct material, as deﬁned by section 2014 (e)(2) of this title.” 8 So, again, the AEA imposes requirements associated with the deﬁnition of and management of 11e.(2) byproduct material, as that term is deﬁned under the AEA and NRC and EPA regulations promulgated responsive to that Act. The State of Utah has not been given the authority to amend this section of the AEA. 26. Regulatory History of NRC’s Alternate Feed Guidance. The SER relies on NRC Guidance (SECY 95-211, SECY-99- 012, and NRC Regulatory Issue Summary 2000-23). In the late 1980's the NRC was faced with a few requests to process material other than ore. At that time, and today, there are two statutes or regulations (implementing those statues) that are pertinent. First is the statutory deﬁnition of "source material" established in 1954 by the AEA, found at 42 U.S.C. Sec. 2014(z), and in the NRC regulatory deﬁnition of "source material" (established in 1961 pursuant Sec. 2014(z)), found at 10 42 U.S.C. § 2021(o)(3)(C).8 Exhibit A/White Mesa License Renewal  14 Uranium Watch et al. Comments  July 31, 2017 C.F.R. 40.4:  Source Material means: (1) Uranium or thorium, or any combination thereof, in any physical or chemical form or (2) ores which contain by weight one-twentieth of one percent (0.05%) or more of: (i) Uranium, (ii) thorium or (iii) any combination thereof. Source material does not include special nuclear material.  The second is the deﬁnition of "byproduct material" in Section 11(e)(2) of the Atomic Energy Act of 1954, as amended, (42 U.S. C Sec. 2014(e)(2)) and the regulatory deﬁnition of "byproduct material" found in 10 C.F.R. 40.4:   Byproduct Material means the tailings or wastes produced by the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content, including discrete surface wastes resulting from uranium solution extraction processes. Underground ore bodies depleted by such solution extraction operations do not constitute "byproduct material'' within this deﬁnition.  27. The NRC had several options, including the denial of the amendment requests to process feed material that was not “ore.” One option would have been to go to Congress and request that Congress change the deﬁnition of 11e.(2) byproduct material to read "the tailings or wastes produced by the extraction or concentration of any ore or any other matter from which source material is extracted in a licensed uranium or thorium mill." NRC Staff made a determination that they would not go to Congress to seek an amendment to the AEA of 1954. If the AEA was amended to include a new deﬁnitions, the NRC would have also had to commence a rulemaking to amend 10 C.F.R. Part 40, and the EPA would have had also commence a rulemaking to amend 40 C.F.R. Part 192, 40 C.F.R. Part 61 Subpart W, and other regulations. What the NRC did was to manipulate the use of the word "ore" as it is used in the deﬁnition of 11e.(2) byproduct material. NRC proposed in a notice and comment opportunity, that a policy guidance be established for the purpose of interpreting the term "ore," as it is used in the deﬁnition of 11e.(2) byproduct material. 57 Fed. Reg. 20525 (May 13, 1992). The NRC did not institute a rulemaking proceeding to amend 10 C.F.R. Part 40, though they indicated that that was their intent. 28. The NRC Final Position and Guidance gave a new deﬁnition of ore:  Ore is a natural or native matter that may be mined and treated for the extraction or any of its constituents or any other matter from which source material is extracted in a licensed uranium or thorium mill. [60 Fed Reg. 49296 (September 22, 1995).]  Based on the new use of the term "ore" as put forth in the NRC Guidance, not only would Exhibit A/White Mesa License Renewal  15 Uranium Watch et al. Comments  July 31, 2017 the deﬁnition of 11e.(2) byproduct material apply to "any ore processed primarily for its source material content" in a licensed uranium or thorium mill, but the deﬁnition of 11e. (2) byproduct material would also apply to any matter processed primarily for its source material content in a licensed uranium or thorium mill. In other words, NRC altered the accepted meaning of the word "ore," as that word was used in the NRC regulatory deﬁnition of 11e.(2) byproduct material. 29. It is plain from the AEA of 1946 and the legislative history of the AEA of 1954 and the Uranium Mill Tailings Radiation Control Act of 1978 and the regulatory history of the AEC, EPA, and NRC rules promulgated responsive to those laws, that the Policy Guidance's new use of the term "ore" goes far beyond the accepted meaning of that term and the clear intent of Congress.   30. The applicability of various environmental regulations to a great degree depends upon deﬁnitions. Congress, in their legislative function, often speciﬁcally deﬁnes words or phrases related to the application of a statute to a particular material or circumstances —when there is a need for explanation. However, when using words or terms with a common and long accepted meaning, such as groundwater, mill, tailings, or "ore," no explanation or deﬁnition is necessary. The NRC and the State of Utah have not authorized to shift these accepted deﬁnitions at will as an expression of their "regulatory ﬂexibility." This is especially so when such shifts result in direct conﬂicts with NRC's own enabling statutes and regulations, as is the case with the use of the newly deﬁned term "ore." Additionally, NRC and State of Utah are not authorized to shift deﬁnitions at will when such shifts directly conﬂict with the statutory authority and regulations of another federal agency; in this case, the EPA.  31. The NRC issued the 1995 Final Position and Guidance and the 2000 Interim Position and Guidance without conducting an assessment of any of the health, safety, or environmental effects of establishing a substantively new and different regulatory program that resulted from the issuance of the Final Position and Guidance. At the White Mesa Mill, this new recovery program—a program that started with the processing of a few small batches of wastes from other mineral processing operations to supplement the processing of uranium ore—has grown to be a major uranium recovery program and entails the receipt and processing of thousands of tons of wastes from other mineral processing operations from across the country and even Canada. The adverse environmental effects—including cumulative effects—of this new program have not been adequately identiﬁed and evaluated under the statutory framework established by the AEA. Further, no NEPA document has ever considered the reasonable alternatives to the processing of wastes from other mineral processing operations at uranium and thorium recovery facilities. Exhibit A/White Mesa License Renewal  16 Uranium Watch et al. Comments  July 31, 2017 32. The NRC, after adopting a new deﬁnition of 11e.(2) byproduct material outside of the legislative and rulemaking processes, did not change any other guidance documents that apply to uranium milling. Therefore, there is no indication that any of those guidance documents apply to the processing of feed material other than natural ore and the disposal of the wastes at a licensed uranium or thorium mill. For example, Reg. Guide 8.31, Information Relevant to Ensuring that Occupational Radiation Exposures at Uranium Recovery Facilities Will be As Low as Reasonably Achievable, and Reg. Guide 8.22, Bioassay at Uranium Mills. 33. UMTRCA, as it amends the AEA, clearly speciﬁed what constitutes "any ore." What constitutes "any ore" is "any ore." The plain language of the Act and the history of the implementation of the AEA of 1946, as amended by the AEA of 1954 and UMTRCA, is all that is needed to determine what "ore" or "any ore" is. Clearly the legislative and regulatory history of the AEA and Title 10 of the Code of Federal Regulations make plan the meaning of the term "ore" and the term "any ore." 34. The DWMRC’s use of the word "ore" for waste materials from mineral processing operations (in this case materials already deﬁned as 11e.(2) byproduct material) is unreasonable and not permitted under the plain language of the AEA. No state or federal agency can use license conditions, licensing actions, or a policy guidance to expand upon and substantively alter the will of Congress when that will is explicitly set forth in statute.   35. The standards promulgated by the EPA in 40 C.F.R. Part 192 Subpart D and   40 C.F.R. Part 61 Subpart W no not apply to the processing of materials other than natural ore at a licensed uranium mill, the construction of tailings impoundments that will receive wastes from the processing of materials other than natural ore, the emission of radon from wastes from the processing of matter other than natural ore, the disposal of wastes from the processing of materials other than natural ore, or any other operations or health and safety or environmental impacts from the processing of materials other than natural ore at a licensed uranium mill.  The State of Utah has not been given the authority to amend the AEA, NRC regulations, or EPA regulations through use of NRC guidance or individual licensing actions, or by any other means. Therefore, the DWMRC must delete the provisions in the License that authorize the processing of feed materials other than natural ore, referred to as “alternate feed.” Sarah Fields Uranium Watch PO Box 344 Moab, Utah 84532 435-260-8384  July 31, 2017 Uranium Watch P.O. Box 344 Moab, Utah 84532 435-26O-8384 August 11, 2017 via electronic mail Scott Anderson Director Division of Waste Management and Radiation Control Utah Department of Environmental Quality P.O. Box 144880 Salt Lake City, Utah 84114-4880 dwmrcpublic@utah.gov Re: Supplement to Comments on Energy Fuels Resources (USA) Inc., White Mesa Mill, License Renewal, Materials License No. UT 1900479 Dear Mr. Anderson: The letter is a supplement to Uranium Watch, Living Rivers, and Utah Chapter of the Sierra Club comments on the Renewal of the White Mesa Uranium Mill License, Materials License No. UT1900479. I received the attached letter from Jeff Trembly, RG, Special Projects Coordinator, Adjudications Program Director, Arizona Department of Water Resources (ADWR), on August 2, 2017, after the close of the comment period. This information should be included in comments on the Mill’s License Renewal. The enclosed letter is from Kenneth Slowinski, Chief Counsel, ADWR, to Lee Decker, Gallagher & Kennedy, who, apparently, represents Energy Fuels Resources (USA) Inc. (Energy Fuels) in the matter of the Transportation of Water from Arizona to Utah by Energy Fuels, Inc. The ADWR found that Energy Fuels did not comply with Arizona statute (A.R.S. § 45-292) when it transported water from the Canyon Uranium Mine, Coconino County, Arizona, to the White Mesa Mill for use without prior approval of the ADWR Director. According to Arizona statute, water may not be transported out of state unless 1) the water is put to reasonable and beneﬁcial use in another state and 2) the Director grants prior approval. Although no ﬁne was imposed, if Energy Fuels intends to transport water from Arizona to Utah in the future, they must comply with all ADWR application and approval requirements. Mr. Decker argued that the mine water was not transported to the Mill “for reasonable and beneﬁcial use,” but “for proper management and ultimate disposal in another state” and that the material was “waste” that included water. The ADWR determined that the water had been put to use and that, in fact, Arizona law requires exported water be put to reasonable and beneﬁcial use. Further, on the Utah side, it does not appear that Energy Fuels can transport mine water for “disposal” at the Mill without requesting authorization from the Division of Waste Management and Radiation Control to do so. It is unclear under what regulatory authority the direct disposal of mine water as “waste” could be approved, but there is currently no statute, regulation, or White Mesa Mill license condition that authorizes the receipt and direct disposal of mine water—as waste—at the White Mesa Mill. It is clear that what happened to the water from the Canyon Mine at the Mill is an important legal and regulatory issue for both the ADWR and the DWMRC. If, in the future, Energy Fuels plans to again transport water from the Canyon Mine to the White Mesa Mill, the DWMRC should make sure that Energy Fuels complies with all ADWR requirements and Energy Fuels should notify the DWMRC of the intent to use the mine water and verify that the transport of water from Arizona has been authorized by the ADWR Director. Regulatory compliance is a signiﬁcant environmental and health and safety issue. Energy Fuels compliance with all local, state, and federal regulations related to the operation of the Mill is factor that should be addressed in the License Renewal process and in the Environmental Analysis required under the Atomic Energy Act.1 The Environmental Analysis for the License Renewal should include an accounting of all materials that the are received at the White Mesa Mill for processing or direct disposal, including mine water. These materials would include yellowcake from the Honeywell Inc., Metropolis, Illinois, uranium conversion facility and any other materials that arrive at the Mill for direct disposal or processing. Sincerely, Sarah Fields Program Director Enclosure: As stated Scott Anderson/DWMRC 2 August 11, 2017 1 42 U.S.C. § 2021(o)(3)(C). DOUGLAS A. DUCEY Governor July 27, 2017 Lee Decker Gallagher & Kennedy ARIZONA DEPARTMENT ofWATER RESOURCES 1110 West Washington Street, Suite 310 Phoenix, Arizona 85007 602.771.8500 azwater.gov 2575 E. Camelback Road, Suite 1100 Phoenix, Arizona 85016-9225 RE: Transportation of Water from Arizona to Utah by Energy Fuels, Inc. Dear Lee: THOMAS BUSCHATZKE Director On June 19, 2017, representatives of the Arizona Department of Water Resources (Department) and Energy Fuels Resources, Inc. (Energy Fuels) met to discuss Energy Fuels' past transportation of water across state lines from its Canyon Mine in Arizona to its White Mesa Mill (Mill) in Blanding, Utah. This meeting was followed by your email to me on June 26, 2017. Energy Fuels' transportation of water across state lines was first brought to the Department's attention by the U.S. Forest Service, which had been contacted by a group known as Uranium Watch. On May 15, 2017, the Department received a formal complaint from Uranium Watch alleging that over 100 tanker trucks of water from the Canyon Mine had been transported to Utah from late 2016 to 2017 without approval of the Director of the Department, in violation of A.R.S. § 45-292. The Department understands from Energy Fuels that the water Energy Fuels transported was a combination of clean groundwater from a perched aquifer and mine waste water pumped from a sump at the bottom of a mine shaft that is offset from the uranium ore body. According to the Arizona Department of Environmental Quality (ADEQ), the mine waste water was a combination of groundwater from the area (not including the water from the perched aquifer) and water used in the drilling and shaft sinking process. It is the Department's understanding that Energy Fuels places the mine waste water in a lined impoundment for disposal by evaporation as required by an Aquifer Protection Permit issued by ADEQ. Energy Fuels informed the Department at the meeting on June 19, 2017, that although its preferred practice is to not place the clean groundwater from the perched aquifer in the lined impoundment with the mine waste water, it began doing so when a hoist in the mine shaft broke. Therefore, at the time Energy Fuels was transporting water from the impoundment across state lines, the water included both mine waste water and groundwater from the perched aquifer. Lee Decker Re: Transportation of Water from Arizona to Utah by Energy Fuels, Inc. July 27, 2017 Page 2 of 3 Energy Fuels does not deny that it transported the mine wastewater and clean groundwater from the perched aquifer from Arizona to Utah. However, in your email and in past communications, you maintain that prior approval of the Director was not required under A.R.S. § 45-292 for two reasons. As explained below, the Department disagrees with both reasons. First, in your email, you maintain that the Director's prior approval was not required because the water "was not transported from the state for a reasonable and beneficial use in another state." You point to language in A.R.S. § 45-292 that states: "A person may withdraw, or divert, and transport water from this state for a reasonable and beneficial use in another state if approved by the director pursuant to this article." You state in y6ur email that this language requires approval by the Director only if the water is transported for a reasonable and beneficial use in another state. You argue that approval was not necessary in this case because Energy Fuels transported the water "for proper environmental management and ultimate disposal in another state," and not for a reasonable and beneficial use in another state. The Department disagrees with this argument. It is undisputed that the water transported by Energy Fuels across state lines was put to a reasonable and beneficial use at the Mill. Thus, approval by the Director was required by the plain language of the statute. Moreover, even if the Department were to accept your argument that approval of the Director was not required because the water was not transported for a reasonable and beneficial use, the transportation would not have been allowed under Arizona law because, as the Department representatives stated at the June 19, 2017 meeting, A.R.S. § 45- 292 allows a person to transport water across state lines only if the water will be put to reasonable and beneficial use in the other state and if all other requirements of A.R.S. § 45-292 have been satisfied. Second, you argue in your email that prior approval of the director was not required under A.f\.5. § 45- 292 because "Energy Fuels did not ship 'water' as contemplated under the statute. What was shipped was in effect a waste material that contained water, for proper environmental management and ultimate disposal." The Department disagrees with this argument. There is no exception in A.R.S. § 45-292 for the transportation of mine waste water from this state to another state. It is the position of the Department that the mine waste water is water, and that the water may not be transported across state lines unless the water is put to a reasonable and beneficial use in the other state and prior approval of the Director is obtained pursuant to A.R.S. § 45-292. Additionally, the water from the perched aquifer was not mine waste water. The transportation of that water across state lines is therefore clearly subject to A.R.S. 45- 292. Regarding the past shipments of water by Energy Fuels from the Canyon Mine in Arizona to Utah, Energy Fuels represented that the transportation was undertaken to avoid overtopping at the lined impoundment near the mine. At the June 19, 2017 meeting, Energy Fuels represented that transportation across state lines ceased approximately three to four weeks prior to the meeting, and that it is implementing measures to eliminate the risk of overtopping at the impoundment in the future. These measures include greater reduction of water levels or depletion of water from the impoundment prior to high-precipitation winter months each year, the installation and use of electric boilers to enhance Lee Decker Re: Transportation of Water from Arizona to Utah by Energy Fuels, Inc. July 27, 2017 Page 3 of 3 evaporation rates, continued use of land sharks, segregation of the clean groundwater aquifer from the mine waste water, and possible on-site treatment of contaminated water. Because shipments of water across state lines have ceased and because Energy Fuels is implementing measures to eliminate the need to transport water out of Arizona from the Canyon Mine, the Department will not take any action against Energy Fuels for the past transportation of water from the mine to Utah. However, Energy Fuels must comply with A.R.S. § 45-292 for any future transportation of water from the Canyon Mine out of state by filing an export application with the Department and obtaining the prior approval of the Director. Before the Director decides whether to grant the application, an administrative hearing must be held in the county from which the water would be transported. At this hearing, "any interested person, including the Department, may appear and give oral or written testimony on all issues involved." A.R.S. § 45-292(E). The processing of an export application, including time for an administrative hearing, could require over a year. The Department appreciates the willingness of Energy Fuels to meet with the Department to discuss this matter and Energy Fuels' future compliance with state law. Sincerely, Kenneth Slowinski Chief Counsel Uranium Watch P.O. Box 344 Moab, Utah 84532 435-26O-8384 July 31, 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 dwmrcpublic@utah.gov RE: Energy Fuels Resources (USA) Inc., White Mesa Mill, License No. UT1900479, Approval of Reclamation and Decommissioning Plan Revision 5.1 Dear Mr. Anderson: Below please ﬁnd comments on the proposed approval of Reclamation Plan Revision 5.1 (Rev. 5.1) for the White Mesa Uranium Mill, San Juan County, Utah. The Mill is owned and operated by Energy Fuels Resources (USA) Inc. (Energy Fuels, or Licensee) under Radioactive Material License No. UT 1900479 and Utah Ground Water Discharge Permit No. UGW370004. The comments are submitted to the Utah Division of Waste Management and Radiation Control (DWMRC, or Division). Any older reference to the Division of Radiation Control (DRC) means the DWMRC. Reclamation Plan Revision 5.1. was submitted to the Division on August 10, 2016, and supplemented by the Signed Stipulation and Consent Agreement (SCA), White Mesa Mill, submitted by Energy Fuels on February 17, 2017. Comments are submitted by Uranium Watch, Living Rivers, and the Utah Chapter of the Sierra Club. These comments incorporate by reference comments submitted by the Ute Mountain Ute Tribe and the December 21, 2011, comments submitted by Uranium Watch et al. 1. GENERAL COMMENTS 1.1. Revision 5.1 of the Reclamation Plan and the SCA were not placed on the list of License Renewal documents on the White Mesa webpage1 where other License 1 https://deq.utah.gov/businesses/E/energyfuels/whitemesamill.htm Renewal and Reclamation Plan documents were posted .2 The Reclamation Plan 5.1 documents were later placed on a speciﬁc page, under “Project Information”3 The Public Notice provided a link to these records. It was confusing to have the newest Reclamation Plan in another section, rather than where the other Reclamation Plan and License Renewal documents were posted. 1.2. The DWMRC “Technical Evaluation and Environmental Assessment” (TEEA) for the Radioactive Material License No. UT 1900479 and Utah Ground Water Discharge Permit No. UGW370004 was supposed to provide a technical analysis of the Reclamation Plan and an analysis of the environmental impacts associated with the Reclamation Plan Rev. 5.1 and the reclamation of Cell 2. The TEEA fails to provide a technical analysis and demonstrate why the Rev. 5.1 and the SCA meet the regulatory requirements for the reclamation of the Mill and Cell 2. The TEEA fails to include an environmental analysis of the Reclamation Plan, as required by the Atomic Energy Act (42 U.S.C. § 2021(o)(3)(C)). The pertinent AEA requirement for Agreement States reads: (o) State compliance requirements: compliance with section 2113(b) of this title and health and environmental protection standards; procedures for licenses, rulemaking, and license impact analysis; amendment of agreements for transfer of State collected funds; proceedings duplication restriction; alternative requirements *** (3) procedures which— (A) in the case of licenses, provide procedures under State law which include— (i) an opportunity, after public notice, for written comments and a public hearing, with a transcript, (ii) an opportunity for cross examination, and (iii) a written determination which is based upon ﬁndings included in such determination and upon the evidence presented during the public comment period and which is subject to judicial review; *** (C) require for each license which has a signiﬁcant impact on the human environment a written analysis (which shall be available to the public before the commencement of any such proceedings) of the impact of such license, including any activities conducted pursuant thereto, on the environment, which analysis shall include— Scott Anderson/DWMRC 2 July 31, 2017 2 https://deq.utah.gov/businesses/E/energyfuels/permits/denisonlicensereapp.htm 3 https://deq.utah.gov/businesses/E/energyfuels/projects/reclamation-plan.htm (i) an assessment of the radiological and nonradiological impacts to the public health of the activities to be conducted pursuant to such license; (ii) an assessment of any impact on any waterway and groundwater resulting from such activities; (iii) consideration of alternatives, including alternative sites and engineering methods, to the activities to be conducted pursuant to such license; and (iv) consideration of the long-term impacts, including decommissioning, decontamination, and reclamation impacts, associated with activities to be conducted pursuant to such license, including the management of any byproduct material, as deﬁned by section 2014 (e)(2) of this title; and (D)prohibit any major construction activity with respect to such material prior to complying with the provisions of subparagraph (C). The Division has not produced a written analysis of the Reclamation Plan and SCA that accessed the 1) radiological impacts to the public health; 2) the impacts to surface water and groundwater; 3) alternatives, including alternative engineering methods; 4) or long- term impacts, which include impacts of decommissioning, decontamination, and reclamation. Such an environmental analysis was not available prior to the June 8, 2017, hearing in Salt Lake City, as required by 42 U.S.C. § 2021(o)(3)(A). Further, the Division has permitted the Licensee to conduct construction activity on Cell 2 prior to compliance with the provisions of subparagraph (C). 1.3. Section 2021(o)(3) demands that the Division produce a written environmental analysis of the Reclamation Plan Rev. 5.1, as supplemented by the SCA; hold a hearing, after public notice, on the Reclamation Plan after the environmental analysis is complete and made publicly available; and not authorize reclamation and decommissioning of Cell 2 until such a process is complete. The Division must also produce a technical evaluation of the Reclamation Plan Rev. 5.1 and SCA. 2. RECLAMATION PLAN REVISION 5.1 2.1. Referenced Documents. The Reclamation Plan Rev. 5.1 (pages 1-2, 3-7, and R-1 to R-10) includes references to a number of documents previously submitted by the Licensee and documents produced by the Nuclear Regulatory Commission (NRC), the Division, or other entity. COMMENT 2.1.1. Any document that the Licensee relies on as part of the Rev. 5.1 and the Division is reviewing an relying on should acknowledged by the Division and placed on the DWMRC webpage for the White Mesa Mill Reclamation Plan or a link to the document should be provided. Scott Anderson/DWMRC 3 July 31, 2017 2.2. Archaeological Resources. Section 1.3 of Rev. 5.1 discusses Archaeological Sites and the Current Status of Excavation. Section 1.3 brieﬂy discusses and lists the archaeological sites at the Mill and their status. COMMENT 2.2.1. The Reclamation Plan does not provide any discussion of the short-term and long-term impacts to Archaeological Sites during decommissioning and reclamation activities and after site reclamation is complete. There is no mention of possible impacts to archaeological sites and other cultural resources when borrow material is obtained. There is no discussion of whether sites that may have been covered by excavated soils will be rehabilitated after ﬁnal closure. Further, there is no discussion of other cultural resources in the vicinity of Mill that will be impacted; for example, traditional uses of the land for hunting and gathering. Revision 5.1 makes no mention of the responsibility of the Bureau of Land Management (BLM) to protect the archaeological sites on land that was transferred from the BLM to the Licensee in the 1980s. 2.3. Fauna. Section 1.7.1.2 of Rev. 5.1 discusses the fauna. COMMENT 2.3.1. The discussion of “fauna” makes no mention of domestic livestock in the vicinity of the Mill. Livestock grazes on Mill land and nearby areas. Livestock has been known to be present on the berms of tailings impoundments. Rev. 5.1 should have discussed domestic livestock in addition to wildlife. 2.3.2. The discussion of fauna makes no mention of the wildlife ponds, efforts to keep wildlife from using or being impacted by the Mill operation, including the adverse impacts to bird life. 2.4. Mill Site Background. Section1.7.4 of Rev. 5.1 discusses Mill Site Background and quotes from Section 2.10 of the Final Environmental Statement (FES), White Mesa Uranium Project, Energy Fuels Resources, Nuclear Regulatory Commission, NUREG-0556, May 1979 (DRC-2009-008036). Rev. 5.1 and the 1979 FES state: The concentration of radon in the area is estimated to be in the range of 500 to 1,000 pCi/m3, based on the concentration of radium-226 in the local soil. Exposure to this concentration on a continuous basis would result in a dose of up to 625 millirems per year to the bronchial epithelium. As ventilation decreases, the dose increases; for example, in unventilated enclosures, the comparable dose might reach 1,200 millirems per year. The FES provides 2 footnotes for this information: a 1974 report and a 1975 report. These reports are not available online, as far as I am able to determine, and have not been Scott Anderson/DWMRC 4 July 31, 2017 included in any submittals to the DWMRC. COMMENT 2.4.1. It is impossible to determine the basis for, and accuracy of, the information from the 1979 FES. The concentration of radium-226 in the local soils is not provided. There is no information regarding the results of soil sampling for radium-226 in the vicinity of the Mill prior to the construction of the Mill, or after Mill construction and commencement of operation, or currently. The range of 500 to 1,000 pico Curies-per square meter (pCi/m3) does not indicate a time frame, so one does not know if they are emissions per second, per minute, per day, per week, per month, per year. The Licensee cannot rely on decades-old information where there is no actual data available to support the assertions. 2.4.2. The Licensee and the Division cannot rely on and cite any data in the 1979 FES, unless it is backed up by documents that are readily available to the public and have undergone a current assessment. This is why the Division is obligated to conduct a current environmental analysis of the Reclamation Plan and the License Renewal. 2.5. Reclamation Cell 1. Section 3.2.2.2 of Rev. 5.1 discusses the reclamation of Cell 1. After the removal of the current Cell 1 liner and contents, the Plan discusses the construction of a Cell 1 Disposal Area to dispose of contaminated materials and debris from the Mill site decommissioning and windblown tailings cleanup. This area would have a clay liner, not a synthetic liner with a clay base. COMMENT 2.5.1. The Division must demonstrate that the proposed Cell 1 Disposal Area meets current federal requirements for the disposal of 11e.(2) byproduct material, pursuant to 40 C.F.R. Part 61 Subpart W.4 Section 61.252(a)(2)(i) references the requirements of 40 C.F.R. 192.32(a)(1),5 which references the provisions of 40 C.F.R. § 264.221 Design and operating requirements.6 The Licensee did not discuss how the Cell 1 Disposal Area would meet these requirements. The Division must demonstrate that the Cell 1 Disposal Area will meet the EPA requirements for 11e.(2) byproduct material disposal cells. Scott Anderson/DWMRC 5 July 31, 2017 4 40 C.F.R. § 61.252(a)(2)(i): “(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). . . .” 5 https://www.law.cornell.edu/cfr/text/40/192.32 6 https://www.law.cornell.edu/cfr/text/40/264.221 2.6. Milestones for Reclamation. Section 6 of Rev. 5.1 discusses Milestones for Reclamation. Section 6 references and quotes from Utah Administrative Code R313-24-4, incorporating by reference 10 CFR Part 40 Appendix A Criterion 6A(1): provides that: For impoundments containing uranium byproduct materials, the ﬁnal radon barrier must be completed as expeditiously as practicable considering technological feasibility after the pile or impoundment ceases operation in accordance with a written, Commission-approved reclamation plan. (The term as expeditiously as practicable considering technological feasibility as speciﬁcally deﬁned in the Introduction of this appendix includes factors beyond the control of the licensee.) Deadlines for completion of the ﬁnal radon barrier and, if applicable, the following interim milestones must be established as a condition of the individual license: windblown tailings retrieval and placement on the pile and interim stabilization (including dewatering or the removal of freestanding liquids and recontouring). The placement of erosion protection barriers or other features necessary for long-term control of the tailings must also be completed in a timely manner in accordance with a written, Commission- approved reclamation plan. Section 6 also states: Under Section 5.3.1 of the Company’s Reclamation Plan Revision 3.2, placement of cover materials will be based on a schedule determined by analysis of settlement data, piezometer data and equipment mobility considerations. This gives the regulator authority to set deadlines and milestones as conditions allow, through the future approval of the schedule. The deadlines and milestones in the approved schedule would then serve as the deadlines and milestones for reclamation of the Mill, as contemplated by 10 CFR Part 40 Appendix A, Criterion 6A(1). COMMENT 2.6.1. Rev. 1 references Reclamation Plan Revision 3.2. It is unclear if Revision 3.2 is incorporated into the White Mesa Mill License. It is not mentioned in any License Condition. Any previous NRC or DWMRC approved Reclamation Plans that are being referenced by and included in Rev. 5.1 must also be incorporated into the License. 2.6.2. The Rev. 5.1 states that the regulator (that is, DWMRC) has authority to set deadlines and milestones as conditions allow, through the future approval of the schedule. The DWMRC has the authority to approve reclamation milestones and changes to the milestones, upon receipt of a license amendment request by the Licensee. The DWMRC does not have the authority to independently establish milestones and other reclamation schedules. Therefore, it appears that the proposed milestones in the SCA should be Scott Anderson/DWMRC 6 July 31, 2017 included in an amendment request by the Licensee to the DWMRC. Upon receipt of the amendment request, the Division is required to provide an opportunity for public comment. The Division is also required to provide an opportunity for public comment on the intent to approve the proposed milestone(s).7 2.7. Milestones: Existing Tailings Management System at the Mill. Section 6.2.1c) discusses the existing tailings cells at the Mill: Cells 1, 2, 3, 4A, and 4B. COMMENT 2.7.1. The License and the DWMRC should acknowledge that Cell 3, an operational tailings impoundment, must enter closure before the Licensee can use Cell 4B for tailings sands. EPA regulation (revised in 2017) at 40 C.F.R. § 61.252(a)(2)(i) states: “The owner or operator shall have no more than two conventional impoundments, including existing conventional impoundments, in operation at any one time.” A conventional impoundment is deﬁned as “a permanent structure located at any uranium recovery facility which contains mostly solid uranium byproduct material or tailings from the extraction of uranium from uranium ore.” 2.8. Leaving a Portion of an Impoundment Open for Disposal of On-site Generated Trash or 11e.(2) Byproduct Material from ISR Operations. Section 6.2.3d) of Rev. 5.1 states: The License authorizes a portion of a speciﬁed impoundment to accept uranium byproduct material or such materials that are similar in physical, chemical, and radiological characteristics to the uranium mill tailings and associated wastes already in the pile or impoundment, from other sources, during the closure process, and on-site generated trash. COMMENT 2.8.1. License Condition 10.1.B states: “The licensee may not dispose of any material on site that is not “byproduct material,” as that term is deﬁned in 42 U.S.C. Section 2014(e)(2) (Atomic Energy Act of 1954, Section 11(e)(2) as amended).” Scott Anderson/DWMRC 7 July 31, 2017 7 “EPA expects the NRC and Agreement States to act consistently with their commitment in the MOU and provide for public notice and comment on proposals or requests to (1) incorporate radon tailings closure plans or other schedules for effecting emplacement of a permanent radon barrier into licenses and (2) amend the radon tailings closure schedules as necessary or appropriate for reasons of technological feasibility (including factors beyond the control of the licensees). Under the terms of the MOU, NRC should do so with notice timely published in the Federal Register. In addition, consistent with the MOU, members of the public may request NRC action on these matters pursuant to 10 CFR 2.206. EPA also expects the Agreement States to provide comparable opportunities for public participation pursuant to their existing authorities and procedures.” 59 Fed. Reg. 36280, 36285, column 3. https://www.epa.gov/sites/production/ﬁles/2015-08/documents/subpartt1994.pdf Therefore, the License cannot dispose of “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 or prior to closure. These “other materials”cannot be disposed of if they do not meet the deﬁnition of 11e.(2) byproduct material in the AEA and NRC and EPA regulation. The deﬁnition of “11e.(2) byproduct material” in the AEA and NRC and EPA regulations is discussed in Exhibit A to the comments on the White Mesa Mill License Renewal. 2.9. Windblown Tailings Retrieval. Section 6.2.4a) of Rev. 5.1 discusses Mill Demolition and Windblown Tailings Retrieval and Placement in a Tailings Impoundment. The retrieval of windblown tailings takes place during ﬁnal closure of the Mill takes place. COMMENT 2.9.1. The Licensee should be required to retrieve off-site windblown tailings and contaminated soils and other materials from the Mill operation at least annually. The Licensee should be required to retrieve on-site windblown tailings and on-site contaminated soils above the Mill cleanup standard at least annually. Spills of radioactive materials from materials shipped to or from the Mill should be cleaned up immediately. There is no justiﬁcation to wait decades to retrieve windblown tailings and remediate contaminated areas at the Mill and areas outside the Mill boundaries. Retrieval and cleanup of these materials should be part of an ongoing remedial action program. 2.10. Reclamation Schedules COMMENT 2.10.1. Commenters support the establishment of general schedules for decommissioning and reclamation as set out in the Reclamation Plan and SCA. This provides the Licensee, DWMRC, the White Mesa Community, and other members of the public and interested agencies and persons a basis for moving forward when a tailings impoundment is undergoing closure and reclamation and for ﬁnal Mill closure. 2.11. Radon Attenuation During Closure COMMENT 2.11.1. The Reclamation Plan fails to mention radon attenuation during closure, particularly during the period of dewatering when radon emissions increase, as was demonstrated during the dewatering of Cell 2. The monitoring and annual reporting of the Cell 2 radon emissions, pursuant to 40 C.F.R. Part 6 Subpart W requirements for “existing” tailings impoundments (constructed prior to December 15, 1989), showed that radon emissions can be expected to increase during the closure period and, particularly, when active dewatering takes place. The radon monitoring results meant that the Licensee was required to measure the radon emissions monthly and take mitigative Scott Anderson/DWMRC 8 July 31, 2017 measures. If the monitoring had not taken place, there would have been no data to show that the emissions were increasing signiﬁcantly, that mitigative measures were needed, and the locations where the placement of clean soils would be most effective in reducing the radon emissions. Subsequently, the DWMRC determined that Cell 2 was in “closure,” and the Subpart W monitoring and reporting requirement were no longer applicable. However, the Division, under its regulatory authority, on July 23, 2014, ordered the Licensee to continue to monitor the radon emissions from Cell 2, reporting twice yearly, and taking any necessary steps to reduce the emissions if they were above the 20 pico Curie-per square meter-per second (20 pCi/m2-sec) Subpart W emission standard (DRC-2014-004489). 2.11.2. Therefore, Commenters request that, during closure, the Licensee measure the radon emissions from Cells 3, 4A, and 4B at least twice a year according to EPA Method 115, report the results to the Division in a timely manner, and take measures to reduce the emissions if they exceed 20 pCi/m2-sec (or less, as established by the Division). The continued monitoring during closure, when the reduction of water in the tailings cells—through natural evaporation or active dewatering—results in an increase in radon emissions, is necessary to assure that the radioactive emissions are kept as low as reasonably achievable during the closure period. This is one of the most important measures that the DWMRC can take to protect public health and safety during operation and closure of the White Mesa Mill. Thank you for providing the opportunity to comment. Sarah Fields Program Director sarah@uraniumwatch.org 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 Scott Anderson/DWMRC 9 July 31, 2017 Uranium Watch P.O. Box 344 Moab, Utah 84532 435-26O-8384 July 31, 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 dwmrcpublic@utah.gov RE: Energy Fuels Resources (USA) Inc., White Mesa Mill, License No. UT1900479. December 15, 2011, License Amendment Request to Process Material from Sequoyah Fuels Corporation, Gore, Oklahoma. Dear Mr. Anderson: Below please ﬁnd comments on the Energy Fuels Resources (USA) Inc. December 15, 2011, request to receive and process 11e.(2) byproduct material from Sequoyah Fuels Corporation, Gore, Oklahoma, site at the White Mesa Uranium Mill, San Juan County, Utah. The request is to amend Radioactive Materials License No. UT1900479 by adding License Condition 10.8. These comments are submitted by Uranium Watch and on behalf of Living Rivers and the Utah Chapter of the Sierra Club. 1. GENERAL COMMENTS 1.1. The Utah Division of Waste Management and Radiation Control (DWMRC, or Division) should not have included the license amendment request to process Sequoyah Fuels Corporation (SFC) waste at the White Mesa Mill in the License Renewal Process. The renewal of the White Mesa Mill License and the approval of the request to process 11e.(2) byproduct material originating at the Sequoyah Fuels Corporation, Gore, Oklahoma, facility, were two separate proposed licensing actions. The two proposed licensing actions should have not been included in one notice and comment opportunity, one hearing held at Blanding, Utah, and one hearing and opportunity for cross examination held in Salt Lake City. Combining two important but separate licensing actions, along with a third action to approve the White Mesa Mill Reclamation Plan Rev. 5, in one process was onerous for the public and, most likely, for Division staff. It made it difﬁcult to focus the questions provided to the Division for the June 8, 2017, hearing in Salt Lake City. It made it difﬁcult to present comments at the June 15 hearing in Blanding. Combining 3 licensing actions in one notice and comment process will likely delay the review and ﬁnal decisions on these licensing actions. 1.2. The application to process the waste from the SFC Gore facility was submitted to the Division on December 15, 2011. On December 12, 2012, the Division responded with a request for additional information. These 2 documents are on the Division webpage for the White Mesa Mill, under Sequoyah Fuels Corporation: Alternate Feed Request.1 However, the Division did not post the Licensee’s response to the request for additional information and other documents associated with the “Alternate Feed Request” on that webpage. There were additional submittals in August and October 2013 that are references in the Safety Evaluation Report, discussed below. However, the Division failed to post them on the Alternate Feed Request webpage. The SER references, for the most part, do not include links to the documents or information on where to access the various referenced materials, including Sequoyah Fuels Gore Facility licensing documents. 1.3. The failure to make all of the pertinent application documents readily available for public review is reason enough to deny the Amendment Request. 2. SAFETY EVALUATION REPORT (DRC-2017-002764) The “Safety Evaluation Report, Amendment Request to Process an Alternate Feed Material (the SFC Uranium Material) at White Mesa Mill from Sequoyah Fuels Corporation, Gore, Oklahoma, is “in Consideration of an Amendment to Radioactive Materials License No. UT1900479 to Authorize Receipt and Processing of the SFC Uranium Material as an Alternate Feed Material Primarily for the Recovery of Uranium and Disposal of the Resulting Residuals in the Mill's Uranium Tailings Impoundments as 11e.(2) Byproduct Material.” The Safety Evaluation Report (SER) was developed by URS Professional Solutions, LLC, for the Utah Department of Environmental Quality, DWMRC, dated May 1, 2015. 2.1. The SER, Section 1.1, states that the SER “has been prepared to evaluate the environmental impacts of the proposal for the White Mesa Uranium Mill to receive and process alternate feed material from the Sequoyah Fuels Corporation, Inc. (SFC) Facility Conversion Plant located near Gore, Oklahoma (the “Gore Facility”).” According to the SER, the “Uranium Material consists of dewatered rafﬁnate sludges resulting from puriﬁcation and conversion of natural uranium concentrates (yellowcake) at the former Gore Facility” and contains “residual amounts of thorium, uranium, certain non- radioactive metals (arsenic, beryllium, and lead), and barium at concentrations that are Scott Anderson/DWMRC 2 July 31, 2017 1 https://deq.utah.gov/businesses/E/energyfuels/requests/sequoyahfuels.htm higher than present in typical uranium mill tailings and typical uranium ores processed at the White Mesa Mill. COMMENT 2.1.1. The SFC 11e.(2) byproduct material contains radiological and non- radiological materials that are not found in ore that has been processed at the White Mesa Mill since the Mill commenced operation. The Mill and the tailings impoundments were not designed to dispose of the wastes from the processing of such material. The statutory and regulatory programs that are applicable to the operation of the Mill never contemplated the processing, disposal, and long-term presence of such material at the Mill. For these and other reasons outlined below, Division should deny the proposed amendment to process 11e.(2) byproduct material from the Sequoyah Fuels site at the White Mesa Mill. 2.2. SER, Section 1.2, Classiﬁcation of the SFC Uranium Material as Alternate Feed Material. The SER, with respect a determination of whether the feed material is an ore (and, therefore, the wastes from the processing of the SFC Uranium Material at the Mill can be deﬁned as 11e.(2) byproduct material), quotes from the Nuclear Regulatory Commission (NRC) Guidance (SECY 95-211, SECY-99-012, and NRC Regulatory Issue Summary 2000-23): For the tailings and wastes from the proposed processing to qualify as 11e.(2) byproduct material, the feed material must qualify as “ore.” In determining whether the feed material is ore, the following deﬁnition of ore will be used: Ore is a natural or native matter that may be mined and treated for the extraction of any of its constituents or any other matter from which source material is extracted in a licensed uranium or thorium mill. [Emphasis added.] The SER then states, “The NRC declared this ‘front end waste’ to be 11e.(2) byproduct material (See SECY-02-0095, July 25, 2002).” The SER then concludes, “Based on the above considerations, the [Utah Division of Radiation Control] UDRC has determined that the SFC Uranium Material meets this criterion.” COMMENT 2.2.1. Apparently, the Division, believes the SFC Uranium Material meets the deﬁnition of “ore” because it is “any other matter from which source material is extracted in a licensed uranium or thorium mill” and, therefore, the wastes from the processing of the Uranium Material would “qualify as 11e.(2) byproduct material.” In support of that determination, the SER states states that the NRC made a determination with respect the deﬁnition of the Uranium Material. The SER states, “The NRC declared this “front end waste” to be 11e.(2) byproduct material (See SECY-02-0095, July 25, 2002).” In other words, the the Uranium Material would be deﬁned as 11e.(2) byproduct material both Scott Anderson/DWMRC 3 July 31, 2017 before and after processing. These statements and conclusions are confusing and erroneous. If the NRC determined that the Uranium Material is 11e.(2) byproduct material, it does not follow that the waste from the processing of the Uranium Material at the White Mesa Mill is also 11e.(2) byproduct material. The NRC Guidance referenced by the SER states that, for the wastes from the processing of the Uranium Material to be deﬁned as 11e.(2) byproduct material, the material must be deﬁned as “ore.” It is hard to see how the Uranium Material can be both 11e.(2) byproduct material and “ore.” The SER fails to explain how this 11e.(2) byproduct material somehow reverts back to “ore,” so that the wastes from the processing of the Uranium Material can also be deﬁned as 11e.(2) byproduct material. The SER fails to explain this magical transformation, how it takes place, and when (in a speciﬁc time and place) the transformation takes place. 2.2.2. The NRC determination that the SFC Uranium Material is 11e.(2) byproduct material is based on statutory and regulatory deﬁnitions. However, the Licensee’s determination that the SFC Uranium Material somehow becomes “ore” once it is processed has no basis in the Atomic Energy Act (AEA) or NRC or Environmental Protection Agency (EPA) regulations applicable to uranium mills and the regulation of 11e.(2) byproduct material. Therefore, any determination that the Uranium Material is “ore” and the waste from the processing of that Material is 11e.(2) byproduct material has no basis in any applicable federal statute or regulation. The State of Utah has no authority to amend the AEA or NRC or EPA regulations to create or make use of new deﬁnitions in licensing actions. The Division has no authority to redeﬁne 11e.(2) byproduct material, deﬁne any material that is not “ore” as “ore,” or to deﬁne the wastes from the processing of 11e.(2) byproduct material as “11e.(2) byproduct material.” 2.3. The SER, Section 3. Determination of whether the feed material contains hazardous waste. In this section, the DWMRC concludes, “The NRC (2002) classiﬁed the SFC Uranium Material as 11e.(2) byproduct material. Under 40 CFR 261.4(b)(7), solid wastes from the extraction, beneﬁciation, and processing of ores and minerals are not hazardous wastes.” COMMENT 2.3.1. Here, the SER claims that the SFC Material is a waste from the processing of ores to address the question of whether the feed material contains hazardous waste under EPA regulation. They conclude that, since the Uranium Material is a solid waste from the extraction, beneﬁciation, and processing of ores, it is not a hazardous waste. The SER does not mention that 11e.(2) byproduct material is exempted from the deﬁnition of a solid waste and, thereby, the deﬁnition of a hazardous waste, pursuant to 40 C.F.R. § 261.4(a)(4). Section 261.4(a)(4) states: 40 C.F.R. § 261.4 Exclusions. Scott Anderson/DWMRC 4 July 31, 2017 (a)Materials which are not solid wastes. The following materials are not solid wastes for the purpose of this part: (4) Source, special nuclear or by-product material as deﬁned by the Atomic Energy Act of 1954, as amended, 42 U.S.C. 2011 et seq. The SER does not claim that the SFC Material is exempt from the deﬁnition of a solid waste because it is a source material under the AEA. The deﬁnition of source material includes “1) Uranium or thorium, or any combination thereof, in any physical or chemical form or (2) ores which contain by weight one-twentieth of one percent (0.05%) or more of: (i) Uranium, (ii) thorium or (iii) any combination thereof.”2 The SER and the Division do not claim that the SFC Material is either source material (where only the uranium and/or thorium content would be exempt) or that the SFC Material is “ore,” and thereby exempt. That is because there would be no legal basis for deﬁning the SFC Material as “ore,” within the deﬁnition of “source material.” 2.3.2. The SER makes no mention of or explain how the solid and hazard waste exemptions apply if and when the Uranium Material is deﬁned as “ore.” How the Uranium Material is both a “solid wastes from the extraction, beneﬁciation, and processing of ores,”3 so it can be exempt from the deﬁnitions of hazardous waste, and also an “ore” (prior to extraction, beneﬁciation, and processing) is not explained by the Division. In sum, the Division is manipulating the deﬁnitions to reach a desired outcome, however conﬂicting those deﬁnitions and outcomes are. Clearly, the Uranium Material cannot be both a solid waste from “the extraction, beneﬁciation, and processing of ores,” to suit one outcome, and “ore,” to suit another. 2.4. The SER (page 9) provides information about the Environmental Analysis Review Scope. The scope of the review includes the items that are required under the AEA for the scope of an Environmental Analysis of a licensing action.4 The Scope also includes a review of other environmental impacts. COMMENT 2.4.1. The Scope of the Review of the Environmental Analysis demonstrates that the Division is aware of the AEA requirements for an Environmental Analysis and that Scott Anderson/DWMRC 5 July 31, 2017 2 “Source Material means: (1) Uranium or thorium, or any combination thereof, in any physical or chemical form or (2) ores which contain by weight one-twentieth of one percent (0.05%) or more of: (i) Uranium, (ii) thorium or (iii) any combination thereof. Source material does not include special nuclear material.” 10 C.F.R. 40.4. 3 40 C.F.R.” 261.4(b)(7) 4 42 U.S.C. § 2021(o)(3)(C). such an analysis need not be limited by, but must include, those aspects required in the AEA. 2.4.2. It is apparent that the SER and SER Environmental Analysis are guided by the Division’s desire to approve the license amendment request to process the SFC 11e. (2) byproduct material. All of the conclusions serve to minimize any concerns—whether legal, technical, health and safety, or environmental—and demonstrate that there will be no problems or signiﬁcant impacts, including cumulative impacts, if the SFC 11e.(2) byproduct material is shipped, received, stored, processed, and waste disposed of at the White Mesa Mill. The Division analysis is not an independent, balanced analysis. 2.5. SER, Section 4.1.1. Radiological Impacts, Tables 5 and 6 (page 13). Tables 5 and 6 provide data on radiological concentrations of the SFC 11e.(2) product material, based on samples from 2003 and 2005. COMMENT 2.5.1. There is no information that demonstrates that those samples are representative of all of the SFC 11e.(2) product material that is proposed to be processed at the Mill. Nor is there data on the total volume and weight of the listed radionuclides. 2.6. SER, Section 4.1.1. Radiological Impacts, Table 8. Comparison of Radionuclide Activity Concentrations in SFC Uranium Material and Previously Approved Alternate Feed Materials (page 15). Table 8 compares various radionuclide concentrations of the SFC 11e.(2) byproduct material to uranium-bearing waste materials that have already been approved for processing at the White Mesa Mill. These include the materials from W.R. Grace facility and the Maywood, New Jersey, Formerly Utilized Sites Remedial Action Project (FUSRAP) site. COMMENT 2.6.1. The White Mesa Mill never received and processed materials from the W.R. Grace facility or the Maywood FUSRAP site. The Division has proposed removing the license conditions that authorize the processing of those materials from the White Mesa Mill License. Therefore, any information in the SER that refers to those feed materials should be deleted and not taken into consideration, because it is irrelevant. 2.6.2. The Table should have included a comparison of the total mass of the material received and the mass of the various radiological constituents, not just the concentrations. The comparison of concentrations of radiological constituents is affected by the total amount of material and total amounts of speciﬁc radionuclides. 2.7. SER, Section 4.1.1.1 Gamma and Radon Emissions (page 16). Section 4.1.1.1 discusses the radon emissions from the uranium and thorium decay chains and states: “Ra-226 concentrations in the SFC Uranium Material are in disequilibrium and much lower than typical low-grade Colorado Plateau-derived uranium ores.” And, “Given the Scott Anderson/DWMRC 6 July 31, 2017 lower average Ra-226 concentrations in the SFC Uranium Material than in uranium ores typically processed at the mill (Table 7), Rn-222 emissions (from the uranium decay series) in the SFC Uranium Material are expected to be lower than those for the uranium ores processed at the mill.” COMMENT 2.7.1 It is quite possible that the measurements of radium-226 in the SFC 11e.(2) product material is not accurate or is not representative of all of the material. Unless the Division can demonstrate that the measurements of R-226 are accurate and representative of all of the material, the Division cannot assume that the radon-222 emissions from SFC 11e.(2) product material will be less than those from Colorado Plateau and Arizona Strip ores over the life of the Mill and thousands of years into the future. The data on the thorium-228 concentration may also be questionable. Eventually all of the thorium-232 in the material will decay to thorium-228 and thorium-228 progeny. 2.8. The SER, Section 4.1.1.1. Gamma and Radon Emissions (page 16). Section 4.1.1.1 also states, “The lower gamma ﬁeld emanating from the U-nat chain decay in the SFC Uranium Material will be offset to a degree by higher gamma ﬁelds derived from the Th-232 chain decay associated with the SFC Uranium Material.” COMMENT 2.8.1. The SER fails to mention that, since the processing wastes will be disposed of in tailings Cell 4A (and possibly 4B) there is no requirement to measure and report the radon emissions annually, pursuant to 40 C.F.R. Part 61 Subpart W. Therefore, there is currently way to know what the radon-222 emissions will be during and after the disposal of the wastes from the processing of the 11e.(2) byproduct material from Sequoyah Fuels. There will be no way of knowing if the radon-222 emissions are above the generally established standard of 20 pico Curies per square meter per second (20 pCi/m2-sec) and if mitigative measures should be taken to reduce the emissions (usually by placement of clean soil on the tailings). 2.8.2. Therefore, the Division must amend the White Mesa Mill License to include a requirement to monitor and report the radon emissions from Cells 4A and 4B solid tailings at least annually, but preferably twice annually, as is currently required for Cell 2, which is under closure and no longer subject to the Subpart W numerical radon emission standard for older (“existing”) tailings impoundments. The Division has the authority to include this important requirement as a license condition. This proposed action is needed regardless of any approval or denial of the Energy Fuels license amendment. Radon monitoring from Cells 4A and 4B must include measurements of radon-220 emissions. 2.8.3. It is apparent from the data provided in the SER, that there are signiﬁcant amounts of thorium-232 and thorium-232 progeny in the SFC 11e.(2) byproduct material. The SER fails to mention that the radon-220 (from the decay of thorium-232) and the Scott Anderson/DWMRC 7 July 31, 2017 other thorium-232 progeny have not been included in the MILDOS-AREA Model. The White Mesa Uranium Mill license and groundwater permit renewal, “Technical Evaluation and Environmental Assessment” (TEEA) and MILDOS-AREA Model do not provide any information about the doses or impacts from the radioactive particulates and radon-220 emissions from the materials that contain thorium-232 and progeny that have been disposed of at the Mill, may be disposed of in future, based on current License conditions, and are being proposed for disposal. 2.8.4. The SER fails to provide information regarding the radium content of the liquid efﬂuents in Cells 1, 4A, and 4B that will be impacted by the placement of the processing efﬂuents or tailings after the processing of the SFC 11e.(2) byproduct material. The EPA5 and Energy Fuels have determined that the radon emissions from liquid efﬂuents at conventional uranium mills are not ZERO. The Division must require the periodic testing (at least monthly) of the liquid efﬂuents in Cells 1, 4A, and 4B and determine the radon emissions from those efﬂuents, based upon an agreed upon formula. The testing and the formula must include the radium from both the uranium and thorium-232 decay chains. 2.9. SER, Section 4.1.1.3 Packaging, Transportation, and Handling Procedures (page 20 - 21). Section 4.1.1.3 discusses the transportation of the SFC 11e.(2) byproduct material. COMMENT 2.9.1. The Section 4.1.1.3. discussion of transportation of the SFC 11e.(2) byproduct material describes the route that the trucks carrying the Sequoyah Fuels waste will travel. However, the exact route from Interstate 40 in New Mexico to the Mill is not delineated. The SER mentions the use of Utah State Highway (SH) 262 to SH 191, leading to the Mill. The distance from I-40 to the Mill is approximately 186 miles. The distance on SH 262 and SH 191 to the Mill is about 30 miles, so there are over 150 miles between I-40 and Utah SH 262. The roads between Gallup on I-40 and Montezuma Creek, where SH 292 begins, crosses through the Navajo Nation and the Ute Mt. Ute Nation lands. Yet, there is no mentions of that fact in the SER. 2.9.2. The SER must provide a full description of the route from the Sequoyah Fuels facility in Gore, Oklahoma, to the Mill. 2.9.3. The SER must discuss the fact that the route to the Mill from New Mexico crosses tribal lands belonging to the Navajo Nation and Ute Mt. Ute Nation. The SER must assess the impacts to the tribal communities and discuss how Energy Fuels will inform the tribal governments of the transport routes and individual truck shipments. The Scott Anderson/DWMRC 8 July 31, 2017 5 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 SER must discuss how the transport company and Energy Fuels will work with the tribal governments in the event of an accident or other possible exposure scenario. The Division and Energy Fuels cannot ignore the fact that the transportation route crosses tribal lands and requires timely notiﬁcation, emergency planning, and involvement of tribal government ofﬁcials and staff. 2.10. The SER, Section 4.1.2 Non-Radiological Impacts (page 25). Section 4.1.2. states with respect RCRA-Listed Materials Analysis: “As stated in Section 1.3, the SFC Uranium Material is considered to be the result of natural ore processing, therefore no listed RCRA material is presented because it is exempt under 40 CFR 261.4(b)(7).” COMMENT 2.10.1. As discussed above at Section 2.3, the SER claims to exempt the SFC 11e.(2) byproduct material from any RCRA-Listed Materials Analysis because the Material is “solid wastes from the extraction, beneﬁciation, and processing of ores” and not because the SFC Material is “ore.” This leaves one wondering if the Division is manipulating statutory deﬁnitions to allow the material to be processed at the Mill. One the one hand, the material is exempt from any RCRA-Listed Materials Analysis, because the material to be processed is “solid wastes from the extraction, beneﬁciation, and processing of ores;” on the other hand, the SFC material is “ore,” so the wastes from the processing of the SFC 11e.(2) byproduct material will be deﬁned as 11e.(2) byproduct material. And, the NRC has determined that the SFC Material is 11.(2) byproduct material (which means it is not even a “solid waste,” so that the Material can be directly disposed of in a licensed 11e.(2) byproduct material impoundment. Certainly, there are unacknowledged and unexplained discrepancies. 2.10.2. How, exactly, can the SFC Material be both “11e.(2) byproduct material” (as deﬁned under the AEA and NRC and EPA regulation) and “ore” (which has no AEA or NRC and EPA regulatory deﬁnition—just hundreds of years of traditional use of that term? Does this SFC 11e.(2) byproduct material get transformed back into “ore”? These magical processes must be explained by the Division. 2.11. The SER, Table 11. Projected Changes in Tailings Inventories and Concentrations From SFC Uranium Material and Comparison to Other Alternate Feed Materials (page 28). Table 11 provides the estimated concentration and mass of various constituents in the SFC 11e.(2) byproduct material and compares that informaiton with the concentrations and mass of those constituents in the White Mesa Mill tailings (before and after the processing of the SFC 11e.(2) byproduct material) and other data. Based on the footnotes to Table 11, it appears that the assumption is that the waste from the processing of the SFC 11e.(2) byproduct material will be disposed of in Cell 3. The footnotes to Table 11 indicate that the data for the current tailings and tailings after the processing of the Sequoyah Fuels waste all refer to Cell 3, though Cell 2 may also be included in some of the data (the Table is not clear in this respect). The data on the concentration range in the Mill Tailings before Processing the SFC Material (column C) is based on 2004 data. Scott Anderson/DWMRC 9 July 31, 2017 That data is over 12 years old. Table 1 does not include data regarding the wastes in Cells 4A or 4B. According to the SER, the waste from the processing of the SFC 11e.(2) byproduct material will be disposed of in Cell 4A and possibly 4B or future impoundment. COMMENT 2.11.1. The information in Table 11 is of minimal relevance to the disposal of the wastes from the processing of the SFC 11e.(2) byproduct material, because Table 11 relies on old, incomplete data, and does not include data on the existing tailings impoundment(s) that will receive the waste: Cell 4A and possibly 4B. 2.12. The SER, Section 4. Alternatives (page 45). The Section 4 discussion of alternatives to the processing of the SFR 11e.(2) byproduct material states that “alternate sites and engineering methods be considered in the analysis of the license amendment request.” The only alternate site mentioned is the Cotter Mill, which is no longer operational. COMMENT 2.12.1. The SER should have considered 2 other alternatives: 1) the direct disposal of the SFC 11e.(2) byproduct material at the White Mesa Mill and 2) the direct disposal at the Energy Solutions, Clive, Utah, 11e.(2) byproduct material impoundment. The Clive Disposal Facility is licensed to receive and disposal of 11e.(2) byproduct material by the DWMRC. The White Mesa Mill is also licensed to directly dispose of 11e.(2) byproduct material. These are alternatives that should reasonably have been considered in the SER. Of concern with both alternatives is the fact that the SFC 11e.(2) byproduct material has numerous constituents that are not found in, or are not found in similar concentrations, as 11e.(2) byproduct material produced from the processing of ore (that is, as natural material after removal from its place in nature) at the White Mesa Mill and other uranium mills. 3. DENIAL OF LICENSE AMENDMENT REQUEST COMMENT The Division should deny the license amendment request to process 11e.(2) byproduct material from the the Sequoyah Fuels Corporation, Gore, Oklahoma, facility at the White Mesa Mill for the following reasons: 3.1. The NRC has determined that the SFC material is 11e.(2) byproduct material, under the deﬁnition of in the AEA and NRC and EPA regulation. The SER and the Division have not explained, and cannot explain, how the SFC 11e.(2) byproduct material can be transformed back into a material that can be deﬁned as “ore,” based on statutory and regulatory provisions in the AEA and NRC and EPA regulations. Scott Anderson/DWMRC 10 July 31, 2017 3.2. The wastes from the processing of the SFC 11e.(2) byproduct material at the White Mesa Mill would not meet the deﬁnition of 11e.(2) byproduct material. That is because the SFC material is not “ore,” as that term has been in common use for hundreds of years6 and how that term is used in the AEA deﬁnition of 11e.(2) byproduct material.7 AEA, as amended by the Uranium Mill Tailings Radiation Control Act of 1978 (UMTRCA),8 does not sanction the processing of feed materials other than natural ores and the disposal of wastes from such processing at licensed uranium and thorium processing facilities. The AEA does not include a deﬁnition, or any indication of such deﬁnition, of “ore” that states that “ore” is any “matter from which source material is extracted in a licensed uranium or thorium mill.” The AEA does not give the Utah Scott Anderson/DWMRC 11 July 31, 2017 6 The word, or term, "ore," as deﬁned in several sources: • Ore—a naturally occurring solid material from which metal or other valuable minerals may be extracted. [Illustrated Oxford Dictionary, DK Pub. 1998.] • Ore—A native mineral containing a precious or useful metal in such quantity and in such chemical combination as to make its extraction proﬁtable. Also applied to minerals mined for their content of non-metals. [The Compact Oxford English Dictionary, Second Edition, Oxford University Press, 2000, p. 1224:915-916.] • Ore—a. A natural mineral compound of the elements of which one at least is a metal. Applied more loosely to all metaliferous rock, though it contains the metal in a free state, and occasionally to the compounds of nonmetallic substances, as sulfur ore. . . . Fay b. A mineral of sufﬁcient value as to quality and quantity that may be mined for proﬁt. Fay. [A Dictionary of Mining, Mineral, and Related Terms, compiled and edited by Paul W. Thrush and Staff of the Bureau of Mines, U.S. Dept. of Interior, 1968.] • The Oxford English Dictionary points out that the current usage of the word "ore" goes back several hundred years. A Dictionary of Mining, Mineral, and Related Terms lists over 65 compound words using the word "ore," such as ore bin, ore body, ore deposit, ore district, ore geology, ore grader, ore mineral, ore reserve, ore zone. All of these terms incorporate the word "ore" as it relates to the mining of a native mineral. The term "ore," without explanation, has for many years been used in thousands, if not millions, of instances in thousands of mining, milling, geological, mineralogical, radiochemical, engineering, environmental, and regulatory publications. "Ore" like the word "water," is a word of common and extensive usage with a clear and accepted meaning. 7 42 U.S.C. Sec. 2014 (e). “The term 'byproduct material' means (1) any radioactive material (except special nuclear material) yielded in or made radioactive by exposure to the radiation incident to the process of producing or utilizing special nuclear material, and (2) the tailings or wastes produced by the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content." 8 The Uranium Mill Tailings Radiation Control Act of 1978 ("UMTRCA") (Public Law 95-604, 92 Stat. 3033 et seq.), amending the Atomic Energy Act of 1954 (Public Law 83-703, 68 Stat. 919 et.seq.). Department of Environmental Quality (DEQ), or other state or federal entity, the broad authority to authorize the processing of feed materials other than natural ores or the disposal of wastes from such processing at licensed uranium and thorium processing facilities as "11e.(2) byproduct material.” The term “ore” has an accepted and historical deﬁnition as that term is used in the AEA and regulations promulgated responsive to that Act. Neither the NRC, nor the DEQ have the authority to use “guidance” or other means to change the substantive meaning of a word and, thereby, the regulatory program associated with that word and associated deﬁnitions. The DEQ does not have the authority to amend the AEA. 3.3. The statutory history of UMTRCA, found in the two Congressional reports, provides information with respect "uranium mill tailings" and "ore." The Congressional Reports clearly state what was contemplated by Congress (i.e., the intent of Congress) when Congress established a program for the control of "uranium mill tailings" from the processing of "uranium ore" at inactive (Title I of UMTRCA) and active (Title II of UMTRCA) uranium and thorium processing facilities. See House Report (Interior and Insular Affairs Committee) No. 95-1480 (I), August 11, 1978, and House Report (Interstate and Foreign Commerce Committee) No. 95-1480 (II), September 30, 1978. Under "Background and Need," HR No. 95-1480 (I) states: Uranium mill tailings are the sandy waste produced by the uranium ore milling process. Because only 1 to 5 pounds of useable uranium is extracted from each 2,000 pounds of ore, tremendous quantities of waste are produced as a result of milling operations. These tailings contain many naturally-occurring hazardous substances, both radioactive and nonradioactive. . . . As a result of being for all practical purposes, a perpetual hazard, uranium mill tailings present the major threat of the nuclear fuel cycle. In its early years, the uranium milling industry was under the dominant control of the Federal Government. At that time, uranium was being produced under Federal Contracts for the Government's Manhattan Engineering District and Atomic Energy Commission program. . . . The Atomic Energy Commission and its successor, the Nuclear Regulatory Commission, have retained authority for licensing uranium mills under the Atomic Energy Act since 1954. [HR No. 95-1480 (1) at 11.] The second House Report, under "Need for a Remedial Action Program" states: Uranium mills are a part of the nuclear fuel cycle. They extract uranium from ore for eventual use in nuclear weapons and power-plants, leaving radioactive sand-like waste—commonly called uranium mill tailings—in generally unattended piles. [HR No. 95-1480 (2) at 25.] Scott Anderson/DWMRC 12 July 31, 2017 The statutory history of UMTRCA does not provide any basis for a deﬁnition of “ore” as being any “matter from which source material is extracted in a licensed uranium or thorium mill.” 3.4. Atomic Energy Commission (AEC) and the AEA of 1946 also demonstrate the intent of Congress and the agency that preceded the NRC with resect ore and the processing of ore. The domestic uranium mining and milling industry was established at the behest of the Manhattan Engineer District and the AEC. The AEC regulated uranium mines and uranium processing facilities, established ore buying stations, and bought ore. Mining and milling of uranium ore was done under contract to the AEC. AEC purchased uranium ore under the Domestic Uranium Program. Regulations related to the AEC's uranium procurement program were set forth in 10 C.F.R. Part 60. Part 60 was deleted from 10 C.F.R. on March 3, 1975, after the establishment of the NRC. The AEC published a number of circulars related to their Domestic Uranium Program. The Domestic Uranium Program—Circular No. 3—Guaranteed Three Year Minimum Price—Uranium-Bearing Carnotite-Type or Roscoelite-Type Ores of the Colorado Plateau Area" (April 9, 1948), an amendment to 10 C.F.R. Part 60, states: § 60.3 Guaranteed three years minimum price for uranium-bearing carnotite-type or roscoelite-type ores of the Colorado Plateau—(a) Guarantee. To stimulate domestic production of uranium-bearing ores of the Colorado Plateau area, commonly known as carnotite-type or roscoelite-type ores, and in the interest of the common defense and security the United States Atomic Energy Commission hereby establishes the guaranteed minimum prices speciﬁed in Schedule 1 of this section, for the delivery of such ores to the Commission, at Monticello, Utah, and Durango, Colorado, in accordance with the terms of this section during the three calendar years following its effective date. Note: In §§ 60.1 and 60.2 (Domestic Uranium Program, Circulars No. 1 and 2), the Commission has established guaranteed prices for other domestic uranium-bearing ores, and mechanical concentrates, and reﬁned uranium products. Note: The term "domestic" in this section, referring to uranium, uranium- bearing ores and mechanical concentrates, means such uranium, ores, and concentrates produced from deposits within the United States, its territories, possessions and the Canal Zone. 10 C.F.R. Part 60—Domestic Uranium Program at § 60.5(c) states: Deﬁnitions. As used in this section and in § 60.5(a), the term "buyer' refers to the U.S. Atomic Energy Commission, or its authorized purchasing agent. The term "ore" does not include mill tailings or Scott Anderson/DWMRC 13 July 31, 2017 other mill products. . . . [Emphasis added.] [Circular 5, 14 Fed. Reg. 731 (February 18, 1949).] It is clear that the AEC was the primary mover in the domestic uranium mining and milling program. It is clear that under the AEAs of 1946 and 1954, the AEC regulated uranium mining and milling and established a uranium ore-buying program. It is clear that from the 1940's to 1975, the regulations in 10 C.F.R. Part 60 clearly stated that "ore" does not include mill tailings or other mill products. It is clear that “ore,” under the AEA and AEC regulation did not mean any “matter from which source material is extracted in a licensed uranium or thorium mill.” Such a new deﬁnition contradicts the AEA. 3.5. The Statutory Deﬁnition of Source Material also is relevant to the use of the term “ore” under that AEA and NRC regulation. The AEA of 1946, under "Control of Materials," Sec. 5 (b), "Source Materials," (1), "Deﬁnition," provides the deﬁnition of "source material." Section 5(b)(1) states: Deﬁnition. — As used in this Act, the term "source material" means uranium, thorium, or any other material which is determined by the Commission, with the approval of the President, to be peculiarly essential to the production of ﬁssionable materials; but includes ores only if they contain one or more of the foregoing materials in such concentration as the Commission may by regulation determine from time to time. The AEA of 1954, Chapter 2, Section 11, "Deﬁnitions," sets forth the current statutory deﬁnition of "source material” at Sec. 11(s): The term "source material" means (1) uranium, thorium, or any other material which is determined by the Commission pursuant to the provisions of section 61 to be source material; or (2) ores containing one or more of the foregoing materials, in such concentrations as the Commission may by regulation determine from time to time. [42 U.S.C. Sec. 2014(z).] Responsive to this statutory deﬁnition, in 1961 the AEC established the following regulatory deﬁnition at 10 C.F.R. § 40.4: Source Material means: (1) Uranium or thorium, or any combination thereof, in any physical or chemical form or (2) ores which contain by weight one-twentieth of one percent (0.05%) or more of: (i) Uranium, (ii) thorium or (iii) any combination thereof. Source material does not include special nuclear material. [26 Fed. Reg. 284 (Jan. 14, 1961)] Therefore, the AEC made a determination, in accordance with the mandate of the AEA of 1954, that ores containing 0.05% thorium and/or uranium would meet the statutory deﬁnition of source material. At the same time that they made that determination, the Scott Anderson/DWMRC 14 July 31, 2017 AEC had a regulation that clearly stated that "ore" does not include mill tailings or other mill products. Surely, the AEC, as the administrator of a uranium ore procurement program and the developer of the uranium mining and milling industry knew what they were talking about when they used the term "ore." Additionally, the AEC set forth certain exemptions to the regulations in 10 C.F.R. Part 40. The proposed rule that was later ﬁnalized in January 1961 states, in pertinent part: The following proposed amendment to Part 40 constitutes an over-all revision of 10 CFR Part 40, "Control of Source Material." With certain speciﬁed exceptions, the proposed amendment requires a license for the receipt of title to, and the receipt, possession, use, transfer, import, or export of source material. . . . Under the proposed amendment, the deﬁnition of the term "source material": is revised to bring it into closer conformance with that contained in the Atomic Energy Act of 1954. "Source Material" is deﬁned as (1) uranium or thorium, or any combination thereof, in any physical or chemical form, but does not include special nuclear material, or (2) ores which contain by weight one-twentieth of one percent (0.05 percent) or more of (a) uranium, (b) thorium or (c) any combination thereof. The amendment would exempt from the licensing requirements chemical mixtures, compounds, solutions or alloys containing less than 0.05 percent source material by weight. As a result of this exemption, the change in the deﬁnition of source material is not expected to have any effect on the licensing program. . . . Section 62 of the Act prohibits the conduct of certain activities relating to source material "after removal from its place of deposit in nature" unless such activities are authorized by license issued by the Atomic Energy Commission. The Act does not, however, require a license for the mining of source material, and the proposed regulations, as in the case of the current regulations, do not require a license for the conduct of mining activities. Under the present regulation, miners are required to have a license to transfer the source material after it is mined. Under the proposed regulation below, the possession and transfer of unreﬁned and unprocessed ores containing source material would be exempted. [47 Fed. Reg. 8619 (September 7, 1960).] Therefore, the AEC established, via a rulemaking, exemptions for source material as deﬁned in Sec. 2014(z)(1) related to mixtures, compounds, solutions, or alloys containing uranium and/or thorium: (a) Any person is exempt from the regulations in this part and from Scott Anderson/DWMRC 15 July 31, 2017 the requirements for a license set forth in section 62 of the Act to the extent that such person receives, possesses, uses, transfers or delivers source material in any chemical mixture, compound, solution, or alloy in which the source material is by weight less than one-twentieth of 1 percent (0.05 percent) of the mixture, compound, solution or alloy. The exemption contained in this paragraph does not include byproduct material as deﬁned in this part. [10 C.F.R. § 40.13(a), 26 Fed. Reg. 284 (Jan. 14, 1961).] The AEC also established, via a rulemaking, exemptions for source material as deﬁned in Sec. 2014(z)(2) related to "ore": b) Any person is exempt from the regulations in this part and from the requirements for a license set forth in section 62 of the act to the extent that such person receives, possesses, uses, or transfers unreﬁned and unprocessed ore containing source material; provided, that, except as authorized in a speciﬁc license, such person shall not reﬁne or process such ore. [10 C.F.R. 40.13(b), 26 Fed. Reg. 284 (Jan. 14, 1961).] The deﬁnition of "source material" and the exemptions that are related to those deﬁnitions stand today, over ﬁfty-ﬁve years later. These regulatory deﬁnitions and exemptions did not change when the NRC was established in 1975 and took on the regulatory responsibility for "source material." These regulatory deﬁnitions and exemptions did not change when the AEA was amended by UMTRCA in 1978. 3.5. Deﬁnition of 11e.(2) byproduct material. UMTRCA, among other things, amended the AEA of 1954 by adding a new deﬁnition, the deﬁnition of 11e.(2) byproduct material: Sec. 201. Section 11e. of the Atomic Energy Act of 1954, is amended to read as follows: "e. The term 'byproduct material' means (1) any radioactive material (except special nuclear material) yielded in or made radioactive by exposure to the radiation incident to the process of producing or utilizing special nuclear material, and (2) the tailings or wastes produced by the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content." [42 U.S.C. Sec. 2014 (e).] There is no evidence in the regulatory history of UMTRCA that Congress, in deﬁning "11e.(2) byproduct material" intended to also amend the statutory deﬁnition of "source material." There is no evidence in the regulatory history of UMTRCA that the term "any ore" does not mean "any type of uranium ore" (e.g., ore containing less than .05% uranium and/or thorium and the numerous types of natural uranium-bearing minerals that are mined at uranium mines and milled at uranium mills). There is no evidence in the Scott Anderson/DWMRC 16 July 31, 2017 regulatory history of UMTRCA that Congress intended the term "any ore" to mean anything that the NRC, DWRC, or Energy Fuels wants it to mean. There is no evidence in the regulatory history of UMTRCA that “ore” is “any other matter from which source material is extracted in a licensed uranium or thorium mill.” 3.6. In response to UMTRCA, both the EPA and the NRC established a regulatory program for uranium milling and the processing of ores. In establishing those regulations, neither the EPA nor the NRC contemplated the processing of materials that were not "ore" (as that term has been used under the AEA and the common meaning of the term). Neither the EPA nor the NRC considered wastes from other mineral processing operations in their concept of "ore." They did not address in any manner the processing wastes or any matter other than natural ore when promulgating their regulatory regimes for active uranium processing facilities. Further, during the various rulemaking proceedings, the public was never informed that wastes from other mineral processing operations or materials other natural ore, no matter how they were deﬁned, would be processed at licensed uranium or thorium mills. Therefore, the public was given no reasonable opportunity to comment on such processing activities at uranium mills in the rulemaking processes. 3.7. NRC Regulatory Program, 10 C.F.R. Part 40. Responsive to UMTRCA, the NRC incorporated the UMTRCA deﬁnition of 11e.(2) byproduct material (with clariﬁcation) into their regulations at 10 C.F.R. § 40.4: "Byproduct Material" means the tailings or wastes produced by the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content, including discrete surface wastes resulting from uranium solution extraction processes. Underground ore bodies depleted by such solution extraction operations do not constitute "byproduct material" within this deﬁnition. [44 Fed. Reg. 50012-50014 (August 24, 1979).] The NRC also explained the need for the new deﬁnition: Section 40.4 of 10 CFR Part 40 is amended to include a new deﬁnition of "byproduct material." This amendment, which included uranium and thorium mill tailings as byproduct material licensable by the Commission, is required by the recently enacted Uranium Mill Tailings Radiation Control Act. [44 Fed. Reg. 50012-50014 (August 24, 1979).] The NRC promulgated further regulations amending Part 40, in 1980, 45 Fed. Reg. 65521-65538 (October 3, 1980). In the summary, the NRC states: The U.S. Nuclear Regulatory Commission is amending its regulations to specify licensing requirements for uranium and thorium milling activities, including tailings and wastes generated from these activities. The Scott Anderson/DWMRC 17 July 31, 2017 amendments to parts 40 and 150 take into account the conclusions reached in a ﬁnal generic environmental impact statement on uranium milling and the requirements mandated in the Uranium Mill Tailings Radiation Control Act of 1978, as amended, public comments received on a draft generic environmental impact statement on uranium milling, and public comments received on proposed rules published in the Federal Register. [Footnotes omitted.] There is no statement in any of the NRC regulations in 10 C.F.R. Part 40 or in any of rulemaking proceedings promulgating those regulations that wastes from other mineral processing operations, 11e.(2) byproduct material, or any other matter processed in a licensed uranium mill could be deﬁned as "ore," under any circumstances. The NRC regulations did not contemplate that, under any circumstances, wastes and other materials would be processed at licensed uranium or thorium mills and the tailings, or that the wastes from such processing would be disposed of as 11e.(2) byproduct material in the mill tailings impoundments. The regulations promulgated by the NRC did not contemplate this kind of activity. The National Environmental Policy Act ("NEPA") document in support of the promulgation of the NRC regulatory program for uranium mills did not contemplate this kind of activity. In the rulemaking proceedings and NEPA proceeding, the public did not have an opportunity to contemplate and comment on this kind of uranium or thorium mill processing activity. The information provided in the SER and other documents demonstrate that materials other than natural ore contain radiological and non- radiological constituents that are signiﬁcantly different than those in natural ore. Therefore the impacts from the processing and disposal of the wastes from those materials would be different from those of “ore.” Furthermore, 10 C.F.R. Part 40, Appendix A, Criterion 8, states in part: Uranium and thorium byproduct materials must be managed so as to conform to the applicable provisions of Title 40 of the Code of Federal Regulations, Part 440, "Ore Mining and Dressing Point Source Category: Efﬂuent Limitations Guidelines and New Source Performance Standards, Subpart C, Uranium, Radium, and Vanadium Ores Subcategory," as codiﬁed on January 1, 1983. There is no indication that this NRC regulation and the regulation in 40 C.F.R. Part 440 (and the enabling statute) have in any manner been amended or altered by subsequent NRC policy guidance. Therefore, any shift in the usage of the word "ore" would conﬂict with statutory and regulatory authorities with respect 10 C.F.R. Part 40 and 40 C.F.R. Part 440. Scott Anderson/DWMRC 18 July 31, 2017 3.8. The Final Generic Environmental Impact Statement on Uranium Milling (GEIS).9 The GEIS makes a clear statement regarding the scope of the GEIS and its understanding of what uranium milling entails: As stated in the NRC Federal Register Notice (42 FR 13874) on the proposed scope and outline for this study, conventional uranium milling operations in both Agreement and Non-Agreement States, are evaluated up to the year 2000. Conventional uranium milling as used herein refers to the milling of ore mined primarily for the recovery of uranium. It involves the processes of crushing, grinding, and leaching of the ore, followed by chemical separation and concentration of uranium. Nonconventional recovery processes include in situ extraction or ore bodies, leaching of uranium-rich tailings piles, and extraction of uranium from mine water and wet-process phosphoric acid. These processes are described to a limited extent, for completeness. [GEIS, Volume I, at 3.] The GEIS is very clear about what it considers "ore" to be and gives no indication whatsoever that materials other than ore (a natural material after its removal from its place in nature), such as the tailings or waste from mineral processing operations, are considered to be "ore" if the material is processed at a licensed uranium mill. The GEIS includes a discussion of "Past Production Methods." That discussion makes reference to "ore," "ore exploration," "pitchblende ore," "crude ore milling processes," "lower-grade ores," "uranium-bearing gold ores," "high-grade ores," "ore-buying and "ore reserves." GEIS, Volume I, Chapter 2, at 2-1 to 2-2. In Chapter 6, "Environmental Impacts," there is a discussion of "Exposure to Uranium Ore Dust," which states, in part: Uranium ore dust in crushing and grinding areas of mills contains natural uranium (U-238, U-235, thorium-230, radium-226, lead-210, and polonium-210) as the important radionuclides. GEIS, Volume I, at 6-41. There is also a table giving the "Average Occupational Internal Dose due to Inhalation of Ore Dust," (GEIS at 6-41, Table 6.16). Further, the GEIS discusses "Shipment of Ore to the Mill" (GEIS at 7-11); "Sprinkling or Wetting of Ore Stockpile" (GEIS at 8-2); "Ore Storage" and "Ore Crushing and Grinding" (GEIS at 8-6); "Ore Pad andGrinding" (GEIS, Vol. 3, at G-2); "Ore Warehouse (GEIS, Vol. 3, at K-3); and "Alternatives to Control Dust from Ore Handling, Crushing, and Grinding Operations (GEIS, Vol. III, at K-3 to K-3). In the NRC responses to comments there are discussions of "Average Ore Grade, Uranium Recovery" (GEIS, Vol. II, at A-12 to A-13). Scott Anderson/DWMRC 19 July 31, 2017 9 Final Generic Environmental Impact Statement on Uranium Milling, Nuclear Regulatory Commission, NUREG-0706, September 1980. The GEIS did not consider the processing of wastes from mineral processing operations at uranium or thorium mills. The GEIS gives no indication whatsoever that such wastes are "ore," even if they were processed at a uranium or thorium recovery facility for their "source material content." Clearly, the GEIS did not consider that the wastes from the processing of such wastes (such as material already deﬁned as 11e.(2) byproduct material) would meet the deﬁnition of 11e.(2) byproduct material. Therefore, the GEIS did not evaluate, and the public did not have an opportunity to comment upon, any of the possible health, safety, and environmental impacts of the processing of other mineral processing wastes at uranium or thorium processing facilities. There was no evaluation of the transportation issues related to the transport of such wastes, nor were reasonable alternatives to the transportation, receipt, processing, and disposal of such wastes at uranium or thorium mills ever evaluated. 3.9. EPA Regulatory Standards. UMTRCA directed the EPA to establish standards for uranium mill tailings and directed the NRC to implement those standards. That statute, as codiﬁed in 42 U.S.C. 2022, states in pertinent part: Sec. 2022. Health and environmental standards for uranium mill tailings (b) Promulgation and revision of rules for protection from hazards at processing or disposal site. (1) As soon as practicable, but not later than October 31, 1982, the Administrator shall, by rule, propose, and within 11 months thereafter promulgate in ﬁnal form, standards of general application for the protection of the public health, safety, and the environment from radiological and nonradiological hazards associated with the processing and with the possession, transfer, and disposal of byproduct material, as deﬁned in section 2014(e)(2) of this title, at sites at which ores are processed primarily for their source material content or which are used for the disposal of such byproduct material. . . . [Emphasis added.] Requirements established by the Commission under this chapter with respect to byproduct material as deﬁned in section 2014(e)(2) of this title shall conform to such standards. Any requirements adopted by the Commission respecting such byproduct material before promulgation by the Commission of such standards shall be amended as the Commission deems necessary to conform to such standards in the same manner as provided in subsection (f)(3) of this section. Nothing in this subsection shall be construed to prohibit or suspend the implementation or enforcement by the Commission of any requirement of the Commission respecting byproduct material as deﬁned in section 2014(e)(2) of this title pending promulgation by the Commission of any such standard of general application. In establishing such standards, the Administrator shall consider the risk to the public health, safety, and the environment, the Scott Anderson/DWMRC 20 July 31, 2017 environmental and economic costs of applying such standards, and such other factors as the Administrator determines to be appropriate. * * * (d) Federal and State implementation and enforcement of the standards promulgated pursuant to subsection (b) of this section shall be the responsibility of the Commission in the conduct of its licensing activities under this chapter. States exercising authority pursuant to section 2021(b) (2) of this title shall implement and enforce such standards in accordance with subsection (o) of such section. [42 U.S.C. 2022(b) and (d).] Congress directed the EPA only to establish standards for "sites at which ores are processed primarily for their source material." The EPA, as mandated by UMTRCA, ﬁnalized the "Environmental Standards for Uranium and Thorium Mill Tailings at Licensed Commercial Processing Sites" in 1983.10 48 Fed. Reg. 45925-45947, October 7, 1983. In the "Summary of Background Information" the EPA provides a discussion of "The Uranium Industry" (i.e., the industry that the regulations apply to): The major deposits of high-grade uranium ores in the United States are located in the Colorado Plateau, the Wyoming Basins, and the Gulf Coast Plain of Texas. Most ore is mined by either underground or open-pit methods. At the mill the ore is ﬁrst crushed, blended, and ground to proper size for the leaching process which extracts uranium. . . . After uranium is leached from the ore it is concentrated . . . . The depleted ore, in the form of tailings, is pumped to a tailings pile as a slurry mixed with water. Since the uranium content of ore averages only about 0.15 percent, essentially all the bulk or ore mined and processed is contained in the tailings. [48 Fed. Reg. 45925, 45927, October 7,1983.] Clearly, when the EPA developed its standards for uranium and thorium mills they stated, with speciﬁcity and particularity, what uranium “ore” was, what uranium milling consisted of, and what uranium mill tailings consisted of. The EPA clearly stated that the standards applied to the processing of uranium and thorium ores at uranium and thorium mills. There is no reasonable evidence that would indicate that the standards promulgated by the EPA applied to the processing of wastes from other mineral processing operations at uranium and thorium mills or that ore could be deﬁned as “any other matter from which source material is extracted in a licensed uranium or thorium mill.” Scott Anderson/DWMRC 21 July 31, 2017 10 https://www.epa.gov/radiation/health-and-environmental-protection-standards-uranium-and- thorium-mill-tailings-40-cfr Additionally, the EPA incorporated UMTRCA's deﬁnition of 11e.(2) byproduct material, as clariﬁed by the NRC in 10 C.F.R. 40.4, into their standards at 40 C.F.R. Subpart D, § 192.31(b). Since that time the EPA has not amended their deﬁnition of 11e.(2) byproduct material in a rulemaking proceeding, nor have they amended their deﬁnition via policy guidance. The EPA has not, in any manner, widened the use of the words "any ore" to include “any other matter from which source material is extracted in a licensed uranium or thorium mill.” EPA did not sanction the NRC's policy guidance with respect new deﬁnitions of "ore" and 11e.(2) byproduct material. Clearly, the EPA, as directed by Congress, has not in any manner contemplated the processing of wastes from other mineral extraction operations at uranium or thorium mills when establishing the "Environmental Standards for Uranium and Thorium Mill Tailings at Licensed Commercial Processing Sites." The EPA did not contemplate, nor was the public informed of the EPA intention to consider, the processing of “any other matter from which source material is extracted in a licensed uranium or thorium mill.” In the various rulemaking proceedings that have taken place in the establishment of EPA standards, the public was given no opportunity to consider or comment on the possibility that the EPA standards would also apply to the processing of wastes from other mineral processing operations or “any other matter from which source material is extracted in a licensed uranium or thorium mill.” The processing of wastes (such as the material from the Sequoyah Fuels Corp. Gore facility) from material other than natural ore at uranium and thorium mills was beyond the scope of the regulatory program established by the NRC and the EPA in response to UMTRCA for operating uranium mills. 3.10. The AEA, as amended in 1978 by UMTRCA, included provisions applicable to Agreement States. One of those provisions requires NRC Agreements States (such as Utah) to “require for each license which has a signiﬁcant impact on the human environment a written analysis (which shall be available to the public before the commencement of any such proceedings) of the impact of such license, including any activities conducted pursuant thereto, on the environment, which analysis shall include,” among other things, “consideration of the long-term impacts, including decommissioning, decontamination, and reclamation impacts, associated with activities to be conducted pursuant to such license, including the management of any byproduct material, as deﬁned by section 2014 (e)(2) of this title.”11 So, again, the AEA imposes requirements associated with the deﬁnition of and management of 11e.(2) byproduct material, as that term is deﬁned under the AEA and NRC and EPA regulations promulgated responsive to that Act. The State of Utah has not been given the authority to amend this section of the AEA. 3.11. Regulatory History of NRC’s Alternate Feed Guidance. The SER relies on NRC Guidance (SECY 95-211, SECY-99- 012, and NRC Regulatory Issue Summary Scott Anderson/DWMRC 22 July 31, 2017 11 42 U.S.C. § 2021(o)(3)(C) 2000-23). In the late 1980's the NRC was faced with a few requests to process material other than ore. At that time, and today, there are two statutes or regulations (implementing those statues) that are pertinent. First is the statutory deﬁnition of "source material" established in 1954 by the AEA, found at 42 U.S.C. Sec. 2014(z), and in the NRC regulatory deﬁnition of "source material" (established in 1961 pursuant Sec. 2014(z)), found at 10 C.F.R. 40.4: Source Material means: (1) Uranium or thorium, or any combination thereof, in any physical or chemical form or (2) ores which contain by weight one-twentieth of one percent (0.05%) or more of: (i) Uranium, (ii) thorium or (iii) any combination thereof. Source material does not include special nuclear material. The second is the deﬁnition of "byproduct material" in Section 11(e)(2) of the Atomic Energy Act of 1954, as amended, (42 U.S. C Sec. 2014(e)(2)) and the regulatory deﬁnition of "byproduct material" found in 10 C.F.R. 40.4: Byproduct Material means the tailings or wastes produced by the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content, including discrete surface wastes resulting from uranium solution extraction processes. Underground ore bodies depleted by such solution extraction operations do not constitute "byproduct material'' within this deﬁnition. The NRC had several options, including the denial of the amendment requests to process feed material that was not “ore.” One option would have been to go to Congress and request that Congress change the deﬁnition of 11e.(2) byproduct material to read "the tailings or wastes produced by the extraction or concentration of any ore or any other matter from which source material is extracted in a licensed uranium or thorium mill." Emphasis added. NRC Staff made a determination that they would not go to Congress to seek an amendment to the AEA of 1954. If the AEA was amended to include a new deﬁnitions, the NRC would have also had to commence a rulemaking to amend 10 C.F.R. Part 40, and the EPA would have had also commence a rulemaking to amend 40 C.F.R. Part 192, 40 C.F.R. Part 61 Subpart W, and other regulations. What the NRC did was to manipulate the use of the word "ore" as it is used in the deﬁnition of 11e.(2) byproduct material. NRC proposed in a notice and comment opportunity, that a policy guidance be established for the purpose of interpreting the term "ore," as it is used in the deﬁnition of 11e.(2) byproduct material. 57 Fed. Reg. 20525 (May 13, 1992). The NRC did not institute a rulemaking proceeding to amend 10 C.F.R. Part 40, though they indicated that that was their intent. 3.12. The NRC Final Position and Guidance gave a new deﬁnition of ore: Ore is a natural or native matter that may be mined and treated for the Scott Anderson/DWMRC 23 July 31, 2017 extraction or any of its constituents or any other matter from which source material is extracted in a licensed uranium or thorium mill. [60 Fed Reg. 49296 (September 22, 1995).] Based on the new use of the term "ore" as put forth in the NRC Guidance, not only would the deﬁnition of 11e.(2) byproduct material apply to "any ore processed primarily for its source material content" in a licensed uranium or thorium mill, but the deﬁnition of 11e. (2) byproduct material would also apply to any matter processed primarily for its source material content in a licensed uranium or thorium mill. In other words, NRC altered the accepted meaning of the word "ore" as that word was used in the NRC regulatory deﬁnition of 11e.(2) byproduct material. It is plain from the AEA of 1946 and the legislative history of the AEA of 1954 and the Uranium Mill Tailings Radiation Control Act of 1978 and the regulatory history of the AEC, EPA, and NRC rules promulgated responsive to those laws, that the Policy Guidance's new use of the term "ore" goes far beyond the accepted meaning of that term and the clear intent of Congress. The applicability of various environmental regulations to a great degree depends upon deﬁnitions. Congress, in their legislative function, often speciﬁcally deﬁnes words or phrases related to the application of a statute to a particular material or circumstances— when there is a need for explanation. However, when using words or terms with a common and long accepted meaning, such as groundwater, mill, tailings, or "ore," no explanation or deﬁnition is necessary. The NRC and the State of Utah have not authorized to shift these accepted deﬁnitions at will as an expression of their "regulatory ﬂexibility." This is especially so when such shifts result in direct conﬂicts with NRC's own enabling statutes and regulations, as is the case with the use of the newly deﬁned term "ore." Additionally, NRC is not authorized to shift deﬁnitions at will when such shifts directly conﬂict with the statutory authority and regulations of another federal agency; in this case, the EPA. The NRC issued the 1995 Final Position and Guidance and the 2000 Interim Position and Guidance without conducting an assessment of any of the health, safety, or environmental effects of establishing a substantively new and different regulatory program that resulted from the issuance of the Final Position and Guidance. At the White Mesa Mill, this new recovery program—a program that started with the processing of a few small batches of wastes from other mineral processing operations to supplement the processing of uranium ore—grew to be a major uranium recovery program that entailed the receipt and processing of thousands of tons of wastes from other mineral processing operations from across the country and even Canada. Scott Anderson/DWMRC 24 July 31, 2017 The adverse environmental effects—including cumulative effects—of this new program have not been adequately identiﬁed and evaluated under the statutory framework established by the AEA. Further, no NEPA document has ever considered the reasonable alternatives to the processing of wastes from other mineral processing operations at uranium and thorium recovery facilities. 3.13. UMTRCA, as it amends the AEA, clearly speciﬁed what constitutes "any ore." What constitutes "any ore" is "any ore." The plain language of the Act and the history of the implementation of the AEA of 1946, as amended by the AEA of 1954 and UMTRCA is all that is needed to determine what "ore" or "any ore" is. Clearly the legislative and regulatory history of the AEA and Title 10 of the Code of Federal Regulations make plan the meaning of the term "ore" and the term "any ore." The DWMRC’s use of the word "ore" for waste materials from mineral processing operations (in this case materials already deﬁned as 11e.(2) byproduct material) is unreasonable and not permitted under the plain language of the AEA. No state or federal agency can use a licensing action or a policy guidance to expand upon and substantively alter the will of Congress when that will is explicitly set forth in statute. 3.14. The standards promulgated by the EPA in 40 C.F.R. Part 192 Subpart D and 40 C.F.R. Part 61 Subpart W no not apply to the processing of materials other than natural ore at a licensed uranium mill, the construction of tailings impoundments that will receive wastes from the processing of materials other than natural ore, the disposal of wastes from the processing of materials other than natural ore, or any other operations or health and safety or environmental impacts from the processing of materials other than natural ore at a licensed uranium mill. The State of Utah has not been given the authority to amend EPA regulations through use of NRC guidance or by any other means. Therefore, the DWMRC cannot approve the proposed license amendment request to process 11e.(2) byproduct material at the White Mesa Mill and the License Amendment Request must be denied. Thank you for providing the opportunity to comment. Sarah Fields Program Director sarah@uraniumwatch.org and John Weisheit Conservation Director Living Rivers PO Box 466 Scott Anderson/DWMRC 25 July 31, 2017 Moab, Utah 84532 and Marc Thomas, Chair Sierra Club - Utah Chapter 423 West 800 South, Suite A103 Salt Lake City, Utah 84101 Scott Anderson/DWMRC 26 July 31, 2017 1 UTE MOUNTAIN UTE TRIBE COMMENTS ON RADIOACTIVE MATERIALS LICENSE RENEWAL PART I JULY 31, 2017 Part I provides the UMUT comments on the RML Renewal and is divided into three major sections. For purposes of these comments, the Tribe refers to the Utah Division of Management and Radiation Control and its predecessor, the Utah Division of Radiation Control, as DWMRC or DRC. In 2011, the Tribe submitted comments on the then proposed renewal of the RML for the Mill and expressed its concerns about the actual and potential impacts of the Mill on the White Mesa Community and surrounding area. (Letter from Ute Mountain Ute Tribe to Rusty Lundberg, DRC, Comments Regarding Denison Mines (USA) Corp. Radioactive Materials License Renewal DRC-045, Dec. 16, 2011. The Tribe hereby incorporates by reference its 2011 comments. The Tribe also joins in and incorporates herein by reference the comments submitted by the Grand Canyon Trust during this current comment period. Section I provides a snapshot of the Tribe’s historical and cultural connection to the land around WMM and its nexus to the WMM facility. Section II addresses the broad concerns and legal deficiencies identified by the Tribe in the current operation of the WMM by Energy Fuels. Section III provides Tribal concerns on specific sections of the RML Renewal. I. Ute Mountain Ute Tribe’s Historical and Cultural Connection and its Nexus to the WMM Facility “Since the original environmental impact study which was prepared prior to EFN’s mill being built excluded mention of my adjacent community of over 300 people as a population of concern, not even testing our wells as required by law, I hereby ask for standing that your agency give justification for this disregard.” Norman Begay, a White Mesa resident in an April 30, 1997 petition for standing to the Nuclear Regulatory Commission It has been twenty years since Mr. Begay wrote that impassioned plea to the Nuclear Regulatory Commission (NRC) about the White Mesa Mill (WMM) and his sentiment still rings true for people of the Ute Mountain Ute Tribe’s (UMUT) White Mesa community. The original Environmental Impact Statement, written in 1979, made scant mention of the public health, safety and environmental quality concerns of either the Ute Mountain Ute Tribe’s White Mesa Community or their neighbors to the south, the Navajo Nation. Both federally recognized Tribes 2 are downwind and downgradient from the White Mesa Mill and depend upon the Navajo Aquifer as the sole source for their drinking water and domestic use. The Ute Mountain Ute Tribe is a federally-recognized Indian tribe with lands located in the states of Colorado, New Mexico and Utah. While Tribal headquarters are located in Towaoc, Colorado, the White Mesa portion of the reservation and its Tribal citizens comprises the second tribal community and are a major concern to the UMUT government. These lands are located just 3 miles south of the WMM facility in southeastern Utah. The lands, including nearby individual Indian allotments, are held in trust for the Tribe and for individual tribal members. As a federally-recognized tribal government, the Tribe exercises jurisdiction over these reservation lands, trust allotment lands and the tribal membership. Under the Tribe’s Constitution, the Tribal Council is responsible for, among other things, the management and protection of Tribal lands and for the protection of public peace, safety, and welfare. The Tribe’s enrollment is approximately 2,100 members. The current population in White Mesa is approximately 350 residents, most of whom are enrolled members of the tribe. As generations of Utes did before them from time immemorial, the residents of White Mesa intend to raise their families there and continue their traditional cultural practices, many of which extend beyond reservation boundaries into their ancestral homelands throughout southeastern Utah. Since its first inception, the presence of the WMM facility has threatened the health, safety, environment, and the natural and cultural resources which White Mesa residents depend on for their livelihood and to maintain cultural practices. Of particular concern is the threat the WMM facility poses to the air and water resources, especially considering that White Mesa is only a few miles downwind and downgradient from the WMM facility. Community members often remark about a foul odor coming from the WMM facility during or following a wind or storm event, highlighting a heightened need to closely regulate and monitor air quality and a need for periodic updates utilizing the latest data collected. The community of White Mesa depends entirely on groundwater resources buried deep in the Navajo Aquifer for its municipal and domestic needs including drinking water. Accordingly, there is a growing concern among community members that their water resources, including shallow groundwater aquifers and natural springs, are being contaminated by the activities occurring at the WMM facility. Monitoring and observation of groundwater by the Tribe reveals increasing levels of heavy metals associated with the activities of the WMM facility. The gathering of medicinal plants and herbs, food, firewood and the harvesting of animals outside their reservation lands is commonplace, but is also jeopardized by the WMM facility. In addition, many historical and burial sites have been identified within the boundaries of the WMM facilities. Because their ancestors are buried there and they have a deep connection to the place. UMU Tribal Members continue traditional practices, which include hunting and gathering and using the land, plants, wildlife and water in ways that are integral to their culture. It is reasonable and imperative to the health and welfare of the Ute people to expect that those resources are not contaminated with hazardous and radioactive materials that have blown in the wind or traveled through the groundwater from this facility regulated by DEQ. 3 These issues and concerns of the Tribe are exacerbated by the limited amount of resources and economic development opportunities available to the White Mesa community. The operation of the last conventional uranium mill in the United States that borders the White Mesa community amounts to an inequitable distribution of environmental dangers to a low-income underemployed Indian community. As such, environmental justice demands that White Mesa receive the same equal degree of protections, involvement, consideration and access to decision-making processes, as their neighboring non-Indian communities, on all governing and regulatory matters having an impact on their lives, culture, resources and environment. II. Ute Mountain Ute Tribe’s Broad Concerns and Legal Deficiencies in the WMM Facility The Tribe has serious concerns about the manner in which the WMM is currently operated and regulated. The Tribe has long expressed concern that the WMM operations (in particular, management practices that have allowed continued contamination of surface resources, groundwater resources, and surface water resources) pose serious threats to the health of the land and the natural and cultural resources within and around the Tribe’s White Mesa community and to the health and welfare of its Tribal members and their future generations. The Tribe has also expressed concern that the poor quality of reclamation planning and surety estimations for the WMM facility will ultimately result in a legacy of environmental contamination and blight both in the White Mesa community and in surrounding communities. The Tribe submits these comments to identify the deficiencies in the operation of the WMM facility and to request that DRC take appropriate regulatory action to protect the health and safety of the public, UMU Tribal members, and the environment. The Tribe wishes to remind the DWMRC that according to the “Rule of Law” promulgated by the State of Utah that: The Director of the Division has the authority and responsibility to “ensure the maximum protection of the public health and safety to all persons at, or in the vicinity of, the place of use, storage, or disposal” of radioactive materials. Utah Admin Code R313-12-2. Before approving a radioactive materials license or license renewal the Director must determine that “the issuance of the license will not be inimical to the health and safety of the public”. Utah Admin Code R313- 22-33(d). The Director’s authority is not limited to including in a license only those expressly enumerated in the Division’s rules. The Director has broad authority to incorporate into licenses “additional requirements and conditions with respect to the licensee's receipt, possession, use and transfer of radioactive material subject to Rule R313-22 as the Director deems appropriate or necessary in order to … minimize danger to public health and safety or the environment.” Utah Admin Code R313-22-34(2) (a). 4 The Director also has broad authority, by order, to “impose upon a licensee or registrant requirements in addition to those established in these rules that the Director deems appropriate or necessary to minimize any danger to public health and safety or the environment.” R313-22-54. Under the “Agreement Between the United States Nuclear Regulatory Commission and the State of Utah for Discontinuance of Certain Commission Regulatory Authority and Responsibility Within the State Pursuant to Section 274 of the Atomic Energy Act of 1954, As Amended” (“NRC/Utah Primacy Agreement”), the Nuclear Regulatory Commission recognized that the State of Utah “has a program for the control of radiation hazards adequate to protect the public health and safety” with respect to both “source material” and “by-product material” (as defined by the Atomic Energy Act of 1954, and hereinafter “Radioactive Material”). The State has delegated its authority and responsibility for the regulation of Radioactive Material to the DRC. See, e.g., U.C. § 19-3-104(4). The Radiation Control Board has exercised its authority to regulate the use of Radioactive Material “to ensure the maximum protection of the public health and safety to all persons at, or in the vicinity of, the place of use, storage, or disposal.” Utah Admin. Code R313-12-2. Thus, under both the Utah Code and under the DRC’s own rules, the DRC maintains primary responsibility for regulating Radioactive Material to protect public health and safety. I-II-A Fugitive Dust from the White Mesa Mill poses a hazard to public Health and Environment. The Tribe requires that better controls be installed and work practices be implemented to reduce this hazard. In the Environmental Monitoring Plan 2016, the Tribe appreciates the additional soil monitoring sites along the fence lines and the two new monitoring stations requirements of DWMRC. The requirement for the radionuclide assessment for soils and effluents to include Th-232 concentration analysis is also a necessary improvement. These methods should assist to alert the WMM to any potential off-site migration due to air deposited activities from the mill. In the revision from the 2009 to the 2017 WMM Storm water Best Management Practices (SWBMP) Plan and the 2016 Spill Prevention, Control, and Countermeasures (SPCC) Plan for Chemicals and Petroleum Products, no changes were made to the plans pertaining to the containment of the migration or the control pathways relating to air deposited radioactive materials generated from mill activities, including those related to the alternative feed material. Due to material identified leaving the site per the USGS Survey in 2011, that did indicate off-site migration, then the plans cited above continue to remain deficient in order to control deposition of for erosion control. Therefore the DRWRC must require the WMM to modify the SPCC Plan to correctly identify and control pathways for the movement of these materials. In the Draft WMM Work Practice Standards for Control of Fugitive Dust Ore Receipt and Front-End Loader Operations, the DAQ Approval Order Opacity limit of 15% is provided for regulatory control of radioactive materials on the ore pad, with a conservative measure of 10% applied in order that this threshold is not exceeded. The Standard states, “If it is observed that dusting is in excess of 10% during ore handling activity, the trained observer will notify operations personnel and ore handling operations will be slowed to control dust. In addition to 5 these controls, and as a general dust control measure, water spray is applied on an as needed basis in the ore handling area…” Opacity may be a useful tool and an indicator of dust concentrations, however, for a radiation worker, this is not an acceptable method to provide ALARA practices. Nor does opacity provide sufficient protection for elimination of radioactive dusts from spreading off-site. Other measures with a sound scientific basis must be implemented along with the opacity requirement and the “trained observer” who may or may not decide to apply water spray, or order the slowing down of the ore handling operations. More detailed discussions can be found in correspondence from the Tribe to Rusty Lundberg, DRC, Comments Regarding Denison Mines (USA) Corp. Radioactive Materials License Renewal DRC-045, Dec. 16, 2011. References: Denison, Re: Interrogatory, Renewal Application for Radioactive Materials License (RML) No. UT1900479, to Dane Finerfrock, Executive Secretary, Radiation Control Board, Utah DEQ, Feb. 5, 2009. EFR, WMM Spill Prevention, Control, and Countermeasures Plan for Chemicals and Petroleum Products, Dec. 2016. EFR, WMM Revised Storm water Best Management Practices Plan, May 2016. USGS, Natz, D., Ranalli, A., Rowland, R., and Marsten, T., Assessment of Potential Migration of Radionuclides and Trace Elements form the White Mesa Uranium Mill to the Ute Mountain Ute Reservation and Surrounding Areas, Southeastern Utah, 2012. Ute Mountain Ute Tribe, Correspondence to Rusty Lundberg, DRC, Comments Regarding Denison Mines (USA) Corp. Radioactive Materials License Renewal DRC-045, Dec. 16, 2011. I-II-B Cell One should be closed, cleaned and re-lined or in the alternative close Cell One and change storm water management off the Mill Yard. Because of the threat of serious groundwater contamination from leaking PVC liners, the Tribe’s expert has recommended closure of Cell 1. However, the Tribe is concerned that necessary revisions to Reclamation Plan 5.1 and the Storm Water Best Management Practices Plan (“Storm water Plan”) may require a liquids disposal cell in the current Cell 1 location to catch storm water runoff from the Mill Yard and prevent the discharge and dispersion of Radioactive Material, alternative feed material, and other chemicals in the washes and creeks west of Cell 1. Accordingly, the Tribe has identified two options to address the threat of groundwater contamination from Cell 1. First, EFRI could close, de-water, clean, and re-line Cell 1. Here, the Tribe asserts that DRC should require EFRI to dispose of waste and the current Cell 1 liner in a disposal cell designed to the standards used for Cells 4A and 4B. The Tribe also insists that DRC require EFRI to install a new liner system into Cell 1 that meets BAT/BACT in 2017 (which will, at a minimum, include a compacted clay base and two 60-mil HDPE liners). The 6 Tribe also asserts that DRC should require EFRI to install a functional leak detection system in the re-lined Cell 1. An alternative option to address the threat of contamination from Cell 1 would be to close and de-water the cell and move any remaining contents and the Cell 1 liner into a disposal cell with a liner designed to the standards used in Cells 4A and 4B. Here, DRC must also require EFRI to modify the storm water management at the facility to prevent the planned discharge of Radioactive Material from the Mill Site to the west of the Cell 1 location. I-II-C Environmental Monitoring Program Needs - The Division of Waste Management and Radiation control has misrepresented the exposure pathway for wind borne contaminates in assessing risk to the White Mesa Community. The Tribe requests that licensing decisions and publicly disseminated decisions represent real scientific data. On the DWMRC White Mesa Uranium Mill Frequently Asked Questions1 fact sheet second page which refers to the monitoring wells and air monitors, is the statement, “Based on meteorological data at the site, the prevailing winds in the area flow to the northwest and away from those living in White Mesa, reducing the possibility of even the most minimal public exposure to particulates and radon from mill operations.” This reflects the DWMRC’s and EFR’s viewpoint that the UMUT, the largest community closest to the mill, is not worth consideration as a receptor of any concern. White Mesa meteorological data indicates that from 2011 to the present, the hourly-averaged prevailing winds mainly blow in the direction of either the northeast or southwest. The directions are variable based on diurnal patterns: the wind shifts from the southwest during the daytime to coming from the northeast during the nighttime, and during these transitions, the wind blows from the northwest. The wind patterns also change seasonally e.g., in the spring months, the winds blow from the northeast at a higher frequency than other seasons. The frequency of winds blowing for hourly averages from the northwest quadrant (270 to 359 degrees) to White Mesa are at an annual frequency of 27%, which is not a trivial amount. Another factor to consider is that this area is considered complex terrain and the canyons to the east and those to the west affect the wind patterns, sometimes drastically. Also residents of the community complain of ‘smelling’ effluents from the mill. To demonstrate these statements, windroses for the year 2016, depicting the wind direction and velocity classes at the Tribe’s White Mesa meteorological station, are presented in the figures below (some of the percentage labels change from figure to figure).2 1 https://documents.deq.utah.gov/communication-office/fact-sheets/White-Mesa-Uranium-Mill- Fact-Sheet.pdf 2 UMUT, Air Quality Meteorological Data, 2016 7 Figure 1: White Mesa Community Windrose for 2016 over 24 hour period. Figure 2: White Mesa Community Windrose for 2016 from 19:00-07:00 hours. 8 Figure 3: White Mesa Community Windrose for 2016 from 08:00 to 18:00 hours. Figure 4: White Mesa Community Windrose for February, March, and April 2016 over 24 hour period. 9 I-II-D Require EFRI to permanently close Tailings Cell 2. Require EFRI to cease putting any additional material into Tailings Cell 3 (including ISL Waste) and to permanently close Tailings Cell 3. Require that EFRI place adequate permanent cap systems on Tailings Cells 2 and 3. Require EFRI to cease putting any additional material (liquid or otherwise) into Tailings Cell 1. Here, the Tribe recommends that DRC require EFRI to re-line Tailings Cell 1 with a liner that meets BAT/BACT for 2011 so that the WMM has a functional liquids disposal cell for the life of the facility and to provide an adequate storm water catchment basin during reclamation of the facility. See Section IV (A) (1), infra (describing problems with liquid disposal and storm water runoff in Reclamation Plan 5.0). In the alternative, DRC could require EFRI to close and de-water Cell 1, place the remaining contents of Cell 1 in a disposal cell, and re-route storm water from the Mill Yard. I-II-E The DRC must require EFRI to install a leak detection system that allows EFRI to detect and clean up future leaks before the leaks cause groundwater contamination. Pages 33-35 of the SER describe recent problems with the leak detection system (“LDS”) for Tailings Cells 1, 2, and 3, and the RML Renewal contains new License Condition 11.3 to improve the LDS monitoring, operation, and maintenance. The SER and the RML Renewal do not, however, address DRC’s fundamental problems with the LDS for Tailings Cells 1, 2, and 3: that there is no secondary low-permeability barrier below the primary low-permeability liner to accumulate leakage to the leak collection pipe and that the long horizontal distance to reach the collection pipe poses a risk of vertical seepage losses. These two problems with the LDS pose a serious risk that non-catastrophic leaks will not be detected until groundwater contamination has occurred and that there is no secondary liner to keep catastrophic or non-catastrophic leaks from resulting in groundwater contamination. I-II-F The Tribe requests additional well monitoring on the WMM facility lands and also on their Tribal lands to ensure the safety of their domestic and drinking water. The Tribe believes that the flow of the groundwater is south to southeast. They would like additional monitoring wells in areas of concern to them in order to allay their fears and suspicion about contamination. (Areas of concern e.g. MW22) III. Tribal Concerns on Specific Sections of the RML While Section II explains the overarching operational and legal deficiencies with the ongoing operation of the WMM, Section III of the Tribe’s comments provides specific comments and requests on specific issues of the RML Renewal. To facilitate DRC review regarding these specific contamination issues, the Tribe will present each issue with an identification of the problem and a request for DRC to take to improve the public health, safety and environment. . 10 I-III-A Section 9.1 describes the area that the WMM encompasses as if to indicate that there’s room for much more radioactive waste. The Tribe objects and requests to the WMM being used as a dumping ground for radioactive waste shipped by trucks over public highways from waste cleanup sites around the United States. The Tribe has seen the investor piece generated by EFRI in which they anticipate processing copper at the WMM. (See Part I Exhibit A - Energy Fuels Investor piece) There needs to be an end to this radioactive and increasingly hazardous waste business at the backdoor of the White Mesa Community. Fifteen years was estimated to be original lifespan of the WMM. The original 1979 Environment Impact Statement (EIS) gave short shrift to the Tribe and the impact this radioactive facility would have on its people. A new EIS needs to be conducted to look at the true impact on the public health, environment and factor in environmental justice issues. These wastes should not be disposed at the Mill. The Mill was originally designed and evaluated for processing low-grade uranium ores mined in the vicinity. It was never intended or designed or environmentally evaluated for disposal of radioactive wastes received form off-site sources, many of which include other hazardous waste constituents. Some of these wastes are being processed through the mill as so-called “alternate feed material” with the residues disposed in the tailings cells. The waste from the Dawn Mine near Spokane, Washington is radioactive waste water treatment sludge generated from treatment of groundwater that was contaminated by uranium milling operations of the same type being conducted at White Mesa. So-called “ISL wastes” from in situ leach mining operations are being shipped to the Mill and dumped directly into Cell 3 – which was never designed for direct disposal of such wastes. This direct disposal activity is not mentioned on the DRC’s FAQ web page which characterizes the Mill as a conventional processing facility rather than a disposal facility. Radioactive wastes from other sites should be properly handled and disposed at the point of generation or at qualified radioactive waste disposal facilities under secure dry disposal rather than disposed as liquid waste at the White Mesa Mill. I-III-B In Sec. 9.4.A, the Tribe requires that the licensee must not make facility or process changes per this section of the license without Director approval on any Cell that is in final closure. In the license application, the applicant cites this section in Vol. II, Appendix H, Sec. 4.0 of the Safety and Environmental review part of the application. Later in the application, within Reclamation Plan 5.1, the applicant eludes to the ability to dispose of materials in a Cell that is already in closure. This is not in compliance with all of the requirements of 10 CFR Part 40, Appendix A. I-III-C In Sec. 9.5 Surety, the Tribe requests an increased level of surety that represents the true cost of reclamation. The current surety for mill closure and reclamation is inadequate. In 2011, RRD Corp used two cost estimate methodologies, a built-up cost based on the proposed reclamation plan 5.0 and a 11 benchmarking cost based on similar facility closures internationally. In 2010 dollars without any remediation of groundwater or offsite contamination the built up cost was $36.5m. The benchmarking costs was estimated at $91.3m in 2012 dollars, escalated to $128.7m for 2020 dollars. A third methodology- the Department of Energy cost for sites on a per-ton-based estimate was $470m. Clearly these are all much higher than the current level of surety approved by the Utah Division of Waste Management and Radiation Control (DWMRC) in 2017. The 25% contingency included in the annual surety calculation is too low. 40 CFR Part 10, Appendix A, Section 9 requires “an adequate contingency factor.” The uncertainties regarding costs of groundwater remediation, required by section 10.21 of the proposed license, and other environmental liabilities currently undisclosed as well as the time required to dewater and reclaim 5 tailing cells make a 25% level of contingency inadequate. The Tribe requests a minimum of 35% level contingency (as recommended by RRD International Corp., 2011), or preferably a larger contingency. (RRD report of 2011 attached as Exhibit H was also submitted by the Tribe in its Public Comments at that time and is resubmitted with these comments.) We also note that the Utah Division of Oil, Gas and Mining provides detailed guidance on calculating reclamation costs and surety estimates for coal mining operations. Calculation of reclamation costs and the surety estimate for the WMM should be at least as robust and comprehensive as those required by the State of Utah for reclamation of coal mining operations. . (See attached Part, I, Exhibit D – DOGM Revised Tech Directive 007.) I-III-D Regarding Sec. 9.7 Cultural Resources Protections, the Tribe requests that procedures be implemented by the State of Utah at the White Mesa Mill for repatriation of human remains and related artifacts in the same manner as the Native American Graves Repatriation Act (NAGPRA). Due to the sensitive and sacred nature of the lands the WMM sits up, they are already subject to the Archaeological Protection Act of 1979 (ARPA) and the National Historic Preservation Act (NHPA). The Tribe believes that the Native American Grave and Repatriation Act (NAGPRA) should also be complied with in order to return to their ancestors any human remains, funerary objects and sacred objects found when the ground is disturbed. I-III-E The Tribe would like the Tribal Historical Preservation Officer to be added to the Memorandum of Agreement and have the Tribe provide comments and amendments to the current MOA. Long historical documented connection between the Ute Mountain Tribe and the sites at the mill. The ancestors of some Tribal Members may be located at the site, and the desecration of these causes cultural and spiritual damage to Tribal Members. I-III-F With regards to 10.5 ISL Waste Disposal, the Tribe does not support the continued use of Cell 3 for in-situ leach (ISL) waste disposal because it prolongs the life of the legacy cell and does not comply with phased disposal. 12 The continued use of Cell 3 for ISL waste disposal instead of tailings disposal contradicts the premise that the facility is defined as a phased disposal facility under 40 CFR Part 61 (NESHAPS Subpart W). As a phased disposal facility, EFRI must be making an effort to completely fill Cell 3 with tailings, bringing it closer to final closure. The goal of the work practices standard in the rule is to have two 40-acre cells in operation to cap the potential radon emissions at a safe level, not one 40-acre cell and one larger cell. EPA has delegated the authority to regulate air quality including radon at the White Mesa Mill, to the State of Utah, and EFRI has represented that it is a phased disposal facility. By allowing EFR to use it for ISL wastes with no foreseeable end date, the cell will remain open much longer than originally planned and much longer than EPA understood it would remain open in recently revising the rule. The explanation that it is more stable for truck traffic and that truck traffic would cause damage to the Cell 4A liner does not address the issue of misrepresenting the facility as a phased disposal facility to EPA when they were revising the rule. Cell 3 should be filled and closed as soon as possible. Alternative trucking access can be built adjacent to Cell 4A. The State cannot be complicit in misrepresenting the intentions of the facility owners to prolong the use of Cell 3 as long as possible. I-III-G Regarding Sec. 10.20 Dawn Mining Company’s Midnite Mine Alternative Feed Receipt and Processing, the Tribe believes this should be discontinued. White Mesa should not be a radioactive waste dump for the United States of America, including the Environmental Protection Agency and the Department of Defense. The Midnite Mine alternative feed differs from other alternative feeds because it is not finite in quantity. While Utah DWMRC has limited the total quantity to be received in this license, it is probable that another license amendment will be requested upon reaching the quantity limit. Because the material is being generated in perpetuity, they will continue to need to remove it from the location in Willpinit, WA. Authorizing the receipt of this material has set the stage for an expectation of its continued delivery to the White Mesa Mill. For this reason and the reasons set forth in the Tribe’s unresolved Request for Agency Action dated August 11, 2014 – “In the Matter of: License Amendment 7: Radioactive Material License Number UT 1900479 (Dawn Mining Alternate Feed Amendment Request) July 10, 2014 Energy Fuels Resources (USA) Inc. White Mesa Mill,” (See Part I, Exhibit B - UMUT Petition to Intervene 2014) The Tribe requests that the license condition be removed and the material no longer accepted at the mill. The handling of the material at the mill has also demonstrated another misrepresentation by EFRI and URS in their SER assessments that the bricks would retain structural integrity and pose no risk of release of fine particulates locally. The bricks have now been found to be more fragile and pose undue risks to the local environment. 13 Photo # 10.20 Air emissions in 2012 at White Mesa Mill photographed by Ute Mountain Tribal Member, described by Utah Division of Air Quality as, “the result of a malfunction in the alternative feed circuit.” As stated in other comments on alternative feeds by the Tribe, the facility is a uranium mill, not a RCRA compliant disposal facility. I-III-H The Tribe supports the requirement in Section 10.21 that all groundwater contamination at the mill site be remediated. I-III-I In Sec. 11.1 Records Retention, the Tribe requests that all records pertaining to the collection of environmental data, quality assurance of monitoring programs, investigations and corrective actions be retained for a longer period of time than 5 years. This license is being proposed for 10 years, and in this age of digitization and electronic data and information storage, it does not pose an undue burden to retain records for a longer period of time. The Tribe recommends that such records be retained for the life of the facility to provide a longer term and more robust scientific record of quality assured data. This need was demonstrated by the lack of quality assurance metadata for historic groundwater data in 2004- 14 2006 when the State justifiably caused much of the historic data integrity to be questioned and basically a reset of the concept of “background conditions” that are still being debated today. I-III-J With regards to Sec. 11.2, the MILDOS modeling based on air quality data must incorporate more comprehensive emission sources and more representative assumptions in its calculations. In the Technical Evaluation and Environmental Assessment (TEEA) for the mill license, on the bottom of page 13, it is stated “MILDOS makes assumptions that are conservative in nature. The most restrictive assumption is that a uranium recovery facility (facility) will operate 365 days that the mill is working 24 hours per day…. Assuming the facilities are emitting radiation from operation over the months that they do not operate will overestimate the estimated exposures calculated for individuals with an 80 km area radius surrounding the facilities. MILDOS also assumes that all uranium ore received by the facility remains on the ore storage pad while MILDOS calculates emissions from processing that same ore; however the exposure from the ore storage pad actually constitutes a very small overestimation since the majority of the exposures calculated are from their point sources at the facilities (stacks).” The MILDOS code evaluates doses from the point source terms. Attachment A to the TEEA states that the effluent amounts used were those from the stack reported in the SAERs, page 12: “The licensee provided the Division with the amount of yellowcake (in pounds) produced each assessment year (Table 11). Particulate emissions from the point sources were calculated by taking the particulate emissions reported in the licensee’s semi-annual environmental reports (SAER), converting the reported values to an hourly emission rate, determine the number of hours that the yellow cake and vanadium stacks were in operation and multiply the hourly emission rate by the number of hours in operation (Table 10). This value gives a more realistic estimate of the radionuclide emissions per year that are emitted from the stacks. The emissions from the vanadium stacks were determine(d) in the same manner as stated above.” If the source term use in MILDOS were the actual amounts that were emitted from the mill for that year, then whether the source term was distributed over the year in a 24-7 manner as opposed to operating in shifts does not make any difference for the dose commitment (dose per year) to the receptors and or population. Hence this is not a conservative estimate at all with respect to concerning the point source terms, but an estimate based on actual ‘reported’ emissions. I-III-K Other concerns, in Attachment A MILDOS, Table 9 p. 12-13, the values have no units. Please correct this oversight. Also, in Attachment A, on p.12, it is stated, “As stated above, about 99.9 percent of the Ra-226 is separated from the yellowcake during processing and goes to Als the tailing cells as waste. 15 Therefore, there is only about 0.01 per cent of Ra-226 in yellowcake. This makes the presence of Rn-222 negligible.” If statement is true, then why are there reportable Ra-226 emissions in Table 9 for the Yellowcake Dryer/Packaging Stack? I-III-L Calculations should be implemented to assure that these statements in Question (2.) above, are valid for the yellowcake: E.g., based on the assumptions above and only for the CP ore for year 2013, there were 105,920 tons received, and the Ra-226 content is 587 pCi/g (on average). Ore mass in grams for 2013: 105,920 tons/year x 2000 lb/ton x 454 g/lb = 96,175,360,000 g/year Ra-226 activity content in assumed 587 pCi/g (of ore) =96,175,360,000 g/year x 587 pCi/g x 0.0001 (amount removed by processing) = 5.66E+09 pCi/year Ra-226 activity content per month: = 5.66E+09 pCi/ year Assuming yellowcake barrels are not shipped out at least monthly, there are 4.72E+8 pCi/month of Ra-226 in the yellowcake (per month). At the end of the month, the Rn-222, with a half-life of 3.82 days, would be in equilibrium with the Ra-226, or also have an activity of roughly 4.72E+8 pCi. In this exercise, the potential from only a subset of material has been considered, so all potential Rn-222 should be assessed for all ore and alternate feed materials that may be processed and emitted through the stack or vent in this facility. These should be added to the source term for the mill operations for MILDOS. DWMRC, Technical Evaluation and Environmental Assessment (and attachments), White Mesa Uranium Mill, Energy Fuels Resources, Radioactive Material License No. UT 1900479 and Utah Groundwater Discharge Permit No. UGW370004, May 2017. 16 I-III-M The Tribe requests that during the seven year test plot for Cell 2 described in the Stipulated Consent Agreement for Reclamation Plan 5.1, adequate radon flux monitoring continue. The following diagram, Figure 5, is an attachment at the end of the CELL 2 RADON FLUX Report for July 2016. In the first third (from the left) of Cell 2 are the words “active construction ongoing”, with no radon flux measurements taken at that location. (Also this designation was not on the 2015 flux reports for NESHAPs compliance). The diagram was enlarged in Figure 6 so that the words on the original document are visible. Figure 7 below is the from Appendix L, Cell 2 Reclamation Cover Implementation and Performance Assessment Plan, to the WMM Updated Tailings Cover Design Report, In Figure 7, the area in the southeast section of Cell 2 is the test plot for the cover design described in Reclamation Plan 5.1. This plan further describes how Cell 2 has been covered with 3 feet of soil, however as shown in Figure 5, another activity is ongoing. This is an intrusion to the protective radon barrier, which is supposed to ensure less than 20 pCi/m2-sec. At the minimum, this area must be measured for radon flux and the results presented in the quarterly report which is required per DWMRC. Figure 5: Cell 2 Radon Flux Measurement Locations Figure 6: Cell 2 Radon Flux Measurement Locations (Enlarged) 17 Figure 7: Cell 2 map in Reclamation Plan with Pilot Testing Area in SE corner References EFR, Correspondence from Kathy Weinel, Quality Assurance Manager, to Scott Anderson, Director, Division of Waste Management and Radiation Control, RE: State of Utah 18 Radioactive Material License No. UT1900479, White Mesa Mill, Blanding, Utah, Semi- Annual Effluent Monitoring Report for Period July 1 through December 31, 2016, dated February 27, 2017. DRC-2017-001602 Energy Fuels Resources (USA) Inc., WHITE MESA MILL, Updated Tailings Cover Design Report, August 2016 I-III-N The Tribe requests that mitigation measures be immediately implemented to reduce radon flux on Cell 3. Having an exceedance of the regulatory standard for at least half a year poses a public health threat to the WMM workers, local residents and the community of White Mesa. Cell 3 NESHAPS 2016 report contained two quarters where the flux measurements were above the regulatory limit of 20 pCi/m2-sec: a. Third Quarter 2016 – 24.1 pCi/m2-sec, and b. Fourth Quarter 2016 – 20.2 pCi/m2-sec. While these levels when averaged with the results for the other two quarters, equaled 16.3 pCi/m2-sec for the annual rate, which is below the 20 pCi/m2-sec regulatory limit. This amount of radon contributes to elevated environmental levels which can be compared to 0.5 pCi/m2-sec, the low radon emanation levels in the testing area. These were elevated levels of radon in the environment for probably at least one half of the year, to which the community members at White Mesa may have been exposed. References EFR, Correspondence from Kathy Weinel, Quality Assurance Manager, to Bryce Bird, Director, Utah DEQ, Air Quality Division, RE: White Mesa Uranium Mill National Emissions Standards for Radon Emission from Operating Mill Tailings Transmittal of 2016 Annual Radon Flux Monitoring Report for Tailing Impoundment 3, March 30, 2017. I-III-O The Tribe supports the requirement that all equipment installed for the purpose of identifying groundwater impacts from cells 1, 2, and 3 remain fully operational as described in Sec. 11.3. A Maintenance of Leak detection and monitoring facilities for Cells 1, 2 and 3. The Tribe is concerned that lack of adequate functionality will cause confusion and misinterpretation of monitoring results. This has occurred in the first quarter of 2017 at MW-5. Inadequate maintenance is being referenced as a potential reason for exceedance of the ground water compliance limit at that well. With the enforcement of this provision of the proposed license, such confusion and distraction from monitoring results can be eliminated. 19 I-III-P With regards to 11.3. E Response to Leak Detection, the Tribe requests that if the lowering of head pressure by increasing freeboard cannot determine the cause of the liner leak, all liquid should be transferred from the cell and the cell should be immediately closed, excavated, and reclaimed permanently. I-III-Q The Ute Mountain Ute Tribe requests that the Emergency Preparedness Plan be amended to include notification procedures to the White Mesa Community and Ute Mountain Ute Tribal officials. In addition, there are no specific procedures in the Emergency Response nor Environmental Monitoring Handbook for trucks delivering specifically delivering ISL Material; these need to be developed. The White Mesa Ute community, a sovereign government, who shares a boundary with the mill, is not on any list or communication tree for ANY emergency involving potential off-site or public releases of hazardous or radiological substances. They are not listed as contacts within any of these documents:  EMERGENCY RESPONSE MANUAL FOR URANIUM CONCENTRATE SPILL or  SPILL PREVENTION CONTROL AND COUNTERMEASURES PLAN FOR CHEMICALS AND PETROLEUM PRODUCTS, or  TRANSPORTATION ACCIDENT RESPONSE PLAN. In terms of the policy of As Low As Reasonably Achievable (ALARA) and as a good neighbor policy for the nearest community residing near the mill, the Tribe requests immediate inclusion in the notification process in these plans for incidents such as:  Leaking shipment of radioactive ISL waste from Cameco Smith-Ranch ISL Facility in Glenrock, Wyoming on or about August 21, 2015;  Leaking intermodal container of radioactive ISL waste from Cameco Smith-Ranch ISL Facility in Glenrock, Wyoming on or about March 29, 2016, resulting in spillage of radioactive material along US Highway 191 and at the entrance to the White Mesa Mill; or  Leaking barrels of radioactive material transported by truck from Honeywell (Converdyne) and received at the White Mesa Mill on or about January 12, 2017. The Risk Management Plan’s worst case scenario’s for the Mill considers the total release of 140,000 pounds of anhydrous ammonia from the one of the two tanks over a 10 minute time period. This could result in a cloud of hazardous material that causes lung damage and lethality if enough is inhaled which could extend 12 miles. One report listing accidents in the USA from the years 1996 – 2011, found there were 939 accidents due to anhydrous ammonia, and resulting in 19 deaths and 1651 injuries. (Center for Effective Government, 2013). So this is a very real scenario. An effective plan for the neighboring communities, including the Tribe’s White Mesa 20 community must be made aware of the possibilities of such scenarios and have emergency preparedness operations or evacuation plans in place, for considerations especially of the elderly, children, and handicapped. In line with the question above, in the DWMRC White Mesa Uranium Mill Frequently Asked Questions, it is listed: What is the Mill required to do if an Environmental Release Occurs? The response suggests that the mill’s emergency response plan will address any issue “and has provided notifications for incidents in the past. DWMRC also provides required notifications to the appropriate parties,” or only those parties require by state or federal regulation, and not those most likely to be affected by even the smallest radioactive or chemical spill, the closest community of White Mesa. The DWMRC answer to this question concludes with, “(DWMRC) encourages suggestions from the public on ways to improve the current notification process.” So let this be the time that the Tribe, as a sovereign nation, and as a member of the public implores the DWMRC, the DEQ, and the State of Utah, for inclusion in this process. See https://deq.utah.gov/businesses/E/energyfuels/permits/denisonlicensereapp.htm At the hearing in Salt Lake City, a Ute Mountain Ute Tribal Member who has resided in White Mesa throughout his life asked a question that could not be answered due to a lack of concise context regarding emergency response and safety for proximate residents. To clarify and assist the UDWMRC in responding to his comment, we have bolstered his concern with actual scenarios for the DWMRC to be able to adequately address his concerns. Mr. Dutchie asked at the hearing what the safe distant was if something went wrong at the White Mesa Mill. To add context, we have used specific examples for the response to public comment by DWMRC: 1. In the event of a release of 140,000 pounds of anhydrous ammonia (considered to be one of the worst-case scenarios of potentially acute toxins from the facility), what is the zone of exposure, in lateral distance from the mill’s storage chemical storage facility, and what would be the emergency response procedure implemented to protect those residents and passers-by within the zone? 2. From August 1 to September 6, 2016, during an ore processing campaign, the yellowcake drying ovens were operating at a level higher than their permitted drying capacity (letter to Utah DAQ September 22, 2016 by EFRI). This caused an excess of 346 lbs. of emissions over that period. What is the zone of exposure, in lateral distance from the mill’s drying stacks, and what was the emergency response procedure implemented to protect those residents and passers-by within the zone? Please estimate the exposure to uranium oxide and other pollutants to the nearest resident (<2 miles), White Mesa residents (average of 4 miles), and those passers-by, such as school children on the bus between Bluff and White Mesa and Blanding on the highway next to the mill, twice per day as they started their school year. 3. In March of 2012, a Ute Mountain Ute Tribal Member from White Mesa photographed a release from the facility and the Tribal government inquired about it with the Utah Division of Air Quality (photograph included in Sec. I-III-G). There is no record of the incident being reported by EFRI. The Tribe was informed by the Division of Air Quality 21 that it was a malfunction in an alternative feeds circuit processing material at the time. Please estimate the exposure to uranium oxide, and other pollutants to the nearest resident (<2 miles), White Mesa residents (average of 4 miles), and those passers-by, such as school children on the bus between Bluff and White Mesa and Blanding on the highway next to the mill. (See Part I, Exhibit C – Energy Fuels letter). I-III-R In Sec. 12.3, the DRC must require EFRI to identify and promptly minimize contamination pathways to Tribal resources and expand the area of survey to more than 5 kilometers (3.11 miles). The Tribe requests a clarification of the language stating the radius begins at the exterior boundary of the WMM and conduct a survey of on-site contamination pathways. The Tribe commends DRC for adding the land use survey condition to the RML Renewal but asserts that the language provided in License Condition 12.3 of the RML is not sufficient to require EFRI to assess or correct potential routes of exposure between WMM facilities and UMU Tribal groundwater resources. Five kilometers is only 3.11 miles which would not properly include the entire community of White Mesa. Including this indicates that DRC has imposed the land survey requirement so EFRI and DRC can identify contamination pathways between WMM facilities and resources used by the public and by UMU Tribal Members. To begin, the language of License Condition 12.3 only requires EFRI to conduct an annual survey of off-site land use; it does not require EFRI to conduct an on-site survey of contamination pathways. Here, the Tribe notes that DEQ Divisions have already identified at least two important on-site pathways of contamination to UMU Tribal groundwater resources. BEFORE THE UTAH DEPARTMENT OF ENVIRONMENTAL QUALITY In the Matter of: License Amendment 7: Radioactive Material License Number UT 1900479 (Dawn Mining Alternate Feed Amendment Request) July 10, 2014 Energy Fuels Resources (USA) Inc. White Mesa Mill PETITION TO INTERVENE IN SUPPORT OF REQUEST FOR AGENCY ACTION August 11, 2014 ______________________________________________________________________ PETITION TO INTERVENE IN SUPPORT OF REQUEST FOR AGENCY ACTION ______________________________________________________________________ Pursuant to Utah Code Ann. § 63G-4-207, Utah Code Ann. §§ 19-1-301.5(4), (7)(c)(ii), and Utah Admin. Code R305-7-204, the Ute Mountain Ute Tribe (“Tribe”) files this Petition to Intervene demonstrating sufficient facts to establish its right to bring its Request for Agency Action contesting the Utah Division of Radiation Control’s (“DRC”) decision approving the July 10, 2014 License Amendment 7: Radioactive Material License Number UT 1900479 (also referred to as the Dawn Mining Alternate Feed Amendment Request) (“License Amendment 7”). I. AGENCY’S FILE NUMBER OR OTHER REFERENCE NUMBER AND NAME OF PROCEEDING The Tribe seeks to intervene related to the approval of License Amendment 7 (to Radioactive Material License Number UT 1900479). This Petition to Intervene is timely filed with Rusty Lundberg, DRC Director, pursuant to Utah Admin. Code R305-7-204(2)(b). Petition to Intervene 2 August 11, 2014 II. STATEMENT OF FACTS DEMONSTRATING THAT THE TRIBE HAS LEGAL INTERESTS SUBSTANTIALLY AFFECTED BY LICENSE AMENDMENT 7 AND THAT THE TRIBE IS QUALIFIED TO INTERVENE RELATED TO LICENSE AMENDMENT 7 A. INTRODUCTION Utah Code Ann. § 63G-4-207(1)(c) and Utah Admin. Code R305-7-204(1)(a) require a person who wishes to intervene in a formal adjudicative proceeding to file a statement of facts demonstrating that the petitioner’s legal rights or interests are substantially affected by the formal adjudicative proceeding or that the petitioner qualifies as an intervenor under any provision of law. See also Utah Code Ann. § 19-1-301.5(7)(c)(ii) (requiring that the petitioner demonstrate that the petitioner’s legal interests may be substantially affected by the permit review adjudicative proceeding and that the interests of justice and the orderly and prompt conduct of the permit review adjudicative proceeding will not be materially impaired by allowing the intervention). Utah Code Ann. § 19-1-301.5(7)(c)(ii)(C) and Utah Admin. Code R305-7-204(1)(a) also require that the petitioner’s request for agency action raise issues or arguments preserved in accordance with Utah Code Ann. §§ 19-1-301.5(4) (which requires that the petitioner has provided sufficient public comments to preserve the right to intervene or contest an agency order). To demonstrate that the Tribe is entitled to file the accompanying Request for Agency Action, the Tribe will demonstrate that: (1) the Tribe has legal interests that are substantially affected by the DRC’s agency action on License Amendment 7, as evidenced by the facts and by the Tribe demonstrating that it can establish both traditional standing and alternative standing under Utah case law; (2) the interests of justice and the orderly and prompt conduct of the permit review adjudicative proceeding will not be materially impaired by allowing the proposed intervention; and (3) the Tribe properly preserved its right to intervene by timely filing public Petition to Intervene 3 August 11, 2014 comments on License Amendment 7 and by consistently filing public comments in every available DRC forum to provide the DRC sufficient information to fully consider the substance and significance of the Tribal concerns. B. THE TRIBE HAS LEGAL INTERESTS THAT ARE SUBSTANTIALLY AFFECTED BY THE DRC’S AGENCY ACTION APPROVING LICENSE AMENDMENT 7 1. STATEMENT OF FACTS DEMONSTRATING IMPORTANT LEGAL INTERESTS The Ute Mountain Ute Tribe is a federally-recognized Indian tribe with lands located in southwestern Colorado, northwestern New Mexico, and southeast Utah. There are two Tribal communities on the Ute Mountain Ute Reservation: Towaoc, in southwestern Colorado, and White Mesa, which is located in Utah within three miles of the White Mesa Mill (“WMM”) facility. The lands comprising the White Mesa community are held in trust for the Tribe and for other individual Tribal member owners. The Tribe has jurisdiction (as a federally-recognized tribal government) over Tribally-owned lands, Tribal member-owned lands, and members of the Ute Mountain Ute Tribe who live in the White Mesa community. Under the Tribe’s Constitution, the Tribal Council is responsible for, among other things, the management and protection of Tribal lands and for the protection of public peace, safety, and welfare. Ute Mountain Ute Tribal Members (“UMU Tribal Members”) have lived on and around White Mesa for centuries and intend to do so forever. The community of White Mesa depends on groundwater resources buried deep in the Navajo aquifer for its municipal (domestic) needs. UMU Tribal members also make use of the perched (shallow) aquifer near the WMM facility and near the White Mesa Community for drinking and ceremonial use as well as indirect uses through livestock watering and the harvesting of wildlife and plants. UMU Tribal Members Petition to Intervene 4 August 11, 2014 continue traditional practices, which include hunting and gathering and using the land, plants, wildlife and water in ways that are integral to their culture. The White Mesa Tribal community is located approximately three miles south of the WMM facility. The WMM is located on Ute aboriginal lands, and its upgradient location from the Tribal community means that contamination from WMM facility operations generally flows through ground and surface water towards the Tribal community. The Tribe has a strong interest in maintaining the long-term quality of land and natural resources and preventing short-term users like Energy Fuels Resources (USA) Inc. (“EFRI”) from polluting Tribal lands, members, and resources and making aboriginal and Tribal lands uninhabitable for future generations of Tribal members. The Tribe’s legal interests in protecting Tribally-owned lands, Tribal member owned lands, and the public peace, safety, and welfare of UMU Tribal Members who live in White Mesa and adjacent to the WMM are substantially affected by the DRC’s approval of License Amendment 7, which, for reasons explained in the accompanying Request for Agency Action, is contrary to applicable law, is arbitrary and capricious and beyond the tolerable limits of reason, and is based on determinations that are not supported by substantial evidence when viewed in light of the whole record. The DRC’s refusal to renew the WMM’s radioactive materials license (and impose additional license conditions to require EFRI to address ongoing and uncontrolled contamination and serious operational deficiencies at the WMM facility) prior to issuing License Amendment 7, and DRC’s assertions related to environmental contamination and risks to human health at the WMM facility (contained in the UTAH DIV. OF RADIATION CONTROL, PUBLIC PARTICIPATION SUMMARY, DAWN MINING ALTERNATE FEED AMENDMENT REQUEST, ENERGY FUELS RESOURCES (USA) INC. (ENERGY FUELS) (UTAH RADIOACTIVE MATERIAL LICENSE UT 1900479), WHITE MESA URANIUM MILL, SAN JUAN COUNTY UTAH(2014) available at Petition to Intervene 5 August 11, 2014 http://www.deq.utah.gov/businesses/E/energyfuels/docs/2014/07Jul/EnergyFuelsDawnMiningPP Summary61014.pdf (“PPS”)) create a significant risk that WMM activities will harm Tribal lands, Tribal resources, and Tribal members. 2. THE TRIBE CAN DEMONSTRATE THAT IT HAS STANDING TO INTERVENE UNDER BOTH THE “TRADITIONAL” AND “ALTERNATIVE” TESTS PROVIDED BY UTAH LAW In support of the Tribe’s claims that it has legal interests that are substantially affected by the DRC’s action approving License Amendment 7 and that the Tribe qualifies to intervene in this docket, the Tribe now demonstrates that it can meet both the “traditional” and “alternative” tests for standing under Utah law. See Utah Chapter of the Sierra Club v. Utah Air Quality Bd., 2006 UT 74, ¶18. Under the “traditional” or “distinct and palpable injury” test, an entity bringing a request for agency action must assert: (1) the entity has been or will be adversely affected by the challenged actions; (2) there is a causal relationship between the injury and the relief requested; and (3) the relief requested is substantially likely to redress the injury caused. See id. (citing Jenkins v. Swan, 675 P.2d 1145, 1150 (Utah 1983)). The Tribe can demonstrate injury in this case. The DRC’s approval of License Amendment 7 and the DRC’s PPS determinations regarding the nature and extent of environmental contamination and risk to human health threaten a distinct and palpable injury to Tribal lands, the Tribal government, and to Tribal members who live in White Mesa and use Tribal lands and natural and water resources. The Tribe can also demonstrate the redressibility and causation elements of the traditional test. The DRC is charged with evaluating the environmental impacts of License Amendment 7 and with minimizing the danger to public health and safety or the environment and ensuring that the issuance of the license will not be inimical to the health and safety of the public. Utah Admin. Code R-313-24-3, R-313-22-33. The Tribe’s injuries imminently result from the DRC’s Petition to Intervene 6 August 11, 2014 failure and refusal to properly evaluate the environmental impacts of License Amendment 7 or to ensure that the Revised License UT 1900469 minimizes danger to public health and safety or the environment. Thus, a causal connection exists between the DRC’s approval of License Amendment 7 and the Tribe’s injuries. Finally, the Tribe seeks to remand License Amendment 7 and the PPS to DRC for revisions consistent with the requested relief outlined in Section III, infra. The requested relief will redress the Tribe’s injuries. Under the alternative standing test, an entity requesting agency action must establish: (1) that it is the appropriate party to raise the issue in the dispute; and (2) that the issues the party seeks to raise are of “sufficient public importance.” Sierra Club, 2006 UT 74, ¶¶36, 39. Here, the Tribe is the appropriate party to raise the issues in the accompanying Request for Agency Action because it is responsible for protecting Tribal and Tribal member-owned air, land and water resources and because it is responsible for the health and welfare of its members. In addition, the Tribe believes that it is the only party willing and able to bring a Request for Agency Action on the issues raised in the accompanying Request for Agency Action, and the Tribe has both the interest and the expertise necessary to investigate and review all legal and factual questions relating to License Amendment 7. See id. at ¶42. The issues the Tribe raises in this Request are of great public importance. Issuing a license amendment to an outdated radioactive materials license without properly assessing environmental impacts of the license amendment or ensuring that the revised license adequately protects human health and the environment poses a serious public health threat to Tribal members and members of other communities surrounding the WMM and a long-term contamination risk to the land, water resources, and economic development activities of these Petition to Intervene 7 August 11, 2014 surrounding communities. As such, the Tribe has proper alternative standing to resolve this important matter in front of the Utah Department of Environmental Quality (“DEQ”). C. THE INTERESTS OF JUSTICE AND THE ORDERLY AND PROMPT CONDUCT OF THE PERMIT REVIEW PROCEEDING WILL NOT BE MATERIALLY IMPAIRED BY ALLOWING THE PROPOSED INTERVENTION AND THE TRIBE’S REQUEST FOR AGENCY ACTION Under Utah Code Ann. §§ 19-1-301.5(4), (7)(c)(ii)(b), a person who seeks standing in a permit review proceeding must, in the petition to intervene, demonstrate that the interests of justice and the orderly and prompt conduct of the permit review proceeding will not be materially impaired by allowing the intervention. See also Utah Code Ann. § 63G-4-207(2)(b) (providing the standards for granting intervention and stating that the presiding officer shall grant a petition for intervention if, among other items, the interests of justice and the orderly and prompt conduct of the adjudicative proceedings will not be materially impaired by allowing the intervention). The Tribe can demonstrate that the interests of justice and the orderly and prompt conduct of License Amendment 7 support the Tribe’s proposed intervention. By filing its Petition to Intervene and its Request for Agency Action, the Tribe is properly seeking exhaustion of its administrative remedies relative to License Amendment 7. See, e.g., Utah Admin. Code R305-7-203(6) (stating that failure to file a Request for Agency Action within the proper time period “waives any right to contest the permit order or to seek judicial review”). Because of the risks that License Amendment 7 and the DRC’s PPS determinations pose to Tribal legal interests, and because of the public importance of the issues raised in the Tribe’s Request for Agency Action, the interests of justice support the Tribe’s intervention and initiation of this round of administrative review. Petition to Intervene 8 August 11, 2014 Additionally, the Tribe notes that it is not currently interfering with the orderly and prompt conduct of License Amendment 7 because the Tribe is not seeking a stay of License Amendment 7 under Utah Code Ann. § 19-1-301.5(15) or Utah Admin. Code R-305-7-217. For these reasons, under Utah Code Ann. §§ 19-1-301.5(4), (7)(c)(ii)(b) the Tribe can demonstrate that the interests of justice and the orderly and prompt conduct of the permit review proceeding support the Tribe’s proposed intervention. D. THE TRIBE PROPERLY PRESERVED ITS RIGHT TO INTERVENE BY TIMELY FILING DETAILED PUBLIC COMMENTS RELATING TO LICENSE AMENDMENT 7 AND BY CONSISTENTLY FILING EXTENSIVE PUBLIC COMMENTS IN EVERY AVAILABLE DRC FORUM TO PROVIDE THE DRC SUFFICIENT INFORMATION TO FULLY CONSIDER THE SUBSTANCE AND SIGNIFICANCE OF THE TRIBAL CONCERNS Utah Code Ann. §§ 19-1-301.5(4), (7)(c)(ii)(C) and Utah Admin. Code R305-7-204 require petitioners to provide sufficient public comments to preserve the right to intervene or contest an agency order. Here, the Tribe filed extensive public comments regarding License Amendment 7 on October 21, 2013. The Tribe has also filed extensive comments with DRC and the Utah Division of Air Quality (as well as filing two other Requests for Agency Action) that contained even more extensive comments and supporting documentation regarding the Tribe’s concerns about environmental contamination and impacts to human health caused by the operation of the WMM facility. See Exhibit A to the Request for Agency Action. These comments provided sufficient information to allow DRC to fully consider the substance and significance of the Tribe’s concerns before making a determination on License Amendment 7. III. REQUEST FOR RELIEF Based on the above, the Tribe respectfully requests that: (1) the determinations listed in the responses to the Tribe’s public comments contained in the Public Participation Summary be reversed and vacated; and (2) the approval of License Amendment 7 be reversed and remanded Petition to Intervene 9 August 11, 2014 to the DRC with instructions that the DRC renew the WMM’s radioactive materials license (and impose additional license conditions to require EFRI to address ongoing and uncontrolled contamination and serious operational deficiencies at the WMM facility) prior to issuing License Amendment 7 or other major license amendments. Dated: August 11, 2014 H. Michael Keller Special Counsel Ute Mountain Ute Tribe Utah Bar # 1784 /s/ Celene Hawkins Celene Hawkins Associate General Counsel Ute Mountain Ute Tribe 10 Petition to Intervene January 11, 2013 CERTIFICATE OF SERVICE The undersigned caused the foregoing Petition to Intervene to be emailed today to: Rusty Lundberg Director, Utah Division of Radiation Control rlundberg@utah.gov Administrative Proceedings Records Officer DEQAPRO@utah.gov David Frydenlund Senior Vice President General Counsel and Corporate Secretary Energy Fuels Resources (USA) Inc. dfrydenlund@energyfuels.com Laura J. Lockhart Assistant Attorney General Environment Division Utah Attorney General's Office llockhart@utah.gov Because the email submission of the Request for Agency Action contains large exhibits, the undersigned also caused the foregoing Petition to Intervene to be hand delivered (electronic format) to: Administrative Proceedings Records Officer Environment Division Utah Attorney General’s Office 195 North 1950 West Second Floor Salt Lake City, Utah 84116 Dated this 11th day of August, 2014 _____________________________ //20S Energy Fuels Resources (USA) Inc. 225 Union Blvd. Suite 600 Lakewood, CO, US, 80228 303 974 2140 www.energyfuels.com September 22, 2016 Sent VIA E-MAIL AND OVERNIGHT DELIVER1 Mr. Bryce C. Bird Executive Secretary Utah Air Quality Board State of Utah Department of Environmental Quality 168 North 1950 West Salt Lake City, UT 84114-4850 Re: Report of Breakdown Pursuant to Utah Administrative Code R307-107-2 White Mesa Mill Air Approval Order (“AO”) Number DAQE-AN0112050018-11. Dear Mr. Bird: Energy Fuels Resources (USA) Inc. (“EFRI”) is providing this letter to notify the Utah Division of Air Quality (“DAQ”), consistent with the requirements of Utah Administrative Code (“UAC”) R307-107-2, of a temporary breakdown of greater than two hours in the operation of the yellowcake dryer scrubber system at the White Mesa Mill. The breakdown, which resulted in temporary exceedance of the limit of 0.4 Ib/hr of PM 10 emissions as specified in Provision II.B.2.a of the Mill’s above-named AO, has been corrected as discussed below. R307-101 defines a breakdown as: “any malfunction or procedural error, to include but not limited to any malfunction or procedural error during start-up and shutdown, which will result in the inoperability or sudden loss of performance of the control equipment or process equipment causing emissions in excess of those allowed by the approval order or Title R307.” The breakdown reported below consisted of a procedural error that resulted in excess emissions from the south yellowcake dryer stack between August 1, 2016 and September 8, 2016. This resulted in excess emissions from the south yellowcake scrubber of 346 pounds over that period. This procedural error did not occur during shutdown or startup. The breakdown was reported by voice mail message on Thursday September 8, 2016 at 2:03 PM to Mr. Jay Morris and e-mail to Mr. Jay Morris at 9:31 AM on Friday September 9, 2016, within 24 hours of Corporate Environmental Management’s identification and confirmation of the procedural error, as required by UAC R307-107-2. This letter provides the written report required by UAC R307-107-2. Y U i AH DEPARTMENT OF ENVIRONMENTAL QUALITY SEP 2 3 2018 DIVISION OF AIR QUALiTY Document Da e: 09/22/2016 illlllllli DAQ-2016-012229 Letter to Bryce Bird September 22, 2016 Page 2 of 5 Background At the White Mesa Mill, typically, one of the two yellow cake dryer and scrubber circuits (north or south) is in service at any time. However, the AO does not limit operation to one dryer circuit at a time, and at maximum yellowcake production rates, both dryer trains could potentially be operated in parallel (simultaneously). Due to current reduced production rates, the north yellowcake dryer circuit has not operated during 2016. Only the south yellowcake dryer and scrubber circuit was in service at the time of the procedural error. Consistent with Provision II.B.2.b of the AO, EFRI provided advanced notification of the stack testing for PM 10, and proposed testing protocol for PM 10, to DAQ on July 29, 2016. DAQ approved the sampling protocol by letter dated August 11, 2016. Sampling was conducted August 22, 2016 by EFRFs contractor, Tetco, Inc. Cause and Nature of the Event The south yellowcake scrubber is equipped with two fans. The system is designed to operate with one fan. The second fan is provided as a backup in case of malfuntion or failure of the first fan. During the past year and a half significant effort has gone towards improving the drying and packaging systems. This began with building a new packaging enclosure in 2015. In 2016, other additional improvements and changes were made to operational procedures and the dryer system including new seals on doors and ductwork cleaning procedures and methods. The goal of these changes was to create a cleaner environment in the dryer enclosure thus reducing personnel exposures. Before the most recent ore campaign which started on August 1, 2016, operations supervisors put a big emphasis on keeping a negative pressure in the dryer which helps keep the dryer enclosure clean and reduces personnel exposures. In order to do this, many of the operators ran both scrubber fans. EFRI estimates that both dryer fans were running 50% of the time (that the dryer was being fed) since the beginning of August. For conservatism EFRI calculated the estimated emissions as if both fans were run during all feed/drying hours. As noted above, the PM 10 sampling was conducted on August 22, 2016 during this operational period when both fans were running. The results of the August 22, 2016 test are included as Attachement 1 to this report. EFRI was notified of the results from the August 22, 2016 test on September 8, 2016. The August 22, 2016 results indicated that the scrubber system was exceeding the AO limit of 0.4 Ibs/hr at the time of the test. EFRI immediately reviewed operational parameters and noted that both fans in the south yellowcake scrubber were operating at the time of the test. Operations and maintenance shut down and opened the dryer and scrubber system for inspection and cleaning of filters, in preparation for additional stack testing on September 16, 2016. No equipment issues were noted during the inspections. On September 16, 2016 the south dryer was re-tested by Tetco using the same approved protocols and the initial test. Only one fan was operated during the September 16, 2016 test. The results of the Septemebr 16, 2016 testing are included in Attachment 2. The September 16, 2016 results indicated that the scrubber system was in compliance with the AO limit of 0.4 Ibs/hr and 0.03 g/dscf at the time of the test. Due to the analysis protocols required for the 2 condensables in Method 202, the Tetco report is not available at the time of this report. The final Tetco report will be available at the Mill for inspection by DAQ. On September 20, 2016, operations reviewed all available data, including daily operations logs and all results received from Tetco, with Corporate Environmental Management. Corporate Environmental Management concluded that the yellowcake scrubber system had operated under conditions of “procedural error” when operating both fans simultaneously. The root causes of the procedural error have been identified as an emphasis on keeping a negative pressure in the dryer to keep the dryer enclosure clean and thus reduce personnel exposures. The increased emphasis on creating a negative pressure environment led to the use of both fans simultaneously. Estimated Quantity of Pollutant (Total and Excess) It is important to note that operations of the south yellowcake scrubber prior to August 2016, used only one fan. The operational change of running both fans was started at the beginning of the recent ore run which started on August 1, 2016. Even after August 1, 2016, running both fans was intermittant and not the constant operational strategy. The fans would have been switched on and off based on operational conditions during drying. Attachment 3 indicates the estimated amount of pollutant (PM 10) emitted and the excess above the amount permitted in the Mill’s AO. As indicated in the table, the estimate was based on the following assumptions: • PM 10 emissions from the south yellowcake dryer stack would be produced only when the dryer was being fed. No particulate emissions would be measured if the dryer were not in operation. When not drying the dryer is in standby mode, which produces no particulate emissions. • Based on interviews with operations personnel, EFRI has assumed that both fans operated 50% of the time that the dryer was drying yellowcake from August 1, 2016 to September 8, 2016. For conservatism EFRI calculated the estimated emissions as if both fans were run during all feed/drying hours. • The hours of feed time are based on operation records maintained by Mill Personnel. Table 1: Emissions during Period of Procedural Error Letter to Bryce Bird September 22, 2016 Page 3 of 5 Permitted Emissions from Yellowcake Drying System Total Emissions from Yellowcake Drying System Excess Emissions from Yellowcake Drying system 315.60 lbs 607.53 lbs 291.93 lbs Basis and assumptions are provided in Attachment 3. It should be noted that overall during 2016, even under the most conservative assumptions, the Mill generated far less than the pollutants permitted by the AO for the yellowcake dryer systems. The table below summarizes permitted versus actual emissions for the 2016 operating year. As indicated in Table 2, even though emissions from the south yellowcake scmbber exceeded the AO limits for 789 hours in 2016, the Mill generated substantially lower than its permitted level of emissions from these major pieces of air pollution control equipment during the year. 3 Table 2: Comparison of Permitted and Estimated Actual Emissions 2016 Letter to Bryce Bird September 22, 2016 Page 4 of 5 Permitted Emissions Actual Emissions South Yellowcake Dryer System 1.76 tons/year 0.371 tons/year North Yellowcake Dryer System 1.76 tons/year 0 tons/year Vanadium Dryer System 10.95 tons/year 0 tons/year Subtotal 14.46 tons/year 0.371 tons/year Basis and assumptions are provided in Attachment 3. Time of Emissions Based on the data and mill operations schedules, it was determined that both fans operated for 50% of the 789 hours of dryer operations between August 1, 2016 and September 8, 2016. For conservatism EFRI calculated the estimated emissions as if both fans were run during all feed/drying hours in August and September 2016. Stack sampling on September 16, 2016 confirmed that operating the scrubber system with only one fan resulted in reduction of PM10 emissions to well within the levels permitted in the AO. Yellowcake drying completed prior to August 2016 was done using only a single fan. It is important to note PM 10 emissions from the south yellowcake dryer stack would be produced only when the dryer was being fed. No particulate emissions would be measured if the dryer was not operating. When not drying, the dryer is in standby mode. The emissions estimates are based on hours the dryer was fed and drying and not on standby. Steps Taken to Control Emissions and Prevent Recurrence The following steps have been taken to control emissions and prevent a recurrence of the procedural error. The scrubber fans have been set up with interlocks that enable only one fan to be running at a time. Additional Considerations During the sampling event of August 2016, it was observed that the yellowcake stack emissions did not meet the concentration of 0.003 g/dscf stated in Provision II.B.2.a of the AO. EFRI believes that the addition of this requirement to the AO was inappropriate or the g/dscf value has been stated incorrectly for the following reasons: None of the Mill’s equipment has been designed to meet emissions concentration at the level of 0.003 g/dscf. As indicated in Provision II.A.4, II.A.6 and II.A.7 of the AO, the north and south yellowcake dryer scrubber systems and the packaging area baghouse were designed to achieve concentrations on the order of 0.02, 0.02, and 0.01 g/dscf respectively. That is, even at optimal operation, the Mill’s air pollution equipment in the yellowcake area was designed for concentrations 3.3 to 6.7 times higher than the 0.003 value in Provision II.B.2.a. Even during steady state conditions and optimal operation of the yellowcake dryer system, when the system was operating well within the permitted mass emissions limit of 0.4 Ib/hr, the system still could not achieve 0.003 g/dscf. That is, there is no operating condition under which the system, even at optimal conditions, can achieve the 0.003 g/dscf. 4 Letter to Bryce Bird September 22, 2016 Page 5 of 5 Based on the above facts, EFRI believes that the 0.003 g/dscf limit is unachievable and has been introduced into the air order in error. EFRI submitted an amendment to correct the AO to remove or modify this requirement. DAQ agreed to that the 0.003 was a typographical error and that the correct rate should be 0.03 g/dscf as noted in the Intent to Approve provided to EFRI on Sepotember 23, 2014. A finalized AO with this correction has not yet been received. Please contact me if you have any questions on this submittal. Yours very truly, )tfjLisVLcl Energy Fuels Resources (USA) Inc. Kathy Weinel Quality Assurance Manager CC: David C. Frydenlund Harold R. Roberts David E. Turk Logan Shumway Scott Bakken Jay Morris DAQ Phil Goble DWMRC 5 ATTACHMENT 1 TABLE IV COMPLETE RESULTS ENERGY FUELS CORPORATION, BLANDING, UTAH Method 5, 202 Symbol Date Filter # Begin End Pbm AH Y Vm T1 m Vap WU, Tt Cp Dn C02 02 N2&CO Vmstd Vw Bws Xd Md Ms %I Ts As Pq Pbp Ps Qs Qa Vs M filter Mp Mf Mb Cp r'v^cond ERP ERcond SOUTH YELLOWCAKE SCRUBBER EXHAUST Description Dimensions Run #1 Run #2 Run #3 Date 8/22/16 8/22/16 8/22/16 6702 6703 6705 Time Test Began 13:32 15:22 16:59 Time Test Ended 14:53 16:23 18:00 Meter Barometric Pressure In. Hg. Abs 24.50 24.50 24.50 Orifice Pressure Drop In. H20 1.999 1.869 2.198 Meter Calibration Y Factor dimensionless 0.995 0.995 0.995 Volume Gas Sampled-Meter Conditions cf 55.400 54.139 58.856 Avg Meter Temperature °F 71.1 75.4 76.5 Sq Root Velocity Head Root In. H20 0.3621 0.3456 0.3756 Weight Water Collected Grams 29.6 27.8 31.5 Duration of Test Minutes 60 60 60 Pitot Tube Coefficient Dimensionless 0.84 0.84 0.84 Nozzle Diameter Inches 0.3715 0.3715 0.3715 Volume % Carbon Dioxide Percent 3.10 3.00 3.10 Volume % Oxygen Percent 15.70 15.20 15.60 Volume % Nitrogen and Carbon Monoxide Percent 81.20 81.80 81.30 Volume Gas Sampled (Standard)dscf 45.143 43.745 47.505 Volume Water Vapor scf 1.396 1.311 1.485 Fraction H20 in Stack Gas Fraction 0.030 0.029 0.030 Fraction of Dry Gas Fraction 0.970 0.971 0.970 Molecular Wt. Dry Gas Ib/lbmol 29.12 29.09 29.12 Molecular Wt. Stack Gas Ib/lbmol 28.79 28.77 28.78 Percent Isokinetic Percent 97.2 98.7 98.9 AVG Avg Stack Temperature °F 112.3 113.5 1 15.0 113.6 Stack Cross Sectional Area Sq. Ft.0.887 0.887 0.887 Stack Static Pressure In. H20 -0.08 -0.08 -0.08 Sample Port Barometric Pressure In. Hg. Abs 24.43 24.43 24.43 Stack Pressure In. Hg. Abs 24.424 24.424 24.424 Stack Gas Volumetric Flow Rate (Std)dscfm 9.12E+02 8.71E+02 9.44E+02 9.09E+02 Stack Gas Volumetric Flow Rate (Actual)din 1.25E+03 1.19E+03 1.30E+03 1.25E+03 Velocity of Stack Gas fpm 1.41E+03 1.35E+03 1.46E+03 E4IE+03 Mass of Particulate on Filter milligrams 221.9 287.7 298.1 Mass of Particulate in Wash milligrams 58.2 4.9 3.1 Mass of Front Half milligrams 280.1 292.6 301.2 Mass of Back Half milligrams 13.7 9.5 5.5 Concentration of Front Half gr / dscf 0.0957 0.1032 0.0978 0.0989 Concentration of Condensibles gr / dscf 0.0047 0.0034 0.0018 0.0033 Emission Rate of Front Half lb / hr 0.75 0.77 0.79 0.77 Emission Rate of Condensibles lb / hr 0.04 0.03 0.01 0.03 ATTACHMENT 2 Method 5, 202TABLE IV COMPLETE RESULTS ENERGY FUELS CORPORATION, BLANDING, UTAH SOUTH YELLOWCAKE SCRUBBER EXHAUST Symbol Description Dimensions Run #1 Run #2 Run #3 Date Date 9/15/2016 9/15/2016 9/15/2016 Filter #6665 6666 6667 Begin Time Test Began 11:13 15:04 16:15 End Time Test Ended 12:17 16:05 17:16 Pbm Meter Barometric Pressure In. Hg. Abs 24.55 24.55 24.55 AH Orifice Pressure Drop In. H:0 1.630 1.291 1.433 Y Meter Calibration Y Factor dimensionless 1.005 1.005 1.005 Vm Volume Gas Sampled-Meter Conditions cf 52.087 46.717 50.167 T1 m Avg Meter Temperature °F 76.9 83.1 91.8 Vap Sq Root Velocity Head Root In. HiO 0.3318 0.2901 0.3082 Wtwc Weight Water Collected Grams 34.1 29.5 31.9 Tt Duration of Test Minutes 60 60 60 cP Pitot Tube Coefficient Dimensionless 0.84 0.84 0.84 Dn Nozzle Diameter Inches 0.3695 0.3725 0.3695 C02 Volume % Carbon Dioxide Percent 3.20 3.20 3.40 o2 Volume % Oxygen Percent 16.00 15.80 15.60 n2&co Volume % Nitrogen and Carbon Monoxide Percent 80.80 81.00 81.00 Vmstd Volume Gas Sampled (Standard)dscf 42.447 37.598 39.755 Vw Volume Water Vapor scf 1.608 1.391 1.504 Bws Fraction H,0 in Stack Gas Fraction 0.036 0.036 0.036 xd Fraction of Dry Gas Fraction 0.964 0.964 0.964 Md Molecular Wt. Dry Gas Ib/lbmol 29.15 29.14 29.17 Ms Molecular Wt. Stack Gas Ib/lbmol 28.74 28.75 28.76 %I Percent Isokinetic Percent 100.5 100.5 101.7 AVG Ts Avg Stack Temperature °F 103.3 106.9 106.5 105.6 As Stack Cross Sectional Area Sq. Ft.0.887 0.887 0.887 Pg Stack Static Pressure In. H20 -0.105 -0.105 -0.105 Pbp Sample Port Barometric Pressure In. Hg. Abs 24.48 24.48 24.48 Ps Stack Pressure In. Hg. Abs 24.472 24.472 24.472 Qs Stack Gas Volumetric Flow Rate (Std) dscfm 8.38E+02 7.31E+02 7.76E+02 7.82E+02 Qa Stack Gas Volumetric Flow Rate (Actual)cfm 1.13E+03 9.95E+02 1.06E+03 1.06E+03 vs Velocity of Stack Gas fpm 1.28E+03 1.12E+03 1.19E+03 1.20E+03 ^filter Mass of Particulate on Filter milligrams 41.6 44.7 43.1 Mp Mass of Particulate in Wash milligrams 4.0 3.8 3.8 Mf Mass of Front Half milligrams 45.6 48.5 46.9 Mb Mass of Back Half milligrams 0.0 0.0 0.0 Cf Concentration of Front Half gr / dscf 0.0166 0.0199 0.0182 0.0182 '-'cond Concentration of Condensibles gr / dscf 0.0000 0.0000 0.0000 0.0000 erf Emission Rate of Front Half lb / hr 0.12 0.12 0.12 0.12 ERcond Emission Rate of Condensibles lb / hr 0.00 0.00 0.00 0.00 ATTACHMENT 3 Attachment 3: Estimate of Emitted Pollutants - Uranium Scrubber Stack PM10 Permitted during PM10 Total During PM10 Excess During procedural error (Aug -Procedural Error (Aug -Procedural Error (Aug - Sept) Sept)Sept) 0.4 Ib/hr 0.77 Ib/hr 0.37 Ib/hr 789 hrs 789 hrs hrs 315.6 lbs 607.53 lbs 291.93 lbs For conservatism EFRI assumed both fans were run during all feed/drying hours. Permitted Annual Emissions 3,504 Ib/yr 1.752 tons/yr YC dryer N 3,504 Ib/yr 1.752 tons/yr YC dryerS 21,900 Ib/yr 10.95 tons/yr V dryer 28,908 Ib/yr 14.454 tons/yr South Yellowcake Stack Actual Annual Emissions Vanadium Stack Actual North Yellowcake Stack Actual Annual Emissions Jan-July 2016 Annual Emissions 2016 2016 0.12 Ib/hr**0 Ib/hr 0 Ib/hr 1117 hrs 0 hrs 0 hrs 134.04 lbs 0 lbs 0 lbs 0.06702 tons 0 tons 0 tons ** Since only a single fan was run prior to August 1, 2016, this emissions estimate uses the measured emissions rate from the September 16, 2016 test. The September 16, 2016 test was conducted during single fan operations. Total emissions for the south Yellowcake dryer for 2016 = Jan - April 2016 emission + Aug - Sept 2016 emissions 134.04+607.53 = 741.57 lbs or 0.371 tons Attachment 3: Estimate of Emitted Pollutants - Uranium Scrubber Stack Basis: 1. Mean of all Tetco values (from Attachment 1) in exceedance of permit during period of procedural error 8/22/16 Run 1 8/22/16 Run 2 8/22/16 Run 3 Mean 0.75 0.77 0.79 0.77 2. PM10 permitted on annual basis from dryer stacks 2 yellowcake dryers at 0.4 Ib/hr each at 8760 hrs/yr each 1 vanadium dryer at 2.5 Ibs/hr at 8760 hrs/yr 4. Yellowcake dryer operation during 2016 Jan-July 2016 1117 hours Aug-Sep 2016 789 hours 5. Mean of all Tetco values (from Attachment 2) in compliance during 9/16/16 testing 9/16/2016 9/16/2016 9/16/2016 Mean 0.12 0.12 0.12 0.12 6. North Dryer and Vanadium were not run in 2016 0.00 emissions 1 UTE MOUNTAIN UTE TRIBE COMMENTS ON THE ACCEPTANCE OF ALTERNATE FEED OF SEQUOYAH FUELS PART II JULY 31, 2017 The following are the comments on the proposed acceptance of alternate feed of Sequoyah Fuels. II-A The Tribe requires that Sec. 10.8 of the RML be removed and that the Sequoyah Fuels (SFC) material should be left in place in Gore, OK because a plan has already been approved by the NRC for its storage at that location. No other radioactive waste disposal facility will accept the Sequoyah Fuels material because of the concentrations of thorium isotopes in the waste and White Mesa Mill should also not be authorized to accept this material for that reason. According to the Environmental Impact Statement (EIS) for the Reclamation of the /Sequoyah Fuels Corp Site In Gore, Oklahoma1, the parties intended for this toxic and radioactive material to remain in that state. Sequoyah Fuels has already considered and recommended on-site disposal at their Gore, OK facility. In 2015, Sequoyah Fuels notified the Oklahoma Attorney General’s Office and the Cherokee Nation’s Attorney General that it was their preferred alternative to immediately begin on-site disposal of the material in a manner that is protective of public health and already permitted by the Nuclear Regulatory Commission in order to continue implementation of reclamation activities at the location.2 The Sequoyah Fuels material is so radioactive that disposal of it requires at least 25 feet of radon-attenuating cover. The URS SER for the Sequoyah Fuels material proposal is flawed and relies on EFR statements and representations verbatim. URS is supposed to undertake an independent review on behalf of the State of Utah, not a reproduction of the proposal by EFR to accept the wastes. II-B The Tribe requires that Sec. 10.8 of the RML be removed and that the Sequoyah Fuels (SFC) material should be left in place in Gore, OK because three other facilities have declined receipt of the materials due to its highly radioactive content. Other disposal facilities have not accepted the SFC material due to its high thorium and uranium concentrations. The risk of excessive gamma emissions during the transportation, delivery, 1 Final Report (NUREG-1888), May 2008, p. 1-4, https://www.nrc.gov/docs/ML0813/ML081300103.pdf 2 Letter dated July 24, 2015, from Sequoyah Fuels Corporation to Clayton Eubanks, Esq. of the Oklahoma Attorney General’s Office and Sarah Hill, Esq. of the Cherokee Nation Office of the Attorney General, regarding “Sequoyah Fuels Corporation Onsite Disposal,” attached hereto as Exhibit A_ (“Sequoyah Fuels July 24, 2015 Letter”). 2 storage, and after placement of the processing waste stream for the SFC material is unsafe. Specifically:  Energy Solutions of Utah determined that it was unacceptable to dispose of the materials in their 11.e.(2) waste disposal cell due to the uranium concentration being higher than their waste acceptance criteria  The Pathfinder Corporation of Wyoming determined the high thorium 230 concentrations are not acceptable for disposal in their impoundments  Waste Control Specialists of Texas declined due to the concentrations of uranium 238 and thorium 2303 While the Tribe recognizes that uranium will be extracted from the SFC material, the other constituents in it are not suitable for long-term disposal at the White Mesa Mill. As with other radioactive wastes legally labeled as 11.e. (2) by-product material, the last resort is to dump it at White Mesa. The mill is not a RCRA compliant waste disposal facility, though. It is a uranium mill. Radioactive material that is too radioactive to be disposed at Energy Solutions’ licensed and modern waste disposal facility in Utah should not be sent to the far less stringently regulated and outdated White Mesa Mill located within a few miles of the White Mesa Community. II-C The Tribe requires that Sec. 10.8 of the RML be removed and that the Sequoyah Fuels (SFC) material should be left in place in Gore, OK because the safety evaluation reports contains misleading omissions and inaccuracies. The Safety Evaluation Report prepared by URS on behalf of Utah Division of Waste Management and Radiation Control (DWMRC) dated May 1, 2015, contains misleading omissions and inaccuracies. It accepts Energy Fuels Resources, Inc. (EFRI) statements as facts and does not conduct a robust evaluation of the safety of having that material delivered, stored and processed at the mill. It also lacks data about the concentrations of constituents in Cell 4A and the effects of adding the SFC waste to it. The analytical results for volatile organic compounds 2-butanone and 2-hexanone are described as being very close to the practical quantification limit and thus are likely to be present as a result of a laboratory or sampling error. Those concentration are not representative of the materials being shipped to White Mesa because the analyzed samples were from raw raffinate sludge, not the dewatered and concentrated alternative feed material. Table 2 which contains data including leachate that might offer insight into the extracted levels and remaining levels of volatile compounds, only has heavy metal data. The conclusion by URS in concurrence with EFRI that the volatile compounds are anomalous or negligible is misleading. It also states “EFRI indicated that based on its knowledge of processes used by SFC, no organic hazardous constituents were produced, used or stored at the Gore facility…” (pp.27) This contradicts the process description in Section 1.3 describing the solvent extraction phase using tributyl phosphate (of which 2-butanone is a chemical precursor) and n- hexane (potentially oxidized to form low levels of 2-hexanone). 3 Id. 3 URS also omits information from the alternatives analysis in Section 4.4 that is presented by the Tribe in comment B above. It misleads the reader to think that the only alternative was to send it to the Cotter Mill, while several options were actually considered by SFC, with the safest being to leave it in Gore, OK. The Safety Evaluation Report needs to be revised to reflect independent science and not blindly accept statements by EFRI. Without an adequate Safety Evaluation Report, the license component 10.8 to authorize the receipt of SFC material at the mill should be removed from the proposed license. II-D The Tribe requires that Sec. 10.8 of the RML be removed and that the Sequoyah Fuels (SFC) material be left in place in Gore, OK because delivery storage and ore pad management has too high a risk of radioactive release. The proposed storage management with a dirt cover to reduce gamma emissions is a good idea, but it does not give any detail about how the sacks of material will be excavated from under the cover safely for processing without damaging the sacks prior to milling. This regulated process needs to be revised in more detail to prevent gamma exposure and toxic particulate releases. Super Sacks of raffinate feed material have been sitting on a pad at the SFC in Texas site since 2005, the integrity of the Supersack material must be assessed to ensure that they will not be compromised resulting in a spill when unloading. The UMUT Air Quality Office contacted a woven polypropylene Supersack distributer (BAGS Corp) and asked if the Supersacks would last years exposed to the environment in Texas. Their answer was: “The bags will not last this long in outside environment. Maybe 3 to 6 months if they are covered from UV.” In the SER for the SFC, there is mention of consideration of breaking bags, and in the WMM License renewal application, there are the following conditions stipulated for the handling of the material, which also assumes failure of the packaging: “(3) Soil cover shall be monitored daily for apparent dusting and will be sprayed with water when the cover soil, or the ore pad conditions in general, indicate the potential for dust generation; (4) If at any time, visible dust is observed to be originating from SFC Uranium Material stored on site or from the cover placed over this material, the EFRI RSO or his or her authorized representative shall take actions within 30 minutes to stop the generation of visible dust; and (5) All offloading of SuperSaks onto the storage pad shall cease when wind speeds exceed 20 mph, unless such Super Sacs are not damaged or leaking upon arrival and during offloading.” Offloading and storage conditions have been ‘addressed’ by the license amendment, however, the procedures for loading the alternative feed material into the mill for processing is covered in the In the Draft WMM Work Practice Standards for Control of Fugitive Dust Ore Receipt and Front-End Loader Operations, which are inadequate for material this high in uranium and thorium activity. 4 II-E Tribe requires that Sec. 10.8 of the RML be removed and that the Sequoyah Fuels (SFC) material be left in place in Gore, OK because the original environment analysis considered only conventional ores and cumulative risks over time have been inadequately considered by regulators. According to mill representatives (H. Roberts) at the hearing4 in Salt Lake City, Utah, on June 8, 2017, “That the mill has no predetermined operational life” which infers the mill has no operational closure date. An Environmental Statement (ES) 5was performed per compliance with the mill’s approval with these provisions: 1.1 Applicant’s Proposal - …”The Applicant has designed for a 15-year project lifetime…. 3.1 Mining Operations – “The White Mesa Uranium Project will process ores originating in independent and company-owned mines. Mines within 160 (100 miles) of Energy Fuels ore buying stations are expected to supply virtually all of the ore processed by the facility. Energy Fuels controls reserves of approximately 8600 metric tons (MT) (9500 tons) of U3O8 with an average ore grade of 0.0125% U3O8.” The Ute Mountain Ute White Mesa community is the closest community to the mill. Longtime residents have been living in proximity to the operating mill for 37 years to date. The DEQ has stated that the original environmental study was performed for surrounding populations to the mill’s original license. However, the mill has been in operation for over twice as long as intended per the original environmental risk assessments, therefore the associated doses and risks to the White Mesa community members, some of whom were raised with the inception of the mill. The UMUT’s Environmental Department understands that the doses from the original ES were low for individual and population doses for the actual and potential residences. In addition, the DEQ MILDOS calculations for the yearly effluent releases from the mill (2007-2014) are also correspondingly low, however, a total of radiological and chemical risks have never been performed for the mill. In addition, the original dose risk analysis took into consideration only the contribution to ores from the mines within 100 miles of the area. To date, the mill has received alternative fuels from states thousands of miles away, with ISL waste coming from Wyoming and Texas. These feeds 4 Correspondence from Pennie Nielson, Alpine Court Reporting, Arlene Lovato, Utah Department Of Environmental Quality, July 5, 2017, DRC-2017-0047742. 5 Final Environmental Statement related to the operation of White Mesa Uranium Project, Energy Fuels Nuclear, INC, NUREG-556, NRC, Docket Number, 40-8681. May 1979. Pp. 1-1, 3-1. 5 that may go through the mill or bypass the processing stream (solely for end disposal), were never evaluated in the original ES. The dose assessment performed in the original ES was based on older approaches and philosophies to dose assessment calculations (ICRP 2 versus ICRP 26). In the Safety Evaluation Report for the Sequoyah Fuels Corporation (SFC) alternative feed material, there is also a higher amount of Th-232 and Th-230 activities than those evaluated in the 1980 ES, which only took into consideration the natural uranium ores from either Colorado or Arizona (per the SAER/URS report). The risk for the SFC Feed Material was being compared to what has previously been processed in mill, which includes alternative feed material which has higher activities of thorium isotopes also. The Tribe appreciates the analysis of comparison to some of the alternate feed materials already processed by the Mill, however, these were smaller quantities6:  NTS Cotter Corp material - 420 tons,  Molycorp - 11,689,  Heritage- 7374 tons,  Fansteel – 1369 tons,  Cameco UF4 - 462 tons The total of these quantities s is 21,314 tons, versus the 17,250 Super Saks of 2,200 pounds max and the 16,700 tons from the SFC (license amounts) which would approximate over 34,000 tons of material that contain not only thorium isotopes with a higher activity, but also the associated decay products. The DEQ has requested WMM environmental sampling to include Th-232 analysis, however, this has been implemented in 2016, and because of no other historical data, a question of how much Th-232 has been released into the environment to date has not been quantified from the amount of alternative feed materials ‘processed’ in the past. Historically, the mill accepted Th-230 with activities over 1uCi/g for processing (or about 1xE5 times more than what the neighboring ores contain). The Tribe has concerns that any material encompassed under 11e.(2), will be able to be processed at the mill, no matter the high concentrations of natural thorium contained in the material, which will end up in the conventional impoundments. As mentioned previously, these higher concentrations of thorium isotopes were never fully considered in the in the original risk analysis. The dose conversion coefficients in the MILDOS code which calculate the dose have default values that vary for U-238 compared to the 6 All quantities cited in EFR White Mesa Mill Updated Tailings Cover Design Report, August 2016. 6 thorium isotopes (particle class and size) by factors of 10 (and in the case of particle size 50 by a factor of 100-1000) as indicated for some default values as presented in the table below. Table 1: Dose conversion coefficient default values7 in MILDOS for U-238 and Thorium isotopes Inhalation Effective Dose for Adult mrem/yr per pCi/m3 Inhalation Particle Definition (AMAD) Class Ingestion Effective Dose Coefficients for Adult (mrem/yr per pCi) U-238 2.51E1 1 Y 5.526E-4 1.49E-4 50 Y Th-228 2.53E-1 1 W 7.62E-4 12.1E-1 50 W Th-230 3.26E-1 1 W 1.33E-3 2.66E-1 50 W Th-232 1.64E0 1 W 2.73E-3 1.57E0 50 W In the SFC alternative feed material, the Th-230 content for the Arizona natural ores are not given, however, there is an assumed amount for Th-230 in the tables in Reclamation Plan Appendix C, Radon Emanation Modeling, (Attachment C.1, Radium-226 Estimation Tables) for the material processed by the mill for deposition into the tailings cells. References: Cember, H., Introduction to Health Physics, Third Edition, 1983. Energy Fuels Resources, (USA) Inc., White Mesa Mill, Updated Tailings Cover Design Report, MWH, August 2016. International Commission on Radiation Protection, Publication 2, Report of Committee II on Permissible Dose for Internal Radiation, 1960. (ICRP 2) International Commission on Radiation Protection, Publication 26, Recommendations of the International Council on Radiological Protection, Vol. 1, No.3, 1977. (ICRP 26) USNRC, Final Environmental Statement related to the operation of White Mesa Uranium Project, Energy Fuels Nuclear, INC, NUREG-556. Docket Number, 40-8681. May 1979. Pp. 1- 1, 3-1. 7 MILDOS AREA 4.01, US Nuclear Regulatory Commission, Sept 2016. 7 1 UTE MOUNTAIN UTE TRIBE WHITE MESA MILL GROUNDWATER DISCHARGE PERMIT UGW370004 COMMENTS AND STATEMENT OF BASIS PART III July 31, 2017 Section 1: Introductory Comments 1. The Ute Mountain Ute Tribe (Tribe) has depended on, and will continue to depend on water resources in the vicinity of the nearby community of White Mesa forever. Contamination of the shallow or deep aquifer systems by toxic metals and radioactive elements by the White Mesa Uranium Mill (the Mill) is a serious concern and threat to the health and welfare of the tribal community and the ecosystem that sustains the community and its members. 2. In support of these comments, the Tribe is providing an up-to-date, technical assessment of groundwater conditions at the Mill prepared by an experienced and qualified third-party contractor, Geo-Logic Associates. (Geo-Logic Associates, 2017). See Attachment A: Geo- Logic Report, including the Statement of Qualifications of the preparer, Todd Schrauf, PE. Geo-Logic Associates is a consulting firm of 250 professional geologists and engineers and support staff with offices in 25 states and Peru. Geo-Logic Associates professional services include, among others, geology and hydrogeology, environmental engineering, geotechnical and geoenvironmental engineering, civil engineering, geotechnical laboratory testing, and liner electrical leak detection. The Geo-Logic Report confirms evidence of a signature of tailings solution in the groundwater at the Mill. 3. The Mill facility has negatively impacted groundwater quality in the shallow aquifer on the Mill property, and UMUT is concerned that a signature of more serious contamination caused by Mill operations, which is evident in the data being collected in the Mills monitoring network, is not being recognized and addressed by the Mill or Utah Division of Waste Management and Radiation Control (DWMRC). 4. Seepage from the tailings cells into the shallow groundwater is indicated by both the higher concentrations and specific types of heavy metals along with the increased acidity being detected in the Mill’s monitoring well network. The signature of contamination in the groundwater is consistent with the chemistry of process waters and wastes from the Mill facility and is strong enough to be distinct from natural background conditions. 5. The signature of contamination being observed supersedes and renders obsolete or out-of- date past technical reports DWMRC has concurred with to explain current negative trends in groundwater conditions at the site as being due to natural conditions in the aquifer. a. While DWMRC and EFR interpret past technical reports as denying any impact to groundwater from cell leakage, they concede that deteriorating groundwater conditions are due in part to operations and anthropogenic activities that occurred and continue to occur at the Mill. For example, the recognized nitrate and chloroform groundwater plumes are attributable to contamination from Mill activities. The source of the chloride plume has not been determined. The Statement of Basis expressly 2 attributes changes in ground water chemistry to ongoing pumping of wells. Other technical reports submitted by EFR or its consultants and accepted by DWMRC, such as the 2012 Investigation of Pyrite (Hydro Geo Chem, Inc. December 7, 2012) and numerous Source Assessment Reports on various monitoring wells point to well completions and to seepage from wildlife ponds (use of which was discontinued in 2012) as causes of changes in groundwater quality and. b. DWMRC should no longer rely on past reports for justifying continual adjustment of natural background and corresponding modification of groundwater compliance limits to less stringent levels. 6. It is the declared public policy of the state of Utah “to conserve the waters of the state and to protect, maintain and improve the quality thereof for public water supplies, for the propagation of wildlife, fish and aquatic life, and for domestic, agricultural, industrial, recreational and other legitimate beneficial uses….” Utah Admin. Code R317-2-1A. 7. To fulfill its obligations to protect public health and safety and the environment, including water quality, DWMRC should assume, rather than wholly dismiss, the very real possibility that the deteriorating groundwater chemistry at the Mill may well be and is likely resulting from cell leakage and other releases and activities at the Mill and should require EFR to take immediate actions to identify the sources of the contamination and implement effective corrective actions. . 8. As DWMRC has recognized in the 2011 Public Participation Summary document, due to the limited ability of the “leak detection systems” (LDS) for tailings cells 1, 2 and 3 the Point of Compliance (POC) monitoring well network is the “first line of defense” for detecting facility impact to groundwater. The design of the LDS for these cells has a “high potential for undetected leakage” (Exhibit D, DWMRC February 11, 1999) and are adequate for detecting only catastrophic releases at rates greater than 200,000 gallons per acre per day which is far in excess of Environmental Protection Agency (EPA) Resource Conservation and Recovery Act (RCRA) performance standards for leak detection efficiency of 1 gallon per acer per day, (Exhibit F, DWMRC June 27, 2000). 9. DWMRC should require all language included in the 2017 License Application referencing working, integral leak detection systems for tailings cells 1, 2 and 3 be amended to accurately reflect the inadequate design of these systems. It is misleading, for example on pages 32-34 of the 2011 Public Participation Summary (PPS) to describe the poor LDS for cells 1, 2 and 3 as functional. The detections of fluids in the cell 1 standpipe in 2010 are evidence of a catastrophic leak that should have triggered an investigation into the vadose zone beneath the tailings cells and a reevaluation of the findings of the nitrate contamination investigation report along with closer scrutiny of indicator parameters in the monitoring well network and is not evidence of a “working” leak detection event. 10. As detailed in the 2004 Statement of Basis (SOB) for the facility, the POC monitoring well network was specifically designed and 38 indicator parameters were specifically selected with the intent of detecting the signature of contamination from cells at the earliest possible 3 point in time due to the inadequate leak detection systems for the cells so the source of contamination could be halted and remediation undertaken before irreversible environmental damage occurs. 11. The Tribe disagrees with DWMRC regarding the proposed GWCL modifications. The proposed modifications are not reasonable, are not supported by good science and are not protective of human health or the environment. A more protective methodology must be used to protect groundwater quality. a. The Statement of Basis for Ground Water Permit (GWDP) No. UGW370004 2017 (2017 GWDP SOB) renewal describes Energy Fuels Resources (USA) Inc. (EFR) making multiple requests for modifications to ground water compliance limits (GWCLs) for multiple wells in the POC monitoring well network that have been exhibiting out of compliance (OOC) status for certain compliance parameters. DWMRC has concluded that these modifications are “reasonable and are further supported by the administrative record” (pg.2 2017 GWDP SOB) and has included the suggested revisions in this permit proposal. b. DWMRC is improperly allowing EFR to circumvent the Utah Groundwater Protection Regulations by constantly adjusting background levels to justify repeated resetting of GWCLs to more lenient compliance levels, rather than properly requiring EFR to adhere to the established regulatory process for setting alternate concentration limits – which necessarily requires, among other things, steps to correct the source of the contamination. c. When significant trends in background compliance well data are discovered, their source must be identified, and the source of the trend must be found to be unrelated to the regulated facility prior to modifying the associated compliance limit. (ASTM 2017; EPA 2009; Gibbons 1999; Utah Admin. Code R317-6-1 (definition of “background concentration”)). d. The ground water protection regulations in Utah Admin. Code R317-6 define the term “background concentration” to mean “the concentration of a pollutant in ground water upgradient or lateral hydraulically equivalent point from a facility, practice or activity which has not been affected by that facility, practice or activity.” [Emphasis added.] Utah Admin. Code R317-6-1. e. Modification of compliance limits for POC wells with statistically significant increasing trends of indicator parameters is technically unsound and unacceptable for protection of human health and the environment. f. Groundwater compliance limits (GWCLs) were developed site specifically on a well- by- well (intrawell) approach using EPA RCRA guidance (EPA 2011 Unified guidance) to determine baseline levels unimpacted by Mill activities. g. A foundational element of the Unified Guidance is that it is unacceptable to raise a GWCL for a POC well if there is a possibility that a facility may be the cause of the exceedance. The original GWCLs should be retained and the DWMRC review and 4 approval of the modified GWCLs should be re-visited in a sound scientific manner prior to the proposal of modified GWCLs in the groundwater discharge permit for the facility. h. Similarly, ground water protection regulations in Utah Admin. Code R317-6 define the term “background concentration” to mean “the concentration of a pollutant in ground water upgradient or lateral hydraulically equivalent point from a facility, practice or activity which has not been affected by that facility, practice or activity.” [Emphasis added.] Utah Admin.s Code R317-6-1. i. There has been no showing by EFR or DWMRC that the purportedly changing background concentrations detected in Mill monitoring wells “[have] not been affected by that facility, activity, or practice” as required by Utah regulations and he Unified Guidance. In fact, the very opposite is true - background concentrations have been and are being affected by the Mill operations and acitivities. j. A Source Assessment Report (SAR) is required under Part I.G.4.c. of the proposed GWDP; however, the Tribe maintains that SARs which have been completed to date for OOCs lack scientific rigor and provide inadequate technical basis for modifying GWCLs. The proposed modifications to the GWCLs in the draft permit are based on data which exhibit negative impact from the Mill and their approval would constitute endangerment to public health and the environment by masking and administratively covering a toxic contaminant release. 12. The multiple lines of evidence approach proposed by EFR in SAR reports and adopted and approved by DWMRC consistently rely on three arguments to reach a conclusion that the Mill is not the source of OOC parameters: (1) a review of plots of indicator parameter concentration trends; (2) the 2007/2008 University of Utah (Isotope) Study and (3) geochemical influence from pyrite oxidation. Sections 2-4 of the following comments address these arguments. Section 2: Indicator Parameters 13. As detailed in the 2004 GWDP SOB, each of the 38 parameters selected by DWMRC for monitoring as an early warning indicator of groundwater pollution was selected based on concentrations in source material (ore, alternate feed materials, process solutions and reagents) and mobility in the environment as determined by partitioning coefficients (Kd values) and retardation factors (Rf). At the time of the 2004 GWDP development, Kd and Rf factors were based upon generic literature values. Contaminant mobility in the subsurface is a fundamentally complex subject, which as recognized by DWMRC, depends on site-specific values for Kd and Rf factors, among other site specific geochemical and hydrological considerations which interact to influence the speed of contaminant transport within the vadose zone and aquifer. Page 15, 2004 GWDP, “Ideally, these Kd values are determined 5 independently for each permitted facility, using laboratory or field-scale tests with site specific groundwater and soils and/or aquifer materials.” 14. DWMRC should use all 38, not merely four, of the DWMRC’s specifically selected indicator parameters and use a more sophisticated approach as intended when the 2004 GWDP SOB was developed. Page 7 of the 2004 SOB details the development of GWCLs for each of the 38 chosen parameters, “to be used as early warning indicators of impending groundwater pollution.” 15. Recent federal guidance confirms that a nuanced approach for determining compliance with discharge permits and successfully detecting contamination is the correct approach for regulator to take. The recently revised proposed rule for In Situ Leach Uranium Operations, Health and Environmental Protection Standards for Uranium and Mill Tailings, 40 CFR Part 192, 82 FR 7400, 7409 (U.S. EPA, 2017) clarifies that a determination of contamination may be based on one indicator parameter being out of compliance. Additional geochemical and isotopic characterization work and evaluation needs to be required. 16. UDWMRC should require development of and assessment methodology for site specific Kd (soil partitioning values) for each parameter with site specific geochemical analytic data and associated modeling and interpretation. Currently generic literature values and concepts are being used for decision-making by EFR and DWMRC in contrast to scientific based best practices (U.S. EPA, 1999) and DWMRC own recommendations (2004 GWP SOB). 17. It concerns the Tribe to see broad generalizations, including generic Kd and Rf factors, for specific constituents of concern, being used by DWMRC for the evaluation and analysis of potential indicators of contamination. a. For example, page three of a DWMRC February 16, 2017 letter responding to the Tribes concerns about groundwater contamination at the Mill states in regards to chloride, “there is no retardation of movement through the vadose zone.” A review of the science literature regarding chloride mobility in the vadose zone reveals a plethora of evidence and data that thin clay layers have been shown to retard chloride by retaining the ions in their matrix. Clay layers have been documented to exist both in the vadose zone as well as at the bottom of the tailings impoundments. Retardation of chloride mobility is noted in foundational scientific texts such as Study and Interpretation of the Chemical Characteristics of Natural Water, USGS Water-Supply Paper 2254, Hem 1992 and in many peer reviewed papers published and readily available. In fact, this phenomenon has been observed in the same geologic formations encountered at the Mill site (USGS 1995) and under similar hydrologic conditions (Applied Geochemistry, 2008.) Cells 4A and 4B each have a compacted clay liner installed while each of the legacy cells have received copious amounts of fines (clays) from geologic formations specifically documented as retarding chloride mobility. Kaolinite clay layers in the Burro Canyon formation are also documented in multiple site investigation reports. The most recent hydrogeology report developed for the site, “Hydrogeology of the White Mesa Uranium Mill, Blanding Utah” 6 prepared by Hydro Geo Chem and dated June 6, 2014 describes kaolinite clays and shale layers and cementing in the Burro Canyon formation in detail with descriptions in the text, well logs and geologic cross sections. 18. Although site-specific factors may retard and reduce the effectiveness of chloride as a primary indicator parameter across the site, no source has been identified for the active existing chloride plume at the Mill. DWMRC and EFR have continually cited chloride as the primary, most useful indicator parameter of tailings cell contamination, while not requiring a source identification investigation into the source of the chloride plume is unacceptable. The data clearly shows that the source of the chloride plume is centered near the southeast corner of cell 1, the corner that cell 1 was constructed to drain towards coincidentally. Chloride concentrations have remained high near the center of the plume (TW4-24) while increasing significantly in most of the wells surrounding this high point, including TW4-19, 20, 21, 22, and MW-28, 30 and 31 indicating that the source of the chloride plume remains active in the subsurface. A comprehensive source assessment report and contamination investigation should be required to determine the chloride source and any OOC co-contaminant prior to approving the proposed GWCL modifications for any wells associated with the chloride plume. 19. Similarly, uranium, which has been cited by the Mill and DWMRC as one of the primary/best indicator parameters, is well-known to be extremely sensitive to redox conditions and may readily be geochemically affected by site-specific factors (ammonia release and nitrate plume will affect uranium mobility for example, see Applied Geochemistry, 2013) which would retard its mobility and therefore utility as a key indicator parameter. This concept of uranium mobility retardation and associated limitations for detecting a contaminant plume associated with uranium recovery operations is recognized in recent federal guidance (USEPA, 2014). 20. Fluoride is another constituent cited by the Mill and DWMRC as one of the best indicator parameters - “Fluoride is the fastest-moving available indicator of tailings seepage” (Energy Fuels Resources and Utah Division of Radiation Control DRC Memo: II DRC-2013-003137 II). Fluoride trends have not been scrutinized or investigated by Mill staff/contractors or DWMRC in that context, despite the alarming fluoride levels at MW-22, the southernmost well at the site and the closest monitoring well to the Tribe despite the fact that the fluoride spike to alarming levels far beyond what may be considered natural. These alarming fluoride levels are accompanied by an enormous pH decline and a significant (exceeding many Utah groundwater protection criteria) recent rise in metals that have been associated with alternate feeds (beryllium and cadmium, manganese) and other trace metals associated with uranium ores such as cobalt, copper, molybdenum, nickel, and zinc. Elevated levels of fluoride found naturally in aquifers are found in geochemical conditions quite different from the Burro Canyon aquifer at the site, natural fluoride in high concentrations usually associated with neutral to alkaline pH, low calcium, high sodium and bicarbonate concentrations (Elango and Brindha, 2001; Handa, 1975, Valenzuela-Vásquez et al., 2006; Edmunds and Smedley, 7 2005) which is further indirect evidence that the high abundance that has appeared in MW-22 has an anthropogenic source that warrants serious and detailed investigation. Fluoride and each of the metals listed here were chosen in the 2004 GWDP SOB based on abundance in sources at the Mill and high potential for migration in the subsurface. Wells like MW-22 which exhibit significant trends for multiple indicator parameters require a rigorous source investigation including detailed geochemical and isotopic analysis to rule out Mill operations as a source of the contamination. 21. DWMRC has determined that the natural variation at the mill site and the unique nature of the material and related process reagents used at the site required the selection of an expanded suite of indicator parameters and required GWCLs to be determined on a well by well basis. The same reasoning also requires that site-specific geochemistry be used in the decision making process for each well and for each indicator parameter when screening for trends and potential facility impact. Geoscientists have acknowledged for many years that the default values found in literature can result in significant errors in the detection and remediation of pollutants in groundwater and that values calculated using site-specific conditions are “absolutely essential” (U.S. EPA, 1999). 22. We request that the SAR’s conducted to date for wells MW-24, MW-28, MW-5, MW-31 (in addition to all wells exhibiting a significant decline in pH which will be discussed in greater detail below) specifically are required to be performed again at a more rigorous scientific level considering all of the 38 constituents required for monitoring as indicator parameters of facility impact at a more sophisticated and detailed level, site specific geochemistry and incorporating analysis from updated isotopic testing which also needs to be required. Section 3: Updated Isotopic Testing 23. In 2009 the Tribe commented regarding the need for an updated isotopic study during the public comment period regarding a proposed modification to the GWDP for the Mill. At that time, we implored DWMRC to keep a provision in the GWDP requiring additional isotopic characterization work. UDWMRC removed the provision, but noted in the public response summary that they, “continue to believe that additional study of isotopic geochemistry at the site is appropriate at some time. However, we agree it is DUSA’s prerogative to defer such study until a monitoring well or contaminant passes into out of compliance statues by exceeding its respective ground water compliance limit.” 24. Since 2009 there have been many, many wells that have passed into out of compliance status for a varied host of indicator parameters. As of the first quarter 2017 groundwater monitoring report there are twenty wells and sixty-eight parameters in accelerated monitoring/out of compliance status. It is far past time to require additional necessary isotopic/geochemistry characterization work. 25. All proposed GWCLs modifications should be withdrawn pending completion and analysis of such work. 8 26. The University of Utah, 2008 Study which contained analysis of samples collected in 2007 – ten years ago, expressly recommended additional investigative isotopic work be done at that time. Radical changes in water chemistry and flow conditions since then obviously require a follow-up isotopic study be conducted. The Tribe requests such a study be performed as a condition of the current permitting and include: a) performance of additional isotopic/geochemical investigation and characterization work; b) further investigation in the area of MW-27 and further investigation in the area of MW-22 (see University of Utah, 2008, page 54); and, c) reduced purge times for groundwater sampling and performance of passive sampling near the top of the water column (University of Utah, page 55). 27. The University of Utah Study did identify that there was active groundwater recharge and flow dynamics across the site which, along with the study’s numerous recommendations for further investigations, are further compelling arguments for additional isotopic testing and investigation prior to any serious discussion of raising compliance limits. 28. On August 9, 2016 Scott Clow and Colin Larrick from the Tribe’s Environmental Programs Department met with DWMRC to discuss groundwater conditions at the Mill facility. At that meeting the DWMRC staff informed Mssrs. Clow and Larrick us that additional isotopic characterization work, similar to the University of Utah Study completed over eight years ago, would be a valuable and important project which would help immensely in defining current conditions and potential impacts. The DWMRC recommended the Tribe find a graduate student and program that could do the work. 29. Since that time, the Tribe connected with Duke University Nicholas School of the Environment’s PhD Candidate, Nancy Lauer who is working with Dr. Avner Vengosh, Senior Lecturer of Geochemistry and Isotope Hydrology (http://sites.nicholas.duke.edu/avnervengosh), who have offered to sample/analyze and interpret results in a report at no cost to EFRI, DWMRC or the Tribe using cutting-edge pattern recognition techniques for a comprehensive suite of isotopes, metals and ions. 30. Nancy Lauer planned a sampling trip in November, 2016 and coordinated with the Tribe to collect nine samples from our two monitoring wells, a community supply well in the community of White Mesa, four springs around White Mesa and Recapture Reservoir which is the source of part of the process water EFRI uses. Nancy Lauer also attempted to coordinate with EFRI for access to the facility in order to sample on site wells however permission was denied and we understand that EFRI would not allow access unless they were compelled by DWMRC. 31. It is the Tribe’s understanding that DWMRC would like to see a detailed scope of work and proposal and are sure that if DWMRC facilitated communication and site access Duke University would he pleased to develop a document that would be adequate. Attached to our comments is a detailed description of the Vengosh Laboratory Analytical capabilities and methods (Attachment B: Vengosh Methods). 32. The Tribe requests that prior to any official approval of compliance limit increases that Duke University be allowed to proceed with sampling this well along with the other facility wells 9 included in the University of Utah Study and selected wells in the nitrate and chloroform plume areas. Detailed isotopic, metals and ions analysis would assist in identifying the source pH decline and of the increases in metals of concern while providing extremely valuable baseline data which would be informative and help provide answers to all parties. 33. The Tribe also requests that DWMRC compel EFRI to allow the Duke University study to proceed to sample at list of wells minimally including the fifteen wells sampled in the University of Utah Study, TW4-24, TWN-2, and WW-2. 34. The original GWCLs should be retained and the DWMRC review and approval of the modified GWCLs should be re-visited in a sound scientific manner prior to the proposal of a new groundwater discharge permit for the facility. 35. The Tribe requests the following elements be included, at a minimum, in a permit condition requiring an updated study: a. Isotopic Groundwater and Surface Water Investigation and Report - within 90 calendar days of issuance of this Permit, the Permittee shall submit an isotopic groundwater and surface water investigation report for Executive Secretary approval. The purpose of this investigation and associated report shall be to characterize chemical composition, noble gas composition, and age of the groundwater monitoring wells and surface water sites. b. Minimum locations required to be included in the study: On-site Wells: MW-1, Mw- 18, MW-19, MW-27, MW-02, MW-29, MW-30, MW-31, MW-05, MW-11, MW-15, MW-14, MW-3, MW-3A, MW-22 (wells included in initial 2007 University of Utah sampling). In addition, all POC wells not included in the University of Utah Study and; TWN-2, TW4-24, MW-24, WW-2 and Springs: Entrance Spring, Westwater Spring, Cottonwood Spring, Ruin Spring. c. An examination of groundwater age and isotopic/geochemical conditions using a comprehensive analytical suite of major and trace elements (including all analytes required under Table 2 of the GWDP at a minimum) with the addition of stable isotopes of oxygen, hydrogen, carbon, boron, strontium, lithium and isotopes of radionuclides (uranium, radium, lead-210). After concentrations have been obtained for each well, the Permittee must verify if any of the monitoring wells have been influenced by the artificial recharge from the tailings and/or facility operations. d. An examination of isotopes of Deuterium and Oxygen-18 in water at each sampling location to determine geochemical characteristics including but not limited to evaporative signature. e. The purpose of this supplemental investigation and associated report shall be to establish and evaluate isotopic benchmarks, geochemical characteristics, and a ground/surface water age at these locations. The Permittee must conclusively demonstrate that the supplemental investigation conducted is similar to the one performed by the University of Utah in July 2007. 10 Section 4: Pyrite/Redox/Dissolved Oxygen 36. To date there is no scientific evidence that proves pyrite oxidation in the Burro Canyon Formation is causing pH declines. Numerous scientific reports document that the unconfined Burro Canyon Formation has been oxygenated for a long period of geologic time. Testing by EFRI consultants during the course of the pyrite investigation support the conclusion that the formation has been oxidized, and there was no pyrite detected by X Ray Diffraction analysis for any of the samples collected from the vadose zone. 37. DWMRC has maintained that the lack of pyrite in the vadose zone is not important and that potential oxidation of groundwater in the saturated zone may have occurred causing pyrite dissolution and a corresponding pH decline and metals increase. 38. This line of reasoning does not hold up to scrutiny. Tailings disposal of concentrated pyrite mineral tailings waste into lakes exposed to the atmosphere has been a standard practice in the mining industry for decades and has been shown to limit pyrite oxidation and associated acidity increases. How could well pumping or infiltration of surface water which would need to travel many meters through the unsaturated vadose zone be a plausible mechanism to create a more oxidizing environment than a surface water body exposed to the atmosphere, even if there were sufficient un- oxidized pyrite minerals in the saturated Burro Canyon formation? A review of the scientific literature on the subject will show that it is well established that pyrite oxidation under saturated conditions is limited and would not be expected to produce dramatic acidity increases. 39. Another logical inconsistency with the foundation of the pyrite theory DWMRC has accepted as part of the rational for modifying GWCLs for lower pH values is that, as detailed in the Infiltration and Contaminant Transport Modeling (ICTM) report (February 6, 2013 URS Technical Memorandum), site wells in the shallow unconfined aquifer are assumed to be under fairly oxic conditions naturally, stating, “the presence of measured dissolved oxygen in groundwater suggests that oxic conditions and aerobic processes are likely to dominate redox conditions in groundwater”. Measuring of dissolved oxygen in wells during the University of Utah study has proven this supposition to be true during sampling in 2007, before the pH decline and supposed oxygenation of the aquifer occurred. 40. It is also important to note that the TWN-series wells upgradient of the tailings cells, although included in the redevelopment event which EFR and DWMRC have associated with pH decline do not exhibit this phenomenon (described in Hydro Geo Chem, 2011). 41. The highest rate of pH changes are evident areas downgradient and adjacent to the tailings cells, particularly areas not impacted by infiltration from the wildlife ponds. 42. The wells with the lowest pH are found at the downstream edge of Tailings Cell 1 (MW-24 and MW- 28), near the southeast corner of cell 2 (MW-32), and at downgradient well MW-22. 43. Limited analytic testing Hydro Geo Chem (Hydro Geo Chem, 2012) conducted during their pyrite investigation showed that the Burro Canyon aquifer material had little to no acid generating potential and some results exhibited a significant excess of acid neutralizing carbonate material, results consistent with modeling conducted by MWH for the ICTM report which concluded that the Burro Canyon geology contained sufficient carbonate material to neutralize extremely acidic tailings cell fluids. These results are not consistent with an explanation pinning pH decline on Burro Canyon geology. 44. At a minimum, further investigation and testing regarding the validity of the pyrite theory needs to be conducted immediately, and solid scientific evidence should be presented/reviewed and approved 11 prior to using this theory as part of the rational for closing out source assessment reports and raising compliance limits for indicator parameters of tailings cell solutions and/or facility impact to groundwater. 45. Require measurement of Dissolved Oxygen as part of field parameter set; amend Part I.E.1.(d) of the GWDP amended to add Dissolved Oxygen (mg/L) to required field parameters list 46. Rescind DWMRC approval of the modified GWCLs based on the December 7, 2012 pH/pyrite investigation report and related documents, EFR October 2012, Source Assessment Report White Mesa Uranium Mill, prepared by Intera Geosciences and Engineering and the EFR November 9, 2012 pH Report White Mesa Uranium Mill, prepared by Intera as the source of pH decline/metals increase documented in the April 25, 2013 DWMRC letter to Jo Ann Tischler, Director Compliance Energy Fuels Resources with the Subject: Energy Fuels Resources (USA) Inc. October 10, 2012 Source Assessment Report White Mesa Uranium Mill and associated pH documents (dated November 9, 2012 pH report and December 7, 2012 Pyrite Investigation Report): DRC Findings and condition a requirement for a new pH investigation report for OOC wells requiring extensive and comprehensive isotopic/geochemical investigation including humidity cell testing. Section 5: Southeast Flow Gradient in Shallow Aquifer 47. Despite repeated assertions from EFR and DWMRC that the groundwater flow gradient in the shallow Burro Canyon aquifer is primarily to the southwest, there is substantial evidence that the bulk of groundwater is flowing in a southeastern direction. This distinction has important implications since the POC monitoring well network is orientated in a NE to NW trend and there is a large gap to the SE of the facility where the sole monitoring well, the southernmost well in the network and the closest well to UMUT, it displaying extremely alarming trends in toxic metals and other parameters indicative of impact from the facility. 48. Groundwater flow direction generally follows topography. As acknowledged in the 1979 Final Environmental Impact Statement and re-iterated in the latest Reclamation Plan 5.1 on page 1-10, “the site is located on a peninsula platform tilted slightly to the south-southeast” 49. Groundwater flow is generally downhill, e.g. MW-22 has the lowest water level recorded in the monitoring well network and professional assessments of recent site levels demonstrate that the potentiometric surface indicated by water levels indicates a SE flow gradient (Attachment D, Groundwater Flow Paths South of White Mesa Mill). 50. Groundwater flow to the southeast is also evident in the saturated thickness of the burro canyon aquifer, which is substantial in the southeast portion of the site and extremely limited in the southwest portion (Geo-logic, 2017). Saturated thickness is expected to influence the transmissivity of the aquifer and contaminant migration due to the presence of higher conductivity layers and channels within the Burro Canyon aquifer. As saturated thicknesses increase, there is a larger probability of these layers and channels being intercepted, this concept is recognized in a variety of EFR reports, notably the quarterly chloroform and nitrate reports which discuss saturated thickness and interception of channels of preferential flow. Higher conductivity channels provide preferential channels for contaminant migration and their presence is consistency with the lithology of the perched aquifer sandstone as noted in numerous geological and site specific reports. Figure 3 of the 12 Geo-Logic Report included as Attachment A illustrates the significant saturated thickness of the Burro Canyon aquifer in the southeast portion of the site. 51. The lone monitoring well in the southeastern portion of the site, MW-22 is the closest well in the monitoring well network to Tribal Lands and the decline of water quality exhibited at this location, with the strong signature of facility impact remains a high level concern. 52. Water levels in MW-22 have increased close to seven feet since it’s installation in 1994, the timing coincides with the observance of seepage from the wildlife ponds and indicates that there is a high hydraulic conductivity connection between MW-22 and upstream areas. Water levels at MW-22 responded more quickly than the nearest upgradient well, MW-17 suggesting a higher conductivity conduit between MW-22 and upgradient areas, a conduit that may bypass MW-17 (Geo-Logic, 2017). 53. The University of Utah report published in 2008 provides further evidence for preferential flow in the vicinity of MW-22 and clearly called for further investigation at this location. Tritium was found in MW-22 indicating that recent recharge from a surface water source is occurring and influencing the well and MW-22 exhibited sulfur isotopes with ratios similar to surface water sites. The University of Utah actually identified the likely area of recharge as an area encompassing the Mill facility and tailings area, “The southern margin of artificial recharge is likely to be between MW-27 and MW-31 while the northern margin appears to be between MW-18 and MW-19.” (University of Utah, 2008 page 27). 54. Fluoride, beryllium, cadmium and thallium concentrations have all increases on significant trend lines to levels beyond state groundwater quality standards and have been accompanied by a precipitous decline in pH which has been measured below 4.5. Additional analytes indicative of facility impact include cobalt, copper, manganese, molybdenum, nickel, zinc and sulfate which are all increasing in concentration. The dramatic fluoride spike detected in MW-22 starting in late 2012 is correlated with a dramatic spike in fluoride levels present in the tailings solutions. 55. The Tribe requests that DWMRC designate MW-22 a POC well and require a SAR for all OOC parameters along with the inclusion of three new point of compliance monitoring wells between tailings cell 4A and MW-22. 56. DWMRC must require an investigation regarding higher permeability zones in the Burro Canyon Formation and potential for water/contaminant preferential flowpaths to the southeast of the site require a detailed southeast hydrologic Investigation and report to define, demonstrate and characterize the hydraulic connection and local groundwater flow directions between the tailings and MW-22. This investigation and report should be similar in scope and requirements to the Detailed Southwest Investigation report which DWMRC previously required, and include multiple piezometers, borings and/or monitoring wells to complete a detailed subsurface characterization of groundwater flow at a sufficient resolution to identify any existing preferential channels of migration. Section 6: Summary of Requested Actions Based on the foregoing comments and the Geo-Logics Report, the Tribe requests DWMRC take actions to address in a substantive manner (for example by imposing additional permit/license requirements and conditions with strict timelines) prior to approving the proposed license and discharge permit. The Tribe requests these actions include: 13 1. The SAR’s conducted to date for wells MW-24, MW-28, MW-5, MW-31 (in addition to all wells exhibiting a significant decline in pH which will be discussed in greater detail below) are required to be performed again at a more rigorous scientific level considering all of the 38 constituents required for monitoring as indicator parameters of facility impact at a more sophisticated and detailed level, site specific geochemistry and incorporating analysis from an updated isotopic data. 2. Stop using rationale sourced from EFR regarding using only four of the 38 DWMRC specifically selected indicator parameters as part of the DWMRC rationale for approving modified GWCLs and move to a more sophisticated approach as intended when the 2004 GWDP SOB was developed. Page 7 of the 2004 SOB details the development of GWCLs for each of the 38 chosen parameters, “to be used as early warning indicators of impending groundwater pollution.” 3. Require development and assessment methodology of site specific Kd (soil partitioning values) for each parameter with site-specific geochemical analytic data and associated modeling and interpretation. 4. Require as a condition to the proposed GWDP an Isotopic Groundwater and Surface Water Investigation and Report. 5. Require measurement of Dissolved Oxygen as part of the field parameter set. 6. Rescind DWMRC approval of the modified GWCLs based on the December 7, 2012 pH/pyrite investigation report and related documents, EFR October 2012, Source Assessment Report White Mesa Uranium Mill, prepared by Intera Geosciences and Engineering and the EFR November 9, 2012 pH Report White Mesa Uranium Mill, prepared by Intera as the source of pH decline/metals increase documented in the April 25, 2013 DWMRC letter to Jo Ann Tischler, Director Compliance Energy Fuels Resources with the Subject: Energy Fuels Resources (USA) Inc. October 10, 2012 Source Assessment Report White Mesa Uranium Mill and associated pH documents (dated November 9, 2012 pH report and December 7, 2012 Pyrite Investigation Report): DRC Findings, and impose a permit condition requiring a new pH investigation report for OOC wells including extensive and comprehensive isotopic/geochemical investigation including humidity cell testing. 7. Require direct testing of liner integrity and leak location surveys for the three legacy cells and direct testing of subsurface leakage to the vadose zone under the three legacy cells. Identify appropriate methodology by evaluating existing technologies, including but not limited to: electrical integrity surveys of the liners and advanced geophysical characterization of the vadose zone using high performance subsurface imagery techniques (Please see Attachment C for additional information regarding this technology and note that Dawn Wellman manager of the Environmental Health and Remediation market sector at Pacific Northwest National Laboratory. , Pacific Northwest National Laboratory PO Box 999 Richland, WA 99352 (509) 375-2017 has been contacted by the Tribe and is available to share information via phone calls, 14 video conferencing, etc. with DWMRC regarding advanced vadose zone characterization). 8. Require Source Assessment Report and Contamination Investigation for the Chloride plume prior to approving modified GWCLs for wells associated with the chloride plume. 9. Require a detailed southeast hydrologic investigation and report to define, demonstrate and characterize the hydraulic connection and local groundwater flow directions between the tailings cells and MW-22. This investigation and report should be similar in scope and requirements to the Detailed Southwest Investigation report which DWMRC previously required of EFR, and include multiple piezometers, borings and/or monitoring wells to complete a detailed subsurface characterization of groundwater flow at a sufficient resolution to identify any existing preferential channels of migration. 10. Inclusion of three new point of compliance monitoring wells between tailings cell 4A and MW-22. 11. Designate MW-22 a POC well and require a SAR for OOC parameters. 12. Add a stipulation to include a sampling schedule required for the deep water supply wells completed in the N aquifer at the Mill site under the Safe Drinking Water Act (SDWA) and for results to be provided in annual 4th quarter groundwater reports. 13. The Tribe requests that uranium isotopes be required during scheduled monitoring events for MW-26 and that the activity ratio (AR ratio) be calculated and reported with regular monitoring reports. The GWCL for uranium in MW-26 is proposed to increase dramatically. We understand that this is a pumping/remediation well and that DWMRC has inserted a caveat that any interpretation of data from this well needs to be understood in that light, i.e. that DWMRC expects concentrations to vary and that increasing contaminants will likely not be viewed as facility impacts. The AR ratio has been well-established as a reliable method for determining if uranium present in groundwater has an anthropogenic or natural signature, and DWMRC has agreed with past recommendations (USGS report review findings) that including it as a monitoring constituent for monitoring wells at the facility would be a good idea. 14. As suggested in DWMRC review memo (DWMRC, June 27, 2000) and recommended in the Geo-Logic Report as a standard industry practice, EFR should be required to calculate an annual water balance for water received, consumed and lost at the Mill, and report the balance with annual DMT reports to assist with evaluation and performance of the discharge minimization technology required under the GWDP. Currently, there is no accounting of water use and loss at the Mill. 15. The thorium isotopes, Th-230 and Th-232 should be assayed individually in the conventional compound effluent in the Annual Tailings Cells Wastewater Sampling Report. Using gross alpha as a surrogate does not allow quantification of these isotopes individually (or any other additional alpha emitter present in the tailing cell effluent “soup”) 15 References Applied Geochemistry, 2013. Miao, Ziheng. Akyol, Hakan N. McMillan, Andrew L. Brusseau, Mark L. Transport and fate of ammonium and its impact on uranium and other trace elements at a former uranium Mill tailing site. Applied Geochemistry, 2008. Hart, Megan. Whitworth, T.M. Atekwana, Eliot. Hyperfiltration of sodium chloride through kaolinite membrane under relatively low heads- Implications for groundwater assessment. ASTM International. January, 2017. D6312-17. Standard Guide for Developing Appropriate Statistical Approaches for Groundwater Detection Monitoring Programs at Waste Disposal Facilities. Brindha, K. and Elango, L. (2011) Fluoride in Groundwater: Causes, Implications and Mitigation Measures. In: Monroy, S.D. (Ed.), Fluoride Properties, Applications and Environmental Management, 111-136. https://www.novapublishers.com/catalog/product_info.php?products_id=15895 Edmunds, W.M. and Smedley, P.L., 2005. Fluoride in natural waters. In: Selinus, O. (Ed.), Essentials of Medical Geology. Elsevier Academic Press, London, pp. 301-329. Geo-Logic Associates, July 2017. Updated Data Review and Evaluation of Groundwater Monitoring. White Mesa Uranium Mill Blanding Utah. Gibbons, Robert D. February, 1999. Use of Combined Shewhart-CUSUM Control Charts for Groundwater Monitoring Applications. Handa, B.K. (1975) Geochemistry and genesis of fluoride containing ground waters in India. Groundwater, 25, 255- 264. Hydro Geo Chem, Inc. February 12, 2010. Letter to David Frydenlund. Re: Interpretive geologic cross-sections and additional supporting data requested in the URS round 2 Interrogatory Statement regarding the Groundwater Discharge Permit for proposed Tailings Cell 4B at the White Mesa Uranium Mill Site. Hydro Geo Chem, Inc. September 20, 2011. Redevelopment of Existing Perched Monitoring Wells White Mesa Uranium Mill Near Blanding, Utah. Hydro Geo Chem, Inc. December 7, 2012. Investigation of Pyrite in the Perched Zone. White Mesa Uranium Mill Near Blanding, Utah. Hydro Geo Chem, Inc. June 6, 2014. Hydrogeology of the White Mesa Uranium Mill. Blanding Utah. 16 Ref. above in the indicator parameter/chloride retardation discussion as it describes clay layers in the technical data which the state said had not been documented in their 2017 response letter on the subject to us Utah Division of Waste Management and Radiation Control, February 16, 2017. Re: Response to Ute Mountain Ute Tribe Letters Dated December 16, 2016 and January 20, 2017. DRC-2017- 001146. USGS 1995. Dam, William L. Geochemistry of Ground Water in the Gallup, Dakota, and Morrison Aquifers, San Juan Basin, New Mexico. U.S. Geological Survey. Water Resources Investigations Report. 94-4253. USGS 1992. Hem, John D. Study and Interpretation of the Chemical Characteristics of Natural Water Third Edition. U.S. Geological Survey Water Supply Paper 2254. U.S. EPA, 01/19/2017. Health and Environmental Protection Standards for Uranium Mill Tailings, Proposed Rule. 82 FR 7400. U.S. EPA, September 2014. Draft Technical Report Considerations Related to Post Closure Monitoring of Uranium In-Situ Recovery (ISL/ISR) Sites Background Information Document for the Revision of 40 CFR Part 192. EPA-402-D-14-001. U.S. EPA, August 1999. Understanding Variation in partition Coefficient, Kd, Values. Volume 1: The Kd Model, Methods of Measurement, and Application of Chemical Reaction Codes. EPA 402-R-99-004A. U.S. DOE. 2010, December 01. Technical Report: Remediation of Uranium in the Hanford Vadose Zone Using Ammonia Gas: FY 2010 Laboratory-Scale Experiments. Szecsody, James E. ;Truex, Michael J.; Zhong, Lirong.; Qafoku, Nikolla.; Williams, Mark D.; McKinley, Jame P.; Wang, Zheming.; Bargar, John.; Faurie, Danielle K.; Resch, Carles T.; Philips, Jerry L. U.S. DOE. 2014, September. Scale-up Information for Gas-Phase Ammonia Treatment of Uranium in the Vadose Zone at the Hanford Site Central Plateau. Truex, MJ.; Szecsody, JE.; Zhong, L/; Thomle, JN.; Johnson, TC. DWMRC. February 11, 1999. Letter from William Sinclair, Director Utah Division of Radiation Control to David Frydenlund, Vice President and General Counsel International (USA) Corporation. DWMRC. June 27, 2000. Memorandum from Loren Morton to Dane Finnerfrock. International Uranium Corporation White Mesa Uranium Tailings Facility: Engineering Design and As-Built Reports; Staff Findings, Conclusions and Recommendations. 17 DWMRC. February 16, 2017 letter from Scott Anderson, Director DWMRC to Scott Clow, Director, Ute Mountain Ute Environmental Programs Department, “RE: Response to Ute Mountain Ute Tribe Letters Dated December 16, 2016 and January 20, 2017”. URS. February 6, 2013. Technical Memorandum to John Hultquist, Utah Division of Radiation Control. Review of September 10, 2012 Energy Fuels Resources (USA) Inc. Responses to Round 1 Interrogatories on Revised Infiltration and Contaminant Transport Modeling Report, White Mesa Mill Site, Blanding, Utah, report dated March 2010. U.S. Environmental Protection Agency, August, 1989, “Requirements for Hazardous Waste Landfill Design, Construction and Closure”, Technology Transfer Seminar Publication, EPA/625/4-89/022 U.S. Environmental Protection Agency, 2009. Statistical Analysis of Groundwater Monitoring Data at RCRA Facilities, Unified Guidance Document. EPA/530/R-09/007. http://www.itrcweb.org/gsmc-1/Content/Resources/Unified_Guidance_2009.pdf University of Utah, May, 2008. Solomon, Kip D. Hurst, Grant, T. Summary of work completed, data results, interpretations and recommendations for the July 2007 Sampling Event At the Denison Mines, USA, White Mesa Uranium Mill Near Blanding.Department of Geology and Geophysics University of Utah Valenzuela-Vásquez, L., Ramírez-Hernández, J., Reyes-López, J. et al. Environmental Geology (2006) The origin of fluoride in groundwater supply to Hermosillo City, Sonora, México 51: 17. https://doi.org/10.1007/s00254-006-0300-7 Jurgens, B.C., McMahon, P.B., Chapelle, F.H., and Eberts, S.M., 2009, An Excel® workbook for identifying redox processes in ground water: U.S. Geological Survey Open-File Report 2009–1004 8 p. UPDATED DATA REVIEW AND EVALUATION OF GROUNDWATER MONITORING WHITE MESA URANIUM MILL BLANDING UTAH JULY 2017 PROJECT NO. AU17.1116 PREPARED FOR: Ute Mountain Ute Tribe P.O. Box 448 Towaoc, CO 81334 PREPARED BY: Geo-Logic Associates 1760 E. River Road, Suite 115 Tucson, AZ 85718 Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 i TABLE OF CONTENTS 1.0 INTRODUCTION .......................................................................................................... 1 2.0 FACILITY DESCRIPTION AND HISTORY ......................................................................... 1 3.0 DATA ANALYSIS .......................................................................................................... 8 3.1 Hydrogeologic Conditions ....................................................................................... 8 3.1.1 Climate ........................................................................................................ 8 3.1.2 Topography ................................................................................................. 9 3.1.3 Local Stratigraphy ....................................................................................... 9 3.1.4 Groundwater Occurrence ......................................................................... 10 3.1.5 Water Level Changes ................................................................................ 14 3.1.6 Hydraulic Properties ................................................................................. 22 3.1.7 Groundwater Travel Times ....................................................................... 28 3.2 Groundwater Chemistry ....................................................................................... 30 3.2.1 Major Ions and General Water Quality Parameters ................................. 42 3.3 pH .......................................................................................................................... 48 3.3.1 Site Measurements ................................................................................... 48 3.3.2 Pyrite Oxidation ........................................................................................ 53 3.4 Heavy Metals ........................................................................................................ 61 3.5 Organic Constituents ............................................................................................ 69 3.6 Isotope, CFC, and Noble Gas Studies .................................................................... 73 3.6.1 Isotope Studies.......................................................................................... 73 3.6.2 CFC Studies ................................................................................................ 78 3.6.3 Noble Gas Studies ..................................................................................... 79 4.0 SUMMARY AND CONCLUSIONS ................................................................................ 80 5.0 REFERENCES ............................................................................................................. 84 TABLES Table 1 Details of Tailings Cells and Other Facility Ponds Table 2 Visual Observations on Pond Status (% of Wetted Area/Total Area) Table 3 Deep Water Supply Wells Installed at Mill Site (Data From Titan, 1994) Table 4 Calculation of Average Wildlife Pond Seepage Table 5 Calculation of Seepage Rates for Wildlife Ponds Table 6 Calculation of Vertical Hydraulic Conductivity and Travel Times Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 ii Table 7 Analyses of Large Scale Hydraulic Conductivity and Storativity From Groundwater Mounding Table 8 Previously Predicted Contaminant Travel Times Through the Vadose Zone Table 9 Previously Predicted and Observed Rates of Contaminant Migration Table 10 Average Chemical Parameter Concentrations (2005 To 2016) in Permanent Monitoring Wells and Tailings Solutions Table 11 Frequency of Chemical Parameter Detection (2005 To 2014) in Permanent Monitoring Wells and Tailings Solutions Table 12 Summary of Neutralization Potential Tests (MWH, 2010) Table 13 Summary of the XRD Analyses (Data from HGC, 2012) Table 14 Apparent Groundwater Recharge Dates from CFC Measurements FIGURES Figure 1 White Mesa Mill Facility Layout Figure2 Phreatic Surface of the Perched Aquifer in December 2016 Figure 3 Saturated Thickness of the Perched Aquifer in December 2016 Figure 4 Hydrographs of Upgradient Monitoring Wells Figure 5 Hydrographs of Monitoring Wells for Tailings Cells 1 And 2 Figure 6 Hydrographs of Monitoring Wells for Tailings Cell 3 Figure 7 Hydrographs of Monitoring Wells for Tailings Cells 4A And 4B Figure 8 Previously Predicted Contaminant Travel Times Through The Vadose Zone Figure 9 Previously Predicted and Observed Rates of Contaminant Migration Figure 10 Distribution Of Log Hydraulic Conductivity Figure 11 Available Period of Record for Permanent Monitoring Wells Figure 12 Available Period of Record for Temporary Monitoring Wells Figure 13 Location of Monitor Wells Figure 14 Location of Chloroform Monitoring Wells Figure 15 Major Ions, TDS, and Nitrogen Concentrations in Tailings Solutions Figure 16 Average Concentrations of Heavy Metals in Tailings Solutions Figure 17 Comparison of Average Heavy Metals Concentrations Figure 18 Piper Diagram of Site Groundwater Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 iii Figure 19 Calcium and Sodium Concentrations in Groundwater Figure 20 Sulfate and Bicarbonate Concentrations in Groundwater Figure 21 Chloride and Nitrate Concentrations in Groundwater Figure 22 Observed Variation in Groundwater ph with Time Figure 23 Hydraulic Conductivity vs Observed Decline in pH Figure 24 pH in 2014 vs Change in Groundwater Elevation (1994 to 2014) Figure 25 Annual Rate of Change of pH vs Groundwater Level (2005 to 2014) Figure 26 Height of Exposed Well Screen vs Change in pH Figure 27 Heavy Metals in Monitoring Wells Figure 28 Variation of Cd, Co, Mn, Ni, and Zn Concentrations with pH Figure 29 Indicated Solubility Limits of Heavy Metal Concentrations for pH of 5 and 7 Figure 30 Comparison of Heavy Metals Concentrations in Tailings Solution with Groundwater Figure 31 Comparison of Heavy Metals Concentrations for Cell 2 LDS and MW-24 and MW-28 Figure 32 Comparison of Heavy Metals Concentrations for Cell 2 LDS and MW-24 and MW-28 Figure 33 Heavy Metals Concentrations in Groundwater Figure 34 Chloroform Concentrations Figure 35 Chloroform Concentrations Figure 36 Tritium Concentrations Figure 37 Oxygen-18 vs Deuterium Isotope Ratios Figure 38 Distributions of Deuterium and Oxygen-18 Isotope Ratios Figure 39 Sulfur 34 vs Oxygen 18 Ratios Figure 40 Noble Gases in Wildlife Ponds and Groundwater as Ratio of Average Concentration Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 1 1.0 INTRODUCTION Geo-Logic Associates was contracted by the Ute Mountain Ute Tribe to conduct a review and evaluation of available data and reports related to groundwater monitoring at the White Mesa Uranium Mill near Blanding, Utah. The objective of this review was to provide an independent assessment of current groundwater conditions and evaluate potential groundwater impacts from the facility. This report presents an update of our previous report (GLA, 2014) including addition of recent monitoring data and additional analysis of existing data. There have been a considerable number of studies conducted at the mill site, with the scope and extent of such studies significantly increasing following the discovery of nitrate and regulated organic constituents in the groundwater during a complete groundwater sampling round in May 1999. Corrective actions consisting of groundwater pumping have been implemented at the site following this discovery. 2.0 FACILITY DESCRIPTION AND HISTORY Information on facility operations comes from previous reports and DRC documents (Titan, 1994; Intera, 2009; MWH, 2010; USGS, 2011; and DRC, 2004). The White Mesa mill began operations in 1980. The facility was licensed and regulated by the Nuclear Regulatory Commission (NRC) until August 2004 when the Utah Department of Radiation Control (DRC) assumed regulatory authority for the mill. The Utah DRC is now the Utah Division of Waste Management and Radiation Control (DWMRC) under the Utah Department of Environmental Quality (DEQ). The White Mesa Uranium Mill processes natural uranium ores and alternate feeds. The mill uses sulfuric acid leaching and a solvent extraction recovery process to extract and recover uranium and vanadium from the ore material. As of 2011, the mill was licensed to process an average of 2,000 tons of ore per day. The produced tailings and process water are disposed in lined tailing cells at the facility. The Radiation Material License (RML) for the White Mesa Mill is currently undergoing review for renewal. As part of this renewal process, the RML will be amended to allow the receipt of alternative feed from Sequoyah Fuel, Oklahoma. Information on the tailings cells along with other ponds associated with the processing facilities is summarized in Table 1 and their locations (as well as neighboring stock watering ponds) are shown in Figure 1. All of the tailings cells were excavated into the Dakota Sandstone and the edges are bermed with compacted material. Perched groundwater is found at approximately 40 to 90 feet below the base of the tailings cells. Tailings Cells 1, 2, and 3 are single liner (30 mil PVC) facilities constructed in the early 1980s with a leak detection system (LDS) composed of a collection pipe placed along the down gradient (south) side of the cell, with the bottom of the cell sloped towards the south. This type of LDS can only detect larger leaks from the cells as they require saturation of the bedding material surrounding the collection pipe in order to observe water flow into the LDS. Tailings Cells 4A and 4B have a dual liner (60 mil HDPE) constructed in 1989 and 1990 (Tailings Cell 4B was relined in 2007-2008) and thus are able to detect and collect significantly smaller leakage through the primary liner. Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 2 Although a comprehensive review of recorded leakage from the liners is beyond the scope of this study, it is noted that leaks have been observed in most of the cells and liners listed in Table 1. Tailings Cell 1 had a reported leak in June of 2010, which prompted significant repairs of the liner between September 2009 and June 2012. Tailings Cell 3 has had indicated leakage (water collected from leak detection system) in 1991, 2009, and 2010. Tailings Cell 4A has indicated leakage through the primary liner (water collected from leak detection system) every year from 2009 to 2014. The cell was relined in 2007-2008 due to damage to the liner from sun exposure. Similar indicated leakage has been observed for Tailings Cell 4B in 2011, 2012, and 2014. While it is noted that leakage from Tailings Cells 4A and 4B is collected by the secondary liner and is within regulated limits, the presence of leakage from the primary liner of these newer facilities indicates that leakage is almost certainly occurring from the older tailings cells (1, 2, and 3). It is noted that additional information on reported cell leakage since 2014 was not reviewed as part of this updated report. Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 3 TABLE 1 - DETAILS OF TAILINGS CELLS AND OTHER FACILITY PONDS CELL OR POND CONTENTS LINER POND AREA (ACRES) PERIOD OF OPERATION Tailings Cell 1 Process solution (evaporation pond) 15 cm clean sand slimes drain, protective blanket, 30 mil PVC liner, 15 cm compacted bedding, currently active 50.8 Jun-81 Tailings Cell 2 Barren tailings sands (originally received all tailings) 15 cm clean sand slimes drain, protective blanket, 30 mil PVC liner, 15 cm compacted bedding, disposal ceased prior to 2004, currently covered with clean soil awaiting final closure 65.7 May-80 Tailings Cell 3 Barren tailings sands and solutions 15 cm clean sand slimes drain, protective blanket, 30 mil PVC liner, 15 cm compacted bedding, limited disposal as nearing capacity, 17 acres covered with clean soil 66.6 Sep-82 Tailings Cell 4A Barren tailings sands and solutions Slimes drain, 60 mil HDPE geomembrane liner, geonet drainage layer, 60 mil HDPE geomembrane liner, geosynthetic lay liner, prepared subgrade, currently active 41.6 Nov-89 relined in 2007-2008 Tailings Cell 4B Barren tailings sands and solutions (until Sept 2008 used only for process solution storage) Slimes drain, 60 mil HDPE geomembrane liner, geonet drainage layer, 60 mil HDPE geomembrane liner, geosynthetic lay liner, prepared subgrade, currently active 37.3 1990 Roberts Pond Emergency catchment basin for process flow spills or tank failures Hypalon liner removed in 2002 and replaced with 60 mil HDPE liner. Drained in 2014 and finally closed in 2015. 0.67 1980 to 2014 Fly ash pond Disposal of some fly ash from mill boiler, received runoff from mill site Unlined pond originally intended for construction water, excavated and backfilled in 1989 0.56 1980 to 1989 Lawzy Lake Temporary storage of municipal sewage reclaim water Unlined pond used for temporary storage and transfer of reclaimed sewage water from Frog Pond 0.08 mid-1980s to 1991 Wildlife ponds Fresh water ponds for use of wildlife Total of 4 ponds: 2 near northeast corner of mill site; 2 to east of Cell 4A south of mill site 7.0 combined 1980s (see text) to 2012 Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 4 FIGURE 1 - WHITE MESA MILL FACILITY LAYOUT Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 5 The changes in operating status of the tailings cells and ponds based on observations from aerial and satellite photos are summarized in Table 2. It is noted that these are only snapshots in time and may not represent the actual pond status during periods between when the photos were taken. The wetted area refers to the total area of exposed fluids in each facility. Although Tailings Cells 2 and 3 currently show little or no exposed fluids, recent measurements (MWH, 2015) indicate that residual tailings solution is still present within the cells with a phreatic surface at depths of 3.9 to 11.5 ft below the tailings surface in Cell 2 and depths of 3.5 to 8.7 ft below the tailings surface in Cell 3. TABLE 2 - VISUAL OBSERVATIONS ON POND STATUS (% OF WETTED AREA/TOTAL AREA) PHOTO DATE PHOTO SOURCE PH O T O RE S O L U T I O N TA I L I N G S C E L L 1 TA I L I N G S C E L L 2 TA I L I N G S C E L L 3 TA I L I N G S C E L L 4 A TA I L I N G S C E L L 4 B RO B E R T S P O N D FL Y A S H P O N D SO U T H L O W E R WI L D L I F E P O N D SO U T H U P P E R WI L D L I F E P O N D NO R T H L O W E R WI L D L I F E P O N D NO R T H U P P E R WI L D L I F E P O N D Average 97% 0% 15% 43% 100% 56% Cl o s e d 35% 25% 37% 53% 07/02/97 USGS Low 100% 0% 30% 16% N.B. 100% 57% 35% 63% 51% 04/17/04 Digital Globe High 100% 0% 13% 0% N.B. 71% 57% 38% 79% 95% 09/14/04 USDA Low 71% 0% 34% 0% N.B. N.C. 39% 67% 74% 81% 09/24/06 USDA Mod 100% 0% 30% 0% N.B. 41% 45% 26% 65% 91% 08/27/09 USDA Mod 100% 0% 9% 83% N.B. 45% 38% 24% 52% 68% 08/08/10 Digital Globe High 100% 0% 12% 81% U.C. C.C. 26% 0% 0% 66% 10/02/11 USDA Mod 100% 0% 1% 72% 100% 67% 45% 16% 0% 21% 06/25/13 Google Earth Highest 100% 0% 1% 68% 100% 14% 6% 21% 0% 0% 04/05/15 Google Earth Highest 100% 0% 2% 63% 100% U.C. 0% 0% 0% 0% Notes: N.B. = Not built, U.C. = under construction, N.C. = not clear due to photo resolution, C.C. = cloud cover obscures pond, U.C. = under closure. Roberts Pond (a.k.a. Mill Area Retention Basin) is a lined basin which has received process fluids, periodic mill floor drainage, and other wastewaters and runoff from the mill. Although earlier documents suggest that the pond only received occasional or emergency flows, subsequent documents suggest that it was operated as a waste water pond with weekly monitoring of pond levels in much the same manner as performed for the tailings cells (Energy Fuel Resources, 2014a). All available aerial photos for the period 1997 to 2015 show the pond to be at least partially filled (average 56% wetted/total area). In 2002 the original liner was removed and replaced (Roberts, 2004). Both the liner and some underlying soil which exhibited elevated uranium (no other indicators of contamination were used) were excavated and Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 6 disposed into one of the tailings cells indicating leakage from the pond prior to 2002. The liner was reported to be damaged during removal of sediments in July 2012 and repaired and returned to service in August 2012 (Energy Fuels Resources, 2015). Liner damage was again noted in March 2014 and believed to be related to the prior maintenance operations in 2012. Attempts to repair the damage after drainage of the pond resulted in further damage to the liner resulting in the need to remove the liner and excavate and dispose of residual sediments and soils below the liner into one of the tailings cells. Uranium and radium-226 were used as indicators of contaminated soil during the excavation which was performed sometime between June 2014 and March 2015. No testing was done for other heavy metals which are present in the Tailings Cell solutions at equal or higher concentrations than uranium. Following the excavation, a closure plan and subsequent modification was submitted and approved by DRC in late 2015. The closure involved regrading of the site so that a drainage swale (apparently unlined) was created within the former footprint of Roberts Pond. Water collected in the swale drains by gravity via a buried 24 in. drainage pipe to Tailings Cell 1. The pipe inlet is at an elevation of 5624 ft amsl (above the Cell 1 berm height) and the outlet elevation is at 5614 ft amsl, which is slightly below the maximum permitted waste water elevation of 5615.5 ft amsl. It is noted that the transfer pipe perforates the Cell 1 liner below the maximum permitted water elevation which provides a potential point of leakage. The unlined collection area replaces a lined collection pond which could result in subsurface seepage. The fly ash pond was originally an unlined pond which collected surface runoff and was used during site construction (Intera, 2009). The pond was subsequently used for disposal of fly ash during “upset situations” (fly ash normally disposed of in Tailings Cell 2) from a coal fired steam boiler which operated from 1980 to 1989. It may also have occasionally received process spills and surface runoff until it was filled and re-contoured in 2007. The pond was emptied in 1989 and the residual ash was disposed in Tailings Cell 2. The cell was backfilled with random fill. Sampling data from 1991 (Titan 1994) indicated the presence of heavy metals as well as nitrate in water held in this pond. There is considerable discrepancy in the operational history of the wildlife ponds. Energy Fuels Resources (2014b) reported that in the early 1980s the two north wildlife ponds were constructed. Older reports indicate that these were only small (70 ft diameter) stock watering ponds initially (International Uranium Corp, 2000; Denison Mines, 2007) and were normally dry. Intera (2007) indicates that the upper north wildlife pond was an old stock watering pond but that the lower north wildlife pond was constructed in 1979. The south wildlife ponds were constructed in 1995 (Energy Fuels Resources, 2014b) or 1994 (International Uranium Corp, 2000, Intera, 2007). Another recent report (Hurst and Solomon, 2008) indicates that the wildlife ponds were constructed in the mid-1990s. The wildlife ponds are reported to have received fresh water from Recapture Reservoir although this water was not available until 1992. In addition, reclaimed water from a nearby municipal sewage treatment pond was reportedly used as make-up water in the mill processing from the mid-1980s until 1991. Some of this water was pumped to the upper north wildlife pond for storage prior to being pumped to the mill’s pre-leach tanks. Discharge to the north wildlife ponds ceased in March 2012 (HGC, Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 7 2014a). Discharge to the south wildlife ponds apparently ceased shortly thereafter based on aerial photo observations and a sudden observed decline in water level in the neighboring piezometers (Piezos 4 and 5) at the start of 2013. Lawzy Lake, which is dry in all aerial photos since 1997, was also reported to be used as a temporary storage location for the reclaimed make-up water (Intera, 2009). Water from Lawzy Lake was pumped to the Lawzy Sump and then to the mill’s pre-leach tank which was used for water storage. Several small stock watering ponds exist at the site as noted in Figure 1. These ponds capture surface water runoff and based on examination of aerial photos since 1997 are either dry or contain very small amounts of collected water. This normally dry condition has also been reported by others (International Uranium Corp, 2000) and is consistent with the arid conditions and relatively flat topography of the site. There is no available water balance information for the facility although indicated average water use for the facility was about 650 gpm (Intera, 2009). The absence of a water balance is extremely unusual, as in our experience, any similar mine processing would have a water balance for assessing water consumption and losses and managing process flows. The facility is permitted as a zero discharge facility so that excess water in the tailings is disposed by evaporation. A limited amount of solution is recycled for secondary extraction, although the water is not recycled through the main mill processing circuit due to the low pH (USGS, 2011). A quick calculation of expected water loss solely from tailings deposition via evaporation in the tailings cells and retained tailings pore water indicates water consumption of 254 to 380 gpm (average of 317 gpm) from 1997 to 2015. This calculation is based on assumed continuous ore processing of 2,000 tons/d and a tailings porosity of 48%. The difference of 270 gpm could be attributable to other consumptive uses at the facility, discharge to the wildlife ponds, and seepage from other mill facilities. A total of five deep wells (completed in the Entrada and Navajo sandstones) were installed at the site at the time of facility construction as listed in Table 3 (Titan, 1994). Locations of four of the five deep wells are shown in Figure 1 (WW5 is located to the east of WW4 outside of the figure boundaries). Tested yield of the wells (at the time of installation) averaged about 200 gpm per well. These wells were used for water supply for the mill until about 1992 (Intera, 2009) when water from Recapture Reservoir was made available via a pipeline. Prior to 1992, additional makeup water (25 to 200 gpm) was obtained from effluent from the municipal sewage treatment facility (i.e. Frog Pond) which reportedly contained higher concentrations of nitrates and chloride. The Frog Pond water was stored in the upper northeastern wildlife ponds, as well as a smaller pond (Lawzy Pond) north of the mill site, as discussed previously. Details of the completion of the five deep wells are limited to the driller’s logs (Titan, 1994) and generally lack detail. These logs indicate that the wells were completed with a cement surface seal to depths of 18 to 125 ft bgs, with the exception of WW3 which reportedly was cemented Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 8 to a depth of 1250 ft bgs. With the exception of WW1, casing was installed to depths of 1250 ft bgs in all holes, with the remainder of the hole drilled and left uncased. In WW3 the annular space behind the casing was cemented to 1250 ft, in WW2, the annular space behind the casing was backfilled with gravel. In the other holes, no annular backfill was specified (presumably no backfill or cement placed). In WW1 10-inch casing was installed to 1040 ft, and 6-inch casing was installed between 300 and 1700 ft with the bottom section perforated, although the entire diameter of the drilled hole was indicated as constant to final depth. TABLE 3 - DEEP WATER SUPPLY WELLS INSTALLED AT MILL SITE (DATA FROM TITAN, 1994) WELL ID UTM COORDINATES (WGS84) DEPTH DRILLED (ft) GROUNDWATER ELEVATION (ft amsl) TESTED YIELD (gpm) East (m) West (m) WW1 632309 4155552 1870 5175 223 WW2 632370 4155796 1885 5180 Not tested WW3 632127 4155583 1850 5172 245 WW4 633222 4157070 1820 5170 238 WW5 633651 4156997 1800 N.A. 120 3.0 DATA ANALYSIS 3.1 Hydrogeologic Conditions The following section describes and evaluates hydrogeologic conditions at the site in order to understand groundwater occurrence, lateral and vertical movement, and recharge and discharge at the site. 3.1.1 Climate The site climate is arid with an average annual precipitation of 13.3 in/yr and annual pan evaporation of 68 in/yr. Based on reported conditions for nearby Blanding, Utah, maximum/minimum monthly temperatures range from a high of 89/58 ˚F in July to a low of 39/17 ˚F in January. Average monthly precipitation ranges from a low of 0.45 inches in June to a maximum of 1.45 inches in October. Monthly precipitation generally declines from January to June and then increases through October, remaining higher through the winter months. Precipitation increases with elevation so that most recharge to the regional aquifers in the area occurs in neighboring mountains areas or ridges. Based on the site climate, under natural (pre- mill) conditions groundwater recharge from infiltration is expected to be low with most recharge occurring during short periods of heavier rainfall or snowmelt. MWH (2010) indicated predicted infiltration rates of 1.3 in/yr based on simple rock covers over the tailings (versus monolithic evapotranspiration covers), although natural site conditions were not modeled. Nonetheless, groundwater recharge from infiltration is expected to be significant in the White Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 9 Mesa (USGS, 2011). Based on an annual infiltration rate of 1.3 in/yr and a mill site area of approximately 5 mi2, the total infiltration rate over this area would be about 30 gpm. 3.1.2 Topography The mill site is located on White Mesa and ranges in elevation from about 5,500 to 5,650 ft amsl, with elevation generally decreasing gradually to the south. The mesa is bounded by Westwater Canyon to the west and Corral Canyon to the east with an east-west extension of the top of the mesa of approximately 8,000 ft upstream of the mill, 9,000 ft in the vicinity of the mill, and 14,000 ft downgradient of the mill. The flat topography minimizes runoff and enhances potential infiltration of precipitation. The topography also determines the east and west limits of the perched aquifer as described below. The total surface area of White Mesa as measured from north (location of MW-1) to south (location of MW-22) is approximately 5 mi2. 3.1.3 Local Stratigraphy The stratigraphy at the site has been described in several previous reports (UMETCO, 1993; Titan Environmental, 1994; HGC, 2009; USGS, 2011; HGC, 2014a) and the following lithological descriptions represent a combination of those descriptions. The major stratigraphic units present at the site are (from youngest to oldest): Quaternary Deposits: These consist primarily of unconsolidated pale reddish brown aeolian sands and silts that cover the mesa surface to a depth of between a few feet to a few tens of feet. The grains consist of angular to well-rounded quartz grains that range from 0.02 to 0.20 mm in diameter. These eolian sands are expected to have relatively high hydraulic conductivity which would enhance infiltration of precipitation (USGS, 2011). Mancos Shale: The Mancos Shale consists primarily of uniform, dark-gray mudstone, shale, and siltstone which were deposited in a shallow shelf marine environment. It is present as only minor erosional remnants of its original thickness in the study area. The Mancos Shale is commonly highly fractured within the near-surface weathered zone. These fractures are commonly filled with easily dissolvable gypsum filling (White et al, 2008). Recent studies (HGC, 2014) have mapped the thickness of the Mancos Shale over the mill site area from borehole logs, indicating it ranges from zero to over 30 feet. The greatest thicknesses were mapped directly below the mill site as well to the east of the tailings cells. The Mancos Shale remnants extend below the eastern portions of Tailings Cells 2, 3 and 4a, with thicknesses of up to 30 feet reported at the eastern edge of Cell 3. However, it is reported that all of the tailings cells were excavated into the underlying Dakota Sandstone (Titan, 1994), which is likely given that the Mancos Shale is a weak deposit that contains expansive clays which would provide a very poor foundation material. The Mancos Shale is also present north of the site in the western portion of White Mesa. A ridge of Mancos Shale measuring up to over 10 feet in thickness is also present along the western boundary of Cell 4B, extending due southward, corresponding to a high in the bedrock surface below the site. Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 10 Dakota Sandstone (late Cretaceous): The Dakota Sandstone consists of a pale grayish-orange to yellowish brown, massive, intricately cross-bedded, friable sandstone. Scattered irregularly through the Dakota Sandstone are discontinuous lenses of conglomerate and dark-gray claystone and siltstone seams, and lenticular carbonaceous seams. The sandstone consists chiefly of poorly sorted quartz grains that are moderately (upper part of formation) to well cemented by silica, calcite, and kaolinite clays. The grains are of two sizes; most common are angular grains about 0.06 mm in diameter that surround large numbers of well-rounded quartz grains about 0.40 mm in diameter. This lithological unit is continuous across the White Mesa site with an average reported thickness of about 60 ft. Burro Canyon Formation (early Cretaceous): The Burro Canyon Formation is similar to the Dakota Sandstone. It consists of alternating beds of light to dark greenish-gray, gray, and light brown sandstone and conglomeratic sandstone formed from alluvial and floodplain deposits. The Burro Canyon is cemented by silica and kaolinite, with the former predominant. It contains widely traceable conglomerate layers interpreted as braided channel deposits, and discontinuous lenses of light greenish-gray shale and siltstone layers. The shape of the sand grains range from angular to well rounded, and they have diameters ranging from 0.02 to 0.5 mm, with most being about 0.1 mm in diameter. This lithological unit is continuous across the White Mesa site with an average reported thickness of about 75 ft. Morrison Formation - Brushy Basin Member (late Jurassic): The contact between the Burro Canyon and the underlying Brushy Basin is considered to be disconformable as evidenced by local erosional relief of several feet and logs of site borings. The Brushy Basin Member of the Morrison Formation is composed of thinly laminated to medium bedded variegated claystone and siltstone that were deposited in a combination of lacustrine and marginal lacustrine environments, interbedded with thick lenses of gray sandstone. These beds are described as a moderate greenish yellow, streaked irregularly by pale red, light red, and light brownish gray. In general, the claystone matrix consists of minute (0.01 mm and smaller) angular grains of quartz cemented by calcite and silica. Angular to subrounded quartz grains that range from 0.05 to about 0.21 mm in diameter, with most being about 0.1 mm, are scattered irregularly through the matrix. Much bentonitic clay of volcanic origin is also present. This lithological unit is continuous across the White Mesa site with a total thickness of approximately 300 feet. Additional sedimentary formations below the above sequence include the Westwater Canyon, Recapture, and Salt Water members of the Morrison Formation, the Summerville Formation, the Entrada Sandstone, and the Navajo Sandstone. 3.1.4 Groundwater Occurrence Perched groundwater is found below the mill site above the contact with the Brushy Basin Member within the Burro Canyon (and locally the Dakota Sandstone) at saturated thicknesses ranging up to 85 ft and averaging about 34 ft. Recharge to groundwater occurs from up gradient flow from the north of the site as well as infiltration from precipitation, water in Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 11 unlined ponds, and releases from the mill facility. Although groundwater also exists within confined aquifers at deeper depths below the site, these are hydraulically isolated from the perched groundwater aquifers by the Brushy Basin Member which acts as an aquitard and are not considered in this study. However, perched groundwater at the site does seep vertically downward through the underlying aquitard. The perched groundwater also discharges to several springs located along the contact between the Burro Canyon and the Brushy Basin including Entrance Spring east of the mill site, Westwater (a.k.a. Mill) Spring west of the mill site, and Ruin and Corral Springs south of the mill site. Figure 2 shows the phreatic surface of the perched aquifer based on groundwater elevations in December 2016. The groundwater springs located at the base of the perched aquifer were also used as indicated groundwater elevations with the exception of Cottonwood Spring which issues from the Brushy Basin formation. This figure indicates that groundwater generally flows from north to south below White Mesa. However, infiltration from the Wildlife Ponds (as well as one other location as discussed later) has created groundwater mounding below these areas which locally distorts the natural (pre-mill) direction of groundwater flow, although this effect is gradually diminishing following closure of the ponds. Groundwater discharge to Westwater and Entrance springs is also indicated by the phreatic surface. Using the measured groundwater levels shown in Figure 2 and the reported depth of the base of the perched aquifer (top of Brushy Basin) from boring logs, the saturated thickness of the perched aquifer in December 2016 was determined as shown in Figure 3. The saturated thickness ranges from 0 to 82 ft. The greatest saturated thickness is generally found in the northern portion of the site due to higher groundwater levels and the effects of groundwater mounding in this area. However, significant saturated thicknesses are found in the southeastern portion of the site, although only a few wells are located in this area. Saturated thickness is less (7 to 20 ft) in the chloroform plume area (east of Tailings Cells 2 and 3) probably due to groundwater pumping in this area. The southwestern portion of the site has a very limited saturated thickness with an area extending to the southwest of Tailings Cell 4B that has only 0 to 5 ft of saturated thickness. Saturated thickness is expected to influence the transmissivity of the aquifer and contaminant migration due to the presence of higher conductivity layers and channels within the Burro Canyon aquifer. As saturated thickness increases, there is a higher probability of these layers and channels being saturated. Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 12 FIGURE2 - PHREATIC SURFACE OF THE PERCHED AQUIFER IN DECEMBER 2016 Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 13 FIGURE 3 - SATURATED THICKNESS OF THE PERCHED AQUIFER IN DECEMBER 2016 Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 14 3.1.5 Water Level Changes Water levels changes were examined to evaluate the impacts of seepage from the wildlife ponds and other sources at the mill site as well as groundwater pumping in the chloroform plume area. Figures 4 through 8 show hydrographs (water level elevations versus time) as measured in the MW-series monitoring wells at the site. The upgradient wells (Figure 4) indicate the impact of seepage from the wildlife ponds. MW-19, the closest monitoring well (located about 1,300 ft northwest from the lower north wildlife pond center), shows a water level increase of about 35 ft from 1993 to 2007. MW-18 (located about 2,350 ft northwest) shows a water level increase of about 22 ft from 1993 to 2010, while MW-1 (located about 3,330 ft to the northwest) shows a water level increase of about 12 ft from 1997 to 2013. Water levels are currently declining in these wells as discharge to the ponds ceased in 2012. Although MW-27 (located about 2,200 ft to the west) was not installed before the pond seepage began, the water level begins to decline in 2012. Given that the water level increases have occurred over a period of 14 to 17 years, it can be expected that they will require a similar or greater amount of time to fully dissipate. FIGURE 4 - HYDROGRAPHS OF UPGRADIENT MONITORING WELLS Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 15 The large increases in water level observed in the upgradient wells would suggest that the water chemistry of the background wells is significantly influenced by the chemistry of the water discharged to the ponds. As the northern ponds went into operation in the early 1980s, the presence of groundwater mounding would indicate that a significant release from other site facilities can reach the groundwater surface in 10 years or less. Water levels in MW-1 were stable prior to 1997, with observed fluctuations during this period likely the result of measurement error or performance of measurements after well development (prior to full water level recovery). Apart from MW-2, the wells down gradient and lateral of Tailings Cells 1 and 2 (Figure 5) also show an apparent response to seepage from the wildlife ponds. MW-4 (located about 2,020 ft southwest of the lower north pond center) shows a water level increase of about 31 ft from 1993 to 2003. In 2003 MW-4 was put into service as a pumping well. Although the water level in MW-4 has fluctuated as a result of pumping, the water level has not dropped below its pre- 1980 water level. Pumping of MW-4 has also not had any apparent impact on the water levels in any of the other wells. MW-26 was also operated as a pumping well within a year of its installation and exhibits similar water level fluctuations to that of MW-4. The pumping of both wells has not had any apparent impact on the water levels of the other Tailings Cells 1 and 2 monitoring wells, except for a much muted response in MW-32. MW-32 is located about 700 ft from MW-4 and about 900 ft from MW-26. The lack of response indicates that drawdown associated with pumping of wells MW-26 and MW-4 is localized. Except MW-2, all of the non- pumped monitoring wells have a shown a gradual increase in water level over time. The observed rate of increase in water level generally increases from west to east (i.e. with closer proximity to the wildlife ponds). MW-4 has exhibited a gradual but continuous increase in water level since at least 1984. This increase indicates seepage from one of the neighboring site facilities (sewage drains at the mill, fly ash pond, Roberts Pond, or tailing cells). Wells MW-24 and MW-28, both located on the south side of Tailings Cell 1, continue to show an increase in water levels over the last few years although the surrounding neighboring wells MW-2, MW-27, MW-29, and MW-30 are all showing decreases or stabilization of water levels suggesting that some leakage from Tailings Cell 1 is occurring in this area. Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 16 FIGURE 5 - HYDROGRAPHS OF MONITORING WELLS FOR TAILINGS CELLS 1 AND 2 With the exception of MW-23, monitoring wells downgradient of Tailings Cell 3 (Figure 6) exhibit increasing water levels over time. As seen for MW-4, MW-11 has also exhibited a slightly increasing water level since its installation in 1982 with the water level rising a couple of feet by 1993. This again indicates seepage from a neighboring facility. The water levels in MW-11 and MW-12 fluctuate prior to 1993. This fluctuation is attibuted to the use of different reference elevations for the water levels calculated from depth to water in different data sources. The water level in MW-11 begins to increase at a more rapid rate starting in 1993, presumably as a result of seepage from the wildlife ponds as observed in the previous hydrographs (Figures 4 and 5). Since 1993 the water level in MW-11 has increased about 16 ft and continues to increase. The water level rise in the other monitoring wells is similar to that observed for the Tailings Cells 1 and 2 monitoring wells, with the magnitude and rate of rise increasing towards the east, indicating influence from the wildlife pond seepage. Only MW-23, on the western side exhibits a stable water level, although the water level fluctuates. This fluctuation is probably attributable to the low hydraulic conductivity of this well and perhaps the inclusion of some water level measurements performed after well development and sampling. Well MW-25, the eastern most monitoring well, shows the highest water level and a rapid decline in water level since 2013, indicating that it is also influenced by seepage from the wildlife ponds. Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 17 FIGURE 6 - HYDROGRAPHS OF MONITORING WELLS FOR TAILINGS CELL 3 Water levels in MW-14 and MW-15 (Figure 7) have exhibited a gradual and steady increase with time since their installation in 1989, with a total increase of a few feet. This increase corresponds with that observed in the older upgradient wells MW-11 and MW-4 and again shows leakage from a neighboring facility. More importantly MW-14 and MW-15 are not influenced by the wildlife pond seepage and thus show that whatever the other seepage source is, it continues to exist. The water level in MW-14 fluctuates prior to 1993 in the same manner as observed for wells MW-11 and MW-12. This fluctuation is attibuted to the use of different reference elevations for the water levels calculated from depth to water in different data sources. Well MW-17 located to the southeast of Cell 4A shows a sharp rate of water level increase starting in 2000 with a total increase of about 16 ft by the end of 2014. This again indicates a response to seepage from the wildlife ponds. Given that the response was delayed by about 7 years from the upstream wells, it is anticipated that this rise will continue through 2019 or 2020. The wells on the western and southern sides of tailing cell 4B (MW-35, 36, and 37) indicate a stable water elevation similar to that observed in upgradient wells MW-23 and MW-2. MW-37 Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 18 exhibited lower water levels in 2011 and 2012 but has been stable since then. This is likely attributable to the inclusion of water level measurements after well purging and sampling. FIGURE 7 - HYDROGRAPHS OF MONITORING WELLS FOR TAILINGS CELLS 4A AND 4B Figure 8 shows that water levels in downgradient well MW-3 and MW-3A have remained relatively stable over time, but have begun to gradually increase since 2012. This increase appears to be associated with the seepage from the wildlife ponds although the response is about 15 years later than observed in the most upgradient wells. However, water levels in MW- 22 have increased about 7 ft since the well was installed in 1994. This timing coincides with the observance of seepage from the wildlife ponds and indicates that there is a high hydraulic conductivity connection between MW-22 and the upstream areas that exhibit a similar rapid response. MW-22 responded more quickly than the nearest upgradient well MW-17 suggesting a higher hydraulic conductivity conduit between this well and the upgradient areas. MW-20 exhibited a stable water level from 2000 to 2008, but since then has exhibited a declining and often erratic water level. The base of the Burro Canyon is at an elevation of 5,448 ft amsl in this well so the saturated thickness at this location is minimal. Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 19 FIGURE 8 - HYDROGRAPHS OF DOWNGRADIENT MONITORING WELLS Figure 9 presents the calculated change in water level from August 1994 to March 2014. This point in time was selected as it is generally before or just at the start of the appearance of the effects of seepage from the wildlife ponds. It also includes four recently installed wells (MW-18, 19, 20, and 22). As only 14 monitoring wells were available for water level measurements in August 1994, some additional water levels in downgradient areas with no expected water level change (based on the hydrographs previously presented), as well as the most upgradient point, were included to produce Figure 9. Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 20 FIGURE 9 - CHANGE IN PHREATIC SURFACE (AUGUST 1994 TO MARCH 2014) Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 21 Figure 9 shows the extent of groundwater mounding that has been created by discharge to the wildlife ponds and other sources between August 1994 and March 2014. Two of the points of highest groundwater level change are observed in the area of the lower north wildlife pond and the south wildlife ponds. However, there is also indication of another center of mounding near the northwest corner of the mill (vicinity of Roberts Pond and Lawzy Sump) that is also associated with a source of high nitrate and chloride. This has been previously attributed to a stock watering pond that existed in this area from the 1920s until the mill construction around 1980, and has been considered the source of the nitrate and chloride plume (HGC, 2014a). However, the groundwater mounding in this area has occurred since August 1994, or long after the old stock watering pond was removed. Therefore the current mounding cannot be associated with this old pond. This mounding is also indicated by the fact that the highest recorded water level in TWN-2, which is the center point of this mounding, is 7 to 25 feet higher than that recorded in any of the surrounding wells (TWN-1, TWN-3, TWN-4, and MW-27). Infiltration of water from the wildlife ponds or other facilities is expected to flow vertically downward so that the highest point of groundwater mounding is observed almost directly below the infiltration source. The vertical geological cross-sections prepared by HGC (2014a) based on available boring logs indicate that no laterally continuous low permeability strata are present that would intercept and potentially shift the downward vertical direction of this seepage. As further evidence of that the old stock watering pond is not a source of the chloride and nitrate plume, it is noted that several other stock watering ponds currently exist at the site. These ponds are normally observed to be dry in aerial photos as well as in past environmental studies due to limited precipitation and runoff at the site (Dames and Moore, 1978). Furthermore, the ponds have not been identified as sources of nitrate or chloride and there is no evidence of mounding associated with any of these ponds based on water level monitoring since 1979. The volume of water that has infiltrated from the wildlife ponds or other sources was calculated from the observed change in the groundwater level (as presented in Figure 9) by considering the increase in the groundwater volume in storage within the aquifer since August 1994, while recognizing that additional seepage sources may be contributing to the total seepage during this time period. These calculations are shown in Table 4. The porosity of the aquifer used in this calculation is based on site measurements as discussed later in Section 3.1.6 of this report. Water has been removed from the system since 2010 from pumping of remedial wells. Based on the nitrate groundwater monitoring report for the fourth quarter of 2013 (Energy Fuels Resources, 2014c), the combined pumping from these wells from the third quarter of 2010 through the fourth quarter of 2013 (total of 1280 days) has totaled 8.62 million gallons (1.15 million ft3) with generally similar total amounts reported for every quarter. This is equivalent to an average pumping rate of 4.7 gpm. We note that the indicated average pumping rate from all wells from Table 3 of the same report is much higher (about 118.6 gpm), presumably due to the fact that the wells do not pump continuously. Over the period used for the comparison of groundwater elevations (August 24, 1994 to March 27, 2014 or 1367 days) it is estimated that Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 22 the total water removed by pumping from the nitrate wells was 1.23 million ft3. This calculation shows that the total volume pumped from the remedial wells is less 1% of the total observed change in aquifer storage. Thus the total recharge from the wildlife ponds and the additional source is calculated to be about 150 gpm over a period of 17.6 years. The total aquifer storage change accounts for about 32% of the total water in the aquifer within the contoured area of Figure 9, suggesting this infiltrated water has had a significant influence on the current aquifer water chemistry. The calculated seepage rate of 150 gpm, corresponds with total facility usage of 650 gpm less 254 to 380 gpm of water consumption in the tailings per Section 2 of this report, and is considered a conservative estimate. TABLE 4 - CALCULATION OF AVERAGE WILDLIFE POND SEEPAGE COMPONENT INSIDE 0 FT CONTOUR INSIDE 5 FT CONTOUR Aquifer volume change (ft3) 1,106,216,280 1,029,576,600 Porosity 17.3% 17.3% Aquifer storage change (ft3) 191,375,416 178,116,752 Pumping well removal (ft3) 1,230,269 1,230,269 Start Date 18-Aug-94 18-Aug-94 End Date 31-Mar-12 31-Mar-12 Elapsed time (days) 6435 6435 Total surface discharge (gpm) 155.5 144.8 3.1.6 Hydraulic Properties The hydraulic properties of the perched aquifer are important to determining the rates of groundwater flow, solute transport, and groundwater storage. Anisotropy in the subsurface also impacts preferred routes or directions of solute migration. The horizontal hydraulic conductivity of the Burro Canyon and Dakota Sandstone (HGC 2014a, HGC 2014b, HGC 2015, HGC 2016a, and HGC, 2016b) measured from testing of site wells and piezometers are very similar. The measured hydraulic conductivity values are log normally distributed and range from a low of 9.1 x 10-5 ft/d to a maximum of 320 ft/d, with a geometric mean value of 0.11 ft/d, and an arithmetic average value of 4.6 ft/d. Figure 10 shows the horizontal distribution of log hydraulic conductivity values for the perched aquifer zone based on the best fit variogram model of the data. Figure 10 indicates a higher conductivity zone or channel passing in a north-south direction along the eastern side of the site and below the eastern edge of Tailings Cells 2, 3, and 4A. Higher conductivity channels provide preferential pathways for contaminant migration and Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 23 their presence is consistent with the lithology of the perched aquifer sandstones as noted previously in section 3.1.3 of this report. The data suggest that a similar higher conductivity channel may exist to the west-southwest of Cell 4B. The eastern channel may also extend to the south or east of MW-17 towards MW-22, as suggested by the previously presented hydrographs. There is a distinct need of hydraulic conductivity test data for this area to identify potential migration routes. It is important to note that two-thirds of the hydraulic conductivity tests performed, including all of the down gradient tests were slug tests. Slug tests provide only very localized (point) measurements of hydraulic conductivity and are less reliable in predicting the conductivity distribution where data are sparse. Furthermore, slug tests do not provide information on the hydraulic connection between different points in the perched aquifer. The well tests also only provide an arithmetic average hydraulic conductivity over the entire saturated aquifer thickness, so horizons with a higher hydraulic conductivity are probably present within each tested interval. The seepage rates for each pond were calculated based on the average wetted area of each wildlife pond over the period of seepage as shown in Table 5. Seepage rates for each pond likely vary according to subsurface conditions. For example, the upper north pond was originally a stock water pond and later used for storage of reclaim water, and as a result likely contains more fine grained sediments along the pond bottom. Since seepage from the ponds is under a unit hydraulic gradient (i.e. gravity is the only driving force), this indicates an average saturated vertical hydraulic conductivity of 0.193 ft/day for the soils underlying the ponds but overlying the perched sandstone aquifer. Vertical conductivity of the sandstone aquifer is likely less, this being accommodated by lateral spreading of the infiltration over the underlying bedrock surface. Nonetheless, as seen in Figure 9, the center of groundwater mounding associated with the south wildlife ponds and the lower north wildlife pond are close to the center of those ponds. Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 24 FIGURE 10 - DISTRIBUTION OF LOG HYDRAULIC CONDUCTIVITY Lo g H y d r a u l i c C o n d u c t i v i t y (f t / d ) Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 25 TABLE 5 - CALCULATION OF SEEPAGE RATES FOR WILDLIFE PONDS WILDLIFE POND TOTAL POND AREA FLOODED AREA WETTED AREA EQUIVALENT POND RADIUS SEEPAGE RATE (K=0.193 FT/D) (ft2) (% total) (ft2) (ft) (gpm) Lower South 66,900 44% 29,354 97 29.4 Upper South 42,232 29% 12,374 63 12.4 Lower North 118,116 47% 55,945 133 56.0 Upper North 77,169 68% 52,214 129 52.3 Total 304,417 149,887 150.1 Table 6 shows the calculated travel time for discharge from each pond to initially reach the water table based on a soil hydraulic conductivity of 0.19 ft/d and various estimated vertical bedrock hydraulic conductivity values (equal to the indicated seepage rate of 0.19 ft/d from Table 4, equal to the harmonic mean of all individual well tests of 0.0083 ft/d, and 0.0022 ft/d which approximately matches the expected travel time if the northern wildlife ponds were operational in the early 1980s). Additional review of older aerial photos could reduce the uncertainty in these estimates by establishing the actual time of initial pond flooding. This travel time would be reduced as groundwater mounding raises the water table. TABLE 6 - CALCULATION OF VERTICAL HYDRAULIC CONDUCTIVITY AND TRAVEL TIMES WILDLIFE POND LAYER THICKNESS (ft) TIME TO REACH WATER TABLE (yrs) WITH BEDROCK HYDRAULIC CONDUCTIVITY (ft/d) OF SOIL BEDROCK 0.193 0.0078 0.0022 Lower South 13 70 0.17 3.5 12.3 Upper South 15 70 0.17 3.4 11.9 Lower North 15 65 0.16 3.1 10.8 Upper North 5 65 0.16 3.7 12.9 The observed response in individual wells to the groundwater mounding provides the equivalent of a very long-term (multiyear) injection well test. Analysis of this response was used to evaluate hydraulic conductivity of the perched aquifer over a much larger area than achievable from the individual well tests. The responses were analyzed using the solution for a partially penetrating finite diameter well (Dougherty and Babu, 1984) in a dual porosity confined aquifer using the program Aqtesov. Input to the program included the following information: • Calculated seepage rates from each pond (Table 5) equal to pumping (injection) rate specified for the equivalent well used to simulate each pond; Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 26 • Measured changes in groundwater elevation in the neighboring observation wells impacted by groundwater mounding below the ponds; • Saturated thickness of the aquifer based on well logs and initial water levels; • First arrival time of infiltrating water column at the groundwater surface based on operational history of each pond and the seepage time from Table 6 (with vertical bedrock hydraulic conductivity of 0.0022 ft/d) – that is the arrival time is equal to the observed time of arrival after start of pond operation; • Well penetration of one foot of the top of the aquifer (i.e. infiltrating water column injection is applied only to the upper one foot of the aquifer since this arrives at the groundwater surface); • Well diameter equal to the equivalent radius of the wetted bedrock area below the pond (with vertical bedrock hydraulic conductivity of 0.0022 ft/d); • Vertical to horizontal hydraulic conductivity ratio of 0.1 (as indicated by the ratio of the harmonic and geometric mean hydraulic conductivities); Values of aquifer transmissivity and storage coefficient were determined by automated least squares fitting of the Aqtesolv calculated to the observed water level changes. The results of these analyses are summarized in Table 7. Graphs of the data matches are presented in Appendix A. Analysis of responses in upgradient wells MW-1, MW-18, and MW-19 to the groundwater mounding from the north wildlife ponds and mill site mounding area indicated a very similar response to the pond infiltration and were therefore analyzed as a single test. As expected analysis from the large scale (site wide) response to the groundwater mounding indicated much more uniform values of hydraulic conductivity and storativity than observed for the well tests since the observed response involves a much larger area of the perched aquifer. The average hydraulic conductivity from the groundwater mounding analysis (4.0 ft/d) is significantly higher than that measured for all of the individual well tests (0.15 ft/d) as well as the well tests listed in Table 7 (0.63 ft/d). The average storage coefficient from the mounding analysis is also higher (4.7%) compared to 0.81% for all of the individual well pump test analyses and 1.8% for the well tests listed in Table 7. Higher hydraulic conductivity values correspond to faster rates of contaminant migration and may explain the discrepancy between predicted and observed rates of migration as discussed later in section 3.17. Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 27 TABLE 7 - ANALYSES OF LARGE SCALE HYDRAULIC CONDUCTIVITY AND STORATIVITY FROM GROUNDWATER MOUNDING WELL VALUES FROM GROUNDWATER MOUNDING ANALYSIS VALUES FROM INDIVIDUAL WELL TESTS TRANS- MISSIVITY SATURATED THICKNESS HYDRAULIC CONDUCTIVITY STORATIVITY TEST TYPE HYDRAULIC CONDUCTIVITY STORATIVITY (ft2/d) (ft) (ft/d) (ft/ft) (ft/d) (ft/ft) MW-1 96 66 1.5 0.16 Pump/Recovery 0.0042 0.0082 MW-18 Slug/Injection 0.23 0.0067 MW-19 Slug/Injection 0.024 0.015 MW-4 187 52 3.6 0.0054 Pump 0.23 0.011 MW-11 102 45 2.3 0.054 Pump/Recovery 3.9 N.A. MW-17 44 46 0.97 0.0026 Slug/Injection 0.024 0.0065 MW-22 627 54 12 0.013 Slug 0.0074 0.058 Average 211 53 4.0 0.047 Average 0.63 0.018 Geomean 2.8 0.024 Geomean 0.083 0.013 Notes: N.A. = not available, Geomean = geometric mean Porosity measurements have been made on core samples obtained from the site (Titan, 1994) from monitoring wells MW-16 (center of Tailings Cell 4B) and MW-17 (directly down gradient of Tailings Cell 4A). In general, the porosity values were relatively consistent averaging 19.9% (range of 13 to 26%) for the Dakota Sandstone and 19.1% (range of 12 to 27%) for the Burro Canyon. For sandstone samples above a depth of about 80 ft bgs, the average total porosity was 19.8% and the residual volumetric moisture content was 2.5%, indicating a drainable or effective porosity of 17.3%. Subsequent testing of vadose zone samples (MWH, 2010) indicated an average porosity of 18.4% and a residual volumetric moisture content of 0.3%, indicating a drainable or effective porosity of 18.1%. In comparison, measured storage coefficient from all well tests averaged about 15%, although some of the reported test values exceeded the maximum physically possible (i.e. storage coefficient greater than 30%). Excluding these values, the average of all tests was about 2.7%. It is noted that single well tests do not provide a reliable estimate of the aquifer storage coefficient due to the very small radius of observation and disturbance of natural conditions near the well. The average storage coefficient obtained from observation wells (excluding TW4-19) during pumping tests was significantly less ranging from about 0.4 to 1.5% and averaging 0.8%. These values are generally indicative of a semi- confined aquifer (rather than an unconfined aquifer) and indicate that hydraulic connections between wells are via more permeable horizons or channels within the aquifer. One exception for the pumping test data was TW4-19 (located near the northeast corner of Tailings Cell 2) which had a storage coefficient of 12%, indicating unconfined aquifer conditions. Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 28 3.1.7 Groundwater Travel Times Previous estimates of groundwater travel times have been presented (Titan, 1994; HGC, 2009; HGC, 2014). Previous estimates of travel times below the tailings cells through the unsaturated (vadose) zone are summarized in Table 8. TABLE 8 - PREVIOUSLY PREDICTED CONTAMINANT TRAVEL TIMES THROUGH THE VADOSE ZONE SOURCE LOCATION VELOCITY (ft/yr) DISTANCE (ft) TRAVEL TIME (yrs) Titan, 1994 Overall site 0.7 to 2.2 109.5 50 to 150 HGC, 2009 Overall site 0.24 67 276 HGC, 2014 Tailings Cells 2, 3, 4A, 4B 0.24 48 to 69 200 to 288 These travel times are dependent upon the assumed leakage rate (rate of seepage). For example the HGC estimates are based on uniform leakage across the entire footprint of the tailings cells. In reality, leakage through liners are concentrated at locations of leaks, and not uniformly distributed across the entire liner footprint. Based on the previous analysis of seepage from the wildlife ponds (Table 5) we know that under saturated conditions at ground surface, water will move downward through the unsaturated zone between 0.045 and 0.013 ft/d (4.6 to 16 ft/yr). Thus if the seepage rate becomes high enough due to a significant breach of the liner, it could potentially travel the 48 to 69 feet below the cells in 3 to 13 years. We also note that saturated conditions can be expected at fairly low rates of seepage (i.e. a seepage rate of less than 0.19 ft/d or only 0.001 gpm/ft2). However, since seepage from the mill facilities could take up to 13 years to reach the groundwater surface, the detection of seepage in the monitoring wells may be delayed by several years after a release has occurred. This also has implications for continued site monitoring following future closure of the cells. Table 9 summarizes previous estimates of groundwater travel times within the saturated zone. The predicted migration rates are seen to be approximately 100 times slower than the observed rates of migration at the site for the nitrate and chloroform plumes. It is important to note that the observed rates of migration do not account separately for travel time through the vadose zone, so that actual rates of migration within the subsurface would be greater than indicated. The calculations for the nitrate plume migration are based on the assumption that an old stock watering pond (removed during the mill construction) is the source of this release. However, as discussed previously in section 3.14 of this report the available data does not support the occurrence of significant recharge from this pond (or other stock watering ponds in the area). If the travel time is reduced to that of the life of the facility (35 years), the calculated downstream travel velocities equal those calculated for the chloroform plume (which overlaps much of the same plume area). Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 29 TABLE 9 - PREVIOUSLY PREDICTED AND OBSERVED RATES OF CONTAMINANT MIGRATION SOURCE SITE LOCATION TRAVEL VELOCITY (ft/yr) TRAVEL DISTANCE (ft) HYDRAULIC GRADIENT (ft/ft) TRAVEL TIME (yrs) BASED ON CALCULATIONS OF POTENTIAL MIGRATION Titan, 1994 Overall site 0.89 8000 0.015 8,900 HGC, 2009 Overall site 1.59 10000 0.012 6,303 HGC, 2014 Downgradient Path 3 0.68 2200 0.012 3,470 Downgradient Path 4 0.26 4125 0.0046 15,850 Downgradient Path 5 0.60 11800 0.031 19,900 Downgradient Path 5 0.91 9685 0.012 19,900 BASED ON OBSERVED RATES OF ACTUAL MIGRATION HGC, 2014 Nitrate Path 1 21 1250 0.028 60 Nitrate Path 1 35 2200 0.048 63 Chloroform Path 2A 76 1200 0.028 16 Chloroform Path 2B 38 1450 0.026 38 Chloroform Path 2B 84 1750 0.038 21 The higher observed rates of migration has been attributed to the fact that channels or zones of higher hydraulic conductivity exist in the areas of the releases, although these conduits were only identified after the releases were detected and considerable additional investigations were performed to track the releases. As discussed in the previous sections, there is certainly significant potential that such zones are also present downgradient of the site, particularly to the southeast where the perched aquifer has a much greater saturated thickness. Such potential conduits of flow have been previously identified as part of the aquifer lithology and there is no indication or expectation that this lithology would change significantly downgradient of the site. Furthermore, if a release occurs, saturated thickness of the perched aquifer would be expected to increase and could potentially saturate higher conductivity zones that are currently dry. Unfortunately, all recent investigations have focused on potential downstream migration to the southwest. Furthermore, the results of the groundwater mounding analysis indicate a higher hydraulic conductivity at site scales than obtained from individual well tests as well as responses in wells significantly downgradient of the site indicating hydraulic connections to these areas. The focus of the recent downgradient investigations is based on assuming that the direction of groundwater flow (and contaminant migration) is perpendicular to the groundwater contours. This is only true for homogeneous, isotropic conditions. In actuality we see movement of the nitrate plume towards the south with some lateral dispersion along the plume length to the southwest. If the nitrate plume was released near well TWN-2, as suggested by previous studies (Intera, 2009; HGC, 2014a), the groundwater contours (both historic and current) would Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 30 have indicated migration from this point to the southwest (towards wells MW-23 and MW-12). The reason for this is that groundwater flow will preferentially follow the more conductive (higher hydraulic conductivity) channels. Groundwater mounding in the vicinity of the south wildlife ponds appears to be trying to divert groundwater flow to the southwest. However, this mounding is slowly dissipating and will not influence plume migration in the same manner in the future. 3.2 Groundwater Chemistry Groundwater monitoring has been conducted at the site since the start of operations. According to available information (DRC, 2004), groundwater monitoring was conducted between 1979 and 1997 in thirteen monitoring wells. This monitoring included up to 20 parameters and was generally conducted on a quarterly basis. In 1997 this was reduced to six point of compliance or POC wells (MW-5, 11, 12 on the south edge of Cell 3, and MW-14, 15, 17 on the south edge of Cell 4a) and for only 4 parameters (chloride, nickel, potassium, and uranium). In May of 1999, a split sampling round of all wells was conducted by NRC and DRC for a much wider range of parameters including heavy metals, nutrients, general water chemistry parameters, radiological indicators, and volatile organic compounds (VOCs). This sampling round led to the discovery of a chloroform plume and many additional monitoring wells were installed. Subsequent sampling has also detected a larger nitrate and chloride plume leading to the installation of additional upstream monitoring wells. According to our review of available information a total of 34 permanent monitoring wells (identified as MW series) have been installed at the site between 1979 and 2011, with only 5 of these installed just before or coincident with the start of operations. However, three of these wells (MW-6, 13, and 16) were destroyed during construction of Tailings Cells 3, 4A and 4B, respectively. Three wells (MW-16, 21, and 33) were dry and never sampled. Two wells (MW-4 and MW-4a) are used for extraction of impacted groundwater and are not currently sampled to monitor tailings leakage (although MW-4 was sampled prior to 2010 and continues to be sampled as part of the chloroform monitoring program). Well MW-34 is no longer sampled. This leaves a total of 27 monitoring wells in current use. These wells are currently sampled for general water quality parameters, major ions, trace metals, and organic compounds. Figure 11 shows the available period of record of sampling results each of these permanent monitoring wells. An additional 39 temporary monitoring wells (identified as TW4 series) were installed in the area of the chloroform plume between 2002 and 2016. These wells were sampled for four organic compounds (carbon tetrachloride, chloroform, chloromethane, and methylene chloride), chloride, and nitrate. Two of these wells (TW4-15 and 17) are no longer sampled. An additional 19 temporary monitoring wells were installed upstream of the site in 2010 to define the source of a nitrate and chloride plume at the site and have been sampled for chloride and nitrate. Nine of these wells have not been sampled since 2012 and are apparently abandoned. Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 31 Figure 12 shows the available period of record of water chemistry sampling results for each of these temporary monitoring wells. Figures 13 and 14 show the location of each of the above monitoring wells. Apart from the location of a few of the initial monitoring wells (Titan, 1994), most of the coordinates of the monitoring wells have not been published and thus are based on interpolation from well locations presented in monitoring report figures (data for wells MW-6, MW-13, and TW4-15 are not available). FIGURE 11 - AVAILABLE PERIOD OF RECORD FOR PERMANENT MONITORING WELLS Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 32 FIGURE 12 - AVAILABLE PERIOD OF RECORD FOR TEMPORARY MONITORING WELLS Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 33 FIGURE 13 - LOCATION OF MONITOR WELLS Permanent Monitor Well Nitrate Monitor Well Chloroform Monitor Well Groundwater Spring Piezometer Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 34 FIGURE 14 - LOCATION OF CHLOROFORM MONITORING WELLS Permanent Monitor Well Nitrate Monitor Well Chloroform Monitor Well Groundwater Spring Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 35 For this study, available groundwater sampling information submitted in electronic format to DRC was obtained and placed into a database. In general this covers the period 2005 to 2016 for most chemical parameters. Data on groundwater elevations and pH in electronic format are limited to those data presented by Intera, 2012. More recent data for late 2012 through 2016 was added from field sampling notes contained in the published quarterly groundwater monitoring reports. Well ground surface elevations and top of casing (reference elevation for groundwater depths) was determined from well logs although not all well logs are available or contain this information. This information is also not contained in the groundwater monitoring reports, only measured depth to groundwater. Ground surface and top of casing information was obtained from well logs, where available, or estimated from measured groundwater elevations (from electronic data files) and reported groundwater depths as measured on December 21, 2010. It is noted that small discrepancies exist between TOC elevations determined from reported groundwater elevations and the TOC elevations from well logs. Data on tailings solution chemistry was obtained from annual reporting (Energy Fuels Resources, 2014d) which includes annual reporting from 2007 to 2014, as well as 1987 and 2003 data for Tailings Cells 1 and 3. Tailings solution and leak detection system chemistry data for Tailings Cell 4A is available from 2009 to 2014 and from cell 4B from 2011 to 2014. Data for Tailings Cell 2 from 2007 to 2014 is from the slimes drain, with samples from 2009 and 2010 from the leak detection system. Figure 15 compares the average concentrations of major ions, total dissolved solids (TDS), and nitrogen (as ammonium and nitrate) of each of the different tailings solutions, associated seepage within the leak detection systems (LDS), and the Tailings Cell 2 slimes drain (underdrain above the liner). In general the chemical compositions of the tailings solutions are similar, although Tailings Cells 1 and 3 generally contain higher concentrations than the remaining solutions. It is also noted that seepage collected in the leak detection systems (LDS) of Tailings Cells 4a and 4b (the impoundments with double liners) are nearly identical to that from the ponded solutions of the same tailings cells, as would be expected. Similar, although slightly lower, concentrations are found in the Tailings Cell 2 slimes drain with the exception of fluoride which is at least an order of magnitude lower than the other solutions. It is not clear if this results from a change in the ore processing (high fluoride concentrations are only observed in recent years) or if it is due to precipitation of fluoride from the solution within the pond sediments. The solutions also exhibit much higher ammonium than nitrate nitrogen suggesting reducing conditions. The water collected from the Cell 2 leak detection system (open pipe at downslope end of base of impoundment below the liner) is distinctly different from the other tailings solutions. Concentrations of TDS, chloride, nitrate, magnesium, potassium, and other parameters within this solution are above that found in groundwater at the site. The solution also has a near neutral pH compared to an average pH of 2 for the other solutions, and is associated with relatively higher calcium and bicarbonate, indicating neutralization of the source solution. However, fluoride concentrations are distinctly lower than the other major ions in this solution (as was also observed for the slimes drain of the same cell). This would indicate that fluoride is not a reliable indicator of tailings seepage. Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 36 FIGURE 15 – MAJOR IONS, TDS, AND NITROGEN CONCENTRATIONS IN TAILINGS SOLUTIONS Figure 16 compares the average concentrations of heavy metals in the tailings solutions. As with the previous comparison, the chemical composition of the different solutions is similar, although again Tailings Cells 1 and 3 generally contain higher concentrations than the remaining solutions. The LDS collected seepage from cells 4a and 4b is very similar to the impoundment solution, as expected. Similar, although slightly lower, concentrations are found in the Tailings Cell 2 slimes drain with the exception of silver and tin which were not detected. Silver has never been detected and tin has only been detected once in groundwater at the site. The water collected from the Cell 2 leak detection system has significantly lower concentrations than the tailings solutions, although there is a general similarity in the pattern of higher and lower concentrations. The differences in the observed concentrations are certainly at least partially related to the higher pH of the Cell 2 LDS solution. Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 37 FIGURE 16 – AVERAGE CONCENTRATIONS OF HEAVY METALS IN TAILINGS SOLUTIONS Figure 17 compares the average log concentrations of heavy metals in the tailings solutions with that measured in solutions collected from the Cell 2 LDS. This figure indicates a statistically significant correlation between the two concentrations (at the 90% confidence interval based on 19 measured heavy metals and estimating the concentration of non-detected metals at one- half of the detection limit). The solutions from the Cell 2 LDS are considered to likely be more representative of the tailings solution that reaches the site groundwater, since the effects of neutralization are included. Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 38 FIGURE 17 – COMPARISON OF AVERAGE HEAVY METALS CONCENTRATIONS Table 10 presents a summary of the average concentrations of the chemical parameters monitored in the permanent monitoring wells for the period 2005 to 2016. The detection frequency (percent of all tested samples with detectable concentrations) for all tested sample parameters for the period 2005 to 2016 is shown in Table 11. The wells are ordered from left to right to correspond with their position from up gradient to down gradient groundwater flow across the site. The average concentrations for the tailings cell solutions and the samples from the Tailings Cell 2 LDS are presented on the left for comparison. For the general water parameters and the major cations and anions, the table cells are color coded in Table 10 according to the range of values for that parameter with red indicating the highest concentrations (lowest for pH values to indicate higher hydrogen ion concentrations) and blue indicating the lowest concentrations. For the heavy metals and organic compounds highlighting is used in Table 10 to indicate the frequency that the compound was detected. Red shaded cells indicate the parameter was detected in 50% or more of the collected samples, orange shading indicates it was detected in less than 50% of the samples, and yellow shading indicates the parameter was not detected in any of the tested samples. Where a parameter was not detected, the concentration was assumed to be zero in calculating the average Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 39 concentrations for the heavy metals and organic compounds. This was necessary since the detection limit varies between monitoring rounds and samples, thereby providing background noise when making comparisons. It is also a conservative assumption for the purposes of this analysis since the actual concentration can vary between the detection limit and zero. We note that while earlier sample data on some heavy metals is available (Titan, 1994) in reviewing the sample results we found results that suggested that there was potential sample contamination in the field or laboratory. That is when heavy metals were detected (where it had not been detected in previous sampling rounds) it was often detected in all samples collected during that round. The analysis of the data presented in Table 10 is presented in the following sections of this report. Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 40 TABLE 10 - AVERAGE CHEMICAL PARAMETER CONCENTRATIONS (2005 TO 2016) IN PERMANENT MONITORING WELLS AND TAILINGS SOLUTIONS MW - 1 MW - 1 8 MW - 1 9 MW - 2 7 MW - 2 MW - 2 4 MW - 2 8 MW - 4 MW - 2 6 MW - 2 9 MW - 3 0 MW - 3 1 MW - 3 2 MW - 5 MW - 1 1 MW - 1 2 MW - 2 3 MW - 2 5 MW - 1 4 MW - 1 5 MW - 1 7 MW - 3 4 MW - 3 5 MW - 3 6 MW - 3 7 MW - 3 MW - 3 A MW - 2 0 MW - 2 2 General Parameters Gross Alpha (-Rn&U)55,779 10 0.93 1.1 1.2 1.4 1.1 1.1 1.4 0.58 2.9 1.3 0.88 1.0 3.5 0.84 0.86 0.83 1.7 1.0 1.1 0.80 1.1 0.93 4.5 1.4 1.4 0.78 1.0 0.96 5.8 pH 2.0 7.0 7.3 6.6 7.0 7.3 7.2 6.4 6.4 7.0 6.8 6.8 7.0 7.2 6.5 7.5 7.6 6.8 6.9 6.8 6.7 6.9 6.9 7.3 6.6 6.8 6.7 6.6 6.8 7.7 5.8 Ammonia as N 5,434 17 0.17 0.07 0.07 0.04 0.08 2.4 0.09 0.05 0.33 0.78 0.06 0.04 0.75 0.50 0.67 0.09 0.11 0.50 0.09 0.05 0.07 0.05 0.11 0.06 0.06 0.10 0.11 0.19 0.59 Nitrate+Nitrite as N 76 2.5 0.12 0.07 2.8 6.0 0.09 0.24 0.31 5.2 1.1 0.08 17 21 0.08 0.14 0.09 0.12 0.26 0.09 0.10 0.18 0.89 0.30 0.15 0.18 1.3 0.36 1.1 9.0 2.8 TDS Calculated 132,480 1308 3000 1150 1051 3103 3980 3531 1583 3041 4217 1589 1217 3617 2106 1998 3680 3436 2724 3440 3720 3881 3513 3381 4245 3925 5023 5401 5766 7188 TDS Measured 6030 1380 3153 1192 1062 3087 4083 3632 1637 3111 4325 1587 1414 3693 2061 1939 3826 3417 2749 3536 3729 3698 3733 3698 4329 3860 5179 5618 5206 7815 GW Elevation 5582 5586 5601 5575 5504 5507 5544 5548 5559 5513 5538 5548 5547 5503 5523 5501 5497 5537 5495 5493 5500 5492 5487 5493 5490 5472 5458 5449 Major Cations (mg/L)Total:409 884 344 316 935 1154 996 454 857 1197 458 379 979 682 674 1068 967 785 1007 1111 1072 1068 1051 1286 1134 1488 1569 1711 1749 Calcium 531 663 172 561 152 166 329 485 511 251 494 490 272 188 515 142 62 521 439 359 504 443 328 503 503 441 468 454 473 348 438 Magnesium 6,338 525 63 129 53 73 94 174 173 111 165 224 71 89 224 41 19 221 148 123 153 165 172 147 154 140 131 250 305 60 1023 Potassium 1,787 18 7.1 9.3 4.7 4.3 10 14 12 6.7 11 17 11 6.1 14 7.9 6.7 13 11 9.7 12 10 12 14 12 10 15 24 28 38 23 Sodium 12,736 365 168 185 133 73 501 480 300 85 187 467 104 96 226 492 586 312 369 294 338 493 561 404 384 695 519 759 763 1266 265 Major Anions (mg/L)Total:1105 2335 958 921 2299 2948 2574 1271 2347 3087 1115 984 2745 1553 1515 2833 2500 2077 2602 2779 2701 2590 2627 3062 2753 3690 3934 3777 6022 Chloride 10,671 1555 18 51 31 41 6.8 46 107 43 63 37 134 182 34 1 31 62 7.6 31 19 38 34 71 64 59 47 64 60 62 58 Fluoride 735 0.40 0.32 0.21 1.1 0.71 0.28 0.23 0.63 0.37 0.28 0.75 0.37 0.82 0.20 0.94 0.52 0.24 0.27 0.32 0.17 0.21 0.27 0.54 0.33 0.29 0.30 0.90 1.2 0.31 6.4 Sulfate 119,257 2240 791 1827 675 433 1917 2628 2304 877 1878 2706 786 593 2269 1164 1105 2349 2193 1640 2114 2300 2222 2183 2160 2642 2462 3327 3515 3536 5661 Bicarbonate (as HCO3)0 246 295 456 250 446 376 274 162 351 405 343 195 209 443 387 379 423 300 406 470 441 445 335 403 360 244 299 358 178 296 Heavy Metals (ug/L)Total:4177 558 290 42 49 30 4935 1765 55 2006 6552 154 82 12707 299 220 168 414 1624 2109 168 140 423 402 279 110 1391 888 72 39987 Arsenic 134,511 0 0 0 0 0 0 1.8 14 0 0.037 1.1 0.59 0.15 0.073 0 0 0 0 0 0 0 0 0 0 0.53 0 0 0 0 0 Beryllium 541 0 0 0 0 0 0 0.074 0 0 0 0.056 0.25 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0.33 0.90 0 7.7 Cadmium 5,674 17 0 0 0 0 0.040 2.0 4.1 0 0.093 0.071 0.54 0 1.8 0 0 0.083 0.22 1.4 1.2 0 0.069 0 0 0 0.18 2.6 1.9 0.046 125 Chromium 7,974 0 0 0 0 0 0 0 0 0 0 0 6.2 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Cobalt 38,240 157 0 0 0 0 0 9.1 30 0 0.33 0.59 0.54 0 45 0 0 0 0.73 1.8 0 0 0 0 0.64 0 0.88 0 3.1 0 380 Copper 384,312 36 0 0 0 0 0 0 0.68 0 0.095 0 1.5 0.048 0.94 0 0.27 0 0.52 0 0 0.45 0 0 0 0.43 0 0.39 0.96 0 43 Iron 3,453,133 123 435 144 8.6 8.3 0 1366 42 0 820 1419 62 0 7448 59 83 33 15 0 0 3.2 6.8 105 128 0 3.3 19 24 9.7 54 Lead 8,211 0 0 0 0 0 0 0.64 0.36 0 0 0 0.56 0 0.073 0 0.027 0 0.38 0.036 0 0 0 0 0 0 0 0 0 0 2.6 Manganese 334,742 1103 122 95 12 0 0 3490 1587 0 1133 5102 32 0 5033 231 134 94 325 1601 2033 0 93 153 234 0 47 1003 667 16 37821 Mercury 7.8 0.3 0 0 0 0 0 0.051 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0.023 Molybdenum 59,490 17 0 0 0 0 0 1.2 0 0 0 1.0 0 0 5.9 0 0 0 0 9.5 0.22 0 0 0 0.89 0 0 0 0 9.4 405 Nickel 77,239 474 0 0 0 0 0 12 26 0 3.2 0.69 2.3 0.28 59 0 0 0 5.9 0 0.6 0 0 0 0.93 0 2.7 22 14 0 205 Selenium 4,012 8.7 0 0 13 11 11 1.0 3.0 46 4.1 0.52 38 73 0 0 0 21 1.0 0 0 117 9.6 136 14 252 6.3 39 87 0.22 14 Silver 393 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Thallium 1,333 0.46 0 2.5 0.23 0 0 0.75 0.88 0 0 0.12 0.024 0 0.025 0 0 0.022 0.5 0.93 0 0 0.24 0.24 0.17 0.72 0.60 1.2 0.74 0.10 1.3 Tin 359 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 7.7 0 0 0 0 0 0 0 0 0 0 0 0 Uranium 235,463 82 0.3 41 7.3 29 11.1 14 5.8 8.2 43 13 7.6 7.8 2.6 9.4 0.63 19 18 6.2 62 45 28 25 22 23 13 23 20 8.5 38 Vanadium 751,636 11 0 0 0 0 0 2.3 3.9 0 0 0 0.48 0 0 0 0 0 3.8 1.1 0 0 0 0 0 0 0 0 1.4 1.4 0 Zinc 393,299 2149 0.53 6.8 0.75 0.59 7.9 35 47 0 2.6 15 2.0 1.1 110 0 1.2 1.3 34 2.2 12 1.7 1.6 3.7 1.6 2.5 35 280 66 27 892 Organics (ug/L)Total:3.1 13 0.12 0.18 0.62 0.27 40 0.46 1921.4 1806.3 0.66 0.19 0.33 0.20 4.2 0.71 4.8 0.92 0.28 0 0 0 0.83 0 0 0 8.3 3.1 0.35 0.53 Acetone 166 0 0 0 0 0 0 38 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Benzene 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0.37 Carbon tetrachloride 0 0 0 0 0 0 0 0 0 1.4 0.031 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Chloroform 8.9 0 0 0 0 0.18 0 0 0 1920 1788 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0.25 0 0 Chloromethane 3.0 0 0.35 0.12 0.18 0.45 0.27 0.84 0.46 0.21 0.44 0.66 0.19 0.33 0.20 0.42 0.40 0.33 0.73 0.28 0.17 0.18 0.31 0 0 0 0 0.39 0.80 0 0 Methyl ethyl ketone 23 0 0 0 0 0 0 0.65 0 0 0.94 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Methylene chloride 0.79 0 0 0 0 0 0 0 0 0 16 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Naphthalene 2.8 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Tetrahydrofuran 7.2 3.1 13 0 0 0 0 0.25 0 0 0.92 0 0 0 0 3.8 0.32 4.4 0.19 0 0 0 0 0 0 0 0 7.9 0.41 0 0 Toluene 0.38 0 0.065 0 0 0 0 0.068 0 0 0 0 0 0 0 0.056 0 0 0 0 0 0 0 0.37 0 0 0 0 1.7 0.20 0.067 Xylenes 0.29 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0.47 0 0 0 0 0 0.15 0.092 Parameter Upgradient Ta i l i n g s Ce l l s a n d Sl i m e s DowngradientCell 1 Cell 2 Cell 3 Cell 4A Cell 4B Ce l l 2 LD S Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 41 TABLE 11 - FREQUENCY OF CHEMICAL PARAMETER DETECTION (2005 TO 2014) IN PERMANENT MONITORING WELLS AND TAILINGS SOLUTIONS MW - 1 MW - 1 8 MW - 1 9 MW - 2 7 MW - 2 MW - 2 4 MW - 2 8 MW - 4 MW - 2 6 MW - 2 9 MW - 3 0 MW - 3 1 MW - 3 2 MW - 5 MW - 1 1 MW - 1 2 MW - 2 3 MW - 2 5 MW - 1 4 MW - 1 5 MW - 1 7 MW - 3 4 MW - 3 5 MW - 3 6 MW - 3 7 MW - 3 MW - 3 A MW - 2 0 MW - 2 2 General Parameters Gross Alpha (-Rn&U)95%100%100%95%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%96%96%100%100% pH 100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100% Ammonia as N 100%100%73%38%30%9%19%100%52%0%98%100%30%4%100%100%100%45%39%100%49%22%29%33%71%21%14%44%32%74%96% Nitrate+Nitrite as N 95%100%32%0%100%98%0%42%82%100%95%3%100%100%2%48%2%36%88%2%2%65%88%100%10%88%91%86%97%100%100% TDS Calculated 100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100% TDS Measured 100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100% GW Elevation 100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100% Major Cations Calcium 100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100% Magnesium 100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100% Potassium 95%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100% Sodium 100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100% Major Anions Chloride 97%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100% Fluoride 89%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100% Sulfate 100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100% Bicarbonate (as HCO3)0%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100%100% Heavy Metals 11 Arsenic 97%0%0%0%0%0%0%21%100%0%2%9%4%4%3%0%0%0%0%0%0%0%0%0%0%4%0%0%0%0%0% Beryllium 100%0%0%0%0%0%0%6%0%0%0%3%2%0%0%0%0%0%0%0%0%0%0%0%0%0%0%25%79%0%100% Cadmium 97%100%0%0%0%0%5%75%100%0%14%9%4%0%97%0%0%9%21%100%98%0%8%0%0%0%32%96%90%4%100% Chromium 97%0%0%0%0%0%0%0%0%0%0%0%2%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0% Cobalt 92%50%0%0%0%0%0%24%100%0%5%3%2%0%100%0%0%0%3%15%0%0%0%0%4%0%5%0%14%0%100% Copper 97%100%0%0%0%0%0%0%6%0%2%0%2%2%6%0%2%0%3%0%0%4%0%0%0%4%0%4%7%0%79% Iron 100%100%91%91%8%3%0%100%52%0%100%100%61%0%100%78%75%39%15%0%0%7%8%67%100%0%5%21%3%13%63% Lead 92%0%0%0%0%0%0%9%24%0%0%0%4%0%5%0%2%0%6%2%0%0%0%0%0%0%0%0%0%0%67% Manganese 97%100%97%100%50%0%0%100%100%0%100%100%100%0%100%100%100%97%97%100%100%4%96%100%100%0%38%100%100%43%100% Mercury 55%50%0%0%0%0%0%6%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%4% Molybdenum 100%100%0%0%0%0%0%6%0%0%0%6%0%0%48%0%0%0%0%79%2%0%0%0%3%0%0%0%0%43%100% Nickel 97%50%0%0%0%0%0%35%97%0%7%3%2%2%100%0%0%0%21%0%2%0%0%0%4%0%9%29%31%0%100% Selenium 92%100%0%0%100%100%90%15%42%100%44%6%100%100%0%0%0%94%18%0%0%100%77%100%88%100%91%96%100%4%100% Silver 66%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0% Thallium 92%50%0%100%39%0%0%69%100%0%0%13%2%0%3%0%0%4%52%100%0%0%32%33%26%100%73%100%90%13%96% Tin 45%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%4%0%0%0%0%0%0%0%0%0%0%0%0% Uranium 100%100%63%100%100%100%100%100%100%100%100%100%100%100%100%81%83%97%100%100%100%100%100%100%100%100%100%100%100%92%100% Vanadium 97%50%0%0%0%0%0%3%8%0%0%0%2%0%0%0%0%0%12%2%0%0%0%0%0%0%0%0%3%9%0% Zinc 92%100%5%23%4%3%43%76%97%0%17%78%8%7%100%0%4%9%91%13%82%8%8%33%11%8%86%100%100%61%100% Organic Compounds 0.5 Acetone 82%0%0%0%0%0%0%9%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0% Benzene 0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%4% Carbon tetrachloride 0%0%0%0%0%0%0%0%0%78%1%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0% Chloroform 74%0%0%0%0%3%0%0%0%100%100%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%7%0%0% Chloromethane 58%0%15%5%5%19%10%15%15%6%12%13%9%11%8%16%12%8%26%9%6%5%13%0%0%0%0%15%22%0%0% Methyl ethyl ketone 26%0%0%0%0%0%0%3%0%0%1%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0% Methylene chloride 16%0%0%0%0%0%0%0%0%0%93%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0% Naphthalene 37%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0% Tetrahydrofuran 21%50%86%0%0%0%0%3%0%0%2%0%0%0%0%63%12%47%3%0%0%0%0%0%0%0%0%45%11%0%0% Toluene 16%0%4%0%0%0%0%3%0%0%0%0%0%0%0%4%0%0%0%0%0%0%0%33%0%0%0%0%4%4%4% Xylenes 11%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%0%33%0%0%0%0%0%4%4% Cell 4A Cell 4B Downgradient Parameter Ta i l i n g s Ce l l s a n d Sl i m e s Upgradient Cell 1 Cell 2 Cell 3 Ce l l 2 LD S Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 42 3.2.1 Major Ions and General Water Quality Parameters The principal or major ions in the water samples can provide some insight as to general changes in groundwater chemistry across the site. This is most easily visualized by using a Piper diagram as shown in Figure 18. A Piper diagram shows the relative proportions (in terms of milliequivalents) of the major cations (Ca, Mg, and Na+K) and anions (CO3+HCO3, Cl, and SO4) using separate ternary plots (cations to the lower left and anions to the lower right portion of the diagram). The apexes of the cation plot are calcium, magnesium and sodium plus potassium cations. The apexes of the anion plot are sulfate, chloride and carbonate plus bicarbonate anions. The two ternary plots are then projected onto a diamond (upper portion of diagram). This portion of the diagram is used to show the combined linear trends of the changes in both cations and anions. TDS and pH of the monitor well samples are shown on the same figure in order of upgradient to downgradient from left to right (same as for Table 10). Data for the neighboring springs and Recapture Reservoir (USGS, 2011) are shown for comparison. Figure 18 was prepared using the average concentrations measured from 2005 through 2016. With a few exceptions, concentrations of the major ions have generally remained constant over this time period. Most of the monitoring wells are fairly closely grouped (dashed rectangle in Figure 18) along a mixing line which shows waters with higher percentages of calcium, magnesium and to a lesser extent bicarbonate at one end and waters with higher percentages of sodium and to a lesser extent sulfate at the other end. Specific outliers are identified on Figure 18. MW-1 is similar to the other wells except it contains a slightly higher percentage of bicarbonate. The major ion composition of the water in MW-1 is essentially identical to that for the downgradient Ruin Spring and Mill Spring (a.k.a. Westwater Spring). MW-1 is the furthest upgradient well at the site and the least affected by discharge from the wildlife ponds and the source in the northwest corner of the mill site so it may be the most representative of natural upstream groundwater at the site prior to the influence of this seepage. MW-27 falls in the same cation percentages of the other wells (although at the high calcium end of the range) but contains significantly higher percentages of bicarbonate (about 40%) as well as slightly higher chloride (about 5%) than the other wells. MW-27 appears to represent a mixture of water from that of the other monitor wells and Recapture Reservoir, which suggests that the mounding source near the northwest corner of the mill site is related to water used at the mill. The same is true for water from Entrance Spring which is near the north wildlife ponds although Entrance Spring contains higher chloride (about 15%), possibly leached from the pond sediments. Both MW-27 and Entrance Spring contain measurable tritium (USGS, 2011) which supports this interpretation. Interestingly the water chemistry of upgradient wells MW-18, MW-19 does not appear to be impacted by the wildlife pond recharge, although water levels in these wells have increased significantly due to the north pond recharge. This may be due to the fact that as upgradient wells, the change in water level is more a function of backing up of upstream flow by the recharge than actual mixing of water from the recharge, although MW-19 also contained slightly elevated tritium, albeit lower than observed for MW-27. MW-30 and MW-31 have notably higher chloride than the other wells. These wells are located within the current mapped Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 43 chloride plume area. They also have the closest chemical composition to that observed from the Tailings Cell 2 LDS. TDS generally increases downgradient, while pH does not. TDS is lowest in the upgradient wells, as well as five wells with distinct water chemistry (MW-27, MW-5, MW-30, MW-31, and MW- 11) associated with the chloride plume source and downgradient movement. The water chemistry of Recapture Reservoir is distinctly different, with a much lower percentage of sulfate and a slightly higher percentage of calcium, although infiltration through the sediments in the bottom of the wildlife ponds (or use in process water) would likely significantly change its water chemistry. The wells with the lowest pH are found at the downstream edge of Tailings Cell 1 (MW-24 and MW-28), near the southeast corner of cell 2 (MW-32) and at downgradient well MW-22. Wells MW-5, MW-11, and MW-20 have the highest average pH, in part due to some occasional very high pH readings (8.7, 9, and 11, respectively) as well as some very high sodium percentages suggesting some cement invasion into the screen interval during well construction as such high pH values do not occur naturally in groundwater. Average water chemistry for the tailings cells are also presented in Figure 18. The typical water chemistry for the tailings solution is very high TDS (132,000 mg/L), very low pH (2.0), with equal percentages of sodium and magnesium (range of 30 to 60% magnesium) and low calcium (less than 5%), and a sulfate percentage in excess of 80%. The percentage of magnesium is higher in the Tailings Cell 2 slimes drain. The water chemistry of the Tailings Cell 2 leak detection system is also distinct with somewhat higher percentages of magnesium and significantly higher percentages of chloride than the site groundwater. Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 44 FIGURE 18 - PIPER DIAGRAM OF SITE GROUNDWATER CATIONS ANIONS Tailings Solutions Upgradient TC#1 TC#2 TC#3 TC#4A TC#4B Downgradient Mill Spring Entrance Spring Ruin Spring Recapture Res. SO4 + Cl Ca + Mg SO4Mg Ca Cl Na + K CO3 HCO3 + PIPER DIAGRAM 0%100%0%100% 0% 100%0% 100% 100%0% 0% MW-27 MW-31 MW-30MW-22 1 2 3 4 5 6 7 8 9 100 1000 10000 100000 1000000 TC # 1 TC # 2 - S D TC # 2 - L D TC # 3 TC # 4 A TC # 4 A - L D TC # 4 B MW - 1 MW - 1 8 MW - 1 9 MW - 2 7 MW - 2 MW - 2 4 MW - 2 8 MW - 4 MW - 2 6 MW - 2 9 MW - 3 0 MW - 3 1 MW - 3 2 MW - 5 MW - 1 1 MW - 1 2 MW - 2 3 MW - 2 5 MW - 1 4 MW - 1 5 MW - 1 7 MW - 3 4 MW - 3 5 MW - 3 6 MW - 3 7 MW - 3 MW - 3 A MW - 2 0 MW - 2 2 pH TD S ( m g / L ) TDS pH MW-5 MW-11 MW-20 MW-1 TC#2 LDS TC#2 SDTC#2 LDS Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 45 Sodium concentrations increase downgradient, with the lowest sodium concentrations observed in the areas of groundwater mounding near the northwest corner of the mill site and along the center of the chloride plume (Figure 19). Calcium does not generally increase downstream but also exhibits lower values near the northwest corner of the mill and along the center of the chloride plume (Figure 19), although the lowest values are found below Tailing Cell 3 possibly due to ion exchange with sodium. Magnesium has a similar distribution to calcium with the exception of the high magnesium concentrations at MW-22. This suggests that the water associated with mounding near the northwest corner of the mill site has unique water chemistry not associated with the wildlife pond discharge, and is impacting major ion chemistry below the tailing cells. FIGURE 19 - CALCIUM AND SODIUM CONCENTRATIONS IN GROUNDWATER Sulfate is the dominant anion for almost all of the samples and shows only a slight increase with increasing sodium per the trend of the Piper Diagram. However, sulfate concentrations generally increase downgradient in a similar manner to that observed for sodium (Figure 20). Higher sulfate is seen near the western edge of Tailings Cell 2, an area with generally lower pH. Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 46 Lower sulfate concentrations appear to be associated with the chloride plume area near the center of the tailing cell area. Bicarbonate like calcium does not generally increase downstream (Figure 20). However, it is lowest below Tailings Cells 1 and 2 suggesting that some seepage of acid solutions from the tailings cells has occurred in this area. The observed distribution of chloride is essentially the inverse of that observed for bicarbonate (i.e. high chloride is associated with low bicarbonate). This suggests that either the chloride is also an indication of tailings cell seepage, or that the water associated with the chloride plume has lower bicarbonate. Bicarbonate concentrations and pH at MW-24 have dropped significantly since 2014 suggesting potential tailings seepage at this location. FIGURE 20 - SULFATE AND BICARBONATE CONCENTRATIONS IN GROUNDWATER The distribution of chloride and nitrate/nitrite has been studied more extensively since the discovery of the chloride/nitrate plume (Figure 21). Comparison of the two plumes shows that the chloride plume is centered somewhere near the southeast corner of Tailings Cell 1 with radial dispersion exhibited around this point. Chloride concentrations have fluctuated but remained relatively high (about 1000 mg/L) near the center of the plume (TW4-24) while Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 47 increasing significantly in most wells surrounding this high including TW4-19, 20, 21, 22, 24 and MW-28, 30, and 31. The only well with significant decreases in chloride is upgradient well TW4- 25, although concentrations of chloride are lower at this location than near the center of the plume. In contrast the nitrate plume is more elongated with the highest concentrations observed near the northwest corner of the mill site (vicinity of Roberts Pond and well TWN-2) where concentrations remain relatively steady at about 50 mg/L as N and near TW4-22 where concentrations have been increasing to over 50 mg/L. These observations suggest that the source of these plumes remains active within the subsurface materials, and that there are two separate sources (a nitrate source near the northeast corner of the mill and a chloride source near the southeast corner of Tailings Cell 1). It is noted that both chloride and nitrate-nitrite are both highly water soluble and mobile in the subsurface. The relatively high redox potential (average of about 300 mV), low organic content of the aquifer materials, and the high measured ratio of nitrate to ammonium of the site groundwater are not conducive to a high rate of denitrification (biodegradation of nitrate/nitrite). Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 48 FIGURE 21 – CHLORIDE AND NITRATE CONCENTRATIONS IN GROUNDWATER The USGS (2011) has identified the following natural mechanisms that impact major ion chemistry at the site: • Dissolution of calcite and dolomite which results in higher calcium, magnesium, and bicarbonate • Dissolution of gypsum (and anhydrite) which results in higher calcium and sulfate • Cation exchange with kaolinite clay which results in lower calcium and higher sodium Per the previous figures, sodium and sulfate generally increase downstream, while calcium remains relatively constant, although locally variable. From the Piper diagram we see that along the mixing line observed for most monitor wells samples sodium and sulfate increase while calcium, magnesium, and carbonate decrease. The only mechanism of the above three to explain the sodium increase is cation exchange. The only mechanism of the above three to explain the sulfate increase is dissolution of gypsum. The only mechanism of the above three to explain higher calcium, magnesium, and bicarbonate is dissolution of calcite and dolomite, although calcium and bicarbonate are also effected by the infiltration of waters from the wildlife ponds. Thus it appears that all three mechanisms impact the groundwater chemistry at the site. 3.3 pH 3.3.1 Site Measurements A wide spread reduction in pH over time has been observed in monitoring wells at the White Mesa mill site (Intera 2008, Intera, 2012), although it is also noted that the TWN-series wells, which are located up gradient of the site, have not exhibited significant changes in pH over time. Figure 22 shows the variation in measured pH in the site monitoring wells over time. It is noted that the number of wells with reported pH increases greatly after 2004 (due primarily to the addition of the TWN and TW4 series wells), although the same variation in pH is observed for wells that have nearly continuous records as for the average of all wells with pH measurements. Prior to 2010, pH has fluctuated but remained relatively constant and slightly alkaline. However, during the last 6 years, the pH of the groundwater has begun to decrease at a fairly consistent rate resulting in a currently slightly acidic pH. The cause of the pH change has been attributed by EFR and their consultants to various causes including: • Fluctuations in the water level in the wells due to sampling or pumping result in oxidation of pyrite near the boring and resultant release of acidity. Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 49 • The observed change is reported to generally correspond with wells where the groundwater elevation is increasing due to increased oxygen provided by the wildlife pond infiltration. • Wells which are screened above the water table provide additional oxygen to the well resulting in oxidation of pyrite. Each of these theories is discussed below. FIGURE 22 – OBSERVED VARIATION IN GROUNDWATER pH WITH TIME Wells which are pumped for chloroform removal exhibit similar pH values to those observed in the monitor wells that are only periodically sampled (Figure 22). This occurs, although the water level within these wells fluctuates significantly over time due to cycling of the pumps. This indicates that periodic variation in water levels is not resulting in lowering of the groundwater pH. If sampling of the wells was causing periodic exposure and oxygenation of pyrite in the saturated zone in or near the boring, then this effect would be expected to be Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 50 more notable in the wells with lower hydraulic conductivity due to the longer time and depth of exposure from sampling. However, as shown in Figure 23, there is no observed relationship between hydraulic conductivity and the observed rate of decline of pH in the wells based on available measurements between 2005 and 2016. FIGURE 23 – HYDRAULIC CONDUCTIVITY VS OBSERVED DECLINE IN pH Figure 24 shows the average pH distribution at the site and the change in the groundwater elevation from 1994 to 2014. This figure shows no correlation between the change in water levels at the site and the current pH of the groundwater. The lowest pH values are found near the indicated source of the nitrate plume, near the southeast corner of tailing cell 2 (possible source of chloride plume), and below tailing cell 1. The highest pH values are found in wells MW-5, MW-11, and MW-20, which as previously explained have exhibited occasional elevated pH readings that do not occur naturally in groundwater, possibly related to well construction. Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 51 FIGURE 24 - PH IN 2014 VS CHANGE IN GROUNDWATER ELEVATION (1994 TO 2014) Figure 25 shows the annual rate of change of pH at the site compared to the annual rate of groundwater level change for the same period of time (2005 to 2014). It is noted that the large change in pH at MW-34 is based on only two years of measurements. This figure clearly shows that there is no correlation between the annual rate of change in pH and the corresponding annual rate of change in groundwater levels over the last 10 years, with the greatest reductions in pH occurring where water levels have changed the least. In the areas most influenced by mounding only small rates of pH change are observed, possibly due to the addition of bicarbonate from the infiltrating water. Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 52 FIGURE 25 - ANNUAL RATE OF CHANGE OF PH VS GROUNDWATER LEVEL (2005 TO 2014) Figure 26 shows the average annual rate of change in pH values measured in the site wells based on available data for the period (2005 to 2016) as a function of the height of the well screen above the groundwater surface (length of exposed well screen). There is no apparent relationship between the rate of observed changes in pH and the length of the exposed well screen. This indicates that exposed well screen is not the cause of the observed pH changes in the groundwater. Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 53 FIGURE 26 – HEIGHT OF EXPOSED WELL SCREEN VS CHANGE IN pH Although, it is observed that pH is generally declining across the site, the highest rates of change are observed in areas adjacent to or downgradient of the tailings cells, particularly those areas that are were not impacted by infiltration from the wildlife ponds. Seepage of tailings solutions would be expected to cause decreases in the groundwater pH due to the high acidity of the solutions. 3.3.2 Pyrite Oxidation Prior reports have attributed changes of pH to oxidation of pyrite within the Burro Canyon and Dakota sandstones (HGC, 2012, HGC, 2014). The oxidation of pyrite is controlled by several factors as discussed in detail by Nordstrom (1982) who states: “The oxidation of pyrite in aqueous systems is a complex biogeochemical process involving several redox reactions and microbial catalysis. Although oxygen is the overall oxidant, kinetic data suggests that ferric iron is the direct oxidant in acid systems and that temperature, pH, surface area, and the presence of iron and sulfur-oxidizing bacteria can greatly affect the rate of reaction.” The oxidation of pyrite (iron sulfide) requires two essential components: oxygen and water. Because of the extremely low solubility of oxygen in water (maximum of 8 mg/L at site Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 54 groundwater temperatures), oxidation of pyrite does not occur at any significant rate under saturated conditions. Measured dissolved oxygen in two perched aquifer wells located approximately 13,000 ft downgradient of the site ranged from 0 to 5 mg/L (USGS, 2011). For this reason, subaqueous disposal of sulfide containing mine wastes is commonly used to prevent sulfide oxidation as is flooding of mine workings. Thus if pyrite oxidation is occurring then it must be occurring above the pre-mill static water table (pre-mill vadose zone). However, pyrite in this zone has had a long period of time to oxidize (at least hundreds if not thousands of years) so it is not expected that significant amounts of unoxidized pyrite would remain in this zone due to the abundance of oxygen and water infiltration from precipitation. Inorganic oxidation of pyrite is not considered a self-sustaining reaction at near neutral pH since the formation of insoluble iron oxides will coat the mineral surface and terminate the reaction. The oxidation of pyrite is primarily caused by microbial regulated reactions. These microbes are hardy and can exist under near neutral pH and without significant nutrients (such as nitrogen, carbon, and phosphate). Under conditions of near neutral pH and normal ambient temperatures, these microbial controlled reaction rates are slow. Again the application of limestone covers or solutions has been used to control sulfide oxidation in mine wastes by maintaining near neutral pH. As the pH becomes more acidic (<4.5), the rate of reaction increases significantly, temperature increases due to the heat of the reaction, and pyrite oxidation occurs primarily due to reaction with ferric (Fe+3) iron which is now soluble and constantly replaced by microbial oxidation of ferrous (Fe+2) iron. Even when pyrite oxidation occurs, the reduction of pH can be controlled by the presence of alkalinity from carbonates. It is important to note that the creation of acidity from sulfide oxidation is due to the oxidation of the sulfur and not the associated metal. To support modeling of potential seepage from a proposed expansion of the tailings facilities, MWH (2010) analyzed 34 randomly selected samples of the Burro Canyon formation from four borings in the immediate vicinity of the proposed tailings facilities for acid neutralization potential (NP). The results of their sample analyses are summarized in Table 12 by well location, lithology, and depth. The results indicate variable amounts of neutralization potential with an average of 13.8 kg CaCO3 per metric ton. It is noted that all but the three deepest samples from TW4-22 were collected from the vadose zone. MWH also analyzed seven samples (including one duplicate) for measurement of the paste pH. The paste pH ranged from 7.7 to 8.1, averaging 8.0, indicating slightly alkaline conditions (i.e. the presence of soluble carbonates). The presence of carbonates in the perched aquifer is supported by the slightly alkaline pH (average of 7.4) reported in the initial years of operation between 1980 and 2005, as well as the current sampling measurements which indicate an average bicarbonate content of 343 mg/L across the site between 2005 and 2016. Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 55 TABLE 12 - SUMMARY OF NEUTRALIZATION POTENTIAL TESTS (MWH, 2010) NEUTRALIZATION POTENTIAL (kg CaCO3/1000 kg) SAMPLE LOCATION COUNT MINIMUM MAXIMUM ARITHMETIC MEAN MW-23 10 0.5 182 22.6 MW-24 9 2.0 27 7.0 MW-30 7 0.5 69 13.1 TW4-22 8 2.0 36 11.1 Upper Sandstone 18 1.0 69 10.1 Conglomerate 4 2.0 182 48.5 Siltstone 3 6.0 9 7.7 Lower Sandstone 9 1.0 27 7.7 29-54 ft. depth 16 0.5 69 10.3 54-79 ft. depth 12 0.5 182 21.3 79-104 ft. depth 6 4.0 27 7.8 All Samples 34 0.5 182 13.8 The presence of pyrite within the Burro Canyon formation has also been indicated. HGC (2012) in referencing previous studies (Shawe, 1976) noted: “pyrite is more common below the water table and iron oxides (likely formed by oxidation of pyrite) are more common in the vadose zone” with limonite identified as the observed weathering product from pyrite oxidation”. This is consistent with the previous statement that pyrite does not readily oxidize below the water table, and would have been expected to already have oxidized in the vadose zone where it forms iron oxides. HGC (2012) collected stored core and cuttings samples from various borings where pyrite was recorded in the drill logs for further testing. Unfortunately, the sample collection was not random but favored intervals that were believed to likely contain the highest pyrite concentrations. As stated in the HGC report, “…core or cuttings material from the above borings was screened to identify intervals likely to have pyrite. Sample screening consisted of using the portable XRF to measure the iron contents of samples having a greenish or grayish to white color consistent with reduced conditions. The samples having the highest iron were then selected for analysis.” Therefore, the sample analyses from the HGC study cannot be considered to represent the average conditions within the Burro Canyon formation, but rather conditions most favorable to pyrite occurrence. Selected samples were submitted either for optical microscopy (total of 18 samples) or x-ray diffraction (XRD) and total sulfur analysis (total of 12 samples), but not both. Optical microscopy photos identified pyrite as occurring mainly as part of the cement matrix holding the particle grains together. Optical microscopy is not a quantitative method but did provide Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 56 indications of the presence of pyrite in 17 of the 18 of the samples selected for testing, marcasite in 8 of the samples, and chalcopyrite in 2 of the samples, although 76% of the samples tested were collected from below the water table. Indicated marcasite content was generally much lower than pyrite, and chalcopyrite content was extremely low. There was no analysis presented of the indicated degree of pyrite oxidation. XRD provides a quantitative analysis of the principal minerals present in the 12 samples selected for testing. The results of the XRD and total sulfur analyses are summarized in Table 13 with an indicated precision and detection limit of 0.1% for each of the mineral species analyzed by XRD and 0.01% for total sulfur. The total “equivalent pyrite” presented in Table 13 is calculated from the measured total sulfur under the assumption that all sulfur is associated with pyrite (i.e. unoxidized). However, it is current practice to use sulfur present as sulfides (i.e. sulfide sulfur) instead of total sulfur, since sulfur present as sulfates (i.e. sulfate sulfur) is already oxidized and not acid generating. Also presented for comparison are the sample depths with reported depths to groundwater, which indicates if the sample was from the vadose (above water table) or saturated (below water table) zones. Of the 11 samples tested, 7 were from the saturated zone and only 4 were from the vadose zone. The XRD analysis also provides a quantitative analysis of pyrite, gypsum, and anhydrite, all of which contain sulfur. The weight percentage of sulfide sulfur (i.e. from pyrite) was calculated from the laboratory reported weight percentage of pyrite. The weight percentage of sulfate sulfur (i.e. from gypsum and anhydrite) was calculated from the reported weight percentage of gypsum and anhydrite. For comparison, the amount of sulfur as sulfate was also calculated from the laboratory reported concentration of total sulfur minus the calculated concentration of sulfur as sulfate. In general, this comparison shows reasonable agreement was obtained with the maximum difference within 0.1% (precision of the measurements) and the average difference being only 0.02%. Therefore, the total sulfur is not indicative of the pyrite concentration. Pyrite was not detected by the XRD analysis in any of the samples collected from above the water table (vadose zone) suggesting that most of the pyrite in the vadose zone is already oxidized. Pyrite was detected in all but one of the samples (MW-31 cuttings) collected from below the water table (saturated zone). Total iron was consistent for samples above and below the water table, with pyrite accounting for about 50% of the total iron in the samples from below the water table. Again this is consistent with the presence of significant pyrite only below the water table. The standard geochemical procedure for determining the potential for acid generation is acid- base accounting. Table 13 presents calculated acid generating potential (AP) and neutralizing potential (NP) based on this procedure. AP and NP are both expressed as equivalent amounts of CaCO3 per metric ton (i.e. 1000 kg) of material. It is important to note that this procedure does not take into account the rate of reactions. Kinetic (humidity cell) procedures are used to assess reaction rates under the most favorable oxidizing (i.e. moist unsaturated) sample conditions. Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 57 Calculations of AP, based on the calculated sulfide sulfur content and total sulfide content, produce only small differences as the total amount of sulfur present is very low. AP ranges from 0 to 13 kg CaCO3 per metric ton of rock based on sulfide sulfur with AP equal to 0 for all of the samples above the water table (vadose zone) and an average AP of 5 kg CaCO3 per metric ton of rock for samples below the water table. This calculation follows the standard procedure per EPA guidelines (EPA, 1994) that one mole of pyrite is neutralized by two moles of calcium carbonate per the following stoichiometric equation (Skousen et al, 2002) which assumes that carbon dioxide is off gassed (as would be expected in the vadose zone): Equation 1: FeS2 + 2CaCO3 + 3.75O2 + 1.5H2O → Fe(OH)3 + 2SO4-2 + 2Ca+2 + 2CO2↑ Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 58 TABLE 13 - SUMMARY OF THE XRD ANALYSES (data from HGC, 2012) MW-3A core MW-23 core MW-24 core MW-25 cuttings MW-26 cuttings MW-27 cuttings MW-28 core MW-29 cuttings MW-30 cuttings MW-31 cuttings MW-32 cuttings SS-26 play sand 89.5 108 118.5 65-67.5 90-92.5 80-82.5 88.5 102 65-67.5 95-97.5 105-107.5 N.A. Date on 2/21/2010 85.3 115 114.6 74.73 81.31 50.93 77.3 102 76.8 68.95 76.27 N.A. on 3/27/2014 84.6 117 113.7 73.44 68.8 52.59 75.6 101 74.73 67.45 74.27 N.A. Below water table?Yes No Yes No Yes Yes Yes No No Yes Yes N.A. Quartz SiO2 79.7 96.2 88.4 90 86.9 95.4 90.1 95.8 87 91.7 94.1 39.2 86.2 92.25 89.47 K-feldspar KAlSi3O8 ND 0.2 0.6 2.4 2.4 0.7 1.5 0.5 1.4 2 0.8 21.6 2.84 1.13 1.14 Plagioclase (Na,Ca)(Si,Al)4O8 ND ND ND 1.4 1.6 1.5 1.8 1.5 1.5 0.5 0.2 29 3.25 1.10 0.80 Mica KAl2(Si3Al)O10(OH)2 0.3 1.2 4.5 2.2 2 0.2 3 0.2 5.9 3.1 1.2 5.2 2.42 2.38 2.04 Kaolinite Al2Si2O5(OH)4 1.1 1 4.3 3.2 2.5 1.4 2.9 1.7 3.6 2.4 1.6 0.8 2.21 2.38 2.31 Calcite CaCO3 14 ND ND ND 3.9 ND ND ND ND ND 1.2 0.6 1.64 ND 2.73 Dolomite CaMg(CO3)2 4.1 ND ND ND ND ND ND ND ND ND ND ND 0.34 ND 0.59 Anhydrite CaSO4 0.4 0.8 0.4 0.4 ND ND ND ND ND ND ND ND 0.17 0.30 0.11 Gypsum CaSO4·2H2O ND 0.2 0.8 ND ND ND 0.3 ND 0.3 ND ND ND 0.13 0.13 0.16 Iron Fe 0.3 0.4 0.2 0.4 0.4 0.4 0.2 0.3 0.3 0.3 0.4 0.2 0.32 0.35 0.31 Pyrite FeS2 0.1 ND 0.8 ND 0.3 0.4 0.2 ND ND ND 0.5 ND 0.19 ND 0.33 Hematite Fe2O3 ND ND ND ND ND ND ND ND ND ND ND 1.4 0.12 ND ND Magnetite Fe3O4 ND ND ND ND ND ND ND ND ND ND ND 2 0.17 ND ND Total Sulfur S 0.14 0.14 0.63 0.05 0.13 0.15 0.04 0.03 0.02 0.02 0.26 0.02 0.14 0.06 0.20 Sulfide S S 0.05 0.00 0.43 0.00 0.16 0.21 0.11 0.00 0.00 0.00 0.27 0.00 0.10 0.00 0.18 "Equivalent Pyrite"From Total S 0.26 0.26 1.18 0.09 0.24 0.28 0.07 0.06 0.04 0.04 0.49 0.04 0.25 0.11 0.37 Sulfate S (method 1)Total S - Sulfide S 0.09 0.14 0.20 0.05 -0.03 -0.06 -0.07 0.03 0.02 0.02 -0.01 0.02 0.03 0.06 0.02 Sulfate S (method 2)Gypsum & Anhydrite 0.09 0.23 0.13 0.09 0.00 0.00 0.04 0.00 0.04 0.00 0.00 0.00 0.08 0.09 0.04 Sulfate S difference Difference 1 minus 2 0.01 0.09 -0.07 0.04 0.03 0.06 0.10 -0.03 0.02 -0.02 0.01 -0.02 0.04 0.03 0.02 AP (sulfide S)kg CaC03/1000 kg 2 0 13 0 5 7 3 0 0 0 8 0 3 0 5 AP (total S)kg CaC03/1000 kg 4 4 20 2 4 5 1 1 1 1 8 1 4 2 6 NP kg CaC03/1000 kg 144 0 0 0 39 0 0 0 0 0 12 6 17 0 28 NNP (sulfide S)143 0 -13 0 34 -7 -3 0 0 0 4 6 14 0 22 NNP (total S)140 -4 -20 -2 35 -5 -1 -1 -1 -1 4 5 13 -2 22 Average of all samples above water table Average of all samples below water table Net neutralization potential Concentration (% by weight) Sample Depth (ft) FormulaMineral Water Table Depth (ft) Average of all samples Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 59 The standard procedure for assessing NP is via titration of a sample in the laboratory with sulfuric acid to a pH of 6.0 or 3.5 (depending upon the procedure) to dissolve calcium and magnesium carbonates, although other procedures have been used to measure neutralization contributions from other minerals as well. In the absence of such test results, NP was calculated from the XRD measured calcium and dolomite weight percentages. NP ranges from 0 to 144 kg CaCO3 per metric ton of rock with no NP indicated for the samples above the water table (vadose zone) and an average NP of 28 kg CaCO3 per metric ton of rock for samples below the water table. Based on the previous testing by MWH (Table 12) there is potentially higher NP in the vadose zone than indicated in Table 13. For example the samples collected in the vadose zone for borings MW-23, 24 and 30 averaged 16 kg CaCO3 per metric ton of rock. Still the average NP for all of the XRD samples (17 kg CaCO3 per metric ton of rock) as well as the observed range of values is very close to the average measured NP in the MWH samples via standard laboratory procedures. The results of the AP and NP analyses are compared in Table 13 to evaluate net neutralization potential (NNP) of the Burro Canyon formation. NNP equals NP minus AP. The accepted criteria is that for NNP values greater than 20 kg CaCO3 per metric ton of rock, the rock is not considered acid generating. Only two samples (MW-3A and MW-26) meet this criterion, both located below the water table. For NNP values between -20 and 20 kg, the sample may or may not be acid generating and further kinetic testing is required to determine if the rock is acid generating. All of the remaining samples fall within this interval (including the play sand blank sample), with the majority very close to the center of this interval due to the presence of little or no AP or NP, particularly those collected within the vadose zone. The NNP result for MW-3A contradicts the predictions made by HGC that oxidation of pyrite would produce a reduction in pH as there is more than sufficient alkalinity in the sample to neutralize the acid generated. In summary, the results of the HGC testing are generally inconclusive as to the potential to generate sufficient acidity to lower the pH of the groundwater using standard acid rock drainage assessment methods. Most samples exhibit little or no acid generating potential and some exhibit significant excesses of neutralizing carbonates consistent with previous laboratory analyses of NP. HGC has shown the presence of pyrite by visual inspection, although the sample selection was significantly biased toward potential horizons containing pyrite and the visual results are not quantitative. The available quantitative assessments by XRD provided by HGC for similarly selected samples (although not of the same horizons) do no indicate detectable amounts of pyrite above the water table (i.e. weight percentages below 0.1%). Furthermore the total sulfur is not an indicator of additional pyrite (as presumed by HGC) as much of the sulfur is present as sulfate sulfur (i.e. in the form of gypsum and anhydrite) which is already oxidized. While all of the samples contain similar amounts of iron, this iron is indicated to not be present as pyrite and is probably present in other forms (per referenced observations of previous investigators). Limonite is a mixture of various amorphous hydrated ferric oxide-hydroxides that may be individually indistinguishable by XRD. Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 60 In lieu of kinetic testing, HGC (2012) conducted screening level and geochemical model (PHREEQC) calculations. The following observations pertain to those calculations: • The calculations apparently do not account for the rate of pyrite oxidation (no reaction rates are provided or indicated). The pyrite oxidation rate is very slow at near neutral pH, and even more so under saturated conditions. • The screening level calculations do not account for dissolution of calcium and magnesium carbonates present in the aquifer. It is also unclear why the modeling would show a reduction in pH at MW-3A when the carbonates present are more than sufficient to neutralize the pyrite present (i.e. sample is not acid generating). • Oxygen supply is essentially unlimited as the initial oxygen content in the geochemical model was adjusted to provide as much oxygen as necessary which is a valid assumption for the vadose zone. However, the simulations are all based on samples collected from the saturated zone where oxygen supply would be significantly limited and where pyrite concentrations were much higher (no pyrite was detected by XRD above the water table). • The modeling indicates reductions in pyrite concentrations of 33%, 6%, and 3% for MW- 3A, MW-24, and MW-7, respectively, over a period of 5 years. If pyrite actually reduces at this fast a rate in five years, then there would be no pyrite present at the site in the vadose zone after 15 to 170 years under natural (pre mill) conditions. Based on the results of our previous analyses in this section, the following observations and conclusions are presented: • Oxidation of pyrite below the water table is not expected to occur due to the very low solubility of oxygen in water and the slow rate of oxygen diffusion through water. In fact, subaqueous disposal of acid generating mine wastes is a proven and practiced method of preventing pyrite oxidation. This means that if oxidation of pyrite is occurring, it has to be occurring above the water table. However, as previously shown, water levels were increasing over the site with lower changes in pH observed where the highest changes were observed. • Diffusion of oxygen combined with natural barometric pressure fluctuations at the ground surface, as well as along the exposed outcrops of the Burro Canyon formation that border White Mesa can be expected to fully oxygenate the vadose zone at the mill site. Oxygenation of the vadose zone is also indicated by the presence of aerobic conditions within the underlying aquifer. It is also reasonable to assume that climatic conditions have been sufficiently stable for at least hundreds if not thousands of years that there has been little change in groundwater elevations prior to the mill construction. Thus any significant amounts of sulfides within the vadose zone (as defined by groundwater levels prior to the mill construction) would be expected to have completely oxidized over such a long time period. This is supported by the fact that no pyrite was detected in the XRD diffraction analyses in any of the samples from above the water table. Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 61 • Infiltration of oxygenated water from surface ponds is not expected to increase oxidation within the vadose zone as the solubility of oxygen in water is much lower than the capacity for oxygen movement through the saturated zone per the mechanisms described in the previous paragraph. The surface pond infiltration could actually reduce oxygen diffusion by increasing the saturation of certain layers within the Burro Canyon formation (reducing air flow and oxygen diffusion) including the potential creation of local perched zones. The discharge from the ponds has increased water levels over the entire area and could potentially flush residual sulfide oxidation products from the sandstones in pore spaces that are not usually water filled. However, this possibility is not supported by the measurements of paste pH or neutralization potential of vadose zone samples which suggest net alkalinity. Furthermore, rates of pH change are lowest in areas of the largest amount of flooding and highest in areas below the cells with the least amount of flooding. This suggests that seepage from the tailings cells is a more likely cause of the observed changes in pH. • Purging or pumping of wells can cause temporary lowering of the water table, exposing zones containing pyrite to oxygen. For well purging, this would be expected to be a fairly brief period of time which limits the amount of pyrite oxidation that can occur. For pumping or purging the effect would also be limited to the immediate vicinity of the wells as the hydraulic conductivity of the formation is relatively low. Based on hydrographs of the pumping wells MW-4 and MW-26, the groundwater mounding at the site has raised the water table sufficiently above the pre-mill levels, that subsequent pumping has not lowered the water table below the pre-mill levels. As previously shown, there is no evidence to indicate that pH values are lower in pumping wells which exhibit considerable water level fluctuations, or that the rate of pH change is greater in monitor wells with longer sections of the well screen exposed above the water table or lower hydraulic conductivity (which would expose more of the boring for a longer period of time during sampling). 3.4 Heavy Metals The average concentrations of heavy metals for each well are summarized in Table 10. The tailings solutions are characterized by a very low pH and very high concentrations of heavy metals so it is expected that any seepage from the tailings cells would result in an increase in heavy metals concentrations and a decrease in pH of the underlying groundwater. The ratio of the concentration of total dissolved solids in the tailings to that in upgradient groundwater is approximately 72:1, whereas the ratio of the concentration of total heavy metals in the tailings to that in upgradient groundwater is approximately 18,000:1. Therefore, any seepage from the tailings is expected to be most apparent in changes in heavy metal concentrations. The rate of migration of metals through the subsurface below the tailings facilities could be retarded by adsorption as well as changes in pH due to neutralization of the solution and consequent reduction in the solubility of some metals. However, no studies have been performed at the site to evaluate potential retardation of dissolved metal migration or Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 62 precipitation due to neutralization. Use of estimated retardation coefficients from published values fails to account for site specific characteristics. As noted by the U.S. EPA (1999) in discussing migration of dissolved metals: “It is important to note that soil scientists and geochemists knowledgeable of sorption processes in natural environments have long known that generic or default partition coefficient values found in the literature can result in significant errors when used to predict the absolute impacts of contaminant migration or site-remediation options. Accordingly, one of the major recommendations of this report is that for site-specific calculations, partition coefficient values measured at site-specific conditions are absolutely essential.” Retardation coefficients also assume: 1) that only trace amounts of the solute exist, 2) the relationship between the amount of solute in the liquid and solid phases is linear, 3) equilibrium conditions exist, 4) equally rapid adsorption and desorption occur, and 5) all adsorption sites are accessible and have equal access. Most of these conditions are violated for the site conditions due to: the very low pH of the tailings solution (pH variation is likely to dominate over adsorption although neutralization capacity may be limited due to the very low pH of the tailings solutions), the large number and concentration of the different metals in the tailings solutions (competition between different metals for available adsorption sites), and the very high concentrations of metals present in the tailings solution compared to the limited sorption capacity of the sandstone (average of about 90% quartz in the sandstone and only 2.3% kaolinite per XRD analyses meaning linear relationships between the liquid and solute phases would not exist except at very dilute concentrations). As evidence of this, high concentrations of dissolved metals were observed within the Tailings Cell 2 LDS, despite apparent neutralization of the collected solution. Several heavy metals including iron, manganese, selenium, thallium, uranium, and zinc have been detected in one or more of the upgradient wells (MW-1, 18, 19) indicating that these are naturally occurring in the perched aquifer or are present from upgradient sources. However, many more types of heavy metals have been detected in the groundwater below and downgradient of the tailings cells including arsenic, beryllium, cadmium, chromium, cobalt, copper, lead, mercury, molybdenum, nickel, and vanadium, as shown in Table 10 and Figure 27. Although iron, manganese, selenium, and zinc are detected in the upgradient wells, higher concentrations of iron, manganese, selenium, and zinc are often found in the groundwater below and downgradient of the tailings cells in association with the detection of other heavy metals. The wells below the tailings cells exhibiting the largest number of heavy metals detected and/or the highest concentrations of heavy metals include: MW-24 and MW-28 (downgradient side of tailings cell 1); MW-26, 29, 20, and 32 (Tailings Cell 2); MW-11, 12, 23, and 25 (Tailings Cell 3); and MW-35 (Tailings Cell 4B). Figure 27 suggests the highest amount of seepage is from Tailings Cells 1 and 2 and heavy metals are detected more frequently below these cells. These are the oldest tailings cells, which has permitted more time for seepage to reach the water table. Tailings Cell 1 has also remained filled with solution and has been absent of tailings solids during the entire operating life of the mill, which provides a higher driving head for seepage. High concentrations and numbers of heavy metals are also found in the monitoring wells Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 63 downgradient of the tailings cells, particularly MW3, 3A, and MW-22. These include all of the heavy metals found in the groundwater below the tailings cells except arsenic and chromium. FIGURE 27 - HEAVY METALS IN MONITORING WELLS Wells with a pH below 7 or equivalently a hydrogen ion concentration greater than 0.1 µg/L (i.e. slightly acidic) typically exhibit higher concentrations of some metals including cadmium, cobalt, manganese, nickel, and zinc (Figure 28). While the solubility of many metals is pH dependent, some including cobalt and nickel are only weakly dependent within the small range of pH variations observed (Figure 29) with an expected water solubility in excess of the observed concentrations. Figure 29 shows this relationship based on testing of a simulated low pH waste water solution containing 13 heavy metals and neutralized with sodium hydroxide. Although it is noted that solubility varies with the specific solution composition the test solution is reasonably similar to the tailings solution waters. Furthermore, metal solubility as a function of pH is distinctly different for different metals. As shown in Figure 28 the concentrations of cadmium, cobalt, manganese, nickel, and zinc in site groundwater only increase below a pH of 7, which would not be expected for all five of these metals based on solubility constraints. Therefore, the association of low pH and high metals appears to be the result of the source chemistry (seepage of solution from the tailings cells) and not changes in solubility. High Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 64 concentrations of iron (whose solubility is very pH dependent) are only found in the wells with pH values of 6.8 or less (MW-24, 26, 29, 32), although iron is not found at relatively high concentrations in some wells with low pH (MW-28 and MW-22). Iron is not expected to be as easily transported by groundwater due to its strong dependency of solubility on pH and quick oxidation under aerobic conditions to normally insoluble ferric oxides and oxyhydroxides. FIGURE 28 - VARIATION OF Cd, Co, Mn, Ni, and Zn CONCENTRATIONS WITH pH Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 65 FIGURE - 29 INDICATED SOLUBILITY LIMITS OF HEAVY METAL CONCENTRATIONS FOR pH OF 5 AND 7 A comparison of the heavy metals concentrations in groundwater below the tailings cells with the tailings cell solutions is shown in Figure 30 using a Schoeller diagram. Because concentrations are presented on a logarithmic scale, the exhibited patterns at different dilutions would generally be the same providing a fingerprint of the contaminant source. Note that the tailings solutions are plotted on the right hand scale, while the other data is plotted on the left hand scale. The scales are aligned to show an equivalent 0.1% of the tailings solution concentration in groundwater. Also presented on this figure are the estimated solubility limits for pH values of 5 and 7 taken from Figure 29 or similar published test results for manganese (Mn, Fe, SO4 solution) and selenium (Se, Fe solution). The patterns observed show a general similarity in the relative concentrations of the various heavy metals, particularly for Tailings Cell 1, suggesting that the tailings solution is a likely source for the observed heavy metals concentrations in groundwater below the tailings cells. Concentrations of chromium, copper, silver, vanadium, and zinc in the groundwater are lower than expected due to limits on the solubility of these metals in the range of groundwater pH values (silver was not detected in the solubility test at a detection limit of 0.1 µg/L). Iron is the only compound whose groundwater concentrations exceed the indicated solubility limit for pH 7, although it is only detected in Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 66 association with lower pH values. Tin is found at lower than expected concentrations because the detection limit was normally 100 µg/L and non-detected values were assumed to be zero as previously discussed. Iron, manganese, selenium, and thallium are somewhat higher because of natural background concentrations. FIGURE 30 - COMPARISON OF HEAVY METALS CONCENTRATIONS IN TAILINGS SOLUTION WITH GROUNDWATER Figure 31 shows a comparison of the solution collected from the Tailings Cell 2 LDS with that from two monitoring wells (MW-24 and MW-28) located between Tailings Cells 1 and 2. As stated previously, the solution from the Cell 2 LDS has a neutral pH and is considered to be more representative of tailings seepage that currently reaches the site groundwater. Wells MW-24 and MW-28 are located in an area with suggested tailings seepage. The measured concentrations are very similar which suggests the influence of tailings cell seepage. Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 67 FIGURE 31 - COMPARISON OF HEAVY METALS CONCENTRATIONS FOR CELL 2 LDS AND MW-24 AND MW-28 Figure 32 provides a direct comparison and linear regression of the concentrations presented in Figure 31 with concentrations of non-detected metals assumed at one-half of the detection limit. This comparison indicates a statistically significant correlation within the 99% confidence interval which supports the interpretation that the metals concentrations observed in these wells are related to seepage from the adjacent tailings cells. Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 68 FIGURE 32 - COMPARISON OF HEAVY METALS CONCENTRATIONS FOR CELL 2 LDS AND MW-24 AND MW-28 Figure 33 shows the distribution of heavy metals concentrations at the site as measured from 2005 to 2016. The highest concentrations of heavy metals are found in the vicinity of Tailings Cells 1 and 2. Total heavy metals other than iron and manganese decrease significantly in wells MW-5 and MW-11. As discussed previously, these wells have exhibited pH values that are higher than expected for natural groundwater. As noted previously, much higher concentrations of heavy metals are detected below and downgradient of the tailings cells than within the upgradient wells supporting the interpretation that seepage from the tailings cells is the cause of the higher observed concentrations. If the change in concentrations is due to local geochemical influences which would have been present prior to the mill operation, then the question arises as to how these metals concentrations could increase so significantly in one area and then dissipate so rapidly a short distance downstream. While there is clearly a relationship between reductions in pH and an increase in metals as shown previously in Figure 28, the indicated solubility of some metals (such as nickel and cobalt) are only very weakly related to pH (particularly within the small variation of pH observed), and their solubility at the observed pH levels is generally higher than the observed concentrations and thus they would not be expected to precipitate from solution. Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 69 FIGURE 33 - HEAVY METALS CONCENTRATIONS IN GROUNDWATER 3.5 Organic Constituents Organic constituents are not naturally occurring in groundwater and are clear indications of recent seepage sources. Most organic compounds were not in use prior to the 1940s when they were first developed for commercial use. An analysis of the data was performed to determine the current distribution of organic constituents and the effectiveness of current remedial efforts. Table 10 summarizes the average concentrations of organic constituents found in the MW series wells at the site from 2005 to 2014. Acetone, benzene, carbon tetrachloride, chloroform, chloromethane, methyl ethyl ketone (MEK), methylene chloride, tetrahydrofuran, toluene, and xylenes have all been detected at least once at the site. Chloromethane, tetrahydrofuran, and toluene have all been detected in upgradient wells, although generally infrequently except for tetrahydrofuran in MW-1. In the tailings cell solutions detected organic constituents include acetone, chloroform, chloromethane, MEK, methylene chloride, naphthalene, tetrahydrofuran, Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 70 toluene, and xylenes. The detection limits for organic compounds in the tailings solutions is highly variable, with some high detection limits resulting in non-detections in certain years. Acetone, chloroform, and chloromethane are the most frequently detected. Interestingly, the concentrations measured in the Cell 2 slimes drain, and the Cells 4a and 4b LDS are generally higher than that measured in the impounded solution, indicating loss to volatilization. However, the measured concentrations of organic compounds in the tailings solution are generally low, suggesting that the tailings solutions are not a significant source of organic compounds in the subsurface. Within groundwater below or near the tailings, acetone, carbon tetrachloride, chloroform, chloromethane, MEK, methylene chloride, tetrahydrofuran, toluene, and xylenes have been detected, although generally infrequently and at low concentrations. The highest concentrations of organics are found in the area of the chloroform plume which extends from the mill site (somewhere east of Tailings Cell 1) to south southeast for approximately 3,000 ft (Intera, 2009), and includes monitor wells MW-4 and MW-26. The chloroform plume has been further defined by additional temporary monitoring wells (TW4 series) dedicated to this purpose. There are currently 14 wells that are regularly pumped for chloroform removal (TW4- 1, 2, 4, 11, 19, 20, 21, 22, 24, 25, 37, and 39 and MW-4 and 26), or 6 more than in 2014. Figure 34 shows the extent of the chloroform plume in 2013 and 2016. As can be seen from this figure, that despite continued pumping efforts, the chloroform plume has generally increased in both size and magnitude over the last three years as it continues to move downstream as well as spread laterally along the migration pathway. While some of this may be attributable to the reduction in dilution associated with the former wildlife ponds, it would appear that there is a continuing contributing source present near the northeast corner of Tailings Cell 2. The highest chloroform concentrations are found near the northeast corner of Tailings Cell 2, although the exact upgradient extent of the plume is not well defined due to the lack of monitoring points in this area. Based on the current plume configuration shown in Figure 34 for 2016, the saturated aquifer thickness presented in Figure 3, and the measured aquifer porosity of 17.3%, the estimated mass of chloroform currently in the aquifer is estimated to be approximately 870 kg (1,900 lbs). This estimate does not include any adsorption of chloroform to the aquifer solids. This is comparable to the 1711 to 2261 lbs quarterly estimates for 2016 presented in the most recent chloroform monitoring report (EFR, 2016). The same report indicates that chloroform is currently being removed at a rate of about 100 lb/yr, compared to an average removal rate of approximately 60 lbs/yr as previously reported for the period 2007 to 2014 (Energy Fuels Resources, 2014e), which is attributable to the additional pumping wells installed. Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 71 FIGURE 34 - CHLOROFORM CONCENTRATIONS The net change in the chloroform concentrations between 2016 and 2013 is shown in Figure 35. Over the last three years, chloroform concentrations have only decreased in two areas, at the upgradient end of the plume (near TW4-22) and in the downgradient portion of the plume in the vicinity of MW-4. The largest increases observed increases are at TW4-19 (4435 µg/L or 216%), TW4-20 (3225 µg/L or 215%), TW4-11 (2247 µg/L or 365%), TW4-6 (251 µg/L or 53%), and TW4-8 (114 µg/L or 148%). Although pumping is occurring in the areas of highest observed concentrations, the pumping system is not currently preventing further downgradient or lateral migration of chloroform. Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 72 FIGURE 35 - CHLOROFORM CONCENTRATIONS Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 73 Tetrahydrofuran has been detected with some frequency at MW-5 and MW-12 (southwest side of Tailings Cell 3) as well as at downgradient well MW-3, although not at average concentrations exceeding those found in upgradient well MW-1. 3.6 Isotope, CFC, and Noble Gas Studies Additional groundwater chemistry studies include isotope, chlorofluorocarbon, and noble gas measurements (Hurst and Solomon, 2008; USGS, 2011). These studies were reviewed to provide additional insight into the sources and ages of groundwater at the site. 3.6.1 Isotope Studies Tritium, which arises from atmospheric sources due to nuclear testing in the 1950s to 1970s, is an indication of fairly recent groundwater recharge. Atmospheric tritium concentrations over Utah peaked in 1963 at about 180 TU and are currently about 5 or 6 TU. Measured tritium levels in the wildlife ponds and tailings solutions are similar with values ranging from 5.54 to 6.63 TU although a considerably lower tritium level of 0.99 TU was measured in the Tailings Cell 2 slimes drain. Figure 36 shows the distribution of tritium in the wells, wildlife ponds, and springs. As expected, the recharge from the wildlife ponds is seen to impact tritium levels in the areas surrounding the ponds. Upgradient well (MW-19) which is closest to the north wildlife ponds had tritium levels of 3.54 TU, compared to up to 0.02 and 0.05 TU for upgradient wells MW-1 and MW-18. The highest level of tritium (8.67 TU) was found in MW-27 near the northwest corner of the mill, which suggests a separate recharge source in this area as discussed previously. Elevated levels of tritium were also detected in Entrance Spring (4.20 TU) which is expected given its close proximity to the north wildlife ponds, but also in Cottonwood Spring (not shown in Figure 36) at 5.45 TU which is not expected given that the source of this spring is in the Brushy Basin formation (not the perched aquifer). This suggests mixing of this spring discharge with surface waters. Other monitoring wells with measured tritium (in at least one sample) included MW-2 (0.24 TU), MW-11 (up to 0.05 TU), MW-14 (up to 0.36 TU), MW-22 (up to 0.87), and MW-29 (up to 0.07). Wells where tritium was not detected included wells MW-3, 3A, 5, 30, and 31. These low concentrations of detected tritium could be the influence of lesser sources of surface recharge or seepage. The presence of any measurable amount of tritium indicates the groundwater contains at least some recharge water younger than 1954. Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 74 FIGURE 36 - TRITIUM CONCENTRATIONS Deuterium and oxygen-18 isotope ratios were measured in samples collected from selected monitoring wells, the wildlife ponds, and the Tailings Cell 3 solution (Hurst and Solomon, 2008). These measurements were later supplemented with different sampling points around the site including Entrance, Westwater (Mill) , Ruin, and Cottonwood (Cow Camp) groundwater springs, one upgradient agricultural well (Lyman Well), a stock watering pond (South Mill Pond), Recapture Reservoir, and two downgradient deep wells completed in the Navajo Sandstone (USGS, 2011). The relationship between deuterium and oxygen-18 isotope ratios is compared to the global and arid zone meteoric lines in Figure 37. Groundwater at the site as well as water from the South Mill Pond lie along a line between water from the Navajo Sandstone and Recapture Reservoir (both of which have been used as a water supply at the mill site). Wells MW-19, MW- 27, and Entrance Spring all have nearly identical isotopic signatures to that of Recapture Reservoir. In comparison, the site monitoring wells, springs and stock watering pond are depleted in deuterium and oxygen-18, while the upstream agricultural well, the wildlife ponds, Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 75 and the tailings water are enriched in these heavier isotopes due to evaporation losses (causing them to fall above the meteoric lines). FIGURE 37 - OXYGEN-18 VS DEUTERIUM ISOTOPE RATIOS Figure 38 shows the distribution of the deuterium and oxygen-18 isotope ratios which clearly indicates the influence of the wildlife ponds in a similar manner to that seen for tritium. Wells MW-27, MW-19, and Entrance Spring have slightly enriched deuterium and oxygen-18 relative to most groundwater at the site, although for MW-27 a separate seepage source is suspected as previously discussed. Below and just upstream of the tailings cells, both deuterium and oxygen 18 are more depleted, possibly from the prior use of water from the Navajo Sandstone during the early years of operation. Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 76 FIGURE 38 - DISTRIBUTIONS OF DEUTERIUM AND OXYGEN-18 ISOTOPE RATIOS Figure 39 shows the relationship between sulfate oxygen-18 and sulfate sulfur-34 isotope ratios at the mill site as reported by Hurst and Solomon (2008) for the site monitoring wells, wildlife ponds, and tailings and the USGS (2011) for the Entrance, Westwater (Mill) , Ruin, and Cottonwood (Cow Camp) groundwater springs. The isotopic ratios of sulfur-34 and oxygen-18 are similar for the wildlife ponds, the tailings, and well MW-27, showing oxygen-18 enrichment and sulfur-24 depletion. Although the similarity of the sulfate isotope ratios of MW-27 has been related to the wildlife ponds, MW-19 which is much closer to the ponds and has similar deuterium and oxygen-18 ratio is not similar to MW-27 or the wildlife ponds with regard to the sulfate isotopes. This supports the previous indication of a separate recharge source near the northwest corner of the mill and that this source appears to be related to process solutions at the mill. Figure 39 shows a general tendency for oxygen-18 enrichment with sulfate-34 depletion. Although it has been suggested that this is due to evaporation, this would lead to both sulfur-34 and oxygen-18 enrichment. A more likely explanation is that dissolution of gypsum and anhydrite is occurring from the infiltration of the pond waters and the isotopic composition of the sulfate in these minerals is influencing the isotopic ratio observed in the monitoring wells. This is supported by the observation that oxygen-18 is depleted and sulfur-34 Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 77 enriched as sulfate concentrations in groundwater increase at the site. Gypsum and anhydrite have been shown to contain higher sulfur-34 ratios (δ34S of 14 to 18‰) in a recent study in western Colorado (Nordstrom et. al., 2007). Water from MW-22 exhibits a unique sulfur-34 to oxygen-18 ratio, although the cause of this cannot be ascertained. FIGURE 39 - SULFUR 34 VS OXYGEN 18 RATIOS Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 78 3.6.2 CFC Studies Chlorofluorocarbons (CFCs) in groundwater are a result of atmospheric sources due to releases of these compounds from the 1940s through the 1990s. The Hurst and Solomon (2008) measured concentrations of these organic compounds in groundwater and calculated corresponding apparent ages (recharge dates) for the groundwater by assuming that the concentration of CFCs is fixed at the time that the precipitation falls on the land surface and infiltrates to recharge the aquifer. Generally speaking higher concentrations of CFCs correspond to more recent apparent ages. Table 14 summarizes the calculated recharge dates from their report. It is noted that there are discrepancies between the text and the table of values presented in the report as valid results. There is also considerable discrepancy in indicated ages calculated for different CFCs, indicating significant uncertainty in the calculated ages (average standard deviation of 6.4 years between different CFCs). Six samples had no detectable CFC-113 (which has the lowest atmospheric concentration), although other CFCs were detected in the same sample. Two samples had very high concentrations of CFC-12 relative to the other CFCs. To further complicate things, different recharge temperatures were assumed although it is not clear that recharge temperature selection relates to actual site conditions for most cases. To compare the samples an average data was calculated from all three samples. Where one sample was in significant disagreement with the other samples (values highlighted in yellow in Table 14), this value was ignored and the average date was calculated from the remaining values (corrected average in Table 14). The corrected results generally show apparent groundwater recharge dates ranging from 1959 to 1985. This is equivalent to groundwater ages of 23 to 49 years (relative to the date of sample collection or 2007), and are indicative of relatively recent groundwater recharge. This would suggest that the perched groundwater at the site is locally recharged, given previous estimates of groundwater velocities. However, water in the wildlife ponds had apparent ages of 34 to 41 years, which would appear inconsistent with the fact that the water in the ponds is from Recapture Reservoir which presumably is composed mainly of surface runoff (i.e. younger waters). The youngest waters (apparent ages of 22 to 33 years) are generally found in areas that are not impacted by the wildlife ponds (for example MW-1, 23, and 3A), while the oldest waters (apparent ages of 40 to 48 years) are found below the tailings facilities (for example wells MW-5, 11, 14, 15, 29, and 31). This distribution of ages suggests that the apparent ages are not actual ages, but simply reflect different concentrations of CFCs due to different water temperatures and atmospheric exposure. The low CFCs below the tailings could be due to the presence of the lined tailings facilities above these areas combined with seepage from the facilities that would reduce atmospheric interaction with the groundwater, or it could indicate that CFCs are reduced during evaporation from the ponds resulting in older apparent ages due to seepage below the ponds (no CFC samples of the tailings solution were analyzed). The intermediate ages of the wildlife pond recharge water could be due to higher temperatures of this water combined with pond evaporation, which would reduce dissolved organic compounds. The youngest waters are associated with areas where the most stable groundwater conditions occur. The report also states: “Samples collected near the water table are always higher in concentration than deeper samplers”. In fact just the opposite is true with Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 79 corresponding older ages observed for the shallower samples. Given all of the observed discrepancies, no truly meaningful interpretation of the CFC sample results appears to be possible. TABLE 14 - APPARENT GROUNDWATER RECHARGE DATES FROM CFC MEASUREMENTS SAMPLE ID CALCULATED RECHARGE DATE AVERAGE CORRECTED AVERAGE MEAN CFC-11 MEAN CFC-12 MEAN CFC-113 MW-1 1984.0 2001.5 1980.0 1988.5 1982.0 MW-1B 1985.0 1991.0 1980.0 1985.3 1985.3 MW-2 1979.5 1983.0 1984.0 1982.2 1982.2 MW-3 1971.0 1972.5 1980.0 1974.5 1974.5 MW-3A 1981.5 1989.5 1985.5 1985.5 1985.5 MW-5 1969.5 1966.5 1943.0 1959.7 1968.0 MW-11 1961.5 1958.0 1943.0 1954.2 1959.8 MW-14 S 1962.0 1957.0 1943.0 1954.0 1959.5 MW-14 D 1961.5 1958.0 1943.0 1954.2 1959.8 MW-15 1967.0 1971.0 1963.5 1967.2 1967.2 MW-18 S 1967.5 1967.5 1967.5 MW-18 D 1974.5 1961.5 1971.0 1969.0 1969.0 MW-19 S 1975.0 1978.5 1971.5 1975.0 1975.0 MW-19 D 1975.5 1981.5 1979.5 1978.8 1978.8 MW-27 1967.5 2001.5 1963.5 1977.5 1965.5 MW-29 1967.0 1965.0 1943.0 1958.3 1966.0 MW-31 1970.5 1978.5 1943.0 1964.0 1974.5 North WLP 1973.5 1962.0 1967.8 1967.8 South WLP 1973.5 1975.0 1974.5 1974.3 1974.3 3.6.3 Noble Gas Studies The Hurst and Solomon (2008) also measured concentrations of dissolved noble gases (3He, 4He, 20Ne, 40Ar, 84Kr, and 129Xe) in selected monitoring wells, tailings solution (Tailing Cells 1, 3, and the slimes drain of Tailings Cell 2), and the wildlife ponds. Figure 40 shows the distribution of the concentration of noble gases expressed as a ratio of their average concentration (i.e. 1.20 equals 20 percent higher than average concentration). This figure clearly shows higher concentrations of noble gases associated with the wildlife ponds and associated seepage, as well as a smaller increase below the western side of Tailings Cell #2 near an area of expected seepage. Noble gas concentrations within the tailings solutions were variable with ratios of 0.62 and 0.92 for solutions from Tailings Cell 3 and Tailings Cell 1, but a high ratio of 6.88 for the Tailings Cell 2 slimes drain. Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 80 FIGURE 40 - NOBLE GASES IN WILDLIFE PONDS AND GROUNDWATER AS RATIO OF AVERAGE CONCENTRATION 4.0 SUMMARY AND CONCLUSIONS Based on a review and analysis of the available data and reports of groundwater monitoring at the White Mesa Uranium Mill site, the following observations and conclusions are noted. The original three tailings cells (Cells 1, 2, and 3) are between 35 and 37 years old and are single lined. As all liners leak to some degree, and given the current age of the liners, some leakage has certainly occurred over time from these facilities. Direct evidence of this are previously reported leaks from Cell1 (2010) and Cell 3 (1991, 2009, and 2010). Leakage through the primary liner in the double lined cells (Cells 4a and 4b) has been reported in for every year between 2009 and 2014 for Cell 4a (although the cell was relined in 2007 and 2008) and in Cell 4b in 2011, 2012, and 2014. Although leakage through the primary liner of Cells 4a and 4b is likely contained by the secondary liner, there is no secondary liner for Cells 1, 2, and 3 so this is indirect evidence that some leakage is occurring from the original three tailings cells. The leak detection systems for the original three cells are inadequate to detect slow leakage as they require saturation of the underlying cell base to detect leakage. It is strongly recommended Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 81 that a liner leakage survey be conducted for the original three cells to evaluate potential leakage from these cells. Other indicated releases at the site do not appear to be directly related to the tailings cells. Roberts Pond, a lined pond located near the northwest corner of the site that was normally filed with liquids from process spills and plant site runoff, is known to have leaked (due to liner damage) in 2002, 2012, and 2014 before finally being closed. Only limited assessment has been conducted to evaluate potential impacts from this pond. The former Fly Ash Pond located near the southwest corner of the mill site was used to store fly ash until 1989 (when the ash was removed) and subsequently plant site runoff and occasional process spills (waters high in nitrate and heavy metals) until 1991. Both of these facilities are within the area of the nitrate and chloride plume areas. There is also indicated localized groundwater mounding in the vicinity of TWN-2 (northwest corner of the mill) as well as high tritium in neighboring MW-27. Measured distributions of chloride suggest a source near the southwest corner of the mill and measured distributions of nitrate suggest two potential sources, one near the northwest corner of the mill and one near the southwest corner of the mill. Gradual rises in groundwater levels in four of the tailings cell monitoring wells (MW-4 since 1984, MW-11 since 1982, and MW-14 and 15 since start of monitoring in 1989) predate the observed effect of the wildlife ponds which began in about 1993 and are indicative of some release near or upgradient of these points. The groundwater levels at the site have raised significantly due to seepage from the wildlife ponds with a maximum rise of up to 40 feet since 1994. Fresh water as well as some sewage reclaim water (from mid-1980s to 1991) was discharged to the wildlife ponds. The seepage from the wildlife ponds does not appear to be significantly impacting water quality at present, although it has impacted groundwater flow directions and is expected to continue to do so for another 11 to 14 years due to the slow rate of seepage from the ponds to the water table surface. Estimates of travel times for vertical seepage from ground surface to the water table ranges from 4.6 to 16 feet per year. This means that releases may be occurring that are not yet being seen in the monitoring wells and that closure monitoring will be required for many years after final facility closure. Past predictions of the rate of contaminant migration downstream of the facility (Titan, 1994; HGC, 2009) have been one to two orders of magnitude slower than actual observed rates from the documented releases. It has recently been argued (HGC, 2014) that downgradient migration will be much slower than observed upstream migration. However, past migration patterns have been significantly influenced by conductive channels and zones within the perched aquifer that were only identified during subsequent investigation of the chloroform and nitrate-chloride releases, and it is considered highly probable that similar channels and zones also exist downgradient of the facility. Observed water level changes in downgradient wells as the result of groundwater mounding below the former wildlife ponds, including MW- 22, support the existence of such channels. Downgradient investigations have focused only on the southwestern portion of the aquifer, which is either unsaturated or only very slightly saturated, whereas much higher saturated thickness is observed to the southeast. Downstream Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 82 migration has also been assumed to follow perpendicular to indicated contours of piezometric head, when actual directions of groundwater flow are likely to deviate from this direction due to the presence of more conductive zones. Indeed this is evidenced by the observed movement of the chloroform and nitrate-chloride plumes downstream of their source areas. Additional investigation and monitoring of the southeastern portion of the site is required to better identify potential migration routes and groundwater impacts. Groundwater at the site is generally characterized by high sulfate content and very low chloride content outside the chloride plume area, with variable calcium and magnesium vs sodium content. Natural groundwater quality appears to be influenced primarily by three mechanisms: • Dissolution of calcite and dolomite which results in higher calcium, magnesium, and bicarbonate • Dissolution of gypsum (and anhydrite) which results in higher calcium and sulfate • Cation exchange with kaolinite clay which results in lower calcium and higher sodium Recharge from the wildlife pond seepage appears to contribute waters with higher calcium and bicarbonate and lower sodium and sulfate, although the source of these pond waters has changed over time and the chemistry of these waters is likely influenced significantly during seepage through the subsurface (former vadose zone) below the ponds. The pH of the site groundwater remained slightly alkaline until about 2010, after which there is a significant trend of decreasing pH with time. Previous studies (Intera, 2012; HGC, 2012) have suggested that this change is associated with rising water levels at the site, although there is no correlation between the magnitude of water level rises and current average pH values. Furthermore, the rate at which pH is declining is slower in areas with higher rates of water level increases than in the areas with lesser rates of water level increases. Other studies (HGC, 2012) have attributed the change to oxidation of pyrite within the aquifer. However, detectable quantities of pyrite (greater than 0.1%) were not found in the vadose zone (above the water table) despite that fact that sampling was biased towards samples expected to contain higher concentrations of pyrite (i.e. exhibiting high iron content and visual evidence of reduced conditions). Pyrite does not readily oxidize below the water table surface due to lack of oxygen (measured dissolved oxygen ranges from 0 to 5 mg/L in downgradient wells as cannot exceed 8 mg/L based on groundwater temperatures), and water tables have been rising site wide due to seepage from site facilities, not declining since the start of mill operations. This indicates that any pyrite oxidation must be occurring above the water table. However, pyrite above the water table would have been expected to already have oxidized over the last hundreds to thousands of years of expected stable groundwater conditions prior to mill operation. Furthermore, the measured paste pH of vadose zone samples is alkaline which indicates that accumulation of pyrite oxidation products has not occurred. More recently EFR and their consultants have suggested that pyrite is being oxidized due to localized lowering of the water table due to fluctuating water levels as a result of chloroform pumping or groundwater sampling. However, pH changes in pumping wells with fluctuating water levels are the same as observed in Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 83 monitoring wells and there is no correlation of observed pH changes with the amount of exposed well screen above the water table, or the hydraulic conductivity (i.e. amount of drawdown during sampling) of the well. Seepage from the tailings cells (particularly the older cells) is indicated by both higher concentrations and types of heavy metals detected, reduced pH (increased acidity), and lower bicarbonate concentrations. The indicated rate of seepage is currently low, although it is likely masked to some degree by the much higher seepage from the wildlife ponds and other sources. Because the total heavy metal concentrations in the tailings solution is approximately 18,000 times higher than that in the upgradient groundwater (compared to 72 times higher for TDS), the impact on the groundwater chemistry is expected to be more significant. The heavy metal concentrations in wells MW-24 and MW-28 are statistically correlated with those from the Tailings Cell 2 LDS further pointing to tailings seepage as a source of these metals. If the change in concentrations is due to local geochemical influences which would have been present prior to the mill operation, then the question arises as to how these metals concentrations could increase so significantly in one area and then dissipate so rapidly a short distance downstream. While there is clearly a relationship between reductions in pH and an increase in the concentration of heavy metals, the indicated solubility of some metals (such as nickel and cobalt) are only very weakly related to pH (particularly within the small variation of pH observed), and their solubility at the observed pH levels is generally higher than the observed concentrations and thus they would not be expected to precipitate from solution. Although previously it was thought that the chloroform plume seemed to be stabilizing, more recent data shows that the chloroform plume has generally increased in both size and magnitude over the last three years as it continues to move downstream as well as spread laterally along the migration pathway. While some of this may be attributable to the reduction in dilution associated with the former wildlife ponds, it would appear that there is a continuing contributing source present near the northeast corner of Tailings Cell 2. This is occurring despite increased pumping (approximately 100 vs 60 lbs/yr) within the plume area. The plume is estimated to currently contain approximately 1900 lbs of chloroform. Apart from the chloroform plume area, organic constituents are infrequently detected and average concentrations have not exceeded those found in upgradient wells. Additional site investigations include measurement of isotopes (deuterium, tritium, oxygen-18, and sulfur-34), noble gases, and chlorofluorocarbons. The isotope and noble gas study results are dominated by the substantial recharge from the wildlife ponds with higher levels of tritium, higher isotope ratios of deuterium and oxygen-18, and dissolved concentrations of noble gases. However, these data suggest that a second recharge source is located near the northwest corner of the mill site as indicated by higher tritium levels and a sulfur-34 to sulfate oxygen-18 ratio similar to the process solutions and wildlife ponds in MW-27 that is not found in other wells at the site. Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 84 5.0 REFERENCES Dames and Moore (1978) as cited by International Uranium (2000). Denison Mines USA (2007) White Mesa Uranium Mill, License Application, February 28. Energy Fuels Resources USA (2014a) Renewal Application State of Utah Groundwater Discharge Permit No. UGW370004, June. Energy Fuels Resources USA (2014b) Public Participation Summary, Dawn Mining Alternative Feed Request. July 10. Energy Fuels Resources USA (2014c) White Mesa Uranium Mill Nitrate Monitoring Report, 4th Quarter (October through December) 2013. February 21. Energy Fuels Resources USA (2014d) White Mesa Mill 2014 Annual Tailings Wastewater Report, Tab D: Chemical and Radiological Summary Tables. Energy Fuels Resources USA (2014e) White Mesa Uranium Mill Chloroform Monitoring Report, 1st Quarter (January through March) 2014. May 19. Energy Fuels Resources USA (2015) Roberts Pond Excavation Report. April 6. Energy Fuels Resources USA (2016) White Mesa Uranium Mill Chloroform Monitoring Report, 4th Quarter (October through December) 2016. February 22. Roberts, Harold (2004) Supporting Information for GWDP. E-mail to Loren Morton, February 19. Hurst T.G. and Solomon D.K. (2008) Summary of work completed, data results, interpretations and recommendations for the July 2007 Sampling Event at the Denison Mines, USA, White Mesa Uranium Mill near Blanding, Utah, University of Utah. Hydro Geo Chem (2007) Preliminary Contamination Investigation Report, White Mesa Uranium Mill near Blanding, Utah. November 20. Hydro Geo Chem (2009) Site Hydrogeology and Estimation of Groundwater Travel Times in the Perched Zone, White Mesa Uranium Mill Site near Blanding, Utah. August 27. Hydro Geo Chem (2012) Investigation of Pyrite in the Perched Zone, White Mesa Uranium Mill Site, Blanding, Utah. December 7. Hydro Geo Chem (2014a) Hydrogeology of the White Mesa Mill, Blanding Utah. June 6. Hydro Geo Chem (2014b) Installation and Hydraulic Testing of Perched Monitoring Wells TW4- 35 and TW4-36, White Mesa Uranium Mill Near Blanding, Utah (As Built Report). July 1. Hydro Geo Chem (2015) Installation and Hydraulic Testing of Perched Monitoring Well TW4-37, White Mesa Uranium Mill Near Blanding, Utah (As Built Report). May 12. Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 85 Hydro Geo Chem (2016a) Installation and Hydraulic Testing of PIEZ-3A, White Mesa Uranium Mill Near Blanding, Utah (As Built Report). May 12. Hydro Geo Chem (2016a) Installation and Hydraulic Testing of Perched Monitoring Well TW4-38 and TW3-39, White Mesa Uranium Mill Near Blanding, Utah (As Built Report). December 8. Intera (2007) Revised Addendum, Evaluation of Available Pre-Operational and Regional Background Data, Background Groundwater Quality Report: Existing Wells For Denison Mines (USA) Corp.’s White Mesa Uranium Mill Site, San Juan County, Utah. November 16. Intera (2008) Revised Addendum Background Groundwater Quality Report: New Wells for Denison Mines (USA) Corp.’s White Mesa Mill Site, San Juan County, Utah. April 30. Intera (2009) Nitrate Contamination Investigation Report, White Mesa Uranium Mill Site, Blanding, Utah. December 30. Intera (2012) pH Report, White Mesa Uranium Mill, Blanding, Utah. November 9. International Uranium USA (2000) Reclamation Plan White Mesa Mill. July. MWH (2010) Revised Infiltration and Contaminant Transport Modeling Report, White Mesa Mill Site, Blanding, Utah. March. Nordstrom, D.K. (1982) Aqueous pyrite oxidation and the consequent formation of secondary iron minerals, InKittrick, J. A., Fanning, D. S., and Hossner, L. R., eds., Acid Sulfate Weathering, Soil Sci. Soc. Am. Publ., 37‑56. Roberts, H (2004) Supporting Information for GWDP. Memo to Loren Morton of DRC, February 19. Titan Environmental (1994) Hydrogeologic Evaluation of White Mesa Uranium Mill. July. UMETCO Minerals Corp and Peel Environmental Services (1993) Groundwater Study, White Mesa Facility, Blanding, Utah, January. Nordstrom, D.K., Wright, W.G., M. Mast, M.A., Bove, D.J. and R.O. Rye (2007) Aqueous-Sulfate Stable Isotopes—A Study of Mining-Affected and Undisturbed Acidic Drainage. Chapter E8 of Integrated Investigations of Environmental Effects of Historical Mining in the Animas River Watershed, San Juan County, Colorado. Edited by S. E. Church, P. von Guerard, and S. E. Finger, Professional Paper 1651, U.S. Geological Survey. USEPS (1999) Understanding Variation in Partition Coefficient, Kd, Values. Vol II, EPA 402-R-99- 004B, August. Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 86 USGS (2011) Assessment of Potential Migration of Radionuclides and Trace Elements from the White Mesa Uranium Mill to the Ute Mountain Ute Reservation and Surrounding Areas, Southeastern Utah. Scientific Investigations Report 2011–5231, U.S. Geological Survey. Utah Division of Radiation Control (2004) Ground Water Quality Discharge Permit Statement of Basis for a Uranium Milling Facility at White Mesa, South of Blanding, Utah. December 1. Utah Division of Radiation Control (2011) Ground Water Quality Discharge Permit UGW370004, Statement of Basis for a Uranium Milling Facility, South of Blanding. Document DR-2011- 001889, February. Utah Division of Water Quality (2008) Ground Water Quality Discharge Permit UGW370004. Issued to Dennison Mines, March 17. White J.L., Wait T.C. and M. L. Morgan (2008), Geologic Hazards Mapping Project for Montrose County, Colorado. Colorado Geological Survey, Denver, Colorado. Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 87 Appendix A Matching of Groundwater Mounding Response in Monitor Wells FIGURE A1 - MATCH TO WELLS MW-1, MW-18, AND MW-19 0.2.0E+3 4.0E+3 6.0E+3 8.0E+3 0. 8. 16. 24. 32. 40. Time (day) Di s p l a c e m e n t ( f t ) Obs. Wells MW-19 MW-18 MW-1 Aquifer Model Confined Solution Dougherty-Babu Parameters T = 95.95 ft2/day S = 0.1577 Kz/Kr = 0.1Sw = 0. r(w) = 1250. ft r(c) = 0. ft Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 88 FIGURE A2 - MATCH TO WELL MW-4 0.1000.2.0E+3 3.0E+3 4.0E+30. 10. 20. 30. 40. Time (day) Di s p l a c e m e n t ( f t ) Obs. Wells MW-4 Aquifer Model Confined Solution Dougherty-Babu Parameters T = 187.3 ft2/day S = 0.005415 Kz/Kr = 0.1Sw = 0. r(w) = 1250. ft r(c) = 0. ft Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 89 FIGURE A3 MATCH TO WELL MW-11 0.2.0E+3 4.0E+3 6.0E+3 8.0E+30. 5. 10. 15. 20. Time (day) Di s p l a c e m e n t ( f t ) Obs. Wells MW-11 Aquifer Model Confined Solution Dougherty-Babu Parameters T = 102.3 ft2/day S = 0.05409 Kz/Kr = 0.1Sw = 0. r(w) = 1250. ft r(c) = 0. ft Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 90 FIGURE A4 - MATCH TO WELL MW-17 0.2.0E+3 4.0E+3 6.0E+3 8.0E+30. 5. 10. 15. 20. Time (day) Di s p l a c e m e n t ( f t ) Obs. Wells MW-17 Aquifer Model Confined Solution Dougherty-Babu Parameters T = 44.42 ft2/day S = 0.02633 Kz/Kr = 0.1Sw = 0. r(w) = 1250. ft r(c) = 0. ft Updated Data Review and Evaluation of Groundwater Monitoring White Mesa Uranium Mill, Blanding Utah Project No. AU17.1116 | Updated Data Review and Evaluation of Groundwater Monitoring July 2017 91 FIGURE A5 - MATCH TO WELL MW-22 0.2.0E+3 4.0E+3 6.0E+3 8.0E+30. 1. 2. 3. 4. 5. 6. Time (day) Di s p l a c e m e n t ( f t ) Obs. Wells MW-22 Aquifer Model Confined Solution Dougherty-Babu Parameters T = 626.8 ft2/day S = 0.01284 Kz/Kr = 0.1Sw = 0.r(w) = 1250. ft r(c) = 0. ft Attachment B The Vengosh Lab at Duke University has the following analytical capabilities: Overall: Investigation of the major and trace elements, combined with stable isotopes (oxygen, hydrogen, carbon, boron, strontium, lithium) and radionuclides (uranium, radium, lead-210) measurements, can provide an objective method for evaluating the sources of dissolved constituents in water, particularly for delineating sources of uranium. By characterization of the geochemical fingerprints of different sources it may be possible to evaluate if changes in the quality of groundwater are related to natural variations or related to migration of contaminated effluents in the subsurface. The basic assumption of the research approach is that different source would have distinctive geochemical fingerprints, particularly for isotope tracers of boron, lithium, strontium, and radium. For example, the radium isotopes (228Ra/226Ra) ratios in a sandstone aquifer is expected to mimic the Th/U ratio in the aquifer rocks while anthropogenic uranium contamination would have predominance of 226Ra (and thus low 228Ra/226Ra ratio) derived from the uranium-decay series. Field Sampling: We strictly follow the United States Geological Survey’s (USGS) National Field Manual for the Collection of Water-Quality Data (http://water.usgs.gov/owq/FieldManual/index.html), which includes water sampling, decontamination of equipment, and maintenance of sampling equipment. Field Measurements: Surface water samples are monitored for the following field parameters using YSI® instruments to record field parameters for surface and groundwater samples. • YSI® Instrument (Conductivity/Salinity/TDS/Temperature). • YSI® Instrument (pH meter/Temperature). Major Chemistry: Major Anions: F, Cl, Br, Nitrate, and Sulfate are measured using a Dionex ICS 2100 Ion Chromatograph equipped with an AS19 anion exchange column and AG19 guard column. The AS19 anion exchange column utilizes KOH eluent coupled with suppressed conductivity detection. Samples are run in conjuction with blanks, calibration standards, and check standards (dionex 7 anion standard II, typically diluted such that analyte concentrations are 50 ppm, 10 ppm and 1 ppm). Major Cations: Na, Mg, Ca, Sr, and Ba are measured using an ARL SpectraSpan7 DCP Spectrometer. Samples are run in conjunction with blanks, calibration standards, OSIL seawater standard (diluted), and NIST 1643f. 1 Acid Neutralizing Capacity (ANC at HCO3-): 25 mL of unfiltered sample is manually titrated to pH 4.5 using 0.02 N HCl. Duplicate analyses are conducted for each sample, with the average of the two reported as the final value. Isotope Analyses: Boron isotopes: Boron in groundwater and surface water are processed through cation-exchange resin to remove all cations, treated with peroxide to remove organic matter and CNO complexes, loaded on the Triton (Thermo) thermal ionization mass spectrometer (TIMS) and measured as BO2- ions on low-temperature negative ion method developed by our group (Dywer and Vengosh, 2008). 1 to 4 µL samples (containing a total of ~1 to 5ng of boron) are directly loaded onto outgassed single rhenium filaments along with 2 µL of activator solution containing Na, Mg, Ca, and K (roughly in proportions of seawater), mixed from high-purity single-element standard solutions in 5% HCl matrix. Loads are evaporated to dryness at low current (~0.4A), typically taking 8 to 15 minutes depending sample volume. After drying, current is gradually raised to ~0.7A and gradually decreased to 0.0A over ~25 sec. All sample loading is carried out in a vertical laminar flow clean hood equipped with boron-free PTFE HEPA filtration. Data on standards (NIST951) loaded using this method yield external precision of approximately 0.5‰ δ11B. Total loading blank is <15pg B as determined by isotope dilution (NIST952). The load solution delivers ionization efficiency similar to seawater and has negligible CNO- (mass 42) interference, based on negligible signal at proxy mass 26 (CN-). Strontium isotopes: Strontium in surface water and groundwater are evaporatively preconcentrated in HEPA filtered clean hood and re-digested in 0.6mL of 3.5N HNO3 from which strontium is separated using Eichrom Sr-specific ion exchange resin. Approximately 1 to 10µg Sr is loaded onto out-gassed single rhenium filaments along with TaO activator solution and loaded onto the Triton TIMS at Duke University. Samples and standards are gradually heated to obtain a 88Sr beam intensity of ~3V, after which 300 cycles of data are collected, yielding a typical internal precision of ~0.000004 for 87Sr/86Sr ratios (1 sd). External reproducibility on standard NIST987 yields a mean 87Sr/86Sr ratio of 0.710233 ± 0.000009 (1 sd). Lithium Isotopes: Lithium in water is pre-concentrated by evaporation to approximately 350 ng dry Li, then redissolved in 0.2 N quarts distilled Optima© HCl. Lithium is separated by cation exchange in a bio-rad AG©-50W-X12 resin. The residual HCl is evaporated and the 350ng of Li is dried with H3PO4 and water. Lithium isotopes were measured by thermal ionization mass spectrometer (TIMS) using a double filament method. The Li3PO4 is evaporated off the first filament and then Li is ionized by the ionization filament prior to entering the flight tube. 120 7Li/6Li ratios are measured on faraday cups in positive mode at 1.5V of 7L. 7Li/6Li ratios were normalized to the CIAWW IRMM-016 Li carbonate standard solution and presented as δ7Li. Long-term replicate measurements of IRMM-016 standard yielded a precision of 0.6‰. 2 Radium isotopes: Radium isotopes are measured at the Laboratory for Environmental Analysis of RadioNuclides (LEARN) at Duke University (http://www.nicholas.duke.edu/learn/). Ra in solutions will be concentrated onto Mn oxide coated fibers. 228Ra and 226Ra are measured by a Canberra high resolution Broad Energy germanium (BEGe) detector (BE5030; with 50% relative efficiency) gamma spectrometer. 228Ra will be quantified from the 911 keV peaks of 228Ac and 226Ra will be quantified from the 351 keV peak of 214Pb following three weeks of incubation. The standard for gamma spectrometric analysis is U-Th ore standard DL-1a (Canadian Certified Reference Materials Project), loaded to resemble the geometry of the compressed fibers. Systematic measurements of standards in our lab (Vinson et al., 2009) yielded approximate precision for the Ra isotopes: 226Ra ~ 4%; 228Ra ~ 16%. 3 Advanced Geophysical Characterization and Monitoring Tools for Hanford Site Subsurface Cleanup Operations PNNL SUBSURFACE SCIENCE TEAM 1 Unique Capabilities •High performance imaging of vadose zone contaminant distribution •Real-time autonomous 3D Time- lapse imaging of natural and engineered subsurface remediation processes •Advanced external tank leak detection system design and verification casing electrodes Deep electrodes Vadose Zone 3D Contaminant Imaging July 26, 2017 High conductivity zones correspond to elevated saturation and high nitrate concentrations from past waste infiltration. 2006/2007 Surface ER Survey Data courtesy HydroGeophysics, Inc. Vadose Zone 3D Contaminant Imaging animation Impacts •3D contaminant distribution verified by wellbore samples •Currently recollecting to determine plume migration since 2006 (time-lapse imaging) Monitoring Vadose Zone Treatability Testing: Desiccation July 26, 2017 Pre-desiccation ERT Image Previous Image New Image Dry nitrogen injection system Instrument panels Extraction Blower Historical liquid waste crib. Primary vadose zone contaminants Nitrate, Tc99, Uranium Plan View ERT Array BC-Cribs Desiccation TT Field Site July 26, 2017 6 Monitoring Vadose Zone Treatability Testing: Desiccation Time-lapse 3D imaging of engineered vadose zone desiccation Monitoring Vadose Zone Remedial Amendment Delivery Problem: Monitoring/verification of amendment delivery Supplementary Information: Amendment increases saturation and pore fluid conductivity Objective Use time-lapse ERT monitoring to image amendment distribution over time Two surface ERT lines (@ 2.5 m) Real-time website delivery for duration of treatment A A’ A A’ Phosphate Tanks Columbia River Monitoring Vadose Zone Remedial Amendment Delivery: Imaging Results A c animation Change in Conductivity (S/m) Monitoring Vadose Zone Remedial Amendment Delivery: Real Time Imaging A Image Delivery Website Screenshot •Images were delivered in ‘real-time’ (~12 minutes from start of survey to image) for 21 day duration •Demonstrated capability to provide timely feed- back •Opportunity to control and optimize delivery process during application PNNL’s Real-Time Imaging Capability: Recognized by R&D Magazine as being in top 100 innovative technologies in 2016. Tank Farm External Leak Detection: State of Practice Current system uses existing well casings and tanks as leak detection electrodes Developed without capability to numerically simulate detection response Tested and validated under best available, but non-representative field conditions … provided overly optimistic estimation of detection capabilities (animation) 1) Current injected on Well casing 2) Voltage measured on leaking tank. voltage isosurfaces Tank leak detection system response simulation using wellbore casing and surface electrodes July 26, 2017 11 Current injection electrode Voltage measurement electrode Optimum %change measurement configurations Leak Response Optimum measurement when tanks are disconnected Optimum measurement when tanks are connected noise threshold Tank leak detection system response simulation using direct push buried electrodes July 26, 2017 12 Detection Response Current Source Electrode - Voltage Current Sink Electrode + Voltage Optimum % change measurement configuration direct push electrodes casing as electrodes Improved sensitivity with buried electrodes Electrical Imaging in the Presence of Tanks and Pipes: Contaminant Imaging Simulation True Conductivity ERT Imaging Results 7,500 gal release 23,500 gal release 66,500 gal release Capability Summary and Applications to Date •Locating and monitoring 3D contaminant distribution and movement in the vadose zone (inside or outside of tank farms) •B-Complex, BC-Cribs, PUREX trench,300 Area •Real-time 4D (3D + time) imaging of engineered remediation processes •4D Desiccation (BC-Cribs) •4D Liquid phase amendment delivery (300 Area) •4D reactive gas phase amendment delivery (U Cribs) •Tank Farms •Capability to accurately model leak detection responses •Capability to optimize detection system performance •Capability to image contamination in the presence of metal pipes and tanks Attachment D Potential configuration of perched groundwater levels and associated inferred groundwater flow paths south of the White Mesa mill, prepared by L. Rick Arnold, EPA Region 8 Hydrologist. [Arnold.Rick@epa.gov] TODD W. SCHRAUF, P.E MINING HYDROGEOLOGY GROUP MANAGER SchraufPage 1 Mr. Schrauf has 40 years of professional experience in projects related to mine development and operations, environmental investigations and remediation, nuclear waste storage, and natural gas production. He has been involved in projects in Argentina, Australia, Bolivia, Brazil, Canada, Chile, Columbia, Honduras, Mexico, New Zealand, Peru, Poland, Republic of Congo, Sweden, and the United States. He has specific expertise in mine dewatering and water management, water resource and supply evaluation, aquifer testing and analysis, environmental investigation and remediation, and numerical modeling of groundwater and gas flow and solute transport. He speaks Native English and is fluent in Spanish (resided 10 years in Peru). EDUCATION University of Arizona, Tucson M.S., Hydrology, 1984 Cum Laude University of Utah, Salt Lake City B.S. Geological Engineering Magna Cum Laude PROFESSIONAL REGISTRATION Professional Engineer (Water Resources) State of Utah TRAINING MSHA Certified WORK HISTORY 2012 to Present: Mining Hydrogeology Group Manager, Geo-Logic Associates 2010 to 2012: Principal Hydrologist, Schlumberger Water Services 2005 to 2010: Manager of Hydrology and Hydrogeology Services, Vector Peru S.A.C., Lima, Peru 2003 to 2005: Senior Hydrogeologist, Hydro Geo Chem, Inc. 1997 to 2002: Operations Manager, Water Management Consultants, Inc. 1996 to 1997: Senior Project Manager, Water Management Consultants, Inc. 1989 to 1996: Principal Hydrogeologist, Wasatch Environmental, Inc. 1986 to 1989: Senior Hydrogeologist, Golder Associates, Inc. 1981 to 1982: Hydrogeologist, Golder Associates, Inc. 1977 to 1980; 1984 to 1986: Geological Engineer, Terra Tek, Inc. KEY PROJECT EXPERIENCE - Mining and Water Supply Castle Mountain Mine, California, 2016-2017. Reviewed available data, conducted bedrock exploratory drilling and well installation, and developed basin wide groundwater model to simulate past pumping and pit dewatering in support of prefeasibility studies for future mining. Huaron Mine, Peru, 2016. Conducted field hydrogeologic investigations, developed conceptual hydrogeologic model, and conducted groundwater modeling of underground silver mine and associated drainage tunnel to determine expected future mine inflows as a result of mine deepening. White Mesa Uranium Mill, Utah, 2015,2017. Conducted through review and analysis of data from multiple studies including extensive water sampling data to evaluate potential leakage from tailings facilities and other sources and associated groundwater impacts. Coffee Gold Project, Canada, 2015. Conducted thermodynamic modeling of proposed heap leach in the Yukon Territories to assess operational strategies under extreme cold weather conditions. Yauricocha Mine, Peru, 2014-2015. Develop significantly revised conceptual hydrogeologic model based on site visit, previous studies, and mine collected data. Formulated and evaluated potential mine dewatering measures to reduce occurrence and magnitude of mudflows in sub-level block caving operation. Evaluated expected regional groundwater levels and flow directions in karstic limestone to address environmental and community concerns. Constructed and implemented numerical model of groundwater flow to evaluate different dewatering measures and estimate future water inflows to the mine. Santa Elena Mine, Mexico, 2014. Conducted site visit and reviewed site investigations and mine inflow data to assess high water inflows from fault zone. Developed predictions of future inflows during mining and lateral extent of fault zone to assess use as long term source of water supply for the mine. Cerro de Pasco Mine, Peru, 2013-2014. Conducted study to evaluate contributions from historic tailings and waste rock facilities, as well as sources from active mining operations, to identify contributions of both to current acid water collection systems and assign liability to separate owners of those facilities. Work includes review of previous investigations, field investigations to collect water samples and perform hydraulic testing of existing piezometers, numerical modeling of groundwater flow, and development of recommendations for remedial measures. Confidential Client, Utah 2013. Developed heat balance model to simulate changes in ore temperature in pilot sulfide heap leach related to ore oxidation rates, solution flows, air injection flows, and meteorological conditions. Results were used to evaluate the importance of several variables including pre-heating of raffinate solution and effectiveness of geomembrane cover on heap. TODD W. SCHRAUF, P.E MINING HYDROGEOLOGY GROUP MANAGER SchraufPage 2 KEY PROJECT EXPERIENCE Mining and Water Supply (continued) San Francisco Mine, Mexico, 2012. Developed water balance for heap leach expansion for open pit gold mining operation. Work included evaluation of wet, average, and dry years. Conducted laboratory testing of ore to determine shear strength of ore/liner interface and puncture testing of liner material for evaluating maximum stacking height. Peñasquito Mine, Mexico, 2011-2012. Conducted groundwater modeling of basin and large open pit gold mine to assess pumping requirements for pit dewatering and potential additional water supply obtainable from bedrock pumping, to supplement alluvial groundwater supplies. Modeling included importation of mine block model to simulate permeability distribution based on lithology, RQD, and alteration as well as simulation of both vertical and directionally drilled pumping wells. Model was calibrated to several years of operational monitoring and subsequently used for forward predictions. Los Gatos Project, Mexico, 2011-2012. Conducted pre- feasibility assessment of hydrogeologic conditions for a proposed underground mining operation of a polymetallic vein deposit. Conducted field investigations and conducted groundwater modeling to assess potential inflows and pore pressures during construction of an access ramp and subsequent mining operations, determine potential sources of water for mine operations and camp, and assess potential impacts to neighboring water uses. Evaluated meteorological data and determined maximum precipitation events for different return periods. San Antonio Project, Mexico, 2010-2012. Conducted initial hydrogeologic study to assess potential water sources for mine operations based on collection and review of available information and coordinated simulation of surface water runoff modeling using HEC software. Conducted pre- feasibility field investigations of mine area and neighboring alluvial aquifer including drilling, piezometer installation and testing, groundwater and surface water sampling. Coordinated simulations of flood plain inundation during extreme storm events, developed groundwater model of entire groundwater basin to predict future changes in water balance and basin water levels assuming continued pumping by existing users both with and without future mining, and developed pit lake model. Bingham Canyon Mine, Utah, 2010-2012. Developed 3D numerical groundwater model of the open pit and calibrated to both steady-state and transient head and flow measurements during active mining and dewatering of very large open pit copper mine. Used model to simulate future groundwater heads over a 15 year period based on proposed mine plans and dewatering measures (dewatering of neighboring underground workings, horizontal drains, drainage galleries, and pumping wells). Compared model results with 2D vertical section models used for slope stability input. Simulated pit lake formation and associated flows under various future scenarios (including pumping or flooding of neighboring underground workings) to assess hydraulic containment and water treatment requirements. Simulated future development of underground exploration workings to assess potential inflows. Conducted assessment of potential impacts of mine dewatering and pumping of transferred water rights on water supplies in neighboring Tooele valley by evaluating water balance and conducting regional 3D numerical groundwater modeling simulations. Provided training in groundwater modeling and 3D model formulation. Minaspampa Project, Peru, 2009-2010. Conducted hydrogeological study of proposed open pit mining operation for feasibility study and evaluation of environmental impacts. Work included drilling and packer testing, piezometer installation and testing, groundwater and surface water sampling, surface water flow measurements, and numerical flow modeling of fractured rock and alluvium under pre- mining conditions. La Bodega Project, Colombia, 2009-2010. Developed hydrogeological study to evaluate potential inflows to proposed deep exploration adit for underground gold mining operation. Proposed work included drilling and packer testing, piezometer installation and testing, groundwater sampling, and numerical groundwater flow modeling of fractured rock. Santa Ana Project, Peru, 2009-2010. Developed hydrogeological study of proposed open pit mining operation for feasibility study and detailed engineering design. Proposed work included drilling and packer testing, piezometer installation and testing, water supply investigations, groundwater sampling, and numerical flow modeling of fractured rock and alluvium under pre-mining and post mining conditions. Utunsa Project, Peru, 2009-2010. Conducted hydrogeological study of proposed open pit gold mining operation for evaluation of environmental impacts. Work included drilling and packer testing, piezometer installation and testing, groundwater sampling, surface water flow measurements, and numerical flow modeling of fractured rock under pre- mining conditions. La Virgin Mine, Peru, 2009-2010. Conducted hydrogeological study of proposed expansion of open pit gold mining operation for evaluation of pit and diversion tunnel inflows, diversion canal seepage, and environmental impacts. Work included drilling and packer testing, piezometer installation and testing, groundwater sampling, surface water TODD W. SCHRAUF, P.E MINING HYDROGEOLOGY GROUP MANAGER SchraufPage 3 flow measurements, and numerical flow modeling of fractured rock under existing and projected future mining conditions. Zafranal Project, Peru, 2009-2010. Performed preliminary hydrogeological study to evaluate potential underground water supply for proposed open pit mining operation. Developed field investigation plan and costs for exploration drilling, piezometer and well installation, and resource estimation. La Arena Project, Peru, 2009-2010. Performed hydrogeological study of proposed open pit mining operation for feasibility study. Work included drilling and packer testing, piezometer installation and testing, water supply investigations, groundwater sampling, and numerical flow modeling of fractured rock and alluvium under pre-mining and post mining conditions. West Niari Project, Democratic Republic of Congo, 2009- 2010. Conducted review of hydrogeological and hydrological information in sediments and karstic limestone and developed comprehensive PFS program hydrogeological and hydrological investigation program and costs in support of proposed open pit copper mining operation. Tia Maria Project, Peru 2009-2010. Performed hydrogeological study of proposed open pit copper mining operation in support of environmental impact assessment. Work included exploration drilling and testing, piezometer installation and testing, groundwater sampling, and numerical groundwater flow modeling of fractured rock under pre-mining and post mining conditions. Minera Cerro Verde, Peru 2009. Conducted hydrological evaluations of an active heap leach facility in support of facility expansion. Work included pumping well design and installation, well development and testing, and numerical flow modeling to both steady-state and transient conditions. Los Azules Project, Argentina 2008. Conducted hydrological scoping study to identify water requirements for mine operation, meteorological conditions, potential water supply sources, and assess field investigation requirements for open pit design. El Relincho Project, Chile 2008. Conducted hydrological scoping study to identify water requirements for mine operation, meteorological conditions, potential water supply sources, and assess field investigation requirements for open pit design. San Felipe Project, Mexico 2008. Conducted hydrological scoping study to identify water requirements for mine operation, meteorological conditions, and potential water supply sources. Conducted feasibility studies to characterize the site hydrogeology for development of mine dewatering requirements, tailing facility and waste rock design and impact evaluations, and potential for developing local groundwater supplies from bedrock wells. Minera Cerro Verde, Peru 2008. Conducted hydrogeological study of proposed heap leach facility in support of environmental impact assessment. Work included field investigations (packer testing, piezometer installation, and water sampling), evaluation of groundwater recharge, hydrological characterization and numerical modeling of groundwater flow over mine area, and evaluation of heap leach performance. Jessica Project, Peru 2008. Conducted hydrogeological study of open pit gold mining project. Work included field investigations (packer testing, piezometer installation, and water sampling), evaluation of groundwater recharge, numerical modeling of groundwater flow, evaluation and assessment of environmental impacts. Anabi Project, Peru 2008. Conducted hydrogeological study of open pit gold mining project. Work included field investigations (packer testing, piezometer installation, and water sampling), evaluation of groundwater recharge, characterization of surface water hydrology, numerical modeling of groundwater flow, evaluation of and assessment of environmental impacts. Tantahuatay and Cienaga Projects, Peru 2007-2009. Conducted hydrogeological study of open pit gold mining project. Work included field investigations (packer testing, piezometer installation, pump testing, and water sampling), numerical modeling of groundwater flow, evaluation of groundwater supply from fractured bedrock, and evaluation of seepage quantities and water quality from mine facilities, migration pathways and concentrations in downgradient groundwater discharge, and associated assessment of environmental impacts, and baseline water quality monitoring. Tucari Mine, Peru 2007-2008. Conducted hydrogeological study of open pit gold mining project. Work included field investigations (packer testing, piezometer installation, and water sampling) numerical modeling of groundwater flow, evaluation of seepage quantities from mine facilities, and assessment of environmental impacts. Culebrilla Project, Peru 2007. Conducted water supply permitting study for mining exploration project. Work included evaluation of available water supply and current water use and design of water capture system. La Constancia Project, Peru 2007-2008. Conducted baseline water quantity and quality monitoring for mining project. El Morro Project, Chile 2007. Conducted hydrogeological study of open pit mining project. Work included field TODD W. SCHRAUF, P.E MINING HYDROGEOLOGY GROUP MANAGER SchraufPage 4 investigations (packer testing and piezometer installation) and computer modeling of pit dewatering including pit slope pressures. Magistral Project, Peru 2006-2007. Conducted hydrogeological evaluation of open pit copper mining project for feasibility study. Work included field investigations (packer testing, piezometer installation, and water sampling) and numerical modeling of groundwater flow for pit dewatering design using drainage gallery and horizontal drains for pit slope stability assessment, and assessment of environmental impacts. El Galeno Project, Peru 2006-2009. Conducted hydrogeological and hydrological study of open pit copper mining project for pre-feasibility and feasibility studies. Work included field investigations (packer testing, piezometer and well installations, stream flow monitoring, water user surveys) and numerical modeling of groundwater flow for pit dewatering and pit slope stability, assessment of seepage from neighboring tailing facility, baseline water quality monitoring, evaluation of environmental impacts, and water supply evaluations. Bayovar Project, Peru 2006-2007. Conducted hydrogeological and hydrological study for feasibility study of phosphate mine. Work included review of available data, extensive field investigations (packer and pump testing, water sampling), and numerical modeling of groundwater flow for pit dewatering and pit slope stability, evaluation of tailings impoundment seepage, storm water impoundment and dike construction. Mina Lagunas Norte, Peru 2006. Developed an unsaturated water and air flow model to simulate the impact of underdrain system on oxygen supply and the consequent oxidation of sulfide bearing soils below an active leach pad. Corani Project, Peru 2006-2008. Conducted scoping level study to define project water balance, define water supply and management requirements, and identify surface water and groundwater supplies for mining and concentrate production of gold sulfide deposit. Subsequently, conducted pre-feasibility studies in support of open pit design and slope stability, hydrogeological site characterization, and water management and water supply. Mina Pierina, Peru 2006. Performed geochemical and hydrological studies in support of closure plan development for an operating gold mine. Work included laboratory testing and data review, development of unsaturated flow models and geochemical modeling of waste dump, heap leach, and open pit backfill, review and recommendations on surface water management system, and evaluation of requirements and sources of water supply for neighboring downstream communities. Assisted with closure plan preparation and responses to regulatory agency comments including evaluation of long-term water chemistry trends at monitoring points. Quechua Project, Peru 2006-2007. Conducted baseline water quantity and quality monitoring. Marcobre Project, Peru 2005-2007. Designed and implemented groundwater exploration program to identify water production and quality from three different aquifer areas in coastal desert area to provide water supply for open pit copper mine and concentrate production. Work included survey of existing wells and previous studies, technical assistance with application for groundwater exploration, piezometer drilling and installation, aquifer testing, water sampling, design of geophysical program to define aquifer size, and computer modeling of aquifer with past and future pumping for water supply. Conducted characterization of deep bedrock groundwater conditions below the mine site, including the installation of a vibrating wire piezometer to a depth of 750 m. Corihuarmi Project, Peru 2005-2006. Evaluated water supplies for proposed very high altitude gold mining project including identification of available surface and underground water rights, evaluation of project water needs for mineral processing, development of water balance for neighboring surface water system and waste rock facility, and design of water supply pumping and pipeline system. Conduct baseline evaluation of groundwater and surface water hydrology and assessment of hydrological impacts from heap leach and waste rock facilities. Calcatreau Project, Argentina 2005-2006. Collected meteorological data, site water balance, intensity-duration- frequency analysis of high runoff events, and estimation of peak flows for design of diversion structures. Reviewed available geochemical data and performed site water balance. Rio Blanco Project, Peru 2005. Evaluated packer testing data and constructed numerical model to estimate pit inflows during mining and develop conceptual pit dewatering design. Developed climatological water balance including evaluation of precipitation, evapotranspiration, and recharge. Evaluate surface water monitoring requirements and methods. San Jose Project, Argentina 2005. Developed and implemented hydrogeological study for underground silver/gold mine feasibility study. Work included permeability and pump testing, development and calibration of numerical model to estimate mine inflows over life of mine and design of mine dewatering system, evaluation of environmental impacts, and waste water disposal options. TODD W. SCHRAUF, P.E MINING HYDROGEOLOGY GROUP MANAGER SchraufPage 5 Vermelho Project, Brazil 2005. Reviewed and revised water balance for tailing facility to manage storage and discharge of process water. Mina Carolina Closure, Peru 2005. Worked with project team to develop closure alternatives for underground mine. Pinal Creek Remediation Project, Miami/Globe, Arizona 2003-2004. Evaluated operational performance of line of capture wells based on estimated groundwater flow versus pumping rate, local reversal of hydraulic gradients, and changes in groundwater chemistry. Developed recommendations for improvements in system performance and operational guidelines to establish required pumping rates. Developed proposed geotechnical testing and evaluated testing results to determine settlement of solids derived from waste water treatment and evaluate long term storage capacity of Diamond H Pit for solids disposal. Reviewed water balance model and numerical model of groundwater flow through mining site to determine accuracy of modeling studies and sources of potential error. Prepared bid package for capture and pumping well installation. Minera Los Pelambres, Chile 2002. Reviewed existing hydrologic and geologic data and previous numerical modeling of mine dewatering for initial feasibility study of open pit copper mine. Developed revised conceptual hydrogeological model of site based on operational experience and implemented program of field investigations to evaluate dewatering options and monitor progress. Developed initial pit dewatering and slope depressurization system design and costs. Alamo Dorado Project, Mexico 2002. Conducted evaluation of groundwater resource potential from bedrock and alluvial sources and selected potential drilling targets and expected sustainable yield for potential exploration drilling of water supply wells to supplement surface water supplies for proposed silver mine. Rio Blanco Project, Peru 2002. Development of estimated costs for construction of waste dump and heap leach facilities and performance of environmental assessments to develop Rio Blanco copper deposit. Implemented baseline environmental studies in support of project exploration and development. Conducted assessment of site precipitation. BHP Tintaya, Peru 2002. Reviewed existing data and conducted site inspection of current water diversion and pit dewatering systems at existing open pit copper mine. Developed conceptual hydrologic model of site surface runoff and groundwater flow. Provided recommendations for improvements in upstream surface water diversion structures to improve pit slope stability and developed predications of expected future dewatering requirements for proposed pit expansion. Minera Pierina, Peru 2002. Conducted two-day short course on groundwater hydrology (in Spanish) for Peruvian mine personnel including instruction in basic groundwater concepts, groundwater chemistry, and well drilling, construction and pump testing. Minera Entremares, Honduras 2001-2002. Conducted evaluation of groundwater resource potential and associated water balance for two large alluvial basins near operating gold mine. Developed and compared alternatives and initial costs for development of additional water supplies for mining operations. Developed and compared alternatives for storm runoff diversion channels around proposed new open pit. Provided technical support during mine inspection by government agencies associated with water supply issues. El Teniente Mine, Chile 2001. Reviewed existing data to develop conceptual model of source of copper-bearing acid waters derived from infiltration through subsidence crater in world’s largest underground copper mine. Evaluated existing acid water collection system, determined current and future spatial distribution and seasonal variation of acid water inflows based on meteorological data, maps of underground workings and measured flows, and projected mine and crater expansion. Developed recommendations for modifications to existing collection and transfer system to maximize capture of acid flows received by SX/EW plant. Evaluated performance and efficiency of existing system to intercept non-acid (industrial) waters upstream and within the mine and developed recommendations for system improvements. Minera Antamina, Peru 2001. Reviewed existing potable water and sewage disposal treatment systems at open pit copper-zinc mine. Developed recommendations for improvements to existing potable water storage and treatment system including equipment specifications and costs. SEDAPAL Lima, Peru 2000. Development of water balance and evaluation of potential potable municipal water supply from alluvial groundwater wells recharged by adjacent Rio Lurin south of Lima. Cerro Verde Mine, Peru 2001-2002. Evaluated existing site hydrology data to assess expected future pumping requirements for pit dewatering and determine potential water quantities for use as heap leach make up water. Evaluated the technical feasibility of placing a ROM leach facility in the bottom of one existing open pit. Conducted step rate and long term pump testing of six production wells installed within fractured diorite fault zone in pit bottom to evaluate hydraulic and chemical properties, long term sustainable yield, and total available resource for use in heap TODD W. SCHRAUF, P.E MINING HYDROGEOLOGY GROUP MANAGER SchraufPage 6 leach make up water at open pit copper mine. Cerro Corona Project, Peru 2000-2001. Evaluated site surface water and groundwater hydrology and developed design and cost for water supply system for definitive feasibility study of proposed open pit copper-gold mine. Conducted field investigations to evaluate and design pit dewatering system. Coordinated field investigations and design of tailing dam, tailing discharge lines and water recovery system, runoff collection dams and piping systems, and diversion ditches. Conducted baseline monitoring program and evaluated environmental issues for closure plan including pit lake formation and tailing and waste dump closure. Evaluated water sources and quality for nearby public water supply system and developed preliminary design for alternative water supply to offset potential impacts of pit dewatering. Laguna Huascacocha Project, Peru 2000-2001. Conducted hydrological and hydrochemical characterization and evaluation of lake used for tailing disposal by multiple underground mining and concentrating operations in 100 year old mining district. Work performed included evaluation of inflow quantities and chemistries, bathymetry survey and chemical sampling of lake, calibrated water balance for lake, potential maximum flood for lake, geochemical modeling of lake waters resulting from underground lead-zinc mine acid drainage and lake shore tailing disposal for evaluation of potential remedial alternatives including raising of existing lake dam, diversion of inflows, and covering of exposed tailings. Developed basic and detailed engineering designs for implementing selected remedial measures. Antapaccay Project, Peru 2000. Determined hydrological issues and program requirements and costs for developing proposed open pit copper mine from conceptualization through construction. Conducted field investigations including test drilling and geophysical surveys to characterize geometry and hydraulic properties of large alluvial filled valley and to determine pit dewatering requirements, available water for ore processing, and potential impacts to neighboring river flows. Mina Carolina, Peru 1999. Evaluated sources of underground lead-zinc mine inflows and associated chemistries for development of mine dewatering and discharge treatment evaluation. Developed basic engineering design and cost for treatment system. Cerro Lindo Project, Peru 1999. Evaluated resource potential of existing groundwater resources in river bed alluvium and crystalline bedrock for proposed lead-zinc mine water supply and developed recommended program and costs for field evaluation. SEDAPAL, Lima, Peru 1998. Evaluation of groundwater levels and impacts of reductions in water supply pumping due to salt water intrusion for coastal alluvial aquifer area south of Lima. Developed drainage requirements and conceptual approach to prevent flooding of neighboring properties and expected impact on neighboring wetlands preserve fed by groundwater springs. Antamina Project, Peru 1998-1999. Reviewed and analyzed hydrological pump test and water sampling data for groundwater supply wells in fractured limestone to predict long-term sustainable yield as a water supply for mine construction and long-term potable water supply for mine camp at copper-zinc mine. Evaluated hydrological aspects for disposal of water from slurry pipeline at port facility. El Abra Mine, Chile 1999. Conducted hydrogeological field characterization and testing for proposed unlined ROM leach facility at operating copper mine to determine permeability of alluvial channel fill and potential leakage to underlying bedrock and capture system requirements. Minas Conga, Peru 1998. Evaluated surface water supply system and costs for proposed copper-gold mine using system of multiple reservoirs and pipelines. Conducted preliminary inspections and geotechnical evaluations of potential dam sites. Developed recommendations for future evaluation of pit dewatering systems using exploration drill holes. Minera Pierina, Peru 1998. Evaluated and revised climatic and hydrological input data for operational water balance, including estimation of average and maximum rainfall at operating gold mine. Developed water balance model for drainage system containing valley fill leach pad, waste dump, and ore processing and water treatment facilities. Conducted model simulations to calibrate model to first two years of operation and predict future discharges for pipeline design and required leach pad dam height over life of mine. Perubar, Peru 1998. Evaluated and designed a system to collect alluvial inflow at bedrock contact in pit wall to allow collection of water for ore processing and permit infilling of abandoned pit with tailing material without impacting alluvial groundwater quality at lead-zinc mining operation. Mississippi Chemicals, New Mexico 1998-1999. Evaluation of site hydrogeology, pond leakage rates, and potential environmental impacts for proposed evaporation ponds as part of potash solution mining feasibility study. Mina San Rafael, Peru 1998. Evaluation of sources of mine inflow in underground tin mine from existing workings and near end of exploratory drift including site inspection, data collection and review, and chemical sampling. El Abra Mine, Chile 1997. Evaluated existing data, formulated conceptual hydrologic model, developed short-term dewatering strategy and cost, and developed TODD W. SCHRAUF, P.E MINING HYDROGEOLOGY GROUP MANAGER SchraufPage 7 work plan to investigate long-term dewatering strategies for open pit copper mine. Pinson Mining, Nevada 1997. Evaluation of existing data, development of field testing program, formulation of conceptual hydrological model, and geochemical pit lake modeling for NEPA studies in support of change in mine plan for two open pits for gold mine. McDonald Gold Project, Montana 1997. Evaluated long-term pumping test data in volcanic tuff and layered volcaniclastic rocks, including determination of expected long-term dewatering requirements and associated leakage rates from neighboring river valley alluvium for proposed gold mine. Cuajone and Toquepala Mines, Peru 1997-1998. Hydrogeologic characterization in support of geotechnical pit slope stability studies for two large open pit copper mines in volcanic, intrusive, and alluvial units including field investigation, hydrogeological conceptualization, computer modeling of groundwater flow, and evaluation of dewatering system. Doe Run Mine, Missouri 1997. Evaluated field dewatering tests, conducted groundwater flow modeling, and developed dewatering flow estimate and design for underground lead-zinc mine dewatering project in fractured limestone. Mississippi Potash, New Mexico 1997. Evaluated historical water production and water level data to evaluate remaining groundwater reserves and well field life and production rates for potash mining operations. Study included evaluation of primary reserves from Ogallala aquifer and potential secondary reserve from bedrock wells. Fort Belknap Indian Reservation, Montana 1997. Field investigations, pump testing, and well design for water supply wells on Fort Belknap Indian Reservation. Battle Mountain Gold, Venezuela 1997. Evaluated pump test results for evaluation of dewatering requirements for proposed open gold pit mine. Kingsmill Tunnel, Morococha District, Peru 1997. Analyzed ARD contributions to 11-km long district drainage tunnel from historical and active mine workings in 100-year old lead-zinc- silver mining district. Work included determination of location and extent of historical workings, measurements of flow rate and water chemistry along tunnel, and assessment of contribution to flow rate and mass loading of tunnel discharge from individual underground mines to determine cost allocations for water treatment. Zortman and Landusky Mines, Montana 1996-1997. Incorporation of all existing hydrochemical and hydrological data from existing gold mine with two separate open pit operations in area of historic underground mining operations under Consent Decree to develop site monitoring and remediation plan. Collected all existing data into comprehensive database with CAD capabilities, collected and incorporated data from new field investigation, and developed conceptual hydrogeologic model including identification of contaminant sources and associated migration pathways, establishment of representative background concentrations, establishment of geochemical changes due to interaction with downgradient sedimentary formations, evaluation of pit runoff chemistry and evaluation of impacts to groundwater below pits, and evaluation of impacts to Indian reservation waters north of mine site. Located, tested, and completed groundwater supply wells for neighboring Indian reservation. Goldbanks Project, Winnemucca, Nevada 1997. Collection and evaluation of hydrological and chemical data; and development and implementation of computer modeling (MODFLOW) to evaluate projected water production from dewatering of open pit mine, evaluate impacts to alluvial basin water supplies, provide input to pit lake water quality modeling, and determine need for and location of infiltration basis for water disposal. Red Dog Mine, Alaska 1996. Development of program to investigate and control ARD generation in waste rock facility. Coal Mine Expansion Project, Kentucky 1994. Conducted hydraulic fracturing profiling of layered coal strata for underground coalmine expansion project. Kennecott Tailings Expansion Project, Utah 1990-1991. Conducted installation of monitoring well network in alluvial sediments and bedrock for regional hydrogeologic site characterization. Provided technical supervision for aquifer test analyses of slug, recovery, and flowing (artesian) well tests. Sunnyside Cogeneration Plant Project, Utah 1990. Conducted seismic bedrock depth profiling, water quality sampling, and aquifer tests in alluvial sediments for permitting support of coal cogeneration plant project. Hydroelectric Power Project, Homer, Alaska 1988. Conducted hydraulic fracturing measurements in crystalline rock to evaluate in situ stress levels for hydroelectric tunneling project liner design. Hydroelectric Power Project, California 1987. Conducted underground overcoring stress measurements with CSIRO and USBM gauges to evaluate in situ stress tensor in crystalline rock for hydroelectric tunneling project liner design. Tar Sand Wellfield Hydro-Frac Design Project, Canada, 1985. Conducted hydraulic fracturing measurements at several steam injection production wells in tar sand deposits in TODD W. SCHRAUF, P.E MINING HYDROGEOLOGY GROUP MANAGER SchraufPage 8 Alberta and Saskatchewan. Deep Coal Seam Gas Recovery Project, Colorado 1985. Conducted hydraulic fracturing measurements in 6,000 foot deep coal gas production well for massive hydraulic fracture design project. Gas Well Hydro-Frac Design Project, Pennsylvania 1984. Conducted hydraulic fracturing profile measurements in gas well completed in tight sandstone for design of massive hydraulic fracture treatment. Uranium Tailing Remediation Study, Colorado 1984. Designed and conducted laboratory tests to determine the consolidation and permeability characteristics of saturated and unsaturated uranium tailings for cover design. Esso Oil Shale Project, Australia, 1981. Evaluated drawdown and recovery data for well nests in proposed oil shale mine to evaluate feasibility of dewatering and intercepting groundwater flow from nearby ocean. Developed manual (graphical) computer aquifer testing analysis program to simulate pumping rate fluctuations and wellbore storage effects. Coal Mine Degasification Project, Birmingham, Alabama 1980. Conducted hydraulic fracturing profiling of several wells for underground coalmine degasification project. Gas Well Hydro-Frac Evaluation Project, Ohio 1980. Conducted and evaluated natural gas drawdown and recovery test data for hydraulically fractured well-completed in Devonian shale. Data evaluation involved determination of hydraulic fracture length and conductivity in addition to formation properties. Edgar Mine, Colorado, 1980. Installed large-scale block test in underground mine which involved saw cutting of large block of rock, installation of flatjacks and coring and logging of instrumentation holes. Test was experimental project to evaluate rock modulus and effect of stress on fracture permeability. Computer Model Development, Venezuela 1980. Assisted in the development of a boundary element code to model compaction of unconsolidated reservoir sands due to oil production. Coal Mine Degasification Project, Virginia 1979. Conducted pressure buildup tests, and hydraulic fracturing in situ stress measurements (with impression packer) for coalmine degasification project. Stripa Mine Project, Sweden 1977-1979. Developed and laboratory tested modifications of extensometers and stress deformation gauges (IRAD and USBM) for use in very high temperature environments to evaluate feasibility of underground storage of high-level nuclear waste. Supervised field installation and calibration of instrumentation in abandoned iron mine in crystalline rock. Evaluated measurements during testing. Nevada Test Site, Nevada, 1979. Conducted underground overcoring stress measurements with CSIRO gauge to evaluate in situ stress tensor in welded tuff. Installed and monitored extensometers and closure gauges during tunneling in crystalline rock to evaluate effectiveness of smoothwall blasting techniques on increasing pillar support during driving of parallel tunnels. KEY PROJECT EXPERIENCE - Environmental ECDC Landfill, Utah 2016. Evaluated existing site data, developed and implemented field investigations, and summarized hydrogeological conditions for siting of TSCA landfill cell underlain by alluvial sediments and shale. Graham Road Landfill, Washington 2016. Evaluated existing site data, developed and implemented field investigations, and summarized hydrogeological conditions for siting of future landfill cells underlain by unconsolidated sediments and basalt. Rialto-Colton Site, California 2015. Review of groundwater modeling of groundwater flow and solute transport for site undergoing active remediation and plume migration control by groundwater pumping. Paxton Site, Utah 2011. Evaluated site data to develop conceptual hydrogeologic model and assessment of natural degradation of chlorinated solvents by reductive chlorination. Conducted 3-D numerical model simulations of solute transport and chain biodegradation of residual PCE solvent from former dry cleaning facility, including calibration to existing monitoring data and prediction of future potential migration and natural attenuation in support of site closure. Three Rivers Landfill, North Carolina 2004. Conducted 3-D numerical model simulations of leachate injection (unsaturated flow) into pilot aerobic bioreactor and 1-D numerical model simulations to determine pneumatic properties and gas generation rates in pilot aerobic landfill project. Houser’s Mill Landfill, Georgia 2004. Developed and calibrated 3-D numerical model of gas flow to simulate baro- pneumatic test results to determine distribution of pneumatic properties and gas generation rates in active landfill for design of methane gas migration control system. Decatur County Landfill, Georgia 2004. Developed and calibrated 3-D numerical model of gas flow to simulate baro- pneumatic test results to determine distribution of pneumatic properties and gas generation rates in active TODD W. SCHRAUF, P.E MINING HYDROGEOLOGY GROUP MANAGER SchraufPage 9 landfill for design of methane gas collection system. River Birch Landfill, Lousiana 2004. Developed and calibrated 3-D numerical model of gas flow to simulate baro- pneumatic test results to determine distribution of pneumatic properties and gas generation rates in active landfill for design of methane gas collection system. Page-Trowbridge Ranch Landfill, Arizona 2003-2004. Conducted investigation of vapor phase transport of volatile organic compounds through vadose zone below mixed hazardous and low level radioactive waste RCRA landfill operated by University of Arizona. Performed baro- pnuematic and SVE pilot testing and conducted numerical simulations to analyze test results, predict future vapor phase migration, and evaluate conceptual design for corrective measures. Revised existing monitoring plan and QAPP to address ADEQ comments and include soil vapor monitoring with groundwater monitoring. Developed remedial design including evaluation of air emissions treatment options, and cost and schedule for implementation. Conducted preliminary risk assessment to evaluate potential impact of no-action alternative. Harrison Landfill, Tucson, Arizona 2003. Developed and calibrated numerical groundwater flow and pathline model to simulate performance of groundwater pump and treatment system with upstream injection of treated water to verify adequacy of system performance. Los Angeles Landfill, New Mexico 2003-2004. Installed and tested pilot SVE well and groundwater extraction well at municipal landfill site. Performed numerical simulation of groundwater flow and solute transport of multiple volatile organic compounds and evaluated effectiveness of capture system performance. Developed conceptual, basic and final engineering designs for remedial system and bid package for engineering construction. Hexcel Plant Site, Kent, Washington 2003. Conducted 2-D simulation of groundwater transport and simulation of chlorinated solvents to predict future migration and degradation of dissolved VOCs migrating past upgradient groundwater capture system. Quitman Landfill, Brooks County, Georgia 2003. Developed and calibrated 3D numerical model of gas flow to simulate baro-pneumatic test results to determine distribution of pneumatic properties and gas generation rates in closed landfill for design of methane gas collection system. Used model to design and simulate performance of engineered systems to mitigate offsite migration of landfill gas through subsurface soils. In-Well Aeration Pilot Test, Poland, 1996. Oversaw pilot test installation and training of field personnel in system monitoring and operation for evaluation of technology for hydrocarbon cleanup at former petroleum storage and maintenance facility. CERCLA Support Services, Utah 1995-1996. Supervised field sampling and support services for CERCLA remedial investigations at four sites statewide to large consulting firm. Services included soil, groundwater, and air sampling at sites containing refinery slag, kiln dust, and petroleum hydrocarbons. Keesler Air Force Base, Mississippi 1995-1996. Performed in- well aeration technology demonstration study. Conducted aquifer pumping and soil venting tests to evaluate aquifer characteristics. Performed; groundwater tracer and field measurement pilot study to evaluate pattern and radius of groundwater circulation induced around well, rate of groundwater circulation induced, and well stripping efficiency and contaminant mass removal rates. Conducted three-dimensional computer model simulations (MODFLOW and MT3D) to evaluate test data. Success of the initial pilot phase led to design and installation of a full-scale system under a second phase of testing. Abandoned Knitting Mill, South Carolina 1994-1995. Designed and supervised installation of line of in-well aeration wells to intercept and treat migrating groundwater plume of chlorinated solvents and prevent contamination of domestic and municipal water supply wells. Thiokol Rocket Fuel Production Site, Utah 1993-1994, 1996. Provided field investigation support under RCRA to determine the impact of volatile organic solvents on groundwater quality in fractured limestone and alluvial aquifers over a three square mile area. Installed monitor well network and analyzed long-term pump test data. Directed the implementation of a numerical groundwater flow (MODFLOW) and solute transport model (RAND3D) to evaluate the effectiveness of remedial options, determine downgradient compliance points, and provide the basis for a human health risk assessment. Conducted remediation of soils contaminated with heavy metals (chromium, cadmium, and silver) regulated under RCRA resulting from former discharge of photo processing solutions. Arranged with mine and obtained regulatory approval to dispose of soils as ore feed to active mining facility thereby eliminating hazardous waste landfill disposal fees. Underground Gas Storage Facility, Wyoming 1995. Conducted site investigation to define contaminant distribution and aquifer properties for release of methanol at gas storage well site that was migrating towards neighboring stream. Conducted 2D groundwater flow and solute transport computer model simulations to evaluate optimal location and pumping rates of recovery wells. TODD W. SCHRAUF, P.E MINING HYDROGEOLOGY GROUP MANAGER SchraufPage 10 Salt Lake City Airport, Utah, 1994-1995. Project manager and technical director for contract providing remedial design services. Conducted site investigations and PRP identifications including detailed evaluation of free-product chemistry in multi-owner tank farms; and designed free-product recovery systems at two sites, and air sparging/soil venting system at one site. Conducted computer modeling of free-product recovery to optimize pumping well construction, locations, and pumping rates. PST Fund Actuarial Study, Utah 1994. Responsible for collection and sorting of state and private databases to obtain information and develop a risk model to assess expected claims from leaking USTs to state PST insurance fund over a 10-year future period. Developed and implemented a spreadsheet model which included an evaluation of the number and age of tanks (now and into the future), probability of a leak from a tank (by type of leak and age of tank), and probability of the cost of a release (by type of release and age of tank). UST Services Contract, Utah 1994-1996. Supervised contract providing site investigation and release abatement services under LUST/TRUST funds at 12 sites statewide. Work included soil and groundwater sampling (geoprobe and hollow stem auger), well installation, aquifer testing, soil vapor extraction system testing, source identification, detailed evaluation of free-product chemistry, evaluation of natural biodegradation potential, and design of interceptor trench, vapor abatement, and free-product recovery systems. Crysen Oil Refinery Remediation, Utah 1993-1994. Conducted 2D groundwater flow computer model simulations to evaluate the performance of interceptor trench and downgradient injection wells for site remediation. Conducted 3Dcomputer model simulations of nitrate injection for pilot scale design and regulatory permitting. Conducted initial investigation and subsequent pilot tests to evaluate feasibility of biological degradation by denitrifying bacteria. Grain Silo Remediation Project, Utah 1993. Conducted site assessment, remedial investigation, feasibility studies, and development of a Corrective Action Plan for a chlorinated solvent release. Conducted field and laboratory testing and three-dimensional groundwater flow and solute transport modeling to evaluate the effectiveness of remedial options in containing and/or removing the contaminants. Soil Remediation Project, Utah 1990. Conducted remedial investigation, developed and implemented remedial action plan, and assisted in client/regulatory agency negotiations for the RCRA regulated release of waste oil and chlorinated solvents from USTs. Remedial action included soil removal, disposal, and replacement below an existing 3-story concrete parking and office structure. Hot Springs Remediation Project, Idaho 1990. Conducted remedial system monitoring, evaluation of preferential flow channels in tufa formation using aquifer testing, and evaluation of iron bacteria filtration system for downgradient hot springs pool. Conducted negotiations with regulatory agencies regarding additional actions. Power Substation Remedial Investigation, California 1990. Conducted remedial investigation and feasibility study for cleanup of soils containing solvents, heavy metals, pesticides, PCBs, and petroleum hydrocarbons affected by substation expansion project under California Health Service regulations. Transformer/Motor Shop Remedial Investigation, Washington 1988-1989. Conducted field investigations and developed remedial alternatives for one CERCLA and one RCRA site (former transformer/motor repair shops) involving soil, groundwater, and structural (building and utility) contamination by PCBs, chlorinated solvents, and heavy metals. RCRA Landfill Permitting, Oregon 1986. Reviewed environmental and hydrological site evaluation for Part B RCRA permit application for hazardous waste landfill. Developed and evaluated monitor well system for leak detection based on probabilistic model of landfill release points and migration pathways. Semiconductor Plant Remedial Investigation, California, 1986-1988. Assisted in the remedial investigation and feasibility study for interim remedial action of chlorinated solvent contamination under CERCLA involving slurry wall installation combined with groundwater extraction and treatment. Provided oversight of mud rotary drilling operations, soil sampling and logging, performance of aquifer drawdown and recovery tests, and coordination of sample analysis by on-site field laboratory. RCRA Landfill Permitting, Oregon, 1986. Reviewed environmental and hydrological site evaluation for Part B RCRA permit application for hazardous waste landfill. Developed and evaluated monitor well system for leak detection based on probabilistic model of landfill release points and migration pathways. Semiconductor Plant Remedial Investigation, California, 1986-1988. Assisted in the remedial investigation and feasibility study for interim remedial action of chlorinated solvent contamination under CERCLA involving slurry wall installation combined with groundwater extraction and treatment. Provided oversight of mud rotary drilling operations, soil sampling and logging, performance of aquifer drawdown and recovery tests, and coordination of sample analysis by on-site field laboratory. TODD W. SCHRAUF, P.E MINING HYDROGEOLOGY GROUP MANAGER SchraufPage 11 PUBLICATIONS T. Schrauf and M. Smith. “Thermodynamic Modeling of Heap Leach Operation, Example Applications and Results” InfoMine Heap Leach Mining Solutions Conference, Lima, Peru, Oct. 2016 T. Schrauf, M. Smith, and J. Scott. “Evaluation of Operational Strategies for Heap Leaching of Gold Ores under Sub-Zero Temperatures, Coffee Project, Kaminak Gold” Society of Mining Engineers Annual Conference, Phoenix, Arizona, Feb. 2016. T. Schrauf, M. Smith, and M. Harris. “Use of a Geomembrane Cover to Increase Ore Temperatures in a Pilot Heap Leach of Chalcopyrite Ore”, Proc. of Geosynthetics Mining Solutions, Vancouver, B.C., Sep. 2014. T. Schrauf. “Groundwater Modeling of Fractured Bedrock Flow at an Open Pit Copper Mining Operation – Comparison of Model Predictions and Site Measurements.” PEST Conference, Bolinger Center, Potomac, Maryland, Nov. 2009. T. Schrauf and M. Smith, “Humedales de Tratamiento de Drenaje de Mina.” Mineria, No. 338, pg. 16, Nov. 2005. Bentley, H., S. Smith, and T. Schrauf. “Baro-Pneumatic estimation of landfill gas generation rates at four landfills in the southeastern United States”, Proc 28th Landfill Gas Symp., San Diego, 2005. T. Schrauf. “A Well-Developed Cleanup Technology,” Environmental Protection, 1996. T. Schrauf and L.H. Pennington. “Design and Application of an Alternative Groundwater Sparging Technology”, In Situ Aeration: Air Sparging, Bioventing, and Related Remediation Processes. Edited by R.E. Hinchee, R.N. Miller, and P.C. Johnson. Battelle Press, Columbus, Ohio. pp. 145-158, 1996. T. Schrauf, P. Sheehan, and L. Pennington. “Alternative Method of Groundwater Sparging for Petroleum Hydrocarbon Remediation”, Remediation. Vol 4(1). pp. 93-114, December, 1993. Schrauf, T., and W.S. Dershowitz, 1988. Defining an Equivalent Porous Media for Fractured Rock Masses using Discrete Fracture Models. Fourth Canadian/American Conference on Hydrogeology; Fluid Flow, Heat Transfer and Mass Transport in Fractured Rocks, Banff, vol. 4, p. 40-51. T. Schrauf and D. Evans. “Laboratory Studies of Gas Flow through a Single Natural Fracture”, Water Resources Research. Vol. 22(7), 1988. Dershowitz, W. and T. Schrauf, “Discrete fracture flow modeling with the Jinx package”, 28th U.S. Symp. Rock Mech. Tucson, Arizona, 1987. Schrauf, T., Sinha, K., Buskirk, R.V., and Hanson, J. “Mutliple- fracture stimulation using controlled pulse pressurization Final report, March 1983-December 1985”, Technical Report Terra Tek, Salt Lake City, 1986 T. Schrauf. Relationship between the gas conductivity and geometry of a natural fracture. Master’s Thesis University of Arizona, 1984. M. Board and T. Schrauf. Instrument selection, installation, and calibration for the spent-fuel mine-by, Nevada Test Site, Climax Stock, 1980. W. Hustrulid and T. Schrauf. “Borehole Modulus Measurements with the CSM Cell in Swedish Granite”, Proc. 20th U.S. Symp. Rock Mech., Austin, Texas, 1979. H. Pratt, E. Simonson, T. Schrauf, W. Hustrulid, P. Nelson, A. DuBois, E. Binnall, and R. Haught. “A Large Scale In-Situ Study to Determine Temperature, Deformation, and Stress Fields Associated with Heater Experiments in Crystalline Rock”, Proc. 4th Cong. Inc. Soc. Rock Mech. Vol 2. Montreaux, Switzerland, 1979. T. Schrauf and H. Pratt. “Review of Current Capabilities for Measurement of Stress, Displacement, and In-Situ Deformation Modulus: Technical Report ONWI”, Terra Tek, Salt Lake City, 1979. H. Pratt, R. Lingle, and T. Schrauf. “Laboratory Measured Material Properties of Quartz Monzonite, Climax Stock, Nevada Test Site”, Terra Tek, Salt Lake City, Report to Lawrence Livermore Laboratory, UCRL-15073, Jun. 1979. T. Schrauf and M. Board. “Instrument Selection, Installation, and Analysis of Data for the Spent Fuel Mine-By, Nevada Test Site, Climax Stock”, Terra Tek, Salt Lake City, Report to Lawrence Livermore Laboratory, UCRL-15076, Jul. 1979. 1 UTE MOUNTAIN UTE TRIBE COMMENTS ON RECLAMATION PLAN 5.1 PART IV JULY 31, 2017 The following are the UMUT Comments on Reclamation Plan 5.1 for Radioactive Material License #UT1900479, Amendment #8. IV-A With the exceptions of the Evapotranspirative cover (ET Cover) components of the revised cover design from the 5.0 version, the other major concerns raised by the Tribe in 2011 need to be included in the 5.1 version regarding the disposal area located in the current area of Cell 1. The Tribe requires a more robust liner system than a compacted clay liner.1 The contaminated material disposal area in current of area of Cell 1 lacks several protections for long term reclamation. A clay liner described in Reclamation Plan 5.1, Attachment A Technical Specifications for Reclamation of the White Mesa Mill Facility, Blanding Utah, Part 4.2.2, under the disposal area is inadequate for multiple reasons:  A clay liner in an arid environment is likely to dry out over time and crack2, reducing its effectiveness in containment over the required 1000 year performance period as specified in 10 CFR, Part 40 Appendix A, Criterion 6.  In Reclamation Plan 5.1, Appendix B, Preliminary Decommissioning Plan 2.6.2 (3), EFRI states that “the liquid, sediments and solids collected will either be reused or transported to the last active tailings cell or Cell 1 Disposal area, or treated for permitted discharge.”  Disposal of liquids in the clay lined disposal area would not meet industry or regulatory standards for a double-lined liquid cell with leak detection.  Random Materials in the proposed demolition disposal area will contain radioactive material due to the burden of costs and pollution control associated with cleaning such debris, and thus should be contained within a synthetically lined tailings system (60 mil HDPE is the industry standard)3, 1 see Exhibit T, December 16, 2011 Comments on DUSA RML Renewal RE: Reclamation Plan Deficiency List 2 see RRD Corp, December 2011, Part 1.1 3 see RRD Corp, December 2011, Part 1.3 2 IV-B The Tribe requires the proposed storm water catchment basin (adjacent to the contaminated material disposal area shown in Reclamation Plan 5.1 Drawing REC-3) to be relocated. Positioning a body of water (after storm events and prior to evaporation) against the containment dike for the disposal area poses risks to the integrity of the dike and may cause seepage into and leaching from the radioactive materials within the disposal area, especially when considered over the required 1000 year performance period. IV-C The Tribe requests that the storm water management during decommissioning and reclamation be revised in the Reclamation Plan to avoid discharge of radioactive storm water from the site. Storm water management during reclamation is proposed to conform to the current, approved Storm Water Best Management Practices Plan with water being diverted from the mill and ore pad areas into the Cell 1 area of the facility, as described in Reclamation Plan 5.1, Appendix B, Preliminary Decommissioning Plan Part 2.6.1. The plan also calls for Cell 1 to be excavated, a sedimentation basin built for non-radioactive storm water, and the disposal area to be isolated from the rest of the storm water from the mill and ore pad area. It is unclear how drainage into Cell 1 as approved in the Storm Water Best Management Practices Plan can continue if cell 1 doesn’t exist any longer in its current form. Either the disposal area will catch storm water from the mill and ore pad area and function as an illegal evaporation pond before its final cover is installed, or the radioactive storm water will be diverted into the retention basin for non- radioactive storm water, or all of the water will need to be pumped to the last active tailings cell. The cell 1 disposal area is also proposed to be designed with its eastern dike 6 feet higher than top of the adjacent storm water basin, so it will not catch direct run-off from the mill area during decommissioning and demolition. IV-D The Tribe requests that a biointrusion barrier be installed in the final cover design. Reclamation Plan 5.1 lacks an adequate biointrusion control above radon barrier, as described in Appendix A, Tailings Cover Design, Section L.2.1 shows the biointrusion included as part of the compacted soil within Layer 3, Growth Medium Layer. Installation of a specific biointrustion layer directly above the radon barrier would be more effective and protective throughout the 1000 year performance period. The potential drying and cracking of clay would make it more effective to install a clean rock layer to deter intrusion by mammals and invertebrates. 3 IV-E The Tribe requests that a capillary break be installed in the final cover design. Reclamation Plan 5.1 lacks a capillary break. As described in Appendix A, Tailings Cover Design, Section L.2.1 shows the “water storage” included as part of the compacted soil within Layer 3, Growth Medium Layer. If the soil is compacted sufficiently to also be a biointrusion layer, it is likely it will not hold sufficient water to be effective in water storage during wetter times, such as winter when plant transpiration is reduced. A capillary break would increase water storage and reduce likelihood of percolation to the radon barrier. IV-F The Tribe requests that a geomembrane be installed in the final cover design. Reclamation Plan 5.1 lacks a geomembrane above the radon barrier. A geomembrane would greatly reduce the likelihood of percolation to the radon barrier. A geomembrane could also perform as a biointrusion layer. The proposed design for on-site storage of the SML material in Gore, OK includes a geomembrane as well as the synthetic liners on the bottom of the cell. Clearly the by-product and waste material in White Mesa requires the same protection to be durable for the 1000 year performance period. To maximize performance for the 1000 year performance period, the best design would employ a capillary break, biointrusion barrier and a geomembrane below the growth layer and vegetative cover. IV-G The Tribe requires a correct representation of materials to be permanently contained in Cell 2. Cell 2 waste is misrepresented (Appendix A, Tailings Cover Design, Section L.1, pp. 1), the type of material in Cell 2 in not fully represented by EFRI. The material contains large quantities of mill waste, such as contaminated equipment and crushed barrels. IV-H The Tribe requires a correct representation of materials to be permanently contained in Cell 3. Cell 3 waste is misrepresented (Appendix A, Tailings Cover Design, Section L.1, pp. 1): The type of material in Cell 3 in not fully represented by EFRI. It also has large quantities of In-Situ Leachate waste materials and mill wastes. A correct representation materials to be permanently contained is required. IV-I The Tribe requires that DWMRC must not allow continued disposal into a cell in final closure. Reclamation Plan 5.1, Part 6.2.3 (d) states that “the license authorizes a portion of a specified impoundment to accept uranium by-product materials that are similar in physical, chemical and 4 radiological characteristics to the uranium mill tailings and associated wastes already in the pile or impoundment, from other sources, during the closure process and on-site generated trash. 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 completed as part of meeting the deadline for final radon barrier construction for the impoundment.” Section 6.2.3(d) does not tell the whole story about this possibility for continued disposal in 10 CFR Part 40, Appendix A. It quotes part of Criterion 6A paragraph (3), but does not put into the full context of specifically needing approval by the Commission, or this case the Agreement State of Utah, the need for a specific approved deadline for completion of the final radon barrier, and possibly interim milestones for the very items that EFRI has stated they cannot have milestones for: dewatering and stabilization in particular. Paragraph (3), also requires compliance with Paragraph (2) that alludes to further need for approval by the Commission or the Agreement State for extensions of time for milestones, after a public participation process, and ensuring compliance with the NESHAPS Subpart W radon emission standards, and that they are making good faith efforts to install the final radon barrier. (10 CFR Part 40 Appendix A Criterion 6A, paragraph (1-3)) It appears that the applicant is trying to obtain this authorization for continued disposal into a cell that has been declared to be in final closure by accomplishing only part of the approval and compliance requirements. If this is the justification for failing to fill Cell 3 with tailings instead of in-situ leachate waste, it should not be authorized based on the fact that EFRI violated the NESHAPS Subpart W emission standards on cell 3. This also contradicts the definition of closure that applied by both U.S. EPA in 40 CFR Part 192, 40 CF Part 61 and by the Nuclear Regulatory in 10 CFR Part 40, Appendix A. Both agencies clearly distinguish between when a cell, or conventional impoundment, is in “operation” and when it is in “final closure.” The two cannot be simultaneous and thus EFRI cannot dispose of anything in a cell that is in final closure. And a phased disposal facility will inherently have some cells in final closure if it has more than 2 operational cells, as described in 40 CFR Part 61, subpart W. Once a cell is in final closure, it must be dewatered, stabilized and the radon barrier built and that cannot be accomplish “as expeditiously as practicable considering technological feasibility” when there is hole with liquid waste being put into it. IV-J The Tribe is requiring clarification on figure 1A and soil sampling methodology. Reclamation Plan 5.1, Attachment A, Technical Specifications for Reclamation of the White Mesa Mill Facility, pp. A-33 shows data for Figure A-1, as of September 2011. This was the S- shaped 30 m x 30 m soil scanning procedure described in the 2007 license application. It appears that now a grid pattern for gamma surveys and subsequently related soil sampling and remediation decision-making is planned to be employed. The currently proposed grid pattern will differentiate 3 classes of survey and sampling areas and not employ the S-shaped survey pattern described in the 2007 license application with reclamation Plan 5.0. Thus it appears that 5 Figure A-1 is not meant to be in the plan at this time or its methodology used for final soil contamination assessments. Please clarify if this is a ‘left-over’ from Reclamation Plan 5.0 or if it has any use in the new methodology. IV-K The Tribe requires proper consideration of Th-230 and Ra-226 activity concentrations to be protective of public and safety throughout and beyond the 1,000 year performance period. For the tailing impoundments and radon cover design, the concentrations of the amount of Th- 230 and Ra-226 were calculated to be a weighted average based on past data. A projected concentration should be added to the source term activity concentrations. With the acceptance of alternative fuels as a historic option, a more conservative estimation should be performed with materials with increased Th-230 and Ra-226 activity concentrations to specifically include the amounts of alternative feed materials in the current license and the one under consideration for renewal. For example, in the case of SFC raffinate and materials, (Th-230 activity concentrations from 43,900 to 74,400 pCi/g) those quantities should be added to the source term. Also the source term from the Dawn Mining operation in Wellpinit, Washington, as well as others. Although the concentrations of uraniums and thoriums were compared to those already processed through the mill and disposed in the impoundment cells in the SER for the SFC Fuel processing, this is an additional source and the MILDOS code should be run so results could be compared to the previous estimated MILDOS doses, to ensure risks or doses, associated with the additional source material, not previously considered, is at a minimum level for the potential receptors. IV-L The Tribe requests that institutional control plan for security and maintenance of facilities be developed to prevent intrusion. Though there are funds set aside for long term closure, there is no mention of an institutional control plan for security and maintenance of facilities to prevent intrusion other than a fence, mainly to keep out grazing cows. This is a concern for the tribal members of the future, that they remain aware of the health and environmental risks associated with intrusion of the remediated facility which lies adjacent to their tribal lands. The highest activity of radon release from the Th-230 and Ra-226 decay was at the 1000 year mark (the last time frame considered in the analysis). References: Water Balance Covers for Waste Containment, Principals and Practice, Albright, Benson and Waugh, ASCE Press 2010 40 CRF Part 61 6 40 CFR Part 192 10 CFR Part 40 URS, for Utah DEQ, DRC, Safety Evaluation Report (SER) for Amendment Request to Process an Alternate Feed Material (the SFC Uranium Material) at White Mesa Mill from Sequoyah Fuels Corporation, Gore, Oklahoma, May 2015 P.O. Box 4049, Incline Village, Nevada 89450 USA +1.530.575.6555 RRD INTERNATIONAL CORP Geotechnical & Environmental Consulting for Mining & Mineral Processing _____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ 1 December 2011 Ms. Celene Hawkins Associate General Counsel Ute Mountain Ute Tribe P.O. Box 128 Towaoc, CO 81334 Re: Review of Containment and Closure Issues Denison USA / White Mesa Uranium Mill Relicensing Application, Revision 5.0, Sept 2011 Dear Ms. Hawkins, This letter presents the findings of a focused review of the above referenced documents and resulting recommendations. This letter is divided into three parts: 1. Liner for the new cell for demolition debris 2. Liner systems, Cells 1, 2 and 3 3. Closure and financial surety Each section is designed to “stand alone” but there are common themes. The reference citations are provided at the end of each section. 1.0 Liner for new cell for demolition debris A thin (12” thick) compacted clay liner does not appear to be either best practice or a reasonable level of containment for several reasons. Thin clay liners are (1) unreliable in general, (2) unsuitable for disposal of any wastes other than clean construction & demolition debris, and (3) not in compliance with industry or regulatory standards. 1.1. Thin clay liners are unreliable The most authoritive study on the actual performance of compacted clay liners evaluated 85 full-scale installations, comparing actual field hydraulic conductivity (“permeability” or “k” herein) to predicted performance from laboratory permeability test results. A key result of this study was that poor correlation exists between laboratory and field permeability and that this lack of correlation increases dramatically for liners thinner than 24 inches (Benson, 1999). Another important research paper (Koerner, 2006) cites the inability to maintain moisture in the compacted clay in the long-term as a key factor in degradation of performance. This is pronounced in arid and semi-arid sites (such as Southern Utah) where the underlying natural soils and overlying waste will be substantially drier than the clay. This moisture gradient causes water to migrate out of the clay, causing shrinkage and related cracking. Many studies, including Benson (1999), Albright (2006) and Maine DEP (2005), show that drying dramatically increases permeability - by up to 4 orders of magnitude - and this effect is worse for thin liners. The most recent comprehensive study on clay field performance focused on caps, which are affected by drying as well as other environmental factors. This study (Benson, 2007) found that the in-service performance will generally be two to three orders of magnitude worse (i.e., higher permeability) than short-term testing predicts, as illustrated in Figure 1.1. This follows on earlier research on compacted clay liners, which had similar results, as shown in Figures 1.2 and 1.3 (Benson, 1999). Exhibit H Review of Containment and Closure Issues Denison USA / White Mesa Uranium Mill - Relicensing Application, Revision 5.0, Sept 2011 P.O. Box 4049, Incline Village, Nevada 89450 USA +1.530.575.6555 2 Figure 1.1: Short- and Long-Term Permeability of Clay Caps (Benson, 2007) Figure 1.2: Field vs. laboratory permeability of compacted clay liners (Benson, 1999) Review of Containment and Closure Issues Denison USA / White Mesa Uranium Mill - Relicensing Application, Revision 5.0, Sept 2011 P.O. Box 4049, Incline Village, Nevada 89450 USA +1.530.575.6555 3 Figure 1.3: Field permeability vs. compacted clay liner thickness (Benson, 1999) 1.2. Unsuitable for uranium mill demolition debris Given that the debris will include random pieces of plastic liner from Cell 1, pieces of concrete and reinforcing steel of various sizes from dust to intact structures, and soil related with and contaminated by these components, it will be effectively impossible to fully clean the debris. Any expectation that this will be accomplished is not based on industry experience or any collaborating evidence. Any attempt to fully decontaminate the debris would produce a vast quantity of liquid and semi-solid wastes not currently provided for in the closure plan. Such an approach would require a decontamination facility, evaporation ponds for the wash water, and a sludge disposal cell (double lined, similar to the tailings cells) for disposal of the cleaning residues. 1.3. Regulatory and industry standards Industry standard practice is to dispose of the plant demolition materials in the tailings facility (Energy Information Admin, 1995; USDOE Fact Sheet, Monticello, 1995). Based on the latest DRC-approved tailings cells (4a and 4b) at White Mesa, the accepted standard for tailings in Utah is a double liner consisting of a 60-mil thick high density polyethylene (HDPE) liner over a synthetic drainage layer over another 60-mil HDPE liner over a geosynthetic clay liner. Given the lack of water in the demolition debris, the top liner and drain layer could be omitted for the demolition disposal cell (assuming it cannot be used for any liquids). Non-radioactive wastes are regulated by the USEPA Resource Conservation and Recovery Act, either Subtitle C (hazardous wastes) or D (municipal solid wastes, MSW). The least of these prescriptive standards requires at least a 60-mil HDPE over 24” of clay (k<1x10-7 cm/s); under no conditions is a single 12-inch compacted clay liner acceptable. Any potentially radioactive waste, even of the lowest levels, should be considered as higher-risk than MSW and thus require a higher level of containment. Review of Containment and Closure Issues Denison USA / White Mesa Uranium Mill - Relicensing Application, Revision 5.0, Sept 2011 P.O. Box 4049, Incline Village, Nevada 89450 USA +1.530.575.6555 4 1.4 References Albright, W. H., Benson, C. H. Gee, G. W., Abichou, T., Tyler, S. W. and Rock, S. A., “Field performance of a compacted clay landfill final cover at a humid site,” ASCE Jr. Geotech. Geoenv. Eng., Nov. (2006) Benson, C. H., Daniel, D. E. and Boutwell, G. P., “Field performance of compacted clay liners,” ASCE Jr. Geotech. Geoenviron. Eng. (1999) Benson, C. H., Sawangsuriya, A., Trzebiatowski, B., and Albright, W. H., “Post-construction changed in the hydraulic properties of water balance cover soils,” DRI Alternative Cover Assessment Program (2007) Energy Information Administration, “Decommissioning of U.S. uranium production facilities,” office of Coal, Nuclear, Electrical and Alternative Fuels, U.S. Dept. of Energy, Washington, D.C, Feb. (1995) Fact Sheet, “Monticello remedial action project vicinity property cleanup process,” US Dept. of Energy, Nov. (1995) Koerner, R. M., “The uselessness of compacted clay liners in the closure (i.e., capping) of landfills,” GRI White Paper #10, Geosynthetic Institute and Drexel University, Jan. (2006) Maine DEP, “Implementation of a sealed double ring infiltrometer to evaluate the long-term hydraulic performance of the barrier soil layer component of a composite landfill cover system in Norridgewock, Maine,” Bureau of Reclamation and Waste Management, Solid Waste Engineering Unit, Dept. of Environmental Protection, May (2005) 2.0 Liner system, Cells 1, 2 and 3 The existing liner system in the original three cells is a 30-mil thick polyvinyl chloride (PVC) geomembrane over a drainage layer. This liner system is inadequate for uranium mill tailings containment for a variety of reasons, as summarized below. 2.1. The system did not meet industry standards at the time of installation Weak cyanide mill tailings from gold and silver operations would generally be considered as a lower- level waste than uranium mill tailings. By the early 1980s, a number of these tailings impoundments in the USA were using containment systems equal to or more advanced than that used in cells 1-3. Examples include: Paradise Peak, Nevada; Jamestown, California; and Ridgeway, North Carolina. There seems to be no other examples of contemporaneous tailings facilities using 30 mil PVC. The incompatibility of PVC resins and plasticizers with organic solvents, as discussed in a following subsection, was also well known by 1979. Further and more importantly, modern containment engineering was born in the mid 1980s. Before then, there was very little engineering involved and essentially no inspection or quality control during construction. A number of practitioners made a business in the late 1980s of replacing containment systems installed in the early 1980s. A surprising percentage of those systems failed completely or simply performed very badly due to combinations of poor quality materials, poor installation practices, and lack of engineering inspection during installation. As an example, the Palo Verde Nuclear Generating Station (Arizona), built in the mid 1980s, finished relining all of its containment facilities in 2010. Many of the mines in Nevada (where most geomembrane liners were used circa 1980) either abandoned those early facilities or completely reconstructed them. This also happened in South Dakota at three of the gold mines built circa 1985, including the Golden Reward and Annie Creek mines. 2.2. PVC is not compatible with acidic wastes PVC geomembranes have limited tolerance of acidic (low pH) wastes and are generally not recommended for such containments, and PVC is only rarely used in such applications (Smith, 2004). PVC geomembranes are more flexible than PVC pipe to a great extent because of plasticizers added to the base resins. Acids, solvents and other chemicals extract these plasticizers, causing the geomembrane to become brittle, losing critical flexibility and therefore tolerance for settlement, movement of the wastes, planar and normal shear forces, and so forth (see Photo 2.1). As the Table 2.1 Review of Containment and Closure Issues Denison USA / White Mesa Uranium Mill - Relicensing Application, Revision 5.0, Sept 2011 P.O. Box 4049, Incline Village, Nevada 89450 USA +1.530.575.6555 5 and Photo 2.1 show, PVC can have a strong negative reaction to acidic wastes, losing 94% of the seam strength and 75% of flexibility (i.e., elongation at break) in as little as 2 months. Importantly, there is no collaborating data to support a thin PVC liner in an acidic environment for over 30 years (Thiel, 2003). This data gap should be filled before any such installation is allowed to continue in service. Table 2.1: PVC Aging Test Results (% change from original) (Smith, 2004) Immersion Time (Days) Tensile Strength @ Break Elongation at Break Puncture Tear Seam Shear Elongation 30 31/27 -58/-74 129 119/122 -90 60 62/40 -71/-75 120 122/110 -94 120 54/54 -66/-76 130 107/112 -86 Photo 2.1: 30 mil PVC seam, before acid exposure (left) & after 60 days (right) (Smith, 2004) 2.3. PVC is not compatible with the alternative feed wastes The alternative feed wastes, and therefore the tailings solutions, contain these organic solvents: benzene, carbon tetrachloride, chloroform, methylene chloride and naphthalene. All of these are aggressive to PVC resin and generally more aggressive to the plasticizers commonly used to make PVC geomembranes flexible. Three industry sources were considered for the compatibility of PVC resin with these chemicals and those are summarized in Table 2.2. Plasticizers and the other additives are also (and often more) susceptible to attack and leaching by solvents, but each plasticizer is unique and thus it is impossible to know how that component of the geomembranes used at White Mesa will react with specific compatibility testing. However, broad conclusions can be drawn about the base PVC resin, and the performance of the geomembrane will likely be worse than predicted from the resin alone. Dissolution of the base resin will mobilize PVC into the groundwater; monitoring results show elevated (above background) levels of vinyl chlorides. This supports the conclusions that (i) the geomembranes are being attacked chemically, and (ii) they have exceeded their service life. Review of Containment and Closure Issues Denison USA / White Mesa Uranium Mill - Relicensing Application, Revision 5.0, Sept 2011 P.O. Box 4049, Incline Village, Nevada 89450 USA +1.530.575.6555 6 Table 2.2: PVC compatibility data Source Chemical Harmsco Spilltech Cole-Palmer Benzene NC B (for <1%) C1 Carbon tetrachloride C C D Chloroform NC X D Methylene chloride NC not rated D Naphthalene NC X D Ranking key C=compatible NC=not compatible A=little to minor effect B=minor to moderate effect C=severe effect X=no test data, likely to have severe effect C=fair D=severe effect 1=to 72of Notes: PVC base resin without plasticizer or other additives. The plasticizer agent(s) is unknown but likely to have more serious incompatibility issues than the base resin. 2.4. The useful life was less than 30 years The tailings cells were put in service as early as 1979, 32 years ago. There is limited research on the useful life of thin PVC geomembranes in containment applications because they have rarely been used as such and are not used in modern containments. One authoritive study, recently updated, suggests a useful life (defined as a loss of 50% of physical properties) for PVC geomembranes of 18 to 32 years depending on geomembrane thickness, cover conditions, and resin formulation (Koerner, 2011). This is for non-acid installations and therefore over-predicts useful life in a chemically aggressive environment. Considering the service life without regard to the aggressive chemicals, a multi-industry study of geomembrane performance measured plasticizer loss from thin PVC geomembranes at 10 sites over 22 years. Figure 2.1 shows that plasticizer loss reached 50% in less than 20 years. Useful life is generally taken as loss of 50% of physical properties, and plasticizer is one of the key properties of flexible geomembranes. A literature search on manufacturer warranties for PVC geomembranes did not produce a single example of a warranty for a liner produced circa 1979 of longer than 20 years. Modern PVC liners are of much better quality, though modern warranties are for no longer than 25 years. In the author’s experience it is uncommon for a PVC geomembrane to carry any warranty when exposed for prolonged periods to non-compatible chemicals, especially organic solvents. The mining industry has broadly avoided thin PVC geomembranes for acid tailings containment. A search of the literature did not find a single other example of a 30-mil (or thinner) PVC geomembrane used in an acidic mill tailings impoundment or for containment of organic solvents. Experience at White Mesa suggests that these liners have exceeded their useful life. There is considerable evidence of containment failure (nitrate and chloride plumes below Cell 1, a uranium seep to the east) and Denison elected a much more robust system (double 60-mil HDPE) for the new tailings cells. The lack of a reliable monitoring system (Denison’s own study, submitted as Vol. 4 of the original relicensing application, predicts nominally 250 years for a leak to be detected by the monitoring wells) compounds the problem by given false “negative” results. Review of Containment and Closure Issues Denison USA / White Mesa Uranium Mill - Relicensing Application, Revision 5.0, Sept 2011 P.O. Box 4049, Incline Village, Nevada 89450 USA +1.530.575.6555 7 Figure 2.1: Plastisicer loss in thin PVC geomembrane canal liners (below water level) in Western USA (1966-2004) (Stark, 2005) 2.5. Temporary caps for Cells 1, 2 and 3 inappropriate Given that the liners in the first three cells have passed their useful life, and given that there is important evidence of groundwater contamination at the site, these cells should be taken out of service and put into final closure as soon as possible. Temporary caps will allow continued infiltration of rainwater, and continued, even incidental, disposal of wastes will add to the total contaminate load available to seep through the liner system. There is also no good reason to defer final closure of these cells and the standard in the industry. The standard “encouraged” by all other regulatory entities where the author has experience, from Nevada and Arizona to Peru and Chile, is to maximize concurrent closure. This provides a variety of advantages, including: o Reducing environmental footprint and contamination risk annually; o Reducing the liability that may be transferred to the agency at abandonment; o Full-scale verification of the closure concept and optimization of that design based on field experience; and o Better cash flow management by the owner and a reduced likelihood that the owner will not be able to fund the full closure. 2.5. References Cole-Palemer, “Chemical compatability,”www.coleparmer.com/Chemical-Resistance (undated) Harmsco Filtration Products, “Chemical compatibility chart,” danamark.com/files/ Chemical_Compatibility.pdf (undated) Koerner, R. M., Hsuan, G. and Koerner, G. R., “Geomembrane lifetime prediction: unexposed and exposed conditions,” GRI White Paper #6, Geosynthetic Institute and Drexel University, Feb. (2011) Spilltech, “Chemical compatibility guide for containment berms,” www.spilltech.com/wcsstore/ SpillTechUSCatalogAssetStore/Attachment/documents/ccg/GEOMEMBRANE.pdf (undated) Review of Containment and Closure Issues Denison USA / White Mesa Uranium Mill - Relicensing Application, Revision 5.0, Sept 2011 P.O. Box 4049, Incline Village, Nevada 89450 USA +1.530.575.6555 8 Smith, M. E., Thiel, R., “Concentrated acid pre-curing of copper ores and geomembrane liners,” The Mining Record, May. (2004) Stark, T. D., Choi, H. and Diebel, P. W., “Influence of plasticizer molecular weight on plasticizer retention in PVC geomembranes,” Geosynthetics International, V. 12, No. 1. (2005) Thiel, R. and Smith, M. E., “State of the practice review of heap leach pad design issues,” GRI, Dec. (2003) 3.0 Closure and financial surety 3.1. Review of the Denison closure plan Time is insufficient for a full, detailed review of the closure plan, and thus, the focus herein will be on the capping systems and how they compare to the Monticello cap. Monticello is an important reference project because it is nearby and in a similar climate, geologic and social-economic setting. Monticello was also closed by a government agency and thus presents the methods (and costs) that would most likely be applied to White Mesa in the event of an owner walk-away. Table 3.1 compares the components of the two projects’ tailings cell caps. Table 3.1: Comparison of capping systems at Monticello and White Mesa Cap Component Monticello Thickness White Mesa Thickness Vegetation inches inches Erosion control 0.67 ft 0.5 ft Water storage/frost protection 4.83 ft 3.5 ft Biotic intrusion (gravel) 1.00 none Geotextile ~100 mil none Capillary break (sand) 1.17 ft none HDPE geomembrane liner 60 mil none Radon barrier (compacted clay) 2.00 ft 5.0 ft TOTAL 9.67 ft 9.0 ft The White Mesa cap omits several important components used at Monticello, listed and discussed below. All of these missing components should be included in the White Mesa caps. o Biotic intrusion layer: this is both standard practice on closure caps and needed to prevent deep burrowing animals from penetrating the cap. o Geotextile & capillary break: for a +200 year closure design, as required by law and industry practice, a water storage layer must be isolated from the balance of the system with a capillary break. Without said break, the water stored in the upper layer will be drawn into the radon barriers through the capillary action of the soils. Clayey soils can develop capillary suctions approaching 1 atmosphere and 15-foot draws are commonly seen in the field. o HDPE geomembrane: without this barrier, any seepage that penetrates the water storage layer will be available to mobilize contaminates from the waste and affect the radon barrier. The standard of care for uranium mill tailings caps is to include both a water balance cap and a low permeability caps. There is ample research showing that compacted soil barriers fail to meet design standards in the majority of cases, and they do so by a wide margin, producing field permeability several orders of magnitude higher than predicted (Benson, 2007), as shown in Figure 3.1. Review of Containment and Closure Issues Denison USA / White Mesa Uranium Mill - Relicensing Application, Revision 5.0, Sept 2011 P.O. Box 4049, Incline Village, Nevada 89450 USA +1.530.575.6555 9 Figure 3.1: Long-term cap performance v. as-built permeability (Benson, 2007) 3. 2. Review of the White Mesa closure cost estimate 3.2.1 A review of cost estimating methods Cost estimating can be divided into three broad categories, each commonly used in the industry and each having an important role. These are: o Benchmarking: costs from other sites are adapted to the target site to give guidance on total costs. The more sites studied and the more directly applicable those sites, the more accurate a benchmarking estimate can be. With a modest level of effort a cost estimate of +/-50% accuracy can be developed, and the author has had success with developing better than +/-15% estimates from robust benchmarking efforts. An example of the benchmarking approach is developing a first order estimate for a new home. If homes in your target neighborhood are selling for an average of $150 per square foot, that is a reasonable starting price for the home you are considering, with adjustments for site-specific features (e.g., in-ground pools, 3-car garages, deferred maintenance, etc); o Built-up estimates: these are cost estimates developed by “building up” the costs from line- items, generally following the engineered design. This is the most common method and this is what Denison has submitted as its closure cost estimate. A built-up estimate can be done at a wide-range of accuracies, typically ranging from +/-10% for a very detailed design supported by very accurate cost estimating and usually supporting contractor bids, to +/-50% for a conceptual design or a most advanced design for a distant future installation. These accuracies apply only to the considered closure actions; for example, if groundwater remediation is not considered in the design the accuracy percentage would be before adding possible groundwater remediation costs. o Bid-supported cost estimates: this is a process where the detailed design is put out to contractor bids where firm pricing is obtained for all major components (or the entire project). These estimates are generally very accurate (+/-15% or better) to the extent they include all Review of Containment and Closure Issues Denison USA / White Mesa Uranium Mill - Relicensing Application, Revision 5.0, Sept 2011 P.O. Box 4049, Incline Village, Nevada 89450 USA +1.530.575.6555 10 required closure actions. Bid-supported estimates are generally only applicable when a detailed design has been completed and the project is within a year or two of construction. Built-up estimates can be performed at a range of accuracies depending on (i) the level of engineering, and (ii) the reliability of the unit costs. A closure plan prepared years before closure actions are to start should be considered no better than “conceptual” and that generally suggests an accuracy of +/-50% to +/-30%. This is in part because cost estimates generally (almost universally) decline in accuracy as the forecast period increases (Lazenby, 2010). Most built-up costs will have four basic inputs: o Direct costs (labor, equipment and materials to perform the construction including mobilization and demobilization); o Indirect costs (project and company overhead, insurance, bonds, profit, etc) which commonly run 35% to 50% of direct costs; o Owner’s costs (the cost of the owner’s team to administer the project, including bidding and awarding the construction contracts, hiring a project management or construction management team, performing design changes during construction, and so forth). Owner’s costs generally run 10% to 25% of the direct costs; and o Contingency, which is reflective of the level of design and the risk of unknowns. The most common contingency used in the mining industry is 15 to 20% of the subtotal of the other three categories of costs (and, as discussed below, this is almost always inadequate). Larger contingencies are appropriate when either the design is conceptual (as in the case of most closure plans) or the site is subject to significant uncertainties (such as the extent of contamination in need of remediation). Most cost estimates do not recognize inflation or cost escalation and as such should be cited in terms of the year the estimate was based (e.g., 2010 dollars). The estimate must then be escalated to the time period in which the work will be completed, using forward-looking inflation factors appropriate for the region. Common escalation factors are 3.0 to 5.0% per year (Zuzulokc, 2004). The failure to recognize inflation in cost estimates looking out 10 to 15 years in the future creates a strong built-in bias to underestimate costs; all other factors being correct, the actual cost will be 151% to 198% of the estimate assuming there is no serious inflation. Some agencies fail to do this or presume that bond amounts can be adjusted later, but that’s not always the case. The most common scenario when a bond is “called” is because the owner went into an economic downturn, and just like it’s impossible to get a home mortgage when one’s wages are declining, it’s hard to renew and especially to increase bonds when a company is in financial trouble. Even detailed built-up cost estimates, supported by detailed engineering and claimed to contain high levels of accuracy, are generally too low. A study issued by the well-respected engineering and project management firm Pincock, Allan and Holt in 2000 made the following disturbing observations (PAH, 2000). o “It is rare, not the norm, for the actual project capital cost to be within 10 percent of the feasibility study capital estimate.”[Including contingency.] o “Within the 21 projects, only three came in under the feasibility study cost estimate.” o “Site earthworks are often underestimated.” [Closure costs are heavily earthworks.] o After escalating the estimates for the time between the estimate and actual construction at 3.5% annually, 11 of the 21 projects considered came in at 118% of the estimated cost (and those estimates included contingencies), 3 came in at 137%. The 9 projects in North America averaged 124% of estimate. o Smaller projects (i.e.,, under about $200 million) performed by smaller mining companies are most likely to have higher cost over-runs. o Other important areas that are either omitted or underestimated include owner’s costs, working capital, freight, environmental, duties and taxes. Review of Containment and Closure Issues Denison USA / White Mesa Uranium Mill - Relicensing Application, Revision 5.0, Sept 2011 P.O. Box 4049, Incline Village, Nevada 89450 USA +1.530.575.6555 11 In another study of cost overruns, those researchers analyzed 63 mining projects and found that the mean actual cost was 125% of the estimate (including contingency) and that the maximum cost was 214% of the estimate (including contingency). Nearly 70% (44) of the 63 projects underestimated the cost (Bertisen, 2008). Several other studies, summarized in a mining industry blog (Caldwell, 2007), reached two important conclusions: o The average actual closure cost in Australian mining (not uranium specific) is 6.8 times the average estimate; and o Total US mining closure liability is up to $12 billion more than the bonded total. In short, when a mining estimate is prepared for public purposes, such as closure bonding, a much more robust estimating method is needed to ensure adequate funding. Such robustness should include: o Higher unit rates to recognize the inherently more expensive delivery method; o Full recognition of indirect and agency costs; and o Significantly larger contingencies than traditionally used in mining. 3.2.2 Cost benchmarking In 2010 the author completed a broad benchmarking study of the mining industry for cost to construct both heap leach pad liner systems and closure caps. The heap leach liner costs were determined for 37 phases of recent projects, either constructed or in advanced stages of design. The closure cost was developed as a “typical” for tailings and mine waste in semi-arid sites, using data from a dozen sites and several parallel studies. The results of these benchmarking studies are summarized in Table 3.2. The Table 3.2 values can be factored to provide an estimate for a uranium mill tailings (UMT) capping system. Considering gross volumes, a UMT cap is typically about 3m thick or three times that considered in Table 3.2. But some of those layers are relatively cheap (i.e., random fill) and thus the factored cost would be less than three times. The primary “expensive” component in the table, the geomembrane liner, is about 20% of that total cost. Removing that, tripling the remaining costs, and then adding it back produces a factored cost of 260% of the 1 m thick system’s cost, or $91/m2 ($369,000/ac); $84.5/m2 ($342,292/ac) without the geomembrane. This compares well with the other benchmarked sites, as the following discussion will demonstrate, and the author’s personal experience. Table 3.2: Benchmarked Leach Pad Costs (Smith, 2011a & Smith, 2012) Case Cost in 2010 dollars (USD per square meter) Base liner systems: Mean (26 sites/37 phases) excluding drain gravel & pipe network (4 layers, ~1 m thick) $29 Range $16 to $59 Standard deviation $9.49 Mean cost with drain gravel $40 Capping system (non uranium mining): Conventional system, mean cost North America (4 layers, ~1m thick) $35 Factored costs to ~3m UMT capping system $91 Two authoritive sources for mine closure costs are AFCEE (undated) and Dwyer (1998). In a broad survey of industry practices they found the following range of capping costs for tailings and waste dumps (but not considering the more robust requirements of uranium mill tailings). The mid-value of these two ranges, $75/m2, is consistent with the factored Smith estimate of $91/m2. o AFCEE: $36 to $97/m2 or $145,828 to $392,926/ac (ET and capillary barriers, plus synthetic liners at the upper end) o Dwyer: $72 to $96/m2 or $291,657 to $388,876/ac (ET and capillary barriers only) Review of Containment and Closure Issues Denison USA / White Mesa Uranium Mill - Relicensing Application, Revision 5.0, Sept 2011 P.O. Box 4049, Incline Village, Nevada 89450 USA +1.530.575.6555 12 During the heyday of US uranium mining, there were over 50 operating conventional mills. All but one of those, White Mesa, is now shut down with varying degrees of attention to closure. The US DOE has published reports (DOE, 1995 & Robinson, 2004) on at least 43 of those sites, including both Title I and II sites (10 C.F.R. Part 40), detailing the closure costs, surety levels and other issues. Most of the closure liability comes from securing the tailings storage facilities and addressing control of radon emissions and contamination to groundwater, surface water, and land (principally dust). In some cases, tailings have been completely relocated, such as at Monticello, Utah. In others, the tailings were secured on site. About a third of these 43 sites are still the subject of on-going active controls and, to some extent, dispute about whether the sites are secured (Smith, 2010). Table 3.3 summarizes the costs at those 43 US sites. Key take-aways from these studies are the median and average closure costs per permitted acre: $350,000 and $600,000, respectively. The most directly relevant site is Monticello, with a closure cost of $1,400,000 per acre and a total cost of $520 million (2010 dollars). Table 3.3: Uranium Mill Closures in the USA (U.S. DOE, 1995 & Robinson, 2004) Total Closure & Remediation Costs (2010 Dollars) Facility Permitted Site Area (ac) Surety as of 1994 ($M) ($M) ($M/permit acre) Sites with Costs >$100M Grand Junction, Co 56 952 17.0 Moab, Ut 439 12.1 720 1.6 Monticello, Ut 380 520 1.4 Old & New Rifle, Co 55 223 4.0 Salt Lake, Ut 128 177 1.4 Naturita, Co 63 162 2.6 Durango, Co 120 130 1.1 Maybell, Co 316 122 0.39 Gunnison, Co 90 111 1.2 Falls City, Tx 593 12.7 108 0.18 Mexican Hat, Ut 235 105 0.45 Average of Sites >$100M 225 12.4 302 1.35 Average of 43 Sites 180 18.9 107 0.60 Median of 43 Sites 146 15.5 47 0.35 A German study of the 14 major uranium-producing countries and the associated closure costs was completed over a decade ago. That study considered mines producing a total of 63% of the world’s uranium and as such should be considered statistically relevant. Part of the findings of that study include: “The accumulated and estimated costs for the decommissioning and rehabilitation of the uranium-producing plants referred to in this study amount to about US $3.7 billion (cost basis: 1993). The resulting specific rehabilitation costs are US $1.25 per lb of U3O8 and US $2.20 per tonne of tailings. Omitting plants which produce/produced uranium as by-product of gold and copper production, the specific cost per tonne of milling doubles to nearly US $4.00.” (Wise Uranium, 2002). In a study of the DOE remediation projects, Robinson (2004) also calculated U.S. closure costs on a per-short-ton (st) of tailings basis. He found that “UMTRAP costs ranged from $18 [per short ton] at Mexican Hat and $19 at Monument Valley to $149 at Canonsburg and $122 at Lowman Idaho and $123 at Naturita. The average (mean) cost of UMTRAP project activities is $73 per ton of tailings.” Escalating the German costs to 2010 dollars (at 3.0% annually) the average closure cost is $6.61 per metric tonne ($5.95/st) of tailings. Escalating the Robinson study costs at the same rate produces a low of $22.14 and a mean of $89.78/st ($24 and $108 per metric tonne, respectively). Taking the German costs as the lower-bound and for an average depth of tailings equivalent to 10 to 15 tonnes per square meter (typical values for the industry), that equates to $66.10 to $99.15/m2 or a mid-range value of $83/m2. This compares well to the other per-square-meter benchmarks. Review of Containment and Closure Issues Denison USA / White Mesa Uranium Mill - Relicensing Application, Revision 5.0, Sept 2011 P.O. Box 4049, Incline Village, Nevada 89450 USA +1.530.575.6555 13 Another approach is to apply the per-tonne (or per-ton) costs directly, which first requires estimating the tailing tonnage. The mill has been operating for nominally 30 years, with much of the 1990s intermittently, and is planned to operate indefinitely into the future; for the purposes of this estimate 2020 has been taken as the closure date. Using the mill throughput of 2,000 tons per day (tpd) as authorized by Permit No. UGW3700A4 the following should be a reasonable estimate of the total tons which will require closure: 2,000 tpd x 365 x 15 years x 90% (historic, normal years) = 9,855,000 tons 2,000 tpd x 365 x 15 years x 50% (historic, intermittent years) = 5,475,000 tons 2,000 tpd x 365 x 8 years x 90% (2011 to 2020) = 5,913,000 tons TOTAL 21,243,000 tons Appling the lowest of the estimates, from the German study, produces: 21,243,000 tons x $5.95/st = $126,395,850 (before escalation to the (unknown) closure date) This estimate is within 2% of the escalated costs based on acreage (Table 3.2). Using the lowest case history from the US DOE numbers (Robinson, 2004) produces an estimated closure cost (non- escalated) of: 21,243,000 tons x $22.14/st = $470,320,020 This latter value may seem high but is in fact aligned with the larger of the U.S. closures including Monticello ($520 million). The most expensive 11 sites had a mean cost (2010 dollars) of $302 million. In other words, when groundwater and other remedial actions are fully considered, there is a very real possibility of the total closure liability will approach half a billion dollars. With the current surety scheme, nearly all of this will be unfunded. To summarize, the references reviewed considered a total of at least 110 sites worldwide, with most of those in the USA. Over half were uranium mill sites. These are summarized in Table 3.4. One conclusion that must be drawn is that a closure cost estimate significantly lower than $402,000 per acre or $100 million total must be viewed with suspicion. Denison’s latest estimate is $17.7 million or approximately $78,000 per acre of tailings. This per-acre rate is 19% of the average benchmarked cost, 13% of the average closure cost for all US UMTs and 6% of the cost for Monticello. Table 3.4: Summary of benchmarking data on closure costs Closure Cost Source No. of Sites Considered Total, US$ US$/acre Comments US DOE 1995 43 sites $107m $600k Per “permitted acre”, all UMT sites Germany/Wise Uranium 2002 14 countries $336k Sites total 63% of world uranium production, all UMT sites AFCEE & Dwyer 1998 >10 sites $303k Non escalated costs, non UMT sites Smith 2011a, 2012 factored 40 sites $369k Non UMT sites Average >110 sites $402k Not weighted Notes: 1. Costs per acre are per are of tailings capping unless otherwise noted. 2. Costs are in 2010 dollars except for AFCEE & Dwyer, where the costs have not been escalated. Review of Containment and Closure Issues Denison USA / White Mesa Uranium Mill - Relicensing Application, Revision 5.0, Sept 2011 P.O. Box 4049, Incline Village, Nevada 89450 USA +1.530.575.6555 14 3.2.3 Built-up estimates for closure bonding The purpose of a closure cost estimate, from a permitting and regulatory view, is to ensure that sufficient funds exist to properly close and secure the site in the event that the owner walks away. In an industry-supported initiative to standardize closure guarantees, a model agreement has been prepared and includes this language: “(a) The mine closure guarantee shall be in an amount calculated to be necessary to implement the Closure Plan should the Company fail to implement the Closure Plan….” (MMDA, 2011). Given this, the method of preparing the cost estimate must assume that the project will be under government management and that government-contracting rules apply. This was even recognized by International Uranium (USA) Corporation (Surmejer, 1999). This means that: o The cost-efficiencies available to the mining company cannot be recognized; o An engineering, procurement and construction management (EPCM) firm with governmental experience and a high bonding capacity will be used; o Prevailing wage (Davis-Bacon Act) rules apply; o All work will be contracted to public-works qualified construction companies with applicable overhead and other indirect cost factors; o The cost estimate must have reasonable consideration for unforeseeable circumstances, including unexpected contamination; o Agency required insurance, bonding, health and safety, independent inspection, and other rules will apply; o Costs must be escalated to the dates closure is planned; and o Agency oversight costs must be recognized. 3.2.4 White Mesa mill reclamation cost estimate, Sept. 2011, Rev. 5.0 The Denison estimate fails to meet the criteria set forth in the preceding section on a variety of grounds, as summarized below. Equivalent earthworks unit cost: The Denison estimate does not use rates per cubic yard of earthworks, but its costs can be converted using conventional engineering estimate methods. Taking the Denison direct costs of $12,620,391 and dividing it by the MWH earthworks quantities (their Table 3.3-4) of 3,724,000 cubic yards produces an average cost of $3.39/cu. yards. Anyone familiar with public works construction will recognize this as unrealistically low. This is also below the average costs for private works construction on mine sites. The author is the peer reviewer for a major tailings dam in Peru and the lowest unit rate (direct costs only) on that job, in low-cost Peru, is US $5.00 per cubic yard and that is for mass grading of a multi-million cubic yard fill. All specialized work is much more expensive. Labor hourly rates: The direct labor rates used are significantly lower than prevailing wage and do not include fringe benefits as required. A sampling of rates used by Denison and the applicable regulatory rates are presented in Table 3.5. The White Mesa rates average 44% of the prevailing wages. Based on the detailed costs for Cell 3 and assuming those are representative of the entire closure, labor represents 19.3% of the total costs. Thus, total costs should be increased by 44% x 19.3% = 8.5%. Table 3.5: Labor rates (per hour) Labor Category White Mesa Rate (total) Prevailing Wage Rate direct + fringe (note 1) Laborer $12.51 $17.61 + $4.94 Mechanic $16.77 $35.10 + $12.49 Equipment operator $18.16 to $20.65 $25.17 + $14.41 Notes: 1. According to General Decision Number: UT100073 09/30/2011 UT73 for San Juan County, Utah, adopted 9/30/2011 (includes some older rates). Review of Containment and Closure Issues Denison USA / White Mesa Uranium Mill - Relicensing Application, Revision 5.0, Sept 2011 P.O. Box 4049, Incline Village, Nevada 89450 USA +1.530.575.6555 15 Equipment hourly rates: Hourly rates were provided by a local equipment leasing company. The rates include a nominal 50% discount for hours after 40 per week, and the assumption has been that a 50- hour work-week is average, producing an average rate less than the straight rental rate. However, the corresponding labor rates do not reflect any overtime multiplier as required by prevailing wage rules. This means that either (i) the equipment rates are too low or (ii) the labor rates need to be adjusted for overtime. Public works projects tend to limit overtime because of the high hourly rate penalty and thus the safe assumption is no overtime. This increases equipment rates by 11%. The price used in the equipment cost calculations is $2.332 per gallon, representing the 12-month “off-road use” cost for 2010. The commercial price in Sept. 2011 for off-road use was $2.97/gallon. Thus, the rate used is about $0.65/gal lower than the current market price, or 27.9%. Based on the built-up equipment unit rates, fuel is 10.6% of the total hourly rate and thus the hourly rates should be increased by 27.9% x 10.6% = 3.0%. Combining the equipment overtime and fuel adjustments, the equipment hourly rates should be increased by 11% + 3% = 14%. Using the Cell 3 cost details as representative of the entire project as an approximation, equipment costs are 78.8% of the total closure costs. Thus, the closure costs should be increased by 14% x 78.8% = 11%. Quantities (labor and equipment hours): The benchmarked costs are vastly higher than the costs produced from Denison’s quantity estimates, suggesting the quantities are unrealistically low. The quantity estimates were prepared by Denison, not by an independent party or registered engineer. The basis for the quantity estimates is provided in the hand-written notes following the cost tables; these suggest a traditional mining view on economies of scale, which are not available to a public works project. Without having a full peer review of the quantity estimates it is not possible to estimate an adjustment. Quality control: The “Notes & Assumptions” section of the cost estimates for the tailings cell says “Quality control contractor is assumed to be necessary for duration of material placement plus 20% for reporting.” The costs applied total about $0.014 per square foot. This is 30% to 50% of industry standard. The cost basis uses $62 per hour, which is far below prevailing industry rates and especially excludes any allowance for overtime or engineering supervision. As a reference, one of the largest firms in the mine construction quality control business is Ausenco Vector (www.ausenco.com). Their average quality control project hourly rate for a prevailing wage (public works) job in the USA is $125 per hour (2011). Quality control represents 4.8% of the total closure costs for the tailings cell, and doubling QC costs will increase the total cost by 4.8%. Cell dewatering costs: A unit rate of $0.48/hour has been used with no basis. The same quantity of hours is used for each cell, though they vary in size, retained water and efficiency of the dewatering system. Dewatering has two stages for cost-estimating purposes: that performed during the active operating life of the mine and that performed afterwards. An approach based on a nominal cost per hour or cost per gallon may be logical during the operating life, since there is a core staff already on site along with the equipment, infrastructure and administration systems. However, once operations have ceased there will be no support. Thereafter, the dewatering program will be operated by a contractor at a significantly higher unit cost. Supporting quotes: Supporting price information is provided for some of the relatively minor costs (e.g., road haulage of rip rap from the borrow source 7 miles from the site, rental rates for a gravel screen, and so forth). None of these “quotes” (some are as informal as telephone notes) suggest that the vendor understands that he or she is quoting a public works project with the applicable contracting, insurance and prevailing wage criteria. Remediation costs: There is no provision for any currently unknown contamination. It is unlikely that the extent of surface or groundwater contamination is currently fully known and providing no such provision is irresponsible. Indirect costs: o Profit: 10% is allowed and this is reasonable. o Contingency: 15% is allowed and is too low for the level of design and the lack of supporting Review of Containment and Closure Issues Denison USA / White Mesa Uranium Mill - Relicensing Application, Revision 5.0, Sept 2011 P.O. Box 4049, Incline Village, Nevada 89450 USA +1.530.575.6555 16 fixed price bids. Considering the findings of the prior section on industry experience with cost estimates versus actual costs, a contingency of 35% is recommended. o License & bonding: 2.0% is reasonable for a private-works project but is much lower than seen on public works projects. o UDEQ contract administration: 4.0% is allowed. This item is equivalent to “owner’s costs” for conventional cost estimating, which run from 10% to 25%, with 12% to 15% being typical. o Detailed engineering, procurement and construction management (EPCM) has been omitted and typically runs about 12% for non-government projects and is higher for those. Long-term care fund: At current deposit interest rates a fund of $809,376 provides an annual cash flow of $8,100. This provides for no on-site care and is unlikely to provide for the mandatory report filings. A more reasonable provision is $100,000 per year, at least for the decades immediately following closure. Cost escalation: Costs have been estimated using a range of base dollars from 2007 to 2010. None have been escalated to the date of closure. Assuming an escalation rate of 3.5%, costs will escalate from the date of the cost estimate (nominally 2009) to the completion of closure by 36% for 10 years and 92% for 20 years. However, the closure plan sets no dates for closure and Dension USA has implied to the author that they intend to be in production for a very long time. Given this, a more significant escalation period should be considered. 3.2.5 More probable closure cost A reasonable range of closure costs can be estimated by approaching the costs from two directions: adjusting the Denison cost estimate for the line-item corrections discussed in the prior section, and applying the benchmarked costs to the White Mesa closure areas. Tables 3.6 and 3.7 summarize the results of those two approaches. This creates a large range, from $36 million to $126 million in 2010 dollars, or $51 million to $169 million escalated to 2020 dollars. This excludes the US DOE per-ton- based estimate of $470 million. The adjusted Denison estimate excludes allowances for groundwater and off-site soil remediation, which is a very optimistic assumption for a site with known contaminate plumes, known off-site contamination (i.e., Big Sage survey results), low-quality and post-service-life containment systems, and a 32-year operating life (to date). More likely, at least some remediation will be required and a liberal allowance for those costs should be included in the financial surety (and thus in the cost estimate) to protect the people of Utah from the potentially substantial financial liability. The Denison estimate also includes a capping system that is significantly less protective than the Monticello standard and a demolition debris cell that has a very poor quality liner. Both of those should be corrected and will increase the cost; for example, adding a 60-mil HDPE liner will add about $26,000 per acre or $6 million total and upgrading the demolition cell to a high quality composite liner will add about $1 million. The benchmarked cost of $91 million includes an allowance for site remediation based on the average work required at the 43 documented sites. Groundwater remediation alone could use much of the $55 million difference. As reference projects, both the Pierina gold mine (owner: Barrick) and Tintaya copper mine (owner: Xstrata, formerly BHP) in Peru have water remediation costs of $40 and $60 million, respectively (2007 dollars); neither are uranium sites, neither have particularly unusual groundwater issues, both have the advantages of very low costs, and both are very remote sites with no nearby communities or water users. Review of Containment and Closure Issues Denison USA / White Mesa Uranium Mill - Relicensing Application, Revision 5.0, Sept 2011 P.O. Box 4049, Incline Village, Nevada 89450 USA +1.530.575.6555 17 Table 3.6: Adjusted closure cost estimated (using Denison estimate as basis) Total direct costs (from Denison): $12,620,391 Adjustments: Labor rates (increase total direct by 8.5%) $1,072,733 Equipment unit rates (increase total direct by 11%) $1,388,243 Fuel: add $0.65/gal (including in equipment adjustment) incl Quantities (unknown adjustment) unknown Quality control (increase total direct rate by 4.8%) $605,779 Cell dewatering (no rationale provided) unknown Adjusted direct costs: $15,687,146 Indirect Costs: Profit, 10% $1,568,715 Contingency, 35% $5,490,501 License & bonding, 5% $784,357 UDEQ contract administration, 15% $2,353,072 EPCM, 12% $1,882,458 Contractors floater $82,250 Auto & GL Insurance $284,600 Long-term care fund (based on annual cost of $100,000 and 1.2% deposit rate) $8,333,333 Environmental remediation costs unknown TOTAL before remediation costs $36,466,431 Notes: 1. Excludes any remediation costs such as groundwater treatment. 2. Excludes upgrading capping systems to meet Montecello standard. 3. Quantities unverified. Table 3.7: Closure cost from benchmarking data with escalation Cell Area (acres) Capping Costs (2010 USD) Comments Cell 1 55 -0- To be removed Cell 2 65 $26,130,000 Cell 3 70 $28,140,000 Cell 4A 40 $16,080,000 Cell 4B 40 $16,080,000 Demolition debris 12 $4,840,000 Excludes cost for constructing cell 282 ac incl. Cell 1 227 ac excl. Cell 1 $91,254,000 85% of the average cost for 43 UMT sites ($107 million) Escalated to 2012 $97,753,566 TOTAL Escalated to 2020 $128,722,779 Escalated @ 3.5%/year German study (mean) $126,395,850 Per-ton estimates: US DOE (lower bound) $470,320,020 Not escalated Notes: 1. Capping rate of $402,000 per acre used from benchmarking data. A key purpose of benchmarking costs is to check the validity of a built-up cost estimate. The benchmark estimate is within 15% of the average for all 43 of the documented US uranium mill closures and thus checks well with industry experience. The author has used benchmarking to verify built-up costs on over 100 sites; this has never produced a variance of greater than 50% and generally the values are within 25%. In the current case, the benchmarked cost is 2.5 times higher than the adjusted Denison estimate and 5 times higher than the unadjusted Denison estimate, suggesting that either the quantities are drastically in error or the cost estimate has omitted important components, or both. Importantly, neither the adjusted Denison nor the benchmarked cost estimates have been escalated for inflation to the anticipated closure date. That should be done in determining financial Review of Containment and Closure Issues Denison USA / White Mesa Uranium Mill - Relicensing Application, Revision 5.0, Sept 2011 P.O. Box 4049, Incline Village, Nevada 89450 USA +1.530.575.6555 18 surety levels. Common industry escalation rates are 3% to 5% annually and a firm set of milestones should be tied to the final estimate and surety amount. 3.3. References AFCEE “Conventional landfill cover cost,” AF Center for Engineering & the Environment, afcee.af.mil/resources/technologytransfer/programsandinitiatives/ (undated) Benson, C. H., Sawangsuriya, A., Trzebiatowski, B., and Albright, W. H., “Post-construction changed in the hydraulic properties of water balance cover soils,” Desert Research Institute Alternative Cover Assessment Program (DRI-ACAP) (2007) Bertisen, J. and Davis, G. A., “Bias and error in mine project capital cost estimation,” Business Library, CBS Interactive Business Network Resource Library, findarticles.com/p/articles/mi_6713/is_2_53/ ai_n29445971/ April-June (2008) Caldwell, J., “Mine closure bonds: are they adequate to pay actual costs?” I Think Mining industry blog site, ithinkmining.com/2007/08/29/mine-closure-bonds-are-they-adequate-to-pay-actual-closure-costs/, August 29 (2007) Dwyer, S. F., 1998. “Alternative Landfill Cover Pass the Test.” Civil Engineering, Sept. (1998) Lazenby, H., “Cost model improves mine cost estimation and forecasting,” Mining Weekly, Cramer’s Media, April (2010) MMDA, “Model mining development agreement project,” www.mmdaproject.org/?p=1662, March 30 (2011) Roberts, H. R., “Request to revise the surety for White Mesa uranium mill, license SUA-1358,” letter to Mr. John Surmejer, U.S. Nuclear Regulatory Commission, from International Uranium (USA) Corporation, November 9 (1999) Robinson, Paul, “Uranium Mill Tailings Remediation Performed by the US DOE: An Overview,” Southwest Research and Information Center, Albuquerque, NM, May 18 (2004) U.S. DOE, “Decommissioning of U.S. Uranium Production Facilities,” DOE/EIA-0592, Dist. Cat. US- 950, February (1995) Closing Comments This work was completed in support of the review of the White Mesa / Denison USA relicensing application, revision 5.0, dated Sept. 2011. It is based on a focused review of the closure plan, cost estimates, and related documents and relies extensively on the information developed and provided by Denison USA as well as the author’s industry experience. Best Regards, RRD INTERNATIONAL CORP Mark E. Smith, PE, SE, GE President Aaron M. Paul Staff Attorney Grand Canyon Trust 4454 Tennyson Street Denver, Colorado 80212 D: 303-477-1486 July 31, 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 dwmrcpublic@utah.gov Re: 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 comment on the Division of Waste Management and Radiation Control’s proposal to renew Energy Fuels Resources (USA), Inc.’s radioactive materials license and groundwater discharge permit for the White Mesa Mill. We appreciate the effort the Division has made over the last decade to review Energy Fuels’ license and permit applications, to prepare the proposed license and permit, and to solicit public comments. Ours are enclosed. If the Division has any questions about our comments, we’d be glad to answer them. Sincerely, Aaron M. Paul Enclosure Comments on the Proposed Renewal of Energy Fuels Resources (USA), Inc.’s Radioactive Materials License and Groundwater Discharge Permit for the White Mesa Mill July 31, 2017 TABLE OF CONTENTS I. Introduction and Executive Summary ....................................................................................................... 1 II. Background ................................................................................................................................................... 3 A. The Grand Canyon Trust ......................................................................................................................3 B. The White Mesa Mill .............................................................................................................................4 C. Wastes Generated by and Discarded at the White Mesa Mill ..........................................................5 D. Source-Material and Byproduct Material Licensing .........................................................................6 E. Reclamation Requirements ..................................................................................................................7 F. Reclamation Plan Revision 5.1.............................................................................................................8 III. The Division should require Energy Fuels to revise Reclamation Plan Revision 5.1. .......................... 9 A. The Division should require Energy Fuels to evaluate off-site disposal alternatives. ...................9 B. The definitions and standards used to establish reclamation milestones should be revised to be consistent with federal and state law. ............................................................................................... 10 1. Background .................................................................................................................................. 10 2. Problems with the Reclamation Plan’s Definitions ................................................................. 11 C. The reclamation deadlines in Revision 5.1 are inadequate. ........................................................... 16 1. Deadlines must be imposed for all key tasks for completing the final radon barrier. ........ 16 2. The schedule that applies if the mill is closed violates Appendix A. ..................................... 20 3. Deadlines must be established as a condition of the radioactive materials license............. 22 D. Energy Fuels should not be allowed, let alone required, to revert to the cover design in Reclamation Plan Revision 3.2b. ...................................................................................................... 22 1. In arid environments, conventional cover designs generally pose greater risk to groundwater than evapotranspirative designs. ........................................................................ 23 2. Modelling predicts the mill’s 1996 conventional-cover design would put groundwater at more risk than alternatives. ........................................................................................................ 24 3. The 1996 analysis is outdated. .................................................................................................... 25 4. Recommendations ....................................................................................................................... 28 E. The final radon barrier design is inadequate. .................................................................................. 29 1. Enhancements that will minimize infiltration into the tailings should be made. ............... 29 2. A standalone barrier to deter burrowing should be added to the cover. .............................. 32 F. The proposed long-term monitoring for the final radon barrier is inadequate. ......................... 33 G. The liner design for the Cell 1 disposal area is inadequate............................................................ 33 IV. The surety is inadequate. ............................................................................................................................ 36 A. Energy Fuels’ contingency is too low. .............................................................................................. 37 B. Appendix A requires Energy Fuels to forecast the cost of both cover designs and secure a bond for the more expensive one. .............................................................................................................. 41 C. Energy Fuels’ surety doesn’t include enough money for the long-term care fund. .................... 42 V. The Division should deny Energy Fuels’ application to process the Sequoyah Fuels sludge. ........... 43 A. Background ......................................................................................................................................... 43 B. The Division has authority to deny the Sequoyah Fuels license amendment to protect the environment and public health, and it should exercise that authority. ........................................ 44 C. The Safety Evaluation Report is deficient. ....................................................................................... 46 VI. Conclusion ................................................................................................................................................... 47 EXHIBIT LIST Exhibit 1 Energy Fuels Resources (USA) Inc., Reclamation Plan: White Mesa Mill, Blanding, Utah – Radioactive Materials License No. UT1900479, Revision 5.1 (Aug. 2016). Exhibit 2 U.S. Nuclear Regulatory Commission, Final Environmental Statement Related to the Energy Fuels Nuclear, Inc., White Mesa Uranium Project (May 1979). Exhibit 3 Dames & Moore, Environmental Report: White Mesa Uranium Project, San Juan County, Utah for Energy Fuels Nuclear, Inc. (Jan. 30, 1978). Exhibit 4 Letter from D. Frydenlund, V.P. Regulatory Affairs & Counsel, to C. Garlow, Attorney- Advisor, U.S. Environmental Protection Agency (June 1, 2009). Exhibit 5 Letter from C.E. Baker, Manager, Regulatory Compliance, Energy Fuels Nuclear, Inc. to Utah Dep’t of Natural Resources, Division of Oil, Gas and Mining (Jan. 27 1983). Exhibit 6 Letter from H. Roberts, Senior Project Engineer, Energy Fuels Nuclear, Inc., to T. Tetting, Utah Dep’t of Natural Resources, Division of Oil, Gas and Mining (Mar. 12, 1984). Exhibit 7 Energy Fuels goes on standby at Blanding, PAY DIRT, Jan. 1983. Exhibit 8 Associated Press, “65 Lose Jobs as Ore Mill in Blanding Closes,” Deseret News (Feb. 27, 1995) available at http://www.deseretnews.com/article/406882/65-lose-jobs-as-ore-mill- in-blanding-closes.html?pg=all. Exhibit 9 Letter from H. Roberts, Executive Vice President, International Uranium (USA) Corporation, to M. Leavitt, Governor, State of Utah (June 18, 1997). Exhibit 10 Energy Fuels, “Our History,” 3 (July 11, 2017) available at http://www.energyfuels.com/corporate/history/. Exhibit 11 Memorandum and Order, In re International Uranium (USA) Corp., CLI-00-01, Docket No. 40-8681-MLA-4 (Feb. 10, 2000). Exhibit 12 Letter from M. Rehmann, Environmental Manager, International Uranium (USA) Corporation, to M. Leach, Director, Fuel Cycle Licensing Branch, U.S. Nuclear Regulatory Commission (Oct. 17, 2001). Exhibit 13 Energy Fuels Nuclear, Inc., Request to Amend Source Material License SUA-1358 White Mesa Mill, Docket No. 40-8681 (Sep. 20, 1996). Exhibit 14 International Uranium (USA) Corporation, Request to Amend Source Material License SUA-1358, White mesa Mill, Docket No 40-8681 (Mar. 16, 2000). Exhibit 15 White Mesa Mill, Aerial Photograph (Aug. 23, 1983). Exhibit 16 MWH, Energy Fuels Resources (USA) Inc., White Mesa Mill: Updated Tailings Cover Design Report (Aug. 2016), Appendix A to Energy Fuels Resources (USA) Inc., Reclamation Plan: White Mesa Mill, Blanding, Utah – Radioactive Materials License No. UT1900479, Revision 5.1 (Aug. 2016). Exhibit 17 Letter from S. Anderson, Director, Division of Waste Management and Radiation Control, to B. Tharakan, U.S. Nuclear Regulatory Commission (Apr. 26, 2016). Exhibit 18 Letter from D. Turk, Manager, Environmental Health and Safety, Energy Fuels Resources (USA) Inc., to R. Lundberg, Director, Division of Radiation Control (Nov. 8, 2013). Exhibit 19 Energy Fuels Resources (USA) Inc., Cost Estimates for Reclamation of White Mesa Facility in Blanding, Utah (June 2016), Attachment C to Energy Fuels Resources (USA) Inc., Reclamation Plan: White Mesa Mill, Blanding, Utah – Radioactive Materials License No. UT1900479, Revision 5.1 (Aug. 2016). Exhibit 20 Letter from J. Tischler, Director of Compliance & Permitting, Energy Fuels, to R. Lundberg, Director, Division of Radiation Control, and Reclamation Plan Revision 3.2B attached thereto (Jan. 14, 2011). Exhibit 21 Stipulation and Consent Agreement, In re Energy Fuels Resources (USA) Inc. (Feb. 25, 2017). Exhibit 22 Letter from J. Tischler, Director of Compliance & Permitting, Energy Fuels, to D. Finefrock, Executive Secretary, Utah Radiation Control Board, and Revised Infiltration and Contaminant Transport Modeling Report attached there (Mar. 31, 2010). Exhibit 23 Division, Radioactive Material License No. UT 1900479 and Utah Ground Water Discharge Permit No. UGW370004, Technical Evaluation and Environmental Assessment: White Mesa Uranium Mill, Energy Fuels Resources (May 2017) Exhibit 24 U.S. Department of Energy, Remediation of the Moab Uranium Tailings, Grand and San Juan Counties, Utah, Final Environmental Impact Statement: Summary (July 2005). Exhibit 25 U.S. Environmental Protection Agency, Detailed Comments by the U.S. Environmental Protection Agency on the Draft Environmental Impact Statement for the Remediation of the Moab Uranium Mill Tailings, Grand and San Juan Counties, Utah. Exhibit 26 Utah Division of Radiation Control, Radioactive Materials License UT 1900479 Am. 7 (July 10, 2014). Exhibit 27 Utah Division of Radiation Control, Radioactive Materials License UT 1900479 Am. 8 (2017). Exhibit 28 Energy Fuels’ Motion for Summary Judgment and Memorandum in Support, Case No. 2:14-cv-00243, U.S. District Court for the District of Utah (Apr. 27, 2016). Exhibit 29 Geosyntec Consultants, Analysis of Slimes Drain, Denison Mines: White Mesa Mill (May 2007). Exhibit 30 Titan Environmental, Tailings Cover Design: White Mesa Mill (Sep. 1996), Attachment E to Reclamation Plan Revision 5.1 (Aug. 2016). Exhibit 31 Daved E. Mathes, Lessons Learned from the 20-Year Uranium Mill Tailings Remedial Action Surface Project, U.S. Department of Energy, Office of Environmental Management (Mar. 4, 1999). Exhibit 32 John C. Lommler et al., DOE UMTRA Project Disposal Cell Design Summary (Mar. 4, 1999). Exhibit 33 W. J. Waugh, DOE Experience with Cover Degradation Processes, Design Improvements, and Cover Renovation for Uranium Mill Tailings Disposal Cells (Aug. 2010). Exhibit 34 W.J. Waugh et al., Sustainable Covers for Uranium Mill Tailings, USA: Alternative Design, Performance, and Renovation (Oct. 11, 2009). Exhibit 35 W. J. Waugh, Design, Performance, and Sustainability of Engineered Covers for Uranium Mill Tailings, Proceedings of the Workshop on Long-Term Performance Monitoring of Metals and Radionuclides in the Subsurface: Strategies, Tools, and Case Studies. U.S. Geological Survey (Apr. 21, 2004). Exhibit 36 Craigh H. Benson et al., Design and Installation of a Disposal Cell Cover Field Test (Feb. 27, 2011). Exhibit 37 Mark E. Smith, An Evaluation of Engineered Cover Systems for Mine Waste Rock and Tailings (Apr. 2013). Exhibit 38 Energy Fuels Resources (USA) Inc., Responses to Review of August 15, 2012 (and May 31, 2012) Energy Fuels Resources (USA) Inc. Responses to Round 1 Interrogatories on Revision 5 Reclamation Plan Review, White Mesa Mill Site, Blanding, Utah, Report Dated September 2011 (Aug. 31, 2015). Exhibit 39 Utah Division of Radiation Control, “Groundwater Discharge Permit No. UGW370004” (Aug. 24, 2012). Exhibit 40 Utah Division of Radiation Control, “Groundwater Discharge Permit No. UGW370004” (2017). Exhibit 41 R. Rager et al., Abstract: Effect of Freezing and Thawing on UMTRA Covers, Remedial Action Programs Annual Meeting (Oct. 18, 1988). Exhibit 42 Utah Division of Radiation Control, Denison Mines (USA) Corp’s Revised Infiltration and Contaminant Transport Modeling Report: Interrogatories – Round 1 (Mar. 2012). Exhibit 43 Lawrence J. Bruskin & Steve Tarlton, State of Colorado Experience with Waste Repository Covers and Caps, Proceedings of the Workshop on Engineered Barrier Performance Related to Low-Level Radioactive Waste, Decommissioning, and Uranium Mill Tailings Facilities (Aug. 3, 2010). Exhibit 44 U.S. Environmental Protection Agency, Fact Sheet on Evapotranspiration Cover Systems for Waste Containment (Feb. 2011). Exhibit 45 Technical Memorandum from J. Luellen and R. Baird, URS Professional Solutions, to J. Hultquist, Utah Division of Radiation Control, Review of August 15, 2012 (and May 31, 2012) Energy Fuels Resources (USA) Inc. Responses to Round 1 Interrogatories on Revision 5 Reclamation Plan Review, White Mesa Mill Site, Blanding, Utah, report dated September 2011 (Feb. 13, 2013). Exhibit 46 William H. Albright & Craig H. Benson, Alternative Cover Assessment Program Report to Office of Research and Development, National Risk Management Research Lab, Land Remediation and Pollution Control Division (2005). Exhibit 47 U.S. Environmental Protection Agency, (Draft) Technical Guidance for RCRA/CERCLA Final Covers (Apr. 2004). Exhibit 48 MWH, Energy Fuels Resources (USA) Inc., White Mesa Mill: Preliminary Mill Decommissioning Plan (Aug. 2016), Appendix B to Energy Fuels Resources (USA) Inc., Reclamation Plan: White Mesa Mill, Blanding, Utah – Radioactive Materials License No. UT1900479, Revision 5.1 (Aug. 2016). Exhibit 49 National Research Council, Best Practices for Risk-Informed Decision Making Regarding Contaminated Sites (2014). Exhibit 50 Craig H. Benson, et al., Engineered Covers for Waste Containment: Changes in Engineering Properties and Implications for Long-Term Performance Assessment, NUREG/CR-7028 (Dec. 2011). Exhibit 51 U.S. Government Accountability Office, Uranium Mill Tailings: Cleanup Continues, but Future Costs Are Uncertain (Dec. 1995). Exhibit 52 U.S. Energy Information Administration, Remediation of UMTRCA Title I Uranium Mill Sites Under the UMTRA Project, Summary Table: Uranium Ore Processed, Disposal Cell Material, and Cost for Remediation as of December 31, 1999 (Dec. 31, 1999). Exhibit 53 U.S. Department of Energy, Office of Legacy Management, UMTRCA Title I Site Fact Sheets (Nov. 2016). Exhibit 54 U.S. Department of Energy, Final Programmatic Environmental Impact Statement for the Uranium Mill Tailings Remedial Action Ground Water Project, Vol. I (Oct. 1996). Exhibit 55 Golder Associates Inc., Alternatives Analysis of Contaminated Groundwater Treatment Technologies, Tuba City, Arizona, Disposal Site (Feb. 20150. Exhibit 56 U.S. Energy Information Administration, U.S. Department of Energy, Decommissioning of U.S. Uranium Production Facilities (Feb. 1995). 57 U.S. Environmental Protection Agency, Cleanup of historic Uravan uranium mill completed (Sep. 29, 2008). Exhibit 58 Letter from S. Tarlton, Manager, Radiation Program, Colorado Department of Public Health and Environment, to J. Hamrick, Cotter Corporation (Arp. 22, 2010). Exhibit 59 Letter from J. Hamrick, Vice President, Mill Operations, Cotter Corporation, to S. Tarlton, Manager, Radiation Program, Colorado Department of Public Health and Environment (Nov. 6, 2012). Exhibit 60 U.S. Environmental Protection Agency, Region 6, United Nuclear Corporation (McKinley County) New Mexico: Current Status (July 2015). Exhibit 61 U.S. Environmental Protection Agency, Site Activities Update: Homestake Mining Company and Grants Mining District (Aug. 2015). Exhibit 62 Letter from J. Surmeier, Chief Uranium Recover and Low-Level Waste Branch, Nuclear Regulatory Commssion, to L. Corte, Manager, Western Nuclear, Inc. (Nov. 1, 1999). Exhibit 63 U.S. Nuclear Regulatory Commission, Western Nuclear–Split Rock Uranium Recovery Facility (undated). Exhibit 64 U.S. Nuclear Regulatory Commission, Environmental Assessment for Amendment to Source Materials License SUA-56 Ground Water Alternate Concentration Limits: Western Nuclear, Inc., Split Rock Uranium Mill Tailings Site, Jeffrey City, Freemont County, Wyoming (Aug. 2006). Exhibit 65 Lee Shenton, Grand County UMTRA Liaison, Moab UMTRA: Uranium Mill Tailings Remedial Action (May 2017). Exhibit 66 U.S. Department of Energy, Inspector General, Audit Report: Restoration of the Monticello Mill Site at Monticello, Utah (Oct. 2004). Exhibit 67 Division of Waste Management and Radiation Control, Public Participation Summary for Comments Received Between October 14 and December 21, 2011: License Renewal for Radioactive Material License No. UT1900479, Energy Fuels Resources (USA) Inc. (EFRI), White Mesa Uranium Mill, San Juan County, Utah (Mar. 2017). Exhibit 68 U.S. Nuclear Regulatory Commission, Consolidated Decommissioning Guidance: Financial Assurance, Recordkeeping, and Timeliness (Feb. 2012). Exhibit 69 Division of Low-Level Waste Management and Decommissioning, U.S. Nuclear Regulatory Commission, Technical Position on Financial Assurances for Reclamation, Decommissioning, and Long-Term Surveillance and Control of Uranium Recovery Facilities (Oct. 1988). Exhibit 70 U.S. Department of Energy, Office of Inspector General, Office of Audits and Inspections, Audit Report: Management of Long-Term Surveillance and Maintenance of Uranium Mill Tailings Radiation Control Act of 1978 Title II Sites, OAS-L-15-02 (Oct. 2014). Exhibit 71 Office of the Inspector General, U.S. Nuclear Regulatory Commission, Audit of NRC’s Oversight of Decommissioned Uranium Recovery Sites and Sites Undergoing Decommissioning, OIG-12-A-06 (Dec. 13, 2011). Exhibit 72 U.S. Department of Energy, A Report to Congress Detailing DOE’s Existing and Anticipated Long-Term Stewardship Obligations (Jan. 2001). Exhibit 73 Oklahoma v. Sequoyah Fuels Corp., Plaintiffs Application for a Temporary Restraining Order, Motion for Temporary Injunction and Brief in Support, CV-2017-00023 (D.Ct. Sequoyah County, Feb. 9, 2017). Exhibit 74 URS Professional Solutions, LLC, Safety Evaluation Report for Amendment Request to Process an Alternate Feed Material (the SFC Uranium Material) at White Mesa Mill from Sequoyah Fuels Corporation, Gore, Oklahoma (May 1, 2015). Exhibit 75 Letter from John Ellis, President, Sequoyah Fuels Corp. to Clayton Eubanks, Oklahoma Attorney General’s Office, and Sara Hill, Cherokee Nation Office of the Attorney General (July 24, 2015). Exhibit 76 Utah Department of Environmental Quality, Divisions of Radiation Control and Water Quality, Elements of a Utah Agreement State Program for Uranium Mills Regulation (Aug. 26, 2000). Exhibit 77 Amendment to Agreement Between the United States Nuclear Regulatory Commission and the State of Utah for Discontinuance of Certain Commission Regulatory Authority and Responsibility within the State Pursuant to Section 274 of the Atomic Energy Act of 1954, as Amended (Aug. 16, 2004). Exhibit 78 Letter from J. Tischler, Director, Compliance and Permitting, Energy Fuels, to R. Lundberg, Director, Utah Department of Environmental Quality (Dec. 15, 2011). 1 I. Introduction and Executive Summary The Utah Division of Waste Management and Radiation Control is proposing to renew the radioactive materials license and groundwater discharge permit that authorize Energy Fuels Resources (USA) Inc., to run the White Mesa uranium mill in southeast Utah and permanently bury radioactive wastes there. The Division has no doubt made many improvements to the license and permit since they were first issued to Energy Fuels over a decade ago. We applaud those improvements, but our comments are directed at remaining shortcomings in these documents. Nearly all our comments are about the plan for reclaiming the mill and the surety bond that guarantees funding for doing so. That plan has several major flaws, particularly in the way that it handles reclamation deadlines. The surety doesn’t guarantee enough funding for the possibility that reclaiming the mill won’t go as planned. We also implore the Division to reject Energy Fuels’ request to process and discard radioactive sludge from Sequoyah Fuels’ defunct uranium-conversion plant in Oklahoma. A point that deserves emphasis at the outset is that we are skeptical that a seven-year performance test of the proposed evapotranspirative cover needs to be completed before Energy Fuels reclaims impoundments at the mill. If the cover were to be improved to a state-of-the-art design, we doubt a performance test would yield especially useful information, given the risks posed by delay in reclaiming the mill’s impoundments. This is particularly true because there is performance data available for the tailings repository built not far away in Monticello, Utah that can be considered in reclaiming the wastes at the White Mesa mill. Though we recognize that designing a tailings-impoundment cover is an exceedingly complex task that is fraught with uncertainty, we ask the Division to reconsider whether to require the company to make improvements to the evapotranspirative cover so that it reflects a state-of-the-art design and build the cover on Cell 2 at the mill promptly, without completing the performance test. Information and data gathered from the cover’s performance on Cell 2 could be used to adjust the cover design for the remaining cells. For ease of review, the other principal requests we make in these comments are listed below. This list isn’t exhaustive and isn’t meant to diminish the importance of other requests or critiques made elsewhere in these comments. We ask the Division to:  Thoroughly and independently analyze the reclamation-cost estimates Energy Fuels has made and the probabilities that those estimates may prove inaccurate given the cost of closing other uranium mills throughout the country, and require a surety amount (including a contingency) that conservatively guards against the risk that reclamation costs greatly exceed the company’s forecasts.  Require Energy Fuels to forecast the cost of building the evapotranspirative cover proposed in Reclamation Plan Revision 5.1, in addition to the 1996 conventional cover design described in Reclamation Plan Revision 3.2, and base its surety on the more expensive plan.  Complete a site-specific analysis of probable long-term costs at the White Mesa mill after reclamation, and establish a fund amount to be guaranteed in Energy Fuels’ surety that is sufficient to cover long-term costs at an interest rate of one percent.  Deny Energy Fuels’ request to process the Sequoyah Fuels sludge. 2  Require Energy Fuels to analyze alternatives for transporting the mill’s radioactive wastes off site for permanent disposal.  Revise the definition of “operation” that appears in Section 6.2.1 of Energy Fuels’ Reclamation Plan Revision 5.11 to match the definition of “operation” in Appendix A to the Nuclear Regulatory Commission’s uranium-mill-licensing rules.2  Add the definition of “byproduct material” used in the Nuclear Regulatory Commission’s regulations (that has been incorporated by reference under State law) to Plan Revision 5.1.”3  Clarify in Revision 5.1 that Appendix A’s impoundment-closure requirements apply to all the cells at the mill, including Cells 1 and 4B, and will apply to any cells built in the future into which “byproduct material” is placed.4  Include milestones in Revision 5.1 for closing all the mill’s impoundments, including Cells 1 and 4B, as well as any other so-called “evaporation ponds” built in the future.5  Change Revision 5.1’s definition of "final closure" to match the definition in the U.S. Environmental Protection Agency’s emissions standards for radon emitted from uranium-mill wastes, commonly called Subpart W.6  Establish an absolute deadline in Revision 5.1 for removing freestanding liquids from cells that are no longer in operation, such as 180 days after final closure begins.  Require Energy Fuels to stop adding liquids to impoundments as soon as final closure begins (rather than to “minimize” the addition of liquids) and to pump freestanding liquids into other operating cells, regardless of whether doing so will force the company to curtail mill operations.  Eliminate the proviso in the impoundment-recontouring milestone that allows for more than 180 days to finish recontouring “as may be required if instability of the tailings sands restricts or hampers such activities.”7  Establish an absolute deadline for completing dewatering that is based on current modelling of how long it will take to meet the settlement-performance standard in the plan (e.g., for Cells 4A and 4B, 5.5 years after dewatering is commenced).  Delete statements in Revision 5.1 that assert that deadlines cannot be established.8  Establish reclamation deadlines as a condition of the radioactive materials license. 1 Ex. 1 at 6-1. 2 10 C.F.R. Part 40, App. A. 3 10 C.F.R § 40.4; Utah Admin. Code R313-24-4. 4 Ex. 1 at 6-2. 5 See Ex. 1 at 3-5 to 3-6 (discussing the planned closure steps for Cell 1). 6 40 C.F.R. Part 61, Subpart W. 7 Ex. 1 at 6-4. 8 Ex. 1 at 6-1. 3  Revise the Stipulation and Consent Agreement executed in February 2017 to eliminate the provision in Section D.7.b.iii that automatically requires Energy Fuels to build the 1996 conventional cover if an impasse is reached on alternative evapotranspirative cover designs.  Either rule out the possibility of building the 1996 conventional cover or update that design immediately to avoid future delay if the ET cover fails the performance test.  Add a capillary break to the evapotranspirative cover design to minimize leachate that could contaminate groundwater unless the Division concludes that a capillary break would degrade the cover’s performance.  Add a composite barrier of compacted clay and a geomembrane beneath the evapotranspirative cover proposed in Revision 5.1 unless there is compelling evidence that including a composite barrier would diminish the cover’s effectiveness.  Require Energy Fuels to increase the top-slope inclination of the evapotranspirative cover design unless doing so would diminish the cover’s performance.  Add a biointrusion layer to the evapotranspirative cover that is specifically designed to deter burrowing unless Energy Fuels can demonstrate that including that layer would degrade the cover’s overall performance.  Require Energy Fuels to design the liner for the so-called “Cell 1 Disposal Area” to meet EPA’s design standards for hazardous-waste impoundments, which appear at 40 C.F.R. § 264.221.  Require Energy Fuels to develop and carry out a functional monitoring plan to measure percolation rates through whatever final cover is built and monitor other cover properties that would help diagnose infiltration problems. II. Background A. The Grand Canyon Trust The Grand Canyon Trust is a membership-based, non-profit advocacy organization founded in 1985 that has over 3,000 members. It’s headquartered in Flagstaff, Arizona, and has offices in Castle Valley, Utah, and Durango and Denver, Colorado. The mission of the Trust is to protect and restore the Colorado Plateau – its spectacular landscapes, flowing rivers, clean air, diversity of plants and animals, and areas of beauty and solitude. The Plateau is a physiographic region that stretches south-to-north from roughly the Mogollon Rim in northern Arizona to the Uinta Mountains in northern Utah and east-to-west from the Great Basin in Utah to the western side of the Rocky Mountains in Colorado and northwestern New Mexico. The White Mesa Mill sits near the heart of the Plateau. One of the Trust’s goals is to ensure that the Plateau is a region characterized by vast open spaces and healthy ecosystems with which human communities maintain a sustainable relationship. In service of that goal, the Trust has worked for years to oppose irresponsible uranium mining and milling on the Plateau, and to see that the contamination around the Plateau that the uranium industry has repeatedly left in its wake is cleaned up. 4 B. The White Mesa Mill The White Mesa Mill is an acid-leaching, uranium-processing mill that turns uranium ore and other uranium-bearing substances into a product called yellowcake, which is then enriched for use in nuclear reactors. Black flake, a substance used in other industrial processes, is also made at the mill by extracting vanadium from some feeds. Mostly what comes out of the mill, though, is radioactive waste. This waste, commonly called tailings, is discarded in big pits spanning about 275 acres next to the mill. There are five of these pits, or “impoundments,” at the mill, named Cell 1, Cell 2, Cell 3, Cell 4A, and Cell 4B. They and the mill are about five miles north of the centuries-old Ute Mountain Ute tribal community of White Mesa and about six miles south of downtown Blanding. A company called Energy Fuels Nuclear, Inc., built the mill in the late 1970s to process low-grade uranium ore from the surrounding region.9 Back then, the company planned to run the mill for 15 years, then close and reclaim it.10 The radioactive tailings were to be cleaned up in phases while the mill was operating.11 But that didn’t happen. Instead, Energy Fuels Nuclear, fired up the mill in 1980, made yellowcake for about three years, and pumped the resulting radioactive tailings into Cells 1, 2, and 3.12 Then, when the price of yellowcake plummeted, the company fired most of the mill’s workers and let the mill go dormant.13 This pattern has continued ever since. An ore-processing “campaign” is run when yellowcake is fetching a good price, and then the mill lapses into “standby” when the price of yellowcake falls.14 Though 37 years have passed, not one of the mill’s big waste pits has been reclaimed. Ownership of the mill has been similarly tumultuous. Over the years, it has changed hands at least four times.15 In the mid-1990s, after Energy Fuels Nuclear sold and rebought the mill, the company ran out of money. When it couldn’t pay its employees, it fired them.16 Within a month, the asset-holding parts of Energy Fuels Nuclear declared bankruptcy,17 and the business was eventually liquidated.18 9 Ex. 2 at 1-3 (arguing that the mill has independent utility for the purpose of processing low-grade, regional ores); id. at 10-21 (observing that small mines with low-grade ore would not be economically viable without the mill); Ex. 1 at 2-1. 10 Ex. 2 at iii (explaining that production will last for 15 years); id. at 1-1, 3-15 (same); id. at 3-18 (showing projected operating life of 15 years and phased reclamation schedule extending no more than 5 more years) id. at 4-3 (“Based on the capacity of the tailings cells, the mill has a potential to operate 15 years.”); Ex. 3 at 1-2 (“The mill is planned to have a 2,000 tons-per-day capacity and a projected life of 15 years.”); id. at 5-38 (“The area occupied by the proposed mill and tailing retention system (about 310 acres) would be committed until the life of the mill ends, about 15 years.”). 11 Ex. 2 at 3-17 (“The tailings ce1ls will be reclaimed sequential1y as each cell is filled, beginning after about the fourth year of operation and every four years thereafter until termination of project operations.”). 12 Ex. 4 at 11 (Table 3 showing “tailings placement period” beginning in 1980 for Cell 2, 1982 for Cell 1, and 1983 for Cell 3). 13 Ex. 5 at 2–3; Ex. 6; Ex. 7. 14 Ex. 4 at 5 (showing “standby” periods in 1984, 1991–1994, 2000–2004, with minimal production in 1998 and 2005). 15 Ex. 1 at 2-1. 16 See Ex. 8. 17 Ex. 9 at Addendum to Permit Transfer Request (p. 37). 18 Stephane A. Malin, The Price of Nuclear Power: Uranium Communities and Environmental Justice, 96 (2015) (“Malin”). 5 Today, a company called Energy Fuels, Inc., owns and operates the mill through subsidiaries. Energy Fuels is careful to claim that it and Energy Fuels Nuclear are “unrelated entities,” 19 perhaps to distance itself from any liabilities that Energy Fuels Nuclear could not discharge through bankruptcy. But Energy Fuels, Inc., was formed in 2005 by a prior owner of Energy Fuels Nuclear20 and touts on its website that “much of our senior management team began their careers and learned about the U.S. uranium industry from the earlier successes of Energy Fuels Nuclear.”21 The mill’s business model has also changed over time, no doubt due to volatility in the uranium market. Around the early 1990s, Energy Fuels Nuclear began pursuing a new source of revenue by processing “alternate feeds” and discarding the resulting waste at the mill. These feeds include uranium- bearing wastes from other contaminated places around the country. In 1998, for example, Energy Fuels22 was paid over $4 million to process and dispose of radioactive soil that was contaminated not only by the Manhattan Project, but also by other industrial and chemical ventures.23 From these sorts of feeds, the waste pits at White Mesa now contain radioactive and contaminated wastes from rare-metals mining,24 uranium-conversion plants,25 and contaminated defense facilities,26 among other sources. The sludge from Sequoyah Fuels’ defunct uranium-conversion facility that the company is seeking permission to process would bring the list of materials that Energy Fuels has been licensed to process to seventeen. By running its business, Energy Fuels has also fouled the groundwater beneath the mill. Exactly how some of that contamination got into the groundwater aquifers beneath the mill is a subject of debate. But it’s undebatable that the groundwater is contaminated by pollutants like nitrate, nitrite, chlorides, and chloroform. C. Wastes Generated by and Discarded at the White Mesa Mill Two main waste streams are generated at the mill by processing ore and alternate feeds. The first is a radioactive slurry of crushed, watered-down, acid-soaked, leftover feed material that is pumped out of the mill from a series of eight big tanks called the counter-current-decantation circuit. The second is a uranium-depleted solution, sometimes called raffinate or “process solution,” that is discharged from solvent-extraction circuits. Both waste streams are pumped into the waste pits next to the mill. When the mill first started running in about 1980, Energy Fuels pumped the waste slurry from the counter-current-decantation circuit into Cell 2. Since about the same time, Cell 1 has been used to get rid of raffinate wastes. By the mid-to-late 1980s, Cell 2 was full, or nearly full, of tailings and the company stopped sending the slurry to that cell (though it may have eventually topped off the cell with tailings as late as the mid-1990s).27 But the company did not close or reclaim the cell. Instead, it kept burying trash 19 Ex. 10 at 3. 20 Malin at 95–96. 21 Ex. 10 at 3. 22 At the time, the mill was owned by a company called International Uranium (USA) Corporation. For simplicity’s sake, these comments generally refer to the mill’s prior owners as Energy Fuels. 23 See Ex. 11 at 1 (observing that Energy Fuels would be paid a fee of $4 million to process and dispose of the material, an amount that far exceeded the value of the yellowcake to be produced). 24 See Ex. 12 at 2–3. 25 See Ex. 13 at 1. 26 See, e.g., Ex. 14 at 1–4. 27 See, e.g., Ex. 4 at 11 (Table 3); Ex. 15 (aerial photograph of the mill taken in 1983 showing Cell 2 to be mostly full of tailings); Ex. 16 at App. L p. 1 (asserting that “Cell 2 ceased receiving tailings in 1995”). 6 and contaminated wastes in Cell 2 for about two decades.28 Throughout that time, when the mill was running, Energy Fuels pumped the waste slurry from the counter-current-decantation circuit into Cell 3.29 In October 2008, Energy Fuels rerouted the slurry into Cell 4A. Eventually, the company plans to pump that slurry into Cell 4B, which is now used to hold wastes siphoned from Cell 4A. Wastes generated at operations that recover uranium by in-situ leaching are also buried in the mill’s pits. Unlike alternate feed, these wastes aren’t processed at the mill before being discarded. These wastes include, for example, barium sulfate sludge from treating waste solutions at an in-situ uranium leaching operation Wyoming.30 Leaking shipments of that sludge have arrived at the mill twice since 2015.31 In the past, similar wastes have been shipped, at a minimum, from Texas, Nebraska, and Wyoming to be buried at the mill.32 D. Source-Material and Byproduct Material Licensing To mill uranium, Energy Fuels is required to get a license from the Utah Division of Waste Management and Radiation Control that authorizes the company to possess and process “source material”—generally meaning uranium ore—and to dispose of the waste “byproduct material” that the mill generates.33 The Division is authorized to issue this license under state law, exercising authority delegated to the state by the U.S. Nuclear Regulatory Commission. That delegation was made under the Atomic Energy Act of 1954, the fundamental federal law regulating source, byproduct, and other nuclear materials. That Act authorizes the Nuclear Regulatory Commission to issue regulations governing the possession and use of source and byproduct material “to promote the common defense and security or to protect health or to minimize danger to life or property….”34 The Commission has issued three main rules regulating uranium milling: (1) the agency’s general standards setting radiation dose limits for the general public and mill workers (10 C.F.R. Part 20); (2) the Commission’s rules for domestic licensing of source material (10 C.F.R. Part 40), which establish health, safety, financial, and other requirements that uranium-mill operators must meet to get a license; and (3) Appendix A to those licensing regulations, which establishes standards for managing and reclaiming mill tailings. The State of Utah has set its own radiation-dose standards and has adopted wholesale many, but not all, of the latter two Commission rules.35 The main requirements for managing and disposing of tailings originate from a federal law passed in 1978 called the Uranium Mill Tailings Radiation Control Act. Congress found in UMTRCA that “uranium mill tailings located at active and inactive mill operations may pose a potential and significant radiation health hazard to the public” and sought to regulate tailings in “a safe and environmentally sound manner … to prevent or minimize radon diffusion into the environment and to prevent or minimize other 28 Id. 29 Id. 30 See Ex. 17. 31 Id. 32 Ex. 18. 33 Utah Code § 19-3-104. 34 42 U.S.C. § 2201. 35 Utah Admin. Code R313-24-4 (incorporating much of 10 C.F.R. Part 40 and Appendix A by reference); Utah Admin. Code R313-15 (establishing standards that apply to the Division’s licensees for protection against ionizing radiation). 7 environmental hazards from such tailings.”36 It was to comply with UMTRCA that the Commission issued Appendix A.37 An important feature of UMTRCA is that it assigns to the U.S. Environmental Protection Agency the authority and responsibility for setting general standards “for the protection of the public health, safety, and the environment from radiological and nonradiological hazards” posed by processing and disposing of tailings.38 The Nuclear Regulatory Commission’s rules for managing and disposing of tailings—namely, Appendix A—must conform to EPA’s general standards.39 EPA’s standards for operating uranium mills are set out in 40 C.F.R. Part 192, Subpart D. We discuss those rules in more detail below. E. Reclamation Requirements To renew Energy Fuels’ radioactive materials license, the Division must be satisfied that the company’s plan for closing and reclaiming the mill meets numerous technical and financial criteria.40 Those criteria are set out in two places: (1) Appendix A to the Commission’s regulations for domestic licensing of source material, which the Division has adopted by reference; and (2) state groundwater- protection rules.41 In broadest terms, Appendix A’s goal is to secure “permanent isolation of tailings and associated contaminants by minimizing disturbance and dispersion by natural forces, and to do so without ongoing maintenance.”42 To that end, it sets standards for where to put tailings-disposal sites, designing and building those sites, gathering baseline environmental data before milling operations begin, protecting groundwater, monitoring and inspecting tailings-disposal areas, closing and reclaiming those areas, and minimizing air-quality impairments from milling.43 Two types of financial guarantees are also required.44 First, mill operators must arrange a financial surety before they start milling uranium that guarantees enough money will be available to properly reclaim the mill and its wastes if the mill operator defaults on that obligation.45 Second, mill operators must pay the state a fee that generates enough interest to pay for long-term site surveillance by the state or federal government after the mill closes.46 As soon as a tailings impoundment at a uranium mill “ceases operation,” Appendix A requires mill operators to expeditiously build a “final radon barrier” over the impoundment “in accordance with a written, Commission-approved reclamation plan.”47 The final radon barrier must be designed to work for at least 200 years and to limit average releases of radon-222 to 20 picocuries per square meter each second 36 42 U.S.C. § 7901. 37 Uranium Mill Licensing Requirements, 45 Fed. Reg. 65,521 (Oct. 3, 1980). 38 42 U.S.C. § 2022. 39 42 U.S.C. § 2114. 40 See 10 C.F.R. § 40.31(h) (requiring uranium-milling applications to include written specifications for the disposition of byproduct material to achieve the requirements and objectives of 10 C.F.R. Part 40, Appendix A); Utah Admin. Code R313-24-4 (incorporating 10 C.F.R. 40.31(h) by reference). 41 See Utah Admin. Code R313-24-4 (adopting Appendix A by reference but replacing Criteria 5B(1) through 5(H), 7A and 13 with Utah’s ground water quality protection rules). 42 10 C.F.R. Part 40, App. A, Criterion 1. 43 See 10 C.F.R. Part 40, App. A, Criterion 1–8A. 44 See id. at Criterion 9–10. 45 Id. at Criterion 9. 46 Id. at Criterion 10. 47 Id. at Criterion 6A. 8 (20 pCi/(m2-sec)).48 Other hazards posed by tailings impoundments—such as contaminants leaching into the ground or groundwater—must be controlled, eliminated, or minimized.49 And impoundments must be closed to minimize future maintenance, meaning that the cover must hold up to earthquakes, floods, freezing, precipitation, intrusion from animals and plants, erosion, and nature’s other onslaughts.50 Deadlines for finishing the final radon barrier, retrieving windblown tailings, and stabilizing the tailings impoundment (including dewatering the impoundment) are to be established in a reclamation plan and as conditions of each mill’s radioactive materials license.51 F. Reclamation Plan Revision 5.1 In connection with the radioactive materials license renewal, the Division is proposing to approve Revision 5.1 of Energy Fuels’ reclamation plan. Plan Revision 5.1 describes how Energy Fuels intends to go about closing and reclaiming the mill and its waste impoundments,52 and it sets out the company’s estimates of what carrying out that plan will cost.53 Energy Fuels is proposing to build a monolithic evapotranspirative cover—often called the “ET cover”—to serve as the “final radon barrier” over most of the mill’s impoundments.54 According to the company, the ET cover has four layers: (1) 2.5' of interim cover, which is fill that Energy Fuels is supposed to place over the mill’s waste pits to help reduce radon emissions while those pits are in use; (2) a 3–4' primary radon-attenuation layer made of highly compacted loam and clay; (3) a 3.5' “growth medium layer” that is supposed to store water, deter biointrusion, protect the primary radon-attenuation layer from frost, and further reduce radon emissions; and (4) a 0.5' erosion-protection layer composed of topsoil or topsoil-gravel mixture.55 The basic idea behind this design is to use vegetation to absorb and remove precipitation from the cover through evapotranspiration so that precipitation doesn’t seep into the tailings and eventually contaminate groundwater. This design departs from the one Energy Fuels proposed in the last version of its reclamation plan, which the State approved in January 2011.56 That plan called for construction of a “conventional” cover that Energy Fuels designed in 1996. That cover design would use a compacted clay layer placed on top of the interim cover to repel water infiltration into the tailings. From the bottom up, the cover would have a one-foot clay layer, two feet of compacted random fill, and 3 to 8" of rock armor on the top and sides.57 Though, according to Energy Fuels, final closure of Cell 2 began in or before 2008, and though federal and state law require Energy Fuels to expeditiously build a final radon barrier over closed cells in accordance with an approved reclamation plan, 58 Energy Fuels isn’t planning to build a final radon barrier 48 See Appendix A, Criteria 6 & 6A. A picocurie (pCi) is one trillionth of one curie (Ci), which is a unit for measuring the intensity of radioactivity of a material. See U.S. Nuclear Regulatory Commission, “Curie (Ci),” “Picocurie (pCi)” available at http://www.nrc.gov/reading-rm/basic-ref/glossary.html. 49 Id. at Criterion 6. 50 Id. at Criterion 6. 51 See Appendix A, “Reclamation Plan” and Criterion 6A. 52 See generally Ex. 1 at 3-1 to 5-2. 53 See Ex. 19. 54 See Ex. 1 at I-2, 3-4. 55 Ex. 1 at 3-4. 56 Ex. 20. 57 Ex. 20 at 3-7. 58 10 C.F.R. Part 40, App. A, Criterion 6A. 9 over Cell 2 for at least six or seven years.59 The problem is twofold. First, Energy Fuels’ currently approved reclamation plan—Revision 3.2—is subpar, at best. Though the plan’s exact shortcomings are debatable, at the very least, the conventional-cover design it includes may allow more precipitation to seep through the cover and into the tailings, which increases the risk of groundwater contamination.60 And in any event, Revision 3.2 is badly outdated. Second, the Division isn’t convinced that the ET cover proposed in Plan Revision 5.1 will be effective either.61 So, rather than cover Cell 2 with Revision 3.2’s conventional design or Revision 5.1’s evapotranspirative design, the Division and Energy Fuels have agreed in a Stipulation and Consent Agreement to build two small test sections of the ET cover in the corner of Cell 2 and gather performance data from them for seven years.62 If the test sections meet performance criteria (for how much precipitation seeps through the cover and how much vegetation grows on the cover), then Energy Fuels will finish building the ET cover on Cell 2.63 If the test sections don’t meet those criteria, Energy Fuels will have a chance to revise the design to the Division’s satisfaction.64 If the Division is ultimately unsatisfied with Energy Fuels’ proposed design, then the Consent Agreement calls for Energy Fuels to build the conventional cover on Cell 2.65 According to the company’s plan, the cover selected for Cell 2 eventually would be built on Cell 3, Cell 4A, part of Cell 1, and on Cell 4B depending on what kind of wastes go in that cell.66 III. The Division should require Energy Fuels to revise Reclamation Plan Revision 5.1. A. The Division should require Energy Fuels to evaluate off-site disposal alternatives. The possibility of moving the mill’s radioactive wastes away from the mill to an off-site repository has never been examined. Yet the Division’s rules require applicants for amended radioactive materials licenses to evaluate alternatives to the proposed licensing action, “including alternative sites and engineering methods, to the activities to be conducted pursuant to the license or amendment.”67 Under that rule, the Division should require Energy Fuels to evaluate the relative environmental impacts and costs of moving radioactive wastes from the mill to an off-site disposal location. 59 See Ex. 21 at 5 (providing for a cover test section to be constructed and monitored for seven years to see how well it works). 60 Ex. 22 at E-8; see also Ex. 23 at 8 (acknowledging that the ET cover may perform better than the conventional cover). 61 Ex. 23 at 8 (“The [Division] staff had a number of concerns with the proposed cover system and has worked with [Energy Fuels] through several rounds of interrogatories to resolve those concerns. Unfortunately, [Energy Fuels] could not resolve all of staff’s concerns from information available during the review process.”) 62 Ex. 21 at 4–5. 63 Ex. 21 at 7. There are two performance metrics. The average measured percolation rate from the base of a lysimeter in what’s called the “primary test section” must be 2.3 mm/year or less during the five-year performance period. Ex. 21 at 5–6. At least 40 percent of the primary and supplemental test sections must be covered by live vegetation with “acceptable vegetation diversity” by the end of the 5-year performance period. Ex. 21 at 6. 64 Ex. 21 at 7. 65 Ex. 21 at 7. 66 Ex. 1 at 3-3 to 3-6. 67 R313-24-3(1)(c). 10 In 2005, the Department of Energy analyzed off-site-disposal options for tailings that were discarded by the Atlas uranium mill’s owner on the banks of the Colorado River outside Moab, Utah.68 Moving those tailings to the White Mesa mill was an alternative the Department considered.69 Ultimately, the Department rejected that alternative, concluding that a new repository in Crescent Junction was a better disposal location.70 Among its reasons were that the Crescent Junction site had better geologic isolation than White Mesa (reducing the risk of groundwater contamination) and fewer conflicts about using that area for radioactive-waste disposal.71 EPA echoed these observations in comments on the Department’s analysis.72 This evaluation suggests that off-site disposal alternatives for the radioactive wastes at the White Mesa mill may well be superior to permanently burying those wastes at the mill. Accordingly, the Division should insist that Energy Fuels analyze those alternatives so that the public and the Division may assess the relative environmental impacts and costs of off-site-disposal options. Particularly if the Division adheres to its planned performance test for the ET cover, and the cover ultimately fails that test, having an analysis of off-site disposal options in hand would be valuable. And it would be helpful to understand the prospects for off-site-disposal alternatives even if the Division abandons the performance test and requires Energy Fuels to promptly build a final cover on Cell 2, for some (if not most) of the mills cells will not be reclaimed for many years and could be moved off-site rather than capped in place. B. The definitions and standards used to establish reclamation milestones should be revised to be consistent with federal and state law. Reclamation Plan Revision 5.1 uses several definitions and standards that are at odds with the impoundment-closure standards in federal and state law. The problem lies with how the plan redefines two regulatory terms of art—“operation” and “final closure”—that control when Appendix A’s impoundment- cleanup requirements and deadlines are triggered. These inconsistencies should be eliminated to ensure that the company closes impoundments promptly and in compliance with the law. 1. Background When a tailings impoundment “ceases operation,” Appendix A requires uranium mill operators to expeditiously build a “final radon barrier” over the impoundment “in accordance with a written, Commission-approved reclamation plan.”73 Reclamation plans must have clear, enforceable deadlines, or as Appendix A puts it, “a schedule for reclamation milestones that are key to the completion of the final radon barrier….”74 Milestones aren’t flexible target timeframes or performance goals; they’re “an action or event that is required to occur by an enforceable date.”75 68 Ex. 24 at S-2. 69 Ex. 24 at S-9. 70 See Record of Decision for the Remediation of the Moab Uranium Mill Tailings, Grand Junction and San Juan Counties, UT, 70 Fed. Reg. 55,358, 55,358–359 (Sep. 21, 2005). 71 Ex. 24 at S-12. 72 Ex. 25 at 4–5, 19 (observing that Energy Fuels’ tailings-cover design may be inadequate). 73 10 C.F.R. Pt. 40, Appx. A, Criterion 6A; Utah Admin. Code R313-24-4 (incorporating Criterion 6A and other parts of Appendix A by reference). 74 10 C.F.R. § Pt. 40, App. A, “Reclamation plan.” 75 Id. at “Milestone.” 11 The event that triggers the expeditious-closure requirement for any given impoundment is taking that impoundment out of “operation.”76 Appendix A defines “operation” to mean that an impoundment is “being used for the continued placement of byproduct material or is in standby status for such placement.”77 Impoundments are in “operation,” the definition goes on, “from the day that byproduct material is first placed in the pile or impoundment until the day final closure begins.”78 So, there are two conditions that are essential for an impoundment to cease “operation.” “Byproduct material” must have been placed into the impoundment to initiate an impoundment’s “operation,” and “final closure” must have begun to end the impoundment’s “operation.” 2. Problems with the Reclamation Plan’s Definitions There are two main flaws with the definitions Energy Fuels has put in Reclamation Plan Revision 5.1. First, the Plan defines the term “operation” so that its impoundment-closure requirements apply only to those impoundments used for disposing of “tailings sands,” even though Appendix A’s impoundment-closure requirements apply to impoundments used to dispose of any wastes produced by processing uranium. Second, the Plan defines the term “final closure” in a way that purports to allow final closure to begin under circumstances when it would not begin under federal and state law. a. “Operation” “Operation,” according to Plan Revision 5.1, means a tailings impoundment that “is being used for the continued placement of tailings sands or is on standby status for such placement.”79 Under Appendix A, in contrast, impoundments are in “operation” when they’re first used to dispose of “byproduct material,” not just “tailings sands.”80 The term “byproduct material” means the “tailings or wastes produced by the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content, including discrete surface wastes resulting from uranium solution extraction processes.”81 By its plain terms, Appendix A’s definition of “byproduct material” includes everything that Energy Fuels puts in the cells at the mill: the mostly liquid raffinate wastes, semi-solid counter-current- decantation slurry, “tailings sands,” and all the other uranium-milling wastes the company discards in the cells. Indeed, the radioactive materials license and groundwater discharge permit prohibit the company from disposing of anything other than “byproduct material” in the cells.82 And in a pending Clean Air Act lawsuit, Energy Fuels has concurred that “byproduct material” under the Atomic Energy Act and UMTRCA includes all these wastes. “[B]yproduct material,” the company argued, “is the broader category of waste produced at a mill and regulated under UMTRCA, while tailings”—by which Energy Fuels meant the same thing as “tailings sands”—“represent a form or subset of byproduct material.”83 Consequently, all the cells at the mill have been used for the placement of “byproduct material,” and thus, all the cells have been put into “operation” under Appendix A. Any cell taken out of “operation” is therefore subject to the expeditious-closure and deadline requirements in Appendix A. 76 10 C.F.R. Pt. 40, Appx. A, Criterion 6A; Utah Admin. Code R313-24-4 (incorporating Criterion 6A and other parts of Appendix A by reference). 77 10 C.F.R. § Pt. 40, App. A, “Operation.” 78 Id. 79 Ex. 1 at 6-1 (emphasis added). 80 10 C.F.R. § Pt. 40, App. A, “Operation.” 81 10 C.F.R. § 40.4; Utah Admin. Code R313-24-4 (incorporating 10 C.F.R. § 40.4 by reference). 82 Ex. 26 at § 10.1.B; Ex. 39 at §§ I.C.2, I.D.7; see also Ex. 27 at § 10.1.B; Ex. 40 at §§ I.C., I.D.7. 83 Ex. 28 at ECF p. 39–40. 12 By defining “operation” to refer only to impoundments that have received “tailings sands,” Plan Revision 5.1 unlawfully purports to limit Appendix A’s impoundment-closure requirements only to impoundments that have received “tailings sands.” The Plan doesn’t say what “tailings sands” are or which cells have received them, but Energy Fuels has argued in pending litigation that the slurry pumped over the years to Cells 2, 3, and 4A is the only source of “tailings sands” at the mill.84 Thus, under the company’s view of the facts, “tailings sands” have not been discarded in Cells 1 and 4B (even though part of the slurry from the counter-current-decantation circuit has been siphoned into Cell 4B). And that being so, under the company’s tailings-sands-based definition of “operation,” Cells 1 and 4B would not be subject to Appendix A’s expeditious-closure requirements when they are no longer in use. That outcome would be contrary to Appendix A, whose expeditious-closure requirements apply to all cells at the mill. The Division accordingly should require Energy Fuels to revise Plan Revision 5.1 to use a definition of “operation” that is identical to the definition in Appendix A and to clarify how it applies to the mill’s cells. In particular, the Division should require Energy Fuels to revise Section 6 of Plan Revision 5.1 as follows:  The definition of “operation” that appears in Section 6.2.1 should be changed to match the definition in Appendix A: “Operation means that a uranium or thorium mill tailings pile or impoundment is being used for the continued placement of byproduct material or is in standby status for such placement. A pile or impoundment is in operation from the day that byproduct material is first placed in the pile or impoundment until the day final closure begins.”85  The definition of “byproduct material” used in the Nuclear Regulatory Commission’s regulations (that has been incorporated by reference under State law) should be added to the Plan. The pertinent part of that definition is: “Byproduct Material means the tailings or wastes produced by the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content, including discrete surface wastes resulting from uranium solution extraction processes.”86  The Plan should clarify that Appendix A’s impoundment-closure requirements apply to all cells at the mill, including Cells 1 and 4B, and will apply to any cells built in the future into which “byproduct material” is placed. Thus, for example, the plan’s description of the existing “tailings management system at the Mill” should be revised to confirm that there are currently five waste impoundments at the mill: Cell 1, Cell 2, Cell 3, Cell 4A, and Cell 4B.87  The Plan should include milestones for closing all the mill’s impoundments, including Cells 1 and 4B, as well as any other so-called “evaporation ponds” built in the future. Thus, for example, the Plan should have deadlines for closing Cell 1 when it is taken out of operation and deadlines for closing Cell 4B if it is taken out of operation before Energy Fuels starts pumping “tailings sands” from the counter-current-decantation circuit into that cell. At a minimum, for closing “evaporation ponds,” the Plan should have deadlines for removing freestanding liquids; excavating solids, contaminated soil, and the liner and burying those materials in an operating tailings cell; and 84 Ex. 28 at ECF p. 15. 85 10 C.F.R. Part 40, App. A. 86 10 C.F.R § 40.4; Utah Admin. Code R313-24-4. 87 Ex. 1 at 6-2. 13 building a final radon barrier over any section of those impoundments that will be covered in place.88 b. “Final Closure” The second flaw in Plan Revision 5.1’s impoundment-closure definitions is that the company has given the term “final closure” a meaning that is inconsistent with federal and state law. Neither Appendix A nor any other regulations adopted by the Nuclear Regulatory Commission define the phrase “final closure.” EPA has, however, defined that phrase in a separate set of Clean Air Act rules, commonly called Subpart W,89 that apply to tailings impoundments. And the State has incorporated Subpart W into state law by reference.90 For the reasons set out below, EPA’s definition should control when “final closure” begins under Appendix A. Energy Fuels, however, has given the term “final closure” a different definition in Plan Revision 5.1. Final closure begins, according to the Plan, when an impoundment: (A) is no longer being used for the continued placement of tailings sands and [Energy Fuels] has advised the Director in writing that the impoundment is no longer being used for the continued placement of tailings sands and is not on standby status for such placement; or (B) is no longer being used for the continued placement of tailings sands, interim cover has been placed over the entire surface area of the impoundment, and dewatering activities have begun; or (C) the Mill facility as a whole has commenced final closure and a written notice to that effect has been provided to the Director in accordance with this Plan.91 There are three main problems with this definition: (1) it doesn’t match the definition in Subpart W, which could muddle when “final closure” begins for differing regulatory purposes; (2) like the Plan’s definition of “operation,” it also improperly purports to apply the concept of “final closure” only to those impoundments that contain “tailings sands” and not all impoundments containing uranium byproduct material; and (3) it creates an internal inconsistency in the Plan by allowing, under Option B, for “final closure” to begin when interim cover has been placed over an entire cell and dewatering has begun even though the Plan has milestones for placing interim cover and dewatering after final closure begins. For the reasons set out below, the Division should require Energy Fuels to update Plan Revision 5.1 so that the definition of “final closure” matches the definition in Subpart W.92 i. EPA’s Regulation of Tailings Impoundments When Congress passed UMTRCA in 1978, it directed EPA to establish general standards to protect public health and the environment from hazards posed by processing and disposing of uranium- 88 See Ex. 1 at 3-5 to 3-6 (discussing the planned closure steps for Cell 1). 89 This refers to 40 C.F.R. Part 61, Subpart W. 90 Utah Admin. Code R307-214-1. 91 Ex. 1 at 6-2. 92 40 C.F.R. § 61.251(n). 14 milling tailings.93 It also required the Nuclear Regulatory Commission’s rules to conform to EPA’s general standards.94 For operating uranium mills, those standards are set out in 40 C.F.R. Part 192, Subpart D. EPA’s initial version of those standards were issued in 1983 and included design, operating, and closure standards for the pits at uranium mills in which tailings are buried.95 For example, these standards required impoundments to be closed so that radon releases would not exceed 20 pCi/(m2-sec) for 1,000 years.96 The Commission revised its own regulations (in Appendix A) in 1985 to conform to EPA’s rules.97 By the late 1980s, EPA realized its rules had a flaw: They failed to set deadlines for closing tailings impoundments.98 Though the rules had performance standards that closed impoundments must meet, there was no mandate for when mill operators, like Energy Fuels, had to meet those standards. EPA set out to fix this problem in a rulemaking under the Clean Air Act. That story starts in late 1979, when EPA designated radionuclides as a “hazardous air pollutant” under the Clean Air Act after finding that exposure to radionuclides increases the risk of getting cancer and suffering genetic damage.99 At the time, the Clean Air Act required EPA to set emission standards for hazardous air pollutants that would protect the public health from those pollutants with an “ample margin of safety.”100 In 1986, EPA concluded that radon emitted from tailings impoundments poses a significant enough health risk (particularly of lung cancer) to warrant establishing emission standards for those releases under the Clean Air Act.101 Those standards—codified at 40 C.F.R. Part 61, Subpart W—required mill operators to phase out big, radon-emitting tailings impoundments and transition to using just two smaller impoundments that were to be cleaned up one-by-one as they filled up, ceased “operation,” and “final closure” began.102 This was the first use of the term “final closure” in regulating uranium-mill impoundments. In 1989, EPA added a new rule to those standards—40 C.F.R. Subpart T—to set impoundment- closure deadlines and thereby fix the closure-limbo problem created by the agency’s 1983 UMTRCA rulemaking.103 EPA recognized that “[t]he existing UMTRCA regulations set no time limits for the 93 42 U.S.C. §§ 2022, 2114. 94 42 U.S.C. §§ 2022, 2114. 95 See Environmental Standards for Uranium and Thorium Mill Tailings at Licensed Commercial Processing Sites, 48 Fed. Reg. 45,926, 45,946–47 (Oct. 7, 1983). 96 Id. 97 See Uranium Mill Tailings Regulations: Conforming NRC Requirements to EPA Standards, 50 Fed. Reg. 41,852 (Oct. 16, 1985). 98 See Health and Environmental Standards for Uranium and Thorium Mill Tailings, 58 Fed. Reg. 60,340, 60,341 (Nov. 15, 1993) (“Both the UMTRCA standards promulgated by EPA in 1983 and the implementing NRC standards promulgated in 1985, failed to require or otherwise establish compliance schedules to ensure that the tailings piles would be expeditiously closed, and that the 20 pCi/m2-s standard would be met, within a reasonable period of time.”). 99 National Emission Standards for Hazardous Air Pollutants: Addition of Radionuclides to List of Hazardous Air Pollutants, 44 Fed. Reg. 76,738, 76,738 (Dec. 27, 1979). 100 Pub. L. 91-604 § 4(a), 84 Stat. 1685. 101 National Emission Standards for Hazardous Air Pollutants: Standards for Radon-222 Emissions from Licensed Uranium Mill Tailings, 51 Fed. Reg. 34,056, 34,056–57 (Sep. 24, 1986). 102 See 40 C.F.R. § 61.252(a) (1987) (requiring impoundments built after September 1986 to be closed in phases) and § 61.252(b), (c) (1987) (requiring impoundments existing as of September 1986 to be phased out of use). 103 54 Fed. Reg. 51,654, 51,683 (Dec. 15, 1989). 15 disposal of [tailings] piles” and “[s]ome piles have remained uncovered for decades emitting radon.”104 Setting closure deadlines in Subpart T, EPA asserted, would assure that impoundments “will be disposed of in a timely manner after they are removed from service,” thereby reducing radon emissions and protecting public health.105 To meet that goal, Subpart T gave mill operators two years to close impoundments after they ceased to be “operational.”106 Protracted litigation over Subpart T ensued. Ultimately, a complex negotiation among EPA, the Nuclear Regulatory Commission, and affected states yielded an agreement to rescind Subpart T, but only after EPA amended its general standards under UMTRCA to require impoundments to be closed expeditiously according to deadlines, and only on the condition that the Commission amend Appendix A to conform to that change.107 To define when those requirements would be triggered, EPA’s revised general standards, adopted in 1993, borrowed a functionally equivalent version of the agency’s own prior definition of “operation” from Subpart W, under which operation continues until “final closure” begins.108 The Nuclear Regulatory Commission, as it is required to do, then conformed Appendix A to EPA’s general standards, adopting EPA’s definition of “operation” and its use of the term “final closure.”109 The upshot under these rules was that impoundments are subject to Subpart W’s two-impoundment limit while they are in “operation,” and they become subject to Appendix A when “final closure” begins and “operation” ends. This history reveals three critical points about the term “final closure.” First, EPA first coined that term for use in Subpart W in 1986. Second, Appendix A’s mandate to close impoundments expeditiously and according to a deadline-driven reclamation plan after “operation” ceases and “final closure” begins was added at EPA’s direction. Third, EPA used functionally identical definitions of “operation” in Subpart W and its general standards in Part 192 to establish a clear point at which impoundments were no longer subject to Subpart W’s two-impoundment limit and had to be closed according to Appendix A. In short, EPA is the architect of the impoundment-closure requirements and the author of the key regulatory language—including the terms “operation” and “final closure”—that trigger those requirements. EPA’s definition of “final closure” should therefore control the meaning of that term under Appendix A. 104 Id. 105 Id. 106 Id. at 51,702. 107 See National Emissions Standards for Hazardous Air Pollutants, 59 Fed. Reg. 36,280, 36,280–282 (July 15, 1994) (rescinding Subpart T and explaining the rule’s history and other regulatory changes to 40 C.F.R. Part 192 and Appendix A that were made to ensure that closure deadlines were retained in those rules); Uranium Mill Tailings Regulations: Conforming NRC Requirements to EPA Standards, 59 Fed. Reg. 28,220, 28,220–221 (June 1, 1994) (conforming Appendix A to EPA’s general standards and discussing the same rulemaking history). 108 Compare 40 C.F.R. § 61.251(e) (1993) (defining “operation” to mean “an impoundment is being used for the continued placement of new tailings or is in standby status for such placement. An impoundment is in operation from the day that tailings are first placed in the impoundment until the day that final closure begins”) with 58 Fed. Reg. 60,340, 60,355 (adopting the same definition but using the phrase “uranium byproduct material” interchangeably with the term “tailings”) (Nov. 15, 1993). 109 59 Fed. Reg. at 28,230 (“Operation means that a uranium or thorium mill tailings pile or impoundment is being used for the continued placement of byproduct material or is in standby status for such placement. A pile or impoundment is in operation from the day that byproduct material is first placed in the pile or impoundment until the day final closure begins.”). 16 ii. Reclamation Plan Revision 5.1 should be revised to conform to EPA’s definition of “final closure” as set out in Subpart W. Earlier this year, EPA amended Subpart W. Among other revisions, the agency added a definition of “final closure” to that rule.110 That definition says that “final closure” means “the period during which an impoundment … is being managed in accordance with the milestones and requirements in an approved reclamation plan.” 111 It begins when: the owner or operator provides written notice to the [EPA] and to the Nuclear Regulatory Commission or applicable NRC Agreement State that: (1) A conventional impoundment is no longer receiving uranium byproduct material or tailings, is no longer on standby for such receipt and is being managed under an approved reclamation plan for that impoundment or facility closure plan; or (2) A non-conventional impoundment is no longer required for evaporation or holding purposes, is no longer on standby for such purposes and is being managed under an approved reclamation plan for that impoundment or facility closure plan; ….112 The Division should require Energy Fuels to revise Plan Revision 5.1 so that the Plan’s definition of “final closure” matches the definition in Subpart W. This is important for four reasons. First, EPA’s definition makes clear that “final closure” begins only when the deadlines (a.k.a. “milestones”) in the reclamation plan have been triggered.113 That means, if deadlines don’t start running, final closure can’t begin, a critical condition to avoid delay. Second, EPA’s definition leaves no doubt about when “non- conventional impoundments”—also called evaporation ponds—enter final closure and must be managed “in accordance with the milestones and requirements in an approved reclamation plan.”114 That fixes the problem that Energy Fuels’ definition creates by referring only to impoundments used to discard “tailings sands,” which are “conventional impoundments” according to Subpart W’s definition of “final closure.” Third, using the same definitions in Subpart W and the reclamation plan will ensure that the exact same event—proper notice to the Division and EPA—triggers “final closure,” eliminating any possibility that Energy Fuels could claim that an impoundment is not in “operation” under Subpart W but also not in “final closure” under Appendix A. Fourth, adopting EPA’s definition of final closure eliminates the internal inconsistency created by Energy Fuels’ definition of that term when compared with the plan’s milestones. C. The reclamation deadlines in Revision 5.1 are inadequate. 1. Deadlines must be imposed for all key tasks for completing the final radon barrier. Energy Fuels’ reclamation plan lacks several deadlines the plan is required to have. Appendix A mandates that reclamation plans have “milestones that are key to the completion of the final radon 110 Revisions to National Emission Standards for Radon Emissions from Operating Mill Tailings, 82 Fed. Reg. 5,142, 5,179 (Jan. 17, 2017). 111 40 C.F.R. § 61.251(n). 112 40 C.F.R. § 61.251(n). 113 Id. (final closure means the period when an impoundment is “being managed in accordance with the milestones and requirements in approved reclamation plan”). 114 Id. 17 barrier….”115 At a minimum, milestones must be established for retrieving windblown tailings, stabilizing the impoundment (including removing freestanding liquids, recontouring, and dewatering), and finishing the final radon barrier.116 Again, milestones aren’t flexible goals. They’re “an action or event that is required to occur by an enforceable date.”117 Reclamation Plan Revision 5.1 has a handful of deadlines that run from the date “final closure” begins or from a prior reclamation step. For example, the plan commits Energy Fuels to recontour impoundments within 180 days after freestanding liquids are removed.118 The interim cover must be finished anywhere from 19–33 months after recontouring is complete.119 Other steps follow similar patterns.120 The plan sets no deadlines, however, for some key reclamation steps. Cell dewatering, for example, is subject to no time limit. Instead, the plan has a performance standard to determine when enough dewatering has occurred to allow for placement of the final-cover layers.121 There is also no deadline for removing freestanding liquids.122 Instead, the plan explains that, when final closure begins, Energy Fuels will “minimize” the addition of liquids to the impoundment, except for precipitation, and let liquids evaporate (unless they can be pumped elsewhere without interfering with mill operations).123 This doesn’t comply with Appendix A. The “milestones” in reclamation plans must be actions or events that are “required to occur by an enforceable date.”124 The dewatering performance standard that Energy Fuels proposes thus doesn’t qualify as a “milestone,” nor does a commitment to “minimize” the addition of liquids to impoundments. Enforceable deadlines must be established for both tasks. Energy Fuels asserts that the time needed to dewater and stabilize impoundments “depends on physical and technological factors beyond [its] control,” and that it is thus “not possible to establish absolute deadlines or milestones” when the reclamation plan is approved.125 This argument lacks merit for three reasons. First, there are no exemptions from Appendix A’s deadline-setting requirements, for factors beyond Energy Fuels’ control or otherwise. Factors beyond the licensee’s control are a failsafe for Appendix A’s expeditious-closure standard, but they are not an excuse for leaving deadlines out of reclamation plans. Again, Appendix A requires impoundments to be closed “as expeditiously as practicable considering technological feasibility.”126 That is basically a performance standard—one that specifies how fast impoundments must be closed (“as quickly as possible”) and what considerations may temper that 115 10 C.F.R. Part 40, App. A, “Reclamation Plan” & Criterion 6A. 116 10 C.F.R. Part 40, App. A, “Reclamation Plan” & Criterion 6A. 117 10 C.F.R. Part 40, App. A, “Milestone.” 118 Ex. 1 at 6-3. 119 Ex. 1 at 6-4. 120 Ex. 1 at 6-5 (requiring vegetative cover to be planted in the first growing season after the final cover layers are built or, for the conventional cover design, that rock armor be placed 180 days after the final cover layers are built). 121 Ex. 1 at 6-4 (settlement most slow to a rate of 0.1 feet for 12 months as measured in 90 percent of the settlement monitors installed in the impoundment). 122 Ex. 2 at 6-3 to 6-4. 123 Id. 124 10 C.F.R. Part 40, App. A, “Milestone.” 125 Ex. 1 at 6-1. 126 10 C.F.R. Part 40, App. A, Criterion 6A. 18 pace (physical characteristics of the site, technological limitations, compliance with other regulatory programs, and factors beyond the licensee’s control).127 So, when Energy Fuels points to “physical and technological factors beyond [its] control” as a reason not to set deadlines, it’s borrowing language from Appendix A’s definition of the phrase “as expeditiously as practicable considering technological feasibility.” But that language has nothing to do with Appendix A’s deadline-setting requirements. Milestones must be established wholly apart from the expeditious-closure standard.128 And there are no exemptions whatsoever from Appendix A’s milestone requirements. Put differently, factors beyond a licensee’s control may be an acceptable justification for missing a deadline, but they are not a justification for not setting one. Second, there is a failsafe in Appendix A if deadlines cannot be met. Deadlines may be extended, but only after allowing public participation, only after finding that radon-222 releases from the impoundment are less than 20 pCi/(m2-sec) on average, only if radon-222 emissions are monitored annually during the period of delay, and if an extension for placing the final radon barrier is sought based on cost, only after even more criteria are met.129 By failing to include absolute deadlines in its plan, Energy Fuels is impermissibly attempting to bypass these requirements. Third, it is possible to estimate how long it will take to stabilize an impoundment and set deadlines based on that estimate. For cell dewatering, in fact, Energy Fuels has already made those estimates for all the mill’s impoundments. To develop Reclamation Plan Revision 5.1, Energy Fuels modelled the cell dewatering times for Cells 2 and 3 to be 10 years.130 And the company has modelled the dewatering time for the cell design used for Cells 4A and 4B to be 5.5 years.131 The company’s reclamation plan also has comparable estimates of the time needed to dewater those cells, plus an estimate of two years to dewater Cell 1.132 Comparable modelling can no doubt be completed for the time needed for evaporating the estimated volume of freestanding liquids at the time final closure begins. The Division accordingly should insist that enforceable deadlines be established in Plan Revision 5.1 for all reclamation steps that are key to completing the final radon barrier, including removal of freestanding liquids and dewatering. It is essential that the schedule of milestones be structured so that the first deadline starts running the moment that “final closure” begins, and the time limit for each subsequent reclamation step is automatically triggered when the prior step is completed or the deadline for the prior step passes, whichever occurs first. And the Division should require Energy Fuels to eliminate all qualifications and caveats from the schedule, such as allowing for “such longer time as may be required [to recontour an impoundment] if instability of the tailings sands restricts or hampers such activities.”133 That 127 10 C.F.R. Part 40, App. A (“As expeditiously as practicable considering technological feasibility, for the purposes of Criterion 6A, means as quickly as possible considering: the physical characteristics of the tailings and the site; the limits of available technology; the need for consistency with mandatory requirements of other regulatory programs; and factors beyond the control of the licensee. The phrase permits consideration of the cost of compliance only to the extent specifically provided for by use of the term available technology.”). 128 10 C.F.R. Part 40, App. A, Criterion 6A and “Reclamation Plan” (expressing the expeditious-closure and deadline requirements separately). 129 See Appendix A, Criterion 6A(2). 130 Ex. 22, App. J at J-4. 131 Ex. 29 at 9. 132 Ex. 19 at “Cell 1Reclamation” (pp. 19 and 21 of 92); “Reclamation of Cell 2” (p. 24 of 92); “Reclamation of Cell 3” (p. 37 of 92); “Reclamation of Cell 4A” (p. 48 of 92); and “Reclamation of Cell 4B” (p. 59 of 92). 133 Ex. 1 at 6-4. 19 is the only way to make sure that deadlines have teeth and can only be extended for a good reason after going through the process Appendix A demands. A proper schedule would conceptually work as set out in the following table (though we don’t pass judgment on whether the time limit listed below for each step is appropriate): Reclamation Task Milestone Removing Freestanding Liquids Freestanding liquids will be removed from the impoundment 180 days after final closure begins. Recontouring Recontouring of the impoundment will be complete 90 days after freestanding liquids are removed or 270 days after final closure begins, whichever occurs first. Interim Cover Layers Interim cover will be extended over the entire impoundment within 270 days after recontouring is complete or 540 days after final closure begins, whichever occurs first. Dewatering Dewatering of the impoundment will be complete within 5 years and 180 days days after interim cover is placed or 7 years after final closure begins, whichever occurs first. Final Cover Layers Final cover layers will be placed within 365 days after dewatering is complete or 8 years after final closure begins, whichever occurs first. Reseeding Vegetative Cover Seeding for revegetation will be complete within 270 days after the final cover layers are placed or 8 years and 270 days after final closure begins, whichever occurs first. Composing the schedule this way is clear and establishes true “milestones” that are required to occur by an enforceable date. If Energy Fuels ends up needing more time for any task, it may request an extension as provided by Criterion 6A in Appendix A: after public participation, only if radon-222 emissions are monitored annually during the period of delay and stay below 20 pCi/(m2-sec) on average, and if an extension for placing the final radon barrier is sought based on cost, only if the Division finds that Energy Fuels is “making good faith efforts to emplace the final radon barrier, the delay is consistent with the definition of available technology, and the radon releases caused by the delay will not result in a significant incremental risk to the public health.”134 In addition to requiring Energy Fuels to modify the schedule of milestones in Revision 5.1 according to the structure illustrated above, the Division should require Energy Fuels to:  Establish an absolute deadline for removing freestanding liquids, such as 180 days after final closure begins. Also, to meet Appendix A’s requirement that impoundments be closed as quickly as possible considering technological feasibility, require Energy Fuels to stop adding liquids to the impoundment once final closure begins (rather than to “minimize” addition of liquids) and to pump freestanding liquids into other operating cells, regardless of whether doing so will force the company to curtail mill operations.  Eliminate the proviso in the recontouring milestone that allows for more than 180 days to finish recontouring “as may be required if instability of the tailings sands restricts or hampers 134 10 C.F.R. Part 40, App. A, Criterion 6A. 20 such activities.”135 If Energy Fuels needs that deadline to be extended, it may apply for an extension as provided by Appendix A.  Establish an absolute deadline for completing dewatering that is based on current modelling of how long it will take to meet the settlement performance standard in the plan (e.g., for Cells 4A and 4B, 5.5 years after dewatering is commenced). If the settlement performance standard is met before the deadline, then the deadline for the next reclamation task (placement of final cover layers) should be triggered. If the deadline cannot be met despite proceeding “as expeditiously as practicable considering technological feasibility,” as that phrase is defined by Appendix A, then Energy Fuels may apply for an extension according to the process laid out in Criterion 6A. The same modification should be made to the Stipulation and Consent Agreement for completing the final cover on Cell 2.  Delete the second paragraph in Section 6.1 of the plan, which inaccurately asserts that “it is not possible to establish absolute deadlines or milestones for reclamation at the time of approval of this Plan.”136 Delete comparable statements elsewhere in the Plan that deadlines cannot be established.137  Set a deadline for establishing vegetative cover and diversity that meets the design criteria for the ET cover. This modification should also be made to the Stipulation and Consent Agreement for completing the final cover on Cell 2. 2. The schedule that applies if the mill is closed violates Appendix A. If Energy Fuels decides to shut down the mill, Plan Revision 5.1 modifies the impoundment- cleanup deadlines that would apply to impoundments that are closed while the mill is running.138 Rather than establish deadlines that run from the day final closure of each remaining impoundment begins (as required by Appendix A), Revision 5.1 says that Energy Fuels will submit a separate decommissioning schedule to the Division when the mill closes.139 Only after the Division approves that schedule would any closure deadlines be triggered.140 Under this plan, Energy Fuels would start demolishing the mill and retrieving windblown tailings 180 days after the schedule is approved and “sufficient” solutions evaporate from the cell that the dismantled mill will go in.141 Unreclaimed impoundments would be closed one-by-one, starting “as soon as reasonably practicable” after the Division approves the schedule.142 So, if Energy Fuels closed the mill with five operating impoundments, until closure of the first impoundment was complete, the company wouldn’t be required to start the first steps in its reclamation plan for the second impoundment—such as finishing placement of interim cover, recontouring, and dewatering (which could take years). And only after closing the second impoundment, would closure of the third impoundment have to begin, and so on. This could take decades. 135 Ex. 1 at 6-4. 136 Ex. 1 at 6-1. 137 See, e.g., Ex. 2 at 6-1 (“to the extent that they can be established at this time”). 138 See Ex. 1 at 6-5 to 6-6 (§ 6.2.4). 139 Id. 140 Id. 141 Ex. 1 at 6-6. 142 Id. at 6-6. 21 Impermissible delay taints this plan. The day “final closure” of an impoundment at the mill begins, the clock must start ticking on closure milestones—meaning enforceable deadlines—for that impoundment.143 When mill closure begins, it’s necessarily true that “final closure” of all operating impoundments will begin. Initiating closure of the mill, that is, necessarily means that the whole facility is being managed in accordance with the mill’s reclamation plan, including all impoundments that were still in operation. And that means all operating impoundments will enter “final closure”: namely, “the period during which [the] impoundment … is being managed in accordance with the milestones and requirements in an approved reclamation plan.”144 Thus, initiating mill closure must simultaneously trigger “final closure” of all operating impoundments. And under Criterion 6A of Appendix A, that must trigger closure milestones. The upshot is twofold: (1) deadlines must be established for closing the last impoundment that account for decommissioning the mill and other structures and burying them in that impoundment before the final radon barrier is placed; (2) closure of all unreclaimed impoundments must proceed simultaneously, not one-by-one. The reasoning behind the first point is simple. Energy Fuels plans to bury the mill and other leftover waste in the last open impoundment. Until that happens, it’s impossible to place the final radon barrier on the last unreclaimed cell. And Appendix A requires a deadline to be set for completing the final radon barrier for that cell, like all others at the mill. Thus, to comply with Appendix A, a deadline must be established now for building the final radon barrier on the last unreclaimed cell that is based on a predicted decommissioning schedule for the rest of the mill. The second point likewise follows from the standards in Appendix A. Closing impoundments one- by-one is impermissible under Appendix A because Criterion 6A insists that impoundments be closed “as expeditiously as practicable considering technological feasibility” after they stop operating.145 That phrase means “as quickly as possible” considering physical site characteristics, technology, regulatory requirements, and uncontrollable factors.146 Waiting to start reclaiming an impoundment until closure of another impoundment is complete, by definition, cannot amount to closing the idle impoundment “as quickly as possible.” Energy Fuels hasn’t identified any physical characteristics of the mill site, technological limitations, or regulatory requirements that would justify closing impoundments sequentially. And the Division should prohibit the company from doing so. The Division accordingly should require Energy Fuels to revise the reclamation plan so that:  Initiating mill closure also initiates final closure of all operating impoundments (including conventional and non-conventional impoundments alike, and triggers milestones for closing those impoundments;  The plan includes a schedule for decommissioning activities that Energy Fuels must accomplish before completing the final radon barrier, such as dismantling the mill, digging up any non-conventional impoundments that won’t be closed in place, and burying those materials in the last impoundment. 143 See 10 C.F.R. Part 40, App. A, Criterion 6A; 40 C.F.R. § 61.251(n). 144 40 C.F.R. § 61.251(n). 145 10 C.F.R. Part 40, App. A, Criterion 6A. 146 10 C.F.R. Part 40, App. A, “As expeditiously as practicable considering technological feasibility.” 22 3. Deadlines must be established as a condition of the radioactive materials license. Criterion 6A in Appendix A is clear that “[d]eadlines for completion of the final radon barrier” and, if applicable, other interim milestones “must be established as a condition of the individual license.”147 The Division’s draft radioactive materials license doesn’t do that. It’s completely silent on the subject. The consequences of this lapse are more than ministerial. Under the Utah Radiation Control Act, civil penalties may be assessed for violating a radioactive materials license.148 Thus, putting reclamation deadlines in the license, as the Division is required to do, will give Energy Fuels more incentive to meet them and the Division more clout if Energy Fuels doesn’t. The Division should correct this omission by stating as a condition of the license all milestones that are expressed in Plan Revision 5.1 (as revised according to our comments above). D. Energy Fuels should not be allowed, let alone required, to revert to the cover design in Reclamation Plan Revision 3.2b. If the ET cover test sections don’t meet the performance criteria set out in the Stipulation and Consent Agreement, Reclamation Plan Revision 5.1 calls for Energy Fuels to build a cover that is “functionally equivalent to the Existing Cover Design presented in Reclamation Plan Revision 3.2b”—i.e., the “conventional cover” mentioned above.149 That design was developed in 1996.150 Calling it a conventional design means that compacted soil layers, rather than evapotranspiration, would be used to inhibit percolation of water through the cover. By all signs, this design would be far inferior at the mill to an evapotranspirative one. Research since 1996 reveals that conventional designs often allow more water to permeate through the cover than the design was meant to allow, posing a risk of groundwater contamination. Indeed, the latest infiltration modelling for the 1996 conventional-cover design predicts that far more water will infiltrate through that cover than the ET cover. For that reason, installation of the conventional cover should not be an automatic backup plan if the ET cover doesn’t meet the Consent Agreement’s performance criteria. Only if the ET cover can’t meet the Consent Agreement’s performance criteria, and the conventional cover can, would it make any sense to revert to the conventional cover. Regardless, the analysis supporting the conventional cover is badly out of date, casting serious doubt on whether that cover could possibly work as intended. For these reasons, the Division should not authorize contingent reversion to the conventional cover design. If the ET cover fails to meet the Consent Agreement’s performance criteria, it would defy common sense and the law to allow Energy Fuels to build a less robust cover. 147 10 C.F.R. Part 40, App. A, Criterion 6A. 148 Utah Code § 19-3-109(1); see also Utah Admin. Code R313-14-15 (authorizing enforcement actions for violating legally binding “requirements”) and R313-14-3(2) (defining “requirement” to include mandates such as license conditions). 149 Ex. 1 at 5-1. See also Ex. 21 at 7 (§ D.7.b.iii). 150 Ex. 30. 23 1. In arid environments, conventional cover designs generally pose greater risk to groundwater than evapotranspirative designs. Performance evaluations from tailings and other waste covers built in the past several decades strongly suggest that evapotranspirative covers will outperform conventional covers in arid places, like White Mesa, Utah. In addition to setting standards for cleaning up operating uranium mills, UMTRCA also created a program for cleaning up mills that were defunct by the time the law was passed in 1978. UMTRCA put the Department of Energy in charge of remediating these so-called “Title I” sites. Over the next 20 years,151 the Department of Energy built 19 tailings disposal cells, mostly at uranium mills in the West, generally using a conventional design, though with a few vegetated covers.152 Research into how those and other tailings covers have fared reveals that these conventional designs often don’t fend off water infiltration anywhere near as well as they were designed to. 153 Why? Deep-rooted plants, repeated freezing and thawing, desiccation, and construction defects, among other factors, can all degrade the cover.154 This research and other lessons learned from early Title I covers have led the Department of Energy to investigate evapotransiprative alternatives.155 The cover built over the Monticello tailings site, which is about 25 miles from the White Mesa mill, is a leading example.156 It’s a composite design that has a traditional, compacted-soil layer on top of the tailings and an evapotranspirative cover on top of the compacted-soil layer, with a high-density polyethylene liner in between. The evapotranspirative cover has several elements. The top 8" are a gravel-soil mixture. Topsoil makes up the next 2'. Beneath that is about 16” of fine-grained soil to aid plant growth and provide frost protection. A foot of cobbles surrounded by soil are next to deter animals from burrowing into the cover. Another foot of fine-grained soil lies below that, then a geotextile separator. Last, a capillary break made of course sand sits above the liner as a place to store water until it’s removed by evapotranspiration.157 Water-infiltration monitoring at the Monticello site (using a very large lysimeter) has revealed a rate of percolation through the cover of about 0.5 mm/year for the first thirteen years the cover was in service (through December 2012).158 We’ve been unable to find directly comparable lysimeter data for conventional covers in the Title I program. But to provide some context, a percolation rate of 3.0 mm/year (often described in the literature as an EPA design target) corresponds to a saturated hydraulic conductivity of about 1ൈ10ିଵ଴ m/s. Measurements of saturated hydraulic conductivity from tests on some conventional covers have often yielded results showing far greater conductivity (with measurements as high as 2ൈ10ି଺ m/s). 151 Ex. 31 at Table 1. 152 Ex. 32 at 1. 153 Ex. 33 at 4-6 (“Several studies have shown that [compacted soil layers] in conventional covers often fall short of low-permeability targets, often during or shortly after construction, and sometimes by several orders of magnitude.”); Ex. 35 at 5. 154 Ex. 34 at 2. 155 Ex. 34 at 2. 156 Ex. 35 at 3; Ex. 35 at 5. 157 See Ex. 35 at 3–4; Ex. 34 at 2. 158 Ex. 34 at 4; Ex. at Slide 15. 24 While it may be true that well-built conventional covers may be a defensible option under certain circumstances, the history of reclaiming Title I sites and recent research trends strongly suggest that evapotranspirative designs in arid environments will outperform conventional covers.159 2. Modelling predicts the mill’s 1996 conventional-cover design would put groundwater at more risk than alternatives. In Plan Revision 5.1, Energy Fuels abandoned the 1996 conventional-cover design principally because research and modelling show that more water is likely to infiltrate into conventional covers than ET covers.160 In 2010, to help develop Revision 5.1, the company modelled infiltration and contaminant- transport for four possible cover types—three evapotranspirative designs and the 1996 conventional cover design.161 Based on that modelling, Energy Fuels concluded without equivocation that the conventional cover should be eliminated from further consideration “because the model predicted much higher rates of infiltration.”162 About 75 to 300 times more water would percolate through the conventional cover than the evapotranspirative alternatives, according to the model.163 It that prediction were to pan out, over 200 hundred years (the minimum performance period under Appendix A), 22' of water would go through the conventional cover and into the tailings.164 If the tailings have a porosity of 45% (the figure used in the company’s updated infiltration modelling),165 that would mean a water-level rise on the liner of about 49'.166 At that rate, unless enough contaminated water goes through the bottom of the liner, it would overtop the liner edges near the surface. In comparison, the evapotranspirative cover with the best modelled performance would allow 0.066' through the cover over 200 years, if it works as expected. The company’s groundwater discharge permit (and the law on which it’s based) requires Energy Fuels to reclaim the impoundments in a way that “minimize[s] infiltration of precipitation or other surface water into the tailings.”167 If the ET cover test sections prove to be too permeable and fail the Consent Agreement’s performance test, the current modelling predicts that the conventional cover will perform even worse, and hence, cannot minimize infiltration into the tailings. It would violate this infiltration- minimization mandate to require Energy Fuels to revert to the conventional cover if the ET cover test does 159 Ex. 37 at 3–4 (observing that, among the covers included in an EPA test program, conventional designs often allowed the most percolation, while ET designs performed better in arid regions). 160 Ex. 22 at E-5 (“[R]ecent advances in cover design technology have emphasized the construction of vegetated, monolithic ET covers for minimizing infiltration through engineered cover systems, particularly in arid and semiarid regions.”). 161 Ex. 22 at E-1. 162 Ex. 22 at E-8. 163 Ex. 22 at E-7 (predicting an infiltration rate of 0.0092 cm/day for the conventional cover and a range of 0.00012 cm/day to 0.000031 cm/day for the evapotranspirative covers). 164 Ex. 22 at Table E-2. 165 Ex. 38 at 33. 166 See Ex. 22 at ES-6, 3-2 (calculating water-level rise for the ET cover by dividing the total water flux by a tailings porosity of 57%). 167 Exs. 39 and 40 at Part I.D.8(a); Utah Admin. Code R317-6-6.4 (allowing for discharge permits to issue if the applicant is “using best available technology to minimize the discharge of any pollutant”); 10 C.F.R. Part 40, App. A, Criterion 6(7) (requiring licensees to minimize leaching of contaminants into groundwater); see also Ex. 1 at 3-5 (“The key state and federal performance criteria for tailings cover design and reclamation include … [m]inimize infiltration into the reclaimed tailings cells.”); see also Ex. 1 at 3-5 (“The key state and federal performance criteria for tailings cover design and reclamation include … [m]inimize infiltration into the reclaimed tailings cells.”). 25 not meet performance expectations and the company doesn’t come up with changes that satisfy the Division. 3. The 1996 analysis is outdated. In 1996, Energy Fuels used modelling and other engineering assessments to evaluate how the conventional cover might perform. The key performance metrics the company considered were resilience from freeze-thaw cycles, radon attenuation, water infiltration, cover erosion, and slope stability.168 That analysis is now over 20 years old and has many shortcomings. If the conventional cover or one similar to it were ever to be built at the mill, the analysis must be overhauled to justify adoption of that type of cover. i. The freeze-thaw analysis uses obsolete data and modelling techniques. When a tailings cover repeatedly freezes and thaws, its permeability can increase.169 If that happens, the covered tailings may emit radon at a higher rate, and more water may infiltrate through the cover into the tailings, posing a risk of groundwater contamination.170 To determine whether freeze-thaw cycles would threaten the long-term durability of the conventional cover, Energy Fuels used a model in 1996 to forecast how deep frost would penetrate into the cover. The company fed a host of parameters—like average annual temperature, length of the freezing season, soil-freezing temperature, and soil-moisture content—into the model, which predicted that frost would form down to 6.8" into the conventional cover’s 24" random-fill layer (the layer near the top, immediately beneath the rock armor).171 Relying on that figure, the company concluded that freeze-thaw cycles wouldn’t compromise the cover’s ability to reduce radon emissions and surface-water infiltration (presumably because frost purportedly wouldn’t get into the one-foot compacted clay layer beneath the 24" compacted random-fill layer).172 Those conclusions are no longer reliable, for there are post-1996 data and modelling techniques the company hasn’t accounted for. In 2010, for example, Energy Fuels took new moisture-content measurements of the soil that is earmarked for the conventional cover’s 24" random-fill layer.173 Those measurements revealed the stockpiled soil to be drier than prior measurements.174 As a result, Energy Fuels used a moisture content of 7.8% when it updated its freeze-thaw analysis in 2012 for the ET cover’s 42" frost-protection layer, whereas it used a figure of 11.8% for the conventional cover’s 24" random-fill layer,175 even though the exact same soil stockpiles would be used for the main frost-protection layers in both cover designs.176 The 2012 analysis for the ET cover also used a century’s worth of temperature data from Blanding, Utah to predict the maximum depth that frost could be expected to reach over a 200-year 168 Ex. 30 at 1–2. 169 Ex. 41 (abstract of article reporting research results for tailings covers showing increases by an order of magnitude in hydraulic conductivity may occur from freeze-thaw cycles); Ex. 20 at 3-21 (“Repeated freeze/thaw cycles have been shown to increase the bulk soil permeability by breaking down the compacted soil structure.”). 170 Id.; Ex. 30, App. B, p. 1 of 32 (explaining that the upper cover layer subject to frost penetration “may not contribute to reductions of radon emanation from the tailings covers”); App. D, p. 3 of 34 (same for infiltration through the cover). 171 Ex. 30 at 6–7, App. E at 2. 172 Ex. 30 at 6–7. 173 See Ex. 1 at 7–8 and Table 2-1. 174 Compare Ex. 16 App. B. at Table A with Ex. 30 App. E at 3. 175 Compare Ex. 16 App. B. at Table A with Ex. 30 App. E at 3. 176 Ex. 16 at 2 (“The loam to sandy clay soil is the same material referred to in Titan (1996) as random/platform fill. This material is stockpiled at the site.”). 26 period.177 The 1996 model, in contrast, appears to have predicted only an average frost depth based on temperature, freezing-point, and frost-season data over some unknown period.178 Using updated modelling techniques and data, the 2012 analysis predicted a maximum frost- penetration depth of 32", which would extend through the ET cover’s 6" erosion-protection layer and well into the 42" frost-protection and bio-intrusion layer.179 That result suggests that the 1996 model understates the potential frost-penetration depth for the conventional cover.180 And differences in cover design (such as differing degrees of compaction) cannot account for all of the difference between the 1996 and 2012 results.181 Because frost-penetration depth increases as soil gets drier, for example, overstating the moisture in the 24" random-fill layer in the 1996 model, would have led the model to understate frost- penetration depth.182 Regardless, the 2012 analysis makes plain that new data and modelling methods are available that could yield a better frost-penetration estimate than produced by the 1996 model. Indeed, the Division (through its own expert) made that very point in its interrogatories examining Energy Fuels’ reclamation proposal.183 ii. Similar deficiencies afflict other parts of the 1996 analysis. It’s not only the freeze-thaw analysis that’s outdated. The results of that analysis, for example, were fed into the 1996 water-infiltration and radon-attenuation modelling.184 So, inaccuracies in the frost- penetration estimate could cause inaccuracies in those other models. Other analytical shortcomings pervade the 1996 radon modelling. Among the parameters put into that model to forecast long-term radon-emission rates were estimates of cover-moisture content, tailings and cover porosity, and tailings radium activity.185 Each of these inputs is outdated, and others may be too. Like the freeze-thaw model, the radon model used a moisture value for the random-fill layer (9.8%) that has since been reduced based on new sampling.186 Moisture data for the conventional cover’s one-foot clay layer hasn’t been updated since 1996.187 New sampling data is available from which to calculate tailings and 177 See Ex. 16 App. B. 178 Ex. 30 App E. at 2. 179 See Ex. 16 at 16, App. B; Ex. 1 at 3-8 to 3-9. 180 This is true even if some of the difference between the 1996 and 2012 results is due to differences in cover design. 181 For example, the 24" random-fill layer in the Conventional Cover would be compacted more than the top layers of the ET Cover.181 182 Ex. 16 App. B (“The depth of frost penetration is reduced when the soil-water content increases because frozen water insulates underlying soils, thus the drier the soil the greater the depth of frost penetration.”). 183 Ex. 42 at 5 (“The frost penetration depth estimate presented by TITAN Environmental (1996) is out of date and needs to be replaced with an updated frost penetration depth calculation.”). 184 Ex. 30 at App. D, p. 3 of 34 (explaining that 6.8" of frost-affected random fill were excluded from infiltration modelling); App. B, p. 1 of 32 (same for radon modelling). 185 Ex. 30 at App. B, p. 2 of 32. 186 Compare Ex. 30 at App. B, p. 5 of 32 with Ex. 16 at C-4 and Attach C.2 (using sampling conducted in 2010 and 2012 to derive a moisture content for the random-fill stockpiles of 6.7%). See also Ex. 16 at C-1 (“The loam to sandy clay soil used to construct the ET cover, referred to in previous reports (Titan 1996, Knight Piesold 1999) as random/platform fill, is stockpiled at the site.”). 187 Ex. 16 at E-3 (describing the “Section 16 clay” that was sampled in 1996 for the conventional cover design documents). 27 cover-material porosity.188 Moisture and porosity, in turn, both affect the radon-diffusion coefficients used in the 1996 model for tailings and cover materials.189 Energy Fuels has also updated its radium-activity estimates since 1996 based on the types of materials discarded in each cell.190 Considering all these interrelated variables, it is plain the 1996 radon modelling is obsolete. Similar deficiencies taint the 1996 water-infiltration model. The company predicted in 1996 that no precipitation would get through the conventional cover and into the tailings, but would instead all run off or evaporate.191 This prediction is dead wrong according to the company’s 2010 infiltration-and- contaminant-transport model, which again, forecasts that 22' of water would go through the conventional cover in the first 200 years.192 Given these divergent model results, at least one model must be inaccurate, and the 1996 model is the more likely culprit, given its age, the inferior quality of the data, and other shortcomings in the model. According to the 2010 modelling report, for example, better models are available than the one used in 1996. 193 More precise data than that used in 1996 for precipitation and other variables is also available.194 And the 2010 model rejected at least one important assumption used in 1996: that surface water would run off of the impoundments despite how flat they are.195 There are other shortcomings in the 1996 analysis. No vadose-zone contaminant-transport modelling was done to evaluate the likelihood that the cover will safeguard groundwater quality (though it was performed in 2010 for the ET cover).196 And no analysis has ever been done of how much damage to the conventional cover is likely to be caused by biointrusion—from plant roots growing into the cover or animals burrowing into it. These are not trivial oversights. If 22' of precipitation goes through the conventional cover in its first 200 years of use (an amount 300 times that predicted to flow through the ET cover) it only stands to reason that the quantity reaching groundwater could be far greater than that predicted by the 2010 vadose-zone contaminant-transport modelling for the ET cover.197 Root penetration, likewise, is a source of blame for deteriorated performance of conventional covers.198 188 Ex. 16 at C-3 (describing specific gravity and dry density testing of tailings and cover materials since 1996). 189 See Ex. 16 at C-5. 190 See Ex. 16 at Table C.1. 191 Ex. 30 at 6 and App. D, p. 1 of 34. 192 Ex. 22 at Table E-2. 193 Ex. 22 at 3-2. 194 Compare Ex. 22at E-6 (using a 57-year climate record (1932–1933) for precipitation and temperature input, ) with Ex. 30 at App. D, p. 2, (explaining that the model used precipitation data from 1988 and 1990–93) p. 7 (using outdated, initial soil water content of 0.1180 (11.8%)). 195 Compare Ex. 22 at 3-6 (“Given the flat nature of the cover (0.2 percent slope), no runon- or runoff- based processes were assumed to occur.”) with Ex. 30 at App. D, pp. 1, 4 (explaining that model predicted precipitation would runoff soil cover or be evaporated and describing calculation of runoff curve). 196 See Ex. 16 at 3 (explaining that ET cover design report “presents analyses not performed for the Titan (1996) design, including biointrusion, tailings dewatering, liquefaction, and settlement”); compare Ex. 30 (no analysis of these metrics) with Ex. 22 at 3-10 to 3-16, 4-5 to 4-16, App. L (explaining assumption that flux rates at the end of dewatering would presumably be equal to post-closure steady state because the increase in water levels is predicted to be minor, citing to infiltration modelling in Appendix E), and App. M. 197 Ex. 22 at App. L at Figures L-2, L-3, L-4 (predicting the highest leakage through the cell liners when water levels in the tailings are the highest). 198 See, e.g., Ex. 35 at 1 (“Early cover designs rely on compacted soil layers to limit water infiltration and release of radon, but some of these covers inadvertently created habitats for deep-rooted plants. Root intrusion and soil development increased the saturated hydraulic conductivity several orders of magnitude above design targets.”); Ex. 43 at 60 (“Numerous researchers, including Waugh and Richardson (1997), 28 Considering all these problems with the 1996 cover analysis, there’s no disputing that the analysis is out of date and should be completely overhauled if the conventional cover is ever to be built. Sticking to the current Stipulation and Consent Agreement, which if all else fails, obliges Energy Fuels to build the conventional cover without updating the 1996 design would be reckless. 4. Recommendations Years of delay in preparing a high-quality reclamation plan has caused a serious and complex problem. All the evidence suggests that the 1996 cover design is second rate, at best, and a reclamation travesty, at worst. Yet there are serious questions about whether the ET cover will also come up short. So, the solution the Division and Energy Fuels have reached is to delay reclamation of Cell 2 another six or seven years, build test plots, collect more data, and then either finish the cover or go back to the drawing board. All the while, for Energy Fuels to mill uranium, the law requires the company to have an officially approved, deadline-driven reclamation plan that says how the company will clean up its radioactive wastes.199 Since the cover design in Plan Revision 5.1 is in limbo, to nominally fulfill that requirement, the Division has signed a Consent Agreement with an ill-considered automatic-backup plan: to build the 1996 conventional cover without ever updating that design, analyzing it, or testing it out. If that plan isn’t a pretense meant to satisfy the law’s requirements on paper but never to be carried out, then it’s a reckless commitment that could have disastrous consequences. What should be done? That’s a hard question. A first-rate reclamation plan should have been worked out long ago and then routinely updated as technology improves. But the Division should at least do the following:  Revise the Consent Agreement to eliminate the provision (§ D.7.b.iii) that automatically requires Energy Fuels to build the 1996 conventional cover if an impasse is reached on alternative ET cover designs. Requiring Energy Fuels to build the 1996 conventional cover without updating that design could be a calamity. We imagine the Division has no desire to agree to that outcome. Yet, if the ET cover fails to meet the Consent Agreement’s performance criteria, and Energy Fuels refuses to negotiate changes to the plan that are acceptable to the Division, the company can force the conventional cover to be built. The Division should prevent that outcome now by renegotiating the Consent Agreement to prevent automatic reversion to the conventional cover design.  If the Division believes that a modified conventional cover design may outperform an evapotranspirative cover at the mill—a prospect that appears dubious without major changes to the 1996 design—then it should require Energy Fuels to immediately update the 1996 design. If there’s any possibility that a conventional design will ultimately be used at the mill, then the Division should insist on working that design out now and avoiding future delay if the ET cover is a failure. If a conventional cover won’t be built, it should be clearly ruled out now. Smith (1999), Waugh (2004), and Breshears and others (2005) describe the negative effects on low permeability barrier layers due to root penetration or macropores left by decomposing plant roots.”). 199 See 10 C.F.R. § 40.31(h) (requiring uranium-milling applications to include written specifications for the disposition of byproduct material to achieve the requirements and objectives of 10 C.F.R. Part 40, Appendix A); Utah Admin. Code R313-24-4 (incorporating 10 C.F.R. 40.31(h) by reference). 29  Reconsider whether the performance test for the ET cover is worthwhile in light of the risks that more delay may exacerbate groundwater contamination or forestall reclamation altogether. And consider instead requiring Energy Fuels to promptly update the ET cover to meet state-of-the-art standards and to proceed with constructing it on Cell 2 without completing the 7-year performance test. E. The final radon barrier design is inadequate. Energy Fuels likely could improve the performance or reliability of the proposed ET cover in several ways. A capillary break could be installed for enhanced water storage. A geomembrane could be placed beneath the water-balance section of the cover to prevent infiltration into the radon barrier. The top slope of the impoundments could be increased to improve runoff and minimize ponding. A layer of cobbles or similar materials could be included to deter animal burrowing. Energy Fuels considered making each of these changes to the ET cover design but ultimately chose not to. The company’s basic rationale was that these modifications to the ET cover probably wouldn’t provide material performance gains. But even if that were true, that’s not a persuasive reason for leaving these design elements out. The company’s groundwater discharge permit requires Energy Fuels to minimize infiltration of precipitation through the cover, a mandate that ultimately helps protect groundwater by minimizing contaminated seepage through the tailings. A capillary break, geomembrane, and steeper top slope could all help minimize infiltration through the cover, and those design elements should be used unless further analysis shows that they will detract from the cover’s performance. A similar rationale applies to preventing animals from burrowing into the ET cover. The cover must be designed under Appendix A to control radiological hazards for 1,000 years and to minimize disturbance of tailings by natural forces without ongoing maintenance.200 Thus, even if a burrowing- prevention layer may be only a small, extra deterrent to burrowing, it should be included to minimize tailings disturbance and future maintenance. 1. Enhancements that will minimize infiltration into the tailings should be made. Energy Fuels’ groundwater discharge permit requires Energy Fuels to reclaim the impoundments in a way that “minimize[s] infiltration of precipitation or other surface water into the tailings.”201 This permit requirement makes good sense if compliance with Appendix A’s groundwater-protection standards is to be achieved. Those standards mandate that, among other requirements, licensees must “control, minimize, or eliminate post-closure escape of nonradiological hazardous constituents, leachate, contaminated rainwater, or waste decomposition products to the ground or surface waters or to the atmosphere” to the extent “necessary to prevent threats to human health and the environment.”202 Minimizing infiltration through an impoundment’s cover minimizes the amount of water that could be contaminated by the tailings and escape into groundwater.203 200 10 C.F.R. Part 40, App. A, Criterion 1, Criterion 6(1), Criterion 6(7). 201 Exs. 39 and 40 at Part I.D.8(a); Utah Admin. Code R317-6-6.4 (allowing for discharge permits to issue if the applicant is “using best available technology to minimize the discharge of any pollutant”); see also Ex. 1 at 3-5 (“The key state and federal performance criteria for tailings cover design and reclamation include … [m]inimize infiltration into the reclaimed tailings cells.”). 202 10 C.F.R. Part 40, App. A., Criterion 6(7). 203 For this reason, EPA’s regulations for in-place closure of surface impoundments containing hazardous waste mandate that final covers “[p]rovide long-term minimization of the migration of liquids through the closed impoundment.” 40 C.F.R. § 264.228(a)(2)(iii). 30 a. A capillary break should be added unless it would degrade the cover’s performance. Capillary breaks can improve the ability of evapotranspirative covers to store water until it can be removed by transpiration or evaporation. They’re created by placing a coarser-grained material beneath a finer-grained, water-storage layer. 204 Differences in the hydraulic properties of the two layers cause water to be wicked into unsaturated areas in the finer-grained layer, allowing that layer to retain more water than it otherwise would.205 In 2010, to develop revisions to its reclamation plan, the company modelled infiltration rates for four cover types—three evapotranspirative designs and the 1996 conventional cover design.206 The evapotranspirative designs that were modelled included a monolithic design (much like the one proposed in Reclamation Plan Revision 5.1) and a comparable design that added a capillary break between the water-storage and radon-barrier layers.207 The model predicted that the cover with a capillary break would achieve the greatest reductions in water infiltration and would allow four times less water to percolate through the cover than the monolithic design.208 Nonetheless, Energy Fuels argued that the monolithic design was “preferred” because the capillary barrier might not work as well as the model predicted and would make building the cover more difficult.209 The Division disputed this conclusion, arguing that capillary breaks “can substantially reduce cover infiltration rates.”210 The Division also took issue with comparisons Energy Fuels had drawn with the final radon barrier built at the Monticello tailings repository, pointing to the absence of a capillary break in the proposed White Mesa cover as one of several differences in the White Mesa and Monticello cover designs that undermined comparisons between the two. The Division instructed the company to either include a capillary break in the cover design or “provide detailed analyses and additional infiltration sensitivity analyses demonstrating that a capillary break is not warranted.”211 The only response Energy Fuels made, from what we can discern, was to defend the comparisons the company had drawn to the Monticello cover. It argued that the sand layer in the Monticello cover that was supposed to function as a capillary break isn’t actually working that way, and as a result, the cover is functioning like a monolithic design.212 But even if that’s true, it doesn’t justify omitting a capillary break from the White Mesa cover design. Just because the capillary break hasn’t worked at Monticello doesn’t mean that the same would be true at White Mesa. If, for example, the capillary break at Monticello was compromised by infiltration of fine-grained materials during construction, as Energy Fuels postulates,213 construction improvements might be made at White Mesa to prevent that outcome. More important, the company has made no argument that including the capillary break in the Monticello cover has been detrimental to that cover’s performance, and we can find nothing to suggest that it would be detrimental at White Mesa. Thus, there 204 Ex. 44 at 5. 205 Ex. 44 at 5. 206 Ex. 22 at E-1. 207 See Ex. 22 at E-3 to E-4. 208 See Ex. 22at E-13 (predicting a water flux of 0.11 mm/year for the cover with a capillary break and 0.45 mm/year for the monolithic design). 209 See Ex. 22 at E-9. 210 Ex. 45 at 94. 211 Ex. 45 at 13. 212 See 38 at 49. 213 See Ex. 38 at 50. 31 appears to be no downside to including a capillary break in the ET cover at White Mesa. And since a capillary break could help minimize infiltration into the tailings, it should be included to comply with the groundwater discharge permit and to minimize leachate that could contaminate groundwater. b. A composite barrier installed beneath the water-balance cover would add redundancy and likely reduce infiltration. Placing a compacted-clay or geosynthetic-clay liner and geomembrane beneath the proposed water-balance cover likely would provide additional protection against infiltration if the water-balance cover doesn’t work as well as expected. The Monticello tailings repository uses this design.214 And composite barriers standing alone can perform well at preventing infiltration.215 Thus, it stands to reason that combining a composite barrier with a water-balance cover would provide for redundancy and enhance the odds that the cover at White Mesa will maintain low infiltration rates over its centuries-long performance period. In our review of the available White Mesa reclamation documents, we have seen nothing to suggest that Energy Fuels considered using a compound design like this. The only discussion of a geomembrane that we have unearthed was about whether the proposed monolithic cover at White Mesa could properly be compared with the composite design built at Monticello. Energy Fuels argued that the performance of the Monticello cover provides a useful analogue because the measured infiltration rates at Monticello are for only the water-balance cover above the geomembrane.216 That may be true, but it doesn’t justify omitting a geomembrane-topped composite barrier from the White Mesa cover design. Again, the Discharge Permit requires Energy Fuels to minimize infiltration through the cover and into the tailings. A redundant composite barrier, like that built at Monticello, would likely help meet that standard, even if the proposed monolithic ET cover performs relatively well. It is hardly far-fetched that the monolithic cover may deteriorate after centuries of service, and an underlying composite barrier would help guard against that risk. Regardless, absent compelling evidence that including a composite barrier in the cover design would diminish the cover’s effectiveness it ought to be included. c. Energy Fuels hasn’t justified its refusal to increase the cover’s top-slope inclination. Energy Fuels has designed the ET Cover to have a top-slope angle ranging from 0.5 to 1.0%.217 This is unusually flat.218 During its review of Energy Fuels’ revisions to its reclamation plan, the Division argued that the company should increase the top-slope inclination to a range of 2–3 percent or provide a detailed analysis of why doing so wouldn’t improve the cover’s performance.219 The company responded by asserting that most low spots would form early in the cover’s service life, when settlement ranging from 0.88–1.56' would occur. The company promised to fill in these low 214 See Ex. 46 at 3-28 to 3-29. 215 See Ex. 46 at Table 1.3 (generally showing lower infiltration rates for membrane-composite test covers in EPA’s alternative cover assessment program than evapotranspirative counterparts). 216 See Ex. 38 at 49. 217 See Ex. 16 at 15. 218 See Ex. 47 at 2-2 (“Most landfill cover system top decks are designed to have a minimum inclination of 2 to 5%, after accounting for settlement, to promote runoff of surface water. Slopes flatter than 2% may allow water to pond on the surface, if localized settlements occur, and are usually avoided.”). 219 See Ex. 45 at 14, 30–34. 32 spots.220 After this “active maintenance” period, further settlement of the cover would range from 0.29– 0.71', according to the company’s analysis.221 Having examined an area that Energy Fuels called the “critical case,” the company asserted that “differential settlement is sufficiently low such that ponding and slope reversal is not expected to occur.”222 Yet the company never explains how much settlement would be expected to lead to ponding or slope reversal. In contrast, Energy Fuels hasn’t offered any explanation for not simply increasing the top-slope inclination. The company has not argued that increasing the top slope would diminish the cover’s ability to shed water or cause other performance problems. Accordingly, the Division ought to demand a better explanation or insist that the top-slope inclination be increased. 2. A standalone barrier to deter burrowing should be added to the cover. Unlike the Monticello cover, the ET Cover that Energy Fuels is proposing for White Mesa doesn’t include a layer specifically designed to discourage animals from burrowing into the cover. Burrowing animals can cause all sorts damage to engineered covers. They can create pathways for water infiltration, roots, and other animals.223 They can dig up waste and spread it into the environment.224 They can increase erosion and soil-porosity.225 Several animals that may be present around the mill have burrowing depths that could penetrate into the radon barrier that begins 4' beneath the surface, such as badger, Gunnison prairie dog, red fox, northern pocket gopher, and the pocket mouse.226 Badgers have burrowing depths up to 7.5', according to the company’s data. That’s deep enough to go through the primary radon barrier.227 The company has asserted that burrowing to this depth would be restricted by the highly compacted material in the primary radon barrier.228 But it cites nothing to back up the claim that burrowing animals won’t dig into soils as dense as the primary radon barrier. Energy Fuels otherwise asserts that the cover is thick enough to deter burrowing. But even if it’s true that the cover is too thick to dig through, that says nothing about damage that can caused by many burrows going partway into the cover. And most importantly, it isn’t a justification for leaving out a biointrusion layer, like the layer of cobbles used in the Monticello cover. Like many other elements of Energy Fuels’ analysis, the company’s arguments make no critique of how well a cobble layer would work as compared to its monolithic design. Appendix A requires Energy Fuels to build the ET cover to control radiological hazards for 1,000 years and to minimize disturbance of tailings by natural forces without ongoing maintenance.229 Even if a biointrusion layer is only a slight additional deterrent to burrowing, it should be included to meet that standard unless the company has demonstrated that it would degrade the cover’s performance. The Division should demand that analysis or insist that a biobarrier be added to the cover. 220 See Ex. 38 at 5, F-6. 221 See Ex. 38 at F-7. 222 See Ex. 38 at F-7. 223 See Ex. 47 at 2-40. 224 Id. 225 Id. 226 See Ex. 16 at D-25. 227 See Ex. 16 at 2 (explaining that the bottom of the primary radon barrier would range from 7–8' below the surface). 228 Ex. 16 at D-25. 229 10 C.F.R. Part 40, App. A, Criterion 1, Criterion 6(1), Criterion 6(7). 33 F. The proposed long-term monitoring for the final radon barrier is inadequate. Reclamation Plan Revision 5.1 calls for the final ET cover to be monitored in three ways: (1) for settlement; (2) to track revegetation rates; and (3) to evaluate erosional stability.230 No monitoring of the cover-percolation rate is proposed, nor does the company plan to monitor changes in the cover properties. Though groundwater monitoring will presumably continue in some form to comply with the State’s groundwater protection rules, it is unclear what monitoring will occur because neither the company’s groundwater discharge permit nor its reclamation plan addresses that question.231 This defies common sense. Without monitoring percolation rates, there is no way to determine whether the cover is living up to its key performance benchmark. And without data about other changes in cover properties, it will be harder to diagnose problems. The expert in solid-waste containment that Energy Fuels has hired, Dr. Craig Benson, concurs. Groundwater wells aren’t “always the best way to determine whether a system is functioning as designed,” Dr. Benson has pointed out, because system failures are “detected too late and without enough information to fix the problem.”232 Added, to that engineered covers change over time, and the only way to make sure they’re working as intended is to monitor them.233 He therefore recommends adding “functional monitoring” to check whether the waste- containment system is working as designed.234 A key parameter to monitor is percolation through the bottom of the cover, preferably using one or more large, pan lysimeters.235 And guidance developed by Dr. Benson and others recommends monitoring other cover properties, such as water content and temperature, to evaluate changes over time and provide data should defects arise.236 The Division accordingly should require Energy Fuels to develop and carry out a functional monitoring plan to measure percolation rates through the cover and monitor other cover properties that would help diagnose infiltration problems. And so that the company has a complete strategy for evaluating whether the final cover is working, the Division should also require Energy Fuels to develop a post-closure groundwater monitoring program, understanding that it may be revised in the future to account for changes in groundwater contamination at the mill. In short, the Division should insist that Energy Fuels develop a complete program for evaluating the final cover’s performance and fixing defects. G. The liner design for the Cell 1 disposal area is inadequate. Under Reclamation Plan Revision 5.1, Energy Fuels is planning to dig up Cell 1, its liner, and contaminated soil beneath the cell and place all that material in another cell.237 After that, the plan gives Energy Fuels the option to use part of the pit left behind as a cap-in-place disposal area for other 230 Ex. 16 at 24–25. 231 The groundwater discharge permit requires monitoring through the term of the permit “or as stated in an approved closure plan.” Exs. 39 and 40 (Part I.E). Yet the permit will expire 5 years after its issued, see Utah Admin. Code R317-6-6.6, and the proposed closure plans in Revision 5.1 are entirely silent on the subject of post-closure groundwater monitoring, see Exs. 1, 16, and 48 at 4 (asserting that “[e]xisting environmental monitoring programs,” like groundwater monitoring, will continue during reclamation and decommissioning but failing to address post-closure monitoring). So, although Energy Fuels will remain subject to the State groundwater protection rules after mill closure and should be required to monitor groundwater, it is unclear what monitoring will be performed. 232 Ex. 49 at 118. 233 See Ex. 50 at 10-4 to 10-5. 234 Ex. 49 at 118–119; Ex. 50 at 10-1, 10-4 to 10-5. 235 See Ex. 50 at 10-5 to 10-8. 236 See Ex. 10-12 to 10-14. 237 Ex. 1 at 3-5 to 3-6. 34 “contaminated materials and debris from the Mill site decommissioning and windblown cleanup.”238 If this happens, Energy Fuels plans to line this “Cell 1 Disposal Area” with a 1' clay liner, fill it with contaminated waste, and cap it with the ET cover.239 That plan flouts the law’s design requirements for burying uranium-milling waste. The UMTRCA standards set by EPA require all surface impoundments to be built according to EPA’s design standards for hazardous-waste impoundments,240 which appear at 40 C.F.R. § 264.221. Under those rules, all impoundments built after 1992 must have “two or more liners and a leachate collection and removal system between [those] liners.”241 Utah’s groundwater-protection rules similarly require waste-storage pits to be designed according to the “best available technology.”242 Under these standards, a clay liner doesn’t cut it. It’s not clear why Energy Fuels’ plan for the Cell 1 Disposal Area disregards these design requirements. The mill-decommissioning waste slated to go into the Cell 1 Disposal Area is undoubtedly “uranium byproduct material,” as EPA (and the Nuclear Regulatory Commission and State of Utah) define that term: “the tailings or wastes produced by the extraction or concentration of uranium from any ore processed primarily for its source material content.”243 After all, if that waste weren’t uranium byproduct material, Energy Fuels wouldn’t be licensed to possess or discard it.244 Perhaps Energy Fuels believes that EPA’s general UMTRCA standards don’t apply to the company’s operations at White Mesa when the Nuclear Regulatory Commission’s rules don’t conform precisely to EPA’s standards, which is the case for the impoundment-liner standard. The Nuclear Regulatory Commission’s liner requirements in Appendix A duplicate EPA’s design standards for hazardous-waste impoundments built before 1992 but don’t regurgitate EPA’s standards for impoundments built after 1992.245 Criterion 5A in Appendix A says that impoundments “must have a liner that is designed, constructed, and installed to prevent any migration of wastes out of the impoundment to the adjacent subsurface soil, groundwater, or surface water at any time during the active life (including the closure period) of the impoundment.”246 Even under that standard, a geomembrane rather than a clay liner is almost always required.247 238 Ex. 1 at 3-5. 239 Ex. 1 at 3-3. 240 40 C.F.R. § 192.32(a)(1). 241 40 C.F.R. § 264.221(c). 242 Utah Admin. Code R317-6-6.1(A), R317-6-6.4(A)(3). 243 40 C.F.R. § 192.31(b). See also 42 U.S.C. § 2014(e)(2); 10 C.F.R. § 40.4; Utah Code Ann. § 19-3-102(3); Utah Admin. Code R313-12-3. 244 Utah Admin. Code R313-19-2(1). 245 10 C.F.R. Part 40, App. A, Criterion 5A. 246 10 C.F.R. Part 40, App. A, Criterion 5A. 247 See Environmental Standards for Uranium and Thorium Mill Tailings at Licensed Commercial Processing Sites, 48 Fed. Reg. 45,926 (Oct. 7, 1983) (“The primary standard, 40 C.F.R. § 264.221, can usually be satisfied only be using liner materials (such as plastics) that can retain all wastes. Exemptions permitting use of other liner materials (such as clay) that may release water or small quantities of other substances or, in some cases, permitting no liner may be granted only if migration of hazardous constituents into the ground water or surface water would be prevented indefinitely.”); Uranium Mill Tailings Regulations; Ground-Water Protection and Other issues, 52 Fed. Reg. 43,553, 43,557–558 (Nov. 13, 1987) (when adopting Criterion 5A in Appendix A, deferring to EPA’s decision to generally prohibit clay liners). 35 But even if Appendix A can be read to have a more lenient liner standard than EPA’s standard for hazardous-waste impoundments, EPA’s standard still applies. The language in EPA’s general UMTRCA standards applies directly to uranium-milling operations. As those standards say at the outset: This subpart applies to the management of uranium byproduct materials under section 84 of the Atomic Energy Act of 1954 (henceforth designated “the Act”), as amended, during and following processing of uranium ores, and to restoration of disposal sites following any use of such sites under section 83(b)(1)(B) of the Act.248 There is no doubt that Energy Fuels is managing uranium byproduct materials at the mill. And the design standard in EPA’s rule is phrased to apply directly to uranium-mill operators. It says that “surface impoundments subject to this subpart must be designed, constructed, and installed in such a manner as to conform to the requirements of § 264.221 of this chapter….”249 That expresses a command that Energy Fuels must comply with, regardless of whether Appendix A has the same command. Even assuming (for the sake of argument only) that EPA’s general UMTRCA standards don’t apply to Energy Fuels’ when the Nuclear Regulatory Commission’s rules don’t conform to EPA’s standards, the company is still required to comply with EPA’s standards for two reasons. First, Utah state law requires all waste pits that may discharge pollutants to be built using “best available technology,” and that technology is to use double-liners with an interstitial leak-detection system.250 That is at least one reason why Cells 4A and 4B at the mill were built to that standard.251 And there’s no reason the “best available technology” for discarding uranium byproduct material in the Cell 1 Disposal Area should be any different. Second, EPA’s radon-emission standards in Subpart W require surface impoundments used for discarding uranium byproduct material to comply with the agency’s design standards for hazardous-waste impoundments.252 That rule prohibits owners and operators of uranium mills from building a new “conventional impoundment” unless that impoundment is designed and built to “comply with the requirements of 40 CFR 192.32(a)(1).”253 And, again, 40 C.F.R. § 192.32(a)(1) explicitly requires impoundments used for discarding uranium byproduct material to be built according to EPA’s standards for hazardous-waste impoundments, which demand double liners and a leak-detection system for impoundments built after 1992.254 The Cell 1 disposal area meets the definition of a “conventional impoundment” under 40 C.F.R. § 61.251 because it will be a “permanent structure located at any uranium recovery facility which contains mostly solid uranium byproduct material or tailings from the extraction 248 40 C.F.R. § 192.30. 249 40 C.F.R. § 192.32(a)(1). 250 Utah Admin. Code R317-6-6.1(A), R317-6-6.4(A)(3). 251 See, e.g., Ex. 39 at 11–12 (Parts I.D.4 to I.D.6, I.D.12). 252 40 C.F.R. § 61.252. 253 40 C.F.R. § 61.252(a)(2)(i). 254 40 C.F.R. § 192.32(a)(1) (“Surface impoundments (except for an existing portion) subject to this subpart must be designed, constructed, and installed in such manner as to conform to the requirements of § 264.221 of this chapter….”); 40 C.F.R. § 264.221 (“The owner or operator of each new surface impoundment unit on which construction commences after January 29, 1992 … and each replacement of an existing surface impoundment unit that is to commence reuse after July 29, 1992 must install two or more liners and a leachate collection and removal system between such liners.”). 36 of uranium from uranium ore.255” It therefore must be designed to comply with EPA’s surface- impoundment design standards under UMTRCA that are codified at 40 C.F.R. § 192.32(a)(1).256 True enough, Subpart W states at the outset that it “does not apply to the disposal of tailings,”257 and perhaps Energy Fuels is silently relying on that statement to sidestep the liner requirements for the Cell 1 Disposal Area. But the Cell 1 Disposal Area will be placed in “operation” within the meaning of Subpart W, and that makes the area subject to Subpart W’s impoundment-design requirements, even if the rest of Subpart W’s requirements cease to apply immediately. The term “operation” means “that an impoundment is being used for the continued placement of uranium byproduct material or tailings or is in standby status for such placement. An impoundment is in operation from the day that uranium byproduct material or tailings are first placed in the impoundment until the day that final closure begins.”258 So, as soon as uranium byproduct material is placed in the Cell 1 Disposal Area, it will go into “operation,” even if “final closure” begins the same day. That is enough to make Subpart W’s design standard for conventional impoundments applicable. IV. The surety is inadequate. Appendix A requires Energy Fuels to get a surety that secures enough money for the Division to clean up the mill if the company doesn’t and that fully funds long-term surveillance and maintenance of the reclaimed mill site.259 The surety amount is to be based on the estimated cost for a third party to: (1) clean up the milling site to levels that allow unrestricted use of that area; and (2) reclaim waste areas according to Appendix A’s technical specifications.260 These cost estimates must also include “an adequate contingency factor.”261 Energy Fuels forecasts that it can complete every reclamation task and clean up groundwater contamination at the mill at a cost of about $14.5 million.262 Various indirect costs add another $2.8 million to the total reclamation cost.263 The company’s estimates also include about $875,000 to fund long- term surveillance and maintenance.264 Last, a contingency amount of $3.3 million is added to cover unforeseen costs.265 The company’s estimate of the total reclamation cost is about $21.5 million. These estimates are deficient, and as a result, the company’s surety is inadequate. The biggest problem is that the contingency factor is far too low, resulting in just a few million dollars to pay for every possible unforeseen cost that may arise. There are other problems too. Energy Fuels has improperly based its reclamation estimates on the cost of building only the 1996 conventional cover, rather than also forecasting the cost of the ET cover and securing a surety for the more expensive reclamation plan. And the long-term care fund is likely to be inadequately capitalized if the surety is exercised. 255 40 C.F.R. § 61.251(h). 256 See 40 C.F.R. § 61.252(a)(1). 257 40 C.F.R. § 61.250. 258 40 C.F.R. § 51.251(e). 259 10 C.F.R. Part 40, App. A, Criterion 9 and 10. 260 10 C.F.R. Part 40, App. A, Criterion 9(a). 261 Id. 262 Ex. 19 at 3, “Cost Summary” (estimating direct costs of $14,476,933). 263 Ex. 19 at 3, “Cost Summary” (estimating indirect costs of $2,786,357 for a profit allowance, licensing and bonding, contract administration, engineering design review, contractors’ equipment floater, and insurance). 264 Ex. 19 at 3, “Cost Summary” (including $876,425 for the long-term care fund). 265 Ex. 19 at 3, “Cost Summary” (including a contingency of $3,325,170). 37 The Division should fix these shortcomings. In particular, we urge the Division: (1) to independently and thoroughly evaluate the cost of closing uranium mills comparable to White Mesa and impose an adjusted contingency factor that accounts for the possibility that closure costs will far exceed Energy Fuels’ estimates; (2) to require Energy Fuels to forecast the cost of building the ET cover, in addition to the 1996 conventional cover, and base its surety on the more expensive plan; and (3) to increase the amount set aside to fund long-term care. A. Energy Fuels’ contingency is too low. Energy Fuels’ reclamation-cost estimates include a contingency that is purportedly calculated at a rate of 25% of some other figure in the estimates, presumably the forecasted direct reclamation-costs. 266 The contingency that Energy Fuels includes is about $3.3 million.267 That amount is far too low. From what we can discern, cleaning up other uranium mills in the United States has cost far more on average than $21.5 million, the amount Energy Fuels would secure with a surety bond for reclaiming the mill. The expense of completing the Department of Energy’s surface-decommissioning program under Title I of UMTRCA provides a rough starting point for measuring the potential inadequacy of Energy Fuels’ cost estimates, and in particular, the contingency those estimates include. In 1982, the Department forecasted that the surface cleanup of the 24 sites included in the Title I program would cost about $1.7 billion.268 By 1995, the Department’s forecast for total cleanup costs had grown 37%, to $2.3 billion, without accounting for cleaning up groundwater contamination.269 All told, the average surface-reclamation cost for cleaning up and burying the 24 Title I sites in 19 repositories was about $60–90 million, depending on which source is consulted.270 Put differently, using the low end of this range, it cost $32 on average to clean up each cubic yard of waste remediated in the Title I program.271 At that rate, it would cost $250 million to clean up the White Mesa mill if Cells 2, 3, 4A, and 4B were filled to capacity.272 Or put yet another way, each acre of contaminated land in the Title I program cost about $380,000 to clean up, again using the low-end cleanup estimates.273 So, if remediating the roughly 345 266 The company’s math doesn’t look right. Twenty-five percent of the direct reclamation cost estimate of $14.5 million is roughly $3.6 million, not $3.3 million. If this is an error, it should be fixed. If it’s not an error, it should be explained. 267 Ex. 19 at 3, “Cost Summary.” 268 Ex. 51 at 7. 269 Ex. 51 at 27. 270 In 1995, the U.S. General Accounting Office projected total costs of the Title I cleanup program to be $2.3 billion, or $96.4 million per site on average. See Ex. 51 at 26. In 1999, the U.S. Energy Information Administration reported total costs for the Title I cleanup program of $1.45 billion, or an average of $61.5 million per site. See Ex. 52. The source of the discrepancy in these figures is unclear. 271 Ex. 52. We’ve included the two sites in North Dakota in these calculations to avoid modifying the available data, even though they ultimately weren’t remediated under the Title I program. 272 See Ex. 4 at 6 (Table 2) (estimating capacity of Cell 2 to be 2,015,000 cubic yards and Cell 3 to be 2,345,000); Ex. 39 at 12, 17 (stating that capacity of Cell 4A is 1,600,000 cubic yards and capacity of Cell 4B is 1,900,000 cubic yards). Remediating 7,860,000 cubic yards of material at $32. per cubic yard would cost $251.5 million. 273 See Ex. 51 at 26 (estimating that 3,894 acres of contaminated land were cleaned up as part of the Title I program). At a total cleanup cost of $1.48 billion, see Ex. 52 (1999 estimates from U.S. Energy Information Administration), the per-acre cost to remediate 3,894 acres would be about $380,000. 38 acres274 occupied by the White Mesa mill site and its tailings cells is similarly expensive, the total cost would be around $130 million. It is doubtless true that the expected cleanup for the White Mesa mill is distinguishable in some important respects from the cleanup of Title I sites. Several Title I sites involved costly cleanup efforts for neighboring properties that were contaminated by uranium-milling wastes.275 We hope that won’t be necessary at White Mesa. At about half the sites, tailings were moved at significant expense to a new disposal site,276 which Energy Fuels doesn’t plan to do at the White Mesa mill. Some of the disposal cells that the Department of Energy built were excavated from scratch,277 whereas that work has already been done at White Mesa if the cells are capped in place as planned. And the Department blamed much of its Title I-program cost overrun on updates to EPA’s groundwater protection rules in the 1990s, which required some disposal repositories to be redesigned and some wastes to be moved to new locations.278 But these distinctions don’t make the expense of cleaning up Title I sites irrelevant. The Department of Energy has estimated that only about 22% of the Title I cleanup cost was for remediating neighboring properties.279 Reducing the average site cleanup cost by that rate still yields a cleanup cost of about $45–70 million per site. Similarly, when on-site disposal was accomplished at Title I locations, cleanup costs still averaged around $37–$56 million, again depending on which cost data is used.280 At some of those sites, like Mexican Hat, Tuba City, and Shiprock, the Department consolidated wastes in pre-existing tailings disposal areas, suggesting that remaining closure steps would resemble those at the White Mesa mill.281 And regulatory changes that increase costs, like those made to EPA’s groundwater rules in the 1990s, could always happen again in the future, increasing the cost of the White Mesa mill cleanup. Added to all that, none of the Title I cleanup figures cited above include the cost to remediate groundwater, which is contaminated at nearly every Title I site.282 Though the Department of Energy is actively remediating groundwater at only a few sites, the costs to do that can be staggering. In the mid- 1990s, the Department of Energy estimated that actively restoring Title I sites to background levels would range from $86–162 million per site.283 And natural attenuation, the chosen strategy at most Title I sites, 274 Ex. 19 at “Mill Decommissioning” (mill yard and ore pad area of roughly 60 acres); “Volume Calculation – Cell 1” (Cell 1 area of 60 acres); “Volume Calculation – Cell 2” (69 acres); “Volume Calculation – Cell 3” (74 acres); “Volume Calculation – Cell 4A” (41 acres); “Volume Calculation – Cell 4B” (41 acres). 275 See, e.g., Ex. 51 (showing that over 4,000 so-called “vicinity properties” were cleaned up in Grand Junction, contributing to total projected cleanup costs of $746 million). 276 See Ex. 51 at Table 2.1 (showing that contaminated wastes were moved at about half the sites). 277 See Ex. 53 (describing cells built at Canonsburg, Durango, Grand Junction, Gunnison, Lake View, Naturita and other sites). 278 See Ex. 51 at 27–28. 279 See Ex. 51 at 24. 280 Compare Ex. 51 at 27 with Ex. 52 (averaging the total disposal cost for Ambrosia Lake, Canonsburg, Falls City, Green River, Lowman, Maybell, Mexican Hat, Shiprock, Spook, and Tuba City). 281 See Ex. 53 (describing caps built over contaminated materials at Mexican Hat, Burrell, Falls City, Maybell, Shiprock, Tuba City and possibly other sites). 282 Ex. 53 (asserting that groundwater is not contaminated at only four sites, Mexican Hat, Burrell, Ambrosia Lake, and Loman). 283 Ex. 54 at 4-15. We’ve been unable to find updated, all-in cost estimates for sites with active groundwater restoration, like Tuba City and Monument Valley. A recent analysis of alternatives for replacing the aging and expensive groundwater treatment plant at Tuba City, estimated future life-cycle costs of $3.8–$12.5 million for various options, in net present value, assuming a 10-year operating timeframe. See Ex. 55 at 65. 39 isn’t cheap, ranging in cost from $14–24 million according to the Department’s estimates.284 Those sites, of course, remain a liability that could eventually demand an expensive groundwater-restoration effort. The critical lesson from the Title I decommissioning program is that cleaning up uranium-milling wastes has often cost two-to-tenfold more than Energy Fuels is setting aside through a surety bond. Only the two smallest, least-contaminated sites were remediated for less than $20 million, about half the sites cost more than $50 million, and the most expensive cleanup exceeded $500 million (all without accounting for inflation since the 1990s, the cost of groundwater restoration, or the cost of repairing or replacing reclamation solutions that haven’t worked).285 That history shows that costs to clean up the White Mesa mill may far exceed Energy Fuels’ estimates, particularly if groundwater contamination is more expensive to remediate than the company is expecting. The contingency in the company’s reclamation-cost estimates should guard against that risk. But at $3.3 million, the contingency comes nowhere close to the amount that taxpayers have incurred elsewhere to clean up uranium milling-wastes. The cost of cleaning up uranium-recovery facilities that were still operating when UMTRCA was passed in the late 1970s—often called “Title II” sites because Title II of UMTRCA specifies how they must be managed—could provide another point of comparison. But comprehensive information about those costs doesn’t appear to exist. The only program-wide estimate for Title II sites that we can find is a 22-year old report prepared by the Department of Energy.286 That report includes forecasted costs for cleaning up 19 conventional uranium-recovery facilities under Title II.287 In general, much like Energy Fuels’ estimate for cleaning up the White Mesa mill, the cost estimates are far lower than those incurred for the Title I program, averaging about $14 million.288 One reason for that discrepancy may be that the cost estimates came from mill owners and the regulators overseeing them, both of whom had an incentive to forecast modest reclamation costs that don’t call into question whether making yellowcake is worth the cost of cleaning up the resulting mess.289 Energy Fuels, for example, reported that there would be no groundwater restoration costs at the White Mesa mill,290 and that prediction has proved wrong to the tune of at least $1.2 million, and likely much more, if we understand the company’s current groundwater-remediation estimates correctly.291 Regardless of whether the 1995 estimates for Title II sites were biased by their source, it’s plain that many of them have proved to be far too low. When EPA declared the Uravan mill cleanup to be complete in 2008, for example, the agency reported a total cleanup cost of more than $120 million.292 The estimate Those figures, of course, don’t include the costs incurred to treat groundwater to date or the expense of engineering and design, pilot studies, regulatory oversight, monitoring, and the many other expenses of restoring groundwater. 284 Ex. 54 at 4-21. 285 Ex. 52 (the least expensive sites, Spook and Lowman, covered about 20–30 acres and involved remediating less than 500,000 cubic yards of contaminated material combined; ten sites cost more than $50 million; and Grand Junction exceeded $500 million). 286 See Ex. 56. 287 Ex. 56 at Table 3. 288 Ex. 56 at Table 3. 289 Ex. 56 at Table 3 (reporting the source of cost estimates as data from the Nuclear Regulatory Commission, state agencies, and licensees). 290 Ex. 56 at Table 3. 291 Ex. 19 at “Miscellaneous Items.” 292 Ex. 57. 40 given in 1995 was $38 million.293 The forecasted cost for the Cañon City mill cleanup in 1995 was $12.8 million.294 Yet state regulators in Colorado estimated in 2010 that the cost would run $43 million if the site is closed in place.295 That figure would balloon to $895 million, according to the company that owns the mill, if the tailings are removed from the banks of the Arkansas River where they now sit.296 The EPA’s estimated cost to clean up the Church Rock mill site is $41.5 million,297 another sizable increase over the mill owner’s or regulator’s estimate of $8.6 million in 1995.298 Cleaning up the Homestake mill, which had a projected cost of $23 million in the Department’s 1995 report,299 had cost $50 million by August 2015 and was still ongoing.300 At the Split Rock mill, decommissioning costs have been kept down by leaving groundwater contamination in place rather than cleaning it up, even though it will eventually pollute drinking-water wells on nearby ranches.301 After the company that owns the mill estimated that cleaning up groundwater would cost up to $117 million,302 the Nuclear Regulatory Commission gave the owner permission to leave the contamination in place and close all the domestic water wells in the area.303 We’ve been unable to unearth how much money the owner of the mill has spent on the cleanup so far, but it reportedly spent $18 million by 2006 just to operate its groundwater-treatment system before shutting it down.304 In 1995, the estimate for groundwater remediation was $3.6 million.305 Two other defunct uranium mills near White Mesa have been similarly costly to remediate outside of the initial UMTRCA program. Because the tailings from the former Atlas mill outside Moab were leaching contaminants directly into the Colorado River, the Department of Energy has built a new disposal cell in Crescent Junction, Utah and is hauling the Atlas tailings to that repository to the tune of $1 billion.306 And cleaning up the Monticello mill site had reportedly set the Department of Energy back $250 million by 2004.307 While we wouldn’t be surprised if there are examples of some Title II milling sites that were reclaimed for roughly the amount forecasted in 1995 or less, that doesn’t undermine the fact that the cost 293 Ex. 56 at Table 3. 294 Ex. 48 at Table 3. 295 Ex. 58 at “Financial Assurance Evaluation,” p. 2 (reporting an estimated total remediation cost of $43,754,099). 296 Ex. 59 at 9. 297 Ex. 60. This estimate may be for the surface-soil remediation only and not include the cost of remediating groundwater. 298 Ex. 48 at Table 3. 299 Ex. 48 at Table 3 (the Homestake mill appears under the label “Grants”). 300 Ex. 61 at 2. 301 Ex. 62 at 3 (explaining that groundwater contamination will pollute domestic wells within 100–200 years). 302 Ex. 62 at Attach. 2 p. 15 (describing costs of proposed drinking-well closure alternative and costs to perform three other cleanup alternatives); Attach. 2, p. 17 (describing plan to ban domestic drinking wells in a 3,600-acre area). 303 Ex. 63 at 2. 304 Ex. 64 at 4. 305 Ex. 48 at Table 3. 306 Ex. 65 at Slide 5. 307 Ex. 66 at 2 (“Memorandum for the Secretary”) (“Since these operations ceased, the Department’s Grand Junction Projects Office has expended about $250 million to remediate and stabilize the Monticello Mill Site.”). 41 to clean up Title II mills has in many cases far exceeded initial forecasts and far exceeded the amount of money Energy Fuels is setting aside for reclaiming the White Mesa mill. It is that possibility of substantial unforeseen costs that Energy Fuels’ contingency should cover, not the chance that few unforeseen costs occur. Energy Fuels calculated its contingency using a flat rate of 25% at the Division’s direction.308 The Division took that rate from decommissioning guidance published by the Nuclear Regulatory Commission, often called NUREG-1757 for short.309 Though that guidance doesn’t apply to uranium mills,310 similar rates appear in the Nuclear Regulatory Commission’s applicable technical guidance.311 Both these documents have a critical common feature: The rate they suggest is a minimum.312 The Division thus has discretion to demand a much higher contingency factor. And indeed, the Division is obligated by Appendix A to ensure that the contingency is “adequate.”313 Applying a contingency rate of 25 percent to Energy Fuels’ reclamation-cost estimates without any critical analysis is facile and risky given the long history of uranium-mill cleanups that far exceed the amount Energy Fuels plans to set aside. There is a present-day risk that it will cost far more than $21 million to clean up the mill, perhaps ten or twenty times more. If that happens, Energy Fuels might fund the cleanup as it’s required to do. Or, it might go bankrupt, like its namesake, Energy Fuels Nuclear, did in the 1990s. And if that happens, in all likelihood, taxpayers will eventually pay to clean up the White Mesa mill. The Division has an opportunity through the surety to make sure that Energy Fuels, not the public, bears this risk that Energy Fuels’ business creates. The Division should seize that opportunity and require a surety that will ensure that the mill gets cleaned up without calling on the public purse, whatever the cost. We accordingly urge the Division to revisit the reclamation cost estimates, thoroughly and independently analyze the estimates Energy Fuels has made and the probabilities that those estimates may prove inaccurate, and require a surety amount (including a contingency) that conservatively guards against the risk that reclamation costs greatly exceed the company’s forecasts. B. Appendix A requires Energy Fuels to forecast the cost of both cover designs and secure a bond for the more expensive one. The reclamation cost estimates in Revision 5.1 do not forecast how much it will cost to build the ET cover that Revision 5.1 proposes. Instead, the company has estimated the expense of building the 1996 308 Ex. 67 at 32. 309 Id. 310 Ex. 68 at 1-1 (“[This volume] applies to financial assurance requirements for licensees under 10 CFR Parts 30, 40, 70, and 72, with the exception of licensees (uranium recovery facilities) subject to Criteria 9 and 10 of Appendix A, “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,” to 10 CFR Part 40, “Domestic Licensing of Source Materials.””). 311 Ex. 68 at xi (Table 2, n.4) (explaining that “[g]uidance on financial assurance for uranium recovery facilities under 10 CFR Part 40 is provided in the Branch Technical Position (BTP), ‘Technical Position on Financial Assurances for Reclamation, Decommissioning, and Long-Term Surveillance and Control of Uranium Recovery Facilities,’ (issued October 1988)”). 312 Ex. 69 at 26 (requiring a minimum 15 percent engineering contingency and 10 percent contract- administration contingency); Ex. 68 at 4-11 (contingency factor must be “at least” 25 percent of all estimated costs); A-25 (explaining that a lower contingency may be allowed only under very narrow circumstances). 313 10 C.F.R. Part 40, App. A, Criterion 9(b)(1)(ii). 42 conventional cover. Only by examining each line item in the cover’s design does this become apparent. The reclamation tasks for covering Cell 3, for example, include (among other elements) building a one-foot thick clay layer, a two-foot random-fill layer, and a half-foot rock armor,314 which are elements of the 1996 conventional cover design, not the ET design. Though we’ve found no explicit disclosure by Energy Fuels that its surety is based on building the 1996 conventional cover, the text of Revision 5.1 does promise an update to the reclamation cost estimates “when this Plan is approved and the Cell 2 cover performance test section … is verified [under the] Stipulated Consent Agreement….”315 This ambiguous statement could be read in two ways. First, Energy Fuels might be promising to update its surety twice: once when Revision 5.1 is approved and again when the Cell 2 performance test section is verified under the Stipulated Consent Agreement. Or, the company might be promising to update the surety only after both Revision 5.1 has been approved and the test section has been verified. Either way, this delay in updating the surety flouts Appendix A. Under Criterion 9 of Appendix A, the surety amount “must be based on Commission-approved cost estimates in a Commission-approved plan, or a proposed revision to the plan submitted to the Commission for approval, if the proposed revision contains a higher cost estimate.” 316 That standard requires Energy Fuels: (1) to estimate costs both for the ET cover in its revised reclamation plan and for the 1996 conventional cover that the Division maintains is still an approved design,317 and (2) to maintain a surety for the more expensive plan. C. Energy Fuels’ surety doesn’t include enough money for the long-term care fund. Under UMTRCA, the White Mesa mill is ultimately to be turned over to the Department of Energy or the State of Utah, at its election, for long-term care.318 To fund the government’s resulting perpetual monitoring and maintenance obligations, Appendix A requires Energy Fuels, when its license is terminated, to pay at least $250,000 (in 1978 dollars) to the United States or the State of Utah “to cover the costs of long-term surveillance.”319 At a minimum, the long-term care fund must be capitalized with enough money to cover annual site-surveillance costs using the interest generated at a rate of one percent.320 The Division may also increase the funding requirement if it finds that long-term care of a particular site will cost significantly more than the annual-inspection costs contemplated by Appendix A.321 Experience with long-term care of sites already in government custody has suggested that the minimum funding required by Appendix A is not enough. For the six Title II sites already under long- term surveillance by the Department of Energy, there are serious inadequacies in the minimum long-term care charges assessed to licensees. These inadequacies stem from underestimated surveillance and maintenance costs,322 failure to incorporate pre-transfer costs,323 and unexpected technical challenges with sites that had groundwater and cover problems after reclamation was complete.324 314 Ex. 19 at “Volume Calculation – Cell 3.” 315 Ex. 1 at I-1. 316 10 C.F.R. Part 40, App. A, Criterion 9(a). 317 See Ex. 21 at 7. 318 42 U.S.C. § 2113(b). 319 10 C.F.R. Part 40, App. A, Criterion 10. 320 Id. 321 Id. 322 Ex. 51 at 42–43; Ex. 70 at 8. 323 Ex. 70 at 5. 324 Ex. 71 at 12–16. 43 The $250,000 minimum in Appendix A was set in 1980 before the government had any experience caring for remediated uranium mills.325 That figure assumed that the annual cost of surveillance would be about $5,300 per site in 1995 dollars.326 But by 1995, the Department of Energy estimated that the real cost of annual surveillance and maintenance at each Title II site would be $21,000 in 1995 dollars (or, about $34,000 today).327 This number includes $5,000 per year in site-maintenance funds, whereas the minimum charge included in Appendix A in 1980 assumed that ongoing maintenance would not be needed.328 The annual interest on the long-term funding guaranteed in Energy Fuels’ surety, about $875,000, would fall far short of these updated long-term maintenance estimates. At annually compounded interest rate of one percent, that fund amount would generate interest of $8,750 each year, assuming that the principal neither grows nor is spent. That would lead to a substantial shortfall if site maintenance costs were equivalent to an estimated $34,000 per year. And that may not scratch the surface. The Department of Energy estimated in 2001 that long-term stewardship costs (which include groundwater remediation) for the Monticello repository over the next decade would average about $386,000 per year and would rise to about $520,000 per year by the 2030s.329 Technical guidance for uranium-mill financial sureties published by the Nuclear Regulatory Commission in 1988 acknowledges that, in addition to inspections, long-term maintenance and groundwater monitoring, along with other measures, may be necessary at some sites.330 The guidance explains that these costs “should be added to the basic cost of annual inspection of the site by government authorities, as required under Criterion 10.”331 The Division should follow that guidance, complete a site- specific analysis of probable ongoing long-term costs at the White Mesa mill after reclamation, and establish a fund amount to be guaranteed in Energy Fuels surety that is sufficient to cover long-term costs at an interest rate of one percent. V. The Division should deny Energy Fuels’ application to process the Sequoyah Fuels sludge. A. Background Beginning in 1969, the Sequoyah Fuels Corporation ran a uranium-conversion plant in Gore, Oklahoma that converted yellowcake into uranium-hexafluoride, which is used to create fuel rods for nuclear power plants. Following several tragic accidents, Sequoyah Fuels began decommissioning the plant in 1993.332 A long-running dispute ensued among Sequoyah Fuels, the State of Oklahoma, and the Cherokee Nation about how to get rid of some of the plant’s most radioactive waste,333 including a dewatered raffinate sludge containing thorium, uranium, arsenic, beryllium, and lead, among other things.334 A 325 Ex. 70 at 2. 326 Ex. 51 at 8. 327 Ex. 51 at 8. 328 Ex. 51 at 8, 43. 329 Ex. 72 at Table F-1. 330 Ex. 69 at 25–26. 331 Ex. 69 at 25. 332 Ex. 73 at 1. 333 Ex. 73 at 2. 334 Ex. 74 at Table 12. The concentrations of arsenic, lead, barium, and beryllium in the Sequoyah Fuels sludge are an order of magnitude more than the levels in typical Colorado Plateau-derived uranium ore. 44 settlement was reached in 2004 in which Sequoyah Fuels agreed to dispose of the sludge off site.335 This is the waste that Energy Fuels wants permission to process and discard at the White Mesa mill. For about the last decade, Sequoyah Fuels has searched for an off-site disposal location willing to get rid of the sludge, and it has at least $3.5 million earmarked to pay for the disposal costs.336 But it hasn’t found a taker so far. According to Sequoyah Fuels, the high Thorium-230 concentrations in the sludge made it unacceptable for disposal in the Pathfinder mill tailings impoundment.337 High concentrations of Thorium-230 and Uranium-238 also prevented Waste Control Specialists in Texas from disposing of the sludge.338 EnergySolutions, which runs a low-level radioactive waste and uranium byproduct disposal facility in Utah, turned down the sludge because it has more uranium in it than EnergySolutions is licensed to handle.339 That limit on uranium concentration is one the Division imposed. Unlike the other potential disposal sites, Energy Fuels wants to process the sludge and discard it, but it hasn’t yet gotten permission to do so. Having so far come up empty handed, Sequoyah Fuels has recently renewed its effort to cap the sludge in place in Oklahoma.340 That move prompted the State of Oklahoma and the Cherokee Nation to go to court to force the off-site-disposal plan.341 They’ve argued that Oklahoma and the Cherokee Nation should not be blighted by the pollution the sludge may cause.342 It is that prospect that the Division is proposing to export to White Mesa by approving Energy Fuels’ request to process and discard the Sequoyah Fuels sludge at the mill. B. The Division has authority to deny the Sequoyah Fuels license amendment to protect the environment and public health, and it should exercise that authority. Energy Fuels’ “alternate-feed” business has never been blessed by an act of Congress, nor a state law, nor any other publicly debated sort of lawmaking. Instead, it was sanctioned by a few technocrats who decided to make the nation’s radioactive-waste-disposal rules more pliable and the uranium-milling business more plump. That has enabled Energy Fuels to argue that it can discard the Sequoyah Fuels sludge at White Mesa when everyone else is turning it down. To lawfully make yellowcake and bury the resulting wastes at its mill, Energy Fuels must process “ore” primarily for its “source material” content.343 Source material means uranium or thorium, or any ore containing one of those elements at concentrations established by the Nuclear Regulatory Commission.344 In the 1990s, Commission staff released guidance that defined “ore” to mean anything from which uranium or thorium are extracted in a licensed mill.345 This tautological definition had the effect of Id. The thorium activity and uranium-content of the Sequoyah Fuels sludge far exceed that of uranium ore. See id. at Table 7. 335 Ex. 73 at 2. 336 Ex. 75 at 1. 337 Ex. 75 at 2. 338 Ex. 75 at 3. 339 Ex. 75 at 2. 340 Ex. 75 at 4. 341 Ex. 73. 342 Ex. 73 at 3, 6, 9–11. 343 See 42 U.S.C. § 2014(e)(2). 344 42 U.S.C. § 2014(z). 345 Uranium Mill Facilities, Notice of Two Guidance Documents: Final Revised Guidance on Disposal of Non-Atomic Energy Act of 1954, Section 11e.(2) Byproduct Material in Tailings Impoundments; Final 45 allowing Energy Fuels to run anything from which it could extract uranium through the White Mesa mill and discard the resulting wastes on site, provided the feed wasn’t a so-called “listed” hazardous waste.346 Energy Fuels understood that to be true even if the company was paid to do so.347 The State of Utah balked at this idea and took the issue to the Nuclear Regulatory Commission.348 The Commission ultimately decided against the State.349 As a result, through a guidance document issued by Commission staff and an administrative appeal decided by five commissioners, Energy Fuels was given permission to make money disposing of radioactive waste at the White Mesa mill. That outcome bypassed any true public debate about how to get rid of a host of uranium-bearing wastes that have been discarded at the mill since the early 1990s. It also yielded just a few, mostly inelastic factors for determining what qualifies as an “alternate feed,” leaving little room to constrain what uranium-bearing waste Energy Fuels may process.350 The Division appears to believe it is bound by the Commission’s guidance and administrative ruling.351 It observes that the State’s application in 2003 to take over regulating uranium byproduct material as an “agreement state” included a “policy statement” recognizing that, for the White Mesa mill to be viable, Energy Fuels needed to be able to expand its business to include processing alternate feed materials.352 But that’s hardly a binding promise to allow Energy Fuels to process alternate feed according to the Commission’s prior diktats. It’s a statement of policy that the State may change. And the amendment that the Commission and the State of Utah ultimately signed to expand the State’s agreement-state power, which reflects the binding commitments each party made, says nothing about allowing uranium mills to process alternate feed.353 The Division also observes that the State committed in its 2003 agreement-state application to apply the Commission’s guidance for evaluating whether to license alternate feeds for processing.354 But that description of the application omits an important caveat: The State agreed only to apply the Commission’s guidance as a general matter “unless doing so will compromise protection of human health and the environment.”355 And again, the State did not commit to applying the Commission’s guidance when those parties amended their agreement delegating authority to the State to manage uranium byproduct material.356 In short, the Division is not bound by any past promise to the Commission to apply the Commission’s alternate-feed policies and sign off on Energy Fuels’ request to process the Sequoyah Fuels sludge, or any other alternate feed. The State of Utah has the authority to re-examine the conditions on Position and Guidance on the Use of Uranium Mill Feed Materials Other Than Natural Ores, 60 Fed. Reg. 49,296, 49,296 (Sep. 22, 1995). 346 60 Fed. Reg. at 49,296–297. 347 Ex. 11 at 1. 348 Ex. 11 at 1. 349 Ex. 11 at 1. 350 See 60 Fed. Reg. at 49,296–297 (describing three conditions that allow materials to qualify as alternate feed). 351 See Ex. 74 at 2. 352 See Ex. 74 at 2. The policy statement talks about “uranium mills” generally, but in 2003, as now, White Mesa was the only operating uranium mill in Utah. See Ex. 76 at 1. 353 Ex. 77. 354 Ex. 74 at 2. 355 See Ex. 76 at 2. 356 Ex. 77. 46 which alternate feeds may be processed, if at all. And the Division, at a minimum, has the authority to disregard the Commission’s alternate-feed guidance so as to protect “human health and the environment.”357 Indeed, that power is consistent with the Division’s power to reject radioactive-material license amendments if they will be “inimical to the health and safety of the public.”358 We urge the Division to exercise that authority and prohibit Energy Fuels from discarding the Sequoyah Fuels sludge at the mill. If the company is being paid to process the Sequoyah Fuels sludge, which seems likely under the circumstances, it is mostly an environmental liability—a radioactive waste that isn’t worth processing for yellowcake unless it can also be discarded into Utah’s environment. That fact alone should be enough for the Division to conclude that disallowing Energy Fuels from processing the sludge will protect the environment and public health. We ask the Division to make that finding. C. The Safety Evaluation Report is deficient. To determine whether to allow Energy Fuels to take the Sequoyah Fuels sludge, the Division hired URS Professional Solutions to prepare a “safety evaluation report” examining Energy Fuels’ request. That report is deficient in several respects and should be revisited. First, the report incorrectly assumes that the wastes from processing the Sequoyah Fuels sludge will go into Cells 4A and 4B only.359 But in the past, Energy Fuels has pumped wastes among the mill’s cells and has directed wastes from its solvent-extraction circuits into Cell 1. The company plans to use solvent extraction to process the Sequoyah Fuels sludge.360 So, it stands to reason that at least some wastes from processing the sludge will end up in Cell 1. The safety evaluation report should disclose this possibility and analyze what the impacts on Cell 1 would be. Second, the report makes numerous claims about how concentrations of various constituents in the mill’s cells will change after disposal of the processed Sequoyah Fuels sludge.361 But the data used to evaluate those pollutant-concentration changes is based, not on discarding the sludge in Cells 4A and 4B as planned, but on discarding it in Cell 3. As result, the data appear to be erroneous, causing other conclusions in the report to be questionable, if not wrong. The report relies on that data, for example, to conclude that discarding the sludge in Cells 4A and 4B won’t damage the liners in those cells.362 The report also reprises the company’s assertion that no constituent’s concentration will go up by more than 0.10% in the cells.363 Yet there’s no analysis of how the Sequoyah Fuels sludge would affect the concentrations of contaminants in Cells 4A, 4B, or Cell 1 for that matter. The contaminant-concentration analysis should be revisited to assess the concentration changes in the cells the processed sludge will go in. Third, the report repeatedly evaluates the potential threats posed by the sludge by comparing it to other stuff Energy Fuels has processed in the past. For example, the report observes that the sludge has more thorium in it than typical uranium ores, but less radium, leading to the conclusion that it poses “an 357 See Ex. 76 at 2. 358 Utah Admin. Code R313-22-33(d). 359 Ex. 74 at 31, 37. 360 Ex. 78 at 2. 361 See, e.g., Ex. 74 at 27 (describing Table 11 as a summary of “anticipated changes (e.g., percentage increase) in concentrations of metal and non-metal constituents in the tailings disposal area following disposal of the process residuals from processing of the [Sequoyah Fuels] Uranium Material”); 43 (discussing increased phosphate, aluminum, and iron concentrations); 46 (ammonia). 362 Ex. 74 at 14. 363 Ex. 74 at 31. 47 incrementally higher radiological risk” than Colorado Plateau-derived ores and tailings.364 The report goes on to observe that, though there’s more Thorium-230 and Thorium-232 in the sludge than most substances the mill has processed, there’s less Thorium-230 than was present in the “Nevada Test Site Cotter Concentrate” and less Thorium-232 than in the “W.R. Grace alternate feed materials.”365 Phosphorous, the report says, is present in the sludge at a concentration of 19,600 mg/kg, but the “Cameco Calcined Product” had more.366 At 44,100 mg/kg, fluoride levels are less than the “FMRI alternate feed.”367 These comparisons are useless for evaluating the hazards the sludge poses. They say nothing about how hazardous the sludge is, only how hazardous it might be relative to other materials the mill has already been given permission to process. These comparisons are unintelligible absent some explanation of how the constituents of the Sequoyah Fuels sludge may affect the environment or public health at the concentrations at which they’re present in the sludge. Along the same lines, the only conclusion the report draws about how the Sequoyah Fuels sludge might affect the liners in Cells 4A and 4B was that it wouldn’t “result in any additional detrimental impacts.”368 But that could be true if the caustic substances that are already in Cells 4A and 4B are already causing severe detrimental impacts to the liners. Without any understanding of what the existing damage to the liners may be, it is meaningless to downplay the “additional” impacts that may occur. This sort of reasoning also predisposes the Division to approving ever-more-foul wastes for disposal at the mill. By comparing the Sequoyah Fuels’ sludge ingredient-by-ingredient to the worst constituents of previously approved wastes, the Division can sanction its disposal on the reasoning that it’s not much worse than the mixture that’s already in the cells, even if standing alone it would be far more hazardous than any given waste previously processed. These deficiencies in the report’s analysis of the hazards the Sequoyah Fuels sludge may pose should be fixed, and the Division should make a new assessment of whether to license disposal of the sludge based on that revised analysis. VI. Conclusion Though the Division has made commendable improvements in regulating the White Mesa mill, deficiencies remain. We urge the Division to remedy them. 364 Ex. 74 at 14. 365 Ex. 74 at 14. 366 Ex. 74 at 26. 367 Ex. 74 at 26. 368 Ex. 74 at 31.