ML20216G196

Expresses Appreciation for Invitation to Participate W/Other Federal Agencies in 970905 Meeting to Discuss Current Reclamation of U Mill Tailings at Atlas Site in Moab,Ut

ML20216G196
Person / Time
Issue date:	09/05/1997
From:	Shirley Ann Jackson, The Chairman NRC COMMISSION (OCM)
To:	Mcginty K PRESIDENT OF U.S. & EXECUTIVE OFFICES
Shared Package
ML20216G208	List: ML20216G196
References
NUDOCS 9709120262
Download: ML20216G196 (5)

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,,,,,, September 5, 1997 CHAIRMAN l

l The Honorable Kathleen A. McGinty Chairman Council on Environmental Quality '

Executive Office of the President Washington, D.C. 20503

Dear Chairman McGinty:

Thank you for your invitation to participate with other Federal agencies in a meeting to discuss the current reclamation of uranium mill tailings at the Atlas site in Moab, Utah, being

) undertaken by Atlas Corporation, a U.S. Nuclear Regulatory Commission (NRC) licensee.

NRC will be represented at the September 5,1997, meeting by Mr. Hugh L. Thompson.

l Deputy Executive Director for Regulatory Programs, accompanied by key staff.

Your letter also forwarded comments to Vice President Gore from Congressman Miller and 19 other Members of Congress. On July 2,1997, I responded to Congressman Miller's June 5,1997, letter to me, which raised many of the same issues as were raised with Vice President Gore. Additionally, Atlas Corporation responded to these concems in a letter dated June 24,1997. Copies of these letters are provided as Enclosures 1 and 2.

As you may know, over the past four years, the NRC has been thoroughly reviewing the Atlas proposal to reclaim the mill tailings at its current location along the Colorado River. Atlas' proposed reclamation strategy is similar to that employed by other licensed mills and by the U.S. Department of Energy in carrying out its responsibilities under Title I of the Uranium Mill Tailings Radiation Control Act of 1978, as amended. Atlas is one of 17 mill toilings sites adjacent to rivers. At sightof those sites, the mill tailings were, or will be, reclaimed- 3 site.

Additionally, at many mill tailings sites reclaimec by DOE, no active cleanup of contaminated groundwater is planned; rather natural flushing is being relied upon to eventually restore groundwater quality.

NRC's review of the Atlas proposal has included two equally important aspects: a safety review to determine if the proposal meets the NRC requirements in 10 CFR Part 40, Appendix A, and an environmental review to determine if the impacts from the proposal are acceptable. This complete reevaluation of the Atlas proposal was initiated because of concems raised by agencies of the U.S. Department of Interior, including the National Park Service (NPS) and the Fish and Wildlife Service (FWS), as well as a large number of comments from others. Among the technical areas the staff reviewed were the possibilities of floods or earthquakes disrupting the tailings pile.

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Neither of these possibilities poses a significant threat to safety under the Atlas proposal.

Based on this review, the NRC concluded that the proposed on site stabilization met the requirements in Part 40, Appendix A. This is documented in NUREGd532, ' Final Technical Evaluation Report for the Proposed Revised Reclamation Plan for the Atlas Corporation Mill.'

A copy is provided as Enclosure 3.

With respect to tne environment &l review, NRC published NUREG 1531, ' Draft Environmental Impact Statement Related to Reclamation of the Uranium Mill Tailings at the Atlas Moab Site, Moab, Utah,* In January 1996. In NUREG 1531, NRC staff found that both the Atlas proposal for on-site reclamation and the attemative of off site reclamation were ,

environmentally acceptable. Congress, in Section 84a.(1) of the Atomic Energy Act, has l directed NRC to consider costs in reviewing reclamation of uranium mill tailings. Because of the significant difference in costs between the two options - over $100 million more to move l

the tallings - and the increased short term radiation doses from the relocation, NUREG-1531  !

could not conclude that the attemative was obviously superior in terms of mitigating environmental impact. Therefore, NUREG 1531 concluded that the proposal for on site reclamr n was acceptable. A copy of NUREG 1531 is provided in Enclosure 4.

Preseni 4RC is completing its Final Environmental Impact Statement (FEIS), We have coordinau J a p,'eliminary FEIS with the NPS and FWS, and where appropriate, have made changes based on comments from these agencies that have helped strengthen the conclusions presented in the FEIS in addition, NRC staff has worked closely with representatives from the U.S. Environmental Protection Agency in the Denver Regional Office. The staff is currently awaiting a final " Biological Opinion," from the FWS, which is the last piece of information NRC needs to issue the FELS. On July 3,1997, NRC received a draft " Biological Opinion"(DBO) from FWS In the DBO, FWS concluded that implementation of the proposed action would jeopardize the continued existence c! four endangered species in the Colorado River. Additionally, FWS identified the relocation of the tallings to an alternative site outside the Colorado River floodplain as the only reasonable and prudent attemative to the proposed action.

Based on its review of the DBO, the NRC staff has identified six areas of major concem as to whether the conclusions reached in the DBO are supported by the information presented.

These areas of concem reic'* to: 1) impacts to the . Scott M. Matheson Wetlands Pre:..rve across the Colorado River from the Atlas site; 2) current versus future impacts; 3) groundwater corrective actions; 4) erosion protection, radon barrier, and flooding effects; 5) analysis of ionizing radiation; and 6) the reasonable and prudent attemative chosen. Also, in several instances the DBO either does not considy the scientific analysis and basis for findings documented by NRC in its supporting docun ents or assumes the NRC findings to be incorrect, without providing a technical basis to refute those findings. A copy of the staff comments on the DBO was provided to Mr. Peter Umhofer of your staff, and is piovided here as Enclosure 5, for your convenience.

Overall, the staff has found that working with the NPS and FWS has helped NRC improve its FEIS. In many instances, the comments provided by these agencies have identified areas where the staff rationato could be strengthened. Unfortunately, the NPS and FWS still disagree w;th tha ovsnt %ddJsicos bclag reached by NRC Based on the extensive NRC review conducted over the past four yeart, the staff believes that implementation of the

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3 proposed action will meet the stringent safety requirements found in Part 40, Appendix A.

The staffs review also shows that with the exception of evaluation of impacts on endangered species, the environmentalimpacts of the proposed action are acceptable, The impacts to  ;

endangered species will be assessed by the FWS in its final" Biological Opinion."

It is important to note that even if, based on a jeopardy opinion frora the FWS, NRC were to deny the Atlas proposal, Atlas, as the party ultimately responsible for the site could: 1) request a hearing under the NRC rules of practice in 10 CFR Part 2; 2) opply for an exemption under the FWS regulations in 50 CFR Part 451; or 3) decide to modify the denied proposal and resubmit it to NRC. NRC, as a regulatory agency, is obligated to evaluate the proposal from Atlas, and determine if it complies with the applicab% regulations. NRC cannot I require actions contrary to Atlas' r'oposal, without giving Atlas the opportunity for an NRC j adjudicatory hearing. An oppbrtunity for a hearing was offered to members of the public in April 1994. No requests for a hearing were received from any member of the public.

The NRC staff is looklog forward to meeting with your staff and representatives from other Federal agencies interested in the Atlas site.

Sincerely, Shirley Ann Jackson

Enclosures:

1. Letter to The Honorable George Miller dated 7/2/97

2. Letter to J. Holonich, NRC, from Atlas Corp dated 6/24/07

3. NUREG 1532

4. NUREG 1531

5. Letter to T. Terrell, FWS, from C. Paperiello, NRC, dated 8/12/97

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ENCLOSURE 1

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July 2, 1997

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OMIRhuW The Honorable C < orge Miller United States House of Representatives Washington, D.C. 20515 Dear Congressman Miller I am responding to your letter dated June 5,1997, in which you raised concems about the U.S, Nuclear Regulat"/ Commission'sf(NRC) reylew of the Atlas Corporation's proposal to 7 reclaim uranium mill tailings at their present location in Moab, Utah. In particular, you were concerned that the NRC staff had not thoroughly evaluated the Atlas proposal. You also noted that you believed that NRC was using its legislative authority and regulations to avoid wndt is best for the public and the environment.

A detailed discussion of the staff review and response to the specific technicalisst.as raised in your letter are provided in the enclosure. Overak. I believe that staff has done an exhaustive job of analyzing the Atlas proposal for on site reclamation of the tailings. The current evaluation (1) has been ongoing for nearty four years, (2) has consumed the equivalent of approximately three full time staff and near1y $1.0 million in contracwr support, and (3) has involved a complete reevaluation of the on site reclamation. There are two equally important aspects to this NRC evaluation. One aspect is to determine if the Atlas proposal for on site reclamation meets the appheable NRC requirements (i.e., a safety review). The conclusions the staff reached in its safety review are documented in NUREG 1532, ' Final Technical Evaluation Report for the Proposed Revised Reclamation Plan for the Atlas Corporation Moab Mill.' The second aspect of the NRC review must address the environmental impacts from the proposal (i.e., an environmental review). This second aspect is not complete, but the preliminry staff conclusions from the environmental review are documented in NURhG 1531, " Draft Environmental Impact Statement Related to Reclamation of the Uranium Mill Tailings at the Atlas Site, Moab, Utah

• which has M en issued for public comment. l,opies of NUREG-1531 and NUREG 1532 were provided to Ms. Deborah Lanzone of your staff durinD an NRC April 29,1997, briefing.

I want to assure you that the conclusions reached by staff in its Final Environmental Impact Statement (FEIS) will also be based on a thorough review of all potential environmental impacts from the Atlas proposal. In preparing the FEIS, staff has completely evaluated the situation at the Atlas s'te, r including the cost estimate of on-site and off-site reclamation.

Input received from the N6:tional Park Service (NPS), which was a cooperating agency in the FEIS, has helped NRC identify areas whera additional explanation will strengthen the conclusions presented. The only remaining item that NRC needs to issue the Fels is a Biological Opinion from the U.S. Fish and Wildlife Service (FWS). Based on discussions we have had with FWS staff, NRC expects that the Biological Opinion will be complete this summer, and the FEIS can be issued by early fall if the FWS issucs a jeopardy opinion for endangered species in the Colorado River, NRC would exptet FWS to work with Atlas to identify mitigative measures that would address any concems that FWS had identified.

Originated by: (MFliegel,NMSS]

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2 Finally, I would like to address your concem that NRC is using its legislative and regulatory I authonty to avoid what is best for the public and envirenment. As an independent regulatory l

agency, it is NRC's job to determine if activities proposed by licensees are in compliance with NRC regulations. The options available to NRC are to either. (1) accept the proposal, (2) accept the proposal with modifications; or (3) deny the proposal. Because NRC must have a firm regulatory and technical basis to accept or deny a proposal, it cannot make either decision arbitranly. For the specific case of the Atlas tailings, even if NRC were to deny the Atlas proposal for on site reclamation, this does not mean that Atlas would choose to move the tailings. Rather, Atlas, as the party ultimately responsible for the site, could (1) request a hearing on the NRC denial or (2) decide to modify the denied proposal and resubmit it to NRC. NRC can only evaluate the proposal made by Atlas, and determine if it is in compliance with the applicable regulations,  ;

it is important to note that the decision to move tailings piles being reclaimed under Title I of the Uranium Mill Tailings Radiation Control Act was made by the U.S. Department of Energy (DOE) as the carty responsible for the reclamat .1 NRC's role in the Title I movements was to review and concur on the DOE proposal for rt ..amation. NRC did not direct DOE to take any actions nor did NRC participate in any way in the DOE decision to move any tailings.

In closing, NRC agrees that the Colorado River is a vital natural resource that must be protected. To this end, I would like to assure you that NRC has conducted its review of the Atlas proposalin a diligent manner. The ultimate conclusions reached by NRC will be technically and environmentally sound, and consistent with the legislative authonty provided to NRC by Congress, If Congress decides that it wants to authonze or fund a reclamation other than the one Atlas has proposed to NRC, the NRC would, of course, conduct any necessary reviews of an attemative approach.

I trust this letter responds to your concems.

Sincerely, J- n/os .

Shiriey Ann Jackson

Enclosure:

As stated

U.S. Nuclear Regulatory Commission Statt Response to Congressman George Miller By letter dated June 7,1997. Congreseman George Miller wrote the U S. Nuclear Regulatory Commission with concems regarding NRC's review of the Atlas Corporation's proposal to reclaim uranium mill tali ngs at their present location on the banks of the Colorado River. In his letter, Congressman Miller identified what he believed were deficiencies in the NRC review. The Congressman implied that the staffs technical findings were deficient, in part because of some of the technical issues identified in his letter and addressed later in this response. The Congressman also raised general concems, regarding both the drinking water supply, for several large cities that draw part of thir drinking water from the Colorado River, and threats to the Lake Powell ecosystem.

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9 In conducting its review of the Atlas proposal for on site reclamation, the staff used standards, established by the U.S. Environmental Protection Agency (EPA), that were incorporated into NRC's own regulations in 10 CF't Part 40, Appendix A. The EPA standards it at form the basis for the NRC requirvr'o,.... are identical to the standards that are applicable to abandoned uraniu.1 mills being reclaimed by the U.S.

Department of Energy (DOE) under Title I of the Uranium Mill Tailings Radiation Control Act of 1978, as amended (UMTRCA). In tsddition, the review procedures used to determine if the Atlas proposal were acceptable were the same as those used by NRC in the evaluation of the other 34 uranium mill tailings impoundments undergoing reclamation, including the work being completed by DOE under Title 1 of UMTRCA, as well as work at other tailings piles at NRC licensed sites.

Using the standards and review methods discussed above, NRC has carefully evaluated the Atlas proposed design and, in March 1997, concluded that the proposal for on site reclamation meets the requirements in 10 CFR Part 40, Appendix A. Among the technical areas reviewed by NRC were the possibilities of floods or earthquakes disrupting the tsilings pile. NRC's review considered not only floods on the Colorado River, but also floods on Moab Wash, a nearby ephemeral stream, as well as the capability of the pile's drainage system to convey runoff from intense local 1

precipitation, without isturbing the tailings. The staff concluded that Colorado River floods do not present"an erosion threat to the tailings because floods in this %

reach of the river are non-erosive, Floods in Moab Wash present a greater erosion threat to the tailings pile, and the erosion protection design addresses that threat.

The NRC seismic review concluded that the fault under the site is not seismically active and that the pile will be stable under any earthquake likely to occur during the design life of the pile. These findings are documented in NUREG 1232, ' Final Technical Evaluation Report for the Proposed Revised Reclamation Plan for the Atlas Corporation Moab Mill.'

In its review of the groundwater situation at the Atlas site, NRC staff recognized that a small amount of contaminated leachate from the tailings impoundment is seeping into the Colorado River through the groundwater. As a result, there is a small part of the river adjacent to the Atlas site with elevated levels of some constituents, with ammonia being of greatest concem. However, because the seepage rate is small in companson with the nyer's flow, impacts on Colorado River water

2 quality are negligible outside the area adjacent to the mill site. Neither the ecosystem in Lake Powell nor the dnnking water supplies drawn from the Colorado River are threatened by the Atlas tailings. Furthermore, the seepage of tailings l constituents into the nyer has been occurring for many years; it is a remnant of mill operations from decades ago. This groundwate contamination cxists independently of whether the tailings are moved, and will slowly flush into the Colorado River.

The concentration of constituents in the groundwater have been decreasing since mill operations were halted and Atlas started to dewater the tailings. The proposed reclamation plan includes an impermeable cover to reduce infiltration into the I tailings. Thus, the amount of tailings solution entenng the groundwater system over the long term should be significantly less than what is currently entering the system. In adoition, Spart of its evaluation of groundwater cleanup at the site,&" NRC will ensure that the groundwater contaminahts within its regulatory authonty are cleaned up to applicable standards. The State of Utah is responsible for the regulation of ammonia in both the groundwater at she site and the Colorado River.

NRC plans to follow closely the State of Utah revew of the ammonia situation.

Congressman Miller raised specific technical issues in his letter, includ.ng: 1) the leaking of radioactive matenal at levels 1300 times EPA's Maximum Concentration Limit (MCL); 2) the accuracy of the projected seepage rate of 8 gallons per minute (gpm) from the tailings pile once it is reclaimed; 3) the time needed to clean the groundwater; 4) the potential for seismic activity at the site where the tailings would be reclaimed; 5) concems expressed by other Federal agencies such as EPA, the National Park Service (NPS), and the Fish and Wildhfe Service (FWS); 6) the need for NRC to conduct a more thorough review of the cost for on site stabilization of the tailings versus relocation; and 7) the ability of the current major stockholders of Atlas to fund offsite reclamation. The followag provides information in response to these issues.

1.

The basis for the concem that 'The pile it leaking alpha radioactive material [it is assumed this means gron alphalin *e nver at levels 1300 times above the EPA Maximum Concentration Limit' is not clear. I"he EPA MCL for gross alpha in groundwater, wha is a drinking water standard, is 15 picocuries/ liter (pCill). This is also the standard in NRC's regulations in Part 40, Appendix A, and tha State of Utah's water quality standard for the Colorado River.

Measurements of gross alpha in the tailings solution in (,)e pile have averaged about 19,000 pCL/I, which is almost 1300 times the standard. However, the level of gross alpha in the groundwater and Colorado River is not this high. The

- tailings solution is diluted by groundwater between the pile and the river, and further diluted by the river. The result is that, although an increase in gross alpha of several pCill can be measured in the river near the pile, after full mixing with the Colorado River flow, seepage of tailings solution only minimally influences ambient gross alpha in the river, it is important to note that background concentrations of gross alpha in the local groundwater are 33 pCi/l, over double the EPA MCL. Whereas, in the nyer, the ambient concentration is close to the standard. Tnese background values are the result of the numerous uranium ore deposits found in that area of the United States. The background value for gross alpha would be the standard that Atlas would need to meet as part of its groundwater cleanup.

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2. A second specific issue discussed in Congressman Miller's letter is the concem that recent data empiled by the Grand Canyon Trust suggest that the 8 gpm estimated seepage from the pile after completion of remediation is much lower than will actually occur. NRC has not sean those data, so it cannot comment on it. liowever, the estimate of 8 gpm is besc.: on the permeability (a measure of how rapidly a material allows water to travel through it) and surface area of the cover proposed by Atlas. The methodology used to calculate the seepage rate is similar to that used in the NRC review and concurrence on cover designs proposed by DOE for tailings impoundments reclaimed under Title 1 of UMTRCA. Based on the concem raised in the June 5,1997, letter, NRC staff has recalculated the seepage rate, and has reconfirmed that 8 gpm rt , is an accurate valuey.- g4 7

3. Congressman Miller states that, according to Atlas, capping the pile will not affect leaching for at least 66 years m ough NRC does not necessarily agree thai 66 years is the correct period, we agree that it will take many I

years for the groundwater to be cleaned up to appropriate water quality standards by natural flushing. This situation, however, exists whether or not the tailings are moved. Furthermore, actions already taken on the pile have resulted in measurable declines in contaminant levels in the groundwater.

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Atlas is currently implementing a corrective action program (CAP) to clean up the grouridwater. The CAP is based on the conclusion that existing I

groundwater contamination is not amenable to remediation, other than by I

natural flushing to the Colorado River. The CAP is focused on removing water from the tailings to reduce future seepage and thus future contamination of the groundwater. Both NRC and Atlas recognize that the cunent CAP must be revisited. If, in NRC's revisit of the CAP, active remediation of existing groundwater contamination is determined to be viable and is required of Atlas, the time required to clean up the groundwater may be consMorably reduced.

% 4. NRC disagrees withbongressman Miller's statements that the Moab fault is S seismically active and that the tite is seismically unstable. NRC has expended considerable effort reviewing both these issues, including consultation with experts at the Utah Geological Survey and the U.S. Geological Survey, and stands by its conclusions. Section 2 of NUREG 1532 contains a detailed discussion of the site geology and scismology, and the bresis for NRC's conclusions.

5. Currently, NRC is in the process of completing its final Environmental Impact Statement (EIS). In preparation of the final EIS, NRC has worked closely with EPA, the NPS, and the FWS. The letter from Congressman Miller raised several concems about the adequacy of the data to characterize the impacts on the Colorado River, and to charactenze the contents of the tailings impoundment. These issues have been previously raised by the NPS and FWS-Although the data available to charactenze the Colorado River are limited, NRC believes the amount of data available is sufficient to gain an understanoing of the impacts on the Colorado River today. Because the EIS is

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evaluating the long-term impact from on site reclamation, the collection of additional data of curren. conditions is not likely in provide significant new information related to long term impacts on the nyer. In addition, based on the data available today, NRC has found that the impacts on the Colorado R,ver outside the area adscent to tne mill k e are negligible, and therefore, acceptable. In the past, however, the NPS has advocated that additional data be collected to more precisely charactenze these impacts. NRC has wntten to NPS, that as a cooperating agency in the EIS process, it can collect any additional data NPS believes are necessary. However, NPS has not undertaken the collection of any additional data that could be used in support of the EIS, in looking a. ;;,e datatailable on ur deritanding the contents of the t' impoundment, NRC concludes that there are sufficient data to develop a good characterization. This understanding is based on a numt>er of factors, inetuding 1) the fact that the tailings t ... ., sta locally mined ore with the uranium removed; 2) the process knowledt Of how the mill Operated and what l

chemicals were used to extract the uranium; 3) the knowledge that tne mill building and other matenal that could not be sold for scrap were buned with the tailings; 4) an analysis performed by NRC, in the late 1980s, of the tailings liquor in the pile; 5) an affidavit from a mill employee documenting that nothing but tailings or mill equipment was placed in the impoundment; 6) analyses done by the licensee, as part of its tailings dewatenng program, that identify what types of solids are in the water; and 7) knowledge of what is contained in other mill tailings impoundments-especially as a result of extensive analyses DOE undertook in its reclamation work at abandoned uranium mills.

Furthermore, for purposes of evaluating impacts, the most significant charactenzation is of the grcundwater between the tailings and the river.

This groundwater has been well-charactenzed, using data from Atlas and the State of Utah.

6. Congressman Miller states that the cost estimates provided by Atlas for both n attematives should be carefully reviewed and recalculated. NRC agree

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has done so. The NRC review is summanzed in Chapter 5 of the draft EIS. As a result of comments received on the draft EIS, NRC has further analyzed costs and considerably expanded the discussion that will appear in the final EIS. The conclusion remains that the cost to relocate the tailings is substantially higher than to stabilize them in place in response to a specific question raised by the Congressman, the ioentified costs are the total needed to perform either reclamation, and are not reduced to reflect that the Federal govemment will partially reimburse Atlas.

7. Congressman Miller notes that two major stockholders of Atlas Corporation are exceptionally profitable companies. However, neither of those companies is licensed by NRC, and NRC has no mechanism to require them to fund reclamation of the Atlas site.

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The current financial assurance, based on the in place stabilization plan I approved by NRC in 1982, is $6.5 million. If Atlas Corporation were to go into-bankruptcy, NRC would call that surety, and those funds would be adequate to continue mainten.)nce and monitonng of the site. Long term stabilization, whether on site or at an off site locat'on, we'Jfd f. ave to be accomplished

- through Super Fund, if the site scored high enough to be included, or by Congressional action.

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ENCLOSURE 2

G ATLAS CORPORATION R E2"fc"8fd? '"*"'"'""'""""'"

Telephone. (303) 629 2440 Tat (303) 629 2445 RICRARe E. BLL'BAUGil Yks President Eartreamental and omromental An.tr.

June 24,1997 hir. Joseph J. Ilolonich, Chief U.S. Nuclear Regulatory Commission IILW&UPB (MS: T7J9) 11545 Rockville Pike r. -

2 Whiteflint North Rockville, MD 20852 Re: Atlas Corporation's Uranium Site, Moab, Utah:

Rebuttal to Representative George Miller's Letters to NRC & Vice President Gore

Dear Mr. Ifolonich:

This letter transmits Atlas Corporation's rebuttal to statements, misstatements, allegations and implications made in letters recently issued by Representative George Miller, Senior Democrat (CA) of the Committee on Resources of the U.S. Ilouse of Representatives. You are receiving this material for informational purposes only. We are advising recipients of this material that if they have a question or concern about this issue Atlas would appreciate the opportunity to meet with them and discuss their concerns in detail. The future of Atlas Corporation is at risk unless its liability in this matter is limited.

As you know, Representative George Miller (D CA) issued a public statement on June 5,1997 concerning his dissatisfaction with the Nuclear Regulatory Commission's (NRC) hanr"ing of the decommissioning of Atus' uranium mill site located near Moab, Utah. Also on June 5th, Congressman Miller sent a letter to NRC's Chairperson Shirley Jackson addressing his concerns. These actions were preceded by a "

Dear Colleague" letter dated May 23,

1997 and a June 4,1997 letter to Vice President Gore.

Congressman Miller's letters are found at Tab A. The rebatal speaks for itself. We look forward to having an opportunity to discuss this matter further. Your thoughtful consideration is appreciated.

Sincerely, WY Richard E. Blubaugh kY ,Q

Attachment ec:

Vice President Gore Senator hiike Dmitrich Senator Ben Nighthorse Campbell Senator Wayne Allard Senator Robert F. Bennett Senator Orrin llatch Senator John McCain Congressman James V.11ansen <

. m-l Congressman Chris Cannon

! Congressman hierrill Cook l

Governor hilchael O. Leavitt Representative Keele Johnson Joseph J. liolonich, Nuclear Regulatory Commission Tom Stocks, hiayor - hioab, UT Earl Sires, Grand County Council- hioab, UT Tom Bingham, Utah hiining Association Greg Fredde, Utah Tax Payers' Association Larry Bunkall, Utah hianufacturers Association William J. Sinclair, State of UT, Division of Radiation Control V. Rai, Department of the Interior, Energy Facilities Division, Omce of Environmental Policy Robert Jeppsen, Omce of Congressman Cook Brad Shafer, Omce of Senator Bennett Karen Thome, Omcc of Senator liatch Don Ostler, State of UT, Di, 'on of Water

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I I REBUTTAL To ca Representative George hiiller's Letters ,,..

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- The Nuclear Regulatory Commlaslon (NRC) and Vice President Gore Concerning Atlas Corporation's Uranium hilli & Tallings Site Afoab, Utah Prepared by Shaw, Pittman, Potts & Trowbridge Wastdagton, D.C.

For Atlas Corporation

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Denver, Colorado June,1997 M t 48

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SHAW, PITTMAN, PoTTs & Tnowsmoce MEMORANDUM To Richard Blubaugh FROM Anthony J. Thompson Paul Gormley David 11. Kim DATE June 18,1997 RE: Rebuttal to Rep. George Miller's Letters to NRC and Vice President Gore Ar ' . m-We have reviewed the letters from Rep. George Miller (D CA) to his colleagues in the llouse of Representatives, to Vice President Albert Gore, and to the Nuclear Regulatory Com-mission (NRC) Chair, Shirley Jackson (attached to this Memorandum as Attachment A). This Memorandum outlines the claims Miller makes in these letters, and provides initial reactions to l some of these claims.

The information we have provided can be found in the following documents: (1) Atlas Corporation's (Atlas) April 29,1996 comments (COMMENTS) to the Draft Environmental Im-pact Statement and the Draft Technical Evaluation Repon (DEIS); (2) NRC Staff Final Techni-cal Evaluation Report (FTER) (March 1997); (3) Letter from Myron Filegel, Senior Project Manager, Uraniur, Recovery Branch, NRC, to Judy Mikels, President, Southern Califomia As-sociation of Go',emments (June 3,1997)(Fliegel)(attached to this Memorandum as Attachment

B);(4) Lette* from Jack McGraw, Acting Regional Administrator, U.S. Environmental Protec-

) tion Agency, Region Vill, to Senator John McCain (June 2,1997)(McGraw)(attached to this Memorandum as Attachment C); and (5) Letter from Shirley Ann Jackson, Chair, NRC to Sena-tor John McCain (June 1.1997)(Jackson)(attached to thh Mer.iorandum as Attachment D).

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In this Memorandum, Rep. Millers claims are in bold type, and for each claim we have noted the letter (or letters) in which it is made. For there allegations that appear in the "

Dear Colleague" letter,

the notation is "DC." Similarly, the letter to the Vice Presidetc is "VP," and the letter to Ms. Jackson is "NRC."

Before responding to Rep. Millers specific claims, we note that the Congreuman seems to have received much of the information in his letters from the Association for the Tree of Life, an environmental group in Utah. This group, which is opposed to leaving the tailings in place at Moab, has made many of the same false or inaccunte claims as Rep. Miller. Rep. Miller appar-ently has accepted the group's allegations without conducting any independent investigation into 2 300 N STPEET, N.W., WASHINGTON, D.C. 20037 TELEPHONE: (202) 663 8000 FAesmLE:(202)663 8007

the conditions at the site. he information from Atlas Mill Reclamation Task Force. in Decom-missioning of Moab. Utah, Uranium Mill Tailings available on the Internet at http:!. antenna.nl/ wise /wvpudmoa.html(attached to this Memorandum as Attachment E).

• The unlined tallings pond sits on a porous geological site where teachste seeps directly into the groundwster. The wantes seep down through the aqui-fer into the Colorado River. (DC VP NRC).

A. There is no tailings " pond." Rather, there is a large pile of solid materials l

in a f cility regulated by NRC under the provisions of 10 C.F.R. Part 40 Appendix A and pursuant to EPA generally applicable standards in 40 i C.F.R. Part 192.

1 l ,, B. s Anygonstituent teaching is minimal. Those constituents that do leag,.

have very little impact on the water quality of the Colorado River. '

, i. NRC anettment of the imnact of the taillnen nite on the river: In the DEIS, NRC concluded that the tailings pile would not have any significant impact on the water quality of the Colorado River.

(Alvailable data do not indicate that the existing tailings pile has more than a minimal impact on the water quality of the Colorado River beyond a small mixing zone near the bank. Leaving the pile in place would, therefore, have little adverse impact.

(p.440 of DEIS; p.74 of COMMENTS).

ii. UDEO monument oflevel of rndinmetidee in the river: Mr.Wil-liam J. Sinclair, Director of the Division of Radiation Control of the Utah Department of Environmental Quality (UDEQ), has re-viewed the data on radionuclides (gross alpha and beta and radium 226 and 228)in the Colorado River for the years from -

%  % 1975 1990's and has conftrmed that current state umpling of th&

river "especially around the Atlas tailings," has not developed data to " indica'e sny alarm or concem with radionuclides in the Colo-rado River." These views were expressed at a meeting of the Utah Radiation Control Board in October 1995. (p.78 of COMMENTS).

iii. Aunument by Prorn w Mennnita E wreaa: In his letter to the editor of a local newspaper published in Moab, Professor Wrenn, concluded that the Atlas site poses little or no health risks to the surrounding population. A resident of Moab, Professor Wrenn teaches pharmacology at the University of Utah and has a doctorate 2

m nuclear engmeeting and ensironmental medicine and y ears of experience in anal) zing the health effects of radiation. He wntes:

The natural radioactivity in the suspended sediments Dowing down the Colorado Ris er in a thousand years, containing the same radioactise elements found in the Atlas tailings pile, exceeds that which is in the Atlas tailings pile.

The mass of suspended sediments Dowing by the pile in a l

year exceeds the total mass of the pile.

I have measured the radioactivity over several tailings piles, including Atlas', and there is nothing unusually high about the Atlas tailings.

i ,,-(Mcdonald E. Weenn, Letter to the Editor, The Times. ,,

independent: Nov. 7,1996)(attached to this Memorandum as At.'

l , tachment F).

iv. ne contribution from the tailings pile is a very small fraction of the concentrations in the river. Any contamination the tailings pile does contnbute is "the same as that which naturally flushes into the river from the surrounding terrain." (Fliegel at 1). Similarly,"the contnbution of the tailings contaminants are trivial in relation to l

natural ' :Is of river constituents." (Fliegel at 2).

v. Because it takes 20 years for grcundwater to travel from the pile to the river, the contamination cunently reaching the river is a result of actual mill operations from ? ) years ago. Since the mill ceased operations, seepage has been decreasing. (Fliegel at 1 & 2).

" Surface water monitoring for the last 20 years indicates there is no vi.

measurable increase of the contaminants in the waters of the Colo.

rado River, due in large part to dilution." (FTER at 5 26).

~

vii. Dmecisimed uranium mines upstream of the Atin site: In addition to natural teaching, there are other factors that may contribute to the high background concentration of urar,ium and other contami.

nants in the Colorado River, ne foremost among these is the presence of multiple (as many as 40) reclaimed and unreclaimed uranium mines in the watershed of the Arches National Park which, after heavy rainfall, likely contribute both radioactive and nonradioactive contaminants which enter the Colorado River just above the Atlas site through Courthouse Wash. (p.94; Attachment H ef COMMENTS).

3

l siii, in addition, there are six mill sites upstream of the Atlas site and within the Colorado Rh er drainage sy stem. These sites are located at Grand Junction. Rifle. Gunnison, Uravan. Natunta, and Slick Rock. Whether or not the Atlas tailings pile is moved, each of these sites will continue to have an impact on the Colorado Ris er 1 drainage system.

C. Even in we .st cases, there is no reason for concern:

Even in NRC issenment of a hypothetical Hood iHF) scenario:

i.

the worst case scenario where twenty percent of the tailings could be released into the Colorado River during a major storm event -

an extremely unlikely scenario that assumes massive pile failure and concurrent flooding - NRC reached the following conclusion:

y ,.

[T]he hypothetical failure of the tailings pile design during an HF would have some temporary impact on water quality in the river near the pile. However, the river's water qual-ity, which is already degraded regardless of the tailings pile, would be further degraded only by a slight amount.

Contaminantsfrom the tallings would be quickly diluted to currently existing levels, uhich are generally below water quality standards and criteriafor the protection of aquatic biota. Thus, the long term impacts to water quality should be negligible.

(p.4 30,31 of DEIS, p.131 of COMMENTS),

Comnliance with Mct for uranium: According to a recent study, ii.

even under a worst case scenario, assuming a seepage of 9,000 pCi/L of uranium (the contaminant of prime concern) w mum seepage flow of 33 gpm and a dilution of 90,000:1 in the Colorado River, the level of uranium contributed by tailings seep-age js less than 0.1 pCi/L which is a factor oi 300 lower tha EPA's proposed MCL for uranium of 30 pCi/L.u (p,79 or COMMENTS),

The doomsday predictions

' D. T2ilinn from the White canvon uranium mill:

about the adverse impacts on public health and the environme from the Atlas pile were to somehow get into the river must in light of the case involving tailings from the White Can in Hite, Utah. His facility operated fmm 1949 until 1953 and SENES," Summary DEument: Screening Level Risk Assessment fo Moab. Utah.* (1995) p 4.J,( Appendix I I).

4

i 26.000 tons of tailings that were impounded on. site when it closed down.

In Nosember 1963. AEC asked the Department of }{calth. Education and Welfare (liEW) to determine the radiation effect of the tailings pile if it were to remain at the site which would ultimately be covered by the wa.

ters of Lake Powell. IlEW later concluded that the tailings could remain at the site. Subsequent analysis of water and sediment samples .ndicated  ;

"no sigruficant variation in lesels of radioactivity between samples col. l lected over the tailings pile (by then covered with sediment) and samples l taken upstream and downstream from the site." nese tailings currently reside beneath the waters of Lake Powell with no discemible adverse im. l pact. (p.131; Attachment M of COhfMENTS).

E. Natural leaching of urinium: Moreover, in a letter to frequent users of the l rivers in the Canyonlands National Park, the National Park Service (NPS) pointed out ohat natural leaching of uranium occurring in various geologic ~

formations tend to cause high uranium levels. The agency nad taken quar.

terly water samples for almost three years and had them analyzed by tne Utah State 11ealth Department. NPS concluded:

Our water sampling to date indicates gross alpha levels exceed the state standards about . . 67 percent of the time in the Colorado River. Gross beta levels are exceeded . . 20 percent of the time in the Colorado River. Our data show that these levels are more frequently above state standards during high water.

Experts in the National Park Service's water quality lab at Ft.

Collins, Colorado, and the State of Utah Radiation Control Department think the readings are due to natural causes and are not man made. This area of Utah has large deposits of uranium occurring naturally in various geologic formations.

The levels we are receiving in the rivers are probably due to natural teaching. . . .

[R]adioisotopes adhere strongly to suspended solids ud are often associated with clay. During high water or after heavy rains the rivers are the muddiest and of course radioisotoocs would be found clinging to the mud. . . .

None of the radiation experts feel there is a danger. . . .

(p.77 of COMMENTS).

5

P

• The w antes contain high concentrations of ammonia, arsenic, lead, s anadium, seleolum, mercury, mol)bdenum, nickel, and other tosic metals. (DCt Vpt NRC),

A. Only ammonia, uranium, moly bdenum and selenium have substantially elevated concentrations within the tiilingt pile. Arsenic, lead and nickel are only slightly above background within the tailingi pile. These con.

' stituents do not pose significant threats to the Colorado River. There is no data on mercury available.

B. NRC has noted that, with the exception of ammonia, the tailings pile " con.

i tributes relatively small amounts of known contaminants compared to the -

l relatively high reported ambient concentrations of contaminants in the 7

river." Suppigment to the Biological Assessment of PotentialImpacts to _

Endangered and ihreatened Species from the Proposed Reclamation of the Atlas Mill Tailings Site, Moab, Utah 56 (January 1997).

C. Even under a conservative assessment of contamination with minimal di-lution at record low flow conditions "only gross alpha and ammonia would be likely ta anoroach or exceed the state water quality standards as a result of contaminan; input from the pile." (W. at 56 57).

D. Furthermore, once the stabilization plan is complete, the transportation of contaminants to the river will be reduced to one sixth of current levels.

(W. at 57). On the other hand, relocating the tailings pile will result in continued discharge into the river for an unknown period. (W.)

• The pile is leakiss alph'. radioactive materials la the Colorade River at levels 1,300 tienes above EPA MCLs. (DCt VFt NRC).

A. This is a recklessly inaccurate statement. Atlas has no idea where this number originated, but we suspect that it reflects radioactive concentra-3 tions wi'kla the taillna alle. Because the purpose of the tailiras pile is to

.ontain radioactive constituents,it is ridiculous to criticize Atlas for doing just that, and meaningless to compare the radioactivity in the pile with an MCL which is, after all, a " tap water" drinking water standard.

B. In addition, in its discussion of radionuclides, the NRC Staff noted that

"[ leepage influences from the Atlas tailings pile are generally overshad-owed by natural variations of constituent concentrations in the river from other sources upstream and downstream of the Atlas site." (FTER at A43).

C. A comparison of data collected from the Colorado River over the years

- shows that concentrations ot' uranium and thorium are greater upriver from 6

- =

the tailings pile than they are downtner. (TTER at 517), Radium con.

centrations are essentially the same above and below the mill site. (ld.)

D. Furthermore, groundwater data indicates that although the alluvial ground.

water continues to receive seepage from the tailings pile, measured con.

centrations of uranium, thorium and radium in the alluvial materials have decreased significantly. (FTER at 517). >

• The proposed plan will allow toiles to seep into the river at the rate of 8 gal.

loss per anlaute. (VP NRC). Furthermore, Atlas says that espptog the pile will not affect leachlag for at least 66 years. (DC NRC).

A. When one considers the size of this tailings pile, the seepage rate is excep.

tionally low, indeed, it is probably lower than the rate at any other Title 11 site in the nation. < , W B. Atlas' groundwater reclamation and groundwater remediation plan, once completed, will substantially reduce contribution of contaminants from the tailings pile to the river. (Fliegel). Completion of the final radon cover will lessen further the seepage rate. This cover will have the immediate efrect of reducing the infiltration of precipitation into the pile thus limiting additional seepage.

C. Activities when the mill was operational contribute to the current seepage rate. Because the mill is no longer active, this rate will continue to decline over time.

D. Atlas has never publicly claimed that capping the tailings pile will not affect teaching for at least 66 years. We have not been able to determine the source of such allegations. However, one possibility is that Lance Christie of the Association for Tree of Life who has vigorously opped the Atlas' proposal may have provided Rep. Miller with such figures. In an article published in The 7enhvr. Christie cites the State of Utah's esti.

ate that it will take at least 40 years for teaching from the Atlas pilajo decline to Utah Ground Water Quality Standards.*

' Peter Haney,"Moab5n a Nuuhell," tee Zephvr. (June July,1997)(anached to this Memorandum as Attach.

, ment G).

7

.._ = _ __ =

V

• The pile sits on two active fault lines. (DC). The pile is on seismically unsta.

ble land. (VP). According to 1.awrence Livermore Laboratories, the Atlas facility is the only commercial uranium tailings site located on seismically un.

stable land. (NRC).

A. De NRC Staff has concluded that "the Moab fault is not a capable fault and thus not a seismogenic hazard to the tailings." (FTER at A.5).

B. The NRC Staff found that Atlas has acceptably addressed the seismic issue in the design for the tailings pile. (FTER at 2 25). Because of the ex. i tremely low probability of a seismic event that would exceed the design capability of the pile, NRC determined that Atlas has properly addressed seismic stability. (FTER at 2 28).

C. NRC agreed with Atlas' asiessment that within a 10,000 yea %eriod the site may encounter a seismic event with an acceleration of 0.18g How.

ever, Atlas has designed the pile to withstand an event with an acceleration of 0.38g. (FTER at 2 30).

D. I I NL <tudv: In his letter to NRC, Rep. Miller cites a recent study by the LawTence Livermore National Laboratory (LLNL) for the proposition that the Atlas site is the "only commercial uranium tailings site located on seis.

mically unstable land." This grossly mischaracterizes the results of that study. In the LLNL study," simplified" site specific probabilistic seismic hazard analyses were performed for 19 Title 11 sites located in the West and concluded that at most . sites, estimates of probabilistic peak ground ac.

celeration at return periods of 2,000 years and more were higher than the values in design.E De LLNL study did not single out the Atlas site in any way as susceptible to higher seismicity than other Title 11 sites. The 2,000 year period is not obviously relevant to the regulatory time frame of 2001000 years contained in NRC regulations for such facilitio.

E Seismic I-tivirv: ne Atlas site is located in a region, the Col *rado Pla.

thu, that is among the least active, seismically, in the country.1 recent

- study by the leading experts on seismicity in the Colorado Plateau (Wong, ti al) reached the folinwing conclusion: "In terms of earthquakes and their associated hazarda, the Colorado Plateau particularly its interior, has generally been considered to be seismically inactive and devold oflarge earthquakes." (p.2 of Attachment F of COMMENTS). .

F. Inmetivity of the Maah fault The Moab fault that runs beneath a tip of the northeast comer of the tailings pile has been inactive for millennia. The L Ivan G. Wong st aL Earthquake Hazards in the Intermountain US: Issues Relevant to Uranium Mill Tailings Disposal, Tadinet and Mine Wute '97. Proceedings of the Fourth intemational Conference on Tailings and

- Mine Waste'97 204 205(l997).

8

=

.- ----r # -. -. p ya--r-yw y-vr w

esidence strongly suggests that mosement on the Sloab fault has not oc.

curred for at least the past 35,000 y ears, and repeated mosement has not occuned within the past 500,000 y ears. In fact, geologic experts hase concluded that ti.e Sloab fault does not appear to be a capable fault and does not pose a significant earthquake threat to the Atlas site. NRC has i also concuned with this assessment. (pp. 82 83 of COhthlENTSb O. Concurrence of t_'tah Geological Sun ev: The Utah Geological Survey shares our view that the Sloab fault does not pose a significant earthquake threat to the Atlas site. hit l{ciment Doelling of the Survey acknowl.

edged in an interview that the tailings pile would be secured for that amount of time [10,000 years)."(p.83 of COMhiENTS).

}{. Precariously baleced rockt belie claims of seltmleitv: The seismicity C study by Ivan Wong notes that the presence of precarious rocks irme Canyonlands area near the Atlas site implies that strong ground shaking has not occurred in this region since the rocks reached their baleou ! state thousands of years ago l{e concludes: "The location of hioab in (ne Can-yonlands region where probably hundreds of precariously balanced rocks occur, some very delicately, suggests that the site region has not been sub-jected to strong earthquake ground shaking for at least several thousands of years. These observations are consistent with the computed probabills.

tic peak accelerations." (pp.1516 of Attachment F of COhtMENTS).

• Between noods and earthquakes, leaving the plie la place could contaminate drinking water for millions of people. (DC). In the event of a flood, the Colorado River could easily be contaminated. (VP).

A. In its discussion of surface water hydrology ad erosion protection, the -

NRC Staff notes that during large floods the velocity of the Colorado River at the Atlas site slows to one tenth ofits normal flow rate. (F TER at 412). This flow rate greatly reduces the river's potential for causing any erosion to the tailings pile.

B. The tailings pile design includes a " collapsible" rock spron that will pro-tect the pile from erosion. When it reviewed the design of this tuk apron.

NRC determined that the apron, which conforms to the U.S. Army Corps of Engineers guidance, will protect the pile. (Set FTER at 41 through 4 25 for a comprehensive discussion of the design of the pile. See also FTER at 4 25 for NRC approval of the design).

C. NPS has concurred with Atlas' assessment that the Colorado River is highly unlikely to migrate into the Atlas tailings pile and that there is little, if any, threat of erosion of the tailings pile. After reviewing a report pre-pared on behalf of Atlas on this issue, Gary Smillie, a hydrologist with 9

e NPS, wTote: "[W]e [NPS) agree with the principal conclusion of the report that the riser is unlikely to migrate into the tailings."' (Attachment I of COMMENTS).

D. NRC has noted that during the severe 1984 flood, when the water reached the toe of the tailings pile, there were no adverse erosion consequences.

(l.etter hom Shirley Ann Jackson, Chair, NRC, to Sen. John McCain (June 1,1997)).

• The piss has been critielsed by NPS, EPA, FWS sad state and local authori.

ties.-(DC: VP: NRC). Utab clales that Atlas needs a groundwater discharge _

permit. (NRC).

A. All parties, including federal, state and local authorities, have had ample f opjbrtunity to comment cn Atlas' plan. For example, as early as 1909, NRC reviewed the on site reclamation option for the Atlas site as part of an EIS prepared in connection with the renewal of Atlas' operating license and concluded that the tailings pile could be stabilized in place. That con-clusion was not then disputed 'oy any of the authorities currently reviewing the Atlas proposal. Moreover, none of the comments filed since that time have provided technical critiques sufficient to convince the NRC that At-las' proposal fails to a Squately address NRC's requirements. Perther-more, although EPA S noted some concerns about both on site stabilization and the removal scenario, the decision to allow the pile to re-main in place is consistent with EPA's decision to leave the Sharon Steel tailings in place on the banks of the Jordan River. (Sas. Discussion of Midvale, Utah, site,infa) .

B. In a recent letter to Sen. John McCain (R AZ), the Acting EPA Regional Administrator for Region Vill notes that the concems originally raised by the Agency have been addressed. Although EPA recognizes that there are environmental concerns at the site, it no longer objects to leaving the tail-8 ings in place. (l.etter from Jack McGraw, Acting Regional Admin strator.

U.S. EPA Region Vill to Sen. John McCain at 2 (June 2,1997) ). $

C. NPS and NRC have met and talked repeatedly to discuss technical con-cems about the proposal. However, NPS has failed to provide any techni-cal support for the proposition that the pile cannot safely be stabilized on site. Rather,HPS merely repeats its preference that Atlas move the pile, if NPS is so concemed about contaminants entering the Colorado River, why has the agency not acted on the contamination from unreclaimed mines in the Arches drainage?

k . Memorandum to Superintendant of Arches National Park from O, Smillie, resenting responses to NRC Re-quest for information on Atlas Corporation's Reclamation Plan Uranium Mill and Taillnss Dispout Area

,, (August 16,1994).

10

D. F WS has not yet completed its draft biological opinion. Once the agency does so. Atlas will work with FWS and NRC to address any concems the agency may have. An fWS official has noted, however, that "[a] jeopardy decision will not stop the project or require that (the tailings pile) be moved . . . .* (Feds Say Tallings May Be Contaminating Fish Salt Lake l Tribune (March 12,1997)(attached to this Memorandum as Attachment

. H)). l E. Atlas continues to meet regularly with regulators from the State of Utah.

Atlas anticipates resolving any issues under dis:ussion to the satisfaction ,

. of the state.  ;

• The tailings poed may be designated critical babuat for four endangmd spe - i a .FW l' eles.-(VP)%p.

place will S will ardine four endangered probably fish and deterslae that(NRC).

critical habitat. leavlagF the tailla A. This is an outlandish misrepresentation of facts. To begin with, the Atlas _

l site does not contam a tailings pond but rather a tailings impoundment that could not support any population of endangered species of fish that are currently of concem to FWS. Although there is a wetlands wildlife pre-serve owned and operated by the Nature Conservancy across the river .

from the Atlas site, no traces of contamination from the Atlas pile have _.

been discovered at the preserve. EPA, USGS and the State of Utah are all satisfied with this data. (Sas, e.g McGraw letters).

, l B. If FWS makes a jeopardy determination, Atlas will evaluate its options and will respond appropriately to that determination. It is premature to p speculate as to what the agency's determination will be.

C. In the DEIS, NRC concluded that even the hyphetical failure of the Atlas tallings pile would have insignificant impact on fishes and other aquatic organisms that inhabit the Colorado River:

$ AAer reclamation under the Atlas proposal, tailings teachates t

' would continue to add slightly to existing contaminants in the -

river, potentially having e minor impact on aquatic biota . . .

De hypothetical tailings failure should have negligible impact on water qut"ty and aquatic biota.  ;

(p. xx of DEIS).

i in addition, Appendix 0 to DEIS indicates that the on site reclamation op-tion is unlikely to adversely affect any of the endangered hsh - Colorado squawfish and razorback suckers - at the population level. (p.93 of COM-MENTS). -

, IY i

., ~ ~ - . . . . , . , , - , - . _m L u ,_1 , _ = - . . . - . . _ . _ , . , . , , . _ - _ - . _ ~ , . , . . - ,

• Ihe risks of leasing the tailings pile in place bas e been grossi) underesti.

mated. (VP). Mosing the tailings pile may not immediately halt the contami-nation, but it will remos e the source of the contamination. (VPt .NRC).

'! Relocating the tailings to another site for disposal does not remos e the A.

need for groundwater cleanup at the cunent Atlas property. Additionally, relocating the tailings would likely involse higher groundwater cleanup costs for the relocation attemative oser the on site closure attematise, since the relocation alternatis e would mandate a cleanup approach to re-turn contaminants over the entire site to levels suitable for releasing the site for unrestricted use " (FTER at 5 25. See 11so. FTER at A 35.)

D. "Regardless of the surface reclamation implemented, contaminated groundwater exists at the Atlas site. Relocating the ttilings to another site does%t re' move the net.J for groundwater cleanup at the cunent Atlas e property." (FTER at A 35).

1 C. " Doubling" effect of off sitgleclamation Moving the pile would result in

! increased potential health risks to the public and workers, due to 1)in-creased radon releases from two uncovered sources; 2) increased gamma j

! esposere of workers at two sites; and 3) occupational accidents associated with moving large amounts of material (10.$ million tons of tailings +

contaminated soil) with heavy equipment. (p.7 of COMMENTS).

i. Recentamination of alreadv rechimed areas: Moving the tailings l

}

pile will also result in recontamination of portions of the site that have already been reclaimed, most notably the mill site portion, since it is impossible to move the tailings without fugitive dust and contamination ernanating fiom the pile area. (p.88 of COM-MENTS).

• In every siellar case under DOE jurisdiction, tallings have been moved away from riurbeds. (DC; VP).

A. The dec on to move Title I sites from Goodplains was made by DOE, and a number of factors were involved,"some of which were not related to Gooding and crosion." (FTER at A 26). NRC staff believes several of these piles could have been stabilized in place. (FTER at A 26).

• Miller expresses surprise that despite the points that be raises to the NRC, he found Atlas' plan to comply with all federal regulations. (NRC).

A. Essentially, all of the claims Rep. Miller makes have been addressed by-Atlas to NRC's satisfaction. NRC has insisted that Atlas demonstrate that its proposal satisfies Appendix A site closure criteria through appropriate 12

- _ =_

and detailed technical submitials. The opponents of on ute disposal hase been unable to provide NRC with any " technical evidence" that effectisely disputes the case for on site stabilization. Indeed,the agency has required more of Atlas than is normal for this ty pe of review.

B. NRC not only has scrutinized this facility closely but has gone out ofits w ay to provide opportunities for public involvement, seeking specifically technical submissions that suggest the Atlas proposal does not satisfy NRC criteria. For example, for the Atlas review,NRC took the extraordinary step of publishing the draft TER and formally requesting public comment." (FTER at A 4).

• "NRC has misread this situation before." In 1993, NRC was prepared to is-sue a FONSI, but changed course because of public demands. (NRC).

A. In 1993, AtlYs' reevaluated and upgraded its surface stablaution plan at NRC's direction. Atlas made these changes so that the tailings pile woald conform to new guidance issued by the agency. Because these changes upgraded the facility's design and made it more conservative H e_ more l

orotectivet NRC issued a FOl'Si, NRC reversed itself based not on the environmental impacts of the revised plan, but because the public com-ments raised some new issues, or new questions about existing issues, and created some controversy about on site reclamation that NRC deemed suf.

ficient to merit a further review.

• Atlas' cost estimates for moving the pile vs. leaving it in place are "under sun.

picion" and should be reviewed, in addition, Miller states that Atlas can af.

j ford to move the pile because the company is primarily owned by MIM Holding Co. and Independence Mining Company. (NRC),

A. Total cnits: The off site option will likely cost $145 million in 1996 dol-lars, exceeding those of the on site option by $80-100 million. (pp. I17, 129 of COMMENTS).

B. Comnaritan of Atlan' cost estimmten to those for other Title n aten: Rep.

Miller claims that Atlas' cost estimates are under " suspicion" and should be reviewed by NRC. However, Atlas has conducted a detailed examina-tion of the costs associated with the on site and off site reclamation op-tions and has also compared the cost estimates for on site reclamr. tion to those for other similar Title 11 sites. This analysis has revealed that the range of estimated reclamation costs per ton for the Atlas proposal ($1.21 -

$1.52) are well within the range of estimated reclamation costs per ton for comparable Title 11 sites (50.62 $4.45). (pp.111 112 of COMMENTS).

13

. . u

C. Monte Carlo inih tir Moreover. Atlas has completed a probabilistic Monte Carlo analysis to bener quantify uncertainties in costing assump.

tions. Input parameters such as unit costs for haulage and labor rates were

' assigned a range of values rather than a single value. These ranges were input into the costing model in the form of probabilistic distnbutions and a distribution of possible reclamation costs was estimated. This sophisti.

cated analysis yielded a cost range of $1.62 $2.43 per ton with a mean of

$1.91 per ton. (p.ll3 of COMMENTS).

D. Cost =='i==i a for Title I miten: Some opponents of the Atlas proposal have used DOE's costs for cleanup of Title I sites to argue that Atlas has underestimated costs for its proposal. However, a simplistic comparison of Title I and Title 11 reclamation costs does not take into account several factors that mgke Title I reclamation more expensive. Title I reclamation

'~ F costs frequently include on site consolidation of multiple ponds and piles Into one pile and remedial action for off site / vicinity properties. Title I sites are generally smaller than the Atlas site and thus have higher unit

!' costs without the economy of scale. Thus, Title 1 costs must be used care-fully when evaluating the Atlas proposal (p.112 of COMMENTS).

E. OfMite recta ==' inn atalla delavn mad Al===*iaa Even under the most conservative estimates, it will take at least 6.7 years (assuming a 7 day / week yearly operation) to as much as 8.7 yeais (assuming 5 day / week yearly operation)just to excavate and load 10.5 million tons of tailings

"' currently in place. New load out facilities will have to constructed at the Atlas site. Additional activities include the construction of some 3.5 miles of rail siding, improvements on the exisdng 14 mile main line, the con-struction of new access roads to the new site, and addition of necessary in-frastructures,(pp,114116 of COMMENTS). Furthermore, substandal soil excavadon at the new site will be required to place 2/3 of the relocated materials below grade. 'It will take a minimum of J - 7penrs longer to complete the required reclamadon under the off site opdon. (p.7 of COM-MENTS). In addition, these activities will cause a severe disruption to the

'ourist traf5c since the tailings will be transported past the entrance to

. Arches National Park, alongside or over established biking and hiking -

trails and either over or within close proximity to the main thoroughfare that brings tourists into Moab. (p.91 of COMMENTS).

f. Belav inM seine the Mash alte for tmromerleted m Under the off sita opdon, it will likely take at least 25 to 30 years before any part of the

- Moab site will be released for unrestricted use. Once the tailings are re-y moved, the opportunity for obtaining an ACL for groundwater cleanup at the site disappears, and groundwater remediation will have to satisfy MCLs or background levels,if they are achievable. In addition, an ex-tended treatment will generate significant amount of metal precipitate 14-w --

sludges (including radioactne components) the disposal of which will have to be addressed. (p.88 of COMMF.NTS).

i. The case of the Vitro site: For example, although relocation of the tailings from the Vitro site in Salt Lake City was completed in 1989, the site has not yet been released for unrestricted use and groundwater cleanup studies are not scheduled to begin until 20021 (p.89 of COMMENTS).

G. ne "< limes" croblem:. The advocates of the off site reclamation option have failed to adequately consider the costs associated with handling and moving the fine tailings (slimes) found at the Atlas site. These materials retain their " toothpaste like" consistency even after years of draining, and it will be necessary to utilize specialized equipment and care to implement their excavation, removt l< transportation, placement, and cover &g7(pp.

I19120 of COMMENTS).

~

i. The case of the Midvale_ Utah site: EPA has recognized the diffi-cuhics posed by the " slimes problem" in overseeing reclamation of another Title I site located at Midvale, Utah that holds tailings gen-ersted by Sharon Steel. After considering the likely costs of mov-ing the tailings and comparing'them to the actual costs incurred in moving the Vitro tailings pile in Salt Lake City, EPA concluded; '

" Tailings from the Sharon Steel /Midvale tailings site are smaller in i

particle size than the Vitro tailings and difficult to handle since l

) they are often present ns ' slimes.' !oading and unloading would .

f there)bre, be more difficult, costly and time consuming than experienced at the Vitro site."(p.)20 of COMMENTS).

H. He 14RC regulations require the agency to take economic costs into con-sideration when making licensing decisions. (FTER at 7-1);

1. MIM Holding Company and independence Mining Company are not the

- / primary owners" of Atlas. Atlas is a publicly traded corporationuph

- many shareholders, inclodug MIM Holding Company and Independence Mining.' It is urdikely that these companies, or any individuate or other or-

. ganizations who cwn Atlas' publicly-traded stocks, will volunteer to assist Atlas by paying to move the tailings pile as they have no legal liability for any such costs.

• Miller criticizes the NRC's revn<w of the facility and claians that the agency

is hiding behind its authorizing legislation and regulationa " (NRC)

A. Atlas is extremely concemed about the implications of this charge. For an elected otTicial to suggest that an agency do something other than follow 15 m.___

its statutory mandate and its lawfully promulgated regulations is disgrace.

ful. Rep. Miller, a senior member of the House of Representatives and an -

attomey, should understand that the NRC must comply with the statute and with its regulations. To suggest that the agency do otherwise is, at best, highly improper.

• In addition, although not responding to any specific claims of Rep. Miller, we note these additional argumentst A. OiUGINS OF THE MOAB SITE:

i. Federal selection of the Mnnh tite: The Atomic Energy Commis-sion (AEC), forerunner to NRC, established a uranium ore buying station on what is now the Atlas site in Moab in 1940. Until 1956, over 600 uranium producers shipped uranium ore to the station U @*" from th'e Colorado Plateau. (p.12 of COMMENTS)#

ii. Fstablishment of the tailinos nond: In 1956, when its milling ca-pacity at the Moab site was exceeded, AEC first encouraged and later licensed the Uranium Reduction Corporation (URC) to build and operate a uranium processing mill at the buying station, le fact, the terms of the uranium procurement contract between AEC and URC required U.tC to place the tailings on government land next to the mill and maintain the tailings pond,M l

B. Subseauent involvement of Atl><: Atlas purchased the mill from URC in 1%2 and operated it intil its closure in 1988. Based on these facts,it can be strongly argued that, even in the worst scenario, Atlas should not be re-quired to move the tailings pile to an alternative site at its own expense when it had absolutely no involvement in the selection of Moab as the site r of the current tailings pile. That decision is solely attributable to the AEC.

ellt)4 3 -

k Uranium 1%curement Contract AT(05126d) between AEC and URC, Article XI, October,1956, amended in 1959,1962 (replacing URC with Atlas) 1954, l%7, and 1%9.

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,, d%e-E.9.MmtstDfIrpftst!ItEttUtB Committle oft Refoutsts Washingtta, BC 20515 June 5,1997 Ms Shirley Ann Jackson, Chairman Nuclear Regu! story Cownission Washington, D.C 20555 Dear Madame Chair;

9. . , m-I am wTiting to express ray dissatisfaction with the manner in which the Nuclear Regulatory '

Commission is handling the decommissioning of the Atlas Corporation Moab MH1 m Utah. The continued leaching of highly contaminated wastes, including radioactive spoils, into the Colorado River which serves mdlions of re:reational, urban and agricultural users in Cahfomia as well u other stmes, demands a higher degree of urgeq and scrutiny than the NRC has devoted to this ongomg crisis.

The original null u this site was built in 1956 It operated u a uranium mill and then later u a vanadium mill unni 1984 The Atlas tallings pond is an Atomic Energy Comnussion era pile that is unlined and sits on a porous geological site from which contaminated leachate seeps directly into groundwater. Ten and a half mdlion tons of toxic wastes generated by the now-defunct Attu Mine are stored in the tailings pond which is located right next to the Colorado River. The Atlas pile stands 110 feet,above grade c ver 1:10 acres on the Colorado floodplain and Moab Wash.

Water from the Colorado river makes up part of the drinking water supply for Los Angeles, San Diego, Las Vegu, Phoenix and Tucson. Additionally, the tailings pond is situated between Canyonlands and Arches National Parks, anud the recreation hub of Moab.

The tailings are radioactive ar'd contain high concentrauens of ammonia, arsenic, lead, vanadiur selenium, mercury, molybdenu..L nickel, and other toxic metals left by the leaching process used -

to separate uranium from ore. The tailings pond is not lined, so these wastes are seeping down through the aquifer to the Colorado River.

The pile is leaking alpha radioactive materialla the river at levels 1.300 times above the EPA Maalmum Concentraties Limit. According to the Atlas Corporation, even with the proposed cap, toxies will seep into the river at a rue of 8 gallons per minute. Recent data compiled by the Orand Canyon Trust, however, suggest that this hypothetical estimate by Atlu is much lower than what wul actually occur. Capping the pile will not afect the teaching for at leut 66 years, according to the Atlas Corporation.

h -a .

Ms, Shirley Ann Jackson, Chairman June $,1997. page two As if this were not enough to raisc concerns. according to the Lawrence Livermore Laboratory, the Atlas tailings pond, bisected by the geologically active Moab Fault. is the only commercial uranium tailitigs site locued on seismically unstable land.

The National Park Service, the Environmarnal Protection Agency, the Fish and Wildlife Service, and many state and local govemment agencies have all expreued cor.coms about the que'J y of scientiAc data and information upon which NRC decisions have and will be bued Criticisms include: grossly inadequate sampling, inadequate data on the chemical composition of the tailings, inadequate analysis on the impgs of the seepage on the Colorado River, including biota, , . .

f' i aediment and river quality, disa poement on the cost estimates fbr in situ reclamation versus relocation, inadequate analysis of groundwater impacts The Orand Canyon Trust has raised

~ alarms about threats to the Lake Powell ecosystem from the toxic wastes seeping from the Atlu tailings. Grand County, Utah, has sufficient concems to mount a legal butie against the h1tC's acquiescence to Atlas' plan to lean the tailings in place.

The FWS has yet to complete the Section 7 consultation required under the Endangered Species Act. An FWS official has said that the agency will probably determine that leaving the 10.5 nulhon tons of radioactive tailings in place willjeopardine 4 endangered fish in the Colorado River as well as critical habitat. The State of Utah Department of Emironmental Quality has said that Atlas needs a groundwater-discharge permit.

Yet,la March of this year, the NRC issued a technical report that fasad Atlas' plan to cap the tailisp La place has complied with all federal regulations, Cost osumates for the two proposals vary greatly ranging from $11 17 milhon forin.r/tv -

reclamation and $100.!!0 million to move the tailings. However, according to various reports.

the cost estimates prepared by Atlas are undet suspicion and should be carefully rowewed and recalculated. It is unclear whaher these estimates reflect the 56% reimbursement to be provided by the federal government (as required by the 1992 Energy Act) to Atlas for the cost of 4, reclamation.  %

w The Atlas Mine Corporation's assertions that the relocation cost excessive to the risk, and that the cost of relocanon would fbros the company to *go bankrupt," appear persuasive to the h1tC.

Yet, of all concerns, the question of economics when human lives are at risk should not take precedence. Moreover, as you must certainly know, Atlas is primardy owned by the M I.M.

Holding Company , Ltd., Australia, and Independence Mining Company, two excepuonally profitable companies.

a. ....m. .

,, .. , . , . . .... ... ,. < se-* *?* _

Ms Shirley Ann Jackson, Chainnan June 5,1997 page three Moving the tailmgs may not immediately halt the contamination, but, it would remove the sc,urce of the contamination By placing the tailings in a more modern and technologically safe situation,

'the thruts from earthquakes, high water, Gooding would be eliminated, in esery similar case under the jurisciction of the Department of Energy, tailmgs are moved awmy from riverteds to lined and protected areas.

I am not convinced that the data generated thus far is of a caliber and suf5ciency to wanant a decision allowing the tailings to stay in place. I would remmd )w that the NRC has misread this situation before, in 19M. the ?WCC was prepared to co-approve m stru reclamation and issue a C

" Finding Of No Signi0 cant Impact" But, in response to public demands, the NRC changed course and undenook a full Environmental Impact Statement. Yet, now, despite senous issues raised by other Federal agencies, the NRC seems detennined to acquiesce to Atlas It appears that the VRC is hiding behind its authorizing legislation and regulations rather than attempt to do what is best for the public and the environment. I want to know exactly what the NRC proposes be done to resolve these criticalissues.

Please respond no later than June 2,1997. Should you have questions regarding my concerns, please call me or Deborah 1.anzone at 202-225 4945.

l S' - ,

l y E^d .ma i.LR

' Senior Democrat k Resources Committee 3

CC: Honorable Bruce Babbitt, Secretary of Interior Honorable Fredrico Pena, Secretary of Energy Honorable Carol Browner, Admirstrator of the Environmenta! Protection Agency Honorable Katie McGinty, Chairman of the Praaident's Council on Environmental Quality

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. NUCt. EAR REGULATORY COMMISSION i  ;! .4s.w.a*:* : c as.a.o.

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.l.r.e ./J. 199 7 Judy Mikels, president Southern Cali'ornia Associatici of Go"erments

. SIS West Seventh Street 12th Floor Los Angeles, California 900]7

Dear Ms. Mikels:

I an in receipt of your letter of May 19, 1997, in which you express concern about the effects of Atlas Corporation's granium mill tailings pile near Moab,

'Jtah on the water quality of the Cnlerado River. The Atlas mifi *.Lilings site is regulated by the U.S. Nuclear Regulatory Coussisaien under Source Material License SUA-917. NRC is currently evaluating Atlas' pro tr. mill site, including 10.5 million .o9s of tailings. posed You plan to reclaim are concerned because d.v Colcrado River serves as a r.a,;or saurce of water for southern California and request that every effort be made to prevent further coatamination of the Colorado River.

Let me assure you that Atlas' mill tailings to de not present a threat-to the anter supply of southern California for the following reasons: 1) the contribution by the tailings pile, to the concentrat' on of various, constituents in Colorado River water, represents a saal) fraction of the actual corcentrations in the rivert 2) the seepage of-contaminante from the

! tailings pile to tre river is the result of operations at the mill many years agoanchasbeenoccurringfordecades;and3)thereclamationplanproposed-l by Atlas will si,gnificant y reduce that seepage in the future, i

Further explanations of each of the above.follows I) Currently, near-surface greurdwater between the tallings pile and the river has some contamination which is slowly seeping into the Colorado Alver. Mcwever, because the- seepage rate is so sua 1 in cosparison to the river's flow, impacts on Colorade River water quality are negligible outside n' a local inizing zone. Seepage free the contaminated groundwate to the Colorado liiver is estimated to average 1.15 ccie feet per second (cfs), while the average Colorado River flow at Moab is 7770 cfs, providing a dilution of over 6000. Further dilutten is provided downstrear. of Moab as tributaries, runoff, and groundwater further contribute to Colorado River flow. Because the,tallings are ground up cre, originally mined in the Celerado. River basin, the heavy

netals and other contaminants it contributes to the river are the same as that which naturally flushes into the river from the surrounding terrain.

, 2) Current groundwater contaminant levels near the tailings pile reflect past, more severe pile conditions that resulted in higher seepage rates than at present. During mill operatioq, the tailings pile was ccgletely saturated and a peo1 of water, with high concentrations of S

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- contaminants, existed on the top. During the past several years the pool has evaporated and Atlas has begun to dowater the tailings., This is reducing the seepage .of tailings water into the near-surface groundwater. However, because of the long groundwater travel ties (we '

estiente that it tahs about 20 years for groundwater to travel from the tailings pile to the river), current groundwater seepage into the rivar represents the effects of when the mi'1 was operating. The water you currently draw from the Colorado River includes this contribution from the tailings, ns it has for ye:a s. sowever, as discussed above, the contribution of tt.o tailings contaminants are trivial in relation to natural levels of river constituents.

3) Atlas' proposed reclamation plan for the tailings pile includes a relatively impenseable clay cover for the tailings. This cover would restrict inflitration of water into the pile and thus significantly reduce the seepage of contaminated water from the pile to the grounewater and ultimately to the Colorado 1 Liver. We estimate that seepage would be reduced by at least a facter of 5. Furthermore, under

' NRC regghtions, Atlas will be required to remediate groundhter contamination to a level that does not pose a substantial present or potential hazard to husen healt! tat environment. Thus, the be substantially reduced after completion ofproposed Atlascontribution reclamation of contaminan and groundwater remediation.

I trust this responds to your concerns. If you have any further questions, you can reach me at (301) 415-6629.

Sincerely, ortsinat Sigud b l

Myron Fliegel Senior Project Managar Uranium Recovery Branch Olvision of Waste Menegement Office of Nuclear Tidterial Safety and Safeguards Docket No. 40-3453 Source Materi License No. 30A-917 -

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Taira. P.23 I

% UNITto STATES

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/ k* NUCLEAR REGUL.ATORY COMMISSION

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• e WAsMGTO: . 0 C N8 Mesi 5

k June 4 *"7 ouem

. The Honorable John McCaln United States Senate Washington, O C. 20510 0303

Dear Senator McCain:

I am responding to your letter of Apnl 25,1997, in which you expressed conoom about a uranium mal tellings pile near the Coloredo River in Moab, Utah. The mit is owned by Atas Corporation, whim ho6ds Nuclear Regulatory Commission (NRC) Woense SUA 917. Your letter raises several concorps related to the vulnerability of the tailin0s pile to damage P from Colorado Rivet floods and the subsequent consequences to the river.

The Urenium Mill Tailings Radiation Control Act (UMTRCA) of 1978, as amended, established tne framewortt for NRC regulatory authority over urerwum mill taillnes, in accordance with UMTRCA, me Environmental Protectici Agency (EPA) promulgated standards for the reclamation of tadings pues, and NRC conformed its f*guladens to those EPA standaros. The NRC requirements appear in Appendix A to 10 CFR Part 40 (Part 40).

Part 40 requires that the tailings redamation be doeigned to be effective in me control of radiological hazards for 1000 years. NRC standards also require that this 1000-year control De achieved without reliance on active maintenance, in the review of scansees' proposed reclamation plans and the atnlity of the piens to meet the 1000 year standard, NRC conaders natural phenomena that may pose a threat to the teinings piles, includine 1he potential for l erosion by floods and runoff from precipitaton.

In March 1997, following review of the Adas reclamation design, the NRC staff concluded that l' it met the applicable standants in Part 40. The staffs conclusions on floodng and erosion are documented in its Technical Evaluellon Report (Enclosurek The NRC review considered not oftly floods on the Colorado River, but slao floods on Most Wash, a neartry ephemeral sweem, as well as the capability of to pile's drainage system to nortvey runoff from intense local precipitation without daturtiing the talungs. The star concluded that Colorado River

• loods do not present an erosion threat to the talings beoeuse 1) there is a nefrow gorge two miles downstreern that restrictsflow, resulting in a backup of flood waters upstream; 2) due to the backup, water wel spread over a large arte, particularly on the Mcab side of the river, and his large flow area results in low velocidos; and 3) dense gi, near me tailings pile wid keep veloce6es low. Ploods in Maeb Wash present a greater erosion threat to the talltngs pue than floods item the Colorado River, and the erosion protection design addresses that threat.

Your letter also raised concems about the effects of els year's spring flood, wtuch is socpected to be grestar than normal. Presently, it la not cieer if the spring flood wit exceed the 1964 flood, because spring runoff depends on highly variable factors such as snowpeck, temperesure, and ooincident reinfall amounts. However, even if the 1984 flood were --

exceeded, no erosion or damage to the pile is anticipated because there is a temporary

2 cover that wil avcid tailege contact witn the nyer, and, as sisted above. f'oeds on this reach of the Colorado River are non.orcerve, it snould be noted that to 1984 ficod roecsed tne toe of the tailings pile with no adverse erosion consequences, it is posstte that curing a flood a small amount of the contaminated leachete in the tailings -

may soap into the river. The leechste contains heavy metals, ursnium, and ammonia, but the amounts that could seep into the river dunng a flood would be insignificant given tne large amount of diluton that would occur.

The NRC has worked closely wrth the EPA Denver of5ce in tr.e preparation of the Final Environmental impact Statement TNs worldng relationship has helped NRC understand and-address all concems reised by LPA as a resutt.of epa's review of the Draft Environmental impact Statement. In addloon, the NRC is waiting for the Fish and Wildlife Service (FWS) to prepara a final Stological opinion under Secton 7 of the Endangered Species Act. This is the last piece of informa$on NRC needs to issue the Final Environmental Impact Statement.

At present, FW5 is scheduled tthorovide NRC with a oreft Biological opinica no later than ' .

midLJune 1997 Once this la received. NRC will wortt with FWS and Atlas, it apprognate, to develop a final Biological Opinion.

As part of its evaluation of groundwater deamtg at the site, NRC will ensure that groundwater contaminants are deaned up to the applicable standards. Curren6y, neapeurface grounowater between the tadings pile and the river la contaminated and some of this contamination is seeping into the Coloredo River, As a result there is a smal mixing zone in the Colorado River wtth elevated levels of some constituents, with ammonia being of greetast concem. This centamination is a rertnant of mill operations from decades ago; it exists independenty of wnetner the tailings are moved, and will slowly flush into the Colorado River.

l This attuacon is a short term Irnpact that should be substantially improved once reclamaton, l indur!!ng an impermeable cover to reduce infiltra'Jon into the totings, la complete, and the gecundwater is desned up to appropriate standards. The State of Utah, as an EPA permitting State, is roepensible for the regulation of ammonia in both the groundwater at the atte and the Colorado RNer. NRC plans to follow dosely tne State of Utah review of the ammonia astustion, in summary, the NRC agrees that the Colorado River la a yttel' natural resource that must be protected. Towerd that end, the NRC staff will ensure that the reclamadon pien proposed by the Adaa Corporation provides reasonable assurence that public health and saftty and the environment are protseted if I can be of fur 1her assistence, please contset me.

Sinceroty,

'h Shirtey Ann Jackson Enctosure:

Technical Evaluation Report

[ peg3 0" 4 UNITED STATES j

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'f NUCLEAR RECULATORY COMMISSION WASHINGTON, D.C. 20565-0001

. . . . . ,d A ugust 12, 1997 Mr. Terry Terrell Deputy Regional Director Mountain Prairie Region U.S. Fish and Wildlife Service Post Office Box 25486 Denver Federal Center Denver, Colorado 80255-0486

. w-

SUBJECT:

COMMENTS ON THE DRAFT BIOLOGICAL OPINION ON THE PROPOSED RECLAMATION FOR THE ATLAS MILL TAILINGS SITE IN MOAB, UTAH Dear Mr. Terrell; By letter dated June 26,1997, to Mr. Joseph J. Holonich, Chief of the Uranium Recovery Branch, U.S. Nuclear Regulatory Commission, you provided the draft Biological Opinion on the Proposed Reclamation for the Atlas Mill Tailings Site in Moab, Utah. This draft was prepared by the Fish and Wildlife Service (FWS) in accordance with Section 7 of the Endangered Species Act (ESA). The draft Biological Opinion finds that implementation of the proposed action of reclaiming the Atlas mill tailings at their present location would jeopardize the continued existence of four endangered fish species in the Colorado River. Additionally, FWS has identified the relocation of the tailings to an attemate site outside the Colorado River floodplain as the only reasonable and prudent attemative to the proposed action.

The NRC staff has completed its review of the draft Biological Opinion and has concems that the conclusions reached are not fully supported by the material presented in the draft document. We have identified six areas of major concem in the draft Biological Opinian.

These areas relate to: 1) impacts to the Scott M. Matheson Wetlands Preserve; 2) current versus future impacts; 3) ' e groundwater correct;ve action plan; 4) erosion protection, rahn barrier, and flooding effects,5) analysis of ionizing radiation; and 6) the reasonable and

• prudent attemative chosen. Eacn major area of concem appears to contain significant errors of fact, insufficient technical analyses, and unsupported assumptions and interpretations.

Because of these major concems identified in our preliminary review, we did not perform a complete, detailed review to identify all the possible concems in the draft Biological Opinion.

The results of our review are provided in the enclosure.

In several instances, the draft Biological Opinion either does not consider the scientific analysis and basis for findings documented by NRC in its supporting documents, or assumes the NRC fi7 dings to be incorrect, without providing a technical basis to refute those findings.

In at least one instance, scientific findings by two other Federal agencies, in addition to NRC, l 0 app-

T. Terrell 2 appear not to have been considered. For these reasons, the draft Biological Opinion and the reasonable and prudent alternative do not appear to be consistent with the use of "best scientific and commercial data "

The draft Biological Opinion also reveals apparent misunderstandings about the roles and capabilities of NRC, as a regulatory agency, and Atlas Corporation, as NRC's licensee. The draft Biological Opinion states that "NRC shall dispose of the Atlas tailings at an attemate site." NRC has neither legislative authority nor appropriations to dispose of its licensees' uranium mill tailings. NRC reviews licensee proposals for tailings reclamation and either approves the proposal, based on conformance with appropriate requirements, or denies it.

NRC can order licensees to take specific actions, but only upon a finding of an imminent

, threat to public health cTWsafety. Based on the cu rent technical evidence, such 1* finding cannot be made with respect to the Atlas tailings.

The draft Biological Opinion also states that " ..a f'nal i plan (to move the tailings] shall be developed and in place no later than six months from receipt of the final biological opinion."

Based on our experience with other licensees and with the U.S. Department of Energy, it is

. unlikely that a complete plan could even be developed in six months. To be put in place, the l plan would have to be reviewed and approved by NRC, a process that involves, among other l things, a complete safety review, culminating in the issuance of a final Technical Evaluation l Report, and a complete environmental review, including issuance of environmental impact l statements. The NRC review of the current proposal has taken nearly four years. Further, it is important to note that if NRC were to deny the Atlas proposal for on site reclamation based 7

on a FWS Biological Opinion of jeopardy, this does not mean that Atlas would choose to move the tailings. Rather, Atlas, as the party ultimately responsible for the site, could: (1) request a hearing on the NRC denial under the NRC rules of practice :n 10 CFR Part 2; (2) apply for an exemption from the ESA under the provisions of 50 CFR Part 451; or (3) decide to modify the denied proposal and resubmit it to NRC. NRC can only evaluate the proposal made by Atlas, and determine if it complies with the applicable regulations. NRC cannot mandate decisions without aiving Atlas the opportunity for due process under the NRC adjudicatory review process.

t 4 .

The NRC staff requests that FWS advise us within 30 days of the schedule to complete the final Biological Opinion, taking into account the serious concems NRC has with the draft. If FWS prepares a final Biological Opinion without making the changes to address concems identified in the enclosure, the NRC staff believes denial of the Atlas proposal based on the Biological Opinion would be difficult, if not impossible, to defend in an adjudicatory process.

If FWS wishes, NRC will support a meeting to discuss the staff concems with the draft

' Biological Opinion.

0; T. Terrell 3 If you have any questions, please feel free to contact me or Mr. Holonich. I can be reached at (301) 415 7800 and Mr. Holonich can be reached at (301) 415-7238. I trust FWS_ will take the serious reservations that the NRC staff has with the draft Biological Opinion into consideration when it prepares the fina! version.

Sincerely, (original signed by)'

., Carl J. Paperiello, Director , . .

' 9. .

Office of Nuclear Material Safety and Safeguards

Enclosure:

As stated -

'ec: See Attached W *A 4

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0 Addressees for Letter Dated: A ugust 12, 1997 Richard Blubaugh Bill Hedden Vice President of Environmental Grand County Council and Government Affairs 125 East Center Atlas Corporation Moab, Utah 84533 370 Seventeenth Street, Suite 3150 Denver, Colorado 80202 Dan Kimball, Chief Water Resources Division '

R.L Christle, ATL National Park Service P.O. Box 1366 U.S. Department of Interior Moab, Utah 84532 1201 Oakridge Drive, Suite 250 P #

John E. Cook, Reg. Dir.

Rocky Mountain Region William Lamb National Park Service Associate State Director U.S. Department of the Interior Bureru of Land Management 12795 Alameda Parkway 324 South State Street P.O. Box 25287 Salt Lake City, Utah 84111 2303 Denver, Colorado 80225-0287 Milton K. Lammering Walt Dabney, Superintendent U.S. Environmental Protection Agency Canyonlands National Park Region Vill National Park Service 99918th Street, Suite 500 2282 S. West Resource Blvd. Denver, Colorado 80202-2405 Moab, Utah 84532 Terence N. Martin Dale Edwards Department of the Interior Radiation Protect:on Coordinator Cffice of the Secretary Atlas Corporation Office of Environmental Policy P.O. Box 1207 and Compliance Moab, Utah 6*532 Washington, DC 20240

.,, Grand County Ubrary  % Marcia Moore S 25 South 100 East WO760 Moab, Utah 84532 Bureau of Land Management 1849 C Street, NW Gina Guy Washington, DC 20240 Department of the Interior Regional Solicitor Kerry Moss 755 Parfet St., Suite 151 National Park Service Lakewood, Colorado 80215 Mining and Minerals Branch P.O. Box 25287 Denver, Colorado 80236

Vijal Rai Senior Environmental Review Officer Robert D. Williams Office of Environmental Policy and State Supervisor Compliance Fish and Wildlife Service U.S. Department of the Interior U S. Department of Interior 1849 C Street, NW 146 E 1300 S #404 Mail Stop 2340 Sart Lake City, Utah 84115-5400 Washington, DC 20240 Wes Wilson Robert M. Reed, Supervisor U.S. EPA - Region It!

Environmental Analysis and 99918th Street, Suite 500 Assessment Section Denver, Colorado 80202 2405 Oak Ridge National Laboratory Bethel Valley Road C Pster Umhofer r P.O. Box 2008 Special Assistant for Poliev Oak Ridge, Tennessee 37831-6200 and Administration Executive Office of the President Bruce Rodgers Council on Environmental Quality Department of the Interior Old Executive Office Building Arches /Canyonlands National Park Room 360 125 W. 200 S. Washington, DC 20502 Moab, Utah 84532 Gabrielle Sigel Jenner & Block One IBM Plaza Chicago, Illinois 60611 William J. Sic: lair, Director Division of Radiation Control Department of Environmental Quality State of Utah 168 North 1950 West P.O. Box 144850 ~

' Salt Lake City, Utah 84114-4850 Anthony J. Thompson Shaw, Pittman, Potts & Trowbridge 2300 N Street, N.W.

Washington, DC 200371128 Christine Turk, Chief Branch of Compliance National Park Service 12795 W. Alameda Parkway P.O. Box 25287 Denver, Colorado 80225 o

U.S. Nuclear Regulatory Commission Staff Comments on U.S. Fish and Wildlife Service Draft Biological Opinion on the Proposed Reclamation Plan for the Atlas Mill Tailings Pile in Moab, Utah The U.S. Nuclear Regulatory Commission staff has completed its review of the draft Biological Opinion on the Proposed Reclamation for the Atlas Mill Tailings Site in Moab, Utah. The Biological Opinion wg prepared by tha U.S. Fish and Wi dlife Service (FWS) in 7 accordance with Sewun 7 of the Endangereo Species Act. Bared on its review of the Biological Opinion, the NRC has identified six major areas of deficiency. Each major area of deficiency contains significant errors of fact, 'nsufficient technical analyses, and unsupported assumptiers and interpretation. These deficiencies callinto question both the FWS jeopardy finding and the ' reasonable and pruden'. attemative," identified in the Biological Opinion, of moving the tailings to another location. These major deficiencies are discussed in detail below.

1. trnpacts to Scott M. Matheson Wetlands Preserve in the Biological Opinion, FWS incorrectly attnbutes impacts to the Scott M. Matheson Wetlands Preserve to the Atlas tailings.

a) The Biological Opinion incorrectly assumes that contaminated groundwater from under the Atlas site is impacting the Scott W. Matheson wetlands.

in the Biological Opinion, the FWS acknowledges that three Federal agencies have

[ concluded that the groundwater from the Atlas site cannot impact the Scott W. Matheson wetlands. These three agencies are NRC, the U.S. Environmental Protection Agency (EPA),

and the U.S. Geological Survey (USGS). In fact, the USGS, in its January 30,1997, letter to Dan Kimbe I of the National Park Service (NPS), stated that-It is our conclusion, that under the present conditions, there is no potential for shallow ground water on the north side of the Colorado River to discharge to the wetlands on the south side of the river. All existing information and data, as well as the accepted concept of the Colorado River functioning as a Regional drain, support this conclusion. It would require a monumental alteration in the existing ground-water system to create a situation that would cause shallow ground water from beneath the tailings to move under the river and discharge into the Preserve.

Further evidence that the tailings do not impact the wetlands was provided by Atlas at a December 1996 meeting with FWS and other Department of interior (DOI) agencies. At that moeting, Atlas presented data showing that the overall chemistry of groundwater in the wetlands was significantly different than the chemistry of the teachate in the tailings pile or the contaminated groundwater at the Atlas site.

Enclosure

2 Although the agencies concluded that the wetlands cannot be impacted by the Atlas groundwater, FWS chose in its Biological Opinion to cite elevated levels of some contaminants in the wetlands, and then assume that those contaminents came from the tailings pile. Since this assumption is counter to the other agencies' views, a technical basis must be provided. Using its assumption, the FWG then addressed the impacts to biota from the contamination in the wetlands. In fact, the impact to endangered species from 6 of the 16 constituents discussed in the Biological Opinion is focused on the wetlands. No other impact (apart from those resulting from the wetlands) to the Colorado River for these six constituents is discussed, if the assumption that the wet l ands are impacted by the tailings is removed, over one third of the constituents where the Biological Opinion identifies an impact to biota would be removed from consideration in the final Biological Opinion. The FWS decision to set aside the conclusions of the other agencies does not appear to be consistent with the use of "best scientific and coremercial data avaCable." Copies of lette ' rom NRC, EPA, and USGS addressing this issue are provided as Attachments 1,2, and 3.

If FWS hai new evidence or a technical basis to ch " nge the conclusions of NRC, EPA, and USGS, it should provide that in the Biologica' Opinion. Additionally, if there is new information that would callinto question the accepted understanding of the hydrogeological l system in the area, it shouki be provided to those agencies for their review and comment.

b) The Biological Opinion raises the issue of airbome contamination of the Scott W.

Matheson wetlands by contaminants from the tailings, but does not appropriately j address this issue.

l The Biological Opinion states that "The possibility that the high contaminants in the preserve are from airbome tailings has not been addressed." Although airbome contamination is possible, the source, based on data collected to date, has been identified as local groundwater. FWS, in the Biological Opinion, has provided no data to support airbome contamination. Prior to finalizatlon of the Biological Opinion, FWS may wish to review data presented in the Atlas summary of results of a meeting with EPA held on September 24, 1996 (letter from R. Blubaugh, Atlas, to J. Holonich,- NRC, dated October 1,1996), which supports the conclusion that the source of the contaminants is local groundwater. However, this issue appears to be moot when concems are focused on future impacts to the Colorado River after the propos :d action is implen'.ented and the tailings cover is placed ano grcundwater restoration is complete.

The Biological Opinion then raises the issue of the potential for airbome contaminants rele9 sed during the proposed action to impact the preserve. The Biological Opinion does not address the fact that the proposed action will disturb a small fraction of the tailings, whereas, the action identified in the Biological Opinion as the only reasonable and prudent attemative -

- moving the tailings to another location - will disturb all of the tailings. The Biological Opinion's preferred attemative also involves many more years of tailings disruption.

Therefore, if there is a potential for airbome contamination to impact the preserve, that potential is significantly greater for the reasonable and prudent attemative identified in the Biological Opinion. The Biological Opinion makes no mention of how this was considered in choosing its reasonable and prudent attemative.

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2. Current ys, future impacts The Biological Opinion is almost exclusively focused on impacts currently occurring in the Colorado River, which are the d,termath of past i.eepage of contaminants from the tailings to the groundwater. To meet NRC's needs, the Biological Opinion should be focused on effects of the proposed reclamation, which will occur in the future, a) The Biological Opinion does not focus on the effects of the proposed action on the Colorado River.

In the Biological Opmion, the FWS cites the fact that the concentrations of contaminants in the Colorado River r ced chte of Utah groundN1ter standards. In addition, the FW9 e repeats the concems raised about the adequacy of data collected to date cn the current situation in the Colorade River However, these impacts do not represent the effects expected as a result of the proposed action, but instead represent remnants of mill operations 20 or more years ago. The current situation in the Colorado River exists independently of whether the tailings will be stabilized onsite, as in the proposed action, or moved, as per FWS' reasonable and prudent attemative.

The situation analyzed in the Draft Environmental Impact Statement (DEIS), NUREG-1531, and preliminary Final Environmental Impact Statement (FEIS) is the impact to the Colorado River that will occur if the tailings are stabilized onsite for a 1000-year design life. In this case, the NRC would carry out its statutory obligations mandated in Section 83(c) of the Atomic Energy Act. This requirement is: "Upon termination on any license to which this section app'ies, the Commission shall determine whether or not the licensee has complied with all applicable standards and requirements under such license."

To meet this mandate, the NRC must ensure that surface reclamation and groundwater i cleanup at the Atlas site are done in accordance with 10 CFR Part 40, Appendix A or with l other regulatory requirements specified in the Atlas license. The Uranium Mill Tailings Radiation Control Act of 1978, as amended (UMTRCA) required the EPA to promulpte f generally applicable standards for uranium mille. NRC incorporated those standard into its regulations. For groundwm% this would include determining that Atlas has cleaned up the groundwater to the applicable standards found in Part 40, Appendix A, Criterion SC, or specified in License Condition 17 Because of this, FWS should use, as the basis for determining the impact to endangered species, the groundwater conditions and resulting surface water conditions, which will occur after stabilization is complete. The groundwater conditions can be represented by the NRC standards applicable to groundwater restoration.

Or, if other conditions are used, FWS must provide an explanation as to why it considers the NRC standards to be inappropriate.

In the Biological Opinion, the FWS discusses its view on the need for additional data on the current situation in the Colorado River. However, the Biological Opinion does not develop a rationale to explain how the additional data would help in determining potential future impacts to endangered species. Therefore, the NRC has no basis to conclude that the collection cf additional data on current conditions is likely to provide significant new information related to long-term impacts in the past, NPS has advocated that additional data be collected to more I

_a

4 precisely characterize these impacts. NRC has wntten NPS, that as a cooperating agency in the Environmental Impact Statement (EIS) process, NPS can collect any additional data NPS believes are necessary. A copy of the NRC letter to NPS is provided in Attachment 4.

In addition,in an April 18,1997, video conference to review the preliminary FEIS with the NPS and FWS, the NPS again raised the need for additional data collection. In response to that request, NRC suggested that NPS undertake any data collection that it believed was needed. To date, NRC has not been informed that either NPS or FWS has collected additional data that could be used in support of the FEIS.

In conclusion, the FWS Biological Opinion does not present an analysis of the impacts of the proposed Federal action under consideration. Rather, the Biological Opinion looks at the impacts to endangered species based only on the situation as it exists today and appears to

' discount the information presented in the DEIS, t w preliminary FEIS, the Biological 4;c-Assessment, and the Biological Assessment Supplement. The final Biological Opinion needs to focus on the proposal under consideration to meet Federal and State requirements, not on the current transitional conditions.

b) The Biological Opinion does not justify the apparent conclusion that reclamation will not significantly reduce seepage.

l The decision to focus on current impacts to endangered species in the Colorado River is apparently based on FWS' assumption that reclamation will not substantially reduce seepage l from the pile. However, the Biological Opinion never explicitly discusses or technically l analyzes the basis for discounting the effectiveness of the proposed reclamation.

l In the Biological Assessment Supplement, NRC described its analysis of how the proposed I

reclamation would reduce seepage from the tailings to the groundwater. NRC described the techhical basis for its estimated past seepage rate of greater than 50 gpm and its projected future seepage, after completion of reclamation, of less than 8 gpm. If the Biological Opinion does not accept this analysis, it must provide a technical basis for that decision.

NRC's estimate of future supage is based on the permeability of the proposed cover. The proposed cover, with a pc 3eability of 10#cm/sec, would limit infiltration into the 130-acre pile to 8 gpm if the cover were always saturated and less if it were at times not saturateo.2 Covers with permeabilities this low have been constructed at 7 or more other tailings impoundments. In addition, the U.S. Department of Energy (DOE) has constructed at least 3 covers with verified permeabilities an order of magnitude lower. Such a cover on the Atlas pile would limit infiltration to less than 1 gpm.

The Atlas proposed reclamation plan is but one of many reclamation plans that rely on tight covers to control seepage and contamination into groundwater Most other UMTRCA, Title 11 tailings reclamation plans use the same basic design that Atlas has proposed. Furthermore, DOE, in the Title i program, relies on engineered tight covers to protect groundwater from contamination. Some of the DOE reclamations involved moving tailings to new, pristine locations. In those instances, the ability to protect uncontaminated groundwater was critical and was implemented by constructing tight covers.

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5 Other rer.lamation programs, including those implemented under the Comprehensive Environmental Response, Compensction, and Liability Act of 1980 (CERCLA), rely on the ability of engineered, low permeability covers to limit infiltration of precipitation into contaminated materials and the resulting seepage of contaminated water into the groundwater below. If FWS has a basis to refute the general reliance on tight covers, it is important to make that basis known. If, on the other hand, FWS has discovered a defect in Atlas' proposed cover design, it should identify it to NRC.

The Biological Opinion also identified a concem that significant seepage of contaminants from the pile could occur dunng floods in the Colorado River. Essentially, FWS is concemed that if the Colorado River stage were high enough in a flood, water would impinge on the side of the pile, seep into the pile, and then, as the flood receded, seep out with contaminants.

, However, although sopseepage of contami nants from the pile could occur as gresult of severe Colorado River floods, NRC's analyses show that the amount is insignificant. As discussed below, a simple analysis can be used to demonstrate the basis for NRC's view.

Section 2.2 of the Biological Assessment Suppit.nent desenbed an analysis that estimated the seepage rate from the tailings pile during a five year period (1989 to 1994) as about 50 gpm. The seepage rate is controlled by two factors: the pressure head of water in the tailings pile driving water out the bottom, and the permeability of the material through which the water is traveling, with the material permeability ultimately limiting the maximum seepage rate. At the end of the period modeled, the water levelin the tailings pile was at elevation 3990 ft mst. If a Colorado River flood were to result in high water near the pile, the rate that water would be driven into the pile would be controlled by the same two factors - head and permeability. Since the permeability remains constant, the rate would be controlled by the water level of the flood and the total seepage by the level and duration of the flood.

A simpH, bounding analysis can be performed. Colorado River floods rise above the base of the tailings pile (at about an elevation of 3968 ft msl) approximately once every 50 years.

Assuma that once every 50 years, the Colorado River floods to elevation 3990 ft mst instead, and that it stays at this level for five days. Review of Colorado River flood data will show that this is an extremely consermive (i.e., it overstates the frequency of high watar) assumptior,.

(The estimated river r ige for a 500-year flood is only 3975.8 ft msl.) During the fivt iays of high watei in the ColoradoRver, water would be moving into the pile at the maximum . ate of E0 gpm. Assuming that all the excess water then seeps back out in five days, the seepage rate would also be 50 gpm. For the rest of the 50-year period, the seepage rate from the pile would be at the steady state cate of 8 gpm as discussed above. The effect of the additional seepage would be to raise the average seepage rate over the 50 year period from 8 to 8.01 gpm, which is insignificant. Addttional discussion relative to the impacts of the effects of flooding and erosion on the tailings pile is in Section 4, below.

3. Groundwater Corrective Action Plan (CAP)

In the Biological Opinion, the groundwater CAP is apparently misunderstood in several significant ways.

a) The Biological Opinion does not give credit to the groundwater CAP being implemented at the Atlas site.

6 Although the Biological Opinion explicitly recognizes the existence of a groundwater CAP, much of the discussion appears to discount or ignore it. The groundwater CAP is required by NRC standards in Cnterion 5 of Part 40, Appendix A. It has been in place since 1990 and has resulted in considerable dewatering of the tailings and lowering of contaminant concentrations in the groundwater.

After EPA promulgation of groundwater protection standards for uranium mills and NRC incorporation of those standards into its regulations, licensees were required to monitor groundwater for evidence of contamination. As a result of Atlas' monitoring efforts, it was recognized that the groundwater between the Atlas site and the Colorado River has tailings constituents with concentration levels greater than established standards. To address this groundwater contamination problem, NRC required Atlas to implement a groundwater CAP in

. the late 1960s (as notecWsections 1.3,4.4.5.1, and 4.8.1.7 of the DEIS), and contraryrr what the FWS assumed, Atlas is currently implementing that program. The groundwater CAP is based on a review of possible groundwater remediation techniques such as engineenng solutions and natural flushing. The conclusion reached by NRC in accepting the Atlas CAP was that, because of the brine below the alluvial aquifer at the Atlas site, the existing groundwater contamination in the alluvial aquifer was not amenable to remediation other than by natural flushing into the Colorado River. NRC concluded that the main focus of the CAP should be removing water from the tailings to reduce future seepage into the groundwater, and thus the future source of contamination of the groundwater.

l In its review of the groundwater situation at part of the development of the DEIS and the preliminary FEIS, the NRC staff recognized that a small amount of contaminated leachate l would still enter the groundwater from the tailings. However, the concentration of constituents in the groundwater has been decreasing since mill operations halted and Atlas began implementation of the CAP. This is clearly seen in Figures 5 and 6 of the Biological Assessment Supplement. Completion of the radon barrier to cover the tailings would

! implement the second piece of the groundwater CAP. The proposed hydraulic conductivity of the cover is sirailar to that which has been found ecceptable for and used in other tailings reclamation work done by private companies W DOE. Over the long term, this cover should significantly reduce the amount of tailings solution entering the groundwater system.

NRC recognizes that t..e current CAP must be revisiied, for two reasons: 1) The current CAP requires groundwater to be cleaned up to background level for eight identified constituents.

At the time the CAP was approved, NRC procedures for reviewing and approving Attemate Concentration Limits (ACLs) were not in place, although the standards in both EPA and NRC regulations allowed the use of ACLs. NRC's Staff Technical Position,"Altemate Concentration Limits for Title 11 Uranium Mills," was finalized in January 1996, after consultation with EPA. Atlas has indicated that it plans to propose ACLs for at least some of the groundwater contaminants that must be cleaned up. 2) Enough time has passed since the CAP was originally approved by NRC that it would be prudent to revisit the conclusion that active intervention in the groundwater system is not practica!. In reconsidering that conclusion, NRC will consider both recent advances in groundwater cleanup technology and additional data and understanding of the groundwater system at the site.

If,in NRC's review of the modified or revised CAP, active remediation of existing groundwater contamination is determined viable, NRC will require Atlas to undertake such a program.

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This effort is not the development of a CAP where one does not exist or is not planned.

Rather any future licensing actions related to the groundwater CAP will involve modifications to the already existing CAP being implemented by Atlas. If active remediation could be used at the site, the time required to clean up the groundwater may be considerably reduced.

However, in either case, natural flushing or active remcdiation, NRC will require Atlas to clean up the groundwater to applicable Federal standards.

Therefore, the FWS recommendation - to relocate the tailings to another site, as the only reasonable and prudent attemative to avoid jeopardy to the endangered species - is flawed by not considering groundwater corrective actions currently being undertaken by Atlas. FWS needs to either assume that the CAP will perform as described, or provide a technical basis for any 1!!emative position.

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b) The Biological Opinion incorrectly concludes that groundwater cleanup is an interrelated and interdependent action.

The Biological Opinion defines an interrelated action as a part of a larger action in which the interrelated action depends on the larger action for its justification, FWS is incorrect in its conclusion that the CAP meets this definition. UMTRCA required EPA to promulgate standards and NRC to incorporate the EPA standards into NRC regulations. NRC standards

( for groundwater cleanup appear in Cnterion 5 of Part 40, Appendix A. These standards were promulgated by EPA three years after the surface reclamation standards were established.

Because these standards apply to uranium mill sites regardless of the status of operation of the mill, the conclusion that groundwater cleanup is an interrelated and interdependent action is flawed, Any mill site where groundwater contamination exceeds standards must be cleaned up. The CAP is simply the plan to accomplish the required cleanup. For an operating mill, it is readily apparent that groundwater corrective actions are completely independent of any tailings reclamation since no surface reclamation is currently ongoing.

For all mill sites, the justification for each action (groundwater cleanup and surface remediation) is independent of the other, and derives instead from separate sections of NRC regulations.

$ Congress recognized the indeoendence of groundwater cleanup and surface remediation in _

the UMTRCA Title i prograrn at sites being reclaimed by the DOE. For surface reclamation '

work, Congress set a statutory date for completion, but for groundwater cleanup, Congress allowed DOE to undertake this work independently of the completion of surface reclamation.

The current Title I surface reclamation program is nearly complete, and all sites are expected to be licensed for long-term care by the statutory date of September 1998. However, the groundwater cleanup program for the Title I sites is just beginning, and is not expected to be completer until early in the next century.

The Biological Opinion defines an interdependent action as an action having no significant independent utility apart from the action that is under consideration. Again, FWS is incorrect in its conclusion that the CAP meets this definition. Clearly, the CAP has significant independent utility. The CAP is primarily designed to clean up existing groundwater contamination that has escaped from the tailings. As such, it has significant independent utility from surface reclamation, which is designed to control future release of byproduct material from the tailings.

8 Because there is cuirently an NRC-approved CAP being implemented at the Atlas site, a major focus of future submittals from Atlas will be on accelerating the groundwater cleanup work. The CAP that Atlas is currently implementing is based on the assumption that the tailings will be stabilized in place. However, with the decision to reconsider on site reclamation, it was deemed prudent to defer consicaration of revisions to the CAP until the issue of the finallocation of the tailings was decided. This is because Atlas' ability to use ACLs, which are one of three groundwater cleanup standards, is dependent on the final disposition of the tailings.

In summary, the correct understanding of the relationship between surface reclamation and

- groundwater cleanup is that the groundwater cleanup at the Atlas site is an independent action. The FWS position that NRC must continue Section 7 consultations once a decision on surface reclamation is mad &s~not correct. . e c) The Biological Opinion incorrectly states that enteria for the completion of the groundwater CAP have not been ident ,,co.

The purpose of the CAP is to clean up groundwater to applicable standards. The critericn for completion is that applicable groundwater standards are met at the point of compliance. The applicable standards are identified in Atlas License Condition 17 for 8 constituents and in Cnterion 5 of Part 40, Appendix A. Copies of the NRC regulations, along with the Atlas license, were provided to FWS in NRC's May 23,1997, letter. In addition, the specific standards that apply to groundwater cleanup were discussed with Ms. Ronnette Reisenburg (FWS) in a telephone conversation with Mr. Joseph Holonich (NRC) on May 23,1997, if the CAP is revised in the future to incorporate ACLs, the license will be modified to reflect the revised standards.

As with all pranium mill licensees, Atlas' license will not be terminated until it can be shown that groundwater has been cleaned up to applicable standards. Atlas will be required to show that all constituents identified in Criterion SC and License Condition 17 have been cleaned up to appropriate standards.

d) The Biological Opinion should pmperty account for State and Federal regulation of

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groundwater, In the Biological Opinion, FWS cites the exceedence of State of Utah Colorado River standards several times. In addition, at several places in the Biological Opinion, FWS discusses the exceedence of State of Utah groundwater standards. As noted later, for four groundwater contaminants discussed in the Biological Opinion, NRC has sole regulatory jurisdiction. These are gross alpha, radium-226 and -228, and uranium. The standard for

. radium-226 and -228 combined is found in NRC's regulations, whereas the standards for gross alpha and uranium are required by license condition and based on background values.

The State of Utah has no regulatory responsibility for these constituents. NRC and the State of Utah have concurrent jurisdiction over lead, molybdenum, selenium, and vanadium. As such, NRC will require Atlas to meet the applicable Federal standards for these elements.

However, the State of Utah may choose to impose more sinngent requirements on the cleanup of these contaminants.

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For the remaining constituents discussed in the Biological Opinion, the State of Utah has sole jurisdiction. In a December 13,1996 letter from Chairman Jackson to Dianne R. Nielson, Director of the Utah Department of Environmental Quality, NRC informed the State of Utah that NRC was not in a position to enforce State of Utah requirements. Therefore, the FWS needs to gain a clear understanding from the State of Utah as to what actions the State plans to take to address the groundwater contaminants regulated solely by the State. Without this information, the Biological Opinion does not include the best scientific and commercial data available.

In reading the Biological Opinion, one could be lead to believe that the State of Utah standards are the applicable cleanup requirements for the site. It needs to be made clear that the Federal govemment, in particular the NRC, has responsibility for some number of these constituents. In addition, We Biological Opi' ion fails to recognize that the NRC will not y release Atlas from its site specific license until Atlas demonstrates that these applicable Federal standards have been met at the site. The Biological Opinion fails to differentiate between Federal and State responsibility at tLe site, or recognize that NRC, as a Federal agency wins a mandate to ensure cleanup oi groundwater to applicable standards, will ensure cleanup of groundwater to applicable standards. Finally, in some places, the Biological Opinion discusses EPA standards as the applicable standard. Constituents covered by NRC regulations or in the Atlas license are based on EPA Standards.

With respect to surface water, the Biological Opinion cites the fact that the State of Utah standards for the Colorado River are currently being violated. However, the Biological Opinion fails to discuss the actions that the State of Utah plans for ensuring that the Atlas proposal for on site reclamation will comply with the appropriate State of Utah standards.

The cleanup of groundwater to Federal standards is a fundamental premise on which the NRC has developed its DEIS, the preliminary FEIS, and the Biological Assessment. FWS needs to provide a basis 'or its decision to set aside this basic regulatory building block. In addition, FWS' failure to determine and include any actions the State of Utah plans to ensure compliance with its surface and groundwater standards results in an incomplete Biological Opinion. If FWS has consulted with the State of Utah and found that no actions by the State of_ Utah are planned, then this should be clearly identified in the Biological Opinion if on the other hanu, the State of Utah is planhing to require Atlas to take appropriate actions to onsure cleanup of the groundwater to State standards, then the Biological Opinion needs to discuss these actions, and base its conclusions on the appropriate State standards.

At a minimum, any cor clusion regarding impact to endangered species should be made based on the fact that the groundwater entering the river will be cleaned up to applicable Federal standards. This will be required by NRC. To use the current situation in the river to assess impacts to the endangered species appears to be based on the assumption that NRC will not ensure compliance with its regulations. If this is FWS' conclusion, it must provide a basis for it.

4. Erosion protection, radon barrier, and floodina effects in the Biological Opinion, several aspects of the proposed reclamation plan appear to be misunderstood.

10 a) The Biological Opinion incorrectly assumes that the erosion protection design for floods in Moab Wash will not perform as expected and tailings will erode into Moab Wash and subsequently the Colorado River.

NRC has carefully reviewed the At'as reclamatior' design, and in March 1997 concluded that the proposed design for on-site stabilization meets the requirements in Part 40, Appendix A.

Among the technical areas reviewed by NRC was the possibility of floods disturbing the tailings. NRC's review not only considered floods on the Colorado River, but also floods in Moab Wash as well as the capability of the pile's drainage system to convey runoff from intense local precipitation, without disturbing the taihngs. The NRC staff concluded that Colorado River floods do not present an erosion threat to the tailings, because floods in this reach of the river are non-erosive. Floods in Moab Wash present a greater erosion threat to the tailings pile, and the erosion protetrtion design recognizes this. The desig aopo'ed by Atlas is similar to designs implemented by DOE at UMTRCA Title I tailings sites and uses state-of the-art methods for erosion protection design. The basis for NRC's conclusions on erosion protection is provided in NUREG 1532, "F%, 'iechnical Evaluation Report for the Proposed Revised Reclamation Plan for the Atlas Corporation Moab Mill (FTER)." A copy of this report has been provided to the FWS.

Notwithstanding the detailed technical review conducted by NRC, FWS appears to assume that the erosion protection design accepted by NRC as meeting established Federal requirements will not perform as designed. The FWS did not provide any detailed technk.at rationale for why it believed the erosion protection design would not perform. The FWS' apparent decision to set aside this information is not consistent with the use of "best scientific and commercial data available."

b) The Biological Opinion assumes that harmful quantities of radon will be released from the sides of pile.

The Biological Opinion concludes that because the proposed reclamation does not include clay in the side cover design, harmful amounts of radon will be released. However, radon barners are not dependent on clay nor on any other specific material.

Radon is produced frc n the radioactive decay of radium. As a gas, radon producca in tai'ings piles will diffuse up through the pile until it eitner decays into non gaseous progeny or reaches the surface and is dispersed into the air Radon baniers work simply by providing a sufficient thickness of earthen material over taihngs to lengthen the travel time of the radon gas to the surface. If the travel time is made long enough, a sufficient fraction of the radon (with a half-life of about 3.8 days) will decay within the barrier such that the flux at the surface is within the limit established by EPA of 20 pCi/m'sec. The thickness of material needed to accomplish this is dependent on a number of factors, including the concentration of radium in the near surface tailings, material properties of the cover material, and its moisture content.

Section 6 of the FTER provides a detailed explanation of the proposed radon barrier and the analysis NRC performed to reach the conclusion that it would limit radon emissions to within 20 pCi/m2 sec standard. Although the cover design for the top of the pila, over coarse tailings, calls for 20.3 cm (0.67 ft) of clay and 22.9 cm (0.75 ft) of sandy material, the side l

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l 11 cover design uses 213.4 cm (7.0 ft) of sandy matenal. Both cover designs were shown to limit radon emissions te within standards.

The Biological Opinion also raises a concem that, during a flood Colorado River water coulo reach the side of the tailings pile, exposing aquatic wildlife to excessive amounts of radon.

This concem does not appear to have a technical basis for two reasons. First, as discussed above, the side cover will adequately limit radon emissions. Second, a major factor in a cover material's ability to slow the diffusion of radon gas is its moisture content. Higher moisture contents retard the diffusion of radon and thus lower the flux of radon. In its conservative analysis of cover performance, NRC always assumes the cover to be dry. The analysis of the Atlas side cover assumed the moisture content of the sandy material to be only 2.8 percent. In the event of flood waters impinging on the side of the pile, the cover material would prest-cbly become safurated ar'd the flux of radon considerably reduced.

If the FWS chooses not to accept the above analyses and conclusions, it needs to provide a technical basis for doing so.

c) The Biological Opinion apparently misinterprets the Hypothetical Flood (HF) scenario and related conclusions.

The Biological Opinion makes some fundamental errors of fact and interpretation in its discussion of possible accidents and the potential release of a significant quantity of tailings to the Colorado River. .

The Biological Opinion assumes that the occurrence of a PMF on the Colorado River will erode the tailings pile and carry 2.1 million tons of tailings down the Colorado River. As discussed in detailin the FTER, large Colorado River floods are non-erosive on the reach where the tailings pile is located. The erosion protection is designed for Colorado River floods up to and including the PMF.

One could interpret the concem expressed in the Biological Opinion as a concem that a flood beyond the design basis of the erosion protection (and thus greater than a PMF) cot ' erode the pile and release significant amounts of tailings into the river. However, this con sm appears to be without me '. The PMF is a hypothetical flood originally developed by the U.S. Army Corps of Engineers for designing large dams. The PMF is the most severe flood that is considered reasonably possible at a site as a result of hydrologic and meteorologic conditions, it must be calculated on a site specific basis and does not have a probability associated with it. Virtually every large dam in the country is designed for a PMF. If a flood larger than a PMF were to occur on the Colorado River, the effects would be devastating, not-withstanding the fact that the Atlas tailings pile would likely not be affected. FWS' position in assuming a flood of this size appears to be without technical merit. For this reason, an unusually robust technical basis for its pocition must be provided.

Additionally, the Biological Opinion also misinterprets the basis for, and conclusions resulting from, the accident scenario discussed in the DEIS. The DEIS provides a discussion of the effects of a release of a significant amount of tailings le the Colorado River. Because of the robust design of the tailings pile, NRC could not identify a credible event that would result in a large volume of material available for transport in the river. As discussed in the FTER, the l

12 tailings pile is designed to remain stable under floods and seismic events. However, because NRC wanted to investigate the consequences of a significant release, it postulated that 20 percent of the tailings material became available for dispersion in the river by some unknown mechanism. NRC further assumed that this pile failure occurred at the same time as a major flood event occurred in the river. The HF was cor,trived specifically to maximizo its ability to transport tailings. NRC's conclusion was that under such a virtually impossible scenario, tailings could be deposited in backwater areas of the river in concentrations that would be I harmful to the local biota and would thus have to be cleaned up. Cleanup of tailings would represent a small percentage of the effort to repair the devastation caused by the flood assumed in our hypothetical analysis. However, were such a devastating flood to occur, the significant threats to endangered fish would likely come from contaminant sources such as sewage treatment facilities and tanks of petroleum products and other chemicals that would be entrained in the flood, rather than from tailings g,.

5. Analysis of lonizina Radiation ihe Biological Opinion contains sections on ionizing radiation, gross alpha, radium, and uranium. However, based on the statements and errors in these sections of the Biological ,

Opinion, it appears that the FWS may not have reviewed (e g., the EIS, the Biological Assessment, and the Biological Assessment Supplement) any of NRC's extensive assessments of the radiological effects on biota of radionuclides from the tailings pile. The' following are some specific comments on these sections:

a) Throughout these sections of the Biological Opinion the text refers to what are actually contaminant levels in seen water (which is actually water from a hole excavated by the Utah Department of Environmental Quality in the bed of Moab Wash) as contaminant "... levels in the Colorado River at the Atlas seep." This is misleading because the reader is likely to understand the concentrations to apply to the river water itself instead of the undiluted groundwater in what amounts to a dug well.

b) The Biological Opinion incorrectly states that * ..no radiological criteria or standards have been recomme.,ded or established for the protection of fishes, wildlife, or other natural resources." 9adiological standards or criteria have in fact been recommended for the protection of .sh anu wildlife - a fact discussed in the Biological Assessmer.;

(p.20), the Biological Assessment Supplement (p. 47), the DEIS (p. 4-36); and the preliminary FEIS (p. 4-81, lines 25-30). Both the International Atomic Energy Agency and the National Council on Radiation Protection and Measurements, for example, conclude that observance of a dose guideline of 10 mGyld (1 rad /d) would provide adequate protection for populations of freshwater organisms and terrestrial plants, whereas a dose guideline of 1 mGyld (0.1 rad /d) would offer sufficient protection for populations of terrestrial animals. DOE has adopted these dose limits in its own DOE Order 5400.5.

The Biological Opinion incorrectly concludes that a determination of the impacts of ionizing radiation cannot be made. The potentialimpacts of exposure to radionuclides from the pile have been assessed in detail in the Biological Assessment (p.20), the Biological Assessment Supplement (p. 46 to 50); the DEIS (p. 4-36 to 4-38), and the preliminary FEIS (see pp. 4-80 to 4-86). The assessment concluded that, because

13 dose estimates are generally two or more orders of magnitude below the 10 mGyld guideline, no adverse effects on aquatic life, inciuding endangered species, would be expected, even without the proposed reclamation (i.e., under existing conditions).

c) The Bio!ogical Opinion incorrectly characte'izes the gross alpha water quality standard. The gross alpha water quality standard for protection of aquatic life of 15 pCl/L is for surface water, not oroundwater, it should be noted that this standard appears to be unrealistically low when examined in the light of what is known about the sensitivity of aquatic life to radiation (see preceding comment). Gross alpha measurements in the seep water averaged about 440 pCi/L, not G00 pCi/L as stated in the Biological Opinion (total uranium concentrations averaged about 940 pCi/L). As stated above, and discussed in detailin the Biological Assessment (p. 20), the Biological Assegment Supplement (p. 46 to 50), the DEIS (p. 4 36 to 4-3g.and the preliminary FELS (see pp. 4 80 to 4-86), the radionuclides from the pile are very unlikely to adversely affect aquatic biota, including endangered fish, either radiologically or chemically. Undiluted seep water would likely be toxic because of ammonia and other chemical concentratic.is, but fish are unlikely to find their way into the seep itself.

d) The Biological Opinion incorrectly charactenzes radium concentrations and impacts.

Combined radium 226 and 228 concentrations in seep water averaged 9.4 pCi/L, but river concentrations downstream of the pile averaged less than 2 pCi/L, about the

! same as upstream of the pile, and below the standard of 5 pCi/L for use as a domestic source of water (Table 4 in the Biological Assessment Supplement; Table 4.5 3 in the preliminary FEIS), in any case, at only 9.4 pCi/L, combined radium concentrations in even undiluted seep vater would pose little risk to aquatic biota, including endangered fish.

e) The Eiological Opinion incorrectly characterizes the effects of uranium. Chemical toxicity of uranium and other radionuclides is discussed on p. 44 of the Biological Assessment Supplement and pp. 4 79 to 4-80 of the preliminary FEIS, None of these radionuclides is likely to occur in the Colorado River in concentrations high enough tc be either cher* ally or radiologically toxic. Even the chemical concentration o' umnium in undiluteciaep water (about 1.4 mg/L) is well below the 96-hr LC5cnf 135 mg/L for fathead minnows in hard water (e.g., the Colorado River) cited by the FWS, and half the 96-hr LC50 for fathead minnows in soft water cited by the FWS The statements in the Biological Opinion regarding the radiological effects of uranium are also incorrect. As discussed above and in the Biological Assessment, Biological Assessment Supplement, and preliminary FEIS, neither uranium nor radium (nor other radionuclides for that matter) from the tailings pile is likely to adversely affect aquatic biota, including endangered fish. Implementation of tha proposed action will further reduce the existing low dose rates incurred by fish.

6. Reasonable and Prudent Alternate Chosen in the Biological Opinion, the only " reasonable and prudent attemative" identified, moving the tailings to another location, is presented with no discussion of how it was chosen, what other i

4 14 attematives were considered, how it would meet appropriate requirements, and what disadvantages it entails.

a) The Biological Opinion does not contain a discussion of various " reasonable and prudent attematives" and how they were ce nsidered in deterrnining the preferred attemative.

The Biological Opinion contains no discussion of the process used to arrive at the preferred attemative of moving the tailings. Because FWS concluded that the proposed action may jeopardize endangered species. one would assume that it would first consider attematives designs for stabilization in-place.

The primary concem idet)tified in the Biological Opinion is the potential for continual seepage of a small amount of taIdhgs teachate into the groundwater and then to the river. The *,

Biological Opinion does not identify the level of seepage into the Colorado River that would be acceptable FWS should identify the level tha' is acceptable. NRC regulations (which conform to EFA regulations) allow seepage from tailings piles into groundwater, but provide water quality standards that must be met. A basic premise in this regulatory scheme is that, if groundwater quality is kept within standards, surface water will also be protected. If FWS has another way of determining acceptable levels of seepage into the river, it must identify and justify those levels.

Once having identified the amount of seepage that would be acceptable, FWS should then consider attematives that could achieve that level. As discussed in the Supplement to the Biological Assessment, a tailings pile cover with a permeability of 104 cm/see would limit seepage to 8 gpm or less. Covers with penneabilities an order of magnitude less have been built. The Biological Opinion makes no mention of FWS having considered a tighter cover as a reasonable and prudent attemative, f Other attematives or enhancements to the proposed design could also be considered, such as creating chemical or physical bamers below and/or downgradient of the tallings pile to limit seepage to the river. That the Biological Opinion does not identify any attematives or enhancements to the proposed action, other than moving the tailings, is a major deficiency.

b) The Biological Opinion's conclusion is apparently based on the assumption that tight covers do not work to limit seepage.

Because the major impacts identified in the Biological Opinion result from seepage of contaminants and because the proposed design includes a tight cover to limit that seepage, it appears that the reason FWS identified moving the tailings as the only reasonable and prudent attemative is because FWS believes that tight covens will not limit seepage out of the pile. As discussed in section 3.a above, the Biological Opinion should explicitly state this assumption and its implications. On the other hand, if FWS cannot provide technical support for an assumption that tight covers will not limit seepage, it needs to reconsider the reasons for its choice of moving the tailings as the only reasonable and prudent attemative.

c) The Biological Opinion does not discuss how the reasonable and prudent attemative meets the requirement to be economically feasible.

15 The Biological Opinion states that reasonable and prudent attematives must be, among other things," economically feasible " The Biological Opinion does not, however, def;ne this term nor discuss how the only reasonable and prudent attemative identified, moving the tailings, meets this requirement. Estimates in the DEIS and the preliminary CElS show that the cost of moving the tailings is substantially greater than ihe poposed onsae reclamation. Onsite reclamation will cost approximately $15 million, whereas moving the tailings could cost wellin excess of $100 million. Furthermore, the responsible party for the reclamation, Atlas Corporation, does not have the firancial resources to fund relocation of the tailings. Clearly, the only " reasonable and prudent altemative" identified in the Biological Opinion is not economically feasible, under the usual understanding of that term, for the responsible party.

The Biological Opinion should therefore explain how the economical feasibility requirement is met, t' T m-l d) The Biological Opinion does not discuss the disadvantages of moving the tailings.

The Biological Opinion presents only one " reasonable and prudent attemative," moving the tailings to another location, outside of the Coloraoo River floodplain, without discussing the disadvantages of that altemative in the Biological Opinion. Some of the disadvantages of moving the tailings are:

1. Moving the tailings will not remedy the current situation in the groundwater and the Colorado River for a considerable period of time, it appears from the Biological Opinion that FWS' greatest concern is with the current levels of constituents in the Colorado River. As discussed in the DEIS, Biological Assessment, and Biological Assessment Supplement, moving the tailings to a new (ocation will not lower those contaminant levels.

ii. Moving the tallings has the potential to contaminate two site:.. If, as FWS appears to assume, a tight cover will not limit seepage fror.1 the tailings, moving the tailings to a new site could result in groundwater contaminativi at that

'acation.

iii. The Biological Opinion raises the issue of airbome contamination impacting them Scott M. Mathuon Wetlands Preserve. Moving the tailings has a much greater

potential to release airbome contamination, and thus impact the preserve, than does the regrading identified in the proposed action.

iv. The responsible party does not have the financial resources to fund relocation of the tailings, Other parties with responsibilities related to remediation of radiologically contaminated sites probably could not undertake FWS' preferred attemative under existing legislation and regulations: 1) NRC does not have the authonty to reclaim tailings sites. 2) DOE's authonty to clean up tailings sites is limited to specific programs such as the UMTRCA Title I program. The Atlas site does not qualify under any DOE program. 3) It is unclear if the Atlas site would qualify for placemerd on the Superfund list, because of the relatively low hazard it represents. T, van if the site were put on the list, informal discussions with Utah and EPA indica,e that action would have a low prionty and it would be unlikely that the tailings would be moved.

i l

. I 16 i

lt appears that the only way to accomplish relocation of the tailings is through a specific act of Congress. Furthermore, in the absence of such legislation, the requirement to move the tailings would likely result in no action being taken to ,

permanently stabilize the tailings.

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UNITED STATES

!s[,q,f it NUCLEAR REGULATORY COMMISSION

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• • '* April 28, 1996 United States Department of the Interior ATTN: Willie R. Taylor, Director Office of Environmental Policy and Compliance Office of the Secretary Washington, DC 20240 SUBJECit RESPONSE TO MARCH 30, 1995 LETTER REGARDING TAILINGS SEEPAGE IMPACT SCOTT MATHESON PRESERVE, NEAR MOAB, UTAH C

Dear Mr. Taylor:

l Your above referenced letter dated M1rch 30, 1995, to Allan Mullins of my staff, mstlined a concern that seepage from the Atlas tailings pile on the north side of the Colorado River could af ?rsely impact the environmentally sensitive wetland complex known as the Scott Matheson Preserve situated south of the Colorado River. Your letter cited the occurrence of several regional and local lineaments, joints, and bedding plane systemst and suggests they are j

likely groundwater flow pathways for contamination from the tailings pile to travel beneath the Colorado River and discharge into the wetlands of the Preserve. Your letter also proposes that a comprehensive water quality survey should be conducted in this wetland to determine if any of the discharging grcundwater are influenced by contamination identifiable to the tailings.

l As you are aware through the U.S. National Park Services'(NPS) efforts, as a cooperating agency in developing the A*'as Tailings Rulamation Environmental Impact Statement (EIP, the U.S. Nucl:ar Regulatory Connission staff is conducting an extensive technical and regulatory review to evaluate the current condition of seepage from the tailings pile and the potential impacts to water quality and biota of the Colorado River. NRC staff is continuing to s

evaluate the impact the tallings seepage has on groundwater quality and the associated regulatory enmpliance issues. Our understanding of the groundwater N

\N flow system is based on site specific information collected at the site over the years.  %

Site specific data collected at the Atlas site demonstrates that the lower in the portion of the alluvium below a depth of abaut 26 meters (85 northern end of Spanish Vs11ey contains highly saline groundwater ( feet) brine) with a total dissolved solids (TOS) concentration of over 100,000 milligrams per liter (og/L). Uncontaminated groundwater at the site exhibits a TOS concentration of about 5000 mg/L. The occurrence and TOS concentration of the deeper alluvial groundwater is consistent with the hydrogeologic interpretations of evaportte dissolution from the colla) sed salt dome structure. This. collapsed sttucture is likely responsible for much of the geologic jointing and fracturing in this portion of the valley,

.The measured TDS concentration in the tailings liquor is about 25,000 mg/l, possibly ranging to as high as about 60,000 mg/L; while the contaminated Attachment 1 p(Lf)k(@j ~ - . C)e 2t.pp yp f

W. Taylor 2-groundwater measured at the Atlas site exhibits a TOS concentration ranging from about 20,000 to 25,000 mg/L. The highest historical TOS concentration in a downgradient well at the site did not exceed about 65,000 mg/L. The large difference in TDS concentrations (and the associated specific gravity of the fluids) between the shallower contaminated and uncontaminated groundwater and the deeper brine indicates that the shallow and deeper alluvium systems are notIlkelyassociatedwith-thesameflowsystem. Water level data collected at the Atsas site demonstrates a stroi.g hydraulic connection betweu the river and the shallow alluvial groundwater. Our current understanding of the flow system at the Atlas site does not indicate that a flow path through the alluvium, into the jointed bedrock below the alluvium, and discharging south of the Colorado River, is likely.

Witti regard to initiating'a cosIp^ehensive r Water' quality survey in ...( wed nd to determine the impact of contaminated groundwater from the tailings pile, the NRC believes that such a measure woult' ha inappropriate given the current understanding of the groundwater flow :ystem. The anomalous occurrence of elevated trace elements in some springs in the wetland are likely, if present.

the result of sources south of the Colorado River, within or adjacent to Spanish Valley.-

If you have any questions concernisig this licensing action, please contact Myron fliegel, at (301) 415 6629, who is replacing Allan Mullins as NRC project manager.

Sincerely, Is/

Joseph J. Holonich, Chief High Level Waste and Uranium Recovery Projects Branch Division of Waste Management Office of Nuclear Material Safety and Safeguards Docket No. 40 3453 Case No. Source "aterial t,1 cense No SUA 917 5

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= - -- _.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION Vill 99918th STREET SUITE 500 DENVER, COLORADO 80202 2466 Ref: 8EPR EP NOV l 4 ggs Joseph J. Holonich, Chief Uranium Recovery Branch, Division of Waste hir nsgement Of6cc of Nuclear hiaterial Safety and Safeguards Nuclear Regulatory Commission Washington, D.C. 20555 0001 RE: Revised Rating based on additional information, Draft BS, Reclamation of Atlas Corporation's hioab hiill i n  ; Prior Rating EO 2, New Rating EC 2 -

In response to your letter of October 17,1996. EPA Region VHI has reviewed the information provided to us by Harding Lawson Auc""cr (illa) prepared on behalf of Atlas Corporation. His infonnation was discussed in a conference call involving NRC and EPA held August 27,1996 and a meeting held in our efGees on September 24,1996. A letter summarizing IILA's presentation was then sent to us in a pr.cket dated October 1,1996.

The water quality data presented by HLA for the area near the mill site leads us to i

conclude that the water in the Scott hiatheson Wetlands Preserve apparently has not been innuenced by leachate leaving the mill tailings site. The water quality signatures of samples fmm wells within the wetlands preserve are typical of either river water or brines from the top of the Paradox Salt Unit which underlies the preserve and are materially different than the water quality signatures of ground water near the mill site. Further, the water levels during low Dow periods (as corrected for density differences) h',dicate that direction of ground flow is remains towards the river from both the mill site and from the wetlands preserve.

Pursuant to our comment letter on the Draft DS and based on the above information, EPA Region VID has re* d the r.. ting of the Draft BS to EC 2 which means we .. ave environmental concems about the proposed action and that additional information as outlined -

in the remainder of our comment istter should be considered for inclusion in the Final ES.

If you have any further questions on this matter, please contact 1.on Hesla or Wes Wilson of my staff at (303) 312 6024 and (303) 312 6562 respectively.

Sincerely,

^

G ,0/ c>m kW L

Caroll. Campbell, Direttor Of0ce of Ecosystems Protection ec: Dick Sanderson, EPA, Washington, D.C.

Attachment 2 i hg  % -

m y t UMTED STATES

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NUCLEAR RE^ULATORY COMMISSION wAsmwof ow, o c. mamm g

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• e . . . p' November 7, 1095 l Mr. Noel Poe )

Superintendent l Arches National Park l Nattenal Park Service  !

P.O. Box 907 Moab, Utah 84532  !

SUBJECT:

ATLAS ENVIRONMENTAL. IMPACT STATEMENT DATA COLLECTION

Dear Mr. Poe:

This is in response to the concerns npressed in your Septeeber 13, 1995,

. letter and Oc%6er 23,1995 FA;. to Dr. Myron F11egel, U.S. NuclFJr Regulatory Comission project manager for the Atlas Corporation (Atlas) uranium mill at Moab, Utah. Your letter and FAX pertain to two July 1995 reports prepared for Atlas: " Atlas Corporation Moab Mill site Colorado Sampline and Literature Review" prepared by Westwater Engin.ering and " Screening kisk Assessment for Reclamation of Uranium Mill Tailings at Moab, Utah" summary and technical support documents, prepared by SENES Consultants Limited.

By letter to me dated October 9,1995, Atlas responded to your letter, in your FAX, you rebutted some of the points raised in Atlas' letter. I do not intend to arbitrate a dispute between the National Park Service (NPS) and Atlas on details of the river sampling or risk assessment performed for Atlas.

My concern is to ensure that the NEPA process is properly followed and that technically valid and defendable.the Environmental Impact Statement (EIS)l therefo I wil raised in your September letter in that context. Your October FAX reinforced and expanded on those concerns in addition to disputing some of Atlas' points and will therefore not be separately addressed, in your letter, you identified five concerns related to the Atlas reports.

The first tour concerns relate to the Westwater report and identify areas where NPS believes there are information inadequacies in the Colorado Rive

• sampling that was conducted by Atlas in May 1995. We have re,leweJ. that report, and ..thomh we agree that more data collection would be uso ul, we conclude that, as ("ead agency, the NRC has sufficient information to prepare the Draf t Environmental Impact St4tement (DEls). Therefore, it would not be appropriate for us to require our licensee to collect the additional information you identified in your le6ter.

If NPS wants the additional information, you should consider collecting any other data independent of the activities being undertaken by Atlas in response to the NRC. It should be noted that NRC is not requesting that NPS undertake any such activities as part of its role as a cooperating agency in the preparation of the DE!S. Therefore, under the provisions of 40 CFR 1501.6(b)(5), NPS would be required to use its own funds to obtain additional data. Any data you collect and any additional input to the DEIS you provide will be considered in NRC's ongoing EIS work, as time permits.

Attachbrent 4

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-0 N. Poe 2 l Your fif th concern relates to the risk, at Ar;hes National Park. of respirablo )

' particles from the reclamation work at the Atlas site. While the preliminary -!

DEls does address air quality impacts at Arches, we are currently .

reconsidering the concerns identified in your letter and plan to address them in the DEIS. +

1 hope-this addresses your concerns. -If you would like to discuss this l

further, please contact Dr. Fliegel at (301) 415 6629.

1 4## ' -

S tricerely, ' <1r *

• l (Original signed by) i f

.Juseph J. Holonich,-Chief '

High-tevel Waste and Uranium Recovery Projects Branch Division of Waste Management office of Nuclear Material Safety ,

and. Safeguards Docket No.L40-3453 Source Material ticense No. SUA-917 cc:. See attached list "UNL, i.

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"",pa*% as M- mau d"= j M" As requesend ja your amanerandtun of January 21,1997, the Utah District Of5ce of tbs USGS ex-mained the posential for tallings at the Atlas alte to aNect ground water which would than dis-ehus. to 64 soon Maih.een Mthods ersurv. on the s.om side at the co) r.de River. 'n=

ybn provided wert Wylawed by Geoff Preathey, a analor hydrogeologist with the U505 who b vlously reviewed draft MS documents of the Atlas eits. Mr.Preethey has abo ressady a reconnaissanes study of the Spankh Wiley area, and la a parHhne resident of Moab, and ab ha is very fusular with the geology and hydrology of this setting.

k is our camekanaa that ender the prenant condidoos, there is no potential for abanow ground we-ser on the north side of the Colorado River to discharge to the wetlands on the south skla of the river. AD esiittag infamas6os and data, as well u the accepted oonesys of the Colosado River Ansatientag 6s a Raglesal ernia, support this conclusion. It would require a ma=mamaatal aberation is tbs asisilag grenad. water systen to erests a altuation that would cause abanow ground water iksen besmet Ihs takildge to num under the rtver and dischnige into the Pseesrve. Sush as atte+.,

mains of the geessa is act luspee A gives ths ==P =' Lng ceabuity ofInumans, or when ,

oosehed in en tornas of geologic tuna, bot it is highly haprobable. In adation, as sharassentin the "

gman6esaur symame of this propostian would, in au lua~t. =1t=l=* the wetlands.

If yee vegehe addhlemal infersamica, phase feel free to contact our ofBos or to taDe to Mr. Pree-they dinasty(801)9751311.

Blasessly, hb Khaben E Goddard District Chlet oe: '.YI11 Ara M. .Mioy, Chief 00W. Ramon VA. J Attachment 3

I

{

l ENCLOSURE 5

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