/~~r~

The State

of Wyoming

Department of Environmental Quality

Herschler Building * 122 West 25th Street * Cheyenne, Wyoming 82002 Dave Freudenthal, Governor

ADMIN/OUTREACH ABANDONED MINES AIR QUALITY INDUSTRIAL SING LAND QUALITY SOLID & HAZ. WASTE WATER QUALITY

(307) 777-7758 (307) 777-6145 (307) 777-7391 (307) 777-7368 (307) 777.7756 (307) 777-7752 (307) 777-7781

FAX 777-3610 FAX 777-6462 FAX 777-5616 FAX 777-6937 FAX 777-5864 FAX 777-5973 FAX 777-5973

March 12, 2004

Mr. John Lusher

Fuel Cycle Facilities Branch

Division of Fuel Cycle Safety and Safeguards

Office of Nuclear Material Safety and Safeguards

Nuclear Regulatory Commission

Mail Stop 8 A33

Washington, DC 20555-0001 . .

Re: Preliminary Comments on a Draft Memorandum of Understanding (Draft MOU)

between the Nuclear Regulatory Commission (NRC) and

the Wyoming Department of Environmental Quality (WDEQ) on

In Situ Uranium Mining

Dear Mr. Lusher:

A Draft MOU on the respective regulatory responsibilities of the NRC and WDEQ for in situ

uranium mining -was included as Attachment F to the NRC-document labeled SECYI03-0186.

As discussed during our phone conversation of January 29, 2004, the WDEQ Land Quality and

Water Quality Divisions and the Wyoming Attorney General's Office have reviewed the Draft

MOU and prepared preliminary comments. These comments are included in Attachment I to this

letter and follow the order of the topics in the Draft MOU. Most of the comments ultimately

relate to ensuring that the State's responsibilities under the Environmental Protection Agency's

(EPA's) Underground Injection Control Program and under the Wyoming Environmental Quality

Act are given adequate recognition.

The NRC's process for work on the Draft MOU.was outlined in the.January 2 9 'h,conversation.

As noted during tha co'nversation, we may be able to discuss soie of the State concerns during

the NRC workshop with National Mining Association in Denver, which is currently scheduled

for the 3rd week in May 2004. In addition, as noted in Attachment I, other concerns may best be
Transmittal of Preliminary Comments

Draft NRC-WDEQ MOU

March 2004

Page 2

discussed while NRC staff are in Wyoming this summer for the proposed review of the State

program. Therefore, we believe it will be mutually beneficial to provide you with preliminary

comments as early as possible in this process.

If you have any questions or need additional information, please call.

Sincerely,

Roberta Hoy

WDEQ Land Quality Division

Attachment (Preliminary Comments)

cc: Mike Barrash, WY A.G.'s Office

Richard A. Chancellor, WDEQ LQD

John V. Corra, WDEQ

Kevin Frederick, WDEQ WQD

Paul Osborne, EPA Region 8

Mario Salazar, EPA Headquarters

Maria Schwartz, NRC

Loren Setlow, EPA Headquarters

John Wagner, WDEQ WQD

NRCILQD MOU File
Attachment I

Preliminary Comments from the Wyoming Department of Environmental Quality (WDEQ)

on the Draft Memorandum of Understanding (MOU) with

the Nuclear Regulatory Commission (NRC) on In Situ Uranium Mining

March 2004

Note:' Strike-and-underline format is used to show changes to tihe Draft MOU text.

Sourcs' of NRC and State Authority

The following language needs to be added to the MOU:

"The actual authorities of the NRC and State respectively are the authorities provided by

' 'pPila -a~nd 'the aracteriations-ciion6tained'iin-this MOU cdninot reduce or enlarge

such authorities."

In addition, the State suggests that the MOU include more specific citations to the EPA documents

granting'authority to the' State for Underground Injection Control (UIC) Program, and specifically

Class m UIC wells. In Section 1 of the MOU, the description of in situ' leach uranium extraction

facilities (i.e., ISL facilities) should clarify that extraction facilities, for purposes of this MOU, are

UIC Class m wells: These more specific citations would be very helpful for future reference. 'For

example, if the State's regulatory authority were ever called into question per the provisions of

Section 4.F of the MOU, then the EPA authorizing documents could be more readily identified.

Comparison of NRC and State Requirements

The phrases used to describe'the relative level of the NRC and State requirements need to be.

consistent and need to reflect that, while the State must be at least as stringent as the NRC, the

State may also be more stringent. In fact, because of the State's interest in' protection of water

rights and existing and potential ground water uses, the State requirements on ground water

protection have generally proven more 'stringent to date. Specific phrases of concern include:

--*- Section3.A, 1s'tence ei "...the State program for ound water piotection at ISL

facilities provides adequate protection' . . at least equivalent to the NRC program."

Section 3.A, last sentence: "...as long as the State is able to provide at least an equivalent

level of protection . . .

* Section 3.B: "...where the State program does not provide at least toe sQhe Ievel an

equivalent level protection as the NRC program."

' Section 4.E, last sentence: "'.'.to determine'whether the program and its implementation

remains at least equivalent to the' NRC's program."- ' ' : - -

* Section 4.F: "...2) the State is not providing at least an equivalent level of protection..."
Attachment I - Preliminary Comments

Draft NRC-WDEQ MOU j # .> at; it >; ;:. ., 

March2004 ;:. '

Page I-2

Also, as discussed at the previous NRC and WDEQ meetings listed in SECY 03-0186, it would be

helpful for NRC to prepare a draft "cross walk" of the provisions of NUREG-1569 ("Standard:.

Review Plan for In Situ Leach Uranium Extraction License Applications") and State documents.

(Copies of the State documents have been forwarded to NRC (letter of December 15, 2003 from R.

Hoy'(LQD)tJ'uhr(R).az ;- ,f,^ < .. .

Surface Facilities

------ Per-Item-3;C-, the-NRC-would- ritairriegulatidn of surfacejfacilities, including those-related towaste disposal. The WDEQ has specific concerns about sone of the suirface waste disposal,

facilities in the-State, including selenium contamination in "irrigation circles~' and grouind.water:

impacts fromileaky evaporation ponds.. The extent of NRC regulation of these. facilities needs to

be clarified, and the.WDEQ recommends that these concerns be discussed when the NRC reviews

the State program this summer. .

J;,.'1 t~s,(r....,.i:.1S .. .;~ .- .. *r *.i ... i. J -rme,....... -.. * ,. .'... -. * * - -: .::. 3 . . ., . . ................................... ., 1...J . i. ..... Financial.~.Issitrancesi,' §.i~it;;!~wJ .,~[.;!w i;i:;!. .{: -^, ; ,, -1 j..I

The use of a "single financial assurance instniment,':acceptable to both LQD and NRC, for a .ii

given mine has not been uncommon, and this instrument has usually been held by LQD. However,

one of the operators (Power Resources, Inc. (PRI)) now has three mines in the Statei. Within'about

the last year, the NRC has decided that there should be a single "instrument" for all three mines.

* The LQD does'notconider:this; approach advisable, or practical, in particular because LQD'sreclamation~bond covers items over which NRC dces not have authority (e.g., revegetation of

surface disturbance).:-Furtherm ore, this is les's an issue of "'reducing or eliminating active. - -

regulation and oversight" of a licensee than it is one of assuring there will be funding as needed for

the government to carry out site remediation or closure obligations if the licensee is no longer

available or solvent. Therefore, the following change is needed in Section 3.D:

"...a single §66 finana ssurance instrumeniit(sas nt.eded to meet NRs both parties'!

respective r and which shall be direcilW available to

each party if/when needed u,,de Sctio, 16Ix. of the Ato0 ini. EnIegy Actdof 194, ,i'

Qlledekl'' '. . *. .

NRCResumptionofActiveRegulation. ' a' i f . J. 'B'*

Section 4.F lists circumstances under which the NRC would consider it hecessary to resume active

regulation of ground water protection at in situ uranium mines. The third listed circumstance

t resume active regtion*"at therequest of ani lLli'ense'e".; Tooprevent an"ii

operator trolh "shopping" for less stringent regulaory 'reiuiriem'ents;, this item ieeds t be re'oved

from the list. (The other items in the list would then need to be renumbered.)
-ij'-Estf'K S *<# 

Attachment I - Preliminary.Comments : ,') '* ' '" .; 

Draft NRC-WDEQ MOU

March 2004

Page I-3

Access to State Records and Staff, ,. . A... -' . . _' i- .. .k;:i,

The proposed wording in Section 4.E on access to State records and'staffhneeds. tQ be revised as

follows:

The first sentence should read: "NRC will have access to public records which are' available under

-the-Wvoming-Public-Records-Act (W.S. 16-4-201 through 205).".. - -

With respect to staff; WDEQ staff will be "available" to NRC staff in Wyo-ning 'or by telephone

by mutual arrangement. While NRC does most of its business at its office in Marh'1and, NRC

should not-expect that the State staff willtravel to'the NRCoffice in Mairyand.} '; ; ..

In addition, given the size of some of the permits, it should be clarified that the operator, rather

than the State, will ultimately be responsible for providing any additional copies~to NRCGof.v

documents prepared by the operator. Also, given the increasing use of electronic media, protocols

>-~ - formutually acceptable el&ctroniciformats may need to betdeveloped in the futur& 6 ; .

- EPA andNRCReviews ' : ,;1 '.*te's .; .> . '.2 .,;: ). ".'_

;r^v;sf-A., .. . ::;;t .tt:;..i ri !.. ;,xi .: :.;.;, .A- y,!.Z-'........

:Z In Section 4.E., the basis forNRC's.review of-the State program needs fdbe-clarified.' In':

particular, the State program must also meet the requirements of-the.EPA's UIC~programi.;.f:

Therefore, the WDEQ recommends the following~chang6 tb'the proposed'languageW.

, ,.. .... i, , ';: ,'! .' ... .e''X' ' - '

'...NRC may will rely on the EPA review of its [Statels] ground-water protection program as

necessary" .. ...... - . ....-

In Section 4.G, we feel the responsibility for notification of UIC program recission is more

appropriately between sister federal agencies, and recommend the following change to the

proposed language: ;;, - -- -; ; .,

"...The State EPA shall notify the NRC if EPA ha notified the State State's

that-its EPA authorization for UIC permitting is in jeopardy of recission."-., ., ..

.Amendmentand Termination. -,. ' . ,,...,. i i:!*'> .' : I;a

The following sentence needs to be added to the section titled .'!Amendrnent and Termination,'";

particularly in view ofNRC's.suggestion inf Section 4.F, Item 3 (about which the State has serious

i,; .
- ;.-- I ..-

Attachment I - Preliminary Comments

Draft NRC-WDEQ MOU

March 2004

Page 1-4

- . , . , 4 , - ,

concerns) that NRC shall reinstate its own active regulation within the State "at the request of an

ISL licensee":

"No such termination shall invalidate or render ineffective any State action taken under this..

MOU prior to such termination."

Editorial Note

The last two sections in the Draft MOU ("Points of Contact" and "Amendment and Termination")

should be numbered Sections 5 and 6, respectively.

- ,i;t-Jo:; 2-. .. .......i.

, es :..i&';' -i' 'I .'};....' .i.:2- -- "

'.#.' if , .' ''- !, :.-,:; , : a. Di; ., -. 'JX(, ,. -: 1 ,.J

.. . . .. . . I ... ... . 1.

..

.. .. ,

. . . J " : : . .

, . . 1 . : _ .

.. I . . .

I : , !. ' '.; - .' . , I.

" .: : '