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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
BEFORE THE COMMISSION
In the Matter of ) Docket No. 40-9091-MLA ) STRATA ENERGY, INC., ) ASLBP No. 12-915-01-MLA-BD01 ) (Ross In Situ Recovery Uranium Project) ) February 19, 2016
NATURAL RESOURCES DEFENSE COUNCIL AND POWDER RIVER BASIN RESOURCE COUNCIL’S
NOTICE OF FILING On December 23, 2015, Strata Energy, Inc. submitted the enclosed request to amend
License Condition 10.12 for the above-captioned project (Attachment A). On February 17, 2016
Intervenors Natural Resources Defense Council and Powder River Basin Resource Council
submitted the attached response (Attachment B). Intervenors respectfully request that these
submissions be made part of the record in this proceeding.
Respectfully submitted,
/s/ Howard M. Crystal Meyer Glitzenstein & Eubanks LLC 4115 Wisconsin Ave., NW, #210 Washington, D.C. 20016 (202) 588-5206 [email protected]
Counsel for Natural Resources Defense Council, Inc.
Geoffrey H. Fettus Senior Attorney Natural Resources Defense Council, Inc. 1152 15th St., NW, # 300 Washington, D.C. 20005 Tel: (202) 289-6868 Fax: (202) 289-1060 Email: [email protected] Counsel for Natural Resources Defense Council, Inc.
Shannon Anderson Staff Attorney Powder River Basin Resource Council 934 N. Main St. Sheridan, WY 82801 Tel: (307) 672-5809 Fax: (307) 672-5800 Email: [email protected] Counsel for Powder River Basin Resource Council
ATTACHMENT A
December 23, 2015
U.S. Nuclear Regulatory CommissionATl-N: Document Control DeskOffice of Nuclear Material Safety and SafeguardsWashington, DC 20555-0001
Re: Strata Energy, Inc. Ross In Situ Recovery ProjectSource Materials License SUA-1601, Docket No. 040-09091Request to Amend License Condition 10.12
To Whom It May Concern:
Strata Energy, Inc. (Strata) recently completed activities associated with the preparation of theMine Unit 1 (MU1) WelIfield Data Package required by License Condition (LC) 10.13 .of SUA-1601.. During the~review and verification process.conducted by. NRC staff, the amended LC 1O.12language, contained, in Amendment. 1 of SUA-1601. as a result, of the Atomic Safety and.Licensing Board (ASLB) Init~ial.Decision in L BP-15-3, required significant clarification betweenNRC staff and Strata. The clarification necessary to allow NRC staff verification isdocumented inthe November. 2015 "Technical Evaluation Report, Materials License SUA-1 601, Verification ofMine Unit 1 Wellfield Package"' (TER,.MLI15324A441) and~associated correspondence. In orderto prevent future clarification issues, Strata is requesting that,:NRC amend. LC 10..12 to betterreflect NRC staff requirements and site-specific attributes of the Ross ISR Project. The followingprovides a brief technical discussion, existing LC 10.12 language, and proposed amendedlanguage for LC 10.12.
DISCUSSION
I. LBP-15-3 and the Revised IC 10.12 Language were Clearly Intended to AddressDownward Vertical Migration of Solutions in an Alternate Concentration Limit (ACL)Scenario
In 4.130 of LBP-15-3, the ASLB contemplated potential-impacts to the underlying~monitoringinterval (deep, monitor or ."!DM" zone) downgradient from. the production zones (ore zone or"OZ".) due to the uncertainty of declining concentrations of uranium in an ACL scenario decadesafter restoration.. In order, to address this concern, the-ASLB initial decision in LBP-15-3 and theresulting Amendment-1 to SUA-1601 require Strata~to attempt to locate ahd re-abandondowngradient historic drill holes that penetrate into the DM interval and. are a specifieddistance from the perimeter monitor well ring..That distance is the closer of the aquiferexemption boundary prescribed .from the EPA or the NRC license boundary. In :practice the
Request to Amend License Condition 10.12SUA- 1601Page 2
closer boundary will always be the aquifer exemption boundary, since it lies entirely within theNRC license boundary and beyond the perimeter monitor (PM) well ring. Strata interpreted theamended language to require re-abandonment of the drill holes that penetrate the DM intervalfrom the perimeter monitor well ring to the science-based aquifer exemption boundary, whichis 100 feet beyond the perimeter well ring. The Ross MU1 wellfield is the most upgradient ofthe Ross mine units, with several thousand feet to the downgradient project-wide aquiferexemption boundary. NRC staff interpreted the amended IC as requiring plugging of all historicdrill holes downgradient of MU1 to the overall Ross ISR Project aquifer exemption boundary.This interpretation required nearly 125 drill holes outside of the MU1 perimeter ring to be re-entered for abandonment. These drill holes were in addition to the 434 holes previously re-entered and re-abandoned in support of the MU1 Wellfield Data Package. The discussionsbetween NRC staff and Strata in three Category 1 public meetings and as documented in theTER required significant time as did the re-abandonment of these additional drill holes. In orderto clarify the intent of LC 10.12 Strata is requesting that NRC amend LC 10.12 in order to betteralign the NRC staff objectives in an ACL application scenario and site-specific conditionsencountered at the Ross ISR Project.
The revised language that Strata is requesting has been proposed by NRC staff as part of theAUC LLC, Inc. licensing process for the Reno Creek ISR Project (ML15323A358) and reflects NRCstaff requirements of a licensee in terms of protection of an underlying interval in a futurepotential ACL application.
Strata requests that NRC amend IC 10.12 as follows:
II. Current License Condition 10.12 with Strikethrough and Replacement Text IndicatingLanguage to be Revised:
Prior to conducting tests for a welifield data package, the licensee will attempt to locate andabandon all historic drill holes within:-A,• lthe perimeter well ring ̀ for the Wellfield; oi~*d R). Inaddition, Pto the extent the historic drill holes extend into the first underlying aquifer, thelicensee will attempt to locate and abandon all historic drill holes within an area that isdown gradient of the Well~field and is between the perimeter well ring ̀for the Well~field-end-the
and teanicipate ppoiaiant o epsre o ftr C plcto usatt 0CRPr 0
Appendix A, Criterion 5B(5)(c) eitheri. Prior to the start of operations of the Well~field proposed in the well~field data
package; orii. Prior to the submittal of an ACL application. If the drill holes are abandoned after the
start of operations of a wellfield, then the licensee will be required to attempt to
Request to Amend License Condition 10.12SUA-1601Page 3
verify the location of such drill holes prior to the start of operations of thot wellfieldand provide the cost to cover the eventual abandonment of the drill holes in itsfinancial assurance estimate.
The licensee will document such efforts to identify and properly abandon all drill holes inthe wellfield data package.
The requested amendment will meet the requirements of the ASIB initial decision whilepreventing future confusion regarding drill hole abandonment efforts. To support Strata'srequest, attached please find the following information:
* Completed Form 313, as required by 10 CFR Part 40 (Attachment 1)
* Supplement to Form 313 (Sections 5-11) (Attachment 2)
Please contact me if you have any questions. You can reach me at (307) 686-4066 ormgriffin @stratawyo.com.
Sincerely,Strata Energy, Inc.
Michael GriffinVice President of Permitting, Regulatory and Environmental Compliance
cc: Mr. John Saxton, NRC Project Manager - via emailEnclosures: As Noted
Attachment 1ROSS ISR PROJECT SUA-1601 SOURCE AND BYPRODUCT MATERIALS LICENSE AMENDMENT
REQU ESTNRC Form 313
INRC FORM 313 U.S. NUCLEAR REGULATORY COMMISSION(10-2015)10 CFR 30, 32, 33,3435, 36, 37, 39, and 40
APPROVED BY 0MB: NO. 3150-0120 EXPIRES: 12131/2015Estimated burden per response to comply with this mandatory collection request: 4.3 hours. Submittal of theapplication is necessary to determine thst the applicant is qualified and that adequate procedures exist toprotect the public health and safety. Send comments regarding burden estimate to the FOIA, Privacy, andtnformation Collections Brancth (T-5 F53), U.S. Nuctesr Regulatory Commission, Washington, DC 20555-0001,or by intemet e-mail to tnfocollects.Resource~nrc.gov, and to the Desk Officer, Office of Information andRegulatory Affairs, NEOB-10202, (31 50-0120), Office of Management and Budget, Washington, DC 20503. Ifsameans used to impose an information collection does not display a cunrently valid 0MB control number, theNRC may not conduct or sponsor, and a person is not required to respond to, the information collection.
APPLICATION FOR MATERIALSLICENSE
INSTRUCTIONS: SEE THE APPROPRIATE LICENSE APPLICATION GUIDE FOR DETAILED INSTRUCTIONS FOR COMPLETING APPLICATION.SEND TWO COPIES OF THE ENTIRE COMPLETED APPLICATION TO THE NRC OFFICE SPECIFIED BELOW. *AMENDMENTS/RENEWALSTHAT INCREASE THE SCOPE OF THE EXISTING LICENSE TO A NEW OR HIGHER FEE CATEGORY WILL REQUIRE A FEE.
APPLICATION FOR DISTRIBUTION OF EXEMPT PRODUCTS FILE APPLICATIONS WITH:
MATERtALS SAFETY LICENStNG BRANCHDIVIStON OF MATERIAL SAFETY, STATE, TRIBAL AND RULEMAKING PROGRAMSOFFICE OF NUCLEAR MATERIALS SAFETY AND SAFEGUARDSU.S. NUCLEAR REGULATORY COMMISSIONWASHINGTON, DC 20555-0001
ALL OTHER PERSONS FILE APPLICATIONS AS FOLLOWS:
IF YOU ARE LOCATED IN:
ALABAMA, CONNECTICUT, DELAWARE, DISTRICT OF COLUMBIA. FLORIDA, GEORGIA.KENTUCKY. MAINE, MARYLAND, MASSACHUSETTS, NEW HAMPSHIRE, NEW JERSEY,NEW YORK. NORTH CAROLINA, PENNSYLVANIA. PUERTO RICO. RHODE ISLAND, SOUTHCAROLINA. TENNESSEE, VERMONT. VIRGINIA, VIRGIN ISLANDS. OR WEST VIRGINIA,
SEND APPUICATIONS TO:
LICENSING ASSISTANCE TEAMDIVISION OF NUCLEAR MATERIALS SAFETYU.S. NUCLEAR REGULATORY COMMISSION, REGION I2100 RENAISSANCE BOULEVARD, SUITE 100KING OF PRUSSIA, PA 19406-2713
IF YOU ARE LOCATED IN:
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MATERIALS LICENSING BRANCHU.S. NUCLEAR REGULATORY COMMISSION, REGION III2443 WARRENVILLE ROAD, SUITE 210LISLE, IL 60532-4352
ALASKA, ARIZONA. ARKANSAS, CALIFORNIA, COLORADO. HAWAII. IDAHO, KANSAS,LOUISIANA, MISSISSIPPI, MONTANA, NEBRASKA, NEVADA, NEW MEXICO, NORTHDAKOTA, OKLAHOMA, OREGON, PACIFIC TRUST TERRITORIES, SOUTH DAKOTA, TEXAS,UTAH, WASHINGTON, OR WYOMING,
SEND APPUICATIONS TO:
NUCLEAR MATERIALS LICENSING BRANCHU.S. NUCLEAR REGULATORY COMMISSION, REGION IV1600 E. LAMAR BOULEVARDARLINGTON, TX 76011-4511
'IPERSONS LOCATED IN AGREEMENT STATES SEND APPLICATIONS TO THE U.S. NUCLEAR REGULATORY COMMISSION ONLY IF THEYWISH TO POSSESS AND USE LICENSED MATERIAL IN STATES SUBJECT TO U.S.NUCLEAR REGULATORY COMMISSION JURISDICTIONS.
1. THIS IS AN APPLICATION FOR (Check appropnate item) 2. NAME AND MAILING ADDRESS OF APPLICANT (Include ZIP code)[-] A. NWLCSEMike Griffin
[] P.O. Box 2318[ B, AMENDMENT TO LICENSE NUMBER SUA-1601 ..Gillette, W 21
D C. RENEWAL OF LICENSE NUMBER
3. ADDRESS WHERE UCENSED MATERIAL WILL BE USED OR POSSESSED 4. NAME OF PERSON TO BE CONTACTED ABOUT THIS APPLICATION
Mike Griffin
Ross ISR Project BUSINESS TELEPHONE NUMBER BUSINESS CELLULAR TELEPHONE NUMBER
2929 New Haven Road(3768 06Oshoto, WY 82721
BUSINESS EMAIL ADDRESS
SUBMIT ITEMS 5 THROUGH 11 ON 8-1/2 X 11" PAPER. THE TYPE AND SCOPE OF INFORMATION TO BE PROVIDED IS DESCRIBED IN THE LICENSE APPLICATION GUIDE.
S. RADIOACTIVE MATERIAL 16._PURPOSE(S) FOR WHICH LICENSED MATERIAL WILL BE USED.
a. Element and mass number: b. chemical and/or physical form: and c. maiximum amount 7.IDVUA()RSOIBEFRAITONAEYPOGMADTHRwhich will be possessed at any one time. TRAINDINGDEX(SERIESPNCIBE. FRRDAINSFT RGA N HI
8. TRAINING FOR INDIVIDUALS WORKING IN OR FREOUENTING RESTRICTED AREAS. 9. FACILITIES AND EQUIPMENT.
10. RADIATION SAFETY PROGRAM. 11. WASTE MANAGEMENT.
12. LICENSE FEES (Fees required only for new applications, with few exceptionsl [ AMOUNT(See 10 CFR 170 and Section 170.31) FEE CATEGORY ENCLOSED $
13. CERTIFICATION. (Must be completed by applicant) THE APPLICANT UNDERSTANDS THA TALL STATEMENTS AND REPRESENTATIONS MADE IN THIS APPLICA TION ARE BINDINGUPON THE APPLICANT.
THE APPLICANT AND ANY OFFICIAL EXECUTING THIS CERTIFICATION ON BEHALF OF THE APPLICANT, NAMED IN ITEM 2, CERTIFY THAT THIS APPLICATION IS PREPARED INCONFORMITY WITH TITLE 10, CODE OF FEDERAL REGULATIONS, PARTS 30, 32, 33, 34, 35, 36, 37, 39, AND 40, AND THAT ALL INFORMATION CONTANED HEREIN IS TRUE AND CORRECTTO THE BEST OF THEIR KNOWLEDGE AND BELIEF.WARNING: 18 U.S.C. SECTION 1001 ACT OF JUNE 25, 1948 62 STAT. 749 MAKES IT A C RIMINAL OFFENSE TO MAKE A WILLFULLY FALSE STATEMENT OR REPRESENTATION TOANY DEPARTMENT OR AGENCY OF THE UNITED STATES AS TO ANY MATTER WITHIN ITS JURISDICTION.
CERTIFYING OFFICER - TYPED/PRINTED NAME AND TITLE
Mike Griffin, VP--Permitting, Regulatory and EnvironmentalCompliance 1SIGNATURE
DATE
12-23-15
NI•U PURM ::$1:.$ (1U-•"U10)
Attachment 2ROSS ISR PROJECT SUA-1601 SOURCE AND BYPRODUCT MATERIALS LICENSE AMENDMENT
REQUESTNRC Form 313 Attachment
Items 5 Through 11
Applicant
Strata Energy, Inc.1900 W. Warlow Dr., Bldg. AGillette, Wyoming 82716
5. RADIOACTIVE MATERIAL:a) Element and Mass Number:
Uranium: Unat (U238, U234, and U235)b) Chemical and/or Physical Form:
Chemical form is UO4
Solution of 0 to 50 grams/literDried Yellowcake: 50% to 80% U
c) Maximum Amount which will be possessed at any one time:Unlimited
6. PURPOSE FOR WHICH LICENSED MATERIAL WILL BE USED:Fuel for electricity generation from nuclear power plants.
7. INDIVIDUAL(S) RESPONSIBLE FOR RADIATION SAFETY PROGRAM AND THEIR TRAININGEXPERIENCE:
Individual: Nikolas Roche, RSOTraining: Master's Degree in Health Physics from Colorado State University; three (3)
weeks of specialized training in information directly relevant to Uranium Recoveryfacilities; two (2) years of experience working at a uranium recovery facility at Cameco'sSmith Ranch-Highland site (2012-2013); currently Radiation Safety Officer for StrataEnergy, Inc. (2015-present).
8. TRAINING FOR INDIVIDUALS WORKING IN OR FREQUENTING RESTRICTED AREAS:This information is provided in detail in Section 5 of the approved License Application andsupplemental submissions.
9. FACLITIES AND EQUIPMENT:This information is provided in detail in Section 3 of the approved License Application andsupplemental submissions.
10. RADIATION SAFETY PROGRAM:This information is provided in detail in Section 5 of the approved License Application andsupplemental submissions.
11. WASTE MANAGEMENT:This information is provided in detail in Section 4 of the approved License Application and
supplemental submissions.
ATTACHMENT B
Meyer Glitzenstein & Eubanks LLP Washington, D.C. Office Colorado Office 4115 Wisconsin Avenue NW, Suite 210 245 Cajetan Street Washington, DC 20016 Fort Collins, CO 80524 Telephone (202) 588-5206 Telephone (970) 703-6060 Fax (202) 588-5049 Fax (202) 588-5049 [email protected] [email protected]
U.S. Nuclear Regulatory Commission ATl-N: Document Control Desk Office of Nuclear Material Safety and Safeguards Nuclear Regulatory Commission Washington, DC 20555-0001 John Saxton, Hydrogeologist Uranium Recovery Licensing Branch Division of Decommissioning, Uranium Recovery and Waste Programs Office of Nuclear Material Safety and Safeguards Nuclear Regulatory Commission Washington, DC 20555-0001
February 17, 2016
Re: Strata Energy’s December 23, 2105 Request To Amend Source Materials License SUA-1601
It has recently come to our attention that Strata Energy, Inc. (Strata or SEI) has submitted
a request to amend its source materials license for the Ross in-situ leach uranium mining project (Ross Project) in Crook County, Wyoming. See Strata Dec. 23, 2015 Letter (Strata Letter) (MLA ML16020A370).1 We are writing on behalf of the Intervenors in the Ross license proceeding – the Natural Resources Defense Council and Powder River Basin Resource Council – to strenuously object to the license amendment request. As explained below, the requested amendment would (a) run directly contrary to the Atomic Safety and Licensing Board’s (ASLB or Board) January 23, 2015 ruling on the Ross Project; (b) fundamentally undermine the rationale the Board provided in upholding the Supplemental Environmental Impact Statement (SEIS) conducted for the Project; and (c) vastly increase the risks the Ross Project poses to groundwater quality beyond the boundaries of the exempted aquifer. We urge you to deny the Amendment, or, at bare minimum, refer the matter to the ASLB, which is the only forum where a modification of the Board’s ruling – which is what Strata seeks – could be appropriately considered.
1 Available at https://adamswebsearch2.nrc.gov/webSearch2/main.jsp?AccessionNumber=ML16020A370
2
Background
In April, 2014, the Commission issued the Strata Materials License for the Ross Project.2 License Condition 10.12 provided that:
Prior to conducting tests for a wellfield data package, the licensee will attempt to locate and abandon all historic drill holes located within the perimeter well ring for the Wellfield. The licensee will document such efforts to identify and properly abandon all drill holes in the wellfield data package. The obvious import of this provision, as originally crafted by the Commission itself, was to insure that Strata makes a meaningful effort to locate and properly fill/abandon drill holes before it begins drilling and testing for its wellfield data package.
In challenging the environmental review conducted for the Ross Project, Intervenors
raised serious concerns with the limitations of this license condition. As pertinent here, those concerns centered on the adequacy of limiting the requirement to fill old boreholes to the perimeter well ring, or whether, instead, Strata should be required to find and fill boreholes beyond that ring. In particular, Intervenors were concerned that when contamination inevitably moves beyond the well ring during excursions, the existence of unfilled boreholes beyond the well ring would become a source of contaminant migration beyond the purported confined aquifer.
NRC Staff responded to these concerns by claiming it was unnecessary to fill those holes because any excursions would be detected and recovered before they move beyond the well ring, and therefore would not reach these boreholes. For its part, Strata argued that the depth of the holes, the fact that they have self-sealed over time, and differences between the pierzometric heads in the aquifers all make it unnecessary to do more than License Condition 10.12 requires.
The Board rejected Staff and Strata’s arguments, finding the existing license condition on filling boreholes inadequate. Characterizing the hundreds of unfilled boreholes as a “daunting challenge,” the Board found that Staff had “overly discounted the importance of the license condition requirement that SEI act to locate and properly abandon all historic drill holes . . . .” ASLB Opinion (LBP-15-3) (Jan. 23, 2015) at 4.127. The Board relied particularly on the fact that Strata and Staff attributed prior pumping test results to unplugged boreholes, finding that this showed the “possibility for the downward movement of fluids from the OZ into the DM aquifer.” Id. at 4.129.
To address this concern, the Board strengthened License Condition 10.12, requiring Strata to endeavor to locate and fill additional boreholes located downgradient of each wellfield and between the perimeter well ring and the aquifer exemption boundary. Thus, as amended, License Condition 10.12 reads:
2 Available at file:///C:/FIRM%20DOCUMENTS/HOWARD/NRDC/Strata/2016/FINAL%20LICENSE.pdf
3
Prior to conducting tests for a wellfield data package, the licensee will attempt to locate and abandon all historic drill holes within:
A) The perimeter well ring for the Wellfield; and
B) To the extent the historic drill holes extend into the first underlying
aquifer, the area that is downgradient of the Wellfield and is between the perimeter well ring for the Wellfield and the closer of either i. The Ross Project license area boundaries shown in figure 1.4-2 of
the approved license application; or ii. The outer boundary of the exempted aquifer as defined by the
Class III UIC permit issued by the Wyoming Department of Environmental Quality.3
The licensee will document such efforts to identify and properly abandon all drill holes in the wellfield data package.
Moreover, addressing Intervenors’ concern that these boreholes may not be filled in a
timely manner, the Board explained that this license condition requires that the process be completed “before SEI conducts the tests for a wellfield data package that SEI must finish prior to beginning facility operation,” recognizing that filling boreholes only after the contamination has occurred will be too little, too late. ASLB Op. at 4.128 n.65.4
On December 23, 2015 Strata requested that the Commission further amend License Condition 10.12. The Amended provision would read:
Prior to conducting tests for a wellfield data package, the licensee will attempt to locate and abandon all historic drill holes within the perimeter well ring for the Wellfield. In addition, to the extent the historic drill holes extend into the first underlying aquifer, the licensee will attempt to locate and abandon all historic drill holes within an area that is downgradient of the Wellfield and is between the perimeter well ring for the Wellfield and the anticipated point of exposure for a future ACL application pursuant to 10 CFR Part 40, Appendix A, Criterion 5B(5)(C) either i. Prior to the start of operations of the Wellfield proposed in the wellfield
data package; or
3 Although the revised License Condition refers to the Ross Project boundary, since the boundary of the exempted aquifer is always closer to the well ring than the project boundary, only the exempt aquifer boundary is relevant to the locations where boreholes must be filled. 4 Joint Intervenors have appealed aspects of the Board’s decision to the Commission, and the matter remains pending. On the other hand, neither Staff nor SEI elected to appeal this portion of the Boards’ decision – which, as explained below, may not be collaterally attacked through the guise of a “License Amendment.”
4
ii. Prior to the submittal of an ACL application. If the drill holes are
abandoned after the start of operations of a wellfield, then the licensee will be required to attempt to verify the location of such drill holes prior to the start of operations of that wellfield and provide the cost to cover the eventual abandonment of the drill holes in its financial assurance estimate.
The licensee will document such efforts to identify and properly abandon all drill holes in the wellfield data package.
Under the plain terms of this proposed Amendment, SEI will be permitted to fill fewer boreholes, and will be permitted to wait until long after the project is complete – when it is submitting its post-project remediation plan – to fill boreholes beyond the monitoring well ring.
Discussion
A. The Office of Nuclear Material Safety And Standards Has No Authority To Consider The Requested License Amendment.
If SEI was dissatisfied with the Board’s amendment of License Condition 10.12, it could – and should – have availed itself of its right to petition for Commission review under 10 C.F.R. § 2.341. Through that procedure it could have asked the Commission to reject the Board’s amended License Condition, which would have obviated the need for the Amendment Strata now seeks.5
Rather than avail itself of that opportunity to challenge the Board’s amendment,
however, SEI opposed Intervenors’ Petition for Review to the Commission by defending the Boards’ amendment of License Condition 10.12. Thus, in urging the Commission to reject Intervenors’ arguments that the project poses serious environmental risks, SEI stressed that, as regards the filling of abandoned boreholes, the Board “has modified this license requirement to include identified historic boreholes outside such perimeter monitor well network.” SEI Opp. To Pet. For Review at 16 (Mar. 16, 2015) (emphasis added).
Similarly, as to timing, in responding to Intervenors’ argument that License
Condition 10.12 does not require that all the boreholes be filled prior to operations, Strata relied on the Board’s conclusion that “the timetable for carrying out its provisions is clear” id. at 17 n.17 – i.e., that “the schedule for completing this endeavor [is that] it must be done before SEI conducts the tests for a wellfield data package that SEI must finish prior to beginning facility operation.” ASLB Op. at 94 n.65 (emphasis added).
5 Since the original license condition had no requirements for addressing boreholes beyond the monitoring well ring, it would not have been necessary to amend the requirements for those boreholes had the original license condition been re-imposed in the adjudicatory process.
5
Against this background, there is simply no procedural or practical basis for the Material Safety Office to consider SEI’s proposed license amendment, which would reduce the number of boreholes the Board found must be filled, and would permit filling of boreholes to be completed long after the Board determined they must be filled in order to protect against contaminant migration. SEI cannot be permitted to rely on the Board’s Amended License Condition in defending the Board’s decision to the Commission, while at the same time seeking to seriously weaken that condition. See, e.g., New Hampshire v. Maine, 532 U.S. 742 (2001) (applying judicial estoppel to bar party from taking a position contrary to its prior argument). Rather, any such amendment may only be presented in the adjudicatory process.
B. The Proposed License Amendment Runs Contrary To The Board’s
Rationale In Upholding The Environmental Review For The Project.
Even assuming arguendo that the Office of Material Safety And Standards had the authority to amend the License Condition imposed by the ASLB, doing so would fatally undermine the rationale for the Board’s decision upholding the environmental review conducted for the Ross Project. As noted, the Board acknowledged Intervenors’ concern that unfilled boreholes pose concrete risks of contaminant migration and concluded that the original license condition – which did not require filling any boreholes beyond the monitoring well ring – was insufficient to insure that the environmental impacts would remain as small as characterized in the SEIS. The Board purported to resolve that concern by both requiring certain additional boreholes be plugged, and by making clear this would occur before the drilling and operations that are going to inevitably release contamination into the groundwater.
SEI’s proposed amendment would undo both of these fundamental premises of the Board’s conclusion that the SEIS accurately characterized the environmental impacts of the project:
1. SEI’s proposed amendment as to which boreholes must be filled is confusing at best – relying on an “anticipated point of exposure for a future ACL application” as the outer limit on the location of boreholes that must be located and filled. What is clear from the accompanying discussion, however, is that this location will be well short of the aquifer exemption boundary the Board delineated as the outer limit for borehole location and filling. Indeed, as SEI explains, the amendment is necessary because the NRC Staff maintains that the Board’s Amended License Condition 10.12 requires locating and filling many more boreholes than SEI believes necessary. SEI Dec. 23, 2015 Letter at 2. Thus, while it is not at all clear precisely which location(s) SEI will choose as the “anticipated point of exposure for a future ACL application,” there can be no doubt that those locations will be well short of those under the Board’s Amended License 10.12. Since this, in turn, means that, were the new amendment granted, more boreholes will remain unlocated and unfilled, it follows that the amendment will pose the very kinds of additional environmental risks that led the Board to amend License Condition 10.12 in the first place. Put another way, under the Board’s ruling the SEIS cannot support the license amendment SEI seeks.
6
2. License Condition 10.12, as originally written and as amended by the Board, provides that boreholes will be located and filled “[p]rior to conducting tests for a wellfield data package.” As the Board explained, this language means that the boreholes must be located and filled “before SEI conducts the tests for a wellfield data package that SEI must finish prior to beginning facility operation.” ASLB Op. at 4.128 n.65 (emphasis added).
Recognizing how important it is that these holes be filled in a timely manner,
when the Board expanded the scope of which boreholes are included beyond the monitoring well ring, it required that the additional boreholes also be located and filled during the same relatively early time period.
SEIs proposed license amendment fundamentally undermines this requirement,
permitting SEI to delay filling the boreholes beyond the monitoring well ring until long after the entire operation has taken place, so long as it is “[p]rior to the submittal of an ACL application.” Thus, under SEI’s approach, during the ISL mining process – when contaminants will be deliberately released into the groundwater to extract uranium – none of the boreholes beyond the monitoring well ring need to be properly abandoned.
The premise of the Board’s requirement that boreholes be located and filled
beyond the monitoring well ring was that doing so would help insure that, during operations or relatively shortly thereafter, there was no pathway for contamination to move beyond the confined aquifer. Certainly, properly abandoning these boreholes only long after these operations are completed completely undermines the purpose of this requirement, since, under SEI’s approach, the boreholes may be filled long after they have allowed contamination to escape into the broader environment. Accordingly, this approach also cannot be reconciled with the Board’s conclusion upholding the SEIS.6
6 SEI’s proposed amendment also refers to plugging boreholes “[p]rior to the start of operations of the Wellfield proposed in the wellfield data package.” It is not clear why this deadline would be relevant given the alternative later deadline also included, but it bears noting that even this relatively earlier deadline would be long after the deadline imposed in License Condition 10.12 and by the Board, which, again, requires these efforts be completed “[p]rior to conducting tests for a wellfield data package.” The added “condition” that, if Strata elects to wait until after operations have commenced, it will still “attempt to verify the location of such drill holes” and provide sufficient funds to fill them later as part of “its financial assurance estimate” is also useless, since, again, simply insuring that they will be filled eventually does nothing to prevent them from becoming a source of contaminant migration during the ISL mining process.
7
C. The Proposed License Amendment Would Pose Serious Risks To The Environment.
Finally, as the foregoing amply demonstrates, SEI’s proposed amendment to License Condition 10.12 should be rejected because it poses substantial risks to the environment. As the Board recognized, unfilled boreholes have been found time and again to be a source of contaminant migration in ISL mining, including at the Ross site. Indeed, as recently as November 2015 SEI relied on an unfilled borehole to explain test results. See Nov. 17, 2015 Tech. Eval. Report at 4.7 It was in recognition of this concern that the Board strengthened License Condition 10.12 by requiring timely location and abandonment of drill holes beyond the monitoring network, so long as they were within the confined aquifer. SEI’s proposed amendment, by contrast, fundamentally undermines that additional requirement, limiting the scope of the boreholes that must be found and, even as to those, allowing them to be properly abandoned only long after they have served to allow the very contaminant migration the Board sought to protect against. Accordingly, even if you were to conclude you have the authority to grant the requested Amendment, and that you may do so regardless of the Board’s ruling, Intervenors urge you to reject the Amendment in order to protect the groundwater and environment which are at risk from this project, resources which would be at increased risk should SEI be permitted to save money by ignoring unfilled boreholes that will permit the very environmental pollutants SEI has obtained authority to introduce into the groundwater to migrate beyond the confined aquifer and pollute Wyoming waters.
* * *
For all the foregoing reasons we respectfully urge you to reject the License Amendment request. Please let us know if there is any further information we can provide.
Sincerely, Howard M. Crystal Geoff H. Fettus Shannon Anderson
7 Available at http://pbadupws.nrc.gov/docs/ML1532/ML15324A441.pdf
CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing NATURAL RESOURCES DEFENSE COUNCIL’S & POWDER RIVER BASIN RESOURCE COUNCIL’S NOTICE OF FILING in the captioned proceeding was served via the Electronic Information Exchange (“EIE”) to the Commission and all other parties on the 19th day of February 2016, which to the best of my knowledge resulted in transmittal of same.
/ (electronically signed) Howard M. Crystal Meyer Glitzenstein & Crystal 1601 Conn. Ave., NW, #700 Washington, D.C. 20009 (202) 588-5206 [email protected] Counsel for Natural Resources Defense Council, Inc.
Date: February 19, 2016
