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7 Regulation and Oversight of Uranium Mining, Processing, Reclamation, and Long-Term Stewardship Key Points • The activities involved in uranium mining, processing, rec- lamation, and long-term stewardship are subject to a variety of federal and state laws that are the responsibility of numerous federal and state agencies. • Because the Commonwealth of Virginia enacted a mora- torium on uranium mining in 1982, the state has essentially no experience regulating uranium mining and there is no existing regulatory infrastructure specifically for uranium mining. The state does have programs that regulate hard-rock mining and coal mining. • There is no federal law that specifically applies to uranium mining on non-federally owned lands; state laws and regulations have jurisdiction over these mining activities. Federal and state worker protection laws, and federal and state environmental laws variously apply to occupational safety and health, and air, water, and land pollution resulting from mining activities. • At present, there are gaps in legal and regulatory coverage for activities involved in uranium mining, processing, reclamation, and long-term stewardship. Some of these gaps have resulted from the moratorium on uranium mining that Virginia has in place; 223
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224 URANIUM MINING IN VIRGINIA others are gaps in current laws or regulations, or in the way that they are applied. Although there are several options for address- ing these gaps, the committee notes that Canada and the state of Colorado have enacted laws and promulgated regulations based on best practices that require modern mining and pro- cessing methods, and empower regulatory agencies with strong information-gathering, enforcement, and inspection authorities. In addition, best practice would be for state agencies, with pub- lic stakeholder involvement, to encourage the owner/operator of a facility to go beyond the regulations to adopt international industry standards if they are more rigorous than the existing regulations. • The U.S. federal government has only limited recent experi- ence regulating conventional1 uranium processing and reclama- tion of uranium mining and processing facilities. Because almost all uranium mining and processing to date has taken place in parts of the United States that have a negative water balance (i.e., dry climates with low rainfall), federal agencies have limited experience applying laws and regulations in positive water bal- ance (i.e., wet climates with medium to high rainfall) situations. The U.S. federal government has considerable experience at- tempting to remediate contamination due to past, inappropriate practices at closed or abandoned sites. • Under the current regulatory structure, opportunities for meaningful public involvement are fragmented and limited. 1 T his chapter discusses the laws, regulations, and policies—and the relevant federal agencies—that are applicable to uranium mining, processing, rec - lamation, and long-term stewardship. Because of Virginia’s moratorium on uranium mining, Virginia state agencies have not been permitted to develop a modern state-specific regulatory environment. However, to the extent possible, the Virginia agencies that might be involved in regulating mining, processing, and reclamation if the moratorium were to be lifted are identified. For purposes of comparison, brief information on the regulatory environment in Canada and Colorado are included (Boxes 7.1, 7.2). These two examples are noted here because they are situations where there has been ongoing and recent development 1 Conventional mining and processing includes surface or open-pit mining, or some combination of the two, and their associated processing plants, but excludes ISL/ISR uranium recovery.
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225 REGULATION AND OVERSIGHT of laws and regulations applicable to uranium mining, processing, reclamation, and long-term stewardship. While the committee considers that neither consti - tutes an ideal model regulatory environment, both illustrate the ongoing evolu - tion of a regulatory environment that either recognizes or drives the continuing development of best practices in the industry. The committee’s statement of task (Box 1.1) requires that it “review the state and federal regulatory framework for uranium mining, milling, process - ing, and reclamation” and review “best practices approaches.” The committee has interpreted this charge to be forward looking—to describe what is presently in place and to look to the future in its description of best practices for future regulation of any uranium mining, processing, and reclamation that may occur in the Commonwealth of Virginia. While acknowledging that U.S. federal and state agencies have had extensive experience in attempting to remediate sites that were contaminated by past poor practices, the report does not delve into these past practices nor does it focus on the applicable regulations and programs that address the remediation of such sites. For a number of reasons, the laws, regulations, and policies governing ura- nium mining, processing, reclamation, and long-term stewardship activities in the United States are neither well integrated nor transparent. Because of the way in which these laws, regulations, and policies were developed, gaps in coverage exist. First, the relevant laws and regulations were enacted or promulgated over the past 70 years, and were most commonly created after a crisis (e.g., uranium mill tail- ings contamination at early processing sites) or to address a particular situation, or contaminant, that is not unique to activities involving uranium mining, process- ing, reclamation, or long-term stewardship. Second, the missions of the agencies involved, and the laws they administer, vary considerably. The regulatory reach of the USNRC has traditionally been focused on radiological issues such as the use of the atom for energy generation and limitations on radiation doses to the public. In contrast, the USEPA’s mission is the prevention of pollution, and the protec- tion of public health and the environment through laws and regulations that are media-specific. Uncontrolled radiation releases are one source of environmental contamination requiring control. Worker safety and protection laws, such as the Mine Safety and Health Act and the Occupational Safety and Health Act, concen - trate on employee health and the elimation of workplace hazards. Third, the laws, regulations, and policies (especially for environmental protection) are media- or activity-specific, and as a result are spread across agencies and consequently are not integrated and can be incomplete. For example, the standards applicable to uranium in air are covered by a different law and different regulations than stan- dards applicable to uranium in water; and in the area of worker protection, three agencies share the responsibility to protect occupational health. In each of these situations, the rules for information sharing, public participation, and enforce - ment—it they exist at all—are different. Fourth, regulations promulgated for these activities have frequently been challenged in court, and the subsequent litigation
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226 URANIUM MINING IN VIRGINIA BOX 7.1 Regulatory Environment for Uranium-Related Activities in Canada Almost all uranium mining, processing, and reclamation activities (as well as other activities involving radionuclides) in Canada are under the jurisdiction of the Canadian Nuclear Safety Commission (CNSC). Canada’s Nuclear Safety and Control Act states, “Any work or undertaking constructed for the development, production or use of nuclear energy, or for the mining, production, refinement, conversion, enrichment, processing, possession or use of a nuclear substance … is declared to be a work or undertaking for the general advantage of Canada.” (Section 71) The CNSC is an independent, quasi-judicial executive agency. The Canadian Nuclear Safety and Control Act, which replaced a series of older Canadian laws dating back to the 1940s, established the CNSC in 2000. There are also other federal laws that apply to uranium mining, processing, and reclamation, including the Canadian Environmental Assessment Act and the Canadian Environmental Protection Act. As a result, CNSC employs a joint regulatory strategy—involving both Health Canada and Environment Canada—in decision making. Provincial laws also apply to uranium mining, processing, and reclamation. For example, provincial laws applicable to water use would apply to any mine that seeks to withdraw groundwater. In addition, provinces have the authority to regulate and monitor exploration activities. Environmental Assessment The Canadian Environmental Assessment Act requires that any project requir- ing a CNSC license must undergo an environmental assessment. The CNSC must review, and make a decision regarding, the environmental assessment (EA) before any project license is issued. The EA process is flexible, and the requirements depend upon the nature of the project. It is the responsibility of the CNSC to deter- mine the extent and nature of, and establish guidelines for, the EA. If a project is likely to have significant adverse environmental effects, a comprehensive study is likely to be required. If a project is deemed to have few or minor environmental and court decisions have affected the way that regulations have been written and interpreted. Fifth, the nature of cooperation and coordination between the state and federal governments varies by law and agency. The programs of states that have signed agreements with the USNRC (i.e., Agreement States) are provided technical assistance and are subject to review for their continued adequacy. 2 2 See http://www.nrc.gov/about-nrc/state-tribal.html; accessed November 2011.
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227 REGULATION AND OVERSIGHT impacts, a relatively simple environmental screening process is undertaken. How- ever, a screening-level assessment can be used for complex issues and can also lead to more extensive regulatory review. It is the responsibility of the applicant to carry out the technical studies re- quired by the assessment process. The applicant must consult with the public and A boriginal peoples about the project and its technical studies. The CNSC prepares the EA report, and has the discretion to hold a public hearing to make its final decision about whether the project can proceed. For comprehensive environmental assessment studies, a public consultation is mandatory. The CNSC must report to the federal minister of the environment re- garding the public input. A project can be referred by the CNSC or the environment minister to a review panel for further discussion in the event that public concerns are substantial, or potentially significant environmental consequences are possible. If a panel is established, a public hearing is required. The federal government pro- vides funding to facilitate public participation in the panel proceedings. The CNSC makes the final decision as to whether a project will proceed. After Approval and Licensing— Protecting Workers, Citizens, and the Environment Under the Canadian Environmental Protection Act, Environment Canada has classified as toxic all uranium and uranium compounds that are contained in efflu- ents from uranium mines and mills. However, the federal government has chosen to manage uranium and uranium compound risks under its Nuclear Safety and Control Act. A set of regulations has been promulgated under this act that cover uranium mines and mills. In addition, in describing the information required for licensing, these regula- tions place monitoring obligations on licensees, authorize inspections, and impose penalties for noncompliance. Additional regulations have been promulgated to protect workers and the public from radiation and other hazards. Every licensee is required to implement a radiation protection program, and the annual limit on public radiation exposure is 1 milliseivert. Lower doses than this regulatory standard are commonplace because licensees are required to ensure that the radiation dose is “as low as reasonably achievable” (ALARA). The CNSC has also established regulations regarding to the safe and secure transportation of radioactive materials such as yellowcake. Similarly, the programs of states with delegated authority from the USEPA are assessed under a state review framework that allows the USEPA to evaluate these programs consistently.3 In contrast, some state activities, such as the regulation of uranium mining on nonfederal lands, have no direct federal counterpart and therefore receive no comparable federal guidance and scrutiny. In addition, the 3 See http://www.epa.gov/compliance/state/srf; accessed November 2011.
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228 URANIUM MINING IN VIRGINIA BOX 7.2 Regulatory Process for Uranium Mining, Processing, and Reclamation in Colorado Colorado has a long history of metal mining, including uranium mining. Ura- nium mining in Colorado first began after the discovery of radium around the turn of the 20th century, and it continued until the discovery of a rich vein of uranium ore in the Congo in the 1920s. The uranium produced by this mine supplanted uranium from other sources, including from Colorado, and it was not until the 1930s and 1940s that uranium mining recommenced in earnest in the state. Uranium mining in Colorado accelerated in the 1940s with the expansion of the atomic weapons project as part of the war effort (Figure 7.1). The Manhattan Engineer District established an office in Grand Junction, Colorado, for uranium mining, extraction, and recovery; much of this early uranium processing occurred at abandoned metal mines. Considerable uranium ores coexist with vanadium in an area of Colorado known as the Uravan Mineral Belt, and mines in this area usually produce both uranium and vanadium. Today, the Uravan Belt contains over 1,200 historic mines that produced 63 million tons of uranium and 330 million pounds of vanadium from the late 1940s to the late 1970s (CO DRMS, 2011). Mining techniques used in the middle 20th century were very crude by today’s standards, and little attention was paid to waste disposal and reclamation. Mine FIGURE 7.1 Uranium mining by the U.S. Atomic Energy Commission in Colo- rado, 1958. Uranium mining expanded dramatically in the United States after World War II, from 38,000 tons in 1948 to 5.2 million tons in 1958— nearly all of it for nuclear weapons production. SOURCE: USDOE Office of Environ - mental Management.
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229 REGULATION AND OVERSIGHT sites were abandoned once ore veins were exhausted; tailings piles were left unprotected, and raffinate—wastewater from the processing facilities—was dis- carded as surface water.a These activities resulted in environmental pollution and potential population health risks. In addition, health and safety standards to protect workers were either nonexistent or not enforced. Miners were exposed to very high levels of radon, and lung cancer rates among uranium miners were much higher than rates of lung cancer in the general population. This was particularly the case with disadvantaged and Native American populations, for example, members of the Navajo nation. The mining and processing activities, especially those around Grand Junction, Colorado, created a legacy of pollution because of the use of uranium mill tail- ings as fill and for other purposes (Figure 7.2). Although uranium processing facilities were regulated by the Atomic Energy Commission following passage of the Atomic Energy Act in 1946, uranium mill tailings were not yet regulated under any federal or state laws. While the Grand Junction mines and processing facilities were active, tailings were used as fill for a number of purposes, including roadbeds, cement mixing, and home construction. As a result, radioactive pollution was a common problem, and over 4,000 residential and commercial properties FIGURE 7.2 Excavation of uranium mill tailings from a residential septic system, Grand Junction, Colorado, 1993. SOURCE: USDOE Office of Envi - ronmental Management.
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230 URANIUM MINING IN VIRGINIA BOX 7.2 Continued were contaminated and eventually needed remediation.b The problems in Grand Junctionc led to the passage of the Uranium Mill Tailings Radiation Control Act (UMTRCA) in 1978. Among other things,d UMTRCA expanded the definition of “byproduct material” to include uranium mill tailings, and required the U.S. Nuclear Regulatory Commission (USNRC) to regulate these tailings, clean up the tailings at inactive and/or abandoned mines, and set standards for active processing facilities. As of June 2011, Colorado has 34 licensed uranium mines; none of these mines is presently producing ore. One mill (Piñon Ridge) has recently been licensed in Colorado but is not yet processing ore. Several former mines and mills, including the Lincoln Park Mill and the Uravan Uranium Mine, were sued by the State of Colorado for natural resources damages and are now—or have been—listed on the National Priorities List (NPL) established by the USEPA under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund). Cleanup activities at these sites have been ongoing and expensive. The 680-acre Uravan site was first listed in 1986. The site has since been cleaned up, and the tailing cells have been closed and capped, but the site remains under a radioactive materials license and is still on the NPL.e Postclosure efforts to delist the site from the NPL are ongoing; once delisted, the site will be transferred to the U.S. Department of Energy (USDOE). The Lincoln Park Mill site sits on 2,600 acres of land and is owned by the Cotter Corporation. It is located about 1.5 miles from the Cotter Uranium Mill, which holds a uranium recovery license. The site was first listed on the NPL in 1984, and cleanup is still under way.f Both Uravan and Cotter Corporation will require Records of Decision for the CERCLA delisting process. Colorado’s Permitting and Licensing Processes Because Colorado is an Agreement State, the USNRC is not directly involved in licensing activities. The terms of its agreement with Colorado give the USNRC certain oversight and review functions. However, the state regulates—and has licensing authority for—uranium recovery operations such as in situ leaching/in situ recovery (ISL/ISR) and traditional uranium processing. The state requires a radioactive materials license for ISL/ISR mines, and its mine permitting pro- cess is under the jurisdiction of the Division of Reclamation, Mining and Safety (DRMS) of the Department of Natural Resources. ISL/ISR activities are regulated both by DRMS and the Colorado Department of Public Health and Environment (CDPHE). Colorado’s permitting and licensing procedures have evolved in parallel with technological advances in the mining industry and the recognition of the legacy of environmental problems from previous mines. Permitting of a uranium mine in Colorado requires numerous permits from the county, DRMS, and the Bureau of Land Management (on federal land), an environmental assessment,g an environ- mental protection plan, a stakeholder process, and bonding requirements. The Colorado Mined Land Reclamation Act of 1976 requires companies that are plan- ning to conduct uranium mining operations to file for a reclamation permit with the
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231 REGULATION AND OVERSIGHT state’s Mined Land Reclamation Board. The board carries out the mandates of the Mined Land Reclamation Act and works with the DRMS to implement reclama- tion laws and regulations. Recent amendments to the law established new rules to protect Colorado’s groundwater during in situ uranium mining and revised existing rules on information disclosure during prospecting activities.h Companies applying for a license to process uranium in Colorado undergo an application procedure that lasts at least 14 months.a First, the company must submit a radioactive materials license application and an environmental impact assessment (EIA) to the CDPHE Radiation Management Unit. Once the applica- tion is determined to be complete, the company must hold two public meetings to allow public comment on the application and the EIA. The relevant county may comment formally about perceived impacts to the community and environment, and local government may also have land-use or other regulations applicable to the project. County commissioners may request up to $50,000 from the appli- cant to review the EIA, and the commissioners’ comments on the EIA must be submitted to the CDPHE within 90 days of the first public meeting.i The CDPHE then determines whether the license is rejected, issued as requested, or issued with certain conditions. Additional hearings are held if the applicant challenges the license conditions. In addition to obtaining the Radioactive Materials License, the applicant is also required to obtain permits for (1) discharge to surface water or for surface runoff from disturbed areas and (2) emissions from the site and to control dust from construction activities. Piñon Ridge Facility License In January 2011, the CDPHE approved a license application by Energy Fuels Resources Corporation to begin constructing a uranium mill in Piñon Ridge, in the Paradox Valley of southwestern Colorado. The proposed mill would be the first uranium/vanadium mill built in the United States since the 1980s. Dur- ing the review process, CDPHE considered various technical documents and hundreds of stakeholder comments, as well as consulting with other regulatory agencies.j It produced an analysis of the applicant’s EIA that reviewed geologi- cal, hydrological, chemical, and radiological parameters; various potential social, economic, and transportation impacts; and the proposed offsets or mitigation to the impacts identified. The CDPHE analysis confirmed that the applicant met requirements to assess the impacts to waterways, groundwater, and public health, and adequately considered the long-term impacts of the licensed activi- ties and potential alternatives to those activities. In August 2011, the company requested permission from the CDPHE to defer its remaining financial assurance payments until March 2012. The CDPHE approved this request, and amended the company’s radioactive materials license to reflect a financial warranty of $11 million—to be paid prior to, and during, facility construction—for the decommissioning of the mill after it is closed.k The facility is designed to remain in operation for 40 years. CDPHE has continued to review and update the long-term care requirements to reflect changed cost estimates—which are based on a worst-case scenario—to ensure that the costs to implement the
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232 URANIUM MINING IN VIRGINIA BOX 7.2 Continued preapproved decommissioning and reclamation plan are not paid from taxpayer funds.k aPresentation by P. Egidi, Colorado Department of Public Health and the Environment, to the committee in Boulder, CO, March 23, 2011. bSee http://www.cdphe.state.co.us/hm/umtra/rpumtramgtplan.pdf. cSee, e.g., http://www.cdc.gov/niosh/ocas/pdfs/sec/gjoo/gjooer-175.pdf; accessed Septem- ber 2011. dUMTRCA also authorized the U.S. Environmental Protection Agency (USEPA) to set generally applicable environmental standards at uranium (and thorium) mill tailings sites and vicinity properties, which it did in 40 CFR Part 192. These standards apply at all such facilities that are licensed by the U.S. Nuclear Regulatory Commission (or an Agreement State). The USNRC’s authority over remediation of tailings and residual radioactive material at inactive sites extended only to sites that were active (licensed) at the time UMTRCA was enacted or thereafter. The 24 inactive mill tailings sites designated in Title I of UMTRCA were the sole responsibility of the U.S. Department of Energy and so remain. ehttp://www.cdphe.state.co.us/hm/rpuravan.htm. fSee http://epa.gov/aml/amlsite/npl.htm; accessed October 2011. gSee http://www.blm.gov/pgdata/etc/medialib/blm/co/field_offices/grand_junction_field/PDF. Par.16552. File.dat/WhirlwinMineEAfinal.pdf. hSee http://mining.state.co.us/UraniumMininginColorado.pdf. iSee http://www.cdphe.state.co.us/hm/rad/rml/recoveryregs.pdf; accessed October 2011. jSee http://www.cdphe.state.co.us/hm/rad/rml/energyfuels/index.htm; accessed October 2011. kSee http://www.cdphe.state.co.us/release/2011/082311.pdf; accessed December 2011. U.S. experience in uranium mining, processing, and reclamation over the past two decades has been limited, with little conventional uranium mining activity in the United States since the late 1980s. As noted in Chapter 4, in 2008 the United States accounted for less than 3 percent of worldwide uranium production. Chapter 3 also notes that there are currently five operating ISL/ISR plants in Texas, Nebraska, and Wyoming, and at least a dozen other ISL/ISR projects are being developed or are partially permitted and licensed. The U.S. Energy Information Administration reported that at the end of 2010, only one uranium conventional processing facility was operating in the United States, with three other existing mills on standby (USEIA, 2011a). Because of the geological environment of uranium occurrences in Virginia, the committee has concluded that ISL/ISR techniques are not appropriate for uranium recovery in the Commonwealth (see Chapter 3). In the following sections, the committee has focused on conventional uranium mining and processing and sought to describe as clearly as possible the system of laws, regulations, and policies that apply to underground and open-pit mining and conventional uranium processing, and to ancillary activities such as reclamation and long-term stewardship.
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233 REGULATION AND OVERSIGHT FEDERAL LAWS, REGULATIONS, AND POLICIES This section contains descriptions of the most significant federal laws, regu - lations, and policies that are applicable to uranium mining, processing, reclama - tion, and long-term stewardship, and notes the particular federal agencies that are charged with their implementation. Laws, regulations, and policies applicable to public participation and involvement are discussed at the end of this chapter in a separate section. As discussed in the chapter’s introduction, these laws, regula - tions, and policies are neither well integrated nor transparent. As a result, this patchwork of laws, regulations, and regulatory responsibilities creates problems and challenges. These include (1) an increase in the amount of time and resources that potential licensees must expend to understand the system so that they are able to apply for permits and licenses and to meet technical requirements; (2) consid - erable difficulty and barriers for members of the public who wish to understand and participate in the permitting and licensing processes; (3) coordination issues among state and federal agencies and staff; and (4) obtaining the necessary tech - nical expertise to understand both the radiological and nonradiological risks, and the requirements for their mitigation. Uranium Mining Under the Mining Law of 1872, as amended, mining on federally owned land is subject to federal regulation. This law requires that individuals who seek to mine on public land meet requirements regarding claim staking, maintenance, and patenting. Uranium mining authorized under the 1872 Mining Law must comply with the regulations of the federal agency managing the land; for example, the Department of Agriculture has established a series of requirements that apply in national forests. Agencies reviewing mine applications on federal lands must comply with the National Environmental Policy Act (NEPA), and, accordingly, it is likely that any mining on federal lands would require a full environmental impact statement (EIS) before a license to mine would be approved. There is no federal law that specifically applies to uranium mining on privately owned land, except for federal regulation of worker health and safety, and therefore Virginia would be responsible for regulating uranium mining activities on all nonfederal lands within the state.4 Although the federal government does not directly regulate uranium mining activities on lands that are not owned by the federal government, its laws regard - ing water pollution, air pollution, employee protection, and waste management do apply. The Clean Air Act (CAA) establishes a national emissions standard for 4In situ leaching/in situ recovery (ISL/ISR) is regulated by the USNRC or an Agreement State because it is treated as a joint mining and processing operation. As noted earlier, ISL/ISR is unlikely to be appropriate for uranium extraction in Virginia, and as a result, its coverage in this chapter is cursory and incomplete.
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Processing U.S. Nuclear Regulatory Regulates uranium recovery processes (e.g., uranium Programs can be relinquished to an Agreement Commission (USNRC) processing facilities) and activities at these facilities State such as worker health and safety USEPA Regulations cover water discharges, air discharges, Programs can be delegated to state land disposal, contamination cleanup Department of Labor, OSHA Regulations cover some on-site workers (not States can operate OSHA-approved plans (OSH miners) (workers in the processing facility, truck Act §18), but must operate under state law drivers, equipment operators); jurisdictional issues explaining how occupational and worker health are divided among USNRC, OSHA, and MSHA are described in a series of interagency memoranda of understanding and agreements MSHA Has authority to regulate processing along with the NRC; jurisdictional issues are spelled out in a series of interagency memoranda of understanding and agreements U.S. Department of Regulations cover transportation of chemicals, Transportation explosives, yellowcake Reclamation USEPA Authorities for cleanup (Resource Conservation RCRA program can be delegated; Superfund is not and Recovery Act [RCRA] and Comprehensive delegated to states; authorities unlikely to be used Environmental Response, Compensation, and unless there is a nonpermitted release from the site Liability Act (Superfund)) USNRC License termination process and issuance of general State or federal agency can obtain a general license license from the USNRC OSHA Workplace safety Long-term Federal or state government Assume site ownership Federal government or state government assumes stewardship (for sites with uranium ownership of processing sites with uranium mill processing facility tailings) tailings (see Uranium Mill Tailings Radiation Control Act (UMTRCA) § 202(a)(2)). aEarlier text provides a fuller explanation of this point. bSee http://www.epa.gov/radiation/tenorm/. 247
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248 URANIUM MINING IN VIRGINIA TABLE 7.3 Commonwealth of Virginia Agencies Involved in Mining and Related Activities and Their Areas of Jurisdiction Area of Jurisdiction/ Agency Regulation Statutory and Regulatory Authorities Department of Mines, Major regulatory Major agency for mining regulation Minerals and Energy authority for mining (VA DMME) operations Department of Labor Federal OSH Act, Major state-level agency for worker health and Industry Virginia worker safety and safety (VA DLI) laws Department of Water, air, waste Delegated authorities under Clean Water Environmental Quality permitting Act, Clean Air Act, Safe Drinking Water (VA DEQ) Act (SDWA), Resource Conservation and Recovery Act Department of Stormwater discharge Minor involvement, authorities assumed by Conservation and during mine VA DMME and/or VA DEQ once mining Recreation construction; natural starts (VA DCR) heritage program Department of Health Safe drinking water, Delegated authority from USEPA to (VDH) including private administer the federal SDWA; regulates drinking water wells; placement and construction of private wells source, byproduct, and but does not monitor their water quality. special nuclear material Virginia’s Agreement State program (which regulations (Agreement does not cover uranium processing facility State), excluding tailings) is administered by VDH. It is the uranium processing sole regulatory agency in Virginia with radiation expertise employees and an annual budget of approximately $20 million (Spangler, 2011). VA DMME includes a Division of Mineral Mining, which handles noncoal min - ing activities—primarily rock, sand, and gravel mining. The division’s workforce includes 10 inspectors and 2 supervisors. VA DMME has indicated that if the uranium mining moratorium were to be lifted, the regulatory program for the mining operation would closely follow the model that was developed for reviewing the exploratory permit that authorized the recent drilling program conducted at the Coles Hill site (Spangler, 2011). More specifically, VA DMME indicated that it would pool expertise from its office and other state agencies (especially those with expertise in drilling, groundwater control, and air contamination protection), and it would make use of other state and national programs, for example, by applying aspects of existing regulations regarding hard-rock mining to uranium mining.
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249 REGULATION AND OVERSIGHT Virginia’s hard-rock mining laws are set out in Title 45.1 of the State Code. Among other things, these laws require the issuance of a permit to mine before any activity is commenced, and a reclamation bond must be posted. According to the Virginia statutes, in applying for a permit to commence mining operations after exploration an applicant must • review all leases and deeds to procure rights of entry; • conduct a background assessment that reviews land use, as well as the historical and cultural value of the land; • assess any necessary restrictions or provisions for removing tracts of land from mining; • conduct public hearings to disseminate information and obtain input into the application; and • establish standards for postmining land use that are consistent with the surrounding land. In addition, the applicant must demonstrate financial surety, and the finan - cial assurance must encompass all site activities and include postmining closure (Spangler, 2011). Once mining and other activities commence, the Common - wealth will inspect for compliance and safety, and additional inspections will take place in the event of an accident and/or worker injury. The VA DMME has the authority to issue closure orders and other orders to mine operators, but cannot assess civil penalties for health and safety violations. In 2009, VA DMME reported that mining resulted in the removal of 56 mil- lion tons of minerals (Spangler, 2011).25 In addition to the mining itself, VA DMME’s Division of Mineral Mining also administers the reclamation regula - tions for mineral mining sites (Virginia Administrative Code, Title 4, Agency 25, Chapter 31). These regulations specify, for example, performance bond require - ments, stabilization and revegetation procedures, and drainage and sediment control. Department of Labor and Industry Like VA DMME, the Department of Labor and Industry (VA DLI) comes under the jurisdiction of the Secretary of Commerce and Trade. VA DLI enforces the regulatory standards established in the federal Occupational Safety and Health Act (OSH Act) as well as state worker protection laws.26 Between 2000 and 2010, Virginia had five fatalities in its noncoal mining industry.27 VA DLI conducts 25 Currently, there is no metal mining in Virginia, although metal mining has been carried out in the past. These figures represent mining in sand, gravel, and crushed stone. 26 See http://www.doli.virginia.gov/vosh_enforcement/vosh_standards.html; accessed May 2011. 27 See http://www.msha.gov/stats/charts/Allstates.pdf; accessed September 2011.
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250 URANIUM MINING IN VIRGINIA unplanned safety and health enforcement inspections in response to accidents, employee complaints, and referrals, as well as planned inspections in special- emphasis inspection programs and randomly scheduled inspections of high- hazard industries.28 One of OSHA’s special-emphasis programs is trenching and excavation. Department of Environmental Quality The Department of Environmental Quality (VA DEQ) comes under the jurisdiction of the Secretary of Natural Resources. Among other things, VA DEQ is responsible for water permitting (process wastewater and stormwater run-off from industrial activities) (Paylor, 2011; 9 VAC 25-31-10 and 40 CFR Part 440), air permitting, and RCRA permits. The VA DEQ also coordinates implementa - tion of Virginia’s environmental impact review requirement (Code of Virginia § 10.1-1188). State agencies are required to conduct an environmental impact review for the construction of state facilities whose cost is greater than or equal to $500,000. In addition, exploration for, and extraction of, minerals on state- owned lands require EISs. VA DEQ sets water discharge limits using both water quality criteria and technology-based standards. In Virginia, water quality criteria are classified in three Tiers (I, II, and III) based on the quality of the receiving waters. Tier III is composed of “no-discharge” waters—absolutely no discharge is allowed. Tier II waters are high-quality waters where strict discharge standards are set; for exam - ple, the waters surrounding the Coles Hill site are Tier II waters. Tier I waters are less pristine. Water quality criteria are established using a mass balance and worst-case scenario assumptions (Paylor, 2011). The water quality criteria would apply to discharges of radionuclides (limits would be set at criteria for public water sources) and metals, including zinc, arsenic, copper, and selenium, as well as other potential contaminants. Under Virginia’s delegated authority under the CWA, mines and processing facilities that discharge to state waters must obtain a National Pollutant Discharge Elimination Permit. The permit requires that monitoring be conducted twice a year for specific pollutants determined by the type of ore mined. Virginia has committed to a policy of antidegradation of groundwater quality, which states if the concentration of any constituent in groundwater is less than the limit set forth by groundwater standards, the natural quality for the constituent shall be maintained; natural quality shall also be maintained for all constituents, includ - ing temperature, not set forth in groundwater standards. If the concentration of any constituent in groundwater exceeds the limit in the standard for that constitu- 28 See http://www.doli.virginia.gov/whatwedo.html; accessed May 2011.
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251 REGULATION AND OVERSIGHT ent, no addition of that constituent to the naturally occurring concentration shall be made. Variance to this policy shall not be made unless it has been affirma - tively demonstrated that a change is justifiable to provide necessary economic or social development, that the degree of waste treatment necessary to preserve the existing quality cannot be economically or socially justified, and that the present and anticipated uses of such water will be preserved and protected. (Virginia Code § 62.1-44.4) Current groundwater quality standards set no specific limit for uranium, but limits are set for the uranium daughters radium-226 and radium-228. Complete listing of the groundwater quality standards and groundwater criteria are provided in Tables 7.4 to 7.6). Department of Conservation and Recreation Like VA DEQ, the Department of Conservation and Recreation (VA DCR) comes under the jurisdiction of the Virginia Secretary of Natural Resources. VA DCR plays a minor role in regulating mining operations. It maintains jurisdiction over stormwater discharges during construction activities and oversees local soil erosion and sediment control programs, which include conducting inspections during construction. Stormwater management is transferred to VA DMME and VA DEQ when mining operations start.29 VA DCR also administers the Common- wealth’s natural heritage program. Department of Health The Department of Health (VDH) operates under the jurisdiction of the Sec - retary of Health and Human Resources. VDH enforces regulations and standards under the Virginia Public Water Supply law (Code of Virginia §§ 32.1-167 et seq.) and the federal SDWA. Its responsibilities include regulating aspects of private drinking water wells related to design, construction, and placement of wells, but do not include monitoring requirements. The Division of Radiological Health within VDH has responsibility for regulating all machine sources of radiation (e.g., x-ray machines, particle accel - erators) and all radioactive sources except uranium mines or processing facilities, performing radiation monitoring around certain fixed nuclear facilities in Virginia (i.e., the North Anna and Surry nuclear generating stations and Babcock and Wilcox nuclear operations group), maintaining a radiological emergency response team, maintaining a radon program to advise citizens about this health hazard, maintaining a radiation laboratory, and updating regulations regarding radiation. 29 Presentation by D. Johnson, Virginia Department of Conservation and Recreation, to the commit - tee in Richmond, February 7, 2011.
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252 URANIUM MINING IN VIRGINIA TABLE 7.4 Groundwater Standards Applicable in the Commonwealth of Virginia Constituent Concentration Units Sodium 270 mg/L Foaming agents as methylene blue active substances 0.05 mg/L Petroleum hydrocarbons 1 mg/L Arsenic 0.05 mg/L Barium 1 mg/L Cadmium 0.0004 mg/L Chromium 0.05 mg/L Copper 1 mg/L Cyanide 0.005 mg/L Lead 0.05 mg/L Mercury 0.00005 mg/L Phenols 0.001 mg/L Selenium 0.01 mg/L Silver None Zinc 0.05 mg/L Chlorinated hydrocarbon insecticides Aldrin/dieldrin 0.003 μg/L Chlordane 0.01 μg/L DDT 0.001 μg/L Endrin 0.004 μg/L Heptachlor 0.001 μg/L Heptachlor epoxide 0.001 μg/L Kepone None Lindane 0.01 μg/L Methoxychlor 0.03 μg/L Mirex None Toxaphene None Chlorophenoxy herbicides 2,4-D 0.1 mg/L Silvex 0.01 mg/L Radioactivity Total radium (Ra-226 + Ra-228) 5 pCi/L Radium-226 3 pCi/L Gross beta activitya 50 pCi/L Gross alpha activity (excluding radon and uranium) 15 pCi/L Tritium 20,000 pCi/L Strontium-90 8 pCi/L Manmade radioactivity, total dose equivalentb 4 mrem/yr NOTE; mg/L = milligrams per liter; μg/L = micrograms per liter; pCi/L = picocuries per liter; mrem/yr = millirem per year. aThe gross beta value shall be used as a screening value only. If exceeded, the water must be analyzed to determine the presence and quantity of radionuclides to determine compliance with the tritium, strontium, and manmade radioactivity standards. bCombination of all sources should not exceed total dose equivalent of 4 mrem/yr. SOURCE: 9 VAC 25-280-40.
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253 REGULATION AND OVERSIGHT TABLE 7.5 Groundwater Standards Applicable in the Commonwealth of Virginia by Physiographic Province Concentration Piedmont & Cumberland Constituent Coastal Plain Blue Ridge Valley and Ridge Plateau pH 6.5-9 5.5-8.5 6-9 5-8.5 Ammonia nitrogen 0.025 mg/L 0.025 mg/L 0.025 mg/L 0.025 mg/L Nitrite nitrogen 0.025 mg/L 0.025 mg/L 0.025 mg/L 0.025 mg/L Nitrate nitrogen 5 mg/L 5 mg/L 5 mg/L 5 mg/L SOURCE: 9 VAC 25-280-50. TABLE 7.6 Groundwater Criteria Groundwater Criteria by Physiographic Province (mg/L) Piedmont & Cumberland Constituent Coastal Plain Blue Ridge Valley and Ridge Plateau Alkalinity 30-500 10-200 30-500 30-200 Total dissolved solids 1,000 250 500 500 50a Chloride 25 25 25 Sulfate 50 25 100 150 Total organic carbon 10 10 10 10 Color 15 15 15 15 Iron 0.3 0.3 0.3 0.01-10 Manganese 0.05 0.05 0.05 0.01-0.5 100a Sodium 25 25 100 1.4b Fluoride 1.4 1.4 1.4 Hardness 120 120 300 180 NOTE: Because natural groundwater quality can vary greatly from area to area for these constituents, enforceable standards were not adopted. These criteria are intended to provide guidance in preventing groundwater pollution. Groundwater criteria are not mandatory. aIt is recognized that naturally occurring concentrations will exceed this limit in the eastern part of the Coastal Plain, especially toward the shoreline and with increased depth. bExcept within the Cretaceous aquifer, concentration up to 5 mg/L and higher. SOURCE: 9 VAC 25-280-70. Regulatory Program Funding and Resources Regulatory programs at the state level are supported by fees that are assessed on regulated industries. The fee structure is created to recover the cost of resources expended for implementing a regulatory agency’s responsibilities, including staffing, training, and equipment. Since regulations must be developed prior to collecting fees, the initial development of regulations is usually not covered by fees, and if the uranium mining moratorium were to be lifted, then
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254 URANIUM MINING IN VIRGINIA the Virginia legislature would need to provide an appropriation to the regulatory agencies involved so that they could develop the expertise to write, implement, and enforce the regulations. PUBLIC PARTICIPATION IN THE REGULATION OF URANIUM MINING, PROCESSING, AND RECLAMATION Because of concerns about the off-site effects—negative or positive—of uranium mining and processing facilities on human and environmental health and welfare, members of the public often express interest in participating in the regulation of such facilities. Requirements for public participation—the two-way exchange between regulators and the public in advance of regulatory decisions so that the public can receive information and make comments—apply to both federal and state regulatory processes. Opportunities under the current regulatory structure for public participation in the regulatory process for uranium mining and processing facilities are offered during the promulgation of regulations of general applicability, the licensing of particular facilities, and the development and approval of postclosure plans for facility reclamation and long-term stewardship. Public Participation in Federal-Level Regulatory Decisions Public participation in federal actions regarding uranium mining and process- ing is governed by various federal laws and regulations, including the Administra - tive Procedure Act (5 USC Chapter 5, Subchapter II), the National Environmental Policy Act (42 USC Chapter 55) (NEPA), and agency-specific laws and regula- tions. NEPA is often the statute that triggers the most substantial public input. As noted elsewhere in this chapter, the regulations of several agencies come into play with uranium mining and processing, and the formulation of these regula - tions would be required to adhere to federal public participation requirements. For surface or open-pit mining on nonfederal lands, there is no federal requirement for an environmental impact analysis and no federal requirement for public participation. When considering a license application for an ISL/ISR process, or for a facility that will process uranium ore from an open-pit or a sur- face mining operation, the USNRC has public participation provisions for both the licensing process itself and the accompanying environmental review. In the prelicensing stage, members of the public are notified through various means, including the Federal Register, press releases, and local advertisements, that a license application has been received. If local interest is strong, the USNRC may hold public meetings in the vicinity of the proposed facility. 30 The degree of public participation allowed in a USNRC public meeting ranges from primar- 30 See http://www.nrc.gov/about-nrc/regulatory/licensing/pub-involve.html .
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255 REGULATION AND OVERSIGHT ily observational to open discussion, depending upon the type of meeting; with major licensing applications, the USNRC also may post an opportunity to request a hearing. A new major facility such as a uranium processing facility is also, as noted elsewhere in this report, subject to the requirements of NEPA. Typically, an envi - ronmental assessment (EA) is prepared first. The EA is a preliminary document that summarizes the potential environmental impacts to briefly provide sufficient evidence and analysis to help determine whether to prepare an EIS or a finding of no significant impact. If the EA indicates that the proposed facility could have a significant effect on the environment, a full EIS is then developed. USNRC regulations require that the USNRC conduct an EIS for all uranium processing facility licensing actions. The USNRC is thus required to hold public meetings, including open scoping meetings. These meetings are held in the vicinity of the facility; they provide information to members of the public and an opportunity for them to express their opinions, and they serve as a means to help the USNRC identify issues to be addressed in the EIS. Public Participation in State-Level Regulatory Decisions Public participation in state-level agency decisions is governed by the Virginia Administrative Process Act (Code of Virginia, Title 2.2, Chapter 40). In formulating regulations, this act specifies that each agency shall develop guide - lines for soliciting the input of interested parties and that the agency, pursuant to its guidelines, “shall afford interested persons an opportunity to submit data, views, and arguments, either orally or in writing to the agency, to include an on- line public comment forum on the Virginia Regulatory Town Hall, or other spe- cially designated subordinate” (§ 2.2-4007.02). The Virginia Regulatory Town Hall31 is a Web-based means for agencies, boards, and secretariats to provide information on upcoming regulatory changes and for members of the public to submit comments electronically. The Administrative Process Act also specifies that agency guidelines are to set out any methods in addition to a “Notice of Intended Regulatory Action” for identifying and notifying interested parties, as well as a general policy for using standing or ad hoc advisory panels and for consulting with interested groups and individuals. The act does not speak directly to public participation in regulatory decisions regarding particular cases. Regarding prospective public participation in permitting uranium mining facilities, the current practices of the Division of Mineral Mining (DMM) within VA DMME are relevant. Under state law (Code of Virginia § 45.1-184.1), an applicant to DMM for a new mineral mining permit must identify and notify adjacent landowners within 1,000 ft of the proposed facility boundary. According to DMM, no notification is required for a permit renewal or an expansion of the 31 See http://townhall.virginia.gov/.
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256 URANIUM MINING IN VIRGINIA original acreage.32 The notified property owners then have 10 days to file written objections with the DMM director and/or request a public hearing regarding the proposed operation. According to DMM, the hearing is an informal “information gathering” forum in which people attending may present comments as well as evidence. The hearings officer then makes a written recommendation regarding the permit to the DMM director. Based on this recommendation and any addi - tional information pursuant to the hearing, the DMM director issues a final order on the permit. This final order may be appealed to civil court in the city or county where the mine is located. FINDINGS AND KEY CONCEPTS The committee’s analysis of the existing regulatory environment applicable to uranium mining and processing in Virginia has produced the following findings: • The activities involved in uranium mining, processing, reclamation, and long-term stewardship are subject to a variety of federal and state laws that are the responsibility of numerous federal and state agencies. • Because the Commonwealth of Virginia enacted a moratorium on ura- nium mining in 1982, the state has essentially no experience regulating u ranium mining and there is no existing regulatory infrastructure specifically for uranium mining. The state does have programs that regulate hard-rock mining and coal mining. • There is no federal law that specifically applies to uranium mining on non-federally owned lands; state laws and regulations have jurisdiction over these mining activities. Federal and state worker protection laws, and federal and state environmental laws, variously apply to occupational safety and health, and air, water, and land pollution resulting from mining activities. • At present, there are gaps in legal and regulatory coverage for activities involved in uranium mining, processing, reclamation, and long-term steward- ship. Some of these gaps have resulted from the moratorium on uranium mining that Virginia has in place; others are gaps in current laws or regulations, or in the way that they are applied. Although there are several options for address- ing these gaps, the committee notes that Canada and the state of Colorado have enacted laws and promulgated regulations based on best practices that require modern mining and processing methods, and empower regulatory agencies with strong information-gathering, enforcement, and inspection authorities. In addi - tion, best practice would be for state agencies, with public stakeholder involve - ment, to encourage the owner/operator of a facility to go beyond the regulations to adopt international industry standards if they are more rigorous than the exist - ing regulations. 32 See http://www.dmme.virginia.gov/dmm/permitting&licensing.shtml .
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257 REGULATION AND OVERSIGHT • The U.S. federal government has only limited recent experience regu- lating conventional33 uranium processing and reclamation of uranium mining and processing facilities. Because almost all uranium mining and processing to date has taken place in parts of the United States that have a negative water balance (i.e., dry climates with low rainfall), federal agencies have limited experience applying laws and regulations in positive water balance (i.e., wet climates with medium to high rainfall) situations. The U.S. federal government has considerable experience attempting to remediate contamination due to past, inappropriate practices at closed or abandoned sites. • Under the current regulatory structure, opportunities for meaningful public involvement are fragmented and limited. Key points in the regulatory process for public participation include (1) the promulgation of regulations of general applicability, (2) the licensing of particular facilities, and (3) the devel - opment of postclosure plans for facility reclamation and long-term stewardship. Regarding (1), the current regulatory structure requires that members of the pub - lic who are interested in prospective uranium mining and processing in Virginia be aware of and respond to rulemaking by several different state and federal agencies. The Virginia Regulatory Town Hall could provide an online means of coordinating information and opinion exchanges about upcoming state-level regulatory changes pertinent to mining, but at present the Regulatory Town Hall does not offer transparent cross-agency coordination by topic. Regarding (2), the Division of Mineral Mining’s explicit opportunities for public participation in licensing a mining facility currently are limited to adjacent landowners. The USNRC has a more robust approach to public participation in licensing a uranium processing facility. Its regulations require the USNRC to conduct an EIS, during which prelicensing public meetings or hearings will be held in the vicinity of the proposed facility. Regarding (3), there is no evidence at present that members of the public would be included in deliberations about postclosure plans at the time those plans would be implemented. 33 Conventional mining and processing includes surface or open-pit mining, or some combination of the two, and their associated processing plants, but excludes ISL/ISR uranium recovery.