The goal of any reclamation plan is to "design tailings so that seepage of toxic materials into the groundwater system is eliminated or reduced."(35) Currently, Atlas has a groundwater program in place which does not meet this standard, nor standards set forth by the State of Utah or the NRC. In fact, Atlas Corporation's plan does not include an updated long-term (over 200 years according to ORNL) groundwater corrective action plan. Both the NRC and the FWS have agreed that the old corrective action plan needs to be "revisited." An NRC official stated that "Atlas should look at ways of accelerating the cleanup of current contamination in the groundwater." (36) Because the NRC is not requiring an updated groundwater action plan as part of the current surface cleanup plan and Atlas has not proposed one, the cost and problems of groundwater cleanup have also been ignored.(37) The NRC dismisses its own requirement for a groundwater plan in its evaluation report by stating, "Criteria 5, 7, and 13 concern groundwater protection. As previously discussed, groundwater is being addressed under separate licensing actions. However, groundwater protection standards at the site will be in accordance with these criteria."(38)
The groundwater feeds into the Colorado River, contaminating it with radioactive uranium and other toxins. The river is the source of drinking water for approximately 25 million people (7% of the U.S. population) in Arizona, Nevada, and Southern California.
2. Alternate Concentration Limits Threaten Endangered Species
The NRC's solution to Atlas's problem is to weaken regulations and offer "alternative concentration limits." That the NRC is preserving its option to grant Atlas Corporation exemptions from compliance with the NRC's own environmental standards exemplifies the NRC's extensive acquiescence.
However, the FWS has challenged the NRC suggestion to create alternate contaminate concentration limits specifically for the Moab site, stating, "Alternate concentration limits [ACLs] may not be strict enough to avoid the Endangered Species Act section 9 (harm) standard protective of endangered species."(39)The FWS concluded that the Atlas plan would jeopardize the continued existence of four endangered species which have habitats in the Colorado River near the tailings pile:
- "It is the Service's biological opinion that the action, as
proposed [capping the tailings pile on-site], is likely to jeopardize
the continued existence of the razorback sucker, humpback chub,
bonytail chub and Colorado squawfish [Colorado white salmon], and is
likely to destroy or adversely modify designated critical habitat."
(40)
In other words, if the NRC permits ACLs for the Atlas Corporation site, it will allow pollution above accepted standards. ACLs are at the regulatory discretion of the NRC and must be shown to be "as low as is reasonably achievable."(41) The NRC argues that any allowance of ACL's are permitted under its regulations as long as they conform to EPA standards.
Ammonia is one pollutant for which the EPA does not provide a maximum concentration limit and therefore is limited only by what the NRC deems to be "as low as reasonably achievable." Ammonia concentrations, a clear marker of mill contamination, rose by a factor of 166 at sampling sites in the Colorado River. Water level data from the tailings pile suggests concentrated ammonia will continue to seep into the groundwater.(42) While ammonia is the major constituent affecting endangered fish, the NRC may decide to approve ACLs for ammonia. FWS fears ACLs may be high enough to adversely impact endangered fish.(43)
While the granting of ACLs are at the discretion of the NRC, the FWS could limit their use depending on the ACL's impact on endangered species in the Colorado River. The FWS has stated on the record that it will fight any such alternate limits and has pleaded with the NRC to deny any such increase. "The NRC shall deny all requests for alternate concentration limits, and exceptions thereto, at the site unless prior concurrence is obtained from the Service [FWS] that the alternate concentration limit or exception will not 'harm' listed species."(44) (emphasis added)
Atlas's estimates for the cost of capping and groundwater clean-up continue to increase. In 1979, the Atlas Corporation estimated that on-site reclamation would cost $3.3 million in 1977 dollars. (45) In 1996, the Atlas Corporation updated the on-site estimate to cost between $13 million and $16 million in 1996 dollars.(46) However, in its most recent annual report to stockholders, Atlas shows that capping the pile in place will be a liability of up to $22 million -- an amount nearly 50% over their last estimate.(47)
Clearly, the amount set aside by Atlas -- a surety of $6.5 million -- will not be enough to cover the minimal-cost clean-up effort. There have also been additional costs that have not even been considered in Atlas's plan.
The first additional major clean-up issue involves the water which has accumulated in the pile over the years. This water needs to be drained to a level which ensures an end to the leakage of contaminates into the groundwater table.(48)
The second involves a newly discovered source of uranium contamination on Atlas Corporation's Moab site, which was discovered by ORNL and will have to be reclaimed.(49) Proper clean-up of this second contamination area will entail reclamation of more than a hundred acres not accounted for in Atlas Corporation's cost estimates.
DOE also believes that, "groundwater problems are often unpredictable. . . .The impact of unanticipated groundwater problems on costs can be substantial."(50) As Atlas has not yet provided its groundwater plan, its costs have not been considered.
Capping in place as a short term solution also adds some financial disincentive to pursuing a more thorough remedy down the line:
- "Capping the pile in place would require an immediate commitment
of $20 to $40 million in financial resources, hereby creating a strong
disincentive to moving the pile, even if that were determined to be
necessary in the future in order to eliminate long term exposure of
listed fishes to leaching environmental contaminants. Also, if the
pile were capped now, the cost of a future move would be increased
due to the additional capping material that would have to be moved."
(51)
4. Neglecting Long-Term Maintenance Costs
The NRC regulations mandate that a tailings pile not require active maintenance. Active maintenance is almost a certainty due to the level of contaminates that are seeping into the groundwater and the potential for flooding. Even the NRC admits that with Atlas's proposed plan some level of maintenance may be necessary. The FWS has pointed out that relocation of the site would be the best option for avoiding this problem:
- "For these reasons, the Service believes that relocation of
the tailings pile would, in the long term, be the best means to
achieve optimal protection for listed fishes while meeting Nuclear
Regulatory Commission requirements of no active maintenance.
Also, with the pile removed, site cleanup will be effected to a
higher standard and eventually the property would be suitable for
other human uses."(52) (emphasis added)
Because the NRC is currently unwilling to deny Atlas's plan and force Atlas to relocate the contaminated pile, the Moab tailings will run the risk of requiring future maintenance at additional cost to the federal government. One of the main purposes of reclamation is to reduce radiation from the site, "to eliminate the need for an ongoing monitoring and maintenance program following successful reclamation." (53) Unfortunately, these goals will likely not be met. In order to save money in the short-term by capping the site, the government would be forced to spend money indefinitely maintaining it.
STRONG-ARMING THE FISH AND WILDLIFE SERVICE
Originally, the FWS was the primary federal agency voicing support for transfer of the uranium tailings to a location away from the Colorado River.
- "In its original draft biological opinion, the Service recommended
to the NRC that the Atlas Corporation be required to move the tailings
pile out of the floodplain."(54)
However, in a March 1998 letter to the NRC, the FWS revealed the pressure it was under, from the NRC and Atlas, to absolve both parties from any responsibility:
- "In a letter to you [NRC] dated March 11, 1998, Richard E. Blumbaugh
of Atlas Corporation proposed to consent to an extension of the Fish and
Wildlife Service's deadline for issuing a revised draft biological opinion
on Atlas's proposed surface reclamation plan for the Atlas Mill Tailings
site in Moab, Utah. Atlas proposed the extension to allow the parties
engaged in the section 7 consultation process further opportunities
for cooperation and discussion. However, to grant this consent to
an extension requires the Service [FWS] to confirm that relocation of
the tailings pile at Atlas' expense cannot be compelled by the Nuclear
Regulatory Commission as a result of the Endangered Species Act
section 7 consultation process on the surface reclamation plan."
(55) (emphasis added)
The FWS finally bowed to the pressure and changed their findings. The April 1998 FWS's Revised Draft Biological Opinion concluded that:
- "Based on subsequent information and legal advice, the FWS
acknowledged that the NRC does not have the authority to require
relocation of the pile. The only decision the NRC can make with
regard to the pile is to approve the capping as proposed by Atlas
Corporation, approve the capping proposal with modifications, or deny
the proposed cap."(56) (emphasis added)
While the FWS remained firm in its assessment that the most environmentally sound decision is to relocate the pile, the FWS has removed relocation as a "reasonable and prudent alternative" from its Final Biological Opinion after being strong-armed by Atlas Corporation and the NRC:
- "Although this course of action would provide the greatest
environmental safeguards, the Service determined that requiring
Atlas to move the tailings pile was outside of the present legal
authority of the Nuclear Regulatory Commission, and, therefore,
Service regulations would not allow its inclusion as a reasonable
and prudent alternative."(57)
The Office of the Secretary of the Department of the Interior (DOI) has also expressed concern with the NRC's handling of the Moab site. DOI has raised concerns about groundwater quality and contaminates leaching into the Colorado River.(58)
DOI has criticized NRC for failing to conduct a more complete evaluation of the site prior to the release of the draft Environmental Impact Statement (EIS). "Many questions surrounding the environmental impacts of the Nuclear Regulatory Commission (NRC) proposal remain unanswered."(59)
Also the National Park Service (NPS) has emphasized its own concerns with the proposed on-site plan and has been quoted in the press that it would prefer moving the pile.(60) Additionally, throughout the Final Environmental Impact Statement (FEIS) the NRC admits that, "The NPS does not necessarily agree with the analysis and conclusions in this FEIS."(61)
DEPARTMENT OF ENERGY'S SUCCESSES SHOULD BE REPLICATED
Two government programs were established to clean up uranium-contaminated sites caused by the production of nuclear weapons during the Cold War. First, the DOE was granted jurisdiction over the surface cleanup of Title I sites -- twenty-four sites around the country whose owners were at that point defunct. Clean-up of these sites and nearby properties was funded through federal appropriations and minimal amounts (10%) of state support.
In addition the Uranium Mill Tailings Radiation Control Act of 1978 (UMTRCA) established Title II sites which are the responsibility of the private owners or operators.(62) There are twenty-six Title II sites. These sites come under the jurisdiction of the NRC, which approves the owner's reclamation plan and ensures that the owner supplies the federal government with adequate funds for long-term monitoring and maintenance of the site. DOE is the federal agency in charge of conducting the monitoring and maintenance programs. Under UMTRCA, the EPA sets standards by which the NRC and DOE approve and implement clean-up of closed uranium mills. After a cleanup plan meets NRC approval, the site is turned over to DOE for long-term care. Title II sites differ in their level of federal participation. In the case of the Moab site, the federal government is responsible for 56% of the cost, up to a predetermined limit. (63) In turn, Atlas is responsible for not only its share (44%), but any amount over the federal government's limit. This causes major complications for the government, which must approve the owner's cleanup proposal and then rely on the owner to pay any long-term costs.
DOI argues that the NRC should consider prior DOE action involving tailings reclamation, "particularly in the Colorado River basin." (64) Several sites originally located along the Colorado River were moved by DOE to locations at which standards ould better be achieved. For example, uranium concentration levels at Moab exceed 26 milligrams per liter, whereas DOE sites which contained groundwater uranium levels less than 2 milligrams per liter were moved for environmental safety reasons. (65) These relocation activities were based on findings that permanent sites adjacent to or near the Colorado River were not appropriate in terms of long-term protection of the environment or of human health concerns. The Moab site needs to be transferred because it poses the same, if not a greater, threat to the environment as the sites that have already been moved.
DOE set a well-founded precedent when it relocated a group of contaminated uranium mills that posed a potential threat to nearby rivers and groundwater. Of the 24 Title I sites that DOE controlled, twelve were relocated to more protected locations. Many of the sites DOE relocated were situated along the Colorado River or other sources of water. This remedy was considered the most environmentally sound resolution for the contaminated uranium piles.(66)
The DOE Title I program has a reputation for running relatively well. DOE's program was completed in coordination with state governments and Native American nations within whose boundaries the sites were located.
However, now it is the NRC's turn to tackle this arena. Unlike the DOE, the NRC appears to be struggling with its task -- mainly due to owner involvement. Because the NRC only considers cleanup proposals submitted by the owner, many additional concerns enter the equation when compared to the DOE reclaimed Title I sites. In addition, the NRC regulations only require that the owners of uranium tailings "provide a 'reasonable assurance' that all applicable standards and criteria developed" will be satisfied.(67) These concerns are likely to be just the tip of the iceberg of financial and environmental omissions in Atlas Corporation's proposed cleanup plan.
First, to relocate the contaminants at Moab, it is necessary that the NRC deny Atlas Corporation's plan to cap the tailings pile -- particularly as the plan does not even include a groundwater corrective action program. FWS has noted, "the only decision the NRC can make with regard to the pile is to approve the capping as proposed by Atlas Corporation, approve the capping proposal with modifications, or deny the proposed cap."(68) (emphasis added)
Secondly, passage of legislation is needed to ensure that the uranium tailings pile is transferred to a safer location. The FWS, and even the NRC, have both determined that Congressional action is needed for the pile to be moved to another location. This would allow the least amount of contamination to the ecosystem in the future.
Finally, a permanent solution to this ongoing problem must be sought. All of the Title II sites need to be moved from the purview of the NRC to the DOE. The DOE has a much better track record with the clean-up of uranium mill tailings sites. This would help to ensure that such poor public policy will not occur in the future.
-
Atlas -- Atlas Corporation
BLM -- Bureau of Land Management
DOE -- Department of Energy
DOI -- Department of the Interior
EIS -- Environmental Impact Statement -- a document which is required by the government to accompany proposals for projects that will have an impact on the surrounding environment.
EPA -- Environmental Protection Agency
FEIS -- Final Environmental Impact Statement
FWS -- Fish and Wildlife Service
GAO -- General Accounting Office
NPS -- National Park Service
NRC -- Nuclear Regulatory Commission
ORNL -- Oak Ridge National Laboratory
Reclamation -- The process of cleaning up or restoring contaminated land.
Tailings -- Naturally radioactive rock or soil that are products of uranium mining and milling operations. The rock and soil have low levels of radiation from the small amount of radium that decays and emits radon, a radioactive gas.
Title I -- Part of UMTRCA which governs the cleanup of uranium sites that were inactive at the time the legislation was enacted. Title I sites and nearby properties which were contaminated are the responsibility of DOE and the affected states.
Title II -- Part of UMTRCA which governs the cleanup of uranium sites that were still active at the time the legislation was enacted. Title II site are the responsibility of the private companies which owned and operated them and later turned over to the federal government or the stat for long-term custody.
UDEQ -- Utah Department of Environmental Quality
UMTRA -- Uranium Mill Tailings Remedial Action
UMTRCA -- Uranium Mill Tailings Radiation Control Act of 1978
URC -- Uranium Reduction Corporation -- The company from which the Atlas Corporation bought the processing mill near Moab, Utah.
1. Nuclear Regulatory Commission, "Draft Environmental Impact Statement Related to Reclamation of the Uranium Mill Tailings at the Atlas Site (NUREG-1531)," January 1996, p. 1-5. (Hereinafter -- NUREG-1531)
2. United States Bankruptcy Court for the District of Colorado, "Notice Pursuant to Local Rule 202 of Atlas Corporation's Amended Motion for Order Abandoning Moab Uranium Tailings Site Pursuant to 11 U.S.C. Section 554(a) (Case No. 98-23331 DEC Chapter 11)," Signed by Harvey Sender, Attorney for Debtor, February 26, 1999. (Hereinafter -- U.S. Bankruptcy Court for the District of Colorado Case No. 98-23331)
3. NUREG-1531, p. xvii.
4. Metropolitan Water District of Southern California,
5. "UMTRA: Uranium Mill Tailings Remedial Action Project: Fiscal Year 1996 Annual Report to Stakeholders," October 1, 1996, p. 1., U.S. Department of Energy, Office of Environmental Management. "Uranium ore was crushed and processed for use in developing weapon sand in the emerging nuclear energy industry. But for every ounce of uranium that was extracted from ore, 99 ounces of waste were produced in the form of mill tailings -- a finely ground, sand-like material." General Accounting Office, Report to Congressional Committees, "Cleanup Continues, but Future Costs Are Uncertain," December 1995, GAO/RCED-96-37, p.12. (Hereinafter -- GAO/RDED-96-37)
6. Oak Ridge National Laboratory / U.S. DOE, "Limited Groundwater Investigation of the Atlas Corporation Moab Mill, Moab Utah, January 9, 1998, p. 44. (Hereinafter -- ORNL) This value is derived from the EPA standard of .044 mg/l and the uranium concentration found by ORNL of 23.5 mg/l
7. Loren Morton, Utah Department of Environmental Quality, Memorandum to Myron Fliegel, NRC, June 20, 1997, p. 2.
8. Fish and Wildlife Service, "Final Biological Opinion for the Proposed Reclamation of the Atlas Mill Tailings Site in Moab, Utah," July 29, 1998, p. 66. (Hereinafter -- FWS, Final Biological Opinion)
9. FWS, Final Biological Opinion, p. 16.
10. Department of Interior,
11. FWS, Final Biological Opinion, p. 72.
12. FWS, NEWS RELEASE 98-13, "Revised Draft Biological Opinion finds Atlas Mill tailings Site Jeopardizing Endangered Fish," April 16, 1998, p. 1. (Hereinafter -- FWS, NEWS RELEASE 98-13)
13. ORNL, p. 43.
14. ORNL, pp. 10-14.
15. ORNL, p. 43
16. Grand Canyon Trust, et al. v. Bruce Babbitt, et al., Atlas Corporation. Second Amended Complaint for Declaratory and Injunctive Relief, Case No. 2:98CV0803S, January 20, 1999, p. 1.
17. Center for Nuclear Waste Regulatory Analyses, "Infiltration, Seepage, and Groundwater Contamination Modeling for the Atlas Corporation Uranium Mill Tailings Pile Near Moab, Utah," December 1998, p. 7-1.
18. NUREG-1531, p. 2-26.
19. FWS, Final Biological Opinion, p. 86.
20. NUREG-1531, p. 1-8.
21. Fish and Wildlife Service, "Revised Draft Biological Opinion for the Proposed Reclamation of the Atlas Mill Tailings Site in Moab, Utah," April 14, 1998, p. 91. (Hereinafter -- FWS, Revised Draft Biological Opinion)
22. 10 Code of Federal Regulations (CFR) 40, Appendix A, Criterion 5B(6).
23. FWS, Final Biological Opinion, p. 66.
24. FWS, Revised Draft Biological Opinion, p. 89.
25. Ralph Morgenweck, FWS Regional Director, Memorandum to Joseph Holonich, NRC, March 11, 1998, p. 1.
26. FWS, NEWS RELEASE 98-13, p. 2.
27. U.S. Bankruptcy Court for the District of Colorado Case No. 98-23331.
28. Joseph Holonich, NRC, Memorandum to POGO, July 24, 1998, pp. 1-2.
29. Public Law 104-259, § 3, Amended Section 1001 of the Energy Policy Act of 1992. The amendment increased (from $5.50 to $6.25 per ton) the amount of reimbursement paid to any licensee for uranium mill tailings generated as an incident of sales to the United States. The $36 million is the approximately 56% of 10.5 million tons times $6.25.
30. Joseph Holonich, NRC, Memorandum to POGO, July 24, 1998, p. 1.
31. Atlas Annual Report to Stockholders, 1997, p. 52.
32. U.S. Bankruptcy Court for the District of Colorado Case No. 98-23331.
33. Shaw, Pittman, Potts & Trowbridge, "Rebuttal to Representative George Miller's Letters to The NRC and Vice President Gore Concerning Atlas Corporation's Uranium Mill & Tailings Site Moab, Utah," June 1997, p. 15.
34. Fish and Wildlife Service,
35. United States Department of Energy / Energy Information Administration, "Decommissioning of U.S. Uranium Production Facilities," February 1995, p. 51. (Hereinafter -- U.S. DOE/EIA, Decommissioning)
36. Joseph Holonich, NRC, Memorandum to POGO, June 5, 1998, p. 1.
37. FWS, Final Biological Opinion, p. 86.
38. Nuclear Regulatory Commission, "Final Technical Evaluation Report for the Proposed Revised Reclamation Plan for the Atlas Corporation Moab Mill (NUREG-1532)," March 1997, p. 7-5 (Hereinafter -- NUREG-1532) and NUREG-1531, p. 1-8.
39. FWS, Revised Draft Biological Opinion, p. 91.
40. FWS, Final Biological Opinion, p. 83.
41. 10 CFR 40, Appendix A, Criterion 5B(6).
42. Loren Morton, Utah Department of Environmental Quality, Memorandum to Myron Fliegel, NRC, June 20, 1997, p. 2.
43. FWS, Final Biological Opinion, p. 67.
44. FWS, Revised Draft Biological Opinion, pp. 91-92.
45. Nuclear Regulatory Commission, "Final Environmental Statement Related to Operation of Moab Uranium Mill, Atlas Minerals Division, Atlas Corporation (NUREG-0453)," January 1979, p. 10-3.
46. NUREG-1531, p. 5-1.
47. Atlas Annual Report to Stockholders, 1997, p. 52.
48. FWS, Final Biological Opinion, p. 86.
49. FWS, Final Biological Opinion, p. 53.
50. U.S. DOE/EIA, Decommissioning, p. 47.
51. FWS, Revised Draft Biological Opinion, p. 89.
52. FWS, Revised Draft Biological Opinion, p.89.
53. U.S. DOE/EIA, Decommissioning, p. 14.
54. FWS, NEWS RELEASE 98-13, p. 2.
55. Ralph Morgenweck, FWS Regional Director, Memorandum to Joseph Holonich, NRC, March 11, 1998, p. 1.
56. FWS, NEWS RELEASE 98-13, p. 2.
57. FWS, Final Biological Opinion, p. 2.
58. NUREG-1532, p. A-59.
59. Department of Interior / Office of the Secretary, "Comments of the Department of Interior on the Draft Environmental Impact Statement for the Reclamation of the Atlas Mill Tailings Pile Site, Moab, Grand County, Utah," April 25, 1996, Enclosure 1, p. 1.
60. Church, Lisa "Interior Secretary, Utah Delegation Join in Turning Up Pressure to Move Moab Tailings Pile; Pressure Is On To Move Tailings Pile Near Moab," The Salt Lake Tribune, November 24, 1998.
61. NUREG-1531, p. 1-1.
62. State governments may assume custody of Title II sites, however DOE does not expect any to do so.
63. Federal Register, Vol. 59, No. 95, May 23, 1994, p. 26718.
64. Department of Interior / Office of the Secretary, "Comments of the Department of Interior on the Draft Environmental Impact Statement for the Reclamation of the Atlas Mill Tailings Pile Site, Moab, Grand County, Utah," April 25, 1996, Enclosure 1, p. 5.
65. FWS, Revised Draft Biological Opinion, p. 69.
66. GAO/RCED-96-37, p. 28.
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