EPA’s Proposed ISR Rule

By Andrea Jennetta

During a March 16, 2015, meeting of the National Council on Radiation Protection (NCRP), FCW columnist (and Atomic Insights owner/blogger) Rod Adams listened to, challenged and followed up with Jonathan Edwards, Director of the U.S. Environmental Protection Agency’s (EPA) Radiation Protection Division.

Edwards gave a talk entitled “Federal Directions in Radiation Regulations: Making the ‘Old’ New Again,” and spoke to Rod about the proposed rulemaking to revise 40 CFR 192 that would establish patently unfair requirements on ISR uranium mining.

You may recall that I ripped those apart in FCW #601, noting the influence of the National Resources Defense Council and its overt antinuclear bias on the proposal.

Fortunately for FCW subscribers, Rod taped two on-the-record interactions with the EPA official. The first was a quick question and answer (see What is the benefit?). But the second involved a lengthy one-on-one discussion of the proposal after Edwards gave his presentation (see Inconsistencies).

At one point, the scientist whose paper was cited by EPA to justify the draft rules interrupted Rod and Edwards to note out that the agency mischaracterized his findings and ignored the recommendations of its own scientific advisory panel (see Ignoring scientific advisors).

What is the benefit?

During his talk, Edwards described some of the principles of good regulation that the EPA claims to follow. These damning quotes are directly from the presentation abstract of his talk posted on the NCRP web site.
“Regulations must be protective yet flexible and reasonable. Requirements should be clear and implementable by the regulated entity or entities, which may be at the state or local level. Enforceability is a must. Regulatory levels and approaches must be based on sound science with appropriate peer review, yet care must be taken not to exceed the science-base and what is useful in supporting sound decisions simply because of advanced technology.”
“Consistency between radiation regulatory approaches and those used for other pollutants/contaminants may need to be examined, as well as re-establishing consistency amongst agencies.”
“(F)ederal agencies with radiation protection responsibilities must be genuinely attentive of all the various factors and considerations due in proper rulemaking and strive to achieve the proper balance of these elements in renewed radiation protection regulations.”

Adams: My name is Rod Adams. I write Atomic Insights and my question is for the EPA representative.

I just had the opportunity to review your proposed rulemaking on in-situ leach mining. Interesting set of rules. It says we’re going to protect non potable reservoirs that are already contaminated and we’re not sure how much it is going to cost and we’re not sure what the benefits are going to be but we think we really need to do this.

So can you explain how that falls into your description [of principles of good regulation] (see callout)? And besides that, all uranium mining that is active in the U. S. right now is in-situ leach. Probably the rules, if imposed, would eliminate uranium mining in the U.S.

Edwards: I will say I don’t recall that exact language in the proposed rule. But I would prefer not to get into any great detail on each one of the individual rules. But the notion is that water particularly out west is a valuable commodity, that there is a lot of unknowns about the practice of in-situ leaching.

Over the last several years there is a scarce amount of data. That water deserves to be protected. If you look at the rule, it proposes establishment of a baseline prior to operations.

So the goal is not necessarily to take an exempted aquifer that is contaminated above what are accepted drinking water levels and somehow take that aquifer down to drinking water levels. That’s not the goal.

The goal is to be able to restore that aquifer to its original conditions as best as possible after the in-situ recovery.


After the session was over, there was an opportunity to talk to the speakers one-on-one.

Adams: I read the rule, the proposed rule for in-situ mining. One thing that did not seem clear to me in the rule was that the only thing an ISR mine is adding to the aquifer is bicarbonate [aka baking soda].

Edwards: Yeah, yeah.

Adams: Okay. And now you are going to impose a 33-year long monitoring requirement after closure and most of the aquifers are not usable anyway.

Edwards: True.

Adams: So why are we protecting non-usable water? And when you think about the rules that you impose on fracking and what kind of post closure monitoring does a fracker have to do when they’ve added a whole bunch more stuff to the environment. It seems like it is aimed at attacking a very small but important little industry.

That question goes to the claim that the EPA strives for consistency among various pollutants/contaminants, since the primary contaminants involved in ISR mining already exist in the geology while competitors add numerous chemicals that are not part of the natural environment.

At that point, Edwards was distracted by Dr. Thomas Johnson, associate professor at Colorado State University, who said something that immediately captured the attention of both Edwards and Rod.

Ignoring scientific advisors

Johnson: Your 192 people—

Edwards (interrupting): Yeah, yeah

Johnson: —they cite my paper and they’re doing it wrong.

Edwards: Oh, are they?

Johnson: They’re taking the opposite conclusion from the paper I wrote on uranium mining.

Edwards: Really?

Johnson: The 192 rule making… And not only that, they’re not following the scientific advisory board subcommittee’s recommendation for that 192 rulemaking.
(Emphasis added.)

Edwards promised to take aggressive action to communicate with the committee that is charged with writing the rules.

Edwards: Send me an email citing your paper.

Johnson: The way they cite it, they’re doing exactly opposite—

Edwards (interrupting): And how you feel it was improperly cited. Send me that, and I will get that to our rule committee.

Johnson: I’ve been really disappointed, because I wrote that paper specifically detailing what happens. And right now we’re working on a paper that details how the risk changes pre and post mining, because of the nature of the mining, you can’t restore the aquifer to the original condition—

Edwards: Right.

Johnson: —after mining, but we can restore the risk, right? We can at least minimize the risk. And based on our calculations so far— we haven’t published it yet—based on our calculations, the risks actually change. The cancer risk goes down; the nephrotoxicity risk goes up a little bit. So it’s a dynamic thing.

Naturally, neither Johnson nor any of his co-authors were contacted with any questions about their paper, because the EPA was — as we all know — getting input from the NRDC.

Advice from NRDC

Edwards: It’s a challenge that we have in a lot of environmental rules. It’s really hard to quantify the environmental benefit of protections.

Adams: You can’t quantify it if you cannot find someone that is going to be hurt. Then why are you doing it?

Edwards: Again, the notion was not to drive the aquifers back to drinking water quality but at least to restore them to their baseline. Because you have mobilized a lot of metals and elements of concern.

Adams: But if nobody is using the water, who cares?

Edwards: The fear is—

Adams (interrupting): It’s all material that is already in the ground.

Edwards: Rod, what we’ve heard from the environmental groups is the fear that eventually, those aquifers will be needed, will be required….There are folks that feel, on the other side, that they’ve come in and disturbed an aquifer that may not meet drinking water standards, maybe it’s close, but should the business be allowed to leave it in worse condition that when they started?

On Jan. 26, the same day that the proposed rule was published, the NRDC, an organization that has been found to have “an in” with regard to the EPA rule writing process, issued a triumphant press release titled NRDC Welcomes Long-Sought Uranium Mining Safeguards, Calls for Improvements.

Pressure works both ways. Practicing scientists like Dr. Johnson recognize that there have been no findings that support the proposed change. He made the following comment during an email exchange with Rod.

“Yes, the EPA may argue that this is ‘precautionary’ but there are several very well done arguments against the precautionary principle,” wrote Johnson, who made it clear his opinions are his alone and not his employer’s.

“I cannot think of a single person or population that has been negatively impacted by ISR, so the current regulations seem to be protective. Sorry, I must go to class!”

This is a fantastic example of EPA rulemakers stepping outside the bounds of science. Instead the agency appears to be regulating based on feelings from a known pressure group that has been actively campaigning for the regulations for years.

As for the claim that there’s “no data,” I recall sitting through an incredibly data-rich presentation by URI’s Mark Pelizza a few years ago at the National Mining Association’s annual workshop with the Nuclear Regulatory Commission.

In it, Pelizza provided page after page of statistics on the affected constituents in restored groundwater aquifers. Plenty of ISR mines have been or are in the process of being D&D’d in Texas.

If so inclined I’m sure both Harry Anthony and Paul Goranson could get their hands on plenty more.

Comments on the proposal are due by April 27.

Click here for more details about the rule, the background and the process for making comments.

About the Author – Andrea Jennetta is the owner and president of International Nuclear Associates, Inc., the publisher of Fuel Cycle Week. Click here for a more detailed bio.

A version of this article was originally published in the March 26, 2015 issue of Fuel Cycle Week and is republished here with permission. Section titles were revised to eliminate the use of an Atomic Insights special purpose keyword.


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