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Grand Canyon Trust v. Energy Fuels Resources U.S.A. Inc.

United States District Court, D. Utah

September 15, 2017

Grand Canyon Trust, Plaintiff,
Energy Fuels Resources U.S.A. Inc., EFR White Mesa LLC, Energy Fuels Inc., and Energy Fuels Holding Corp., Defendants.


          Clark Waddoups, United States District Judge

         Before the court are cross-motions for summary judgment filed by Plaintiff Grand Canyon Trust (the Trust) and Defendants EFR White Mesa LLC and Energy Fuels Resources (U.S.A.) Inc.[1] (collectively, the Mill). (Dkt. Nos. 67 & 60.) The motions seek resolution of the five claims the Trust set forth in its Amended Complaint, which seek declaratory and injunctive relief as well as civil penalties for the Mill's alleged violations of the EPA's radon emission regulations. (Dkt. No. 29.) The court heard oral argument on the motions on November 17, 2016. (Dkt. No. 89.) After carefully considering the arguments presented in the briefing and oral argument and reviewing the numerous exhibits and declarations each party presented, the court now GRANTS the Mill's motion, DISMISSES those claims with prejudice, and DENIES the Trust's motion.


         At issue is whether the Mill complied with radon emission regulations and, even if it did not, if the Trust's enforcement action is proper under the Clean Air Act's citizen-suit provision and Article III of the Constitution. The following identifies the parties, provides an overview of the relevant regulatory scheme, describes the conduct that the Trust contends violated those regulations, and details the purported effects those violations have had on Trust members.

         1. The Parties

         a. The Mill

         White Mesa Mill is a conventional uranium mill located six miles south of Blanding, Utah near the Ute Mountain Ute tribal community of White Mesa on the Colorado Plateau. (Dkt. No. 63 Ex. 14 EFR 457-58; Dkt. No. 68 Ex. 38 ¶ 6 & Ex. 40 ¶¶ 1-2.) The Mill was first constructed in 1979 and operations commenced there in 1980. (Dkt. No. 61 ¶ 5; Dkt. No. 63 Ex. 14 EFR 459.) The Mill applies conventional grinding and leaching processes to mined ore and byproduct material in order to extract uranium and vanadium in the forms of yellowcake and black flake, respectively. (Dkt. No. 61 ¶ 5; Dkt. No. 63 Ex. 11 EFR 306-07.) Production of yellowcake and black flake results in a waste stream that contains tailings solids and processing solutions. (Dkt. No. 61 ¶ 8; Dkt. No. 68 Ex. 5 & Ex. 12 pp.19-20.) That waste then enters the tailings management system, which separates liquid and solid waste. (Dkt. No. 61 ¶¶ 6-10; Dkt. No. 63 Ex. 15 EFR 650.) Any liquids that may still contain some ore-bearing solids are returned to the milling process. (Dkt. No. 61 ¶¶ 6-10; Dkt. No. 63 Ex. 15 EFR 650.)

         The Mill was originally licensed under the Atomic Energy Act of 1954, as amended by the Uranium Mill Tailings Radiation Control Act of 1978, by the Nuclear Regulatory Commission. Energy Fuels Resources (USA) Inc., Utah Department of Environmental Quality, (last visited Sept. 15, 2017). In 2004, Utah became an Agreement State, and oversight of the Mill transferred to the Utah Division of Radiation Control that is now a part of the Utah Division of Waste Management and Radiation Control (UDWMRC). Id. The Mill also operates under a Groundwater Discharge Permit, which UDWMRC oversees. Id. The Mill's radon emissions are governed by the Clean Air Act and regulations the Environmental Protection Agency (EPA) set and that Utah's Department of Air Quality (DAQ) administers. Id.

         b. The Trust

         The Grand Canyon Trust is a nonprofit advocacy organization with over 3, 000 members. (Dkt. No. 68 Ex. 38 ¶ 2.) It is based in Arizona with offices in Colorado and Utah. (Id.) Its mission, according to its Executive Director, William L. Hedden, is to “protect and restore the Colorado Plateau, ” which “stretches south-to-north from roughly the Mogollon Rim in northern Arizona and the Uinta Mountains in northern Utah and east-to-west from the Great Basin in Utah to the western side of the Rocky Mountains in Colorado and northwestern New Mexico” and encompasses the land upon which the Mill is located. (Id. ¶ 3.)

         The Trust aims to protect the landscape, rivers, air, plant and animal life, beauty, and solitude within the Colorado Plateau. (Id.) The Trust opposes “irresponsible uranium mining and milling on the Plateau” and seeks to see contamination from uranium mining removed and the area reclaimed. (Id. ¶ 4.) As such, the Trust has worked to clean up abandoned surface tailings piles on the former site of another mill; campaigned to raise funds through legislation for cleanup where reclamation bonds were insufficient; advocated an end to uranium mining on the Plateau, including lobbying for legislation that would permanently end the staking of new claims around the Grand Canyon; developed a water quality monitoring program; submitted comments on permitting decisions for White Mesa Mill and other uranium operations on the Plateau; lobbied for changes to uranium regulations; and brought lawsuits aimed at protecting areas threatened by pollution that can be linked to the uranium industry. (Id. ¶¶ 4-6.)

         The Trust sued the Mill on April 2, 2014, to enforce violations by the Mill of the Clean Air Act (CAA). (Dkt. No. 2 ¶ 1.) The Trust contends that this action “seeks to promote the same interests that underlie essentially all the Trust's work, ” that is “to protect the environment of the Colorado Plateau and the health of those who live on or visit it.” (Dkt. No. 68 Ex. 38 ¶ 7.)

         2. Regulatory Background

         Congress enacted the CAA “to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population.” 42 U.S.C. § 7401. In furtherance of that goal, Congress identified a list of hazardous air pollutants (HAPs), each of which is subject to the EPA's review and revision. Id. § 7412. It listed radionuclides, including radon, as HAPs. Id. § 7412(c). Congress also required the EPA to “promulgate regulations establishing emission standards for . . . major sources and area sources of hazardous air pollutants . . . in accordance with” the CAA. Id. § 7412(d).

         The EPA then promulgated the National Emission Standard for Hazardous Air Pollutants (NESHAPs), which set emission limits for listed HAPs according to category and subcategory of potential polluters. See generally 40 C.F.R. § 61. Relevant to this case are the Subpart W NESHAPs, which set out the “National Emission Standards for Radon Emissions from Operating Mill Tailings” and which took effect on December 15, 1989. See Subpart W-National Emission Standards for Radon Emissions from Operating Mill Tailings, 54 Fed. Reg. 51, 703 (December 15, 1989) (codified at 40 C.F.R. § 61.250-256). Prior to December 1989, Subpart W had previously been promulgated in 1986. Subpart W-National Emission Standards for Radon Emissions from Operating Mill Tailings, 51 Fed. Reg. 34, 056 (Sept. 24, 1986). And it was subsequently amended on March 21, 2017. Revisions to National Emission Standards for Radon Emissions from Operating Mill Tailings, 82 Fed. Reg. 5, 142 (Jan. 17, 2017).[2]

         Subpart W sets two standards-one for existing uranium mill tailings piles and one that is triggered by newly built tailings impoundments but that applies to all tailings impoundments once it is triggered. 40 C.F.R. § 61.252. First, Subpart W capped emission of radon-222 into the ambient air from existing sources at 20 pCi/(m2-sec) (1.9 pCi/(ft2-sec). Id. § 61.252(a). Compliance with this limitation-the radon flux limit-is monitored according to Method 115. Id. § 61.253. Method 115 requires radon flux measurements to be taken from the following regions of each tailings pile: (1) the water-saturated areas or beaches; (2) the dry top-surface area; and (3) the sides, unless they are made of dirt. 40 C.F.R. Pt. 61, Appx. B. (“Method 115”) §§ 2.1.2 & 3. It does not require measurement of “water covered area[s].” Id. § 2.1.3.

         When such monitoring is conducted over a one-year period, the facility must provide the EPA with a monitoring schedule showing the “measurement frequency to be used.” 40 C.F.R. § 61.253. Measurements can be conducted once per year or more frequently, so long as it is done on “quarterly, monthly or weekly intervals.” Method 115 § 2.1.1. The schedule may be submitted before or after the first measurement, and EPA must receive thirty days' notice before any testing so that it may observe. 40 C.F.R. § 61.253. The test results, no matter how frequently taken, must be reported to the EPA by March 31 of the following year. Id. § 61.254. If the annual report reveals that the facility is not in compliance with the radon flux limit, the facility must make monthly reports beginning the month immediately following the noncompliant annual report. Id. § 61.254(b). And it must do so until the EPA or state agency determines monthly reporting is no longer necessary. Id. Such monthly reports should include updated test results and plans to control or modify operations to bring the facility into compliance. Id.

         Second, Subpart W limits the total number of tailings impoundments operated at a facility beginning from the time an impoundment is newly built if it is constructed after 1989. Construction of a new impound is not permitted unless it is designed, constructed, and operated in compliance with the following: does not exceed forty acres; meets the requirements of the Nuclear Regulatory Commission set out in 40 CFR § 192.32(a); and does not cause the owner or operator to exceed two total impoundments, including previously existing impoundments, even those that were constructed prior to the 1989 version of Subpart W. Id. § 61.252(b). In other words, once a new tailings impoundment is constructed, all existing impoundments count toward the two cell limit, as does the newly constructed impoundment. This is referred to as the phased disposal work practice.

         In addition to delegating to the EPA the duties of maintaining the list of HAPs and developing HAP regulations, Congress also invited state involvement in HAP regulation. 42 U.S.C. § 7412(1)(1). Specifically, Congress authorized the states to apply to the EPA for approval of a program to implement and enforce emission standards. Id. State programs “may provide for partial or complete delegation of the Administrator's authorities and responsibilities to implement and enforce emissions standards and prevention requirements, ” so long as state standards are no less than the EPA's. Id. The CAA sets out criteria for approval of a state program and allows for state revision if a program is not approved initially. Id. § 7412(1)(5). The CAA also provides for EPA oversight of state regulation, requiring the Administrator to “withdraw approval of the program” if “the Administrator determines, after public hearing, that a State is not administering and enforcing [its] program . . . in accordance with [EPA] guidance . . . or the requirements of [the subsection]” and if after notification the state fails to comply within ninety days. Id. § 7412(1)(6). The statute further says that “[n]othing in this subsection shall prohibit the Administrator from enforcing any applicable emission standard or requirement under this section.” Id. § 7412(1)(7). In sum, the CAA invites state involvement in HAP regulation, but it also vests significant authority in the EPA to review state activity and to regulate alongside the state where it sees fit.

         Utah satisfied all statutory and regulatory requirements for delegation in 1995 and, effective May 15, 1995, the EPA “delegate[d] its authority for the implementation and enforcement of [many of the] . . . National Emission Standards for Radionuclides for all sources located, or to be located in the State of Utah, ” including Subpart W. Approval of Delegation of Authority; National Emission Standards for Hazardous Air Pollutants; Radionuclides; Utah, 60 Fed. Reg. 13, 912-13 (March 15, 1995). Thus, Subpart W was administered in Utah by the EPA from 1989 until 1995 and then by DAQ beginning in 1995. (Dkt. No. 64 ¶¶ 4-5.)

         3. The Alleged Violations

         a. Claim 2: Number of Tailings Impoundments

         The Mill operates as a zero-discharge facility, which means it is required to dispose of waste, including tailings, [3] on site as they are produced. (Dkt. No. 61 ¶¶ 10 & 12; Dkt. No. 63 Ex. 17 EFR 6369; Dkt. No. 68 Ex. 9 pp. 86-87 & 109-112.) To do so, the Mill operates a tailings-management system for storing and disposing of waste materials and liquids. (Dkt. 60 p. 15; Dkt. 60 Ex. 1; Dkt. No. 68 Ex. 9 p. 45.) The tailings management system consists of a series of evaporation ponds and tailings impoundments: Cells 1, 2, 3, 4A, and 4B. (Dkt. No. 61 ¶ 6; Dkt. No. 63 Ex. 14 & Ex. 15; Dkt. No. 68 Ex. 9 p. 45.) A sixth basin, Roberts Pond, was also on site until 2014.[4] (Dkt. No. 61 ¶ 28; Dkt. No. 68, Ex. 9 pp. 201-02, Ex. 10 EFR 21069, Ex. 11 EFR 4562, & Ex. 2 p. 16');">12 p. 16.) Other than Roberts Pond, each cell receives, or previously received, either process solutions or a slurry containing tailings solids. (Dkt. No. 61 ¶ 8; Dkt. No. 63 Ex. 14 EFR 459-62 & Ex. 15 EFR 649-50.) The cells that receive the tailings slurry hold the substance while the solids separate from the liquid and settle at the bottom of the cell. (Dkt. No. 68 Ex. 9 p. 30.) The solids consist of a sand-like substance. (Dkt. No. 68 Ex. 15 p. 7.) As the solids settle, they stabilize and begin to fill the cell, allowing the Mill to install an interim cover that prevents tailings from blowing out of their impoundment and begins the reclamation process. (Dkt. No. 61 ¶ 9; Dkt. No. 63 Ex. 15 EFR 650 & Ex. 17 EFR 6368-69.) Any excess liquid is then transferred to the evaporation ponds. (Dkt. No. 68 Ex. 9 pp. 27-28.)

         Evaporation ponds hold the liquid, called raffinate or S/X (solvent solution), either for evaporation as a method of disposal or for temporary storage until the liquid can be further processed for uranium and vanadium values. (Dkt. No. 61 ¶¶ 8 & 10; Dkt. No. 68 Ex. 9 p. 32.) On occasion, the evaporation ponds may become entirely dry, revealing raffinate crystals at the bottom. (Dkt. No. 61 ¶ 11; Dkt. No. 63 Ex. 14 EFR 459; Dkt. No. 68 Ex. 9 p. 50 & Ex. 16 pp. 147-148.) When this happens, the crystals are removed and placed into the tailings impoundments. (Dkt. No. 63 Ex. 14 EFR 459.) Raffinate crystals were removed from Cell 4B in 2006 and disposed in Cell 3. (Id.)

         The Mill completed construction of Cell 1 in June 1981 and has used it exclusively as an evaporation pond since that date. (Dkt. No. 61 ¶ 14; Dkt. No. 63 Ex. 14 EFR 459.) Cell 1 receives raffinate solutions, process solutions from other cells, liquids from the Mill's laboratory, and storm water runoff. (Dkt. No. 61 ¶ 14.) Cell 1 has never received tailings solids. (Dkt. No. 63 Ex. 14 EFR 467; Dkt. No. 68 Ex. 12 pp. 17 & 22.)

         The Mill completed construction of Cell 2 in May 1980. (Dkt. No. 63 Ex. 14 EFR 459.) The parties do not dispute that Cell 2 received tailings solids from its construction and that it was a tailings impoundment. (Dkt. No. 67 p. 37; Dkt. No. 76 p. 25.) Cell 2 received tailings solids until sometime after the late 1980's but before 2008. (Dkt. No. 61 ¶ 15; Dkt. No. 68 Ex. 16 pp. 164-66.) It stopped receiving tailings when it was full to capacity pursuant to its Radioactive Material License and Groundwater Discharge Permit. (Dkt. No. 61 ¶ 15; Dkt. No. 68 Ex. 9 pp. 83-84, Ex. 14 EFR 43535, & Ex. 16 pp. 193-95.) Once Cell 2 was full and no longer receiving tailings, the Mill began dewatering Cell 2 according to the final closure methods outlined in its Reclamation Plan.[5] (Dkt. No. 61 ¶ 16; Dkt. No. 68 Ex. 22 & Ex. 56.) The parties agree that some closure activity has occurred, but they disagree on the legal issue of whether Cell 2 has entered “final closure” as that term is used in Subpart W. (Dkt. No. 67 pp. 60-64; Dkt. No. 76 pp. 45-48.)

         The Mill completed construction of Cell 3 in September 1982. (Dkt. No. 61 ¶ 17; Dkt. No. 63 Ex. 14 EFR 459.) The sides of Cell 3 are made of earthen material. (Dkt. No. 61 ¶ 17; Dkt. No. 63 Ex. 14 EFR 464.) Since its construction, Cell 3 has received tailings impoundments from the tailings pipeline as well as process solutions from other cells. (Dkt. No. 61 ¶ 17; Dkt. No. 63 Ex. 15 EFR 647, 650.) This began in the 1980s. (Dkt. No. 68 Ex. 14 EFR 43535.) The parties do not dispute that Cell 3 is a tailings impoundment. (Dkt. No. 67 p. 36; Dkt. No. 76 p. 22.) In April 2016, the Mill reported that Cell 3 was almost full with tailings but had a small area where new tailings were being deposited. (Dkt. No. 61 ¶ 17; Dkt. No. 63 Ex. 15 EFR 650.)

         The Mill first proposed Cells 4A and 4B as a single eighty-acre cell, but in anticipation of the adoption of the 1989 revisions to Subpart W, the Mill proposed splitting the cell into two. (Dkt. No. 61 ¶ 18; Dkt. No. 63 Ex. 2 EFR 373; Dkt. No. 68 Ex. 8 EFR 646-47.) The Mill then applied to the Nuclear Regulatory Commission and the EPA for permission to construct Cell 4A in 1989. (Dkt. No. 61 ¶ 18; Dkt. No. 63 Ex. 1.) The EPA approved the Mill's application under the 1986 version of Subpart W on March 16, 1989. (Dkt. No. 61 ¶ 19; Dkt. No. 63 Ex. 46.) The Approval Order for the Mill was later updated on June 26, 1989, to authorize construction of cells 4A and 4B. (Dkt. No. 61 ¶ 20; Dkt. No. 63 Ex. 2.) Construction of Cell 4A was substantially complete on November 30, 1989, and the NRC approved it to receive process solutions on December 21, 1989. (Dkt. No. 61 ¶ 21; Dkt. No. 63 Ex. 3 & Ex. 14 EFR 459.) The NRC did not approve receipt of tailings at that time but then amended the license to allow tailings on March 1, 1990. (Dkt. No. 61 ¶ 21; Dkt. No. 63 Ex. 4.) Cell 4A received process solutions in 1990. (Dkt. No. 61 ¶ 21; Dkt. No. 63 Ex. 14 EFR 459.) After 1990, Cell 4A was not used and the liner suffered thermal stress as a result of direct sunlight. (Dkt. No. 61 ¶ 22; Dkt. No. 63 Ex. 14 EFR 459.) This drying caused raffinate crystals to form, which were removed and disposed of in Cell 3 in the mid-2000s. (Dkt. No. 61 ¶ 22; Dkt. No. 63 Ex. 14 EFR 459.) Cell 4A was relined in 2007 and 2008 and, after DRC approved it for use on September 17, 2008, began receiving tailings solids in October 2008. (Dkt. No. 61 ¶ 22; Dkt. No. 68 Ex. 12 p. 23 & Ex. 16 p. 153.)

         In June 2008, the Mill applied for approval from DRC to construct Cell 4B, which had originally been contemplated in 1989 but was not constructed. (Dkt. No. 61 ¶ 23; Dkt. No. 63 Ex. 10 & Ex. 14 EFR 459-60.) Then on April 13, 2010, the Mill applied for approval to construct Cell 4B from DAQ pursuant to Subpart W; EPA also received a copy of the application. (Dkt. No. 61 ¶ 24; Dkt. No. 63 Ex. 15.) The application indicated that Cell 4B would not be used as a tailings impoundment as long as Cells 3 and 4A were receiving tailings solids and that it would instead be used as an evaporation pond along with Cell 1. (Dkt. No. 61 ¶ 24; Dkt. No. 63 Ex. 15 EFR 649-50 & 653.) The Mill's application assumed Cell 2 was in closure. (Dkt. No. 63 Ex. 15 EFR 653.) DAQ approved the application, saying “our review determined that these facilities will not cause emissions in violation of the standard found in 40 C.F.R. 61.252, if properly operated.” (Dkt. No. 61 ¶ 25; Dkt. No. 63 Ex. 16.) The Mill began construction of Cell 4B in November 2010. (Dkt. No. 68 Ex. 17 p. 6.) DRC granted the Mill final approval to operate Cell 4B on January 31, 2011. (Dkt. No. 61 ¶ 26; Dkt. No. 63 Ex. 18.) And in either January or February of 2011, the Mill began moving processing solutions from Cell 4A into Cell 4B. (Dkt. No. 68 Ex. 9 p. 26, Ex. 13 pp. 5-6, & Ex. 18 DEQ 52.) At the time the Trust filed its motion for summary judgment, Energy Fuels continued to operate Cell 4B as an evaporation pond. (Dkt. No. 68 Ex. 16 pp. 131-32 & 134.)

         Roberts Pond is a one-acre retention basin that dates to the original construction of the Mill in the early 1980's and that the Mill took out of service in March of 2014 and backfilled and regraded by early 2016. (Dkt. No. 61 ¶¶ 28 & 30; Dkt. No. 68 Ex. 9 pp. 193-94 & 197-98 & Ex. 12 p. 16.) Roberts Pond was used as a catch basin for process upsets and overflows and to capture storm water runoff. (Dkt. No. 61 ¶ 28; Dkt. No. 68 Ex. 9 pp. 193-95.) It is undisputed that upon its closure, there were materials that contained uranium in Roberts Pond, as evidenced by the Mill's having returned such materials to the ore pad for processing or deposited them into a tailings impoundment. (Dkt. No. 61 ¶ 28; Dkt. No. 68 Ex. 9 pp. 201 & 204-06, Ex. 10 EFR 21069, & Ex. 19 EFR 23930.) The Mill cleaned up Roberts Pond in July 2012 and again in 2014. (Dkt. No. 68 Ex. 10 EFR 21069 & Ex. 11.)

         Therefore, it is undisputed that at the time of the briefing of the instant motions, Cells 3 and 4A were serving as tailings impoundments. It is also undisputed that Cells 1 and 4B were at that time operating as a part of the tailings management system as evaporation ponds and that evaporation ponds are a necessary and approved part of its methods. (Dkt. No. 68 Ex. 9 85-87 & 90-92; Dkt. No. 77 Ex. 6 p. 6, 389.)

         b. Claims 1, 3, 4, and 5: Radon Emissions Testing

         The tailings impoundments that existed before December 15, 1989, are subject to monitoring requirements pursuant to Method 115 and the reporting requirements set out in Subpart W. 40 C.F.R. §§ 61.253-254; Method 115 §§ 2.1.2-3. Although any “tailings pile” falls under those reporting requirements, only testing of Cell 2 in 2012 and 2013 and Cell 3 in 2013 are now before the court.

         i. Cell 2

         On May 4, 2012, the Mill notified DAQ and the EPA that it would measure radon emissions from Cells 2 and 3 between June 11 and 15, 2012. (Dkt. No. 68 Ex. 23 EFR 35272.) The results of those tests revealed that Cell 2 exceeded the regulatory limit by emitting radon-222 at 23.1 pCi/(m2-sec), based on an average of each of the tested areas. (Dkt. No. 68 Ex. 24 EFR 35276.)

         The Mill then determined to conduct further testing during 2012. (Dkt. No. 68 Ex. 16 pp. 49-52.) On August 3, 2012, it notified DAQ and the EPA of this intention and that it would retest Cell 2 in September and November or early December. (Dkt. No. 68 Ex. 25 EFR 35274.) The September test again exceeded the radon flux limit, this time measuring 26.6 pCi/(m2-sec). (Dkt. No. 68 Ex. 27 EFR 31861.) The Mill then tested in October, which yielded still higher results of 27.7 pCi/(m2-sec), and November, which returned 26.1 pCi/(m2-sec). (Dkt. No. 84 Ex. 1 p. 2.) Therefore, Cell 2 exceeded the radon flux limit in 2012, averaging 25.9 pCi/(m2-sec). (Dkt. No. 68 Ex. 26 GCT 8875.)

         On March 29, 2013, the Mill reported the 2012 radon flux results for Cell 2 to DAQ. (Dkt. No. 62 ¶ 7; Dkt. No. 63 Ex. 21.) The report demonstrated an increase in radon flux and included the Mill's proposed plan to bring the results back under the standard by adding cover and engaging in monthly sampling. (Dkt. No. 62 ¶ 7; Dkt. No. 68 Ex. 26 GCT 8875-83.) Pursuant to 40 C.F.R. § 61.254(b), the Mill began monthly monitoring and reporting in April 2013. (Dkt. No. 68 Ex. 26 GCT 8872 & 8883.)

         The Mill tested Cell 2 monthly in 2013 because of its 2012 violation. On April 3, 2014, the Mill reported that Cell 2 remained in violation of the radon flux limit and reported an average of its radon-222 emissions between April and December 2013 of 20.4 pCi/(m2-sec). (Dkt. No. 68 Ex. 29 GCT 8226.) It further reported that Cell 2 had reported emissions below 20.0 pCi/(m2-sec) since September 2013. (Id. GCT 8228.) It submitted a table of the monthly averages in its annual compliance report, which showed that Cell 2's radon-222 emissions were below 20.0 pCi/(m2-sec) for five of the previous nine months and had not exceeded 20.0 pCi/(m2-sec) since August 2013. (Id. GCT 8237.) The report attributed the high emissions levels to the dewatering process mandated by its groundwater permit and identified certain remediation measures it had already taken. (Id. GCT 8234-35.)

         To remediate the Cell 2 radon flux violation, the Mill covered “hot spots” where radon flux readings were highest. (Dkt. No. 62 ¶ 8; Dkt. No. 63 Exs. 25-29.) It also removed tailings that had blown from Cell 3 into Cell 2 and constructed a five-foot berm to reduce future windblown tailings. (Dkt. No. 62 ¶ 8; Dkt. No. 63 Ex. 25 EFR 1000.) And the Mill covered large areas of Cell 2 with additional cover to fortify the platform fill cover that was already in place. (Dkt. No. 62 ¶¶ 8 & 14; Dkt. No. 63 Ex. 40.) These efforts appear to have worked, as the Mill reported below standard radon-222 levels in September 2013 and continuing until May 2014 when they submitted a request to DAQ for permission to cease monthly monitoring. (Dkt. No. 62 ¶¶ 10-11; Dkt. No. 84 Ex. 1.) DAQ granted the Mill's request on July 23, 2014, and informed the Mill that DAQ and DRC agreed that Cell 2 was closed and therefore was not actually subject to Subpart W, but that it would be required to conduct semiannual radon monitoring to maintain its radiation permits. (Dkt. No. 62 ¶ 12; Dkt. No. 63 Ex. 38.) While the Mill awaited DAQ's ...

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