Subpart W Comments (9-4-2014) 

David C. Frydenlund, Senior Vice President and General Counsel 

Energy Fuels Resources (USA) Inc. 

225 Union Blvd., Suite 600 

Lakewood, CO 80228 

Good afternoon. My name is David Frydenlund. I am Senior Vice President and General 

Counsel for Energy Fuels Resources (USA) Inc. We operate the White Mesa Uranium Mill in 

Utah, which is the only operating uranium mill in the United States. We are also in the process 

of permitting the Sheep Mountain project, which is a proposed uranium heap leach processing 

facility in Wyoming. 

I will touch on a few key points this afternoon. Energy Fuels will be submitting more 

comprehensive written comments at a later date. 

1) First, I'd like to note that Energy Fuels agrees with a number of the positions taken by EPA 

in the proposed rules. For example, we agree that evaporation and similar ponds should not 

be counted as one of the two impoundments that may be in operation at any one time under 

the proposed management practice standards. We also agree that there should be no 

limitation on the number and size of such ponds. In order to operate a uranium mill, a large 

evaporative capacity is necessary. Water balance is paramount at a zero-discharge facility 

such as the White Mesa Mill. 

However, requiring the proposed minimum of one meter of water cover can be prohibitively 

burdensome with little or no benefit. As EPA has noted, the radon emissions from saturated 

tailings are only approximately 2% of emissions from dry tailings, and adding one meter of 

water would result in a negligible reduction. However, there are significant costs associated 

with this proposed requirement. 

• First, the cost of maintaining this one meter of water would be significantly greater 

than EPA has estimated, given the high evaporation rates and scarcity of water at 

facilities such as the White Mesa Mill. We will address these costs in more detail in 

our written submissions. 

• Second, this requirement will seriously impact, and may eliminate, a Mill's ability to 

recirculate tailings solutions back into the process, because the addition of fresh water 

will change the chemistry of the solutions. 

• Third, a Mill will be prevented from reducing solution levels in evaporation ponds 

from time to time to inspect and, if necessary perform maintenance activities. 

• Finally, evaporative and holding capacity at a uranium mill is at a premium, and 

adding fresh water to the system would displace needed capacity for process 

solutions. This would generally require construction of additional evaporative and 

holding capacity, at significant capital cost. 

Energy Fuels fully supports added protections to public health, safety and the environment 

when required. However, in these circumstances, the added protections are negligible or 

non-existent and the cost of the added requirements are prohibitive and cannot be justified. 

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Energy Fuels recommends instead that the proposed rule be changed to require full saturation 

or water cover on evaporation ponds during operation, but not to require a minimum liquid 

level in the ponds. 

2) The next point I'd like to make is that the definition of lle.(2) byproduct material in the 

existing and proposed rules is different from the definition in the Atomic Energy Act. We 

don't believe EPA has the authority to promulgate a different definition of lle.(2) byproduct 

material, and in any event a difference in such a key definition can lead to unnecessary 

confusion. Those definitions should be the same. 

3) We also have concerns relating to the proposed application of Subpart W to heap leach 

facilities. A heap leach facility is not a tailings impoundment while in operation. Heap 

leaching is part of the milling process, and the proposed rules would interfere with such 

processing operations. For example, the requirement to maintain a 30% moisture content 

would have the effect of diluting process solutions and impacting operations. This is in stark 

contrast to a tailings impoundment at a uranium mill, where Subpart W does not apply to 

process operations, but only to tailings that have been finally disposed of after processing, 

and hence cannot impact processing. Subpart W should not extend to regulating process 

operations. Once process operations have ceased at a heap leach facility, the facility would 

then go into closure and be subject to the requirements of 10 CFR Part 40 Appendix A. 

Hence, there is no place for regulation under Subpart W at heap leach faci lities. The 

radiological protection programs required under 10 CFR Parts 20 and 40 include adequate 

protections and monitoring for radon at such facilities. 

4) Finally, the removal of the phrase "as determined by the NRC" in 40 CFR 61.252(b)(l) and a 

number of the additional record-keeping requirements amount to dual jurisdiction over the 

construction and operation of tailings impoundments. This is in contravention of Section 275 

of the Atomic Energy Act, under which EPA is required to set standards for the management 

of lle.(2) byproduct material, and the implementation and enforcement of the standards is 

expressly stated to be the responsibility of NRC and Agreement States in the conduct of their 

licensing activities under the Act. Section 275 of the Atomic Energy Act also expressly 

states that no permit is required by EPA for the processing, possession, transfer, or disposal 

of lle.(2) byproduct material. 

Under the proposed rules, an operator would be required to simultaneously go through the 

entire design and permitting process for new tailings cells with the NRC or Agreement State 

and with the EPA. Otherwise, the facility would be subject to possible different 

implementation of the rules by EPA after construction. There is no need for such dual 

jurisdiction in order to implement the NESHAPs requirements under the Clean Air Act, and 

it will unnecessarily burden the regulatory process. Such dual jurisdiction is tantamount to 

EPA requiring a permit for the disposal of lle.(2) byproduct material, in contravention of the 

Atomic Energy Act 

Thank you for the opportunity to comment. As I mentioned earlier, Energy Fuels will be 

submitting more detailed written comments at a later date. 

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