Subpart W Comments (9-4

- 20 14) David C. F ryd enlund, Senior Vice President and Ge neral Co unsel Energy Fuels Resources (USA) Inc. 225 Union Blvd., Su ite 600 Lakewood, CO 80228 Good afternoon. My name is David Frydenlund

. I am Sen i or Vice Pre s ident and Ge neral Counsel for Energy Fuels Re so urces (USA) Inc. We operate the White Me sa Urani um Mill in Utah, which i s the o nly operating uranium mill in the Un it ed States. We are al so in the process of p ermitting the Sheep Mountain project, which is a proposed uranium heap leac h process in g facility in Wyoming.
I will touch on a few key points this afternoon. Energy Fuels will be s ubmittin g more comprehensive written comments at a l ater date. 1) First, I'd like to note that Energy F uels agrees with a number of the positions taken by EPA in th e proposed rules. For example, we agree that evapo ration and similar ponds shou ld not be counted as one of th e 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 s uch ponds. In order to opera te a ur anium mill, a large evaporative capacity i s 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 approx imate ly 2% of emissions from dry tailings, and adding one me ter of water would re s ult in a negligible reduction. However, there are sign ificant costs associated with this propo se d requirement. • First, the cost of maintaining this one meter of water would be sig nificantly greater than EPA has estimated, given the high evaporation rates and scarcity of water at facilities s uch as the White Mesa Mill. We will address these costs in more detai l in our written submissions. • Second, this requirement will ser iously impact, and may eliminate, a Mill 's ability to recirculate tailin gs sol uti ons back into the proce ss, because the addition of fre s h water will change the chemistry of the solutions. • Third , a Mill will be prevented from reducing so lution levels in evaporation pond s from time to time to inspect and, if necessary perform maintenance activities. • Finally, eva porativ e and holding capacity at a uran ium 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 Fuel s fully supports added protecti o ns to public health , safety and the environment when required. However, in the se circ umstances, the added protections are negligible or non -ex is tent and the cost of the added requir eme nt s are prohibitive and cannot be justified

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1Energy Fuels recommends in stead that the propo se d rule be c hanged to require full satura tion or water cover on evaporation ponds during operatio n , but not to require a minimum liquid leve l in the ponds. 2) The next point I'd lik e to make i s that the defin ition of lle.(2) byproduct material in the exis ting and propo sed rul es is different from th e defini ti on in the Atomic Energy Act. We don't belie ve EPA has the authority to promulgate a different definition of lle.(2) bypro duct ma terial, and in any e ve nt a difference in such a key definition can lead to unnece ssa ry confusion. Those d efinitio ns shou ld be the same. 3) We also have concerns relat in g to the proposed applicati o n o f Subpart W to heap leach facilities. A heap leac h facility i s not a tailings impoundment while in operation. Heap leac hin g i s part of the milling proce ss, and the proposed rul es would int erfere with such processing operations. For example, the require ment to maintain a 30% moisture content wou ld hav e the effect of diluting process so luti o n s and impact ing operations. Thi s is in stark contrast to a tailings imp o undment at a uranium mill, where Subpart W does not app ly to process op erations, but on ly to tailings that hav e been finally disposed of after proce ss ing, and henc e cannot impact proce ss in g. Subpart W should not exte nd to regulating process operation s. Once pro cess operations have ceas ed at a heap leac h facility, the facili ty would then go into closure and be subject to the requir ements of 10 CFR Part 40 Appendix A. Hence, there i s no pla ce for regulati o n under Subpart W at heap leach faci liti es. The radiological protection programs required und er 10 CFR Parts 2 0 and 40 include adequate protection s and monitoring for radon at such facilities. 4) Finally , the removal of the phrase "as determin ed by the N RC " in 40 CFR 61.252(b)( l ) and a number of the additional record-keeping requirements amount to dual jurisdiction over the const ru ction and operation of tailin gs im poundments. Thi s is in con trav ention of Secti o n 275 of the Atomic Energy Act, under which EPA i s requ ired to set s tandards for the manage ment of lle.(2) byproduct material, and the implementation and enforcement of the standards is expressly sta ted to be the responsibility of NRC and Agreement States in the conduct of their licensing act ivitie s under the Act. Section 275 of the Atomic Energy Act also express ly s tates that no permit i s r e quired by EPA for the processing, possession, transfer, or disposal of lle. (2) b yproduct m ate rial.
U nder the proposed rul es, an operator would be required to s imultaneou s ly go throu g h the entire design and permitting proce ss for new tailings cells with the NRC o r Agreement State a nd with the EPA. Otherwi se, the facility would be su bject to poss ible dif fere nt implementati o n of the rule s by EPA after construction. There is no need for suc h dual jurisdiction in order to implement the NESHAPs requirement s under the C lean Air Act, and it will unne cess arily burden the regulatory proce ss . Such dual jur isdi ction is tantam ount to EPA requirin g a permit for the di sposal of lle .(2) byproduct m aterial , in co ntravention o f the Atomic Energy Act Thank you for the opportunity to comment. As I mentioned earlier, Energy F uels will be 

### submitting more detailed written comments at a lat er date.

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