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### Environmental Protection Agency 1

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### Public Hearing on 6 

### Proposed Revisions to National Emission Standards 7 

### for Radon Emissions from Operating Mill Tailings 8

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### 9:00 a.m. to 4:30 p.m. 12 

### Wednesday, September 3, 2014 13

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### 1595 Wynkoop Street 15 

### Denver, Colorado 80202 16

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OLENDER REPORTING, INC. 1100 Connecticut Avenue NW, #810, Washington, DC 20 036 Washington: 202-898-1108 • Baltimore: 410-752-3376

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### EPA PANEL: 6 

### ELYANA SUTIN, Chair; EPA 7 

### TOM PEAKE, EPA 8 

### DANIEL SCHULTHEISZ, EPA 9

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### C O N T E N T S 1


### PAGE 2


### THOMAS JOHNSON 11 3 

### FRANK FILAS, Energy Fuels 17 4 

### SARAH FIELDS, Uranium Watch 21 5 

### ANTHONY THOMPSON, National Mining Association 29 6 

### CHRISTOPHER PUSLEY, National Mining Association33 7 

### KATIE SWEENEY, National Mining Association 43 8 

### OSCAR PAULSON, National Mining Association 46 9 

### SARAH FIELDS, Uranium Watch 52 10 

### STEVE BROWN, SENES Consultants 58 11 

### ANTHONY THOMPSON, National Mining Association 60 12


### DOUGLAS CHAMBERS 72 13 

### KIMBERLY MORRISON, Energy Fuels 81 14 

### STEVE BROWN, SENES Consultants 88 15 

### SARAH FIELDS, Uranium Watch 96 16

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### P R O C E E D I N G S 1 

### MS. SUTIN: Good morning everyone. My name 2 

### is Elyana Sutin. And I am the regional judicial 3 

### officer here in EPA Region 8. Thank you all for 4 

### coming this morning. 5 

### I will be presiding over the hearings 6 

### today and tomorrow. Joining me on the panel is 7 

### Tom Peake and Daniel Schultheisz -- 8 

### Schultheisz -- sorry, I apologize, we are just 9 

### meeting for the first time -- from the Office of 10 

### Radiation and Indoor Air in headquarters. 11 

### This hearing is now officially in 12 

### session. We are here today to listen and receive 13 

### your comments on EPA’s proposed revisions to 14 

### national emissions standards for radon emissions 15 

### from operating mill tailings, also known as 40 16 

### CFR, Part 61, Subpart W. 17 

### The EPA is proposing to revise certain 18 

### portions of the standards based on its 19 

### determination as to what constitutes generally 20 

### available control technology or management 21 

### practices, also known as GACT, for this area 225

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### source category. 1 

### EPA announced the proposed rule on May 2


### 2 nd

### , 2014. The comment period started on May 2 nd 

### , 3 

### 2014 and was to end on July 31 st 

### , 2014. On July 4


### 21 st 

### , EPA extended the comment period until 5


### October 29 th 

### , 2014. 6 

### In a moment Tom will explain in more 7 

### detail what was proposed in that notice. But 8 

### before I turn it over to Tom, let me explain a 9 

### little bit about how the hearing will be run 10 

### today. 11 

### There will be two sessions, one this 12 

### morning from 9:00 until noon, and then another 13 

### this afternoon from 1:00 until 5:00 p.m. here in 14 

### this conference room. 15 

### Please be sure that you have checked in 16 

### to the registration desk even if you are not 17 

### planning to speak today. I will call the 18 

### scheduled speakers to the chair in front of us. 19 

### When it is your turn to speak, please sit and 20 

### then state your name, spelling your last name for 21 

### the court reporter, and your affiliation before 226

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### you begin your testimony. Your comments will be 1 

### transcribed and included in the record of the 2 

### comments of the proposed rule. 3 

### In order to ensure that everyone has the 4 

### opportunity to speak, and to ensure fairness, 5 

### please limit your testimony to no more than ten 6 

### minutes. We will signal you when you have one 7 

### minute left to speak. When one minute has passed 8 

### I will ask you to complete your testimony. 9 

### There is no pressure or obligation to 10 

### speak for ten minutes. If your testimony is less 11 

### than that time, that is fine. Just know that you 12 

### have that amount of time to speak this morning. 13 

### We have plenty of time today as well in 14 

### terms of the number of speakers. So if you have 15 

### prepared testimony and then would like to speak 16 

### again later, please go back to the registration 17 

### desk and we might be able to fit you in if there 18 

### is other information that you would like to 19 

### provide. 20 

### That is also true for the folks that have 21 

### come today and were here to listen but have 227

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### decided they want to make a statement. Please go 1 

### to the registration desk and we will be able to 2 

### accommodate you. 3 

### After you finish your testimony members 4 

### of the panel may ask clarifying questions. We 5 

### are not here today to answer those questions 6 

### about the proposed rule. If you have questions 7 

### about the process please find one of the EPA 8 

### representatives after the hearing and they can 9 

### help you. 10 

### If you have written copies of your 11 

### testimony, or supporting documentation, please 12 

### give a copy to our staff at the registration 13 

### table. This will be helpful as we prepare the 14 

### transcript. 15 

### If you have additional comments you would 16 

### like to make you can submit them in writing. 17 

### Comments must be received on or before October 18


### 29 th

### at 5:00 p.m. Let me assure you that EPA 19 

### gives just as much consideration to comments we 20 

### receive in writing as we do the comments that we 21 

### hear today, that we hear at the public hearing 228

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### today. Instructions for submitting comments are 1 

### included in the fact sheet at the registration 2 

### table. You can pick that up at the table as you 3


### leave. 4 

### Today’s public hearing is scheduled to 5 

### end once the last registered speaker has provided 6 

### comments. So if you would like to testify but 7 

### have not registered, as I have said, please do 8



### so. 9 

### Now I will turn things over to Tom, who 10 

### will summarize the proposed rule. 11 

### Thank you. 12 

### MR. PEAKE: Hello. My name is Tom Peake. And 13 

### I am the director of the Center for Waste 14 

### Management and Regulations in the EPA Office of 15 

### Radiation. And with me is Dan Schultheisz, who 16 

### is the associate director of the Center for Waste 17 

### Management and Regulations. 18 

### We are here today to receive your 19 

### comments on EPA’s proposed rulemaking for the 20 

### revisions to the national emission standards for 21 

### radon emission, NESHAPS, from operating mill 229

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### tailings, also known as Subpart W. 1 

### The proposed revisions would require the 2 

### use of generally available control technology, 3 

### GACT, to limit radon emissions from tailings at 4 

### all uranium recovery facilities. Specific 5 

### control technologies would be required at 6 

### conventional tailings impoundments, evaporation 7 

### ponds and heap leach piles. 8 

### We are also proposing to add new 9 

### definitions to this rule, revise existing 10 

### definitions and clarify that the rule applies to 11 

### uranium recovery facilities that extract uranium 12 

### through the in-situ leach method and the heap 13


### leach method. 14 

### Specifically, the EPA is proposing the 15 

### following: 16 

### We are clearly stating that the standards 17 

### apply to all units that contain uranium byproduct 18 

### material. These units include, but are not 19 

### limited to, conventional tailings impoundments, 20 

### evaporation ponds or other nonconventional 21 

### impoundments at uranium recovery facilities, and 2210

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### heap leach piles. 1 

### We are proposing that all uranium 2 

### recovery facilities comply with GACT management 3 

### practices, including the use of double liners and 4 

### leak detection systems. 5 

### The proposed rule would remove the 6 

### requirement for monitoring radon, but limits the 7 

### amount of byproduct material that can be exposed. 8 

### For conventional impoundments, limit tailings 9 

### exposure using either phased disposal or 10 

### continuous disposal. 11 

### For heap leach piles, limit tailings 12 

### exposure using phased disposal and maintain a 30 13 

### percent moisture content in the pile. 14 

### For evaporation ponds, require at least 15 

### one meter of liquid be constantly maintained in 16 

### the pond. 17 

### We are proposing to add definitions for 18 

### when a uranium recovery facility is in operation 19 

### or standby. 20 

### The proposed rule would require the 21 

### owner/operator of a uranium recovery facility to 2211

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### maintain records that confirm that impoundments 1 

### have been constructed according to the 2 

### requirements. 3 

### In summary, we are here today asking for 4 

### your comments on the proposed rule. And as 5 

### previously mentioned, the comment period ends on 6


### October 29 th 

### , 2014. We are looking forward to 7 

### hearing from you. 8 

### Thank you. 9 

### MS. SUTIN: Okay. We will get started. I’d 10 

### like to call up our first speaker, Thomas 11


### Johnson. 12 

### MR. JOHNSON: Thomas Johnson, T-h-o-m-a-s, 13 

### Johnson, J-o-h-n-s-o-n. And I’m just representing 14 

### myself today. 15 

### MS. SUTIN: I’m sorry, we don’t have a 16 

### microphone for you yet. So if you don’t mind 17 

### projecting as loudly as you can, that would be 18 

### great. 19 

### MR. JOHNSON: That’s okay. I’ve been told 20


### I’m loud before. 21 

### So my comment today is that I was very 2212

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### disappointed in the rule that was proposed 1 

### because in my opinion the purpose of the EPA is 2 

### to protect people and the environment from harm. 3 

### Unfortunately, the EPA did not do an 4 

### analysis of at what level radon emissions are 5 

### indeed harmful. I don’t think you looked at the 6 

### risk to humans, real humans, rather than 7 

### imaginary fence line humans. And you didn’t look 8 

### at the need to regulate radon emissions, if 9 

### indeed a need exists. 10 

### The reason I phrase my comment in that 11 

### fashion is because what we would like to do, I 12 

### believe, as a regulatory body, is protect people 13 

### from harm. That should be our number one goal. 14 

### Unfortunately, no one has ever 15 

### demonstrated harm from being around a Subpart W 16 

### facility. Certainly workers have demonstrated 17 

### harm based on epidemiologic studies. 18 

### However, multiple studies have been 19 

### performed by people such as John Boice, the 20 

### National Institutes of Health, that have 21 

### demonstrated there is no increased risk of cancer 2213

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### in the areas and the communities surrounding 1 

### uranium mills. 2 

### Furthermore, the EPA continues to utilize 3 

### the National Academy of Sciences report in which 4 

### they do say that the linear no-threshold model 5 

### upon which EPA bases its risk is only a construct 6 

### and may or may not reflect reality. It is only 7 

### used as a convenience. 8 

### I would hope the EPA would consider that 9 

### as well as the French National Academy of 10 

### Science’s rebuttal to the linear no-threshold 11


### model. 12 

### Furthermore, the EPA should consider the 13 

### Health Physics Society’s position statement when 14 

### looking at radon emissions from these facilities. 15 

### We should be looking at doses to real people, not 16 

### imaginary people. We should also be doing things 17 

### such as measuring doses. 18 

### Unfortunately, the levels that EPA 19 

### currently regulates, Subpart W, are almost 20 

### impossible to measure in any meaningful fashion 21 

### and only doses can be modeled to people. 2214

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### To give you an example of how low the EPA 1 

### limits are and how difficult it is to measure, I 2 

### took a radiation measuring device with me today 3 

### to the parking garage to here. The variation in 4 

### radiation levels at the parking garage at 1660 5 

### Wynkoop over here to over here, was approximately 6 

### 10 microrems per hour. 7 

### Next to my car in the parking lot I read 8 

### approximately 25 microrems per hour on the fourth 9 

### floor. Here I am reading approximately 15 10 

### microrems per hour. 11 

### If you look at the EPA regulation, which 12 

### says we should only have 25 millirems per year, 13 

### that parking garage is in direct violation of the 14 

### EPA’s dose recommendations -- or rules, rather, 15 

### not recommendations -- because this would 16 

### translate to approximately 3 microrems per hour 17 

### at the fence line dose for many of these 18 

### facilities. 19 

### Not only is this less than -- it’s not 20 

### only difficult to measure, the natural 21 

### variability in a place like downtown Denver is 2215

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### greater than that, let alone a place where we 1 

### have more bodies, we have naturally occurring 2 

### structures that can create differences far 3 

### greater than that. 4 

### The other things I noticed about the 5 

### Subpart W was that the EPA certainly did consider 6 

### the costs. And you did use your linear no7 

### threshold model exactly to figure out how to 8 

### minimize doses to the public. 9 

### Unfortunately, you did not take a 10 

### holistic view. If you look at some of the new 11 

### requirements that would be imposed, it would 12 

### require large quantities of earth moving 13 

### equipment, movement of water. And these things, 14 

### it’s been shown time and time again, anytime you 15 

### use earth moving equipment, and anytime you move 16 

### large quantities of dirt, there will be 17 

### fatalities and injuries. 18 

### This was not considered by EPA. We need 19 

### to take a holistic view of the entire worker 20 

### environment. 21 

### One of the other things EPA failed to 2216

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### consider is the most dangerous thing there is, 1 

### according to the Department of Labor, and that is 2 

### for a person to be out of work. So the impact of 3 

### these regulations on the number of people hired, 4 

### or the potential for facilities to be operated or 5 

### not operated, was also not considered by the EPA. 6 

### This is unfortunate because there is 7 

### actually a name in epidemiology for people who do 8 

### not work. It’s called the Healthy Worker Effect. 9 

### Those people who do have work and find work are 10 

### considered healthier and have been proven to be 11 

### healthier by epidemiologists. 12 

### And in fact people who work in industries 13 

### that deal with radioactivity have the most 14 

### profound work Healthy Worker Effect. 15 

### So I would ask the EPA consider all of 16 

### these things in this rule making and in any 17 

### future rule makings, and take a more holistic 18 

### view of not just a single item and single19 

### mindedly pursue the emissions of radon but rather 20 

### look at the entire health of the population and 21 

### the people who live near these facilities. 2217

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### Thank you. 1 

### MS. SUTIN: Thank you, Mr. Johnson. 2 

### Next if we could have Frank Filas. 3 

### MR. FILAS: Good morning. 4 

### MS. SUTIN: Good morning. 5 

### MR. FILAS: My name is Frank Filas. I am 6 

### vice president of permitting and environmental 7 

### affairs for Energy Fuels Resources. Our company 8 

### is currently America’s largest conventional 9 

### uranium producer, supplying approximately 25 10 

### percent of the uranium produced in the United 11 

### States in 2013. 12 

### We have significant concerns with the 13 

### proposed regulations as it appears that the EPA 14 

### is attempting to impose dual regulation over 15 

### portions of uranium recovery operations that are 16 

### already sufficiently regulated by the NRC and 17 

### Agreement States. 18 

### We don’t believe that the EPA needs to 19 

### regulate very low level radiation sources such as 20 

### evaporation or holding ponds. We recommend that 21 

### the Subpart W regulation be limited to size and 2218

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### number restrictions for tailings impoundments and 1 

### other permanent byproduct disposal facilities. 2 

### We believe that the “one-size fits all” 3 

### approach of mandating one meter of water cover 4 

### over evaporation and holding ponds is unnecessary 5


### and wasteful of scarce and valuable water 6 

### resources. The EPA stated the following in its 7 

### October 1984 Final Rule for Radon-222 Emissions 8 

### from Licensed Uranium Mill Tailings in its 9 

### Response to Comments: 10 

### “Recent technical assessments of radon 11 

### emission rates from tailings indicate that radon 12 

### emissions from tailings covered with less than 13 

### one meter of water, or merely saturated with 14 

### water, are about 2 percent of emissions from dry 15 

### tailings. Tailings covered with more than one 16 

### meter of water are estimated to have a zero 17 

### emissions rates. 18 

### The Agency believes this calculated 19 

### difference between 0 percent and 2 percent is 20 

### negligible. The Agency used an emission rate of 21 

### zero for all tailings covered with water or 2219

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### saturated with water in estimating radon 1 

### emissions.” 2 

### Again, this is from a 1984 EPA Response 3


### to Comments. 4 

### Clearly, there would be very little 5 

### benefit to be gained by requiring one meter of 6 

### water cover over material that is already 7 

### saturated with a minimal water cover. Instead 8 

### there would be a significant waste of water 9 

### resources through evaporation of an excessive and 10 

### unnecessary water cover. 11 

### EPA’s calculation of reduced radon 12 

### emissions is incorrect as there would only be a 2 13 

### percent reduction in emissions with one meter of 14 

### water, not 93 percent stated in the rationale for 15 

### this proposed rule. 16 

### In addition, the EPA’s cost estimates for 17 

### maintaining such a water cover are low by many 18 

### orders of magnitude. We estimate that it will 19 

### cost millions of dollars to drill deep wells of 20 

### 1,000 feet or more, or pipelines of many miles to 21 

### supply the additional water needed at 2220

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### conventional mill facilities. 1 

### Evaporation ponds are designed to remove 2 

### solution through evaporation, not to add water. 3 

### An additional one meter of water cover would also 4 

### incur the need for building larger ponds at 5 

### significant additional cost. 6 

### EPA’s proposed replacement of the word 7 

### “tailings” by “byproduct materials or tailings” 8 

### in the definition for “Operation” is inconsistent 9 

### with NRC regulations and appear to be an attempt 10 

### by the EPA to circumvent the previous rescission 11 

### of Subpart T of 40 CFR, Part 61. 12 

### Further, we disagree with EPA’s assertion 13 

### that “the operational life of the heap leach pile 14 

### be from the time that lixiviant is first placed 15 

### on the heap leach pile until the time of the 16 

### final rinse.” 17 

### As long as the heap is being leached, the 18 

### ore on the heap is being processed. It does not 19 

### become 11e.(2) byproduct material until leaching 20 

### is permanently discontinued. 21 

### The heap leaching cycle is essentially no 2221

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### different in theory than the successive leaching 1 

### of uranium that occurs in the counter current 2 

### decantation or CCD circuit of a conventional mill 3 

### where the ore pulp from the leach circuit is 4 

### successively further leached in a series of 5 

### thickeners. The material does not become 6 

### tailings -- i.e.; 11e.(2) byproduct material -- 7 

### until it leaves the final thickener and is 8 

### discharged to the tailings impoundment. 9 

### Thank you for the opportunity to comment. 10 

### Energy Fuels will provide more detailed comments 11 

### at a later date, plus my colleagues will be 12 

### providing testimony in subsequent public hearing 13 

### sessions. I would be happy to answer any 14 

### questions that you might have. 15 

### MS. SUTIN: Thank you very much. 16 

### Next if we could have Sarah Fields. 17 

### MS. FIELDS: My name is Sarah Fields. And I 18 

### represent Uranium Watch in Moab, Utah. 19 

### Thank you for the opportunity to come 20 

### here and provide oral comments. I wish that the 21 

### EPA had been able to also hold hearings in the 2222

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### vicinity of the communities that will be affected 1 

### by these regulations. 2 

### Earlier, as you were planning the Subpart 3 

### W rule making, you went to communities into the 4 

### city and White Mesa and other – I think some 5 

### other communities. But this time apparently you 6 

### didn’t have the funding to actually go to those 7 

### communities with the most important aspect of the 8 

### rule making, which is the proposed rule. 9 

### I was very disappointed in the Federal 10 

### Register Notice. It contains incomplete, 11 

### outdated, erroneous and misleading information. 12 

### One thing I noted was that the EPA sent letters 13 

### to uranium mill licensees asking questions about 14 

### their mills and 11e.(2) byproduct material 15 

### impoundments, but failed to send letters to the 16 

### Sweetwater and Shootaring Canyon Mill licensees, 17 

### or at least you didn’t post those letters and you 18 

### didn’t post any responses. 19 

### Also, you sent a letter to Energy Fuels 20 

### to -- you sent two letters, one was responded to 21 

### and the second was not responded to. And the EPA 2223

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### didn’t follow up on that. 1 

### The EPA justifies the elimination of the 2 

### radon emission standard for “existing” 3 

### impoundments. That would be the White Mesa Mill, 4 

### Shootaring Canyon and the Sweetwater Mills. 5 

### Based on various assertions the EPA claims that 6 

### the White Mesa Cell 3 will close at the end of 7 

### 2014. That appears not to be true. 8 

### According to recent documents from Energy 9 

### Fuels, they plan on keeping Cell 3 open to 10 

### receive ISL waste because they cannot dispose of 11 

### ISL waste in the new Cell 4 until more solid 12 

### tailings have been disposed of in Cell 4A so 13 

### there is a base for the burial of the ISL waste 14 

### which is not processed. 15 

### And then they would need a license 16 

### amendment to authorize the disposal of ISL waste 17 

### in Cell 4A. 18 

### And since they plan on closing -- putting 19 

### the mill on standby at the end of 2014, I don’t 20 

### know when exactly they would be able to use Cell 21 

### 4A for the disposal of ISL waste. So there is no 2224

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### basis for the assumption that Cell 3 would close 1


### at the end of 2014. 2 

### Also, the EPA claims that both the 3 

### Shootaring Canyon and Sweetwater impoundments 4 

### comply with the new requirements, requirements 5 

### for new impoundments in 40 CFR 61.252(b). 6 

### This again is not true. The EPA claimed 7 

### that the Shootaring Canyon Mill has a synthetic 8 

### liner. It does not have a synthetic liner. So 9 

### maybe if you asked for more information from the 10 

### licensee about that impoundment you would have 11 

### learned that it has a clay liner. Unless you’re 12 

### going to redefine the meaning of synthetic to 13 

### mean clay, it does not have a synthetic liner. 14 

### Also, the Sweetwater impoundment is 60 15 

### acres, it’s not 40 acres. So it does not meet 16 

### the 40 acre requirement for a new impoundment. 17 

### So in sum, I don’t think there is the 18 

### factual basis for removing the requirement for 19 

### the radon emissions -- for monitoring and 20 

### reporting the radon emissions from these existing 21 

### impoundments. And the EPA should remember that 2225

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### Subpart W is an emissions standard. It’s a 1 

### standard that’s supposed to regulate the 2 

### emissions. And normally that means setting a 3 

### limit on what those emissions are going to be. 4 

### Yet the EPA intends to completely eliminate any 5 

### requirement -- any kind of limitation on these 6 

### radon emissions at operating uranium mills. 7 

### Now there is only going to be a design 8 

### work -- the design and work practice standards 9 

### for conventional ISL and heap leach facilities. 10 

### And I believe that this does not comply with the 11 

### requirements of the Clean Air Act exception 12 

### 112(h). 13 

### In the Federal Register, notice that you 14 

### didn’t mention Section 112(h) at all. 112(h) is 15 

### work practice standards and other requirements. 16 

### And it says what the purpose is of this section. 17 

### And that is Section 112 and these regulations are 18 

### being promulgated pursuant to Section 112 of the 19 

### Clean Air Act. 20 

### It says for the purposes of this section, 21 

### if it is not feasible in the judgment of the 2226

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### administrator to prescribe or enforce an 1 

### emissions standard for control of a hazardous air 2 

### pollutant or pollutants, the administrator may in 3 

### lieu thereof promulgate a design, equipment, work 4 

### practice or operational standard or combination 5


### thereof. 6 

### So what that means is that the EPA is 7 

### going to promulgate a design, equipment, work 8 

### practice or operational standard or combination 9 

### in place of an emissions standard. The 10 

### administrator must find that it is not feasible 11 

### to prescribe or enforce an emissions standard. 12 

### Although the administrator could not make 13 

### that finding certainly for conventional uranium 14 

### mills because you already have such a standard. 15 

### For decades you have shown that such a 16 

### standard is feasible. It’s feasible to measure 17 

### the radon emissions from these conventional 18 

### impoundments. I think it would have been really 19 

### helpful if the EPA in the Federal Register Notice 20 

### had discussed this provision and how that -- 21 

### these Clean Air Act requirements affect this 2227

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### rulemaking. I also think that for liquid 1 

### impoundments it is possible to calculate the 2 

### radon emissions. 3 

### So under my reading of the Clean Air Act, 4 

### there must be an emission standard and the EPA -- 5 

### unless the administrator finds that such an 6 

### emissions standard is not feasible. And the 7 

### administrator has not done so. 8 

### And then another aspect of the proposed 9 

### rule is the question of the radon flux from 10 

### liquid impoundments. In the evaporation pond 11 

### risk assessment at Table 2, it contains 12 

### information about the radon flux for various 13 

### radium concentrations, and shows the radon flux 14 

### for 3 conventional mills and 8 ISL facilities 15 

### under concentrations of 1, 100 or 1000 picocuries 16 

### per liter. 17 

### However, the EPA didn't actually 18 

### incorporate the actual data on what the radon 19 

### flux is for specific liquid impoundments. 20 

### MS. SUTIN: You have one minute. 21 

### MS. FIELDS: Okay. And I think the EPA 2228

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### should have obtained actual data and information 1 

### on -- as to what the current radon flux is at 2 

### impoundments such as White Mesa Mill and at other 3 

### liquid impoundments, the Sweetwater and ISL 4 

### facilities, so they would have a more accurate 5 

### picture of what the radon emissions actually are. 6 

### There is recent data from White Mesa. I will 7 

### include some of that data in my other written 8


### comments. 9 

### Let’s see -- well, maybe in the second 10 

### round of comments I will be able to touch on a 11 

### few other things. 12 

### Thank you. 13 

### MS. SUTIN: Thank you, Ms. Fields. 14 

### MS. FIELDS: Fields, F-i-e-l-d-s, and Sarah 15 

### with an H. 16 

### MS. SUTIN: We are still trying to figure out 17 

### the IT issues here, but I’m going to take one 18 

### more speaker and then we will take a break so 19 

### that they can come in and -- they have to shut 20 

### everything down and start it back up again. So 21 

### we will have one more speaker and then we will 2229

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### take a short break and come back. 1 

### If I could have Anthony Thompson. 2 

### MR. THOMPSON: My name is Anthony Thompson. I 3 

### am one of a number of speakers on behalf of the 4 

### National Mining Association. I was the lead 5 

### counsel for then the American Mining Congress and 6 

### now the National Mining Association in filing 7 

### comments on Subpart T and Subpart W. And then 8 

### was the lead negotiator for the American Mining 9 

### Congress on the rescission of Subpart T which 10 

### applied to inactive mill tailings impoundments, 11 

### as opposed to Subpart W, which applies to active 12 

### mill tailings impoundments. 13 

### And I believe that there is some 14 

### confusion in the draft about what is an active 15 

### mill tailings impoundments under Subpart W and 16 

### what is an inactive mill tailings impoundment 17 

### that would have been under Subpart T but is now 18 

### under NRC regulations. 19 

### And I point out that during the year or 20 

### so that the rescission of Subpart T was 21 

### negotiated with EPA, with representatives -- NGO, 2230

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### with NRC and Agreement States listening in -- was 1 

### a very complex operation and it required -- 2 

### before rescission of Subpart T it required 3 

### changes to NRC’s 10 CFR, Part 40, Appendix A 4 

### regulations. And those are reflected in Criteria 5 

### 6. And I will mention that it’s very important 6 

### that EPA go back and look at this. And I’m sure 7 

### we will say this in more detail in the comments 8 

### that NMA files. 9 

### I don’t have the actual Federal Register 10 

### pages but at one point we talk about in the 11 

### proposal that after the uranium moves out of the 12 

### heap what remains is 11e.(2). And to the extent 13 

### that active leaching is ceased, that's correct. 14 

### What remains is a waste. And when it becomes a 15 

### waste it’s 11e.(2). 16 

### But is not subject to Subpart W because 17 

### it is an inactive tailings impoundment and would 18 

### be subject to the requirements in Criterion 6 if 19 

### it’s going to be closed in place of Appendix A to 20 

### begin final remediation as soon as practicable. 21 

### And so I think that is part of a problem 2231

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### that comes from the definition of operations 1 

### which Mr. Peake mentioned. 2 

### We agree that a standby mill is still 3 

### operational. Certainly a mill that is actually 4 

### producing uranium, even if it stops for various 5 

### periods during the year, it is an operational 6 

### facility until the day closure begins. 7 

### And when the closure begins, it steps out 8 

### of the Subpart W realm and it would be in what 9 

### was Subpart T, but which is -- no longer exists 10 

### and is subject again to the modifications in 11 

### Criterion 6 of NRC’s regulations. 12 

### For example, the definition of 13 

### operational seems to suggest that if you’re 14 

### continuing to put tailings on a tailings pile, 15 

### that that somehow means it is still operational. 16 

### And that is clearly an incorrect assumption if 17 

### you go back and look at the rescission of 18 

### Subpart T. 19 

### For example, it explicitly identified in 20 

### Criterion 6 is -- where a mill tailings pile 21 

### could be closed in sections, the Western Nuclear 2232

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### pile. 1 

### And the requirement is that if you say 2 

### you’re going to close down a third of it in one 3 

### year, then you have to measure the radon 20 4 

### picocuries per meter squared per second over that 5 

### closed part. And then when you do the next 6 

### third, you have got to do the same thing. But 7 

### that clearly implies that you have part of a 8 

### tailings pile open and you’re putting tailings 9 

### in. If you put the mill in the pile, it can’t be 10 

### an operational facility. And so if you are then 11 

### bringing windblown tailings into the impoundment, 12 

### if you bring -- if you have -- as explicit in 13 

### Subpart W, if you have, for example, an 14 

### evaporation pond either beside, as at Western 15 

### Nuclear, or on top of a tailings impoundment that 16 

### is doing groundwater corrective action actively 17 

### and you need to leave a portion of the pile open, 18 

### that is explicitly provided for in Criterion 6 if 19 

### you can show you meet the 20. 20 

### So there are situations where you are 21 

### going to be putting 11.e(2) byproduct material, 2233

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### whatever it may be -- it could be portions of the 1 

### mill, it could be windblown tailings, it could be 2 

### the liners from an evaporation pond long after 3 

### the mill is gone, long after there is any active 4 

### processing. And that is not subject to Subpart W. 5 

### I think we will explain this in more 6 

### detail in the detailed comments but that is my 7 

### primary comment for the morning. 8 

### MS. SUTIN: Thank you, Mr. Thompson. 9 

### Okay. I think we will take a ten minute 10 

### break to resolve our microphone issues and we 11 

### will be back. 12


### Thanks. 13 

### (Whereupon, a recess was taken.) 14 

### MS. SUTIN: Okay. So let’s get going again. 15 

### I apologize for the delay and I think we are good 16



### now. 17 

### If I could have Christopher Pugsley. 18 

### MR. PUGSLEY: Good morning. I thank you for 19 

### having me today. 20 

### My name is Christopher Pugsley and I am a 21 

### partner and member of the law firm of Thompson 2234

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### and Pugsley. And I serve as outside counsel to 1 

### the National Mining Association. 2 

### My comments today will be strictly 3 

### limited to statutory and regulatory definitions 4 

### and interpretations because I believe, as 5 

### everyone here knows, sometimes the most 6 

### complicating factors associated with any type of 7 

### statutory program lies in the definitions of 8 

### terms, materials, and the execution and use of 9 

### those definitions. 10 

### If I can take a few minutes to talk about 11 

### something that happened about 36 years ago when 12 

### Congress passed the Uranium Mill Tailings 13 

### Radiation Control Act of 1978, which amended the 14 

### Atomic Energy Act of 1954 to define a new class 15 

### of materials from uranium recovery facilities 16 

### known as 11.e(2) byproduct material. 17 

### What people focus on these days is what 18 

### is 11.e(2) and how is it managed and what 19 

### agencies are required to deal with it. What is 20 

### not talked about is the institutional memory 21 

### associated with why that statute was passed in 2235

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### the first place. 1 

### The issue was to deal with a class of 2 

### materials that was previously known as tailings. 3 

### And tailings itself were defined back then not as 4 

### tailings impoundments but as tailings piles. And 5 

### that is important to know going forward because 6 

### the reason Congress passed this statute was 7 

### because there were issues associated with 8 

### potential radiation risks associated with 9 

### tailings or solid materials that were generated 10 

### from uranium recovery operations and stored in 11 

### tailings piles. 12 

### Many of these materials on several 13 

### occasions were used for road fill, foundation 14 

### materials for buildings and homes. Hence, the 15 

### folks that deal with radon on a regulation basis 16 

### know that it’s an issue to use these things for 17 

### foundation materials because radon is at its most 18 

### dangerous in an enclosed area. 19 

### So when the statute was passed in 1978, 20 

### there was a dichotomy of regulatory authority 21 

### that Congress bequeathed on two agencies. 2236

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### First was to the Environmental Protection 1 

### Agency to propose generally applicable standards 2 

### associated with the management and containment of 3 

### the 11.e(2) byproduct material at mill tailings 4 

### facilities. 5 

### The second was through the Nuclear 6 

### Regulatory Commission, which was to -- they were 7 

### directed to implement and execute and enforce 8 

### EPA’s generally applicable standards. 9 

### Now, with that said, you have heard many 10 

### people in the industry talk about that program 11 

### and how the EPA does it. The EPA has a proposed 12 

### rule hopefully coming out sometime in the next 13 

### few months, 40 CFR, Part 192. Those are 14 

### generally applicable standards. 15 

### The one part people do not talk about are 16 

### the definitions of materials that are defined not 17 

### by EPA, and not by NRC, but by Congress. 18 

### Congress defined what 11.e(2) was. And it’s the 19 

### tailings and other wastes associated with uranium 20 

### recovery or processing ores primarily for the 21 

### source material content, in this case uranium. 2237

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### What I’d like to talk about briefly today 1 

### is how important definitions are to this proposed 2 

### rule. And I would like to start with 11.e(2) 3 

### itself and who has the authority to deal with 4 

### this. 5 

### The NRC, the Commission, and not the 6 

### Environmental Protection Agency, have exclusive 7 

### federal preemptive authority over 11.e(2) 8 

### byproduct material. If you need a reference for 9 

### that see the Staff Requirements Memorandum that 10 

### was issued by the Commission in the year 2000 11 

### responding to a paper known as SECY, S-e-c-y-99- 12 

### 023, otherwise known in the industry space as the 13 

### concurrent jurisdiction decision, in which there 14 

### was a dispute from the what was then known as the 15 

### Office of the Executive Legal Director, and now 16 

### known as the Office of General Counsel at NRC, 17 

### over whether states who are non-agreement states 18 

### had dual or concurrent jurisdiction over 11.e(2) 19 

### byproduct material, or more specifically the non20 

### radiological components of 11.e(2). 21 

### The Commission, acting under its 2238

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### exclusive authority from Congress, determined 1 

### that the NRC and not EPA, not states, and no 2 

### other agency had exclusive preemptive 3 

### jurisdiction over both the radiological and non4 

### radiological components of 11.e(2) byproduct 5 

### material. 6 

### Thus, meaning the Commission has the 7 

### exclusive authority to define what is and what is 8 

### not 11.e(2) byproduct material. 9 

### This is important because EPA should take 10 

### care in its proposed rule to assess its 11 

### definitions as they are currently written to look 12 

### back on its administrative rulemaking records 13 

### from the December 1989 final rule on Subpart W 14 

### and adequately assess where they are going in 15 

### terms of jurisdictions. 16 

### Under the Clean Air Act, the EPA is not 17 

### delegated any authority to define what is and 18 

### what is not 11.e(2) byproduct material. They 19 

### cannot define what are known as tailings. 20 

### And as my colleague, Anthony Thompson, 21 

### said earlier, there are multiple classes of 2239

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### materials that are considered waste at a uranium 1 

### recovery facility, hence 11.e(2) byproduct 2 

### material. But as we like to say, all tailings 3 

### are 11.e(2) byproduct material, but not all 4 

### 11.e(2) byproduct materials are tailings. 5 

### For example, as Tony said, the mill 6 

### itself, if not sufficiently decontaminated for 7 

### resale of scrap or whatever offsite disposal 8 

### might be, can be thrown into the tailings 9 

### impoundment as 11.e(2). But no one thinks that 10 

### the mill building are tailings in the 11 

### conventional sense. 12 

### And that takes us to the next point, 13 

### which are fluid retention impoundments. As I 14 

### said before, the Administrative rule making 15 

### records associated with EPA’s initial Subpart W 16 

### rule identified tailings as piles. 17 

### And that is -- makes sense because you’re 18 

### using the definition as articulated by Congress 19 

### of tailings. 20 

### The last time I checked, water is not 21 

### stored in piles. So in my opinion it cannot be 2240

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### demonstrated that when talking about tailings, 1 

### you’re talking about water or any radionuclides 2 

### that are in the water. 3 

### EPA is also not delegated any authority 4 

### under the Mill Tailings Act to define what is and 5 

### what is not 11.e(2) byproduct material. Congress 6 

### defined the term, the Commission is empowered to 7 

### determine what is and what is not. 8 

### All EPA can do is propose generally 9 

### applicable standards for how to deal with 11.e(2) 10 

### byproduct material which the Commission or NRC 11


### has to enforce. 12 

### There are several examples of this where 13 

### the Commission has exercised its authority over 14 

### defining what is 11.e(2) and how a state or 15 

### another entity other than the Commission may 16 

### regulate it. 17 

### For example, in the year 2000 the folks 18 

### in the in-situ field, known as the Milling 19 

### Underground Decision, where the Commission 20 

### defined restoration fluid from an ISR operation 21 

### as 11.e(2) byproduct material. This is a 2241

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### Commission prerogative to define that. 1 

### EPA is not allowed to define tailings as 2 

### restoration fluid because it is not within their 3 

### statutory authority. 4 

### Another example is when the State of 5 

### Texas as an Agreement State tried to alter the 6 

### definition of 11.e(2) byproduct material. The 7 

### then -- I believe it was then called the Office 8 

### of General Counsel at NRC -- basically told Texas 9 

### that either you will revise your definition to be 10 

### consistent with that of the Mill Tailings Act or 11 

### you could risk losing your Agreement State 12 

### authority. And, of course, Texas changed the 13 

### definition. 14 

### Another was a recent example in South 15 

### Dakota where they had rules that were coming out 16 

### that could regulate 11.e(2) byproduct material. 17 

### And the General Counsel’s Office sent a letter to 18 

### the state saying you have no authority to 19 

### regulate this because you’re not an Agreement 20 

### State, that rests with the Commission. 21 

### So what basically the point that I’m 2242

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### trying to make here today is before we start 1 

### analyzing the nuances associated with the 2 

### technical/safety and environmental aspects of 3 

### this proposed rule, it is critical that EPA go 4 

### back and look at its jurisdictional authority 5 

### under the Clean Air Act for these regulations and 6 

### to make sure that their definitions do not 7 

### impermissibly infringe on the exclusive federal 8 

### brand of authority that the Nuclear Regulatory 9 

### Commission has over 11.e(2) byproduct material, 10 

### or what the rule calls uranium byproduct 11 

### material. 12 

### And to ensure that EPA looks back at its 13 

### past administrative record to make sure that the 14


### rule -- that the statute and the rule that was 15 

### supposed to address tailings does not overstep 16 

### its authority into other areas, such as fluid 17 

### retention impoundments, because again water are 18 

### not tailings. 19 

### So thank you for your time. 20 

### MS. SUTIN: Thank you, Mr. Pugsley. 21 

### MR. PUGSLEY: P-u-g-s-l-e-y. 2243

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### MS. SUTIN: Okay. If we could have Katie 1 

### Sweeney, please. 2 

### MS. SWEENEY: S-w-e-e-n-e-y, Katie, 3 

### K-a-t-i-e -- there is lots of ways to spell it. 4 

### Good morning. I’m Katie Sweeney. I am 5 

### with the National Mining Association. We 6 

### represent most of the producers of most of 7 

### America’s minerals, including uranium. We 8 

### represent producers of domestic uranium, as well 9 

### as companies that are undertaking exploration 10 

### projects or have pending applications for 11 

### development of domestic uranium mining projects. 12 

### I know there is going to be several 13 

### speakers from NMA over the next day or so but we 14 

### really are divvying up the topics. And today I’m 15 

### going to be addressing the potential, the very 16 

### serious and significant potential for overlapping 17 

### and duplicative regulations under the proposed 18


### rule. 19 

### So I think my issues follow very nicely 20 

### from what Chris Pugsley was saying because he 21 

### described the rules of NRC and EPA under the 2244

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### Atomic Energy Act as amended by UMTRCA. 1


### But let’s talk about those standards as 2 

### they apply to impoundments. So EPA has generally 3 

### applicable standards NRC implements. Here EPA, 4 

### under the proposed rule, is alleging it's acting 5 

### under its Clean Air Act authority, but truly it 6 

### is kind of upending the structure of the -- the 7 

### structure that Congress intended when it divvied 8 

### it up, certain roles to EPA and to NRC. 9 

### So generally EPA does the standards, NRC 10 

### implements. And this is the way it worked when 11 

### EPA did its 1983 standards on liners. NRC 12 

### amended its regulations to conform to EPA’s 13 

### standards. This was recognized in the current 14 

### Subpart W as it stands now, not the proposal. 15 

### In Section 61252(b)12, they specifically 16 

### talk about phased and continuous disposal in 17 

### impoundments operated in accordance with 40 CFR 18 

### 192.32(a), as determined by the NRC. 19 

### So there was recognition when Subpart W 20 

### was originally promulgated that NRC played that 21 

### role. The NRC -- that the implementing would 2245

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### approve those impoundments, et cetera. 1 

### The proposal as it stands now completely 2 

### eliminates that reference to NRC’s rule, which 3 

### really confirms industry suspicions that EPA is 4 

### trying to carve out a new role for itself here in 5 

### approval of these impoundments, reviewing the 6 

### records for these impoundments, even though NRC 7 

### would have already have done that. 8 

### So we think that EPA needs to go back and 9 

### look at the rulemaking as proposed and reconsider 10 

### the way it doesn’t reflect Congress’ intent on 11 

### what EPA and NRC’s roles over these types of 12 

### materials are. 13 

### And I guess kind of as an overall 14 

### statement, NMA doesn’t really see -- and I think 15 

### more speakers are going to get into this later -- 16 

### what the risk is here and why this rulemaking is 17 

### even needed if the risks are so minimal. 18 

### But if EPA does move forward with the 19 

### rulemaking, it should certainly aspire to 20 

### eliminating opportunities for dual regulation. 21 

### We really don’t need to have two agencies 2246

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### regulating the same thing. It’s just a waste of 1 

### resources not only for the industry but for the 2 

### regulators as well. I think EPA needs to more 3 

### clearly understand its role here and reflect that 4 

### in any proposal moving forward. 5 

### Thank you. 6 

### MS. SUTIN: Thank you, Ms. Sweeney. 7 

### Next if we could have Oscar Paulson. 8 

### MR. PAULSON: Good morning. My name is Oscar 9


### Paulson. That’s P-a-u-l-s-o-n. And I am here to 10 

### discuss specifically research funded by the 11 

### National Mining Association on determining radon 12 

### flux from fluid retention impoundments at uranium 13 

### recovery sites. 14 

### Now, the preamble for the proposed rule 15 

### states our survey of existing ponds shows that 16 

### they contain liquids, and as such this general 17 

### practice has been sufficient to limit the amount 18 

### of radon emitted from the ponds in many cases to 19


### almost zero. 20 

### Because of the low potential for radon 21 

### emissions from these impoundments, we do not 2247

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### believe it is necessary to monitor them for radon 1 

### emissions. 2 

### The preamble continues and also states 3 

### the effect of radon emissions from ponds are so 4 

### low that it is difficult to determine whether 5 

### there is any contribution above background radon 6


### values. 7 

### And the preamble also states we are also 8 

### proposing that there is no maximum area 9 

### requirement for the size of these ponds since the 10 

### chance of radon emissions is small. Our basis 11 

### for this determination is that radon emissions 12 

### from the pond will be expected to be very low 13 

### since the liquid in the ponds acts as an 14 

### effective barrier of radon emissions. 15 

### Given that Radon-222 has a very short 16 

### half-life, 3.8 days, there is simply not enough 17 

### time for approximately 98 percent of the radon 18 

### produced by the solids or from the solution to 19 

### migrate to the water surface and cross the water20 

### air interface before decaying. 21 

### These statements are fully supported by 2248

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### the research that was funded by the National 1 

### Mining Association and conducted by Energy 2 

### Laboratories Incorporated in Casper, Wyoming. 3 

### Now, this research was performed to 4 

### determine Radon-222 flux at the surface of water 5 

### containing Radon-226 in solution and of course 6 

### its decay product, Radon-222 with equilibrium 7 

### under controlled laboratory conditions, 8 

### essentially inside of a controlled building, 9 

### undisturbed, at constant temperature, using an 10 

### accepted method of determining Radon-222 flux. 11 

### Now, this accepted method specifically is 12 

### the one that uses large area activated charcoal 13 

### canisters as described in the paper, Radon Flux 14 

### Measurements on Gardner and Royster Phosphogypsum 15 

### Piles near Tampa and Mulberry, Florida. 16 

### This is the currently accepted method of 17 

### determining compliance to the radon flux 18 

### standards in 40 CFR Part 61.253, determining 19 

### compliance as part of the Subpart W rule, the 20 

### current Subpart W rule. And this method is known 21


### as Method 115. 2249

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### Now, by using this already approved 1 

### method for collection of radon flux data from the 2 

### surface of tailings and tailings impoundments, 3 

### the data gathered in the course of this study of 4 

### flux from fluid surfaces can be effectively 5 

### compared with other detector -- other data 6 

### collected in prior compliance monitoring work 7 

### using large area activated charcoal canisters 8 

### since the measurement method is the same. 9 

### Now, in the study that Energy 10 

### Laboratories did, they set up five barrels 11 

### containing the ionized water with Radium-226 12 

### activities created by dissolving a traceable 13 

### Radium-226 standard in the water in the barrels. 14 

### And the five barrels contained Radium-226 15 

### in activities of zero picocuries per liter -- 16 

### that’s with no radium added -- 5,000 picocuries 17 

### per liter, 10,000 picocuries per liter, 15,000 18 

### picocuries per liter, and finally the last barrel 19 

### had radium solution at 20,000 picocuries per 20 

### liter. 21 

### These solutions were then allowed to 2250

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### reach equilibrium so that the Radon-222 1 

### activities, the daughter product of Radon-226, 2 

### were allowed to reach equilibrium in these 3 

### solutions and obtain the same activity as the 4 

### parent, the radium. 5 

### This was basically done by allowing the 6 

### fluids to sit uncovered in the barrels for 40 7 

### days, which is slightly over ten half-lives for 8 

### the Radon-222, the daughter product. 9 

### Styrofoam floats were created to float 10 

### the large area activated charcoal canisters over 11 

### the radium bearing and radon bearing water in the 12 

### barrels. The large air activated charcoal 13 

### canisters then were placed on top of the 14 

### fiberglass floats so that any flux that would 15 

### pass from the fluid would go through the 16 

### canisters and the Radon-222 captured by the 17 

### charcoal within the canisters. 18 

### And this was done a number of times on 19 

### the fluids in the five barrels. Well, the 20


### results were as follows: 21


### Radon-222 flux from water surfaces even 2251

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### in the case of high Radium-226 and Radon-222 1 

### activities were minimal. And in the case of 2 

### Radium-226 activities up to 5,000 picocuries per 3 

### liter with equivalent activity in Radon-222, they 4 

### were within the range and variability of natural 5 

### background assuming a typical planet-wide 6 

### background flux of 1 to 2 picocuries per meter 7 

### squared second. And this background flux is 8 

### provided by SENES Consultants Limited. 9 

### Construction of a fluid retention 10 

### impoundment and filling it with water containing 11 

### up to 5,000 picocuries per liter of Radium-226 12 

### would merely displace normal background flux of 13 

### the surface soils over which the impoundment was 14


### constructed. 15 

### For this reason specifically, the very 16 

### low radon flux from fluid surfaces, there is no 17 

### need to monitor radon emissions from fluid 18 

### retention impoundments, nor any reason to 19 

### regulate the size or number of such impoundments 20 

### as their emissions would be indistinguishable 21 

### from background. 2252

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### Thank you. 1 

### Are there any questions? 2 

### MS. SUTIN: Hold on, Mr. Paulson. 3 

### MR. PEAKE: Were any of the barrels agitated 4 

### at any time or was it just still -- 5 

### MR. PAULSON: The barrels were not agitated, 6 

### they were left stationary in a temperature 7 

### controlled room. An interesting side, the data 8 

### for this study was presented at a joint National 9 

### Mining Association Nuclear Regulatory Commission 10 

### Uranium Recovery Workshop. And the Power Point 11 

### presentation with all of the data in tabular form 12 

### is on the Environmental Protection Agency Subpart 13 

### W website so it can be regularly reviewed by 14 

### anyone should the need arise. 15 

### MS. SUTIN: Thank you, Mr. Paulson. 16 

### Okay. At this time I would like to call 17 

### back up Sarah Fields. 18 

### MS. FIELDS: This is Sarah Fields with 19 

### Uranium Watch. And I wanted to follow up with 20 

### some of the statements that have been made by the 21


### NMA and Mr. Paulson. 2253

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### Regarding Subpart W, I don’t believe that 1 

### anything in the Clean Air Act states that the EPA 2 

### can only regulate radon emissions from 11.e(2) 3 

### byproduct material. My understanding of the 4 

### Clean Air Act is that it directs the EPA to 5 

### regulate radionuclides, including radon. There 6 

### is no mention of only regulating radon from 7 

### 11.e(2) byproduct material at uranium recovery 8 

### operations. 9


### So the efforts to -- or the statements 10 

### made that appear to want to limit any regulation 11 

### of radon at uranium recovery facilities to the 12 

### radon that is emitted by 11.e(2) byproduct 13 

### material, and therefore eliminating possibly the 14 

### material that -- the liquid impoundments is 15 

### incorrect. 16 

### In fact, I also believe that the EPA 17 

### should regulate the radon emissions from ore 18 

### piles, from the ore pads. And that conventional 19 

### mills and heap leach facilities -- the ore which 20 

### does not have the uranium removed also releases a 21 

### great deal of radon. And yet the EPA has not 2254

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### taken it upon themselves to even consider 1 

### regulating this major source of radon. 2 

### In your discussion of heap leach 3 

### operations, it will take quite a while before the 4 

### ore is placed in an impoundment prior to the 5 

### leaching of a heap leach impoundment with the 6 

### lixiviant. And during that time a lot of radon 7 

### will be released from heap leach impoundments. 8 

### And then as ore is stored at conventional 9 

### mills you have dust, you have releases of radon. 10 

### And I think the EPA should take a hard look at 11 

### also regulating these sources of radon at uranium 12 

### mills. 13


### Also there seems to be a concern that 14 

### under Subpart W that there is now a requirement 15 

### for the approval of new impoundments. Well, 16 

### that’s been the case since 1989 because under 17 

### Subpart A, which under general requirements in 18 

### Section 61.07, a uranium recovery licensee must 19 

### apply for a construction authorization. 20 

### The EPA a few years ago approved the 21 

### construction impoundments at the proposed Pinon 2255

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### Ridge Mill. And in Utah, where the Utah Division 1 

### of Air Quality administers and enforces Subpart W 2 

### and other radionuclide NESHAPS, White Mesa has 3 

### also applied to the Division of Air Quality for 4 

### the construction of new impoundments. So, yes, 5 

### there is dual regulation. 6 

### The NMA seems to believe that dual 7 

### regulation is about the worst possible thing that 8 

### you can have. I don’t believe that. I think if 9


### the EPA does not want a radon flux standard for 10 

### uranium mills, then they should have put a radon 11 

### flux standard in Part 192. They didn't do that. 12 

### They had a chance to do that but they failed to 13


### do so. 14 

### So that was an oversight of the EPA and 15 

### probably Subpart W came along because of the 16 

### EPA’s failure to establish certain radon flux 17 

### standards for uranium mills. 18 

### Now, with regard to the emissions from 19 

### liquid impoundments. There is recent data 20 

### regarding the radium concentration at the 21 

### impoundments at the White Mesa Mill. In the 2256

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### EPA’s evaporation pond risk assessment, they 1 

### determine that for the White Mesa Mill liquid 2 

### impoundment, that there would be a radon flux of 3 

### 7 picocuries per liter per second for every 1,000 4 

### picocuries per liter of radium. 5 

### What the EPA did not do is go to the 6 

### White Mesa Mill licensee and get some data as to 7 

### exactly how much radium was in specific 8 

### impoundments. They could have done that but they 9 

### failed to do so. But there is recent data in the 10


### November 1 st 

### , 2013 White Mesa Mill 2013 annual 11 

### tailings wastewater monitoring report for the 12 

### groundwater discharge permit. And this document 13 

### is available on the Division of Radiation Control 14 

### website. There is data. 15 

### And my calculations are just based on the 16 

### EPA’s determination of what the radon flux would 17 

### be based on the amount of radium in a tailings 18 

### impoundment -- in a liquid impoundment. And in 19 

### this case at White Mesa, they have a liquid 20 

### impoundment on two -- two tailing cells that also 21 

### receive tailings, so that’s Cell 3 and Cell 4A. 2257

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### And then at White Mesa, they have two 1 

### impoundments that are just receiving liquids. 2 

### That’s Cell 1, which is an older impoundment, and 3 

### the newer Cell 4B. So based on the Gross Radium 4 

### Alpha for Cells 1, 3, 4A and 4B the radon 5 

### emissions go from 102 to 573 picocuries per meter 6 

### squared per second. And that’s rather high, 7 

### that’s a little bit above the negligible -- a 8 

### little bit above 20 picocuries, the current 9 

### standard for solid tailings, which is 20 10 

### picocuries per meter squared per second. 11 

### Now, all I have is this data. Perhaps 12 

### Energy Fuels Resources would have a different 13 

### take on this. Perhaps if the EPA looked at this 14 

### data they would have a different take on this. 15 

### But the fact is the EPA did not look at this 16 

### data. The EPA did not keep doing research on 17 

### some of these pertinent aspects of uranium mills. 18 

### And maybe -- since I probably have a few more 19 

### minutes, go to the question of GACT, generally -- 20 

### MS. SUTIN: One minute left. 21


### MS. FIELDS: Huh? 2258

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### MS. SUTIN: One minute. 1 

### MS. FIELDS: Oh, one minute. 2 

### Okay. Well, I think maybe I -- since I have 3 

### covered these couple of issues, so maybe I will 4 

### save this for this afternoon. 5 

### Thank you. 6 

### MS. SUTIN: Thank you, Ms. Fields. 7 

### Okay. Those were all of the speakers 8 

### that we have listed so far. So we will take a 9 

### pause in the hearing until there are other people 10 

### that show up that would like to speak. 11 

### Thank you. 12 

### (Whereupon, a recess was taken.) 13 

### MS. SUTIN: We have a few more speakers. 14 

### First we have Steve Brown. 15 

### MR. BROWN: Good morning. My name is Steve 16 

### Brown, B-r-o-w-n, with SENES Consultants of 17 

### Englewood, Colorado. And I am signed up to speak 18 

### tomorrow but I just wanted to comment on some 19 

### things that I heard this morning just very 20 

### quickly in regards to the subject of radon 21 

### evolution from moisture ponds and so forth. 2259

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### Mr. Paulson had made references specific 1 

### to an empirical study that was done. And I think 2 

### it was you, Tom, that asked a very pertinent 3 

### question, would be were they still or were they 4 

### agitated in some way. 5 

### Let me remind the EPA of the submittal by 6 

### SENES Consultants that was submitted by Energy 7 

### Fuels to EPA Region 8 in regards to Pinon Ridge 8 

### Mill application and background information for 9 

### Subpart W application which address the research 10 

### of this physics associated with radon evolution 11 

### in holding ponds. We have included looking at 12 

### research and literature and information and 13 

### provided the physics and mathematics, putting 14 

### different credible wind speeds across the ponds. 15 

### I know several speakers this morning 16 

### alluded to essentially -- and even EPA’s own data 17 

### from the days with 2 percent emission from wet 18 

### tailings. Radon does not evolve from water 19 

### bodies, period. It’s a matter of the physics. 20 

### And the EPA is well advised in the interest of 21 

### the citizens of the United States to look at 2260

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### physics and research already in the literature. 1 

### Thank you. 2 

### MS. SUTIN: Thank you, Mr. Brown. 3 

### Next, if we could have Anthony Thompson 4 

### again. 5 

### MR. THOMPSON: I just want to take this 6 

### opportunity perhaps to go into a little bit more 7 

### detail when we talk about the issue of 8 

### duplicative regulation. 9 

### When the Subpart T regulations came out, 10 

### the American Mining Congress filed a lawsuit. 11 

### Subsequently there were negotiations with EPA, 12 

### with the NRC and Agreement States as interested 13 

### listeners. And at one point actually NRC thought 14 

### we were not part of this so we are not going to 15 

### play, but we recognize that if EPA was going to 16 

### rescind, then there were going to have to be 17 

### changes in NRC’s regulations, NRC had to play. 18 

### And I actually went out with -- at the 19 

### request of EPA staff and OGC and EPA sat in the 20 

### Commission meeting room with the EPA people to 21 

### explain to the commissioner’s assistants why NRC 2261

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### should pay attention to this. 1 

### This took about a year of long phone 2 

### calls working through things and things came out 3 

### such as, well, you know that a tailings pile 4 

### could have an evaporation pond or a pond on the 5 

### surface of the tailings pile, because if the 6 

### groundwater corrective action is ongoing -- 7 

### although you have covered the tailings pile -- or 8 

### you may have, as I mentioned earlier, phased 9 

### closure of a pile, or you may want to keep out -- 10 

### you may want to keep a portion of a pile open for 11 

### 11.e(2) from someplace else, which is -- all of 12 

### this was developed through the extensive 13 

### negotiations that involved Sierra Club, EPA and 14 

### American Mining Congress. And the point here was 15 

### to avoid having NRC and EPA both regulate 16 

### inactive tailings facilities. 17 

### And what EPA wanted with respect to EPA’s 18 

### concern and that of the NGO’s was that once they 19 

### had shut the mill down, because economics were 20 

### not good and they were not going to go any 21 

### further, that they would just let the tailings 2262

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### pile sit there and emanate radon. 1 

### So the idea was -- and what happened was 2 

### before EPA rescinded Subpart T was that NRC 3 

### modified its regulations. And I mentioned 4 

### Criterion 6 where they have these milestones, 5 

### interim cover, et cetera, et cetera, in order to 6 

### forego the concern of the NGO and EPA staff that 7 

### they would just let the pile sit there. 8 

### So, you know, this was all worked out in 9 

### rather meticulous detail. And EPA did not 10 

### rescind Subpart T until NRC amended its 11 

### regulations in accordance with the agreement that 12 

### we had as a part of a settlement of a lawsuit. 13 

### I might also mention that subsequently 14 

### Subpart I of the Clean Air Act regulations was 15 

### also rescinded. And it was EPA who said, you 16 

### know, we have looked at the fuel cycle 17 

### facilities, it’s more than uranium recovery. And 18 

### we see that the exposure is way down, you know, a 19 

### couple of millirem a year, three or four or 20 

### something, but below ten. 21 

### And so we said, you know, there is no 2263

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### point in having two agencies do things if you 1 

### don’t think there is a need to. Well, what came 2 

### out of that was the ten millirem constraint 3 

### requirement, which really isn’t a regulation, but 4 

### if you go above ten millirem at one of these 5 

### facilities and go to the public and you have to 6 

### explain it. 7 

### The point is that what happened with 8 

### Subpart T was you had to measure pursuant -- 9 

### because the Clean Air Act Subpart T required 10 

### measuring the tailings to ensure that you met 20 11 

### average over the whole pile. 12 

### The EPA design standard in 192 under the 13 

### Atomic Energy Act just was a design standard that 14 

### would meet the 20 picocuries. 15 

### But as part of the settlement and 16 

### rescission, you had to measure it. You had to 17 

### demonstrate it’s measured. So that’s just a 18 

### little more information why we were able to avoid 19 

### overlapping regulation by getting things at EPA, 20 

### or EPA and the other groups felt were important, 21 

### to sort of ease their concerns, shall we say, 2264

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### such as the very timely cover of the tailings and 1 

### then the ten millirem constraint. 2 

### So thank you. 3 

### MS. SUTIN: Thank you, Mr. Thompson. 4 

### Anybody else wishing to speak while we 5


### are back on the record? 6 

### Okay. Well, we will pause the hearing 7 

### again. And if no one has come by 11:30, I think 8 

### we will close the morning session and we will 9 

### start up again at 1:00 o’clock. 10 

### Thank you. 11 

### (Whereupon, a recess was taken.) 12 

### MS. SUTIN: We will close the morning session 13 

### for today and we will start back up again at 1:00 14 

### o’clock. This session is officially closed. 15 

### Thank you. 16 

### (Whereupon, a recess was taken.) 17


### MS. SUTIN: Good afternoon. 18 

### My name is Elyana Sutin and I am the 19 

### regional judicial officer here in EPA Region 8. 20 

### Thank you all for coming this afternoon. 21 

### I will be presiding over the hearing 2265

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### today. Joining me on the panel is Tom Peake and 1 

### Dan Schultheisz from the Office of Radiation and 2 

### Indoor Air in headquarters. The hearing is now 3 

### in session. 4 

### We are here today to listen and receive 5 

### your comments on EPA’s proposed revisions to 6 

### national emissions standards for radon emissions 7 

### from operating mill tailings, also known as 40 8 

### CFR, Part 61, Subpart W. 9 

### The EPA is proposing to revise certain 10 

### portions of the standards based on its 11 

### determination as to what constitutes generally 12 

### available control technology or management 13 

### practices, also known as GACT, for this area 14 

### source category. 15 

### EPA announced this proposed rule on May 16


### 2 nd

### , 2014. The comment period started on May 2 nd 

### , 17 

### 2014 and was to end on July 31 st 

### , 2014. On July 18


### 21 st 

### , EPA extended the comment period until 19


### October 29 th 

### , 2014. 20 

### In a moment Tom will explain in more 21 

### detail what was proposed in that notice. But 2266

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### before I turn it over to Tom, let me explain a 1 

### bit about how today’s hearing will run. 2 

### We had a session this morning, as many of 3 

### you know, and we have another session this 4 

### afternoon from 1:00 until 5:00 p.m. We will have 5 

### the same two sessions tomorrow. 6 

### Please be sure that you have checked in 7 

### to the registration desk even if you are not 8 

### planning to speak today. I will call the 9 

### scheduled speakers to the podium. When it is 10 

### your turn to speak, please state your name, spell 11 

### your last name for the court reporter, and your 12 

### affiliation before you begin your testimony. 13 

### Your comments will be transcribed and included in 14 

### the record of the comments of the proposed rule. 15 

### In order to ensure that everyone has the 16 

### opportunity to speak, and to ensure fairness, 17 

### please limit your testimony to ten minutes. We 18 

### will signal to you when you have one minute left 19 

### to speak. When one minute has passed, I will ask 20 

### you to complete your testimony. 21 

### There is no pressure to speak for ten 2267

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### minutes. If your comments are less than that, 1 

### that is fine. 2 

### As we did this morning, we will allow 3 

### people to speak again as long as that testimony 4 

### is new and discreet information that was not 5 

### provided in your earlier testimony. We want to 6 

### avoid repetition and we also want to avoid 7 

### rebuttal of other people’s comments. So you are 8 

### welcome to speak again as long it is new 9 

### information. 10 

### After you finish your testimony members 11 

### of the panel may ask clarifying questions. We 12 

### are not here today to answer those questions 13 

### about the proposed rule. If you have questions 14 

### about the process please find one of the EPA 15 

### representatives after the hearing. 16 

### If you have written copies of your 17 

### testimony, or supporting documentation, please 18 

### give a copy to our staff at the registration 19 

### table. This will be helpful as we prepare the 20 

### transcript. 21 

### If you have additional comments you would 2268

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### like to make you can also submit them in writing. 1 

### Comments must be received on or before October 2


### 29 th

### at 5:00 p.m. 3 

### Let me assure you that EPA gives just as 4 

### much consideration to comments we receive in 5 

### writing as we do to comments that we receive at 6 

### public hearings. Instructions for submitting 7 

### comments are included on the fact sheet at the 8 

### registration table which you can pick up outside 9


### the door. 10 

### Today’s hearing is scheduled to end once 11 

### the last registered speaker has provided 12 

### comments. So if you would like to testify but 13 

### have not registered to do so, please sign up at 14 

### the tables outside of the room. 15 

### Now I will turn things it over to Tom, 16 

### who will summarize the proposed rule. 17 

### Thank you. 18 

### MR. PEAKE: Thank you. 19 

### Hello, my name is Tom Peake, and I am the 20 

### director of the Center for Waste Management and 21 

### Regulations in the Office of Air and Radiation -- 2269

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### Radiation and Indoor Air. And with me is Dan 1 

### Schultheisz. 2 

### We are here today to receive your 3 

### comments on EPA’s proposed rulemaking for the 4 

### revisions to the national emission standards for 5 

### radon emission, NESHAPS, from operating mill 6 

### tailings, also known as Subpart W. 7 

### The proposed revisions would require the 8 

### use of generally available control technology, 9 

### GACT, to limit radon emissions from tailings at 10 

### all uranium recovery facilities. Specific 11 

### control technologies would be required at 12 

### conventional tailings impoundments, evaporation 13 

### ponds and heap leach piles. 14 

### We are also proposing to add new 15 

### definitions to this rule, revise existing 16 

### definitions and clarify that the rule applies to 17 

### uranium recovery facilities that extract uranium 18 

### through the in-situ leach method and the heap 19


### leach method. 20 

### Specifically, the EPA is proposing the 21 

### following: 2270

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### We are clearly stating that the standards 1 

### apply to all units that contain uranium byproduct 2 

### material. These units include, but are not 3 

### limited to, conventional tailings impoundments, 4 

### evaporation ponds or other nonconventional 5 

### impoundments at uranium recovery facilities, and 6 

### heap leach piles. 7 

### We are proposing that all uranium 8 

### recovery facilities comply with GACT management 9 

### practices, including the use of double liners and 10 

### leak detection systems. 11 

### The proposed rule would remove the 12 

### requirement for monitoring radon, but limits the 13 

### amount of byproduct material that can be exposed. 14 

### For conventional impoundments, proposed to limit 15 

### tailings exposure using either phased disposal or 16 

### continuous disposal. 17 

### For heap leach piles, limit tailings 18 

### exposure using phased disposal and maintaining a 19 

### 30 percent moisture content in the pile. 20 

### For evaporation ponds, require at least 21 

### one meter of liquid be constantly maintained in 2271

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### the pond. 1 

### We are proposing to add definitions for 2 

### when a uranium recovery facility is in operation 3 

### or standby. 4 

### And lastly, the proposed rule would 5 

### require the owner/operator of a uranium recovery 6 

### facility to maintain records that confirm that 7 

### impoundments have been constructed according to 8 

### the requirements. 9 

### In summary, we are here today asking for 10 

### your comments on the proposed rule. The comment 11 

### period ends on October 29 th 

### , 2014. We are looking 12 

### forward to hearing from you today. 13 

### Thank you. 14 

### MS. SUTIN: Okay. I would like our first 15 

### speaker to come up and sit in the chair, please. 16 

### And that is Douglas Chambers. 17 

### MR. CHAMBERS: Thank you very much. I 18 

### appreciate the opportunity to be here today. I 19 

### was originally scheduled to talk tomorrow morning 20 

### so of course my notes are actually back in my 21 

### hotel room, so I will do the best I can off of 2272

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### the top of my head. So I apologize for any 1 

### confusion. I would be very happy to answer 2 

### questions. I will be here tomorrow morning in 3 

### case something occurs overnight. 4 

### In any event, I am Doug Chambers, PhD in 5 

### Physics, graduate courses in -- I actually taught 6 

### graduate courses as well in atmospheric 7 

### dispersion and biostatistics. 8 

### I have been in the business of 9 

### environmental radioactivity for longer than I 10 

### care to remember, but 40 odd years. I’m 11 

### particularly interested in the front-end of the 12 

### nuclear fuel cycle and uranium mining and 13 

### milling. And in potential health effects 14 

### associated with front-end with the fuel cycle, 15 

### which the large degree are perceived to be those 16 

### associated with exposure to Radon-222. 17 

### I have a few general comments to make, 18 

### which I originally thought I was limited to five 19 

### minutes so I may end at five minutes or I may 20 

### carry on to close to ten. 21 

### So I’m going to primarily focus on radon, 2273

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### radon variability, and a few specific comments to 1 

### put in context. It is a bit embarrassing to show 2 

### my age but I was involved in the original NESHAPS 3 

### discussions with EPA and heavily involved in the 4 

### 20 picocuries per meter squared per second and 5 

### the decision of presumptively safe, which is the 6 

### exact terminology if you go back and look at the 7 

### rule making. 8 

### And I think it is relevant in support of 9 

### that, a number of people or so could -- for 10 

### example, did calculations of radon concentrations 11 

### and dose. For example, for all of the 12 

### phosphogypsum stacks in the United States and 13 

### other circumstances. And based on their own 14 

### calculations, and we had similar results, it was 15 

### concluded that radon from uncovered phosphogypsum 16 

### stacks and radon at 20 picocuries meters squared 17 

### per second did not pose a material health risk to 18 

### the people living in the environment. This is 19 

### well documented in the extensive annexes to the 20


### BID. 21 

### It’s very important to understand that 2274

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### radon is everywhere. Radon is everywhere because 1 

### the parent, Radium-226, is everywhere. And all 2 

### soils and rocks contain Radium-226. Building 3 

### materials in this building will contain Radium4 

### 226. And some portion of the Radon-222 that is 5 

### produced by the radioactive decay of radium is 6 

### released, first of all, to the pore space in the 7 

### soils, rocks, and building material. And if it 8 

### survives long enough before decaying to a solid 9 

### radioactive decay product, can be released to the 10 

### atmosphere, where it is dispersed in the 11 

### atmosphere. 12 

### And so basically there is rocks and soil 13 

### everywhere so there is radon everywhere. And 14 

### radon has a half-life of approximately 3.82 days. 15 

### So if you imagine -- say for example 16 

### simply put a sandy material and radon is released 17 

### from radium containing matrix in the depth of the 18 

### pile, it has to migrate from some depth in 19 

### natural materials or soils or radium tailings to 20 

### the surface. And if that migration takes longer 21 

### than 3.82 days, it will decay to a solid material 2275

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### and not actually escape from the surface of the 1 

### material. 2 

### It is well established that EPA correctly 3 

### points out in their rule making and there is a 4 

### great deal of documentation, much of it 5 

### originating with Tanner from the past, that 6 

### indicates or demonstrates quite conclusively 7 

### actually that the diffusion coefficient for 8 

### Radon-222 in air is 10,000 times greater than it 9 

### is in water. 10 

### And simply put, that means the length of 11 

### time it takes for radon to diffuse through water 12 

### is roughly proportionate to the square root of 13 

### that. I think there may be a square root missing 14 

### in your document. So the bottom line is water is 15 

### very effective at attenuating radon gas. 16 

### And our experience has been and we can 17 

### show by calculation and by measurement actually 18 

### that if the pore space in solid material, whether 19 

### it’s soils or tailings materials, is filled with 20 

### water, the radon release is not zero, but for 21 

### practical purposes it’s as close to zero as you 2276

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### could imagine. 1 

### And therefore basically I would argue 2 

### that the difference if you have say uranium 3 

### tailings that are saturated and maintained in a 4 

### saturated state, there is very little difference 5 

### in the amount of radon that would be released 6 

### from the surface of the tailings that are 7 

### saturated and from tailings that are covered with 8 

### 10 centimeters or 20 centimeters or a meter of 9


### water. 10 

### And it’s not clear from the documentation 11 

### that the EPA provided why it is necessary to 12 

### maintain a one meter of water cover. One of the 13 

### operators may comment, may be more knowledgeable 14 

### than I am on the need in the western U.S. to 15 

### conserve water in the role of evaporation ponds. 16 

### So basically EPA is absolutely correct in 17 

### my view in basically saying what I said, that 18 

### there is very little difference, you have 2 19 

### percent and 98 percent. Water is very effective 20 

### in attenuating the release of radon. 21 

### And so the only question I have there is 2277

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### it is not obvious why you actually need a meter 1 

### of water cover. I can understand why you want to 2 

### maintain some nominal water cover to maintain 3 

### saturation because that would be effectively the 4



### same. 5 

### The other thing I want to mention is 6 

### radon is everywhere. And the health effects with 7 

### radon is associated not with short term 8 

### exposures, but with chronic exposures. Typically 9 

### we look at annual exposures. I might add that I 10 

### am very familiar with the health effects. I 11 

### wrote -- which is basically everything you want 12 

### to know about levels and exposures like radon. 13 

### And I’m a member of NCRP Committee 85 that looked 14 

### at radon. And I’m ICRP Committee 2 that is coming 15 

### up with those numbers and factors and other 16 

### things for radon as well. 17 

### And so basically radon is everywhere. 18 

### Radon concentration is everywhere. If you 19 

### measure radon in the morning and measure at 20 

### night, it could easily be different. If you 21 

### measure it indoors, it’s much higher than 2278

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### outdoors. If you measure it in calm valley 1 

### bottoms it’s likely higher in the mornings until 2 

### the wind comes up and disperses it. 3 

### The bottom line is it’s everywhere. And 4 

### EPA and others have published data for variation 5 

### of ambient radon across the country that ranges 6 

### from less than a tenth of a picocurie per liter 7 

### to perhaps as much as two, or even more than two 8 

### picocuries per liter out of doors. 9 

### And I would argue, and I think it’s 10 

### pretty defensible that at the levels of radon 11 

### from uranium mill tailings, we see it in the 12 

### United States or evaporation ponds, there is no 13 

### current technology that would enable you to 14 

### identify a signal from the incremental radon from 15 

### tailings in the light of a variable background 16 

### that is typically much higher. 17 

### So I think the comments you want to make, 18 

### just to repeat, is that water is very effective 19 

### at reducing radon flux, number one. Number two, 20 

### radon is variable and everywhere. 21 

### And I have just one or two more quick 2279

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### comments, if I may. I’m not sure what the time 1 

### line is from this document. 2 

### MS. SUTIN: You have one-and-a-half minutes. 3 

### MR. CHAMBERS: Perfect, almost totally 4 

### unrehearsed impromptu, I might add. So I do plan 5 

### to submit short written comments with a few 6 

### citations. 7 

### And one of the things I wanted to take 8 

### the opportunity is -- if I can find it -- there 9 

### is a reference here, I thought I had it marked, 10 

### to risk from radon. I apologize, I’m thumbing 11 

### through the document -- here we go. 12 

### Yeah, it is on page 25396 of the Federal 13 

### Register, there is reference made to estimating 14 

### the total cancer risk to populations surrounding 15 

### all ten modeled uranium facilities, approximately 16 

### 4 million people living within 80 kilometers. 17 

### The total risk to all 4 is between .0015 and 18 

### .0026 cancers per year. I'm not exactly sure 19 

### what the average lifetime is but it is probably 20 

### in the order of 75 years. To make it easy, make 21 

### it 80 years and you come up with a .3 to .4 2280

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### cancers, which are essentially lung cancers of 1 

### the bronchial epithelial tissues in that 4 2 

### million people. 3 

### The reality is that if you look at 2014 4 

### National Cancer Statistics from the National 5 

### Cancer Association of the United States, one in 6 

### four of us will develop a cancer -- pardon, one 7 

### in two of us will develop a cancer -- I’m almost 8 

### done -- and one in four of us will unfortunately 9 

### die from cancer. 10 

### For the case of lung cancer, 11 

### approximately 6 percent in women and 7 percent in 12 

### men will develop lung cancer, which has a high 13 

### mortality rate. So that is 7 in a 100 from 14 

### natural background. 15 

### Okay. So you multiply 7 times 4 million 16 

### people, but what you’re adding from the risk that 17 

### we see in the Federal Register, which I agree 18 

### with is tiny, it’s about 5 decimal points smaller 19 

### than the variability in natural background. It’s 20


### not -- 21 

### MS. SUTIN: I need you to wrap up, Mr. 2281

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### Chambers. 1 

### MR. CHAMBERS: I’m done. I think basically 2 

### water attenuates radon, radon levels are 3 

### variable, and I agree with EPA that -- in terms 4 

### of the reduced monitoring. 5 

### Thank you. 6 

### MS. SUTIN: Thank you. 7 

### Next if we can have Kimberly Morrison. 8 

### MS. MORRISON: Hi, my name is Kim Morrison, 9 

### last name is spelled M-o-r-r-i-s-o-n. And I am a 10 

### consulting geotechnical engineer representing 11 

### Energy Fuels. And I am the environmental manager 12 

### for the proposed Sheep Mountain Project in 13 

### Wyoming. 14 

### The Sheep Mountain Project, which 15 

### includes a proposed uranium heap leach facility, 16 

### was heavily referenced by the EPA in the 17 

### background information for the proposed rules. 18 

### However, there is a clear 19 

### misunderstanding by the EPA on the concepts of 20 

### heap leaching, the reduced level of radium in a 21 

### uranium heap leach facility as compared to a 2282

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### uranium tailings impoundment, and a fundamental 1 

### misunderstanding of the difference between 2 

### moisture saturation and moisture content. 3 

### When uranium ore is being leached on heap 4 

### leach facility, it is actively recovering uranium 5 

### and is neither “tailings” nor 11.e(2) byproduct 6 

### material as defined by the Atomic Energy Act. 7 

### When uranium recovery is complete, however, the 8 

### spent ore then becomes 11.e(2) byproduct 9 

### material. 10 

### But at that time the facility is no 11 

### longer active nor operational. As such, a heap 12 

### leach facility, by definition, is not applicable 13 

### to the Subpart W rules that by title are 14 

### applicable to mill tailings in operating 15 

### facilities. 16 

### If the position that heap leach 17 

### facilities are applicable to Subpart W is 18 

### maintained, then the EPA needs to understand the 19 

### various types of heap leach facilities proposed 20 

### for uranium recovery. The revised rules focus 21 

### merely on regulating in-place permanent 2283

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### conventional heap leach facilities, but make no 1 

### mention of other facilities, such as on-off heap 2 

### leach facilities where material is leached on an 3 

### engineered pad after which the leached ore is 4 

### removed and placed in a permanent disposal 5 

### facility. 6 

### The EPA has proposed that heap leach 7 

### facilities maintain a minimum moisture content of 8 

### 30 percent. Based on a review of the background 9 

### information, it appears that the EPA are 10 

### referring to the moisture content as a percentage 11 

### of the weight. 12 

### The proposed 30 percent water content is 13 

### neither practical nor achievable if the heap 14 

### leach facility is operated as intended. To put 15 

### the proposed 30 percent moisture content into 16 

### perspective, this would correspond to 185 percent 17 

### ore saturation for the proposed Sheep Mountain 18 

### Project. 19 

### As such, this proposed rule would require 20 

### that the ore be not only fully saturated but 21 

### submerged at all times. We have reviewed the 2284

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### background information that EPA used to support 1 

### the 30 percent moisture content proposal and 2 

### found a number of invalid assumptions in their 3 

### approach. 4 

### For instance, moisture saturation as a 5 

### percent of available void space and moisture 6 

### content as a percent of weight are not 7 

### interchangeable parameters, nor is the 8 

### relationship between the two parameters a 9


### constant. 10 

### Low grade ore is typically processed by 11 

### heap leach methods, and a low grade ore contained 12 

### within a heap leach facility emits less radon 13 

### than a conventional tailings impoundment of a 14 

### similar size assuming similar physical 15 

### conditions. 16 

### For example, the proposed ore grade -- 17 

### excuse me, the ore grade at the proposed Sheep 18 

### Mountain Project is approximately 0.1 percent 19 

### uranium, while ore grades of about 0.2 to 0.7 20 

### percent uranium have been processed at the White 21 

### Mesa Mill over the past three years. 2285

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### As such, EPA’s one size fits all approach 1 

### to setting moisture content requirements and area 2 

### requirements for heap leach facilities is overly 3 

### conservative and this should be determined 4 

### instead based on data and analysis. 5 

### In summary, using liquid levels to 6 

### control radon emissions from a heap leach 7 

### facility conflicts with the overall operational 8 

### concept of a heap leach facility. It would 9 

### significantly dilute the leaching solution, it 10 

### would have an adverse effect on the process, it 11 

### would significantly increase the driving head on 12 

### the underlying liner system. It would result in 13 

### much greater construction and operating costs for 14 

### the facilities. And lastly, it would result in 15 

### the wasteful consumption of water. 16 

### Thank you for your time. 17 

### MS. SUTIN: Hold on, Ms. Morrison. We have a 18 

### question. 19 

### MR. PEAKE: Will you be submitting the 20 

### information in detail that you were discussing so 21 

### that we will have that in our records? 2286

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### MS. MORRISON: Yes. As Frank Filas mentioned 1 

### this morning, Energy Fuels is in the process of 2 

### preparing a very lengthy comment document. We 3 

### are about at thirty pages currently. And it 4 

### provides information on all of the various 5 

### aspects, including several page discussion 6 

### talking about the saturation versus the moisture 7 

### content of heap leach facilities and why the 30 8 

### percent by weight moisture content is not an 9 

### acceptable approach. 10 

### MR. PEAKE: And will you be -- you had 11 

### mentioned that there are alternative heap leach 12 

### approaches that we did not analyze. Would you be 13 

### providing that? Since there aren’t any heap 14 

### leach facilities in operation. 15 

### MS. MORRISON: In the United States there are 16 

### currently no heap leach facilities that recover 17 

### uranium. However, there are a number of heap 18 

### leach facilities worldwide that are constructed 19 

### of various manners. There is Vat leaching, there 20 

### is on-off heap leach facilities, there is valley 21 

### filled leach facilities. 2287

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### With regard to uranium, the only one that 1 

### is currently being proposed in the United States 2 

### is the Sheep Mountain Project, which is a 3 

### conventional heap leach facility. 4 

### However, Strathmore Resources looked at 5 

### doing Vat leaching for the Gas Hills Project also 6 

### in Wyoming. And with regard to other uranium 7 

### heap leaches worldwide, I believe it’s the 8 

### Rossing facility in Africa that has an on-off 9 

### heap leach facility constructed on top of an old 10 

### tailings impoundment. 11 

### And so with the on-off heap leach 12 

### facility, the spent ore is removed from the 13 

### engineer pad, placed in a lined facility. So 14 

### there are other facilities worldwide. 15 

### MR. PEAKE: Okay. Thank you. We will 16 

### appreciate getting that information. 17 

### MS. MORRISON: Thank you. 18 

### MS. SUTIN: Next if we could have Steve 19


### Brown. 20 

### MR. BROWN: Thank you again. My name is 21 

### Steve Brown, B-r-o-w-n, Consultant for SENES 2288

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### Consultants of Englewood, Colorado. I’m 1 

### certified by the American Board of Health 2 

### Physics, a diplomate of the American Academy of 3 

### Health Physics. I have been a practicing health 4 

### physicist for almost forty years. A health 5 

### physicist is a physical scientist who concerns 6 

### oneself with the monitoring control of 7 

### radioactive material and radiation so nuclear 8 

### activities can be used for the benefit of 9 

### mankind. 10 

### My remarks today are focused on a central 11 

### theme of just comparing the then and the now, 12 

### i.e., the then relative to why we needed controls 13 

### for radon emissions from these types of 14 

### facilities way back when versus the circumstances 15 

### today at licensed sites under the Atomic Energy 16 

### Act of the United States. 17 

### So first to start off with perspectives, 18 

### origin of the need, under current Subpart W 19 

### requirements and proposed revisions, EPA has 20 

### assumed that to control public radiological risk 21 

### limits must be placed at the source, at the 2289

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### location of the tailing cells or the ponds. 1 

### These limits are believed necessary to control 2 

### the radon emission, which we call the source 3 

### term, including numerical limits on radon 4 

### emission flux as is in the current version of 5 

### Subpart W, as well as limitations on the acreage 6


### of cells that can be used or the amount of 7 

### acreage that can be open at any one time, 8 

### variations of which appeared in both the current 9 

### and the proposed revisions. 10 

### Historically, I’m talking thirty to 11 

### thirty-five years ago now, such emission controls 12 

### of the source were necessary. And direct 13 

### outgrowth of the Uranium Mill Tailings Radiation 14 

### Control Act of 1978, particularly given the 15 

### circumstances of the UMTRCA Title 1 sites, which 16 

### were literally abandoned sites when -- which the 17 

### public had direct access to the sites and the 18 

### tailings themselves. It was reported at that 19 

### time, I was there way back when, that children 20 

### are playing on them. And of course there was a 21 

### lot of misuse of the materials at that time for 2290

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### construction, for roads, for driveways and so 1


### forth. 2 

### So back in the context of these Title 1 3 

### sites of the past, there needed to be control of 4 

### radon emission at the source because the public 5 

### had direct access to the source. 6 

### However, moving thirty -- thirty-five 7 

### years to the current circumstances, at sites and 8 

### facilities licensed under the United States 9 

### Atomic Energy Act or the Agreement State 10 

### Regulations by NRC, the monitoring and control of 11 

### public radiation exposure and dose and related 12 

### radiological risk must occur at the closest 13 

### location of public access to the licensed 14 

### material, i.e., what we refer to as the boundary 15 

### of the restricted/unrestricted area. 16 

### Quantitative limits are articulated in 17 

### the current federal regulations, Title 10, Part 18 

### 20 Standards for Protection Against Radiation, 19 

### and its Appendix B and equivalent sections of 20 

### Agreement State regulations. 21 

### Examples of specific requirements are 2291

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### listed in my reference section following. 1 

### Premise, my premise, accordingly it is 2 

### suggested that the application of Subpart W to 3 

### uranium mill tailings and other uranium recovery 4 

### facilities licensed under the United States 5 

### Atomic Energy Act is dual and duplicative of 6 

### federal regulations that to me, a physical 7 

### scientist, does not appear to provide any 8 

### additional radiological risk reduction to the 9 

### public. 10 

### Now I will not speak to the authorities, 11 

### the definitions, the intentions of regulatory or 12 

### statutory circumstances, I leave that to my 13 

### lawyer colleagues. And as I have said to my 14 

### lawyer colleagues, I won’t practice law if you 15 

### don’t practice health physics. And I will just 16 

### leave it as that. 17 

### Argument as follows, the radiological 18 

### doses that are risk to the public at the site 19 

### boundary from licensed radioactive material 20 

### contained within the site are functions of 21 

### several important factors, the meteorology, the 2292

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### distance, the exposure circumstances, as well as 1 

### the emission rate at the source. 2 

### However, unlike the legacy of abandoned 3 

### uranium tailing sites of the past, i.e., the 4 

### UMTRCA Title 1 site for example, the public has 5 

### no access to the exposure conditions of the 6 

### source of the no restricted area boundary of the 7 

### licensed site. 8 

### The dose risk only needs to be monitored 9 

### and controlled at locations to which the public 10 

### has access. The traditional parameters of 11 

### concern in Subpart W in regards to public 12 

### radiological risk, i.e., the radon emission rate, 13 

### maximum per acreage, general acreage exposed at 14 

### any time and so forth is not in a direct way 15 

### related to public exposure conditions some 16 

### distance away, and controlled and monitored at 17 

### the licensed boundary locations. 18 

### Conclusion, existing federal regulations, 19 

### both those of NRC and EPA, establish controls and 20 

### limits to the maximum exposed member of the 21 

### public, quote, end quote -- for example, 10 CFR 2293

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### 20.1301. 1 

### Accordingly, applications of Subpart W to 2 

### uranium recovery related sites and facilities 3 

### licensed under the United States Atomic Energy 4 

### Act appears to me to be redundant and not 5 

### necessary. And my references again include 10 6 

### CFR 20 standards for protection against 7 

### radiation, 20.1301 dose limits for individual 8 

### members of the public limited to 100 millirem per 9 

### year to the maximum exposed member of the public 10 

### above natural background. 11 

### The U.S. NRC 10 CFR 20, Appendix B, Table 12 

### 2, Column 1, the concentrations of radioactive 13 

### materials, including radon on a nuclides specific 14 

### basis that can be released to unrestricted areas. 15 

### In the case of a licensed facility, that 16 

### is where the public has a maximum opportunity to 17 

### reside. These concentration limits represent the 18 

### average annual concentrations at which if an 19 

### individual were exposed continuously at that 20 

### concentration would receive a total effective 21 

### dose equivalent of 50 millirem per year. 2294

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### Now, as a frame of reference, if I have 1 

### got another minute or two, in regards to what do 2 

### these numbers mean in terms of exposure limits, 3 

### I’m quoting here an EPA quote used in Subpart B 4 

### of Part 61 in regards to radon emissions from 5 

### uranium mines, that’s 10 millirem per year. 6 

### Closure under 40 CFR 192, 5 millirem per year. A 7 

### closure of abandoned CERCLA sites of 15 millirem 8


### per year. 9 

### Honestly people, I don't know how the 10 

### tissues of my body know the difference between 11 

### those where they come from, but that’s another 12


### matter. 13 

### The point is, as a resident of Colorado 14 

### I’m going to get 4 to 500 millirem per year 15 

### because I live on this planet Earth in this 16 

### state. For you folks that live in Washington, 17 

### D.C., maybe your annual exposure is 200 to 300 18 

### millirem per year. So that difference, depending 19 

### on where one chooses to live, is an order of 20 

### magnitude greater than what we are suggesting we 21 

### need to regulate to. 2295

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### If I decide to leave my home in Colorado 1 

### and go lay on a beach in North Carolina for a 2 

### couple of weeks, I would save 15 to 20 millirem 3 

### just because of where I choose to take my 4 

### vacation. And I can tell you maybe risks at that 5


### level do not need to be controlled. 6 

### And I have quoted 40 CFR 190, 7 

### Environmental Radiation Protection Standards for 8 

### Nuclear Power Operations, USEPA, limiting 9 

### exposure from any operation of the fuel cycle to 10 

### 25 millirem dose equivalent to the whole line. 11 

### 40 CFR 192, Health and Environmental 12 

### Protection Standards for Uranium Mill Tailings, 13 

### Subpart D, standards from matters of uranium 14 

### byproduct material, both of which is a reference 15 

### regards to closure as opposed to operations 16 

### that -- that time frame. But nonetheless, again 17 

### establishes the 20 picocuries per meter squared 18 

### per second flux limit for the closure of 19 

### tailings. 20 

### USNRC 10 CFR 40, Appendix A, Criterion 6 21 

### also similarly defines and limits exposure of 2296

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### that -- exposure to and the radon emissions. 1 

### So in conclusion, I believe that there 2 

### are adequate protections in existing law for the 3 

### public in regards to these sites. And maybe all 4 

### Subpart W needs to do for licensed sites is make 5 

### reference to existing regulations and established 6


### law. 7 

### Thank you very much. And I will take any 8 

### questions. 9 

### MS. SUTIN: Up next we have Sarah Fields. 10 

### MS. FIELDS: My name is Sarah Fields, 11 

### S-a-r-a-h, F-i-e-l-d-s. And I am with Uranium 12 

### Watch from Moab, Utah. 13 

### I think one of the problems that a lot of 14 

### us have had who have reviewed this proposed 15 

### regulation and the very lengthy Federal Register 16 

### Notice is a disconnect between what is in the 17 

### Federal Register Notice in the proposed rule and 18 

### the reality at conventional mills, ISL, and even 19 

### proposed heap leach operations. 20 

### I agree with the National Mining 21 

### Association that definitions do count. When you 2297

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### look at Subpart W, it has two important 1 

### definitions, the definition of an existing 2 

### impoundment and the definition of operation. 3 

### It says that operation of uranium mill 4 

### impoundment ends the day the closure begins, but 5 

### it doesn’t contain any information about, well, 6 

### what must take place for closure to begin. 7 

### I think under the definition of an 8 

### existing -- an existing impoundment is one that 9 

### was constructed before December 1989 and is 10 

### licensed to receive waste in the tailings 11 

### impoundment. 12 

### So let’s see how this is played out at 13 

### the White Mesa Mill, particularly Cell 2. Cell 2 14 

### is an existing impoundment. It is not mentioned 15 

### in the Federal Register notice. So the Cells 2 16 

### and 3 were the original existing tailings 17 

### impoundment. They are between 60 and 70 acres 18 

### and they are lined. Up until July 23 rd

### of this 19 

### year, July 23 rd 

### , 2014, that tailings cell was 20 

### licensed to receive tailings and waste, 11.e(2) 21 

### byproduct material. 2298

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### Actually, according to Energy Fuels, it 1 

### had not received -- no material had been disposed 2 

### of in the tailings impoundments -- I mean, no 3 

### waste since 2008. So from 2008 to 2014, that 4 

### impoundment was still licensed to receive waste. 5 

### It has an interim cover. Every year the licensee 6 

### measured the radon in that impoundment. They 7 

### submitted the annual reports to first the EPA and 8 

### then the Division of Air Quality, Utah Division 9 

### of Air Quality, which took over regulation in 10


### 1995. 11 

### So even though you might say it was 12 

### closed, it was still licensed to receive material 13 

### and it still submitted those annual reports. And 14 

### in fact in 2012, it -- the radon, the annual 15 

### radon flux was more than 20 picocuries. 16 

### Therefore, they started monitoring on a 17 

### monthly basis. They must start monitoring in 18 

### 2013 because that’s when they submit the annual 19 

### reports, in March. They are due at the end of 20


### March. 21 

### So under Subpart W, they are required to 2299

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### bring the radon flux back into compliance. And 1 

### they determined the reason for the increase in 2


### the radon was because of an accelerated 3 

### dewatering program. They are talking about the 4 

### importance of water to attenuate the radon flux. 5 

### So there is no longer a pond on top. But 6 

### as the water in the pores is diminished because 7 

### of the accelerated dewatering program, the radon 8 

### flux increased. Also there was windblown 9 

### tailings from over in Cell 3. 10 

### So they cleaned up those windblown 11 

### tailings and put a barrier between Cell 2 and 12 

### Cell 3. And they put additional material on top 13 

### of the interim cover. Thereby they brought the 14 

### radon flux back into compliance. 15 

### Now, what happened on June -- July 23 rd, 16 

### July 23 rd

### the State Utah Division of Radiation 17 

### Control issued an order saying that they no 18 

### longer had to submit monthly reports because they 19 

### were ordering that 11.e(2) byproduct material and 20 

### waste could no longer be disposed of in the 21 

### tailings impoundment and that closure had begun. 22100

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### So there was an official action. One of 1 

### the problems however with this official action is 2 

### that now under NRC regulation, which the Utah 3 

### Division of Radiation Control implements, is that 4 

### 6(a) says for a tailings impoundment under 5 

### closure, you’re supposed to have a radon closure 6 

### plan and you’re supposed to have reclamation 7 

### milestones. 8 

### The whole assumption of the rescission of 9 

### Subpart T and the new EPA regulations in 192 and 10 

### the new NRC regulations at Criterion 6(a), there 11 

### would be a radon closure plan and there would be 12 

### reclamation milestones. 13 

### So let’s take a look at Cell 2. At this 14 

### time there is no longer -- there is no radon 15 

### closure plan incorporated into the White Mesa 16 

### Mill license and there are no reclamation 17 

### milestones. 18 

### So I think that the EPA, if they are 19 

### going to take -- allow tailings impoundments to 20 

### come out from under Subpart W, that they have to 21 

### say there has to be a radon closure plan and 22101

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### there have to be reclamation milestones. And 1 

### there has to be a license amendment which says 2 

### the licensee is no longer permitted to dispose of 3 

### any 11.e(2) byproduct material, waste, 4 

### alternate -- whatever processing -- additional 5 

### processing fluids or anything else in that 6 

### tailings impoundment. 7 

### And so another aspect of this Subpart T, 8 

### that rescission, is that the assumption is that 9 

### as soon as reasonably feasible, a final radon 10 

### barrier will be placed on that impoundment. 11 

### However, if you look at the reclamation 12 

### plan from Energy Fuels, Energy Fuels has no 13 

### intention of putting a final radon barrier on 14 

### Cell 2 until all four of those tailings 15 

### impoundments, 2, 3, 4A and 4B, are filled with 16 

### tailings so that there will be only one radon 17 

### barrier over all of those impoundments. 18 

### So Cell 2 will sit there for maybe the 19 

### next three, four or five decades without a final 20 

### radon barrier. But now they are not going to be 21 

### regulated under Subpart W so there is this gap. 22102

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### So the gap is in the regulation of radon from at 1 

### a conventional mill tailings impoundment, is that 2 

### once it goes into closure -- and that’s the time 3 

### when there is -- the tailings impoundment is 4 

### drying out. The EPA has recognized that. 5 

### And you look back at the 1989 6 

### Federal Register Notice that promulgated Subpart 7 

### W, that when it dries out the radon emissions 8 

### increase significantly. So what happens, it is 9 

### no longer under Subpart W, it is going through 10 

### dewatering, but there is no requirement to 11 

### monitor the radon. That means there is -- no one 12 

### knows if throughout this dewatering process that 13 

### the -- if the radon emissions are increasing. 14 

### Well, they kept monitoring at Cell 2 so 15 

### they knew the radon emissions were increasing and 16 

### they took corrective action. 17 

### So it’s feasible throughout this 18 

### dewatering period with an interim cover to 19 

### maintain radon emissions that are less than 20 20 

### picocuries. But still, this tailings impoundment 21 

### doesn't have a -- there are no milestones. 22103

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### So the gap occurs between the end of 1 

### Subpart W and a time when if you have a 2 

### milestone, and you request an extension of the 3 

### milestone, which has happened at many uranium 4 

### mill tailings impoundments, you have to show -- 5 

### to get an extension you have to show 20 6 

### picocuries. 7 

### MS. SUTIN: I need you to wrap up. 8 

### MS. FIELDS: The EPA has created this gap. 9 

### And I don’t think that it is really recognized in 10 

### the EPA and I don’t think the EPA has made -- is 11 

### really taking efforts to fill that gap. 12 

### Thank you. 13 

### MS. SUTIN: Thank you, Ms. Fields. 14 

### Hold on, Ms. Fields. 15 

### MS. FIELDS: Sorry. 16 

### MR. PEAKE: In your comments, will you be 17 

### proposing definitions? 18 

### You had said, you know, you agree the 19 

### definitions are important. Are you going to in 20 

### your comments be providing alternative 21 

### definitions for us to consider? 22104

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### MS. FIELDS: Yes. And I also feel that there 1 

### shouldn’t be any time in any phase of a 2 

### conventional mill’s life where there is a lack of 3 

### regulation of the radon emissions, that there 4 

### shouldn’t be this gap. 5 

### And the problem is with Subpart T. 6 

### Subpart T was basically -- I mean, the rescission 7 

### of Subpart T, it was rescinded to take care of 8 

### some issues with uranium mills that had already 9 

### ceased operation. It wasn't really rescinded 10 

### taking into consideration the issues at existing 11 

### uranium conventional mills either in Colorado -- 12 

### Cañon City or White Mesa. 13 

### MS. SUTIN: Thank you. We don’t have any 14 

### other registered speakers at this time so we will 15 

### pause the hearing until someone else shows up to 16 

### speak. 17 

### Thank you. 18 

### (Whereupon, a recess was taken.) 19 

### MS. SUTIN: It is 4:30 and we have had no 20 

### further speakers today so we are officially 21 

### closing this afternoon session of the hearing on 22105

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### September 3 rd

### , 2014. The hearing is officially 1


### closed. 2 

### (Whereupon, the hearing was concluded at 3 

### 4:30 p.m.) 4

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