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1 Environmental Protection Agency 

2 

3 

4 

5 

6 Public Hearing on 

7 Proposed Revisions to National Emission Standards 

8 for Radon Emissions from Operating Mill Tailings 

9 

10 

11 

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

13 Wednesday, September 3, 2014 

14 

15 1595 Wynkoop Street 

16 Denver, Colorado 80202 

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2 

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1 

2 

3 

4 

5 

6 EPA PANEL: 

7 ELYANA SUTIN, Chair; EPA 

8 TOM PEAKE, EPA 

9 DANIEL SCHULTHEISZ, EPA 

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1 C O N T E N T S 

2 PAGE 

3 THOMAS JOHNSON 11 

4 FRANK FILAS, Energy Fuels 17 

5 SARAH FIELDS, Uranium Watch 21 

6 ANTHONY THOMPSON, National Mining Association 29 

7 CHRISTOPHER PUSLEY, National Mining Association33 

8 KATIE SWEENEY, National Mining Association 43 

9 OSCAR PAULSON, National Mining Association 46 

10 SARAH FIELDS, Uranium Watch 52 

11 STEVE BROWN, SENES Consultants 58 

12 ANTHONY THOMPSON, National Mining Association 60 

13 DOUGLAS CHAMBERS 72 

14 KIMBERLY MORRISON, Energy Fuels 81 

15 STEVE BROWN, SENES Consultants 88 

16 SARAH FIELDS, Uranium Watch 96 

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

2 MS. SUTIN: Good morning everyone. My name 

3 is Elyana Sutin. And I am the regional judicial 

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

5 coming this morning. 

6 I will be presiding over the hearings 

7 today and tomorrow. Joining me on the panel is 

8 Tom Peake and Daniel Schultheisz -- 

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

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

11 Radiation and Indoor Air in headquarters. 

12 This hearing is now officially in 

13 session. We are here today to listen and receive 

14 your comments on EPA’s proposed revisions to 

15 national emissions standards for radon emissions 

16 from operating mill tailings, also known as 40 

17 CFR, Part 61, Subpart W. 

18 The EPA is proposing to revise certain 

19 portions of the standards based on its 

20 determination as to what constitutes generally 

21 available control technology or management 

22 practices, also known as GACT, for this area 
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1 source category. 

2 EPA announced the proposed rule on May 

2

nd, 2014. The comment period started on May 2nd 3 , 

2014 and was to end on July 31st 4 , 2014. On July 

21st 5 , EPA extended the comment period until 

October 29th 6 , 2014. 

7 In a moment Tom will explain in more 

8 detail what was proposed in that notice. But 

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

10 little bit about how the hearing will be run 

11 today. 

12 There will be two sessions, one this 

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

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

15 this conference room. 

16 Please be sure that you have checked in 

17 to the registration desk even if you are not 

18 planning to speak today. I will call the 

19 scheduled speakers to the chair in front of us. 

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

21 then state your name, spelling your last name for 

22 the court reporter, and your affiliation before 
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1 you begin your testimony. Your comments will be 

2 transcribed and included in the record of the 

3 comments of the proposed rule. 

4 In order to ensure that everyone has the 

5 opportunity to speak, and to ensure fairness, 

6 please limit your testimony to no more than ten 

7 minutes. We will signal you when you have one 

8 minute left to speak. When one minute has passed 

9 I will ask you to complete your testimony. 

10 There is no pressure or obligation to 

11 speak for ten minutes. If your testimony is less 

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

13 have that amount of time to speak this morning. 

14 We have plenty of time today as well in 

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

16 prepared testimony and then would like to speak 

17 again later, please go back to the registration 

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

19 is other information that you would like to 

20 provide. 

21 That is also true for the folks that have 

22 come today and were here to listen but have 
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1 decided they want to make a statement. Please go 

2 to the registration desk and we will be able to 

3 accommodate you. 

4 After you finish your testimony members 

5 of the panel may ask clarifying questions. We 

6 are not here today to answer those questions 

7 about the proposed rule. If you have questions 

8 about the process please find one of the EPA 

9 representatives after the hearing and they can 

10 help you. 

11 If you have written copies of your 

12 testimony, or supporting documentation, please 

13 give a copy to our staff at the registration 

14 table. This will be helpful as we prepare the 

15 transcript. 

16 If you have additional comments you would 

17 like to make you can submit them in writing. 

18 Comments must be received on or before October 

29th 19 at 5:00 p.m. Let me assure you that EPA 

20 gives just as much consideration to comments we 

21 receive in writing as we do the comments that we 

22 hear today, that we hear at the public hearing 
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1 today. Instructions for submitting comments are 

2 included in the fact sheet at the registration 

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

4 leave. 

5 Today’s public hearing is scheduled to 

6 end once the last registered speaker has provided 

7 comments. So if you would like to testify but 

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

9 so. 

10 Now I will turn things over to Tom, who 

11 will summarize the proposed rule. 

12 Thank you. 

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

14 I am the director of the Center for Waste 

15 Management and Regulations in the EPA Office of 

16 Radiation. And with me is Dan Schultheisz, who 

17 is the associate director of the Center for Waste 

18 Management and Regulations. 

19 We are here today to receive your 

20 comments on EPA’s proposed rulemaking for the 

21 revisions to the national emission standards for 

22 radon emission, NESHAPS, from operating mill 
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1 tailings, also known as Subpart W. 

2 The proposed revisions would require the 

3 use of generally available control technology, 

4 GACT, to limit radon emissions from tailings at 

5 all uranium recovery facilities. Specific 

6 control technologies would be required at 

7 conventional tailings impoundments, evaporation 

8 ponds and heap leach piles. 

9 We are also proposing to add new 

10 definitions to this rule, revise existing 

11 definitions and clarify that the rule applies to 

12 uranium recovery facilities that extract uranium 

13 through the in-situ leach method and the heap 

14 leach method. 

15 Specifically, the EPA is proposing the 

16 following: 

17 We are clearly stating that the standards 

18 apply to all units that contain uranium byproduct 

19 material. These units include, but are not 

20 limited to, conventional tailings impoundments, 

21 evaporation ponds or other nonconventional 

22 impoundments at uranium recovery facilities, and 
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1 heap leach piles. 

2 We are proposing that all uranium 

3 recovery facilities comply with GACT management 

4 practices, including the use of double liners and 

5 leak detection systems. 

6 The proposed rule would remove the 

7 requirement for monitoring radon, but limits the 

8 amount of byproduct material that can be exposed. 

9 For conventional impoundments, limit tailings 

10 exposure using either phased disposal or 

11 continuous disposal. 

12 For heap leach piles, limit tailings 

13 exposure using phased disposal and maintain a 30 

14 percent moisture content in the pile. 

15 For evaporation ponds, require at least 

16 one meter of liquid be constantly maintained in 

17 the pond. 

18 We are proposing to add definitions for 

19 when a uranium recovery facility is in operation 

20 or standby. 

21 The proposed rule would require the 

22 owner/operator of a uranium recovery facility to 
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1 maintain records that confirm that impoundments 

2 have been constructed according to the 

3 requirements. 

4 In summary, we are here today asking for 

5 your comments on the proposed rule. And as 

6 previously mentioned, the comment period ends on 

October 29th 7 , 2014. We are looking forward to 

8 hearing from you. 

9 Thank you. 

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

11 like to call up our first speaker, Thomas 

12 Johnson. 

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

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

15 myself today. 

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

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

18 projecting as loudly as you can, that would be 

19 great. 

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

21 I’m loud before. 

22 So my comment today is that I was very 
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1 disappointed in the rule that was proposed 

2 because in my opinion the purpose of the EPA is 

3 to protect people and the environment from harm. 

4 Unfortunately, the EPA did not do an 

5 analysis of at what level radon emissions are 

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

7 risk to humans, real humans, rather than 

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

9 at the need to regulate radon emissions, if 

10 indeed a need exists. 

11 The reason I phrase my comment in that 

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

13 believe, as a regulatory body, is protect people 

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

15 Unfortunately, no one has ever 

16 demonstrated harm from being around a Subpart W 

17 facility. Certainly workers have demonstrated 

18 harm based on epidemiologic studies. 

19 However, multiple studies have been 

20 performed by people such as John Boice, the 

21 National Institutes of Health, that have 

22 demonstrated there is no increased risk of cancer 
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1 in the areas and the communities surrounding 

2 uranium mills. 

3 Furthermore, the EPA continues to utilize 

4 the National Academy of Sciences report in which 

5 they do say that the linear no-threshold model 

6 upon which EPA bases its risk is only a construct 

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

8 used as a convenience. 

9 I would hope the EPA would consider that 

10 as well as the French National Academy of 

11 Science’s rebuttal to the linear no-threshold 

12 model. 

13 Furthermore, the EPA should consider the 

14 Health Physics Society’s position statement when 

15 looking at radon emissions from these facilities. 

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

17 imaginary people. We should also be doing things 

18 such as measuring doses. 

19 Unfortunately, the levels that EPA 

20 currently regulates, Subpart W, are almost 

21 impossible to measure in any meaningful fashion 

22 and only doses can be modeled to people. 
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1 To give you an example of how low the EPA 

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

3 took a radiation measuring device with me today 

4 to the parking garage to here. The variation in 

5 radiation levels at the parking garage at 1660 

6 Wynkoop over here to over here, was approximately 

7 10 microrems per hour. 

8 Next to my car in the parking lot I read 

9 approximately 25 microrems per hour on the fourth 

10 floor. Here I am reading approximately 15 

11 microrems per hour. 

12 If you look at the EPA regulation, which 

13 says we should only have 25 millirems per year, 

14 that parking garage is in direct violation of the 

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

16 not recommendations -- because this would 

17 translate to approximately 3 microrems per hour 

18 at the fence line dose for many of these 

19 facilities. 

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

21 only difficult to measure, the natural 

22 variability in a place like downtown Denver is 
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1 greater than that, let alone a place where we 

2 have more bodies, we have naturally occurring 

3 structures that can create differences far 

4 greater than that. 

5 The other things I noticed about the 

6 Subpart W was that the EPA certainly did consider 

7 the costs. And you did use your linear no8 threshold model exactly to figure out how to 

9 minimize doses to the public. 

10 Unfortunately, you did not take a 

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

12 requirements that would be imposed, it would 

13 require large quantities of earth moving 

14 equipment, movement of water. And these things, 

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

16 use earth moving equipment, and anytime you move 

17 large quantities of dirt, there will be 

18 fatalities and injuries. 

19 This was not considered by EPA. We need 

20 to take a holistic view of the entire worker 

21 environment. 

22 One of the other things EPA failed to 
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1 consider is the most dangerous thing there is, 

2 according to the Department of Labor, and that is 

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

4 these regulations on the number of people hired, 

5 or the potential for facilities to be operated or 

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

7 This is unfortunate because there is 

8 actually a name in epidemiology for people who do 

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

10 Those people who do have work and find work are 

11 considered healthier and have been proven to be 

12 healthier by epidemiologists. 

13 And in fact people who work in industries 

14 that deal with radioactivity have the most 

15 profound work Healthy Worker Effect. 

16 So I would ask the EPA consider all of 

17 these things in this rule making and in any 

18 future rule makings, and take a more holistic 

19 view of not just a single item and single20 mindedly pursue the emissions of radon but rather 

21 look at the entire health of the population and 

22 the people who live near these facilities. 
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1 Thank you. 

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

3 Next if we could have Frank Filas. 

4 MR. FILAS: Good morning. 

5 MS. SUTIN: Good morning. 

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

7 vice president of permitting and environmental 

8 affairs for Energy Fuels Resources. Our company 

9 is currently America’s largest conventional 

10 uranium producer, supplying approximately 25 

11 percent of the uranium produced in the United 

12 States in 2013. 

13 We have significant concerns with the 

14 proposed regulations as it appears that the EPA 

15 is attempting to impose dual regulation over 

16 portions of uranium recovery operations that are 

17 already sufficiently regulated by the NRC and 

18 Agreement States. 

19 We don’t believe that the EPA needs to 

20 regulate very low level radiation sources such as 

21 evaporation or holding ponds. We recommend that 

22 the Subpart W regulation be limited to size and 
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1 number restrictions for tailings impoundments and 

2 other permanent byproduct disposal facilities. 

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

4 approach of mandating one meter of water cover 

5 over evaporation and holding ponds is unnecessary 

6 and wasteful of scarce and valuable water 

7 resources. The EPA stated the following in its 

8 October 1984 Final Rule for Radon-222 Emissions 

9 from Licensed Uranium Mill Tailings in its 

10 Response to Comments: 

11 “Recent technical assessments of radon 

12 emission rates from tailings indicate that radon 

13 emissions from tailings covered with less than 

14 one meter of water, or merely saturated with 

15 water, are about 2 percent of emissions from dry 

16 tailings. Tailings covered with more than one 

17 meter of water are estimated to have a zero 

18 emissions rates. 

19 The Agency believes this calculated 

20 difference between 0 percent and 2 percent is 

21 negligible. The Agency used an emission rate of 

22 zero for all tailings covered with water or 
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1 saturated with water in estimating radon 

2 emissions.” 

3 Again, this is from a 1984 EPA Response 

4 to Comments. 

5 Clearly, there would be very little 

6 benefit to be gained by requiring one meter of 

7 water cover over material that is already 

8 saturated with a minimal water cover. Instead 

9 there would be a significant waste of water 

10 resources through evaporation of an excessive and 

11 unnecessary water cover. 

12 EPA’s calculation of reduced radon 

13 emissions is incorrect as there would only be a 2 

14 percent reduction in emissions with one meter of 

15 water, not 93 percent stated in the rationale for 

16 this proposed rule. 

17 In addition, the EPA’s cost estimates for 

18 maintaining such a water cover are low by many 

19 orders of magnitude. We estimate that it will 

20 cost millions of dollars to drill deep wells of 

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

22 supply the additional water needed at 
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1 conventional mill facilities. 

2 Evaporation ponds are designed to remove 

3 solution through evaporation, not to add water. 

4 An additional one meter of water cover would also 

5 incur the need for building larger ponds at 

6 significant additional cost. 

7 EPA’s proposed replacement of the word 

8 “tailings” by “byproduct materials or tailings” 

9 in the definition for “Operation” is inconsistent 

10 with NRC regulations and appear to be an attempt 

11 by the EPA to circumvent the previous rescission 

12 of Subpart T of 40 CFR, Part 61. 

13 Further, we disagree with EPA’s assertion 

14 that “the operational life of the heap leach pile 

15 be from the time that lixiviant is first placed 

16 on the heap leach pile until the time of the 

17 final rinse.” 

18 As long as the heap is being leached, the 

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

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

21 is permanently discontinued. 

22 The heap leaching cycle is essentially no 
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1 different in theory than the successive leaching 

2 of uranium that occurs in the counter current 

3 decantation or CCD circuit of a conventional mill 

4 where the ore pulp from the leach circuit is 

5 successively further leached in a series of 

6 thickeners. The material does not become 

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

8 until it leaves the final thickener and is 

9 discharged to the tailings impoundment. 

10 Thank you for the opportunity to comment. 

11 Energy Fuels will provide more detailed comments 

12 at a later date, plus my colleagues will be 

13 providing testimony in subsequent public hearing 

14 sessions. I would be happy to answer any 

15 questions that you might have. 

16 MS. SUTIN: Thank you very much. 

17 Next if we could have Sarah Fields. 

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

19 represent Uranium Watch in Moab, Utah. 

20 Thank you for the opportunity to come 

21 here and provide oral comments. I wish that the 

22 EPA had been able to also hold hearings in the 
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1 vicinity of the communities that will be affected 

2 by these regulations. 

3 Earlier, as you were planning the Subpart 

4 W rule making, you went to communities into the 

5 city and White Mesa and other – I think some 

6 other communities. But this time apparently you 

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

8 communities with the most important aspect of the 

9 rule making, which is the proposed rule. 

10 I was very disappointed in the Federal 

11 Register Notice. It contains incomplete, 

12 outdated, erroneous and misleading information. 

13 One thing I noted was that the EPA sent letters 

14 to uranium mill licensees asking questions about 

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

16 impoundments, but failed to send letters to the 

17 Sweetwater and Shootaring Canyon Mill licensees, 

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

19 didn’t post any responses. 

20 Also, you sent a letter to Energy Fuels 

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

22 and the second was not responded to. And the EPA 
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1 didn’t follow up on that. 

2 The EPA justifies the elimination of the 

3 radon emission standard for “existing” 

4 impoundments. That would be the White Mesa Mill, 

5 Shootaring Canyon and the Sweetwater Mills. 

6 Based on various assertions the EPA claims that 

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

8 2014. That appears not to be true. 

9 According to recent documents from Energy 

10 Fuels, they plan on keeping Cell 3 open to 

11 receive ISL waste because they cannot dispose of 

12 ISL waste in the new Cell 4 until more solid 

13 tailings have been disposed of in Cell 4A so 

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

15 which is not processed. 

16 And then they would need a license 

17 amendment to authorize the disposal of ISL waste 

18 in Cell 4A. 

19 And since they plan on closing -- putting 

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

21 know when exactly they would be able to use Cell 

22 4A for the disposal of ISL waste. So there is no 
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1 basis for the assumption that Cell 3 would close 

2 at the end of 2014. 

3 Also, the EPA claims that both the 

4 Shootaring Canyon and Sweetwater impoundments 

5 comply with the new requirements, requirements 

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

7 This again is not true. The EPA claimed 

8 that the Shootaring Canyon Mill has a synthetic 

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

10 maybe if you asked for more information from the 

11 licensee about that impoundment you would have 

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

13 going to redefine the meaning of synthetic to 

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

15 Also, the Sweetwater impoundment is 60 

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

17 the 40 acre requirement for a new impoundment. 

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

19 factual basis for removing the requirement for 

20 the radon emissions -- for monitoring and 

21 reporting the radon emissions from these existing 

22 impoundments. And the EPA should remember that 
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1 Subpart W is an emissions standard. It’s a 

2 standard that’s supposed to regulate the 

3 emissions. And normally that means setting a 

4 limit on what those emissions are going to be. 

5 Yet the EPA intends to completely eliminate any 

6 requirement -- any kind of limitation on these 

7 radon emissions at operating uranium mills. 

8 Now there is only going to be a design 

9 work -- the design and work practice standards 

10 for conventional ISL and heap leach facilities. 

11 And I believe that this does not comply with the 

12 requirements of the Clean Air Act exception 

13 112(h). 

14 In the Federal Register, notice that you 

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

16 work practice standards and other requirements. 

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

18 And that is Section 112 and these regulations are 

19 being promulgated pursuant to Section 112 of the 

20 Clean Air Act. 

21 It says for the purposes of this section, 

22 if it is not feasible in the judgment of the 
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1 administrator to prescribe or enforce an 

2 emissions standard for control of a hazardous air 

3 pollutant or pollutants, the administrator may in 

4 lieu thereof promulgate a design, equipment, work 

5 practice or operational standard or combination 

6 thereof. 

7 So what that means is that the EPA is 

8 going to promulgate a design, equipment, work 

9 practice or operational standard or combination 

10 in place of an emissions standard. The 

11 administrator must find that it is not feasible 

12 to prescribe or enforce an emissions standard. 

13 Although the administrator could not make 

14 that finding certainly for conventional uranium 

15 mills because you already have such a standard. 

16 For decades you have shown that such a 

17 standard is feasible. It’s feasible to measure 

18 the radon emissions from these conventional 

19 impoundments. I think it would have been really 

20 helpful if the EPA in the Federal Register Notice 

21 had discussed this provision and how that -- 

22 these Clean Air Act requirements affect this 
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1 rulemaking. I also think that for liquid 

2 impoundments it is possible to calculate the 

3 radon emissions. 

4 So under my reading of the Clean Air Act, 

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

6 unless the administrator finds that such an 

7 emissions standard is not feasible. And the 

8 administrator has not done so. 

9 And then another aspect of the proposed 

10 rule is the question of the radon flux from 

11 liquid impoundments. In the evaporation pond 

12 risk assessment at Table 2, it contains 

13 information about the radon flux for various 

14 radium concentrations, and shows the radon flux 

15 for 3 conventional mills and 8 ISL facilities 

16 under concentrations of 1, 100 or 1000 picocuries 

17 per liter. 

18 However, the EPA didn't actually 

19 incorporate the actual data on what the radon 

20 flux is for specific liquid impoundments. 

21 MS. SUTIN: You have one minute. 

22 MS. FIELDS: Okay. And I think the EPA 
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1 should have obtained actual data and information 

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

3 impoundments such as White Mesa Mill and at other 

4 liquid impoundments, the Sweetwater and ISL 

5 facilities, so they would have a more accurate 

6 picture of what the radon emissions actually are. 

7 There is recent data from White Mesa. I will 

8 include some of that data in my other written 

9 comments. 

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

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

12 few other things. 

13 Thank you. 

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

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

16 with an H. 

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

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

19 more speaker and then we will take a break so 

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

21 everything down and start it back up again. So 

22 we will have one more speaker and then we will 
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1 take a short break and come back. 

2 If I could have Anthony Thompson. 

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

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

5 National Mining Association. I was the lead 

6 counsel for then the American Mining Congress and 

7 now the National Mining Association in filing 

8 comments on Subpart T and Subpart W. And then 

9 was the lead negotiator for the American Mining 

10 Congress on the rescission of Subpart T which 

11 applied to inactive mill tailings impoundments, 

12 as opposed to Subpart W, which applies to active 

13 mill tailings impoundments. 

14 And I believe that there is some 

15 confusion in the draft about what is an active 

16 mill tailings impoundments under Subpart W and 

17 what is an inactive mill tailings impoundment 

18 that would have been under Subpart T but is now 

19 under NRC regulations. 

20 And I point out that during the year or 

21 so that the rescission of Subpart T was 

22 negotiated with EPA, with representatives -- NGO, 
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1 with NRC and Agreement States listening in -- was 

2 a very complex operation and it required -- 

3 before rescission of Subpart T it required 

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

5 regulations. And those are reflected in Criteria 

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

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

8 we will say this in more detail in the comments 

9 that NMA files. 

10 I don’t have the actual Federal Register 

11 pages but at one point we talk about in the 

12 proposal that after the uranium moves out of the 

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

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

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

16 waste it’s 11e.(2). 

17 But is not subject to Subpart W because 

18 it is an inactive tailings impoundment and would 

19 be subject to the requirements in Criterion 6 if 

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

21 begin final remediation as soon as practicable. 

22 And so I think that is part of a problem 
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1 that comes from the definition of operations 

2 which Mr. Peake mentioned. 

3 We agree that a standby mill is still 

4 operational. Certainly a mill that is actually 

5 producing uranium, even if it stops for various 

6 periods during the year, it is an operational 

7 facility until the day closure begins. 

8 And when the closure begins, it steps out 

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

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

11 and is subject again to the modifications in 

12 Criterion 6 of NRC’s regulations. 

13 For example, the definition of 

14 operational seems to suggest that if you’re 

15 continuing to put tailings on a tailings pile, 

16 that that somehow means it is still operational. 

17 And that is clearly an incorrect assumption if 

18 you go back and look at the rescission of 

19 Subpart T. 

20 For example, it explicitly identified in 

21 Criterion 6 is -- where a mill tailings pile 

22 could be closed in sections, the Western Nuclear 
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1 pile. 

2 And the requirement is that if you say 

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

4 year, then you have to measure the radon 20 

5 picocuries per meter squared per second over that 

6 closed part. And then when you do the next 

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

8 that clearly implies that you have part of a 

9 tailings pile open and you’re putting tailings 

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

11 an operational facility. And so if you are then 

12 bringing windblown tailings into the impoundment, 

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

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

15 evaporation pond either beside, as at Western 

16 Nuclear, or on top of a tailings impoundment that 

17 is doing groundwater corrective action actively 

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

19 that is explicitly provided for in Criterion 6 if 

20 you can show you meet the 20. 

21 So there are situations where you are 

22 going to be putting 11.e(2) byproduct material, 
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1 whatever it may be -- it could be portions of the 

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

3 the liners from an evaporation pond long after 

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

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

6 I think we will explain this in more 

7 detail in the detailed comments but that is my 

8 primary comment for the morning. 

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

10 Okay. I think we will take a ten minute 

11 break to resolve our microphone issues and we 

12 will be back. 

13 Thanks. 

14 (Whereupon, a recess was taken.) 

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

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

17 now. 

18 If I could have Christopher Pugsley. 

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

20 having me today. 

21 My name is Christopher Pugsley and I am a 

22 partner and member of the law firm of Thompson 
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1 and Pugsley. And I serve as outside counsel to 

2 the National Mining Association. 

3 My comments today will be strictly 

4 limited to statutory and regulatory definitions 

5 and interpretations because I believe, as 

6 everyone here knows, sometimes the most 

7 complicating factors associated with any type of 

8 statutory program lies in the definitions of 

9 terms, materials, and the execution and use of 

10 those definitions. 

11 If I can take a few minutes to talk about 

12 something that happened about 36 years ago when 

13 Congress passed the Uranium Mill Tailings 

14 Radiation Control Act of 1978, which amended the 

15 Atomic Energy Act of 1954 to define a new class 

16 of materials from uranium recovery facilities 

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

18 What people focus on these days is what 

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

20 agencies are required to deal with it. What is 

21 not talked about is the institutional memory 

22 associated with why that statute was passed in 
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1 the first place. 

2 The issue was to deal with a class of 

3 materials that was previously known as tailings. 

4 And tailings itself were defined back then not as 

5 tailings impoundments but as tailings piles. And 

6 that is important to know going forward because 

7 the reason Congress passed this statute was 

8 because there were issues associated with 

9 potential radiation risks associated with 

10 tailings or solid materials that were generated 

11 from uranium recovery operations and stored in 

12 tailings piles. 

13 Many of these materials on several 

14 occasions were used for road fill, foundation 

15 materials for buildings and homes. Hence, the 

16 folks that deal with radon on a regulation basis 

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

18 foundation materials because radon is at its most 

19 dangerous in an enclosed area. 

20 So when the statute was passed in 1978, 

21 there was a dichotomy of regulatory authority 

22 that Congress bequeathed on two agencies. 
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1 First was to the Environmental Protection 

2 Agency to propose generally applicable standards 

3 associated with the management and containment of 

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

5 facilities. 

6 The second was through the Nuclear 

7 Regulatory Commission, which was to -- they were 

8 directed to implement and execute and enforce 

9 EPA’s generally applicable standards. 

10 Now, with that said, you have heard many 

11 people in the industry talk about that program 

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

13 rule hopefully coming out sometime in the next 

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

15 generally applicable standards. 

16 The one part people do not talk about are 

17 the definitions of materials that are defined not 

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

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

20 tailings and other wastes associated with uranium 

21 recovery or processing ores primarily for the 

22 source material content, in this case uranium. 
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1 What I’d like to talk about briefly today 

2 is how important definitions are to this proposed 

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

4 itself and who has the authority to deal with 

5 this. 

6 The NRC, the Commission, and not the 

7 Environmental Protection Agency, have exclusive 

8 federal preemptive authority over 11.e(2) 

9 byproduct material. If you need a reference for 

10 that see the Staff Requirements Memorandum that 

11 was issued by the Commission in the year 2000 

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

13 023, otherwise known in the industry space as the 

14 concurrent jurisdiction decision, in which there 

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

16 Office of the Executive Legal Director, and now 

17 known as the Office of General Counsel at NRC, 

18 over whether states who are non-agreement states 

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

20 byproduct material, or more specifically the non21 radiological components of 11.e(2). 

22 The Commission, acting under its 
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1 exclusive authority from Congress, determined 

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

3 other agency had exclusive preemptive 

4 jurisdiction over both the radiological and non5 radiological components of 11.e(2) byproduct 

6 material. 

7 Thus, meaning the Commission has the 

8 exclusive authority to define what is and what is 

9 not 11.e(2) byproduct material. 

10 This is important because EPA should take 

11 care in its proposed rule to assess its 

12 definitions as they are currently written to look 

13 back on its administrative rulemaking records 

14 from the December 1989 final rule on Subpart W 

15 and adequately assess where they are going in 

16 terms of jurisdictions. 

17 Under the Clean Air Act, the EPA is not 

18 delegated any authority to define what is and 

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

20 cannot define what are known as tailings. 

21 And as my colleague, Anthony Thompson, 

22 said earlier, there are multiple classes of 
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1 materials that are considered waste at a uranium 

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

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

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

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

6 For example, as Tony said, the mill 

7 itself, if not sufficiently decontaminated for 

8 resale of scrap or whatever offsite disposal 

9 might be, can be thrown into the tailings 

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

11 the mill building are tailings in the 

12 conventional sense. 

13 And that takes us to the next point, 

14 which are fluid retention impoundments. As I 

15 said before, the Administrative rule making 

16 records associated with EPA’s initial Subpart W 

17 rule identified tailings as piles. 

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

19 using the definition as articulated by Congress 

20 of tailings. 

21 The last time I checked, water is not 

22 stored in piles. So in my opinion it cannot be 
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1 demonstrated that when talking about tailings, 

2 you’re talking about water or any radionuclides 

3 that are in the water. 

4 EPA is also not delegated any authority 

5 under the Mill Tailings Act to define what is and 

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

7 defined the term, the Commission is empowered to 

8 determine what is and what is not. 

9 All EPA can do is propose generally 

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

11 byproduct material which the Commission or NRC 

12 has to enforce. 

13 There are several examples of this where 

14 the Commission has exercised its authority over 

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

16 another entity other than the Commission may 

17 regulate it. 

18 For example, in the year 2000 the folks 

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

20 Underground Decision, where the Commission 

21 defined restoration fluid from an ISR operation 

22 as 11.e(2) byproduct material. This is a 
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1 Commission prerogative to define that. 

2 EPA is not allowed to define tailings as 

3 restoration fluid because it is not within their 

4 statutory authority. 

5 Another example is when the State of 

6 Texas as an Agreement State tried to alter the 

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

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

9 of General Counsel at NRC -- basically told Texas 

10 that either you will revise your definition to be 

11 consistent with that of the Mill Tailings Act or 

12 you could risk losing your Agreement State 

13 authority. And, of course, Texas changed the 

14 definition. 

15 Another was a recent example in South 

16 Dakota where they had rules that were coming out 

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

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

19 the state saying you have no authority to 

20 regulate this because you’re not an Agreement 

21 State, that rests with the Commission. 

22 So what basically the point that I’m 
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1 trying to make here today is before we start 

2 analyzing the nuances associated with the 

3 technical/safety and environmental aspects of 

4 this proposed rule, it is critical that EPA go 

5 back and look at its jurisdictional authority 

6 under the Clean Air Act for these regulations and 

7 to make sure that their definitions do not 

8 impermissibly infringe on the exclusive federal 

9 brand of authority that the Nuclear Regulatory 

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

11 or what the rule calls uranium byproduct 

12 material. 

13 And to ensure that EPA looks back at its 

14 past administrative record to make sure that the 

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

16 supposed to address tailings does not overstep 

17 its authority into other areas, such as fluid 

18 retention impoundments, because again water are 

19 not tailings. 

20 So thank you for your time. 

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

22 MR. PUGSLEY: P-u-g-s-l-e-y. 
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1 MS. SUTIN: Okay. If we could have Katie 

2 Sweeney, please. 

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

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

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

6 with the National Mining Association. We 

7 represent most of the producers of most of 

8 America’s minerals, including uranium. We 

9 represent producers of domestic uranium, as well 

10 as companies that are undertaking exploration 

11 projects or have pending applications for 

12 development of domestic uranium mining projects. 

13 I know there is going to be several 

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

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

16 going to be addressing the potential, the very 

17 serious and significant potential for overlapping 

18 and duplicative regulations under the proposed 

19 rule. 

20 So I think my issues follow very nicely 

21 from what Chris Pugsley was saying because he 

22 described the rules of NRC and EPA under the 
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1 Atomic Energy Act as amended by UMTRCA. 

2 But let’s talk about those standards as 

3 they apply to impoundments. So EPA has generally 

4 applicable standards NRC implements. Here EPA, 

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

6 under its Clean Air Act authority, but truly it 

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

8 structure that Congress intended when it divvied 

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

10 So generally EPA does the standards, NRC 

11 implements. And this is the way it worked when 

12 EPA did its 1983 standards on liners. NRC 

13 amended its regulations to conform to EPA’s 

14 standards. This was recognized in the current 

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

16 In Section 61252(b)12, they specifically 

17 talk about phased and continuous disposal in 

18 impoundments operated in accordance with 40 CFR 

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

20 So there was recognition when Subpart W 

21 was originally promulgated that NRC played that 

22 role. The NRC -- that the implementing would 
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1 approve those impoundments, et cetera. 

2 The proposal as it stands now completely 

3 eliminates that reference to NRC’s rule, which 

4 really confirms industry suspicions that EPA is 

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

6 approval of these impoundments, reviewing the 

7 records for these impoundments, even though NRC 

8 would have already have done that. 

9 So we think that EPA needs to go back and 

10 look at the rulemaking as proposed and reconsider 

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

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

13 materials are. 

14 And I guess kind of as an overall 

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

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

17 what the risk is here and why this rulemaking is 

18 even needed if the risks are so minimal. 

19 But if EPA does move forward with the 

20 rulemaking, it should certainly aspire to 

21 eliminating opportunities for dual regulation. 

22 We really don’t need to have two agencies 
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1 regulating the same thing. It’s just a waste of 

2 resources not only for the industry but for the 

3 regulators as well. I think EPA needs to more 

4 clearly understand its role here and reflect that 

5 in any proposal moving forward. 

6 Thank you. 

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

8 Next if we could have Oscar Paulson. 

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

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

11 discuss specifically research funded by the 

12 National Mining Association on determining radon 

13 flux from fluid retention impoundments at uranium 

14 recovery sites. 

15 Now, the preamble for the proposed rule 

16 states our survey of existing ponds shows that 

17 they contain liquids, and as such this general 

18 practice has been sufficient to limit the amount 

19 of radon emitted from the ponds in many cases to 

20 almost zero. 

21 Because of the low potential for radon 

22 emissions from these impoundments, we do not 
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1 believe it is necessary to monitor them for radon 

2 emissions. 

3 The preamble continues and also states 

4 the effect of radon emissions from ponds are so 

5 low that it is difficult to determine whether 

6 there is any contribution above background radon 

7 values. 

8 And the preamble also states we are also 

9 proposing that there is no maximum area 

10 requirement for the size of these ponds since the 

11 chance of radon emissions is small. Our basis 

12 for this determination is that radon emissions 

13 from the pond will be expected to be very low 

14 since the liquid in the ponds acts as an 

15 effective barrier of radon emissions. 

16 Given that Radon-222 has a very short 

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

18 time for approximately 98 percent of the radon 

19 produced by the solids or from the solution to 

20 migrate to the water surface and cross the water21 air interface before decaying. 

22 These statements are fully supported by 
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1 the research that was funded by the National 

2 Mining Association and conducted by Energy 

3 Laboratories Incorporated in Casper, Wyoming. 

4 Now, this research was performed to 

5 determine Radon-222 flux at the surface of water 

6 containing Radon-226 in solution and of course 

7 its decay product, Radon-222 with equilibrium 

8 under controlled laboratory conditions, 

9 essentially inside of a controlled building, 

10 undisturbed, at constant temperature, using an 

11 accepted method of determining Radon-222 flux. 

12 Now, this accepted method specifically is 

13 the one that uses large area activated charcoal 

14 canisters as described in the paper, Radon Flux 

15 Measurements on Gardner and Royster Phosphogypsum 

16 Piles near Tampa and Mulberry, Florida. 

17 This is the currently accepted method of 

18 determining compliance to the radon flux 

19 standards in 40 CFR Part 61.253, determining 

20 compliance as part of the Subpart W rule, the 

21 current Subpart W rule. And this method is known 

22 as Method 115. 
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1 Now, by using this already approved 

2 method for collection of radon flux data from the 

3 surface of tailings and tailings impoundments, 

4 the data gathered in the course of this study of 

5 flux from fluid surfaces can be effectively 

6 compared with other detector -- other data 

7 collected in prior compliance monitoring work 

8 using large area activated charcoal canisters 

9 since the measurement method is the same. 

10 Now, in the study that Energy 

11 Laboratories did, they set up five barrels 

12 containing the ionized water with Radium-226 

13 activities created by dissolving a traceable 

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

15 And the five barrels contained Radium-226 

16 in activities of zero picocuries per liter --

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

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

19 picocuries per liter, and finally the last barrel 

20 had radium solution at 20,000 picocuries per 

21 liter. 

22 These solutions were then allowed to 
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1 reach equilibrium so that the Radon-222 

2 activities, the daughter product of Radon-226, 

3 were allowed to reach equilibrium in these 

4 solutions and obtain the same activity as the 

5 parent, the radium. 

6 This was basically done by allowing the 

7 fluids to sit uncovered in the barrels for 40 

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

9 the Radon-222, the daughter product. 

10 Styrofoam floats were created to float 

11 the large area activated charcoal canisters over 

12 the radium bearing and radon bearing water in the 

13 barrels. The large air activated charcoal 

14 canisters then were placed on top of the 

15 fiberglass floats so that any flux that would 

16 pass from the fluid would go through the 

17 canisters and the Radon-222 captured by the 

18 charcoal within the canisters. 

19 And this was done a number of times on 

20 the fluids in the five barrels. Well, the 

21 results were as follows: 

22 Radon-222 flux from water surfaces even 
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1 in the case of high Radium-226 and Radon-222 

2 activities were minimal. And in the case of 

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

4 liter with equivalent activity in Radon-222, they 

5 were within the range and variability of natural 

6 background assuming a typical planet-wide 

7 background flux of 1 to 2 picocuries per meter 

8 squared second. And this background flux is 

9 provided by SENES Consultants Limited. 

10 Construction of a fluid retention 

11 impoundment and filling it with water containing 

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

13 would merely displace normal background flux of 

14 the surface soils over which the impoundment was 

15 constructed. 

16 For this reason specifically, the very 

17 low radon flux from fluid surfaces, there is no 

18 need to monitor radon emissions from fluid 

19 retention impoundments, nor any reason to 

20 regulate the size or number of such impoundments 

21 as their emissions would be indistinguishable 

22 from background. 
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1 Thank you. 

2 Are there any questions? 

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

4 MR. PEAKE: Were any of the barrels agitated 

5 at any time or was it just still -- 

6 MR. PAULSON: The barrels were not agitated, 

7 they were left stationary in a temperature 

8 controlled room. An interesting side, the data 

9 for this study was presented at a joint National 

10 Mining Association Nuclear Regulatory Commission 

11 Uranium Recovery Workshop. And the Power Point 

12 presentation with all of the data in tabular form 

13 is on the Environmental Protection Agency Subpart 

14 W website so it can be regularly reviewed by 

15 anyone should the need arise. 

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

17 Okay. At this time I would like to call 

18 back up Sarah Fields. 

19 MS. FIELDS: This is Sarah Fields with 

20 Uranium Watch. And I wanted to follow up with 

21 some of the statements that have been made by the 

22 NMA and Mr. Paulson. 
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1 Regarding Subpart W, I don’t believe that 

2 anything in the Clean Air Act states that the EPA 

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

4 byproduct material. My understanding of the 

5 Clean Air Act is that it directs the EPA to 

6 regulate radionuclides, including radon. There 

7 is no mention of only regulating radon from 

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

9 operations. 

10 So the efforts to -- or the statements 

11 made that appear to want to limit any regulation 

12 of radon at uranium recovery facilities to the 

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

14 material, and therefore eliminating possibly the 

15 material that -- the liquid impoundments is 

16 incorrect. 

17 In fact, I also believe that the EPA 

18 should regulate the radon emissions from ore 

19 piles, from the ore pads. And that conventional 

20 mills and heap leach facilities -- the ore which 

21 does not have the uranium removed also releases a 

22 great deal of radon. And yet the EPA has not 
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1 taken it upon themselves to even consider 

2 regulating this major source of radon. 

3 In your discussion of heap leach 

4 operations, it will take quite a while before the 

5 ore is placed in an impoundment prior to the 

6 leaching of a heap leach impoundment with the 

7 lixiviant. And during that time a lot of radon 

8 will be released from heap leach impoundments. 

9 And then as ore is stored at conventional 

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

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

12 also regulating these sources of radon at uranium 

13 mills. 

14 Also there seems to be a concern that 

15 under Subpart W that there is now a requirement 

16 for the approval of new impoundments. Well, 

17 that’s been the case since 1989 because under 

18 Subpart A, which under general requirements in 

19 Section 61.07, a uranium recovery licensee must 

20 apply for a construction authorization. 

21 The EPA a few years ago approved the 

22 construction impoundments at the proposed Pinon 
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1 Ridge Mill. And in Utah, where the Utah Division 

2 of Air Quality administers and enforces Subpart W 

3 and other radionuclide NESHAPS, White Mesa has 

4 also applied to the Division of Air Quality for 

5 the construction of new impoundments. So, yes, 

6 there is dual regulation. 

7 The NMA seems to believe that dual 

8 regulation is about the worst possible thing that 

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

10 the EPA does not want a radon flux standard for 

11 uranium mills, then they should have put a radon 

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

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

14 do so. 

15 So that was an oversight of the EPA and 

16 probably Subpart W came along because of the 

17 EPA’s failure to establish certain radon flux 

18 standards for uranium mills. 

19 Now, with regard to the emissions from 

20 liquid impoundments. There is recent data 

21 regarding the radium concentration at the 

22 impoundments at the White Mesa Mill. In the 
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1 EPA’s evaporation pond risk assessment, they 

2 determine that for the White Mesa Mill liquid 

3 impoundment, that there would be a radon flux of 

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

5 picocuries per liter of radium. 

6 What the EPA did not do is go to the 

7 White Mesa Mill licensee and get some data as to 

8 exactly how much radium was in specific 

9 impoundments. They could have done that but they 

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

November 1st 11 , 2013 White Mesa Mill 2013 annual 

12 tailings wastewater monitoring report for the 

13 groundwater discharge permit. And this document 

14 is available on the Division of Radiation Control 

15 website. There is data. 

16 And my calculations are just based on the 

17 EPA’s determination of what the radon flux would 

18 be based on the amount of radium in a tailings 

19 impoundment -- in a liquid impoundment. And in 

20 this case at White Mesa, they have a liquid 

21 impoundment on two -- two tailing cells that also 

22 receive tailings, so that’s Cell 3 and Cell 4A. 
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1 And then at White Mesa, they have two 

2 impoundments that are just receiving liquids. 

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

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

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

6 emissions go from 102 to 573 picocuries per meter 

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

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

9 little bit above 20 picocuries, the current 

10 standard for solid tailings, which is 20 

11 picocuries per meter squared per second. 

12 Now, all I have is this data. Perhaps 

13 Energy Fuels Resources would have a different 

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

15 data they would have a different take on this. 

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

17 data. The EPA did not keep doing research on 

18 some of these pertinent aspects of uranium mills. 

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

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

21 MS. SUTIN: One minute left. 

22 MS. FIELDS: Huh? 
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1 MS. SUTIN: One minute. 

2 MS. FIELDS: Oh, one minute. 

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

4 covered these couple of issues, so maybe I will 

5 save this for this afternoon. 

6 Thank you. 

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

8 Okay. Those were all of the speakers 

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

10 pause in the hearing until there are other people 

11 that show up that would like to speak. 

12 Thank you. 

13 (Whereupon, a recess was taken.) 

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

15 First we have Steve Brown. 

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

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

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

19 tomorrow but I just wanted to comment on some 

20 things that I heard this morning just very 

21 quickly in regards to the subject of radon 

22 evolution from moisture ponds and so forth. 
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1 Mr. Paulson had made references specific 

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

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

4 question, would be were they still or were they 

5 agitated in some way. 

6 Let me remind the EPA of the submittal by 

7 SENES Consultants that was submitted by Energy 

8 Fuels to EPA Region 8 in regards to Pinon Ridge 

9 Mill application and background information for 

10 Subpart W application which address the research 

11 of this physics associated with radon evolution 

12 in holding ponds. We have included looking at 

13 research and literature and information and 

14 provided the physics and mathematics, putting 

15 different credible wind speeds across the ponds. 

16 I know several speakers this morning 

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

18 from the days with 2 percent emission from wet 

19 tailings. Radon does not evolve from water 

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

21 And the EPA is well advised in the interest of 

22 the citizens of the United States to look at 
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1 physics and research already in the literature. 

2 Thank you. 

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

4 Next, if we could have Anthony Thompson 

5 again. 

6 MR. THOMPSON: I just want to take this 

7 opportunity perhaps to go into a little bit more 

8 detail when we talk about the issue of 

9 duplicative regulation. 

10 When the Subpart T regulations came out, 

11 the American Mining Congress filed a lawsuit. 

12 Subsequently there were negotiations with EPA, 

13 with the NRC and Agreement States as interested 

14 listeners. And at one point actually NRC thought 

15 we were not part of this so we are not going to 

16 play, but we recognize that if EPA was going to 

17 rescind, then there were going to have to be 

18 changes in NRC’s regulations, NRC had to play. 

19 And I actually went out with -- at the 

20 request of EPA staff and OGC and EPA sat in the 

21 Commission meeting room with the EPA people to 

22 explain to the commissioner’s assistants why NRC 
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1 should pay attention to this. 

2 This took about a year of long phone 

3 calls working through things and things came out 

4 such as, well, you know that a tailings pile 

5 could have an evaporation pond or a pond on the 

6 surface of the tailings pile, because if the 

7 groundwater corrective action is ongoing -- 

8 although you have covered the tailings pile -- or 

9 you may have, as I mentioned earlier, phased 

10 closure of a pile, or you may want to keep out -- 

11 you may want to keep a portion of a pile open for 

12 11.e(2) from someplace else, which is -- all of 

13 this was developed through the extensive 

14 negotiations that involved Sierra Club, EPA and 

15 American Mining Congress. And the point here was 

16 to avoid having NRC and EPA both regulate 

17 inactive tailings facilities. 

18 And what EPA wanted with respect to EPA’s 

19 concern and that of the NGO’s was that once they 

20 had shut the mill down, because economics were 

21 not good and they were not going to go any 

22 further, that they would just let the tailings 
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1 pile sit there and emanate radon. 

2 So the idea was -- and what happened was 

3 before EPA rescinded Subpart T was that NRC 

4 modified its regulations. And I mentioned 

5 Criterion 6 where they have these milestones, 

6 interim cover, et cetera, et cetera, in order to 

7 forego the concern of the NGO and EPA staff that 

8 they would just let the pile sit there. 

9 So, you know, this was all worked out in 

10 rather meticulous detail. And EPA did not 

11 rescind Subpart T until NRC amended its 

12 regulations in accordance with the agreement that 

13 we had as a part of a settlement of a lawsuit. 

14 I might also mention that subsequently 

15 Subpart I of the Clean Air Act regulations was 

16 also rescinded. And it was EPA who said, you 

17 know, we have looked at the fuel cycle 

18 facilities, it’s more than uranium recovery. And 

19 we see that the exposure is way down, you know, a 

20 couple of millirem a year, three or four or 

21 something, but below ten. 

22 And so we said, you know, there is no 
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1 point in having two agencies do things if you 

2 don’t think there is a need to. Well, what came 

3 out of that was the ten millirem constraint 

4 requirement, which really isn’t a regulation, but 

5 if you go above ten millirem at one of these 

6 facilities and go to the public and you have to 

7 explain it. 

8 The point is that what happened with 

9 Subpart T was you had to measure pursuant -- 

10 because the Clean Air Act Subpart T required 

11 measuring the tailings to ensure that you met 20 

12 average over the whole pile. 

13 The EPA design standard in 192 under the 

14 Atomic Energy Act just was a design standard that 

15 would meet the 20 picocuries. 

16 But as part of the settlement and 

17 rescission, you had to measure it. You had to 

18 demonstrate it’s measured. So that’s just a 

19 little more information why we were able to avoid 

20 overlapping regulation by getting things at EPA, 

21 or EPA and the other groups felt were important, 

22 to sort of ease their concerns, shall we say, 
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1 such as the very timely cover of the tailings and 

2 then the ten millirem constraint. 

3 So thank you. 

4 MS. SUTIN: Thank you, Mr. Thompson. 

5 Anybody else wishing to speak while we 

6 are back on the record? 

7 Okay. Well, we will pause the hearing 

8 again. And if no one has come by 11:30, I think 

9 we will close the morning session and we will 

10 start up again at 1:00 o’clock. 

11 Thank you. 

12 (Whereupon, a recess was taken.) 

13 MS. SUTIN: We will close the morning session 

14 for today and we will start back up again at 1:00 

15 o’clock. This session is officially closed. 

16 Thank you. 

17 (Whereupon, a recess was taken.) 

18 MS. SUTIN: Good afternoon. 

19 My name is Elyana Sutin and I am the 

20 regional judicial officer here in EPA Region 8. 

21 Thank you all for coming this afternoon. 

22 I will be presiding over the hearing 
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1 today. Joining me on the panel is Tom Peake and 

2 Dan Schultheisz from the Office of Radiation and 

3 Indoor Air in headquarters. The hearing is now 

4 in session. 

5 We are here today to listen and receive 

6 your comments on EPA’s proposed revisions to 

7 national emissions standards for radon emissions 

8 from operating mill tailings, also known as 40 

9 CFR, Part 61, Subpart W. 

10 The EPA is proposing to revise certain 

11 portions of the standards based on its 

12 determination as to what constitutes generally 

13 available control technology or management 

14 practices, also known as GACT, for this area 

15 source category. 

16 EPA announced this proposed rule on May 

2

nd, 2014. The comment period started on May 2nd 17 , 

2014 and was to end on July 31st 18 , 2014. On July 

21st 19 , EPA extended the comment period until 

October 29th 20 , 2014. 

21 In a moment Tom will explain in more 

22 detail what was proposed in that notice. But 
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1 before I turn it over to Tom, let me explain a 

2 bit about how today’s hearing will run. 

3 We had a session this morning, as many of 

4 you know, and we have another session this 

5 afternoon from 1:00 until 5:00 p.m. We will have 

6 the same two sessions tomorrow. 

7 Please be sure that you have checked in 

8 to the registration desk even if you are not 

9 planning to speak today. I will call the 

10 scheduled speakers to the podium. When it is 

11 your turn to speak, please state your name, spell 

12 your last name for the court reporter, and your 

13 affiliation before you begin your testimony. 

14 Your comments will be transcribed and included in 

15 the record of the comments of the proposed rule. 

16 In order to ensure that everyone has the 

17 opportunity to speak, and to ensure fairness, 

18 please limit your testimony to ten minutes. We 

19 will signal to you when you have one minute left 

20 to speak. When one minute has passed, I will ask 

21 you to complete your testimony. 

22 There is no pressure to speak for ten 
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1 minutes. If your comments are less than that, 

2 that is fine. 

3 As we did this morning, we will allow 

4 people to speak again as long as that testimony 

5 is new and discreet information that was not 

6 provided in your earlier testimony. We want to 

7 avoid repetition and we also want to avoid 

8 rebuttal of other people’s comments. So you are 

9 welcome to speak again as long it is new 

10 information. 

11 After you finish your testimony members 

12 of the panel may ask clarifying questions. We 

13 are not here today to answer those questions 

14 about the proposed rule. If you have questions 

15 about the process please find one of the EPA 

16 representatives after the hearing. 

17 If you have written copies of your 

18 testimony, or supporting documentation, please 

19 give a copy to our staff at the registration 

20 table. This will be helpful as we prepare the 

21 transcript. 

22 If you have additional comments you would 
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1 like to make you can also submit them in writing. 

2 Comments must be received on or before October 

29th 3 at 5:00 p.m. 

4 Let me assure you that EPA gives just as 

5 much consideration to comments we receive in 

6 writing as we do to comments that we receive at 

7 public hearings. Instructions for submitting 

8 comments are included on the fact sheet at the 

9 registration table which you can pick up outside 

10 the door. 

11 Today’s hearing is scheduled to end once 

12 the last registered speaker has provided 

13 comments. So if you would like to testify but 

14 have not registered to do so, please sign up at 

15 the tables outside of the room. 

16 Now I will turn things it over to Tom, 

17 who will summarize the proposed rule. 

18 Thank you. 

19 MR. PEAKE: Thank you. 

20 Hello, my name is Tom Peake, and I am the 

21 director of the Center for Waste Management and 

22 Regulations in the Office of Air and Radiation -- 
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1 Radiation and Indoor Air. And with me is Dan 

2 Schultheisz. 

3 We are here today to receive your 

4 comments on EPA’s proposed rulemaking for the 

5 revisions to the national emission standards for 

6 radon emission, NESHAPS, from operating mill 

7 tailings, also known as Subpart W. 

8 The proposed revisions would require the 

9 use of generally available control technology, 

10 GACT, to limit radon emissions from tailings at 

11 all uranium recovery facilities. Specific 

12 control technologies would be required at 

13 conventional tailings impoundments, evaporation 

14 ponds and heap leach piles. 

15 We are also proposing to add new 

16 definitions to this rule, revise existing 

17 definitions and clarify that the rule applies to 

18 uranium recovery facilities that extract uranium 

19 through the in-situ leach method and the heap 

20 leach method. 

21 Specifically, the EPA is proposing the 

22 following: 
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1 We are clearly stating that the standards 

2 apply to all units that contain uranium byproduct 

3 material. These units include, but are not 

4 limited to, conventional tailings impoundments, 

5 evaporation ponds or other nonconventional 

6 impoundments at uranium recovery facilities, and 

7 heap leach piles. 

8 We are proposing that all uranium 

9 recovery facilities comply with GACT management 

10 practices, including the use of double liners and 

11 leak detection systems. 

12 The proposed rule would remove the 

13 requirement for monitoring radon, but limits the 

14 amount of byproduct material that can be exposed. 

15 For conventional impoundments, proposed to limit 

16 tailings exposure using either phased disposal or 

17 continuous disposal. 

18 For heap leach piles, limit tailings 

19 exposure using phased disposal and maintaining a 

20 30 percent moisture content in the pile. 

21 For evaporation ponds, require at least 

22 one meter of liquid be constantly maintained in 
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1 the pond. 

2 We are proposing to add definitions for 

3 when a uranium recovery facility is in operation 

4 or standby. 

5 And lastly, the proposed rule would 

6 require the owner/operator of a uranium recovery 

7 facility to maintain records that confirm that 

8 impoundments have been constructed according to 

9 the requirements. 

10 In summary, we are here today asking for 

11 your comments on the proposed rule. The comment 

period ends on October 29th 12 , 2014. We are looking 

13 forward to hearing from you today. 

14 Thank you. 

15 MS. SUTIN: Okay. I would like our first 

16 speaker to come up and sit in the chair, please. 

17 And that is Douglas Chambers. 

18 MR. CHAMBERS: Thank you very much. I 

19 appreciate the opportunity to be here today. I 

20 was originally scheduled to talk tomorrow morning 

21 so of course my notes are actually back in my 

22 hotel room, so I will do the best I can off of 
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1 the top of my head. So I apologize for any 

2 confusion. I would be very happy to answer 

3 questions. I will be here tomorrow morning in 

4 case something occurs overnight. 

5 In any event, I am Doug Chambers, PhD in 

6 Physics, graduate courses in -- I actually taught 

7 graduate courses as well in atmospheric 

8 dispersion and biostatistics. 

9 I have been in the business of 

10 environmental radioactivity for longer than I 

11 care to remember, but 40 odd years. I’m 

12 particularly interested in the front-end of the 

13 nuclear fuel cycle and uranium mining and 

14 milling. And in potential health effects 

15 associated with front-end with the fuel cycle, 

16 which the large degree are perceived to be those 

17 associated with exposure to Radon-222. 

18 I have a few general comments to make, 

19 which I originally thought I was limited to five 

20 minutes so I may end at five minutes or I may 

21 carry on to close to ten. 

22 So I’m going to primarily focus on radon, 
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1 radon variability, and a few specific comments to 

2 put in context. It is a bit embarrassing to show 

3 my age but I was involved in the original NESHAPS 

4 discussions with EPA and heavily involved in the 

5 20 picocuries per meter squared per second and 

6 the decision of presumptively safe, which is the 

7 exact terminology if you go back and look at the 

8 rule making. 

9 And I think it is relevant in support of 

10 that, a number of people or so could -- for 

11 example, did calculations of radon concentrations 

12 and dose. For example, for all of the 

13 phosphogypsum stacks in the United States and 

14 other circumstances. And based on their own 

15 calculations, and we had similar results, it was 

16 concluded that radon from uncovered phosphogypsum 

17 stacks and radon at 20 picocuries meters squared 

18 per second did not pose a material health risk to 

19 the people living in the environment. This is 

20 well documented in the extensive annexes to the 

21 BID. 

22 It’s very important to understand that 
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1 radon is everywhere. Radon is everywhere because 

2 the parent, Radium-226, is everywhere. And all 

3 soils and rocks contain Radium-226. Building 

4 materials in this building will contain Radium5 226. And some portion of the Radon-222 that is 

6 produced by the radioactive decay of radium is 

7 released, first of all, to the pore space in the 

8 soils, rocks, and building material. And if it 

9 survives long enough before decaying to a solid 

10 radioactive decay product, can be released to the 

11 atmosphere, where it is dispersed in the 

12 atmosphere. 

13 And so basically there is rocks and soil 

14 everywhere so there is radon everywhere. And 

15 radon has a half-life of approximately 3.82 days. 

16 So if you imagine -- say for example 

17 simply put a sandy material and radon is released 

18 from radium containing matrix in the depth of the 

19 pile, it has to migrate from some depth in 

20 natural materials or soils or radium tailings to 

21 the surface. And if that migration takes longer 

22 than 3.82 days, it will decay to a solid material 
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1 and not actually escape from the surface of the 

2 material. 

3 It is well established that EPA correctly 

4 points out in their rule making and there is a 

5 great deal of documentation, much of it 

6 originating with Tanner from the past, that 

7 indicates or demonstrates quite conclusively 

8 actually that the diffusion coefficient for 

9 Radon-222 in air is 10,000 times greater than it 

10 is in water. 

11 And simply put, that means the length of 

12 time it takes for radon to diffuse through water 

13 is roughly proportionate to the square root of 

14 that. I think there may be a square root missing 

15 in your document. So the bottom line is water is 

16 very effective at attenuating radon gas. 

17 And our experience has been and we can 

18 show by calculation and by measurement actually 

19 that if the pore space in solid material, whether 

20 it’s soils or tailings materials, is filled with 

21 water, the radon release is not zero, but for 

22 practical purposes it’s as close to zero as you 
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1 could imagine. 

2 And therefore basically I would argue 

3 that the difference if you have say uranium 

4 tailings that are saturated and maintained in a 

5 saturated state, there is very little difference 

6 in the amount of radon that would be released 

7 from the surface of the tailings that are 

8 saturated and from tailings that are covered with 

9 10 centimeters or 20 centimeters or a meter of 

10 water. 

11 And it’s not clear from the documentation 

12 that the EPA provided why it is necessary to 

13 maintain a one meter of water cover. One of the 

14 operators may comment, may be more knowledgeable 

15 than I am on the need in the western U.S. to 

16 conserve water in the role of evaporation ponds. 

17 So basically EPA is absolutely correct in 

18 my view in basically saying what I said, that 

19 there is very little difference, you have 2 

20 percent and 98 percent. Water is very effective 

21 in attenuating the release of radon. 

22 And so the only question I have there is 
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1 it is not obvious why you actually need a meter 

2 of water cover. I can understand why you want to 

3 maintain some nominal water cover to maintain 

4 saturation because that would be effectively the 

5 same. 

6 The other thing I want to mention is 

7 radon is everywhere. And the health effects with 

8 radon is associated not with short term 

9 exposures, but with chronic exposures. Typically 

10 we look at annual exposures. I might add that I 

11 am very familiar with the health effects. I 

12 wrote -- which is basically everything you want 

13 to know about levels and exposures like radon. 

14 And I’m a member of NCRP Committee 85 that looked 

15 at radon. And I’m ICRP Committee 2 that is coming 

16 up with those numbers and factors and other 

17 things for radon as well. 

18 And so basically radon is everywhere. 

19 Radon concentration is everywhere. If you 

20 measure radon in the morning and measure at 

21 night, it could easily be different. If you 

22 measure it indoors, it’s much higher than 
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1 outdoors. If you measure it in calm valley 

2 bottoms it’s likely higher in the mornings until 

3 the wind comes up and disperses it. 

4 The bottom line is it’s everywhere. And 

5 EPA and others have published data for variation 

6 of ambient radon across the country that ranges 

7 from less than a tenth of a picocurie per liter 

8 to perhaps as much as two, or even more than two 

9 picocuries per liter out of doors. 

10 And I would argue, and I think it’s 

11 pretty defensible that at the levels of radon 

12 from uranium mill tailings, we see it in the 

13 United States or evaporation ponds, there is no 

14 current technology that would enable you to 

15 identify a signal from the incremental radon from 

16 tailings in the light of a variable background 

17 that is typically much higher. 

18 So I think the comments you want to make, 

19 just to repeat, is that water is very effective 

20 at reducing radon flux, number one. Number two, 

21 radon is variable and everywhere. 

22 And I have just one or two more quick 
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1 comments, if I may. I’m not sure what the time 

2 line is from this document. 

3 MS. SUTIN: You have one-and-a-half minutes. 

4 MR. CHAMBERS: Perfect, almost totally 

5 unrehearsed impromptu, I might add. So I do plan 

6 to submit short written comments with a few 

7 citations. 

8 And one of the things I wanted to take 

9 the opportunity is -- if I can find it -- there 

10 is a reference here, I thought I had it marked, 

11 to risk from radon. I apologize, I’m thumbing 

12 through the document -- here we go. 

13 Yeah, it is on page 25396 of the Federal 

14 Register, there is reference made to estimating 

15 the total cancer risk to populations surrounding 

16 all ten modeled uranium facilities, approximately 

17 4 million people living within 80 kilometers. 

18 The total risk to all 4 is between .0015 and 

19 .0026 cancers per year. I'm not exactly sure 

20 what the average lifetime is but it is probably 

21 in the order of 75 years. To make it easy, make 

22 it 80 years and you come up with a .3 to .4 
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1 cancers, which are essentially lung cancers of 

2 the bronchial epithelial tissues in that 4 

3 million people. 

4 The reality is that if you look at 2014 

5 National Cancer Statistics from the National 

6 Cancer Association of the United States, one in 

7 four of us will develop a cancer -- pardon, one 

8 in two of us will develop a cancer -- I’m almost 

9 done -- and one in four of us will unfortunately 

10 die from cancer. 

11 For the case of lung cancer, 

12 approximately 6 percent in women and 7 percent in 

13 men will develop lung cancer, which has a high 

14 mortality rate. So that is 7 in a 100 from 

15 natural background. 

16 Okay. So you multiply 7 times 4 million 

17 people, but what you’re adding from the risk that 

18 we see in the Federal Register, which I agree 

19 with is tiny, it’s about 5 decimal points smaller 

20 than the variability in natural background. It’s 

21 not -- 

22 MS. SUTIN: I need you to wrap up, Mr. 
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1 Chambers. 

2 MR. CHAMBERS: I’m done. I think basically 

3 water attenuates radon, radon levels are 

4 variable, and I agree with EPA that -- in terms 

5 of the reduced monitoring. 

6 Thank you. 

7 MS. SUTIN: Thank you. 

8 Next if we can have Kimberly Morrison. 

9 MS. MORRISON: Hi, my name is Kim Morrison, 

10 last name is spelled M-o-r-r-i-s-o-n. And I am a 

11 consulting geotechnical engineer representing 

12 Energy Fuels. And I am the environmental manager 

13 for the proposed Sheep Mountain Project in 

14 Wyoming. 

15 The Sheep Mountain Project, which 

16 includes a proposed uranium heap leach facility, 

17 was heavily referenced by the EPA in the 

18 background information for the proposed rules. 

19 However, there is a clear 

20 misunderstanding by the EPA on the concepts of 

21 heap leaching, the reduced level of radium in a 

22 uranium heap leach facility as compared to a 
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1 uranium tailings impoundment, and a fundamental 

2 misunderstanding of the difference between 

3 moisture saturation and moisture content. 

4 When uranium ore is being leached on heap 

5 leach facility, it is actively recovering uranium 

6 and is neither “tailings” nor 11.e(2) byproduct 

7 material as defined by the Atomic Energy Act. 

8 When uranium recovery is complete, however, the 

9 spent ore then becomes 11.e(2) byproduct 

10 material. 

11 But at that time the facility is no 

12 longer active nor operational. As such, a heap 

13 leach facility, by definition, is not applicable 

14 to the Subpart W rules that by title are 

15 applicable to mill tailings in operating 

16 facilities. 

17 If the position that heap leach 

18 facilities are applicable to Subpart W is 

19 maintained, then the EPA needs to understand the 

20 various types of heap leach facilities proposed 

21 for uranium recovery. The revised rules focus 

22 merely on regulating in-place permanent 
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1 conventional heap leach facilities, but make no 

2 mention of other facilities, such as on-off heap 

3 leach facilities where material is leached on an 

4 engineered pad after which the leached ore is 

5 removed and placed in a permanent disposal 

6 facility. 

7 The EPA has proposed that heap leach 

8 facilities maintain a minimum moisture content of 

9 30 percent. Based on a review of the background 

10 information, it appears that the EPA are 

11 referring to the moisture content as a percentage 

12 of the weight. 

13 The proposed 30 percent water content is 

14 neither practical nor achievable if the heap 

15 leach facility is operated as intended. To put 

16 the proposed 30 percent moisture content into 

17 perspective, this would correspond to 185 percent 

18 ore saturation for the proposed Sheep Mountain 

19 Project. 

20 As such, this proposed rule would require 

21 that the ore be not only fully saturated but 

22 submerged at all times. We have reviewed the 
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1 background information that EPA used to support 

2 the 30 percent moisture content proposal and 

3 found a number of invalid assumptions in their 

4 approach. 

5 For instance, moisture saturation as a 

6 percent of available void space and moisture 

7 content as a percent of weight are not 

8 interchangeable parameters, nor is the 

9 relationship between the two parameters a 

10 constant. 

11 Low grade ore is typically processed by 

12 heap leach methods, and a low grade ore contained 

13 within a heap leach facility emits less radon 

14 than a conventional tailings impoundment of a 

15 similar size assuming similar physical 

16 conditions. 

17 For example, the proposed ore grade --

18 excuse me, the ore grade at the proposed Sheep 

19 Mountain Project is approximately 0.1 percent 

20 uranium, while ore grades of about 0.2 to 0.7 

21 percent uranium have been processed at the White 

22 Mesa Mill over the past three years. 
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1 As such, EPA’s one size fits all approach 

2 to setting moisture content requirements and area 

3 requirements for heap leach facilities is overly 

4 conservative and this should be determined 

5 instead based on data and analysis. 

6 In summary, using liquid levels to 

7 control radon emissions from a heap leach 

8 facility conflicts with the overall operational 

9 concept of a heap leach facility. It would 

10 significantly dilute the leaching solution, it 

11 would have an adverse effect on the process, it 

12 would significantly increase the driving head on 

13 the underlying liner system. It would result in 

14 much greater construction and operating costs for 

15 the facilities. And lastly, it would result in 

16 the wasteful consumption of water. 

17 Thank you for your time. 

18 MS. SUTIN: Hold on, Ms. Morrison. We have a 

19 question. 

20 MR. PEAKE: Will you be submitting the 

21 information in detail that you were discussing so 

22 that we will have that in our records? 
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1 MS. MORRISON: Yes. As Frank Filas mentioned 

2 this morning, Energy Fuels is in the process of 

3 preparing a very lengthy comment document. We 

4 are about at thirty pages currently. And it 

5 provides information on all of the various 

6 aspects, including several page discussion 

7 talking about the saturation versus the moisture 

8 content of heap leach facilities and why the 30 

9 percent by weight moisture content is not an 

10 acceptable approach. 

11 MR. PEAKE: And will you be -- you had 

12 mentioned that there are alternative heap leach 

13 approaches that we did not analyze. Would you be 

14 providing that? Since there aren’t any heap 

15 leach facilities in operation. 

16 MS. MORRISON: In the United States there are 

17 currently no heap leach facilities that recover 

18 uranium. However, there are a number of heap 

19 leach facilities worldwide that are constructed 

20 of various manners. There is Vat leaching, there 

21 is on-off heap leach facilities, there is valley 

22 filled leach facilities. 
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1 With regard to uranium, the only one that 

2 is currently being proposed in the United States 

3 is the Sheep Mountain Project, which is a 

4 conventional heap leach facility. 

5 However, Strathmore Resources looked at 

6 doing Vat leaching for the Gas Hills Project also 

7 in Wyoming. And with regard to other uranium 

8 heap leaches worldwide, I believe it’s the 

9 Rossing facility in Africa that has an on-off 

10 heap leach facility constructed on top of an old 

11 tailings impoundment. 

12 And so with the on-off heap leach 

13 facility, the spent ore is removed from the 

14 engineer pad, placed in a lined facility. So 

15 there are other facilities worldwide. 

16 MR. PEAKE: Okay. Thank you. We will 

17 appreciate getting that information. 

18 MS. MORRISON: Thank you. 

19 MS. SUTIN: Next if we could have Steve 

20 Brown. 

21 MR. BROWN: Thank you again. My name is 

22 Steve Brown, B-r-o-w-n, Consultant for SENES 
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1 Consultants of Englewood, Colorado. I’m 

2 certified by the American Board of Health 

3 Physics, a diplomate of the American Academy of 

4 Health Physics. I have been a practicing health 

5 physicist for almost forty years. A health 

6 physicist is a physical scientist who concerns 

7 oneself with the monitoring control of 

8 radioactive material and radiation so nuclear 

9 activities can be used for the benefit of 

10 mankind. 

11 My remarks today are focused on a central 

12 theme of just comparing the then and the now, 

13 i.e., the then relative to why we needed controls 

14 for radon emissions from these types of 

15 facilities way back when versus the circumstances 

16 today at licensed sites under the Atomic Energy 

17 Act of the United States. 

18 So first to start off with perspectives, 

19 origin of the need, under current Subpart W 

20 requirements and proposed revisions, EPA has 

21 assumed that to control public radiological risk 

22 limits must be placed at the source, at the 
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1 location of the tailing cells or the ponds. 

2 These limits are believed necessary to control 

3 the radon emission, which we call the source 

4 term, including numerical limits on radon 

5 emission flux as is in the current version of 

6 Subpart W, as well as limitations on the acreage 

7 of cells that can be used or the amount of 

8 acreage that can be open at any one time, 

9 variations of which appeared in both the current 

10 and the proposed revisions. 

11 Historically, I’m talking thirty to 

12 thirty-five years ago now, such emission controls 

13 of the source were necessary. And direct 

14 outgrowth of the Uranium Mill Tailings Radiation 

15 Control Act of 1978, particularly given the 

16 circumstances of the UMTRCA Title 1 sites, which 

17 were literally abandoned sites when -- which the 

18 public had direct access to the sites and the 

19 tailings themselves. It was reported at that 

20 time, I was there way back when, that children 

21 are playing on them. And of course there was a 

22 lot of misuse of the materials at that time for 
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1 construction, for roads, for driveways and so 

2 forth. 

3 So back in the context of these Title 1 

4 sites of the past, there needed to be control of 

5 radon emission at the source because the public 

6 had direct access to the source. 

7 However, moving thirty -- thirty-five 

8 years to the current circumstances, at sites and 

9 facilities licensed under the United States 

10 Atomic Energy Act or the Agreement State 

11 Regulations by NRC, the monitoring and control of 

12 public radiation exposure and dose and related 

13 radiological risk must occur at the closest 

14 location of public access to the licensed 

15 material, i.e., what we refer to as the boundary 

16 of the restricted/unrestricted area. 

17 Quantitative limits are articulated in 

18 the current federal regulations, Title 10, Part 

19 20 Standards for Protection Against Radiation, 

20 and its Appendix B and equivalent sections of 

21 Agreement State regulations. 

22 Examples of specific requirements are 
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1 listed in my reference section following. 

2 Premise, my premise, accordingly it is 

3 suggested that the application of Subpart W to 

4 uranium mill tailings and other uranium recovery 

5 facilities licensed under the United States 

6 Atomic Energy Act is dual and duplicative of 

7 federal regulations that to me, a physical 

8 scientist, does not appear to provide any 

9 additional radiological risk reduction to the 

10 public. 

11 Now I will not speak to the authorities, 

12 the definitions, the intentions of regulatory or 

13 statutory circumstances, I leave that to my 

14 lawyer colleagues. And as I have said to my 

15 lawyer colleagues, I won’t practice law if you 

16 don’t practice health physics. And I will just 

17 leave it as that. 

18 Argument as follows, the radiological 

19 doses that are risk to the public at the site 

20 boundary from licensed radioactive material 

21 contained within the site are functions of 

22 several important factors, the meteorology, the 
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1 distance, the exposure circumstances, as well as 

2 the emission rate at the source. 

3 However, unlike the legacy of abandoned 

4 uranium tailing sites of the past, i.e., the 

5 UMTRCA Title 1 site for example, the public has 

6 no access to the exposure conditions of the 

7 source of the no restricted area boundary of the 

8 licensed site. 

9 The dose risk only needs to be monitored 

10 and controlled at locations to which the public 

11 has access. The traditional parameters of 

12 concern in Subpart W in regards to public 

13 radiological risk, i.e., the radon emission rate, 

14 maximum per acreage, general acreage exposed at 

15 any time and so forth is not in a direct way 

16 related to public exposure conditions some 

17 distance away, and controlled and monitored at 

18 the licensed boundary locations. 

19 Conclusion, existing federal regulations, 

20 both those of NRC and EPA, establish controls and 

21 limits to the maximum exposed member of the 

22 public, quote, end quote -- for example, 10 CFR 
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1 20.1301. 

2 Accordingly, applications of Subpart W to 

3 uranium recovery related sites and facilities 

4 licensed under the United States Atomic Energy 

5 Act appears to me to be redundant and not 

6 necessary. And my references again include 10 

7 CFR 20 standards for protection against 

8 radiation, 20.1301 dose limits for individual 

9 members of the public limited to 100 millirem per 

10 year to the maximum exposed member of the public 

11 above natural background. 

12 The U.S. NRC 10 CFR 20, Appendix B, Table 

13 2, Column 1, the concentrations of radioactive 

14 materials, including radon on a nuclides specific 

15 basis that can be released to unrestricted areas. 

16 In the case of a licensed facility, that 

17 is where the public has a maximum opportunity to 

18 reside. These concentration limits represent the 

19 average annual concentrations at which if an 

20 individual were exposed continuously at that 

21 concentration would receive a total effective 

22 dose equivalent of 50 millirem per year. 
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1 Now, as a frame of reference, if I have 

2 got another minute or two, in regards to what do 

3 these numbers mean in terms of exposure limits, 

4 I’m quoting here an EPA quote used in Subpart B 

5 of Part 61 in regards to radon emissions from 

6 uranium mines, that’s 10 millirem per year. 

7 Closure under 40 CFR 192, 5 millirem per year. A 

8 closure of abandoned CERCLA sites of 15 millirem 

9 per year. 

10 Honestly people, I don't know how the 

11 tissues of my body know the difference between 

12 those where they come from, but that’s another 

13 matter. 

14 The point is, as a resident of Colorado 

15 I’m going to get 4 to 500 millirem per year 

16 because I live on this planet Earth in this 

17 state. For you folks that live in Washington, 

18 D.C., maybe your annual exposure is 200 to 300 

19 millirem per year. So that difference, depending 

20 on where one chooses to live, is an order of 

21 magnitude greater than what we are suggesting we 

22 need to regulate to. 
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1 If I decide to leave my home in Colorado 

2 and go lay on a beach in North Carolina for a 

3 couple of weeks, I would save 15 to 20 millirem 

4 just because of where I choose to take my 

5 vacation. And I can tell you maybe risks at that 

6 level do not need to be controlled. 

7 And I have quoted 40 CFR 190, 

8 Environmental Radiation Protection Standards for 

9 Nuclear Power Operations, USEPA, limiting 

10 exposure from any operation of the fuel cycle to 

11 25 millirem dose equivalent to the whole line. 

12 40 CFR 192, Health and Environmental 

13 Protection Standards for Uranium Mill Tailings, 

14 Subpart D, standards from matters of uranium 

15 byproduct material, both of which is a reference 

16 regards to closure as opposed to operations 

17 that -- that time frame. But nonetheless, again 

18 establishes the 20 picocuries per meter squared 

19 per second flux limit for the closure of 

20 tailings. 

21 USNRC 10 CFR 40, Appendix A, Criterion 6 

22 also similarly defines and limits exposure of 
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1 that -- exposure to and the radon emissions. 

2 So in conclusion, I believe that there 

3 are adequate protections in existing law for the 

4 public in regards to these sites. And maybe all 

5 Subpart W needs to do for licensed sites is make 

6 reference to existing regulations and established 

7 law. 

8 Thank you very much. And I will take any 

9 questions. 

10 MS. SUTIN: Up next we have Sarah Fields. 

11 MS. FIELDS: My name is Sarah Fields, 

12 S-a-r-a-h, F-i-e-l-d-s. And I am with Uranium 

13 Watch from Moab, Utah. 

14 I think one of the problems that a lot of 

15 us have had who have reviewed this proposed 

16 regulation and the very lengthy Federal Register 

17 Notice is a disconnect between what is in the 

18 Federal Register Notice in the proposed rule and 

19 the reality at conventional mills, ISL, and even 

20 proposed heap leach operations. 

21 I agree with the National Mining 

22 Association that definitions do count. When you 
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1 look at Subpart W, it has two important 

2 definitions, the definition of an existing 

3 impoundment and the definition of operation. 

4 It says that operation of uranium mill 

5 impoundment ends the day the closure begins, but 

6 it doesn’t contain any information about, well, 

7 what must take place for closure to begin. 

8 I think under the definition of an 

9 existing -- an existing impoundment is one that 

10 was constructed before December 1989 and is 

11 licensed to receive waste in the tailings 

12 impoundment. 

13 So let’s see how this is played out at 

14 the White Mesa Mill, particularly Cell 2. Cell 2 

15 is an existing impoundment. It is not mentioned 

16 in the Federal Register notice. So the Cells 2 

17 and 3 were the original existing tailings 

18 impoundment. They are between 60 and 70 acres 

and they are lined. Up until July 23rd 19 of this 

year, July 23rd 20 , 2014, that tailings cell was 

21 licensed to receive tailings and waste, 11.e(2) 

22 byproduct material. 
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1 Actually, according to Energy Fuels, it 

2 had not received -- no material had been disposed 

3 of in the tailings impoundments -- I mean, no 

4 waste since 2008. So from 2008 to 2014, that 

5 impoundment was still licensed to receive waste. 

6 It has an interim cover. Every year the licensee 

7 measured the radon in that impoundment. They 

8 submitted the annual reports to first the EPA and 

9 then the Division of Air Quality, Utah Division 

10 of Air Quality, which took over regulation in 

11 1995. 

12 So even though you might say it was 

13 closed, it was still licensed to receive material 

14 and it still submitted those annual reports. And 

15 in fact in 2012, it -- the radon, the annual 

16 radon flux was more than 20 picocuries. 

17 Therefore, they started monitoring on a 

18 monthly basis. They must start monitoring in 

19 2013 because that’s when they submit the annual 

20 reports, in March. They are due at the end of 

21 March. 

22 So under Subpart W, they are required to 
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1 bring the radon flux back into compliance. And 

2 they determined the reason for the increase in 

3 the radon was because of an accelerated 

4 dewatering program. They are talking about the 

5 importance of water to attenuate the radon flux. 

6 So there is no longer a pond on top. But 

7 as the water in the pores is diminished because 

8 of the accelerated dewatering program, the radon 

9 flux increased. Also there was windblown 

10 tailings from over in Cell 3. 

11 So they cleaned up those windblown 

12 tailings and put a barrier between Cell 2 and 

13 Cell 3. And they put additional material on top 

14 of the interim cover. Thereby they brought the 

15 radon flux back into compliance. 

 Now, what happened on June -- July 23rd, 16 

July 23rd 17 the State Utah Division of Radiation 

18 Control issued an order saying that they no 

19 longer had to submit monthly reports because they 

20 were ordering that 11.e(2) byproduct material and 

21 waste could no longer be disposed of in the 

22 tailings impoundment and that closure had begun. 
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1 So there was an official action. One of 

2 the problems however with this official action is 

3 that now under NRC regulation, which the Utah 

4 Division of Radiation Control implements, is that 

5 6(a) says for a tailings impoundment under 

6 closure, you’re supposed to have a radon closure 

7 plan and you’re supposed to have reclamation 

8 milestones. 

9 The whole assumption of the rescission of 

10 Subpart T and the new EPA regulations in 192 and 

11 the new NRC regulations at Criterion 6(a), there 

12 would be a radon closure plan and there would be 

13 reclamation milestones. 

14 So let’s take a look at Cell 2. At this 

15 time there is no longer -- there is no radon 

16 closure plan incorporated into the White Mesa 

17 Mill license and there are no reclamation 

18 milestones. 

19 So I think that the EPA, if they are 

20 going to take -- allow tailings impoundments to 

21 come out from under Subpart W, that they have to 

22 say there has to be a radon closure plan and 
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1 there have to be reclamation milestones. And 

2 there has to be a license amendment which says 

3 the licensee is no longer permitted to dispose of 

4 any 11.e(2) byproduct material, waste, 

5 alternate -- whatever processing -- additional 

6 processing fluids or anything else in that 

7 tailings impoundment. 

8 And so another aspect of this Subpart T, 

9 that rescission, is that the assumption is that 

10 as soon as reasonably feasible, a final radon 

11 barrier will be placed on that impoundment. 

12 However, if you look at the reclamation 

13 plan from Energy Fuels, Energy Fuels has no 

14 intention of putting a final radon barrier on 

15 Cell 2 until all four of those tailings 

16 impoundments, 2, 3, 4A and 4B, are filled with 

17 tailings so that there will be only one radon 

18 barrier over all of those impoundments. 

19 So Cell 2 will sit there for maybe the 

20 next three, four or five decades without a final 

21 radon barrier. But now they are not going to be 

22 regulated under Subpart W so there is this gap. 
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1 So the gap is in the regulation of radon from at 

2 a conventional mill tailings impoundment, is that 

3 once it goes into closure -- and that’s the time 

4 when there is -- the tailings impoundment is 

5 drying out. The EPA has recognized that. 

6 And you look back at the 1989 

7 Federal Register Notice that promulgated Subpart 

8 W, that when it dries out the radon emissions 

9 increase significantly. So what happens, it is 

10 no longer under Subpart W, it is going through 

11 dewatering, but there is no requirement to 

12 monitor the radon. That means there is -- no one 

13 knows if throughout this dewatering process that 

14 the -- if the radon emissions are increasing. 

15 Well, they kept monitoring at Cell 2 so 

16 they knew the radon emissions were increasing and 

17 they took corrective action. 

18 So it’s feasible throughout this 

19 dewatering period with an interim cover to 

20 maintain radon emissions that are less than 20 

21 picocuries. But still, this tailings impoundment 

22 doesn't have a -- there are no milestones. 
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1 So the gap occurs between the end of 

2 Subpart W and a time when if you have a 

3 milestone, and you request an extension of the 

4 milestone, which has happened at many uranium 

5 mill tailings impoundments, you have to show -- 

6 to get an extension you have to show 20 

7 picocuries. 

8 MS. SUTIN: I need you to wrap up. 

9 MS. FIELDS: The EPA has created this gap. 

10 And I don’t think that it is really recognized in 

11 the EPA and I don’t think the EPA has made -- is 

12 really taking efforts to fill that gap. 

13 Thank you. 

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

15 Hold on, Ms. Fields. 

16 MS. FIELDS: Sorry. 

17 MR. PEAKE: In your comments, will you be 

18 proposing definitions? 

19 You had said, you know, you agree the 

20 definitions are important. Are you going to in 

21 your comments be providing alternative 

22 definitions for us to consider? 
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1 MS. FIELDS: Yes. And I also feel that there 

2 shouldn’t be any time in any phase of a 

3 conventional mill’s life where there is a lack of 

4 regulation of the radon emissions, that there 

5 shouldn’t be this gap. 

6 And the problem is with Subpart T. 

7 Subpart T was basically -- I mean, the rescission 

8 of Subpart T, it was rescinded to take care of 

9 some issues with uranium mills that had already 

10 ceased operation. It wasn't really rescinded 

11 taking into consideration the issues at existing 

12 uranium conventional mills either in Colorado -- 

13 Cañon City or White Mesa. 

14 MS. SUTIN: Thank you. We don’t have any 

15 other registered speakers at this time so we will 

16 pause the hearing until someone else shows up to 

17 speak. 

18 Thank you. 

19 (Whereupon, a recess was taken.) 

20 MS. SUTIN: It is 4:30 and we have had no 

21 further speakers today so we are officially 

22 closing this afternoon session of the hearing on 
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September 3rd 1 , 2014. The hearing is officially 

2 closed. 

3 (Whereupon, the hearing was concluded at 

4 4:30 p.m.) 

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